As filed with the Securities and Exchange Commission on July 14, 2014
Registration No. 333-195551
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 4
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Westlake Chemical Partners LP
(Exact Name of Registrant as Specified in Its Charter)
Delaware | 2860 | 32-0436529 | ||
(State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(IRS Employer Identification Number) |
2801 Post Oak Boulevard, Suite 600
Houston, Texas 77056
(713) 960-9111
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
L. Benjamin Ederington
Vice President, General Counsel and Secretary
2801 Post Oak Boulevard, Suite 600
Houston, Texas 77056
(713) 960-9111
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies to :
David P. Oelman E. Ramey Layne Vinson & Elkins L.L.P. 1001 Fannin Street, Suite 2500 Houston, Texas 77002 (713) 758-2222 |
William N. Finnegan IV Latham & Watkins LLP 811 Main Street, Suite 3700 Houston, Texas 77002 (713) 546-5400 |
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, 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, 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(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 that 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.
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 becomes effective. This preliminary prospectus is not an offer to sell these securities and we are not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
Subject to Completion, dated July 14, 2014
PROSPECTUS
Westlake Chemical Partners LP
Common Units
Representing Limited Partner Interests
This is the initial public offering of common units representing limited partner interests of Westlake Chemical Partners LP. We are offering common units. We were recently formed by Westlake Chemical Corporation (Westlake) and, prior to this offering, there has been no public market for our common units. We currently expect the initial public offering price to be between $ and $ per common unit. We have applied to list our common units on the New York Stock Exchange under the symbol WLKP.
Investing in our common units involves risks. Please read Risk Factors beginning on page 21
These risks include the following:
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We are substantially dependent on Westlake for our cash flows. If Westlake does not pay us under the terms of the ethylene sales agreement (the Ethylene Sales Agreement) or if our assets fail to perform as intended, we may not have sufficient cash from operations following the establishment of cash reserves and payment of costs and expenses, including cost reimbursements to our general partner and its affiliates, to enable us to pay the minimum quarterly distribution to our unitholders. |
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On a pro forma basis we would not have had sufficient adjusted current earnings to pay the full minimum quarterly distribution on all units for the year ended December 31, 2013 and the three-month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, with shortfalls of $ million for the year ended December 31, 2013 and $ million, $ million and $ million for the three month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, respectively. |
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Westlake Chemical OpCo LP (OpCo), a partnership between Westlake and us, is a restricted subsidiary and guarantor under Westlakes credit facility and the indentures governing its senior notes. Restrictions in the credit facility and indentures could limit OpCos ability to make distributions to us. |
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Our production facilities process volatile and hazardous materials that subject us to operating risks that could adversely affect our operating results. |
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Westlake owns and controls our general partner, which has sole responsibility for conducting our business and managing our operations. Our general partner and its affiliates, including Westlake, have conflicts of interest with us and limited duties, and they may favor their own interests to our detriment and that of our unitholders. |
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Holders of our common units have limited voting rights and are not entitled to elect our general partner or its directors, which could reduce the price at which our common units will trade. |
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Even if holders of our common units are dissatisfied, they cannot initially remove our general partner without its consent. |
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There is no existing market for our common units, and a trading market that will provide you with adequate liquidity may not develop. The price of our common units may fluctuate significantly, and unitholders could lose all or part of their investment. |
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Our tax treatment depends on our status as a partnership for federal income tax purposes, as well as us not being subject to a material amount of entity-level taxation by individual states. If the Internal Revenue Service were to treat us as a corporation for federal income tax purposes, or we become subject to entity-level taxation for state tax purposes, our cash available for distribution would be substantially reduced. |
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Even if you do not receive any cash distributions from us, you will be required to pay taxes on your share of our taxable income. |
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Public Offering Price |
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Underwriting Discount (1) |
$ | $ | ||||||
Proceeds to Westlake Chemical Partners LP (before expenses) (2) |
$ | $ |
(1) | Excludes a structuring fee of % of the gross proceeds of this offering payable to Barclays Capital Inc. and UBS Securities LLC. We refer you to Underwriting beginning on page 173 of this prospectus for additional information regarding underwriter compensation. |
(2) | We expect that $ million, or %, of the offering proceeds will be available to us after the deduction of all fees, commissions, expenses, compensation and payment to affiliates. Please read Use of Proceeds on page 44. |
The underwriters may purchase up to an additional common units from us at the public offering price, less the underwriting discount, within 30 days from the date of this prospectus.
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.
The underwriters expect to deliver the common units to purchasers on or about , 2014 through the book-entry facilities of The Depository Trust Company.
Barclays | UBS Investment Bank |
BofA Merrill Lynch | Deutsche Bank Securities | Morgan Stanley |
Goldman, Sachs & Co. |
J.P. Morgan |
Wells Fargo Securities |
Prospectus dated , 2014
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Summary Historical and Pro Forma Combined Carve-out Financial and Operating Data |
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Estimated Adjusted Current Earnings for the Twelve Months Ending June 30, 2015 |
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Distributions From Operating Surplus During the Subordination Period |
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Distributions From Operating Surplus After the Subordination Period |
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Percentage Allocations of Distributions From Operating Surplus |
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Adjustment to the Minimum Quarterly Distribution and Target Distribution Levels |
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SELECTED HISTORICAL AND PRO FORMA COMBINED CARVE-OUT FINANCIAL AND OPERATING DATA |
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MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS |
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Factors Affecting the Comparability of Our Financial Results |
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Locations of Ethylene Production Assets Utilizing Advantaged Ethane Feedstock in the U.S. |
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT |
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Distributions and Payments to Our General Partner and Its Affiliates |
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Procedures for Review, Approval and Ratification of Transactions with Related Persons |
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Merger, Consolidation, Conversion, Sale or Other Disposition of Assets |
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Transfer of Subordinated Units and Incentive Distribution Rights |
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INVESTMENT IN WESTLAKE CHEMICAL PARTNERS LP BY EMPLOYEE BENEFIT PLANS |
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APPENDIX AAMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF WESTLAKE CHEMICAL PARTNERS LP |
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B-1 |
You should rely only on the information contained in this prospectus, any free writing prospectus prepared by or on behalf of us or any other information to which we have referred you in connection with this offering. We have not, and the underwriters have not, authorized any other person to provide you with information different from that contained in this prospectus. Neither the delivery of this prospectus nor sale of our common units means that information contained in this prospectus is correct after the date of this prospectus. Our business, financial conditions, results of operations and prospects may have changed since that date. We will update this prospectus as required by law. This prospectus is not an offer to sell or solicitation of an offer to buy our common units in any circumstances under which the offer or solicitation is unlawful.
This prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond our control. See Risk Factors and Forward-Looking Statements.
INDUSTRY AND MARKET DATA
The data included in this prospectus regarding the olefins industry, including trends in the market and our position and the position of our competitors within the olefins industry, is based on 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 other companies file with the 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 managements 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 data presented in this prospectus. The sources of the industry and market data used herein are the most recent data available to management and therefore management believes such data to be reliable.
We commissioned Wood Mackenzie Limited (Wood Mackenzie), an independent market consultant, to assist in the preparation of the Industry section of this prospectus, but we have not funded, nor are we otherwise affiliated with, any other third-party source cited herein. Any data sourced from Wood Mackenzie is used with the express written consent of Wood Mackenzie.
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This summary highlights selected information appearing elsewhere in this prospectus. Because it is abbreviated, this summary does not contain all of the information that you should consider before investing in our common units. While this summary highlights what we consider to be the most important information about us, you should read the entire prospectus carefully, including the historical combined carve-out and unaudited pro forma combined carve-out financial statements and the notes to those financial statements. The information presented in this prospectus assumes (i) an initial public offering price of $ per common unit (the mid-point of the price range set forth on the cover page of this prospectus) and (ii) unless otherwise indicated, that the underwriters option to purchase additional common units is not exercised. You should read Risk Factors beginning on page 21 for more information about important risks that you should consider carefully before investing in our common units.
Unless the context otherwise requires, references in this prospectus to our partnership, our, us, we or like terms refer to Westlake Chemical Partners LP and, unless otherwise specified, Westlake Chemical OpCo LP and Westlake Chemical OpCo GP LLC. When used in a historical context, our, us, we or like terms refer to the ethylene business, including feedstock costs and revenue associated with the sale of ethylene and co-products, conducted by Westlake Chemical Corporation and its subsidiaries, a portion of which will be contributed to Westlake Chemical OpCo LP in connection with the closing of this offering. References in this prospectus to our general partner refer to Westlake Chemical Partners GP LLC. References to OpCo refer to Westlake Chemical OpCo LP, which is a newly created limited partnership owned by us and Westlake Chemical Corporation and its subsidiaries. References to Westlake refer collectively to Westlake Chemical Corporation and its subsidiaries, other than us, our general partner, OpCo and Westlake Chemical OpCo GP LLC, OpCos general partner. We will own a 10% limited partner interest and the general partner interest in OpCo. We will consolidate OpCo in our financial statements. We have provided definitions for some of the terms we use to describe our business and industry and other terms used in this prospectus in the Glossary of Terms attached as Appendix B to this prospectus.
Westlake Chemical Partners LP
We are a Delaware limited partnership recently formed by Westlake to operate, acquire and develop ethylene production facilities and related assets. Westlake is a vertically integrated, international manufacturer and marketer of basic chemicals, polymers, and fabricated building products. Our business and operations are conducted through OpCo, a recently formed partnership between Westlake and us. At the consummation of this offering, our assets will consist of a 10% limited partner interest in OpCo as well as the general partner interest in OpCo. Because we own OpCos general partner, we have control over all of OpCos assets and operations. Westlake has retained a 90% limited partner interest in OpCo and will retain a significant interest in us through its ownership of our general partner as well as % of our limited partner units (consisting of common units and all of the subordinated units) and our incentive distribution rights.
OpCos assets will be comprised of three ethylene production facilities, which convert primarily ethane into ethylene, with an aggregate annual capacity of approximately 3.4 billion pounds and a 200-mile ethylene pipeline. OpCo will derive substantially all of its revenue from its ethylene production facilities. Ethylene is the worlds most widely used petrochemical in terms of volume and is a key building block used to produce a number of key derivatives, such as polyethylene (PE) and polyvinyl chloride (PVC), which are used in a wide variety of end markets including packaging, construction and transportation. Westlakes downstream PE and PVC production facilities will consume a substantial majority of the ethylene produced by OpCo. OpCo
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will generate revenue primarily by selling ethylene to Westlake and others, as well as through the sale of co-products of ethylene production, including propylene, crude butadiene, pyrolysis gasoline and hydrogen. Our sole revenue generating asset will be our 10% limited partner interest in OpCo.
In connection with this offering, OpCo will enter into a 12-year ethylene sales agreement with Westlake, under which Westlake will agree to purchase 95% of OpCos planned ethylene production each year on a cost-plus basis that is expected to generate a fixed margin per pound of $0.10 (the Ethylene Sales Agreement). We believe this agreement will promote more stable and predictable cash flows for OpCo. Any ethylene not sold to Westlake and all co-products that are produced by OpCo will be sold to third parties on either a spot or contract basis. OpCo will also enter into a feedstock supply agreement with Westlake that will supply OpCo with all of the ethane (and any other feedstocks) required for OpCo to produce ethylene under the Ethylene Sales Agreement (the Feedstock Supply Agreement).
OpCo primarily uses ethane (a component of natural gas liquids, or NGLs) to produce ethylene. Approximately 66.5% of global ethylene production is based on higher priced feedstocks (primarily naphtha, as well as butane and propane) whose prices are linked to global oil prices. As a result, global ethylene and ethylene derivative prices have generally been linked to movements in global oil prices (principally Brent crude prices) for more than 20 years. In the U.S., technological advances in horizontal drilling and fracturing techniques in shale formations have dramatically increased the production of oil and gas and resulted in the oversupply of ethane. The spread between U.S. ethane and global oil prices has provided a margin advantage for U.S. ethane-based ethylene producers, such as OpCo. Throughout 2012 and 2013, production costs for U.S. ethane-based ethylene producers were significantly lower than global ethylene production facilities utilizing naphtha and other feedstocks. This feedstock cost advantage for U.S. ethane-based ethylene producers as compared to Asia naphtha-based ethylene producers has resulted in a positive cash cost differential that has ranged from $0.23 per pound to $0.48 per pound, and averaged $0.38 per pound, since 2012. Over the last decade, cash margins of U.S. ethane-based ethylene producers were above $0.10 per pound every year other than 2009, when cash margins were below $0.10 per pound due to the global economic recession.
Given Westlakes significant ownership interest in us following this offering, we believe Westlake is incentivized to offer us the opportunity to purchase additional assets that it owns, including additional interests in OpCo, although it is under no obligation to do so. We may also pursue organic growth opportunities at OpCo as well as acquisitions from third parties, which could be effected jointly with Westlake. OpCo currently plans to expand the capacity of one of its ethylene production facilities by approximately 250 million pounds in late 2015 or early 2016.
For the year ended December 31, 2013, OpCo had pro forma revenues of approximately $1,198.8 million, pro forma EBITDA of approximately $369.6 million and pro forma net income of approximately $295.5 million. For the same time period, we had pro forma EBITDA (net of noncontrolling interest) of approximately $37.0 million and pro forma net income (net of noncontrolling interest) of approximately $29.6 million. For the three months ended March 31, 2014, OpCo had pro forma revenues of approximately $333.4 million, pro forma EBITDA of approximately $90.9 million and pro forma net income of approximately $71.4 million. For the same time period, we had pro forma EBITDA (net of noncontrolling interest) of approximately $9.1 million and pro forma net income (net of noncontrolling interest) of approximately $7.1 million. Please read Summary Historical and Pro Forma Combined Carve-out Financial and Operating DataNon-GAAP Financial Measure for the definition of EBITDA and a reconciliation of EBITDA to net income, on a historical basis and pro forma basis, and to cash flow from operating activities, on a historical basis, which reconciliation is presented in accordance with generally accepted accounting principles (GAAP).
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Our sole revenue generating asset will be our 10% limited partner interest in OpCo. We will also own the general partner interest of OpCo. OpCo, in turn, will own:
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two ethylene production facilities at Westlakes Lake Charles, Louisiana complex (Petro 1 and Petro 2, collectively referred to as Lake Charles Olefins), with a combined annual capacity of approximately 2.7 billion pounds; |
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one ethylene production facility at Westlakes Calvert City, Kentucky complex (Calvert City Olefins), with an annual capacity of approximately 630 million pounds; and |
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a 200-mile common carrier ethylene pipeline that runs from Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview PE production facility (the Longview Pipeline). |
As the owner of the general partner interest of OpCo, we will control all aspects of the management of OpCo, including its cash distribution policy. See BusinessOpCos Assets.
Ethylene Production Facilities . OpCo operates three ethylene production facilities that are situated on real property leased to OpCo by Westlake pursuant to two 50-year site lease agreements. Ethylene can be produced from either NGL feedstocks, such as ethane, propane and butane, or from petroleum-derived feedstocks, such as naphtha. Lake Charles Olefins and Calvert City Olefins use ethane primarily as their feedstock. Calvert City Olefins can also use propane as a feedstock and Petro 2 can also use an ethane/propane mix, propane, butane or naphtha as a feedstock.
The following table provides information regarding OpCos ethylene production facilities as of June 30, 2014:
Plant Location (Description) |
Annual Production
Capacity (millions of pounds) |
Feedstock |
Primary Uses of
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Lake Charles, LA (Petro 1) |
1,250 | ethane | PE and PVC | |||||
Lake Charles, LA (Petro 2) |
1,490 | ethane, ethane/propane mix, propane, butane or naphtha | PE and PVC | |||||
Calvert City, KY (Calvert City Olefins) |
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Longview Pipeline . OpCo owns the Longview Pipeline, which is a 200-mile common carrier ethylene pipeline, with a capacity of 3.5 million pounds per day that runs from Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview PE production facility.
Our Ethylene Sales Agreement with Westlake
In connection with this offering, OpCo will enter into the Ethylene Sales Agreement with Westlake. The Ethylene Sales Agreement will have an initial term through December 31, 2026 and will automatically renew thereafter for successive 12-month terms unless terminated by either party. The Ethylene Sales Agreement requires Westlake to purchase 95% of OpCos planned ethylene production each year, subject to certain exceptions and a maximum commitment of 3.8 billion pounds per year. If OpCos actual production is in excess of planned ethylene production, Westlake will have the option to purchase up to 95% of production in excess of planned production.
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Westlakes purchase price for the minimum commitment of ethylene under the Ethylene Sales Agreement will be calculated on a per pound basis and includes:
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the actual price paid by OpCo for the feedstock and natural gas to produce each pound of ethylene (subject to a cap and a floor on the amount of feedstock and natural gas used); plus |
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the estimated per pound operating costs (including selling, general and administrative expenses) for the year and a five-year average of future expected maintenance capital expenditures and other turnaround expenditures; less |
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the proceeds received by OpCo from the sale of co-products associated with the ethylene purchased by Westlake; plus |
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a $0.10 per pound margin. |
Westlakes purchase price for any ethylene produced in excess of the planned production amount will generally equal OpCos estimated variable costs of producing the incremental ethylene, plus a $0.10 per pound margin. The estimated operating costs and maintenance capital expenditures and other turnaround expenditures will be adjusted at the end of each year to reflect certain changes in forecasted costs. If OpCos actual operating costs and maintenance capital expenditures and other turnaround expenditures are higher than the estimate for any year, or OpCos actual production is below the planned production amount upon which the per pound operating costs and maintenance capital expenditures and other turnaround expenditures are based, OpCo will be entitled to include in the fee for the succeeding year a surcharge to recover the resulting shortfall. If these costs are lower than estimated, OpCo will retain the difference, but such difference may be reflected in periodic downward adjustments to the total estimated costs. The result of the fee structure is that OpCo should recover the portion of its total operating costs and maintenance capital expenditures and other turnaround expenditures attributable to Westlakes ethylene purchases. Approximately 5% of OpCos ethylene production will be sold at market rates on either a spot or contract basis to third parties. Average U.S. industry margins for producing ethane-based ethylene are currently substantially in excess of $0.10 per pound, and averaged approximately $0.46 per pound since 2013.
Our primary business objective is to operate efficiently and safely and to grow our business responsibly, enabling us to increase the amount of cash distributions we make to our unitholders over time while maintaining our financial stability. We intend to accomplish these objectives by executing the following strategies:
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Generate Stable, Fee-Based Cash Flows . We are focused on generating stable cash flows by selling 95% of our ethylene production to Westlake under a long-term, fee-based contract. Our contract with Westlake includes minimum volume commitments and a pricing provision designed to permit OpCo to generally recover its costs (including selling, general and administrative expenses), plus a fixed $0.10 margin per pound of ethylene sold. In addition, we plan to supplement these relatively stable cash flows with additional cash flows by maximizing the price of the 5% of our ethylene production and associated co-products sold to third parties. We intend to maintain our focus on fee-based cash flows as we grow. |
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Focus on Operational Excellence . We intend to maximize the throughput of our production facilities while providing safe, reliable and efficient operations. We believe that a key component in generating stable cash flows is to continuously maintain, monitor and improve the safety and reliability of our operations. |
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Pursue Organic Growth Opportunities . We intend to enhance the profitability of OpCos existing assets by pursuing opportunities such as capacity expansion projects. OpCo plans to expand Petro 1 to increase capacity by approximately 250 million pounds in late 2015 or early 2016 and expects to finance this expansion through borrowings from Westlake. We may also pursue additional organic development projects complementary to our existing businesses, either through OpCo or independently. |
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Increase our Ownership of OpCo . We intend to increase our ownership interest in OpCo over time either by purchasing newly issued interests from OpCo or by purchasing outstanding interests in OpCo from Westlake. |
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Pursue Growth Opportunities Through Acquisitions . We intend to pursue acquisitions of complementary assets from third parties. Such acquisitions could be pursued independently by OpCo, independently by us or jointly with Westlake. |
We believe we are well positioned to execute our business strategies based on the following competitive strengths:
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Stable and Predictable Cash Flows from OpCo . The Ethylene Sales Agreement is designed to cover our costs and provide a $0.10 margin per pound on a substantial majority of the ethylene we produce, reducing our exposure to commodity price volatility and promoting more stable cash flow. Westlake is obligated to purchase 95% of our planned ethylene production. In addition, Westlake is expected to exercise its option to purchase 95% of our excess production. We believe each of those factors should result in more stable cash flows. |
Each of OpCos ethylene production facilities requires turnaround maintenance on average every five years. OpCo intends to reserve approximately $29.3 million per year to fund these turnaround expenditures. Reserving these amounts should enable OpCo to maintain steady cash flows for distributions while funding these significant non-annual expenditures. We intend to use $ million from the proceeds of this offering to fund OpCos initial balance for this turnaround reserve. Westlakes purchase price for ethylene purchased under the Ethylene Sales Agreement will include a component (adjusted annually) designed to cover, over the long term, substantially all of OpCos turnaround expenditures.
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Strategic Relationship with Westlake . We have a strategic relationship with Westlake, which we believe will provide both us and OpCo with a stable base of cash flows as well as opportunities for growth. Westlake has an investment grade credit rating and is well-capitalized. Westlake will own % of our limited partner units (consisting of common units and all of the subordinated units), our incentive distribution rights and our general partner. OpCos ethylene production facilities are a critical supply source for Westlakes production of diversified downstream products including PE and PVC and this vertical integration enables Westlake to capture the economic value of the entire ethylene value chain. In particular, we expect to benefit from the following aspects of our relationship with Westlake: |
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Attractive Downstream Polyethylene Product Mix . Westlake focuses on a low-density PE (LDPE) and linear low-density PE (LLDPE) product mix. LDPE has enjoyed higher margins than LLDPE and high-density PE (HDPE), the more commoditized PE grades. A majority of Westlakes production is LDPE. Westlake is a leading producer of LDPE by capacity in North America and predominantly uses the autoclave technology (as opposed to tubular technology), which is capable of producing higher margin specialty PE products. Autoclave LDPE is a more specialized form of LDPE that feeds into a broad array of end products. In contrast, tubular LDPE is a more commoditized form of LDPE with a narrower range of applications. Approximately 80% of Westlakes LDPE production is autoclave. Furthermore, most announced LDPE industry capacity additions in North American are projected to be tubular LDPE. |
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Highly Integrated Polymers and Vinyls Chain . Westlake is highly integrated along its PVC production chain. Most U.S.-based PVC producers including Westlake internally produce their chlorine requirements, but most rely on the merchant market for their ethylene requirements. Westlake, however, is substantially integrated into ethylene as well. As a result, Westlake enjoys operational and cost advantages relative to non-ethylene integrated PVC producers. Westlakes vinyls, PVC and downstream PVC building products businesses are well positioned to capitalize on improvements in the construction market, which could drive additional usage of ethylene. |
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Acquisition and Growth Opportunities . Immediately after this offering we will own a 10% limited partner interest in OpCo. The opportunity to acquire additional ownership interests in OpCo is an important potential source of our future growth, although Westlake has no obligation to sell additional interests in OpCo to us. |
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Access to Operational and Industry Expertise . We expect to benefit from Westlakes extensive operational, commercial and technical expertise, as well as its industry relationships, as we seek to optimize and expand OpCos existing asset base. |
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Well Maintained Assets with Long History of Reliable Operations . OpCo continually invests in the maintenance and integrity of its assets. OpCos ethylene production facilities have operated on average above the industry average operating rate of 86.4% since 2005. OpCo conducts regularly scheduled turnarounds at each of its ethylene production facilities to perform planned major maintenance activities. OpCo is also continually focused on improving its asset portfolio and cost position. At Calvert City Olefins, OpCo recently completed an expansion and feedstock conversion project that resulted in a 180 million pound capacity expansion and also provided OpCo with 100% ethane feedstock capability. In addition, OpCo plans to expand Petro 1 by approximately 250 million pounds in late 2015 or early 2016. |
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Strategically Located Assets . OpCo benefits from the strategic location of its ethylene production facilities, which allows it to access low-cost ethane from the Gulf Coast and the Marcellus and Utica shale formations. Petro 1 and Petro 2 are both large-scale facilities with abundant feedstock sourcing capabilities given their proximity to Mont Belvieu, the largest NGLs hub on the Gulf Coast. Westlake currently supplies feedstock to Lake Charles Olefins through several pipelines from a variety of suppliers in Texas and Louisiana. Additionally, Calvert City Olefins is connected to the ATEX pipeline, allowing OpCo to use ethane feedstocks from the Marcellus and Utica shale formations. Westlakes Calvert City complex is one of the few PVC plants outside the Gulf Coast, and it is also the only fully integrated vinyls complex located outside of the Gulf Coast, giving it a shipping advantage for certain key markets, such as the Midwest, the Northeast and Canada. OpCo recently completed an expansion and feedstock conversion project at this facility, which increased its ethylene production and enabled it to take advantage of low-cost ethane production from the Marcellus and Utica shale formations. |
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Conservative Financial Profile . OpCo has a $600.0 million intercompany credit agreement with Westlake that may be used to fund growth projects and working capital needs. We expect to have $ million of indebtedness at the closing of this offering and believe that our access to the debt and equity capital markets should provide us with the financial flexibility necessary to pursue organic expansion and acquisition opportunities. Westlake is a well-capitalized, credit worthy sponsor with an investment grade credit rating and a significant amount of liquidity. Westlake had cash, cash equivalents and current marketable securities of $776.3 million as of March 31, 2014. Westlake may also provide direct and indirect financing to us from time to time. |
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Experienced Management Team . Our management team consists of senior officers of Westlake, who average over 28 years of experience in the petrochemical industry. We believe the level of operational and financial expertise of our management team will prove critical in successfully executing our business strategies. |
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Our Relationship With Westlake
Our principal strength is our relationship with Westlake. Westlake is a vertically integrated, international manufacturer and marketer of basic chemicals, polymers and fabricated building products. Westlake benefits from highly integrated production facilities that allow it to process raw materials into higher value-added chemicals and building products. As of March 31, 2014, Westlake had 13.6 billion pounds per year of aggregate production capacity at 15 manufacturing sites in North America as well as a 59% interest in a joint venture that operates a vinyls facility in China. For the three months ended March 31, 2014 and the year ended December 31, 2013, Westlake had consolidated revenues of approximately $1.0 billion and $3.8 billion, respectively, and net income of $158.0 million and $610.4 million, respectively. Westlakes common stock trades on the New York Stock Exchange (NYSE) under the symbol WLK.
Westlake will retain a significant interest in us through its ownership of % of our limited partner units (consisting of common units and all of the subordinated units), our incentive distribution rights and our general partner. We believe Westlake will promote and support the successful execution of our business strategies because of its significant ownership in us and our general partner and its intention to use us to grow its ethylene business. We believe Westlake will offer us the opportunity to purchase additional assets from it, including additional interests in OpCo, although it is under no obligation to do so. We also may have the opportunity to pursue acquisitions which could be effected jointly with Westlake.
We will enter into an omnibus agreement with Westlake in connection with this offering. Under the omnibus agreement, Westlake will agree to indemnify OpCo for certain environmental and other liabilities relating to OpCos ethylene production facilities and related assets and OpCo will indemnify Westlake for certain environmental liabilities for which Westlake is not otherwise obligated to indemnify OpCo and certain other losses and liabilities resulting from Westlake providing services to OpCo. We or OpCo will enter into a number of agreements with Westlake in connection with this offering, including the Ethylene Sales Agreement described under Our Ethylene Sales Agreement with Westlake and the Feedstock Supply Agreement. Please read Certain Relationships and Related Transactions.
While our relationship with Westlake and its subsidiaries is a significant strength, it is also a source of potential conflicts. Please read Conflicts of Interest and Fiduciary Duties.
An investment in our common units involves risks associated with our business, our partnership structure and the tax consequences of our common units. You should carefully consider the following risks, the risks described in Risk Factors and the other information in this prospectus before deciding whether to invest in our common units.
Risks Inherent in Our Business
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We are substantially dependent on Westlake for our cash flows. If Westlake does not pay us under the terms of the Ethylene Sales Agreement or if our assets fail to perform as intended, we may not have sufficient cash from operations following the establishment of cash reserves and payment of costs and expenses, including cost reimbursements to our general partner and its affiliates, to enable us to pay the minimum quarterly distribution to our unitholders. |
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On a pro forma basis we would not have had sufficient adjusted current earnings to pay the full minimum quarterly distribution on all units for the year ended December 31, 2013 and for the three-month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, with shortfalls of $ million for the year ended December 31, 2013 and $ million, $ million and $ million for the three-month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, respectively. |
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OpCo is subject to the credit risk of Westlake on a substantial majority of its revenues, and Westlakes leverage and creditworthiness could adversely affect our ability to make distributions to our unitholders. |
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OpCo is a restricted subsidiary and guarantor under Westlakes credit facility and the indentures governing its senior notes. Restrictions in the credit facility and indentures could limit OpCos ability to make distributions to us. |
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Substantially all of OpCos sales are generated at three facilities located at two sites. Any adverse developments at any of these facilities or sites could have a material adverse effect on our results of operations and therefore our ability to distribute cash to unitholders. |
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If OpCo is unable to renew or extend the Ethylene Sales Agreement beyond the initial 12-year term or the other agreements with Westlake upon expiration of these agreements, our ability to make distributions in the future could be materially adversely affected and the value of our units could decline. |
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OpCo has the right to use the real property underlying Lake Charles Olefins and Calvert City Olefins pursuant to two, 50-year site lease agreements with Westlake. If OpCo is not able to renew the site lease agreements or if the site lease agreements are terminated by Westlake, OpCo may have to relocate Lake Charles Olefins and Calvert City Olefins, abandon the assets or sell the assets to Westlake. |
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OpCos ability to receive greater cash flows from increased production may be limited by the Ethylene Sales Agreement. |
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Many of our assets have been in service for many years and require significant expenditures to maintain them. As a result, our maintenance or repair costs may increase in the future. In addition, while we intend to establish cash reserves in order to cover turnaround expenditures, the amounts we reserve may not be sufficient to fully cover such expenditures. |
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Our production facilities process volatile and hazardous materials that subject us to operating risks that could adversely affect our operating results. |
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Our operations and assets are subject to extensive environmental, health and safety laws and regulations. |
Risks Inherent in an Investment in Us
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Westlake owns and controls our general partner, which has sole responsibility for conducting our business and managing our operations. Our general partner and its affiliates, including Westlake, have conflicts of interest with us and limited duties, and they may favor their own interests to our detriment and that of our unitholders. |
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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. |
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Westlake and other affiliates of our general partner may compete with us. |
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Holders of our common units have limited voting rights and are not entitled to elect our general partner or its directors, which could reduce the price at which our common units will trade. |
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Even if holders of our common units are dissatisfied, they cannot initially remove our general partner without its consent. |
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Unitholders will experience immediate and substantial dilution of $ per common unit. |
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There is no existing market for our common units, and a trading market that will provide you with adequate liquidity may not develop. The price of our common units may fluctuate significantly, and unitholders could lose all or part of their investment. |
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Unitholders may have liability to repay distributions. |
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If we fail to develop or maintain an effective system of internal controls, we may not be able to accurately report our financial results or prevent fraud. As a result, current and potential unitholders could lose confidence in our financial reporting, which would harm our business and the trading price of our units. |
Tax Risk Factors to Common Unitholders
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Our tax treatment depends on our status as a partnership for federal income tax purposes, as well as us not being subject to a material amount of entity-level taxation by individual states. If the Internal Revenue Service, or IRS, were to treat us as a corporation for federal income tax purposes, or we become subject to entity-level taxation for state tax purposes, our cash available for distribution to you would be substantially reduced. |
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The tax treatment of publicly traded partnerships or an investment in our units could be subject to potential legislative, judicial or administrative changes or differing interpretations, possibly applied on a retroactive basis. |
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Even if you do not receive any cash distributions from us, you will be required to pay taxes on your share of our taxable income. |
We are managed and operated by the board of directors and executive officers of our general partner, Westlake Chemical Partners GP LLC, a wholly owned subsidiary of Westlake. As a result of owning our general partner, Westlake will have the right to appoint all members of the board of directors of our general partner, including at least three directors meeting the independence standards established by the NYSE, and the board of directors of our general partner will appoint its executive officers. Each of our general partners executive officers is also an executive officer of Westlake, and we expect that our general partners executive officers will devote less than a majority of their total business time to the management of our business. At least one of our independent directors will be appointed prior to the date our common units are listed for trading on the NYSE. Our unitholders will not be entitled to elect our general partner or its directors or otherwise directly participate in our management or operations. For more information about the executive officers and directors of our general partner, please read Management.
Summary of Conflicts of Interest and Fiduciary Duties
Our general partner has a contractual duty to manage us in a manner that it believes is not adverse to our interests. However, the officers and directors of our general partner have fiduciary duties to manage our general partner in a manner beneficial to Westlake, the owner of our general partner. As a result, conflicts of interest may arise in the future between us or our unitholders, on the one hand, and Westlake and our general partner, on the other hand.
Our partnership agreement limits the liability of and replaces the fiduciary duties owed by our general partner to our unitholders. Our partnership agreement also restricts the remedies available to our unitholders for actions that might otherwise constitute a breach of duties by our general partner or its directors or officers. Our partnership agreement permits the board of directors of our general partner to form a conflicts committee of independent directors and to submit to that committee matters that the board believes may involve conflicts of interest. Any matters approved by the conflicts committee will be conclusively deemed to be approved by us and all of our partners and not a breach by our general partner of any duties it may owe us or our unitholders. By purchasing a common unit, the purchaser agrees to be bound by the terms of our partnership agreement, and each unitholder is
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treated as having consented to various actions and potential conflicts of interest contemplated in the partnership agreement that might otherwise be considered a breach of fiduciary or other duties under Delaware law.
For a more detailed description of the conflicts of interest and duties of our general partner and its directors and officers, please read Conflicts of Interest and Fiduciary Duties. For a description of other relationships with our affiliates, please read Certain Relationships and Related Transactions.
Principal Executive Offices and Internet Address
Our principal executive offices are located at 2801 Post Oak Boulevard, Suite 600, Houston, Texas 77056, and our telephone number is (713) 960-9111. Our website address will be http://www. .com. We intend to make our periodic reports and other information filed with or furnished to the U.S. Securities and Exchange Commission, or 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.
Formation Transactions and Partnership Structure
We are a Delaware limited partnership formed in March 2014 by Westlake to own and operate certain of the businesses that have historically been conducted by Westlake.
At or prior to the closing of this offering:
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Westlake will cause to be transferred to OpCo Lake Charles Olefins, Calvert City Olefins and the Longview Pipeline; |
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OpCo will enter into the Ethylene Sales Agreement with Westlake pursuant to which Westlake will commit to purchase ethylene from OpCo; and |
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OpCo will enter into the Feedstock Supply Agreement, omnibus agreement, site lease agreements and other agreements with Westlake relating to the purchase and supply of ethane and other feedstocks, the operation of OpCos ethylene production facilities, the sharing of various site services and other matters. |
For further details on our agreements with Westlake and its affiliates, please read BusinessAgreements with Affiliates and Certain Relationships and Related Transactions.
In connection with the closing of this offering, the following will occur:
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Westlake (which currently owns all of OpCos limited partner interests) will contribute a % limited partner interest in OpCo to us; |
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Westlake will contribute OpCos general partner to us; |
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in exchange for Westlakes contribution, we will issue to Westlake common units, all subordinated units and all of our incentive distribution rights; |
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we will issue common units to the public; |
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we will receive gross proceeds of $ million from the issuance and sale of common units at an assumed initial offering price of $ per unit (the mid-point of the price range set forth on the cover page of this prospectus); |
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we will use $ million of the proceeds from this offering to pay underwriting discounts, a structuring fee and estimated offering expenses; |
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we will use $ million of the proceeds from this offering to purchase from OpCo an additional % limited partner interest in OpCo (resulting in us owning a 10% limited partner interest), of which OpCo will use $ million to establish an initial cash reserve for turnaround expenditures and $ to reimburse Westlake for certain pre-formation capital expenditures with respect to the assets contributed to OpCo; |
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we and OpCo will enter into an omnibus agreement with Westlake, our general partner and other affiliates governing, among other things, indemnification obligations; and |
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OpCo will enter into a credit facility with Westlake. |
We have granted the underwriters a 30-day option to purchase up to an aggregate of additional common units. Any net proceeds received from the exercise of this option will be used to purchase an additional limited partner interest in OpCo. The amount of the additional interest purchased will depend on the amount of the option exercised, and will be calculated at approximately % purchased for each one million of additional common units purchased by the underwriters. If the underwriters exercise their option to purchase additional common units in full, we would purchase an additional % limited partner interest in OpCo.
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The following is a simplified diagram of our ownership structure after giving effect to this offering and the related transactions.
Public Common Units |
% (1) | |||
Interests of Westlake: |
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Common Units |
% (1) | |||
Subordinated Units |
% (1) | |||
Non-Economic General Partner Interest |
0.0 | % (2) | ||
Incentive Distribution Rights |
| (3) | ||
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100.0 | % | |||
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(1) | Assumes no exercise of the underwriters option to purchase additional common units. If the underwriters exercise their option to purchase additional common units in full, the public common units will represent a % limited partner interest in us and the common units and subordinated units held by Westlake will represent % and % limited partner interests, respectively, in us. |
(2) | Our general partner owns a non-economic general partner interest in us. Please read How We Make Distributions To Our PartnersGeneral Partner Interest. |
(3) | Incentive distribution rights represent a variable interest in distributions and thus are not expressed as a fixed percentage. Please read How We Make Distributions To Our PartnersIncentive Distribution Rights. Distributions with respect to the incentive distribution rights will be classified as distributions with respect to equity interests. All of our incentive distribution rights will be issued to Westlake. |
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Common units offered to the public |
common units. |
common units if the underwriters exercise their option to purchase additional common units in full. |
Units outstanding after this offering |
common units (or common units if the underwriters option to purchase additional common units is exercised in full) and subordinated units for a total of limited partner units (or limited partner units if the underwriters option to purchase additional common units is exercised in full). |
Use of proceeds |
We intend to use the estimated net proceeds of approximately $ million from this offering (based on an assumed initial offering price of $ per common unit, the mid-point of the price range set forth on the cover page of this prospectus), after deducting the estimated underwriting discounts, structuring fee and offering expenses, to purchase from OpCo a % limited partner interest in OpCo. The % interest in OpCo purchased with the proceeds from this offering, when combined with the % interest in OpCo contributed to us in connection with the formation transactions, will result in our ownership of a 10% limited partner interest in OpCo following the closing of this offering. |
OpCo will use $ million to establish a cash reserve for turnaround expenditures and $ million to reimburse Westlake for capital expenditures it incurred with respect to certain of the assets contributed to OpCo. |
If the underwriters exercise their option to purchase additional common units in full, the additional net proceeds will be approximately $ million (based on an assumed initial offering price of $ per common unit, the mid-point of the price range set forth on the cover page of this prospectus). The net proceeds from any exercise of such option will be used to purchase an additional limited partner interest in OpCo, and OpCo will use such net proceeds to first reimburse any remaining unreimbursed capital expenditures and then to repay intercompany debt to Westlake. Please read Use of Proceeds. |
Cash distributions |
Within 60 days after the end of each quarter, beginning with the quarter ending , 2014 we expect to make a minimum quarterly distribution of $ per common unit and subordinated unit ($ per common unit and subordinated unit on an annualized basis) to unitholders of record on the applicable record date. For the first quarter that we are publicly traded, we will pay a prorated distribution covering the period from the completion of this offering through , 2014, based on the actual length of that period. |
The board of directors of our general partner will adopt a policy pursuant to which distributions for each quarter will be paid to the extent we have sufficient cash after establishment of cash reserves |
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and payment of fees and expenses, including payments to our general partner and its affiliates. Our ability to pay the minimum quarterly distribution is subject to various restrictions and other factors described in more detail in Cash Distribution Policy and Restrictions on Distributions. |
Our partnership agreement generally provides that we will distribute cash each quarter during the subordination period in the following manner: |
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first , to the holders of common units, until each common unit has received the minimum quarterly distribution of $ , plus any arrearages from prior quarters; |
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second , to the holders of subordinated units, until each subordinated unit has received the minimum quarterly distribution of $ ; and |
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third , to the holders of common and subordinated units, pro rata, until each unit has received a distribution of $ . |
If cash distributions to our unitholders exceed $ per common unit and subordinated unit in any quarter, our unitholders and Westlake, as the holder of our incentive distribution rights (or IDRs), will receive distributions according to the following percentage allocations: |
Marginal Percentage Interest in
Distributions |
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Total Quarterly Distribution Target Amount |
Unitholders | IDR Holders | ||||||
above $ up to $ |
85.0 | % | 15.0 | % | ||||
above $ up to $ |
75.0 | % | 25.0 | % | ||||
above $ |
50.0 | % | 50.0 | % |
We refer to the additional increasing distributions to Westlake as incentive distributions. Please read How We Make Distributions To Our PartnersIncentive Distribution Rights. |
The amount of adjusted current earnings we generated on a pro forma basis during the year ended December 31, 2013 and the twelve months ended March 31, 2014 would have been approximately $ million and $ million, respectively. These amounts would have been sufficient to pay 100% of the aggregate minimum quarterly distribution on all common units for those periods. However, our pro forma adjusted current earnings for the year ended December 31, 2013 would only allow us to pay aggregate cash distributions of $ , or approximately % of the minimum quarterly distribution, on all of our subordinated units. Please read Cash Distribution Policy and Restrictions on Distributions. |
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We believe, based on our financial forecast and related assumptions included in Cash Distribution Policy and Restrictions on Distributions, that we will have sufficient cash to pay the minimum quarterly distribution of $ on all of our common units and subordinated units for the twelve months ending June 30, 2015. However, we do not have a legal or contractual obligation to pay quarterly distributions at the minimum quarterly distribution rate or at any other rate and there is no guarantee that we will pay distributions to our unitholders in any quarter. Please read Cash Distribution Policy and Restrictions on Distributions. |
Subordinated Units |
Westlake will initially own all of our subordinated units. The principal difference between our common units and subordinated units is that for any quarter during the subordination period, holders of the subordinated units will not be entitled to receive any distribution from operating surplus until the common units have received the minimum quarterly distribution from operating surplus for such quarter plus any arrearages in the payment of the minimum quarterly distribution from prior quarters. Subordinated units will not accrue arrearages. |
Conversion of subordinated units |
The subordination period will end on the first business day after we have earned and paid an aggregate amount of at least the minimum quarterly distribution multiplied by the total number of outstanding common and subordinated units for each of three consecutive, non-overlapping four-quarter periods ending on or after , 2017 and there are no outstanding arrearages on our common units. |
Notwithstanding the foregoing, the subordination period will end on the first business day after we have paid an aggregate amount of at least 150.0% of the minimum quarterly distribution on an annualized basis multiplied by the total number of outstanding common and subordinated units and we have earned that amount plus the related distribution on the incentive distribution rights, for any four-quarter period ending on or after , 2015 and there are no outstanding arrearages on our common units. |
When the subordination period ends, all subordinated units will convert into common units on a one-for-one basis, and all common units will thereafter no longer be entitled to arrearages. |
Issuance of additional units |
Our partnership agreement authorizes us to issue an unlimited number of additional units without the approval of our unitholders. Please read Units Eligible for Future Sale and The Partnership AgreementIssuance of Additional Interests. |
Limited voting rights |
Our general partner will manage and operate us. Unlike the holders of common stock in a corporation, our unitholders will have only limited voting rights on matters affecting our business. Our unitholders will have no right to elect our general partner or its directors on an annual or other continuing basis. Our general partner may not be removed |
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except by a vote of the holders of at least 66 2 / 3 % of the outstanding units, including any units owned by our general partner and its affiliates, voting together as a single class. Upon consummation of this offering, Westlake will own an aggregate of % of our outstanding units (or % of our outstanding units, if the underwriters exercise their option to purchase additional common units in full). This will give Westlake the ability to prevent the removal of our general partner. In addition, any vote to remove our general partner during the subordination period must provide for the election of a successor general partner by the holders of a majority of the common units and a majority of the subordinated units, voting as separate classes. This will provide Westlake the ability to prevent the removal of our general partner. Please read The Partnership AgreementVoting Rights. |
Limited call right |
If at any time our general partner and its affiliates own more than 80% of the outstanding common units, our general partner has the right, but not the obligation, to purchase all of the remaining common units at a price equal to the greater of (i) the average of the daily closing price of the common units over the 20 trading days preceding the date three days before notice of exercise of the call right is first mailed and (ii) the highest per-unit price paid by our general partner or any of its affiliates for common units during the 90-day period preceding the date such notice is first mailed. Please read The Partnership AgreementLimited Call Right. |
Directed Unit Program |
At our request, the underwriters have reserved up to 5% of the common units being offered by this prospectus for sale at the initial public offering price to the officers, directors and employees of our general partner and its affiliates and certain other persons associated with us, as designated by us. For further information regarding our directed unit program, please read Underwriting. |
Members of the Chao family or entities affiliated with such members, who in the aggregate beneficially own approximately 69% of Westlakes common stock, have indicated an interest in purchasing a portion of the common units being offered in this offering through our directed unit program. |
Estimated ratio of taxable income to distributions |
We estimate that if you own the common units you purchase in this offering through the record date for distributions for the period ending , 2016, you will be allocated, on a cumulative basis, an amount of federal taxable income for that period that will be less than 20% of the cash distributed to you with respect to that period. For example, if you receive an annual distribution of $ per unit, we estimate that your average allocable federal taxable income per year will be no more than approximately $ per unit. Thereafter, the ratio of allocable taxable income to cash distributions to you could |
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substantially increase. Please read Material U.S. Federal Income Tax ConsequencesTax Consequences of Unit Ownership for the basis of this estimate. |
Material federal income tax consequences |
Subject to the discussion under Material U.S. Federal Income Tax ConsequencesTaxation of the PartnershipPartnership Status and the limitations set forth therein, it is the opinion of Vinson & Elkins L.L.P. that we will be treated as a partnership for U.S. federal income tax purposes. As a result, we generally will not be liable for U.S. federal income taxes. Instead, each of our unitholders will take into account its share of our income, gains, losses and deductions in computing its U.S. federal income tax liability as if it had earned such income directly, even if we do not make cash distributions to that unitholder. Consequently, a unitholder may be liable for U.S. federal income taxes as a result of ownership of our units even if that unitholder 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 the material U.S. federal income tax consequences that may be relevant to prospective unitholders, you should read Material U.S. Federal Income Tax Consequences. |
Exchange listing |
We have applied to list our common units on the New York Stock Exchange (the NYSE) under the symbol WLKP. |
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Summary Historical and Pro Forma Combined Carve-out Financial and Operating Data
We were formed on March 14, 2014 and have had no operations since formation. Therefore, our historical financial data is not included in the following table. The following table shows summary historical combined carve-out financial data of the predecessor of Westlake Chemical Partners LP (the Predecessor). The following table also shows our summary unaudited pro forma combined carve-out financial data for the periods and as of the dates indicated. The summary historical combined carve-out balance sheet data presented as of December 31, 2013 and 2012 and the statement of operations data for the years ended December 31, 2013, 2012, and 2011 are derived from the audited historical combined carve-out financial statements of our Predecessor, which are included elsewhere in this prospectus. The summary historical combined carve-out balance sheet data presented as of March 31, 2013 and December 31, 2011 is derived from the unaudited historical combined carve-out financial statements of our Predecessor, which are not included in this prospectus. The summary historical combined carve-out balance sheet presented as of March 31, 2014 and the statement of operations data for the three months ended March 31, 2014 and 2013 are derived from the unaudited historical combined carve-out financial statements of our Predecessor, which are included elsewhere in this prospectus.
The summary historical combined carve-out financial statements of our Predecessor reflect Westlakes entire ethylene business, including, but not limited to, procuring feedstock, managing inventory and commodity risk and transporting ethylene from manufacturing facilities. Our assets on the closing date of the offering will consist only of our 10% limited partner interest in OpCo as well as the general partner interest in OpCo. OpCos assets will consist of Lake Charles Olefins, Calvert City Olefins and the Longview Pipeline. OpCos financial results will be consolidated into ours for financial reporting purposes. The following table should be read together with, and is qualified in its entirety by reference to, the historical unaudited and audited combined carve-out financial statements of the Predecessor and the accompanying notes included elsewhere in this prospectus. The following table should also be read together with Managements Discussion and Analysis of Financial Condition and Results of Operations.
The summary unaudited pro forma combined carve-out financial data presented in the following table as of March 31, 2014, and for the three months ended March 31, 2014 and the year ended December 31, 2013, are derived from the unaudited pro forma combined carve-out financial statements included elsewhere in this prospectus. The unaudited pro forma combined carve-out balance sheet assumes the offering and the related transactions occurred as of March 31, 2014, and the unaudited pro forma combined carve-out statements of operations for three months ended March 31, 2014 and the year ended December 31, 2013, assumes the offering and the related transactions occurred as of January 1, 2013. These transactions include, and the unaudited pro forma combined carve-out financial statements give effect to, the following:
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Westlakes contribution to OpCo of Lake Charles Olefins, Calvert City Olefins and the Longview Pipeline; |
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the transfer by Westlake to us of a limited partner interest in OpCo, and a 100% interest in Westlake Chemical OpCo GP LLC, which holds the general partner interest in OpCo, in exchange for the issuance by us to Westlake of common units, subordinated units and all of the incentive distribution rights; |
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the consummation of this offering and our issuance of common units to the public at an assumed initial offering price of $ per unit and the use of proceeds therefrom as described under Use of Proceeds; and |
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OpCos execution of the Ethylene Sales Agreement, omnibus agreement and services and secondment agreement with Westlake. |
The unaudited pro forma combined carve-out financial statements do not give effect to an estimated $3.0 million in incremental general and administrative expenses that we expect to incur annually as a result of being a
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separate, publicly traded partnership, including costs associated with preparing and filing annual and quarterly reports to unit holders, financial statement audits, tax return and Schedule K-1 preparation and distribution, investor relations activities, registrar and transfer agent fees and independent director compensation.
The following table presents the non-GAAP financial measure of EBITDA, which we use in our business. For a definition of EBITDA and a reconciliation to our most directly comparable financial measures calculated and presented in accordance with GAAP, please read Non-GAAP Financial Measure.
Westlake Chemical Partners
LP
Predecessor Historical |
Westlake Chemical
Partners LP Pro Forma |
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Three Months Ended
March 31, |
Year Ended December 31, |
Three Months
Ended March 31, |
Year Ended
December 31, |
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2014 | 2013 | 2013 | 2012 | 2011 | 2014 | 2013 | ||||||||||||||||||||||
(unaudited) | (unaudited) | (unaudited) | (unaudited) | |||||||||||||||||||||||||
(dollars in thousands, except per unit data) | ||||||||||||||||||||||||||||
Combined Carve-out Statement of Operations Data: |
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Total net sales |
$ | 560,014 | $ | 500,917 | $ | 2,127,747 | $ | 2,249,098 | $ | 2,251,043 | $ | 333,346 | $ | 1,198,805 | ||||||||||||||
Gross profit |
232,314 | 190,010 | 872,607 | 635,652 | 409,098 | 79,592 | 318,464 | |||||||||||||||||||||
Selling, general and administrative expenses |
7,778 | 6,171 | 25,451 | 24,103 | 24,312 | 6,252 | 18,942 | |||||||||||||||||||||
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Income from operations |
224,536 | 183,839 | 847,156 | 611,549 | 384,786 | 73,340 | 299,522 | |||||||||||||||||||||
Interest expenseWestlake |
(3,591 | ) | (950 | ) | (8,032 | ) | (8,937 | ) | (8,947 | ) | (1,583 | ) | (2,531 | ) | ||||||||||||||
Other income (expense), net |
1,252 | 4,045 | 7,701 | 4,186 | 2,804 | (12 | ) | (168 | ) | |||||||||||||||||||
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Income before income taxes |
222,197 | 186,934 | 846,825 | 606,798 | 378,643 | 71,745 | 296,823 | |||||||||||||||||||||
Provision for income taxes |
78,323 | 66,209 | 300,279 | 210,878 | 131,670 | 331 | 1,316 | |||||||||||||||||||||
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Net income |
$ | 143,874 | $ | 120,725 | $ | 546,546 | $ | 395,920 | $ | 246,973 | $ | 71,414 | $ | 295,507 | ||||||||||||||
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Net income attributable to Westlake Chemical Partners LP |
$ | 7,141 | $ | 29,551 | ||||||||||||||||||||||||
Limited partners interest in net income attributable to Westlake Chemical Partners LP |
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Common units |
$ | $ | ||||||||||||||||||||||||||
Subordinated units |
$ | $ | ||||||||||||||||||||||||||
Net income per limited partner unit (basic and diluted): |
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Common units |
$ | $ | ||||||||||||||||||||||||||
Subordinated units |
$ | $ | ||||||||||||||||||||||||||
Combined Carve-out Balance Sheet Data (end of period): |
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Working capital |
$ | 21,376 | $ | (34,610 | ) | $ | 43,642 | $ | 40,336 | $ | 90,420 | $ | ||||||||||||||||
Total assets |
1,020,402 | 916,271 | 1,041,474 | 834,843 | 800,376 | |||||||||||||||||||||||
Total debt |
302,357 | 83,398 | 252,973 | 253,000 | 253,000 | |||||||||||||||||||||||
Net investment/Partners capital |
407,093 | 467,692 | 455,432 | 273,812 | 216,705 | |||||||||||||||||||||||
Combined Carve-out Cash Flow Data: |
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Cash flow from: |
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Operating activities |
$ | 197,886 | $ | 162,991 | $ | 602,509 | $ | 496,821 | $ | 268,716 | ||||||||||||||||||
Investing activities |
(51,714 | ) | (65,730 | ) | (230,050 | ) | (158,008 | ) | (71,637 | ) | ||||||||||||||||||
Financing activities |
(146,172 | ) | (97,261 | ) | (372,459 | ) | (338,813 | ) | (197,079 | ) | ||||||||||||||||||
Other Data: |
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Depreciation and amortization |
$ | 19,014 | $ | 16,035 | $ | 73,463 | $ | 64,257 | $ | 57,193 | ||||||||||||||||||
Capital expenditures |
51,305 | 65,051 | 223,130 | 158,440 | 73,681 | |||||||||||||||||||||||
EBITDA (1) |
244,802 | 203,919 | 928,320 | 679,992 | 444,783 | $ | 90,902 | $ | 369,609 | |||||||||||||||||||
EBITDA attributable to Westlake Chemical Partners LP |
$ | 9,090 | $ | 36,961 |
(1) | For a definition of EBITDA and a reconciliation of EBITDA to our most directly comparable financial measures calculated and presented in accordance with GAAP, please read Non-GAAP Financial Measure. |
19
We define EBITDA as net income before interest expense, income taxes, depreciation and amortization. EBITDA is not a measure made in accordance with GAAP. EBITDA is used as a supplemental financial measure by management and by external users of our financial statements, such as investors, lenders and rating agencies, to assess:
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our operating performance as compared to that of other publicly traded partnerships, without regard to historical cost basis or capital structure; |
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our ability to incur and service debt and fund capital expenditures; and |
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the viability of acquisitions and other capital expenditure projects and the returns on investment of various investment opportunities. |
We believe that the presentation of EBITDA in this prospectus provides useful information to investors in assessing our financial condition and results of operations. The GAAP measures most directly comparable to EBITDA are net income and cash flow from operating activities. EBITDA should not be considered as an alternative to GAAP net income or cash flow from operating activities. EBITDA has important limitations as an analytical tool because it excludes some but not all items that affect net income and cash flow from operating activities. You should not consider EBITDA in isolation or as a substitute for analysis of our results as reported under GAAP. Additionally, because EBITDA may be defined differently by other companies in our industry, our definition of EBITDA may not be comparable to similarly titled measures of other companies, thereby diminishing its utility.
The following table presents a reconciliation of EBITDA to net income, on a historical basis and pro forma basis, and cash flow from operating activities, on a historical basis.
Westlake Chemical Partners
LP
Predecessor Historical |
Westlake Chemical
Partners LP Pro Forma |
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Three Months Ended
March 31, |
Year Ended December 31, |
Three Months
Ended March 31, |
Year Ended
December 31, |
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2014 | 2013 | 2013 | 2012 | 2011 | 2014 | 2013 | ||||||||||||||||||||||
(unaudited) | (unaudited) |
(unaudited) |
(unaudited) | |||||||||||||||||||||||||
(dollars in thousands) | ||||||||||||||||||||||||||||
Reconciliation of EBITDA and Pro Forma EBITDA to net income and cash flow from operating activities |
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EBITDA attributable to Westlake Chemical Partners LP |
$ | 9,090 | $ | 36,961 | ||||||||||||||||||||||||
Add: EBITDA attributable to noncontrolling interest in OpCo |
81,812 | 332,648 | ||||||||||||||||||||||||||
EBITDA |
$ | 244,802 | $ | 203,919 | $ | 928,320 | $ | 679,992 | $ | 444,783 | 90,902 | 369,609 | ||||||||||||||||
Less: |
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Provision for income taxes |
(78,323 | ) | (66,209 | ) | (300,279 | ) | (210,878 | ) | (131,670 | ) | (331 | ) | (1,316 | ) | ||||||||||||||
Interest expense |
(3,591 | ) | (950 | ) | (8,032 | ) | (8,937 | ) | (8,947 | ) | (1,583 | ) | (2,531 | ) | ||||||||||||||
Depreciation and amortization |
(19,014 | ) | (16,035 | ) | (73,463 | ) | (64,257 | ) | (57,193 | ) | (17,574 | ) | (70,255 | ) | ||||||||||||||
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Net income |
$ | 143,874 | $ | 120,725 | $ | 546,546 | $ | 395,920 | $ | 246,973 | $ | 71,414 | $ | 295,507 | ||||||||||||||
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Changes in operating assets and liabilities, and other |
50,380 | 33,369 | 16,562 | 105,804 | 22,907 | |||||||||||||||||||||||
Equity in loss (income) of joint venture, net of dividends |
72 | (389 | ) | 402 | 277 | (364 | ) | |||||||||||||||||||||
Deferred income taxes |
3,267 | 8,104 | 37,054 | (8,096 | ) | (1,859 | ) | |||||||||||||||||||||
Loss from disposition of fixed assets |
353 | 1,438 | 1,905 | 2,834 | 30 | |||||||||||||||||||||||
(Recovery of) provision for doubtful accounts |
(60 | ) | (256 | ) | 40 | 82 | 1,029 | |||||||||||||||||||||
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Cash flow from operating activities |
$ | 197,886 | $ | 162,991 | $ | 602,509 | $ | 496,821 | $ | 268,716 | ||||||||||||||||||
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20
Limited partner interests are inherently different from the capital stock of a corporation, although many of the business risks to which we are subject are similar to those that would be faced by a corporation engaged in a similar business. You should carefully consider the following risk factors together with all of the other information included in this prospectus in evaluating an investment in our common units.
If any of the following risks were to occur, our business, financial condition, results of operations and adjusted current earnings could be materially adversely affected. In that case, we might not be able to make distributions on our common units, the trading price of our common units could decline and you could lose all or part of your investment.
Risks Inherent in Our Business
We are substantially dependent on Westlake for our cash flows. If Westlake does not pay us under the terms of the Ethylene Sales Agreement or if our assets fail to perform as intended, we may not have sufficient cash from operations following the establishment of cash reserves and payment of costs and expenses, including cost reimbursements to our general partner and its affiliates, to enable us to pay the minimum quarterly distribution to our unitholders.
We may not have sufficient cash each quarter to pay the full amount of our minimum quarterly distribution of $ per unit, or $ per unit per year, which will require total distributions of approximately $ million per quarter, or $ million per year, based on the number of common and subordinated units that will be outstanding after the completion of this offering.
Initially, all of our cash flow will be generated from cash distributions from OpCo, a partnership between us and Westlake, and a substantial majority of OpCos cash flow will be generated from payments by Westlake under the Ethylene Sales Agreement. Westlakes obligations to purchase ethylene under the Ethylene Sales Agreement may be temporarily suspended to the extent OpCo is unable to perform its obligations caused by any of certain events outside the reasonable control of OpCo. Such events include, for example, acts of God or calamities which affect the operation of OpCos facilities; certain labor difficulties (whether or not the demands of the employees are within the power of OpCo to concede); and governmental orders or laws. In addition, Westlake is not obligated to purchase ethylene with respect to any period during which OpCos facilities are not operating due to scheduled or unscheduled maintenance or turnarounds (which occur approximately every five years) other than under certain circumstances relating to the occurrence of force majeure. We expect that each of OpCos facilities will have a turnaround once every five years and will not operate for typically between 25 and 45 days during each turnaround. However, the duration of a turnaround may be longer. For example, the expansion of Petro 1, as described in BusinessOpCos AssetsLake Charles Olefins, is being completed in conjunction with a planned turnaround, which is expected to result in a downtime of between 75 and 80 days due to the expansion which will add 250 million pounds of capacity. A suspension of Westlakes obligations under the Ethylene Sales Agreement, including during periods where OpCos facilities are not operating due to scheduled or unscheduled maintenance or turnarounds, would reduce OpCos revenues and cash flows, and could materially adversely affect our ability to make distributions to our unitholders.
Westlake may be unable to generate enough cash flow from operations to meet its minimum obligations under the Ethylene Sales Agreement if its business is adversely impacted by competition, operational problems, general adverse economic conditions or inability to obtain feedstock. If Westlake were unable to meet its minimum payment obligations to OpCo as a result of any one or more of these factors, our ability to make distributions to our unitholders would be reduced or eliminated. The level of payments made by Westlake will depend upon its ability to pay its minimum obligations under the Ethylene Sales Agreement and its ability and election to increase volumes above the minimums specified in the Ethylene Sales Agreement, which in turn are dependent upon, among other things, the level of production at Westlakes other facilities. If Westlake is unable to generate sufficient cash flow from its operations to meet its obligations under the Ethylene Sales Agreement,
21
OpCo will not have sufficient available cash to distribute to us to enable us to pay the minimum quarterly distribution, which will fluctuate from quarter to quarter based on the following factors, some of which are beyond our control:
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severe financial hardship or bankruptcy of Westlake or one of our other customers, or the occurrence of other events affecting our ability to collect payments from Westlake or our other customers, including any of our customers default; |
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volatility and cyclical downturns in the chemicals industry and other industries which materially and adversely impact Westlake and our other customers; |
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Westlakes inability to perform under the Ethylene Sales Agreement; |
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the age of, and changes in the reliability, efficiency and capacity of the various equipment and operating facilities used in OpCos operations, and in the operations of Westlake and our other customers, business partners and/or suppliers; |
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the cost of environmental remediation at OpCos facilities not covered by Westlake or third parties; |
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changes in the expected operating levels of OpCos assets; |
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OpCos ability to meet minimum volume requirements, yield standards and ethylene quality requirements in the Ethylene Sales Agreement; |
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OpCos ability to renew the Ethylene Sales Agreement or to enter into new, long-term agreements for the sale of ethylene under terms similar or more favorable; |
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changes in the marketplace that may affect supply and demand for ethane or ethylene, including decreased availability of ethane (which may result from greater restrictions on hydraulic fracturing or exports of NGLs from the United States, for example), increased production of ethylene or export of ethane or ethylene from the United States; |
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changes in overall levels of production, production capacity, pricing and/or margins for ethylene; |
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OpCos ability to secure adequate supplies of ethane, other feedstocks and natural gas from Westlake or third parties; |
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the need to use higher priced or less attractive feedstock due to the unavailability of ethane; |
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the effects of pipeline, railroad, barge, truck and other transportation performance and costs, including any transportation disruptions; |
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the availability and cost of labor; |
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risks related to employees and workplace safety; |
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the effects of adverse events relating to the operation of OpCos facilities and to the transportation and storage of hazardous materials (including equipment malfunction, explosions, fires, spills and the effects of severe weather conditions); |
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changes in product specifications for the ethylene that we produce; |
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changes in insurance markets and the level, types and costs of coverage available, and the financial ability of our insurers to meet their obligations; |
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changes in, or new, statutes, regulations or governmental policies by federal, state and local authorities with respect to protection of the environment; |
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changes in accounting rules and/or tax laws or their interpretations, including the method of accounting for leases; |
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nonperformance or force majeure by, or disputes with or changes in contract terms with, Westlake, our other major customers, suppliers, dealers, distributors or other business partners; and |
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changes in, or new, statutes, regulations, governmental policies and taxes, or their interpretations. |
22
In addition, the actual amount of cash we will have available for distribution will depend on other factors, including:
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the amount of cash we or OpCo are able to generate from sales of ethylene, and associated co-products, to third parties, which will be impacted by changes in prices for ethane (or other feedstocks), natural gas, ethylene and co-products, and could be less than the margin we earn from ethylene sales to Westlake; |
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the level of capital expenditures we or OpCo makes; |
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the cost of acquisitions; |
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construction costs; |
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fluctuations in our or OpCos working capital needs; |
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our or OpCos ability to borrow funds and access capital markets; |
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our or OpCos debt service requirements and other liabilities; |
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restrictions contained in our or OpCos existing or future debt agreements; and |
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the amount of cash reserves established by our general partner. |
For a description of additional restrictions and factors that may affect our ability to pay cash distributions, please read Cash Distribution Policy and Restrictions on Distributions.
On a pro forma basis we would not have had sufficient adjusted current earnings to pay the full minimum quarterly distribution on all units for the year ended December 31, 2013 and for the three-month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, with shortfalls of $ million for the year ended December 31, 2013 and $ million, $ million and $ million, for the three-month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, respectively.
The amount of pro forma adjusted current earnings for the year ended December 31, 2013 would have been approximately $ million. This amount would have been sufficient to pay 100% of the minimum quarterly distribution on all common units for that period. However, our pro forma adjusted current earnings for the year ended December 31, 2013 would only allow us to pay aggregate cash distributions of $ , or approximately % of the minimum quarterly distribution, on all of our subordinated units. Specifically, on a pro forma basis, we would have experienced a shortfall of approximately $ million, $ million and $ million for the three-month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, respectively, relative to the aggregate minimum quarterly distribution for each of those quarters. For a calculation of our ability to make distributions to unitholders based on our pro forma results for the year ended December 31, 2013 and the twelve months ended March 31, 2014, please read Cash Distribution Policy and Restrictions on Distributions.
The assumptions underlying our forecast of adjusted current earnings included in Cash Distribution Policy and Restrictions on Distributions are inherently uncertain and subject to significant business, economic, financial, regulatory and competitive risks and uncertainties that could cause our cash available for distribution to differ materially from those estimates.
The forecast of earnings set forth in Cash Distribution Policy and Restrictions on Distributions includes our forecast of OpCos results of operations and our cash available for distribution for the twelve months ending June 30, 2015. Our ability to pay the full minimum quarterly distribution in the forecast period is based on a number of assumptions that may not prove to be correct, which are discussed in Cash Distribution Policy and Restrictions on Distributions.
Our forecast of earnings has been prepared by management, and we have not received an opinion or report on it from any independent registered public accountants. The assumptions underlying our forecast of earnings are inherently uncertain and are subject to significant business, economic, financial, regulatory and competitive
23
risks and uncertainties that could cause cash available for distribution to differ materially from that which is forecasted. If OpCo does not achieve our forecasted results, we may not be able to pay the minimum quarterly distribution or any amount on our common units or subordinated units, in which event the market price of our common units may decline materially. Please read Cash Distribution Policy and Restrictions on Distributions.
OpCo is subject to the credit risk of Westlake on a substantial majority of its revenues, and Westlakes leverage and creditworthiness could adversely affect our ability to make distributions to our unitholders.
Our ability to make distributions to unitholders will be substantially dependent on Westlakes ability to meet its minimum contractual obligations under the Ethylene Sales Agreement. If Westlake defaults on its obligations, our ability to make distributions to our unitholders would be reduced or eliminated. Westlake has not pledged any assets to us as security for the performance of its obligations.
Westlake has not agreed with us to limit its ability to incur indebtedness, pledge or sell assets or make investments, and we have no control over the amount of indebtedness Westlake incurs, the assets it pledges or sells or the investments it makes.
OpCo is a restricted subsidiary and guarantor under Westlakes credit facility and the indentures governing its senior notes. Restrictions in the credit facility and indentures could limit OpCos ability to make distributions to us.
All of our cash will be generated from cash distributions from OpCo. Westlakes credit facility and the indentures governing its senior notes impose significant operating and financial restrictions on OpCo. These restrictions limit OpCos ability to:
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pay distributions to us; |
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make investments and other restricted payments; |
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incur additional indebtedness or issue preferred stock; |
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create liens; |
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sell all or substantially all of its assets or consolidate or merge with or into other companies; and |
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engage in transactions with affiliates. |
These limitations are subject to a number of important qualifications and exceptions. However, the effectiveness of many of these restrictions in the indentures governing Westlakes senior notes is currently suspended under the indentures because the senior notes are currently rated investment grade by at least two nationally recognized credit rating agencies.
The indentures governing Westlakes senior notes will prevent OpCo from making distributions to us if any default or event of default (as defined in the indentures) exists. Westlakes credit facility will not prevent OpCo from making distributions to us so long as Westlake maintains a minimum availability under the credit facility. In order for OpCo to make distributions, Westlakes revolving credit facility provides that (i) Westlake must maintain a minimum borrowing availability of at least the greater of $100.0 million or 25% of the total bank commitments under the revolving credit facility or (ii) Westlake must maintain a minimum borrowing availability of at least the greater of $70.0 million or 17.5% of the total bank commitments under the revolving credit facility and meet a minimum fixed charge coverage ratio of 1.0:1 under the revolving credit facility. At March 31, 2014, Westlake had no borrowings outstanding under the revolving credit facility, outstanding letters of credit totaling $16.9 million and borrowing availability of $383.1 million. If Westlakes borrowing availability were to decrease below the applicable minimums, due to substantial additional borrowings or letters of credit or a reduction in the bank commitments, OpCo would be prevented from making distributions to us.
24
These covenants may adversely affect OpCos ability to finance future business opportunities. A breach of any of these covenants could result in a default in respect of the related debt. If a default occurred, the relevant lenders could elect to declare the debt, together with accrued interest and other fees, to be immediately due and payable and proceed against any collateral securing that debt, including OpCo and its assets. In addition, any acceleration of debt under Westlakes credit facility will constitute a default under some of Westlakes other debt, including the indentures governing its senior notes, each of which OpCo has guaranteed.
Substantially all of OpCos sales are generated at three facilities located at two sites. Any adverse developments at any of these facilities or sites could have a material adverse effect on our results of operations and therefore our ability to distribute cash to unitholders.
OpCos operations are subject to significant hazards and risks inherent in ethylene production operations. These hazards and risks include, but are not limited to, equipment malfunction, explosions, fires and the effects of severe weather conditions, any of which could result in production and transportation difficulties and disruptions, pollution, personal injury or wrongful death claims and other damage to our properties and the property of others. There is also risk of mechanical failure of OpCos facilities both in the normal course of operations and following unforeseen events. Any adverse developments at any of OpCos facility could have a material adverse effect on our results of operations and therefore our ability to distribute cash to unitholders.
Because substantially all of OpCos sales are generated at three facilities located at two sites, any such events at any facility or site could significantly disrupt OpCos ethylene production and its ability to supply ethylene to its customers. Any sustained disruption in its ability to meet its supply obligations under the Ethylene Sales Agreement could have a material adverse effect on our results of operations and therefore our ability to distribute cash to unitholders.
The ethylene sales price charged under the Ethylene Sales Agreement is designed to permit OpCo to cover the substantial majority of its operating costs, but not our public partnership costs, which will reduce our net operating profit.
The purchase price under the Ethylene Sales Agreement will be based on OpCos actual ethane, other feedstock and natural gas costs and an annual estimate of other operating costs and maintenance capital expenditures and other turnaround expenditures. The price is designed to permit OpCo to recover the portion of its costs of feedstocks and other costs to operate the ethylene production facilities associated with the percentage of its production capacity purchased by Westlake and generate a fixed margin per pound of ethylene purchased. The ethylene sales price will not increase to cover our public partnership costs, which will reduce our net operating profit.
The fee structure of the Ethylene Sales Agreement will limit OpCos ability to take advantage of favorable market developments.
The Ethylene Sales Agreement sets a $0.10 per pound margin for a substantial majority of OpCos ethylene production, limiting OpCos ability to take advantage of decreased ethane and other feedstock prices, increased ethylene prices or other favorable market developments. Under these circumstances, OpCo may not be in a position to enable its partners, including us, to benefit from favorable market developments through increased distributions. In addition, under these circumstances, OpCo may be disadvantaged relative to those of its competitors that are in a better position to take advantage of favorable market developments.
If OpCo is unable to renew or extend the Ethylene Sales Agreement beyond the initial 12-year term or the other agreements with Westlake upon expiration of these agreements, our ability to make distributions in the future could be materially adversely affected and the value of our units could decline.
Westlakes obligations under the Ethylene Sales Agreement, the Feedstock Supply Agreement and the related services and secondment agreement will become terminable by either party commencing December 31,
25
2026. If OpCo were unable to reach agreement with Westlake on an extension or replacement of these agreements then our ability to make distributions on our common units could be materially adversely affected and the value of our common units could decline.
OpCo has the right to use the real property underlying Lake Charles Olefins and Calvert City Olefins pursuant to two, 50-year site lease agreements with Westlake. If OpCo is not able to renew the site lease agreements or if the site lease agreements are terminated by Westlake, OpCo may have to relocate Lake Charles Olefins and Calvert City Olefins, abandon the assets or sell the assets to Westlake.
OpCo will enter into two site lease agreements with Westlake pursuant to which Westlake has agreed to (i) lease to OpCo the real property underlying Lake Charles Olefins and Calvert City Olefins, respectively, and (ii) grant OpCo rights to access and use certain other portions of Westlakes ethylene production facilities that are necessary to operate OpCos units at such ethylene production facilities. The site lease agreements each have a term of 50 years and may be renewed if agreed to by the parties. If an event of default with respect to bankruptcy of OpCo occurs, if Westlake terminates the Ethylene Sales Agreement in accordance with its provisions either for cause or due to a force majeure event, or if OpCo ceases to operate Lake Charles Olefins or Calvert City Olefins for six consecutive months (other than due to force majeure or construction following a casualty loss), Westlake may terminate the applicable site lease following notice and expiration of a cure period to remedy the default. In addition, if OpCo fails to act in good faith to expeditiously restore Lake Charles Olefins or Calvert City Olefins following a casualty loss, Westlake has the ability to terminate the applicable site lease agreement, to restore Lake Charles Olefins or Calvert City Olefins, as the case may be, and to purchase such ethylene production facility at fair market value. If OpCo is unable to renew the site lease agreements or if Westlake terminates one or both of the site lease agreements, OpCo may have to relocate Lake Charles Olefins and Calvert City Olefins, abandon the assets or sell the assets to Westlake, the result of which may have a material adverse effect on our business, results of operations and financial condition.
OpCo depends upon Westlake for numerous services and for its labor force.
In connection with this offering, OpCo will enter into a services and secondment agreement with Westlake pursuant to which Westlake will be obligated to provide OpCo operating services, utility access services and other key site services. Westlake will provide the services of certain of its employees, who will act as OpCos agents in operating and maintaining OpCos ethylene production facilities. If this agreement is terminated or if Westlake or its affiliates fail to satisfactorily provide these services or employees, OpCo would be required to hire labor, provide these services internally or find a third-party provider of these services. Any services or labor OpCo chooses to provide internally may not be as cost effective as those that Westlake or its affiliates provide, particularly in light of OpCos lack of experience as an independent organization. If OpCo is required to obtain these services or labor from a third party, it may be unable to do so in a timely, efficient and cost-effective manner, the services or labor it receives may be inferior to or more costly than those that Westlake is currently providing, or such services and labor may be unavailable. Moreover, given the integration of OpCos ethylene production facilities and Westlakes Lake Charles and Calvert City complexes, it may not be practical for us or for a third party to provide site services or labor for OpCos ethylene production facilities separately.
OpCos ability to receive greater cash flows from increased production may be limited by the Ethylene Sales Agreement.
OpCos ability to increase throughput volumes through its assets is constrained by the capacity limitations of those assets, which are currently operating at close to full capacity. OpCos ability to increase its cash flow by selling ethylene to third parties may be limited by the Ethylene Sales Agreement. OpCos ability to sell ethylene to third parties is limited to available excess capacity, since Westlake has the right to purchase the substantial majority of production from OpCos facilities through its minimum purchase commitment and option to purchase additional ethylene under the Ethylene Sales Agreement. The Ethylene Sales Agreement provisions may prohibit OpCo from competing effectively for third party business for this excess production given the limited volumes
26
available for sale. For example, so long as Westlake is not in default under the Ethylene Sales Agreement, Westlake has the right to purchase 95% of OpCos production in excess of planned capacity.
The amount of cash we have available for distribution to holders of our units depends primarily on our cash flow and not solely on profitability, which may prevent us from making cash distributions during periods when we record net income.
The amount of cash we have available for distribution depends primarily upon our cash flow, including cash flow from reserves and working capital or other borrowings, and not solely on profitability, which will be affected by non-cash items. As a result, we may pay cash distributions during periods when we record net losses for financial accounting purposes and may be unable to pay cash distributions during periods when we record net income.
If we are unable to make acquisitions from Westlake or third parties on economically acceptable terms, our future growth would be limited, and any acquisitions we make may reduce, rather than increase, our cash generated from operations on a per unit basis.
Our strategy to grow our business and increase distributions to unitholders is dependent on our ability to make acquisitions that result in an increase in our cash distributions per unit. If we are unable to make acquisitions of additional interests in OpCo from Westlake on acceptable terms or we are unable to obtain financing for these acquisitions, our future growth and ability to increase distributions will be limited. In addition, we may be unable to make acquisitions from third parties as an alternative avenue to growth. Furthermore, even if we do consummate acquisitions that we believe will be accretive, they may in fact result in a decrease in our cash distributions per unit. Any acquisition involves potential risks, some of which are beyond our control, including, among other things:
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mistaken assumptions about revenues and costs, including synergies; |
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the inability to successfully integrate the businesses we acquire; |
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the inability to hire, train or retain qualified personnel to manage and operate our business and newly acquired assets; |
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the assumption of unknown liabilities; |
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limitations on rights to indemnity from the seller; |
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mistaken assumptions about the overall costs of equity or debt; |
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the diversion of managements attention from other business concerns; |
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unforeseen difficulties in connection with operating in new product areas or new geographic areas; and |
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customer or key employee losses at the acquired businesses. |
If we consummate any future acquisitions, our capitalization and results of operations may change significantly, and unitholders will not have the opportunity to evaluate the economic, financial and other relevant information that we will consider in determining the application of our funds and other resources.
Many of our assets have been in service for many years and require significant expenditures to maintain them. As a result, our maintenance or repair costs may increase in the future. In addition, while we intend to establish cash reserves in order to cover turnaround expenditures, the amounts we reserve may not be sufficient to fully cover such expenditures.
Many of the assets we use to produce ethylene are generally long-lived assets. As a result, some of those assets have been in service for many decades. The age and condition of these assets could result in increased
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maintenance or repair expenditures. In addition, while we intend to establish cash reserves in order to cover our turnaround expenditures, the amounts we reserve may be insufficient to fully cover such expenditures. Any significant and unexpected increase in these expenditures could adversely affect our results of operations, financial position or cash flows, as well as our ability to pay cash distributions.
Regulations concerning the transportation of hazardous chemicals and the security of chemical manufacturing facilities could result in higher operating costs.
Targets such as chemical manufacturing facilities may be at greater risk of terrorist attacks than other targets in the U.S. As a result, the chemical industry responded to the issues surrounding the terrorist attacks of September 11, 2001 by starting initiatives relating to the security of chemicals industry facilities and the transportation of hazardous chemicals in the U.S. Simultaneously, local, state and federal governments began a regulatory process that led to new regulations impacting the security of chemical plant locations and the transportation of hazardous chemicals. Our business or our customers businesses could be adversely affected because of the cost of complying with these regulations.
Our production facilities process volatile and hazardous materials that subject us to operating risks that could adversely affect our operating results.
Our operations are subject to the usual hazards associated with commodity chemical and plastics manufacturing and the related use, storage, transportation and disposal of feedstocks, products and wastes, including:
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pipeline leaks and ruptures; |
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explosions; |
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fires; |
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severe weather and natural disasters; |
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mechanical failure; |
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unscheduled downtime; |
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labor difficulties; |
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transportation interruptions; |
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chemical spills; |
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discharges or releases of toxic or hazardous substances or gases; |
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storage tank leaks; |
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other environmental risks; and |
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terrorist attacks. |
Global climate change could result in heightened hurricane activity in the Gulf of Mexico. If this materializes, severe weather and natural disaster hazards could pose an even greater risk for our facilities, particularly those in Louisiana.
All these hazards can cause personal injury and loss of life, catastrophic damage to or destruction of property and equipment and environmental damage, and may result in a suspension of operations and the imposition of civil or criminal penalties. We could become subject to environmental claims brought by governmental entities or third parties. A loss or shutdown of operations over an extended period at any one of our three major operating facilities would have a material adverse effect on us. We maintain property, business
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interruption and casualty insurance that we believe is in accordance with customary industry practices, but we cannot be fully insured against all potential hazards incident to our business, including losses resulting from war risks or terrorist acts. As a result of market conditions, premiums and deductibles for certain insurance policies can increase substantially and, in some instances, certain insurance may become unavailable or available only for reduced amounts of coverage. If we were to incur a significant liability for which we were not fully insured, it could have a material adverse effect on our financial position.
Our operations and assets are subject to extensive environmental, health and safety laws and regulations.
We will use hazardous substances and generate hazardous wastes and emissions in our manufacturing operations. Our industry is highly regulated and monitored by various environmental regulatory authorities. As such, we are subject to extensive federal, state and local laws and regulations pertaining to pollution and protection of the environment, health and safety, which govern, among other things, emissions to the air, discharges onto land or waters, the maintenance of safe conditions in the workplace, the remediation of contaminated sites, and the generation, handling, storage, transportation, treatment and disposal of waste materials. Some of these laws and regulations are subject to varying and conflicting interpretations. Many of these laws and regulations provide for substantial fines and potential criminal sanctions for violations and require the installation of costly pollution control equipment or operational changes to limit pollution emissions and/or reduce the likelihood or impact of hazardous substance releases, whether permitted or not. For example, our petrochemical facilities may require improvements to comply with certain changes in process safety management requirements.
Our operations produce greenhouse gas (GHG) emissions, which have been the subject of increased scrutiny both among members of the international community and in the U.S. Some scientific studies have suggested that GHG emissions may be contributing to warming of the earths atmosphere and other climatic changes. In 2005, the Kyoto Protocol to the 1992 United Nations Framework Convention on Climate Change, which establishes a binding set of emission targets for GHG emissions, became binding on the countries that had ratified it. International discussions are underway to develop a treaty to replace the Kyoto Protocol after its expiration in 2020. Legislation to regulate GHG emissions has also been introduced in the U.S. Congress, and there has been a wide-ranging policy debate regarding the impact of these gases and possible means for their regulation. Some of the proposals would require industries to meet stringent new standards that would require substantial reductions in carbon emissions. Those reductions could be costly and difficult to implement. The United States Environmental Protection Agency (the EPA) has adopted rules requiring the reporting of GHG emissions from specified large GHG emission sources on an annual basis, beginning in 2011 for emissions occurring after January 1, 2010, as well as from certain oil and natural gas production facilities, on an annual basis, beginning in 2012 for emissions occurring in 2011. Further, following a finding by the EPA that certain GHGs represent an endangerment to human health, the EPA finalized a rule to address permitting of GHG emissions from stationary sources under the Clean Air Acts New Source Review Prevention of Significant Deterioration (PSD) and Title V programs. This final rule tailors the PSD and Title V programs to apply to certain stationary sources of GHG emissions in a multi-step process, with the largest sources first subject to permitting. Facilities required to obtain PSD permits for their GHG emissions also will be required to reduce those emissions according to best available control technology standards for GHGs that will be established by the states or, in some instances, by the EPA on a case-by-case basis.
Several states or geographic regions in the U.S. have also adopted legislation and regulations to reduce emissions of GHGs. Additional legislation or regulation by these states and regions, the EPA, and/or any international agreements to which the U.S. may become a party, that control or limit GHG emissions or otherwise seek to address climate change could adversely affect our energy supply and costs, the costs of raw materials derived from fossil fuels, our general costs of production and the demand for our products. The cost of complying with any new law, regulation or treaty will depend on the details of the particular program.
We also may face liability for alleged personal injury or property damage due to exposure to chemicals or other hazardous substances at our facilities or to chemicals that we otherwise manufacture, handle or own.
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Although these types of claims have not historically had a material impact on our operations, a significant increase in the success of these types of claims could have a material adverse effect on our business, financial condition, operating results or cash flow.
Environmental laws may have a significant effect on the nature and scope of, and responsibility for, cleanup of contamination at our current and former operating facilities, the costs of transportation and storage of raw materials and finished products, the costs of reducing emissions and the costs of the storage and disposal of wastewater. The U.S. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and similar state laws impose joint and several liability for the costs of remedial investigations and actions on the entities that generated waste, arranged for disposal of the wastes, transported to or selected the disposal sites and the past and present owners and operators of such sites. All such potentially responsible parties (or any one of them, including us) may be required to bear all of such costs regardless of fault, legality of the original disposal or ownership of the disposal site. In addition, CERCLA and similar state laws could impose liability for damages to natural resources caused by contamination.
Although we seek to take preventive action, our operations are inherently subject to accidental spills, discharges or other releases of hazardous substances that may make us liable to governmental entities or private parties. This may involve contamination associated with our current and former facilities, facilities to which we sent wastes or by-products for treatment or disposal and other contamination. Accidental discharges may occur in the future, future action may be taken in connection with past discharges, governmental agencies may assess damages or penalties against us in connection with any past or future contamination, or third parties may assert claims against us for damages allegedly arising out of any past or future contamination. In addition, we may be liable for existing contamination related to certain of our facilities for which, in some cases, we believe third parties are liable in the event such third parties fail to perform their obligations.
A terrorist attack or armed conflict could harm our business.
Terrorist activities, anti-terrorist efforts and other armed conflicts involving the U.S. could adversely affect the U.S. and global economies and could prevent us from meeting financial and other obligations. We could experience loss of business, delays or defaults in payments from customers or disruptions of fuel supplies and markets if domestic and global utilities are direct targets or indirect casualties of an act of terror or war. Terrorist activities and the threat of potential terrorist activities and any resulting economic downturn could adversely affect our results of operations, impair our ability to raise capital or otherwise adversely impact our ability to realize certain business strategies.
Risks Inherent in an Investment in Us
Westlake owns and controls our general partner, which has sole responsibility for conducting our business and managing our operations. Our general partner and its affiliates, including Westlake, have conflicts of interest with us and limited duties, and they may favor their own interests to our detriment and that of our unitholders.
Following the offering, Westlake will own and control our general partner and will appoint all of the directors of our general partner. Although our general partner has a duty to manage us in a manner that it believes is not adverse to our interest, the executive officers and directors of our general partner have a fiduciary duty to manage our general partner in a manner beneficial to Westlake. Therefore, conflicts of interest may arise between Westlake or any of its affiliates, including our general partner, on the one hand, and us or any of our unitholders, on the other hand. In resolving these conflicts of interest, our general partner may favor its own interests and the interests of its affiliates over the interests of our common unitholders. These conflicts include the following situations, among others:
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our general partner is allowed to take into account the interests of parties other than us, such as Westlake, in exercising certain rights under our partnership agreement; |
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neither our partnership agreement nor any other agreement requires Westlake to pursue a business strategy that favors us; |
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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, limits our general partners liabilities and restricts the remedies available to our unitholders for actions that, without such limitations, might constitute breaches of fiduciary duty; |
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except in limited circumstances, our general partner has the power and authority to conduct our business without unitholder approval; |
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our general partner determines the amount and timing of asset purchases and sales, borrowings, issuances of additional partnership securities and the level of reserves, each of which can affect the amount of cash that is distributed to our unitholders; |
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our general partner determines the amount and timing of any cash expenditure and whether an expenditure is classified as a maintenance capital expenditure, which reduces operating surplus, or an expansion capital expenditure, which does not reduce operating surplus. Please read How We Make Distributions to Our PartnersCapital Expenditures for a discussion on when a capital expenditure constitutes a maintenance capital expenditure or an expansion capital expenditure. This determination can affect the amount of cash from operating surplus that is distributed to our unitholders which, in turn, may affect the ability of the subordinated units to convert. Please read How We Make Distributions to Our PartnersSubordination Period; |
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our general partner may cause us to borrow funds in order to permit the payment of cash distributions, even if the purpose or effect of the borrowing is to make a distribution on the subordinated units, to make incentive distributions or to accelerate the expiration of the subordination period; |
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our partnership agreement permits us to distribute up to $ million as operating surplus, even if it is generated from asset sales, non-working capital borrowings or other sources that would otherwise constitute capital surplus. This cash may be used to fund distributions on our subordinated units or the incentive distribution rights; |
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our general partner determines which costs incurred by it and its affiliates are reimbursable by us; |
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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 its affiliates on our behalf; |
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our general partner intends to limit its liability regarding our contractual and other obligations; |
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our general partner may exercise its right to call and purchase common units if it and its affiliates own more than 80% of the common units; |
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our general partner controls the enforcement of obligations that it and its affiliates owe to us; |
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our general partner decides whether to retain separate counsel, accountants or others to perform services for us; and |
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our general partner may elect to cause us to issue common units to it in connection with a resetting of the target distribution levels related to Westlakes incentive distribution rights without the approval of the conflicts committee of the board of directors of our general partner or the unitholders. This election may result in lower distributions to the common unitholders in certain situations. |
In addition, we may compete directly with Westlake and entities in which it has an interest for acquisition opportunities and potentially will compete with these entities for new business or extensions of the existing services provided by us. Please read Westlake and other affiliates of our general partner may compete with us and Conflicts of Interest and Fiduciary Duties.
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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 intend to distribute quarterly at least $ per unit on all of our units to the extent we have sufficient cash after the establishment of cash reserves and the payment of our expenses, including payments to our general partner and its affiliates. However, the board may change such policy at any time at its discretion and could elect not to pay distributions for one or more quarters. Please read Cash Distribution Policy and Restrictions on Distributions.
In addition, 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 an investment decision. Any modification or revocation of our cash distribution policy could substantially reduce or eliminate the amount we distribute 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 duties to our unitholders, which may permit it to favor its own interests or the interests of Westlake to the detriment of our common unitholders.
Our general partner intends to limit its liability regarding our obligations.
Our general partner intends to limit its liability under contractual arrangements between us and third parties so that the counterparties to such arrangements have recourse only against our assets, and not against our general partner or its assets. Our general partner may therefore cause us to incur indebtedness or other obligations that are nonrecourse to our general partner. Our partnership agreement provides that any action taken by our general partner to limit its liability is not a breach of our general partners duties, even if we could have obtained more favorable terms without the limitation on liability.
We expect to distribute a significant portion of our available cash to our partners, which could limit our ability to grow and make acquisitions.
We plan to distribute most of our available cash, which may cause our growth to proceed at a slower pace than that of businesses that reinvest their 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 may increase the risk that we will be unable to maintain or increase our per unit distribution level. 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, may impact the cash that we have available to distribute to our unitholders.
Our partnership agreement replaces our general partners fiduciary duties to holders of our units.
Our partnership agreement contains provisions that eliminate and replace the fiduciary 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, or otherwise free of fiduciary duties to us and our unitholders. 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, our affiliates or our limited partners. Examples of decisions that our general partner may make in its individual capacity include:
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how to allocate business opportunities among us and its affiliates; |
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whether to exercise its call right; |
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how to exercise its voting rights with respect to the units it owns; |
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whether to exercise its registration rights; |
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whether to elect to reset target distribution levels; and |
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whether or not to consent to any merger or consolidation of the partnership or amendment to the partnership agreement. |
By purchasing a common unit, a unitholder is treated as having consented to the provisions in the partnership agreement, including the provisions discussed above. Please read Conflicts of Interest and Fiduciary DutiesFiduciary Duties.
Our partnership agreement restricts the remedies available to holders of our 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:
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whenever our general partner makes a determination or takes, or declines to take, any other action in its capacity as our general partner, our general partner is generally required to make such determination, or take or decline to take such other action, in good faith, and will not be subject to any higher standard imposed by our partnership agreement, Delaware law, or any other law, rule or regulation, or at equity; |
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our general partner and its officers and directors will not be liable for monetary damages or otherwise 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 such losses or liabilities were the result of conduct in which our general partner or its officers or directors engaged in bad faith, meaning that they believed that the decision was adverse to the interest of the partnership or, with respect to any criminal conduct, with knowledge that such conduct was unlawful; and |
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our general partner will not be in breach of its obligations under the partnership agreement or its duties to us or our limited partners if a transaction with an affiliate or the resolution of a conflict of interest is: |
(1) | approved by the conflicts committee of the board of directors of our general partner, although our general partner is not obligated to seek such approval; or |
(2) | approved by the vote of a majority of the outstanding common units, excluding any common units owned by our general partner and its affiliates. |
In connection with a situation involving a transaction with an affiliate or a conflict of interest, other than one where our general partner is permitted to act in its sole discretion, any determination by our general partner must be made in good faith. If an affiliate transaction or the resolution of a conflict of interest is not approved by our common unitholders or the conflicts committee then it will be presumed that, in making its decision, taking any action or failing to act, the board of directors acted in good faith, and 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 Fiduciary Duties.
Our partnership agreement provides that the conflicts committee of the board of directors of our general partner may be comprised of one or more independent directors. If the board of directors of our general partner establishes a conflicts committee with only one independent director, your interests may not be as well served as if we the conflicts committee was comprised of at least two independent directors. A single-member conflicts committee would not have the benefit of discussion with, and input from, other independent directors.
Westlake and other affiliates of our general partner may compete with us.
Affiliates of our general partner, including Westlake, are not prohibited from engaging in other businesses or activities, including those that might be in direct competition with us. In addition, Westlake may compete with us for investment opportunities and may own an interest in entities that compete with us.
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Pursuant to 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 and directors and Westlake. 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 Conflicts of Interest and Fiduciary Duties.
The holder or holders of our incentive distribution rights may elect to cause us to issue common units to it in connection with a resetting of the target distribution levels related to the incentive distribution rights, without the approval of the conflicts committee of our general partners board of directors or the holders of our common units. This could result in lower distributions to holders of our common units.
The holder or holders of a majority of our incentive distribution rights (initially Westlake) have the right, at any time when there are no subordinated units outstanding and we have made cash distributions in excess of the then-applicable third target distribution for each of the prior four consecutive fiscal quarters, to reset the initial target distribution levels at higher levels based on our cash distribution levels at the time of the exercise of the reset election. Following a reset election by such holder or holders, the minimum quarterly distribution will be calculated equal to an amount equal to the prior cash distribution per common unit for the fiscal quarter immediately preceding the reset election (such amount is referred to as the reset minimum quarterly distribution) and the target distribution levels will be reset to correspondingly higher levels based on percentage increases above the reset minimum quarterly distribution. If such holder or holders elects to reset the target distribution levels, they will be entitled to receive common units as consideration for such election. The number of common units to be issued to such holder or holders will equal the number of common units that would have entitled the holder to an aggregate quarterly cash distribution for the quarter prior to the reset election equal to the distribution on the incentive distribution rights for the quarter prior to the reset election.
Westlake could exercise this reset right in order to facilitate acquisitions or internal growth projects that would not be sufficiently accretive to cash distributions per unit without such conversion. However, Westlake may transfer the incentive distribution rights at any time. It is possible that Westlake or a transferee could exercise this reset election at a time when we are experiencing declines in our aggregate cash distributions or at a time when the holders of the incentive distribution rights expect that we will experience declines in our aggregate cash distributions in the foreseeable future. In such situations, the holders of the incentive distribution rights may be experiencing, or may expect to experience, declines in the cash distributions it receives related to the incentive distribution rights and may therefore desire to be issued our common units rather than retain the right to receive incentive distributions based on the initial target distribution levels. As a result, a reset election may cause our common unitholders to experience reduction in the amount of cash distributions that they would have otherwise received had we not issued new common units to the holders of the incentive distribution rights in connection with resetting the target distribution levels. Please read How We Make Distributions To Our PartnersIDR Holders Right to Reset Incentive Distribution Levels.
Holders of our common units have limited voting rights and are not entitled to elect our general partner or its directors, which could reduce the price at which our common units will trade.
Compared to the holders of common stock in a corporation, unitholders have limited voting rights and, therefore, limited ability to influence managements decisions regarding our business. Unitholders will have no right on an annual or ongoing basis to elect our general partner or its board of directors. The board of directors of our general partner, including the independent directors, is chosen entirely by Westlake, as a result of it owning our general partner, and not by our unitholders. Please read ManagementManagement of Westlake Chemical
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Partners LP and Certain Relationships and Related Transactions. Unlike publicly traded corporations, we will not conduct annual meetings of our unitholders to elect directors or conduct other matters routinely conducted at annual meetings of stockholders of corporations. As a result of these limitations, the price at which the common units will trade could be diminished because of the absence or reduction of a takeover premium in the trading price.
Even if holders of our common units are dissatisfied, they cannot initially remove our general partner without its consent.
If our unitholders are dissatisfied with the performance of our general partner, they will have limited ability to remove our general partner. Unitholders initially will be unable to remove our general partner without its consent because our general partner and its affiliates will own sufficient units upon the completion of this offering to be able to prevent its removal. The vote, including Westlake, of the holders of at least 66 2 / 3 % of all outstanding common and subordinated units voting together as a single class is required to remove our general partner. Following the closing of this offering, Westlake will own an aggregate of % of our common and subordinated units (or % of our common and subordinated units, if the underwriters exercise their option to purchase additional common units in full). In addition, any vote to remove our general partner during the subordination period must provide for the election of a successor general partner by the holders of a majority of the common units and a majority of the subordinated units, voting as separate classes. Both of these conditions will provide Westlake the ability to prevent the removal of our general partner.
Unitholders will experience immediate and substantial dilution of $ per common unit.
The assumed initial public offering price of $ per common unit (the mid-point of the price range set forth on the cover page of this prospectus) exceeds our pro forma net tangible book value of $ per common unit. Based on the assumed initial public offering price of $ per common unit, unitholders will incur immediate and substantial dilution of $ per common unit. This dilution results primarily because the assets contributed to us by affiliates of our general partner are recorded at their historical cost in accordance with GAAP, and not their fair value. Please read Dilution.
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 without the consent of our unitholders. Furthermore, our partnership agreement permits Westlake to transfer ownership of our general partner to a third party, also without the consent of our unitholders. The new owner of our general partner would then be in a position to replace the board of directors and executive officers of our general partner with its own designees and thereby exert significant control over the decisions taken by the board of directors and executive officers of our general partner. This effectively permits a change of control without the vote or consent of the unitholders.
The incentive distribution rights may be transferred to a third party without unitholder consent.
Westlake may transfer the incentive distribution rights to a third party at any time without the consent of our unitholders. If Westlake transfers the incentive distribution rights to a third party, it would not have the same incentive to grow our partnership and increase quarterly distributions to unitholders over time. For example, a transfer of incentive distribution rights by Westlake could reduce the likelihood of it accepting offers made by us relating to assets owned by Westlake, as it would have less of an economic incentive to grow our business, which in turn would impact our ability to grow our asset base.
Our general partner has a call right that may require unitholders to sell their common units at an undesirable time or price.
If at any time our general partner and its affiliates own more than 80% 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
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all, but not less than all, of the common units held by unaffiliated persons at a price equal to the greater of (i) the average of the daily closing price of the common units over the 20 trading days preceding the date three days before notice of exercise of the call right is first mailed and (ii) the highest per-unit price paid by our general partner or any of its affiliates for common units during the 90-day period preceding the date such notice is first mailed. As a result, unitholders may be required to sell their common units at an undesirable time or price and may not receive any return or a negative return on their investment. Unitholders may also incur a tax liability upon a sale of their 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 right. There is no restriction in our partnership agreement that prevents our general partner from causing us to issue additional common units and then exercising its call right. If our general partner exercised its limited call right, the effect would be to take us private and, if the units were subsequently deregistered, we would no longer be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act. Upon consummation of this offering, and assuming no exercise of the underwriters option to purchase additional common units, Westlake will own an aggregate of % of our common and subordinated units. At the end of the subordination period, assuming no additional issuances of units (other than upon the conversion of the subordinated units), Westlake will own % of our common units. For additional information about the limited call right, please read The Partnership AgreementLimited Call Right.
We may issue additional units without unitholder approval, which would dilute existing unitholder ownership interests.
Our partnership agreement does not limit the number of additional limited partner interests we may issue at any time without the approval of our unitholders. The issuance of additional common units or other equity interests of equal or senior rank will have the following effects:
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our existing unitholders proportionate ownership interest in us will decrease; |
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the amount of earnings per each unit may decrease; |
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because a lower percentage of total outstanding units will be subordinated units, the risk that a shortfall in the payment of the minimum quarterly distribution will be borne by our common unitholders will increase; |
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the ratio of taxable income to distributions may increase; |
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the relative voting strength of each previously outstanding unit may be diminished; and |
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the market price of the common units may decline. |
The market price of our common units could be adversely affected by sales of substantial amounts of our common units in the public or private markets, including sales by Westlake or other large holders.
After this offering, we will have common units and subordinated units outstanding, which includes the common units we are selling in this offering that may be resold in the public market immediately. All of the subordinated units will convert into common units on a one-for-one basis at the end of the subordination period. All of common units that are issued to Westlake will be subject to resale restrictions under a 180-day lock-up agreement with the underwriters, which may be waived in the discretion of certain of the underwriters. Sales by Westlake or other large holders of a substantial number of our common units in the public markets following this offering, or the perception that such sales might occur, could have a material adverse effect on the price of our common units or could impair our ability to obtain capital through an offering of equity securities. In addition, we have agreed to provide registration rights to Westlake. Under our partnership agreement, our general partner and its affiliates have registration rights relating to the offer and sale of any units that they hold. Please read Units Eligible for Future Sale.
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Our partnership agreement restricts the voting rights of unitholders owning 20% or more of our common units.
Our partnership agreement restricts unitholders voting rights by providing that any units held by a person or group that owns 20% or more of any class of units then outstanding, other than our general partner and 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.
Cost reimbursements due to our general partner and Westlake for services provided to us or on our behalf will reduce our earnings and therefore our cash available for distribution to our unitholders. The amount and timing of such reimbursements will be determined by our general partner.
We are obligated under our partnership agreement to reimburse our general partner and its affiliates for all expenses they incur and payments they make on our behalf, including expenses we and OpCo will incur under the services and secondment agreement and the omnibus agreement. Our partnership agreement does not set a limit on the amount of expenses for which our general partner and its affiliates may be reimbursed. These expenses include all expenses incurred under the services and secondment agreement and the omnibus agreement, including 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 partnership agreement provides that our general partner will determine the expenses that are allocable to us. The reimbursement of expenses and payment of fees, if any, to our general partner and its affiliates will reduce the amount of our earnings and therefore our ability to distribute cash to our unitholders. Please read Cash Distribution Policy and Restrictions on Distributions.
There is no existing market for our common units, and a trading market that will provide you with adequate liquidity may not develop. The price of our common units may fluctuate significantly, and unitholders could lose all or part of their investment.
Prior to this offering, there has been no public market for the common units. After this offering, there will be only publicly traded common units. We do not know the extent to which investor interest will lead to the development of a trading market or how liquid that market might be. Unitholders may not be able to resell their common units at or above the initial public offering price. Additionally, the lack of liquidity may result in wide bid-ask spreads, contribute to significant fluctuations in the market price of the common units and limit the number of investors who are able to buy the common units.
The initial public offering price for our common units will be determined by negotiations between us and the representatives of the underwriters and may not be indicative of the market price of the common units that will prevail in the trading market. The market price of our common units may decline below the initial public offering price. The market price of our common units may also be influenced by many factors, some of which are beyond our control, including:
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our quarterly distributions; |
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our quarterly or annual earnings or those of other companies in our industry; |
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announcements by us or our competitors of significant contracts or acquisitions; |
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changes in accounting standards, policies, guidance, interpretations or principles; |
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general economic conditions; |
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the failure of securities analysts to cover our common units after this offering or changes in financial estimates by analysts; |
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future sales of our common units; and |
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the other factors described in these Risk Factors. |
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Unitholders may have liability to repay distributions.
Under certain circumstances, unitholders may have to repay amounts wrongfully returned or distributed to them. Under Section 17-607 of the Delaware Revised Uniform Limited Partnership Act, or the Delaware Act, we may not make a distribution to our unitholders if the distribution would cause our liabilities to exceed the fair value of our assets. Delaware law provides that for a period of three years from the date of the impermissible distribution, limited partners who received the distribution and who knew at the time of the distribution that it violated Delaware law will be liable to the limited partnership for the distribution amount. Liabilities to partners on account of their partnership interests and liabilities that are non-recourse to the partnership are not counted for purposes of determining whether a distribution is permitted.
If we fail to establish and maintain effective internal controls over financial reporting, our ability to accurately report our financial results could be materially adversely affected.
We are not currently required to comply with the SECs rules implementing Section 404 of the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley), and are therefore not required to make a formal assessment of the effectiveness of our internal controls over financial reporting for that purpose. Upon becoming a publicly traded partnership, we will be required to comply with the SECs rules implementing Sections 302 and 404 of Sarbanes-Oxley, which will require our management to certify financial and other information in our quarterly and annual reports and provide an annual management report on the effectiveness of our internal controls over financial reporting. Though we will be required to disclose material changes made to our internal controls and procedures on a quarterly basis, we will not be required to make our first annual assessment of our internal controls over financial reporting pursuant to Section 404 until the year following our first annual report required to be filed with the SEC. To comply with the requirements of being a publicly traded partnership, we will need to implement additional internal controls, reporting systems and procedures and hire additional accounting, finance and legal staff.
If we fail to develop or maintain an effective system of internal controls, we may not be able to accurately report our financial results or prevent fraud. As a result, current and potential unitholders could lose confidence in our financial reporting, which would harm our business and the trading price of our units.
Effective internal controls are necessary for us to provide reliable financial reports, prevent fraud and operate successfully as a public company. If we cannot provide reliable financial reports or prevent fraud, our reputation and operating results would be harmed. We cannot be certain that our efforts to develop and maintain our internal controls will be successful, that we will be able to maintain adequate controls over our financial processes and reporting in the future or that we will be able to comply with our obligations under Section 404 of Sarbanes-Oxley. Any failure to develop or maintain effective internal controls, or difficulties encountered in implementing or improving our internal controls, could harm our operating results or cause us to fail to meet our reporting obligations. Ineffective internal controls could also cause investors to lose confidence in our reported financial information, which would likely have a negative effect on the trading price of our units.
The New York Stock Exchange does not require a publicly traded partnership like us to comply with certain of its corporate governance requirements.
We have applied to list our common units on the NYSE. Because we will be a publicly traded partnership, the NYSE does not require us to have a majority of independent directors on our general partners board of directors or to establish a compensation committee or a nominating and corporate governance committee. Accordingly, unitholders will not have the same protections afforded to certain corporations that are subject to all of the NYSE corporate governance requirements. Please read ManagementManagement of Westlake Chemical Partners LP.
We will incur increased costs as a result of being a publicly traded partnership.
We have no history operating as a publicly traded partnership. As a publicly traded partnership, we will incur significant legal, accounting and other expenses that we did not incur prior to this offering. In addition,
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Sarbanes-Oxley and rules implemented by the SEC and the NYSE require publicly traded entities to adopt various corporate governance practices that will further increase our costs. The amount of our expenses or reserves for expenses, including the costs of being a publicly traded partnership will reduce the amount of cash we have for distribution to our unitholders. As a result, the amount of cash we have available for distribution to our unitholders will be affected by the costs associated with being a public company.
Prior to this offering, we have not filed reports with the SEC. Following this offering, we will become subject to the public reporting requirements of the Exchange Act. We expect these rules and regulations to increase certain of our legal and financial compliance costs and to make activities more time-consuming and costly. For example, as a result of becoming a publicly traded company, we are required to have at least three independent directors, create an audit committee and adopt policies regarding internal controls and disclosure controls and procedures, including the preparation of reports on internal controls over financial reporting. In addition, we will incur additional costs associated with our SEC reporting requirements.
We also expect to incur significant expense in order to obtain director and officer liability insurance. Because of the limitations in coverage for directors, it may be more difficult for us to attract and retain qualified persons to serve on the board of directors of our general partner or as executive officers.
We estimate that we will incur approximately $3.0 million of incremental annual general and administrative expenses as a result of being a publicly traded partnership; however, it is possible that our actual incremental costs of being a publicly traded partnership will be higher than we currently estimate.
Tax Risks to Common Unitholders
In addition to reading the following risk factors, you should read Material U.S. Federal Income Tax Consequences for a more complete discussion of the expected material federal income tax consequences of owning and disposing of common units.
Our tax treatment depends on our status as a partnership for federal income tax purposes, as well as us not being subject to a material amount of entity-level taxation by individual states. If the Internal Revenue Service, or IRS, were to treat us as a corporation for federal income tax purposes, or we become subject to entity-level taxation for state tax purposes, our cash available for distribution to you 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 federal income tax purposes.
Despite the fact that we are organized as a limited partnership under Delaware law, we would be treated as a corporation for U.S. federal income tax purposes unless we satisfy a qualifying income requirement. Based upon our current operations, we believe we satisfy the qualifying income requirement. We have requested and obtained a favorable private letter ruling from the IRS to the effect that the production, transportation, storage and marketing of ethylene and its co-products will constitute qualifying income within the meaning of Section 7704 of the Code. However, no ruling has been or will be requested from the IRS regarding our treatment as a partnership for U.S. federal income tax purposes. Failing to meet the qualifying income requirement or a change in current law could cause us to be treated as a corporation for U.S. federal income tax purposes or otherwise subject us to taxation as an entity.
If we were treated as a corporation for 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%. Distributions to you would generally be taxed again as corporate distributions, and no income, gains, losses or deductions 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, treatment of us as a corporation would result in a material reduction in the anticipated cash flow and after-tax return to the unitholders, likely causing a substantial reduction in the value of our common units.
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Our partnership agreement provides that if a law is enacted or existing law is modified or interpreted in a manner that subjects us to taxation as a corporation or otherwise subjects us to entity-level taxation for U.S. federal, state, local or foreign income tax purposes, the minimum quarterly distribution amount and the target distribution amounts may be adjusted to reflect the impact of that law or interpretation on us. At the state level, several states have been evaluating ways to subject partnerships to entity-level taxation through the imposition of state income, franchise or other forms of taxation. Specifically, we will initially own assets and conduct business in Louisiana, Kentucky and Texas and such states impose a margin or franchise tax. In the future, we may expand our operations. Imposition of a similar tax on us in other jurisdictions that we may expand to could substantially reduce our cash available for distribution to you.
The tax treatment of publicly traded partnerships or an investment in our units could be subject to potential legislative, judicial or administrative changes or differing interpretations, possibly applied 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 changes or differing interpretations 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. One such legislative proposal would have eliminated the qualifying income exception to the treatment of all publicly traded partnerships as corporations upon which we rely for our treatment as a partnership for U.S. federal income tax purposes. We are unable to predict whether any of these changes or other proposals will be reintroduced or will ultimately be enacted. Any such changes could negatively impact the value of an investment in our common units. Any modification to U.S. federal income tax laws may be applied retroactively and could make it more difficult or impossible for us to meet the qualifying income requirement to be treated as a partnership for U.S. federal income tax purposes. For a discussion of the importance of our treatment as a partnership for federal income purposes, please read Material U.S. Federal Income Tax ConsequencesPartnership Status for a further discussion.
If the IRS were to contest the federal income tax positions we take, it may adversely impact the market for our common units, and the costs of any such contest would 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. It may be necessary to resort to administrative or court proceedings to sustain some or all of our counsels conclusions or the positions we take. A court may not agree with some or all of our counsels conclusions or positions we take. Any contest with the IRS may materially and adversely impact the market for our common units and the price at which they trade. Moreover, the costs of any contest between us and the IRS will result in a reduction in our cash available for distribution to our unitholders and thus will be borne indirectly by our unitholders.
Even if you do not receive any cash distributions from us, you will be required to pay taxes on your share of our taxable income.
You will be required to pay federal income taxes and, in some cases, state and local income taxes, on your share of our taxable income, whether or not you receive cash distributions from us. You may not receive cash distributions from us equal to your share of our taxable income or even equal to the actual tax due from you with respect to that income.
Tax gain or loss on disposition of our common units could be more or less than expected.
If you sell your common units, you will recognize a gain or loss equal to the difference between the amount realized and your tax basis in those common units. Because distributions in excess of your allocable share of our net taxable income decrease your tax basis in your common units, the amount, if any, of such prior excess distributions with respect to the units you sell will, in effect, become taxable income to you if you sell such units
40
at a price greater than your tax basis in those units, even if the price you receive is less than your original cost. Furthermore, a substantial portion of the amount realized, 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 unitholders share of our nonrecourse liabilities, if you sell your units, you may incur a tax liability in excess of the amount of cash you receive from the sale. Please read Material U.S. Federal Income Tax ConsequencesDisposition of Common UnitsRecognition of Gain or Loss for a further discussion of the foregoing.
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 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 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 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 your 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 the 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. 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 ConsequencesTax Consequences of Unit OwnershipSection 754 Election for a further discussion of the effect of the depreciation and amortization positions we adopted.
We will prorate our items of income, gain, loss and deduction between transferors and transferees of our units each month based upon the ownership of our units on the first day of each month, instead of on the basis of the date a particular 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 between transferors and transferees of our units each month based upon the ownership of our units on the first day of each month, instead of on the basis of the date a particular unit is transferred. The use of this proration method may not be permitted under existing Treasury regulations, and, accordingly, our counsel is unable to opine as to the validity of this method. The U.S. Treasury Department has 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. Nonetheless, the proposed regulations do not specifically authorize the use of the proration method we have adopted. If the IRS were to challenge our proration 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. Please read Material U.S. Federal Income Tax ConsequencesDisposition of Common UnitsAllocations Between Transferors and Transferees.
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A unitholder whose units are the subject of a securities loan (e.g., a loan 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.
Because there are no specific rules governing the U.S. federal income tax consequence of loaning a partnership interest, a unitholder whose units are the subject of a securities loan may be considered as having disposed of the loaned units. In that case, the unitholder may no longer be treated for tax purposes as a partner with respect to those 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, any of our income, gain, loss or deduction with respect to those units may not be reportable by the unitholder and any cash distributions received by the unitholder as to those units could be fully taxable as ordinary income. Unitholders desiring to assure their status as partners and avoid the risk of gain recognition from a securities loan are urged to modify any applicable brokerage account agreements to prohibit their brokers from borrowing their units.
We may adopt certain valuation methodologies that could result in a shift of income, gain, loss and deduction between the general partner and the unitholders. The IRS may challenge this treatment, which could adversely affect the value of the common units.
When we issue additional units or engage in certain other transactions, we will determine the fair market value of our assets and allocate any unrealized gain or loss attributable to our assets to the capital accounts of our unitholders and our general partner. Our methodology may be viewed as understating the value of our assets. In that case, there may be a shift of income, gain, loss and deduction between certain unitholders and the general partner, which may be unfavorable to such unitholders. Moreover, under our valuation methods, subsequent purchasers of common units may have a greater portion of their Internal Revenue Code Section 743(b) adjustment allocated to our tangible assets and a lesser portion allocated to our intangible assets. The IRS may challenge our valuation methods, or our allocation of the Section 743(b) adjustment attributable to our tangible and intangible assets, and allocations of income, gain, loss and deduction between the general partner and certain of our unitholders.
A successful IRS challenge to these methods or allocations could adversely affect the amount of taxable income or loss being allocated to our unitholders. It also could affect the amount of gain from our unitholders sale of common units and could have a negative impact on the value of the common units or result in audit adjustments to our unitholders tax returns without the benefit of additional deductions.
The sale or exchange of 50% or more of our capital and profits interests during any 12-month period will result in the termination of our partnership for federal income tax purposes.
We will be considered to have terminated 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 12-month period. Immediately following this offering, Westlake will own % of the total interests in our capital and profits. Therefore, a transfer by Westlake of all or a portion of its interests in us could, in conjunction with the trading of common units held by the public, result in a termination of our partnership for federal income tax purposes. For purposes of determining whether the 50% threshold has been met, multiple sales of the same interest will be counted only once.
Our 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 for one calendar year and could result in a significant deferral of depreciation deductions allowable in computing our taxable income. In the case of a unitholder reporting on a taxable year other than a calendar year, the closing of our taxable year may also result in more than twelve months of our taxable income or loss being includable in taxable income for the unitholders taxable year that includes our termination. Our termination would not affect our classification as a partnership for federal income tax purposes, but it would result in our being treated as a new partnership for U.S. federal income tax purposes following the termination. If we were treated as a new partnership, we would be required to make new tax elections and could be
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subject to penalties if we were unable to determine that a termination occurred. The IRS recently announced a relief procedure whereby if a publicly traded partnership that has technically terminated requests and the IRS grants special relief, among other things, the partnership may be permitted to provide only a single Schedule K-1 to unitholders for the two short tax periods included in the year in which the termination occurs. Please read Material U.S. Federal Income Tax ConsequencesDisposition of Common UnitsConstructive Termination for a discussion of the consequences of our termination for federal income tax purposes.
You will likely be subject to state and local taxes and income tax return filing requirements in jurisdictions where you do not live as a result of investing in our common units.
In addition to U.S. federal income taxes, you may be subject to other taxes, including foreign, 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 own property now or in the future, even if you do not live in any of those jurisdictions. You will likely be required to file foreign, state and local income tax returns and pay state and local income taxes in some or all of these various jurisdictions. Further, you may be subject to penalties for failure to comply with those requirements.
We will initially own assets and conduct business in Kentucky, Louisiana and Texas; Kentucky and Louisiana currently impose a personal income tax on individuals, corporations and other entities. As we make acquisitions or expand our business, we may own assets or conduct business in additional states that impose a personal income tax. It is your responsibility to file all U.S. federal, foreign, state and local tax returns. Our counsel has not rendered an opinion on the state or local tax consequences of an investment in our common units.
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We intend to use the estimated net proceeds of approximately $ million from this offering (based on an assumed initial offering price of $ per common unit, the mid-point of the price range set forth on the cover page of this prospectus), after deducting the estimated underwriting discounts, structuring fee and offering expenses, to purchase from OpCo a % limited partner interest in OpCo. The % interest in OpCo purchased with the proceeds from this offering, when combined with the % interest in OpCo contributed to us in connection with the formation transactions, will result in our ownership of a 10% limited partner interest in OpCo following the closing of the offering.
OpCo will use $ million to establish a cash reserve for turnaround expenditures and $ million to reimburse Westlake for capital expenditures it incurred with respect to certain of the assets contributed to OpCo.
If the underwriters exercise their option to purchase additional common units in full, the additional net proceeds would be approximately $ million (based upon the mid-point of the price range set forth on the cover page of this prospectus). The net proceeds from any exercise of such option will be used to purchase an additional limited partner interest in OpCo, and OpCo will use such net proceeds to first reimburse Westlake for any remaining unreimbursed capital expenditures it incurred with respect to the assets contributed to OpCo and then to repay intercompany debt to Westlake. The amount of the additional interest in OpCo purchased will depend on the amount of the option exercised, and will be calculated at approximately % additional limited partner interest in OpCo purchased for each one million of additional common units purchased by the underwriters. If the underwriters exercise their option to purchase additional common units in full, we would purchase an additional % limited partner interest in OpCo and our total ownership interest in OpCo would be %.
As of March 31, 2014, OpCo had $160.2 million in outstanding indebtedness payable to Westlake under the intercompany notes that OpCo may repay, in part, with a portion of the net proceeds from this offering. OpCo used the amounts loaned under these notes to fund capital expenditures. Each of the intercompany notes has a maturity date of August 1, 2023 and bears interest at the prime rate plus 1.5%.
A $1.00 increase or decrease in the assumed initial public offering price of $ per common unit would cause the net proceeds from this offering, after deducting the estimated underwriting discount and offering expenses payable by us, to increase or decrease, respectively, by approximately $ million. In addition, we may also increase or decrease the number of common units we are offering. Each increase of one million common units offered by us, together with a concomitant $1.00 per unit increase in the assumed public offering price to $ per common unit, would increase net proceeds to us from this offering by approximately $ million. Similarly, each decrease of one million common units offered by us, together with a concomitant $1.00 decrease in the assumed initial offering price to $ per common unit, would decrease the net proceeds to us from this offering by approximately $ million. If we increase or decrease the number of common units offered, we will proportionately increase or decrease, respectively, the percentage interest in OpCo which we will purchase with the net proceeds of this offering and OpCo may concomitantly increase or reduce, as applicable, the amount of Westlake reimbursement for capital expenditures and amount of intercompany debt repayment, with the result being the same expected adjusted current earnings per unit if the number of common units had not been changed.
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The following table shows:
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the historical cash and cash equivalents and capitalization of our Predecessor as of March 31, 2014; and |
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our pro forma cash and cash equivalents and capitalization as of March 31, 2014 giving effect to the pro forma adjustments in our unaudited pro forma combined carve-out financial statements included elsewhere in this prospectus, including this offering and the application of the net proceeds of this offering in the manner described under Use of Proceeds. |
This table is derived from, and should be read in conjunction with, the unaudited pro forma combined carve-out financial statements and the accompanying notes included elsewhere in this prospectus. You should also read this table in conjunction with Prospectus SummaryFormation Transactions and Partnership Structure, Use of Proceeds and Managements Discussion and Analysis of Financial Condition and Results of Operations.
As of March 31, 2014 | ||||||||
Historical
(Predecessor) |
Pro Forma
(Partnership) |
|||||||
(unaudited) (dollars in thousands) |
||||||||
Cash and cash equivalents (1) |
$ | | $ | |||||
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|
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Long-term debt payable to Westlake (2) |
$ | 302,357 | $ | |||||
Net equity/Partners capital |
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Total sponsors net equity |
407,093 | | ||||||
Common unitspublic (3) |
| |||||||
Common unitsWestlake (3) |
| |||||||
Subordinated unitsWestlake (3) |
| |||||||
General partner interest (3) |
| |||||||
Noncontrolling interest (4) |
| |||||||
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Total capitalization |
$ | 709,450 | $ | |||||
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(1) | Pro forma amount reflects the initial turnaround reserve balance from the proceeds contributed to OpCo by us in connection with this offering. The initial turnaround reserve will account for the period that the ethylene production facilities were under Westlakes ownership following the last major turnaround and prior to the entry into the Ethylene Sales Agreement. |
(2) | Historical amount includes $142.2 million of indebtedness that will be retained by our Predecessor. |
(3) | Pro forma amounts reflect the capital attributable to our limited and general partners. Pro forma Partners capital assumes offering proceeds of $ million, net of underwriters discount and other expenses and costs of the initial public offering of $ million and $ million, respectively, all of which were allocated to the public common units. Pro forma Partners capital also reflects an increase of $ million for the impact of eliminating Predecessors assets and liabilities not contributed to OpCo, as well as a $ million and a $ million decrease for the capital attributable to the Noncontrolling interest in OpCo, and the distribution to Westlake of cash from this initial public offering, respectively. The general partner interest reflects the excess of the consideration paid by us to purchase an additional controlling interest in OpCo, over the historical carrying value of the additional interest acquired. |
(4) | Pro forma amount reflects the 90% Noncontrolling interest held by Westlake in OpCo. |
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Dilution is the amount by which the offering price paid by the purchasers of common units sold in this offering will exceed the net tangible book value per common unit after the offering. Assuming an initial public offering price of $ per common unit (the mid-point of the price range set forth on the cover page of this prospectus), on a pro forma basis as of March 31, 2014, after giving effect to the offering of common units and the related transactions, our net tangible book value would have been approximately $ million, or $ per common unit. Purchasers of our common units in this offering will experience substantial and immediate dilution in net tangible book value per common unit for financial accounting purposes, as illustrated in the following table.
Assumed initial public offering price per common unit |
$ | |||||||
Pro forma net tangible book value per common unit before the offering (1) |
$ | |||||||
Increase in net tangible book value per common unit attributable to purchasers in the offering due to the purchase of additional interest in OpCo |
||||||||
Decrease in net tangible book value per common unit attributable to purchasers in the offering due to distributions to Westlake of proceeds from the offering |
||||||||
|
|
|||||||
Less: Pro forma net tangible book value per common unit after the offering (2) |
||||||||
|
|
|||||||
Immediate dilution in net tangible book value per common unit to purchasers in the offering (3) (4) |
$ | |||||||
|
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(1) | Determined by dividing the pro forma net tangible book value of the contributed assets and liabilities by the number of units ( common units and subordinated units) to be issued to Westlake and its affiliates for their contribution of assets and liabilities to us. See also Unaudited Pro Forma Combined Carve-out Financial Statements of Westlake Chemical Partners LP. |
(2) | Determined by dividing our pro forma net tangible book value, after giving effect to the use of the net proceeds of the offering, by the total number of units ( common units and subordinated units) to be outstanding after the offering. When calculating pro forma net tangible book value per common unit, our proportionate limited partner interest in goodwill and intangible assets and deferred charges amounts of approximately $ million and $ million respectively, are excluded from the calculation of pro forma net tangible book value. |
(3) | Each $1.00 increase or decrease in the assumed public offering price of $ per common unit would increase or decrease our pro forma net tangible book value by approximately $ million, or approximately $ and $ per common unit, respectively, and increase or decrease dilution per common unit to investors in this offering by approximately $ and $ per common unit, respectively, after deducting the estimated underwriting discount and offering expenses payable by us. We may also increase or decrease the number of common units we are offering. An increase of one million common units offered by us, together with a concomitant $1.00 increase in the assumed offering price to $ per common unit, would result in a pro forma net tangible book value of approximately $ million, or $ per common unit, and dilution per common unit to investors in this offering would be $ per common unit. Similarly, a decrease of one million common units offered by us, together with a concomitant $1.00 decrease in the assumed public offering price to $ per common unit, would result in an pro forma net tangible book value of approximately $ million, or $ per common unit, and dilution per common unit to investors in this offering would be $ per common unit. The information discussed above is illustrative only and will be adjusted based on the actual public offering price and other terms of this offering determined at pricing. |
(4) | Assumes no exercise of the underwriters option to purchase additional common units from us. After giving effect to the full exercise of the underwriters option to purchase additional common units from us, the pro forma net tangible book value per common unit after the offering would be $ million, resulting in an immediate dilution in net tangible book value to purchasers in the offering of $ per common unit. |
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The following table sets forth the number of units that we will issue and the total consideration contributed to us by Westlake and by the purchasers of our common units in this offering upon consummation of the transactions contemplated by this prospectus.
Units | Total Consideration | |||||||||||
Number |
Percent | Amount | Percent | |||||||||
(in thousands of
dollars) |
||||||||||||
Westlake (1)(2) (3) |
% | % | ||||||||||
Purchasers in the offering (4) |
% | % | ||||||||||
|
|
|
|
|
|
|||||||
Total |
100.0 | % | 100.0 | % | ||||||||
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|
|
|
|
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(1) | Upon the consummation of the transactions contemplated by this prospectus, Westlake will own common units and all of the subordinated units. |
(2) | The assets contributed by Westlake will be recorded at historical cost. The pro forma book value of the consideration provided by Westlake as of March 31, 2014 would have been approximately $ million. |
(3) | Book value of the consideration provided by Westlake, as of March 31, 2014, after giving effect to the net proceeds of the offering is as follows: |
Westlakes initial contribution to us of certain limited and all of the general partner interest in OpCo (i) |
$ | |||
Add: |
||||
Net book value of the additional limited partner interest in OpCo purchased by us using the net proceeds from this offering (ii) |
||||
Less: |
||||
Consideration paid by us to OpCo for the purchase of our additional limited partner interest in OpCo |
||||
|
|
|||
Decrease in the General partner interest resulting from us purchasing of an additional interest in OpCo (iii) |
||||
|
|
|||
Total consideration |
$ | |||
|
|
(i) | Represents our proportionate limited partner interest in the historical carrying value of OpCos net assets prior to this offering. |
(ii) | Represents the purchase of our additional limited partner interest in OpCo, recorded at the historical carrying value of OpCos net assets after giving effect to the $ million equity contribution and the $ million distribution to Westlake. |
(iii) | Represents the excess of (i) the consideration paid by us to purchase our additional limited partner interest in OpCo with the net proceeds from this offering over (ii) the historical carrying value of the additional interest acquired in OpCos net assets. |
(4) | Assumes the underwriters option to purchase additional common units is not exercised. |
47
CASH DISTRIBUTION POLICY AND RESTRICTIONS ON DISTRIBUTIONS
You should read the following discussion of our cash distribution policy in conjunction with the specific assumptions included in this section. In addition, you should read Forward-Looking Statements and Risk Factors for information regarding statements that do not relate strictly to historical or current facts and certain risks inherent in our business.
For additional information regarding our historical and pro forma results of operations, you should refer to Westlake Chemical Partners LP Predecessors audited historical combined carve-out financial statements as of December 31, 2013 and 2012 and for the years ended December 31, 2013, 2012 and 2011 and its unaudited historical combined carve-out financial statements as of March 31, 2014 and for the three months ended March 31, 2014 and 2013, as well as our unaudited pro forma combined carve-out financial statements as of March 31, 2014 and for the three months ended March 31, 2014 and the year ended December 31, 2013, included elsewhere in this prospectus.
Our Cash Distribution Policy
The board of directors of our general partner will adopt a cash distribution policy pursuant to which we intend to distribute at least the minimum quarterly distribution of $ per unit ($ per unit on an annualized basis) on all of our units to the extent we have sufficient cash after the establishment of cash reserves and the payment of our expenses, including payments to our general partner and its affiliates. We expect that if we are successful in executing our business strategy, we will grow our business in a steady and sustainable manner and distribute to our unitholders a portion of any increase in our earnings resulting from such growth. We intend to cause OpCo to establish a cash reserve of approximately $ million, funded from proceeds of the offering as well as additional cash reserved annually, for future turnaround expenses. Additionally, we expect our general partner may choose to reserve cash in the form of excess distribution coverage from time to time for the purpose of maintaining stability or growth in our quarterly distributions. In addition, our general partner may cause us to borrow amounts to fund distributions in quarters when we generate less cash than is necessary to sustain or grow our cash distributions per unit. Our cash distribution policy reflects a judgment that our unitholders will be better served by our distributing rather than retaining our cash.
The board of directors of our general partner may change our distribution policy at any time and from time to time. Our partnership agreement does not require us to pay cash distributions on a quarterly or other basis. The amount of distributions we pay under our cash distribution policy and the decision to make any distribution is determined by our general partner.
Limitations on Cash Distributions and Our Ability to Change Our Cash Distribution Policy
There is no guarantee that we will make cash distributions to our unitholders. We do not have a legal or contractual obligation to pay distributions quarterly or on any other basis or at our minimum quarterly distribution rate or at any other rate. Our cash distribution policy is subject to certain restrictions and may be changed at any time. The reasons for such uncertainties in our stated cash distribution policy include the following factors:
|
Our cash flow will initially depend completely on OpCos distributions to us as one of its partners. The amount of cash OpCo can distribute to its partners will principally depend upon the amount of cash it generates from operations less any reserves that may be appropriate for operating its business. OpCos ability to make distributions to us will be subject to restrictions on distributions under Westlakes indentures governing its senior notes and Westlakes credit facility, each of which OpCo has guaranteed and is a restricted subsidiary under. If Westlake is in default under Westlakes senior notes or credit facility, OpCo will be unable to make distributions to us. These senior notes and credit facility are described in Managements Discussion and Analysis of Financial Condition and Results of |
48
OperationsCapital Resources and Liquidity. Please read Risk FactorsRisks Inherent in Our BusinessOpCo is a restricted subsidiary and guarantor under Westlakes credit facility and the indentures governing its senior notes. Restrictions in the credit facility and indentures could limit OpCos ability to make distributions to us. |
|
We expect to establish reserves for the prudent conduct of OpCos business (including reserves for working capital, maintenance capital expenditures, turnarounds, environmental matters, legal proceedings and other operating purposes). Our general partner will have the authority to establish cash reserves for the prudent conduct of our business, including for future cash distributions to our unitholders, and the establishment of or increase in those reserves could result in a reduction in cash distributions from levels we currently anticipate pursuant to our stated cash distribution policy. Our partnership agreement does not set a limit on the amount of cash reserves that our general partner may establish. |
|
We are obligated under our partnership agreement to reimburse our general partner and its affiliates for all expenses they incur on our behalf. Our partnership agreement does not set a limit on the amount of expenses for which our general partner and its affiliates may be reimbursed. 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 partnership agreement provides that our general partner will determine the expenses that are allocable to us. The reimbursement of expenses and payment of fees, if any, to our general partner and its affiliates will reduce the amount of cash available to pay distributions to our unitholders. |
|
Even if our cash distribution policy is not modified or revoked, the amount of distributions we pay under our cash distribution policy and the decision to make any distribution is determined solely by our general partner. |
|
Under Section 17-607 of the Delaware Act, we may not make a distribution if the distribution would cause our liabilities to exceed the fair value of our assets. |
|
We may lack sufficient cash to pay distributions to our unitholders due to cash flow shortfalls attributable to a number of operational, commercial or other factors as well as increases in our operating or general and administrative expenses, principal and interest payments on our outstanding debt, tax expenses, working capital requirements and anticipated cash needs. |
|
If we make distributions out of capital surplus, as opposed to operating surplus, any such distributions would constitute a return of capital and would result in a reduction in the minimum quarterly distribution and the target distribution levels. Please read How We Make Distributions To Our PartnersAdjustment to the Minimum Quarterly Distribution and Target Distribution Levels. We do not anticipate that we will make any distributions from capital surplus. |
Our Ability to Grow may be Dependent on Our Ability to Access External Expansion Capital
We expect to generally distribute a significant percentage of our cash from operations to our unitholders on a quarterly basis, after the establishment of cash reserves and payment of our expenses. Therefore, our growth may not be as fast as businesses that reinvest most or all of their cash to expand ongoing operations. Moreover, our future growth may be slower than our historical growth. We expect that we will rely primarily upon external financing sources, including borrowings from Westlake, bank borrowings and issuances of debt and equity interests, to fund our expansion capital expenditures. To the extent we are unable to finance growth externally, our cash distribution policy will significantly impair our ability to grow.
Our Minimum Quarterly Distribution
Upon completion of this offering, our partnership agreement will provide for a minimum quarterly distribution of $ per unit for each whole quarter, or $ per unit on an annualized basis. The payment of the full minimum quarterly distribution on all of the common units and subordinated units to be outstanding after completion of this offering would require us to have cash of approximately $ million per quarter, or
49
$ million per year. Our ability to make cash distributions at the minimum quarterly distribution rate will be subject to the factors described above under GeneralLimitations on Cash Distributions and Our Ability to Change Our Cash Distribution Policy. The table below sets forth the amount of common units and subordinated units that will be outstanding immediately after this offering and the amount of cash needed to pay the aggregate minimum quarterly distribution on all of such units for a single fiscal quarter and a four quarter period (assuming no exercise and full exercise of the underwriters option to purchase additional common units):
No exercise of option to
purchase
additional common units |
Full exercise of option to
purchase
additional common units |
|||||||||||||||||||
Aggregate minimum
quarterly
distributions |
Aggregate minimum
quarterly
distributions |
|||||||||||||||||||
Number of
Units |
One Quarter |
Four
Quarters |
Number of
Units |
One Quarter | Four Quarters | |||||||||||||||
Publicly held common units |
$ | $ | $ | $ | ||||||||||||||||
Common units held by Westlake |
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Subordinated units held by Westlake |
||||||||||||||||||||
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Total |
$ | $ | $ | $ | ||||||||||||||||
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Our general partner will initially own a non-economic general partner interest in us, which will not entitle it to receive cash distributions, and hold all of the incentive distribution rights, which entitle the holder to increasing percentages, up to a maximum of 50%, of the cash we distribute in excess of $ per unit per quarter.
We expect to pay our distributions on or about the last day of each of February, May, August and November to holders of record on or about the 15th day of each such month. We will adjust the quarterly distribution for the period after the closing of this offering through , 2014, based on the actual length of the period.
Westlake will initially own all of our subordinated units. The principal difference between our common units and subordinated units is that for any quarter during the subordination period, holders of the subordinated units are not entitled to receive any distribution from operating surplus until the common units have received the minimum quarterly distribution from operating surplus for such quarter plus any arrearages in the payment of the minimum quarterly distribution from prior quarters. Subordinated units will not accrue arrearages. When the subordination period ends, all of the subordinated units will convert into an equal number of common units.
To the extent we do not pay the minimum quarterly distribution from operating surplus on our common units, our common unitholders will not be entitled to receive such payments in the future except during the subordination period. To the extent we have cash from operating surplus in any future quarter during the subordination period in excess of the amount necessary to pay the minimum quarterly distribution to holders of our common units, we will use this excess cash to pay any distribution arrearages on common units related to prior quarters before any cash distribution is made to holders of subordinated units. Please read How We Make Distributions To Our PartnersSubordination Period.
Unaudited Pro Forma Adjusted Current Earnings for the Year Ended December 31, 2013 and the Twelve Months Ended March 31, 2014
We expect to use a measure we refer to as adjusted current earnings, which we describe below, to assist us in measuring our operating performance and determining whether our earnings support cash distributions. If we had
50
completed the transactions contemplated in this prospectus on January 1, 2013, our pro forma adjusted current earnings for the year ended December 31, 2013 would have been approximately $26.6 million and our pro forma adjusted current earnings the twelve months ended March 31, 2014 would have been approximately $29.1 million. For the twelve months ended March 31, 2014, this amount would have been sufficient to pay the minimum quarterly distribution of $ per unit per quarter ($ per unit on an annualized basis) on all of our common units. However, on a pro forma basis we would not have had sufficient adjusted current earnings to pay the minimum quarterly distribution on all units for the year ended December 31, 2013 and the three-month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, with shortfalls of $ million for the year ended December 31, 2013 and $ million, $ million and $ million for the three-month periods ended March 31, 2013, September 30, 2013 and March 31, 2014, respectively.
We define adjusted current earnings as net income plus depreciation and amortization, less contributions for turnaround reserves and maintenance capital expenditures. Adjusted current earnings is not a measure made in accordance with GAAP.
The GAAP measure most directly comparable to adjusted current earnings is net income. Adjusted current earnings should not be considered as an alternative to GAAP net income. You should not consider adjusted current earnings in isolation or as a substitute for analysis of our results as reported under GAAP. Additionally, because adjusted current earnings may be defined differently by other companies in our industry, our definition of adjusted current earnings may not be comparable to similarly titled measures of other companies, thereby diminishing its utility. We believe that the presentation of adjusted current earnings in this prospectus provides useful information to investors in assessing our results of operations. Since adjusted current earnings takes into account debt costs (other than externally financed expansion capital expenditures, as discussed below), maintenance capital expenditures and contributions to turnaround reserve, we believe it may provide us and investors with a longer term perspective than other non-GAAP financial measures of performance. However, adjusted current earnings has important limitations as an analytical tool because it excludes some but not all items that affect net income and does not take into account changes in working capital. Additionally, because we expect that we will rely primarily upon external financing sources, including borrowings from Westlake, bank borrowings and issuances of debt and equity interests, to fund our expansion capital expenditures, adjusted current earnings does not reflect expansion capital expenditures or the external financing thereof. We expect to incur a substantial amount of expansion capital expenditures in the future, and if we are unable to fund them with external financing sources, they could have an adverse effect on our ability to pay cash distributions. Please read Estimated Adjusted Current Earnings for the Twelve Months Ending June 30, 2015Assumptions and Considerations and Capital Expenditures. Adjusted current earnings is intended to approximate our ability to generate cash for distributions but differences between adjusted current earnings and cash, such as those resulting from changes in working capital, could be material.
The unaudited pro forma combined carve-out financial statements, upon which estimated pro forma adjusted current earnings is based, do not purport to present our results of operations had the transactions contemplated in this prospectus actually been completed as of the date indicated. We derived the amounts of estimated pro forma adjusted current earnings in the manner described in the table below. As a result, the amount of estimated pro forma adjusted current earnings should only be viewed as a general indication of the amount of adjusted current earnings that we might have generated had we been formed in an earlier period.
Following the completion of this offering, we estimate that we will incur $3.0 million of incremental annual general and administrative expenses as a result of operating as a publicly traded partnership. These incremental general and administrative expenses are not reflected in our unaudited pro forma combined carve-out financial statements and consist of expenses associated with annual and quarterly reporting, tax return and Schedule K-1 preparation and distribution expenses, Sarbanes-Oxley compliance expenses, expenses associated with listing on the NYSE, independent auditor fees, legal fees, investor relations expenses, registrar and transfer agent fees, director and officer insurance expenses and director and officer compensation expenses.
51
Our unaudited pro forma combined carve-out financial statements are derived from the audited historical annual and unaudited historical interim combined carve-out financial statements of Westlake Chemical Partners LP Predecessor, included elsewhere in this prospectus. Our unaudited pro forma combined carve-out financial statements should be read together with Selected Historical and Pro Forma Combined Carve-out Financial and Operating Data, Managements Discussion and Analysis of Financial Condition and Results of Operations and the audited historical annual and unaudited historical interim combined carve-out financial statements of Westlake Chemical Partners LP Predecessor and the notes to those statements included elsewhere in this prospectus.
52
The following tables illustrate, on a pro forma basis for the year ended December 31, 2013 and the twelve months ended March 31, 2014, the amount of adjusted current earnings we would have generated, assuming that the transactions contemplated in this prospectus had been consummated on January 1, 2013. Certain of the adjustments reflected or presented below are explained in the footnotes to such adjustments.
Westlake Chemical Partners LP Unaudited Pro Forma Adjusted Current Earnings
Pro Forma | ||||||||||||||||||||
Three Months Ended |
Year Ended
December 31, 2013 |
|||||||||||||||||||
March 31,
2013 |
June 30,
2013 |
September 30,
2013 |
December 31,
2013 |
|||||||||||||||||
(in millions) | ||||||||||||||||||||
Net ethylene sales to Westlake (1) |
$ | 145.7 | $ | 221.3 | $ | 220.4 | $ | 247.7 | $ | 835.1 | ||||||||||
Net co-product and ethylene sales to third parties |
66.0 | 105.9 | 99.3 | 92.5 | 363.7 | |||||||||||||||
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Revenue |
$ | 211.7 | $ | 327.2 | $ | 319.7 | $ | 340.2 | $ | 1,198.8 | ||||||||||
Operating costs and expenses |
||||||||||||||||||||
Cost of sales, excluding depreciation and amortization |
147.2 | 220.3 | 217.9 | 224.7 | 810.1 | |||||||||||||||
Depreciation and amortization |
17.6 | 17.6 | 17.6 | 17.5 | 70.3 | |||||||||||||||
Selling, general and administrative expenses |
4.5 | 5.1 | 4.8 | 4.5 | 18.9 | |||||||||||||||
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Total operating costs and expenses |
$ | 169.3 | $ | 243.0 | $ | 240.3 | $ | 246.7 | $ | 899.3 | ||||||||||
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Income from operations |
42.4 | 84.2 | 79.4 | 93.5 | 299.5 | |||||||||||||||
Net interest and other financial costs (2) |
(0.6 | ) | (0.6 | ) | (0.6 | ) | (0.7 | ) | (2.5 | ) | ||||||||||
Other expense, net |
| | | (0.2 | ) | (0.2 | ) | |||||||||||||
Provision for income taxes (3) |
(0.2 | ) | (0.4 | ) | (0.4 | ) | (0.3 | ) | (1.3 | ) | ||||||||||
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Net income |
$ | 41.6 | $ | 83.2 | $ | 78.4 | $ | 92.3 | $ | 295.5 | ||||||||||
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Add: |
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Depreciation and amortization |
17.6 | 17.6 | 17.6 | 17.5 | 70.3 | |||||||||||||||
Less: |
||||||||||||||||||||
Maintenance capital expenditures |
(7.1 | ) | (11.0 | ) | (10.8 | ) | (11.6 | ) | (40.5 | ) | ||||||||||
Contribution to turnaround reserves |
(5.1 | ) | (7.9 | ) | (7.7 | ) | (8.3 | ) | (29.0 | ) | ||||||||||
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Estimated pro forma adjusted current earnings (4) |
$ | 47.0 | $ | 81.9 | $ | 77.5 | $ | 89.9 | $ | 296.3 | ||||||||||
Less: |
||||||||||||||||||||
Estimated pro forma adjusted current earnings attributable to noncontrolling interest in OpCo (5) |
(42.3 | ) | (73.7 | ) | (69.8 | ) | (80.9 | ) | (266.7 | ) | ||||||||||
Incremental general and administrative expenses (6) |
(0.8 | ) | (0.8 | ) | (0.8 | ) | (0.6 | ) | (3.0 | ) | ||||||||||
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Estimated pro forma adjusted current earnings for Westlake Chemical Partners LP |
$ | 3.9 | $ | 7.4 | $ | 6.9 | $ | 8.4 | $ | 26.6 | ||||||||||
Distributions to public common unitholders |
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Distributions to Westlake (common and subordinated units) |
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Aggregate Minimum Quarterly Distribution |
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Excess (shortfall) of adjusted current earnings needed to pay aggregate Minimum Quarterly Distribution |
$ | $ | $ | $ | $ | |||||||||||||||
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Other Data: |
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EBITDA (7) |
$ | 60.0 | $ | 101.8 | $ | 97.0 | $ | 110.8 | $ | 369.6 | ||||||||||
EBITDA attributable to Westlake Chemical Partners LP (7) |
$ | 6.0 | $ | 10.2 | $ | 9.7 | $ | 11.1 | $ | 37.0 |
53
Westlake Chemical Partners LP Unaudited Pro Forma Adjusted Current Earnings
Pro Forma | ||||||||||||||||||||
Three Months Ended |
Twelve
Months Ended March 31, 2014 |
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June 30,
2013 |
September 30,
2013 |
December 31,
2013 |
March 31,
2014 |
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(in millions) | ||||||||||||||||||||
Net ethylene sales to Westlake (1) |
$ | 221.3 | $ | 220.4 | $ | 247.7 | $ | 246.0 | $ | 935.4 | ||||||||||
Net co-product and ethylene sales to third parties |
105.9 | 99.3 | 92.5 | 87.4 | 385.1 | |||||||||||||||
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Revenue |
$ | 327.2 | $ | 319.7 | $ | 340.2 | $ | 333.4 | $ | 1,320.5 | ||||||||||
Operating costs and expenses |
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Cost of sales, excluding depreciation and amortization |
220.3 | 217.9 | 224.7 | 236.2 | 899.1 | |||||||||||||||
Depreciation and amortization |
17.6 | 17.6 | 17.5 | 17.6 | 70.3 | |||||||||||||||
Selling, general and administrative expenses |
5.1 | 4.8 | 4.5 | 6.3 | 20.7 | |||||||||||||||
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Total operating costs and expenses |
$ | 243.0 | $ | 240.3 | $ | 246.7 | $ | 260.1 | $ | 990.1 | ||||||||||
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Income from operations |
84.2 | 79.4 | 93.5 | 73.3 | 330.4 | |||||||||||||||
Net interest and other financial costs (2) |
(0.6 | ) | (0.6 | ) | (0.7 | ) | (1.6 | ) | (3.5 | ) | ||||||||||
Other expense, net |
| | (0.2 | ) | | (0.2 | ) | |||||||||||||
Provision for income taxes (3) |
(0.4 | ) | (0.4 | ) | (0.3 | ) | (0.3 | ) | (1.4 | ) | ||||||||||
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Net income |
$ | 83.2 | $ | 78.4 | $ | 92.3 | $ | 71.4 | $ | 325.3 | ||||||||||
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Add: |
||||||||||||||||||||
Depreciation and amortization |
17.6 | 17.6 | 17.5 | 17.6 | 70.3 | |||||||||||||||
Less: |
||||||||||||||||||||
Maintenance capital expenditures |
(11.0 | ) | (10.8 | ) | (11.6 | ) | (10.7 | ) | (44.1 | ) | ||||||||||
Contribution to turnaround reserves |
(7.9 | ) | (7.7 | ) | (8.3 | ) | (6.6 | ) | (30.5 | ) | ||||||||||
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Estimated pro forma adjusted current earnings (4) |
$ | 81.9 | $ | 77.5 | $ | 89.9 | $ | 71.7 | $ | 321.0 | ||||||||||
Less: |
||||||||||||||||||||
Estimated pro forma adjusted current earnings attributable to noncontrolling interest in OpCo (5) |
(73.7 | ) | (69.8 | ) | (80.9 | ) | (64.5 | ) | (288.9 | ) | ||||||||||
Incremental general and administrative expenses (6) |
(0.8 | ) | (0.8 | ) | (0.6 | ) | (0.8 | ) | (3.0 | ) | ||||||||||
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Estimated pro forma adjusted current earnings for Westlake Chemical Partners LP |
$ | 7.4 | $ | 6.9 | $ | 8.4 | $ | 6.4 | $ | 29.1 | ||||||||||
Distributions to public common unitholders |
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Distributions to Westlake (common and subordinated units) |
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Aggregate Minimum Quarterly Distribution |
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Excess (shortfall) of adjusted current earnings needed to pay aggregate Minimum Quarterly Distribution |
$ | $ | $ | $ | $ | |||||||||||||||
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Other Data: |
||||||||||||||||||||
EBITDA (7) |
$ | 101.8 | $ | 97.0 | $ | 110.8 | $ | 90.9 | $ | 400.5 | ||||||||||
EBITDA attributable to Westlake Chemical Partners LP (7) |
$ | 10.2 | $ | 9.7 | $ | 11.1 | $ | 9.1 | $ | 40.1 |
(1) | Inclusive of net sales to Westlake (after giving effect to the reduction for proceeds from the sale of associated co-products) in accordance with the Ethylene Sales Agreement as well as fees paid by Westlake for transportation on the Longview Pipeline. |
(2) | Includes, on a 100% basis, the interest expense attributable to OpCos intercompany borrowings with Westlake. |
(3) | Includes the estimated pro forma provision for state margin tax. |
(4) |
We define adjusted current earnings as net income plus depreciation and amortization, less contributions for turnaround reserves and maintenance capital expenditures. Adjusted current earnings is not a measure made in accordance with GAAP. The GAAP measure most directly comparable to adjusted current earnings is net |
54
income, and the table above calculates our pro forma adjusted current earnings by making adjustments from our pro forma net income. Adjusted current earnings may also be viewed as a liquidity measure, which would be most directly comparable to cash flow from operating activities. Adjusted current earnings is not a substitute for cash flow from operating activities, the most directly comparable GAAP financial measure. We have not prepared a pro forma statement of cash flow, and thus have not provided a reconciliation to pro forma cash flow from operating activities. The following table presents a reconciliation of estimated pro forma adjusted current earnings for Westlake Chemical Partners LP to our Predecessors cash flow from operating activities for the year ended December 31, 2013 and the quarter ended March 31, 2014. Our future results of operation, including our cash flow from operating activities, will not be comparable to the historical results of our Predecessor primarily because our Predecessor sold ethylene and feedstock to third parties at market prices, whereas the substantial majority of our revenue from ethylene sales will be generated from sales of manufactured ethylene to Westlake on pricing that is expected to generate a fixed margin per pound. This and other differences will result in substantial differences between our Predecessors cash flow from operating activities and our future cash flow from operating activities. Please see Managements Discussion and Analysis of Financial Condition and Results of OperationsFactors Affecting the Comparability of Our Financial Results. |
Year Ended
December 31, 2013 |
Three Months
Ended March 31, 2014 |
|||||||
(in millions) | ||||||||
Estimated pro forma adjusted current earnings for Westlake Chemical Partners LP |
$ | 26.6 | $ | 6.4 | ||||
Add: |
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Incremental general and administrative expenses |
3.0 | 0.8 | ||||||
Estimated pro forma adjusted current earnings attributable to noncontrolling interest in OpCo |
266.7 | 64.5 | ||||||
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Estimated pro forma adjusted current earnings |
$ | 296.3 | $ | 71.7 | ||||
Add: |
||||||||
Maintenance capital expenditures |
40.5 | 10.7 | ||||||
Contribution to turnaround reserves |
29.0 | 6.6 | ||||||
Less: |
||||||||
Depreciation and amortization |
(70.3 | ) | (17.6 | ) | ||||
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|
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Pro forma net income |
$ | 295.5 | $ | 71.4 | ||||
Add: |
||||||||
Predecessor retained pro forma adjustments |
251.0 | 72.5 | ||||||
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|
|||||
Predecessors net income |
$ | 546.5 | $ | 143.9 | ||||
Adjustments to reconcile predecessor net income to predecessor net cash provided by operating activities: |
||||||||
Changes in operating assets and liabilities, and other |
16.6 | 50.4 | ||||||
Deferred income taxes |
37.1 | 3.3 | ||||||
Other, net |
2.3 | 0.3 | ||||||
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|
|
|||||
Predecessors net cash provided by operating activities |
$ | 602.5 | $ | 197.9 | ||||
Predecessors net cash used for investing activities |
$ | (230.1 | ) | $ | (51.7 | ) | ||
Predecessors net cash used for financing activities |
$ | (372.4 | ) | $ | (146.2 | ) |
(5) | Pro forma adjusted current earnings attributable to noncontrolling interest in OpCo reflects Westlakes 90% limited partner interest in OpCo. |
(6) | All incremental costs of being a publicly traded entity are 100% attributable to us and not shared by the non-controlling interest. |
(7) | For a definition of EBITDA, please read Selected Historical and Pro Forma Combined Carve-out Financial and Operating DataNon-GAAP Financial Measure. The following tables present a reconciliation of EBITDA to net income, our most directly comparable financial measure calculated and presented in accordance with GAAP, on a pro forma basis for the year ended December 31, 2013 and the twelve months ended March 31, 2014. |
55
Pro Forma | ||||||||||||||||||||
Three Months Ended |
Year Ended
December 31, 2013 |
|||||||||||||||||||
March 31,
2013 |
June 30,
2013 |
September 30,
2013 |
December 31,
2013 |
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(in millions) | ||||||||||||||||||||
EBITDA attributable to Westlake Chemical Partners LP |
$ | 6.0 | $ | 10.2 | $ | 9.7 | $ | 11.1 | $ | 37.0 | ||||||||||
Add: |
||||||||||||||||||||
EBITDA attributable to noncontrolling interest in OpCo |
54.0 | 91.6 | 87.3 | 99.7 | 332.6 | |||||||||||||||
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|||||||||||
EBITDA |
$ | 60.0 | $ | 101.8 | $ | 97.0 | $ | 110.8 | $ | 369.6 | ||||||||||
Less: |
||||||||||||||||||||
Depreciation and amortization |
(17.6 | ) | (17.6 | ) | (17.6 | ) | (17.5 | ) | (70.3 | ) | ||||||||||
Net interest and other financial costs |
(0.6 | ) | (0.6 | ) | (0.6 | ) | (0.7 | ) | (2.5 | ) | ||||||||||
Provision for income taxes |
(0.2 | ) | (0.4 | ) | (0.4 | ) | (0.3 | ) | (1.3 | ) | ||||||||||
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Net income |
$ | 41.6 | $ | 83.2 | $ | 78.4 | $ | 92.3 | $ | 295.5 | ||||||||||
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Pro Forma | ||||||||||||||||||||
Three Months Ended |
Twelve
Months Ended March 31, 2014 |
|||||||||||||||||||
June 30,
2013 |
September 30,
2013 |
December 31,
2013 |
March 31,
2014 |
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(in millions) | ||||||||||||||||||||
EBITDA attributable to Westlake Chemical Partners LP |
$ | 10.2 | $ | 9.7 | $ | 11.1 | $ | 9.1 | $ | 40.1 | ||||||||||
Add: |
||||||||||||||||||||
EBITDA attributable to noncontrolling interest in OpCo |
91.6 | 87.3 | 99.7 | 81.8 | 360.4 | |||||||||||||||
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|
|||||||||||
EBITDA |
$ | 101.8 | $ | 97.0 | $ | 110.8 | $ | 90.9 | $ | 400.5 | ||||||||||
Less: |
||||||||||||||||||||
Depreciation and amortization |
(17.6 | ) | (17.6 | ) | (17.5 | ) | (17.6 | ) | (70.3 | ) | ||||||||||
Net interest and other financial costs |
(0.6 | ) | (0.6 | ) | (0.7 | ) | (1.6 | ) | (3.5 | ) | ||||||||||
Provision for income taxes |
(0.4 | ) | (0.4 | ) | (0.3 | ) | (0.3 | ) | (1.4 | ) | ||||||||||
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Net income |
$ | 83.2 | $ | 78.4 | $ | 92.3 | $ | 71.4 | $ | 325.3 | ||||||||||
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Estima ted Adjusted Current Earnings for the Twelve Months Ending June 30, 2015
Set forth below is a statement of estimated adjusted current earnings that reflects a forecast of our ability to generate sufficient cash to make the minimum quarterly distribution on all of our outstanding common and subordinated units for the twelve months ending June 30, 2015, based on assumptions we believe to be reasonable. These assumptions include adjustments giving effect to this offering. We are not required by our partnership agreement or otherwise to calculate our actual distributions using the methodology set forth below.
Our estimated adjusted current earnings reflects our judgment as of the date of this prospectus of conditions we expect to exist and the course of action we expect to take during the twelve months ending June 30, 2015. The assumptions disclosed under Assumptions and Considerations below are those that we believe are significant to our ability to generate such estimated adjusted current earnings. We believe our actual results of operations for the twelve months ending June 30, 2015 will be sufficient to generate our estimated adjusted current earnings for such period; however, we can give you no assurance that such estimated adjusted current earnings will be actually achieved. There will likely be differences between our estimated adjusted current earnings for the twelve months ending June 30, 2015 and our actual results for such period and those differences could be material. If we fail to generate the estimated adjusted current earnings for the twelve months ending June 30, 2015, we may not be able to pay cash distributions on our common units at the minimum quarterly distribution rate or at any rate.
We do not as a matter of course make public projections as to future operations, earnings or other results. However, management has prepared the estimated adjusted current earnings and assumptions set forth below to
56
substantiate our belief that we will have sufficient earnings to make the minimum quarterly distribution to our unitholders for the twelve months ending June 30, 2015. This prospective financial information was not prepared with a view toward compliance with the published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of 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 managements knowledge and belief, the assumptions on which we base our belief that we can generate the estimated adjusted current earnings necessary for us to pay the full minimum quarterly distribution to all of our unitholders for the twelve months ending June 30, 2015. However, this information is not historical fact and should not be relied upon as being necessarily indicative of future results, and readers of this prospectus are cautioned not to place undue reliance on the prospective financial information. The prospective financial information included in this offering document has been prepared by, and is the responsibility of, our management. PricewaterhouseCoopers LLP has neither examined, compiled nor performed any procedures with respect to the accompanying prospective financial information and, accordingly, PricewaterhouseCoopers LLP does not express an opinion or any other form of assurance with respect thereto. The PricewaterhouseCoopers LLP report included in this offering document relates to our historical financial information. It does not extend to the prospective financial information and should not be read to do so.
When considering the estimated adjusted current earnings set forth below you should keep in mind the risk factors and other cautionary statements under Risk Factors. Any of the risks discussed in this prospectus could cause our actual results of operations to vary significantly from those supporting such estimated adjusted current earnings. Accordingly, there can be no assurance that the forecast is indicative of our future performance. Inclusion of the forecast in this prospectus is not a representation by any person, including us or the underwriters, that the results in the forecast will be achieved.
We are providing the estimated adjusted current earnings and related assumptions for the twelve months ending June 30, 2015 to supplement our unaudited pro forma and historical combined carve-out financial statements in support of our belief that we will have sufficient earnings to allow us to pay cash distributions on all of our outstanding common and subordinated units for each quarter in the 12-month period ending June 30, 2015 at our stated minimum quarterly distribution rate. Please read below under Assumptions and Considerations for further information as to the assumptions we have made for the preparation of the estimated adjusted current earnings set forth below. The narrative descriptions of our assumptions in Assumptions and Considerations generally compare our estimated adjusted current earnings for the twelve months ending June 30, 2015 with the unaudited pro forma adjusted current earnings for the year ended December 31, 2013 and for the twelve months ended March 31, 2014 presented under Unaudited Pro Forma Adjusted Current Earnings for the Year Ended December 31, 2013 and for the Twelve Months Ended March 31, 2014.
57
Westlake Chemical Partners LP
Estimated Adjusted Current Earnings
Forecast | ||||||||||||||||||||
Three Months Ending |
Twelve
Months Ending June 30, 2015 |
|||||||||||||||||||
September 30,
2014 |
December 31,
2014 |
March 31,
2015 |
June 30,
2015 |
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(in millions) | ||||||||||||||||||||
Net ethylene sales to Westlake (1) |
$ | 218.7 | $ | 215.1 | $ | 206.4 | $ | 206.7 | $ | 846.9 | ||||||||||
Net co-product and ethylene sales to third parties |
72.0 | 73.6 | 75.4 | 78.4 | 299.4 | |||||||||||||||
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Revenue |
$ | 290.7 | $ | 288.7 | $ | 281.8 | $ | 285.1 | $ | 1,146.3 | ||||||||||
Operating costs and expenses |
||||||||||||||||||||
Cost of sales, excluding depreciation and amortization |
173.0 | 171.7 | 167.3 | 168.8 | 680.8 | |||||||||||||||
Depreciation and amortization |
19.7 | 19.7 | 20.5 | 20.5 | 80.4 | |||||||||||||||
Selling, general and administrative expenses (2) |
4.9 | 4.9 | 5.1 | 5.1 | 20.0 | |||||||||||||||
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Total operating costs and expenses |
$ | 197.6 | $ | 196.3 | $ | 192.9 | $ | 194.4 | $ | 781.2 | ||||||||||
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Income from operations |
93.1 | 92.4 | 88.9 | 90.7 | 365.1 | |||||||||||||||
Net interest and other financial costs (3) |
(2.8 | ) | (2.9 | ) | (3.0 | ) | (3.2 | ) | (11.9 | ) | ||||||||||
Provision for income taxes (4) |
(0.4 | ) | (0.4 | ) | (0.4 | ) | (0.4 | ) | (1.6 | ) | ||||||||||
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Net income |
$ | 89.9 | $ | 89.1 | $ | 85.5 | $ | 87.1 | $ | 351.6 | ||||||||||
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Add: |
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Depreciation and amortization |
19.7 | 19.7 | 20.5 | 20.5 | 80.4 | |||||||||||||||
Less: |
||||||||||||||||||||
Maintenance capital expenditures |
(19.2 | ) | (23.2 | ) | (13.1 | ) | (13.2 | ) | (68.7 | ) | ||||||||||
Contribution to turnaround reserves |
(7.3 | ) | (7.2 | ) | (7.4 | ) | (7.4 | ) | (29.3 | ) | ||||||||||
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Estimated adjusted current earnings |
$ | 83.1 | $ | 78.4 | $ | 85.5 | $ | 87.0 | $ | 334.0 | ||||||||||
Less: |
||||||||||||||||||||
Estimated adjusted current earnings attributable to noncontrolling interest in OpCo (5) |
(75.5 | ) | (71.2 | ) | (77.6 | ) | (79.0 | ) | (303.3 | ) | ||||||||||
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Estimated adjusted current earnings for Westlake Chemical Partners LP (6) |
$ | 7.6 | $ | 7.2 | $ | 7.9 | $ | 8.0 | $ | 30.7 | ||||||||||
Distributions to public common unitholders (7) |
||||||||||||||||||||
Distributions to Westlake (common and subordinated units) (7) |
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Aggregate Minimum Quarterly Distribution (7) |
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Excess of adjusted current earnings over aggregate Minimum Quarterly Distribution (7) |
$ | $ | $ | $ | $ | |||||||||||||||
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Other Data: |
||||||||||||||||||||
EBITDA (8) |
$ | 112.8 | $ | 112.1 | $ | 109.4 | $ | 111.2 | $ | 445.5 | ||||||||||
EBITDA attributable to Westlake Chemical Partners LP (8) |
$ | 10.6 | $ | 10.5 | $ | 10.3 | $ | 10.4 | $ | 41.8 |
(1) | Inclusive of net sales to Westlake (after giving effect to the reduction for proceeds from the sale of associated co-products) in accordance with the Ethylene Sales Agreement as well as fees paid by Westlake for transportation on the Longview Pipeline. |
(2) | Includes $3.0 million of estimated incremental annual general and administrative expenses that we expect to incur as a result of being a separate publicly traded partnership. The incremental general and administrative expenses will be paid by us and not by OpCo. |
(3) | Includes, on a 100% basis: interest expense attributable to OpCos intercompany borrowings with Westlake; interest income on approximately $ million of the net proceeds from this offering that OpCo will retain to fund future turnaround expenses. |
58
(4) | Includes the estimated provision for state margin tax. |
(5) | Estimated adjusted current earnings attributable to noncontrolling interest in OpCo reflects Westlakes 90% limited partner interest in OpCo. |
(6) | Our partnership agreement provides that any distributions we make will be characterized as made from operating surplus or capital surplus. Cash distributions from operating surplus are made differently than cash distributions that we would make from capital surplus. Our partnership agreement provides that we treat all cash distributed as coming from operating surplus until the sum of all cash distributed since the closing of this offering equals the operating surplus from the closing of this offering. Our partnership agreement provides that we treat any amount distributed in excess of operating surplus, regardless of its source, as distributions of capital surplus. We do not anticipate that we will make any distributions from capital surplus. We believe that estimated adjusted current earnings is substantially equivalent to estimated operating surplus generated during the periods shown in the table. For more information, please see How We Make Distributions to Our PartnersOperating Surplus and Capital Surplus. |
(7) | Totals may not sum due to rounding. |
(8) | For a definition of EBITDA, please read Selected Historical and Pro Forma Combined Carve-out Financial and Operating DataNon-GAAP Financial Measure. The following table presents a reconciliation of EBITDA to net income, our most directly comparable financial measure calculated and presented in accordance with GAAP, on a forecast basis for the twelve months ending June 30, 2015. |
Forecast | ||||||||||||||||||||
Three Months Ending |
Twelve
Months Ending June 30, 2015 |
|||||||||||||||||||
September 30,
2014 |
December 31,
2014 |
March 31,
2015 |
June 30,
2015 |
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(in millions) | ||||||||||||||||||||
EBITDA attributable to Westlake Chemical Partners LP |
$ | 10.6 | $ | 10.5 | $ | 10.3 | $ | 10.4 | $ | 41.8 | ||||||||||
Add: |
||||||||||||||||||||
EBITDA attributable to noncontrolling interest in OpCo |
102.2 | 101.6 | 99.1 | 100.8 | 403.7 | |||||||||||||||
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EBITDA |
$ | 112.8 | $ | 112.1 | $ | 109.4 | $ | 111.2 | $ | 445.5 | ||||||||||
Less: |
||||||||||||||||||||
Depreciation and amortization |
(19.7 | ) | (19.7 | ) | (20.5 | ) | (20.5 | ) | (80.4 | ) | ||||||||||
Net interest and other financial costs |
(2.8 | ) | (2.9 | ) | (3.0 | ) | (3.2 | ) | (11.9 | ) | ||||||||||
Provision for income taxes |
(0.4 | ) | (0.4 | ) | (0.4 | ) | (0.4 | ) | (1.6 | ) | ||||||||||
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|
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Net income |
$ | 89.9 | $ | 89.1 | $ | 85.5 | $ | 87.1 | $ | 351.6 | ||||||||||
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Assumptions and Considerations
The forecast has been prepared by and is the responsibility of management. The forecast reflects our judgment as of the date of this prospectus of conditions we expect to exist and the course of action we expect to take during the twelve months ending June 30, 2015. While the assumptions discussed below are not all-inclusive, they include those that we believe are material to our forecasted results of operations, and any assumptions not discussed below were not deemed to be material. We believe we have a reasonable, objective basis for these assumptions. We believe our actual results of operations will approximate those reflected in our forecast, but we can give no assurance that our forecasted results will be achieved. There will likely be differences between our forecast and our actual results and those differences could be material. If the forecasted results are not achieved, we may not be able to make cash distributions on our common units at the minimum quarterly distribution rate or at all.
General Assumptions and Considerations
We have assumed that our actual production will equal our planned production, such that Westlake will be committed to purchase 95% of our actual production and Westlakes option to purchase up to 95% of our actual production in excess of planned production will not be applicable. As discussed in this prospectus, a substantial majority of our revenues and expenses will be determined by the Ethylene Sales Agreement and the Feedstock
59
Supply Agreement that were not in place during the historical periods, and accordingly, our forecasted results are not directly comparable with historical periods. While the price of feedstock and natural gas that OpCo pays will also fluctuate, it is automatically adjusted in the price per pound of ethylene charged to Westlake under the Ethylene Sales Agreement. Please read Managements Discussion and Analysis of Financial Condition and Results of Operation.
Total Operating Revenues
Production Capacity
The following table compares the forecasted annual production capacity at our ethylene production facilities at June 30, 2015 with annual production capacity at December 31, 2013 and March 31, 2014:
Ethylene Facility
Production Capacity |
||||||||||||
Ethylene Facility |
December 31, 2013 | March 31, 2014 | June 30, 2015 | |||||||||
(in millions of pounds) | ||||||||||||
Lake Charles Olefins |
2,740 | 2,740 | 2,740 | |||||||||
Calvert City Olefins |
450 | 450 | 630 |
The increase in the aggregate production capacity at our ethylene production facilities for the twelve months ending June 30, 2015 compared to the year ended December 31, 2013 and the twelve months ended March 31, 2014 reflects a capital expansion project recently completed at Calvert City Olefins that increased the capacity of that facility by 40%.
Under the terms of the Ethylene Sales Agreement, Westlake will be obligated to purchase 95% of our planned ethylene production for the twelve months ending June 30, 2015 and would have been obligated to purchase 95% of our ethylene production in the year ended December 31, 2013 and the twelve months ended March 31, 2014. We have assumed that the remaining 5% of planned production will be sold to third parties for the twelve month period ending June 30, 2015.
Revenues
We estimate that OpCo will generate total revenue of $1,146.3 million for the twelve months ending June 30, 2015, compared with pro forma total revenue of $1,198.8 million and $1,320.5 million for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively.
We expect approximately $846.9 million, or 74%, of our total forecasted revenues to be pursuant to the Ethylene Sales Agreement with Westlake and revenues generated by operations on the Longview Pipeline. We expect that approximately $299.4 million, or 26%, of our total forecasted revenues to be generated by sales to third parties. Third party revenues consist of sales of ethylene and co-products of ethylene production, including propylene, crude butadiene, pyrolysis gasoline and hydrogen.
Third party ethylene sales are forecasted based on a market price that is expected during the forecast period. We estimate that the operating margin generated by such ethylene sales will be $45.3 million. This value is derived from estimated ethylene sales prices and feedstock costs as published by Wood Mackenzie, natural gas prices as derived from the futures price of natural gas delivered to the Gulf Coast and our forecast of other costs of sales.
We expect to generate approximately $219.2 million, or 19%, of our total forecasted revenues from sales of co-products produced in conjunction with our production of ethylene. Of this amount, approximately $208.0 million, or 95%, of the co-product sales will be credited against the purchase price for ethylene purchased by Westlake in accordance with the terms of the Ethylene Sales Agreement.
60
Our forecasted revenues have been determined by reference to historical production capacity utilization at our ethylene production facilities and historical throughput on the Longview Pipeline. Variances between actual revenues during the forecast period and forecasted revenues will be driven by differences between actual feedstock costs and forecasted feedstock costs, changes in uncommitted volumes from third parties and changes in the market prices of ethylene and co-products sold to third parties.
Under the Ethylene Sales Agreement, one of the major components of the fee (and thus our revenue) will be our actual feedstock costs. Because we forecast that our feedstock costs will decrease (as described below under Cost of Sales), we forecast our revenue to decrease. However, because our gross margin per pound is generally fixed under the Ethylene Sales Agreement and we forecast increased production capacity (as described below under Production Capacity), our net income is expected to increase.
We estimate that our revenues for the forecast period will decrease by approximately $52.5 million and $174.2 million as compared to pro forma revenues for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively. Given the generally fixed nature of our margin under the Ethylene Sales Agreement, our lower revenues, for both periods, are primarily due to lower feedstock costs offset by increased volume at Calvert City Olefins.
The following table compares forecasted revenues to historical pro forma revenues:
Year
Ended
December 31, 2013 |
Twelve Months Ended
March 31, 2014 |
Twelve Months Ending
June 30, 2015 |
||||||||||
(in millions of dollars) | (in millions of dollars) | (in millions of dollars) | ||||||||||
Sales to Westlake |
$ | 835.1 | $ | 935.4 | $ | 846.9 | ||||||
Sales to Third Parties |
$ | 363.7 | $ | 385.1 | $ | 299.4 |
Cost of Sales
Our costs of sales include feedstock costs, natural gas, variable and fixed conversion costs, repairs and maintenance expenses, transportation and distribution expenses and depreciation expense. We estimate that we will incur costs of sales, including depreciation, of approximately $761.2 million for the twelve months ending June 30, 2015 compared to $880.4 million and $969.4 million for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively, both on a pro forma basis. This decrease in forecasted operating expenses, for both periods, is primarily due to lower feedstock cost driven by a change in feedstock from propane to ethane at Calvert City Olefins. Historically, feedstock and natural gas costs have accounted for the majority of our total cost of sales, and as a result we expect approximately 71% of our total cost of sales for the twelve months ending June 30, 2015 to be attributable to feedstock and natural gas costs. For the volumes sold under the Ethylene Sales Agreement to Westlake, all fluctuations in feedstock and natural gas costs are automatically reflected in the purchase price paid to us by Westlake.
Selling, General and Administrative Expenses
We estimate that our selling, general and administrative expenses will be approximately $20.0 million for the twelve months ending June 30, 2015 compared to $18.9 million and $20.7 million for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively, both on a pro forma basis. For the twelve months ending June 30, 2015, our forecasted selling, general and administrative expenses consist of:
|
Approximately $17.0 million of selling, general and administrative expenses that will be charged to us by Westlake. These expenses primarily relate to information technology, human resources and other |
61
financial and administrative services that will be provided to us by Westlake, as well as our allocated share of insurance costs associated with covering our operations under Westlakes corporate property, casualty, pollution and general liability policies. We will pay Westlake for our allocated share of these expenses on the basis of costs actually incurred by Westlake in providing these services to us. We will also reimburse Westlake for any direct charges incurred on our behalf; and |
|
Approximately $3.0 million of additional costs of being a separate publicly traded limited partnership, which includes costs associated with annual and quarterly reports to unitholders, financial statement audit, tax return and Schedule K-1 preparation and distribution, investor relations activities, registrar and transfer agent fees and independent director compensation. |
Capital Expenditures
We maintain an ongoing program of continually investing in our business. Our expenditures include ongoing expenditures required to maintain current capacity as well as expansion projects that increase capacity or allow us to operate more efficiently. We estimate that total capital expenditures for OpCo for the twelve months ending June 30, 2015 will be $208.9 million, compared to $223.1 million and $209.9 million for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively, on a pro forma basis. Our estimate is based on the following assumptions:
|
Maintenance Capital Expenditures . We estimate total maintenance capital expenditures to be $68.7 million for the twelve months ending June 30, 2015 (excluding any cash reserves for future turnaround expenses as described below). This compares to $40.5 million and $44.1 million for maintenance capital expenditures for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively, on a pro forma basis. We estimate this increase, for both periods, will be due to maintenance projects being performed ahead of a turnaround and a major expansion project at Lake Charles Olefins. |
|
Expansion Capital Expenditures . We estimate expansion capital expenditures to be $140.2 million for the twelve months ending June 30, 2015, as compared to $182.6 million and $165.8 million for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively. The expansion capital expenditures during the 12-months ending June 30, 2015 represent expenditures for the Lake Charles Olefins Petro 1 expansion, which we expect will be completed in late 2015 or early 2016. We intend to finance these expansion capital expenditures with borrowings of $140.2 million by OpCo from Westlake. |
Turnaround
As part of our ongoing activities to maintain current capacity, the ethylene production facilities periodically undergo planned major maintenance activities, also known as turnarounds. We intend to reserve a portion of our annual sales to fund these costs as they are incurred. We estimate that turnaround reserves will be $29.3 million for the twelve months ending June 30, 2015. This compares to a turnaround reserve of $29.0 million and $30.5 million for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively, on a pro forma basis.
For accounting purposes, we defer turnaround costs and recognize those costs as an expense over the estimated useful life of those capital expenditures, typically until the next expected turnaround project. For the year ended December 31, 2013, we deferred costs of $59.1 million in connection with a turnaround at Petro 2. We did not defer any turnaround costs for the twelve months ended March 31, 2014. For the twelve months ending June 30, 2015, we expect to defer costs of $9.1 million associated with a turnaround at Petro 1.
Depreciation Expense
We estimate that OpCos depreciation will be approximately $80.4 million for the twelve months ending June 30, 2015, as compared to pro forma depreciation of approximately $70.3 million for both the year ended December 31, 2013 and the twelve months ended March 31, 2014. Estimated depreciation expense reflects
62
managements estimates, which are based on consistent average depreciable asset lives and depreciation methodologies. Depreciation is expected to increase during the forecast period primarily due to depreciation related to capital expansion projects and maintenance capital expenditures related to our ethylene production facilities.
Financing
We estimate that net interest and other financial costs of OpCo will be approximately $11.9 million for the twelve months ending June 30, 2015, as compared to $2.5 million and $3.5 million pro forma net interest and other financial costs for the year ended December 31, 2013 and the twelve months ended March 31, 2014, respectively. This increase, for both periods, is primarily due to a higher average debt balance during the forecast period related to the financing of forecast capital expenditures. Our forecasted net interest and other financial costs for the twelve months ending June 30, 2015 are based on interest expense of $12.2 million calculated on an assumed average debt level of $301.2 million comprised of funds drawn on OpCos $600.0 million revolving intercompany line of credit from Westlake to fund expansion capital expenditures, offset by $0.3 million in interest income on the approximately $65.5 million turnaround reserve to fund future estimated capital expenditures of OpCo.
Regulatory, Industry and Economic Factors
Our forecast of adjusted current earnings for the twelve months ending June 30, 2015 is based on the following significant assumptions related to regulatory, industry and economic factors:
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Westlake will not default under either the Ethylene Sales Agreement or the Feedstock Supply Agreement or reduce, suspend or terminate its obligations, nor will any events occur that would be deemed a force majeure event, under such agreements; |
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there will not be any new federal, state or local regulation, or any interpretation of existing regulation, of the portions of the industries in which we operate that will be materially adverse to our business; |
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there will not be any material accidents, weather-related incidents, unscheduled downtime or similar unanticipated events with respect to our assets or Westlakes downstream facilities; |
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there will not be a shortage of skilled labor; and |
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there will not be any material adverse changes in the petrochemicals industry or overall economic conditions. |
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HOW WE MAKE DISTRIBUTIONS TO OUR PARTNERS
Cash Distribution Policy
Our partnership agreement provides that our general partner will make a determination as to whether to make a distribution, but our partnership agreement does not require us to pay distributions at any time or in any amount. Instead, the board of directors of our general partner will adopt a cash distribution policy to be effective as of the closing of this offering that will set forth our general partners intention with respect to the distributions to be made to unitholders. Pursuant to our cash distribution policy, within 60 days after the end of each quarter, beginning with the quarter ending , 2014, we intend to make a minimum quarterly distribution of $ per unit, or $ on an annualized basis, to the extent we have sufficient cash after establishment of cash reserves and payment of fees and expenses, including payments to our general partner and its affiliates. We will prorate the distribution for the period after the closing of the offering through , 2014.
The board of directors of our general partner may change the foregoing distribution policy at any time and from time to time, and even if our cash distribution policy is not modified or revoked, the amount of distributions paid under our policy and the decision to make any distribution is determined by our general partner.
Set forth below is a summary of the significant provisions of our partnership agreement that relate to cash distributions.
Operating Surplus and Capital Surplus
General
Any distributions we make will be characterized as made from operating surplus or capital surplus. Distributions from operating surplus are made differently than cash distributions we would make from capital surplus. Operating surplus distributions will be made to our unitholders and, if we make quarterly distributions above the first target distribution level described below, to the holder of our incentive distribution rights. We do not anticipate that we will make any distributions from capital surplus. In such an event, however, any capital surplus distribution would be made pro rata to all unitholders, but the incentive distribution rights would generally not participate in any capital surplus distributions. Any distribution of capital surplus would result in a reduction of the minimum quarterly distribution and target distribution levels and, if we reduce the minimum quarterly distribution to zero and eliminate any unpaid arrearages, thereafter capital surplus would be distributed as if it were operating surplus and the incentive distribution rights would thereafter be entitled to participate in such distributions. Please see Distributions From Capital Surplus. In determining operating surplus and capital surplus, we will only take into account our proportionate share of our consolidated subsidiaries that are not wholly owned, such as OpCo.
We define operating surplus as:
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$ million (as described below); plus |
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all of our cash receipts after the closing of this offering, excluding cash from interim capital transactions (as defined below) and provided that cash receipts from the termination of any hedge contract prior to its stipulated settlement or termination date will be included in equal quarterly installments over the remaining scheduled life of such hedge contract had it not been terminated; plus |
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cash distributions paid in respect of equity issued (including incremental distributions on incentive distribution rights), other than equity issued in this offering, to finance all or a portion of expansion capital expenditures in respect of the period that commences when we enter into a binding obligation for |
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the acquisition, construction, development or expansion and ending on the earlier to occur of the date any acquisition, construction, development or expansion commences commercial service and the date that it is disposed of or abandoned; plus |
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cash distributions paid in respect of equity issued (including incremental distributions on incentive distribution rights) to pay the construction period interest on debt incurred, or to pay construction period distributions on equity issued, to finance the expansion capital expenditures referred to above, in each case, in respect of the period that commences when we enter into a binding obligation for the acquisition, construction, development or expansion and ending on the earlier to occur of the date any acquisition, construction, development or expansion commences commercial service and the date that it is disposed of or abandoned; less |
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all of our operating expenditures (as defined below) after the closing of this offering; less |
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the amount of cash reserves established by our general partner to provide funds for future operating expenditures; less |
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all working capital borrowings not repaid within twelve months after having been incurred; less |
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any cash loss realized on disposition of an investment capital expenditure. |
Disbursements made, cash received (including working capital borrowings) or cash reserves established, increased or reduced after the end of a period but on or before the date on which cash or cash equivalents will be distributed, with respect to such period, shall be deemed to have been made, received, established, increased or reduced, for purposes of determining operating surplus, within such period if our general partner so determines. Operating surplus is not limited to cash generated by our operations. For example, it includes a basket of $ million that will enable us, if we choose, to distribute as operating surplus cash we receive in the future from non-operating sources such as asset sales, issuances of securities and long-term borrowings that would otherwise be distributed as capital surplus. In addition, the effect of including, as described above, certain cash distributions on equity interests in operating surplus will be to increase operating surplus by the amount of any such cash distributions. As a result, we may also distribute as operating surplus up to the amount of any such cash that we receive from non-operating sources.
The proceeds of working capital borrowings increase operating surplus and repayments of working capital borrowings are generally operating expenditures, as described below, and thus reduce operating surplus when made. However, if a working capital borrowing is not repaid during the 12-month period following the borrowing, it will be deducted from operating surplus at the end of such period, thus decreasing operating surplus at such time. When such working capital borrowing is in fact repaid, it will be excluded from operating expenditures because operating surplus will have been previously reduced by the deduction.
We define operating expenditures in our partnership agreement, and it generally means all of our cash expenditures, including, but not limited to, taxes, reimbursement of expenses to our general partner or its affiliates, payments made under hedge contracts (provided that (i) with respect to amounts paid in connection with the initial purchase of a hedge contract, such amounts will be amortized over the life of the applicable hedge contract and (ii) payments made in connection with the termination of any hedge contract prior to the expiration of its stipulated settlement or termination date will be included in operating expenditures in equal quarterly installments over the remaining scheduled life of such hedge contract), officer and director compensation, repayment of working capital borrowings, interest on indebtedness and maintenance capital expenditures (as discussed in further detail below), provided that operating expenditures will not include:
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repayment of working capital borrowings deducted from operating surplus pursuant to the penultimate bullet point of the definition of operating surplus above when such repayment actually occurs; |
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payments (including prepayments and prepayment penalties and the purchase price of indebtedness that is repurchased and cancelled) of principal of and premium on indebtedness, other than working capital borrowings; |
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expansion capital expenditures; |
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investment capital expenditures; |
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payment of transaction expenses relating to interim capital transactions; |
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distributions to our partners (including distributions in respect of our incentive distribution rights); |
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repurchases of equity interests except to fund obligations under employee benefit plans; or |
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any other expenditures or payments using the proceeds of this offering that are described in Use of Proceeds. |
Capital Surplus
Capital surplus is defined in our partnership agreement as any cash distributed in excess of our operating surplus. Accordingly, capital surplus would generally be generated only by the following (which we refer to as interim capital transactions):
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borrowings other than working capital borrowings; |
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sales of our equity interests; |
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sales or other dispositions of assets for cash, other than inventory, accounts receivable and other assets sold in the ordinary course of business or as part of normal retirement or replacement of assets; and |
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capital contributions received. |
Characterization of Cash Distributions
Our partnership agreement provides that we treat all cash distributed as coming from operating surplus until the sum of all cash distributed since the closing of this offering (other than any distributions of proceeds of this offering) equals the operating surplus from the closing of this offering. Our partnership agreement provides that we treat any amount distributed in excess of operating surplus, regardless of its source, as distributions of capital surplus. We do not anticipate that we will make any distributions from capital surplus.
Maintenance capital expenditures reduce operating surplus, but expansion capital expenditures and investment capital expenditures do not. Maintenance capital expenditures are those cash expenditures made to maintain our long-term operating capacity or net income. Examples of maintenance capital expenditures include expenditures associated with the replacement of equipment, to the extent such expenditures are made to maintain our long-term operating capacity or net income. Cash expenditures made solely for investment purposes will not be considered maintenance capital expenditures.
Expansion capital expenditures are those cash expenditures, including transaction expenses, made to increase our operating capacity or net income over the long term. Examples of expansion capital expenditures include the acquisition of equipment, development of a new facility or the expansion of an existing facility, to the extent such expenditures are expected to expand our long-term operating capacity or net income. Expansion capital expenditures will also include interest (and related fees) on debt incurred and distributions on equity issued (including incremental distributions on incentive distribution rights) to finance all or any portion of such acquisition, construction, development or expansion in respect of the period that commences when we enter into a binding obligation for the acquisition, construction, development or expansion and ending on the earlier to occur of the date any acquisition, construction, development or expansion commences commercial service and the date that it is disposed of or abandoned. Expenditures made solely for investment purposes will not be considered expansion capital expenditures.
Investment capital expenditures are those capital expenditures, including transaction expenses, that are neither maintenance capital expenditures nor expansion capital expenditures. Investment capital expenditures
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will largely consist of capital expenditures made for investment purposes. Examples of investment capital expenditures include traditional capital expenditures for investment purposes, such as purchases of securities, as well as other cash expenditures that might be made in lieu of such traditional investment capital expenditures, such as the acquisition of an asset for investment purposes or development of assets that are in excess of the maintenance of our existing operating capacity or net income, but which are not expected to expand, for more than the short term, our operating capacity or net income.
As described above, neither investment capital expenditures nor expansion capital expenditures are operating expenditures, and thus will not reduce operating surplus. Because expansion capital expenditures include interest payments (and related fees) on debt incurred to finance all or a portion of an acquisition, development or expansion in respect of a period that begins when we enter into a binding obligation for an acquisition, construction, development or expansion and ends on the earlier to occur of the date on which such acquisition, construction, development or expansion commences commercial service and the date that it is abandoned or disposed of, such interest payments do not reduce operating surplus. Losses on disposition of an investment capital expenditure will reduce operating surplus when realized and cash receipts from an investment capital expenditure will be treated as a cash receipt for purposes of calculating operating surplus only to the extent the cash receipt is a return on principal.
Cash expenditures that are made in part for maintenance capital purposes, investment capital purposes or expansion capital purposes will be allocated as maintenance capital expenditures, investment capital expenditures or expansion capital expenditures by our general partner.
General
Our partnership agreement provides that, during the subordination period (which we describe below), the common units will have the right to receive distributions from operating surplus each quarter in an amount equal to $ per common unit, which amount is defined in our partnership agreement as the minimum quarterly distribution, plus any arrearages in the payment of the minimum quarterly distribution on the common units from prior quarters, before any distributions from operating surplus may be made on the subordinated units. These units are deemed subordinated because for a period of time, referred to as the subordination period, the subordinated units will not be entitled to receive any distributions from operating surplus until the common units have received the minimum quarterly distribution from operating surplus plus any arrearages in the payment of the minimum quarterly distribution from prior quarters. Furthermore, no arrearages will be paid on the subordinated units. The practical effect of the subordinated units is to increase the likelihood that during the subordination period there will be sufficient cash from operating surplus to pay the minimum quarterly distribution on the common units.
Determination of Subordination Period
Except as described below, the subordination period will begin on the closing date of this offering and expire on the first business day after the distribution to unitholders in respect of any quarter, beginning with the quarter ending , 2017, if each of the following has occurred:
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for each of the three consecutive, non-overlapping four-quarter periods immediately preceding that date, aggregate distributions from operating surplus equaled or exceeded the sum of the minimum quarterly distribution multiplied by the total number of common and subordinated units outstanding in each quarter in each period; |
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for the same three consecutive, non-overlapping four-quarter periods, the adjusted operating surplus (as described below) equaled or exceeded the sum of the minimum quarterly distribution multiplied by the total number of common and subordinated units outstanding during each quarter on a fully diluted weighted average basis; and |
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there are no arrearages in payment of the minimum quarterly distribution on the common units. |
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For the period after the closing of this offering through , 2014, our partnership agreement will prorate the minimum quarterly distribution based on the actual length of the period, and use such prorated distribution for all purposes, including in determining whether the test described above has been satisfied.
Early Termination of Subordination Period
Notwithstanding the foregoing, the subordination period will automatically terminate, and all of the subordinated units will convert into common units on a one-for-one basis, on the first business day after the distribution to unitholders in respect of any quarter, beginning with the quarter ending , 2015, if each of the following has occurred:
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for the four-quarter period immediately preceding that date, aggregate distributions from operating surplus exceeded the product of 150.0% of the minimum quarterly distribution multiplied by the total number of common units and subordinated units outstanding in each quarter in the period; |
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for the same four-quarter period, the adjusted operating surplus equaled or exceeded the product of 150.0% of the minimum quarterly distribution multiplied by the total number of common and subordinated units outstanding during each quarter on a fully diluted weighted average basis, plus the related distribution on the incentive distribution rights; and |
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there are no arrearages in payment of the minimum quarterly distributions on the common units. |
Conversion Upon Removal of the General Partner
In addition, if the unitholders remove our general partner other than for cause during the subordination period, the subordinated units held by any person will immediately and automatically convert into common units on a one-for-one basis, provided (i) neither such person nor any of its affiliates voted any of its units in favor of the removal and (ii) such person is not an affiliate of the successor general partner.
Expiration of the Subordination Period
When the subordination period ends, each outstanding subordinated unit will convert into one common unit and will then participate pro rata with the other common units in distributions.
Adjusted Operating Surplus
Adjusted operating surplus is intended to generally reflect the cash generated from operations during a particular period and therefore excludes net increases in working capital borrowings and net drawdowns of reserves of cash generated in prior periods if not utilized to pay expenses during that period. Adjusted operating surplus for any period consists of:
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operating surplus generated with respect to that period (excluding any amounts attributable to the items described in the first bullet point under Operating Surplus and Capital SurplusOperating Surplus above); less |
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any net increase during that period in working capital borrowings; less |
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any net decrease during that period in cash reserves for operating expenditures not relating to an operating expenditure made during that period; less |
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any expenditures that are not operating expenditures solely because of the provision described in the last bullet point describing operating expenditures above; plus |
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any net decrease during that period in working capital borrowings; plus |
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any net increase during that period in cash reserves for operating expenditures required by any debt instrument for the repayment of principal, interest or premium; plus |
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any net decrease made in subsequent periods in cash reserves for operating expenditures initially established during such period to the extent such decrease results in a reduction of adjusted operating surplus in subsequent periods pursuant to the third bullet point above. |
Any disbursements received, cash received (including working capital borrowings) or cash reserves established, increased or reduced after the end of a period that the general partner determines to include in operating surplus for such period shall also be deemed to have been made, received or established, increased or reduced in such period for purposes of determining adjusted operating surplus for such period.
Any amount of the purchase price payable by Westlake under the Ethylene Supply Agreement on account of prior year operating costs in excess of the budgeted amount or actual production below the planned production will be operating surplus in the quarter in which such amounts are actually received. An estimated, prorated amount of such payments, however, shall be included in adjusted operating surplus by our general partner in the manner generally described below. As described elsewhere in this prospectus, if OpCos actual operating costs in any given year exceed the estimated amount upon which the purchase price is based, or OpCos actual production is below the production amount upon which the per unit operating cost is based, the purchase price payable for the following year will be increased by the amount of the excess. The recovery of any shortfall in payment of the portion of OpCos operating costs associated with the percentage of its production capacity purchased by Westlake under the Ethylene Supply Agreement should thus be settled in the year following the calendar year to which such shortfall relates. In order to accommodate the rolling four-quarter test associated with expiration of the subordination period (relative to any after the period payment associated with a shortfall), to the extent that the actual operating costs in a particular quarter or quarters are greater than the budgeted amount for such period, or actual production is below the production amount upon which the per unit operating cost is based, our general partner shall add to adjusted operating surplus for such period an amount equal to the resulting shortfall. With respect to a quarter in which recovery of any shortfall actually occurs, adjusted operating surplus shall be reduced by an amount equal to the amount of the recovery.
Distributions From Operating Surplus During the Subordination Period
If we make a distribution from operating surplus for any quarter ending before the end of the subordination period, our partnership agreement requires that we make the distribution in the following manner:
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first , to the common unitholders, pro rata, until we distribute for each common unit an amount equal to the minimum quarterly distribution for that quarter and any arrearages in payment of the minimum quarterly distribution on the common units for any prior quarters; |
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second , to the subordinated unitholders, pro rata, until we distribute for each subordinated unit an amount equal to the minimum quarterly distribution for that quarter; and |
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thereafter , in the manner described in Incentive Distribution Rights below. |
Distributions From Operating Surplus After the Subordination Period
If we make distributions of cash from operating surplus for any quarter ending after the subordination period, our partnership agreement requires that we make the distribution in the following manner:
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first , to all common unitholders, pro rata, until we distribute for each common unit an amount equal to the minimum quarterly distribution for that quarter; and |
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thereafter , in the manner described in Incentive Distribution Rights below. |
Our general partner owns a non-economic general partner interest in us, which does not entitle it to receive cash distributions. However, our general partner may in the future own common units or other equity interests in us and will be entitled to receive distributions on any such interests.
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Incentive distribution rights represent the right to receive increasing percentages (15.0%, 25.0% and 50.0%) of quarterly distributions from operating surplus after the minimum quarterly distribution and the target distribution levels have been achieved. Westlake currently holds the incentive distribution rights, but may transfer these rights separately from its general partner interest.
If for any quarter:
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we have distributed cash from operating surplus to the common and subordinated unitholders in an amount equal to the minimum quarterly distribution; and |
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we have distributed cash from operating surplus to the common unitholders in an amount necessary to eliminate any cumulative arrearages in payment of the minimum quarterly distribution; |
then we will make additional distributions from operating surplus for that quarter among the unitholders and the holders of the incentive distribution rights in the following manner:
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first , to all unitholders, pro rata, until each unitholder receives a total of $ per unit for that quarter (the first target distribution); |
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second , 85.0% to all common unitholders and subordinated unitholders, pro rata, and 15.0% to the holders of our incentive distribution rights, until each unitholder receives a total of $ per unit for that quarter (the second target distribution); |
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third , 75.0% to all common unitholders and subordinated unitholders, pro rata, and 25.0% to the holders of our incentive distribution rights, until each unitholder receives a total of $ per unit for that quarter (the third target distribution); and |
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thereafter , 50.0% to all common unitholders and subordinated unitholders, pro rata, and 50.0% to the holders of our incentive distribution rights. |
Percentage Allocations of Distributions From Operating Surplus
The following table illustrates the percentage allocations of distributions from operating surplus between the unitholders and the holders of our incentive distribution rights based on the specified target distribution levels. The amounts set forth under the column heading Marginal Percentage Interest in Distributions are the percentage interests of the holders of our incentive distribution rights and the unitholders in any distributions from operating surplus we distribute up to and including the corresponding amount in the column Total Quarterly Distribution Per Unit. The percentage interests shown for our unitholders and the holders of our incentive distribution rights for the minimum quarterly distribution are also applicable to quarterly distribution amounts that are less than the minimum quarterly distribution. The percentage interests set forth below assume there are no arrearages on common units.
Total Quarterly Distribution Per Unit | Marginal Percentage Interest in Distributions | |||||||||
Unitholders | IDR Holders | |||||||||
Minimum Quarterly Distribution |
up to $ | 100.0 | % | 0 | % | |||||
First Target Distribution |
above $ up to $ | 100.0 | % | 0 | % | |||||
Second Target Distribution |
above $ up to $ | 85.0 | % | 15.0 | % | |||||
Third Target Distribution |
above $ up to $ | 75.0 | % | 25.0 | % | |||||
Thereafter |
above $ | 50.0 | % | 50.0 | % |
IDR Holders Right to Reset Incentive Distribution Levels
Westlake, as the initial holder of our incentive distribution rights, has the right after we have made the third target distribution for four consecutive quarters to elect to relinquish the right to receive incentive distribution payments based on the initial target distribution levels and to reset, at higher levels, the target distribution levels
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upon which the incentive distribution payments would be set. If Westlake transfers all or a portion of the incentive distribution rights in the future, then the holder or holders of a majority of our incentive distribution rights will be entitled to exercise this right. The following discussion assumes that Westlake holds all of the incentive distribution rights at the time that a reset election is made.
The right to reset the target distribution levels upon which the incentive distributions are based may be exercised, without approval of our unitholders or the conflicts committee of our general partner, at any time when there are no subordinated units outstanding and we have made cash distributions in excess of the then-applicable third target distribution for the prior four consecutive fiscal quarters. The reset target distribution levels will be higher than the most recent per unit distribution level prior to the reset election and higher than the target distribution levels prior to the reset such that there will be no incentive distributions paid under the reset target distribution levels until cash distributions per unit following the reset event increase as described below. Because the reset target distribution levels will be higher than the most recent per unit distribution level prior to the reset, if we were to issue additional common units after the reset and maintain the per unit distribution level, no additional incentive distributions would be payable. By contrast, if there were no such reset and we were to issue additional common units and maintain the per unit distribution level, additional incentive distributions would have to be paid based on the additional number of outstanding common units and the percentage interest of the incentive distribution rights above the target distribution levels. Thus, the exercise of the reset right would lower our cost of equity capital. Westlake could exercise this reset right in order to facilitate acquisitions or internal growth projects that would otherwise not be sufficiently accretive to cash distributions per common unit, taking into account the existing levels of incentive distribution payments being made.
In connection with the resetting of the target distribution levels and the corresponding relinquishment by Westlake of incentive distribution payments based on the target cash distributions prior to the reset, Westlake will be entitled to receive a number of newly issued common units based on the formula described below that takes into account the cash parity value of the cash distributions related to the incentive distribution rights for the quarter prior to the reset event as compared to the cash distribution per common unit in such quarter.
The number of common units to be issued in connection with a resetting of the minimum quarterly distribution amount and the target distribution levels would equal the quotient determined by dividing (x) the amount of cash distributions received in respect of the incentive distribution rights for the fiscal quarter ended immediately prior to the date of such reset election by (y) the amount of cash distributed per common unit with respect to such quarter.
Following a reset election, a baseline minimum quarterly distribution amount will be calculated as an amount equal to the cash distribution amount per unit for the fiscal quarter immediately preceding the reset election (which amount we refer to as the reset minimum quarterly distribution) and the target distribution levels will be reset to be correspondingly higher such that we would make distributions from operating surplus for each quarter thereafter as follows:
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first , to all common unitholders, pro rata, until each unitholder receives an amount per unit for that quarter equal to 115.0% of the reset minimum quarterly distribution; |
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second , 85.0% to all common unitholders, pro rata, and 15.0% to the holders of our incentive distribution rights, until each unitholder receives an amount per unit for that quarter equal to 125.0% of the reset minimum quarterly distribution; |
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third , 75.0% to all common unitholders, pro rata, and 25.0% to the holders of our incentive distribution rights, until each unitholder receives an amount per unit for that quarter equal to 150.0% of the reset minimum quarterly distribution; and |
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thereafter , 50.0% to all common unitholders, pro rata, and 50.0% to the holders of our incentive distribution rights. |
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Because a reset election can only occur after the subordination period expires, the reset minimum quarterly distribution will have no significance except as a baseline for the target distribution levels.
The following table illustrates the percentage allocation of distributions from operating surplus between the unitholders and the holders of our incentive distribution rights at various distribution levels (i) pursuant to the distribution provisions of our partnership agreement in effect at the closing of this offering, as well as (ii) following a hypothetical reset of the target distribution levels based on the assumption that the quarterly distribution amount per common unit during the fiscal quarter immediately preceding the reset election was $ .
Quarterly Distribution Per
Unit Prior to Reset |
Unitholders |
Incentive
Distribution Rights Holders |
Quarterly Distribution Per
Unit Following Hypothetical Reset |
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Minimum Quarterly Distribution |
up to $ | 100.0 | % | | up to $ (1) | |||||||
First Target Distribution |
above $ up to $ | 100.0 | % | | above $ up to $ (2) | |||||||
Second Target Distribution |
above $ up to $ | 85.0 | % | 15.0 | % | above $ up to $ (3) | ||||||
Third Target Distribution |
above $ up to $ | 75.0 | % | 25.0 | % | above $ up to $ (4) | ||||||
Thereafter |
above $ | 50.0 | % | 50.0 | % | above $ |
(1) | This amount is equal to the hypothetical reset minimum quarterly distribution. |
(2) | This amount is 115.0% of the hypothetical reset minimum quarterly distribution. |
(3) | This amount is 125.0% of the hypothetical reset minimum quarterly distribution. |
(4) | This amount is 150.0% of the hypothetical reset minimum quarterly distribution. |
The following table illustrates the total amount of distributions from operating surplus that would be distributed to the unitholders and the holders of incentive distribution rights, based on the amount distributed for the quarter immediately prior to the reset. The table assumes that immediately prior to the reset there would be common units outstanding and the distribution to each common unit would be $ for the quarter prior to the reset.
Quarterly Distribution per Unit
Prior to Reset |
Cash
Distributions to Common Unitholders Prior to Reset |
Cash
Distributions to Holders of Incentive Distribution Rights Prior to Reset |
Total
Distributions |
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Minimum Quarterly Distribution |
up to $ | $ | $ | | $ | |||||||||
First Target Distribution |
above $ up to $ | | ||||||||||||
Second Target Distribution |
above $ up to $ | |||||||||||||
Third Target Distribution |
above $ up to $ | |||||||||||||
Thereafter |
above $ | |||||||||||||
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$ | $ | $ | ||||||||||||
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The following table illustrates the total amount of distributions from operating surplus that would be distributed to the unitholders and the holders of our incentive distribution rights, with respect to the quarter in which the reset occurs. The table reflects that as a result of the reset there would be common units outstanding and the distribution to each common unit would be $ . The number of common units to be issued upon the reset was calculated by dividing (i) the amount received in respect of the incentive distribution rights for the quarter prior to the reset as shown in the table above, or $ , by (ii) the cash distributed on each common unit for the quarter prior to the reset as shown in the table above, or $ .
Quarterly Distribution per Unit
Prior to Reset |
Cash
Distributions to Common Unitholders Prior to Reset |
Cash Distributions to Holders
of
Incentive Distribution Rights After Reset |
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Common
Units (1) |
Incentive
Distribution Rights |
Total |
Total
Distributions |
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Minimum Quarterly Distribution |
up to $ | $ | $ | $ | | $ | $ | |||||||||||||||
First Target Distribution |
above $ up to $ | | | | | | ||||||||||||||||
Second Target Distribution |
above $ up to $ | | | | | | ||||||||||||||||
Third Target Distribution |
above $ up to $ | | | | | | ||||||||||||||||
Thereafter |
above $ | | | | | | ||||||||||||||||
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$ | $ | $ | | $ | $ | |||||||||||||||||
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(1) | Represents distributions in respect of the common units issued upon the reset. |
The holders of incentive distribution rights will be entitled to cause the target distribution levels to be reset on more than one occasion. There are no restrictions on the ability to exercise their reset right multiple times, but the requirements for exercise must be met each time. Because one of the requirements is that we make cash distributions in excess of the then-applicable third target distribution for the prior four consecutive fiscal quarters, a minimum of four quarters must elapse between each reset.
Distributions From Capital Surplus
How Distributions From Capital Surplus Will Be Made
Our partnership agreement requires that we make distributions from capital surplus, if any, in the following manner:
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first , to all common unitholders and subordinated unitholders, pro rata, until the minimum quarterly distribution is reduced to zero, as described below; |
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second , to the common unitholders, pro rata, until we distribute for each common unit an amount from capital surplus equal to any unpaid arrearages in payment of the minimum quarterly distribution on the common units; and |
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thereafter , we will make all distributions from capital surplus as if they were from operating surplus. |
Effect of a Distribution From Capital Surplus
Our partnership agreement treats a distribution of capital surplus as the repayment of the initial unit price from this initial public offering, which is a return of capital. Each time a distribution of capital surplus is made, the minimum quarterly distribution and the target distribution levels will be reduced in the same proportion as the distribution of capital surplus to the fair market value of the common units prior to the announcement of the
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distribution. Because distributions of capital surplus will reduce the minimum quarterly distribution and target distribution levels after any of these distributions are made, it may be easier for Westlake to receive incentive distributions and for the subordinated units to convert into common units. However, any distribution of capital surplus before the minimum quarterly distribution is reduced to zero cannot be applied to the payment of the minimum quarterly distribution or any arrearages.
Once we reduce the minimum quarterly distribution and target distribution levels to zero, all future distributions will be made such that 50.0% is paid to all unitholders, pro rata, and 50.0% is paid to the holder or holders of incentive distribution rights, pro rata.
Adjustment to the Minimum Quarterly Distribution and Target Distribution Levels
In addition to adjusting the minimum quarterly distribution and target distribution levels to reflect a distribution of capital surplus, if we combine our common units into fewer common units or subdivide our common units into a greater number of common units, our partnership agreement specifies that the following items will be proportionately adjusted:
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the minimum quarterly distribution; |
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the target distribution levels; |
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the initial unit price, as described below under Distributions of Cash Upon Liquidation; |
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the per unit amount of any outstanding arrearages in payment of the minimum quarterly distribution on the common units; and |
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the number of subordinated units. |
For example, if a two-for-one split of the common units should occur, the minimum quarterly distribution, the target distribution levels and the initial unit price would each be reduced to 50.0% of its initial level. If we combine our common units into a lesser number of units or subdivide our common units into a greater number of units, we will combine or subdivide our subordinated units using the same ratio applied to the common units. We will not make any adjustment by reason of the issuance of additional units for cash or property.
In addition, if as a result of a change in law or interpretation thereof, we or any of our subsidiaries is treated as an association taxable as a corporation or is otherwise subject to additional taxation as an entity for U.S. federal, state, local or non-U.S. income or withholding tax purposes, our general partner may, in its sole discretion, reduce the minimum quarterly distribution and the target distribution levels for each quarter by multiplying each distribution level by a fraction, the numerator of which is cash for that quarter (after deducting our general partners estimate of our additional aggregate liability for the quarter for such income and withholdings taxes payable by reason of such change in law or interpretation) and the denominator of which is the sum of (i) cash for that quarter, plus (ii) our general partners estimate of our additional aggregate liability for the quarter for such income and withholding taxes payable by reason of such change in law or interpretation thereof. To the extent that the actual tax liability differs from the estimated tax liability for any quarter, the difference will be accounted for in distributions with respect to subsequent quarters.
Distributions of Cash Upon Liquidation
General
If we dissolve in accordance with the partnership agreement, we will sell or otherwise dispose of our assets in a process called liquidation. We will first apply the proceeds of liquidation to the payment of our creditors. We will distribute any remaining proceeds to the unitholders and the holders of the incentive distribution rights, in accordance with their capital account balances, as adjusted to reflect any gain or loss upon the sale or other disposition of our assets in liquidation.
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The allocations of gain and loss upon liquidation are intended, to the extent possible, to entitle the holders of units to a repayment of the initial value contributed by unitholders for their units in this offering, which we refer to as the initial unit price for each unit. The allocations of gain and loss upon liquidation are also intended, to the extent possible, to entitle the holders of common units to a preference over the holders of subordinated units upon our liquidation, to the extent required to permit common unitholders to receive their initial unit price plus the minimum quarterly distribution for the quarter during which liquidation occurs plus any unpaid arrearages in payment of the minimum quarterly distribution on the common units. However, there may not be sufficient gain upon our liquidation to enable the common unitholders to fully recover all of these amounts, and cash may be distributed to the holders of subordinated units. Any further net gain recognized upon liquidation will be allocated in a manner that takes into account the incentive distribution rights.
Manner of Adjustments for Gain
The manner of the adjustment for gain is set forth in the partnership agreement. If our liquidation occurs before the end of the subordination period, we will generally allocate any gain to the partners in the following manner:
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first , to our general partner to the extent of certain prior losses specially allocated to our general partner; |
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second , to the common unitholders, pro rata, until the capital account for each common unit is equal to the sum of: (1) the initial unit price; (2) the amount of the minimum quarterly distribution for the quarter during which our liquidation occurs; and (3) any unpaid arrearages in payment of the minimum quarterly distribution; |
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third , to the subordinated unitholders, pro rata, until the capital account for each subordinated unit is equal to the sum of: (1) the initial unit price; and (2) the amount of the minimum quarterly distribution for the quarter during which our liquidation occurs; |
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fourth , to all unitholders, pro rata, until we allocate under this bullet an amount per unit equal to: (1) the sum of the excess of the first target distribution per unit over the minimum quarterly distribution per unit for each quarter of our existence; less (2) the cumulative amount per unit of any distributions from operating surplus in excess of the minimum quarterly distribution per unit that we distributed to the unitholders, pro rata, for each quarter of our existence; |
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fifth , 85.0% to all unitholders, pro rata, and 15.0% to the holders of our incentive distribution rights, until we allocate under this bullet an amount per unit equal to: (1) the sum of the excess of the second target distribution per unit over the first target distribution per unit for each quarter of our existence; less (2) the cumulative amount per unit of any distributions from operating surplus in excess of the first target distribution per unit that we distributed 85.0% to the unitholders, pro rata, and 15.0% to the holders of our incentive distribution rights for each quarter of our existence; |
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sixth , 75.0% to all unitholders, pro rata, and 25.0% to the holders of our incentive distribution rights, until we allocate under this bullet an amount per unit equal to: (1) the sum of the excess of the third target distribution per unit over the second target distribution per unit for each quarter of our existence; less (2) the cumulative amount per unit of any distributions from operating surplus in excess of the second target distribution per unit that we distributed 75.0% to the unitholders, pro rata, and 25.0% to the holders of our incentive distribution rights for each quarter of our existence; and |
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thereafter , 50.0% to all unitholders, pro rata, and 50.0% to holders of our incentive distribution rights. |
If the liquidation occurs after the end of the subordination period, the distinction between common units and subordinated units will disappear, so that clause (3) of the second bullet point above and all of the third bullet point above will no longer be applicable.
We may make special allocations of gain among the partners in a manner to create economic uniformity among the common units into which the subordinated units convert and the common units held by public unitholders.
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Manner of Adjustments for Losses
If our liquidation occurs before the end of the subordination period, we will generally allocate any loss to our general partner and the unitholders in the following manner:
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first , to holders of subordinated units in proportion to the positive balances in their capital accounts until the capital accounts of the subordinated unitholders have been reduced to zero; |
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second , to the holders of common units in proportion to the positive balances in their capital accounts, until the capital accounts of the common unitholders have been reduced to zero; and |
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thereafter , 100.0% to our general partner. |
If the liquidation occurs after the end of the subordination period, the distinction between common units and subordinated units will disappear, so that all of the first bullet point above will no longer be applicable.
We may make special allocations of loss among the partners in a manner to create economic uniformity among the common units into which the subordinated units convert and the common units held by public unitholders.
Adjustments to Capital Accounts
Our partnership agreement requires that we make adjustments to capital accounts upon the issuance of additional units. In this regard, our partnership agreement specifies that we allocate any unrealized and, for federal income tax purposes, unrecognized gain resulting from the adjustments to the unitholders and the holders of our incentive distribution rights in the same manner as we allocate gain upon liquidation. In the event that we make positive adjustments to the capital accounts upon the issuance of additional units, our partnership agreement requires that we generally allocate any later negative adjustments to the capital accounts resulting from the issuance of additional units or upon our liquidation in a manner that results, to the extent possible, in the partners capital account balances equaling the amount that they would have been if no earlier positive adjustments to the capital accounts had been made. In contrast to the allocations of gain, and except as provided above, we generally will allocate any unrealized and unrecognized loss resulting from the adjustments to capital accounts upon the issuance of additional units to the unitholders and the holders of our incentive distribution rights based on their respective percentage ownership of us. In this manner, prior to the end of the subordination period, we generally will allocate any such loss equally with respect to our common and subordinated units. If we make negative adjustments to the capital accounts as a result of such loss, future positive adjustments resulting from the issuance of additional units will be allocated in a manner designed to reverse the prior negative adjustments, and special allocations will be made upon liquidation in a manner that results, to the extent possible, in our unitholders capital account balances equaling the amounts they would have been if no earlier adjustments for loss had been made.
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SELECTED HISTORICAL AND PRO FORMA COMBINED CARVE-OUT FINANCIAL AND OPERATING DATA
We were formed on March 14, 2014 and have had no operations since formation. Therefore, our historical financial data is not included in the following table. The following table shows selected historical combined carve-out financial data of the predecessor of Westlake Chemical Partners LP (the Predecessor). The following table also shows the unaudited selected pro forma combined carve-out financial data of the Partnership for the periods and as of the dates indicated. The selected historical combined carve-out balance sheet data presented as of December 31, 2013 and 2012 and the statement of operations data for the years ended December 31, 2013, 2012, and 2011 are derived from the audited historical combined carve-out financial statements of our Predecessor, which are included elsewhere in this prospectus. The selected historical combined carve-out balance sheet data presented as of March 31, 2013 and December 31, 2011, 2010 and 2009 and the statement of operations data for the years ended December 31, 2010 and 2009 are derived from the unaudited historical combined carve-out financial statements of our Predecessor, which are not included in this prospectus. The selected historical combined carve-out balance sheet presented as of March 31, 2014 and the statement of operations data for the three months ended March 31, 2014 and 2013 are derived from the unaudited historical combined carve-out financial statements of our Predecessor, which are included elsewhere in this prospectus.
The historical combined carve-out financial statements of our Predecessor reflect Westlakes entire ethylene business, including, but not limited to, procuring feedstock, managing inventory and commodity risk and transporting ethylene from manufacturing facilities. Our assets on the closing date of the offering will consist only of our 10% limited partner interest in OpCo. OpCos assets will consist of Lake Charles Olefins, Calvert City Olefins and the Longview Pipeline. OpCos financial results will be consolidated into ours for financial reporting purposes. The following table should be read together with, and is qualified in its entirety by reference to, the audited and unaudited historical combined carve-out financial statements and the accompanying notes included elsewhere in this prospectus. The following table should also be read together with Managements Discussion and Analysis of Financial Condition and Results of Operations.
The selected unaudited pro forma combined carve-out financial data presented in the following table as of March 31, 2014 and for the three months ended March 31, 2014 and the year ended December 31, 2013, are derived from the unaudited pro forma combined carve-out financial statements included elsewhere in this prospectus. The unaudited pro forma combined carve-out balance sheet assumes the offering and the related transactions occurred as of March 31, 2014, and the unaudited pro forma combined carve-out statements of operations for the three months ended March 31, 2014 and the year ended December 31, 2013, assumes the offering and the related transactions occurred as of January 1, 2013. These transactions include, and the unaudited pro forma combined carve-out financial statements give effect to, the following:
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Westlakes contribution to OpCo of Lake Charles Olefins, Calvert City Olefins and the Longview Pipeline; |
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the transfer by Westlake to us of a limited partner interest in OpCo, and a 100% interest in Westlake Chemical OpCo GP LLC, which holds the general partner interest in OpCo, in exchange for the issuance by us to Westlake of common units, subordinated units and the incentive distribution rights; |
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the consummation of this offering and our issuance of common units to the public at an assumed initial offering price of $ per unit and the use of proceeds therefrom as described under Use of Proceeds; and |
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OpCos execution of the Ethylene Sales Agreement, omnibus agreement and services and secondment agreement with Westlake. |
The unaudited pro forma combined carve-out financial statements do not give effect to an estimated $3.0 million in incremental general and administrative expenses that we expect to incur annually as a result of being a separate, publicly traded partnership, including costs associated with preparing and filing annual and quarterly reports to unit holders, financial statement audits, tax return and Schedule K-1 preparation and distribution, investor relations activities, registrar and transfer agent fees and independent director compensation.
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The following table presents the non-GAAP financial measure of EBITDA, which we use in our business. For a definition of EBITDA and a reconciliation to our most directly comparable financial measures calculated and presented in accordance with GAAP, please read Non-GAAP Financial Measure.
Westlake Chemical Partners LP Predecessor Historical |
Westlake Chemical
Partners LP Pro Forma |
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Three Months Ended
March 31, |
Year Ended December 31, |
Three
Months Ended March 31, |
Year Ended
December 31, |
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2014 | 2013 | 2013 | 2012 | 2011 | 2010 | 2009 | 2014 | 2013 | ||||||||||||||||||||||||||||
(unaudited) |
(unaudited) | (unaudited) | (unaudited) | (unaudited) | (unaudited) | |||||||||||||||||||||||||||||||
(dollars in thousands, except per unit data) | ||||||||||||||||||||||||||||||||||||
Combined Carve-out Statement of Operations Data : |
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Total net sales |
$ | 560,014 | $ | 500,917 | $ | 2,127,747 | $ | 2,249,098 | $ | 2,251,043 | $ | 1,837,516 | $ | 1,118,582 | $ | 333,346 | $ | 1,198,805 | ||||||||||||||||||
Gross profit (loss) |
232,314 | 190,010 | 872,607 | 635,652 | 409,098 | 309,717 | (292 | ) | 79,592 | 318,464 | ||||||||||||||||||||||||||
Selling, general and administrative expenses |
7,778 | 6,171 | 25,451 | 24,103 | 24,312 | 18,649 | 15,799 | 6,252 | 18,942 | |||||||||||||||||||||||||||
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Income (loss) from operations |
224,536 | 183,839 | 847,156 | 611,549 | 384,786 | 291,068 | (16,091 | ) | 73,340 | 299,522 | ||||||||||||||||||||||||||
Interest expenseWestlake |
(3,591 | ) | (950 | ) | (8,032 | ) | (8,937 | ) | (8,947 | ) | (8,939 | ) | (9,001 | ) | (1,583 | ) | (2,531 | ) | ||||||||||||||||||
Other income (expense), net |
1,252 | 4,045 | 7,701 | 4,186 | 2,804 | 524 | 469 | (12 | ) | (168 | ) | |||||||||||||||||||||||||
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Income (loss) before income taxes |
222,197 | 186,934 | 846,825 | 606,798 | 378,643 | 282,653 | (24,623 | ) | 71,745 | 296,823 | ||||||||||||||||||||||||||
Provision for (benefit from) income taxes |
78,323 | 66,209 | 300,279 | 210,878 | 131,670 | 98,658 | (10,162 | ) | 331 | 1,316 | ||||||||||||||||||||||||||
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Net income (loss) |
$ | 143,874 | $ | 120,725 | $ | 546,546 | $ | 395,920 | $ | 246,973 | $ | 183,995 | $ | (14,461 | ) | $ | 71,414 | $ | 295,507 | |||||||||||||||||
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Net income attributable to Westlake Chemical Partners LP |
$ | 7,141 | $ | 29,551 | ||||||||||||||||||||||||||||||||
Limited partners interest in net income attributable to Westlake Chemical Partners LP |
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Common units |
$ | $ | ||||||||||||||||||||||||||||||||||
Subordinated units |
$ | $ | ||||||||||||||||||||||||||||||||||
Net income per limited partner unit (basic and diluted): |
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Common units |
$ | $ | ||||||||||||||||||||||||||||||||||
Subordinated units |
$ | $ | ||||||||||||||||||||||||||||||||||
Combined Carve-out Balance Sheet Data (end of period): |
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Working capital |
$ | 21,376 | $ | (34,610 | ) | $ | 43,642 | $ | 40,336 | $ | 90,420 | $ | 68,348 | $ | 58,807 | $ | ||||||||||||||||||||
Total assets |
1,020,402 | 916,271 | 1,041,474 | 834,843 | 800,376 | 720,636 | 722,443 | |||||||||||||||||||||||||||||
Total debt |
302,357 | 83,398 | 252,973 | 253,000 | 253,000 | 253,000 | 253,000 | |||||||||||||||||||||||||||||
Net investment/Partners capital |
407,093 | 467,692 | 455,432 | 273,812 | 216,705 | 166,811 | 175,620 | |||||||||||||||||||||||||||||
Combined Carve-out Cash Flow Data: |
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Cash flow from: |
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Operating activities |
$ | 197,886 | $ | 162,991 | $ | 602,509 | $ | 496,821 | $ | 268,716 | $ | 215,110 | $ | 12,030 | ||||||||||||||||||||||
Investing activities |
(51,714 | ) | (65,730 | ) | (230,050 | ) | (158,008 | ) | (71,637 | ) | (22,306 | ) | (40,878 | ) | ||||||||||||||||||||||
Financing activities |
(146,172 | ) | (97,261 | ) | (372,459 | ) | (338,813 | ) | (197,079 | ) | (192,804 | ) | 28,848 | |||||||||||||||||||||||
Other Data: |
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Depreciation and amortization |
$ | 19,014 | $ | 16,035 | $ | 73,463 | $ | 64,257 | $ | 57,193 | $ | 56,118 | $ | 52,022 | ||||||||||||||||||||||
Capital expenditures |
51,305 | 65,051 | 223,130 | 158,440 | 73,681 | 19,955 | 33,872 | |||||||||||||||||||||||||||||
EBITDA (1) |
244,802 | 203,919 | 928,320 | 679,992 | 444,783 | 347,710 | 36,400 | $ | 90,902 | $ | 369,609 | |||||||||||||||||||||||||
EBITDA attributable to Westlake Chemical Partners LP |
$ | 9,090 | $ | 36,961 |
(1) | For a definition of EBITDA and a reconciliation of EBITDA to our most directly comparable financial measures calculated and presented in accordance with GAAP, please read Non-GAAP Financial Measure. |
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We define EBITDA as net income before interest expense, income taxes, depreciation and amortization. EBITDA is not a measure made in accordance with GAAP. EBITDA is used as a supplemental financial measure by management and by external users of our financial statements, such as investors, lenders and rating agencies, to assess:
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our operating performance as compared to that of other publicly traded partnerships, without regard to historical cost basis or capital structure; |
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our ability to incur and service debt and fund capital expenditures; and |
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the viability of acquisitions and other capital expenditure projects and the returns on investment of various investment opportunities. |
We believe that the presentation of EBITDA in this prospectus provides useful information to investors in assessing our financial condition and results of operations. The GAAP measures most directly comparable to EBITDA are net income and cash flow from operating activities. EBITDA should not be considered as an alternative to GAAP net income or cash flow from operating activities. EBITDA has important limitations as an analytical tool because it excludes some but not all items that affect net income and cash flow from operating activities. You should not consider EBITDA in isolation or as a substitute for analysis of our results as reported under GAAP. Additionally, because EBITDA may be defined differently by other companies in our industry, our definition of EBITDA may not be comparable to similarly titled measures of other companies, thereby diminishing its utility.
The following table presents a reconciliation of EBITDA to net income, on a historical basis and pro forma basis, and cash flow from operating activities, on a historical basis.
Westlake Chemical Partners LP Predecessor Historical |
Westlake Chemical
Partners LP Pro Forma |
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Three Months Ended
March 31, |
Year Ended December 31, |
Three Months
Ended March 31, |
Year Ended
December 31, |
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2014 | 2013 | 2013 | 2012 | 2011 | 2010 | 2009 | 2014 | 2013 | ||||||||||||||||||||||||||||
(unaudited) | (unaudited) | (unaudited) | (unaudited) | (unaudited) | (unaudited) | |||||||||||||||||||||||||||||||
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Reconciliation of EBITDA and Pro Forma EBITDA to net income and cash flow from operating activities |
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EBITDA attributable to Westlake Chemical Partners LP |
$ | 9,090 | $ | 36,961 | ||||||||||||||||||||||||||||||||
Add: EBITDA attributable to noncontrolling interest in OpCo |
81,812 | 332,648 | ||||||||||||||||||||||||||||||||||
EBITDA |
$ | 244,802 | $ | 203,919 | $ | 928,320 | $ | 679,992 | $ | 444,783 | $ | 347,710 | $ | 36,400 | 90,902 | 369,609 | ||||||||||||||||||||
Less: |
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(Provision for) benefit from income taxes |
(78,323 | ) | (66,209 | ) | (300,279 | ) | (210,878 | ) | (131,670 | ) | (98,658 | ) | 10,162 | (331 | ) | (1,316 | ) | |||||||||||||||||||
Interest expense |
(3,591 | ) | (950 | ) | (8,032 | ) | (8,937 | ) | (8,947 | ) | (8,939 | ) | (9,001 | ) | (1,583 | ) | (2,531 | ) | ||||||||||||||||||
Depreciation and amortization |
(19,014 | ) | (16,035 | ) | (73,463 | ) | (64,257 | ) | (57,193 | ) | (56,118 | ) | (52,022 | ) | (17,574 | ) | (70,255 | ) | ||||||||||||||||||
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Net income (loss) |
$ | 143,874 | $ | 120,725 | $ | 546,546 | $ | 395,920 | $ | 246,973 | $ | 183,995 | $ | (14,461 | ) | $ | 71,414 | $ | 295,507 | |||||||||||||||||
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Changes in operating assets and liabilities, and other |
50,380 | 33,369 | 16,562 | 105,804 | 22,907 | 35,000 | 17,825 | |||||||||||||||||||||||||||||
Equity in loss (income) of joint venture, net of dividends |
72 | (389 | ) | 402 | 277 | (364 | ) | (548 | ) | | ||||||||||||||||||||||||||
Deferred income taxes |
3,267 | 8,104 | 37,054 | (8,096 | ) | (1,859 | ) | (3,531 | ) | 5,720 | ||||||||||||||||||||||||||
Loss from disposition of fixed assets |
353 | 1,438 | 1,905 | 2,834 | 30 | 194 | 2,307 | |||||||||||||||||||||||||||||
(Recovery of) provision for doubtful accounts |
(60 | ) | (256 | ) | 40 | 82 | 1,029 | | 639 | |||||||||||||||||||||||||||
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Cash flow from operating activities |
$ | 197,886 | $ | 162,991 | $ | 602,509 | $ | 496,821 | $ | 268,716 | $ | 215,110 | $ | 12,030 | ||||||||||||||||||||||
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79
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
You should read the following discussion of the financial condition and results of operations of the predecessor of Westlake Chemical Partners LP (our Predecessor) in conjunction with the historical combined carve-out financial statements and notes of Westlake Chemical Partners LP Predecessor and the unaudited pro forma combined carve-out financial statements for Westlake Chemical Partners LP included elsewhere in this prospectus. Among other things, those historical and unaudited pro forma combined carve-out 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 included elsewhere in this prospectus.
We are a Delaware limited partnership recently formed by Westlake to operate, acquire and develop ethylene production facilities and related assets. At the consummation of this offering, we will own a 10% limited partner interest and the general partner interest in Westlake Chemical OpCo LP (OpCo), a limited partnership formed by Westlake Chemical Corporation (Westlake) and us in anticipation of our initial public offering to own and operate an ethylene production and transportation business. We will control OpCo through our ownership of its general partner. Westlake will own the remaining 90% limited partner interest in OpCo and will retain a significant interest in us through its ownership of our general partner as well as % of our limited partner units (consisting of common units and all of the subordinated units) and our incentive distribution rights. The initial assets contributed by Westlake to OpCo will consist of three ethylene production facilities with an aggregate annual combined production capacity of approximately 3.4 billion pounds of ethylene and a 200-mile common carrier ethylene pipeline used to transport ethylene from Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview polyethylene (PE) production facility.
OpCos assets are integral to Westlakes manufacturing and marketing operations in Lake Charles, Louisiana and Calvert City, Kentucky. OpCos initial assets and operations are organized as one reportable segment and consist of the following:
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Lake Charles Olefins Production Facilities . Two ethylene production facilities located in Lake Charles, Louisiana (Petro 1 and Petro 2, and, collectively, Lake Charles Olefins), with a combined production capacity of approximately 2.7 billion pounds of ethylene per year, primarily consumed by Westlake in the production of higher value-added chemicals including PE and polyvinyl chloride (PVC). |
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Calvert City Olefins Production Facility . An ethylene production facility located in Calvert City, Kentucky (Calvert City Olefins), with a production capacity of approximately 630 million pounds of ethylene per year, primarily consumed by Westlake in the production of higher value-added chemicals including PVC. |
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Longview Pipeline . A 200-mile common carrier ethylene pipeline that runs from Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview PE production facility (the Longview Pipeline). |
We will generate revenue primarily by selling our ethylene production and resulting co-products and, to a lesser extent, by charging a tariff for transporting ethylene through the Longview Pipeline. At the closing of this offering, OpCo will enter into a 12-year ethylene sales agreement with Westlake, under which Westlake will
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agree to purchase 95% of OpCos planned ethylene production each year, subject to a maximum of 3.8 billion pounds per year, and pursuant to which we will generate the substantial majority of our revenue (the Ethylene Sales Agreement). We believe this agreement, which will be a long-term, fee-based agreement with a minimum purchase commitment, and variable pricing equal to OpCos actual feedstock and natural gas costs and estimated other costs of producing ethylene, plus a fixed margin per pound of $0.10 less revenue from co-product sales, will promote stable and predictable cash flows. We expect Westlake will take volumes in excess of the minimum commitment under the Ethylene Sales Agreement if we produce more than our planned production. We expect to sell ethylene production in excess of volumes sold to Westlake, as well as all co-products resulting from the ethylene production, including propylene, crude butadiene, pyrolysis gasoline and hydrogen, directly to third-parties on either a spot or contract basis. Net proceeds (after transportation and other costs) from the sales of co-products that result from the production of ethylene purchased by Westlake will be netted against the ethylene price charged to Westlake under the Ethylene Sales Agreement thereby substantially reducing our exposure to fluctuations in the market prices of these co-products. Historically, third party ethylene and associated co-product sales have generated greater than 25% of our total revenues. See BusinessEthylene Sales Agreement.
OpCo will enter into a 12-year feedstock supply agreement with Westlake Petrochemicals LLC, a wholly owned subsidiary of Westlake, under which Westlake Petrochemicals LLC will supply OpCo with ethane and other feedstocks that OpCo will use to produce ethylene under the Ethylene Sales Agreement (the Feedstock Supply Agreement). See BusinessFeedstock Supply Agreement. We expect that OpCo will also purchase the ethane and other feedstocks to produce ethylene and resulting co-products to sell to unrelated third parties from Westlake Petrochemicals LLC.
Under the terms of the Feedstock Supply Agreement, OpCos purchase price for ethane and other feedstocks will be Westlake Petrochemicals LLCs cost to purchase and deliver the ethane and other feedstocks to Lake Charles Olefins and Calvert City Olefins. The Feedstock Supply Agreement will only terminate in the event of a termination of the Ethylene Sales Agreement.
How We Evaluate Our Operations
Our management intends to use a variety of financial and operating metrics to analyze our performance. These metrics are significant factors in assessing our operating results and profitability and include: (i) production volumes, (ii) operating and maintenance expenses, including turnaround costs and (iii) EBITDA.
Production Volumes
The amount of profit we generate primarily depends on the volumes of ethylene and resulting co-products we are able to produce at Calvert City Olefins and Lake Charles Olefins. Although Westlake has committed to minimum volumes under the Ethylene Sales Agreement described above, our results of operations will be impacted by our ability to:
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produce sufficient volumes of ethylene to meet our commitments under the Ethylene Sales Agreement or recover our estimated costs through the pricing provisions of the Ethylene Sales Agreement; |
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seek to contract with third parties for the remaining uncommitted ethylene production capacity; |
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add or increase capacity at our existing ethylene production facilities, or add additional production capacity via organic expansion projects and acquisitions; and |
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achieve or exceed the specified yield factors for natural gas, ethane and other feedstock under the Ethylene Sales Agreement. |
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Operating Expenses and Maintenance Capital Expenditures
Our management seeks to maximize the profitability of our operations by effectively managing operating expenses, maintenance capital expenditures and turnaround costs. Our operating expenses are comprised primarily of feedstock costs and natural gas, labor expenses (including contractor services), utility costs and repair and maintenance expenses. With the exception of feedstock and utilities related expenses, operating expenses generally remain relatively stable across broad ranges of production volume but can fluctuate from period to period depending on the mix of activities, particularly maintenance and turnaround activities, performed during that period. Our maintenance capital expenditures and turnaround costs are comprised primarily of maintenance of our ethylene production facilities and the amortization of capitalized turnaround costs.
In addition to our operating expenses, our management seeks to effectively manage our maintenance capital expenditures, including turnaround costs. These capital expenditures relate to the maintenance and integrity of our facilities. We capitalize the costs of major maintenance activities, or turnarounds, and amortize the costs over the period until the next planned turnaround of the affected unit.
Operating expenses, maintenance capital expenditures and turnaround costs, are built into the price per pound of ethylene charged to Westlake under the Ethylene Sales Agreement. Because the expenses other than feedstock costs and natural gas are based on forecasted amounts and remain a fixed component of the price per pound of ethylene sold under the Ethylene Sales Agreement for any given 12-month period, our ability to manage operating and maintenance expenses, including turnaround costs, directly affects our profitability and cash flows. We will seek to manage our operating and maintenance expenses on our ethylene production facilities by scheduling maintenance and turnaround over time to avoid significant variability in our operating margins and minimize the impact on our cash flows, without compromising our commitment to safety and environmental stewardship. In addition, we will reserve cash on an annual basis from what we would otherwise distribute to minimize the impact of turnaround costs in the year of incurrence.
The price of feedstock and natural gas will fluctuate with volatility in the referenced commodity prices. Nevertheless, while the price of feedstock and natural gas that we pay will also fluctuate, it is automatically adjusted in the price per pound of ethylene charged to Westlake under the Ethylene Sales Agreement. Accordingly, we will not be subject to significant market price risk related to feedstock and natural gas purchases for the ethylene volume sold to Westlake under the Ethylene Sales Agreement.
EBITDA and Adjusted Current Earnings
We define EBITDA as net income before interest expense, income taxes, depreciation and amortization.
Although we have not quantified adjusted current earnings on a historical basis, after the closing of this offering we intend to use adjusted current earnings, which we expect we will define as net income plus depreciation and amortization, less contributions for turnaround reserves and maintenance capital expenditures, to analyze our performance.
EBITDA is not a measure made in accordance with GAAP. EBITDA is used as a supplemental financial measure by management and by external users of our financial statements, such as investors, lenders and rating agencies, to assess:
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our operating performance as compared to that of other publicly traded partnerships, without regard to historical cost basis or capital structure; |
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our ability to incur and service debt and fund capital expenditures; and |
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the viability of acquisitions and other capital expenditure projects and the returns on investment of various investment opportunities. |
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We believe that the presentation of EBITDA in this prospectus provides useful information to investors in assessing our financial condition and results of operations. The GAAP measurements most directly comparable to EBITDA are net income and cash flow from operating activities. EBITDA should not be considered as an alternative to GAAP net income or cash flow from operating activities. EBITDA has important limitations as an analytical tool because it excludes some but not all items that affect net income and cash flow from operating activities. You should not consider EBITDA in isolation or as a substitute for analysis of our results as reported under GAAP. Additionally, because EBITDA may be defined differently by other companies in our industry, our definition of EBITDA may not be comparable to similarly titled measures of other companies, thereby diminishing its utility.
For a further discussion of the non-GAAP financial measure of EBITDA, and a reconciliation of EBITDA to its most comparable financial measures calculated and presented in accordance with GAAP, please read Selected Historical and Pro Forma Combined Carve-out Financial and Operating DataNon-GAAP Financial Measure.
Factors Affecting the Comparability of Our Financial Results
Our future results of operations will not be comparable to the historical results of operations for the reasons described below:
Ethylene, co-products and excess feedstock sales
There are differences in the way our Predecessor generated and recorded revenue and the way we will generate and record revenue from ethylene sales to Westlake. Our Predecessor generally recognized revenue for ethylene volume sold internally based on a transfer pricing formula intended to approximate the fair market value of the commodity. The substantial majority of our revenue from ethylene sales will be generated from sales of manufactured ethylene to Westlake under the Ethylene Sales Agreement. The Ethylene Sales Agreement contains minimum purchase commitments and pricing that is expected to generate a fixed margin per pound of $0.10. The price per pound of ethylene sold under the Ethylene Sales Agreement will be lower than historical prices charged by our Predecessor for ethylene consumed internally. As such, we expect a significant decrease in revenue from ethylene sales to Westlake for periods after this offering compared with our Predecessors historical revenue. Applying the provisions of the Ethylene Sales Agreement to historical 2013 volumes would result in an approximate 44.0% decrease in 2013 revenue from ethylene sales to Westlake.
Our Predecessors third party sales consisted of ethylene, feedstock and associated co-product sales. With respect to third party ethylene sales, our Predecessor also resold externally procured ethylene to third parties. Following the closing of this offering, the ethylene procurement and reselling activities of our Predecessor will remain with Westlake. In addition, our Predecessors net sales included revenue from sales to third parties of excess feedstock not used in the ethylene production process. Following the closing of this offering, we do not expect to generate revenues from the sales of excess feedstock to third parties as all of the Predecessors feedstock risk-management activities will remain with Westlake. Moreover, we expect to sell all of our co-product volume to third parties in a manner consistent with our Predecessor. As such, we do not expect changes to revenue related to the sale of co-products, as compared to our Predecessors historical revenue from co-product sales.
Selling, general and administrative expenses
Our Predecessors selling, general and administrative expenses included direct and indirect charges for the management and operation of our ethylene and other transportation assets allocated by Westlake for general corporate services such as treasury, information technology, legal, corporate tax, human resources, executive compensation, other financial and administrative services, among others. These expenses were charged or allocated to our Predecessor based on the nature of the expense and our Predecessors proportionate share of
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fixed assets, headcount or other measure, as deemed appropriate. Following the closing of this offering, under the services and secondment agreement and omnibus agreement, Westlake will continue to charge us a combination of direct and allocated charges for similar general corporate services as those charged to our Predecessor for 2013, 2012 and 2011. For more information about fees and related services covered by these agreements, please read Certain Relationships and Related Transactions. We also expect to incur an additional $3.0 million of incremental annual general and administrative expenses as a result of being a separate publicly traded partnership. These incremental general and administrative expenses are not reflected in our Predecessors historical or our unaudited pro forma combined carve-out financial statements.
Factors Affecting Our Business
Supply and demand for ethylene and resulting co-products
We expect to generate the substantial majority of our revenue from the Ethylene Sales Agreement with Westlake. This contract is intended to promote cash flow stability and minimize our direct exposure to commodity price fluctuations in the following ways: (i) the cost-plus pricing structure of the Ethylene Sales Agreement is expected to generate a fixed margin per pound of $0.10, adjusting automatically for changes in feedstock costs; and (ii) the commitment under which Westlake will purchase 95% of the annual planned production, subject to a maximum commitment of 3.8 billion pounds of ethylene per year, with an option to purchase an additional 95% of actual monthly production in excess of the planned production. As a result, our direct exposure to commodity price risk should be limited to approximately 5% of our total ethylene production, which is that portion sold to third parties, as well as co-product sales.
We also have indirect exposure to commodity price fluctuations to the extent such fluctuations affect the ethylene consumption patterns of third-party purchasers. Demand for ethylene exhibits cyclical commodity characteristics as margins earned on ethylene derivative products are influenced by changes in the balance between supply and demand, the resulting operating rates and general economic activity. While we believe we have substantially mitigated our indirect exposure to commodity price fluctuations during the term of the Ethylene Sales Agreement through the minimum commitment and the cost-plus based pricing, our ability to execute our growth strategy in our areas of operation will depend, in part, on the demand for ethylene derivatives in the geographical areas served by our ethylene production facilities.
Three Months Ended
March 31, |
Year Ended December 31, | |||||||||||||||||||
2014 | 2013 | 2013 | 2012 | 2011 | ||||||||||||||||
(unaudited) | (unaudited) | |||||||||||||||||||
(in thousands of dollars) | ||||||||||||||||||||
Revenue |
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Net ethylene sales-Westlake |
$ | 383,927 | $ | 414,509 | $ | 1,603,043 | $ | 1,507,501 | $ | 1,638,338 | ||||||||||
Net co-product, ethylene and feedstock sales-third parties |
176,087 | 86,408 | 524,704 | 741,597 | 612,705 | |||||||||||||||
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Total net sales |
560,014 | 500,917 | 2,127,747 | 2,249,098 | 2,251,043 | |||||||||||||||
Cost of sales |
327,700 | 310,907 | 1,255,140 | 1,613,446 | 1,841,945 | |||||||||||||||
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Gross profit |
232,314 | 190,010 | 872,607 | 635,652 | 409,098 | |||||||||||||||
Selling, general and administrative expenses |
7,778 | 6,171 | 25,451 | 24,103 | 24,312 | |||||||||||||||
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Income from operations |
224,536 | 183,839 | 847,156 | 611,549 | 384,786 | |||||||||||||||
Other income (expense) |
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Interest expenseWestlake |
(3,591 | ) | (950 | ) | (8,032 | ) | (8,937 | ) | (8,947 | ) | ||||||||||
Other income, net (1) |
1,252 | 4,045 | 7,701 | 4,186 | 2,804 | |||||||||||||||
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Income before income taxes |
222,197 | 186,934 | 846,825 | 606,798 | 378,643 | |||||||||||||||
Provision for income taxes |
78,323 | 66,209 | 300,279 | 210,878 | 131,670 | |||||||||||||||
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Net income |
$ | 143,874 | $ | 120,725 | $ | 546,546 | $ | 395,920 | $ | 246,973 | ||||||||||
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EBITDA (2) |
$ | 244,802 | $ | 203,919 | $ | 928,320 | $ | 679,992 | $ | 444,783 |
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(1) | Includes income from our Predecessors equity stake in a NGLs pipeline joint venture that will not be contributed to us in connection with this offering. |
(2) | For a definition of EBITDA and a reconciliation to its most directly comparable financial measure calculated and presented in accordance with GAAP, please read Selected Historical and Pro Forma Combined Carve-Out Financial and Operating DataNon-GAAP Financial Measure. |
Three Months Ended
March 31, |
Year Ended December 31, | |||||||||||||||||||||||
2014 | 2013 | 2012 | ||||||||||||||||||||||
Average Sales
Price |
Volume |
Average Sales
Price |
Volume |
Average Sales
Price |
Volume | |||||||||||||||||||
Product sales price and volume change from prior period |
+1.2 | % | +10.6 | % | -1.3 | % | -4.1 | % | -15.1 | % | +15.0 | % |
Three Months
Ended March 31, |
Year Ended
December 31, |
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2014 | 2013 | 2013 | 2012 | 2011 | ||||||||||||||||
Average North American industry prices (1) |
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Ethane (cents/lb) |
11.4 | 8.7 | 8.8 | 13.4 | 25.8 | |||||||||||||||
Propane (cents/lb) |
30.8 | 20.4 | 23.7 | 23.7 | 34.7 | |||||||||||||||
Ethylene (cents/lb) (2) |
53.5 | 63.7 | 56.7 | 57.1 | 56.1 |
(1) | Industry pricing data was obtained through Wood Mackenzie. We have not independently verified the data. |
(2) | Represents average North American spot prices of ethylene over the period as reported by Wood Mackenzie. |
Summary
For the quarter ended March 31, 2014, net income was $143.9 million on net sales of $560.0 million. This represents an increase in net income of $23.2 million as compared to the quarter ended March 31, 2013 net income of $120.7 million on net sales of $500.9 million. Net sales for the first quarter of 2014 increased by $59.1 million as compared to net sales for the first quarter of 2013, mainly due to higher sales volumes and sales prices for co-products, ethylene and feedstock sold to third-parties, partially offset by a decrease in the sales volumes and sales prices of ethylene sold to Westlake. Income from operations was $224.5 million for the first quarter of 2014 as compared to $183.8 million for the first quarter of 2013. Income from operations for the first quarter of 2014 benefited primarily from higher sales volumes of our major products, partially offset by an increase in feedstock and energy costs, as compared to the first quarter of 2013. The increase in first quarter 2014 income from operations as compared to the first quarter of 2013 was partially offset by the lost sales, lower production rates, unabsorbed fixed manufacturing costs and other costs associated with Calvert City Olefins feedstock conversion and expansion project.
For the year ended December 31, 2013, we had net income of $546.5 million on net sales of $2,127.7 million. This represents an increase in net income of $150.6 million from 2012 net income of $395.9 million on net sales of $2,249.1 million. Net sales for the year ended December 31, 2013 decreased $121.4 million to $2,127.7 million compared to net sales for 2012 of $2,249.1 million, primarily due to lower feedstock sales volume and lower average sales prices for our major products. Income from operations was $847.2 million for the year ended December 31, 2013 as compared to $611.5 million for 2012, an increase of $235.7 million. Income from operations benefited mainly from higher overall margins, predominantly due to a significant decrease in feedstock costs as average industry ethane prices decreased 34.3% in 2013 as compared to 2012, partially offset by a decrease of 1.3% in the average sales prices for our major products over the same period.
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The increase in income from operations was partially offset by the lost production and the unabsorbed fixed manufacturing costs and other costs associated with the turnaround and expansion of Petro 2.
For the year ended December 31, 2012, we had net income of $395.9 million on net sales of $2,249.1 million. This represents an increase in net income of $148.9 million from 2011 net income of $247.0 million on net sales of $2,251.0 million. Net sales for the year ended December 31, 2012, decreased $1.9 million to $2,249.1 million compared to net sales for 2011 of $2,251.0 million, primarily due to lower average sales prices for our major products, mostly offset by higher ethylene and feedstock sales volumes as compared to 2011. Income from operations was $611.5 million for the year ended December 31, 2012 as compared to $384.8 million for 2011, an increase of $226.7 million. Income from operations benefited mainly from a significant decrease in feedstock and energy costs, partially offset by a decrease in the average sales prices for our major products. Industry ethane prices decreased 48.1% and industry propane prices decreased 31.7% in 2012 as compared to 2011, while average sales prices for our major products only decreased 15.1% over the same period.
First Quarter 2014 Compared with First Quarter 2013
Net Sales. Net sales increased by $59.1 million, or 11.8%, to $560.0 million in the first quarter of 2014 from $500.9 million in the first quarter of 2013, primarily attributable to higher sales volumes and sales prices for co-products, ethylene and feedstock sold to third-parties, partially offset by a decrease in the sales volumes and sales prices of ethylene sold to Westlake. Average sales prices for the first quarter of 2014 increased by 1.2% as compared to the first quarter of 2013. Overall sales volumes increased by 10.6% as compared to the first quarter of 2013.
Gross Profit. Gross profit margin percentage increased to 41.5% for the first quarter of 2014 from 37.9% for the first quarter of 2013, primarily due to higher product margins. Our margins benefited from the increased ethylene production at Lake Charles Olefins after the first quarter 2013 completion of the Petro 2 ethylene unit expansion and its conversion to 100% ethane feedstock capability. This improvement in margin was partially offset by higher feedstock and energy costs, as average industry prices for ethane increased 31.0% in the first quarter of 2014 as compared to the first quarter of 2013. In addition, income from operations for the first quarter of 2014 was negatively impacted by the lost sales, lower production rates, unabsorbed fixed manufacturing costs and other costs associated with our Calvert City ethylene plants feedstock conversion and expansion project.
Selling General and Administrative Expenses. Selling, general and administrative expenses increased $1.6 million, or 25.8%, to $7.8 million in the first quarter of 2014 as compared to $6.2 million in the first quarter of 2013. The increase was mainly attributable to higher allocations from Westlake due to Westlakes increased cost associated with payroll and labor related costs and higher total selling expenses consistent with the increase in sales, as compared to the first quarter of 2013.
Interest Expense. Interest expense increased by $2.6 million to $3.6 million in the first quarter of 2014 from $1.0 million in the first quarter of 2013, primarily due to the higher average debt balance in the first quarter of 2014 as compared to the prior year period.
Other Income , Net . Other income, net decreased by $2.7 million to $1.3 million in the first quarter of 2014 from $4.0 million in the first quarter of 2013. This decrease was mainly due to a claim settlement in the first quarter of 2013, which did not recur in the first quarter of 2014.
Income Taxes. The effective income tax rate was 35.2% for the first quarter of 2014. The effective income tax rate for the 2014 period was above the U.S. federal statutory rate of 35.0% primarily due to state income taxes, mostly offset by the domestic manufacturing deduction. The effective income tax rate was 35.4% for the first quarter of 2013. The effective income tax rate for the 2013 period was above the U.S. federal statutory rate of 35.0% primarily due to state income taxes, mostly offset by the domestic manufacturing deduction.
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2013 Compared with 2012
Net Sales . Net sales decreased by $121.4 million, or 5.4%, to $2,127.7 million in 2013 from $2,249.1 million in 2012. This decrease was mainly attributable to lower feedstock sales volume and lower average sales prices for our major products. Average sales prices for 2013 decreased by 1.3% as compared to 2012. Overall sales volume decreased by 4.1% in 2013 as compared to 2012.
Gross Profit . Gross profit percentage increased to 41.0% in 2013 from 28.3% in 2012. The improvement in gross profit percentage was predominantly due to significantly lower feedstock costs, which was only partially offset by higher energy costs and lower sales prices. Our raw material costs track industry prices. Average industry prices for ethane decreased 34.3% in 2013 as compared to 2012. Sales prices decreased an average of 1.3% for 2013 as compared to 2012.
Selling, General and Administrative Expenses . Selling, general and administrative expenses increased $1.4 million, or 5.8%, to $25.5 million in 2013 as compared to $24.1 million in 2012. The increase was mainly attributable to higher allocations from Westlake due to Westlakes increased costs associated with payroll and labor related costs.
Interest Expense . Interest expense decreased by $0.9 million to $8.0 million in 2013 from $8.9 million in 2012, mainly due to a lower average debt balance resulting from the January 2013 settlement of certain intercompany notes, all of which were outstanding for the entirety of 2012, offset by interest incurred on a new intercompany notes entered into during 2013.
Other Income, Net . Other income, net increased by $3.5 million to $7.7 million in 2013 from $4.2 million in 2012. The increase is mainly attributable to a $3.0 million settlement reached with a customer over a contract dispute and a $0.5 million increase in income attributable to our Predecessors equity stake in an NGLs pipeline joint venture that will not be contributed to us in connection with this offering.
Income Taxes . The effective income tax rate was 35.5% in 2013 as compared to 34.8% in 2012. The effective income tax rate for 2013 was above the statutory rate of 35.0% primarily due to the state income taxes, offset by domestic manufacturing deduction and state income tax credits. The effective income tax rate for 2012 was below the statutory rate of 35.0% primarily due to the domestic manufacturing deduction and state income tax credits, offset by state income taxes.
2012 Compared with 2011
Net Sales . Net sales decreased by $1.9 million, or 0.1%, to $2,249.1 million in 2012 from $2,251.0 million in 2011. This decrease was mainly attributable to lower average sales prices for our major products, primarily offset by higher ethylene and feedstock sales volumes as compared to 2011. Average sales prices for 2012 decreased by 15.1% as compared to 2011. Overall sales volume increased by 15.0% in 2012 as compared to 2011.
Gross Profit . Gross profit percentage increased to 28.3% in 2012 from 18.2% in 2011. The improvement in gross profit percentage was predominantly due to significantly lower feedstock and energy costs, which were only partially offset by lower sales prices. Our raw material costs track industry prices. Average industry prices for ethane and propane decreased 48.1% and 31.7%, respectively, in 2012 as compared to 2011. Sales prices decreased an average of 15.1% for 2012 as compared to 2011.
Selling, General and Administrative Expenses . Selling, general and administrative expenses decreased $0.2 million, or 0.8%, to $24.1 million in 2012 as compared to $24.3 million in 2011. The decrease was mainly attributable to lower allocations from Westlake, offset by an increase in payroll and labor related costs and consulting and other professional fees.
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Other Income, Net . Other income, net increased by $1.4 million to $4.2 million in 2012 from $2.8 million in 2011 due to a $1.4 million increase in income attributable to our Predecessors equity stake in an NGLs pipeline joint venture that will not be contributed to us in connection with this offering.
Income Taxes . The effective income tax rate was 34.8% in 2012 and 2011. The effective income tax rate for both 2012 and 2011 were below the statutory rate of 35.0% primarily due to the domestic manufacturing deduction and state income tax credits, offset by state income taxes.
Capital Resources and Liquidity
Liquidity and Financing Arrangements
Historically, our principal sources of liquidity have been cash from operations and funding from Westlake. As participants in Westlakes centralized cash management system, our cash receipts were deposited in Westlakes or its affiliates bank accounts and cash disbursements were made from those accounts. Accordingly, our historical financial statements have reflected no cash balances as any cash flow generated from our operations was deemed to have been distributed to Westlake and is reflected as a net distribution to Westlake in our Predecessors combined carve-out statement of cash flows appearing elsewhere in this prospectus.
In addition to the cash generated by its operations, our Predecessor also entered into certain financing arrangements with Westlake to satisfy its capital and operating expenditure requirements. Our Predecessor separately recorded costs associated with financing its operations resulting from financing arrangements entered into with Westlake. Based on the terms of our cash distribution policy, we expect that we will distribute to our partners most of the excess cash generated by our operations. To the extent we do not generate sufficient cash flow to fund capital expenditures, we expect to fund them primarily from external sources, including borrowing directly from Westlake, as well as future issuances of equity and debt interests.
In connection with this offering, we will establish separate bank accounts, but Westlake will continue to provide treasury services on our behalf under the services and secondment agreement. We expect our ongoing sources of liquidity following this offering to include cash generated from operations and, if necessary, the issuance of additional equity or debt interests. We believe that cash generated from these sources will be sufficient to meet our short-term working capital requirements and long-term capital expenditure requirements and to make quarterly cash distributions. Westlake may also provide direct and indirect financing to us from time to time.
In order to fund non-annual turnaround expenditures, we intend to cause OpCo to (i) use $ million from the net proceeds of this offering to fund its initial balance for turnaround expenditures and (ii) reserve approximately $ million annually thereafter. Each of OpCos ethylene production facilities requires turnaround maintenance approximately every five years. By creating an initial balance and reserving additional cash annually, we intend to reduce the variability in both our and OpCos operating results and earnings. The initial balance of turnaround reserve will account for the period that the ethylene production facilities were under Westlakes ownership following the last major turnaround and prior to the entry into the Ethylene Sales Agreement. Westlakes purchase price for ethylene purchased under the Ethylene Sales Agreement will include a component (adjusted annually) designed to cover, over the long term, substantially all of OpCos turnaround expenditures.
All of our cash will be generated from cash distributions from OpCo. OpCo is a restricted subsidiary and guarantor under Westlakes credit facility and the indentures governing its senior notes. Restrictions in the credit facility and indentures could limit OpCos ability to make distributions to us. These limitations are subject to a number of important qualifications and exceptions. The effectiveness of many of these restrictions in the indentures governing Westlakes senior notes is currently suspended under the indentures because the senior notes are currently rated investment grade by at least two nationally recognized credit rating agencies. The indentures governing Westlakes senior notes will prevent OpCo from making distributions to us if any default or
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event of default (as defined in the indentures) exists. Westlakes credit facility will not prevent OpCo from making distributions to us so long as Westlake maintains a minimum availability under the credit facility. In order for OpCo to make distributions, Westlakes revolving credit facility provides that (i) Westlake must maintain a minimum borrowing availability of at least the greater of $100.0 million or 25% of the total bank commitments under the revolving credit facility or (ii) Westlake must maintain a minimum borrowing availability of at least the greater of $70.0 million or 17.5% of the total bank commitments under the revolving credit facility and meet a minimum fixed charge coverage ratio of 1.0:1 under the revolving credit facility. At March 31, 2014, Westlake had no borrowings outstanding under the revolving credit facility, outstanding letters of credit totaling $16.9 million and borrowing availability of $383.1 million. If Westlakes borrowing availability were to decrease below the applicable minimums, due to substantial additional borrowings or letters of credit or a reduction in the bank commitments, OpCo would be prevented from making distributions to us. Please read OpCo is a restricted subsidiary and guarantor under Westlakes credit facility and the indentures governing the senior notes. Restrictions in the credit facility and indentures could limit OpCos ability to make distributions to us.
We intend to pay a minimum quarterly distribution of $ per unit per quarter, which equates to approximately $ million per quarter, or approximately $ million per year in the aggregate, based on the number of common and subordinated units to be outstanding immediately after completion of this offering. We do not have a legal or contractual obligation to pay distributions quarterly or on any other basis at our minimum quarterly distribution rate or at any other rate. Please read Cash Distribution Policy and Restrictions on Distributions.
Indebtedness
In 2013, our Predecessor entered into unsecured promissory note agreements with Westlake under which our Predecessor borrowed, including accrued interest, a total of $288.0 million and $238.6 million as of March 31, 2014 and December 31, 2013, respectively, to fund certain capital expenditures. Each of the promissory notes has a ten-year term beginning on the date our Predecessor entered into the agreement. Outstanding borrowings under the promissory notes bear interest at the prime rate plus a 1.5% margin, which is accrued in arrears quarterly.
OpCo may obtain additional advances under these notes from time to time, subject to the agreement of Westlake. OpCo has the right at any time to prepay these notes, in whole or in part, without any premium or penalty.
Additionally, at the closing of this offering OpCo will enter into a $600.0 million intercompany credit facility with Westlake that may be used to fund growth projects and working capital needs.
Cash Flows from Operations
Our operations generated $197.9 million in cash during the first quarter of 2014, as compared to $163.0 million during the first quarter of 2013. The increase was mainly due to an increase in income from operations and a decrease in the use of cash for working capital purposes. Cash flows from operating activities for the first quarter of 2013 were negatively impacted by deferred turnaround costs related to the turnaround at Lake Charles Olefins.
Our operations generated $602.5 million in cash during 2013, as compared to $496.8 million in 2012. The increase was primarily driven by an increase in net income as a result of a significant drop in feedstock prices in 2013 as compared to 2012, offset partially by unfavorable changes in components of working capital. Working capital impacts primarily reflect cash spent on turnarounds related to Lake Charles Olefins.
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Capital Expenditures
In April 2011, Westlake announced an expansion program to increase the ethylene production capacity of both Petro 1 and Petro 2. The capital expenditures incurred in 2011 and 2012 largely relate to the expansion of Petro 2. The expansion of Petro 2 was completed in the first quarter of 2013 and increased ethylene production capacity by approximately 240 million pounds annually. We plan to expand the production capacity of Petro 1 in late 2015 or early 2016.
In April 2014, Westlake completed an expansion and feedstock conversion project at Calvert City Olefins that resulted in an approximately 180 million pounds annual capacity expansion and also provided OpCo with 100% ethane feedstock capability at the facility. Capital expenditures in 2013 were largely attributable to both the expansion of Petro 2 and the expansion and conversion of Calvert City Olefins.
Westlake has historically funded capital expenditures related to Lake Charles Olefins and Calvert City Olefins. During the three months ended March 31, 2014, Westlake loaned us a principal amount of approximately $46.0 million, all of which was used for capital expenditures during the first quarter of 2014. During the year ended December 31, 2013, Westlake loaned us a principal amount of approximately $231.1 million, all of which was used for capital expenditures in 2013. Our capital expenditures for 2014 are expected to be approximately $227.2 million, of which $51.3 million was spent during the three months ended March 31, 2014. We expect that Westlake will loan additional cash to OpCo to fund its expansion capital expenditures in the future, but Westlake is under no obligation to do so.
Contractual Obligations and Commercial Commitments
In addition to long-term debt, we are required to make payments relating to various types of obligations. The following table summarizes our minimum payments as of December 31, 2013 relating to long-term debt, operating leases, unconditional purchase obligations and interest payments for the next five years and thereafter. The amounts do not include certain items classified in other liabilities in the combined carve-out balance sheet due to the uncertainty of the future payment schedule.
Payment Due by Period | ||||||||||||||||||||
Total | 2014 | 2015-2016 | 2017-2018 | Thereafter | ||||||||||||||||
(dollars in millions) | ||||||||||||||||||||
Contractual Obligations |
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Long-term debt |
$ | 253.0 | $ | | $ | 14.4 | $ | | $ | 238.6 | ||||||||||
Operating leases |
6.3 | 1.7 | 2.3 | 1.4 | 0.9 | |||||||||||||||
Unconditional purchase obligations |
91.2 | 4.0 | 19.1 | 18.2 | 49.9 | |||||||||||||||
Interest payments |
138.1 | 0.5 | 1.0 | | 136.6 | |||||||||||||||
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Total |
$ | 488.6 | $ | 6.2 | $ | 36.8 | $ | 19.6 | $ | 426.0 | ||||||||||
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Long-Term Debt. Long-term debt consists of certain intercompany promissory notes.
Operating Leases. We lease various facilities and equipment under noncancelable operating leases (primarily related to rail car leases and land) for various periods.
Unconditional Purchase Obligations. We are party to various unconditional obligations, primarily related to the purchase of goods and services, including commitments to purchase various utilities, feedstock, nitrogen, oxygen, product storage and pipeline usage. We also have various purchase commitments for our capital projects and for materials, supplies and services incidental to the ordinary conduct of business which may not be unconditional and are not reflected in the table above.
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Interest Payments. Interest payments are based on interest rates in effect at December 31, 2013 and assume contractual payments.
Off-Balance Sheet Arrangements
None.
Critical accounting policies are those that are important to our financial condition and require managements most difficult, subjective or complex judgments. Different amounts would be reported under different operating conditions or under alternative assumptions. We have evaluated the accounting policies used in the preparation of the accompanying combined carve-out financial statements of Westlake Chemical Partners LP Predecessor and related notes thereto and believe those policies are reasonable and appropriate.
We apply those accounting policies that we believe best reflect the underlying business and economic events, consistent with GAAP. Our more critical accounting policies include those related to long-lived assets, accounts receivables, income taxes and environmental and legal obligations. Inherent in such policies are certain key assumptions and estimates. We periodically update the estimates used in the preparation of the financial statements based on our latest assessment of the current and projected business and general economic environment. Our significant accounting policies are summarized in Note 2 to the audited combined carve-out financial statements of Westlake Chemical Partners LP Predecessor appearing elsewhere in this prospectus. We believe the following to be our most critical accounting policies applied in the preparation of our Predecessors financial statements.
Long-Lived Assets. Key estimates related to long-lived assets include useful lives, recoverability of carrying values and existence of any retirement obligations. Such estimates could be significantly modified. The carrying values of long-lived assets could be impaired by significant changes or projected changes in supply and demand fundamentals (which would have a negative impact on operating rates or margins), new technological developments, new competitors with significant raw material or other cost advantages, adverse changes associated with the U.S. and world economies, the cyclical nature of the chemical and refining industries and uncertainties associated with governmental actions.
We evaluate long-lived assets for potential impairment indicators whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable, including when negative conditions such as significant current or projected operating losses exist. Our judgments regarding the existence of impairment indicators are based on legal factors, market conditions and the operational performance of our businesses. Actual impairment losses incurred could vary significantly from amounts estimated. Long-lived assets assessed for impairment are grouped at the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities. Additionally, future events could cause us to conclude that impairment indicators exist and that associated long-lived assets of our businesses are impaired. Any resulting impairment loss could have a material adverse impact on our financial condition and results of operations.
The estimated useful lives of long-lived assets range from three to 35 years. Depreciation and amortization of these assets, including amortization of deferred turnaround costs, under the straight-line method over their estimated useful lives totaled $73.5 million, $64.3 million and $57.2 million in 2013, 2012 and 2011, respectively. If the useful lives of the assets were found to be shorter than originally estimated, depreciation charges would be accelerated.
We defer the costs of major maintenance activities, or turnarounds, and amortize the costs over the period until the next planned turnaround of the affected unit. Total costs deferred on turnarounds were $59.1 million in 2013, $5.6 million in 2012 and $8.4 million in 2011. Amortization in 2013, 2012 and 2011 of previously deferred turnaround costs was $15.5 million, $10.6 million and $11.3 million, respectively. As of December 31, 2013,
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deferred turnaround costs, net of accumulated amortization, totaled $62.1 million. Expensing turnaround costs as incurred would likely result in greater variability of our quarterly operating results and would adversely affect our financial position and results of operations.
Additional information concerning long-lived assets and related depreciation and amortization appears in Notes 6 and 7 to the audited combined carve-out financial statements of Westlake Chemical Partners LP Predecessor appearing elsewhere in this prospectus.
Fair Value Estimates. We develop estimates of fair value to allocate the purchase price paid to acquire a business to the assets acquired and liabilities assumed in an acquisition, to assess impairment of long-lived assets, goodwill and intangible assets and to record derivative instruments. We use all available information to make these fair value determinations, including the engagement of third-party consultants. At December 31, 2013, our Predecessors recorded goodwill was $5.8 million, all of which was associated with the acquisition of the Longview Pipeline as part of the acquisition of Westlakes Longview production facilities. In addition, we record all derivative instruments at fair value. The fair value of these items is determined by quoted market prices or from observable market-based inputs. See Note 11 to the audited combined carve-out financial statements of Westlake Chemical Partners LP Predecessor for more information.
Allowance for Doubtful Accounts. In our determination of the allowance for doubtful accounts, and consistent with our accounting policy, we estimate the amount of accounts receivable that we believe are unlikely to be collected and we record an expense of that amount. Estimating this amount requires us to analyze the financial strength of our customers, and, in our analysis, we combine the use of historical experience, our accounts receivable aged trial balance and specific collectability analysis. We review our allowance for doubtful accounts quarterly. Balances over 90 days past due and accounts determined by our analysis of financial strength of customers to be high risk are reviewed individually for collectability. By its nature, such an estimate is highly subjective and it is possible that the amount of accounts receivable that we are unable to collect may be different than the amount initially estimated.
Environmental and Legal Obligations. We consult with various professionals to assist us in making estimates relating to environmental costs and legal proceedings. We accrue an expense when we determine that it is probable that a liability has been incurred and the amount is reasonably estimable. While we believe that the amounts recorded in the accompanying combined carve-out financial statements of our Predecessor related to these contingencies are based on the best estimates and judgments available, the actual outcomes could differ from our estimates. Additional information about certain legal proceedings and environmental matters appears in Note 15 to the audited combined carve-out financial statements of Westlake Chemical Partners LP Predecessor appearing elsewhere in this prospectus.
Recent Accounting Pronouncement
See Note 3 to the audited combined carve-out financial statements for the year ended December 31, 2013 and Note 2 to the interim combined carve-out financial statements of Westlake Chemical Partners LP Predecessor for a full description of recent accounting pronouncements, including expected dates of adoption and estimated effects on results of operations and financial condition, which is incorporated herein by reference.
Qualitative and Quantitative Disclosures about Market Risk
Commodity Price Risk
A substantial portion of our Predecessors products and raw materials are commodities whose prices fluctuate as market supply and demand fundamentals change. Accordingly, our Predecessors historical margins and level of profitability generally fluctuated with changes in the business cycle. Our Predecessor tried to protect against such instability through various business strategies. These strategies included ethylene feedstock flexibility and the use of
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derivative instruments in certain instances to reduce price volatility risk on feedstocks. Based on our Predecessors open derivative positions at March 31, 2014, a hypothetical $0.10 increase in the price of a gallon of ethane would have increase our Predecessors income before taxes for the three months ended March 31, 2014 by $0.3 million. Based on our Predecessors open derivative positions at December 31, 2013, a hypothetical $0.10 increase in the price of a gallon of ethane would have increased our Predecessors income before taxes for the year ended December 31, 2013 by $0.1 million and a hypothetical $0.10 increase in the price of a gallon of propane would have decreased our Predecessors income before taxes for the year ended December 31, 2013 by $0.3 million. Additional information concerning derivative commodity instruments appears in Notes 10 and 11 to Westlake Chemical Partners LP Predecessor audited combined carve-out financial statements for the year ended December 31, 2013 and Notes 9 and 10 to the interim combined carve-out financial statements included elsewhere in this prospectus.
Following the closing of this offering, we will not be subject to significant volatility related to prices of the majority of our raw materials and final products. Because Westlakes ethylene purchase price will be on a cost-plus basis, we believe the Ethylene Sales Agreement will substantially reduce our direct exposure to commodity price volatility, both in terms of our final products and our raw materials. As such, we do not intend to use derivative instruments to reduce price volatility risk on feedstock and products in the future.
Interest Rate Risk
Our Predecessor was exposed to interest rate risk with respect to variable rate debt. At March 31, 2014, our Predecessor had variable rate debt of $302.4 million outstanding, all of which was owed to a wholly owned subsidiary of Westlake and all of which accrued interest at a variable rate of prime plus a margin ranging from 0.25% to 1.5%. Historically, our Predecessor did not hedge its variable rate debt. The weighted average variable interest rate for our Predecessors variable rate debt of $302.4 million as of March 31, 2014 was 4.70%. A hypothetical 100 basis point increase in the average interest rate on our Predecessors variable rate debt would have increased our Predecessors annual interest expense by approximately $2.3 million.
We will continue to be subject to interest rate risk with respect to our remaining variable rate debt as well as the risk of higher interest cost if and when this debt is refinanced. If interest rates are 1% higher at the time of refinancing, our annual interest expense would increase by approximately $3.0 million, based on the March 31, 2014 variable rate debt balance.
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The data presented in this Industry section, unless otherwise indicated, is sourced from Wood Mackenzie Limited (Wood Mackenzie).
When polyvinyl chloride (PVC) is referred to below, such references may include predecessor chemicals such as ethylene dichloride and vinyl chloride monomer. When styrene is referred to below, such references may include ethyl benzene, a predecessor chemical.
OpCo, which will acquire Westlakes ethylene production assets at the closing of this offering, is a leading U.S. producer of olefins. Olefins, predominantly comprised of ethylene and propylene, are a class of unsaturated hydrocarbons derived from natural gas liquids (NGLs) (such as ethane, propane and butane) or petroleum liquids (naphtha and gas oils). OpCo competes primarily in the ethylene industry; however, depending on the feedstock mix chosen for OpCos operations, it can produce marketable quantities of propylene as well. As of December 31, 2013, OpCo had a 5.1% capacity share of ethylene production in the U.S. The following chart shows estimated U.S. olefins production and ethylene production capacity by producer.
Ethylene is the worlds most widely used petrochemical in terms of volume and is a key building block to produce a number of key derivatives such as polyethylene (PE) and PVC, which are used in a wide variety of key end markets including packaging, construction and transportation. PE production accounts for approximately 60% of global ethylene consumption, while PVC production accounts for approximately 10% of ethylene production. The chart below shows estimated global ethylene demand for 2013 by product.
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Ethylene production costs are primarily determined by underlying feedstock prices and, to a lesser extent, variable operating costs (asset efficiency, utilities and catalysts), as well as proceeds from co-product sales and fixed operating costs (operating labor, supervision, overhead, capital-related costs including costs associated with the maintenance of the production facility, local taxes and insurance) as well as proceeds from co-product sales.
The principal feedstocks for ethylene production are NGLs and naphtha. NGLs, such as ethane, propane and butane, are used primarily by ethylene producers in the U.S. and the Middle East. Naphtha, a lower octane form of gasoline derived from crude oil, is used primarily by ethylene producers in Europe and Asia. As shown by the chart below, on a global basis, in 2013, approximately 33.5% of ethylene production was ethane-based while the remainder was produced by other NGLs, naphtha or a combination of mixed NGLs, excluding ethane, and naphtha; Wood Mackenzie estimates that globally from 2000 through 2013, feedstock costs accounted for between 71% to 98% of the variable costs of ethylene production.
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The cost chart below illustrates the ethylene feedstock cost position of production facilities in different regions globally based on feedstock used. In general, Middle East ethane-based ethylene producers enjoy the lowest feedstock cost position due to the low price of ethane in that region. U.S. ethane-based producers enjoy the second lowest feedstock cost position due to the availability of low-cost, locally-produced ethane. Naphtha-based producers typically occupy the highest feedstock cost position. The vast majority of ethylene production facilities in Europe and Northeast Asia are naphtha-based. We expect U.S. ethane-based ethylene and ethylene derivative producers to retain this cost advantage relative to Asia and Europe due to the ample supply of domestically produced ethane.
Due to logistical constraints and transportation challenges, international trade in ethylene is limited; however, ethylene derivatives are readily transportable. For example, in 2013, approximately 21.7 billion pounds of ethylene derivatives, or 39.2% of U.S. production, were exported from the U.S., as compared to 166.8 million pounds of ethylene, or 0.30% of U.S. production, exported over the same period. As a result, the price of ethylene derivatives, particularly PE, is set globally by the marginal (highest cost) producer of that ethylene derivative. The cost of producing an ethylene derivative from ethylene is fairly uniform globally, therefore the cost of producing ethylene is the key driver of the cost of the ethylene derivative. Currently, the marginal producers in ethylene markets are Asian naphtha-based producers whose feedstocks, being crude oil derivatives, are typically priced on a global oil equivalent basis. Approximately 66.5% of global ethylene production is based on these higher-priced, non-ethane based feedstocks, the prices of which are linked to global oil prices (principally Brent crude oil prices). As a result, global ethylene and ethylene derivatives prices have generally been linked to movements in global oil prices for more than 20 years.
In the U.S., technological advances in horizontal drilling and fracturing techniques in shale formations have dramatically increased the supply of low-cost ethane feedstock. The spread between U.S. ethane and global oil prices has provided a significant margin advantage for U.S. ethane-based ethylene producers, such as OpCo. Throughout 2012 and 2013, production costs for U.S. ethylene production facilities utilizing ethane feedstock were significantly lower than global ethylene production facilities utilizing naphtha and other feedstocks. This significant cost advantage resulted in a positive cash cost differential that has ranged from $0.23 per pound to $0.48 per pound, and averaged $0.38 per pound, since 2012 for U.S. ethane-based ethylene producers as compared to Asia naphtha-based ethylene producers. Supply and demand dynamics in the U.S. ethane market are expected to keep U.S. ethane prices at relatively low levels, which should continue to support a U.S. ethylene cost advantage compared to high-cost ethylene producers in Europe and Asia.
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Current and projected lower feedstock costs have resulted in, and are anticipated to continue to result in, high profitability for U.S. ethane-based ethylene production facilities. While global oil prices have risen, resulting in an increase in global ethylene derivatives pricing, domestic natural gas and ethane prices have fallen. The chart on the left below shows the historic relationship between the price of global crude oil (Brent) and domestic natural gas, ethane, propane and butane. As illustrated, the price of domestic natural gas as a percentage of Brent crude oil has declined significantly. More importantly for the U.S. petrochemical industry, starting in 2009 ethane prices decoupled from global oil prices (see chart on the right below) and now more closely track domestic natural gas prices. In addition, U.S. ethane has also become more cost advantaged relative to other NGLs such as propane and butane, the prices of which remain more closely correlated to global oil prices. The resulting substantial spread between the relative pricing of domestic ethane and feedstocks linked to global oil has led to substantial profits for U.S. ethane-based ethylene producers. As illustrated in the chart on the right below, the advantage is projected to continue through the projection period.
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The chart below shows annual ethane-based ethylene producer cash margins since 2000. Over the last decade, cash margins were above $0.10 per pound every year other than 2009, when cash margins were below $0.10 per pound due to the global economic recession. From 2000 to 2003, ethane-based ethylene producers experienced multiple years of cash margins below $0.10 per pound due to relatively high U.S. natural gas prices as compared to global oil prices. This dynamic has reversed with U.S. natural gas and ethane prices declining precipitously due to new extraction techniques such as shale fracking and persistently elevated global oil prices, and the resulting spread is forecast to remain well in excess of $0.10 per pound.
Locations of Ethylene Production Assets Utilizing Advantaged Ethane Feedstock in the U.S.
U.S. ethane-based ethylene producers are primarily located in the Gulf Coast region, with ready access to Mont Belvieu, Texas, the largest NGLs hub in the U.S. Mt. Belvieu includes over 100 million barrels of NGLs and petroleum liquid storage capacity, more than 750,000 barrels per day of fractionation capacity and an extensive NGL distribution system. Ethane is transported to Mont Belvieu from almost all of the major shale basins and plays in the U.S., including the Permian, Anadarko, Denver and Piceance basins and the Eagle Ford, Barnett, Haynesville and Woodford shales. More recently, as a result of the commencement of operations in
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January 2014 of the ATEX pipeline that terminates at Mont Belvieu, U.S. ethane-based ethylene producers in the Gulf Coast have gained access to additional low-cost ethane from the Marcellus and Utica shale formations. Other midstream companies have announced plans to construct competing pipelines to move raw-mix NGLs to Mont Belvieu providing more ethane supply in the area. Furthermore, Enterprise Products is constructing the Aegis pipeline (which it expects will begin commercial operations in 2014-2015), which will also supply ethane to ethylene producers in Louisiana.
Global ethylene production capacity is estimated to have been approximately 341.2 billion pounds in 2013. U.S. ethylene production capacity is estimated to have accounted for approximately 17.9% of global ethylene production capacity and Europe is estimated to have accounted for approximately 20.4%. Combined with Asia at 34.1%, these three regions accounted for approximately 72.3% of global ethylene production capacity in 2013. During the next five years, as projected by Wood Mackenzie, global average annual ethylene production capacity net additions are projected to be approximately 3.8% per year, lagging the projected compound annual growth rate (CAGR) for ethylene demand of 4.4% per year. The global ethylene production operating rates are expected to improve from 86.4% in 2013 to an estimated 89.2% in 2018.
On a regional basis over the next five years, Asia, where the greatest growth in demand is expected, is projected to lead in new capacity additions, followed by the U.S. In the U.S., low-cost ethane supply from shale formations has led to the announcement of plans to increase ethylene production capacity. In the near term, ethylene production capacity has been and will be added by increasing production capacity at existing ethylene production facilities. In the longer term, additional capacity may be added through greenfield (i.e. new build) ethylene production facilities. Global-scale greenfield ethylene production facilities require significant capital investments and long lead times to permit, design and build. Over the last decade, most greenfield projects for ethylene and ethylene derivatives experienced significant delays and cost overruns.
Global ethylene demand as measured by production is estimated to have been approximately 292.6 billion pounds in 2013. Demand for ethylene is projected by Wood Mackenzie to grow at a CAGR of 4.3% from 2013 to approximately 360.8 billion pounds in 2018, exceeding the growth in ethylene production capacity. China and other regions in Asia are projected to continue to be the largest drivers of global ethylene and ethylene derivative demand growth, while demand in Europe is forecasted to grow in line with its combined gross domestic product for the next few years.
U.S. ethylene demand as measured by production was approximately 55.0 billion pounds in 2013. Demand for ethylene in the U.S. is projected by Wood Mackenzie to grow at a CAGR of 4.8% from 2013 to approximately 69.5 billion pounds in 2018. Key downstream ethylene demand drivers include ethylenes use in PE and PVC production, with U.S. PE demand (including net exports) expected to grow at a CAGR of 5.0% from approximately 31.0 billion pounds in 2013 to approximately 39.7 billion pounds in 2018 and U.S. PVC demand (including net exports) expected to grow at a CAGR of 4.7% from approximately 14.9 billion pounds in 2013 to approximately 18.7 billion pounds in 2018. As ethylene and ethylene derivative production grows, we expect a larger percentage of ethylene derivatives will be exported.
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The following chart depicts historical and forecast ethylene production operating rates in the U.S. and globally. U.S. ethylene production operating rates are currently above the global average and this is expected to continue through 2018, driven by the strong profitability associated with U.S. ethylene operations and the ability to profitably export ethylene derivative products into higher cost regions.
Ethylene Derivatives
Ethylene is used as a raw material to manufacture a wide variety of other chemical and polymer products, including PE, PVC, styrene and ethylene glycol. Westlakes strategic focus is on the production of PE and PVC. The following product flow diagram illustrates the ethylene production process from feedstock through derivative end products.
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Polyethylene (PE)
Polyethylene is the single largest ethylene derivative, accounting for approximately 60% of global ethylene consumption. PE is the most widely consumed polymer globally and is used in the manufacture of a wide variety of film, coatings and molded product applications primarily used in packaging, carpet fibers, automotive parts and many other products. PE is generally classified as low-density PE (LDPE), linear low-density PE (LLDPE) or high-density PE (HDPE). In general, the density correlates to the relative stiffness and strength of the products, and the differences between the products are in the molecular configuration. Each type of PE is best suited to specific applications based on these physical properties. LDPE is the most flexible and goes into end uses such as bread bags, dry cleaning bags, food wraps, milk carton coating, and food packaging. LLDPE is used for higher film strength applications such as stretch film and heavy duty sacks. HDPE is a rigid plastic and is used to manufacture products such as grocery, merchandise and trash bags, plastic containers, plastic closures and pipes. LLDPE and HDPE are the largest volume products and are highly commoditized, whereas LDPE is a more specialized product that tends to command higher prices and margins. Westlake only produces LDPE and LLDPE.
Westlake is fully integrated along its PE chain, internally producing all of its ethylene required to produce PE. Westlake is a leading producer of LDPE by capacity in the U.S. and predominantly uses the autoclave technology (as opposed to tubular technology). Autoclave LDPE is a more specialized, higher margin form of LDPE that feeds into a broad array of end products. In contrast, tubular LDPE is a more commoditized form of LDPE with a narrower range of applications. Approximately 80% of Westlakes LDPE production is autoclave. To date, most announced LDPE capacity additions in North America are projected to be tubular LDPE.
Global PE production capacity totaled approximately 211.1 billion pounds in 2013. U.S. capacity accounted for approximately 16.2% of global production capacity and Europe accounted for approximately 19.6% of global production capacity. Combined with Asia, these regions accounted for approximately 70.8% of global production capacity. The Middle East is a large PE exporting region, targeting mainly Asia. Global PE demand as measured by production is estimated to have been approximately 180.4 billion pounds in 2013. Asia is the largest PE-consuming region, accounting for an estimated 77.8 billion pounds in 2013. The U.S. is the third largest consuming region at 26.2 billion pounds in 2013. Global demand for PE is projected by Wood Mackenzie to grow at a CAGR of 4.9% from 2013 levels to 229.0 billion pounds in 2018. U.S. PE production is projected by Wood Mackenzie to grow at a CAGR of 5.0% to 39.7 billion pounds by 2018, including U.S. PE net exports. The charts below show estimated global PE capacity by region and U.S. PE capacity by producer for 2013.
Polyvinyl Chloride (PVC)
PVC, the third most widely used plastic globally, is an attractive alternative to traditional materials such as glass, metal, wood, concrete and other plastic materials because of its versatility, durability and cost-competitiveness. PVC derivative products account for approximately 10% of global ethylene consumption. PVC
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compounds are made by combining PVC with various additives in order to make either rigid, impact-resistant compounds or soft, flexible compounds. Rigid extrusion PVC compounds are commonly used in window frames, vertical blinds and construction products, including pipe and siding. Rigid injection-molding PVC compounds are used in specialty products such as computer housings and keyboards, appliance parts and bottles. Flexible PVC compounds are used for flooring, wire and cable insulation, automotive interior and exterior trims and packaging. Rigid PVC compounds account for approximately 85% of the PVC market, and Westlakes PVC production is entirely comprised of rigid PVC. The charts below show estimated U.S. PVC production capacity shares for 2013 by producer and consumption by end-use in 2013.
Global PVC demand as measured by production is estimated to have been approximately 85.9 billion pounds in 2013. Demand for PVC is projected by Wood Mackenzie to grow at a CAGR of 4.7% from 2013 levels to approximately 108.1 billion pounds in 2018. U.S. PVC production is estimated to have been approximately 14.9 billion pounds in 2013 and is projected by Wood Mackenzie to grow at a CAGR of 4.7% from 2013 levels to approximately 18.7 billion pounds by 2018, including U.S. PVC net exports. This growth rate reflects an expectation that U.S. construction markets recover over the projection period leading to faster demand growth for PVC.
PVC producers that internally produce chlorine and ethylene, the two key raw materials for PVC production enjoy significant operational and cost advantages relative to non-integrated PVC producers. Vertically integrated PVC producers are able to utilize their cost advantaged position to opportunistically target both the domestic construction market as well as export markets. This flexibility has generally resulted in vertically integrated PVC producers enjoying higher profitability and operating rates than their non-vertically integrated competitors. While most U.S.-based PVC producers internally produce their chlorine requirements, Westlake and Formosa Plastics Corp. are the only producers that are entirely or substantially integrated into ethylene as well, with other PVC producers reliant on the merchant market for their ethylene requirements.
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We are a Delaware limited partnership recently formed by Westlake to operate, acquire and develop ethylene production facilities and related assets. Westlake is a vertically integrated, international manufacturer and marketer of basic chemicals, polymers, and fabricated building products. Our business and operations are conducted through OpCo, a recently formed partnership between Westlake and us. At the consummation of this offering, our assets will consist of a 10% limited partner interest in OpCo as well as the general partner interest in OpCo. Because we own OpCos general partner, we have control over all of OpCos assets and operations. Westlake has retained a 90% limited partner interest in OpCo and will retain a significant interest in us through its ownership of our general partner as well as % of our limited partner units (consisting of common units and all of the subordinated units) and our incentive distribution rights.
OpCos assets will be comprised of three ethylene production facilities, which convert primarily ethane into ethylene, with an aggregate annual capacity of approximately 3.4 billion pounds and a 200-mile ethylene pipeline. OpCo will derive substantially all of its revenue from its ethylene production facilities. Ethylene is the worlds most widely used petrochemical in terms of volume and is a key building block used to produce a number of key derivatives, such as polyethylene (PE) and polyvinyl chloride (PVC), which are used in a wide variety of end markets including packaging, construction and transportation. Westlakes downstream PE and PVC production facilities will consume a substantial majority of the ethylene produced by OpCo. OpCo will generate revenue primarily by selling ethylene to Westlake and others, as well as through the sale of co-products of ethylene production, including propylene, crude butadiene, pyrolysis gasoline and hydrogen. Our sole revenue generating asset will be our 10% limited partner interest in OpCo.
In connection with this offering, OpCo will enter into a 12-year ethylene sales agreement with Westlake, under which Westlake will agree to purchase 95% of OpCos planned ethylene production each year, on a cost-plus basis that is expected to generate a fixed margin per pound of $0.10 (the Ethylene Sales Agreement). We believe this agreement will promote more stable and predictable cash flows for OpCo. Any ethylene not sold to Westlake and all co-products that are produced by OpCo will be sold to third parties on either a spot or contract basis. OpCo will also enter into a feedstock supply agreement with Westlake that will supply OpCo with all of the ethane (and any other feedstocks) required for OpCo to produce ethylene under the Ethylene Sales Agreement (the Feedstock Supply Agreement).
OpCo primarily uses ethane (a component of natural gas liquids, or NGLs) to produce ethylene. Approximately 66.5% of global ethylene production is based on higher priced feedstocks (primarily naphtha, as well as butane and propane) whose prices are linked to global oil prices. As a result, global ethylene and ethylene derivative prices have generally been linked to movements in global oil prices (principally Brent crude prices) for more than 20 years. In the U.S., technological advances in horizontal drilling and fracturing techniques in shale formations have dramatically increased the production of oil and gas and resulted in the oversupply of ethane. The spread between U.S. ethane and global oil prices has provided a margin advantage for U.S. ethane-based ethylene producers, such as OpCo. Throughout 2012 and 2013, production costs for U.S. ethane-based ethylene producers were significantly lower than global ethylene production facilities utilizing naphtha and other feedstocks. This feedstock cost advantage for U.S. ethane-based ethylene producers as compared to Asia naphtha-based ethylene producers has resulted in a positive cash cost differential that has ranged from $0.23 per pound to $0.48 per pound, and averaged $0.38 per pound, since 2012. Over the last decade, cash margins of U.S. ethane-based ethylene producers were above $0.10 per pound every year other than 2009, when cash margins were below $0.10 per pound due to the global economic recession.
Given Westlakes significant ownership interest in us following this offering, we believe Westlake is incentivized to offer us the opportunity to purchase additional assets that it owns, including additional interests in OpCo, although it is under no obligation to do so. We may also pursue organic growth opportunities at OpCo as
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well as acquisitions from third parties, which could be effected jointly with Westlake. OpCo currently plans to expand the capacity of one of its ethylene production facilities by approximately 250 million pounds in late 2015 or early 2016.
For the year ended December 31, 2013, OpCo had pro forma revenues of approximately $1,198.8 million, pro forma EBITDA of approximately $369.9 million and pro forma net income of approximately $295.5 million. For the same time period, we had pro forma EBITDA (net of noncontrolling interest) of approximately $37.0 million and pro forma net income (net of noncontrolling interest) of approximately $29.6 million. For the three months ended March 31, 2014, OpCo had pro forma revenues of approximately $333.4 million, pro forma EBITDA of approximately $90.9 million and pro forma net income of approximately $71.4 million. For the same time period, we had pro forma EBITDA (net of noncontrolling interest) of approximately $9.1 million and pro forma net income (net of noncontrolling interest) of approximately $7.1 million. Please read Summary Historical and Pro Forma Combined Carve-out Financial and Operating DataNon-GAAP Financial Measure for the definition of EBITDA and a reconciliation of EBITDA to net income, on a historical basis and pro forma basis, and to cash flow from operating activities, on a historical basis, which reconciliation is presented in accordance with generally accepted accounting principles (GAAP).
Our sole revenue generating asset will be our 10% limited partner interest in OpCo. We will also own the general partner interest of OpCo. OpCo, in turn, will own:
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two ethylene production facilities at Westlakes Lake Charles, Louisiana complex (Petro 1 and Petro 2, collectively referred to as Lake Charles Olefins), with an annual combined capacity of approximately 2.7 billion pounds; |
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one ethylene production facility at Westlakes Calvert City, Kentucky complex (Calvert City Olefins), with an annual capacity of approximately 630 million pounds; and |
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a 200-mile common carrier ethylene pipeline that runs from Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview PE production facility (the Longview Pipeline). |
As the owner of the general partner interest of OpCo, we will control all aspects of the management of OpCo, including its cash distribution policy. See BusinessOpCos Assets.
Our Ethylene Sales Agreement with Westlake
In connection with this offering, OpCo will enter into the Ethylene Sales Agreement with Westlake. The Ethylene Sales Agreement will have an initial term through December 31, 2026 and will automatically renew thereafter for successive 12-month terms unless terminated by either party. The Ethylene Sales Agreement requires Westlake to purchase 95% of OpCos planned ethylene production each year, subject to certain exceptions and a maximum commitment of 3.8 billion pounds per year. If OpCos actual production is in excess of planned ethylene production, Westlake will have the option to purchase up to 95% of production in excess of planned production.
Westlakes purchase price for the minimum commitment of ethylene under the Ethylene Sales Agreement will be calculated on a per pound basis and includes:
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the actual price paid by OpCo for the feedstock and natural gas to produce each pound of ethylene (subject to a cap and a floor on the amount of feedstock and natural gas used); plus |
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the estimated per pound operating costs (including selling, general and administrative expenses) for the year and a five-year average of future expected maintenance capital expenditures and other turnaround expenditures, less the proceeds received by OpCo from the sale of co-products associated with the ethylene purchased by Westlake; less |
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the proceeds received by OpCo from the sale of co-products associated with the ethylene purchased by Westlake; plus |
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a $0.10 per pound margin. |
Westlakes purchase price for any ethylene produced in excess of the planned production amount will generally equal OpCos estimated variable costs of producing the incremental ethylene, plus a $0.10 per pound margin. The estimated operating costs and maintenance capital expenditures and other turnaround expenditures will be adjusted at the end of each year to reflect certain changes in forecasted costs. If OpCos actual operating costs and maintenance capital expenditures and other turnaround expenditures are higher than the estimate for any year, or OpCos actual production is below the planned production amount upon which the per pound operating costs and maintenance capital expenditures and other turnaround expenditures are based, OpCo will be entitled to include in the fee for the succeeding year a surcharge to recover the resulting shortfall. If these costs are lower than the estimate, OpCo will retain the difference, but such difference may be reflected in periodic downward adjustments to the total estimated costs. The result of the fee structure is that OpCo should recover the portion of its total operating costs and maintenance capital expenditures and other turnaround expenditures attributable to Westlakes ethylene purchases. Approximately 5% of OpCos ethylene production will be sold on a spot or contract basis to third parties. Average U.S. industry margins for producing ethane-based ethylene are currently substantially in excess of $0.10 per pound, and averaged approximately $0.46 per pound since 2013.
Our primary business objective is to operate efficiently and safely and to grow our business responsibly, enabling us to increase the amount of cash distributions we make to our unitholders over time while maintaining our financial stability. We intend to accomplish these objectives by executing the following strategies:
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Generate Stable, Fee-Based Cash Flows . We are focused on generating stable cash flows by selling 95% of our ethylene production to Westlake under a long-term, fee-based contract. Our contract with Westlake includes minimum volume commitments and a pricing provision designed to permit OpCo to generally recover its costs (including selling, general and administrative expenses), plus a fixed $0.10 margin per pound of ethylene sold. In addition, we plan to supplement these relatively stable cash flows with additional cash flows by maximizing the price of the 5% of our ethylene production and associated co-products sold to third parties. We intend to maintain our focus on fee-based cash flows as we grow. |
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Focus on Operational Excellence . We intend to maximize the throughput of our production facilities while providing safe, reliable and efficient operations. We believe that a key component in generating stable cash flows is to continuously maintain, monitor and improve the safety and reliability of our operations. |
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Pursue Organic Growth Opportunities . We intend to enhance the profitability of OpCos existing assets by pursuing opportunities such as capacity expansion projects. OpCo plans to expand Petro 1 to increase capacity by approximately 250 million pounds in late 2015 or early 2016 and expects to finance this expansion through borrowings from Westlake. We may also pursue additional organic development projects complementary to our existing businesses, either through OpCo or independently. |
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Increase our Ownership of OpCo . We intend to increase our ownership interest in OpCo over time either by purchasing newly issued interests from OpCo or by purchasing outstanding interests in OpCo from Westlake. |
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Pursue Growth Opportunities Through Acquisitions . We intend to pursue acquisitions of complementary assets from third parties. Such acquisitions could be pursued independently by OpCo, independently by us or jointly with Westlake. |
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We believe we are well positioned to execute our business strategies based on the following competitive strengths:
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Stable and Predictable Cash Flows from OpCo . The Ethylene Sales Agreement is designed to cover our costs and provide a $0.10 margin per pound on a substantial majority of the ethylene we produce, reducing our exposure to commodity price volatility and more promoting stable cash flow. Westlake is obligated to purchase 95% of our planned ethylene production. In addition, Westlake is expected to exercise its option to purchase 95% of our excess production. We believe each of those factors should result in more stable cash flows. |
Each of OpCos ethylene production facilities requires turnaround maintenance on average every five years. OpCo intends to reserve approximately $ million per year to fund these turnaround expenditures. Reserving these amounts should enable OpCo to maintain steady cash flows for distributions while funding these significant non-annual expenditures. We intend to use $ million from the proceeds of this offering to fund OpCos initial balance for this turnaround reserve. Westlakes purchase price for ethylene purchased under the Ethylene Sales Agreement will include a component (adjusted annually) designed to cover, over the long term, substantially all of OpCos turnaround expenditures.
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Strategic Relationship with Westlake . We have a strategic relationship with Westlake, which we believe will provide both us and OpCo with a stable base of cash flows as well as opportunities for growth. Westlake has an investment grade credit rating and is well-capitalized. Westlake will own % of our limited partner units (consisting of common units and all of the subordinated units), our incentive distribution rights and our general partner. OpCos ethylene production facilities are a critical supply source for Westlakes production of diversified downstream products including PE and PVC and this vertical integration enables Westlake to capture the economic value of the entire ethylene value chain. In particular, we expect to benefit from the following aspects of our relationship with Westlake: |
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Attractive Downstream Polyethylene Product Mix . Westlake focuses on a low-density PE (LDPE) and linear low-density PE (LLDPE) product mix. LDPE has enjoyed higher margins than LLDPE and high-density PE (HDPE), the more commoditized PE grades. A majority of Westlakes production is LDPE. Westlake is a leading producer of LDPE by capacity in North America and predominantly uses the autoclave technology (as opposed to tubular technology), which is capable of producing higher margin specialty PE products. Autoclave LDPE is a more specialized form of LDPE that feeds into a broad array of end products. In contrast, tubular LDPE is a more commoditized form of LDPE with a narrower range of applications. Approximately 80% of Westlakes LDPE production is autoclave. Furthermore, most announced LDPE industry capacity additions in North American are projected to be tubular LDPE. |
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Highly Integrated Polymers and Vinyls Chain . Westlake is highly integrated along its PVC production chain. Most U.S.-based PVC producers including Westlake internally produce their chlorine requirements but most rely on the merchant market for their ethylene requirements. Westlake, however, is substantially integrated into ethylene as well. As a result, Westlake enjoys operational and cost advantages relative to non-ethylene integrated PVC producers. Westlakes vinyls, PVC and downstream PVC building products businesses are well positioned to capitalize on improvements in the construction market, which could drive additional usage of ethylene. |
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Acquisition and Growth Opportunities . Immediately after this offering we will own a 10% limited partner interest in OpCo. The opportunity to acquire additional ownership interests in OpCo is an important potential source of our future growth, although Westlake has no obligation to sell additional interests in OpCo to us. |
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Access to Operational and Industry Expertise . We expect to benefit from Westlakes extensive operational, commercial and technical expertise, as well as its industry relationships, as we seek to optimize and expand OpCos existing asset base. |
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Well Maintained Assets with Long History of Reliable Operations . OpCo continually invests in the maintenance and integrity of its assets. OpCos ethylene production facilities have operated on average above the industry average operating rate of 86.4% since 2005. OpCo conducts regularly scheduled turnarounds at each of its ethylene production facilities to perform planned major maintenance activities. OpCo is also continually focused on improving its asset portfolio and cost position. At Calvert City Olefins, OpCo recently completed an expansion and feedstock conversion project that resulted in a 180 million pound capacity expansion and also provided OpCo with 100% ethane feedstock capability at the facility. In addition, OpCo plans to expand Petro 1 by approximately 250 million pounds in late 2015 or early 2016. |
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Strategically Located Assets . OpCo benefits from the strategic location of its ethylene production facilities, which allows it to access low-cost ethane from the Gulf Coast and the Marcellus and Utica shale formations. Petro 1 and Petro 2 are both large-scale facilities with abundant feedstock sourcing capabilities given their proximity to Mont Belvieu, the largest NGLs hub on the Gulf Coast. Westlake currently supplies feedstock to Lake Charles Olefins through several pipelines from a variety of suppliers in Texas and Louisiana. Additionally, Calvert City Olefins is connected to the ATEX pipeline, allowing OpCo to use ethane feedstocks from the Marcellus and Utica shale formations. Westlakes Calvert City complex is one of the few PVC plants outside the Gulf Coast, and it is also the only fully integrated vinyls complex located outside of the Gulf Coast, giving it a shipping advantage for certain key markets, such as the Midwest, the Northeast and Canadian markets. OpCo recently completed an expansion and feedstock conversion project at this facility, which increased its ethylene production and enabled it to take advantage of low-cost ethane production from the Marcellus and Utica shale formations. |
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Conservative Financial Profile . OpCo has a $600.0 million intercompany credit agreement with Westlake that may be used to fund growth projects and working capital needs. We expect to have $ million of indebtedness at the closing of this offering and believe that our access to the debt and equity capital markets should provide us with the financial flexibility necessary to pursue organic expansion and acquisition opportunities. Westlake is a well-capitalized credit worthy sponsor with an investment grade credit rating and a significant amount of liquidity. Westlake had cash, cash equivalents and current marketable securities of $776.3 million as of March 31, 2014. Westlake may also provide direct and indirect financing to us from time to time. |
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Experienced Management Team . Our management team consists of senior officers of Westlake, who average over 28 years of experience in the petrochemical industry. We believe the level of operational and financial expertise of our management team will prove critical in successfully executing our business strategies. |
Our Relationship With Westlake
Our principal strength is our relationship with Westlake. Westlake is a vertically integrated, international manufacturer and marketer of basic chemicals, polymers and fabricated building products. Westlake benefits from highly integrated production facilities that allow it to process raw materials into higher value-added chemicals and building products. As of March 31, 2014, Westlake had 13.6 billion pounds per year of aggregate production capacity at 15 manufacturing sites in North America as well as a 59% interest in a joint venture that operates a vinyls facility in China. For the three months ended March 31, 2014 and the year ended December 31, 2013, Westlake had consolidated revenues of approximately $1.0 billion and $3.8 billion, respectively, and net income of $158.0 million and $610.4 million, respectively. Westlakes common stock trades on the New York Stock Exchange (NYSE) under the symbol WLK.
Westlake will retain a significant interest in us through its ownership of % of our limited partner units (consisting of common units and all of the subordinated units), our incentive distribution rights and our general partner. We believe Westlake will promote and support the successful execution of our business
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strategies because of its significant ownership in us and our general partner and its intention to use us to grow its ethylene business. We believe Westlake will offer us the opportunity to purchase additional assets from it, including additional interests in OpCo, although it is under no obligation to do so. We also may have the opportunity to pursue acquisitions which could be effected jointly with Westlake or OpCo.
We will enter into an omnibus agreement with Westlake in connection with this offering. Under the omnibus agreement, Westlake will agree to indemnify OpCo for certain environmental and other liabilities relating to OpCos ethylene production facilities and related assets and OpCo will indemnify Westlake for certain environmental liabilities for which Westlake is not otherwise obligated to indemnify OpCo and certain other losses and liabilities resulting from Westlake providing services to OpCo. We or OpCo will enter into a number of agreements with Westlake in connection with this offering, including the Ethylene Sales Agreement described under Our Ethylene Sales Agreement with Westlake and the Feedstock Supply Agreement. Please read Certain Relationships and Related Transactions.
While our relationship with Westlake and its subsidiaries is a significant strength, it is also a source of potential conflicts. Please read Conflicts of Interest and Fiduciary Duties.
Ethylene Production Facilities . OpCo operates three ethylene production facilities that are situated on real property leased to OpCo by Westlake pursuant to two 50-year site lease agreements. See Certain Relationships and Related TransactionsContractual ArrangementsSite Lease Agreement for a description of the site leases. Ethylene can be produced from either NGLs feedstocks, such as ethane, propane and butane, or from petroleum-derived feedstocks, such as naphtha. Lake Charles Olefins and Calvert City Olefins use ethane primarily as their feedstock. Calvert City Olefins can also use propane as a feedstock and Petro 2 can also use an ethane/propane mix, propane, butane or naphtha as a feedstock.
The following table provides information regarding OpCos ethylene production facilities as of June 30, 2014:
Plant Location (Description) |
Annual
Production
Capacity (millions of pounds) |
Feedstock |
Primary Uses of
Ethylene |
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Lake Charles, LA (Petro 1) |
1,250 | ethane | PE and PVC | |||||
Lake Charles, LA (Petro 2) |
1,490 |
ethane, ethane/propane mix, propane, butane or naphtha |
PE and PVC | |||||
Calvert City, KY (Calvert City Olefins) |
630 | ethane or propane | PVC | |||||
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Total |
3,370 | |||||||
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Longview Pipeline . OpCo owns the Longview Pipeline, which is a 200-mile common carrier ethylene pipeline, with a capacity of 3.5 million pounds per day that runs from Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview PE production facility.
Lake Charles Olefins
Two of OpCos ethylene production facilities, which we refer to as Petro 1 and Petro 2 and, collectively, as Lake Charles Olefins, are located at Westlakes Lake Charles complex. The combined capacity of OpCos two ethylene production facilities is approximately 2.7 billion pounds per year. In the first quarter of 2013, we completed the expansion of Petro 2 to increase the ethane-based ethylene capacity at the Lake Charles complex and its conversion to 100% ethane feedstock capability. The Petro 2 expansion increased ethane-based ethylene capacity by approximately 240 million pounds annually.
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OpCo currently plans to expand the capacity of Petro 1 by approximately 250 million pounds in late 2015 to early 2016. Along with increasing capacity, this expansion is projected to, among other things, improve ethylene recovery efficiency, improve mechanical reliability and reduce energy consumption in the ethylene production process. OpCo plans to fund the expansion through borrowings from Westlake. For more information on OpCos intercompany indebtedness, please read Certain Relationships and Related TransactionsIntercompany Loans.
Within Westlakes Lake Charles complex, Petro 1 and Petro 2 are connected by pipeline systems to Westlakes PE plants. Westlake may use the ethylene it purchases from OpCo at its Lake Charles complex or transfer it to its Geismar facility or its Longview complex, either through physical transportation or via exchange transactions. Westlake may also use the ethylene it purchases from OpCo with chlorine to produce ethylene dichloride and transport it via barge to Westlakes Calvert City complex.
In addition, OpCo produces ethylene co-products including chemical grade propylene, crude butadiene, pyrolysis gasoline and hydrogen. OpCo will sell its output of these co-products to external customers.
Calvert City Olefins
One of OpCos ethylene production facilities is located at Westlakes Calvert City complex, which we refer to as Calvert City Olefins. The capacity of Calvert City Olefins is 630 million pounds per year. Our recently completed project at Calvert City Olefins converted its feedstock from propane to ethane and increased its ethylene capacity by approximately 180 million pounds annually. This conversion enables OpCo to access low-cost ethane produced from the Marcellus Shale versus higher cost propane historically utilized by Calvert City Olefins as a feedstock.
OpCo owns a 200-mile 10-inch diameter ethylene pipeline system that connects the Equistar Pipeline, the Flint Hills Pipeline and the Lone Star Storage Facility in Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview PE production facility. The system has a capacity of 3.5 million pounds per day of ethylene and is operated as a common carrier pipeline by Buckeye Development & Logistics I LLC. As a common carrier intrastate pipeline in Texas, the system is subject to rate regulation under the Texas Utilities Code, as implemented by the Texas Railroad Commission, or the TRRC, and has a tariff on file with the TRRC.
Lake Charles Complex
Westlakes Lake Charles complex consists of three tracts of land on over 1,300 acres in Lake Charles, each within two miles of one another. The complex includes OpCos two ethylene plants as well as Westlakes two PE plants. The capacity of Westlakes two PE plants is approximately 1.4 billion pounds per year. One of Westlakes PE plants has two production units that use gas phase technology to produce LLDPE and give them the capability to produce HDPE. The other PE plant uses both autoclave and tubular technology to produce LDPE.
Westlake has the capability to consume all of the ethylene produced at Lake Charles Olefins to produce PE in its Olefins business and to produce ethylene dichloride (EDC), vinyl chloride monomer (VCM) and PVC in its Vinyls business. VCM is used to produce PVC. Westlake uses a majority of its PVC internally in the production of its building products. The remainder of its PVC is sold to downstream fabricators and the export market.
The Lake Charles complex is located near rail transportation facilities, which allows for efficient delivery of raw materials and prompt shipment of products to customers. In addition, the complex is connected by pipeline systems to Westlakes ethylene feedstock sources in both Texas and Louisiana.
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Calvert City Complex
Westlakes Calvert City complex is situated on 584 acres on the Tennessee River in Kentucky and includes Calvert City Olefins, as well as Westlakes chlor-alkali plant, VCM plant, PVC plant and large diameter PVC pipe plant. Westlake uses the ethylene produced at Calvert City Olefins to produce PVC.
The capacity of Westlakes chlor-alkali plant is 550 million pounds of chlorine and 605 million pounds of caustic soda per year. Westlakes chlorine plant utilizes efficient, state-of-the-art membrane technology. Westlakes VCM plant has a capacity of 1.3 billion pounds per year and Westlakes Calvert City PVC plant has a capacity of 1.1 billion pounds per year. Westlakes large diameter PVC pipe facility has a capacity of approximately 77 million pounds per year. Westlake expanded its PVC plant in Calvert City, which allows Westlake to take advantage of the increased ethylene production at Calvert City Olefins and to provide additional PVC resin to meet the growing demands of Westlakes global customers. The expansion of the Calvert City PVC plant increases PVC resin capacity by approximately 200 million pounds annually and will be completed during the second half of 2014.
Longview Complex
Westlakes Longview complex consists of three PE plants and a specialty PE wax plant. The plants are located inside a large Eastman Chemical Company (Eastman) facility where Eastman produces a number of other chemical products. Westlakes Longview plants have a total capacity of 1.1 billion pounds of PE per year. The technologies Westlake uses to produce PE at Longview are similar to the technologies that Westlake employs at Lake Charles. Two of the three PE plants use autoclave technology to produce LDPE, and the other PE plant uses gas phase technology to produce LLDPE and give it the capacity to produce HDPE.
Geismar Facility
Westlakes vinyls facility in Geismar, Louisiana is situated on 188 acres on the Mississippi River. The site includes a PVC plant with a capacity of 600 million pounds per year and a VCM plant with a capacity of 550 million pounds per year with related ethylene dichloride capacity. In December 2013, Westlake announced the completion and start-up of a chlor-alkali plant at its Geismar facility. The new chlor-alkali unit is designed to produce up to 700 million pounds of chlorine annually.
Building Products Plants
Westlake manufactures and markets water, sewer, irrigation and conduit pipe products under the North American Pipe brand and specialty pipe, fittings, profiles and foundation building products under the North America specialty Products brand. Westlake also manufactures and markets PVC fence, decking, windows and door profiles under the Westech Building Products brand. All of Westlakes building products are sold to external customers. Predominantly all of the PVC Westlake requires for its building products is produced internally. Westlake purchases the remainder of its PVC requirements from third parties at market prices. As of February 14, 2014, Westlake operated 12 building products plants, consisting of eight PVC pipe plants, two specialty PVC pipe and foundation building products plants and two profiles plants producing PVC fence, decking, windows and door profiles. The majority of the plants are strategically located near the Calvert City complex and serve customers throughout the middle U.S. The combined capacity of Westlakes 12 building products plants is 1.2 billion pounds per year.
Historically, Westlakes technology strategy has been to selectively acquire licenses from third parties and develop proprietary technology. Its selection process incorporates many factors, including the cost of the technology, its customers requirements, raw material and energy consumption rates, product quality, capital
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costs, maintenance requirements and reliability. After acquiring or developing a technology, Westlake devotes considerable effort to effectively employ the technology and further its development, with a view towards continuous improvement of its competitive position.
OpCo has perpetual and paid-up licenses for steam cracking and process recovery technology used at its ethylene plants from the following third-party providers:
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At Lake Charles: |
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Kellogg, Brown and Root; |
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Chicago Bridge & Iron/Lummus; and |
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Technip Stone & Webster. |
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At Calvert City: |
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CFBraun; and |
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Technip Stone & Webster. |
Environmental and Other Regulations
As is common in our industry, producing ethylene involves the use, storage, transportation and disposal of large quantities of toxic and hazardous materials, and our manufacturing operations require the generation and disposal of large quantities of hazardous wastes. We are subject to extensive, evolving and increasingly stringent federal, state and local environmental laws and regulations, which address, among other things, the following:
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emissions to the air; |
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discharges to land or to surface and subsurface waters; |
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other releases into the environment; |
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remediation of contaminated sites; |
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generation, handling, storage, transportation, treatment and disposal of waste materials; and |
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maintenance of safe conditions in the workplace. |
We are subject to environmental laws and regulations that can impose civil and criminal sanctions and that may require us to mitigate the effects of contamination caused by the release or disposal of hazardous substances into the environment. These laws include the federal Clean Air Act (CAA), the federal Water Pollution Control Act (the Clean Water Act), the Resource Conservation and Recovery Act (RCRA), CERCLA, the Toxic Substances Control Act and various other federal, state and local laws and regulations. Examples of environmental regulations and risks associated with our business are outlined below.
The Federal Clean Air Act . The CAA and its implementing regulations, as well as the corresponding state laws and regulations, impose 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, its implementing regulations, and permits issued under the CAA, could result in fines, penalties or other sanctions.
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
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the Emergency Planning and Community Right-to-Know Act. 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. Federal and state regulatory agencies can impose administrative, civil and criminal penalties for non-compliance with discharge permits or noncompliance with other requirements of the CWA and analogous state laws and regulations.
Contract Disputes with Goodrich and PolyOne . In connection with the 1990 and 1997 acquisitions of the Goodrich Corporation (Goodrich) chemical manufacturing complex in Calvert City, Kentucky, which is a portion of the B.F. Goodrich superfund site, Goodrich agreed to indemnify Westlake for any liabilities related to preexisting contamination at the complex. Westlake agreed to indemnify Goodrich for post-closing contamination caused by Westlakes operations. The soil and groundwater at the complex had been extensively contaminated under Goodrichs operations. In 1993, Goodrich spun off the predecessor of PolyOne Corporation (PolyOne), and that predecessor assumed Goodrichs indemnification obligations relating to preexisting contamination.
In 2003, litigation arose among Westlake, Goodrich and PolyOne with respect to the allocation of the cost of remediating contamination at the site. The parties settled this litigation in December 2007, and the case was dismissed. In the settlement the parties agreed that, among other things: (i) PolyOne would pay 100% of the costs (with specified exceptions), net of recoveries or credits from third parties, incurred with respect to environmental issues at the Calvert City site from August 1, 2007 forward; (ii) either Westlake or PolyOne might, from time to time in the future (but not more than once every five years), institute an arbitration proceeding to adjust that percentage; and (iii) Westlake and PolyOne would negotiate a new environmental remediation utilities and services and secondment agreement to cover Westlakes provision to or on behalf of PolyOne of certain environmental remediation services at the site. The current environmental remediation activities at the Calvert City complex do not have a specified termination date but are expected to last for the foreseeable future. The costs incurred by Westlake that have been invoiced to PolyOne to provide the environmental remediation services were $3.3 million and $2.7 million in 2013 and 2012, respectively. By letter dated March 16, 2010, PolyOne notified Westlake that it was initiating an arbitration proceeding under the settlement agreement. In this proceeding, PolyOne seeks to readjust the percentage allocation of costs and to recover approximately $1.4 million from Westlake in reimbursement of previously paid remediation costs. The arbitration is currently stayed pending the outcome of discussions between other parties and their insurance carriers.
State Administrative Proceedings . There are several administrative proceedings in Kentucky involving Westlake, Goodrich and PolyOne related to the same manufacturing complex in Calvert City, which includes OpCos ethylene production facility in Calvert City. In 2003, the Kentucky Environmental and Public Protection Cabinet (the Cabinet) re-issued Goodrichs RCRA permit which requires Goodrich to remediate contamination at the Calvert City manufacturing complex. Both Goodrich and PolyOne challenged various terms of the permit in an attempt to shift Goodrichs clean-up obligations under the permit to Westlake. Westlake intervened in the proceedings. The Cabinet has suspended all corrective action under the RCRA permit in deference to a remedial investigation and feasibility study (RIFS) being conducted, under the auspices of the U.S. Environmental Protection Agency (EPA) pursuant to an Administrative Settlement Agreement (AOC), which became effective on December 9, 2009. See Federal Administrative Proceedings below. Periodic status conferences will be held to evaluate whether additional proceedings will be required.
Federal Administrative Proceedings . In May 2009, the Cabinet sent a letter to the EPA requesting the EPAs assistance in addressing contamination at the Calvert City site under CERCLA. In its response to the Cabinet, the EPA stated that it concurred with the Cabinets request and would incorporate work previously
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conducted under the Cabinets RCRA authority into the EPAs cleanup efforts under CERCLA. Since 1983, the EPA has been addressing contamination at an abandoned landfill adjacent to our plant which had been operated by Goodrich and which was being remediated pursuant to CERCLA. During the past three years, the EPA has directed Goodrich and PolyOne to conduct additional investigation activities at the landfill and at the Calvert City site. In June 2009, the EPA notified Westlake that Westlake may have potential liability under section 107(a) of CERCLA at its plant site. Liability under section 107(a) of CERCLA is strict and joint and several. The EPA also identified Goodrich and PolyOne, among others, as potentially responsible parties at the plant site. Westlake negotiated, in conjunction with the other potentially responsible parties, the AOC and an order to conduct the RIFS. Due to our ownership and current operation of the property, we may be subject to additional requirements and liabilities under CERCLA and we cannot assure you that any additional requirements and liabilities under CERCLA will not be material.
Louisiana Notice of Violations . The Louisiana Department of Environmental Quality (LDEQ) has issued notices of violations (NOVs) regarding our assets, and those of Westlake, for various air compliance issues. We and Westlake are working with LDEQ to settle these claims, and a global settlement of all claims is being discussed. While settlement may result in a total civil penalty in excess of $100,000, such a settlement will likely cover assets owned by both us and Westlake, and to the extent that it covers our assets, the liability will be retained by Westlake.
General . It is our policy to comply with all environmental, health and safety requirements and to provide safe and environmentally sound workplaces for our employees. In some cases, compliance can be achieved only by incurring capital expenditures. In 2013, Westlake made capital expenditures of $6.1 million related to environmental compliance. We estimate that OpCo will make capital expenditures of approximately $1.8 million in 2014 and $12.5 million in 2015, respectively, related to environmental compliance. We anticipate that stringent environmental regulations will continue to be imposed on us and the industry in general. Although we cannot predict with certainty future expenditures, management believes that our current spending trends will continue.
It is difficult to estimate the future costs of environmental protection and remediation because of many uncertainties, including uncertainties about the status of laws, regulations and information related to individual locations and sites and our ability to rely on third parties to carry out such remediation. Subject to the foregoing, but taking into consideration our experience regarding environmental matters of a similar nature and facts currently known, and except for the outcome of pending litigation and regulatory proceedings, which we cannot predict, but which could have a material adverse effect on us, we believe that capital expenditures and remedial actions to comply with existing laws governing environmental protection will not have a material adverse effect on our business and financial results.
Neither we nor OpCo has any employees. As of March 31, 2014, Westlake had 2,169 employees, of which 487 were involved in the ethylene business of our Predecessor. Of these 487 employees involved in the ethylene business, 53 are covered by collective bargaining agreements that expire on November 1, 2014. There have been no strikes or lockouts, and Westlake has not experienced any work stoppages throughout its history. We believe that Westlakes relationship with the local union officials and bargaining committees is open and positive.
In the ordinary conduct of our business, we and Westlake and our and Westlakes subsidiaries, including OpCo, are subject to periodic lawsuits, investigations and claims, including environmental claims and employee related matters. See Environmental, Health and Safety Matters. Although we cannot predict with certainty the ultimate resolution of lawsuits, investigations and claims asserted against us, we do not believe that any
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currently pending legal proceeding or proceedings to which we or Westlake or any of our or Westlakes subsidiaries, including OpCo, are a party will have a material adverse effect on our business, results of operations, cash flows or financial condition.
Due to the Ethylene Sales Agreement and integration with Westlake, OpCo does not directly compete with other ethylene producers for 95% of the planned volumes it produces. It is only on the 5% of planned ethylene volumes not sold to Westlake where OpCo competes with other regional merchant ethylene producers, including LyondellBasell Industries, Royal Dutch Shell and Flint Hills Resources. Westlake converts the ethylene it purchases into two key derivative products, PE and PVC, and faces competition from other chemical companies in these markets.
In PE and PVC, Westlake competes on the basis of customer service, product deliverability, quality, consistency, performance and price. In PE, Westlake competes with some of the worlds largest chemical companies, including Chevron Phillips Chemical Company, The Dow Chemical Company, ExxonMobil Chemical Company, LyondellBasell Industries and NOVA Chemicals Corporation. In PVC, Westlake competes with other producers including Formosa Plastics Corporation, Axiall Corporation, Oxy Chem, LP and Shintech, Inc. Westlake additionally converts PVC into building products. Competition in the building products market is based on on-time delivery, product quality, customer service, product consistency and price. Westlake competes in the building products market with other producers and fabricators including Diamond Plastics Corporation and JM Eagle.
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Management of Westlake Chemical Partners LP
We are managed and operated by the board of directors and executive officers of our general partner, Westlake Chemical Partners GP LLC, a wholly owned subsidiary of Westlake. As a result of owning our general partner, Westlake will have the right to appoint all members of the board of directors of our general partner, including at least three directors meeting the independence standards established by the NYSE. At least one of our independent directors will be appointed prior to the date our common units are listed for trading on the NYSE. Our unitholders will not be entitled to elect our general partner or its directors or otherwise directly participate in our management or operations. Our general partner owes certain contractual duties to our unitholders as well as a fiduciary duty to its owners.
Upon the closing of this offering, we expect that our general partner will have five directors, at least one of whom will be independent as defined under the standards established by the NYSE and the Exchange Act. The NYSE does not require a listed publicly traded partnership, such as ours, to have a majority of independent directors on the board of directors of our general partner or to establish a compensation committee or a nominating committee. However, our general partner is required to have an audit committee of at least three members, and all 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 consummation of this offering. Westlake will appoint at least one independent director to the board of directors of our general partner prior to the date our common units first trade on the NYSE, a second independent director within 90 days of the effective date of this prospectus and a third independent director not later than one year following the date of this prospectus.
All of the executive officers of our general partner listed below will allocate their time between managing our business and affairs and the business and affairs of Westlake. The amount of time that our executive officers will devote to our business and the business of Westlake will vary in any given period based on a variety of factors. We expect that our general partners executive officers will devote as much time as is necessary for the proper conduct of our business and affairs. However, their fiduciary duties to Westlake and other obligations may prevent them from devoting sufficient time to our business and affairs.
Following the consummation of this offering, we will reimburse our general partner and its affiliates, including Westlake, for all expenses they incur and payments they make on our behalf. Our partnership agreement does not set a limit on the amount of expenses for which our general partner and its affiliates may be reimbursed. These expenses include those we and OpCo will incur under the services and secondment agreement and the omnibus agreement, including 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. Please read Certain Relationships and Related TransactionsContractual Agreements.
In evaluating director candidates for our general partner, Westlake will assess whether a candidate possesses the integrity, judgment, knowledge, experience, skill and expertise that are likely to enhance the boards ability to manage and direct our affairs and business, including, when applicable, to enhance the ability of committees of the board to fulfill their duties.
Executive Officers and Directors of Our General Partner
The following table shows information for the executive officers and directors of our general partner upon the consummation of this offering. Directors hold office until their successors have been elected or qualified or until the earlier of their death, resignation, removal or disqualification. Executive officers serve at the discretion of the board. The President, Chief Executive Officer and Director and the Chairman of the Board of Directors of our general partner are brothers. Otherwise, there are no familial relationships among any of our general partners
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directors or executive officers. Some of the directors and all of the executive officers of our general partner also serve as executive officers of Westlake. The directors and executive officers of our general partner have a fiduciary duty to manage our general partner in a manner beneficial to Westlake. Please read Risk FactorsRisks Inherent in an Investment in Us and Conflicts of Interest and Fiduciary Duties. Each director and executive officer of our general partner will be fully indemnified by us for actions associated with being a director or executive officer to the fullest extent permitted under Delaware law pursuant to our partnership agreement.
Name |
Age |
Position With Our General Partner |
||||
Albert Chao |
65 | President, Chief Executive Officer and Director | ||||
James Chao |
66 | Chairman of the Board of Directors | ||||
M. Steven Bender |
58 | Senior Vice President, Chief Financial Officer and Director | ||||
L. Benjamin Ederington |
44 | Vice President, General Counsel and Director | ||||
David R. Hansen |
64 | Senior Vice President, Administration | ||||
George Mangieri |
63 | Vice President and Chief Accounting Officer | ||||
Lawrence Teel |
55 | Senior Vice President, Olefins | ||||
Max L. Lukens |
66 | Director |
Albert Chao . Mr. Chao has been our general partners President, Chief Executive Officer and a director since our general partners formation in March 2014 and the sole director of OpCos general partner since its formation. Additionally, Mr. Chao has been Westlakes President since May 1996 and a director since June 2003. Mr. Chao became Westlakes Chief Executive Officer in July 2004. Mr. Chao has over 40 years of global experience in the chemical industry. In 1985, Mr. Chao assisted his father T.T. Chao and his brother James Chao in founding Westlake, where he served as Executive Vice President until he succeeded James Chao as President. He has held positions in the Controllers Group of Mobil Oil Corporation, in the Technical Department of Hercules Incorporated, in the Plastics Group of Gulf Oil Corporation and has served as Assistant to the Chairman of China General Plastics Group and Deputy Managing Director of a plastics fabrication business in Singapore. Mr. Chao is a trustee of Rice University. Mr. Chao received a bachelors degree from Brandeis University and an M.B.A. from Columbia University.
James Chao . Mr. Chao has been Chairman of the Board of Directors of our general partner since our general partners formation in March 2014. Mr. Chao has also been Westlakes Chairman of the Board since July 2004 and became a director in June 2003. From May 1996 to July 2004, he served as Westlakes Vice Chairman. Mr. Chao also has responsibility for the oversight of Westlakes Vinyls business. Mr. Chao has over 40 years of global experience in the chemical industry. In November 2010, he resigned as the Executive Chairman of Titan Chemicals Corp. Bhd, a post he held since June 2003. Prior to that he served as Titans Managing Director. He has served as a Special Assistant to the Chairman of China General Plastics Group and worked in various financial, managerial and technical positions at Mattel Incorporated, Developmental Bank of Singapore, Singapore Gulf Plastics Pte. Ltd. and Gulf Oil Corporation. Mr. Chao, along with his brother Albert Chao, assisted their father T.T. Chao in founding Westlake. Mr. Chao is on the board of Baylor College of Medicine and KIPP (Knowledge is Power Program). Mr. Chao received his B.S. degree from Massachusetts Institute of Technology and an M.B.A. from Columbia University.
M. Steven Bender . Mr. Bender has been our general partners Senior Vice President, Chief Financial Officer and a director since our general partners formation in March 2014. Mr. Bender has also been Westlakes Senior Vice President and Chief Financial Officer since February 2008. In addition, Mr. Bender has served as its Treasurer since July 2011, a position he also held from February 2008 until December 2010. From February 2007 to February 2008, Mr. Bender served as Westlakes Vice President, Chief Financial Officer and Treasurer and from June 2005 to February 2007, he served as its Vice President and Treasurer. From June 2002 until June 2005, Mr. Bender served as Vice President and Treasurer of KBR, Inc., and from 1996 to 2002 he held the position of Assistant Treasurer for Halliburton Company. Prior to that, he held various financial positions within that company. Additionally, he was employed by Texas Eastern Corporation for over a decade in a variety of increasingly responsible audit, finance and treasury positions. Mr. Bender received a Bachelor of Business Administration from Texas A&M University and an M.B.A. from Southern Methodist University. Mr. Bender is also a Certified Public Accountant.
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L. Benjamin Ederington . Mr. Ederington has been our general partners Vice President, General Counsel, Corporate Secretary and a director since our general partners formation in March 2014. He has also been Westlakes Vice President, General Counsel and Corporate Secretary since October 2013. Prior to joining Westlake, he held a variety of senior legal positions at LyondellBasell Industries, N.V. and its predecessor companies, LyondellBasell Industries AF SCA and Lyondell Chemical Company, including most recently as Associate General Counsel, Commercial & Strategic Transactions from March 2010 to September 2013, interim Director of Government Affairs from March 2010 to April 2011 and Lead Counsel, Chemicals from December 2007 to March 2010. He began his legal career more than 17 years ago at the law firm of Steptoe & Johnson, LLP. Mr. Ederington holds a B.A. from Yale University and received his J.D. from Harvard University.
David R. Hansen . Mr. Hansen has been our general partners Senior Vice President, Administration, since July 2014. In addition he has served as Westlakes Senior Vice President, Administration since September 1999 and served as Vice President, Human Resources from 1993 to 1999. From August 2003 until July 2004 he was also Westlakes Secretary. Prior to joining Westlake in 1990, Mr. Hansen served as Director of Human Resources & Administration for Agrico Chemical Company and held various human resources and administrative management positions within the Williams Companies. He has 30 years of administrative management experience in the oil, gas, energy, chemicals, pipeline, plastics and computer industries. He received his Bachelor of Science degree in Social Science from the University of Utah and has completed extensive graduate work toward an M.S. in Human Resources Management.
George J. Mangieri . Mr. Mangieri has been our general partners Vice President and Chief Accounting Officer since our general partners formation in March 2014. Mr. Mangieri has held those same positions for Westlake since February 2007. From April 2000 to February 2007, he was also its Vice President and Controller. Prior to joining Westlake, Mr. Mangieri served as Vice President and Controller of Zurn Industries, Inc. from 1998 to 2000. He previously was employed as Vice President and Controller for Imo Industries, Inc. in New Jersey, and spent over 10 years in public accounting with Ernst & Young LLP, where he served as Senior Manager. He received his Bachelor of Science degree from Monmouth College and is a Certified Public Accountant.
Lawrence (Skip) Teel . Mr. Teel has been our general partners Senior Vice President, Olefins since June 2014. Before that, he served as Westlakes Vice President, Olefins since July 2012. Mr. Teel joined Westlake in September 2009 as Director, Olefins and Feedstock after a 23-year career with Lyondell Chemical Company where he served as the Vice President, Refining from August 2006 to May 2008. From 2001 to 2006, Mr. Teel held the position of Director, Corporate Planning and Business Development at Lyondell Chemical Company. During his career, he has held a variety of marketing, operations and general management assignments. Mr. Teel received a B.S. in Chemical Engineering from New Mexico State University and an M.S. in Finance from the University of Houston.
Max L. Lukens . Mr. Lukens has been a director of our general partner since June 2014. He has been a director of Westlake since August 2004. Since May 2006, Mr. Lukens has managed his personal investments. Mr. Lukens served as President and Chief Executive Officer of Stewart & Stevenson Services, Inc. until May 2006 and prior to that served as its Chairman of the Board from December 2002 to March 2004, and Interim Chief Executive Officer and President, from September 2003 to March 2004. He was also previously employed by Baker Hughes Incorporated from 1981 to January 2000, where he served as Baker Hughes Chairman of the Board, President and Chief Executive Officer from 1997 to January 2000. Between 2003 and 2009, he served as a director of NCI Building Systems, Inc. He also served as a director of The Pep BoysManny, Moe & Jack from August 2006 until October 2007 and again from June 2009 until September 2011. He was also Chairman of the Board of that company from June 2009 until he resigned in September 2011. Mr. Lukens was a Certified Public Accountant with Deloitte Haskins & Sells for 10 years and received both his B.S. and M.B.A. degrees from Miami University.
Committees of the Board of Directors
The board of directors of our general partner will have an audit committee and a conflicts committee. We do not expect that we will have a compensation committee, but rather that the board of directors of our general partner will approve equity grants to directors and employees.
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Audit Committee
Our general partner is required to have an audit committee of at least three members, and all 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 consummation of this offering as described above. Max L. Lukens will be the sole member and chairman of the audit committee as of the date the common units are first listed on the NYSE. The audit committee 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 (i) retain and terminate our independent registered public accounting firm, (ii) approve all auditing services and related fees and the terms thereof performed by our independent registered public accounting firm and (iii) 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 management of our general partner.
Conflicts Committee
At least one independent member of the board of directors of our general partner will serve on a conflicts committee to review specific matters that the board believes may involve conflicts of interest and determines to submit to the conflicts committee for review. The conflicts committee will determine if the resolution of the conflict of interest is adverse to the interest of the partnership. The members of the conflicts committee may not be officers or employees of our general partner or directors, officers or employees of its affiliates, including Westlake, and must meet the independence standards established by the NYSE and the Exchange Act to serve on an audit committee of a board of directors, along with other requirements in our partnership agreement. Any matters approved by the conflicts committee will be conclusively deemed to be approved by us and all of our partners and not a breach by our general partner of any duties it may owe us or our unitholders.
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COMPENSATION DISCUSSION AND ANALYSIS
We and our general partner were formed in March 2014 and will have no material assets or operations until the closing of this offering. Accordingly, our general partner has not accrued and will not accrue any obligations with respect to compensation of its directors and executive officers for any periods prior to the closing of this offering. Because the executive officers of our general partner are employed by Westlake, compensation of the executive officers, other than the long-term incentive plan described below, will be set by Westlake. The executive officers of our general partner will continue to participate in Westlakes employee benefit plans and arrangements, including plans that may be established in the future. Our general partner has not entered into any employment agreements with any of its executive officers.
Our general partner will not receive a management fee or other compensation for its management of our partnership under the omnibus agreement with Westlake or otherwise. Under the terms of our partnership agreement, we will reimburse our general partner, and its affiliates for all direct and indirect expenses they incur and payments they make on our behalf and all other expenses allocable to us or otherwise incurred by our general partner or its affiliates in connection with operating our business. The partnership agreement does not set a limit on the amount of expenses for which our general partner and its affiliates may be reimbursed. These expenses include expenses we and OpCo will incur under the services and secondment agreement and the omnibus agreement, including salary, bonus, incentive compensation and other amounts paid, if any, to persons who perform services for us or on our behalf and expenses allocated to our general partner by its affiliates. The partnership agreement provides that our general partner will determine the expenses that are allocable to us. Please read Certain Relationships and Related TransactionsDistributions and Payments to Our General Partner and Its Affiliates and The Partnership AgreementReimbursement of Expenses.
We do not directly employ any of the persons responsible for managing our business, and we do not have a compensation committee. We are managed by our general partner and our executive officers are employees of Westlake. References to our directors and our executive officers refer to the directors and executive officers of our general partner. Each of our executive officers is also an executive officer of Westlake, and we expect that our executive officers will devote less than a majority of their total business time to the management of our assets. We reimburse Westlake for the services provided to us by Westlakes employees, including our executive officers. Our reimbursement is governed by the terms of the omnibus agreement as well as our partnership agreement and will be based on Westlakes methodology used for allocating compensation expenses to us. We will be solely responsible for paying the expenses associated with any awards granted under the long-term incentive plan described below which has been adopted by our general partner.
The compensation of our executive officers (other than long-term incentive plan benefits described below) is and will be determined and approved by Westlake. We expect that our executive officers will not receive additional compensation for their service as such.
Prior to the completion of this offering, we expect our general partner to adopt the Westlake Chemical Partners LP Long-Term Incentive Plan, or the LTIP, pursuant to which directors, officers (including the named executive officers), certain employees and certain consultants of our general partner and its affiliates will be eligible to receive awards with respect to our common units. The description of the LTIP set forth below is a summary of the material anticipated features of the LTIP. This summary, however, does not purport to be a complete description of all of the provisions of the LTIP and is qualified in its entirety by reference to the LTIP, the form of which is filed as an exhibit to this registration statement.
The LTIP will provide for the grant, from time to time, at the discretion of the board of directors of our general partner, of unit options, unit appreciation rights, restricted units, phantom units, unit awards, distribution
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equivalent rights (DERs) or other unit-based awards. Subject to adjustment in the event of certain transactions or changes in capitalization, an aggregate of common units may be delivered pursuant to awards under the LTIP. Units subject to awards that are forfeited, cancelled, exercised, paid or otherwise terminated without the delivery of units will be available for delivery pursuant to other awards under the LTIP. The LTIP will be administered by the board of directors of our general partner or a committee thereof, either of which we refer to herein as the committee. The LTIP will be designed to promote our interests, as well as the interests of our unitholders, by rewarding the directors, officers, employees and consultants of our general partner and its affiliates for superior performance, as well as by strengthening our general partners and its affiliates abilities to attract, retain and motivate individuals who are essential for our growth and profitability.
Unit Options and Unit Appreciation Rights . The LTIP will permit the grant of unit options and unit appreciation rights 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 as of the exercise date over a specified exercise price, either in cash or in common units, as determined in the discretion of the committee. Unit options and unit appreciation rights may be granted to such eligible individuals and with such terms as the committee may determine, consistent with the terms of the LTIP; however, the exercise price of a unit option or unit appreciation right generally must be equal to or greater than the fair market value of a common unit on the date of grant.
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 participant holds a common unit that is not subject to forfeiture. A phantom unit is a notional unit that entitles the participant to receive a common unit (or such greater or lesser number of common units as may be provided pursuant to the applicable award agreement) upon the vesting of the phantom unit (or on a deferred basis upon specified future dates or events) or, in the discretion of the committee, cash equal to the fair market value of a common unit (or such greater or lesser number of common units). The committee may make grants of restricted and phantom units under the LTIP that contain such terms, consistent with the LTIP, as the committee may determine are appropriate, including the period over which restricted or phantom units will vest. The committee may, in its discretion, base vesting on the participants completion of a period of service or upon the achievement of specified performance criteria or as otherwise set forth 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. The committee, in its discretion, may also grant tandem DERs with respect to phantom units. DERs are described in more detail below.
Unit Awards . A unit award is an award of common units that are fully vested upon grant and are not subject to forfeiture. Unit awards may be paid in addition to, or in lieu of, cash or other compensation that would otherwise be payable to a participant. A unit award may be wholly discretionary in amount or it may be paid with respect to a bonus or other incentive compensation award, the amount of which is determined based on the achievement of performance criteria or other factors.
Distribution Equivalent Rights . The committee is authorized to grant DERs either in tandem with an award or as a separate award. DERs are contingent rights to receive an amount in cash, common units, restricted units, phantom units or any combination thereof, as determined by the committee in its discretion, equal to the cash distributions made on our common units during the period in which such award remains outstanding. The terms and conditions applicable to DERs will be determined by the committee and set forth in an award agreement.
Other Unit-Based Awards . The LTIP will 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 an other unit-based award may be based on a participants continued service, the achievement of specified performance criteria or other measures. On vesting (or on a deferred basis upon specified future dates or events), an other unit-based award may be paid in cash and/or in units, as determined by the committee.
Source of Common Units; Cost; Proceeds . Common units to be delivered with respect to awards under the LTIP may consist, in whole or in part, of common units acquired by us or our general partner in the open market,
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common units already owned by our general partner or us, common units acquired by our general partner directly from us, one of our affiliates or any other person, new common units otherwise issuable by us or any combination of the foregoing, as determined by the committee in its discretion. With respect to awards made to directors, officers, employees and consultants of our general partner and its affiliates, our general partner will be entitled to reimbursement by us for the cost incurred in acquiring such common units or, with respect to unit options, for the difference between the cost it incurs in acquiring these common units and the proceeds it receives from a participant at the time of the participants exercise of an option. Thus, we will bear the cost of all awards under the LTIP. If we issue new common units with respect to these awards, the total number of common units outstanding will increase, and our general partner will remit the proceeds it receives from a participant, if any, upon exercise of an award to us. With respect to any awards settled in cash by our general partner, our general partner will be entitled to reimbursement by us for the amount of the cash settlement.
Amendment or Termination of Long-Term Incentive Plan . The committee, 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 will automatically terminate on the 10th anniversary of the date it is initially adopted by our general partner. The committee 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 reduce the benefit of a participant without the consent of the affected participant.
Compensation of Directors
Officers or employees of Westlake or its affiliates who also serve as directors of our general partner will not receive additional compensation for such service. Our general partner anticipates that its directors who are not also officers or employees of Westlake or its affiliates will receive compensation for services on our general partners board of directors and committees thereof. Following the consummation of this offering, we expect our general partner to implement an annual retainer compensation package for the non-employee directors valued at approximately $130,000, of which approximately $65,000 would be paid in the form of an annual cash retainer and the remaining $65,000 retainer fee would be paid in a grant of Unit Awards under the LTIP.
In addition, our general partner expects to pay the audit committee chairman an additional annual amount of $15,000.
In addition, each non-employee director will be reimbursed for out-of-pocket expenses in connection with attending board and committee meetings. Each director will be fully indemnified by us for actions associated with being a director to the fullest extent permitted under Delaware law pursuant to our partnership agreement.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth the beneficial ownership of common units and subordinated units of Westlake Chemical Partners LP that will be issued and outstanding upon the consummation of this offering and the related transactions and held by:
|
our general partner; |
|
beneficial owners of 5% or more of our common units; |
|
each director and named executive officer of our general partner; and |
|
all of our directors and executive officers of our general partner as a group. |
The table does not reflect any common units that directors and executive officers may purchase in this offering through the directed unit program described in Underwriting. Unless otherwise noted, the address for each beneficial owner listed below is 2801 Post Oak Boulevard, Suite 600, Houston, Texas 77056.
Name of Beneficial Owner |
Common
Units Beneficially Owned |
Percentage of
Common Units Beneficially Owned |
Subordinated
Units Beneficially Owned |
Percentage of
Subordinated Units Beneficially Owned |
Percentage of
Common and Subordinated Units Beneficially Owned |
|||||||||||||||
Westlake Chemical Corporation |
% | % | % | |||||||||||||||||
Westlake Chemical Partners GP LLC |
| | | | | |||||||||||||||
Albert Chao |
| | | | | |||||||||||||||
James Chao |
| | | | | |||||||||||||||
M. Steven Bender |
| | | | | |||||||||||||||
L. Benjamin Ederington |
| | | | | |||||||||||||||
David R. Hansen |
| | | | | |||||||||||||||
George Mangieri |
| | | | | |||||||||||||||
Max L. Lukens |
| | | | | |||||||||||||||
Lawrence Teel |
| | | | | |||||||||||||||
All directors and executive officers as a group (8 persons) |
| | % | | | | % |
The following table sets forth, as of July 7, 2014, the number of shares of common stock of Westlake Chemical Corporation owned by each director and named executive officer of our general partner and by all directors and executive officers of our general partner as a group:
Amount and Nature of
Beneficial Ownership of Common Stock (1) |
||||||||||||
Directors and Named Executive Officers |
Direct (2) | Other | Percent of Class | |||||||||
Albert Chao |
832,442 | 92,010,554 | (3) (4) | 69.5 | % | |||||||
James Chao |
173,064 | 92,010,554 | (4) (5) | 69.1 | % | |||||||
M. Steven Bender |
112,024 | | * | |||||||||
L. Benjamin Ederington |
0 | | * | |||||||||
David R. Hansen |
34,650 | | * | |||||||||
George Mangieri |
25,682 | | * | |||||||||
Max L. Lukens |
16,384 | | * | |||||||||
Lawrence Teel |
1,236 | | * | |||||||||
All directors and executive officers as a group (8 persons) |
1,195,482 | 92,010,554 | 69.8 | % |
* | Less than 1% of the outstanding shares of common stock. |
(1) | None of the shares beneficially owned by our directors, nominees or officers are pledged as security. |
(2) |
The amounts include shares of common stock that may be acquired within 60 days from July 7, 2014 through the exercise of options held by Mr. Albert Chao (570,234), Mr. James Chao (72,938), Mr. Bender |
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(69,034), Mr. Hansen (7,770), Mr. Mangieri (1,206) and all directors, nominees and executive officers as a group (721,182). The amounts also include unvested shares of restricted stock held by Mr. Albert Chao (23,964), Mr. James Chao (19,172), Mr. Bender (22,366), Mr. Hansen (15,632), Mr. Mangieri (18,122), Mr. Lukens (874), Mr. Teel (1,048) and all directors and executive officers as a group (101,178), over which such persons have sole voting power but no dispositive power. The amounts also include shares of common stock that may be acquired within 60 days from July 7, 2014 through the distribution election of restricted stock units held by Mr. Lukens (586). |
(3) | Does not include common stock of Westlake Chemical Corporation owned directly by James Chao and 40,000 shares of common stock owned by the estate of Albert Chaos mother. Albert Chao disclaims beneficial ownership of these shares. |
(4) | Two trusts for the benefit of members of the Chao family, including James Chao and Albert Chao, are the managers of TTWFGP LLC, a Delaware limited liability company, which is the general partner of TTWF LP. The limited partners of TTWF LP are five trusts principally for the benefit of members of the Chao family, including James Chao and Albert Chao and two corporations owned, indirectly or directly, by certain of these trusts and by other entities owned by members of the Chao family, including James Chao and Albert Chao. James Chao, Albert Chao, TTWF LP and TTWFGP LLC share voting and dispositive power with respect to the shares of Westlakes common stock beneficially owned by TTWF LP. James Chao and Albert Chao disclaim beneficial ownership of the 92,010,554 shares held by TTWF LP except to the extent of their respective pecuniary interest therein. |
(5) | Does not include common stock of Westlake Chemical Corporation owned directly by Albert Chao and 40,000 shares of common stock owned by the estate of James Chaos mother. James Chao disclaims beneficial ownership of these shares. |
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Prior to the offering, our Predecessor was the ethylene operations conducted by wholly owned subsidiaries of Westlake and operated as a component of the integrated operations of Westlake and its affiliates. Consequently, we have historically engaged in significant transactions and have had material relationships with Westlake and its affiliates on a continuous basis.
Our Predecessor sold ethylene to Westlake and its affiliates, and purchased from Westlake and its affiliates ethane, propane and other feedstocks.
Ownership of General Partner and Limited Partner Interests
Following the completion of this offering, Westlake will own 90% of the limited partner interests in OpCo. In addition, Westlake will beneficially own our general partner as well as % of our limited partner units (consisting of common units and all of the subordinated units) and our incentive distribution rights. As a result, Westlake will continue to be able to control the election of the directors of our general partner, otherwise exercise control or significant influence over our partnership and management policies and generally determine the outcome of any partnership or OpCo transaction or other matter submitted to our unitholders for approval, including certain potential mergers or acquisitions, certain asset sales and other significant partnership transactions. So long as Westlake owns a majority equity interest in our general partner or a significant amount of our limited partner interest, Westlake will continue to be able to effectively control or significantly influence the outcome of such matters.
Distributions and Payments to Our General Partner and Its Affiliates
The following table summarizes the distributions and payments to be made by us to our general partner and its affiliates in connection with our formation, ongoing operation and any liquidation. These distributions and payments were determined by and among affiliated entities and, consequently, are not the result of arms-length negotiations.
Formation Stage
The aggregate consideration received by our general partner and its affiliates for the contribution of a % interest in OpCo and our purchase of an additional % interest in OpCo |
| common units; |
|
subordinated units; |
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our incentive distribution rights; and |
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$ million of net proceeds from this offering (after deducting the underwriting discounts and a structuring fee and the expenses of this offering) will be used to purchase a % interest in OpCo; OpCo, in turn, will use $ million to establish an initial cash reserve for turnaround expenditures and to reimburse Westlake for certain pre-formation capital expenditures with respect to the assets contributed to OpCo. |
If the underwriters exercise their option to purchase additional common units, we will use the net proceeds from such exercise to purchase an additional limited partner interest in OpCo, and OpCo will use such net proceeds to repay intercompany debt to Westlake. |
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Operational Stage
Distributions of cash to our general partner and its affiliates |
We will generally make cash distributions 100% to our unitholders, including affiliates of our general partner. In addition, if distributions exceed the minimum quarterly distribution and other higher target distribution levels, our general partner will be entitled to increasing percentages of the distributions, up to 50.0% of the distributions above the highest target distribution level. |
Assuming we have sufficient cash to pay the full minimum quarterly distribution on all of our outstanding common units and subordinated units for four quarters, our general partner and its affiliates would receive an annual distribution of approximately $ million on their units. |
Payments to our general partner and its affiliates |
Our general partner will not receive a management fee or other compensation for its management of our partnership, but we will reimburse our general partner and its affiliates for all direct and indirect expenses they incur and payments they make on our behalf. Our partnership agreement does not set a limit on the amount of expenses for which our general partner and its affiliates may be reimbursed. These expenses include expenses we and OpCo will incur under the services and secondment agreement and the omnibus agreement, including 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 partnership agreement provides that our general partner will determine the expenses that are allocable to us. |
Withdrawal or removal of our general partner |
If our general partner withdraws or is removed, its general partner interest and Westlakes incentive distribution rights will either be sold to the new general partner for cash or converted into common units, in each case for an amount equal to the fair market value of those interests. Please read The Partnership AgreementWithdrawal or Removal of Our General Partner. |
Liquidation Stage
Liquidation |
Upon our liquidation, the partners, including our general partner, will be entitled to receive liquidating distributions according to their respective capital account balances. |
We and other parties have entered into or will enter into the various documents and agreements that will affect the offering transactions, including our acquisition of interests in OpCo, the transfer of assets in, and the assumption of liabilities by, us and OpCo, and the application of the proceeds of this offering, and we have entered into or are entering into a number of other agreements with Westlake and its affiliates. These agreements are not and will not be the result of arms-length negotiations, and they, or any of the transactions that they provide for, may not be effected on terms at least as favorable to the parties to these agreements as they could
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have been obtained from unaffiliated third parties. All of the transaction expenses incurred in connection with these transactions, including the expenses associated with transferring assets into OpCo, will be paid from the proceeds of this offering.
The following discussion of agreements with Westlake is qualified in its entirety by reference to such agreements, or in certain instances the forms of such agreements, which have been filed as exhibits to the registration statement of which this prospectus forms a part.
Contribution Agreements
In connection with the closing of this offering, we will enter into contribution agreements that will effect certain transactions that will occur at the closing of this offering, including the transfer of Westlakes ethylene production assets into OpCo, the transfer of ownership interests in OpCo and its general partner to us, and the use of the net proceeds of this offering. While we believe these agreements are on terms no less favorable to any party than those that could have been negotiated with an unaffiliated third party, they will not be the result of arms-length negotiations. All of the transaction expenses incurred in connection with these transactions will be paid from the proceeds of this offering.
Ethylene Sales Agreement
General . In connection with this offering, OpCo will enter into a 12-year ethylene sales agreement with Westlake (the Ethylene Sales Agreement). The Ethylene Sales Agreement requires Westlake to purchase a minimum volume of ethylene each year.
Minimum commitment . Westlake will agree to purchase from OpCo 95% of OpCos planned ethylene production per year (the Minimum Commitment), subject to certain exceptions and a maximum commitment of 3.8 billion pounds per year. So long as Westlake is not in default under the Ethylene Sales Agreement, if OpCos actual production exceeds planned production, Westlake will have the option to purchase up to 95% of the excess production (the Excess Production Option).
Fee . The fee for ethylene purchased by Westlake from OpCo will be paid monthly. The fee for each pound of ethylene purchased by Westlake up to the Minimum Commitment in any calendar year will equal:
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the actual price OpCo will pay Westlake to purchase ethane (or other feedstock, such as propane, if applicable) to produce each pound of ethylene, subject to a specified cap and a floor on the amount of feedstock that should be needed to produce each pound of ethylene; plus |
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the actual price OpCo will pay Westlake to purchase natural gas to produce each pound of ethylene, subject to a specified cap and a floor on the amount of natural gas that should be needed to produce each pound of ethylene; plus |
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OpCos estimated operating costs (including selling, general and administrative expenses), as described below, divided by OpCos planned ethylene production for the year (in pounds); plus |
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a five-year average of OpCos expected future maintenance capital expenditures and other turnaround expenditures, divided by OpCos planned ethylene production capacity for the year (in pounds); less |
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the proceeds (on a per pound of ethylene basis) received by OpCo from the sale of co-products (including, but not limited to, propylene, crude butadiene, pyrolysis gasoline and hydrogen) associated with producing the ethylene purchased by Westlake; plus |
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a $0.10 per pound margin. |
The fee for the Excess Production Option, if exercised, will equal OpCos estimated variable operating costs of producing the incremental ethylene, net of revenues from co-product sales plus a $0.10 per pound margin.
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The estimated operating costs and expected future maintenance capital expenditures and other turnaround expenditures will be adjusted at the end of each year, to be applicable for the fee for the next calendar year, to reflect certain changes in forecasted costs. The aggregate estimated operating costs and expected future maintenance capital expenditures and other turnaround expenditures may be increased at the end of any calendar year, but will not be decreased more than every three years, and will not be decreased below the initial amounts specified in the Ethylene Sales Agreement. Estimated operating costs and expected future maintenance capital expenditures and other turnaround expenditures will not be adjusted for (i) increased costs that are the result of OpCo failing to act as a reasonably prudent operator or (ii) extraordinary or catastrophic repair and replacement costs. If, for any calendar year, OpCos actual operating costs and maintenance capital expenditures and other turnaround expenditures are higher than the estimate for that calendar year, or OpCos actual production is below the planned production amount upon which the per pound cost is based, OpCo will be entitled to include in the fee for the succeeding year a surcharge to recover the resulting shortfall. If these costs and expenditures are lower than the estimate, OpCo will retain the difference, but such difference may be reflected in periodic downward adjustments to the total estimated costs and expenditures.
The result of the fee structure is that OpCo should recover the portion of its total operating costs and maintenance capital expenditures and other turnaround expenditures corresponding to the portion of OpCos aggregate production that is purchased by Westlake.
Force majeure . A force majeure event under the Ethylene Sales Agreement includes, but is not limited to, acts of God; fire; war; floods, earthquakes, tornadoes, hurricane or other weather events; interruption or delay in transportation and any inadequacy, shortage or failure or breakdown of supply of raw materials; certain labor difficulties (whether or not the demands of the employee are within the power of the claiming party to concede); and compliance with governmental orders or laws. During any force majeure event with respect to Westlakes facility, OpCo will be relieved of its obligations to produce ethylene to the extent such obligations are affected by the force majeure event. If the force majeure event is solely with respect to Westlakes ability to perform under the agreement, Westlake will be obligated to continue to pay for the minimum volume, including with respect to feedstock that Westlake is unable to deliver due to the force majeure event, irrespective of such events duration. During any force majeure event with respect to OpCos facilities, Westlake will be relieved of its obligation to deliver feedstock and purchase ethylene, but will continue to be obligated to continue to pay for the Minimum Commitment for up to 45 days, after which the Minimum Commitment will be reduced to the extent OpCo is unable to produce the ethylene.
Term . The Ethylene Sales Agreement has an initial term extending until December 31, 2026 and will automatically renew thereafter for successive 12-month terms unless terminated.
Feedstock Supply Agreement
In connection with this offering, OpCo will enter into a feedstock supply agreement with Westlake, pursuant to which Westlake will agree to sell OpCo ethane and other feedstock in amounts sufficient for OpCo to produce the ethylene to be sold under the Ethylene Sales Agreement (the Feedstock Supply Agreement).
The Feedstock Supply Agreement will provide that OpCo will obtain feedstock from Westlake, based on Westlakes total cost of purchasing and delivering the feedstock, including applicable transportation, storage and other costs. Title and risk of loss for all feedstock purchased by OpCo through the Feedstock Supply Agreement passes to OpCo upon delivery to one of three delivery points described in the Feedstock Supply Agreement.
If Westlake fails to provide the feedstock required to be delivered under the Feedstock Supply Agreement, except in limited circumstances, Westlake will owe OpCo, as liquidated damages, a fee for each pound of ethylene OpCo is unable to produce and deliver equal to the purchase price under the Ethylene Sales Agreement (other than certain costs not incurred because the ethylene is not produced).
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The term of the Feedstock Supply Agreement has an initial term extending until December 31, 2026 and will automatically renew thereafter for successive 12-month terms unless terminated by either party; provided, however, that such agreement can only be renewed in the event the Ethylene Sales Agreement is renewed simultaneously. The Feedstock Supply Agreement may, in certain circumstances, terminate concurrently with the termination of the Ethylene Sales Agreement.
Services and Secondment Agreement
OpCo will enter into a services and secondment agreement with Westlake. Pursuant to the services and secondment agreement, (a) OpCo has agreed to provide Westlake with purge gas processing services, steam and demineralized water required for the operation of Westlakes facilities; and (b) Westlake has agreed to provide to OpCo various services including: (i) comprehensive operating services for OpCos facilities and (ii) services relating to the maintenance and operation of those common facilities that are necessary for the operation of OpCos units (including, but not limited to, control room and process safety, emergency response and security, warehouse and laboratory upkeep and maintenance of buildings and grounds). Westlake seconded employees who will perform the services required by the services and secondment agreement to allow OpCo to operate OpCos facilities in an efficient and compliant manner. OpCo will control the seconded employees while they work on OpCos facilities but Westlake will retain all power to hire or terminate the seconded employees or negotiate any terms of their employment with a union.
Westlake will also make available to OpCo electricity, natural gas, fuel gas, boiler feed water, steam, cooling water, potable water and other shared utility services that are necessary for OpCo to operate its units. In addition, Westlake is responsible for maintaining all permits that are reasonably necessary in connection with the ownership and operation of its facilities. The services and secondment agreement also provides that the parties will use commercially reasonable efforts to furnish such additional services as the other party may request on terms mutually agreed upon. The provision of services to OpCo is subject to the control of OpCo, and in performing its obligations under the services and secondment agreement, each party is required at all times to act in accordance with reasonably prudent operating and maintenance practices of the U.S. chemical industry. In addition, the services are to be performed with the same general degree of care and at the same general degree of accuracy and responsiveness as when each party performs services for itself at its own facilities and units.
OpCo has agreed to pay the costs of the services, including (i) a prorated share of costs incurred by Westlake or its affiliates in connection with the employment of the seconded employees, including administrative personnel, who provide OpCo services under the agreement on a part-time basis, and such prorated share shall be determined by Westlake on a commercially reasonable basis, based on the percent of total working time that such seconded employees are engaged in performing services for OpCo and (ii) a prorated share of certain administrative costs, including office costs, services by outside vendors, other sales, general and administrative costs and depreciation and amortization. In respect of the services provided by OpCo, Westlake has agreed to pay (i) the costs incurred by OpCo in the production of the steam and demineralized water; and (ii) a processing charge mutually agreed between the parties for the purge gas processing services. The services and secondment agreement has an initial 12-year term. The services and secondment agreement may be renewed thereafter upon agreement of the parties and shall automatically terminate the agreement if the Ethylene Sales Agreement terminates under certain circumstances, Westlake may terminate the agreement if OpCo fails to operate its facilities for a period of six consecutive months (other than due to force majeure or construction following a casualty loss) or if OpCo permanently shuts down its facilities. OpCo may terminate the agreement if the annual fees payable in respect of services provided by Westlake exceed the amount of the applicable agreed annual budget by the greater of 20% or $1.0 million without OpCos prior written consent. Each party may terminate the services and secondment agreement under certain circumstances if the other party materially defaults on the performance of its obligations and such default continues for a 30-day period.
Westlake has agreed to provide to OpCo at least 12 months advance notice of any permanent planned shutdown of Westlakes Calvert City or Lake Charles complexes and at least nine months advance notice of any
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planned reconfiguration of such complexes where OpCos units would be shut down for three months or more (excluding planned maintenance turnarounds).
Site Lease Agreements
OpCo will enter into two site lease agreements with Westlake pursuant to which Westlake has agreed to lease to OpCo the real property underlying Lake Charles Olefins and Calvert City Olefins, respectively, and to grant OpCo rights to access and use certain other portions of Westlakes ethylene production facilities that are necessary to operate OpCos units at such ethylene production facilities. OpCo will owe Westlake $1 per site per year.
The site lease agreements each have a term of 50 years. Each of site lease agreements may be renewed if agreed by the parties. If an event of default with respect to bankruptcy of OpCo occurs, if Westlake terminates the Ethylene Sales Agreement in accordance with its provisions either for cause or due to a force majeure event, or if OpCo ceases to operate Lake Charles Olefins or Calvert City Olefins for six consecutive months (other than due to force majeure or construction following a casualty loss), Westlake may terminate the applicable site lease following notice and expiration of a cure period to remedy the default. If other events of default under the site lease agreements occur, the non-defaulting party must engage in mediation and a court determination that an event of default has occurred before terminating the applicable site lease. If Lake Charles Olefins or Calvert City Olefins is destroyed by a casualty loss (other than as a result of the gross negligence or intentional misconduct of OpCo), OpCo may terminate the applicable site lease within 180 days. In addition, if OpCo fails to act in good faith to expeditiously restore Lake Charles Olefins or Calvert City Olefins following a casualty loss, Westlake has the ability to terminate the applicable site lease, to restore the units and to purchase the units at fair market value.
Subject to Westlakes repurchase right associated with a casualty loss described above, within one year of the applicable lease expiring or being terminated, OpCo may remove the ethylene production facilities and other related improvements owned by OpCo from the leased premises; provided, however, that OpCo may only remove its assets if the removal can be accomplished without unreasonable damage or harm to the leased premises or the remainder of Westlakes applicable facility, and without material interruption to Westlakes operations thereon or therefrom. OpCo will be responsible for repairing or restoring any damage to the leased premises and the remainder of Westlakes applicable facility caused by such removal. Any assets that are not timely removed by OpCo shall be deemed to have been surrendered to Westlake.
Omnibus Agreement
Upon the closing of this offering, we and OpCo will enter into an omnibus agreement with Westlake, our general partner and others.
Indemnification . Under the omnibus agreement, Westlake will indemnify OpCo against potential environmental and other legal liabilities, losses and expenses associated with the operation of the assets and occurring before the closing date of this offering, including all existing consent decrees, agreed orders and notices of violation relating to OpCos assets. So long as any of the Ethylene Sales Agreement, the Feedstock Supply Agreement, the services and secondment agreement or the site lease agreements are in effect, Westlake has agreed to indemnify us for certain potential environmental liabilities associated with the assets retained by Westlake and associated with the operation of those assets after the closing of this offering. In addition, so long as any of the Ethylene Sales Agreement, the Feedstock Supply Agreement, the services and secondment agreement or the site lease agreements are in effect, OpCo has agreed to indemnify Westlake against certain potential environmental liabilities related to our assets and associated with the operation of the assets occurring after the closing date of this offering to the extent Westlake is not required to indemnify us.
Additionally, Westlake will indemnify OpCo for retained assets and liabilities (including currently pending litigation against Westlake and its affiliates) and for income taxes attributable to pre-closing operations. In
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addition, Westlake will indemnify OpCo for liabilities relating to events and conditions associated with the operation of the assets contributed to the Partnership (other than with respect to environmental liabilities) that occur prior to the closing of the offering, to the extent that Westlake is notified in writing within one year after the closing of the offering and we will indemnify Westlake for similar events and conditions associated with the operation of the assets that occur after the closing of this offering.
The agreement also contains an indemnity provision whereby OpCo and our general partner, as indemnifying parties, agree to indemnify Westlake and its affiliates (other than the indemnifying parties themselves) against losses and liabilities incurred in connection with the performance of services under the agreement or any breach of the agreement, unless such losses or liabilities arise from a breach of the agreement by Westlake or other misconduct on its part, as provided in the agreement.
Right of First Refusal . OpCo will grant Westlake a right of first refusal on any proposed transfer of the ethylene production facilities that serve Westlakes other facilities and we will grant Westlake a right of first refusal on any proposed transfer of our equity interests in OpCo.
If any entity proposes to transfer any asset subject to the right of first refusal pursuant to a bona fide third-party offer, it shall promptly give written notice to Westlake, providing certain required information about the acquisition proposal. Westlake will provide written notice of its decision regarding the exercise of its right of first refusal to purchase the sale assets within 30 days of its receipt of the notice. If Westlake fails to exercise a right during the applicable period, it shall be deemed to have waived its rights with respect to such proposed disposition of the sale assets, but not with respect to any future offer of assets.
If the transfer to the proposed transferee is not consummated in accordance with the terms of the acquisition proposal within the later of (i) 180 days after the applicable acceptance deadline and (ii) 10 days after the satisfaction of all governmental approval or filing requirements, if any, the acquisition proposal shall be deemed to lapse, and the partnership entity may not transfer any of the sale assets described in the disposition notice without complying again with the provisions described above if and to the extent then applicable.
Neither Westlake nor any of its affiliates will be restricted, under either our partnership agreement or the omnibus agreement, from competing with us. Westlake and any of its affiliates may acquire, construct or dispose of additional ethylene production facilities or other assets in the future without any obligation to offer us the opportunity to purchase or construct those assets.
Insurance . Westlake is required to obtain and maintain certain minimum insurance coverage and types during any period in which the Ethylene Sales Agreement or any of the other related agreements is in effect. Westlake must procure and maintain such insurance under individual or blanket policies and (unless an insurer does not permit) include OpCo and the partnership as insureds under all liability policies except for workers compensation insurance.
The insurance to be obtained and maintained by Westlakes contractors includes statutory workers compensation insurance, employers liability insurance, comprehensive general liability insurance, automobile liability insurance, excess/umbrella liability insurance, property insurance and environmental insurance, in each case meeting specified coverage amounts or other requirements.
OpCo and the partnership also are required under certain circumstances to obtain and maintain at their expense, certain minimum insurance policies and coverages under individual or blanket policies.
Administrative Services . Westlake will provide certain management and other services to us and our general partner. Westlake will provide us with the following services under the omnibus agreement, among others:
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services from Westlakes employees in capacities equivalent to the capacities of corporate executive officers, except that those who serve in such capacities under the agreement shall serve us on a shared, part-time basis only, unless we and Westlake agree otherwise; |
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administrative and professional services, including legal, accounting services, human resources, insurance, tax, credit, finance, audit, government affairs and regulatory affairs; |
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management of our property and the property of our subsidiaries in the ordinary course of business; |
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recommendations on capital raising activities to the board of directors of our general partner, including the issuance of debt or equity interests, the entry into credit facilities and other capital market transactions; |
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managing or overseeing litigation and administrative or regulatory proceedings, and establishing appropriate insurance policies for us, and providing safety and environmental advice; |
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recommending the payment of distributions; and |
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managing or providing advice for other projects, including acquisitions, as may be agreed by Westlake and our general partner from time to time. |
As payment for services provided under the omnibus agreement, we or our general partner must pay Westlake (i) all costs incurred by Westlake or its affiliates in connection with the employment of its employees, who provide us services under the agreement on a full-time basis; (ii) a prorated share of costs incurred by Westlake or its affiliates in connection with the employment of its employees, including administrative personnel, who provide us services under the agreement on a part-time basis, and such prorated share shall be determined by Westlake on a commercially reasonable basis; (iii) a prorated share of certain administrative costs, including office costs, services by outside vendors, other sales, general and administrative costs and depreciation and amortization; and (iv) various other administrative costs in accordance with the terms of the agreement, including travel, insurance, legal and audit services, government and public relations and bank charges.
Either Westlake or our general partner may temporarily or permanently exclude any particular service from the scope of the omnibus agreement upon 180 days notice. Westlake also has the right to delegate the performance of some or all of the services to be provided pursuant to the omnibus agreement to any other person or entity, though such delegation does not relieve Westlake from its obligations under the agreement.
In order to facilitate the carrying out of services under the omnibus agreement, we, on the one hand, and Westlake and its affiliates, on the other, have granted one another certain royalty-free, non-exclusive and non-transferable rights to use one anothers intellectual property under certain circumstances.
The agreement also contains a provision stating that Westlake is an independent contractor under the agreement and nothing in the agreement may be construed to impose an implied or express fiduciary duty owed by Westlake, on the one hand, to the recipients of services under the agreement, on the other hand. The agreement prohibits recovery of lost profits or revenue, or special, incidental, exemplary, punitive or consequential damages from Westlake or certain affiliates, except in cases of gross negligence, willful misconduct, bad faith, reckless disregard in performance of services under the agreement or fraudulent or dishonest acts on our part.
OpCo Partnership Agreement
We, Westlake Chemical OpCo GP LLC and Westlake have entered into an agreement of limited partnership for OpCo. This agreement governs the ownership and management of OpCo and designates Westlake Chemical OpCo GP LLC as the general partner of OpCo. Westlake Chemical OpCo GP LLC will generally have complete authority to manage OpCos business and affairs. We will control Westlake Chemical OpCo GP LLC, as its sole member.
Approval from Westlake will be required for the following actions relating to OpCo:
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effecting any merger or consolidation involving OpCo; |
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effecting any sale or exchange of all or substantially all of OpCos assets; |
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dissolving or liquidating OpCo; |
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creating or causing to exist any consensual restriction on the ability of OpCo or its subsidiaries to make distributions, pay any indebtedness, make loans or advances or transfer assets to us or our subsidiaries; |
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settling or compromising any claim, dispute or litigation directly against, or otherwise relating to the indemnification by OpCo of, any of the officers of Westlake Chemical OpCo GP LLC; or |
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issuing additional partnership interests in OpCo. |
Intercompany Loans
Westlake has historically loaned cash to our Predecessor to fund our Predecessors capital expenditures. As of March 31, 2014, our Predecessor had $302.4 million in outstanding indebtedness payable to Westlake. Of that indebtedness, $288.0 million bears interest at a rate of the prime rate plus an applicable margin of 1.5% and $14.4 million bears interest at a rate of the prime rate plus an applicable margin of 0.25%. We expect that Westlake will loan additional cash to OpCo to fund its capital expenditures in the future, but Westlake is under no obligation to do so, except for the revolving line of credit commitment described below.
OpCo will enter into a five year, $600.0 million revolving line of credit with Westlake in connection with the closing of the offering. The revolving line of credit is available to fund turnaround costs, working capital and to finance acquisitions and other expansion capital expenditures. Borrowings under the revolving line of credit bear interest at LIBOR plus an applicable margin of 3.0%. At the consummation of this offering, OpCo will have no outstanding borrowings under the revolving line of credit.
Procedures for Review, Approval and Ratification of Transactions with Related Persons
We expect that the board of directors of our general partner will adopt policies for the review, approval and ratification of transactions with related persons. We anticipate the board will adopt a written code of business conduct and ethics, under which a director would be expected to bring to the attention of the chief executive officer or the board any conflict or potential conflict of interest that may arise between the director or any affiliate of the director, on the one hand, and us or our general partner on the other. The resolution of any such conflict or potential conflict should, at the discretion of the board in light of the circumstances, be determined by a majority of the disinterested directors.
If a conflict or potential conflict of interest arises between our general partner or its affiliates, on the one hand, and us or our unitholders, on the other hand, the resolution of any such conflict or potential conflict should be addressed by the board of directors of our general partner in accordance with the provisions of our partnership agreement. At the discretion of the board in light of the circumstances, the resolution may be determined by the board in its entirety or by a conflicts committee meeting the definitional requirements for such a committee under our partnership agreement.
Please read Conflicts of Interest and Fiduciary DutiesConflicts of Interest for additional information regarding the relevant provisions of our partnership agreement.
The code of business conduct and ethics described above will be adopted in connection with the closing of this offering, and as a result, the transactions described above were not reviewed according to such procedures.
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CONFLICTS OF INTEREST AND FIDUCIARY DUTIES
The Delaware Act provides that, to the extent that, at law or in equity, a partner or other person has duties (including fiduciary duties) to a limited partnership or to another partner or to another person that is a party to or is otherwise bound by a partnership agreement, the partners or other persons duties may be expanded or restricted or eliminated by provisions in the partnership agreement, provided that that the Delaware Act provides that the partnership agreement may not eliminate the implied contractual covenant of good faith and fair dealing. Our partnership agreement contains provisions that eliminate and replace the fiduciary standards to which our general partner and its executive officers and directors would otherwise be held by state fiduciary duty law. Our partnership agreement also specifically defines the remedies available to unitholders for actions taken that, without these defined liability standards, might constitute breaches of fiduciary duty under applicable Delaware law. The OpCo partnership agreement also eliminates and replaces the fiduciary standards to which we and Westlake Chemical OpCo GP LLC would otherwise be held to owe Westlake, as a limited partner in OpCo, by state fiduciary duty law and specifically defines the remedies available to Westlake for actions taken that, without these defined liability standards, might constitute breaches of fiduciary duty under applicable Delaware law.
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 it must act in a manner that it believes is not adverse to our interest. This duty to act in good faith is the default standard set forth under our partnership agreement and our general partner and its executive officers and directors will not be subject to any higher standard.
Our partnership agreement specifies decisions that our general partner may make in its individual capacity, and permits our general partner to make these decisions free of any contractual or other duty to us or our unitholders. This entitles our general partner 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, our affiliates or any limited partner. Examples include the exercise of its call right, its voting rights with respect to any units it owns, its registration rights and its determination whether or not to consent to any merger or consolidation or amendment of the partnership agreement.
When the directors and officers of our general partner cause our general partner to act, the directors and executive officers must cause our general partner to act in a manner consistent with our general partners applicable duties. However, the directors and executive officers of our general partner have fiduciary duties to manage our general partner, including when it is acting in its capacity as our general partner, in a manner beneficial to Westlake.
Conflicts may arise as a result of the duties of our general partner and its directors and executive officers to act for the benefit of its owners, which may conflict with our interests and the interests of our public unitholders. Where the directors and officers of our general partner are causing our general partner to act in its capacity as our general partner, the directors and officers must cause the general partner to act in good faith, meaning they cannot cause the general partner to take an action that they believe is adverse to our interest. However, where a decision by our general partner in its capacity as our general partner is not clearly not adverse to our interest, the directors of our general partner may determine to submit the determination to the conflicts committee for review or to seek approval by the unitholders, as described below.
Conflicts of interest exist and may arise in the future as a result of the relationships between our general partner and its directors, officers and owners (including Westlake), on the one hand, and us and our unaffiliated limited partners, on the other hand.
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Whenever a conflict arises between our general partner or its owners, on the one hand, and us or our limited partners, on the other hand, the resolution, course of action or transaction in respect of such conflict of interest shall be conclusively deemed approved by us and all our limited partners and shall not constitute a breach of our partnership agreement, of any agreement contemplated thereby or of any duty, if the resolution, course of action or transaction in respect of such conflict of interest is:
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approved by the conflicts committee of our general partner; or |
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approved by the holders of a majority of our outstanding common units, excluding any such units owned by our general partner or any of its affiliates. |
Our general partner may, but is not required to, seek the approval of such resolutions or courses of action from the conflicts committee of its board of directors or from the holders of a majority of the outstanding common units as described above. If our general partner does not seek approval from the conflicts committee or from holders of common units as described above and the board of directors of our general partner approves the resolution or course of action taken with respect to the conflict of interest, 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 us or any of our unitholders, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption and proving that such decision was not in good faith. Unless the resolution of a conflict is specifically provided for in our partnership agreement, the board of directors of our general partner or the conflicts committee of the board of directors of our general partner may consider any factors they determine in good faith to consider when resolving a conflict. An independent third party is not required to evaluate the resolution. Under our partnership agreement, all determinations, other actions or failures to act by our general partner, the board of directors of our general partner or any committee thereof (including the conflicts committee) will be presumed to be in good faith, and in any proceeding brought by or on behalf of us or any of our unitholders, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption and proving that such determination was not in good faith. Please read ManagementCommittees of the Board of DirectorsConflicts Committee for information about the conflicts committee of our general partners board of directors.
Conflicts of interest could arise in the situations described below, among others:
Actions taken by our general partner may affect the amount of cash available to pay distributions to unitholders or accelerate the right to convert subordinated units.
The amount of cash that is available for distribution to unitholders is affected by decisions of our general partner regarding such matters as:
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amount and timing of asset purchases and sales; |
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cash expenditures; |
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borrowings; |
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entry into and repayment of current and future indebtedness; |
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issuance of additional units; and |
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the creation, reduction or increase of reserves in any quarter. |
Our general partner determines the amount and timing of any capital expenditures and whether a capital expenditure is classified as a maintenance capital expenditure, which reduces operating surplus, or an expansion capital expenditure, which does not reduce operating surplus. This determination can affect the amount of cash that is distributed to our unitholders and to holders of our incentive distribution rights and the ability of the subordinated units to convert into common units.
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In addition, borrowings by us and our affiliates do not constitute a breach of any duty owed by our general partner to our unitholders, including borrowings that have the purpose or effect of:
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enabling our general partner or its affiliates to receive distributions on any subordinated units held by them or the incentive distribution rights; or |
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accelerating the expiration of the subordination period. |
In addition, our general partner may use an amount, initially equal to $ million, which would not otherwise constitute operating surplus, in order to permit the payment of distributions on subordinated units and the incentive distribution rights. All of these actions may affect the amount of cash distributed to our unitholders and our general partner and may facilitate the conversion of subordinated units into common units. Please read How We Make Distributions To Our Partners.
For example, in the event we have not generated sufficient cash from our operations to pay the minimum quarterly distribution on our common units and our subordinated units, our partnership agreement permits us to borrow funds, which would enable us to make such distribution on all outstanding units. Please read How We Make Distributions To Our PartnersOperating Surplus and Capital SurplusOperating Surplus.
The directors and officers of Westlake have a fiduciary duty to make decisions in the best interests of the owners of Westlake, which may be contrary to our interests.
The officers and certain directors of our general partner have fiduciary duties to Westlake that may cause them to pursue business strategies that disproportionately benefit Westlake or which otherwise are not in our best interests.
Our general partner is allowed to take into account the interests of parties other than us, such as Westlake, in exercising certain rights under our partnership agreement.
Our partnership agreement contains provisions that replace 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. This entitles our general partner 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, our affiliates or any limited partner. Examples include the exercise of its call right, its voting rights with respect to any units it owns, its registration rights and its determination whether or not to consent to any merger or consolidation or amendment of the partnership agreement.
Our partnership agreement restricts the remedies available to our unitholders for actions that, without the limitations, might constitute breaches of fiduciary duty.
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 otherwise constitute breaches of fiduciary duty. For example, our partnership agreement provides that:
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our general partner and its executive officers and directors will not have any liability to us or our unitholders for decisions made in its capacity as general partner so long as it acted in good faith, meaning it believed that the decision was not adverse to the interest of the partnership, and, with respect to criminal conduct, did not act with the knowledge that its conduct was unlawful; |
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our general partner and its officers and directors will not be liable for monetary damages or otherwise to us or our limited partners for any losses sustained or liabilities incurred as a result of the general partners, officers or directors determinations, acts or omissions in their capacities as general partner, officers or directors, unless there has been a final and non-appealable judgment entered by a court of |
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competent jurisdiction determining that such losses or liabilities were the result of the conduct of our general partner or such officer or director engaged in by it in bad faith or, with respect to any criminal conduct, with the knowledge that its conduct was unlawful; and |
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in resolving conflicts of interest, it will be presumed that in making its decision our general partner, the board of directors of our general partner or the conflicts committee of 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, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption and proving that such decision was not in good faith. |
Unlike many other master limited partnerships, which require at least two independent members of the conflicts committee, our partnership agreement provides that a conflicts committee may be comprised of one or more directors. If we establish a conflicts committee with only one director, your interests may not be as well served as if we had a conflicts committee comprised of at least two independent directors. A single member conflicts committee would not have the benefit of discussion with and input from other independent directors.
By purchasing a common unit, the purchaser agrees to be bound by the provisions in our partnership agreement. Common unitholders 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, 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.
Contracts between us, on the one hand, and our general partner and its affiliates, on the other, are not and will not be the result of arms-length negotiations.
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 arms-length negotiations. Our general partner will determine, in good faith, the terms of any of such future transactions.
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, necessary or appropriate to conduct our business including, but not limited to, the following actions:
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expending, lending, or borrowing money, assuming, guaranteeing, or otherwise contracting for, indebtedness and other liabilities, issuing evidences of indebtedness, including indebtedness that is convertible into our equity interests, and incurring any other obligations; |
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making tax, regulatory and other filings, or rendering periodic or other reports to governmental or other agencies having jurisdiction over our business or assets; |
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acquiring, disposing, mortgaging, pledging, encumbering, hypothecating or exchanging our assets or merging or otherwise combining us with or into another person; |
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negotiating, executing and performing contracts, conveyance or other instruments; |
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distributing cash or cash equivalents; |
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selecting, employing or dismissing employees, agents, outside attorneys, accountants, consultants and contractors and determining their compensation and other terms of employment or hiring; |
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maintaining insurance for our benefit; |
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forming, acquiring an interest in, and contributing property and loaning money to, any partnerships, joint ventures, corporations, limited liability companies or other entity (including firms, trusts and unincorporated organizations); |
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controlling all matters affecting our rights and obligations, including bringing and defending actions at law or in equity or otherwise litigating, arbitrating or mediating, and incurring legal expense and settling claims and litigation; |
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indemnifying any person against liabilities and contingencies to the extent permitted by law; |
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purchasing, selling or otherwise acquiring or disposing of our partnership interests, or issuing options, rights, warrants, appreciation rights, tracking, profit and phantom interests and other derivative interests relating to, convertible into or exchangeable for our partnership interests; and |
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entering into agreements with any of its affiliates, including to render services to us or to itself in the discharge of its duties as our general partner. |
Please read The Partnership Agreement for information regarding the voting rights of unitholders.
Common units are subject to our general partners call right.
If at any time our general partner and its affiliates own more than 80% 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 unaffiliated persons at the price calculated in accordance with our partnership agreement. Please read Risk Factors Risks Inherent in an Investment in Us Our general partner has a call right that may require unitholders to sell their common units at an undesirable time or price. and The Partnership AgreementLimited Call Right.
We may choose not to retain separate counsel for ourselves or for the holders of common units.
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 the conflicts committee of the board of directors of our general partner and may perform services for our general partner and its affiliates. We may retain separate counsel for ourselves or the conflict committee 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, depending on the nature of the conflict, although we may choose not to do so.
Our general partners affiliates 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, engaging in activities incidental to its ownership interest in us and providing management, advisory and administrative services to its affiliates or to other persons. However, affiliates of our general partner, including Westlake, are not prohibited from engaging in other businesses or activities, including those that might be in direct competition with us. In addition, Westlake may compete with us for investment opportunities and may own an interest in entities that compete with us. Pursuant to 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 and directors and Westlake. 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
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another person or entity or does not communicate such opportunity or information to us. Please read Risk FactorsRisks Inherent in an Investment in UsWestlake and other affiliates of our general partner may compete with us.
The holder or holders of our incentive distribution rights may elect to cause us to issue common units to it in connection with a resetting of target distribution levels related to the incentive distribution rights, without the approval of the conflicts committee of our general partners board of directors or the holders of our common units. This could result in lower distributions to holders of our common units.
The holder or holders of a majority of our incentive distribution rights (initially Westlake) have the right, at any time when there are no subordinated units outstanding and we have made cash distributions in excess of the then-applicable third target distribution for each of the prior four consecutive fiscal quarters, to reset the initial target distribution levels at higher levels based on our cash distribution levels at the time of the exercise of the reset election. Following a reset election, a baseline distribution amount will be calculated equal to an amount equal to the prior cash distribution per common unit for the fiscal quarter immediately preceding the reset election (such amount is referred to as the reset minimum quarterly distribution), and the target distribution levels will be reset to correspondingly higher levels based on percentage increases above the reset minimum quarterly distribution.
We anticipate that Westlake would exercise this reset right in order to facilitate acquisitions or internal growth projects that would not be sufficiently accretive to cash distributions per unit without such conversion. However, Westlake may transfer the incentive distribution rights at any time. It is possible that Westlake or a transferee could exercise this reset election at a time when we are experiencing declines in our aggregate cash distributions or at a time when the holders of the incentive distribution rights expect that we will experience declines in our aggregate cash distributions in the foreseeable future. In such situations, the holders of the incentive distribution rights may be experiencing, or may expect to experience, declines in the cash distributions it receives related to the incentive distribution rights and may therefore desire to be issued our common units rather than retain the right to receive incentive distributions based on the initial target distribution levels. As a result, a reset election may cause our common unitholders to experience reduction in the amount of cash distributions that they would have otherwise received had we not issued new common units to the holders of the incentive distribution rights in connection with resetting the target distribution levels. Please read How We Make Distributions To Our PartnersIDR Holders Right to Reset Incentive Distribution Levels.
Duties owed to unitholders by our general partner are prescribed by law and in our partnership agreement. The Delaware Act provides that Delaware limited partnerships may, in their partnership agreements, expand, restrict or eliminate the fiduciary duties otherwise owed by the general partner to limited partners and the partnership.
Our partnership agreement contains various provisions that eliminate and replace the fiduciary duties that might otherwise be owed by our general partner and its directors and executive officers with contractual standards governing the duties of our general partner and contracted 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 otherwise might 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 a duty to manage our partnership in good faith and a duty to manage our general partner in a manner beneficial to its owner. Without these modifications, our general partners ability to make decisions involving conflicts of interest would be restricted. Replacing the fiduciary duty standards in this manner benefits our general partner by enabling it to take into consideration all parties involved in the proposed action. Replacing the fiduciary duty standards also strengthens the ability of our general partner to attract and retain experienced and capable directors. Replacing the fiduciary duty standards
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represents a detriment to our public unitholders because it restricts the remedies available to our public unitholders for actions that, without those limitations, might constitute breaches of fiduciary duty, as described below, and permits our general partner to take into account the interests of third parties in addition to our interests when resolving conflicts of interests.
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 require that any action taken or transaction engaged in be 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 (including its directors and executive officers) 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 believed its actions or omissions were not adverse to the interest of the partnership, and will not be subject to any higher standard under applicable law. 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 without any fiduciary obligation to us or the unitholders whatsoever. These contractual standards replace the obligations to which our general partner would otherwise be held. |
In making decisions, other than one where our general partner is permitted to act in its sole discretion, it will be presumed that in making its decision our general partner, the board of directors of our general partner or the conflicts committee of 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, the person bringing or prosecuting such proceeding will have the burden of overcoming such presumption and proving that such decision was not in good faith. |
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 wrongfully 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. |
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By purchasing a common unit, the purchaser 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.
Under our partnership agreement, we must indemnify our general partner and its officers, directors, managers and certain other specified persons, 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 non-appealable judgment by a court of competent jurisdiction determining that such losses or liabilities were the result of the conduct of our general partner or such officer or director engaged in by it in bad faith or, with respect to any criminal conduct, with the knowledge that its conduct was unlawful. Thus, our general partner could be indemnified for its negligent acts if it meets the requirements set forth above. To the extent these provisions purport to include indemnification for liabilities arising under the Securities Act in the opinion of the SEC, such indemnification is contrary to public policy and, therefore, unenforceable. Please read The Partnership AgreementIndemnification.
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DESCRIPTION OF THE COMMON UNITS
The common units and the subordinated units are separate classes of limited partner interests in us. The holders of units are entitled to participate in partnership distributions and exercise the rights or privileges available to limited partners under our partnership agreement. For a description of the relative rights and preferences of holders of common units and subordinated units in and to partnership distributions, please read this section and How We Make Distributions To Our Partners. For a description of other rights and privileges of limited partners under our partnership agreement, including voting rights, please read The Partnership Agreement.
Duties
American Stock Transfer & Trust Company, LLC will serve as the registrar and transfer agent for the 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 our unitholders:
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surety bond premiums to replace lost or stolen certificates, taxes and other governmental charges; |
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special charges for services requested by a holder of a common unit; and |
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other similar fees or charges. |
There will be no charge to our unitholders for disbursements of our cash distributions. We will indemnify the transfer agent, its agents and each of their 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 no successor is appointed or has not accepted its appointment within 30 days of the resignation or removal, our general partner may act as the transfer agent and registrar until a successor is appointed.
Upon the transfer of a common unit in accordance with our partnership agreement, the transferee of the common unit shall be admitted as a limited partner with respect to the common units transferred when such transfer and admission are reflected in our books and records. Each transferee:
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automatically becomes bound by the terms and conditions of our partnership agreement; |
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represents that the transferee has the capacity, power and authority to enter into our partnership agreement; and |
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makes the consents, acknowledgements and waivers contained in our partnership agreement, such as the approval of all transactions and agreements that we are entering into in connection with our formation and this offering. |
Our general partner will cause any transfers to be recorded on our books and records from time to time (or shall cause the transfer agent to do so, as applicable).
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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 holders 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 any transfers are subject 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 stock exchange regulations.
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The following is a summary of the material provisions of our partnership agreement, which we will adopt in connection with the closing of this offering. The form of our partnership agreement is included in this prospectus as Appendix A. We will provide investors and prospective investors with a copy of our partnership agreement, when available, upon request at no charge.
We summarize the following provisions of our partnership agreement elsewhere in this prospectus:
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with regard to distributions, please read How We Make Distributions To Our Partners; |
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with regard to the duties of, and standard of care applicable to, our general partner and its executive officers and directors, please read Conflicts of Interest and Fiduciary Duties; |
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with regard to the transfer of common units, please read Description of the Common UnitsTransfer of Common Units; and |
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with regard to allocations of taxable income and taxable loss, please read Material U.S. Federal Income Tax Consequences. |
Westlake Chemical Partners LP was organized in March 2014 and will have a perpetual existence unless terminated pursuant to the terms of our partnership agreement.
Our purpose, as set forth in our partnership agreement, is limited to any business activity that is approved by our general partner and that lawfully may be conducted by a limited partnership organized under Delaware law; provided that our general partner shall not cause us to take any action that the 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 federal income tax purposes.
Although our general partner has the ability to cause us and our subsidiaries to engage in activities other than the production, transportation, storage and sale of ethylene and associated co-products, our general partner may decline to do so in its sole discretion. Our general partner is generally authorized to perform all acts it determines to be necessary or appropriate to carry out our purposes and to conduct our business.
Unitholders are not obligated to make additional capital contributions, except as described below under Limited Liability.
The following is a summary of the unitholder vote required for approval of the matters specified below. Matters that call for the approval of a unit majority require:
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during the subordination period, the approval of a majority of the common units, excluding those common units whose vote is controlled by our general partner or its affiliates, and a majority of the subordinated units, voting as separate classes; and |
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after the subordination period, the approval of a majority of the common units. |
In voting their common and subordinated 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.
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The incentive distribution rights may be entitled to vote in certain circumstances.
Action |
Unitholder Approval Required |
Issuance of additional units |
No approval right. |
Amendment of the partnership agreement |
Certain amendments may be made by our general partner without the approval of the unitholders. Other amendments generally require the approval of a unit majority. Please read Amendment of the Partnership Agreement. |
Merger of our partnership or the sale of all or substantially all of our assets |
Unit majority in certain circumstances. Please read Merger, Consolidation, Conversion, Sale or Other Disposition of Assets. |
Dissolution of our partnership |
Unit majority. Please read Dissolution. |
Continuation of our business upon dissolution |
Unit majority. Please read Dissolution. |
Withdrawal of our general partner |
Under most circumstances, the approval of a majority of the outstanding common units, excluding common units held by our general partner and its affiliates, is required for the withdrawal of our general partner prior to , 2024 in a manner that would cause a dissolution of our partnership. Please read Withdrawal or Removal of Our General Partner. |
Removal of our 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. In addition, any vote to remove our general partner during the subordination period must provide for the election of a successor general partner by the holders of a majority of the common units and a majority of the subordinated units, voting as separate classes. Please read Withdrawal or Removal of Our General Partner. |
Transfer of our general partner interest |
No approval right. Please read Transfer of General Partner Interest. |
Transfer of incentive distribution rights |
No approval right. Please read Transfer of Subordinated Units and Incentive Distribution Rights. |
Transfer of ownership interests in our general partner |
No approval right. Please read Transfer of Ownership Interests in the General Partner. |
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 approved by our general partner or to any person or group who acquires the units with the specific prior approval of our general partner.
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Applicable Law; Forum, Venue and Jurisdiction
Our partnership agreement is governed by Delaware law. Our partnership agreement requires that any claims, suits, actions or proceedings:
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arising out of or relating in any way to the partnership agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of the partnership agreement or the duties, obligations or liabilities among limited partners or of limited partners to us, or the rights or powers of, or restrictions on, the limited partners or us); |
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brought in a derivative manner on our behalf; |
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asserting a claim of breach of a duty owed by any director, officer or other employee of us or our general partner, or owed by our general partner, to us or the limited partners; |
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asserting a claim arising pursuant to any provision of the Delaware Act; or |
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asserting a claim governed by the internal affairs doctrine |
shall be exclusively brought in the Court of Chancery of the State of Delaware (or, if such court does not have subject matter jurisdiction thereof, any other court located in the State of Delaware with subject matter jurisdiction), regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims.
If any person brings any of the aforementioned claims, suits, actions or proceedings and such person does not obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought, then such person shall be obligated to reimburse us and our affiliates for all fees, costs and expenses of every kind and description, including but not limited to all reasonable attorneys fees and other litigation expenses, that the parties may incur in connection with such claim, suit, action or proceeding.
By purchasing a common unit, a limited partner is irrevocably consenting to these limitations and provisions regarding claims, suits, actions or proceedings and submitting to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or such other court) in connection with any such claims, suits, actions or proceedings.
Assuming that a limited partner does not participate in the control of our business within the meaning of the Delaware Act and that he otherwise acts in conformity with the provisions of the partnership agreement, his liability under the Delaware Act will be limited, subject to possible exceptions, to the amount of capital he is obligated to contribute to us for his common units plus his share of any undistributed profits and assets. However, if it were determined that the right, or exercise of the right, by the limited partners as a group:
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to remove or replace our general partner; |
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to approve some amendments to our partnership agreement; or |
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to 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 under the reasonable belief that the 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.
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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 partnership 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. 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.
Following the completion of this offering, we expect that our subsidiaries will conduct business in several states and we may have subsidiaries that conduct business in other states or countries in the future. Maintenance of our limited liability as owner of our operating subsidiaries may require compliance with legal requirements in the jurisdictions in which the operating subsidiaries conduct business, including qualifying our subsidiaries 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 interest in our subsidiaries or otherwise, it were determined that we were conducting business in any jurisdiction 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.
Issuance of Additional Interests
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, subordinated units or other partnership interests. Holders of any additional common units we issue will be entitled to share equally with the then-existing common unitholders in our distributions. In addition, the issuance of additional common units or other partnership interests may dilute the value of the interests of the then-existing unitholders 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 rights to distributions or special voting rights to which the common units are not entitled. In addition, our partnership agreement does not prohibit our subsidiaries from issuing 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, subordinated units or other partnership interests whenever, and on the same terms that, we issue partnership interests to persons other than our general partner and its affiliates, to the extent necessary to maintain the percentage interest of our general partner and its affiliates, including such interest represented by common and subordinated units, that existed immediately prior to each issuance. The common unitholders will not have preemptive rights under our partnership agreement to acquire additional common units or other partnership interests.
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Amendment of the 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 the limited partners, including any duty to act in the best interests of us or the limited partners. 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 to 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:
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enlarge the obligations of any limited partner without his consent, unless approved by at least a majority of the type or class of limited partner interests so affected; or |
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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 the consent of our general partner, which consent may be given or withheld in its sole discretion. |
The provision of our partnership agreement preventing the amendments having the effects described in the clauses above can be amended upon the approval of the holders of at least 90.0% of the outstanding units, voting as a single class (including units owned by our general partner and its affiliates). Upon completion of the offering, Westlake will own approximately % of our outstanding common units and subordinated units excluding common units purchased by directors and officers of our general partner under our directed unit program.
No Unitholder Approval
Our general partner may generally make amendments to our partnership agreement without the approval of any limited partner to reflect:
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a change in our name, the location of our principal place of business, our registered agent or our registered office; |
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the admission, substitution, withdrawal or removal of partners in accordance with our partnership agreement; |
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a change that our general partner determines to be necessary or appropriate to qualify or continue our qualification as a limited partnership or other entity 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 (to the extent not already so treated or taxed); |
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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 Advisers Act of 1940 or plan asset regulations adopted under the Employee Retirement Income Security Act of 1974, or ERISA, whether or not substantially similar to plan asset regulations currently applied or proposed; |
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an amendment that our general partner determines to be necessary or appropriate in connection with the creation, authorization or issuance of additional partnership interests or the right to acquire partnership interests; |
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any amendment expressly permitted in our partnership agreement to be made by our general partner acting alone; |
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an amendment effected, necessitated or contemplated by a merger agreement that has been approved under the terms of our partnership agreement; |
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any amendment that our general partner determines to be necessary or appropriate for the formation by us of, or our investment in, any corporation, partnership or other entity, as otherwise permitted by our partnership agreement; |
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a change in our fiscal year or taxable year and related changes; |
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conversions into, mergers with or conveyances to another limited liability entity that is newly formed and has no assets, liabilities or operations at the time of the conversion, merger or conveyance other than those it receives by way of the conversion, merger or conveyance; or |
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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:
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do not adversely affect in any material respect the limited partners, considered as a whole, or any particular class of limited partners, as compared to other classes of limited partners; |
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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 for trading; |
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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 |
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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
Any amendment that our general partner determines adversely affects in any material respect one or more particular classes of limited partners, and is not permitted to be adopted by our general partner without limited partner approval, will require the approval of at least a majority of the class or classes so affected, but no vote will be required by any class or classes of limited partners that our general partner determines are not adversely affected in any material respect. Any such amendment that would have a material adverse effect on the rights or preferences of any type or class of outstanding units in relation to other classes of units will require the approval of at least a majority of the type or class of units so affected. Any such amendment that would reduce the voting percentage required to take any action other than to remove the general partner or call a meeting of unitholders is required to be approved by the affirmative vote of limited partners whose aggregate outstanding units constitute not less than the voting requirement sought to be reduced. Any such amendment that would increase the percentage of units required to remove the 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 increased. For amendments of the type not requiring unitholder approval, our general partner will not be required to obtain an opinion of counsel that an amendment will neither result in a loss of limited liability to the limited partners nor result in our being treated as a taxable entity for federal income tax purposes in connection with any of the amendments. 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 an opinion of counsel to the effect that the amendment will not affect the limited liability under applicable law of any of our limited partners.
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Merger, Consolidation, Conversion, Sale or Other Disposition of Assets
A merger, consolidation or conversion of us 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.
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 sell, exchange or otherwise dispose of all or substantially all of our assets in a single transaction or a series of related transactions, including by way of merger, consolidation or other combination. Our general partner may, however, mortgage, pledge, hypothecate or grant a security interest in all or substantially all of our assets without such approval. Our general partner may also sell any or all of our assets under a foreclosure or other realization upon those encumbrances without such approval. Finally, our general partner may consummate any merger 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 a material amendment to the partnership agreement (other than an amendment that the general partner could adopt without the consent of other partners), each of our units will be an identical unit of our partnership following the transaction and the partnership interests to be issued do not exceed 20% of our outstanding partnership interests (other than incentive distribution rights) 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 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 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. Our 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.
We will continue as a limited partnership until dissolved under our partnership agreement. We will dissolve upon:
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the election of our general partner to dissolve us, if approved by a unit majority; |
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there being no limited partners, unless we are continued without dissolution in accordance with applicable Delaware law; |
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the entry of a decree of judicial dissolution of our partnership; or |
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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 its withdrawal or removal following the approval and admission of a successor. |
Upon a dissolution under the last 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 a unit majority, subject to our receipt of an opinion of counsel to the effect that:
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the action would not result in the loss of limited liability under Delaware law of any limited partner; and |
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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). |
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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, liquidate our assets and apply the proceeds of the liquidation as described in How We Make Distributions To Our PartnersDistributions of Cash Upon Liquidation. 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 , 2024 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 furnishing an opinion of counsel regarding limited liability and tax matters. On or after , 2024, 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 approval upon 90 days 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 withdrawal of our general partner under any circumstances, other than as a result of a transfer by our general partner of all or a part of its general partner interest in us, 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 in writing to continue our business and to appoint a successor general partner. Please read 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 the 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, voting as a class, and the outstanding subordinated units, voting as a class. The ownership of more than 33 1 / 3 % of the outstanding units by our general partner and its affiliates gives them the ability to prevent our general partners removal. At the closing of this offering, Westlake will own % of our outstanding limited partner units, including all of our subordinated units (or % of our outstanding limited partners interests if the underwriters exercise in full their option to purchase additional common units from us) and excluding common units purchased by directors and officers of our general partner under our directed unit program.
Our partnership agreement also provides that if our general partner is removed as our general partner under circumstances where cause does not exist:
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all subordinated units held by any person who did not, and whose affiliates did not, vote any units in favor of the removal of the general partner, will immediately and automatically convert into common units on a one-for-one basis; and |
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if all of the subordinated units convert pursuant to the foregoing, all cumulative common unit arrearages on the common units will be extinguished and the subordination period will end. |
In the event of the removal of our general partner under circumstances where cause exists or withdrawal of our general partner where that withdrawal violates our partnership agreement, a successor general partner will
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have the option to purchase the general partner interest of the departing general partner and the incentive distribution rights of its affiliates for a cash payment equal to the fair market value of such interests. Under all other circumstances where our general partner withdraws or is removed by the limited partners, the departing general partner will have the option to require the successor general partner to purchase the general partner interest of the departing general partner and the incentive distribution rights of its affiliates for fair market value. 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.
If the option described above is not exercised by either the departing general partner or the successor general partner, the departing general partner will become a limited partner and its general partner interest and the incentive distribution rights of its affiliates will automatically convert into common units equal to the fair market value of those interests as determined by an investment banking firm or other independent expert selected in the manner described in the preceding paragraph.
In addition, 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 as a result of the termination of any employees employed for our benefit by the departing general partner or its affiliates.
Transfer of General Partner Interest
At any time, our general partner may transfer all or any of its general partner interest to another person without the approval of our common unitholders. As a condition of this transfer, the transferee must, among other things, assume 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.
Transfer of Ownership Interests in the General Partner
At any time, the owner of our general partner may sell or transfer all or part of its ownership interests in our general partner to an affiliate or third party without the approval of our unitholders.
Transfer of Subordinated Units and Incentive Distribution Rights
At any time, our general partner or the holder and holders of our incentive distribution rights (initially Westlake) may sell or transfer its subordinated units or their incentive distribution rights, as applicable, to an affiliate or third party without the approval of the unitholders. By transfer of subordinated units or incentive distribution rights in accordance with our partnership agreement, each transferee of subordinated units or incentive distribution rights will be admitted as a limited partner with respect to the subordinated units or incentive distribution rights transferred when such transfer and admission is reflected in our books and records. Each transferee:
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represents that the transferee has the capacity, power and authority to become bound by our partnership agreement; |
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automatically becomes bound by the terms and conditions of our partnership agreement; and |
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gives the consents, waivers and approvals contained in our partnership agreement, such as the approval of all transactions and agreements we are entering into in connection with our formation and this offering. |
Our general partner will cause any transfers to be recorded on our books and records no less frequently than quarterly.
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We may, at our discretion, treat the nominee holder of subordinated units or incentive distribution rights as the absolute owner. In that case, the beneficial holders 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.
Subordinated units and incentive distribution rights are securities and any transfers are subject to the laws governing transfer of securities. In addition to other rights acquired upon transfer, the transferor gives the transferee the right to become a limited partner for the transferred subordinated units or incentive distribution rights.
Until a subordinated unit or incentive distribution right has been transferred on our books, we and the transfer agent may treat the record holder of the unit or right as the absolute owner for all purposes, except as otherwise required by law or stock exchange regulations.
Change of Management Provisions
Our partnership agreement contains specific provisions that are intended to discourage a person or group from attempting to remove Westlake Chemical Partners GP LLC as our general partner or from otherwise changing our management. Please read Withdrawal or Removal of Our General Partner for a discussion of certain consequences of the removal of our general partner. 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 in certain circumstances. Please read Meetings; Voting.
If at any time our general partner and its affiliates own more than 80% of the then-issued and outstanding limited partner interests of any class, our general partner will have the right, which it may assign in whole or in part to any of its affiliates or to us, to acquire all, but not less than all, of the limited partner interests of the class held by unaffiliated persons, as of a record date to be selected by our general partner, on at least 10, but not more than 60, days notice. The purchase price in the event of this purchase is the greater of:
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the highest price paid by 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 |
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the average of the daily closing prices of the partnership securities of such class over the 20 trading days preceding the date that is three days before the date the notice is mailed. |
As a result of our general partners right to purchase outstanding limited partner interests, a holder of limited partner interests may have his limited partner interests purchased at an undesirable time or 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 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 ConsequencesDisposition of Units.
Non-Taxpaying Holders; Redemption
To avoid any adverse effect on the maximum applicable rates chargeable to customers by us or any of our future subsidiaries, or in order to reverse an adverse determination that has occurred regarding such maximum rate, our partnership agreement provides our general partner 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 federal income tax purposes, coupled with the tax status (or lack of proof thereof) of one or more of our limited partners (or their owners, to the extent relevant), has, or is
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reasonably likely to have, a material adverse effect on the maximum applicable rates chargeable to customers by our subsidiaries, then our general partner may adopt such amendments to our partnership agreement as it determines necessary or advisable to:
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obtain proof of the federal income tax status of our limited partners (and their owners, to the extent relevant); and |
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permit us to redeem the 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 such persons federal income tax status. The redemption price in the case of such a 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. |
Non-Citizen Assignees; Redemption
If our general partner, with the advice of counsel, determines we are subject to federal, state or local laws or regulations that, in the reasonable determination of our general partner, 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 (or its owners, to the extent relevant), then our general partner may adopt such amendments to our partnership agreement as it determines necessary or advisable to:
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obtain proof of the nationality, citizenship or other related status of our limited partners (or their owners, to the extent relevant); and |
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permit us to redeem the 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 the general partner to obtain proof of the nationality, citizenship or other related status. The redemption price in the case of such a 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. |
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 our 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 without a meeting if consents in writing describing the action so taken are signed by holders of the number of units 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 50% of the outstanding units of the class for which a 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. Our general partner may postpone any meeting of unitholders one or more times for any reason by giving notice to the unitholders entitled to vote at such meeting. Our general partner may also adjourn any meeting of unitholders one or more times for any reason, including the absence of a quorum, without a vote of the unitholders.
Each record holder of a unit has a vote according to his percentage interest in us, although additional limited partner interests having special voting rights could be issued. Please read Issuance of Additional Interests. However, if at any time any person or group, other than our general partner and its affiliates, or a direct or subsequently approved transferee of our general partner or its affiliates and purchasers specifically approved by our general partner, acquires, in the aggregate, beneficial ownership of 20% or more of any class of units then
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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 his nominee provides otherwise. Except as our partnership agreement otherwise provides, subordinated units will vote together with common units, as a single class.
Any notice, demand, request, report or proxy material required or permitted to be given or made to record common unitholders under our partnership agreement will be delivered to the record holder by us or by the transfer agent.
Voting Rights of Incentive Distribution Rights
If a majority of the incentive distribution rights are held by our general partner and its affiliates, the holders of the incentive distribution rights will have no right to vote in respect of such rights on any matter, unless otherwise required by law, and the holders of the incentive distribution rights shall be deemed to have approved any matter approved by our general partner.
If less than a majority of the incentive distribution rights are held by our general partner and its affiliates, the incentive distribution rights will be entitled to vote on all matters submitted to a vote of unitholders, other than amendments and other matters that our general partner determines do not adversely affect the holders of the incentive distribution rights in any material respect. On any matter in which the holders of incentive distribution rights are entitled to vote, such holders will vote together with the subordinated units, prior to the end of the subordination period, or together with the common units, thereafter, in either case as a single class, and such incentive distribution rights shall be treated in all respects as subordinated units or common units, as applicable, when sending notices of a meeting of our limited partners to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other similar purposes under our partnership agreement. The relative voting power of the holders of the incentive distribution rights and the subordinated units or common units, depending on which class the holders of incentive distribution rights are voting with, will be set in the same proportion as cumulative cash distributions, if any, in respect of the incentive distribution rights for the four consecutive quarters prior to the record date for the vote bears to the cumulative cash distributions in respect of such class of units for such four quarters.
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 are reflected in our books and records. Except as described under Limited Liability, the common units will be fully paid, and unitholders will not be required to make additional contributions.
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:
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our general partner; |
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any departing general partner; |
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any person who is or was an affiliate of our general partner or any departing general partner; |
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any person who is or was a manager, managing member, general partner, director, officer, fiduciary or trustee of our partnership, our subsidiaries, our general partner, any departing general partner or any of their affiliates; |
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any person who is or was serving as a manager, managing member, general partner, director, officer, employee, agent, fiduciary or trustee of another person owing a fiduciary duty to us or our subsidiaries; |
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any person who controls our general partner or any departing general partner; and |
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any person designated by our general partner. |
Any indemnification under these provisions will only be out of our assets. Unless our general partner otherwise agrees, it 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 may 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 liabilities under our partnership agreement.
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. Our partnership agreement does not set a limit on the amount of expenses for which our general partner and its affiliates may be reimbursed. 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 the expenses that are allocable to us.
Our general partner is required to keep appropriate books of our business at our principal offices. These books will be maintained for both tax and financial reporting purposes on an accrual basis. For tax and fiscal reporting purposes, our fiscal year is the calendar year.
We will furnish or make available to record holders of our common units, within 105 days after the close of each fiscal year, an annual report containing audited consolidated financial statements and a report on those consolidated financial statements by our independent public accountants. Except for our fourth quarter, we will also furnish or make available summary financial information within 50 days after the close of each quarter. We will be deemed to have made any such report available if we file such report with the SEC on EDGAR or make the report available on a publicly available website that we maintain.
We will furnish each record holder with information reasonably required for federal and state 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 our unitholders will depend on their cooperation in supplying us with specific information. Every unitholder will receive information to assist him in determining his federal and state tax liability and in filing his federal and state income tax returns, regardless of whether he supplies us with the necessary information.
Right to Inspect Our Books and Records
Our partnership agreement provides that a limited partner can, for a purpose reasonably related to his interest as a limited partner, upon reasonable written demand stating the purpose of such demand and at his own expense, have furnished to him:
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a current list of the name and last known address of each record holder; and |
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copies of our partnership agreement, our certificate of limited partnership, related amendments and powers of attorney under which they have been executed; |
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Under our partnership agreement, however, each of our limited partners and other persons who acquire interests in our partnership interests, do not have rights to receive information from us or any of the persons we indemnify as described above under Indemnification for the purpose of determining whether to pursue litigation or assist in pending litigation against us or those indemnified persons relating to our affairs, except pursuant to the applicable rules of discovery relating to the litigation commenced by the person seeking information.
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 rights to information that a limited partner would otherwise have under Delaware law.
Under our partnership agreement, we have agreed to register for resale under the Securities Act and applicable state securities laws any common units, subordinated units or other limited partner interests proposed to be sold by our general partner or any of its affiliates or their assignees if an exemption from the registration requirements is not otherwise available. These registration rights continue for two years following any withdrawal or removal of our general partner. We are obligated to pay all expenses incidental to the registration, excluding underwriting discounts.
In addition, in connection with this offering, we expect to enter into a registration rights agreement with Westlake. Pursuant to the registration rights agreement, we will be required to file a registration statement to register the common units and subordinated units issued to Westlake and the common units issuable upon the conversion of the subordinated units upon request of Westlake. In addition, the registration rights agreement gives Westlake piggyback registration rights under certain circumstances. The registration rights agreement also includes provisions dealing with holdback agreements, indemnification and contribution and allocation of expenses. These registration rights are transferable to affiliates of Westlake and, in certain circumstances, to third parties. Please read Units Eligible for Future Sale.
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UNITS ELIGIBLE FOR FUTURE SALE
After the sale of the common units offered by this prospectus, Westlake will hold an aggregate of common units and all subordinated units. All of the subordinated units will convert into common units at the end of the subordination period and some may convert earlier. The sale of these common and subordinated units could have an adverse impact on the price of the common units or on any trading market that may develop.
Our 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 under Rule 144 or otherwise. Rule 144 permits securities acquired by an affiliate of the issuer to be sold into the market in an amount that does not exceed, during any three-month period, the greater of:
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1% of the total number of the securities outstanding; or |
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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. 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 our common units for at least six months (provided we are in compliance with the current public information requirement), or one year (regardless of whether we are in compliance with the current public information requirement), would be entitled to sell those common units under Rule 144, subject only to the current public information requirement. After beneficially owning Rule 144 restricted units for at least one year, a person who is not deemed to have been an affiliate of ours at any time during the 90 days preceding a sale would be entitled to freely sell those common units without regard to the public information requirements, volume limitations, manner of sale provisions and notice requirements of Rule 144.
Our partnership agreement provides that we may issue an unlimited number of limited partner interests of any type at any time without a vote of the unitholders. 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 AgreementIssuance of Additional Interests.
Under our partnership agreement and the registration rights agreement that we expect to enter into, our general partner and its affiliates will have the right to cause us to register under the Securities Act and applicable state securities laws the offer and sale of any units that they hold. Subject to the terms and conditions of the partnership agreement and the registration rights agreement, these registration rights allow our general partner and its affiliates or their assignees holding any units to require registration of any of these units and to include any of these units in a registration by us of other units, including units offered by us or by any unitholder. Our general partner and its affiliates will continue to have these registration rights for two years following its withdrawal or removal as 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 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 discount. Except as described below, our general partner and its affiliates may sell their units in private transactions at any time, subject to compliance with applicable laws.
The executive officers and directors of our general partner and Westlake have agreed not to sell any common units they beneficially own for a period of 180 days from the date of this prospectus. Please read Underwriting for a description of these lock-up provisions.
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Prior to the completion of this offering, we expect to adopt a new long-term incentive plan (the Long-Term Incentive Plan). If adopted, we intend to file a registration statement on Form S-8 under the Securities Act to register common units issuable under the Long-Term Incentive Plan. This registration statement on Form S-8 is expected to be filed following the effective date of the registration statement of which this prospectus is a part and will be effective upon filing. Accordingly, common units issued under the Long-Term Incentive Plan will be eligible for resale in the public market without restriction after the effective date of the Form S-8 registration statement, subject to applicable vesting requirements, Rule 144 limitations applicable to affiliates and the lock-up restrictions described above.
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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
This section summarizes the material federal income tax consequences that may be relevant to prospective unitholders and is based upon current provisions of the Internal Revenue Code of 1986, as amended (the Code), existing and proposed Treasury regulations thereunder (the Treasury Regulations), and current administrative rulings and court decisions, all of which are subject to change. Changes in these authorities may cause the federal income tax consequences to a prospective unitholder to vary substantially from those described below. Unless the context otherwise requires, references in this section to we or us are references to Westlake Chemical Partners LP and our operating subsidiaries.
Legal conclusions contained in this section, unless otherwise noted, are the opinion of Vinson & Elkins L.L.P. and are based on the accuracy of representations made by us to them for this purpose. However, this section does not address all federal income tax matters that affect us or our unitholders and does not describe the application of the alternative minimum tax that may be applicable to certain unitholders. Furthermore, this section focuses on unitholders who are individual citizens or residents of the United States (for federal income tax purposes), who have the U.S. dollar as their functional currency and who hold units as capital assets (including property that is held for investment). This section has limited applicability to corporations, partnerships, (including entities treated as partnerships for federal income tax purposes), estates, trusts, non-resident aliens or other unitholders subject to specialized tax treatment, such as tax-exempt institutions, non-U.S. persons, individual retirement accounts (IRAs), employee benefit plans, real estate investment trusts or mutual funds. Accordingly, we encourage each unitholder to consult the unitholders own tax advisor in analyzing the federal, state, local and non-U.S. tax consequences particular to that unitholder resulting from ownership or disposition of units and potential changes in applicable tax laws.
We have requested and obtained a favorable private letter ruling from the IRS to the effect that the production, transportation, storage and marketing of ethylene and its co-products will constitute qualifying income within the meaning of Section 7704 of the Code. However, no ruling has been or will be requested from the IRS regarding our treatment as a partnership for U.S. federal income tax purposes. Instead, we will rely on opinions and advice of Vinson & Elkins L.L.P. with respect to the matters described herein. An opinion of counsel represents only that counsels best legal judgment and does not bind the Internal Revenue Service (the IRS) or a court. Accordingly, the opinions and statements made herein may not be sustained by a court if contested by the IRS. Any such contest of the matters described herein may materially and adversely impact the market for units and the prices at which our units trade. In addition, our costs of any contest with the IRS will be borne indirectly by our unitholders and our general partner because the costs will reduce our cash available for distribution to our unitholders. Furthermore, the tax consequences of an investment in us, may be significantly modified by future legislative or administrative changes or court decisions, which may be retroactively applied.
For the reasons described below, Vinson & Elkins L.L.P. has not rendered an opinion with respect to the following federal income tax issues: (i) the treatment of a unitholder whose units are the subject of a securities loan (e.g., a loan to a short seller to cover a short sale of units) (please read Tax Consequences of Unit OwnershipTreatment of Securities Loans); (ii) whether our monthly convention for allocating taxable income and losses is permitted by existing Treasury Regulations (please read Disposition of UnitsAllocations Between Transferors and Transferees); and (iii) whether our method for taking into account Section 743 adjustments is sustainable in certain cases (please read Tax Consequences of Unit OwnershipSection 754 Election and Uniformity of Units).
Partnership Status
We will be treated as a partnership for U.S. federal income tax purposes and, therefore, will not be liable for entity-level federal income taxes. Instead, as described below, each of our unitholders will take into account its respective share of our items of income, gain, loss and deduction in computing its federal income tax liability as
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if the unitholder had earned such income directly, even if we make no cash distributions to the unitholder. Distributions we make to a unitholder will not give rise to income or gain taxable to such unitholder, unless the amount of cash distributed exceeds the unitholders adjusted tax basis in its units.
Section 7704 of the Code provides that publicly traded partnerships will be treated as corporations for federal income tax purposes. However, if 90% or more of a partnerships gross income for every taxable year it is publicly traded consists of qualifying income, the partnership may continue to be treated as a partnership for federal income tax purposes (the Qualifying Income Exception). Qualifying income includes income and gains derived from the processing, transportation, storage and marketing of certain natural resources, including products of natural gas, as well as other types of qualifying income such as interest (other than from a financial business) and dividends. We estimate that less than % of our current gross income is not qualifying income; however, this estimate could change from time to time.
Vinson & Elkins L.L.P. is of the opinion that we will be treated as a partnership for federal income tax purposes. In rendering its opinion, Vinson & Elkins L.L.P. has relied on factual representations made by us and our general partner. The representations made by us and our general partner upon which Vinson & Elkins L.L.P. has relied include, without limitation:
(a) Neither we nor any of our partnership or limited liability company subsidiaries has elected to be treated as a corporation for federal income tax purposes; and
(b) For each taxable year since and including the year of our initial public offering, more than 90% of our gross income has been and will be income of a character that Vinson & Elkins L.L.P. has opined is qualifying income within the meaning of Section 7704(d) of the Code.
We believe that these representations are true and will 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 transferring 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 as distributing that stock to our unitholders in liquidation. This deemed contribution and liquidation should not result in the recognition of taxable income by our unitholders or us so long as our liabilities do not exceed the tax basis of our assets. Thereafter, we would be treated as an association taxable as a corporation for federal income tax purposes.
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 the U.S. Congress propose and consider substantive changes to the existing federal income tax laws that affect publicly traded partnerships. One such legislative proposal would have eliminated the qualifying income exception upon which we rely for our treatment as a partnership for U.S. federal income tax purposes. 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 may be applied retroactively. Any such changes could negatively impact the value of an investment in our units.
If for any reason we are taxable as a corporation in any taxable year, our items of income, gain, loss and deduction would be taken into account by us in determining the amount of our liability for federal income tax, rather than being passed through to our unitholders. Our taxation as a corporation would materially reduce our cash available for distribution to unitholders and thus would likely substantially reduce the value of our common units. Any distribution made to a unitholder at a time we are treated as a corporation would be (i) a taxable dividend to the extent of our current or accumulated earnings and profits, then (ii) a nontaxable return of capital to the extent of the unitholders tax basis in its units, and thereafter (iii) taxable capital gain.
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The remainder of this discussion is based on the opinion of Vinson & Elkins L.L.P. that we will be treated as a partnership for federal income tax purposes.
Tax Consequences of Unit Ownership
Limited Partner Status
Unitholders who are admitted as limited partners of the partnership, as well as unitholders whose 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 units, will be treated as partners of the partnership for federal income tax purposes. For a discussion related to the risks of losing partner status as a result of securities loans, please read Tax Consequences of Unit OwnershipTreatment of Securities Loans. Unitholders who are not treated as partners in us as described above are urged to consult their own tax advisors with respect to the tax consequences applicable to them under the circumstances.
Flow-Through of Taxable Income
Subject to the discussion below under Entity-Level Collections of Unitholder Taxes with respect to payments we may be required to make on behalf of our unitholders, we will not pay any federal income tax. Rather, each unitholder will be required to report on its federal income tax return each year its share of our income, gains, losses and deductions for our taxable year or years ending with or within its taxable year. Consequently, we may allocate income to a unitholder even if that unitholder has not received a cash distribution.
Basis of Units
A unitholders tax basis in its units initially will be the amount paid for those units increased by the unitholders initial allocable share of our liabilities. That basis will be (i) increased by the unitholders share of our income and any increases in such unitholders share of our liabilities, and (ii) decreased, but not below zero, by the amount of all distributions to the unitholder, the unitholders share of our losses, and any decreases in its share of our liabilities. 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 of those interests.
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, 2016, will be allocated, on a cumulative basis, an amount of federal taxable income for that period that will be 20% 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, and our counsel has not opined on the accuracy of such estimates.
For any taxable year ending on or before December 31, 2020, holders of common units (excluding converted subordinated units held by Westlake or its affiliates) may be allocated additional gross operating income; provided that no such special allocation shall be made to the extent a purchaser of common units in this offering would be allocated an amount of federal taxable income on the common units purchased in this offering with respect to such taxable year that would exceed 20% of the cash distributed on the common units purchased in this offering with respect to such year.
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The ratio of taxable income to cash distributions to a purchaser of units in this offering would be higher, and perhaps substantially higher, than our estimate with respect to the period described above if:
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We distribute less cash than we have assumed in making this projection; or |
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we make a future offering of common units and use the proceeds of the offering in a manner that does not produce 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. |
Treatment of Distributions
Distributions made by us to a unitholder will not be taxable to the unitholder, unless such distributions exceed the unitholders tax basis in its units, in which case the unitholder will recognize gain taxable in the manner described below under Disposition of Units.
Any reduction in a unitholders share of our liabilities will be treated as a distribution by us of cash to that unitholder. A decrease in a unitholders percentage interest in us because of our issuance of additional units may decrease the unitholders share of our liabilities. For purposes of the foregoing, a unitholders share of our nonrecourse liabilities (liabilities for which no partner bears the economic risk of loss) will be based upon that unitholders share of the unrealized appreciation (or depreciation) in our assets, to the extent thereof, with any excess liabilities allocated based on the unitholders share of our profits. Please read Disposition of Units.
A non-pro rata distribution of money or property (including a deemed distribution as a result of the reallocation of our liabilities described above) may cause a unitholder to recognize ordinary income, if the distribution reduces the unitholders share of our unrealized receivables, including depreciation recapture and substantially appreciated inventory items, both as defined in Section 751 of the Code (Section 751 Assets). To the extent of such reduction, the unitholder would be deemed to receive its proportionate share of the Section 751 Assets and exchange such assets with us in return for a portion of the non-pro rata distribution. This deemed exchange will result in the unitholders recognition of ordinary income in an amount equal to the excess of (i) the non-pro rata portion of that distribution over (ii) the unitholders tax basis (typically zero) in the Section 751 Assets deemed to be relinquished in the exchange.
Limitations on Deductibility of Losses
A unitholder may not be entitled to deduct the full amount of loss we allocate to it because its share of our losses will be limited to the lesser of (i) the unitholders tax basis in its units, and (ii) in the case of a unitholder that is an individual, estate, trust or certain types of closely-held corporations, the amount for which the unitholder is considered to be at risk with respect to our activities. In general, a unitholder will be at risk to the extent of its tax basis in its units, reduced by (1) any portion of that basis attributable to the unitholders share of our liabilities, (2) any portion of that basis representing amounts otherwise protected against loss because of a guarantee, stop loss agreement or similar arrangement and (3) any amount of money the unitholder borrows to acquire or hold its units, if the lender of those borrowed funds owns an interest in us, is related to another unitholder or can look only to the units for repayment. A unitholder subject to the at risk limitation must recapture losses deducted in previous years to the extent that distributions (including distributions deemed to result from a reduction in a unitholders share of nonrecourse liabilities) cause the unitholders 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 the basis or at risk limitations will carry forward and will be allowable as a deduction in a later year to the extent that the unitholders tax basis or at risk amount, whichever is the limiting factor, is subsequently increased. Upon a taxable disposition of units, any gain recognized by a unitholder can be offset by losses that were previously suspended by the at risk limitation but not
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losses suspended by the basis limitation. Any loss previously suspended by the at risk limitation in excess of that gain can no longer be used, and will not be available to offset a unitholders salary or active business income.
In addition to the basis and at risk limitations, a passive activity loss limitation limits the deductibility of losses incurred by individuals, estates, trusts, some closely-held corporations and personal service corporations from passive activities (which include trade or business activities in which the taxpayer does not materially participate). The passive loss limitations are applied separately with respect to each publicly traded partnership. Consequently, any passive losses we generate will be available to offset only passive income generated by us. Passive losses that exceed a unitholders share of passive income we generate may be deducted in full when the unitholder disposes of all of its units in a fully taxable transaction with an unrelated party. The passive loss rules are applied after other applicable limitations on deductions, including the at risk and basis limitations.
Limitations on Interest Deductions
The deductibility of a non-corporate taxpayers investment interest expense is limited to the amount of that taxpayers net investment income. Investment interest expense includes:
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interest on indebtedness allocable to property held for investment; |
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interest expense allocated against 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 allocable against portfolio income. |
The computation of a unitholders 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. Net investment income does not include qualified dividend income (if applicable) or gains attributable to the disposition of property held for investment. A unitholders share of a publicly traded partnerships portfolio income and, according to the IRS, net passive income will be treated as investment income for purposes of the investment interest expense limitation.
Entity-Level Collections of Unitholder Taxes
If we are required or elect under applicable law to pay any federal, state, local or non-U.S. tax on behalf of any current or former unitholder or our general partner, we are authorized to treat the payment as a distribution of cash to the relevant unitholder or general partner. Where the tax is payable on behalf of all unitholders or we cannot determine the specific unitholder on whose behalf the tax is payable, we are authorized to treat the payment as a distribution to all current unitholders. Payments by us as described above could give rise to an overpayment of tax on behalf of a unitholder, in which event the unitholder may be entitled to claim a refund of the overpayment amount. Unitholders are urged to consult their tax advisors to determine the consequences to them of any tax payment we make on their behalf.
Allocation of Income, Gain, Loss and Deduction
Our items of income, gain, loss and deduction will be allocated amongst our unitholders in accordance with their percentage interests in us. At any time that distributions are made to the common units in excess of distributions to the subordinated units, or we make incentive distributions, gross income will be allocated to the recipients to the extent of these distributions. In addition, for any taxable year ending on or before December 31, 2020, holders of common units (excluding converted subordinated units held by Westlake or its affiliates) may be allocated additional gross operating income; provided that no such special allocation shall be made to the
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extent a purchaser of common units in this offering would be allocated an amount of federal taxable income on the common units purchased in this offering with respect to such taxable year that would exceed 20% of the cash distributed on the common units purchased in this offering with respect to such year.
Specified items of our income, gain, loss and deduction will be allocated under Section 704(c) of the Code (or the principles of Section 704(c) of the Code) to account for any difference between the tax basis and fair market value of our assets at the time such assets are contributed to us and at the time of any subsequent offering of our common units (a Book-Tax Disparity). As a result, the federal income tax burden associated with any Book-Tax Disparity immediately prior to an offering will be borne by our partners holding interests in us prior to such offering. In addition, items of recapture income will be specially allocated to the extent possible to the unitholder who was allocated the deduction giving rise to that recapture income in order to minimize the recognition of ordinary income by other unitholders.
An allocation of items of our income, gain, loss or deduction, other than an allocation required by the Code to eliminate a Book-Tax Disparity, will be given effect for federal income tax purposes in determining a partners share of an item of income, gain, loss or deduction only if the allocation has substantial economic effect. In any other case, a partners share of an item will be determined on the basis of the partners interest in us, which will be determined by taking into account all the facts and circumstances, including (i) the partners relative contributions to us, (ii) the interests of all the partners in profits and losses, (iii) the interest of all the partners in cash flow and (iv) the rights of all the partners to distributions of capital upon liquidation. Vinson & Elkins L.L.P. is of the opinion that, with the exception of the issues described in Section 754 Election and Disposition of UnitsAllocations Between Transferors and Transferees, allocations of income, gain, loss or deduction under our partnership agreement will be given effect for federal income tax purposes.
Treatment of Securities Loans
A unitholder whose units are loaned (for example, a loan to short seller to cover a short sale of units) may be treated as having disposed of those units. If so, such unitholder 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 (i) any of our income, gain, loss or deduction allocated to those units would not be reportable by the lending unitholder, and (ii) any cash distributions received by the unitholder as to those units may be treated as ordinary taxable income.
Due to a lack of controlling authority, Vinson & Elkins L.L.P. has not rendered an opinion regarding the tax treatment of a unitholder that enters into a securities loan with respect to its units. Unitholders desiring to assure their status as partners and avoid the risk of income recognition from a loan of their units are urged to consult their own tax advisors and to modify any applicable brokerage account agreements to prohibit their brokers from borrowing and lending their units. The IRS has announced that it is studying issues relating to the tax treatment of short sales of partnership interests. Please read Disposition of UnitsRecognition of Gain or Loss.
Tax Rates
Under current law, the highest marginal federal income tax rates for individuals applicable to ordinary income and long-term capital gains (gains from the sale or exchange of certain investment assets held for more than one year) are 39.6% and 20%, respectively. These rates are subject to change by new legislation at any time.
In addition, a 3.8% net investment income tax (NIIT) applies to certain net investment income earned by individuals, estates, and trusts. For these purposes, net investment income includes a unitholders 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 (i) the unitholders net investment income from all investments, or (ii) the amount by which the unitholders modified adjusted gross income exceeds $250,000 (if the unitholder is married and filing
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jointly or a surviving spouse), $125,000 (if married filing separately) or $200,000 (if the unitholder is unmarried or in any other case). In the case of an estate or trust, the tax will be imposed on the lesser of (i) undistributed net investment income, or (ii) the excess adjusted gross income over the dollar amount at which the highest income tax bracket applicable to an estate or trust begins.
Section 754 Election
We will make the election permitted by Section 754 of the Code that permits us to adjust the tax bases in our assets as to specific purchasers of our units under Section 743(b) of the Code. That election is irrevocable without the consent of the IRS. The Section 743(b) adjustment separately applies to each purchaser of units based upon the values and bases of our assets at the time of the relevant purchase, and the adjustment will reflect the purchase price paid. The Section 743(b) adjustment does not apply to a person who purchases units directly from us.
Under our partnership agreement, we are authorized to take a position to preserve the uniformity of units even if that position is not consistent with applicable Treasury Regulations. A literal application of Treasury Regulations governing a 743(b) adjustment attributable to properties depreciable under Section 167 of the Code may give rise to differences in the taxation of unitholders purchasing units from us and unitholders purchasing from other unitholders. If we have any such properties, we intend to adopt methods employed by other publicly traded partnerships to preserve the uniformity of units, even if inconsistent with existing Treasury Regulations, and Vinson & Elkins L.L.P. has not opined on the validity of this approach. Please read Uniformity of Units.
The IRS may challenge the positions we adopt with respect to depreciating or amortizing the Section 743(b) adjustment we take to preserve the uniformity of units due to lack of controlling authority. Because a unitholders tax basis for its units is reduced by its share of our items of deduction or loss, any position we take that understates deductions will overstate a unitholders basis in its units, and may cause the unitholder to understate gain or overstate loss on any sale of such units. Please read Disposition of UnitsRecognition of Gain or Loss. If a challenge to such treatment were sustained, the gain from the sale of units may be increased without the benefit of additional deductions.
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. The IRS could seek to reallocate some or all of any Section 743(b) adjustment we allocated to our assets subject to depreciation, to goodwill or nondepreciable assets. Goodwill, as an intangible asset, is amortizable over a longer period of time or under a less accelerated method than our tangible assets. We cannot assure any unitholder that the determinations we make will not be successfully challenged by the IRS or that the resulting deductions will not be reduced or disallowed altogether. Should the IRS require a different tax 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 it would have been allocated had the election not been revoked.
Accounting Method and Taxable Year
We will 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 its share of our income, gain, loss and deduction for each taxable year ending within or with its 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 its units following the close of our taxable year but before the close of its taxable year must include its share of our income, gain, loss and deduction in income for its taxable year, with the result that it will be required to include in income for its taxable year its share of more than one year of our income, gain, loss and deduction. Please read Disposition of UnitsAllocations Between Transferors and Transferees.
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Tax Basis, Depreciation and Amortization
The tax bases 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. If we dispose of depreciable property by sale, foreclosure or otherwise, all or a portion of any gain, determined by reference to the amount of depreciation and deductions previously taken, may 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 its interest in us. Please read Tax Consequences of Unit OwnershipAllocation of Income, Gain, Loss and Deduction and Disposition of UnitsRecognition of Gain or Loss.
The costs we incur in offering and selling our units (called syndication expenses) must be capitalized and cannot be deducted currently, ratably or upon our termination. While 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 discounts and commissions we incur will be treated as syndication expenses. Please read Disposition of UnitsRecognition of Gain or Loss.
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 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 tax 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 could change, and unitholders could be required to adjust their tax liability for prior years and incur interest and penalties with respect to those adjustments.
Recognition of Gain or Loss
As noted above in Risk FactorsRisks Inherent in an Investment in Us, there is no existing market for our common units, and a trading market that will provide you with adequate liquidity may not develop. A unitholder will be required to recognize gain or loss on a sale of units equal to the difference between the unitholders amount realized and tax basis in the units sold. A unitholders amount realized will equal the sum of the cash or the fair market value of other property it receives plus its share of our liabilities with respect to the units sold. Because the amount realized includes a unitholders share of our liabilities, the gain recognized on the sale of units could result in a tax liability in excess of any cash received from the sale.
Except as noted below, gain or loss recognized by a unitholder on the sale or exchange of a unit held for more than one year will be taxable as long-term capital gain or loss. However, gain or loss recognized on the disposition of units will be separately computed and taxed as ordinary income or loss under Section 751 of the Code to the extent attributable to Section 751 Assets, such as depreciation recapture and our inventory items, regardless of whether such inventory item is substantially appreciated in value. Ordinary income attributable to Section 751 Assets may exceed net taxable gain realized on 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 capital gain or loss upon a sale of units. Net capital loss may offset capital gains and, in the case of individuals, up to $3,000 of ordinary income per year.
For purposes of calculating gain or loss on the sale of units, the unitholders adjusted tax basis will be adjusted by its allocable share of our income or loss in respect of its units for the year of the sale. Furthermore, as described above, 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
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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 means that the tax basis allocated to the interest sold equals an amount that bears the same relation to the partners tax basis in its entire interest in the partnership as the value of the interest sold bears to the value of the partners entire interest in the partnership.
Treasury Regulations under Section 1223 of the Code allow a selling unitholder who can identify units transferred with an ascertainable holding period to elect to use the actual holding period of the units transferred. Thus, according to the ruling discussed in the paragraph above, a unitholder will be unable to select high or low basis units to sell as would be the case with corporate stock, but, according to the Treasury Regulations, it may designate specific units sold for purposes of determining the holding period of units transferred. A unitholder electing to use the actual holding period of the units transferred must consistently use that identification method for all subsequent sales or exchanges of our units. A unitholder considering the purchase of additional units or a sale of units purchased in separate transactions is urged to consult its 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 financial position, including a partnership interest with respect to which gain would be recognized if it were sold, assigned or terminated at its fair market value, in the event the taxpayer or a related person enters into:
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a short sale; |
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an offsetting notional principal contract; or |
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a futures or forward contract 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 authorized to issue Treasury 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 tax liability to the donor. A gift of common units will result in a reduction in a unitholders share of our nonrecourse liabilities. If the amount of the decrease in liabilities exceeds the unitholders adjusted basis in its 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 such unitholders adjusted basis in its common units. In addition, Section 751 (described above) will apply to the extent of our Section 751 Assets. The application of federal gift tax laws to a gift of our common units is not discussed herein because the tax consequences of any such gift 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 its tax advisor regarding the consequences of such a gift.
Allocations Between Transferors and Transferees
In general, our taxable income or loss 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 (the Allocation Date). However, gain or loss realized on a sale or other disposition of our assets or, in the discretion of the general partner, any other extraordinary item of income, gain, loss or deduction will be allocated among the unitholders on the Allocation Date in the month in which such income, gain, loss or deduction is recognized. As a result, a unitholder transferring units may be allocated income, gain, loss and deduction realized after the date of transfer.
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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. Recently, however, the Department of the Treasury and the IRS 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. Nonetheless, the proposed regulations do not specifically authorize the use of the proration method we have adopted. Accordingly, Vinson & Elkins L.L.P. is unable to opine on the validity of this method of allocating income and deductions between transferee and transferor unitholders. If this method is not allowed under the final Treasury Regulations, or only applies to transfers of less than all of the unitholders interest, our taxable income or losses could be reallocated among our unitholders. We are authorized to revise our method of allocation between transferee and transferor unitholders, as well as among unitholders whose interests vary during a taxable year, to conform to a method permitted under future Treasury Regulations.
A unitholder who disposes of units prior to the record date set for a cash distribution for that quarter will be allocated items of our income, gain, loss and deduction attributable to the month of disposition but will not be entitled to receive a cash distribution for that period.
Notification Requirements
A unitholder who sells or purchases any of its units is, except as described below, required to notify us in writing of that transaction within 30 days after the transaction (or, if earlier, January 15 of the year following the transaction in the case of a seller). 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 transfer of units 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 United States and who effects the sale through a broker who will satisfy such requirements.
Constructive Termination
We will be considered to have constructively terminated as a partnership for federal income tax purposes upon the sale or exchange of 50% or more of the total interests in our capital and profits within a 12-month period. For such purposes, multiple sales of the same unit are counted only once. A constructive termination results in the closing of our taxable year for all unitholders. In the case of a unitholder reporting on a taxable year other than the calendar year, the closing of our taxable year may result in more than twelve months of our taxable income or loss being includable in such unitholders taxable income for the year of termination.
A constructive termination occurring on a date other than December 31, except as described below, would require that we file two tax returns for one fiscal year, thereby increasing our administration and tax preparation costs. However, pursuant to an IRS relief procedure the IRS may allow a constructively terminated partnership to provide a single Schedule K-1 for the calendar year in which a termination occurs. Following a constructive termination, we would be required to make new tax elections, including a new election under Section 754 of the Code, and the termination would result in a deferral of our deductions for depreciation. A termination could also result in penalties if we were unable to determine that the termination had occurred. Moreover, a termination may either accelerate the application of, or subject us to, any tax legislation enacted before the termination that would not otherwise have been applied to us as a continuing as opposed to a terminating partnership.
Because we cannot match transferors and transferees of units and for other reasons, 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. Any non-uniformity could have a negative impact on the value of the units. Please read Tax Consequences of Unit OwnershipSection 754 Election.
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Our partnership agreement permits our general partner to take positions in filing our tax returns that preserve the uniformity of our units. These positions may include reducing the depreciation, amortization or loss deductions to which a unitholder would otherwise be entitled or reporting a slower amortization of Section 743(b) adjustments for some unitholders than that to which they would otherwise be entitled. Vinson & Elkins L.L.P. is unable to opine as to the validity of such filing positions.
A unitholders basis in units is reduced by its share of our deductions (whether or not such deductions were claimed on an individual income tax return) so that any position that we take that understates deductions will overstate the unitholders basis in its units, and may cause the unitholder to understate gain or overstate loss on any sale of such units. Please read Disposition of UnitsRecognition of Gain or Loss above and Tax Consequences of Unit OwnershipSection 754 Election above. The IRS may challenge one or more of any positions we take to preserve the uniformity of units. If such a challenge were sustained, the uniformity of units might be affected, and, under some circumstances, the gain from the sale of units might be increased without the benefit of additional deductions.
Tax-Exempt Organizations and Other Investors
Ownership of units by employee benefit plans and other tax-exempt organizations, as well as by non-resident alien individuals, non-U.S. corporations and other non-U.S. persons (collectively, Non-U.S. Unitholders) raises issues unique to those investors and, as described below, may have substantially adverse tax consequences to them. Prospective unitholders that are tax-exempt entities or Non-U.S. Unitholders should consult their tax advisors before investing in our units.
Employee benefit plans and most other tax-exempt organizations, including IRAs and other retirement plans, are subject to federal income tax on unrelated business taxable income. Virtually all of our income will be unrelated business taxable income and will be taxable to a tax-exempt unitholder.
Non-U.S. Unitholders are taxed by the United States on income effectively connected with a U.S. trade or business (effectively connected income) and on certain types of U.S.-source non-effectively connected income (such as dividends), unless exempted or further limited by an income tax treaty, and will be treated as engaged in business in the U.S. because of their ownership of our common units. Furthermore, it is probable that they will be deemed to conduct such activities through permanent establishment in the U.S. within the meaning of any applicable tax treaty. Consequently, 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 on their share of our net income or gain. Moreover, under rules applicable to publicly traded partnerships, distributions to Non-U.S. Unitholders are subject to withholding at the highest applicable effective tax rate. Each Non-U.S. 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.
In addition, because a Non-U.S. Unitholder classified as a corporation will be treated as engaged in a United States trade or business, that corporation may be subject to the U.S. branch profits tax at a rate of 30%, in addition to regular federal income tax, on its share of our income and gain as adjusted for changes in the foreign corporations U.S. net equity to the extent reflected in the corporations earnings and profits. That tax may be reduced or eliminated by an income tax treaty between the United States 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 Non-U.S. Unitholder who sells or otherwise disposes of a unit will be subject to 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 Non-U.S. Unitholder. Under a ruling published by the IRS interpreting the scope of effectively connected income, gain recognized by a Non-U.S. Unitholder from the sale of its interest in a partnership that is engaged in a trade or business in the U.S. will be considered to be effectively connected with a U.S. trade or business. Thus, part or all of a Non-U.S. Unitholders gain from the sale or other disposition of
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units may be treated as effectively connected with a unitholders indirect U.S. trade or business constituted by its investment in us. Moreover, under the Foreign Investment in Real Property Tax Act, a Non-U.S. Unitholder will be subject to federal income tax upon the sale or disposition of a unit if (i) it owned (directly or indirectly constructively applying certain attribution rules) more than 5% of our common units at any time during the five-year period ending on the date of such disposition and (ii) 50% or more of the fair market value of our real property interests and other assets used or held for use in a trade or business consisted of U.S. real property interests (which include U.S. real estate, including land, improvements, and associated personal property, and interests in certain entities holding U.S. real estate) at any time during the shorter of the period during which such unitholder held the units or the 5-year period ending on the date of disposition. More than 50% of our assets may consist of U.S. real property interests. Therefore, Non-U.S. Unitholders may be subject to federal income tax on gain from the sale or disposition of their units.
Information Returns and Audit Procedures
We intend to furnish to each unitholder, within 90 days after the close of each taxable year, specific tax information, including a Schedule K-1, which describes its 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 unitholders share of income, gain, loss and deduction. We cannot assure our unitholders that those positions will yield a result that conforms to all of the requirements of the Code, Treasury Regulations or administrative interpretations of the IRS.
The IRS may audit our federal income tax information returns. Neither we nor Vinson & Elkins L.L.P. can assure prospective unitholders that the IRS will not successfully challenge the positions we adopt, and such a challenge could adversely affect the value of the units. Adjustments resulting from an IRS audit may require each unitholder to adjust a prior years tax liability, and may result in an audit of the unitholders own return. Any audit of a unitholders return could result in adjustments unrelated to our returns.
Publicly traded partnerships are for most purposes treated as entities separate from their owners for purposes of federal income 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 of the partners. The Code requires that one partner be designated as the Tax Matters Partner for these purposes, and our partnership agreement designates our general partner.
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% 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% interest in profits or by any group of unitholders having in the aggregate at least a 5% interest in profits. However, only one action for judicial review may go forward, and each unitholder with an interest in the outcome may participate in that action.
A unitholder must file a statement with the IRS identifying the treatment of any item on its 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.
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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:
(1) the name, address and taxpayer identification number of the beneficial owner and the nominee;
(2) a statement regarding whether the beneficial owner is:
(a) a non-U.S. person;
(b) a non-U.S. government, an international organization or any wholly owned agency or instrumentality of either of the foregoing; or
(c) a tax-exempt entity;
(3) the amount and description of units held, acquired or transferred for the beneficial owner; and
(4) 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 sales.
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 $1.5 million 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
Certain penalties may be imposed as a result 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. No penalty will be imposed, however, for any portion of an underpayment if it is shown that there was a reasonable cause for the underpayment of that portion and that the taxpayer acted in good faith regarding the underpayment of that portion. We do not anticipate that any accuracy-related penalties will be assessed against us.
State, Local and Other Tax Considerations
In addition to federal income taxes, unitholders may be subject to other taxes, including state and local income taxes, unincorporated business taxes, and estate, inheritance or intangibles taxes that may be imposed by the various jurisdictions in which we conduct business or own property now or in the future, or in which the unitholder is a resident. We will initially own assets and conduct business in Kentucky, Louisiana and Texas; Kentucky and Louisiana currently impose a personal income tax on individuals and an income tax on corporations and other entities. We may also own property or do business in other states in the future that impose income or similar taxes on nonresident individuals. Although an analysis of those various taxes is not presented here, each prospective unitholder should consider their potential impact on its investment in us.
While 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 pay income taxes in many of the jurisdictions in which we do business or own property and may be subject to penalties for failure to comply with those requirements. Some 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 unitholders income tax liability to the jurisdiction, does not relieve a nonresident unitholder from the obligation to file an income tax return.
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It is the responsibility of each unitholder to investigate the legal and tax consequences, under the laws of pertinent jurisdictions, of his investment in us. We strongly recommend that each prospective unitholder consult, and depend upon, its 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 non-U.S., as well as U.S. federal tax returns that may be required of it. Vinson & Elkins L.L.P. has not rendered an opinion on the state, local, alternative minimum tax or non-U.S. tax consequences of an investment in us.
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INVESTMENT IN WESTLAKE CHEMICAL 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 restrictions imposed by Section 4975 of the Internal Revenue Code. 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 established or maintained by an employer or employee organization. Among other things, consideration should be given to:
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whether the investment is prudent under Section 404(a)(1)(B) of ERISA; |
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whether in making the investment, that plan will satisfy the diversification requirements of Section 404(a)(1)(C) of ERISA; and |
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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 ConsequencesTax-Exempt Organizations and Other Investors. |
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 Internal Revenue Code prohibit employee benefit plans from engaging in specified transactions involving plan assets with parties that are parties in interest under ERISA or disqualified persons under the Internal Revenue Code with respect to the plan.
In addition to considering whether the purchase of common units is a prohibited transaction, a fiduciary of an employee benefit plan should consider whether the plan will, by investing in us, be deemed to own an undivided interest in our assets, with the result that 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 Internal Revenue Code.
The Department of Labor regulations provide guidance with respect to whether the assets of an entity in which employee benefit plans acquire equity interests would be deemed plan assets under some circumstances. Under these regulations, an entitys assets would not be considered to be plan assets if, among other things:
(1) the equity interests acquired by employee benefit plans are publicly offered securitiesi.e., the equity interests are widely held by 100 or more investors independent of the issuer and each other, freely transferable and registered under some provisions of the federal securities laws;
(2) the entity is an operating companyi.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
(3) there is no significant investment by benefit plan investors, which is defined to mean that less than 25% of the value of each class of equity interest is held by the employee benefit plans referred to above.
Plan fiduciaries contemplating a purchase of common units should consult with their own counsel regarding the consequences under ERISA and the Internal Revenue Code in light of the serious penalties imposed on persons who engage in prohibited transactions or other violations.
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Barclays Capital Inc. and UBS Securities LLC are acting as representatives of the underwriters and as joint book-running managers of this offering. Under the terms of an underwriting agreement, which will be filed as an exhibit to the registration statement relating to this prospectus, each of the underwriters named below has severally agreed to purchase from us the respective number of common units shown opposite its name below:
Underwriters |
Number of
Common Units |
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Barclays Capital Inc. |
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UBS Securities LLC |
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Merrill Lynch, Pierce, Fenner & Smith Incorporated |
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Deutsche Bank Securities Inc. |
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Morgan Stanley & Co. LLC |
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Goldman, Sachs & Co. |
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J.P. Morgan Securities LLC |
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Wells Fargo Securities, LLC |
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Total |
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The underwriting agreement provides that the underwriters obligation to purchase the common units depends on the satisfaction of the conditions contained in the underwriting agreement including:
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the obligation to purchase all of the common units offered hereby (other than those common units covered by their option to purchase additional common units as described below), if any of the common units are purchased; |
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the representations and warranties made by us to the underwriters are true; |
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there is no material change in our business or the financial markets; and |
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we deliver customary closing documents to the underwriters. |
The following table summarizes the underwriting discounts and commissions we will pay to the underwriters. These amounts are shown assuming both no exercise and full exercise of the underwriters option to purchase additional common units. The underwriting fee is the difference between the initial price to the public and the amount the underwriters pay to us for the common units.
No Exercise | Full Exercise | |||||||
Per common unit |
$ | $ | ||||||
Total |
$ | $ |
We will pay a structuring fee equal to % of the gross proceeds from this offering (including any proceeds from the exercise of the option to purchase additional common units) to Barclays Capital Inc. and UBS Securities LLC for the evaluation, analysis and structuring of our partnership. We have also agreed to reimburse the underwriters for certain of their expenses in an amount up to $20,000.
The representatives of the underwriters have advised us that the underwriters propose to offer the common units directly to the public at the public offering price on the cover of this prospectus and to selected dealers, which may include the underwriters, at such offering price less a selling concession not in excess of $ per common unit. After the offering, the representatives may change the offering price and other selling terms. Sales of common units made outside of the United States may be made by affiliates of the underwriters. The offering of the common units by the underwriters is subject to receipt and acceptance and subject to the underwriters right to reject any order in whole or in part.
We estimate that the expenses of this offering incurred by us will be $3.3 million (excluding underwriting discounts and commissions and a structuring fee).
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Option to Purchase Additional Common Units
We have granted the underwriters an option exercisable for 30 days after the date of the underwriting agreement, to purchase, from time to time, in whole or in part, up to an aggregate of additional common units at the public offering price less underwriting discounts and commissions. This option may be exercised if the underwriters sell more than common units in connection with this offering. To the extent that this option is exercised, each underwriter will be obligated, subject to certain conditions, to purchase its pro rata portion of these additional common units based on the underwriters underwriting commitment in the offering as indicated in the table at the beginning of this Underwriting section.
We, our general partner and its affiliates, including Westlake, and the directors and executive officers of our general partner have agreed that, without the prior written consent of Barclays Capital Inc. and UBS Securities LLC, we and they will not directly or indirectly, for a period of 180 days after the date of this prospectus (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any of our common units (including, without limitation, common units that may be deemed to be beneficially owned by us or them in accordance with the rules and regulations of the SEC and common units that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for common units (other than (i) the common units being sold in this offering and (ii) common units issued pursuant to employee benefit plans, qualified option plans or other employee compensation plans existing on the date hereof), (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic consequences of ownership of the common units, (3) make any demand for or exercise any right or file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any common units or securities convertible, exercisable or exchangeable into common units or any of our other securities (other than any registration statement on Form S-8) or (4) publicly disclose the intention to do any of the foregoing.
The 180-day restricted period described in the preceding paragraph will be extended if:
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during the last 17 days of the 180-day restricted period we issue an earnings release or material news or a material event relating to us occurs; or |
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prior to the expiration of the 180-day restricted period, we announce that we will release earnings results during the 16-day period beginning on the last day of the 180-day periodin which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or occurrence of the material event unless such extension is waived in writing by Barclays Capital Inc. and UBS Securities LLC. |
Barclays Capital Inc. and UBS Securities LLC, in their sole discretion, may release the common units and other securities subject to the lock-up agreements described above in whole or in part at any time with or without notice. When determining whether or not to release the common units and other securities from lock-up agreements, Barclays Capital Inc. and UBS Securities LLC will consider, among other factors, the holders reasons for requesting the release, the number of common units and other securities for which the release is being requested and market conditions at the time.
Prior to this offering, there has been no public market for our common units. The initial public offering price will be negotiated among the representatives and us. In determining the initial public offering price of our common units, the representatives will consider:
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the history and prospects for the industry in which we compete; |
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our financial information; |
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the ability of our management and our business potential and earning prospects; |
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the prevailing securities markets at the time of this offering; and |
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the recent market prices of, and the demand for, publicly traded common units of generally comparable companies. |
We and certain of our affiliates have agreed to indemnify the several underwriters against certain liabilities, including liabilities under the Securities Act, and to contribute to payments that the underwriters may be required to make for these liabilities.
At our request, the underwriters have reserved up to 5% of the common units being offered by this prospectus for sale at the initial public offering price to the officers, directors and employees of our general partner and its affiliates and certain other persons associated with us, as designated by us. Any reserved common units not so purchased will be offered by the underwriters to the general public on the same basis as the other common units offered hereby. The sales will be made by UBS Financial Services Inc., a selected dealer affiliated with UBS Securities LLC, an underwriter of this offering, through a directed unit program. Any of our directors or executive officers that purchase common units in the directed unit program will be prohibited from selling, pledging or assigning any common units sold to them pursuant to such program for a period of 180 days after the date of this prospectus. We have agreed to indemnify UBS Financial Services Inc. in connection with the directed unit program. Members of the Chao family, or entities affiliated with such members, who in aggregate beneficially own approximately 69% of Westlakes common stock, have indicated an interest in purchasing a portion of the common units being offered in this offering through our directed unit program.
Stabilization, Short Positions and Penalty Bids
The representatives may engage in stabilizing transactions, short sales and purchases to cover positions created by short sales, and penalty bids or purchases for the purpose of pegging, fixing or maintaining the price of the common units, in accordance with Regulation M under the Exchange Act:
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Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. |
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A short position involves a sale by the underwriters of common units in excess of the number of common units the underwriters are obligated to purchase in the offering, which creates the syndicate short position. This short position may be either a covered short position or a naked short position. In a covered short position, the number of common units involved in the sales made by the underwriters in excess of the number of common units they are obligated to purchase is not greater than the number of common units that they may purchase by exercising their option to purchase additional common units. In a naked short position, the number of common units involved is greater than the number of common units in their option to purchase additional common units. The underwriters may close out any short position by either exercising their option to purchase additional common units and/or purchasing common units in the open market. In determining the source of common units to close out the 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 their option to purchase additional common units. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on the price of the common units in the open market after pricing that could adversely affect investors who purchase in the offering. |
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Syndicate covering transactions involve purchases of the common units in the open market after the distribution has been completed in order to cover syndicate short positions. |
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Penalty bids permit the representatives to reclaim a selling concession from a syndicate member when the common units originally sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions. |
These stabilizing transactions, syndicate covering transactions and penalty bids 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 the common units. As a result, the price of the common units may be higher than the price that might otherwise exist in the open market. These transactions may be effected on the NYSE or otherwise and, if commenced, may be discontinued at any time.
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 the common units. In addition, neither we nor any of the underwriters make any representation that the representatives will engage in these stabilizing transactions or that any transaction, once commenced, will not be discontinued without notice.
A prospectus in electronic format may be made available on the Internet sites or through other online services maintained by one or more of the underwriters and/or selling group members participating in this offering, or by their affiliates. In those cases, prospective investors may view offering terms online and, depending upon the particular underwriter or selling group member, prospective investors may be allowed to place orders online. The underwriters may agree with us to allocate a specific number of common units for sale to online brokerage account holders. Any such allocation for online distributions will be made by the representatives on the same basis as other allocations.
Other than the prospectus in electronic format, the information on any underwriters or selling group members web site and any information contained in any other web site maintained by an underwriter or selling group member is not part of the prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or any underwriter or selling group member in its capacity as underwriter or selling group member and should not be relied upon by investors.
We intend to apply to list our common units on the New York Stock Exchange under the symbol WLKP. The underwriters have undertaken to sell the minimum number of common units to the minimum number of beneficial owners necessary to meet the New York Stock Exchange distribution requirements for trading.
The underwriters have informed us that they do not intend to confirm sales to discretionary accounts that exceed 5% of the total number of common units offered by them.
If you purchase common units offered by this prospectus, you may be required to pay stamp taxes and other charges under the laws and practices of the country of purchase, in addition to the offering price listed on the cover page of this prospectus.
The underwriters and their respective affiliates are full service financial institutions engaged in various activities, which may include sales and trading, commercial and investment banking, advisory, investment
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management, investment research, principal investment, hedging, market making, brokerage and other financial and non-financial activities and services. The underwriters and their affiliates have in the past, and may in the future, perform investment banking, commercial banking, advisory and other services for us and our respective affiliates from time to time for which they have received, and may in the future receive, customary fees and expenses.
In addition, in the ordinary course of their various business activities, the underwriters and their respective affiliates may make or hold a broad array of investments, including serving as counterparties to certain derivative and hedging arrangements, 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 investment and securities activities may involve securities and instruments of ours or our affiliates. The underwriters and their affiliates may also make investment recommendations 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 or short positions in such securities and instruments.
Because the Financial Industry Regulatory Authority, Inc., or FINRA, is expected to view the common units offered hereby as interests in a direct participation program, the 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.
European Economic Area
In relation to each member state of the European Economic Area that has implemented the Prospectus Directive (each, a 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, an offer of securities described in this prospectus may not be made to the public in that relevant member state other than:
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to any legal entity which is a qualified investor as defined in the Prospectus Directive; |
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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 defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the relevant dealer or dealers nominated by the issuer for any such offer; or |
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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.
For purposes of this provision, the expression an offer of securities 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 varied in that member state by any measure implementing the Prospectus Directive in that 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
177
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.
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 recognised collective investment scheme for the purposes of FSMA (CIS) and that has not been authorised 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 are 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). Our 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.
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 June 23, 2006, or 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).
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 FinanzdienstleistungsaufsichtBaFin) nor any other German authority has been notified of the intention to distribute our common units in Germany. Consequently, our 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 our common units to the public in Germany or any other means of public marketing. Our 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 8f paragraph 2 no. 4 of the German Sales Prospectus 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.
178
The offering does not constitute an offer to sell or the solicitation or an offer to buy our common units in any circumstances in which such offer or solicitation is unlawful.
Netherlands
Our 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).
Singapore
This prospectus has not been and will not be registered as a prospectus with the Monetary Authority of Singapore. Accordingly, this prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the common units may not be circulated or distributed, nor may the common units be offered or sold, or be made the subject of an invitation for subscription or purchase, whether directly or indirectly, to persons in Singapore other than (i) to an institutional investor under Section 274 of the Securities and Futures Act, Chapter 289 of Singapore (the SFA), (ii) to a relevant person pursuant to Section 275(1), or any person pursuant to Section 275(1A), and in accordance with the conditions specified in Section 275, of the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where the common units are subscribed or purchased under Section 275 of the SFA by a relevant person which is:
(a) a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or
(b) a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor,
securities (as defined in Section 239(1) of the SFA) of that corporation or the beneficiaries rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the common units pursuant to an offer made under Section 275 of the SFA except:
(1) | to an institutional investor or to a relevant person defined in Section 275(2) of the SFA, or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the SFA; |
(2) | where no consideration is or will be given for the transfer; |
(3) | where the transfer is by operation of law; |
(4) | as specified in Section 276(7) of the SFA; or |
(5) | as specified in Regulation 32 of the Securities and Futures (Offers of Investments) (Shares and Debentures) Regulations 2005 of Singapore. |
Hong Kong
Our common units may not be offered or sold in Hong Kong by means of this prospectus or any other document other than to (a) professional investors as defined in the Securities and Futures Ordinance of Hong Kong (Cap. 571, Laws of Hong Kong) (SFO) and any rules made under the SFO or (b) in other circumstances which do not result in this prospectus being deemed to be a prospectus, as defined in the Companies Ordinance of Hong Kong (Cap. 32, Laws of Hong Kong) (CO), or which do not constitute an offer to the public within the meaning of the CO or the SFO; and no person has issued or had in possession for the purposes of issue, or will
179
issue or has in possession for the purposes of issue, whether in Hong Kong or elsewhere, any advertisement, invitation or document relating to our common units which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to our common units which are or are intended to be disposed of only to persons outside Hong Kong or only to professional investors as defined in the SFO.
180
The validity of our common units will be passed upon for us by Vinson & Elkins L.L.P., Houston, Texas. Certain legal matters in connection with our common units offered hereby will be passed upon for the underwriters by Latham & Watkins LLP, Houston, Texas.
The combined carve-out financial statements of Westlake Chemical Partners LP Predecessor as of December 31, 2013 and 2012 and for each of the three years in the period ended December 31, 2013 included in this prospectus have been so included in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The balance sheet of Westlake Chemical Partners LP as of June 30, 2014 included in this prospectus has been so included in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on authority of said firm as experts in auditing and accounting.
The sections in this prospectus entitled Summary, Risk Factors, Industry and Business contain certain information with respect to the ethylene and ethylene derivatives industry that has been sourced from Wood Mackenzie Limiteds April 2014 report. Wood Mackenzie Limited has agreed to be named as an expert with respect to such information, as indicated in the consent of Wood Mackenzie Limited filed as an exhibit to the registration statement on Form S-1 under the Securities Act of 1933 of which this prospectus is a part.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-1 regarding our common units. This prospectus, which constitutes part of the registration statement, does not contain all of the information set forth in the registration statement. For further information regarding us and our common units offered in this prospectus, we refer you to the registration statement and the exhibits and schedule filed as part of the registration statement. The registration statement, including the exhibits, may be inspected and copied at the public reference facilities maintained by the SEC at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Copies of this material can also be obtained upon written request from the Public Reference Section of the SEC at 100 F Street, N.E., Room 1580, Washington, D.C. 20549, at prescribed rates or from the SECs web site on the Internet at http://www.sec.gov. Please call the SEC at 1-800-SEC-0330 for further information on public reference rooms.
As a result of the 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 facilities maintained by the SEC or obtained from the SECs website as provided above. Our website address on the Internet will be 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. After this offering, documents filed by us can also be inspected at the offices of the New York Stock Exchange Inc., 20 Broad Street, New York, New York 10002.
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.
181
Some of the information in this prospectus may contain forward-looking statements. Forward-looking statements give our current expectations, contain projections of results of operations or of financial condition, or forecasts of future events. Words such as may, assume, forecast, position, predict, strategy, expect, intend, plan, estimate, anticipate, believe, project, budget, potential, or continue, and similar expressions are used to identify forward-looking statements. They can be affected by assumptions used or by known or unknown risks or uncertainties. Consequently, no forward-looking statements can be guaranteed. When considering these forward-looking statements, you should keep in mind the risk factors and other cautionary statements in this prospectus. Actual results may vary materially. You are cautioned not to place undue reliance on any forward-looking statements. You should also understand that it is not possible to predict or identify all such factors and should not consider the following list to be a complete statement of all potential risks and uncertainties. Factors that could cause our actual results to differ materially from the results contemplated by such forward-looking statements include:
|
the amount of ethane that we are able to process, which could be adversely affected by, among other things, operating difficulties; |
|
the volume of ethylene that we are able to sell; |
|
the price at which we are able to sell ethylene; |
|
changes in the price and availability of electricity; |
|
changes in prevailing economic conditions; |
|
unanticipated ground, grade or water conditions; |
|
inclement or hazardous weather conditions, including flooding, and the physical impacts of climate change; |
|
environmental hazards; |
|
industrial accidents; |
|
changes in laws and regulations (or the interpretation thereof); |
|
inability to acquire or maintain necessary permits; |
|
inability to obtain necessary production equipment or replacement parts; |
|
technical difficulties or failures; |
|
labor disputes; |
|
late delivery of raw materials; |
|
difficulty collecting receivables; |
|
inability of our customers to take delivery; |
|
changes in the price and availability of transportation; |
|
fires, explosions or other accidents; |
|
our ability to borrow funds and access capital markets; and |
|
certain factors discussed elsewhere in this prospectus. |
All forward-looking statements are expressly qualified in their entirety by the foregoing cautionary statements.
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INDEX TO FINANCIAL STATEMENT S
F-i
UNAUDITED PRO FORMA COMBINED CARVE-OUT FINANCIAL STATEMENTS
Introduction
Set forth below are the unaudited pro forma combined carve-out balance sheet as of March 31, 2014, and the unaudited pro forma combined carve-out statements of operations for the year ended December 31, 2013 and for the three months ended March 31, 2014 (together with the notes to the unaudited pro forma combined carve-out financial statements, the pro forma financial statements), of Westlake Chemical Partners LP (the Partnership, we, our, or us). The pro forma financial statements have been derived from the historical combined carve-out financial statements of Westlake Chemical Partners LP Predecessor, our predecessor for accounting purposes (our Predecessor) included elsewhere in this prospectus. Our Predecessor consists of the assets, liabilities and results of operations of the ethylene business of Westlake Chemical Corporation (Westlake or Parent).
The pro forma financial statements should be read in conjunction with our Predecessors historical combined carve-out financial statements, including the related notes to the combined carve-out financial statements. The pro forma adjustments are based on currently available information and certain estimates and assumptions; actual adjustments may differ from the pro forma adjustments. However, management believes these estimates and assumptions provide a reasonable basis for presenting the significant effects of contemplated transactions and that the pro forma adjustments are factually supportable and give appropriate effect to those estimates and assumptions and are properly applied in the pro forma financial statements.
The pro forma adjustments have been prepared as if the transactions to be effected at the closing of the offering had taken place on March 31, 2014, in the case of the unaudited pro forma combined carve-out balance sheet, and as of January 1, 2013, in the case of the unaudited pro forma combined carve-out statements of operations for the year ended December 31, 2013 and for the three months ended March 31, 2014. The pro forma financial statements may not be indicative of the results that actually would have occurred if the Partnership had acquired its limited and general partner interests in Westlake Chemical OpCo LP (OpCo) and the offering had been consummated on the dates indicated, or the results that will be obtained in the future.
The Partnership will own 10% of the limited partner interest and all of the general partner interest in OpCo, a limited partnership formed by Westlake in anticipation of our initial public offering to own and operate an ethylene production and transportation business. We will control, and therefore consolidate, OpCo through our ownership of its general partner. The initial assets contributed by Westlake to OpCo consist of three ethylene production facilities and an ethylene pipeline (the Contributed Assets). The contribution of the Contributed Assets to OpCo will be recorded at Westlakes historical carryover basis, as it constitutes a reorganization of entities under common control. While the Predecessors provision for income taxes has been computed on a separate return basis, the pro forma financial statements have been prepared under the assumption we will be treated as a partnership for U.S. federal income tax purposes.
The pro forma financial statements give pro forma effect to the matters described in the accompany notes, including:
|
Westlakes contribution to OpCo of three ethylene production facilities and a 200-mile ethylene pipeline (the Longview Pipeline); |
|
the transfer by Westlake to us of a limited partner interest in OpCo, and a 100% interest in Westlake Chemical OpCo GP, LLC, which holds the general partner interest in OpCo, in exchange for the issuance by us to subsidiaries of Westlake of common units, subordinated units (with the number of common units and subordinated units to be issued to Westlake determined by reference to an anticipated initial public offering price of $ per unit, the mid-point of the price range set forth on the cover of this prospectus and an anticipated minimum quarterly distribution of $ per unit during the twelve month period ending June 30, 2015) and the incentive distribution rights; |
|
the consummation of this offering and our issuance of common units to the public at an assumed initial offering price of $ per unit; |
F-1
|
OpCos execution of multiple long-term commercial agreements with Westlake, including the Ethylene Sales Agreement, the Feedstock Supply Agreement, the services and secondment agreement and the omnibus agreement; and |
|
the application of the net proceeds of this offering as described in Use of Proceeds. |
The pro forma financial statements do not give effect to an estimated $3.0 million in incremental general and administrative expenses that we expect to incur annually as a result of being a separate, publicly traded partnership, including costs associated with preparing and filing annual and quarterly reports to unitholders, financial statement audits, tax return and Schedule K-1 preparation and distribution, investor relations activities, registrar and transfer agent fees and independent director compensation.
F-2
UNAUDITED PRO FORMA COMBINED CARVE-OUT BALANCE SHEET
Pro forma Adjustments | ||||||||||||||||||||
As of March 31, 2014 |
Predecessor
Historical |
Predecessor
Retained |
Offering
Related |
Partnership
Pro Forma |
||||||||||||||||
(in thousands of dollars) | ||||||||||||||||||||
ASSETS | ||||||||||||||||||||
Current assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | | $ | | $ | (b) | $ | |||||||||||||
Accounts receivable, net |
54,989 | (54,989 | ) | (a) | | | ||||||||||||||
Inventories |
85,670 | (79,655 | ) | (a) | | 6,015 | ||||||||||||||
Prepaid expenses and other current assets |
174 | (174 | ) | (a) | | | ||||||||||||||
Deferred income taxes |
4,448 | (4,448 | ) | (a) | | | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total current assets |
145,281 | (139,266 | ) | |||||||||||||||||
Property, plant and equipment, net |
794,176 | (63,319 | ) | (a) | | 730,857 | ||||||||||||||
Equity investment |
10,339 | (10,339 | ) | (a) | | | ||||||||||||||
Other assets, net |
||||||||||||||||||||
Goodwill and intangible assets, net |
5,873 | | | 5,873 | ||||||||||||||||
Deferred charges and other assets, net |
64,733 | | | 64,733 | ||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total other assets, net |
70,606 | | | 70,606 | ||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total assets |
$ | 1,020,402 | $ | (212,924 | ) | $ | $ | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
LIABILITIES | ||||||||||||||||||||
Current liabilities |
||||||||||||||||||||
Accounts payable |
$ | 96,567 | $ | (96,567 | ) | (a) | $ | | $ | | ||||||||||
Accrued liabilities |
27,338 | (27,338 | ) | (a) | | | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total current liabilities |
123,905 | (123,905 | ) | | | |||||||||||||||
Long-term debt payable to Westlake |
302,357 | (142,193 | ) | (a) | | 160,164 | ||||||||||||||
Deferred income taxes |
186,122 | (184,477 | ) | (a) | | 1,645 | ||||||||||||||
Other liabilities |
925 | (925 | ) | (a) | | | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total liabilities |
613,309 | (451,500 | ) | | 161,809 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Commitments and contingencies |
||||||||||||||||||||
NET INVESTMENT/EQUITY AND NONCONTROLLING INTEREST IN OPCO | ||||||||||||||||||||
Net investment |
407,093 | | (407,093 | ) | (c) | | ||||||||||||||
Westlake Chemical Partners LP partners capital |
| 238,576 | (a) | (168,467 | ) | (e) | 70,109 | |||||||||||||
Noncontrolling interest in OpCo |
| | 630,979 | (d) | 630,979 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total net investment/equity and noncontrolling interest in OpCo |
407,093 | 238,576 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total liabilities, net investment/equity and noncontrolling interest in OpCo |
$ | 1,020,402 | $ | (212,924 | ) | $ | $ | |||||||||||||
|
|
|
|
|
|
|
|
See Notes to Unaudited Pro Forma Combined Carve-Out Financial Statements.
F-3
UNAUDITED PRO FORMA COMBINED CARVE-OUT STATEMENT OF OPERATIONS
Pro Forma Adjustments | ||||||||||||||||||||
Year Ended December 31, 2013 |
Predecessor
Historical |
Predecessor
Retained |
Offering
Related |
Partnership
Pro Forma |
||||||||||||||||
(in thousands of dollars, except unit amounts and per unit data) | ||||||||||||||||||||
Revenue |
||||||||||||||||||||
Net ethylene salesWestlake |
$ | 1,603,043 | $ | (767,923 | ) | (f)(g) | $ | | $ | 835,120 | ||||||||||
Net co-product, ethylene and feedstock salesthird parties |
524,704 | (161,019 | ) | (f) | | 363,685 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total net sales |
2,127,747 | (928,942 | ) | | 1,198,805 | |||||||||||||||
Cost of sales |
1,255,140 | (374,799 | ) | (h) | | 880,341 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Gross profit |
872,607 | (554,143 | ) | | 318,464 | |||||||||||||||
Selling, general and administrative expenses |
25,451 | (6,509 | ) | (i) | | 18,942 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Income from operations |
847,156 | (547,634 | ) | | 299,522 | |||||||||||||||
Other income (expense) |
||||||||||||||||||||
Interest expenseWestlake |
(8,032 | ) | 5,501 | (j) | | (2,531 | ) | |||||||||||||
Other income (expense), net |
7,701 | (7,869 | ) | (k) | | (168 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Income before income taxes |
846,825 | (550,002 | ) | | 296,823 | |||||||||||||||
Provision for income taxes |
300,279 | (298,963 | ) | (l) | | 1,316 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Net income |
546,546 | (251,039 | ) | | 295,507 | |||||||||||||||
Less: Net income attributable to noncontrolling interest in OpCo |
| | 265,956 | (m) | 265,956 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Net income attributable to Westlake Chemical Partners LP |
$ | 546,546 | $ | (251,039 | ) | $ | (265,956 | ) | $ | 29,551 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Limited partners interest in net income attributable to Westlake Chemical Partners LP: |
||||||||||||||||||||
Common units |
$ | |||||||||||||||||||
Subordinated units |
$ | |||||||||||||||||||
Net income per limited partner unit (basic and diluted): |
||||||||||||||||||||
Common units |
$ | |||||||||||||||||||
Subordinated units |
$ | |||||||||||||||||||
Weighted average number of limited partner units outstanding (basic and diluted): |
||||||||||||||||||||
Common units |
||||||||||||||||||||
Subordinated units |
See Notes to Unaudited Pro Forma Combined Carve-Out Financial Statements.
F-4
UNAUDITED PRO FORMA COMBINED CARVE-OUT STATEMENT OF OPERATIONS
Pro Forma Adjustments | ||||||||||||||||||||
Three Months Ended March 31, 2014 |
Predecessor
Historical |
Predecessor
Retained |
Offering
Related |
Partnership
Pro Forma |
||||||||||||||||
(in thousands of dollars, except unit amounts and per unit data) | ||||||||||||||||||||
Revenue |
||||||||||||||||||||
Net ethylene salesWestlake |
$ | 383,927 | $ | (137,955 | ) | (f)(g) | $ | | $ | 245,972 | ||||||||||
Net co-product, ethylene and feedstock salesthird parties |
176,087 | (88,713 | ) | (f) | | 87,374 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Total net sales |
560,014 | (226,668 | ) | | 333,346 | |||||||||||||||
Cost of sales |
327,700 | (73,946 | ) | (h) | | 253,754 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Gross profit |
232,314 | (152,722 | ) | | 79,592 | |||||||||||||||
Selling, general and administrative expenses |
7,778 | (1,526 | ) | (i) | | 6,252 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Income from operations |
224,536 | (151,196 | ) | | 73,340 | |||||||||||||||
Other income (expense) |
||||||||||||||||||||
Interest expenseWestlake |
(3,591 | ) | 2,008 | (j) | | (1,583 | ) | |||||||||||||
Other income (expense), net |
1,252 | (1,264 | ) | (k) | | (12 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Income before income taxes |
222,197 | (150,452 | ) | | 71,745 | |||||||||||||||
Provision for income taxes |
78,323 | (77,992 | ) | (l) | | 331 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Net income |
143,874 | (72,460 | ) | | 71,414 | |||||||||||||||
Less: Net income attributable to noncontrolling interest in OpCo |
| | 64,273 | (m) | 64,273 | |||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Net income attributable to Westlake Chemical Partners LP |
$ | 143,874 | $ | (72,460 | ) | $ | (64,273 | ) | $ | 7,141 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Limited partners interest in net income attributable to Westlake Chemical Partners LP: |
||||||||||||||||||||
Common units |
$ | |||||||||||||||||||
Subordinated units |
$ | |||||||||||||||||||
Net income per limited partner unit (basic and diluted): |
||||||||||||||||||||
Common units |
$ | |||||||||||||||||||
Subordinated units |
$ | |||||||||||||||||||
Weighted average number of limited partner units outstanding (basic and diluted): |
||||||||||||||||||||
Common units |
||||||||||||||||||||
Subordinated units |
See Notes to Unaudited Pro Forma Combined Carve-Out Financial Statements.
F-5
NOTES TO UNAUDITED PRO FORMA COMBINED CARVE-OUT FINANCIAL STATEMENTS
(in thousands of dollars)
(a) Reflects the elimination of balances included in the Predecessor that will remain with Westlake and will not be contributed to OpCo, as follows:
March 31,
2014 |
||||
Accounts receivable, net |
$ | (54,989 | ) | |
Inventories (1) |
(79,655 | ) | ||
Prepaid expenses and other current assets |
(174 | ) | ||
Deferred income taxes (see note (l)) |
(4,448 | ) | ||
Property, plant and equipment, net (2) |
(63,319 | ) | ||
Equity investment |
(10,339 | ) | ||
Accounts payable |
(96,567 | ) | ||
Accrued liabilities |
(27,338 | ) | ||
Long-term debt payable to Westlake |
(142,193 | ) | ||
Deferred income taxes (see note (l)) |
(184,477 | ) | ||
Other liabilities |
(925 | ) | ||
Westlake Chemical Partners LP partners capital (see note (e) and note (f)) |
238,576 |
(1) | Reflects an adjustment to eliminate the balance in the Predecessors inventories, other than ethylene co-product inventories, which will be contributed to OpCo in connection with this offering. |
(2) | Reflects an adjustment to eliminate the balance in the Predecessors property, plant and equipment related to certain shared utility assets, including land and land improvements, and certain transportation assets included in the Predecessors historical combined carve-out balance sheet, which will be retained by the Predecessor. |
(b) Reflects adjustments to Cash and cash equivalents, as follows:
March 31,
2014 |
||||
Gross proceeds from initial public offering |
$ | |||
Underwriters discount and fees |
||||
Expenses and costs of initial public offering |
||||
Distribution to Westlake of cash from initial public offering |
||||
|
|
|||
Cash and cash equivalents pro forma adjustment |
$ | |||
|
|
(c) Represents the elimination of Westlakes net investment in the Predecessor and its reclassification to Westlake Chemical Partners LP partners capital.
(d) Reflects 90% noncontrolling interest held by Westlake in OpCo calculated as follows:
March 31,
2014 |
||||
Reclassification of Westlakes net investment in the Predecessor (see note (e)) |
$ | 407,093 | ||
Equity impact of eliminating balances not contributed to OpCo (see note (a)) |
238,576 | |||
Contribution to OpCo of net proceeds from initial public offering (see note (b)) |
207,125 | |||
Distribution to Westlake of cash from initial public offering (see note (b)) |
||||
|
|
|||
Net adjustment before noncontrolling interest |
||||
Noncontrolling interest held by Westlake in OpCo |
90 | % | ||
|
|
|||
Noncontrolling interest in OpCo pro forma adjustment |
$ | |||
|
|
F-6
WESTLAKE CHEMICAL PARTNERS LP
NOTES TO UNAUDITED PRO FORMA COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
(e) Reflects adjustments to Westlake Chemical Partners LP partners capital, as follows:
March 31,
2014 |
||||
Reclassification of Westlakes net investment in the Predecessor (see note (c)) |
$ | 407,093 | ||
Noncontrolling interest in OpCo (see note (d)) |
(630,979) | |||
Gross proceeds from initial public offering (see note (b)) |
||||
Underwriters discount and fees (1) (see note (b)) |
||||
Expenses and costs of initial public offering (1) (see note (b)) |
||||
Distribution to Westlake of cash from initial public offering (see note (b)) |
||||
|
|
|||
Westlake Chemical Partners LP partners capital pro forma adjustment |
$ | (168,467 | ) | |
|
|
(1) | Underwriters discounts and fees and other expenses and costs of this offering will be allocated to the public common units. |
(f) Reflects the elimination of activity related to the resale of ethylene and feedstock included in the Predecessor that will not be a part of OpCos operations after this offering or the execution of the Ethylene Sales Agreement. Pro forma ethylene sales to third parties reflect 5% of actual ethylene production at the average historical sales price per pound to third parties for the applicable pro forma period. See note (g).
(g) Reflects a reduction in the Predecessors ethylene sales to Westlake, as follows:
Year Ended
December 31, 2013 |
Three Months Ended
March 31, 2014 |
|||||||
Price changes related to OpCos execution of the Ethylene Sales Agreement with Westlake (1) |
$ | (499,381 | ) | $ | (109,491 | ) | ||
Ethylene pipeline tariff fee charged to Westlake (2) |
3,716 | 1,190 | ||||||
|
|
|
|
|||||
Net ethylene sales-Westlake pro forma adjustment |
$ | (495,665 | ) | $ | (108,301 | ) | ||
|
|
|
|
(1) | Calculated as (x) the difference between the average historical sales price and the average pro forma sales price per pound of ethylene sold to Westlake after giving effect to the provisions of the Ethylene Sales Agreement, multiplied by (y) 95% of actual ethylene production, being the volume assumed to have been sold to Westlake for pro forma purposes, for the respective periods presented. |
(2) | Following the closing of this offering, OpCo will enter into an agreement with Westlake for the transportation of ethylene through the Longview Pipeline. This pro forma adjustment is based on historical throughput volume and applicable historical tariffs for the year ended December 31, 2013 and the three months ended March 31, 2014. |
Our Predecessor recognized revenue for ethylene volume sold internally based on a pricing formula intended to approximate the fair market value of the commodity. Historically, 100% of ethylene production was sold internally. Following the closing of this offering, 95% of the Partnerships planned ethylene production will be sold to Westlake under the Ethylene Sales Agreement. Furthermore, Westlake will hold an option to purchase 95% of actual ethylene production in excess of planned ethylene production (see Contractual Arrangements-Ethylene Sales Agreement). For purposes of these unaudited pro forma combined carve-out statements of operations, it is assumed that Westlake exercised its option to take 95% of the actual ethylene production in excess of planned production, resulting in Westlake taking 95% of actual ethylene production for pro forma
F-7
WESTLAKE CHEMICAL PARTNERS LP
NOTES TO UNAUDITED PRO FORMA COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
purposes for both the year ended December 31, 2013 and the three months ended March 31, 2014, with the remaining 5% being sold to third parties. Pricing of ethylene sold to Westlake under the Ethylene Sales Agreement, net of revenues from co-product sales, is expected to generate a fixed margin per pound of $0.10. For both the year ended December 31, 2013 and the three months ended March 31, 2014, the price per pound of ethylene sold under the Ethylene Sales Agreement would have been lower than historical prices charged by our Predecessor for ethylene consumed internally primarily due to the margin being earned on internal ethylene sales by the Predecessor being significantly higher than the fixed margin that would have been earned by us under the Ethylene Sales Agreement.
(h) Reflects the elimination of activity related to purchases of ethylene, feedstock for resale and derivative gains and losses included in the Predecessor that will not be a part of OpCos operations after the execution of the Ethylene Sales Agreement.
Pro forma Cost of sales reflects the historical ethylene manufacturing costs incurred by the Predecessor, including feedstock and conversion costs. Following the closing of this offering, OpCo will source its feedstock needs required to comply with the production requirements of the Ethylene Sales Agreement from Westlake under the Feedstock Supply Agreement (see Contractual Arrangements-Feedstock Supply Agreement). The Predecessors Cost of sales reflects the historical costs associated with procuring, transporting and storing feedstock used in the ethylene manufacturing process. Therefore, no adjustment has been made to the Predecessors historical manufacturing feedstock costs. Further, conversion costs to be incurred by OpCo are expected to remain consistent with historical costs incurred by the Predecessor (see Contractual Arrangements-Services and Secondment Agreement). As such, no adjustment has been made to the Predecessors historical conversion costs.
(i) Reflects an adjustment to reduce selling, general and administrative expenses by $6,509 and $1,526 for the year ended December 31, 2013 and the three months ended March 31, 2014, respectively, related to management incentive compensation not to be incurred by OpCo following the closing of this offering pursuant to the omnibus agreement. The omnibus agreement requires OpCo to reimburse Westlake for certain direct and indirect expenses incurred by Westlake and its affiliates, including for services provided by Westlake employees in capacities equivalent to corporate executive officers. Management incentive compensation reflected in the Predecessors financial statements was based on the totality of earnings and activities in the Predecessors financial statements. As some of the earnings and activities will be retained by the Predecessor, management incentive compensation to be allocated to OpCo would have been lower for the applicable pro forma periods. This adjustment reflects the portion of the management incentive compensation in the Predecessors financial statements related to the activities and earnings to be retained by the Predecessor.
(j) Represents a reduction in Interest expense-Westlake associated with the portion of Long-term debt payable to Westlake included in the Predecessor that will not be contributed to OpCo. See note (a).
(k) Reflects the elimination of a $3,158 settlement secured by the Predecessor against a customer during 2013, but related to a contract dispute arising in the years prior to January 1, 2013, which, under the omnibus agreement, would be collected, retained and recognized by Westlake, as well as the elimination of $4,711 and $1,264 for the year ended December 31, 2013 and the three months ended March 31, 2014, respectively, of the Predecessors equity in the income of the Equity investment that will not be contributed to OpCo. See note (a).
(l) Reflects the elimination of the Predecessors historical provision for federal income tax of $300,279 and $78,323, offset by the estimated pro forma state margin tax of $1,316 and $331 for the year ended December 31, 2013 and the three months ended March 31, 2014, respectively, for which the Partnership will be liable following
F-8
WESTLAKE CHEMICAL PARTNERS LP
NOTES TO UNAUDITED PRO FORMA COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
the closing of this offering. Westlake Chemical Partners LP will be treated as a nontaxable, publicly traded partnership for U.S. federal income tax purposes following this offering. The Partnership will not record a provision for federal income tax or associated deferred taxes. See note (a).
(m) Reflects pro forma net income attributable to the 90% noncontrolling interest held by Westlake in OpCo calculated as follows:
Year Ended
December 31, 2013 |
Three Months Ended
March 31, 2014 |
|||||||
Partnership pro forma net income |
$ | 295,507 | $ | 71,414 | ||||
Noncontrolling interest held by Westlake in OpCo |
90 | % | 90 | % | ||||
|
|
|
|
|||||
Net income attributable to noncontrolling interest in OpCo pro forma adjustment |
$ | 265,956 | $ | 64,273 | ||||
|
|
|
|
Pro forma net income per unit
We compute income per unit using the two-class method. Net income available to common and subordinated unitholders for purposes of the basic income per unit computation is allocated between the common and subordinated unitholders by applying the provisions of the partnership agreement as if all net income for the period had been distributed as cash.
Pro forma basic net income per unit is determined by dividing the pro forma net income available to common and subordinated unitholders of the Partnership by the number of common and subordinated units expected to be outstanding at the closing of the offering. For purposes of this calculation, we have assumed common units (including all common units being offered in this offering) and subordinated units to be outstanding. All units were assumed to have been outstanding since January 1, 2013.
Pursuant to the partnership agreement, the holder or holders of our incentive distribution rights (initially Westlake) are entitled to receive certain incentive distributions that, when applying the provisions of the partnership agreement as if all net income for the period had been distributed as cash, will result in less net income allocable to common and subordinated unitholders provided that the net income exceeds certain thresholds. The incentive distribution rights are a separate equity interest and represent participating securities. No pro forma net income would have been allocable to the incentive distribution rights during the periods presented, based upon the provisions of our partnership agreement because the threshold amount would not have been exceeded.
F-9
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Partners of Westlake Chemical Partners LP:
In our opinion, the accompanying balance sheet presents fairly, in all material respects, the financial position of Westlake Chemical Partners LP (the Partnership) at June 30, 2014, in conformity with accounting principles generally accepted in the United States of America. The balance sheet is the responsibility of the Partnerships management; our responsibility is to express an opinion on the balance sheet based on our audit. We conducted our audit of this statement 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 balance sheet is free of material misstatements. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the balance sheet, assessing the accounting principles used and significant estimates made by management, and evaluating the overall balance sheet presentation. We believe that our audit of the balance sheet provides a reasonable basis for our opinion.
/s/ PricewaterhouseCoopers LLP
Houston, Texas
July 14, 2014
F-10
WESTLAKE CHEMICAL PARTNERS LP BALANCE SHEET
June 30, 2014 | ||||
ASSETS |
||||
Total assets |
$ | | ||
|
|
|||
PARTNERS CAPITAL |
||||
Partners capital |
||||
Limited partner |
$ | 1,000 | ||
Less note receivable from limited partner |
(1,000 | ) | ||
General partner |
| |||
|
|
|||
Total partners capital |
$ | | ||
|
|
The accompanying notes are an integral part of the financial statements.
F-11
NOTES TO BALANCE SHEET
1. Description of Business
Westlake Chemical Partners LP (the Partnership) is a Delaware limited partnership formed on March 14, 2014. Westlake Chemical Partners GP LLC (the General Partner) is a limited liability company also formed on March 14, 2014, to become the general partner of the Partnership.
On March 14, 2014, Westlake International Service Corporation, a Delaware corporation, contributed $1,000 in the form of a note receivable to the Partnership in exchange for a 100 percent limited partner interest. There have been no other transactions involving the Partnership as of June 30, 2014.
2. Subsequent Events
Events and transactions subsequent to the balance sheet date have been evaluated through July 14, 2014, the date the balance sheet was issued, for potential recognition or disclosure.
F-12
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders
of Westlake Chemical Corporation:
In our opinion, the accompanying combined carve-out balance sheets and the related combined carve-out statements of operations, of changes in net investment and of cash flows present fairly, in all material respects, the financial position of Westlake Chemical Partners LPs Predecessor (the Predecessor) at December 31, 2013 and 2012, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2013 in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Companys management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements 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, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
/s/ PricewaterhouseCoopers LLP
Houston, Texas
April 29, 2014
F-13
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
COMBINED CARVE-OUT BALANCE SHEETS
The accompanying notes are an integral part of the combined carve-out financial statements
F-14
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
COMBINED CARVE-OUT STATEMENTS OF OPERATIONS
Year Ended December 31, | ||||||||||||
2013 | 2012 | 2011 | ||||||||||
(in thousands of dollars) | ||||||||||||
Revenue |
||||||||||||
Net ethylene salesWestlake |
$ | 1,603,043 | $ | 1,507,501 | $ | 1,638,338 | ||||||
Net co-product, ethylene and feedstock salesthird parties |
524,704 | 741,597 | 612,705 | |||||||||
|
|
|
|
|
|
|||||||
Total net sales |
2,127,747 | 2,249,098 | 2,251,043 | |||||||||
Cost of sales |
1,255,140 | 1,613,446 | 1,841,945 | |||||||||
|
|
|
|
|
|
|||||||
Gross profit |
872,607 | 635,652 | 409,098 | |||||||||
Selling, general and administrative expenses |
25,451 | 24,103 | 24,312 | |||||||||
|
|
|
|
|
|
|||||||
Income from operations |
847,156 | 611,549 | 384,786 | |||||||||
Other income (expense) |
||||||||||||
Interest expenseWestlake |
(8,032 | ) | (8,937 | ) | (8,947 | ) | ||||||
Other income, net |
7,701 | 4,186 | 2,804 | |||||||||
|
|
|
|
|
|
|||||||
Income before income taxes |
846,825 | 606,798 | 378,643 | |||||||||
Provision for income taxes |
300,279 | 210,878 | 131,670 | |||||||||
|
|
|
|
|
|
|||||||
Net income |
$ | 546,546 | $ | 395,920 | $ | 246,973 | ||||||
|
|
|
|
|
|
The accompanying notes are an integral part of the combined carve-out financial statements.
F-15
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
COMBINED CARVE-OUT STATEMENTS OF CHANGES IN NET INVESTMENT
Year Ended December 31, | ||||||||||||
2013 | 2012 | 2011 | ||||||||||
(in thousands of dollars) | ||||||||||||
Net investment |
||||||||||||
Balance at beginning of the year |
$ | 273,812 | $ | 216,705 | $ | 166,811 | ||||||
Net income |
546,546 | 395,920 | 246,973 | |||||||||
Net distributions: |
||||||||||||
Contribution of debt payable to Parent into net investment |
238,600 | | | |||||||||
Distributions to Parent, net |
(603,526 | ) | (338,813 | ) | (197,079 | ) | ||||||
|
|
|
|
|
|
|||||||
Net distributions to Parent |
(364,926 | ) | (338,813 | ) | (197,079 | ) | ||||||
|
|
|
|
|
|
|||||||
Balance at end of the year |
$ | 455,432 | $ | 273,812 | $ | 216,705 | ||||||
|
|
|
|
|
|
The accompanying notes are an integral part of the combined carve-out financial statements.
F-16
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
COMBINED CARVE-OUT STATEMENTS OF CASH FLOWS
Year Ended December 31, | ||||||||||||
2013 | 2012 | 2011 | ||||||||||
(in thousands of dollars) | ||||||||||||
Cash flows from operating activities |
||||||||||||
Net income |
$ | 546,546 | $ | 395,920 | $ | 246,973 | ||||||
Adjustments to reconcile net income to net cash provided by operating activities |
||||||||||||
Depreciation and amortization |
73,463 | 64,257 | 57,193 | |||||||||
Provision for doubtful accounts |
40 | 82 | 1,029 | |||||||||
Loss from disposition of fixed assets |
1,905 | 2,834 | 30 | |||||||||
Deferred income taxes |
37,054 | (8,096 | ) | (1,859 | ) | |||||||
Equity in loss (income) of joint venture, net of dividends |
402 | 277 | (364 | ) | ||||||||
Changes in operating assets and liabilities |
||||||||||||
Accounts receivable |
14,352 | 13,612 | (29,853 | ) | ||||||||
Inventories |
(6,057 | ) | 53,061 | (22,548 | ) | |||||||
Prepaid expenses and other current assets |
(150 | ) | 164 | 14 | ||||||||
Accounts payable |
7,362 | (34,937 | ) | 17,226 | ||||||||
Accrued and other liabilities |
(20,852 | ) | 17,717 | 11,833 | ||||||||
Other, net |
(51,556 | ) | (8,070 | ) | (10,958 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
602,509 | 496,821 | 268,716 | |||||||||
|
|
|
|
|
|
|||||||
Cash flows from investing activities |
||||||||||||
Additions to property, plant and equipment |
(223,130 | ) | (158,440 | ) | (73,681 | ) | ||||||
Proceeds from disposition of assets |
| | 2,108 | |||||||||
Settlements of derivative instruments |
(6,920 | ) | 432 | (64 | ) | |||||||
|
|
|
|
|
|
|||||||
Net cash used for investing activities |
(230,050 | ) | (158,008 | ) | (71,637 | ) | ||||||
|
|
|
|
|
|
|||||||
Cash flows from financing activities |
||||||||||||
Proceeds from 2013 Promissory Notes |
231,067 | | | |||||||||
Net distributions to Parent |
(603,526 | ) | (338,813 | ) | (197,079 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash used for financing activities |
(372,459 | ) | (338,813 | ) | (197,079 | ) | ||||||
|
|
|
|
|
|
|||||||
Net increase in cash |
| | | |||||||||
Cash at beginning of the year |
| | | |||||||||
|
|
|
|
|
|
|||||||
Cash at end of the year |
$ | | $ | | $ | | ||||||
|
|
|
|
|
|
The accompanying notes are an integral part of the combined carve-out financial statements.
F-17
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS
(in thousands of dollars)
1. | Business and Basis of Presentation |
Description of Business
Westlake Chemical Partners LP is a Delaware limited partnership formed on March 14, 2014, by Westlake Chemical Corporation and Westlake Chemical Partners GP LLC, a wholly owned subsidiary of Westlake Chemical Corporation. In anticipation of a proposed initial public offering (IPO) of common units by Westlake Chemical Partners LP (the Partnership), Westlake Chemical Corporation identified certain ethylene and other transportation related assets that would be contributed to Westlake Chemical OpCo LP in connection with the IPO (as described in more detail below, the Contributed Assets). Westlake Chemical OpCo LP (the OpCo) is a Delaware limited partnership formed on May 6, 2014 by Westlake Chemical Corporation and Westlake Chemical OpCo GP LLC, the latter of which is a wholly owned subsidiary of Westlake Chemical Partners LP. Westlake Chemical Partners LPs predecessor reflects the assets, liabilities and results of operations of the ethylene business including the Contributed Assets. References to the Predecessor refers to the predecessor of Westlake Chemical Partners LP. References to Westlake or Parent refer to Westlake Chemical Corporation and its consolidated subsidiaries other than the Partnership, the OpCo and their respective subsidiaries.
The Predecessor generates revenue by selling ethylene and ethylene co-products to Westlake and external customers. The Predecessors primary ethylene co-products are chemical grade propylene, crude butadiene, pyrolysis gasoline and hydrogen. The Predecessor also has storage agreements and exchange agreements that allow access to customers who are not directly connected to the pipeline system. The Predecessor typically ships ethylene, propylene and hydrogen via pipeline systems that connect its ethylene plants to Westlake and numerous third-party customers. The Predecessor transports its butadiene and pyrolysis gasoline by rail or truck. The Predecessors operations consist of one reportable segment: Ethylene Production.
The Contributed Assets are as follows:
|
Lake Charles Ethylene Production Facilities . Two ethylene production facilities located in Lake Charles, Louisiana (Petro 1 and Petro 2, collectively referred to as Lake Charles Olefins), with a combined production capacity of 2.7 billion pounds of ethylene per year, primarily consumed by Westlake in the production of higher value-added chemicals including polyethylene (PE) and polyvinyl chloride (PVC). |
|
Calvert City Ethylene Production Facility . An ethylene production facility located in Calvert City, Kentucky (Calvert City Olefins), with a production capacity of 450 million pounds of ethylene per year, primarily consumed by Westlake in the production of higher value-added chemicals including PE and PVC. |
|
Longview Pipeline . A 200-mile common carrier ethylene pipeline that runs from Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview production facility. The Longview Pipeline serves as the primary source of feedstock for the production of ethylene derivatives at Westlakes Longview production facility. |
In addition to the Contributed Assets activities, the Predecessors operations consist of the entire ethylene business, including but not limited to, procuring feedstock, managing inventory and commodity risk and transporting ethylene from manufacturing facilities.
Basis of Presentation
The Predecessor consists of the historical carve-out financial statements of Westlakes entire ethylene business. These statements reflect the combined carve-out historical results of operations, financial position,
F-18
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
changes in net investment and cash flows of the Predecessor as if such businesses had been combined for all periods presented. These combined carve-out financial statements were prepared in connection with the proposed IPO of Westlake Chemical Partners LP, and were derived from the consolidated financial statements and accounting records of Westlake Chemical Corporation. All intercompany transactions and accounts within Westlake Chemical Partners LP Predecessor have been eliminated. The assets and liabilities in these combined carve-out financial statements have been reflected at the Parents historical carryover basis, as immediately prior to the proposed IPO all of the assets and liabilities presented will be wholly owned by the Parent and will be transferred within the Parents consolidated group.
Intercompany transactions between the Predecessor and Westlake have been included in these combined carve-out financial statements. Related party transactions, other than intercompany promissory notes and related interest discussed in Note 9, were considered to be effectively settled for cash in the combined carve-out financial statements at the time the transaction is recorded. The total net effect of the settlement of these intercompany transactions is reflected in the combined carve-out statements of cash flows as a financing activity and in the combined carve-out balance sheets within net investment.
The combined carve-out statements of operations also include expense allocations for certain functions historically performed by the Parent and allocated to the ethylene business, including allocations of general corporate expenses related to finance, legal, information technology, human resources, communications, ethics and compliance, shared services, employee benefits and incentives and stock-based compensation. These allocations were based primarily on the basis of direct usage when identifiable, with the remainder allocated on the basis of fixed assets, headcount or other measure. The Predecessors management believes the assumptions underlying the combined carve-out financial statements, including the assumptions regarding allocation of expenses from the Parent, are reasonable and reflect all costs related to the operations of the Predecessor, including those incurred by the Parent on behalf of the Predecessor. Nevertheless, the combined carve-out financial statements may not include all of the expenses that would have been incurred had the Predecessor been a stand-alone company during the periods presented and may not reflect its results of operations, financial position and cash flows had the Predecessor been a stand-alone company during the periods presented.
Westlake Chemical Corporation uses a centralized approach to the cash management and financing of its operations. The cash generated by the Predecessors operations is transferred to Westlake Chemical Corporation daily, and Westlake Chemical Corporation funds the Predecessors operating and investing activities as needed. Accordingly, the cash and cash equivalents generated by the Predecessors operations and held by Westlake Chemical Corporation were not presented in its combined carve-out financial statements for any of the periods presented. The Predecessor reflected transfers of cash to and from Westlake Chemical Corporations cash management system as a component of Net investment on its combined carve-out balance sheets, and as part of Net distributions to Parent on its combined carve-out statements of cash flows.
2. | Summary of Significant Accounting Policies |
Net Investment
In the combined carve-out balance sheets, Net investment represents Westlake Chemical Corporations historical investment in the Predecessor, its accumulated net earnings after taxes, and the net effect of transactions with, and allocations from, Westlake Chemical Corporation.
Basis of Combination
The Predecessor consolidates entities when it either (1) has the ability to control the operating and financial decisions and policies of that entity; or (2) are allocated a majority of the entitys losses and/or returns through its
F-19
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
variable interests in that entity. The determination of its ability to control or exert significant influence over an entity and whether the Predecessor is allocated a majority of the entitys losses and/or returns involves the use of judgment. The Predecessor applies the equity method of accounting where the Predecessor can exert significant influence over, but do not control, the policies and decisions of an entity and where the Predecessor is not allocated a majority of the entitys losses and/or returns. The Predecessor has a 50% ownership interest in a natural gas liquids pipeline joint venture, Cypress Interstate Pipeline L.L.C., and accounts for its interest in this joint venture using the equity method of accounting. Undistributed earnings from the joint venture included in net investment were $233 as of December 31, 2013.
Allowance for Doubtful Accounts
The determination of the allowance for doubtful accounts is based on estimation of the amount of accounts receivable that the Predecessor believes are unlikely to be collected. Estimating this amount requires analysis of the financial strength of the Predecessors customers, the use of historical experience, the Predecessors accounts receivable aged trial balance, and specific collectability analysis. The allowance for doubtful accounts is reviewed quarterly. Past due balances over 90 days and high risk accounts as determined by the analysis of financial strength of customers are reviewed individually for collectability.
Inventories
Inventories primarily include product, material and supplies. Inventories are stated at lower of cost or market. Cost is determined using the first-in, first-out (FIFO) or average method.
Property, Plant and Equipment
Property, plant and equipment are carried at cost, net of accumulated depreciation. The property, plant, and equipment balances reflected in the historical combined carve-out financial statements herein reflect the Parents historical cost basis. Historical cost includes expenditures for improvements and betterments that extend the useful lives of the assets. Repair and maintenance costs are charged to operations as incurred.
The accounting guidance for asset retirement obligations requires the recording of liabilities equal to the fair value of asset retirement obligations and corresponding additional asset costs, when there is a legal asset retirement obligation as a result of existing or enacted law, statute or contract. The Predecessor has conditional asset retirement obligations for the removal and disposal of hazardous materials from certain of the Predecessors manufacturing facilities. However, no asset retirement obligations have been recognized because the fair value of the conditional legal obligation cannot be measured due to the indeterminate settlement date of the obligation. Settlement of these conditional asset retirement obligations is not expected to have a material adverse effect on the Predecessors financial condition, results of operations or cash flows in any individual reporting period.
Depreciation is provided by utilizing the straight-line method over the estimated useful lives of the assets.
Classification |
Years | |||
Buildings and improvements |
25 | |||
Plant and equipment |
25 | |||
Ethylene pipeline |
35 | |||
Other |
3-10 |
F-20
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
Fair Value Estimates
The Predecessor develops estimates of fair value to assess impairment of long-lived assets, goodwill and intangible assets, and to record derivative instruments. The Predecessor uses all available information to make these fair value determinations, including the engagement of third-party consultants.
Impairment of Long-Lived Assets
The accounting guidance for the impairment or disposal of long-lived assets requires that the Predecessor review long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Long-lived assets assessed for impairment are grouped at the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to future net undiscounted cash flows expected to be generated by the asset. Assets are considered to be impaired if the carrying amount of an asset exceeds the future undiscounted cash flows. The impairment recognized is measured by the amount by which the carrying amount of the assets exceeds the fair value of the assets. Assets to be disposed of are reported at the lower of the carrying amount or estimated fair value less costs to sell.
Impairment of Goodwill and Intangible Assets
The accounting guidance for goodwill and intangible assets requires that goodwill and indefinite-lived intangible assets are tested for impairment at least annually. Other intangible assets with finite lives are amortized over their estimated useful life and reviewed for impairment in accordance with the provisions of the accounting guidance. As of December 31, 2013, the Predecessors recorded goodwill was $5,818, all of which was associated with the Predecessors Ethylene Production segment. The latest annual impairment test for the recorded goodwill was performed as of October 31, 2013. The Predecessors impairment test indicated that its goodwill was not impaired.
Turnaround Costs
The Predecessor accounts for turnaround costs under the deferral method. Turnarounds are the scheduled and required shutdowns of specific operating units in order to perform planned major maintenance activities. The costs related to the significant overhaul and refurbishment activities include maintenance materials, parts and direct labor costs. The costs of the turnaround are deferred when incurred at the time of the turnaround and amortized (within depreciation and amortization) on a straight-line basis until the next planned turnaround, which ranges from three to six years. Deferred turnaround costs are presented as a component of other assets, net. Total costs deferred on turnarounds were $59,052, $5,566 and $8,426 in 2013, 2012, and 2011, respectively. The cash outflows related to these costs are included in operating activities in the combined carve-out statements of cash flows.
Exchanges
The Predecessor enters into inventory exchange transactions with third parties, which involve fungible commodities. These exchanges are settled in like-kind quantities and are valued at lower of cost or market. Cost is determined using the FIFO method.
Income Taxes
The operations of the Predecessor are included in a consolidated federal income tax return filed by Westlake. Following the IPO of Westlake Chemical Partners LP, its operations will be treated as a partnership
F-21
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
for federal and state income tax purposes, with each partner being separately taxed on its share of the taxable income. However, the Predecessor is composed of certain taxable limited liability companies and corporations in addition to non-taxable partnerships. Therefore, for financial reporting purposes, the Predecessors provision for income taxes has been computed on a separate-return basis for all periods presented except that all tax benefits recognized on employee stock plans are retained by Westlake. Although its operations have historically been included in the Parents U.S. federal and state tax returns based on Westlakes global tax model, Westlakes global tax model has been developed based on Westlakes entire portfolio of business and, therefore, the tax results as presented are not necessarily reflective of the results that the Predecessor would have generated on a stand-alone basis. The Predecessor utilizes the liability method of accounting for deferred income taxes. Under the liability method, deferred tax assets or liabilities are recorded based upon temporary differences between the tax basis of assets and liabilities and their carrying values for financial reporting purposes. Deferred tax expense or benefit is the result of changes in the deferred tax assets and liabilities during the period. Valuation allowances are recorded against deferred tax assets when it is considered more likely than not that the deferred tax assets will not be realized on a separate tax return basis.
Concentration of Credit Risk
Financial instruments which potentially subject the Predecessor to concentration of risk consist principally of trade receivables from external customers who purchase ethylene and ethylene co-products. The Predecessor performs periodic credit evaluations of non-affiliated customers financial condition and generally does not require collateral. The Predecessor maintains allowances for potential losses.
Revenue Recognition
Revenue is recognized when persuasive evidence of an arrangement exists, products are shipped to the customer, the sales price is fixed or determinable and collectability is reasonably assured. For domestic contracts, title and risk of loss passes to the customer upon delivery under executed customer purchase orders or contracts. For export contracts, the title and risk of loss passes to customers at the time specified by each contract. Provisions for discounts, rebates and returns are provided for in the same period as the related sales are recorded.
Comprehensive Income
The Predecessor has not reported comprehensive income due to the absence of items of other comprehensive income in the periods presented.
Net Income Per Unit
During the periods presented, the Predecessor was wholly owned by the Parent. Accordingly, the Predecessor has not presented net income per unit.
Price Risk Management
The accounting guidance for derivative instruments and hedging activities requires that the Predecessor recognize all derivative instruments on the combined carve-out balance sheet at fair value, and changes in the derivatives fair value must be currently recognized in earnings or comprehensive income, depending on the designation of the derivative. If the derivative is designated as a fair value hedge, the changes in the fair value of the derivative and of the hedged item attributable to the hedged risk are recognized in earnings. If the derivative is designated as a cash flow hedge, the effective portion of the change in the fair value of the derivative is
F-22
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
recorded in comprehensive income and is recognized in the statement of operations when the hedged item affects earnings. Ineffective portions of changes in the fair value of cash flow hedges are recognized in earnings. During the years presented, the Predecessor had no cash flow hedges.
The Predecessor utilizes commodity derivative instruments to reduce price risks by purchasing or selling futures on established exchanges. The Predecessor takes both fixed and variable positions, depending upon anticipated future physical purchases and sales of these commodities. The fair value of derivative financial instruments is estimated using quoted market prices in active markets and observable market-based inputs or unobservable inputs that are corroborated by market data when active markets are not available. The Predecessor assesses both counterparty as well as its own nonperformance risk when measuring the fair value of derivative liabilities. The Predecessor does not consider its nonperformance risk to be significant. See Note 11 for a summary of the fair value of derivative instruments.
Environmental Costs
Environmental costs relating to current operations are expensed or capitalized, as appropriate, depending on whether such costs provide future economic benefits. Remediation liabilities are recognized when the costs are considered probable and can be reasonably estimated. Measurement of liabilities is based on currently enacted laws and regulations, existing technology and undiscounted site-specific costs. Environmental liabilities in connection with properties that are sold or closed are realized upon such sale or closure, to the extent they are probable and estimable and not previously reserved. Recognition of any joint and several liabilities is based upon the Predecessors best estimate of its final pro rata share of the liability.
Fair Value of Financial Instruments
The amounts reported in the combined carve-out balance sheet for accounts receivable, net and accounts payable approximate their fair value due to the short maturities of these instruments. The fair value of financial instruments is estimated using quoted market prices in active markets and observable market-based inputs or unobservable inputs that are corroborated by market data when active markets are not available.
Employee Benefit Plans
The employees supporting the Predecessors operations are employees of the Parent and its affiliates. Their payroll costs and employee benefit plan costs are charged to the Predecessor by the Parent. The Parent sponsors various employee pension and postretirement health and life insurance plans. For purposes of these combined carve-out financial statements, the Predecessor is considered to be participating in multiemployer benefit plans of the Parent. As a participant in multiemployer benefit plans, the Predecessor recognizes as expense in each period an allocation from the Parent, and the Predecessor does not recognize any employee benefit plan assets or liabilities except for accruals for contributions due. The Predecessor is considered to participate in multiemployer plans of the Parent for the purposes of presenting these combined carve-out financial statements.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, and the disclosure of contingent assets and liabilities. Actual results could differ from those estimates.
F-23
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
3. | Recent Accounting Pronouncements |
Disclosures about Offsetting Assets and Liabilities
In December 2011, the Financial Accounting Standards Board (FASB) issued an accounting standards update on disclosures for offsetting assets and liabilities. The new accounting guidance requires companies to disclose both gross and net information about (1) instruments and transactions eligible for offset in the statement of financial position, and (2) instruments and transactions subject to an agreement similar to a master netting arrangement. The FASB issued another accounting standards update clarifying the scope of the assets and liabilities offset disclosure requirements in January 2013. The effective date of the disclosure requirements remains unchanged. The Predecessor adopted the new guidance as of January 1, 2013, and the adoption did not have an impact on the Predecessors combined carve-out financial position, results of operations or cash flows.
Testing Indefinite-Lived Intangible Assets for Impairment
In July 2012, the FASB issued an accounting standards update to simplify how entities test indefinite-lived intangible assets for impairment and to improve consistency in impairment testing guidance among long-lived asset categories. The new accounting guidance provides an entity with an option to first assess qualitative factors to determine whether it is more likely than not that an indefinite-lived intangible asset is impaired as a basis for determining whether it is necessary to perform the quantitative impairment test under current accounting guidance. If an entity concludes that it is not more likely than not that the indefinite-lived intangible asset is impaired, then the entity is not required to take further action. However, if an entity concludes otherwise, then it is required to determine the fair value of the indefinite-lived intangible asset and perform the quantitative impairment test by comparing the fair value with the carrying amount in accordance with current accounting guidance. Also under this new accounting guidance, an entity has the option to bypass the qualitative assessment for any indefinite-lived intangible asset in any period and proceed directly to performing the quantitative impairment test, but may resume performing the qualitative assessment in any subsequent period. The Predecessor adopted the new indefinite-lived intangible assets test guidance as of January 1, 2013, and the adoption did not have a material impact on the Predecessors combined carve-out financial position, results of operations or cash flows.
4. | Accounts Receivable |
Accounts receivable consist of the following at December 31:
2013 | 2012 | |||||||
Trade customers |
$ | 73,594 | $ | 71,669 | ||||
Allowance for doubtful accounts |
(2,105 | ) | (2,065 | ) | ||||
|
|
|
|
|||||
71,489 | 69,604 | |||||||
Other |
323 | 15,312 | ||||||
|
|
|
|
|||||
Accounts receivable, net |
$ | 71,812 | $ | 84,916 | ||||
|
|
|
|
F-24
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
5. | Inventories |
Inventories consist of the following at December 31:
2013 | 2012 | |||||||
Finished products |
$ | 21,330 | $ | 30,589 | ||||
Feedstock, additives and chemicals |
80,407 | 67,004 | ||||||
Materials and supplies |
14,640 | 12,727 | ||||||
|
|
|
|
|||||
Inventories |
$ | 116,377 | $ | 110,320 | ||||
|
|
|
|
6. | Property, Plant and Equipment |
Property, plant and equipment consist of the following at December 31:
2013 | 2012 | |||||||
Land |
$ | 4,126 | $ | 3,409 | ||||
Building and improvements |
32,941 | 30,171 | ||||||
Plant, pipeline and equipment |
1,058,304 | 921,092 | ||||||
Other |
55,478 | 50,840 | ||||||
|
|
|
|
|||||
1,150,849 | 1,005,512 | |||||||
Less: Accumulated depreciation |
(561,301 | ) | (530,809 | ) | ||||
|
|
|
|
|||||
589,548 | 474,703 | |||||||
Construction in progress |
173,424 | 116,408 | ||||||
|
|
|
|
|||||
Property, plant and equipment, net |
$ | 762,972 | $ | 591,111 | ||||
|
|
|
|
Depreciation expense on property, plant and equipment of $57,299, $53,125 and $45,326 is included in cost of sales in the combined carve-out statements of operations for the years ended December 31, 2013, 2012 and 2011, respectively.
7. | Other Assets |
Other assets consist of the following at December 31:
2013 | 2012 |
Weighted
Average Life |
||||||||||||||||||||||||||
Cost |
Accumulated
Amortization |
Net | Cost |
Accumulated
Amortization |
Net | |||||||||||||||||||||||
Goodwill and intangible assets: |
||||||||||||||||||||||||||||
Technology |
$ | 9,618 | $ | (9,618 | ) | $ | | $ | 9,618 | $ | (9,539 | ) | $ | 79 | 2 | |||||||||||||
Goodwill |
5,818 | | 5,818 | 5,818 | | 5,818 | ||||||||||||||||||||||
Other |
55 | | 55 | 55 | | 55 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total goodwill and intangible assets |
15,491 | (9,618 | ) | 5,873 | 15,491 | (9,539 | ) | 5,952 | ||||||||||||||||||||
Deferred charges and other assets: |
||||||||||||||||||||||||||||
Turnaround costs |
96,678 | (34,537 | ) | 62,141 | 72,745 | (54,144 | ) | 18,601 | 5 | |||||||||||||||||||
Other |
8,662 | (1,479 | ) | 7,183 | 8,662 | (917 | ) | 7,745 | 15 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total deferred charges and other assets |
105,340 | (36,016 | ) | 69,324 | 81,407 | (55,061 | ) | 26,346 | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Other assets, net |
$ | 120,831 | $ | (45,634 | ) | $ | 75,197 | $ | 96,898 | $ | (64,600 | ) | $ | 32,298 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-25
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
Amortization expense on other assets of $16,164, $11,132, and $11,867 is included in the combined carve-out statements of operations for the years ended December 31, 2013, 2012 and 2011, respectively.
Goodwill
Goodwill was allocated to the Predecessor from the Parent based on the relative fair market value of its net property, plant and equipment, compared with the fair market value of the Parents net property, plant and equipment acquired in the Parents purchase transaction that resulted in goodwill.
The Predecessor performs an annual assessment of whether goodwill retains its carrying value. This assessment is done more frequently if indicators of potential impairment exist. There has been no impairment of the goodwill since it was initially recorded.
The fair value of the Ethylene Production segment, the reporting unit assessed, was calculated using a discounted cash flow methodology. The discounted cash flow projections were based on a nine-year forecast, from 2014 to 2022, to reflect the cyclicality of the Predecessors Ethylene business. The forecast was based on (1) prices and spreads projected by Wood Mackenzie, a chemical industry organization offering market and business advisory services for the chemical market, for the same period, and (2) estimates by management, including their strategic and operational plans. Other significant assumptions used in the discounted cash flow projection included sales volumes based on current capacities. The future cash flows were discounted to present value using a discount rate of 8.8%.
8. | Related Party Transactions |
Cash Management Program
The Predecessor participates in Westlakes centralized cash management and funding system. The Predecessors working capital and capital expenditure requirements have historically been part of the corporate-wide cash management program for Westlake. As part of such program, Westlake sweeps all cash generated by the Predecessors operations daily, and cash needed to meet the Predecessors operating and investing needs is provided by Westlake as necessary. Transfers of cash to and from Westlakes cash management system are reflected as a component of Net investment on its combined carve-out balance sheets, and as part of Net Distributions to Parent on its combined carve-out statements of cash flows. No interest income has been recognized on net cash swept to the Parent since, historically, the Predecessor has not charged interest on intercompany balances other than the intercompany promissory notes described in Note 9.
All significant intercompany transactions between the Predecessor and Westlake have been included in these combined carve-out financial statements and are considered to be effectively settled for cash in the combined carve-out financial statements at the time the transaction is recorded. The total net effect of the settlement of these intercompany transactions is reflected in the combined carve-out statements of cash flow as a financing activity and in the combined carve-out balance sheets as Net investment.
Affiliate Transactions
During the ordinary course of conducting its business, the Predecessor enters into transactions with affiliates related to the production and sale of ethylene and ethylene co-products.
F-26
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
The Predecessor is part of the consolidated operations of Westlake, and a majority of its revenue is derived from transactions with Westlake and its affiliates. The prices used for these related party revenue transactions may be different than prices the Predecessor might have received had they been transacted with third parties. The gross profit recognized on net ethylene sales to Westlake was $772,316, $534,909, and $401,313 for the years ended December 31, 2013, 2012, and 2011, respectively.
Historically, Westlake and its affiliates performed certain services which directly and indirectly supported the Predecessors operations. Personnel costs incurred by Westlake and its affiliates on the Predecessors behalf were charged to the Predecessor and are included in either selling, general and administrative expenses or cost of sales, depending on the nature of the employees role in its operations. Personnel costs included in the Predecessors cost of sales were charged to the Predecessor based on actual payroll and other costs incurred by Westlake for employees who directly support the Predecessors operations. Westlake also performed certain general corporate functions for the Predecessor related to finance, legal, information technology, human resources, communications, ethics and compliance and other shared services. During 2013, 2012, and 2011 the Predecessor was allocated $20,197, $18,565, and $16,491, respectively, of indirect general corporate expenses incurred by Westlake. The costs of these general corporate functions were allocated to the Predecessor primarily on the basis of fixed assets and are included within selling, general and administrative expenses. These allocated corporate costs relate primarily to the wages and benefits of Westlake employees that support the Predecessors operations. Expenses incurred by Westlake and its affiliates on the Predecessors behalf have been allocated to the Predecessor on the basis of direct usage when identifiable. Where costs incurred on the Predecessors behalf could not practically be determined by specific identification, these costs were primarily allocated to the Predecessor on the basis of fixed assets, headcount or other measure. The expense allocations have been determined on a basis that both the Predecessor and Westlake consider to be a reasonable reflection of the utilization of services provided or the benefit received by the Predecessor during the periods presented. The allocations may not, however, fully reflect the expenses the Predecessor would have incurred as a separate, publicly traded company for the periods presented. Additionally, included in cost of sales and general, selling and administrative expenses, are direct employee costs. These employees performing services on behalf of the Predecessors operations are employees of Westlake Management Services, Inc., a subsidiary of Westlake. Included in the table below within cost of sales and selling, general and administrative are costs of such employees. In addition to the expenses that are incurred by the Parent on behalf of the Predecessor that are included in the table below, the Predecessor also incurs expenses externally from unrelated parties.
The Predecessor also incurred related party interest expense under promissory notes payable to Westlake. See Note 9 for intercompany debt and related interest expense between the Predecessor and Westlake.
The following table shows revenues and direct and indirect expenses, including personnel costs described above, incurred by Westlake on the Predecessors behalf that are reflected in its combined carve-out statements of operations.
Year Ended December 31, | ||||||||||||
2013 | 2012 | 2011 | ||||||||||
Net ethylene salesWestlake |
$ | 1,603,043 | $ | 1,507,501 | $ | 1,638,338 | ||||||
Cost of salesWestlake employees |
61,770 | 57,454 | 51,500 | |||||||||
Selling, general and administrative |
24,054 | 22,485 | 21,160 | |||||||||
Interest expenseWestlake |
8,032 | 8,937 | 8,947 |
Cypress Interstate Pipeline L.L.C., a pipeline joint venture company in which the Predecessor owns a 50% equity stake, supplies natural gas liquid feedstocks to the Predecessors Lake Charles complex through its pipeline. For the years ended December 31, 2013, 2012 and 2011, the Predecessor incurred pipeline fees of approximately $13,328, $11,957 and $9,474, respectively, payable to this joint venture for usage of its pipeline.
F-27
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
Pension and Retirement Savings Plans
Employees who directly or indirectly support the Predecessors operations participate in the pension, postretirement health and life insurance, and defined contribution benefit plans sponsored by the Parent, which includes other Parent subsidiaries. The Predecessors share of pension and postretirement health and life insurance costs for 2013, 2012 and 2011 was $1,426, $1,626, and $538 respectively. The Predecessors share of defined contribution plan costs for 2013, 2012 and 2011 was $3,977, $4,090, and $3,999, respectively. Pension and defined contribution benefit plan expenses are included in either selling, general and administrative expenses or cost of sales, depending on the nature of the employees role in its operations.
Stock-based Compensation
The Parents incentive compensation programs primarily consist of stock options, stock awards, restricted stock units or cash awards (any of which may be a performance award). Outstanding stock option awards have a 10-year term and vest either (1) ratably on an annual basis over a one to three-year period or (2) in one-half increments on the five-year and 9.5-year anniversaries of the award date. Current outstanding restricted stock awards also vest either (1) ratably on an annual basis over a three year period, (2) at the end of a two or three-year period or (3) in one-half increments on the five-year and 9.5-year anniversaries of the award date. Outstanding restricted stock units vest either (1) ratably on an annual basis over a three-year period or (2) at the end of a one to six-year period. In accordance with accounting guidance related to share-based payments, the Parent recognizes stock-based compensation expense for all stock-based compensation awards based on estimated grant-date fair value. The Parent recognizes these stock-based compensation costs net of a forfeiture rate and on a straight-line basis over the requisite service period of the award for only those shares expected to vest.
Certain Parent employees supporting the Predecessors operations were historically granted these types of awards. The Predecessor has allocated these expenses for stock-based compensation as part of the cost allocations to the Contributed Assets. These costs totaled $2,432, $2,147, and $2,276 for 2013, 2012 and 2011, respectively. Stock-based compensation expense is included in either selling, general and administrative expenses or cost of sales, depending on the nature of the employees role in the Predecessors operations. Stock-based compensation included in selling, general and administrative expenses totaled $1,984, $1,920, and $2,068 for 2013, 2012 and 2011, respectively. Stock-based compensation included in cost of sales totaled $448, $227, and $208 for 2013, 2012 and 2011, respectively.
General
The Predecessor, together with other subsidiaries of the Parent not included in these combined carve-out financial statements, are guarantors under the Parents revolving credit facility and the indentures governing its senior notes. As of December 31, 2013, the Parent had no borrowings outstanding under its revolving credit facility and $754,000 outstanding under its senior notes (less the unamortized discount of $1,010).
F-28
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
9. | Promissory Notes Payable to Westlake |
Long-term debt payable to Westlake consists of the following at December 31:
2013 | 2012 | |||||||
2004 Promissory Notes (variable interest rate of prime plus 0.25%, original scheduled maturity of February 14, 2014) |
$ | | $ | 232,600 | ||||
2006 Ethylene Note (variable interest rate of prime plus one percent, original scheduled maturity of March 11, 2014) |
| 6,000 | ||||||
2006 Pipeline Note (variable interest rate of prime plus 0.25%, original scheduled maturity of November 30, 2016) |
14,400 | 14,400 | ||||||
2013 Promissory Notes (variable interest rate of prime plus 1.5%, original scheduled maturity of August 1, 2023) |
238,573 | | ||||||
|
|
|
|
|||||
$ | 252,973 | $ | 253,000 | |||||
|
|
|
|
In conjunction with historical general expenditures for the Predecessors ethylene plants, the legal entities that have held its operating assets entered into certain promissory notes with a subsidiary of the Parent as follows:
On February 14, 2004, Westlake Development Corp, a subsidiary of the Parent, executed promissory notes (the 2004 Promissory Notes), on an unsecured basis, with legal entities that held ethylene plants in Calvert City and Lake Charles. The 2004 promissory notes related to general expenditures incurred by the Parent in 2004 and prior on behalf of the ethylene business and the chlorine plant in Calvert City. As only a portion of the 2004 Promissory Notes related to expenditures of the ethylene business, a portion of the 2004 Promissory Notes was allocated to the Predecessor based on the proportionate share of the Calvert City ethylene plants historical general expenditures. Interest expense has been allocated in the same proportions as debt. Both the Predecessor and Westlake believe the allocation basis for debt and interest expense is reasonable. However, these amounts may not be indicative of the actual amounts that the Predecessor would have incurred had the Predecessor been operating as an independent company for the periods presented. The interest rate on the 2004 Promissory Notes was 3.5% at December 31, 2012.
On March 31, 2006, Westlake Development Corp, a subsidiary of Westlake, executed a promissory note (the 2006 Ethylene Note), on an unsecured basis, with WPT LP, the legal entity that held one of the ethylene plants in Lake Charles for general expenditures incurred by Westlake in 2006 and prior on the Lake Charles Ethylene Plants behalf. The interest rate on the 2006 Ethylene Note was 4.25% at December 31, 2012.
On November 30, 2006, Westlake Development Corp, a subsidiary of Westlake, executed a promissory note (the 2006 Pipeline Note), on an unsecured basis, with Westlake Ethylene Pipeline Corporation, the legal entity that held the Longview Pipeline for general expenditures incurred by Westlake in 2006 and prior on the Longview Pipelines behalf. The interest rate on the 2006 Pipeline Note was 3.5% at December 31, 2013 and 2012.
On January 1, 2013, the 2004 Promissory Notes and the 2006 Ethylene Note were settled by the Parent through a contribution of the remaining balances to the net investment of the carve-out entities. Therefore, no balance remains on these notes as of December 31, 2013. The 2006 Pipeline Note will not be settled before the IPO as the note will remain an obligation of the legal entity, Westlake Ethylene Pipeline Corporation, subsequent to the IPO transaction and will not be contributed to OpCo. Total accrued interest payable on the 2004 Promissory Notes, 2006 Ethylene Note and 2006 Pipeline Note was $504 and $3,100 at December 31, 2013 and 2012, respectively, and is included in accrued liabilities in the combined carve-out balance sheets.
F-29
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
On January 1, 2013, three new intercompany promissory notes were issued for capital expenditures incurred by the Parent on behalf of the Predecessors operations (together, the 2013 Promissory Notes). Westlake Development Corporation, executed three separate promissory notes with Westlake Vinyls, Inc., WPT LLC (the successor to WPT LP) and Westlake Petrochemicals LLC (the 2013 Vinyls Note, the 2013 Petro 2 Note and the 2013 Petro 1 Note, respectively). The 2013 Promissory Notes have been issued without a stated principal amount, maturing on August 1, 2023 and variable interest rates of prime plus 1.5% payable in cash or added to the principal at the option of the Predecessor. Interest expense of $7,506 was incurred on the 2013 Promissory Notes during 2013 and was reflected on the combined carve-out financial statements as an addition to principal. As of December 31, 2013, the outstanding borrowings on the 2013 Promissory Notes, including accrued interest of $7,506, was a total of $238,573, comprised of $120,492, $87,399, and $30,682 outstanding on the 2013 Vinyls Note, the 2013 Petro 2 Note and the 2013 Petro 1 Note, respectively. The interest rate on the 2013 Promissory Notes was 4.75% at December 31, 2013.
As of December 31, 2013, the aggregate carrying value of the Predecessors debt approximates its fair value.
10. | Derivative Commodity Instruments |
The Predecessor uses derivative instruments to reduce price volatility risk on commodities, primarily natural gas and ethane, from time to time. The Predecessor does not use derivative instruments to engage in speculative activities.
For derivative instruments that are designated and qualify as fair value hedges, the gains or losses on the derivative instruments, as well as the offsetting losses or gains on the hedged items attributable to the hedged risk, were included in cost of sales in the combined carve-out statements of operations in 2013, 2012, and 2011. As of December 31, 2013, the Predecessor had no feedstock forward contracts designated as fair value hedges. The Predecessor had 46,620,000 gallons of feedstock forward contracts designated as fair value hedges at December 31, 2012.
Gains and losses from changes in the fair value of derivative instruments that are not designated as hedging instruments were included in gross profit in the combined carve-out statements of operations in 2013, 2012 and 2011.
The exposure on commodity derivatives used for price risk management includes the risk that the counterparty will not pay if the market declines below the established fixed price. In such case, the Predecessor would lose the benefit of the derivative differential on the volume of the commodities covered. In any event, the Predecessor would continue to receive the market price on the actual volume hedged. The Predecessor also bears the risk that it could lose the benefit of market improvements over the fixed derivative price for the term and volume of the derivative instruments (as such improvements would accrue to the benefit of the counterparty).
Disclosures related to the Predecessors derivative assets and derivative liabilities subject to enforceable master netting arrangements have not been presented as they are not material to the Predecessors combined carve-out balance sheets at December 31, 2013 and 2012.
F-30
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
The fair values of derivative instruments in the Predecessors combined carve-out balance sheets were as follows:
Derivative Assets |
||||||||||
Fair
Value
as of December 31, |
||||||||||
Balance Sheet Location |
2013 | 2012 | ||||||||
Designated as hedging instruments |
||||||||||
Commodity forward contracts |
Accounts receivable, net | $ | | $ | 13,032 | |||||
Not designated as hedging instruments |
||||||||||
Commodity forward contracts |
Accounts receivable, net | 296 | 1,395 | |||||||
|
|
|
|
|||||||
Total derivative assets |
$ | 296 | $ | 14,427 | ||||||
|
|
|
|
Derivative Liabilities |
||||||||||
Fair
Value
as of December 31, |
||||||||||
Balance Sheet Location |
2013 | 2012 | ||||||||
Designated as hedging instruments |
||||||||||
Commodity forward contract |
Accrued liabilities | $ | | $ | 399 | |||||
Not designated as hedging instruments |
||||||||||
Commodity forward contracts |
Accrued liabilities | 176 | 13,295 | |||||||
|
|
|
|
|||||||
Total derivative liabilities |
$ | 176 | $ | 13,694 | ||||||
|
|
|
|
The following tables reflect the impact of derivative instruments designated as fair value hedges and the related hedged item on the Predecessors combined carve-out statements of operations. There was no material ineffectiveness with regard to the Predecessors qualifying hedges in 2013, 2012, and 2011.
Location of Gain (Loss) Recognized in Income on Derivative |
Year Ended December 31, | |||||||||||||
Derivatives in Fair Value Hedging Relationships |
2013 | 2012 | 2011 | |||||||||||
Commodity forward contracts |
Cost of sales | $ | (303 | ) | $ | 17,163 | $ | (4,895 | ) | |||||
|
|
|
|
|
|
Location of Gain (Loss) Recognized in Income on Hedged Items |
Year Ended December 31, | |||||||||||||
Hedged Items in Fair Value Hedging Relationships |
2013 | 2012 | 2011 | |||||||||||
Firm commitment designated as the hedged item |
Cost of sales | $ | 143 | $ | (18,394 | ) | $ | 5,092 | ||||||
|
|
|
|
|
|
The impact of derivative instruments that have not been designated as hedges on the Predecessors combined carve-out statements of operations were as follows:
See Note 11 for the fair value of the Predecessors derivative instruments.
F-31
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
11. | Fair Value Measurements |
Fair value is a market-based measurement that should be determined based on assumptions (inputs) that market participants would use in pricing an asset or liability. Inputs may be observable or unobservable, and valuation techniques used to measure fair value should maximize the use of relevant observable inputs and minimize the use of unobservable inputs. Accordingly, the accounting guidance for fair value measurements establishes a hierarchical disclosure framework that ranks the quality and reliability of information used to determine fair values. The hierarchy is associated with the level of pricing utilized in measuring fair value and defines three levels of inputs to the fair value measurement processquoted prices are the most reliable valuation inputs, whereas model values that include inputs based on unobservable data are the least reliable. Each fair value measurement must be assigned to a level corresponding to the lowest level input that is significant to the fair value measurement in its entirety.
Under the accounting guidance for fair value measurements, inputs used to measure fair value are classified in one of three levels:
Level 1Quoted market prices in active markets for identical assets and liabilities.
Level 2Observable market-based inputs or unobservable inputs that are corroborated by market data.
Level 3Unobservable inputs that are not corroborated by market data.
The Predecessor reports certain assets and liabilities at fair value, which is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (exit price). The following tables summarize, by level within the fair value hierarchy, the Predecessors assets and liabilities at December 31 that were accounted for at fair value on a recurring basis:
2013 | ||||||||||||
Level 1 | Level 2 | Total | ||||||||||
Derivative instruments |
||||||||||||
Risk management assetsCommodity forward contracts |
$ | 48 | $ | 248 | $ | 296 | ||||||
Risk management liabilitiesCommodity forward contracts |
| (176 | ) | (176 | ) | |||||||
2012 | ||||||||||||
Level 1 | Level 2 | Total | ||||||||||
Derivative instruments |
||||||||||||
Risk management assetsCommodity forward contracts |
$ | 1,395 | $ | 13,032 | $ | 14,427 | ||||||
Risk management liabilitiesCommodity forward contracts |
| (13,694 | ) | (13,694 | ) | |||||||
Firm commitments |
||||||||||||
Hedged portion of firm commitment |
| 399 | 399 | |||||||||
Hedged portion of firm commitment |
| (13,032 | ) | (13,032 | ) |
The Level 2 measurements for the Predecessors commodity contracts are derived using forward curves supplied by industry recognized and unrelated third-party services. There were no transfers in and out of Levels 1 and 2 of the fair value hierarchy in 2013 and 2012.
In addition to the assets and liabilities above, the Predecessor has other financial assets and liabilities subject to fair value measures. These financial assets and liabilities include accounts receivable, net, accounts payable and long-term debt payable to Westlake, all of which are recorded at carrying value. The amounts reported in the combined carve-out balance sheets for accounts receivable, net and accounts payable approximate their fair value due to the short maturities of these instruments. The carrying and fair values of the Predecessors long-term debt
F-32
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
at December 31, 2013 and 2012 are summarized in the table below. The Predecessors long-term debt instruments are related party promissory notes issued to wholly owned subsidiaries of Westlake. The fair value of
these notes is determined based on the present value of expected future cash flows using a discounted cash flow methodology. Because the Predecessors valuation methodology used for long-term debt instruments requires the use of significant unobservable inputs, the inputs used to measure the fair value of the Predecessors long-term debt are classified as Level 3 within the fair value hierarchy. Inputs used to estimate the fair values of the Predecessors long-term debt include the selection of an appropriate discount rate.
2013 | 2012 | |||||||||||||||
Carrying Value | Fair Value | Carrying Value | Fair Value | |||||||||||||
2004 Promissory Notes |
$ | | $ | | $ | 232,600 | $ | 232,684 | ||||||||
2006 Ethylene Note |
| | 6,000 | 6,000 | ||||||||||||
2006 Pipeline Note |
14,400 | 13,922 | 14,400 | 13,777 | ||||||||||||
2013 Promissory Notes |
238,573 | 238,573 | | |
12. | Income Taxes |
The Predecessors operating results have been included in Westlake Chemical Corporations consolidated U.S. federal and state income tax returns. Amounts presented in these combined carve-out financial statements related to income taxes have been determined on a separate tax return basis, and the Predecessors contribution to Westlake Chemical Corporations net operating losses and tax credits have been included in these financial statements. These amounts may not reflect tax positions taken or to be taken by Westlake Chemical Corporation and have been available for use by Westlake Chemical Corporation and may remain with Westlake Chemical Corporation after the separation from Westlake Chemical Corporation.
The Predecessors provision for (benefit from) income taxes consists of the following:
Year Ended December 31, | ||||||||||||
2013 | 2012 | 2011 | ||||||||||
Current |
||||||||||||
Federal |
$ | 233,014 | $ | 196,467 | $ | 118,384 | ||||||
State |
30,211 | 22,507 | 15,145 | |||||||||
|
|
|
|
|
|
|||||||
263,225 | 218,974 | 133,529 | ||||||||||
|
|
|
|
|
|
|||||||
Deferred |
||||||||||||
Federal |
32,675 | (8,137 | ) | (616 | ) | |||||||
State |
4,379 | 41 | (1,243 | ) | ||||||||
|
|
|
|
|
|
|||||||
37,054 | (8,096 | ) | (1,859 | ) | ||||||||
|
|
|
|
|
|
|||||||
Total provision |
$ | 300,279 | $ | 210,878 | $ | 131,670 | ||||||
|
|
|
|
|
|
F-33
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
A reconciliation of taxes computed at the statutory rate to the Predecessors income tax expense is as follows:
Year Ended December 31, | ||||||||||||
2013 | 2012 | 2011 | ||||||||||
Provision for federal income tax at statutory rate |
$ | 296,389 | $ | 212,379 | $ | 132,525 | ||||||
State income tax provision net of federal income tax effect |
22,484 | 14,656 | 9,036 | |||||||||
Manufacturing deduction |
(18,270 | ) | (16,065 | ) | (10,150 | ) | ||||||
Other, net |
(324 | ) | (92 | ) | 259 | |||||||
|
|
|
|
|
|
|||||||
$ | 300,279 | $ | 210,878 | $ | 131,670 | |||||||
|
|
|
|
|
|
The tax effects of the principal temporary differences between financial reporting and income tax reporting at December 31 are as follows:
2013 | 2012 | |||||||
Net operating loss carryforward |
$ | | $ | 18 | ||||
Credit carryforward |
25 | 25 | ||||||
Accruals |
3,570 | 4,328 | ||||||
Allowance for doubtful accounts |
(136 | ) | 209 | |||||
Inventories |
1,313 | 1,115 | ||||||
Other |
(373 | ) | (105 | ) | ||||
|
|
|
|
|||||
Deferred taxes assetstotal |
4,399 | 5,590 | ||||||
|
|
|
|
|||||
Property, plant and equipment |
(159,033 | ) | (139,774 | ) | ||||
Turnaround costs |
(23,773 | ) | (7,169 | ) | ||||
|
|
|
|
|||||
Deferred tax liabilitiestotal |
(182,806 | ) | (146,943 | ) | ||||
|
|
|
|
|||||
Total net deferred tax liabilities |
$ | (178,407 | ) | $ | (141,353 | ) | ||
|
|
|
|
|||||
Balance sheet classifications |
||||||||
Current deferred tax asset |
$ | 4,448 | $ | 5,278 | ||||
Deferred tax liability |
(182,855 | ) | (146,631 | ) | ||||
|
|
|
|
|||||
Total net deferred tax liabilities |
$ | (178,407 | ) | $ | (141,353 | ) | ||
|
|
|
|
13. | Supplemental Information |
Operating Cash Flow Information
Westlake Chemical Corporation uses a centralized cash management system to finance its operations. Interest paid, net of capitalized interest, and income taxes have been paid directly by the Parent and charged to the Predecessor through related party accounts receivable, net. Related party accounts receivable, net were settled immediately through net investment, and therefore, the Predecessor did not pay cash for interest expense or income tax expense during the years ended December 31, 2013, 2012 or 2011. See Note 8 for the treatment of related party transactions with Westlake.
F-34
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
Other Income, Net
Year Ended December 31, | ||||||||||||
2013 | 2012 | 2011 | ||||||||||
Equity in income of joint venture |
$ | 4,711 | $ | 4,172 | $ | 2,827 | ||||||
Claims recovery |
3,158 | | | |||||||||
Franchise taxes |
(172 | ) | (144 | ) | (30 | ) | ||||||
Other |
4 | 158 | 7 | |||||||||
|
|
|
|
|
|
|||||||
Other income, net |
$ | 7,701 | $ | 4,186 | $ | 2,804 | ||||||
|
|
|
|
|
|
Non-cash Operating Activity
The Predecessor settled $7,506 of its total 2013 interest expense incurred on related party notes as an addition to principal on promissory notes outstanding to Westlake. Interest incurred on the 2013 Promissory Notes discussed in Note 9 may be settled through additions to principal outstanding, at the Predecessors option.
Non-cash Investing Activity
Change in capital expenditure accrual reducing additions to property, plant and equipment was $7,937, $1,333 and $1,550 for the years ended December 31, 2013, 2012 and 2011, respectively.
Non-cash Financing Activity
As of December 31, 2012, related party notes payable to Westlake equaled $253,000. In 2013, $238,600 of these related party notes were deemed settled through net parent investment. The non-cash settlement was recorded as an increase in Westlakes net investment in the Predecessor. No cash was transferred in connection with the deemed settlement of these notes. See Note 9 for intercompany debt outstanding between the Predecessor and Westlake.
14. | Major Customer and Concentration of Credit Risk |
In 2013, 2012 and 2011, Westlake accounted for approximately 75%, 67% and 73%, respectively, of the Predecessors net sales. Historically, the Predecessor sold ethylene to Westlake and the resulting related party receivables were settled immediately through net investment.
15. | Commitments and Contingencies |
The Predecessor is subject to environmental laws and regulations that can impose civil and criminal sanctions and that may require it to mitigate the effects of contamination caused by the release or disposal of hazardous substances into the environment. Under one law, an owner or operator of property may be held strictly liable for remediating contamination without regard to whether that person caused the contamination, and without regard to whether the practices that resulted in the contamination were legal at the time they occurred. Because several of the Predecessors production sites have a history of industrial use, it is impossible to predict precisely what effect these legal requirements will have on the Predecessor.
Contract Disputes with Goodrich and PolyOne . In connection with the 1990 and 1997 acquisitions of the Goodrich Corporation (Goodrich) chemical manufacturing complex in Calvert City, Goodrich agreed to indemnify the Predecessor for any liabilities related to preexisting contamination at the complex. For its part, the
F-35
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
Predecessor agreed to indemnify Goodrich for post-closing contamination caused by the Predecessors operations. The soil and groundwater at the complex, which does not include the Predecessors nearby PVC facility, had been extensively contaminated under Goodrichs operations. In 1993, Goodrich spun off the predecessor of PolyOne Corporation (PolyOne), and that predecessor assumed Goodrichs indemnification obligations relating to preexisting contamination.
In 2003, litigation arose among the Predecessor, Goodrich and PolyOne with respect to the allocation of the cost of remediating contamination at the site. The parties settled this litigation in December 2007 and PolyOne agreed to assume 100% of responsibility for site contamination subject to the right to seek reallocation through an arbitration process. By letter dated March 16, 2010, PolyOne notified Westlake that it was initiating an arbitration proceeding under the settlement agreement. This arbitration is currently stayed.
State Administrative Proceedings . There are several administrative proceedings in Kentucky pertaining to the Calvert City site involving Goodrichs Resource Conservation and Recovery Act permit which requires Goodrich to remediate contamination at the site. Site contamination is currently being addressed under the U.S. Comprehensive Environmental Response, Compensation, and Liability Act by the Predecessor, Goodrich and PolyOne pursuant to an Administrative Settlement with the U.S. Environmental Protection Agency which requires the parties to conduct a remedial investigation and feasibility study. As a result, the state proceedings are currently stayed and corrective action under the permit has been suspended.
Monetary Relief . Except as noted above with respect to the settlement of the contract litigation among the Predecessor, Goodrich and PolyOne, there has been no determination of responsibility or any allocation of the costs of remediation among the various parties that are involved in the judicial and administrative proceedings discussed above. At this time, the Predecessor is not able to estimate the loss or reasonable possible loss, if any, on the Predecessors combined carve-out financial statements that could result from the resolution of these proceedings. Any cash expenditures that the Predecessor might incur in the future with respect to the remediation of contamination at the complex would likely be spread out over an extended period. As a result, the Predecessor believes it is unlikely that any remediation costs allocable to it will be material in terms of expenditures made in any individual reporting period.
Westlake has agreed to indemnify OpCo for any liabilities related to pre-existing contamination at the Calvert City plant, and OpCo has agreed to indemnity Westlake for any post-closing contamination caused by its operations of the Calvert City plant.
In addition to the matters described above, the Predecessor is involved in various routine legal proceedings incidental to the conduct of its business. The Predecessor does not believe that any of these routine legal proceedings will have a material adverse effect on its financial condition, results of operations or cash flows.
F-36
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(in thousands of dollars)
Other Commitments
The Predecessor is obligated under various long-term and short-term noncancelable operating leases, primarily related to rail car leases. Several of the leases provide for renewal terms. As of December 31, 2013, future minimum lease commitments were as follows:
2014 |
$ | 1,657 | ||
2015 |
1,380 | |||
2016 |
949 | |||
2017 |
823 | |||
2018 |
602 | |||
Thereafter |
948 | |||
|
|
|||
$ | 6,359 | |||
|
|
Rental expense was approximately $3,933, $2,999 and $3,770 for the years ended December 31, 2013, 2012 and 2011, respectively.
The Predecessor has various purchase commitments for its capital projects and for materials, supplies and services incident to the ordinary conduct of business. Such commitments are at prices not in excess of market prices. Certain feedstock purchase commitments require taking delivery of minimum volumes at market-determined prices.
16. | Subsequent Events |
Subsequent events have been evaluated for recognition through February 21, 2014; the issuance date of the Parents consolidated financial statements. Subsequent events have been evaluated for disclosure through April 29, 2014, the date of the audit report. There have been no subsequent events to disclose as of this date.
F-37
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
COMBINED CARVE-OUT BALANCE SHEETS
(Unaudited)
Supplemental
Pro Forma March 31, 2014 (See Note 1) |
March 31,
2014 |
December 31,
2013 |
||||||||||
(in thousands of dollars) | ||||||||||||
ASSETS |
||||||||||||
Current assets |
||||||||||||
Accounts receivable, net |
$ | 54,989 | $ | 54,989 | $ | 71,812 | ||||||
Inventories |
|
85,670
|
|
85,670 | 116,377 | |||||||
Prepaid expenses and other current assets |
174 | 174 | 257 | |||||||||
Deferred income taxes |
4,448 | 4,448 | 4,448 | |||||||||
|
|
|
|
|
|
|||||||
Total current assets |
145,281 | 145,281 | 192,894 | |||||||||
Property, plant and equipment, net |
794,176 | 794,176 | 762,972 | |||||||||
Equity investment |
10,339 | 10,339 | 10,411 | |||||||||
Other assets, net |
||||||||||||
Goodwill and intangible assets, net |
5,873 | 5,873 | 5,873 | |||||||||
Deferred charges and other assets, net |
64,733 | 64,733 | 69,324 | |||||||||
|
|
|
|
|
|
|||||||
Total other assets, net |
70,606 | 70,606 | 75,197 | |||||||||
|
|
|
|
|
|
|||||||
Total assets |
$ | 1,020,402 | $ | 1,020,402 | $ | 1,041,474 | ||||||
|
|
|
|
|
|
|||||||
LIABILITIES |
||||||||||||
Current liabilities |
||||||||||||
Accounts payable |
$ | 96,567 | $ | 96,567 | $ | 122,564 | ||||||
Accrued liabilities |
27,338 | 27,338 | 26,688 | |||||||||
|
|
|
|
|
|
|||||||
Total current liabilities |
123,905 | 123,905 | 149,252 | |||||||||
Long-term debt payable to Westlake |
302,357 | 302,357 | 252,973 | |||||||||
Deferred income taxes |
|
186,122
|
|
186,122 | 182,855 | |||||||
Other liabilities |
925 | 925 | 962 | |||||||||
Distribution payable to Westlake |
| | ||||||||||
|
|
|
|
|
|
|||||||
Total liabilities |
613,309 | 586,042 | ||||||||||
|
|
|
|
|
|
|||||||
Commitments and contingencies (Note 14) |
||||||||||||
NET INVESTMENT |
||||||||||||
Net investment |
407,093 | 455,432 | ||||||||||
|
|
|
|
|
|
|||||||
Total liabilities and net investment |
$ | 1,020,402 | $ | 1,020,402 | $ | 1,041,474 | ||||||
|
|
|
|
|
|
The accompanying notes are an integral part of the combined carve-out financial statements
F-38
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
COMBINED CARVE-OUT STATEMENTS OF OPERATIONS
(Unaudited)
Three Months Ended March 31, | ||||||||
2014 | 2013 | |||||||
(in thousands of dollars) | ||||||||
Revenue |
||||||||
Net ethylene salesWestlake |
$ | 383,927 | $ | 414,509 | ||||
Net co-product, ethylene and feedstock salesthird parties |
176,087 | 86,408 | ||||||
|
|
|
|
|||||
Total net sales |
560,014 | 500,917 | ||||||
Cost of sales |
327,700 | 310,907 | ||||||
|
|
|
|
|||||
Gross profit |
232,314 | 190,010 | ||||||
Selling, general and administrative expenses |
7,778 | 6,171 | ||||||
|
|
|
|
|||||
Income from operations |
224,536 | 183,839 | ||||||
Other income (expense) |
||||||||
Interest expenseWestlake |
(3,591 | ) | (950 | ) | ||||
Other income, net |
1,252 | 4,045 | ||||||
|
|
|
|
|||||
Income before income taxes |
222,197 | 186,934 | ||||||
Provision for income taxes |
78,323 | 66,209 | ||||||
|
|
|
|
|||||
Net income |
$ | 143,874 | $ | 120,725 | ||||
|
|
|
|
The accompanying notes are an integral part of the combined carve-out financial statements.
F-39
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
COMBINED CARVE-OUT STATEMENTS OF CHANGES IN NET INVESTMENT
(Unaudited)
Three Months March 31, | ||||||||
2014 | 2013 | |||||||
(in thousands of dollars) | ||||||||
Net investment |
||||||||
Balance at beginning of the period |
$ | 455,432 | $ | 273,812 | ||||
Net income |
143,874 | 120,725 | ||||||
Net distributions: |
||||||||
Contribution of debt payable to Parent into net investment |
| 238,600 | ||||||
Distributions to Parent, net |
(192,213 | ) | (165,445 | ) | ||||
|
|
|
|
|||||
Net (distributions to) contributions from Parent |
(192,213 | ) | 73,155 | |||||
|
|
|
|
|||||
Balance at end of the period |
$ | 407,093 | $ | 467,692 | ||||
|
|
|
|
The accompanying notes are an integral part of the combined carve-out financial statements.
F-40
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
COMBINED CARVE-OUT STATEMENTS OF CASH FLOWS
(Unaudited)
Three Months Ended March 31, | ||||||||
2014 | 2013 | |||||||
(in thousands of dollars) | ||||||||
Cash flows from operating activities |
||||||||
Net income |
$ | 143,874 | $ | 120,725 | ||||
Adjustments to reconcile net income to net cash provided by operating activities |
||||||||
Depreciation and amortization |
19,014 | 16,035 | ||||||
Recovery of doubtful accounts |
(60 | ) | (256 | ) | ||||
Loss from disposition of fixed assets |
353 | 1,438 | ||||||
Deferred income taxes |
3,267 | 8,104 | ||||||
Equity in loss (income) of joint venture, net of dividends |
72 | (389 | ) | |||||
Changes in operating assets and liabilities |
||||||||
Accounts receivable |
15,493 | 23,101 | ||||||
Inventories |
30,707 | 2,985 | ||||||
Prepaid expenses and other current assets |
83 | (55 | ) | |||||
Accounts payable |
(19,198 | ) | 39,856 | |||||
Accrued and other liabilities |
877 | 6,839 | ||||||
Other, net |
3,404 | (55,392 | ) | |||||
|
|
|
|
|||||
Net cash provided by operating activities |
197,886 | 162,991 | ||||||
|
|
|
|
|||||
Cash flows from investing activities |
||||||||
Additions to property, plant and equipment |
(51,305 | ) | (65,051 | ) | ||||
Settlements of derivative instruments |
(409 | ) | (679 | ) | ||||
|
|
|
|
|||||
Net cash used for investing activities |
(51,714 | ) | (65,730 | ) | ||||
|
|
|
|
|||||
Cash flows from financing activities |
||||||||
Proceeds from 2013 Promissory Notes |
46,041 | 68,184 | ||||||
Net distributions to Parent |
(192,213 | ) | (165,445 | ) | ||||
|
|
|
|
|||||
Net cash used for financing activities |
(146,172 | ) | (97,261 | ) | ||||
|
|
|
|
|||||
Net increase in cash |
| | ||||||
Cash at beginning of period |
| | ||||||
|
|
|
|
|||||
Cash at end of period |
$ | | $ | | ||||
|
|
|
|
The accompanying notes are an integral part of the combined carve-out financial statements.
F-41
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS
(Unaudited)
(in thousands of dollars)
1. | Business and Basis of Presentation |
Description of Business
Westlake Chemical Partners LP is a Delaware limited partnership formed on March 14, 2014, by Westlake Chemical Corporation and Westlake Chemical Partners GP LLC, a wholly owned subsidiary of Westlake Chemical Corporation. In anticipation of a proposed initial public offering (IPO) of common units by Westlake Chemical Partners LP (the Partnership), Westlake Chemical Corporation identified certain ethylene and other transportation related assets that would be contributed to Westlake Chemical OpCo LP in connection with the IPO (as described in more detail below, the Contributed Assets). Westlake Chemical OpCo LP (the OpCo) is a Delaware limited partnership formed on May 6, 2014 by Westlake Chemical Corporation and Westlake Chemical OpCo GP LLC, the latter of which is a wholly owned subsidiary of Westlake Chemical Partners LP. Westlake Chemical Partners LPs predecessor reflects the assets, liabilities and results of operations of the ethylene business including the Contributed Assets. References to the Predecessor refers to the predecessor of Westlake Chemical Partners LP. References to Westlake or Parent refer to Westlake Chemical Corporation and its consolidated subsidiaries other than the Partnership, the OpCo and their respective subsidiaries.
The Predecessor generates revenue by selling ethylene and ethylene co-products to Westlake and external customers. The Predecessors primary ethylene co-products are chemical grade propylene, crude butadiene, pyrolysis gasoline and hydrogen. The Predecessor also has storage agreements and exchange agreements that allow access to customers who are not directly connected to the pipeline system. The Predecessor typically ships ethylene, propylene and hydrogen via pipeline systems that connect its ethylene plants to Westlake and numerous third-party customers. The Predecessor transports its butadiene and pyrolysis gasoline by rail or truck. The Predecessors operations consist of one reportable segment: Ethylene Production.
The Contributed Assets are as follows:
|
Lake Charles Ethylene Production Facilities . Two ethylene production facilities located in Lake Charles, Louisiana (Petro 1 and Petro 2, collectively referred to as Lake Charles Olefins), with a combined production capacity of 2.7 billion pounds of ethylene per year, primarily consumed by Westlake in the production of higher value-added chemicals including polyethylene (PE) and polyvinyl chloride (PVC). |
|
Calvert City Ethylene Production Facility . An ethylene production facility located in Calvert City, Kentucky (Calvert City Olefins), with a production capacity of 450 million pounds of ethylene per year, primarily consumed by Westlake in the production of higher value-added chemicals including PE and PVC. |
|
Longview Pipeline . A 200-mile common carrier ethylene pipeline that runs from Mont Belvieu, Texas to the Longview, Texas chemical complex, which includes Westlakes Longview production facility. The Longview Pipeline serves as the primary source of feedstock for the production of ethylene derivatives at Westlakes Longview production facility. |
In addition to the Contributed Assets activities, the Predecessors operations consist of the entire ethylene business, including but not limited to, procuring feedstock, managing inventory and commodity risk and transporting ethylene from manufacturing facilities.
Basis of Presentation
The Predecessor consists of the historical carve-out financial statements of Westlakes entire ethylene business. The accompanying unaudited interim combined carve-out financial statements were prepared in
F-42
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
accordance with the rules and regulations of the Securities and Exchange Commission (the SEC) for interim periods. Accordingly, certain information and footnotes required for complete financial statements under generally accepted accounting principles in the United States (U.S. GAAP) have not been included. These interim combined carve-out financial statements should be read in conjunction with the December 31, 2013 combined carve-out financial statements of the Predecessor and notes thereto, which are included elsewhere in this prospectus. These interim combined carve-out financial statements have been prepared in conformity with the accounting principles and practices as disclosed in the notes to the combined carve-out financial statements of the Predecessor for the fiscal year ended December 31, 2013.
In the opinion of management, the accompanying unaudited interim combined carve-out financial statements reflect all adjustments (consisting only of normal recurring adjustments) that are necessary for a fair statement of the Predecessors interim combined carve-out financial position as of March 31, 2014, its interim combined carve-out results of operations for the three months ended March 31, 2014 and 2013 and the changes in its interim combined carve-out cash position for the three months ended March 31, 2014 and 2013.
Results of operations and changes in cash position for the interim periods presented are not necessarily indicative of the results that will be realized for the fiscal year ending December 31, 2014 or any other interim period. The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities. Actual results could differ from those estimates.
The interim combined carve-out statements of operations also include expense allocations for certain functions historically performed by the Parent and allocated to the ethylene business, including allocations of general corporate expenses related to finance, legal, information technology, human resources, communications, ethics and compliance, shared services, employee benefits and incentives and stock-based compensation. These allocations were based primarily on the basis of direct usage when identifiable, with the remainder allocated on the basis of fixed assets, headcount or other measure. The Predecessors management believes the assumptions underlying the interim combined carve-out financial statements, including the assumptions regarding allocation of expenses from the Parent, are reasonable and reflect all costs related to the operations of the Predecessor, including those incurred by the Parent on behalf of the Predecessor. Nevertheless, the interim combined carve-out financial statements may not include all of the expenses that would have been incurred had the Predecessor been a stand-alone company during the periods presented and may not reflect its results of operations, financial position and cash flows had the Predecessor been a stand-alone company during the periods presented.
Westlake Chemical Corporation uses a centralized approach to the cash management and financing of its operations. The cash generated by the Predecessors operations is transferred to Westlake Chemical Corporation daily, and Westlake Chemical Corporation funds the Predecessors operating and investing activities as needed. Accordingly, the cash and cash equivalents generated by the Predecessors operations and held by Westlake Chemical Corporation were not presented in its interim combined carve-out financial statements for any of the periods presented. The Predecessor reflected transfers of cash to and from Westlake Chemical Corporations cash management system as a component of Net investment on its interim combined carve-out balance sheets, and as part of Net distributions to Parent on its interim combined carve-out statements of cash flows.
Supplemental Pro Forma Information
Staff Accounting Bulletin 1.B.3 requires that certain distributions to owners prior to or coincident with an initial public offering be considered as distributions in contemplation of that offering. Upon completion of the Partnerships proposed initial public offering, OpCo intends to distribute $ to Westlake to reimburse
F-43
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
Westlake for capital expenditures it incurred with respect to certain of the assets contributed to OpCo. The supplemental pro forma balance sheet as of March 31, 2014, gives pro forma effect to the assumed distribution as though it had been declared and was payable as of that date.
2. | Recent Accounting Pronouncements |
Revenue from Contracts with Customers
In May 2014, the Financial Accounting Standards Board (FASB) issued an accounting standards update on a comprehensive new revenue recognition standard that will supersede the existing revenue recognition guidance. The new accounting guidance creates a framework by which an entity will allocate the transaction price to separate performance obligations and recognize revenue when each performance obligation is satisfied. Under the new standard, entities will be required to use judgment and make estimates, including identifying performance obligations in a contract, estimating the amount of variable consideration to include in the transaction price, allocating the transaction price to each separate performance obligation and determining when an entity satisfies its performance obligations. The standard allows for either full retrospective adoption, meaning that the standard is applied to all of the periods presented with a cumulative catch-up as of the earliest period presented, or modified retrospective adoption, meaning the standard is applied only to the most current period presented in the financial statements with a cumulative catch-up as of the current period. The accounting standard will be effective for reporting periods beginning after December 15, 2016. The Predecessor is in the process of evaluating the impact that the new accounting guidance will have on its combined carve-out financial position, results of operations and cash flows.
3. | Accounts Receivable |
Accounts receivable consist of the following:
March 31,
2014 |
December 31,
2013 |
|||||||
Trade customers |
$ | 54,995 | $ | 73,594 | ||||
Allowance for doubtful accounts |
(2,045 | ) | (2,105 | ) | ||||
|
|
|
|
|||||
52,950 | 71,489 | |||||||
Other |
2,039 | 323 | ||||||
|
|
|
|
|||||
Accounts receivable, net |
$ | 54,989 | $ | 71,812 | ||||
|
|
|
|
4. | Inventories |
Inventories consist of the following:
March 31,
2014 |
December 31,
2013 |
|||||||
Finished products |
$ | 21,686 | $ | 21,330 | ||||
Feedstock, additives and chemicals |
49,185 | 80,407 | ||||||
Materials and supplies |
14,799 | 14,640 | ||||||
|
|
|
|
|||||
Inventories |
$ | 85,670 | $ | 116,377 | ||||
|
|
|
|
5. | Property, Plant and Equipment |
As of March 31, 2014, the Predecessor had property, plant and equipment, net totaling $794,176. The Predecessor assesses these assets for impairment whenever events or changes in circumstances indicate that the
F-44
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
carrying amount of an asset may not be recoverable, including when negative conditions such as significant current or projected operating losses exist. Other factors considered by the Predecessor when determining if an impairment assessment is necessary include, but are not limited to, significant changes or projected changes in supply and demand fundamentals (which would have a negative impact on operating rates or margins), new technological developments, new competitors with significant raw material or other cost advantages, adverse changes associated with the U.S. and world economies and uncertainties associated with governmental actions. Long-lived assets assessed for impairment are grouped at the lowest level for which identifiable cash flows are largely independent of the cash flows of other assets and liabilities.
Depreciation expense on property, plant and equipment of $14,484 and $13,689 is included in cost of sales in the interim combined carve-out statements of operations for the three months ended March 31, 2014 and 2013, respectively.
6. | Other Assets |
Amortization expense on other assets of $4,530 and $2,346 is included in the interim combined carve-out statements of operations for the three months ended March 31, 2014 and 2013, respectively.
7. | Related Party Transactions |
Cash Management Program
The Predecessor participates in Westlakes centralized cash management and funding system. The Predecessors working capital and capital expenditure requirements have historically been part of the corporate-wide cash management program for Westlake. As part of such program, Westlake sweeps all cash generated by the Predecessors operations daily, and cash needed to meet the Predecessors operating and investing needs is provided by Westlake as necessary. Transfers of cash to and from Westlakes cash management system are reflected as a component of Net investment on the interim combined carve-out balance sheets, and as part of Net Distributions to Parent on the interim combined carve-out statements of cash flows. No interest income has been recognized on net cash swept to the Parent since, historically, the Predecessor has not charged interest on intercompany balances other than the intercompany promissory notes described in Note 8.
All significant intercompany transactions between the Predecessor and Westlake have been included in these interim combined carve-out financial statements and are considered to be effectively settled for cash in the interim combined carve-out financial statements at the time the transaction is recorded. The total net effect of the settlement of these intercompany transactions is reflected in the interim combined carve-out statements of cash flow as a financing activity and in the interim combined carve-out balance sheets as Net investment.
Affiliate Transactions
During the ordinary course of conducting its business, the Predecessor enters into transactions with affiliates related to the production and sale of ethylene and ethylene co-products.
The Predecessor is part of the consolidated operations of Westlake, and a majority of its revenue is derived from transactions with Westlake and its affiliates. The prices used for these related party revenue transactions may be different than prices the Predecessor might have received had they been transacted with third parties. The gross profit recognized on net ethylene sales to Westlake was $182,325 and $180,247 for the three months ended March 31, 2014 and 2013, respectively.
F-45
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
Historically, Westlake and its affiliates performed certain services which directly and indirectly supported the Predecessors operations. Personnel costs incurred by Westlake and its affiliates on the Predecessors behalf were charged to the Predecessor and included in either selling, general and administrative expenses or cost of sales, depending on the nature of the employees role in its operations. Personnel costs included in the Predecessors cost of sales were charged to the Predecessor based on actual payroll and other costs incurred by Westlake for employees who directly support the Predecessors operations. Westlake also performed certain general corporate functions for the Predecessor related to finance, legal, information technology, human resources, communications, ethics and compliance and other shared services. During the three months ended March 31, 2014 and 2013, the Predecessor was allocated $5,322 and $5,019, respectively, of indirect general corporate expenses incurred by Westlake. The costs of these general corporate functions were allocated to the Predecessor primarily on the basis of fixed assets and are included within selling, general and administrative expenses. These allocated corporate costs relate primarily to the wages and benefits of Westlake employees that support the Predecessors operations. Expenses incurred by Westlake and its affiliates on the Predecessors behalf have been allocated to the Predecessor on the basis of direct usage when identifiable. Where costs incurred on the Predecessors behalf could not practically be determined by specific identification, these costs were primarily allocated to the Predecessor on the basis of fixed assets, headcount or other measure. The expense allocations have been determined on a basis that both the Predecessor and Westlake consider to be a reasonable reflection of the utilization of services provided or the benefit received by the Predecessor during the periods presented. The allocations may not, however, fully reflect the expenses the Predecessor would have incurred as a separate, publicly traded company for the periods presented. Additionally, included in cost of sales and general, selling and administrative expenses, are direct employee costs. These employees performing services on behalf of the Predecessors operations are employees of Westlake Management Services, Inc., a subsidiary of Westlake. Included in the table below within cost of sales and selling, general and administrative are costs of such employees. In addition to the expenses that are incurred by the Parent on behalf of the Predecessor that are included in the table below, the Predecessor also incurs expenses externally from unrelated parties.
The following table shows revenues and direct and indirect expenses, including personnel costs described above, incurred by Westlake on the Predecessors behalf that are reflected in its interim combined carve-out statements of operations.
Three Months Ended March 31, | ||||||||
2014 | 2013 | |||||||
Net ethylene salesWestlake |
$ | 383,927 | $ | 414,509 | ||||
Cost of salesWestlake employees |
16,587 | 15,431 | ||||||
Selling, general and administrative |
6,476 | 5,687 | ||||||
Interest expenseWestlake |
3,591 | 950 |
General
The Predecessor, together with other subsidiaries of the Parent not included in these interim combined carve-out financial statements, are guarantors under the Parents revolving credit facility and the indentures governing its senior notes. As of March 31, 2014, the Parent had no borrowings outstanding under its revolving credit facility and $754,000 outstanding under its senior notes (less the unamortized discount of $980).
F-46
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
8. | Promissory Notes Payable to Westlake |
Long-term debt payable to Westlake consists of the following:
March 31,
2014 |
December 31,
2013 |
|||||||
2006 Pipeline Note (variable interest rate of prime plus 0.25%, original scheduled maturity of November 30, 2016) |
$ | 14,400 | $ | 14,400 | ||||
2013 Promissory Notes (variable interest rate of prime plus 1.5%, original scheduled maturity of August 1, 2023) |
287,957 | 238,573 | ||||||
|
|
|
|
|||||
$ | 302,357 | $ | 252,973 | |||||
|
|
|
|
In 2013, three intercompany promissory notes were issued for capital expenditures incurred by the Parent on behalf of the Predecessors operations (together, the 2013 Promissory Notes). For additional information on the 2013 Promissory Notes, please refer to Note 9 (Promissory Notes Payable to Westlake) to the audited combined carve-out financial statements for the year ended December 31, 2013 included elsewhere in this prospectus. Proceeds drawn under the 2013 Promissory Notes during the three months ended March 31, 2014 were used to fund capital expenditures at the Predecessors ethylene plants.
9. | Derivative Instruments |
Commodity Risk Management
The Predecessor uses derivative instruments to reduce price volatility risk on raw materials and products as a substantial portion of its raw materials and products are commodities whose prices fluctuate as market supply and demand fundamentals change. Business strategies to protect against such instability include ethylene product feedstock. The Predecessor does not use derivative instruments to engage in speculative activities.
For derivative instruments that are designated and qualify as fair value hedges, the gains or losses on the derivative instruments, as well as the offsetting losses or gains on the hedged items attributable to the hedged risk, were included in cost of sales in the interim combined carve-out statement of operations for the three months ended March 31, 2013. The Predecessor had no derivative instruments that were designated as fair value hedges for the three months ended March 31, 2014.
Gains and losses from changes in the fair value of derivative instruments that are not designated as hedging instruments were included in gross profit in the interim combined carve-out statements of operations for the three months ended March 31, 2014 and 2013.
The exposure on commodity derivatives used for price risk management includes the risk that the counterparty will not pay if the market declines below the established fixed price. In such case, the Predecessor would lose the benefit of the derivative differential on the volume of the commodities covered. In any event, the Predecessor would continue to receive the market price on the actual volume hedged. The Predecessor also bears the risk that it could lose the benefit of market improvements over the fixed derivative price for the term and volume of the derivative instruments (as such improvements would accrue to the benefit of the counterparty).
F-47
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
The fair values of derivative instruments in the Predecessors combined carve-out balance sheets were as follows:
Derivative Assets |
||||||||||
Fair Value as of | ||||||||||
Balance Sheet Location |
March 31,
2014 |
December 31,
2013 |
||||||||
Not designated as hedging instruments |
||||||||||
Commodity forward contracts |
Accounts receivable, net | $ | 248 | $ | 296 | |||||
|
|
|
|
|||||||
Total derivative assets |
$ | 248 | $ | 296 | ||||||
|
|
|
|
Derivative Liabilities |
||||||||||
Fair Value as of | ||||||||||
Balance Sheet Location |
March 31,
2014 |
December 31,
2013 |
||||||||
Not designated as hedging instruments |
||||||||||
Commodity forward contracts |
Accrued liabilities | $ | 54 | $ | 176 | |||||
|
|
|
|
|||||||
Total derivative liabilities |
$ | 54 | $ | 176 | ||||||
|
|
|
|
The following tables reflect the impact of derivative instruments designated as fair value hedges and the related hedged item on the Predecessors interim combined carve-out statements of operations. For the three months ended March 31, 2013, there was no material ineffectiveness with regard to the Predecessors qualifying fair value hedges.
Location of Gain (Loss) Recognized in Income on Derivative |
Three Months Ended March 31, | |||||||||
Derivatives in Fair Value Hedging Relationships |
2014 | 2013 | ||||||||
Commodity forward contracts |
Cost of sales | $ | | $ | (1,643 | ) | ||||
|
|
|
|
Location of Gain (Loss) Recognized in Income on Hedged Items |
Three Months Ended March 31, | |||||||||
Hedged Items in Fair Value Hedging Relationships |
2014 | 2013 | ||||||||
Firm commitment designated as the hedged item |
Cost of sales | $ | | $ | 1,395 | |||||
|
|
|
|
The impact of derivative instruments that have not been designated as hedges on the Predecessors interim combined carve-out statements of operations were as follows:
Location of Gain (Loss) Recognized in Income on Derivative |
Three Months Ended March 31, | |||||||||
Derivatives Not Designated as Hedging Instruments |
2014 | 2013 | ||||||||
Commodity forward contracts |
Gross profit | $ | (611 | ) | $ | 7,335 | ||||
|
|
|
|
See Note 10 for the fair value of the Predecessors derivative instruments.
F-48
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
10. | Fair Value Measurements |
Fair value is a market-based measurement that should be determined based on assumptions (inputs) that market participants would use in pricing an asset or liability. Inputs may be observable or unobservable, and valuation techniques used to measure fair value should maximize the use of relevant observable inputs and minimize the use of unobservable inputs. Accordingly, the accounting guidance for fair value measurements establishes a hierarchical disclosure framework that ranks the quality and reliability of information used to determine fair values. The hierarchy is associated with the level of pricing utilized in measuring fair value and defines three levels of inputs to the fair value measurement processquoted prices are the most reliable valuation inputs, whereas model values that include inputs based on unobservable data are the least reliable. Each fair value measurement must be assigned to a level corresponding to the lowest level input that is significant to the fair value measurement in its entirety.
Under the accounting guidance for fair value measurements, inputs used to measure fair value are classified in one of three levels:
Level 1Quoted market prices in active markets for identical assets and liabilities.
Level 2Observable market-based inputs or unobservable inputs that are corroborated by market data.
Level 3Unobservable inputs that are not corroborated by market data.
The Predecessor reports certain assets and liabilities at fair value, which is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (exit price). The following tables summarize, by level within the fair value hierarchy, the Predecessors assets and liabilities that were accounted for at fair value on a recurring basis:
March 31, 2014 | ||||||||||||
Level 1 | Level 2 | Total | ||||||||||
Derivative instruments |
||||||||||||
Risk management assetsCommodity forward contracts |
$ | | $ | 248 | $ | 248 | ||||||
Risk management liabilitiesCommodity forward contracts |
| (54 | ) | (54 | ) |
December 31, 2013 | ||||||||||||
Level 1 | Level 2 | Total | ||||||||||
Derivative instruments |
||||||||||||
Risk management assetsCommodity forward contracts |
$ | 48 | $ | 248 | $ | 296 | ||||||
Risk management liabilitiesCommodity forward contracts |
| (176 | ) | (176 | ) |
The Level 2 measurements for the Predecessors commodity contracts are derived using forward curves supplied by industry recognized and unrelated third-party services. There were no transfers in and out of Levels 1 and 2 of the fair value hierarchy for the three months ended March 31, 2014 and 2013.
In addition to the assets and liabilities above, the Predecessor has other financial assets and liabilities subject to fair value measures. These financial assets and liabilities include accounts receivable, net, accounts payable and long-term debt payable to Westlake, all of which are recorded at carrying value. The amounts reported in the combined carve-out balance sheets for accounts receivable, net and accounts payable approximate their fair value due to the short maturities of these instruments. The carrying and fair values of the Predecessors long-term debt at March 31, 2014 and December 31, 2013 are summarized in the table below. The Predecessors long-term debt
F-49
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
instruments are related party promissory notes issued to wholly owned subsidiaries of Westlake. The fair value of these notes is determined based on the present value of expected future cash flows using a discounted cash flow methodology. Because the Predecessors valuation methodology used for long-term debt instruments requires the use of significant unobservable inputs, the inputs used to measure the fair value of the Predecessors long-term debt are classified as Level 3 within the fair value hierarchy. Inputs used to estimate the fair values of the Predecessors long-term debt include the selection of an appropriate discount rate.
March 31,
2014 |
December 31,
2013 |
|||||||||||||||
Carrying Value | Fair Value | Carrying Value | Fair Value | |||||||||||||
2006 Pipeline |
14,400 | 14,082 | 14,400 | 13,922 | ||||||||||||
2013 Promissory Notes |
287,957 | 287,957 | 238,573 | 238,573 |
11. | Income Taxes |
The Predecessors operating results have been included in Westlake Chemical Corporations consolidated U.S. federal and state income tax returns. Amounts presented in these interim combined carve-out financial statements related to income taxes have been determined on a separate tax return basis, and the Predecessors contribution to Westlake Chemical Corporations net operating losses and tax credits have been included in these financial statements. These amounts may not reflect tax positions taken or to be taken by Westlake Chemical Corporation and have been available for use by Westlake Chemical Corporation and may remain with Westlake Chemical Corporation after the separation from Westlake Chemical Corporation.
The effective income tax rate was 35.2% for the three months ended March 31, 2014. The effective income tax rate for the 2014 period was above the U.S. federal statutory rate of 35.0% primarily due to state income taxes, mostly offset by the domestic manufacturing deduction. The effective income tax rate was 35.4% for the three months ended March 31, 2013. The effective income tax rate for the 2013 period was above the U.S. federal statutory rate of 35.0% primarily due to state income taxes, mostly offset by the domestic manufacturing deduction.
12. | Supplemental Information |
Non-cash Operating Activity
The Predecessor settled $3,342 and $817 of its total interest expense incurred on related party notes as an addition to principal on promissory notes outstanding to Westlake for the three months ended March 31, 2014 and 2013, respectively. Interest incurred on the 2013 Promissory Notes discussed in Note 8 may be settled through additions to principal outstanding, at the Predecessors option. For additional information on the 2013 Promissory Notes, please refer to Note 9 (Promissory Notes Payable to Westlake) to the audited combined carve-out financial statements for the year ended December 31, 2013 included elsewhere in this prospectus.
Non-cash Investing Activity
Change in capital expenditure accrual increasing additions to property, plant and equipment was $5,264 for the three months ended March 31, 2014. Change in capital expenditure accrual reducing additions to property, plant and equipment was $3,133 for the three months ended March 31, 2013.
F-50
WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
Non-cash Financing Activity
Related party notes payable to Westlake of $238,600 were deemed settled through net parent investment in 2013. The non-cash settlement was recorded as an increase in Westlakes net investment in the Predecessor. No cash was transferred in connection with the deemed settlement of these notes. See Note 9 (Promissory Notes Payable to Westlake) to the audited combined carve-out financial statements for the year ended December 31, 2013 included elsewhere in this prospectus for a description of the intercompany debt settled in 2013 between the Predecessor and Westlake.
13. | Major Customer and Concentration of Credit Risk |
During the three months ended March 31, 2014 and 2013, Westlake accounted for approximately 69% and 83%, respectively, of the Predecessors net sales. Historically, the Predecessor sold ethylene to Westlake and the resulting related party receivables were settled immediately through net investment.
14. | Commitments and Contingencies |
The Predecessor is subject to environmental laws and regulations that can impose civil and criminal sanctions and that may require it to mitigate the effects of contamination caused by the release or disposal of hazardous substances into the environment. Under one law, an owner or operator of property may be held strictly liable for remediating contamination without regard to whether that person caused the contamination, and without regard to whether the practices that resulted in the contamination were legal at the time they occurred. Because several of the Predecessors production sites have a history of industrial use, it is impossible to predict precisely what effect these legal requirements will have on the Predecessor.
Contract Disputes with Goodrich and PolyOne . In connection with the 1990 and 1997 acquisitions of the Goodrich Corporation (Goodrich) chemical manufacturing complex in Calvert City, Goodrich agreed to indemnify the Predecessor for any liabilities related to preexisting contamination at the complex. For its part, the Predecessor agreed to indemnify Goodrich for post-closing contamination caused by the Predecessors operations. The soil and groundwater at the complex, which does not include the Predecessors nearby PVC facility, had been extensively contaminated under Goodrichs operations. In 1993, Goodrich spun off the predecessor of PolyOne Corporation (PolyOne), and that predecessor assumed Goodrichs indemnification obligations relating to preexisting contamination.
In 2003, litigation arose among the Predecessor, Goodrich and PolyOne with respect to the allocation of the cost of remediating contamination at the site. The parties settled this litigation in December 2007 and PolyOne agreed to assume 100% of responsibility for site contamination subject to the right to seek reallocation through an arbitration process. By letter dated March 16, 2010, PolyOne notified Westlake that it was initiating an arbitration proceeding under the settlement agreement. This arbitration is currently stayed.
State Administrative Proceedings . There are several administrative proceedings in Kentucky pertaining to the Calvert City site involving Goodrichs Resource Conservation and Recovery Act permit which requires Goodrich to remediate contamination at the site. Site contamination is currently being addressed under the U.S. Comprehensive Environmental Response, Compensation, and Liability Act by the Predecessor, Goodrich and PolyOne pursuant to an Administrative Settlement with the U.S. Environmental Protection Agency which requires the parties to conduct a remedial investigation and feasibility study. As a result, the state proceedings are currently stayed and corrective action under the permit has been suspended.
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WESTLAKE CHEMICAL PARTNERS LP PREDECESSOR
NOTES TO COMBINED CARVE-OUT FINANCIAL STATEMENTS(Continued)
(Unaudited)
(in thousands of dollars)
Monetary Relief . Except as noted above with respect to the settlement of the contract litigation among the Predecessor, Goodrich and PolyOne, there has been no determination of responsibility or any allocation of the costs of remediation among the various parties that are involved in the judicial and administrative proceedings discussed above. At this time, the Predecessor is not able to estimate the loss or reasonable possible loss, if any, on the Predecessors interim combined carve-out financial statements that could result from the resolution of these proceedings. Any cash expenditures that the Predecessor might incur in the future with respect to the remediation of contamination at the complex would likely be spread out over an extended period. As a result, the Predecessor believes it is unlikely that any remediation costs allocable to it will be material in terms of expenditures made in any individual reporting period.
Westlake has agreed to indemnify OpCo for any liabilities related to pre-existing contamination at the Calvert City plant, and OpCo has agreed to indemnity Westlake for any post-closing contamination caused by its operations of the Calvert City plant.
In addition to the matters described above, the Predecessor is involved in various routine legal proceedings incidental to the conduct of its business. The Predecessor does not believe that any of these routine legal proceedings will have a material adverse effect on its financial condition, results of operations or cash flows.
15. | Subsequent Events |
Subsequent events have been evaluated for recognition through May 6, 2014; the issuance date of the Parents consolidated interim financial statements. Subsequent events have been evaluated for disclosure through June 6, 2014, the issuance date of these interim combined carve-out financial statements. There have been no subsequent events to disclose as of this date.
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Appendix A
FIRST AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WESTLAKE CHEMICAL PARTNERS LP
ARTICLE I
DEFINITIONS
A-i
Section 5.9 |
Splits and Combinations | A-32 | ||||
Section 5.10 |
Fully Paid and Non-Assessable Nature of Limited Partner Interests | A-32 | ||||
Section 5.11 |
Issuance of Common Units in Connection with Reset of Incentive Distribution Rights | A-33 | ||||
ARTICLE VI ALLOCATIONS AND DISTRIBUTIONS |
|
|||||
Section 6.1 |
Allocations for Capital Account Purposes | A-34 | ||||
Section 6.2 |
Allocations for Tax Purposes | A-43 | ||||
Section 6.3 |
Distributions; Characterization of Distributions; Distributions to Record Holders | A-45 | ||||
Section 6.4 |
Distributions from Operating Surplus | A-45 | ||||
Section 6.5 |
Distributions from Capital Surplus | A-46 | ||||
Section 6.6 |
Adjustment of Target Distribution Levels | A-47 | ||||
Section 6.7 |
Special Provisions Relating to the Holders of Subordinated Units and Affiliate Retained Units | A-47 | ||||
Section 6.8 |
Special Provisions Relating to the Holders of IDR Reset Common Units | A-47 | ||||
Section 6.9 |
Entity-Level Taxation | A-48 | ||||
ARTICLE VII MANAGEMENT AND OPERATION OF BUSINESS |
|
|||||
Section 7.1 |
Management | A-48 | ||||
Section 7.2 |
Replacement of Fiduciary Duties | A-50 | ||||
Section 7.3 |
Certificate of Limited Partnership | A-50 | ||||
Section 7.4 |
Restrictions on the General Partners Authority | A-50 | ||||
Section 7.5 |
Reimbursement of the General Partner | A-51 | ||||
Section 7.6 |
Outside Activities | A-51 | ||||
Section 7.7 |
Indemnification | A-52 | ||||
Section 7.8 |
Liability of Indemnitees | A-53 | ||||
Section 7.9 |
Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties | A-54 | ||||
Section 7.10 |
Other Matters Concerning the General Partner | A-56 | ||||
Section 7.11 |
Purchase or Sale of Partnership Interests | A-56 | ||||
Section 7.12 |
Registration Rights of the General Partner and its Affiliates | A-56 | ||||
Section 7.13 |
Reliance by Third Parties | A-58 | ||||
ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS |
|
|||||
Section 8.1 |
Records and Accounting | A-58 | ||||
Section 8.2 |
Fiscal Year | A-59 | ||||
Section 8.3 |
Reports | A-59 | ||||
ARTICLE IX TAX MATTERS |
|
|||||
Section 9.1 |
Tax Returns and Information | A-59 | ||||
Section 9.2 |
Tax Elections | A-60 | ||||
Section 9.3 |
Tax Controversies | A-60 | ||||
Section 9.4 |
Withholding; Tax Payments | A-60 |
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ARTICLE X ADMISSION OF PARTNERS |
|
|||||
Section 10.1 |
Admission of Limited Partners | A-60 | ||||
Section 10.2 |
Admission of Successor General Partner | A-61 | ||||
Section 10.3 |
Amendment of Agreement and Certificate of Limited Partnership | A-61 | ||||
ARTICLE XI WITHDRAWAL OR REMOVAL OF PARTNERS |
|
|||||
Section 11.1 |
Withdrawal of the General Partner | A-61 | ||||
Section 11.2 |
Removal of the General Partner | A-63 | ||||
Section 11.3 |
Interest of Departing General Partner and Successor General Partner | A-63 | ||||
Section 11.4 |
Conversion of Subordinated Units | A-64 | ||||
Section 11.5 |
Withdrawal of Limited Partners | A-65 | ||||
ARTICLE XII DISSOLUTION AND LIQUIDATION |
|
|||||
Section 12.1 |
Dissolution | A-65 | ||||
Section 12.2 |
Continuation of the Business of the Partnership After Dissolution | A-65 | ||||
Section 12.3 |
Liquidator | A-66 | ||||
Section 12.4 |
Liquidation | A-66 | ||||
Section 12.5 |
Cancellation of Certificate of Limited Partnership | A-67 | ||||
Section 12.6 |
Return of Contributions | A-67 | ||||
Section 12.7 |
Waiver of Partition | A-67 | ||||
Section 12.8 |
Capital Account Restoration | A-67 | ||||
ARTICLE XIII AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE |
|
|||||
Section 13.1 |
Amendments to be Adopted Solely by the General Partner | A-67 | ||||
Section 13.2 |
Amendment Procedures | A-68 | ||||
Section 13.3 |
Amendment Requirements | A-68 | ||||
Section 13.4 |
Special Meetings | A-69 | ||||
Section 13.5 |
Notice of a Meeting | A-70 | ||||
Section 13.6 |
Record Date | A-70 | ||||
Section 13.7 |
Postponement and Adjournment | A-70 | ||||
Section 13.8 |
Waiver of Notice; Approval of Meeting; Approval of Minutes | A-70 | ||||
Section 13.9 |
Quorum and Voting | A-71 | ||||
Section 13.10 |
Conduct of a Meeting | A-71 | ||||
Section 13.11 |
Action Without a Meeting | A-71 | ||||
Section 13.12 |
Right to Vote and Related Matters | A-72 | ||||
Section 13.13 |
Voting of Incentive Distribution Rights | A-72 | ||||
ARTICLE XIV MERGER OR CONSOLIDATION |
|
|||||
Section 14.1 |
Authority | A-73 | ||||
Section 14.2 |
Procedure for Merger or Consolidation | A-73 | ||||
Section 14.3 |
Approval by Limited Partners | A-74 | ||||
Section 14.4 |
Certificate of Merger | A-75 | ||||
Section 14.5 |
Effect of Merger or Consolidation | A-75 |
A-iii
ARTICLE XV RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS |
|
|||||
Section 15.1 |
Right to Acquire Limited Partner Interests | A-75 | ||||
ARTICLE XVI GENERAL PROVISIONS |
|
|||||
Section 16.1 |
Addresses and Notices; Written Communications | A-76 | ||||
Section 16.2 |
Further Action | A-77 | ||||
Section 16.3 |
Binding Effect | A-77 | ||||
Section 16.4 |
Integration | A-77 | ||||
Section 16.5 |
Creditors | A-77 | ||||
Section 16.6 |
Waiver | A-77 | ||||
Section 16.7 |
Third-Party Beneficiaries | A-77 | ||||
Section 16.8 |
Counterparts | A-77 | ||||
Section 16.9 |
Applicable Law; Forum, Venue and Jurisdiction; Waiver of Trial by Jury; Attorney Fees | A-78 | ||||
Section 16.10 |
Invalidity of Provisions | A-79 | ||||
Section 16.11 |
Consent of Partners | A-79 | ||||
Section 16.12 |
Facsimile Signatures | A-79 |
A-iv
FIRST AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF WESTLAKE CHEMICAL PARTNERS LP
THIS FIRST AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF WESTLAKE CHEMICAL PARTNERS LP dated as of , 2014, is entered into by and between Westlake Chemical Partners GP LLC, a Delaware limited liability company, as the General Partner, and Westlake International Services Corporation, a Delaware corporation, as the Organizational Limited Partner, together with any other Persons who become Partners in the Partnership or parties hereto as provided herein. In consideration of the covenants, conditions and agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions . The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
Additional Book Basis means, with respect to any Adjusted Property, the portion of the Carrying Value of such Adjusted Property that is attributable to positive adjustments made to such Carrying Value, as determined in accordance with the provisions set forth below in this definition of Additional Book Basis. For purposes of determining the extent to which Carrying Value constitutes Additional Book Basis:
(a) Any negative adjustment made to the Carrying Value of an Adjusted Property as a result of either a Book-Down Event or a Book-Up Event shall first be deemed to offset or decrease that portion of the Carrying Value of such Adjusted Property that is attributable to any prior positive adjustments made thereto pursuant to a Book-Up Event or Book-Down Event.
(b) If Carrying Value that constitutes Additional Book Basis is reduced as a result of a Book-Down Event (an Additional Book Basis Reduction ) and the Carrying Value of other property is increased as a result of such Book-Down Event (a Carrying Value Increase ), then any such Carrying Value Increase shall be treated as Additional Book Basis in an amount equal to the lesser of (i) the amount of such Carrying Value Increase and (ii) the amount determined by proportionately allocating the Carrying Value Increases resulting from such Book-Down Event the lesser of (A) the aggregate Additional Book Basis Reductions resulting from such Book-Down Event and (B) the amount by which the Aggregate Remaining Net Positive Adjustments after such Book-Down Event exceed the remaining Additional Book Basis attributable to all of the Partnerships Adjusted Property after such Book-Down Event (determined without regard to the application of this clause (b) to such Book-Down Event).
Additional Book Basis Derivative Items means any Book Basis Derivative Items that are computed with reference to Additional Book Basis. To the extent that the Additional Book Basis attributable to all of the Partnerships Adjusted Property as of the beginning of any taxable period exceeds the Aggregate Remaining Net Positive Adjustments as of the beginning of such period (the Excess Additional Book Basis ), the Additional Book Basis Derivative Items for such period shall be reduced by the amount that bears the same ratio to the amount of Additional Book Basis Derivative Items determined without regard to this sentence as the Excess Additional Book Basis bears to the Additional Book Basis as of the beginning of such period. With respect to a Disposed of Adjusted Property, the Additional Book Basis Derivative Items shall be the amount of Additional Book Basis taken into account in computing gain or loss from the disposition of such Disposed of Adjusted Property; provided that the provisions of the immediately preceding sentence shall apply to the determination of the Additional Book Basis Derivative Items attributable to Disposed of Adjusted Property.
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Adjusted Capital Account means, with respect to any Partner, the balance in such Partners Capital Account at the end of each taxable period of the Partnership, after giving effect to the following adjustments:
(a) Credit to such Capital Account any amounts which such Partner is (i) obligated to restore under the standards set by Treasury Regulation Section 1.704-1(b)(2)(ii)(c) or (ii) deemed obligated to restore pursuant to the penultimate sentences of Treasury Regulation Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debit to such Capital Account the items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6). The foregoing definition of Adjusted Capital Account is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith. The Adjusted Capital Account of a Partner in respect of any Partnership Interest shall be the amount that such Adjusted Capital Account would be if such Partnership Interest were the only interest in the Partnership held by such Partner from and after the date on which such Partnership Interest was first issued.
Adjusted Operating Surplus means, with respect to any period, (a) Operating Surplus generated with respect to such period; (b) less (i) the amount of any net increase during such period in Working Capital Borrowings (or the Partnerships proportionate share of any net increase in Working Capital Borrowings in the case of Subsidiaries that are not wholly owned); (ii) the amount of any net decrease during such period in cash reserves (or the Partnerships proportionate share of any net decrease in cash reserves in the case of Subsidiaries that are not wholly owned) for Operating Expenditures not relating to an Operating Expenditure made during such period; and (iii) the amount of any expenditures during such period using the proceeds of the Initial Offering as described under Use of Proceeds in the Registration Statement that would constitute Operating Expenditures in the absence of clause (c)(vi) of the definition thereof; and (c) plus (i) the amount of any net decrease during such period in Working Capital Borrowings (or the Partnerships proportionate share of any net decrease in Working Capital Borrowings in the case of Subsidiaries that are not wholly owned); (ii) the amount of any net increase during such period in cash reserves (or the Partnerships proportionate share of any net increase in cash reserves in the case of Subsidiaries that are not wholly owned) for Operating Expenditures required by any debt instrument for the repayment of principal, interest or premium; and (iii) the amount of any net decrease made in subsequent periods in cash reserves for Operating Expenditures initially established during such period to the extent such decrease results in a reduction in Adjusted Operating Surplus in subsequent periods pursuant to clause (b)(ii) above. Adjusted Operating Surplus does not include that portion of Operating Surplus included in clause (a)(i) of the definition of Operating Surplus. To the extent that disbursements made, cash received or cash reserves established, increased or reduced after the end of a period are included in the determination of Operating Surplus for such period (as contemplated by the proviso in the definition of Operating Surplus) such disbursements, cash receipts and changes in cash reserves shall be deemed to have occurred in such period (and not in any future period) for purposes of calculating increases or decreases in Working Capital Borrowings or cash reserves during such period.
Notwithstanding the foregoing, if, for any year, there is a Production Shortfall or a Cost Overrun (each as defined in the Ethylene Supply Agreement), an amount equal to the Shortfall Amount (as defined in the Ethylene Supply Agreement) shall be added to Adjusted Operating Surplus for such year, allocated among the Quarters of such year in a manner determined appropriate by the General Partner. Any amount received by OpCo in respect of a Prior Year Adjustment (as defined in the Ethylene Supply Agreement) shall be deducted from Adjusted Operating Surplus in the Quarter in which such amount is received.
Adjusted Property means any property the Carrying Value of which has been adjusted pursuant to Section 5.5(d).
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Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
Affiliate Retained Units means Units held as of the end of the applicable calendar year by the General Partner or any Affiliate of the General Partner.
Aggregate Quantity of IDR Reset Common Units is defined in Section 5.11(a).
Aggregate Remaining Net Positive Adjustments means, as of the end of any taxable period, the sum of the Remaining Net Positive Adjustments of all the Partners.
Agreed Allocation means any allocation, other than a Required Allocation, of an item of income, gain, loss or deduction pursuant to the provisions of Section 6.1, including a Curative Allocation (if appropriate to the context in which the term Agreed Allocation is used).
Agreed Value of (a) a Contributed Property means the fair market value of such property at the time of contribution and (b) an Adjusted Property means the fair market value of such Adjusted Property on the date of the Revaluation Event, in each case as determined by the General Partner.
Agreement means this First Amended and Restated Agreement of Limited Partnership of Westlake Chemical Partners LP, as it may be amended, supplemented or restated from time to time.
Associate means, when used to indicate a relationship with any Person, (a) any corporation or organization of which such Person is a director, officer, manager, general partner or managing member or is, directly or indirectly, the owner of 20% or more of any class of voting stock or other voting interest; (b) any trust or other estate in which such Person has at least a 20% beneficial interest or as to which such Person serves as trustee or in a similar fiduciary capacity; and (c) any relative or spouse of such Person, or any relative of such spouse, who has the same principal residence as such Person.
Bad Faith means, with respect to any determination, action or omission, of any Person, board or committee, that such Person, board or committee reached such determination, or engaged in or failed to engage in such act or omission, with the belief that such determination, action or omission was adverse to the interest of the Partnership.
Board of Directors means the board of directors of the General Partner.
Book Basis Derivative Items means any item of income, deduction, gain or loss that is computed with reference to the Carrying Value of an Adjusted Property (e.g., depreciation, depletion, or gain or loss with respect to an Adjusted Property).
Book-Down Event means a Revaluation Event that gives rise to a Net Termination Loss.
Book-Tax Disparity means with respect to any item of Contributed Property or Adjusted Property, as of the date of any determination, the difference between the Carrying Value of such Contributed Property or Adjusted Property and the adjusted basis thereof for U.S. federal income tax purposes as of such date. A Partners share of the Partnerships Book-Tax Disparities in all of its Contributed Property and Adjusted Property
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will be reflected by the difference between such Partners Capital Account balance as maintained pursuant to Section 5.5 and the hypothetical balance of such Partners Capital Account computed as if it had been maintained strictly in accordance with U.S. federal income tax accounting principles.
Book-Up Event means a Revaluation Event that gives rise to a Net Termination Gain.
Business Day means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the U.S. or the State of Texas shall not be regarded as a Business Day.
Capital Account means the capital account maintained for a Partner pursuant to Section 5.5. The Capital Account of a Partner in respect of any Partnership Interest shall be the amount that such Capital Account would be if such Partnership Interest were the only interest in the Partnership held by such Partner from and after the date on which such Partnership Interest was first issued.
Capital Contribution means any cash, cash equivalents or the Net Agreed Value of Contributed Property that a Partner contributes to the Partnership or that is contributed or deemed contributed to the Partnership on behalf of a Partner (including, in the case of an underwritten offering of Units, the amount of any underwriting discounts or commissions).
Capital Improvement means any (a) addition or improvement to the assets owned by any Group Member, (b) acquisition (through an asset acquisition, merger, stock acquisition or other form of investment) of existing, or the construction or development of new, assets by any Group Member, or (c) capital contribution by a Group Member to a Person that is not a Subsidiary of a Group Member, in which a Group Member has, or after such capital contribution will have, an equity interest to fund the Group Members pro rata share of the cost of the acquisition of existing, or the construction or development of new or the improvement of existing, assets, in each case if such addition, improvement, acquisition, construction or development is made to increase the long-term operating capacity or net income of the Partnership Group from the long-term operating capacity or net income of the Partnership Group, in the case of clauses (a) and (b), or such Person, in the case of clause (c), from that existing immediately prior to such addition, improvement, acquisition or construction.
Capital Surplus means cash and cash equivalents distributed by the Partnership in excess of Operating Surplus, as described in Section 6.3(b).
Carrying Value means (a) with respect to a Contributed Property or an Adjusted Property, the Agreed Value of such property reduced (but not below zero) by all depreciation, amortization and other cost recovery deductions charged to the Partners Capital Accounts in respect of such property, and (b) with respect to any other Partnership property, the adjusted basis of such property for U.S. federal income tax purposes, all as of the time of determination. The Carrying Value of any property shall be adjusted from time to time in accordance with Section 5.5(d) and to reflect changes, additions or other adjustments to the Carrying Value for dispositions and acquisitions of Partnership properties, as deemed appropriate by the General Partner.
Cause means a court of competent jurisdiction has entered a final, non-appealable judgment finding the General Partner is liable to the Partnership or any Limited Partner for actual fraud or willful misconduct in its capacity as a general partner of the Partnership.
Certificate means a certificate in such form (including in global form if permitted by applicable rules and regulations) as may be adopted by the General Partner, issued by the Partnership evidencing ownership of one or more Partnership Interests.
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Certificate of Limited Partnership means the Certificate of Limited Partnership of the Partnership filed with the Secretary of State of the State of Delaware as referenced in Section 7.3, as such Certificate of Limited Partnership may be amended, supplemented or restated from time to time.
Citizenship Eligibility Trigger is defined in Section 4.8(a)(ii).
claim (as used in Section 7.12(c)) is defined in Section 7.12(c).
Closing Date means the first date on which Common Units are issued and delivered by the Partnership to the Underwriters pursuant to the provisions of the Underwriting Agreement.
Closing Price means, in respect of any class of Limited Partner Interests, as of the date of determination, the last sale price on such day, regular way, or in case no such sale takes place on such day, the average of the closing bid and asked prices on such day, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the principal National Securities Exchange on which such Limited Partner Interests are listed or admitted to trading or, if such Limited Partner Interests are not listed or admitted to trading on any National Securities Exchange, the last quoted price on such day or, if not so quoted, the average of the high bid and low asked prices on such day in the over-the-counter market, as reported by the primary reporting system then in use in relation to such Limited Partner Interests of such class, or, if on any such day such Limited Partner Interests of such class are not quoted by any such organization, the average of the closing bid and asked prices on such day as furnished by a professional market maker making a market in such Limited Partner Interests of such class selected by the General Partner, or if on any such day no market maker is making a market in such Limited Partner Interests of such class, the fair value of such Limited Partner Interests on such day as determined by the General Partner.
Code means the U.S. Internal Revenue Code of 1986, as amended and in effect from time to time. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of any successor law.
Combined Interest is defined in Section 11.3(a).
Commences Commercial Service means a Capital Improvement or replacement asset is first put into commercial service by a Group Member (or other Person that is not a Subsidiary of a Group Member, as contemplated in the definition of Capital Improvement) following, if applicable, completion of construction, acquisition, development and testing.
Commission means the U.S. Securities and Exchange Commission.
Common Unit means a Partnership Interest having the rights and obligations specified with respect to Common Units in this Agreement. The term Common Unit does not refer to or include any Subordinated Unit prior to its conversion into a Common Unit pursuant to the terms hereof.
Common Unit Arrearage means, with respect to any Common Unit, whenever issued, with respect to any Quarter wholly within the Subordination Period, the excess, if any, of (a) the Minimum Quarterly Distribution with respect to a Common Unit in respect of such Quarter over (b) the sum of all cash and cash equivalents distributed with respect to a Common Unit in respect of such Quarter pursuant to Section 6.4(a)(i).
Conflicts Committee means a committee of the Board of Directors composed entirely of one or more directors, each of whom is determined by the Board of Directors, after reasonable inquiry, (a) to not be an officer
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or employee of the General Partner (b) to not be an officer or employee of any Affiliate of the General Partner or a director of any Affiliate of the General Partner (other than any Group Member), (c) to not be a holder of any ownership interest in the General Partner or any of its Affiliates, including any Group Member, that would be likely to have an adverse impact on the ability of such director to act in an independent manner with respect to the matter submitted to the Conflicts Committee, other than Common Units and awards that are granted to such director in his or her capacity as a director under the LTIP, and (d) to be independent under the independence standards for directors who serve on an audit committee of a board of directors established by the Securities Exchange Act and the rules and regulations of the Commission thereunder and by the National Securities Exchange on which any class of Partnership Interests is listed or admitted to trading.
Construction Debt means debt incurred to fund (a) all or a portion of a Capital Improvement, (b) interest payments (including periodic net payments under related interest rate swap agreements) and related fees on other Construction Debt or (c) distributions paid in respect of Construction Equity, and incremental Incentive Distributions in respect thereof.
Construction Equity means equity issued to fund (a) all or a portion of a Capital Improvement, (b) interest payments (including periodic net payments under related interest rate swap agreements) and related fees on Construction Debt or (c) distributions paid in respect of Construction Equity, and incremental Incentive Distributions in respect thereof.
Construction Period means the period beginning on the date that a Group Member (or other Person that is not a Subsidiary of a Group Member, as contemplated in the definition of Capital Improvement) enters into a binding obligation to commence a Capital Improvement and ending on the earlier to occur of the date that such Capital Improvement Commences Commercial Service and the date that the Group Member (or other Person that is not a Subsidiary of a Group Member, as contemplated in the definition of Capital Improvement) abandons or disposes of such Capital Improvement.
Contributed Property means each property, in such form as may be permitted by the Delaware Act, but excluding cash, contributed to the Partnership. Once the Carrying Value of a Contributed Property is adjusted pursuant to Section 5.5(d), such property shall no longer constitute a Contributed Property, but shall be deemed an Adjusted Property.
Contribution Agreement means that certain Contribution, Conveyance and Assumption Agreement, dated as of , 2014, among the Partnership and WPT LLC, together with the additional conveyance documents and instruments contemplated or referenced thereunder, as such may be amended, supplemented or restated from time to time.
Cumulative Common Unit Arrearage means, with respect to any Common Unit, whenever issued, and as of the end of any Quarter, the excess, if any, of (a) the sum of the Common Unit Arrearages with respect to an Initial Common Unit for each of the Quarters wholly within the Subordination Period ending on or before the last day of such Quarter over (b) the sum of any distributions theretofore made pursuant to Section 6.4(a)(ii) and Section 6.5(b) with respect to an Initial Common Unit (including any distributions to be made in respect of the last of such Quarters).
Curative Allocation means any allocation of an item of income, gain, deduction, loss or credit pursuant to the provisions of Section 6.1(d)(xi).
Current Market Price means, in respect of any class of Limited Partner Interests, as of the date of determination, the average of the daily Closing Prices per Limited Partner Interest of such class for the 20 consecutive Trading Days immediately prior to such date.
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Delaware Act means the Delaware Revised Uniform Limited Partnership Act, 6 Del C. Section 17-101, et seq., as amended, supplemented or restated from time to time, and any successor to such statute.
Departing General Partner means a former General Partner from and after the effective date of any withdrawal or removal of such former General Partner pursuant to Section 11.1 or 11.2.
Derivative Instruments means options, rights, warrants, appreciation rights, tracking profit and phantom interests and other derivative instruments (other than equity interests in the Partnership) relating to, convertible into or exchangeable for Partnership Interests.
Disposed of Adjusted Property is defined in Section 6.1(d)(xii)(B).
Economic Risk of Loss has the meaning set forth in Treasury Regulation Section 1.752-2(a).
Eligibility Certificate is defined in Section 4.8(b).
Eligible Holder means a Limited Partner whose (a) U.S. federal income tax status would not, in the determination of the General Partner, have the material adverse effect described in Section 4.8(a)(i) or (b) nationality, citizenship or other related status would not, in the determination of the General Partner, create a substantial risk of cancellation or forfeiture as described in Section 4.8(a)(ii).
Estimated Incremental Quarterly Tax Amount is defined in Section 6.9.
Ethylene Supply Agreement means that certain Ethylene Supply Agreement, dated as of the date hereof, among OpCo, WPT LLC, Westlake Longview Corporation and Westlake Vinyls, Inc., as it may be amended, supplemented or restated from time to time.
Event Issue Value means, with respect to any Common Unit as of any date of determination, (i) in the case of a Revaluation Event that includes the issuance of Common Units pursuant to a public offering and solely for cash, the price paid for such Common Units, or (ii) in the case of any other Revaluation Event, the Closing Price of the Common Units on the date of such Revaluation Event or, if the General Partner determines that a value for the Common Unit other than such Closing Price more accurately reflects the Event Issue Value, the value determined by the General Partner.
Event of Withdrawal is defined in Section 11.1(a).
Excess Additional Book Basis is defined in the definition of Additional Book Basis Derivative Items.
Excess Distribution is defined in Section 6.1(d)(iii)(A).
Excess Distribution Unit is defined in Section 6.1(d)(iii)(A).
Expansion Capital Expenditures means cash expenditures (including transaction expenses) for Capital Improvements, and shall not include Maintenance Capital Expenditures or Investment Capital Expenditures. Expansion Capital Expenditures shall include interest payments (including periodic net payments under related interest rate swap agreements) and related fees on Construction Debt and paid in respect of the Construction Period. Where cash expenditures are made in part for Expansion Capital Expenditures and in part for other purposes, the General Partner shall determine the allocation between the amounts paid for each.
Final Subordinated Units is defined in Section 6.1(d)(x)(A).
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First Liquidation Target Amount is defined in Section 6.1(c)(i)(D).
First Target Distribution means $ per Unit per Quarter (or, with respect to periods of less than a full fiscal quarter, it means the product of such amount multiplied by a fraction of which the numerator is the number of days in such period, and the denominator is the total number of days in such fiscal quarter), subject to adjustment in accordance with Sections 5.11, 6.6 and 6.9.
Fully Diluted Weighted Average Basis means, when calculating the number of Outstanding Units for any period, the sum of (1) the weighted average number of Outstanding Units during such period plus (2) all Partnership Interests and Derivative Instruments (a) that are convertible into or exercisable or exchangeable for Units or for which Units are issuable, in each case that are senior to or pari passu with the Subordinated Units, (b) whose conversion, exercise or exchange price is less than the Current Market Price on the date of such calculation, (c) that may be converted into or exercised or exchanged for such Units prior to or during the Quarter immediately following the end of the period for which the calculation is being made without the satisfaction of any contingency beyond the control of the holder other than the payment of consideration and the compliance with administrative mechanics applicable to such conversion, exercise or exchange and (d) that were not converted into or exercised or exchanged for such Units during the period for which the calculation is being made; provided , however , that for purposes of determining the number of Outstanding Units on a Fully Diluted Weighted Average Basis when calculating whether the Subordination Period has ended or the Subordinated Units are entitled to convert into Common Units pursuant to Section 5.7, such Partnership Interests and Derivative Instruments shall be deemed to have been Outstanding Units only for the four Quarters that comprise the last four Quarters of the measurement period; provided , further , that if consideration will be paid to any Group Member in connection with such conversion, exercise or exchange, the number of Units to be included in such calculation shall be that number equal to the difference between (i) the number of Units issuable upon such conversion, exercise or exchange and (ii) the number of Units that such consideration would purchase at the Current Market Price.
General Partner means Westlake Chemical Partners GP LLC, a Delaware limited liability company, and its successors and permitted assigns that are admitted to the Partnership as general partner of the Partnership, in their capacities as general partner of the Partnership (except as the context otherwise requires).
General Partner Interest means the non-economic management and ownership interest of the General Partner in the Partnership (in its capacity as a general partner and without reference to any Limited Partner Interest held by it) and includes any and all rights, powers and benefits to which the General Partner is entitled as provided in this Agreement, together with all obligations of the General Partner to comply with the terms and provisions of this Agreement. The General Partner Interest does not include any rights to profits or losses or any rights to receive distributions from operations or upon the liquidation or winding-up of the Partnership.
Good Faith means, with respect to any determination, action or omission, of any Person, board or committee, that such determination, action or omission was not taken in Bad Faith.
Gross Liability Value means, with respect to any Liability of the Partnership described in Treasury Regulation Section 1.752-7(b)(3)(i), the amount of cash that a willing assignor would pay to a willing assignee to assume such Liability in an arms-length transaction.
Group means two or more Persons that with or through any of their respective Affiliates or Associates have any contract, arrangement, understanding or relationship for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent given to such Person in response to a proxy or consent solicitation made to 10 or more Persons), exercising investment power or disposing of any Partnership Interests with any other Person that beneficially owns, or whose Affiliates or Associates beneficially own, directly or indirectly, Partnership Interests.
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Group Member means a member of the Partnership Group.
Group Member Agreement means the partnership agreement of any Group Member, other than the Partnership, that is a limited or general partnership, the limited liability company agreement of any Group Member that is a limited liability company, the certificate of incorporation and bylaws or similar organizational documents of any Group Member that is a corporation, the joint venture agreement or similar governing document of any Group Member that is a joint venture and the governing or organizational or similar documents of any other Group Member that is a Person other than a limited or general partnership, limited liability company, corporation or joint venture, as such may be amended, supplemented or restated from time to time.
Hedge Contract means any exchange, swap, forward, cap, floor, collar, option or other similar agreement or arrangement entered into for the purpose of reducing the exposure of the Partnership Group to fluctuations in the price of hydrocarbons, interest rates, basis differentials or currency exchange rates in their operations or financing activities, in each case, other than for speculative purposes.
Holder as used in Section 7.12, is defined in Section 7.12(a).
IDR Reset Common Unit is defined in Section 5.11(a).
IDR Reset Election is defined in Section 5.11(a).
Incentive Distribution Right means a Limited Partner Interest having the rights and obligations specified with respect to Incentive Distribution Rights in this Agreement.
Incentive Distributions means any amount of cash distributed to the holders of the Incentive Distribution Rights pursuant to Section 6.4.
Incremental Income Taxes is defined in Section 6.9.
Indemnified Persons is defined in Section 7.12(c).
Indemnitee means (a) any General Partner, (b) any Departing General Partner, (c) any Person who is or was an Affiliate of the General Partner or any Departing General Partner, (d) any Person who is or was a manager, managing member, general partner, director, officer, fiduciary or trustee of any Group Member, a General Partner, any Departing General Partner or any of their respective Affiliates, (e) any Person who is or was serving at the request of a General Partner, any Departing General Partner or any of their respective Affiliates as an officer, director, manager, managing member, general partner, employee, agent, fiduciary or trustee of another Person owing a fiduciary or similar duty to any Group Member; provided that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (f) any Person who controls a General Partner or Departing General Partner and (g) any Person the General Partner designates as an Indemnitee for purposes of this Agreement because such Persons service, status or relationship exposes such Person to potential claims, demands, actions, suits or proceedings relating to the Partnership Groups business and affairs.
Ineligible Holder is defined in Section 4.8(c).
Initial Common Units means the Common Units sold in the Initial Offering.
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Initial Limited Partners means the Organizational Limited Partner (with respect to the Common Units and Subordinated Units received by it as described in Section 5.2), WPT LLC (with respect to the Incentive Distribution Rights), and the Underwriters, in each case upon being admitted to the Partnership in accordance with Section 10.1.
Initial Offering means the initial offering and sale of Common Units to the public, as described in the Registration Statement, including any offer and sale of Common Units pursuant to the exercise of the Over-Allotment Option.
Initial Unit Price means (a) with respect to the Common Units and the Subordinated Units, the initial public offering price per Common Unit at which the Underwriters first offered the Common Units to the public for sale as set forth on the cover page of the prospectus included as part of the Registration Statement and first issued at or after the time the Registration Statement first became effective or (b) with respect to any other class or series of Units, the price per Unit at which such class or series of Units is initially sold by the Partnership, as determined by the General Partner, in each case adjusted as the General Partner determines to be appropriate to give effect to any distribution, subdivision or combination of Units.
Interim Capital Transactions means the following transactions if they occur prior to the Liquidation Date: (a) borrowings, including sales of debt securities and other incurrences of indebtedness for borrowed money, by any Group Member, other than Working Capital Borrowings; (b) sales of equity interests of any Group Member (including the Common Units sold to the Underwriters pursuant to the Underwriting Agreement) and (c) sales or other dispositions of any assets of any Group Member other than (i) sales or other dispositions of inventory, accounts receivable and other assets in the ordinary course of business, and (ii) sales or other dispositions of assets as part of normal retirements or replacements.
Investment Capital Expenditures means capital expenditures other than Maintenance Capital Expenditures and Expansion Capital Expenditures.
Liability means any liability or obligation of any nature, whether accrued, contingent or otherwise.
Limited Partner means, unless the context otherwise requires, each Initial Limited Partner, each additional Person that becomes a Limited Partner pursuant to the terms of this Agreement and any Departing General Partner upon the change of its status from General Partner to Limited Partner pursuant to Section 11.3, in each case, in such Persons capacity as a limited partner of the Partnership.
Limited Partner Interest means the ownership interest of a Limited Partner in the Partnership, which may be evidenced by Common Units, Subordinated Units, Incentive Distribution Rights or other Partnership Interests or a combination thereof or interest therein (but excluding Derivative Instruments), and includes any and all benefits to which such Limited Partner is entitled as provided in this Agreement, together with all obligations of such Limited Partner hereunder.
Liquidation Date means (a) in the case of an event giving rise to the dissolution of the Partnership of the type described in clauses (a) and (b) of the first sentence of Section 12.2, the date on which the applicable time period during which the holders of Outstanding Units have the right to elect to continue the business of the Partnership has expired without such an election being made, and (b) in the case of any other event giving rise to the dissolution of the Partnership, the date on which such event occurs.
Liquidation Gain has the meaning set forth in the definition of Net Termination Gain.
Liquidation Loss has the meaning set forth in the definition of Net Termination Loss.
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Liquidator means one or more Persons selected by the General Partner to perform the functions described in Section 12.4 as liquidating trustee of the Partnership within the meaning of the Delaware Act.
LTIP means benefit plans, programs and practices adopted by the General Partner pursuant to Section 7.5(c).
Maintenance Capital Expenditures means cash expenditures (including expenditures for the addition or improvement to or replacement of the assets owned by any Group Member or for the acquisition of existing, or the construction or development of new, assets) made to maintain the long-term operating capacity or net income of the Partnership Group. Where cash expenditures are made in part for Maintenance Capital Expenditures and in part for other purposes, the General Partner shall determine the allocation between the amounts paid for each.
Merger Agreement is defined in Section 14.1.
Minimum Quarterly Distribution means $ per Unit per Quarter (or with respect to periods of less than a full fiscal quarter, it means the product of such amount multiplied by a fraction of which the numerator is the number of days in such period and the denominator is the total number of days in such fiscal quarter), subject to adjustment in accordance with Sections 5.11, 6.6 and 6.9.
National Securities Exchange means an exchange registered with the Commission under Section 6(a) of the Securities Exchange Act (or any successor to such Section) and any other securities exchange (whether or not registered with the Commission under Section 6(a) (or successor to such Section) of the Securities Exchange Act) that the General Partner shall designate as a National Securities Exchange for purposes of this Agreement.
Net Agreed Value means, (a) in the case of any Contributed Property, the Agreed Value of such property reduced by any Liabilities either assumed by the Partnership upon such contribution or to which such property is subject when contributed and (b) in the case of any property distributed to a Partner by the Partnership, the Partnerships Carrying Value of such property (as adjusted pursuant to Section 5.5(d)(ii)) at the time such property is distributed, reduced by any Liabilities either assumed by such Partner upon such distribution or to which such property is subject at the time of distribution.
Net Income means, for any taxable period, the excess, if any, of the Partnerships items of income and gain (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period over the Partnerships items of loss and deduction (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period. The items included in the calculation of Net Income shall be determined in accordance with Section 5.5 and shall not include any items specially allocated under Section 6.1(d); provided , that the determination of the items that have been specially allocated under Section 6.1(d) shall be made without regard to any reversal of such items under Section 6.1(d)(xii).
Net Loss means, for any taxable period, the excess, if any, of the Partnerships items of loss and deduction (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period over the Partnerships items of income and gain (other than those items taken into account in the computation of Net Termination Gain or Net Termination Loss) for such taxable period. The items included in the calculation of Net Loss shall be determined in accordance with Section 5.5 and shall not include any items specially allocated under Section 6.1(d); provided , that the determination of the items that have been specially allocated under Section 6.1(d) shall be made without regard to any reversal of such items under Section 6.1(d)(xii).
Net Positive Adjustments means, with respect to any Partner, the excess, if any, of the total positive adjustments over the total negative adjustments made to the Capital Account of such Partner pursuant to Book-Up Events and Book-Down Events.
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Net Termination Gain means, as applicable, (a) the sum, if positive, of all items of income, gain, loss or deduction (determined in accordance with Section 5.5) that are recognized (i) after the Liquidation Date ( Liquidation Gain ) or (ii) upon the sale, exchange or other disposition of all or substantially all of the assets of the Partnership Group, taken as a whole, in a single transaction or a series of related transactions (excluding any disposition to a member of the Partnership Group) ( Sale Gain ), or (b) the excess, if any, of the aggregate amount of Unrealized Gain over the aggregate amount of Unrealized Loss deemed recognized by the Partnership pursuant to Section 5.5(d) on the date of a Revaluation Event ( Revaluation Gain ); provided , however , the items included in the determination of Net Termination Gain shall not include any items of income, gain or loss specially allocated under Section 6.1(d); and provided , further , that Sale Gain and Revaluation Gain shall not include any items of income, gain, loss or deduction that are recognized during any portion of the taxable period during which such Sale Gain or Revaluation Gain occurs.
Net Termination Loss means, as applicable, (a) the sum, if negative, of all items of income, gain, loss or deduction (determined in accordance with Section 5.5) that are recognized (i) after the Liquidation Date ( Liquidation Loss )or (ii) upon the sale, exchange or other disposition of all or substantially all of the assets of the Partnership Group, taken as a whole, in a single transaction or a series of related transactions (excluding any disposition to a member of the Partnership Group) ( Sale Loss ), or (b) the excess, if any, of the aggregate amount of Unrealized Loss over the aggregate amount of Unrealized Gain deemed recognized by the Partnership pursuant to Section 5.5(d) on the date of a Revaluation Event( Revaluation Loss ); provided , however , items included in the determination of Net Termination Loss shall not include any items of income, gain or loss specially allocated under Section 6.1(d) ; and provided , further , that Sale Loss and Revaluation Loss shall not include any items of income, gain, loss or deduction that are recognized during any portion of the taxable period during which such Sale Loss or Revaluation Loss occurs.
Noncompensatory Option has the meaning set forth in Treasury Regulation Section 1.721-2(f).
Nonrecourse Built-in Gain means with respect to any Contributed Properties or Adjusted Properties that are subject to a mortgage or pledge securing a Nonrecourse Liability, the amount of any taxable gain that would be allocated to the Partners pursuant to Section 6.2(b) if such properties were disposed of in a taxable transaction in full satisfaction of such liabilities and for no other consideration.
Nonrecourse Deductions means any and all items of loss, deduction or expenditure (including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(b), are attributable to a Nonrecourse Liability.
Nonrecourse Liability has the meaning set forth in Treasury Regulation Section 1.752-1(a)(2).
Notice of Election to Purchase is defined in Section 15.1(b).
OpCo means Westlake Chemical OpCo LP, a Delaware limited partnership.
Operating Expenditures means all Partnership Group cash expenditures (or the Partnerships proportionate share of expenditures in the case of Subsidiaries that are not wholly owned), including taxes, reimbursements of expenses of the General Partner and its Affiliates, payments made under any Hedge Contracts, officer compensation, repayment of Working Capital Borrowings, interest and principal payments on indebtedness and capital expenditures, subject to the following:
(a) repayments of Working Capital Borrowings deducted from Operating Surplus pursuant to clause (b)(iii) of the definition of Operating Surplus shall not constitute Operating Expenditures when actually repaid;
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(b) payments (including prepayments and prepayment penalties and the purchase price of indebtedness that is repurchased and cancelled) of principal of and premium on indebtedness other than Working Capital Borrowings shall not constitute Operating Expenditures;
(c) Operating Expenditures shall not include (i) Expansion Capital Expenditures, (ii) Investment Capital Expenditures, (iii) payment of transaction expenses (including taxes) relating to Interim Capital Transactions, (iv) distributions to Partners, (v) repurchases of Partnership Interests, other than repurchases of Partnership Interests to satisfy obligations under employee benefit plans, or reimbursements of expenses of the General Partner for such purchases or (vi) any expenditures using the proceeds of the Initial Offering as described under Use of Proceeds in the Registration Statement. Where cash expenditures are made in part for Maintenance Capital Expenditures and in part for other purposes, the General Partner shall determine the allocation between the amounts paid for each; and
(d) (i) payments made in connection with the initial purchase of any Hedge Contract shall be amortized over the life of such Hedge Contract and (ii) payments made in connection with the termination of any Hedge Contract prior to its scheduled settlement or termination date shall be included in equal quarterly installments over what would have been the remaining scheduled term of such Hedge Contract had it not been so terminated.
Operating Surplus means, with respect to any period ending prior to the Liquidation Date, on a cumulative basis and without duplication,
(a) the sum of (i) $ million, (ii) all cash receipts of the Partnership Group (or the Partnerships proportionate share of cash receipts in the case of Subsidiaries that are not wholly owned) for the period beginning on the Closing Date and ending on the last day of such period, but excluding cash receipts from Interim Capital Transactions and provided that cash receipts from the termination of any Hedge Contract prior to its scheduled settlement or termination date shall be included in equal quarterly installments over what would have been the remaining scheduled life of such Hedge Contract had it not been so terminated and (iii) the amount of cash distributions paid in respect of Construction Equity (and incremental Incentive Distributions in respect thereof) and paid in respect of the Construction Period, less
(b) the sum of (i) Operating Expenditures for the period beginning on the Closing Date and ending on the last day of such period; (ii) the amount of cash reserves established by the General Partner (or the Partnerships proportionate share of cash reserves in the case of Subsidiaries that are not wholly owned) to provide funds for future Operating Expenditures; (iii) all Working Capital Borrowings not repaid within twelve (12) months after having been incurred from sources other than additional Working Capital Borrowings and (iv) any cash loss realized on disposition of an Investment Capital Expenditure;
provided , however , that disbursements made (including contributions to a Group Member or disbursements on behalf of a Group Member), cash received or cash reserves established, increased or reduced after the end of such period but on or before the date on which cash or cash equivalents will be distributed with respect to such period shall be deemed to have been made, received, established, increased or reduced, for purposes of determining Operating Surplus, within such period if the General Partner so determines.
Notwithstanding the foregoing, (x) Operating Surplus with respect to the Quarter in which the Liquidation Date occurs and any subsequent Quarter shall equal zero; and (y) cash receipts from an Investment Capital Expenditure shall be treated as cash receipts only to the extent they are a return on principal, but in no event shall a return of principal be treated as cash receipts.
Opinion of Counsel means a written opinion of counsel (who may be regular counsel to the Partnership or the General Partner or any of its Affiliates) acceptable to the General Partner.
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Option Closing Date means the date or dates on which any Common Units are sold by the Partnership to the Underwriters upon exercise of the Over-Allotment Option.
Organizational Limited Partner means Westlake International Services Corporation, in its capacity as the organizational limited partner of the Partnership pursuant to this Agreement.
Outstanding means, with respect to Partnership Interests, all Partnership Interests that are issued by the Partnership and reflected as outstanding on the Partnerships books and records as of the date of determination; provided , however , that if at any time any Person or Group (other than the General Partner or its Affiliates) beneficially owns 20% or more of the Partnership Interests of any class, none of the Partnership Interests owned by such Person or Group shall be entitled to be voted on any matter or be considered to be Outstanding when sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other similar purposes under this Agreement, except that Partnership Interests so owned shall be considered to be Outstanding for purposes of Section 11.1(b)(iv) (such Partnership Interests shall not, however, be treated as a separate class of Partnership Interests for purposes of this Agreement or the Delaware Act); provided , further , that the foregoing limitation shall not apply to (i) any Person or Group who acquired 20% or more of the Partnership Interests of any class directly from the General Partner or its Affiliates (other than the Partnership), (ii) any Person or Group who acquired 20% or more of the Partnership Interests of any class directly or indirectly from a Person or Group described in clause (i) provided that the General Partner shall have notified such Person or Group in writing that such limitation shall not apply, or (iii) any Person or Group who acquired 20% or more of any Partnership Interests issued by the Partnership provided that the General Partner shall have notified such Person or Group in writing that such limitation shall not apply.
Over-Allotment Option means the over-allotment option granted to the Underwriters by the Partnership pursuant to the Underwriting Agreement.
Partner Nonrecourse Debt has the meaning set forth in Treasury Regulation Section 1.704-2(b)(4).
Partner Nonrecourse Debt Minimum Gain has the meaning set forth in Treasury Regulation Section 1.704-2(i)(2).
Partner Nonrecourse Deductions means any and all items of loss, deduction or expenditure (including any expenditure described in Section 705(a)(2)(B) of the Code) that, in accordance with the principles of Treasury Regulation Section 1.704-2(i), are attributable to a Partner Nonrecourse Debt.
Partners means the General Partner and the Limited Partners.
Partnership means Westlake Chemical Partners LP, a Delaware limited partnership.
Partnership Group means, collectively, the Partnership and its Subsidiaries.
Partnership Interest means any class or series of equity interest (or, in the case of the General Partner, management interest) in the Partnership, which shall include any General Partner Interest and Limited Partner Interests but shall exclude all Derivative Instruments.
Partnership Minimum Gain means that amount determined in accordance with the principles of Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).
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Percentage Interest means as of any date of determination and as to any Unitholder with respect to Units, the quotient obtained by dividing (A) the number of Units held by such Unitholder by (B) the total number of Outstanding Units. The Percentage Interest with respect to an Incentive Distribution Right shall at all times be zero. The Percentage Interest with respect to the General Partner Interest shall at all times be zero.
Person means an individual or a corporation, firm, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.
Per Unit Capital Amount means, as of any date of determination, the Capital Account, stated on a per Unit basis, underlying any class of Units held by a Person other than the General Partner or any Affiliate of the General Partner who holds Units.
Privately Placed Units means any Common Units issued for cash or property other than pursuant to a public offering.
Pro Rata means when used with respect to (a) Units or any class thereof, apportioned among all designated Units in accordance with their relative Percentage Interests, (b) Partners or Record Holders, apportioned among all Partners or Record Holders in accordance with their relative Percentage Interests and (c) holders of Incentive Distribution Rights, apportioned among all holders of Incentive Distribution Rights in accordance with the relative number or percentage of Incentive Distribution Rights held by each such holder.
Purchase Date means the date determined by the General Partner as the date for purchase of all Outstanding Limited Partner Interests of a certain class (other than Limited Partner Interests owned by the General Partner and its Affiliates) pursuant to Article XV.
Quarter means, unless the context requires otherwise, a fiscal quarter of the Partnership, or, with respect to the fiscal quarter of the Partnership in which the Closing Date occurs, the portion of such fiscal quarter after the Closing Date.
Rate Eligibility Trigger is defined in Section 4.8(a)(i).
Recapture Income means any gain recognized by the Partnership (computed without regard to any adjustment required by Section 734 or Section 743 of the Code) upon the disposition of any property or asset of the Partnership, which gain is characterized as ordinary income because it represents the recapture of deductions previously taken with respect to such property or asset.
Record Date means the date established by the General Partner or otherwise in accordance with this Agreement for determining (a) the identity of the Record Holders entitled to notice of, or to vote at, any meeting of Limited Partners or entitled to vote by ballot or give approval of Partnership action in writing without a meeting or entitled to exercise rights in respect of any lawful action of Limited Partners or (b) the identity of Record Holders entitled to receive any report or distribution or to participate in any offer.
Record Holder means (a) with respect to any class of Partnership Interests for which a Transfer Agent has been appointed, the Person in whose name a Partnership Interest of such class is registered on the books of the Transfer Agent as of the closing of business on a particular Business Day, or (b) with respect to other classes of Partnership Interests, the Person in whose name any such other Partnership Interest is registered on the books that the General Partner has caused to be kept as of the closing of business on such Business Day.
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Redeemable Interests means any Partnership Interests for which a redemption notice has been given, and has not been withdrawn, pursuant to Section 4.9.
Registration Statement means the Registration Statement on Form S-1 (Registration No. 333-179304) as it has been or as it may be amended or supplemented from time to time, filed by the Partnership with the Commission under the Securities Act to register the offering and sale of the Common Units in the Initial Offering.
Remaining Net Positive Adjustments means as of the end of any taxable period, (i) with respect to the Unitholders, the excess of (a) the Net Positive Adjustments of the Unitholders as of the end of such period over (b) the sum of those Unitholders Share of Additional Book Basis Derivative Items for each prior taxable period, and (ii) with respect to the holders of Incentive Distribution Rights, the excess of (a) the Net Positive Adjustments of the holders of Incentive Distribution Rights as of the end of such period over (b) the sum of the Share of Additional Book Basis Derivative Items of the holders of the Incentive Distribution Rights for each prior taxable period.
Required Allocations means any allocation of an item of income, gain, loss or deduction pursuant to Section 6.1(d)(i), Section 6.1(d)(ii), Section 6.1(d)(iv), Section 6.1(d)(v), Section 6.1(d)(vi), Section 6.1(d)(vii) or Section 6.1(d)(ix).
Reset MQD is defined in Section 5.11(a).
Reset Notice is defined in Section 5.11(b).
Revaluation Event means an event that results in adjustment of the Carrying Value of each Partnership property pursuant to Section 5.5(d).
Revaluation Gain has the meaning set forth in the definition of Net Termination Gain.
Revaluation Loss has the meaning set forth in the definition of Net Termination Loss.
Sale Gain has the meaning set forth in the definition of Net Termination Gain.
Sale Loss has the meaning set forth in the definition of Net Termination Loss.
Second Liquidation Target Amount is defined in Section 6.1(c)(i)(E).
Second Target Distribution means $ per Unit per Quarter (or, with respect to periods of less than a full fiscal quarter, it means the product of such amount multiplied by a fraction of which the numerator is the number of days in such period, and the denominator is the total number of days in such fiscal quarter), subject to adjustment in accordance with Sections 5.11, 6.6 and 6.9.
Securities Act means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute.
Securities Exchange Act means the Securities Exchange Act of 1934, as amended, supplemented or restated from time to time and any successor to such statute.
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Share of Additional Book Basis Derivative Items means in connection with any allocation of Additional Book Basis Derivative Items for any taxable period, (i) with respect to the Unitholders, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the Unitholders Remaining Net Positive Adjustments as of the end of such taxable period bears to the Aggregate Remaining Net Positive Adjustments as of that time, and (ii) with respect to the holders of Incentive Distribution Rights, the amount that bears the same ratio to such Additional Book Basis Derivative Items as the Remaining Net Positive Adjustments of the holders of the Incentive Distribution Rights as of the end of such period bears to the Aggregate Remaining Net Positive Adjustments as of that time.
Special Approval means approval by a majority of the members of the Conflicts Committee or, if the Conflicts Committee has only one member, the sole member of the Conflicts Committee.
Subordinated Unit means a Partnership Interest having the rights and obligations specified with respect to Subordinated Units in this Agreement. The term Subordinated Unit does not refer to or include a Common Unit. A Subordinated Unit that is convertible into a Common Unit shall not constitute a Common Unit until such conversion occurs.
Subordination Period means the period commencing on the Closing Date and ending on the first to occur of the following dates:
(a) the first Business Day following the distribution pursuant to Section 6.3(a) in respect of any Quarter beginning with the Quarter ending , 2017 in respect of which (i) (A) aggregate distributions from Operating Surplus on the Outstanding Common Units and Subordinated Units and any other Outstanding Units that are senior or equal in right of distribution to the Subordinated Units, in each case with respect to each of the three consecutive, non-overlapping four-Quarter periods immediately preceding such Business Day equaled or exceeded the sum of the Minimum Quarterly Distribution on all Outstanding Common Units and Subordinated Units and any other Outstanding Units that are senior or equal in right of distribution to the Subordinated Units, in each case in respect of such periods and (B) the Adjusted Operating Surplus for each of the three consecutive, non-overlapping four-Quarter periods immediately preceding such Business Day equaled or exceeded the sum of the Minimum Quarterly Distribution on all of the Common Units, Subordinated Units and any other Units that are senior or equal in right of distribution to the Subordinated Units, in each case that were Outstanding during such periods on a Fully Diluted Weighted Average Basis, and (ii) there are no Cumulative Common Unit Arrearages;
(b) the first Business Day following the distribution pursuant to Section 6.3(a) in respect of any Quarter in respect of which (i) (A) aggregate distributions from Operating Surplus on the Outstanding Common Units and Subordinated Units and any other Outstanding Units that are senior or equal in right of distribution to the Subordinated Units, with respect to the four-Quarter period immediately preceding such Business Day equaled or exceeded 150% of the Minimum Quarterly Distribution on all of the Outstanding Common Units and Subordinated Units and any other Outstanding Units that are senior or equal in right of distribution to the Subordinated Units, in respect of such period, and (B) the Adjusted Operating Surplus for the four-Quarter period immediately preceding such Business Day equaled or exceeded 150% of the sum of the Minimum Quarterly Distribution on all of the Common Units and Subordinated Units and any other Units that are senior or equal in right of distribution to the Subordinated Units, in each case that were Outstanding during such period on a Fully Diluted Weighted Average Basis and the corresponding Incentive Distributions and (ii) there are no Cumulative Common Unit Arrearages; and
(c) the first date on which there are no longer outstanding any Subordinated Units due to the conversion of Subordinated Units into Common Units pursuant to Section 5.7 or otherwise.
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Subsidiary means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general partner of such partnership, but only if such Person, directly or by one or more Subsidiaries of such Person, or a combination thereof, controls such partnership on the date of determination or (c) any other Person in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.
Surviving Business Entity is defined in Section 14.2(b)(ii).
Target Distribution means each of the Minimum Quarterly Distribution, the First Target Distribution, Second Target Distribution and Third Target Distribution.
Third Target Distribution means $ per Unit per Quarter (or, with respect to periods of less than a full fiscal quarter, it means the product of such amount multiplied by a fraction of which the numerator is the number of days in such period, and the denominator is the total number of days in such fiscal quarter), subject to adjustment in accordance with Sections 5.11, 6.6 and 6.9.
Trading Day means a day on which the principal National Securities Exchange on which the referenced Partnership Interests of any class are listed or admitted to trading is open for the transaction of business or, if such Partnership Interests are not listed or admitted to trading on any National Securities Exchange, a day on which banking institutions in New York City generally are open.
transfer is defined in Section 4.4(a).
Transfer Agent means such bank, trust company or other Person (including the General Partner or one of its Affiliates) as may be appointed from time to time by the Partnership to act as registrar and transfer agent for any class of Partnership Interests; provided , that if no Transfer Agent is specifically designated for any class of Partnership Interests, the General Partner shall act in such capacity.
Treasury Regulation means the United States Treasury regulations promulgated under the Code.
Underwriter means each Person named as an underwriter in the Underwriting Agreement who purchases Common Units pursuant thereto.
Underwriting Agreement means that certain Underwriting Agreement, dated as of , 2014, among the Underwriters, the Partnership, the General Partner and the other parties thereto, providing for the purchase of Common Units by the Underwriters.
Unit means a Partnership Interest that is designated as a Unit and shall include Common Units and Subordinated Units but shall not include (i) the General Partner Interest or (ii) Incentive Distribution Rights.
Unitholders means the Record Holders of Units.
Unit Majority means (i) during the Subordination Period, a majority of the Outstanding Common Units (excluding Common Units whose voting power is, with respect to the subject vote, controlled by the General Partner or its Affiliates), voting as a class, and a majority of the Outstanding Subordinated Units, voting as a class, and (ii) after the end of the Subordination Period, a majority of the Outstanding Common Units.
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Unpaid MQD is defined in Section 6.1(c)(i)(B).
Unrealized Gain attributable to any item of Partnership property means, as of any date of determination, the excess, if any, of (a) the fair market value of such property as of such date (as determined under Section 5.5(d)) over (b) the Carrying Value of such property as of such date (prior to any adjustment to be made pursuant to Section 5.5(d) as of such date).
Unrealized Loss attributable to any item of Partnership property means, as of any date of determination, the excess, if any, of (a) the Carrying Value of such property as of such date (prior to any adjustment to be made pursuant to Section 5.5(d) as of such date) over (b) the fair market value of such property as of such date (as determined under Section 5.5(d)).
Unrecovered Initial Unit Price means at any time, with respect to a Unit, the Initial Unit Price less the sum of all distributions constituting Capital Surplus theretofore made in respect of an Initial Common Unit and any distributions of cash (or the Net Agreed Value of any distributions in kind) in connection with the dissolution and liquidation of the Partnership theretofore made in respect of an Initial Common Unit, adjusted as the General Partner determines to be appropriate to give effect to any distribution, subdivision, or combination of such Units.
Unrestricted Person means (a) each Indemnitee, (b) each Partner, (c) each Person who is or was a member, partner, director, officer, employee or agent of any Group Member, a General Partner or any Departing General Partner or any Affiliate of any Group Member, a General Partner or any Departing General Partner and (d) any Person the General Partner designates as an Unrestricted Person for purposes of this Agreement.
U.S. GAAP means U.S. generally accepted accounting principles, as in effect from time to time, consistently applied.
U.S . means the United States of America.
Withdrawal Opinion of Counsel is defined in Section 11.1(b).
Working Capital Borrowings means borrowings used solely for working capital purposes or to pay distributions to Partners, made pursuant to a credit facility, commercial paper facility or other similar financing arrangement; provided that when incurred it is the intent of the borrower to repay such borrowings within 12 months from sources other than additional Working Capital Borrowings.
Section 1.2 Construction . Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms; (b) references to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms include, includes, including and words of like import shall be deemed to be followed by the words without limitation; and (d) the terms hereof, herein and hereunder refer to this Agreement as a whole and not to any particular provision of this Agreement. The table of contents and headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement. The General Partner has the power to construe and interpret this Agreement and to act upon any such construction or interpretation. Any construction or interpretation of this Agreement by the General Partner and any action taken pursuant thereto and any determination made by the General Partner in good faith shall, in each case, be conclusive and binding on all Record Holders and all other Persons for all purposes.
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ARTICLE II
ORGANIZATION
Section 2.1 Formation . The General Partner and the Organizational Limited Partner have previously formed the Partnership as a limited partnership pursuant to the provisions of the Delaware Act. This amendment and restatement shall become effective on the date of this Agreement. Except as expressly provided to the contrary in this Agreement, the rights, duties (including fiduciary duties), liabilities and obligations of the Partners and the administration, dissolution and termination of the Partnership shall be governed by the Delaware Act.
Section 2.2 Name . The name of the Partnership shall be Westlake Chemical Partners LP. The Partnerships business may be conducted under any other name or names as determined by the General Partner, including the name of the General Partner. The words Limited Partnership, L.P., Ltd. or similar words or letters shall be included in the Partnerships name where necessary for the purpose of complying with the laws of any jurisdiction that so requires. The General Partner may change the name of the Partnership at any time and from time to time and shall notify the Limited Partners of such change in the next regular communication to the Limited Partners.
Section 2.3 Registered Office; Registered Agent; Principal Office; Other Offices . Unless and until changed by the General Partner, the registered office of the Partnership in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware 19801, and the registered agent for service of process on the Partnership in the State of Delaware at such registered office shall be The Corporation Trust Company. The principal office of the Partnership shall be located at 2801 Post Oak Boulevard, Suite 600, Houston, Texas 77056, or such other place as the General Partner may from time to time designate by notice to the Limited Partners. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the General Partner determines to be necessary or appropriate. The address of the General Partner shall be 2801 Post Oak Boulevard, Suite 600, Houston, Texas 77056, or such other place as the General Partner may from time to time designate by notice to the Limited Partners.
Section 2.4 Purpose and Business . The purpose and nature of the business to be conducted by the Partnership shall be to (a) engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that is approved by the General Partner, in its sole discretion, and that lawfully may be conducted by a limited partnership organized pursuant to the Delaware Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements relating to such business activity, and (b) do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to a Group Member; provided , however , that the General Partner shall not cause the Partnership to engage, directly or indirectly, in any business activity that the General Partner determines would be reasonably likely to cause the Partnership to be treated as an association taxable as a corporation or otherwise taxable as an entity for U.S. federal income tax purposes. To the fullest extent permitted by law, the General Partner shall have no duty or obligation to propose or approve, and may, in its sole discretion, decline to propose or approve, the conduct by the Partnership Group of any business.
Section 2.5 Powers . The Partnership shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described in Section 2.4 and for the protection and benefit of the Partnership.
Section 2.6 Term . The term of the Partnership commenced upon the filing of the Certificate of Limited Partnership in accordance with the Delaware Act and shall continue in existence until the dissolution of the Partnership in accordance with the provisions of Article XII. The existence of the Partnership as a separate legal entity shall continue until the cancellation of the Certificate of Limited Partnership as provided in the Delaware Act.
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Section 2.7 Title to Partnership Assets . Title to Partnership assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Partnership as an entity, and no Partner, individually or collectively, shall have any ownership interest in such Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be held in the name of the Partnership, the General Partner, one or more of its Affiliates or one or more nominees, as the General Partner may determine. The General Partner hereby declares and warrants that any Partnership assets for which record title is held in the name of the General Partner or one or more of its Affiliates or one or more nominees shall be held by the General Partner or such Affiliate or nominee for the use and benefit of the Partnership in accordance with the provisions of this Agreement; provided , however , that the General Partner shall use reasonable efforts to cause record title to such assets (other than those assets in respect of which the General Partner determines that the expense and difficulty of conveyancing makes transfer of record title to the Partnership impracticable) to be vested in the Partnership or one or more of the Partnerships designated Affiliates as soon as reasonably practicable; provided , further , that, prior to the withdrawal or removal of the General Partner or as soon thereafter as practicable, the General Partner shall use reasonable efforts to effect the transfer of record title to the Partnership and, prior to any such transfer, will provide for the use of such assets in a manner satisfactory to the General Partner. All Partnership assets shall be recorded as the property of the Partnership in its books and records, irrespective of the name in which record title to such Partnership assets is held.
ARTICLE III
RIGHTS OF LIMITED PARTNERS
Section 3.1 Limitation of Liability . The Limited Partners shall have no liability under this Agreement except as expressly provided in this Agreement or the Delaware Act.
Section 3.2 Management of Business . No Limited Partner, in its capacity as such, shall participate in the operation, management or control (within the meaning of the Delaware Act) of the Partnerships business, transact any business in the Partnerships name or have the power to sign documents for or otherwise bind the Partnership. No action taken by any Affiliate of the General Partner or any officer, director, employee, manager, member, general partner, agent or trustee of the General Partner or any of its Affiliates, or any officer, director, employee, manager, member, general partner, agent or trustee of a Group Member, in its capacity as such, shall be considered participating in the control of the business of the Partnership by a limited partner of the Partnership (within the meaning of Section 17-303(a) of the Delaware Act) nor shall any such action affect, impair or eliminate the limitations on the liability of the Limited Partners under this Agreement.
Section 3.3 Outside Activities of the Limited Partners . Subject to the provisions of Section 7.6, which shall continue to be applicable to the Persons referred to therein, regardless of whether such Persons shall also be Limited Partners, each Limited Partner shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities in direct competition with the Partnership Group. Neither the Partnership nor any of the other Partners shall have any rights by virtue of this Agreement in any business ventures of any Limited Partner.
Section 3.4 Rights of Limited Partners .
(a) Each Limited Partner shall have the right, for a purpose that is reasonably related, as determined by the General Partner, to such Limited Partners interest as a Limited Partner in the Partnership, upon reasonable written demand stating the purpose of such demand and at such Limited Partners own expense, to obtain:
(i) true and full information regarding the status of the business and financial condition of the Partnership ( provided that the requirements of this Section 3.4(a)(i) shall be satisfied if the Limited Partner is
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furnished the Partnerships most recent annual report and any subsequent quarterly or periodic reports required to be filed (or which would be required to be filed) with the Commission pursuant to Section 13 of the Exchange Act);
(ii) a current list of the name and last known business, residence or mailing address of each Record Holder; and
(iii) a copy of this Agreement and the Certificate of Limited Partnership and all amendments thereto, together with copies of the executed copies of all powers of attorney pursuant to which this Agreement, the Certificate of Limited Partnership and all amendments thereto have been executed.
The rights pursuant to this Section 3.4(a) replace in their entirety any rights to information provided for in Section 17-305(a) of the Delaware Act and each of the Partners, each other Person who acquires an interest in a Partnership Interest and each other Person bound by this Agreement hereby agrees to the fullest extent permitted by law that they do not have any rights as Partners to receive any information either pursuant to Sections 17-305(a) of the Delaware Act or otherwise except for the information identified in Section 3.4(a).
(b) The General Partner may keep confidential from the Limited Partners, for such period of time as the General Partner deems reasonable, (i) any information that the General Partner reasonably believes to be in the nature of trade secrets or (ii) other information the disclosure of which the General Partner believes (A) is not in the best interests of the Partnership Group, (B) could damage the Partnership Group or its business or (C) that any Group Member is required by law or by agreement with any third party to keep confidential.
(c) Notwithstanding any other provision of this Agreement or Section 17-305 of the Delaware Act, each of the Partners, each other Person who acquires an interest in a Partnership Interest and each other Person bound by this Agreement hereby agrees to the fullest extent permitted by law that they do not have rights to receive information from the Partnership or any Indemnitee for the purpose of determining whether to pursue litigation or assist in pending litigation against the Partnership or any Indemnitee relating to the affairs of the Partnership except pursuant to the applicable rules of discovery relating to litigation commenced by such Person.
ARTICLE IV
CERTIFICATES; RECORD HOLDERS; TRANSFER OF PARTNERSHIP INTERESTS;
REDEMPTION OF PARTNERSHIP INTERESTS
Section 4.1 Certificates . Notwithstanding anything to the contrary herein, unless the General Partner shall determine otherwise in respect of some or all of any or all classes of Partnership Interests, Partnership Interests shall not be evidenced by certificates. Certificates that are issued shall be executed on behalf of the Partnership by the Chairman of the Board, President or any Executive Vice President or Vice President and the Chief Financial Officer or the Secretary or any Assistant Secretary of the General Partner. No Certificate for a class of Partnership Interests shall be valid for any purpose until it has been countersigned by the Transfer Agent for such class of Partnership Interests; provided, however , that if the General Partner elects to cause the Partnership to issue Partnership Interests of such class in global form, the Certificate shall be valid upon receipt of a certificate from the Transfer Agent certifying that the Partnership Interests have been duly registered in accordance with the directions of the Partnership. Subject to the requirements of Section 6.7(c), if Common Units are evidenced by Certificates, on or after the date on which Subordinated Units are converted into Common Units, the Record Holders of such Subordinated Units (a) if the Subordinated Units are evidenced by Certificates, may exchange such Certificates for Certificates evidencing Common Units or (b) if the Subordinated Units are not evidenced by Certificates, shall be issued Certificates evidencing Common Units.
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Section 4.2 Mutilated, Destroyed, Lost or Stolen Certificates .
(a) If any mutilated Certificate is surrendered to the Transfer Agent, the appropriate officers of the General Partner on behalf of the Partnership shall execute, and the Transfer Agent shall countersign and deliver in exchange therefor, a new Certificate evidencing the same number and type of Partnership Interests as the Certificate so surrendered.
(b) The appropriate officers of the General Partner on behalf of the Partnership shall execute and deliver, and the Transfer Agent shall countersign, a new Certificate in place of any Certificate previously issued if the Record Holder of the Certificate:
(i) makes proof by affidavit, in form and substance satisfactory to the General Partner, that a previously issued Certificate has been lost, destroyed or stolen;
(ii) requests the issuance of a new Certificate before the General Partner has notice that the Certificate has been acquired by a purchaser for value in good faith and without notice of an adverse claim;
(iii) if requested by the General Partner, delivers to the General Partner a bond, in form and substance satisfactory to the General Partner, with surety or sureties and with fixed or open penalty as the General Partner may direct to indemnify the Partnership, the Partners, the General Partner and the Transfer Agent against any claim that may be made on account of the alleged loss, destruction or theft of the Certificate; and
(iv) satisfies any other reasonable requirements imposed by the General Partner or the Transfer Agent.
If a Limited Partner fails to notify the General Partner within a reasonable period of time after such Limited Partner has notice of the loss, destruction or theft of a Certificate, and a transfer of the Limited Partner Interests represented by the Certificate is registered before the Partnership, the General Partner or the Transfer Agent receives such notification, to the fullest extent permitted by law, the Limited Partner shall be precluded from making any claim against the Partnership, the General Partner or the Transfer Agent for such transfer or for a new Certificate.
(c) As a condition to the issuance of any new Certificate under this Section 4.2, the General Partner may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Transfer Agent) reasonably connected therewith.
Section 4.3 Record Holders . The Partnership and the General Partner shall be entitled to recognize the Record Holder as the Partner with respect to any Partnership Interest and, accordingly, shall not be bound to recognize any equitable or other claim to, or interest in, such Partnership Interest on the part of any other Person, regardless of whether the Partnership shall have actual or other notice thereof, except as otherwise provided by law or any applicable rule, regulation, guideline or requirement of any National Securities Exchange on which such Partnership Interests are listed or admitted to trading. Without limiting the foregoing, when a Person (such as a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing) is acting as nominee, agent or in some other representative capacity for another Person in acquiring and/or holding Partnership Interests, as between the Partnership on the one hand, and such other Persons on the other, such representative Person shall be (a) the Record Holder of such Partnership Interest and (b) bound by this Agreement and shall have the rights and obligations of a Partner hereunder as, and to the extent, provided herein.
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Section 4.4 Transfer Generally .
(a) The term transfer, when used in this Agreement with respect to a Partnership Interest, shall mean a transaction by which the holder of a Partnership Interest assigns such Partnership Interest to another Person who is or becomes a Partner, and includes a sale, assignment, gift, exchange or any other disposition by law or otherwise, excluding a pledge, encumbrance, hypothecation or mortgage but including any transfer upon foreclosure of any pledge, encumbrance, hypothecation or mortgage.
(b) No Partnership Interest shall be transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article IV. Any transfer or purported transfer of a Partnership Interest not made in accordance with this Article IV shall be, to the fullest extent permitted by law, null and void.
(c) Nothing contained in this Agreement shall be construed to prevent a disposition by any stockholder, member, partner or other owner of any Partner of any or all of the shares of stock, membership interests, partnership interests or other ownership interests in such Partner and the term transfer shall not mean any such disposition.
Section 4.5 Registration and Transfer of Limited Partner Interests .
(a) The General Partner shall keep or cause to be kept on behalf of the Partnership a register in which, subject to such reasonable regulations as it may prescribe and subject to the provisions of Section 4.5(b), the Partnership will provide for the registration and transfer of Limited Partner Interests.
(b) The Partnership shall not recognize any transfer of Limited Partner Interests evidenced by Certificates until the Certificates evidencing such Limited Partner Interests are surrendered for registration of transfer. No charge shall be imposed by the General Partner for such transfer; provided , that as a condition to the issuance of any new Certificate under this Section 4.5, the General Partner may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed with respect thereto. Upon surrender of a Certificate for registration of transfer of any Limited Partner Interests evidenced by a Certificate, and subject to the provisions hereof, the appropriate officers of the General Partner on behalf of the Partnership shall execute and deliver, and in the case of Certificates evidencing Limited Partner Interests, the Transfer Agent shall countersign and deliver, in the name of the holder or the designated transferee or transferees, as required pursuant to the holders instructions, one or more new Certificates evidencing the same aggregate number and type of Limited Partner Interests as was evidenced by the Certificate so surrendered.
(c) By acceptance of the transfer of any Limited Partner Interests in accordance with this Section 4.5 and except as provided in Section 4.8, each transferee of a Limited Partner Interest (including any nominee holder or an agent or representative acquiring such Limited Partner Interests for the account of another Person) acknowledges and agrees to the provisions of Section 10.1(a).
(d) Subject to (i) the foregoing provisions of this Section 4.5, (ii) Section 4.3, (iii) Section 4.7, (iv) with respect to any class or series of Limited Partner Interests, the provisions of any statement of designations or an amendment to this Agreement establishing such class or series, (v) any contractual provisions binding on any Limited Partner and (vi) provisions of applicable law including the Securities Act, Limited Partner Interests shall be freely transferable.
(e) The General Partner and its Affiliates shall have the right at any time to transfer their Subordinated Units, Common Units and Incentive Distribution Rights to one or more Persons.
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Section 4.6 Transfer of the General Partners General Partner Interest .
(a) The General Partner may at its option transfer all or any part of its General Partner Interest without approval from any other Partner.
(b) Notwithstanding anything herein to the contrary, no transfer by the General Partner of all or any part of its General Partner Interest to another Person shall be permitted unless (i) the transferee agrees to assume the rights and duties of the General Partner under this Agreement and to be bound by the provisions of this Agreement, (ii) the Partnership receives an Opinion of Counsel that such transfer would not result in the loss of limited liability under the Delaware Act of any Limited Partner or cause the Partnership to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already so treated or taxed) and (iii) such transferee also agrees to purchase all (or the appropriate portion thereof, if applicable) of the partnership or membership interest held by the General Partner as the general partner or managing member, if any, of each other Group Member. In the case of a transfer pursuant to and in compliance with this Section 4.6, the transferee or successor (as the case may be) shall, subject to compliance with the terms of Section 10.2 be admitted to the Partnership as the General Partner effective immediately prior to the transfer of the General Partner Interest, and the business of the Partnership shall continue without dissolution.
Section 4.7 Restrictions on Transfers .
(a) Notwithstanding the other provisions of this Article IV, no transfer of any Partnership Interests shall be made if such transfer would (i) violate the then applicable federal or state securities laws or rules and regulations of the Commission, any state securities commission or any other governmental authority with jurisdiction over such transfer, (ii) terminate the existence or qualification of the Partnership under the laws of the jurisdiction of its formation, or (iii) cause the Partnership to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already so treated or taxed).
(b) The General Partner may impose restrictions on the transfer of Partnership Interests if it determines, with the advice of counsel, that such restrictions are necessary or advisable to (i) avoid a significant risk of the Partnership becoming taxable as a corporation or otherwise becoming taxable as an entity for U.S. federal income tax purposes or (ii) preserve the uniformity of the Limited Partner Interests (or any class or classes thereof). The General Partner may impose such restrictions by amending this Agreement; provided , however, that any amendment that would result in the delisting or suspension of trading of any class of Limited Partner Interests on the principal National Securities Exchange on which such class of Limited Partner Interests is then listed or admitted to trading must be approved, prior to such amendment being effected, by the holders of a majority of the Outstanding Limited Partner Interests of such class.
(c) Nothing contained in this Agreement, other than Section 4.7(a), shall preclude the settlement of any transactions involving Partnership Interests entered into through the facilities of any National Securities Exchange on which such Partnership Interests are listed or admitted to trading.
Section 4.8 Eligibility Certificates; Ineligible Holders .
(a) If at any time the General Partner determines, with the advice of counsel, that:
(i) the U.S. federal income tax status (or lack of proof of the U.S. federal income tax status) of one or more Limited Partners or their owners has or is reasonably likely to have a material adverse effect on the rates that can be charged to customers by any Group Member with respect to assets that are subject to regulation by the Federal Energy Regulatory Commission or similar regulatory body (a Rate Eligibility Trigger ); or
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(ii) any Group Member is subject to any federal, state or local law or regulation that would create a substantial risk of cancellation or forfeiture of any property in which the Group Member has an interest based on the nationality, citizenship or other related status of a Limited Partner or its owner(s) (a Citizenship Eligibility Trigger );
then, the General Partner may adopt such amendments to this Agreement as it determines to be necessary or appropriate to (x) in the case of a Rate Eligibility Trigger, obtain such proof of the U.S. federal income tax status of the Limited Partners and, to the extent relevant, their owners, as the General Partner determines to be necessary or appropriate to reduce the risk of occurrence of a material adverse effect on the rates that can be charged to customers by any Group Member or (y) in the case of a Citizenship Eligibility Trigger, obtain such proof of the nationality, citizenship or other related status of the Limited Partners and, to the extent relevant, their owners as the General Partner determines to be necessary or appropriate to eliminate or mitigate the risk of cancellation or forfeiture of any properties or interests therein.
(b) Such amendments may include provisions requiring all Partners to certify as to their (and their owners) status as Eligible Holders upon demand and on a regular basis, as determined by the General Partner, and may require transferees of Units to so certify prior to being admitted to the Partnership as Partners (any such required certificate, an Eligibility Certificate ).
(c) Such amendments may provide that any Partner who fails to furnish to the General Partner within a reasonable period requested proof of its (and its owners) status as an Eligible Holder or if upon receipt of such Eligibility Certificate or other requested information the General Partner determines that a Limited Partner (or its owner) is not an Eligible Holder (an Ineligible Holder ), the Partnership Interests owned by such Limited Partner shall be subject to redemption in accordance with the provisions of Section 4.9. In addition, the General Partner shall be substituted and treated as the owner of all Partnership Interests owned by an Ineligible Holder.
(d) The General Partner shall, in exercising voting rights in respect of Partnership Interests held by it on behalf of Ineligible Holders, cast such votes in the same manner and in the same ratios as the votes of Partners (including the General Partner and its Affiliates) in respect of Partnership Interests other than those of Ineligible Holders are cast.
(e) Upon dissolution of the Partnership, an Ineligible Holder shall have no right to receive a distribution in kind pursuant to Section 12.4 but shall be entitled to the cash equivalent thereof, and the Partnership shall provide cash in exchange for an assignment of the Ineligible Holders share of any distribution in kind. Such payment and assignment shall be treated for purposes hereof as a purchase by the Partnership from the Ineligible Holder of the portion of his Partnership Interest representing his right to receive his share of such distribution in kind.
(f) At any time after he can and does certify that he has become an Eligible Holder, an Ineligible Holder may, upon application to the General Partner, request that with respect to any Partnership Interests of such Ineligible Holder not redeemed pursuant to Section 4.9, such Ineligible Holder be admitted as a Partner, and upon approval of the General Partner, such Ineligible Holder shall be admitted as a Partner and shall no longer constitute an Ineligible Holder and the General Partner shall cease to be deemed to be the owner in respect of such Ineligible Holders Partnership Interests.
Section 4.9 Redemption of Partnership Interests of Ineligible Holders .
(a) If at any time a Partner fails to furnish an Eligibility Certificate or other information requested within the period of time specified in amendments adopted pursuant to Section 4.8 or if upon receipt of such Eligibility Certificate, the General Partner determines, with the advice of counsel, that a Partner is an Ineligible
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Holder, the Partnership may, unless the Partner establishes to the satisfaction of the General Partner that such Partner is an Eligible Holder or has transferred his Limited Partner Interests to a Person who is an Eligible Holder and who furnishes an Eligibility Certificate to the General Partner prior to the date fixed for redemption as provided below, redeem the Partnership Interest of such Partner as follows:
(i) The General Partner shall, not later than the 30th day before the date fixed for redemption, give notice of redemption to the Partner, at his last address designated on the records of the Partnership or the Transfer Agent, as applicable, by registered or certified mail, postage prepaid. The notice shall be deemed to have been given when so mailed. The notice shall specify the Redeemable Interests, the date fixed for redemption, the place of payment, that payment of the redemption price will be made upon redemption of the Redeemable Interests (or, if later in the case of Redeemable Interests evidenced by Certificates, upon surrender of the Certificate evidencing the Redeemable Interests) and that on and after the date fixed for redemption no further allocations or distributions to which the Partner would otherwise be entitled in respect of the Redeemable Interests will accrue or be made.
(ii) The aggregate redemption price for Redeemable Interests shall be an amount equal to the Current Market Price (the date of determination of which shall be the date fixed for redemption) of Partnership Interests of the class to be so redeemed multiplied by the number of Partnership Interests of each such class included among the Redeemable Interests. The redemption price shall be paid, as determined by the General Partner, in cash or by delivery of a promissory note of the Partnership in the principal amount of the redemption price, bearing interest at the rate of 8% annually and payable in three equal annual installments of principal together with accrued interest, commencing one year after the redemption date.
(iii) The Partner or his duly authorized representative shall be entitled to receive the payment for the Redeemable Interests at the place of payment specified in the notice of redemption on the redemption date (or, if later in the case of Redeemable Interests evidenced by Certificates, upon surrender by or on behalf of the Partner at the place specified in the notice of redemption, of the Certificate evidencing the Redeemable Interests, duly endorsed in blank or accompanied by an assignment duly executed in blank).
(iv) After the redemption date, Redeemable Interests shall no longer constitute issued and Outstanding Limited Partner Interests.
(b) The provisions of this Section 4.9 shall also be applicable to Partnership Interests held by a Partner as nominee of a Person determined to be an Ineligible Holder.
(c) Nothing in this Section 4.9 shall prevent the recipient of a notice of redemption from transferring his Partnership Interest before the redemption date if such transfer is otherwise permitted under this Agreement. Upon receipt of notice of such a transfer, the General Partner shall withdraw the notice of redemption, provided the transferee of such Partnership Interest certifies to the satisfaction of the General Partner that he is an Eligible Holder. If the transferee fails to make such certification, such redemption will be effected from the transferee on the original redemption date.
ARTICLE V
CAPITAL CONTRIBUTIONS AND ISSUANCE OF PARTNERSHIP INTERESTS
Section 5.1 Organizational Contributions . In connection with the formation of the Partnership under the Delaware Act, the General Partner has been admitted as the General Partner of the Partnership. The Organizational Limited Partner made an initial Capital Contribution to the Partnership in the amount of $1,000.00 in exchange for a Limited Partner Interest equal to a 100% Percentage Interest and has been admitted
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as a Limited Partner of the Partnership. As of the Closing Date, and effective with the admission of another Limited Partner to the Partnership, the interests of the Organizational Limited Partner will be redeemed as provided in the Contribution Agreement and the initial Capital Contributions of the Organizational Limited Partner will be refunded. One-hundred percent of any interest or other profit that may have resulted from the investment or other use of such initial Capital Contributions will be allocated and distributed to the Organizational Limited Partner.
Section 5.2 Contributions by the General Partner and its Affiliates . On the Closing Date and pursuant to the Contribution Agreement, WPT LLC shall contribute to the Partnership, as a Capital Contribution, the Reserves Contribution (as defined in the Contribution Agreement) in exchange for Common Units, Subordinated Units and the Incentive Distribution Rights, collectively.
Section 5.3 Contributions by Initial Limited Partners .
(a) On the Closing Date and pursuant to the Underwriting Agreement, each Underwriter shall contribute cash to the Partnership in exchange for the issuance by the Partnership of Common Units to each Underwriter, all as set forth in the Underwriting Agreement.
(b) Upon the exercise, if any, of the Over-Allotment Option, each Underwriter shall contribute cash to the Partnership in exchange for the issuance by the Partnership of Common Units to each Underwriter, all as set forth in the Underwriting Agreement.
Section 5.4 Interest and Withdrawal . No interest shall be paid by the Partnership on Capital Contributions. No Partner shall be entitled to the withdrawal or return of its Capital Contribution, except to the extent, if any, that distributions made pursuant to this Agreement or upon liquidation of the Partnership may be considered as such by law and then only to the extent provided for in this Agreement. Except to the extent expressly provided in this Agreement, no Partner shall have priority over any other Partner either as to the return of Capital Contributions or as to profits, losses or distributions.
Section 5.5 Capital Accounts .
(a) The Partnership shall maintain for each Partner (or a beneficial owner of Partnership Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method acceptable to the General Partner) owning a Partnership Interest a separate Capital Account with respect to such Partnership Interest in accordance with the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Such Capital Account shall be increased by (i) the amount of all Capital Contributions made by the Partner with respect to such Partnership Interest and (ii) all items of Partnership income and gain computed in accordance with Section 5.5(b) and allocated with respect to such Partnership Interest pursuant to Section 6.1, and decreased by (x) the amount of cash or Net Agreed Value of all actual and deemed distributions of cash or property made to the Partner with respect to such Partnership Interest and (y) all items of Partnership deduction and loss computed in accordance with Section 5.5(b) and allocated with respect to such Partnership Interest pursuant to Section 6.1.
(b) For purposes of computing the amount of any item of income, gain, loss or deduction that is to be allocated pursuant to Article VI and is to be reflected in the Partners Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for U.S. federal income tax purposes (including any method of depreciation, cost recovery or amortization used for that purpose), provided , that:
(i) Solely for purposes of this Section 5.5, the Partnership shall be treated as owning directly its proportionate share (as determined by the General Partner based upon the provisions of the applicable Group
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Member Agreement) of all property owned by (A) any other Group Member that is classified as a partnership for U.S. federal income tax purposes and (B) any other partnership, limited liability company, unincorporated business or other entity classified as a partnership for U.S. federal income tax purposes of which a Group Member is, directly or indirectly, a partner, member or other equity holder.
(ii) All fees and other expenses incurred by the Partnership to promote the sale of (or to sell) a Partnership Interest that can neither be deducted nor amortized under Section 709 of the Code, if any, shall, for purposes of Capital Account maintenance, be treated as an item of deduction at the time such fees and other expenses are incurred and shall be allocated among the Partners pursuant to Section 6.1.
(iii) The computation of all items of income, gain, loss and deduction shall be made (x) except as otherwise provided in this Agreement and Treasury Regulation Section 1.704-1(b)(2)(iv)(m), without regard to any election under Section 754 of the Code that may be made by the Partnership, and (y) as to those items described in Section 705(a)(1)(B) or 705(a)(2)(B) of the Code, without regard to the fact that such items are not includable in gross income or are neither currently deductible nor capitalized for U.S. federal income tax purposes.
(iv) To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) of the Code (including pursuant to Treasury Regulation Section 1.734-2(b)(1)) is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment in the Capital Accounts shall be treated as an item of gain or loss.
(v) In the event the Carrying Value of Partnership property is adjusted pursuant to Section 5.5(d), any Unrealized Gain resulting from such adjustment shall be treated as an item of gain and any Unrealized Loss resulting from such adjustment shall be treated as an item of loss.
(vi) Any income, gain or loss attributable to the taxable disposition of any Partnership property shall be determined as if the adjusted basis of such property as of such date of disposition were equal in amount to the propertys Carrying Value as of such date.
(vii) Any deductions for depreciation, cost recovery or amortization attributable to any Contributed Property or Adjusted Property shall be determined under the rules prescribed by Treasury Regulation Section 1.704-3(d) as if the adjusted basis of such property were equal to the Carrying Value of such property immediately following adjustment pursuant to Section 5.5(d).
(viii) The Gross Liability Value of each Liability of the Partnership described in Treasury Regulation Section 1.752-7(b)(3)(i) shall be adjusted at such times as provided in this Agreement for an adjustment to the Carrying Values of Partnership property. The amount of any such adjustment shall be treated for purposes hereof as an item of loss (if the adjustment increases the Carrying Value of such Liability of the Partnership) or an item of gain (if the adjustment decreases the Carrying Value of such Liability of the Partnership).
(c) (i) Except as otherwise provided in this Section 5.5(c), a transferee of a Partnership Interest shall succeed to a pro rata portion of the Capital Account of the transferor relating to the Partnership Interest so transferred.
(ii) Subject to Section 6.7(b), immediately prior to the transfer of (1) an Affiliate Retained Unit, (2) a Subordinated Unit or (3) a Subordinated Unit that has converted into a Common Unit pursuant to Section 5.7 by a holder thereof (in each case, other than a transfer to an Affiliate unless the General Partner elects
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to have this subparagraph 5.5(c)(ii) apply), the Capital Account maintained for such Person with respect to such transferred Units will (A) first, be allocated to the Units to be transferred in an amount equal to the product of (x) the number of such Units to be transferred and (y) the Per Unit Capital Amount for an Initial Common Unit, and (B) second, any remaining balance in such Capital Account will be retained by the transferor, regardless of whether it has retained any Units. Following any such allocation, the transferors Capital Account, if any, maintained with respect to the retained Affiliate Retained Units, Subordinated Units or retained converted Subordinated Units, if any, will have a balance equal to the amount allocated under clause (B) above, and the transferees Capital Account established with respect to the transferred Units will have a balance equal to the amount allocated under clause (A) above.
(iii) Subject to Section 6.8(b), immediately prior to the transfer of an IDR Reset Common Unit by a holder thereof (other than a transfer to an Affiliate unless the General Partner elects to have this subparagraph 5.5(c)(iii) apply), the Capital Account maintained for such Person with respect to its IDR Reset Common Units will (A) first, be allocated to the IDR Reset Common Units to be transferred in an amount equal to the product of (x) the number of such IDR Reset Common Units to be transferred and (y) the Per Unit Capital Amount for a Common Unit, and (B) second, any remaining balance in such Capital Account will be retained by the transferor, regardless of whether it has retained any IDR Reset Common Units. Following any such allocation, the transferors Capital Account, if any, maintained with respect to the retained IDR Reset Common Units, if any, will have a balance equal to the amount allocated under clause (B) above, and the transferees Capital Account established with respect to the transferred IDR Reset Common Units will have a balance equal to the amount allocated under clause (A) above.
(d) (i) Consistent with Treasury Regulation Section 1.704-1(b)(2)(iv)(f) and 1.704-1(b)(2)(iv)(h)(2), on an issuance of additional Partnership Interests for cash or Contributed Property, the issuance of a Noncompensatory Option, the issuance of Partnership Interests as consideration for the provision of services, the issuance of IDR Reset Common Units pursuant to Section 5.11, or the conversion of the Combined Interest to Common Units pursuant to Section 11.3(b), the Carrying Value of each Partnership property immediately prior to such issuance shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property; provided , however , that in the event of the issuance of a Partnership Interest pursuant to the exercise of a Noncompensatory Option where the right to share in Partnership capital represented by such Partnership Interest differs from the consideration paid to acquire and exercise such option, the Carrying Value of each Partnership property immediately after the issuance of such Partnership Interest shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property and the Capital Accounts of the Partners shall be adjusted in a manner consistent with Treasury Regulation Section 1.704-1(b)(2)(iv)(s); provided further , that in the event of an issuance of Partnership Interests for a de minimis amount of cash or Contributed Property, in the event of an issuance of a Noncompensatory Option to acquire a de minimis Partnership Interest or in the event of an issuance of a de minimis amount of Partnership Interests as consideration for the provision of services, the General Partner may determine that such adjustments are unnecessary for the proper administration of the Partnership. In determining such Unrealized Gain or Unrealized Loss, the aggregate fair market value of all Partnership property (including cash or cash equivalents) immediately prior to the issuance of additional Partnership Interests (or, in the case of a Revaluation Event resulting from the exercise of a Noncompensatory Option, immediately after the issuance of the Partnership Interest acquired pursuant to the exercise of such Noncompensatory Option) shall be determined by the General Partner using such method of valuation as it may adopt. In making its determination of the fair market values of individual properties, the General Partner may first determine an aggregate value for the assets of the Partnership that takes into account the current trading price of the Common Units, the fair market value of all other Partnership Interests at such time and the value of Partnership Liabilities. The General Partner may allocate such aggregate value among the individual properties of the Partnership (in such manner as it determines appropriate). Absent a contrary determination by the General Partner, the aggregate fair market value of all
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Partnership assets (including, without limitation, cash or cash equivalents) immediately prior to a Revaluation Event shall be the value that would result in the Capital Account for each Common Unit that is Outstanding prior to such Revaluation Event being equal to the Event Issue Value.
(ii) In accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f), immediately prior to any distribution to a Partner of any Partnership property (other than a distribution of cash that is not in redemption or retirement of a Partnership Interest), the Carrying Value of all Partnership property shall be adjusted upward or downward to reflect any Unrealized Gain or Unrealized Loss attributable to such Partnership property. In determining such Unrealized Gain or Unrealized Loss the aggregate fair market value of all Partnership property (including cash or cash equivalents) immediately prior to a distribution shall (A) in the case of a distribution other than one made pursuant to Section 12.4, be determined in the same manner as that provided in Section 5.5(d)(i) or (B) in the case of a liquidating distribution pursuant to Section 12.4, be determined by the Liquidator using such method of valuation as it may adopt.
Section 5.6 Issuances of Additional Partnership Interests and Derivative Instruments .
(a) The Partnership may issue additional Partnership Interests and Derivative Instruments 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 the General Partner shall determine, all without the approval of any Limited Partners.
(b) Each additional Partnership Interest authorized to be issued by the Partnership pursuant to Section 5.6(a) may be issued in one or more classes, or one or more series of any such classes, with such designations, preferences, rights, powers and duties (which may be senior to existing classes and series of Partnership Interests), as shall be fixed by the General Partner, including (i) the right to share in Partnership profits and losses or items thereof; (ii) the right to share in Partnership distributions; (iii) the rights upon dissolution and liquidation of the Partnership; (iv) whether, and the terms and conditions upon which, the Partnership may or shall be required to redeem the Partnership Interest (including sinking fund provisions); (v) whether such Partnership Interest is issued with the privilege of conversion or exchange and, if so, the terms and conditions of such conversion or exchange; (vi) the terms and conditions upon which each Partnership Interest will be issued, evidenced by Certificates and assigned or transferred; (vii) the method for determining the Percentage Interest as to such Partnership Interest; and (viii) the right, if any, of each such Partnership Interest to vote on Partnership matters, including matters relating to the relative rights, preferences and privileges of such Partnership Interest.
(c) The General Partner shall take all actions that it determines to be necessary or appropriate in connection with (i) each issuance of Partnership Interests and Derivative Instruments pursuant to this Section 5.6, (ii) the conversion of the Combined Interest into Units pursuant to the terms of this Agreement, (iii) the issuance of Common Units pursuant to Section 5.11, (iv) reflecting admission of such additional Limited Partners in the books and records of the Partnership as the Record Holders of such Limited Partner Interests and (v) all additional issuances of Partnership Interests and Derivative Instruments. The General Partner shall determine the relative rights, powers and duties of the holders of the Units or other Partnership Interests and Derivative Instruments being so issued. The General Partner shall do all things necessary to comply with the Delaware Act and is authorized and directed to do all things that it determines to be necessary or appropriate in connection with any future issuance of Partnership Interests and Derivative Instruments or in connection with the conversion of the Combined Interest into Units pursuant to the terms of this Agreement, including compliance with any statute, rule, regulation or guideline of any federal, state or other governmental agency or any National Securities Exchange on which the Units or other Partnership Interests are listed or admitted to trading.
(d) No fractional Units shall be issued by the Partnership.
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Section 5.7 Conversion of Subordinated Units .
(a) All of the Subordinated Units shall convert into Common Units on a one-for-one basis on the first Business Day following the distribution pursuant to Section 6.3(a) in respect of the final full Quarter of the Subordination Period.
(b) The Subordinated Units may convert into Common Units on a one-for-one basis as set forth in, and pursuant to the terms of, Section 11.4.
Section 5.8 Limited Preemptive Right . Except as provided in this Section 5.8 or as otherwise provided in a separate agreement by the Partnership, no Person shall have any preemptive, preferential or other similar right with respect to the issuance of any Partnership Interest, whether unissued, held in the treasury or hereafter created. The General Partner shall have the right, which it may from time to time assign in whole or in part to any of its Affiliates, to purchase Partnership Interests from the Partnership whenever, and on the same terms that, the Partnership issues Partnership Interests to Persons other than the General Partner and its Affiliates, to the extent necessary to maintain the Percentage Interests of the General Partner and its Affiliates equal to that which existed immediately prior to the issuance of such Partnership Interests. The determination by the General Partner to exercise (or refrain from exercising) its right pursuant to the immediately preceding sentence shall be a determination made in its individual capacity.
Section 5.9 Splits and Combinations .
(a) The Partnership may make a distribution of Partnership Interests to all Record Holders or may effect a subdivision or combination of Partnership Interests. Upon any such event, each Partner shall have the same Percentage Interest in the Partnership as before such event (subject to the effect of Section 5.9(d)), and any amounts calculated on a per Unit basis (including any Common Unit Arrearage or Cumulative Common Unit Arrearage) or stated as a number of Units shall be proportionately adjusted retroactive to the beginning of the Partnership.
(b) Whenever such a distribution, subdivision or combination of Partnership Interests is declared, the General Partner shall select a Record Date as of which the distribution, subdivision or combination shall be effective and shall send notice thereof at least 20 days prior to such Record Date to each Record Holder as of a date not less than 10 days prior to the date of such notice.
(c) Promptly following any such distribution, subdivision or combination, the Partnership may issue Certificates to the Record Holders of Partnership Interests as of the applicable Record Date representing the new number of Partnership Interests held by such Record Holders, or the General Partner may adopt such other procedures that it determines to be necessary or appropriate to reflect such changes. If any such combination results in a smaller total number of Partnership Interests Outstanding, the Partnership shall require, as a condition to the delivery to a Record Holder of such new Certificate, the surrender of any Certificate held by such Record Holder immediately prior to such Record Date.
(d) The Partnership shall not issue fractional Units upon any distribution, subdivision or combination of Units. If a distribution, subdivision or combination of Units would result in the issuance of fractional Units but for the provisions of Section 5.6(d) and this Section 5.9(d), each fractional Unit shall be rounded to the nearest whole Unit (and a 0.5 Unit shall be rounded to the next higher Unit).
Section 5.10 Fully Paid and Non-Assessable Nature of Limited Partner Interests . All Limited Partner Interests issued pursuant to, and in accordance with the requirements of, this Article V shall be fully paid and
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non-assessable Limited Partner Interests in the Partnership, except as such non-assessability may be affected by Section 17-607 or 17-804 of the Delaware Act.
Section 5.11 Issuance of Common Units in Connection with Reset of Incentive Distribution Rights .
(a) Subject to the provisions of this Section 5.11, the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the holders of Incentive Distribution Rights) shall have the option, at any time when there are no Subordinated Units outstanding and the Partnership has made a distribution pursuant to Section 6.4(a)(vii) or Section 6.4(b)(v) for each of the four most recently completed Quarters, to make an election (the IDR Reset Election ) to cause the Target Distributions to be reset in accordance with the provisions of Section 5.11(e) and, in connection therewith, the holder or holders of the Incentive Distribution Rights will become entitled to receive their Pro Rata share of a number of Common Units (the IDR Reset Common Units ) equal to the result of dividing (i) the amount of cash distributions made by the Partnership for the Quarter immediately preceding the giving of the Reset Notice in respect of the Incentive Distribution Rights by (ii) the cash distribution made by the Partnership in respect of each Common Unit for the Quarter immediately preceding the giving of the Reset Notice (the Reset MQD ) (the number of Common Units determined by such quotient is referred to herein as the Aggregate Quantity of IDR Reset Common Units ). The making of the IDR Reset Election in the manner specified in Section 5.11(b) shall cause the Target Distributions to be reset in accordance with the provisions of Section 5.11(e) and, in connection therewith, the holder or holders of the Incentive Distribution Rights will become entitled to receive Common Units on the basis specified above, without any further approval required by the General Partner or the Unitholders, at the time specified in Section 5.11(c) unless the IDR Reset Election is rescinded pursuant to Section 5.11(d).
(b) To exercise the right specified in Section 5.11(a), the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights) shall deliver a written notice (the Reset Notice ) to the Partnership. Within 10 Business Days after the receipt by the Partnership of such Reset Notice, the Partnership shall deliver a written notice to the holder or holders of the Incentive Distribution Rights of the Partnerships determination of the aggregate number of Common Units that each holder of Incentive Distribution Rights will be entitled to receive.
(c) The holder or holders of the Incentive Distribution Rights will be entitled to receive the Aggregate Quantity of IDR Reset Common Units on the fifteenth Business Day after receipt by the Partnership of the Reset Notice; provided , however , that the issuance of Common Units to the holder or holders of the Incentive Distribution Rights shall not occur prior to the approval of the listing or admission for trading of such Common Units by the principal National Securities Exchange upon which the Common Units are then listed or admitted for trading if any such approval is required pursuant to the rules and regulations of such National Securities Exchange.
(d) If the principal National Securities Exchange upon which the Common Units are then traded has not approved the listing or admission for trading of the Common Units to be issued pursuant to this Section 5.11 on or before the 30th calendar day following the Partnerships receipt of the Reset Notice and such approval is required by the rules and regulations of such National Securities Exchange, then the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights) shall have the right to either rescind the IDR Reset Election or elect to receive other Partnership Interests having such terms as the General Partner may approve that will provide (i) the same economic value, in the aggregate, as the Aggregate Quantity of IDR Reset Common Units would have had at the time of the Partnerships receipt of the Reset Notice, as determined by the General Partner, and (ii) for the subsequent conversion (on terms acceptable to the National Securities Exchange upon
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which the Common Units are then traded) of such Partnership Interests into Common Units within not more than 12 months following the Partnerships receipt of the Reset Notice upon the satisfaction of one or more conditions that are reasonably acceptable to the holder of the Incentive Distribution Rights (or, if there is more than one holder of the Incentive Distribution Rights, the holders of a majority in interest of the Incentive Distribution Rights).
(e) The Target Distributions shall be adjusted at the time of the issuance of Common Units or other Partnership Interests pursuant to this Section 5.11 such that (i) the Minimum Quarterly Distribution shall be reset to be equal to the Reset MQD, (ii) the First Target Distribution shall be reset to equal 115% of the Reset MQD, (iii) the Second Target Distribution shall be reset to equal 125% of the Reset MQD and (iv) the Third Target Distribution shall be reset to equal 150% of the Reset MQD.
(f) Upon the issuance of IDR Reset Common Units pursuant to Section 5.11(a) (or other Partnership Interests as described in Section 5.11(d)), the Capital Account maintained with respect to the Incentive Distribution Rights shall (i) first, be allocated to IDR Reset Common Units (or other Partnership Interests) in an amount equal to the product of (A) the Aggregate Quantity of IDR Reset Common Units (or other Partnership Interests) and (B) the Per Unit Capital Amount for an Initial Common Unit, and (ii) second, any remaining balance in such Capital Account will be retained by the holder(s) of the Incentive Distribution Rights. If there is not a sufficient Capital Account associated with the Incentive Distribution Rights to allocate the full Per Unit Capital Amount for an Initial Common Unit to the IDR Reset Common Units in accordance with clause (i) of this Section 5.11(f), the IDR Reset Common Units shall be subject to Sections 6.1(d)(x)(B) and (C).
ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
Section 6.1 Allocations for Capital Account Purposes . For purposes of maintaining the Capital Accounts and in determining the rights of the Partners among themselves, the Partnerships items of income, gain, loss and deduction (computed in accordance with Section 5.5(b)) for each taxable period shall be allocated among the Partners as provided herein below.
(a) Net Income . Net Income for each taxable period (including a pro rata part of each item of income, gain, loss and deduction taken into account in computing Net Income for such taxable period) shall be allocated as follows:
(i) First, to the General Partner until the aggregate amount of Net Income allocated to the General Partner pursuant to this Section 6.1(a)(i) for the current and all previous taxable periods is equal to the aggregate amount of Net Loss allocated to the General Partner pursuant to Section 6.1(b)(ii) for all previous taxable periods; and
(ii) Second, the balance, if any, 100% to the Unitholders, Pro Rata.
(b) Net Loss . Net Loss for each taxable period (including a pro rata part of each item of income, gain, loss and deduction taken into account in computing Net Loss for such taxable period) shall be allocated as follows:
(i) First, to the Unitholders, Pro Rata; provided , that Net Loss shall not be allocated pursuant to this Section 6.1(b)(i) to the extent that such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such taxable period (or increase any existing deficit balance in its Adjusted Capital Account); and
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(ii) Second, the balance, if any, 100% to the General Partner.
(c) Net Termination Gains and Losses . Any Net Termination Gain or Net Termination Loss occurring during a taxable period shall be allocated in the manner set forth in this Section 6.1(b)(ii). All allocations under this Section 6.1(b)(ii) shall be made after Capital Account balances have been adjusted by all other allocations provided under this Section 6.1 and after all distributions of cash and cash equivalents provided under Section 6.4 and Section 6.5 have been made; provided , however , that solely for purposes of this Section 6.1(b)(ii), Capital Accounts shall not be adjusted for distributions made pursuant to Section 12.4; and provided , further , that Net Termination Gain or Net Termination Loss attributable to (i) Liquidation Gain or Liquidation Loss shall be allocated on the last day of the taxable period during which such Liquidation Gain or Liquidation Loss occurred, (ii) Sale Gain or Sale Loss shall be allocated as of the time of the sale or disposition giving rise to such Sale Gain or Sale Loss and allocated to the Partners consistent with the second proviso set forth in Section 6.2(f) and (iii) Revaluation Gain or Revaluation Loss shall be allocated on the date of the Revaluation Event giving rise to such Revaluation Gain or Revaluation Loss.
(i) Except as provided in Section 6.1(c)(iv) and subject to the provisions set forth in the last sentence of this Section 6.1(c)(i), Net Termination Gain (including a pro rata part of each item of income, gain, loss, and deduction taken into account in computing Net Termination Gain) shall be allocated in the following order and priority:
(A) First, to each Partner having a deficit balance in its Adjusted Capital Account, in the proportion that such deficit balance bears to the total deficit balances in the Adjusted Capital Accounts of all Partners, until each such Partner has been allocated Net Termination Gain equal to any such deficit balance in its Adjusted Capital Account;
(B) Second, to all Unitholders holding Common Units, Pro Rata, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) its Unrecovered Initial Unit Price, (2) if the Net Termination Gain is attributable to Liquidation Gain, the Minimum Quarterly Distribution for the Quarter during which the Liquidation Date occurs, reduced by any distribution pursuant to Section 6.4(a)(i) or Section 6.4(b)(i) with respect to such Common Unit for such Quarter (the amount determined pursuant to this clause (2) is hereinafter referred to as the Unpaid MQD ) and (3) any then existing Cumulative Common Unit Arrearage;
(C) Third, if such Net Termination Gain is recognized (or is deemed to be recognized) prior to the conversion of the last Outstanding Subordinated Unit into a Common Unit, to all Unitholders holding Subordinated Units, Pro Rata, until the Capital Account in respect of each Subordinated Unit then Outstanding equals the sum of (1) its Unrecovered Initial Unit Price, determined for the taxable period (or portion thereof) to which this allocation of gain relates, and (2) if the Net Termination Gain is attributable to Liquidation Gain, the Minimum Quarterly Distribution for the Quarter during which the Liquidation Date occurs, reduced by any distribution pursuant to Section 6.4(a)(iii) with respect to such Subordinated Unit for such Quarter;
(D) Fourth, to all Unitholders, Pro Rata, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) its Unrecovered Initial Unit Price, (2) the Unpaid MQD, (3) any then existing Cumulative Common Unit Arrearage, and (4) the excess of (aa) the First Target Distribution less the Minimum Quarterly Distribution for each Quarter after the Closing Date or the date of the most recent IDR Reset Election, if any, over (bb) the cumulative per Unit amount of any distributions of cash or cash equivalents that are deemed to be Operating Surplus made pursuant to Section 6.4(a)(iv) and Section 6.4(b)(ii) for such period (the sum of (1), (2), (3) and (4) is hereinafter referred to as the First Liquidation Target Amount );
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(E) Fifth, 15% to the holders of the Incentive Distribution Rights, Pro Rata, and 85.0% to all Unitholders, Pro Rata, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) the First Liquidation Target Amount, and (2) the excess of (aa) the Second Target Distribution less the First Target Distribution for each Quarter after the Closing Date or the date of the most recent IDR Reset Election, if any, over (bb) the cumulative per Unit amount of any distributions of cash or cash equivalents that are deemed to be Operating Surplus made pursuant to Section 6.4(a)(v) and Section 6.4(b)(iii) for such period (the sum of (1) and (2) is hereinafter referred to as the Second Liquidation Target Amount );
(F) Sixth, 25% to the holders of the Incentive Distribution Rights, Pro Rata, and 75% to all Unitholders, Pro Rata, until the Capital Account in respect of each Common Unit then Outstanding is equal to the sum of (1) the Second Liquidation Target Amount, and (2) the excess of (aa) the Third Target Distribution less the Second Target Distribution for each Quarter after the Closing Date or the date of the most recent IDR Reset Election, if any, over (bb) the cumulative per Unit amount of any distributions of cash or cash equivalents that are deemed to be Operating Surplus made pursuant to Section 6.4(a)(vi) and Section 6.4(b)(iv) for such period; and
(G) Finally, 50% to the holders of the Incentive Distribution Rights, Pro Rata, and 50% to all Unitholders, Pro Rata.
Notwithstanding the foregoing provisions in this Section 6.1(c)(i), the General Partner may adjust the amount of any Net Termination Gain arising in connection with a Revaluation Event that is allocated to the holders of Incentive Distribution Rights in a manner that will result (1) in the Capital Account for each Common Unit that is Outstanding prior to such Revaluation Event being equal to the Event Issue Value and (2) to the greatest extent possible, the Capital Account with respect to the Incentive Distribution Rights that are Outstanding prior to such Revaluation Event being equal to the amount of Net Termination Gain that would be allocated to the holders of the Incentive Distribution Rights pursuant to this Section 6.1(c)(i) if (i) the Capital Accounts with respect to all Partnership Interests that were Outstanding immediately prior to such Revaluation Event were equal to zero and (ii) the aggregate Carrying Value of all Partnership property equaled the aggregate amount of all Partnership Liabilities.
(ii) Except as otherwise provided by Section 6.1(c)(iii) or Section 6.1(c)(iv), Net Termination Loss shall be allocated:
(A) First, if Subordinated Units remain Outstanding, to all Unitholders holding Subordinated Units, Pro Rata, until the Adjusted Capital Account in respect of each Subordinated Unit then Outstanding has been reduced to zero;
(B) Second, to all Unitholders holding Common Units, Pro Rata, until the Adjusted Capital Account in respect of each Common Unit then Outstanding has been reduced to zero; and
(C) Third, the balance, if any, 100% to the General Partner.
(iii) Any Net Termination Loss deemed recognized pursuant to clause (b) of the definition of Net Termination Loss as a result of a Revaluation Event prior to the conversion of the last Outstanding Subordinated Unit and prior to the Liquidation Date shall be allocated:
(A) First, to the Unitholders, Pro Rata, until the Capital Account in respect of each Common Unit then Outstanding equals the Event Issue Value; provided that Net Termination Loss shall not be allocated pursuant to this Section 6.1(c)(iii)(A) to the extent such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such taxable period (or increase any existing deficit in its Adjusted Capital Account);
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(B) Second, to all Unitholders holding Subordinated Units, Pro Rata; provided that Net Termination Loss shall not be allocated pursuant to this Section 6.1(c)(iii)(B) to the extent such allocation would cause any Unitholder to have a deficit balance in its Adjusted Capital Account at the end of such taxable period (or increase any existing deficit in its Adjusted Capital Account); and
(C) Third, the balance, if any, to the General Partner.
(iv) If (A) a Net Termination Loss has been allocated pursuant to Section 6.1(c)(iii), (B) a Net Termination Gain or Net Termination Loss subsequently occurs (other than as a result of a Revaluation Event) prior to the conversion of the last Outstanding Subordinated Unit and (C) after tentatively making all allocations of such Net Termination Gain or Net Termination Loss provided for in Section 6.1(c)(i) or Section 6.1(c)(ii), as applicable, the Capital Account in respect of each Common Unit does not equal the amount such Capital Account would have been if Section 6.1(c)(iii) had not been part of this Agreement and all prior allocations of Net Termination Gain and Net Termination Loss had been made pursuant to Section 6.1(c)(i) or Section 6.1(c)(ii), as applicable, then items of income, gain, loss and deduction included in such Net Termination Gain or Net Termination Loss, as applicable, shall be specially allocated to the General Partner and all Unitholders in a manner that will, to the maximum extent possible, cause the Capital Account in respect of each Common Unit to equal the amount such Capital Account would have been if all allocations of Net Termination Gain and Net Termination Loss had been made pursuant to Section 6.1(c)(i) or Section 6.1(c)(ii), as applicable.
(d) Special Allocations . Notwithstanding any other provision of this Section 6.1, the following special allocations shall be made for each taxable period in the following order:
(i) Partnership Minimum Gain Chargeback . Notwithstanding any other provision of this Section 6.1, if there is a net decrease in Partnership Minimum Gain during any Partnership taxable period, each Partner shall be allocated items of Partnership income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(f)(6), 1.704-2(g)(2) and 1.704-2(j)(2)(i), or any successor provision. For purposes of this Section 6.1(d), each Partners Adjusted Capital Account balance shall be determined, and the allocation of income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d) with respect to such taxable period (other than an allocation pursuant to Section 6.1(d)(vi) and Section 6.1(d)(vii)). This Section 6.1(d)(i) is intended to comply with the Partnership Minimum Gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.
(ii) Chargeback of Partner Nonrecourse Debt Minimum Gain . Notwithstanding the other provisions of this Section 6.1 (other than Section 6.1(d)(i)), except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Partner Nonrecourse Debt Minimum Gain during any Partnership taxable period, any Partner with a share of Partner Nonrecourse Debt Minimum Gain at the beginning of such taxable period shall be allocated items of Partnership income and gain for such period (and, if necessary, subsequent periods) in the manner and amounts provided in Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii), or any successor provisions. For purposes of this Section 6.1(d), each Partners Adjusted Capital Account balance shall be determined, and the allocation of income or gain required hereunder shall be effected, prior to the application of any other allocations pursuant to this Section 6.1(d), other than Section 6.1(d)(i) and other than an allocation pursuant to Section 6.1(d)(vi) and Section 6.1(d)(vii), with respect to such taxable period. This Section 6.1(d)(ii) is intended to comply with the chargeback of items of income and gain requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
(iii) Priority Allocations .
(A) If the amount of cash or the Net Agreed Value of any property distributed (except cash or property distributed pursuant to Section 12.4) with respect to a Unit for a taxable period exceeds the amount of
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cash or the Net Agreed Value of property distributed with respect to another Unit for the same taxable period (the amount of the excess, an Excess Distribution and the Unit with respect to which the greater distribution is paid, an Excess Distribution Unit ), then there shall be allocated gross income and gain to each Unitholder receiving an Excess Distribution with respect to the Excess Distribution Unit until the aggregate amount of such items allocated with respect to such Excess Distribution Unit pursuant to this Section 6.1(d)(iii)(A) for the current taxable period and all previous taxable periods is equal to the amount of the Excess Distribution.
(B) After the application of Section 6.1(d)(iii)(A), the remaining items of Partnership gross income or gain for the taxable period, if any, shall be allocated to the holders of Incentive Distribution Rights, Pro Rata, until the aggregate amount of such items allocated to the holders of Incentive Distribution Rights pursuant to this Section 6.1(d)(iii)(B) for the current taxable period and all previous taxable periods is equal to the cumulative amount of all Incentive Distributions made to the holders of Incentive Distribution Rights from the Closing Date to a date 45 days after the end of the current taxable period.
(iv) Qualified Income Offset . In the event any Partner unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of Partnership gross income and gain shall be specially allocated to such Partner in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations promulgated under Section 704(b) of the Code, the deficit balance, if any, in its Adjusted Capital Account created by such adjustments, allocations or distributions as quickly as possible; provided , that an allocation pursuant to this Section 6.1(d)(iv) shall be made only if and to the extent that such Partner would have a deficit balance in its Adjusted Capital Account after all other allocations provided for in this Section 6.1 have been tentatively made as if this Section 6.1(d)(iv) were not in this Agreement.
(v) Gross Income Allocation . In the event any Partner has a deficit balance in its Capital Account at the end of any taxable period in excess of the sum of (A) the amount such Partner is required to restore pursuant to the provisions of this Agreement and (B) the amount such Partner is deemed obligated to restore pursuant to Treasury Regulation Sections 1.704-2(g) and 1.704-2(i)(5), such Partner shall be specially allocated items of Partnership gross income and gain in the amount of such excess as quickly as possible; provided , that an allocation pursuant to this Section 6.1(d)(v) shall be made only if and to the extent that such Partner would have a deficit balance in its Capital Account after all other allocations provided for in this Section 6.1 have been tentatively made as if Section 6.1(d)(iv) and this Section 6.1(d)(v) were not in this Agreement.
(vi) Nonrecourse Deductions . Nonrecourse Deductions for any taxable period shall be allocated to the Partners Pro Rata. If the General Partner determines that the Partnerships Nonrecourse Deductions should be allocated in a different ratio to satisfy the safe harbor requirements of the Treasury Regulations promulgated under Section 704(b) of the Code, the General Partner is authorized to revise the prescribed ratio to the numerically closest ratio that does satisfy such requirements.
(vii) Partner Nonrecourse Deductions . Partner Nonrecourse Deductions for any taxable period shall be allocated 100% to the Partner that bears the Economic Risk of Loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i). If more than one Partner bears the Economic Risk of Loss with respect to a Partner Nonrecourse Debt, the Partner Nonrecourse Deductions attributable thereto shall be allocated between or among such Partners in accordance with the ratios in which they share such Economic Risk of Loss.
(viii) Nonrecourse Liabilities . For purposes of Treasury Regulation Section 1.752-3(a)(3), the Partners agree that Nonrecourse Liabilities of the Partnership in excess of the sum of (A) the amount of Partnership Minimum Gain and (B) the total amount of Nonrecourse Built-in Gain shall be allocated first, to any
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Partner that contributed property to the Partnership in proportion to and to the extent of the amount by which each such Partners share of any Section 704(c) built-in gains exceeds such Partners share of Nonrecourse Built-in Gain, and second, among the Partners Pro Rata.
(ix) Code Section 754 Adjustments . To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) of the Code (including pursuant to Treasury Regulation Section 1.734-2(b)(1)) is required, pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts as a result of a distribution to a Partner in complete liquidation of such Partners interest in the Partnership, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) taken into account pursuant to Section 5.5, and such item of gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Treasury Regulations.
(x) Economic Uniformity; Changes in Law .
(A) At the election of the General Partner with respect to any taxable period ending upon, or after, the termination of the Subordination Period, all or a portion of the remaining items of Partnership gross income or gain for such taxable period, after taking into account allocations pursuant to Section 6.1(d)(iii), shall be allocated 100% to each Partner holding Subordinated Units that are Outstanding as of the termination of the Subordination Period ( Final Subordinated Units ) in the proportion of the number of Final Subordinated Units held by such Partner to the total number of Final Subordinated Units then Outstanding, until each such Partner has been allocated an amount of gross income or gain that increases the Capital Account maintained with respect to such Final Subordinated Units to an amount that after taking into account the other allocations of income, gain, loss and deduction to be made with respect to such taxable period will equal the product of (1) the number of Final Subordinated Units held by such Partner and (2) the Per Unit Capital Amount for a Common Unit. The purpose of this allocation is to establish uniformity between the Capital Accounts underlying Final Subordinated Units and the Capital Accounts underlying Common Units held by Persons other than the General Partner and its Affiliates immediately prior to the conversion of such Final Subordinated Units into Common Units. This allocation method for establishing such economic uniformity will be available to the General Partner only if the method for allocating the Capital Account maintained with respect to the Subordinated Units between the transferred and retained Subordinated Units pursuant to Section 5.5(c)(ii) does not otherwise provide such economic uniformity to the Final Subordinated Units.
(B) Prior to allocations pursuant to Section 6.1(d)(xii)(C) with respect to an event triggering an adjustment to the Carrying Value of Partnership property pursuant to Section 5.5(d) during any taxable period of the Partnership ending upon, or after, the issuance of IDR Reset Common Units pursuant to Section 5.11, after the application of Section 6.1(d)(x)(A), any Unrealized Gains and Unrealized Losses shall be allocated among the Partners in a manner that to the nearest extent possible results in the Capital Accounts maintained with respect to such IDR Reset Common Units issued pursuant to Section 5.11 equaling the product of (1) the Aggregate Quantity of IDR Reset Common Units and (2) the Per Unit Capital Amount for an Initial Common Unit.
(C) Prior to allocations pursuant to Section 6.1(d)(xii)(C) with respect to an event triggering an adjustment to the Carrying Value of Partnership property pursuant to Section 5.5(d) after the Subordination Period has ended, and after the application of Section 6.1(d)(x)(A)-(B), any remaining Unrealized Gains and Unrealized Losses shall be allocated to the holders of (A) Affiliate Retained Units, Pro Rata, or (B) Outstanding Common Units (other than Affiliate Retained Units), Pro Rata, as applicable, in a manner that to the nearest extent possible results in the Capital Accounts maintained with respect to each Affiliate Retained Unit equaling the Per Unit Capital Amount for an Initial Common Unit.
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(D) Prior to allocations pursuant to Section 6.1(d)(xii)(C) with respect to an event triggering an adjustment to the Carrying Value of Partnership property pursuant to Section 5.5(d), and after the application of Section 6.1(d)(x)(A)-(C), any remaining Unrealized Gains and Unrealized Losses shall be allocated to the holders of (A) Outstanding Privately Placed Units, Pro Rata, or (B) Outstanding Common Units (other than Privately Placed Units), Pro Rata, as applicable, in a manner that to the nearest extent possible results in the Capital Accounts maintained with respect to each Privately Placed Unit equaling the Per Unit Capital Amount for an Initial Common Unit.
(E) With respect to any taxable period during which an IDR Reset Common Unit is transferred to any Person who is not an Affiliate of the transferor, all or a portion of the remaining items of Partnership gross income or gain for such taxable period shall be allocated 100% to the transferor Partner of such transferred IDR Reset Common Unit until such transferor Partner has been allocated an amount of gross income or gain that increases the Capital Account maintained with respect to such transferred IDR Reset Common Unit to an amount equal to the Per Unit Capital Amount for an Initial Common Unit.
(F) For the proper administration of the Partnership and for the preservation of uniformity of the Limited Partner Interests (or any class or classes thereof), the General Partner shall (1) adopt such conventions as it deems appropriate in determining the amount of depreciation, amortization and cost recovery deductions; (2) make special allocations of income, gain, loss, deduction, Unrealized Gain or Unrealized Loss; and (3) amend the provisions of this Agreement as appropriate (x) to reflect the proposal or promulgation of Treasury Regulations under Section 704(b) or Section 704(c) of the Code or (y) otherwise to preserve or achieve uniformity of the Limited Partner Interests (or any class or classes thereof) that are publicly traded as a single class. The General Partner may adopt such conventions, make such allocations and make such amendments to this Agreement as provided in this Section 6.1(d)(x)(F) only if such conventions, allocations or amendments would not have a material adverse effect on the Partners, the holders of any class or classes of Outstanding Limited Partner Interests or the Partnership.
(xi) Curative Allocation .
(A) Notwithstanding any other provision of this Section 6.1, other than the Required Allocations, the Required Allocations shall be taken into account in making the Agreed Allocations so that, to the extent possible, the net amount of items of gross income, gain, loss and deduction allocated to each Partner pursuant to the Required Allocations and the Agreed Allocations, together, shall be equal to the net amount of such items that would have been allocated to each such Partner under the Agreed Allocations had the Required Allocations and the related Curative Allocation not otherwise been provided in this Section 6.1. In exercising its discretion under this Section 6.1(d)(xi)(A), the General Partner may take into account future Required Allocations that, although not yet made, are likely to offset other Required Allocations previously made. Allocations pursuant to this Section 6.1(d)(xi)(A) shall only be made with respect to Required Allocations to the extent the General Partner determines that such allocations will otherwise be inconsistent with the economic agreement among the Partners.
(B) The General Partner shall, with respect to each taxable period, (1) apply the provisions of Section 6.1(d)(xi)(A) in whatever order is most likely to minimize the economic distortions that might otherwise result from the Required Allocations, and (2) divide all allocations pursuant to Section 6.1(d)(xi)(A) among the Partners in a manner that is likely to minimize such economic distortions.
(xii) Corrective and Other Allocations . In the event of any allocation of Additional Book Basis Derivative Items or a Net Termination Loss, the following rules shall apply:
(A) The General Partner shall allocate Additional Book Basis Derivative Items consisting of depreciation, amortization, depletion or any other form of cost recovery (other than Additional Book Basis
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Derivative Items included in Net Termination Gain or Net Termination Loss) with respect to any Adjusted Property to the Unitholders, Pro Rata, the holders of Incentive Distribution Rights and the General Partner, all in the same proportion as the Net Termination Gain or Net Termination Loss resulting from the Revaluation Event that gave rise to such Additional Book Basis Derivative Items was allocated to them pursuant to Section 6.1(b)(ii).
(B) If a sale or other taxable disposition of an Adjusted Property, including, for this purpose, inventory ( Disposed of Adjusted Property ) occurs other than in connection with an event giving rise to Net Termination Gain or Net Termination Loss, the General Partner shall allocate (1) items of gross income and gain (x) away from the holders of Incentive Distribution Rights and (y) to the Unitholders, or (2) items of deduction and loss (x) away from the Unitholders and (y) to the holders of Incentive Distribution Rights, to the extent that the Additional Book Basis Derivative Items with respect to the Disposed of Adjusted Property (determined in accordance with the last sentence of the definition of Additional Book Basis Derivative Items) treated as having been allocated to the Unitholders pursuant to this Section 6.1(d)(xii)(B) exceed their Share of Additional Book Basis Derivative Items with respect to such Disposed of Adjusted Property. For purposes of this Section 6.1(d)(xii)(B), the Unitholders shall be treated as having been allocated Additional Book Basis Derivative Items to the extent that such Additional Book Basis Derivative Items have reduced the amount of income that would otherwise have been allocated to the Unitholders under the Partnership Agreement (e.g., Additional Book Basis Derivative Items taken into account in computing cost of goods sold would reduce the amount of book income otherwise available for allocation among the Partners). Any allocation made pursuant to this Section 6.1(d)(xii)(B) shall be made after all of the other Agreed Allocations have been made as if this Section 6.1(d)(xii) were not in this Agreement and, to the extent necessary, shall require the reallocation of items that have been allocated pursuant to such other Agreed Allocations.
(C) Net Termination Loss in an amount equal to the lesser of (1) such Net Termination Loss and (2) the Aggregate Remaining Net Positive Adjustments shall be allocated in such manner as is determined by the General Partner that to the extent possible, the Capital Account balances of the Partners will equal the amount they would have been had no prior Book-Up Events occurred, and any remaining Net Termination Loss shall be allocated pursuant to Section 6.1(b)(ii) hereof. In allocating Net Termination Loss pursuant to this Section 6.1(d)(xii)(C), the General Partner shall attempt, to the extent possible, to cause the Capital Accounts of the Unitholders, on the one hand, and holders of the Incentive Distribution Rights, on the other hand, to equal the amount they would equal if (i) the Carrying Values of the Partnerships property had not been previously adjusted in connection with any prior Book-Up Events, (ii) Unrealized Gain and Unrealized Loss (or, in the case of a liquidation, actual gain or loss) with respect to such Partnership Property were determined with respect to such unadjusted Carrying Values, and (iii) any resulting Net Termination Gain had been allocated pursuant to Section 6.1(c)(i) (including, for the avoidance of doubt, taking into account the provisions set forth in the last sentence of Section 6.1(c)(i)).
(D) In making the allocations required under this Section 6.1(d)(xii)(D), the General Partner may apply whatever conventions or other methodology it determines will satisfy the purpose of this Section 6.1(d)(xii)(D). Without limiting the foregoing, if an Adjusted Property is contributed by the Partnership to another entity classified as a partnership for U.S. federal income tax purposes (the lower tier partnership ), the General Partner may make allocations similar to those described in Section 6.1(d)(xii)(A), (B) and (C) to the extent the General Partner determines such allocations are necessary to account for the Partnerships allocable share of income, gain, loss and deduction of the lower tier partnership that relate to the contributed Adjusted Property in a manner that is consistent with the purpose of this Section 6.1(d)(xii)(D).
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(xiii) Special Curative Allocation in Event of Certain Liquidations .
(A) Liquidation Prior to Conversion of the Last Outstanding Subordinated Unit . Notwithstanding any other provision of this Section 6.1 (other than the Required Allocations), if (1) the Liquidation Date occurs prior to the conversion of the last Outstanding Subordinated Unit and (2) after having made all other allocations provided for in this Section 6.1 for the taxable period in which the Liquidation Date occurs, the Capital Account in respect of each Common Unit does not equal the amount such Capital Account would have been if Section 6.1(c)(iii) and Section 6.1(c)(iv) had not been part of this Agreement and all prior allocations of Net Termination Gain and Net Termination Loss had been made pursuant to Section 6.1(c)(i) or Section 6.1(c)(ii), as applicable, then items of income, gain, loss and deduction for such taxable period shall be reallocated among all Unitholders in a manner determined appropriate by the General Partner so as to cause, to the maximum extent possible, the Capital Account in respect of each Common Unit to equal the amount such Capital Account would have been if all prior allocations of Net Termination Gain and Net Termination Loss had been made pursuant to Section 6.1(c)(i) or Section 6.1(c)(ii), as applicable. For the avoidance of doubt, the reallocation of items set forth in the immediately preceding sentence provides that, to the extent necessary to achieve the Capital Account balances described above, (x) items of income and gain that would otherwise be included in Net Income or Net Loss, as the case may be, for the taxable period in which the Liquidation Date occurs shall be reallocated from the Unitholders holding Subordinated Units to Unitholders holding Common Units and (y) items of deduction and loss that would otherwise be included in Net Income or Net Loss, as the case may be, for the taxable period in which the Liquidation Date occurs shall be reallocated from Unitholders holding Common Units to the Unitholders holding Subordinated Units. In the event that (1) the Liquidation Date occurs on or before the date (not including any extension of time prescribed by law) for the filing of the Partnerships federal income tax return for the taxable period immediately prior to the taxable period in which the Liquidation Date occurs and (2) the reallocation of items for the taxable period in which the Liquidation Date occurs as set forth above in this Section 6.1(d)(xiii) fails to achieve the Capital Account balances described above, items of income, gain, loss and deduction that would otherwise be included in the Net Income or Net Loss, as the case may be, for such prior taxable period shall be reallocated among the Unitholders in a manner that will, to the maximum extent possible and after taking into account all other allocations made pursuant to this Section 6.1(d)(xiii), cause the Capital Account in respect of each Common Unit to equal the amount such Capital Account would have been if all prior allocations of Net Termination Gain and Net Termination Loss had been made pursuant to Section 6.1(c)(i) or Section 6.1(c)(ii), as applicable.
(B) Liquidation After Conversion of the Last Outstanding Subordinated Unit .
(1) Notwithstanding any other provision of this Section 6.1 (other than the Required Allocations), if (x) the Liquidation Date occurs after the conversion of the last Outstanding Subordinated Unit and (y) after having made all other allocations provided for in this Section 6.1 for the taxable period in which the Liquidation Date occurs, the Capital Account maintained with respect to each Affiliate Retained Unit does not equal the Per Unit Capital Amount for an Initial Common Unit, then items of gain and loss (including Unrealized Gain and Unrealized Loss) for such taxable period resulting from the sale, exchange or other disposition of assets of the Partnership Group (including any such items included in Net Termination Gain or Net Termination Loss for such period but excluding any items of income or deduction included in such Net Termination Gain or Net Termination Loss) shall be reallocated to the Unitholders in a manner determined appropriate by the General Partner so as to cause, to the maximum extent possible, the Capital Accounts maintained with respect to each Affiliate Retained Unit to equal the Per Unit Capital Amount for an Initial Common Unit.
(2) In the event that the reallocation of items for the taxable period in which the Liquidation Date occurs as set forth above in Section 6.1(d)(xiii)(B)(1) fails to achieve the Capital Account balances described therein, items of income, gain, loss and deduction that would otherwise be included in (x) Net
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Income or Net Loss, as the case may be, or (y) Net Termination Gain or Net Termination Loss, as the case may be, for the taxable period in which the Liquidation Date occurs shall be reallocated among the Unitholders in a manner that will, to the maximum extent possible and after taking into account all other allocations made pursuant to this Section 6.1(d)(xiii), cause the Capital Account maintained with respect to each Affiliate Retained Unit to equal the Per Unit Capital Amount for an Initial Common Unit; provided that the amount of items allocated pursuant to this Section 6.1(d)(xiii)(B)(2) shall not exceed the aggregate amount of items of gross income reallocated pursuant to Section 6.1(d)(xiv) with respect to taxable periods ending more than five years prior to the end of the taxable period in which the Liquidation Date occurs.
(3) In the event that (x) the Liquidation Date occurs on or before the date (not including any extension of time prescribed by law) for the filing of the Partnerships federal income tax return for the taxable period immediately prior to the taxable period in which the Liquidation Date occurs, and (y) the reallocations of items for the taxable period in which the Liquidation Date occurs as set forth above in Section 6.1(d)(xiii)(B)(1) and (2) fail to achieve the Capital Account balances described therein, items of income, gain, loss and deduction that would otherwise be included in (i) Net Income or Net Loss, as the case may be, or (ii) Net Termination Gain or Net Termination Loss, as the case may be, for such prior taxable period shall be reallocated among the Unitholders in a manner that will, to the maximum extent possible and after taking into account all other allocations made pursuant to this Section 6.1(d)(xiii), cause the Capital Account maintained with respect to each Affiliate Retained Unit to equal the Per Unit Capital Amount for an Initial Common Unit; provided that the amount of items allocated pursuant to this Section 6.1(d)(xiii)(B)(3) shall not exceed an amount equal to the excess, if any, of (a) the aggregate amount of items of gross income reallocated pursuant to Section 6.1(d)(xiv) with respect to taxable periods ending more than six years prior to the end of the taxable period in which the Liquidation Date occurs, over (b) any amounts reallocated pursuant to Section 6.1(d)(xiii)(B)(2).
(xiv) Special Reallocation of Gross Income to Common Units . After taking into account (A) the allocation of Net Income pursuant to Section 6.1 or Net Loss pursuant to Section 6.2 and (B) the Required Allocations (including any Curative Allocations) for each taxable period during which any Affiliate Retained Units are Outstanding, items of gross income that would otherwise be allocated to the holders of such Affiliate Retained Units shall be reallocated from the holders of such Affiliate Retained Units, Pro Rata, to the holders of Common Units other than Affiliate Retained Units, Pro Rata; provided that no reallocation of items of gross income shall be made pursuant to this Section 6.1(d)(xiv) in any taxable period to the extent such allocation would cause a hypothetical holder of an Initial Common Unit to be allocated under this Agreement an amount of federal taxable income with respect to such taxable period that would exceed 20% of the amount of cash distributed by the Partnership to such holder with respect to such Initial Common Unit for such taxable period.
Section 6.2 Allocations for Tax Purposes .
(a) Except as otherwise provided herein, for U.S. federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Partners in the same manner as its correlative item of book income, gain, loss or deduction is allocated pursuant to Section 6.1.
(b) In an attempt to eliminate Book-Tax Disparities attributable to a Contributed Property or Adjusted Property, items of income, gain, loss, depreciation, amortization and cost recovery deductions shall be allocated for U.S. federal income tax purposes among the Partners in the manner provided under Section 704(c) of the Code, and the Treasury Regulations promulgated under Section 704(b) and 704(c) of the Code, as determined appropriate by the General Partner (taking into account the General Partners discretion under Section 6.1(d)(x)(F)); provided , that in all events the General Partner shall apply the remedial allocation method in accordance with the principles of Treasury Regulation Section 1.704-3(d).
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(c) The General Partner may determine to depreciate or amortize the portion of an adjustment under Section 743(b) of the Code attributable to unrealized appreciation in any Adjusted Property (to the extent of the unamortized Book-Tax Disparity) using a predetermined rate derived from the depreciation or amortization method and useful life applied to the unamortized Book-Tax Disparity of such property, despite any inconsistency of such approach with Treasury Regulation Section 1.167(c)-l(a)(6) or any successor regulations thereto. If the General Partner determines that such reporting position cannot reasonably be taken, the General Partner may adopt depreciation and amortization conventions under which all purchasers acquiring Limited Partner Interests in the same month would receive depreciation and amortization deductions, based upon the same applicable rate as if they had purchased a direct interest in the Partnerships property. If the General Partner chooses not to utilize such aggregate method, the General Partner may use any other depreciation and amortization conventions to preserve the uniformity of the intrinsic tax characteristics of any Limited Partner Interests, so long as such conventions would not have a material adverse effect on the Limited Partners or the Record Holders of any class or classes of Limited Partner Interests.
(d) In accordance with Treasury Regulation Sections 1.1245-1(e) and 1.1250-1(f), any gain allocated to the Partners upon the sale or other taxable disposition of any Partnership asset shall, to the extent possible, after taking into account other required allocations of gain pursuant to this Section 6.2, be characterized as Recapture Income in the same proportions and to the same extent as such Partners (or their predecessors in interest) have been allocated any deductions directly or indirectly giving rise to the treatment of such gains as Recapture Income.
(e) All items of income, gain, loss, deduction and credit recognized by the Partnership for U.S. federal income tax purposes and allocated to the Partners in accordance with the provisions hereof shall be determined without regard to any election under Section 754 of the Code that may be made by the Partnership; provided, however, that such allocations, once made, shall be adjusted (in the manner determined by the General Partner) to take into account those adjustments permitted or required by Sections 734 and 743 of the Code.
(f) Each item of Partnership income, gain, loss and deduction shall, for U.S. federal income tax purposes, be determined for each taxable period and prorated on a monthly basis and shall be allocated to the Partners as of the opening of the National Securities Exchange on which Partnership Interests are listed or admitted to trading on the first Business Day of each month; provided , however , such items for the period beginning on the Closing Date and ending on the last day of the month in which the Closing Date occurs shall be allocated to the Partners (including all Partners who acquire Units pursuant to the Contribution Agreement) as of the closing of the National Securities Exchange on which Partnership Interests are listed or admitted to trading on the last Business Day of the next succeeding month; and provided , further , that gain or loss on a sale or other disposition of any assets of the Partnership or any other extraordinary item of income, gain, loss or deduction as determined by the General Partner, shall be allocated to the Partners as of the opening of the National Securities Exchange on which Partnership Interests are listed or admitted to trading on the first Business Day of the month in which such item is recognized for federal income tax purposes. The General Partner may revise, alter or otherwise modify such methods of allocation to the extent permitted or required by Section 706 of the Code and the regulations or rulings promulgated thereunder.
(g) Allocations that would otherwise be made to a Limited Partner under the provisions of this Article VI shall instead be made to the beneficial owner of Limited Partner Interests held by a nominee in any case in which the nominee has furnished the identity of such owner to the Partnership in accordance with Section 6031(c) of the Code or any other method determined by the General Partner.
(h) If, as a result of an exercise of a Noncompensatory Option, a Capital Account reallocation is required under Treasury Regulation Section 1.704-1(b)(2)(iv)(s)(3), the General Partner shall make corrective allocations pursuant to Treasury Regulation Section 1.704-1(b)(4)(x).
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Section 6.3 Distributions; Characterization of Distributions; Distributions to Record Holders .
(a) The General Partner may adopt a cash distribution policy, which it may change from time to time without amendment to this Agreement. Distributions will be made as and when declared by the General Partner.
(b) All amounts of cash and cash equivalents distributed by the Partnership on any date from any source shall be deemed to be Operating Surplus until the sum of all amounts of cash and cash equivalents theretofore distributed by the Partnership to the Partners pursuant to Section 6.4 equals the Operating Surplus from the Closing Date through the close of the immediately preceding Quarter. Any remaining amounts of cash and cash equivalents distributed by the Partnership on such date shall, except as otherwise provided in Section 6.5, be deemed to be Capital Surplus. All distributions required to be made under this Agreement or otherwise made by the Partnership shall be made subject to Sections 17-607 and 17-804 of the Delaware Act.
(c) Notwithstanding Section 6.3(b), in the event of the dissolution and liquidation of the Partnership, all Partnership assets shall be applied and distributed solely in accordance with, and subject to the terms and conditions of, Section 12.4.
(d) Each distribution in respect of a Partnership Interest shall be paid by the Partnership, directly or through any Transfer Agent or through any other Person or agent, only to the Record Holder of such Partnership Interest as of the Record Date set for such distribution. Such payment shall constitute full payment and satisfaction of the Partnerships liability in respect of such payment, regardless of any claim of any Person who may have an interest in such payment by reason of an assignment or otherwise.
Section 6.4 Distributions from Operating Surplus .
(a) During Subordination Period . Cash and cash equivalents distributed in respect of any Quarter wholly within the Subordination Period that is deemed to be Operating Surplus pursuant to the provisions of Section 6.3 or 6.5 shall be distributed as follows:
(i) First, to all Unitholders holding Common Units, Pro Rata, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;
(ii) Second, to all Unitholders holding Common Units, Pro Rata, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage existing with respect to such Quarter;
(iii) Third, to all Unitholders holding Subordinated Units, Pro Rata, until there has been distributed in respect of each Subordinated Unit then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;
(iv) Fourth, to all Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the First Target Distribution over the Minimum Quarterly Distribution for such Quarter;
(v) Fifth, (A) 15% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 85% to all Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Second Target Distribution over the First Target Distribution for such Quarter;
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(vi) Sixth, (A) 25% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 75% to all Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Third Target Distribution over the Second Target Distribution for such Quarter; and
(vii) Thereafter, (A) 50% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 50% to all Unitholders, Pro Rata;
provided , however , if the Target Distributions have been reduced to zero pursuant to the second sentence of Section 6.6(a), the distribution of cash and cash equivalents that are deemed to be Operating Surplus with respect to any Quarter will be made solely in accordance with Section 6.4(a)(vii).
(b) After Subordination Period . Cash and cash equivalents distributed in respect of any Quarter ending after the Subordination Period has ended that is deemed to be Operating Surplus pursuant to the provisions of Section 6.3 or 6.5 shall be distributed as follows:
(i) First, to all Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount equal to the Minimum Quarterly Distribution for such Quarter;
(ii) Second, to all Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the First Target Distribution over the Minimum Quarterly Distribution for such Quarter;
(iii) Third, (A) 15% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 85% to all Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Second Target Distribution over the First Target Distribution for such Quarter;
(iv) Fourth, (A) 25% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 75% to all Unitholders, Pro Rata, until there has been distributed in respect of each Unit then Outstanding an amount equal to the excess of the Third Target Distribution over the Second Target Distribution for such Quarter; and
(v) Thereafter, (A) 50% to the holders of the Incentive Distribution Rights, Pro Rata; and (B) 50% to all Unitholders, Pro Rata;
provided , however , if the Target Distributions have been reduced to zero pursuant to the second sentence of Section 6.6(a), the distribution of cash or cash equivalents that are deemed to be Operating Surplus with respect to any Quarter will be made solely in accordance with Section 6.4(b)(v).
Section 6.5 Distributions from Capital Surplus . Cash and cash equivalents that are distributed and deemed to be Capital Surplus pursuant to the provisions of Section 6.3(b) shall be distributed, unless the provisions of Section 6.3 require otherwise:
(a) First, 100% to the Unitholders, Pro Rata, until the Minimum Quarterly Distribution has been reduced to zero pursuant to the second sentence of Section 6.6(a);
(b) Second, 100% to all Unitholders holding Common Units, Pro Rata, until there has been distributed in respect of each Common Unit then Outstanding an amount equal to the Cumulative Common Unit Arrearage; and
(c) Thereafter, all cash and cash equivalents that are distributed shall be distributed as if it were Operating Surplus and shall be distributed in accordance with Section 6.4.
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Section 6.6 Adjustment of Target Distribution Levels .
(a) The Target Distributions, Common Unit Arrearages and Cumulative Common Unit Arrearages shall be proportionately adjusted in the event of any distribution, combination or subdivision (whether effected by a distribution payable in Units or otherwise) of Units or other Partnership Interests. In the event of a distribution of cash or cash equivalents that is deemed to be from Capital Surplus, the then applicable Target Distributions shall be reduced in the same proportion that the distribution had to the fair market value of the Common Units immediately prior to the announcement of the distribution. If the Common Units are publicly traded on a National Securities Exchange, the fair market value will be the Current Market Price before the ex-dividend date. If the Common Units are not publicly traded, the fair market value will be determined by the Board of Directors.
(b) The Target Distributions shall also be subject to adjustment pursuant to Section 5.11 and Section 6.9.
Section 6.7 Special Provisions Relating to the Holders of Subordinated Units and Affiliate Retained Units.
(a) Except with respect to the right to vote on or approve matters requiring the vote or approval of a percentage of the holders of Outstanding Common Units and the right to participate in allocations of income, gain, loss and deduction and distributions made with respect to Common Units, the holder of a Subordinated Unit shall have all of the rights and obligations of a Unitholder holding Common Units hereunder; provided , however , that immediately upon the conversion of Subordinated Units into Common Units pursuant to Section 5.7, the Unitholder holding Subordinated Units shall possess all of the rights and obligations of a Unitholder holding Common Units hereunder with respect to such converted Subordinated Units, including the right to vote as a Common Unitholder and the right to participate in allocations of income, gain, loss and deduction and distributions made with respect to Common Units; provided , however , that such converted Subordinated Units shall remain subject to the provisions of Sections 5.5(c)(ii), 6.1(d)(x), and 6.7(b) and (c).
(b) A Unitholder shall not be permitted to transfer a Subordinated Unit, a Subordinated Unit that has converted into a Common Unit pursuant to Section 5.7, or an Affiliate Retained Unit (other than a transfer to an Affiliate) if the remaining balance in the transferring Unitholders Capital Account with respect to the retained Subordinated Units or retained converted Subordinated Units or Affiliate Retained Units would be negative after giving effect to the allocation under Section 5.5(c)(ii)(B).
(c) The Unitholder holding a Common Unit that has resulted from the conversion of a Subordinated Unit pursuant to Section 5.7 or that is an Affiliate Retained Unit shall not be permitted to transfer such Common Unit to a Person that is not an Affiliate of the holder until such time as the General Partner determines, based on advice of counsel, that each such Common Unit should have, as a substantive matter, like intrinsic economic and federal income tax characteristics, in all material respects, to the intrinsic economic and federal income tax characteristics of an Initial Common Unit. In connection with the condition imposed by this Section 6.7(c), the General Partner may take whatever steps are required to provide economic uniformity to such Common Units in preparation for a transfer of such Common Units, including the application of Sections 5.5(c)(ii) and 6.1(d)(x)(C); provided , however , that no such steps may be taken that would have a material adverse effect on the Unitholders holding Common Units.
Section 6.8 Special Provisions Relating to the Holders of IDR Reset Common Units .
(a) A Unitholder shall not be permitted to transfer an IDR Reset Common Unit (other than a transfer to an Affiliate) if the remaining balance in the transferring Unitholders Capital Account with respect to the retained IDR Reset Common Units would be negative after giving effect to the allocation under Section 5.5(c)(iii).
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(b) A Unitholder holding an IDR Reset Common Unit shall not be permitted to transfer such Common Unit to a Person that is not an Affiliate of the holder until such time as the General Partner determines, based on advice of counsel, that upon transfer each such Common Unit should have, as a substantive matter, like intrinsic economic and U.S. federal income tax characteristics to the transferee, in all material respects, to the intrinsic economic and U.S. federal income tax characteristics of an Initial Common Unit to such transferee. In connection with the condition imposed by this Section 6.8(b), the General Partner may apply Sections 5.5(c)(ii), 6.1(d)(x) and 6.8(a) or, to the extent not resulting in a material adverse effect on the Unitholders holding Common Units, take whatever steps are required to provide economic uniformity to such Common Units in preparation for a transfer of such IDR Reset Common Units.
Section 6.9 Entity-Level Taxation . If legislation is enacted or the official interpretation of existing legislation is modified by a governmental authority, which after giving effect to such enactment or modification, results in a Group Member becoming subject to federal, state or local or non-U.S. income or withholding taxes in excess of the amount of such taxes due from the Group Member prior to such enactment or modification (including, for the avoidance of doubt, any increase in the rate of such taxation applicable to the Group Member), then the General Partner may, in its sole discretion, reduce the Target Distributions by the amount of income or withholding taxes that are payable by reason of any such new legislation or interpretation (the Incremental Income Taxes ), or any portion thereof selected by the General Partner, in the manner provided in this Section 6.9. If the General Partner elects to reduce the Target Distributions for any Quarter with respect to all or a portion of any Incremental Income Taxes, the General Partner shall estimate for such Quarter the Partnership Groups aggregate liability (the Estimated Incremental Quarterly Tax Amount ) for all (or the relevant portion of) such Incremental Income Taxes; provided that any difference between such estimate and the actual liability for Incremental Income Taxes (or the relevant portion thereof) for such Quarter may, to the extent determined by the General Partner, be taken into account in determining the Estimated Incremental Quarterly Tax Amount with respect to each Quarter in which any such difference can be determined. For each such Quarter, the Target Distributions, shall be the product obtained by multiplying (a) the amounts therefor that are set out herein prior to the application of this Section 6.9 times (b) the quotient obtained by dividing (i) cash and cash equivalents with respect to such Quarter by (ii) the sum of cash and cash equivalents with respect to such Quarter and the Estimated Incremental Quarterly Tax Amount for such Quarter, as determined by the General Partner. For purposes of the foregoing, cash and cash equivalents with respect to a Quarter will be deemed reduced by the Estimated Incremental Quarterly Tax Amount for that Quarter.
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS
Section 7.1 Management .
(a) The General Partner shall conduct, direct and manage all activities of the Partnership. Except as otherwise expressly provided in this Agreement, but without limitation on the ability of the General Partner to delegate its rights and power to other Persons, all management powers over the business and affairs of the Partnership shall be exclusively vested in the General Partner, and no other Partner shall have any management power over the business and affairs of the Partnership. In addition to the powers now or hereafter granted to a general partner of a limited partnership under applicable law or that are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to Section 7.4, shall have full power and authority to do all things and on such terms as it determines to be necessary or appropriate to conduct the business of the Partnership, to exercise all powers set forth in Section 2.5 and to effectuate the purposes set forth in Section 2.4, including the following:
(i) 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 or exchangeable into Partnership Interests, and the incurring of any other obligations;
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(ii) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;
(iii) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another Person (the matters described in this clause (iii) being subject, however, to any prior approval that may be required by Section 7.4 or Article XIV);
(iv) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of the operations of the Partnership Group; the lending of funds to other Persons (including other Group Members); the repayment or guarantee of obligations of any Group Member; and the making of capital contributions to any Group Member;
(v) the negotiation, execution and performance of any contracts, conveyances or other instruments (including instruments that limit the liability of the Partnership under contractual arrangements to all or particular assets of the Partnership, with the other party to the contract to have no recourse against the General Partner or its assets other than its interest in the Partnership, even if the same results in the terms of the transaction being less favorable to the Partnership than would otherwise be the case);
(vi) the distribution of cash or cash equivalents by the Partnership;
(vii) the selection, employment, retention and dismissal of employees (including employees having titles such as president, vice president, secretary and treasurer) and agents, outside attorneys, accountants, consultants and contractors of the General Partner or the Partnership Group and the determination of their compensation and other terms of employment or hiring;
(viii) the maintenance of insurance for the benefit of the Partnership Group, the Partners and Indemnitees;
(ix) the formation of, or acquisition of an interest in, and the contribution of property and the making of loans to, any limited or general partnerships, joint ventures, corporations, limited liability companies or other Persons (including the acquisition of interests in, and the contributions of property to, any Group Member from time to time);
(x) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expense and the settlement of claims and litigation;
(xi) the indemnification of any Person against liabilities and contingencies to the extent permitted by law;
(xii) the entering into listing agreements with any National Securities Exchange and the delisting of some or all of the Limited Partner Interests from, or requesting that trading be suspended on, any such exchange;
(xiii) the purchase, sale or other acquisition or disposition of Partnership Interests, or the issuance of Derivative Instruments;
(xiv) the undertaking of any action in connection with the Partnerships participation in the management of any Group Member; and
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(xv) the entering into agreements with any of its Affiliates, including agreements to render services to a Group Member or to itself in the discharge of its duties as General Partner of the Partnership.
(b) Notwithstanding any other provision of this Agreement, any Group Member Agreement, the Delaware Act or any applicable law, rule or regulation, each of the Partners, each other Person who acquires an interest in a Partnership Interest and each other Person bound by this Agreement hereby (i) approves, ratifies and confirms the execution, delivery and performance by the parties thereto of this Agreement, the Underwriting Agreement, the Contribution Agreement and the other agreements described in or filed as exhibits to the Registration Statement that are related to the transactions contemplated by the Registration Statement (in the case of each agreement other than this Agreement, without giving effect to any amendments, supplements or restatements after the date hereof); (ii) agrees that the General Partner (on its own behalf or on behalf of the Partnership) is authorized to execute, deliver and perform the agreements referred to in clause (i) of this sentence and the other agreements, acts, transactions and matters described in or contemplated by the Registration Statement on behalf of the Partnership without any further act, approval or vote of the Partners, or the other Persons who may acquire an interest in Partnership Interests or are otherwise bound by this Agreement; and (iii) agrees that the execution, delivery or performance by the General Partner, any Group Member or any Affiliate of any of them of this Agreement or any agreement authorized or permitted under this Agreement (including the exercise by the General Partner or any Affiliate of the General Partner of the rights accorded pursuant to Article XV) shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Partners or any other Persons under this Agreement (or any other agreements) or of any duty existing at law, in equity or otherwise.
Section 7.2 Replacement of Fiduciary Duties . Notwithstanding any other provision of this Agreement, to the extent that, at law or in equity, the General Partner or any other Indemnitee would have duties (including fiduciary duties) to the Partnership, to another Partner, to any Person who acquires an interest in a Partnership Interest or to any other Person bound by this Agreement, all such duties (including fiduciary duties) are hereby eliminated, to the fullest extent permitted by law, and replaced with the duties expressly set forth herein. The elimination of duties (including fiduciary duties) and replacement thereof with the duties expressly set forth herein are approved by the Partnership, each of the Partners, each other Person who acquires an interest in a Partnership Interest and each other Person bound by this Agreement.
Section 7.3 Certificate of Limited Partnership . The General Partner has caused the Certificate of Limited Partnership to be filed with the Secretary of State of the State of Delaware as required by the Delaware Act. The General Partner shall use all reasonable efforts to cause to be filed such other certificates or documents that the General Partner determines to be necessary or appropriate for the formation, continuation, qualification and operation of a limited partnership (or a partnership in which the limited partners have limited liability) in the State of Delaware or any other state in which the Partnership may elect to do business or own property. To the extent the General Partner determines such action to be necessary or appropriate, the General Partner shall file amendments to and restatements of the Certificate of Limited Partnership and do all things to maintain the Partnership as a limited partnership (or a partnership or other entity in which the limited partners have limited liability) under the laws of the State of Delaware or of any other state in which the Partnership may elect to do business or own property. Subject to the terms of Section 3.4(a), the General Partner shall not be required, before or after filing, to deliver or mail a copy of the Certificate of Limited Partnership, any qualification document or any amendment thereto to any Partner.
Section 7.4 Restrictions on the General Partners Authority . Except as provided in Article XII and Article XIV, the General Partner may not sell, exchange or otherwise dispose of all or substantially all of the assets of the Partnership Group, taken as a whole, in a single transaction or a series of related transactions without the approval of a Unit Majority; provided , however, that this provision shall not preclude or limit the General
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Partners ability to mortgage, pledge, hypothecate or grant a security interest in all or substantially all of the assets of the Partnership Group and shall not apply to any sale of any or all of the assets of the Partnership Group pursuant to the foreclosure of, or other realization upon, any such encumbrance.
Section 7.5 Reimbursement of the General Partner .
(a) The General Partner shall be reimbursed on a monthly basis, or such other basis as the General Partner may determine, for (i) all direct and indirect expenses it incurs or payments it makes on behalf of the Partnership Group (including salary, bonus, incentive compensation and other amounts paid to any Person (including Affiliates of the General Partner) to perform services for the Partnership Group or for the General Partner in the discharge of its duties to the Partnership Group), and (ii) all other expenses allocable to the Partnership Group or otherwise incurred by the General Partner in connection with operating the Partnership Groups business (including expenses allocated to the General Partner by its Affiliates). The General Partner shall determine the expenses that are allocable to the Partnership Group. Reimbursements pursuant to this Section 7.5 shall be in addition to any reimbursement to the General Partner as a result of indemnification pursuant to Section 7.7.
(b) The General Partner and its Affiliates may charge any member of the Partnership Group a management fee to the extent necessary to allow the Partnership Group to reduce the amount of any state franchise or income tax or any tax based upon the revenues or gross margin of any member of the Partnership Group if the tax benefit produced by the payment for such management fee of such management fee or fees exceeds the amount of such fee or fees.
(c) The General Partner, without the approval of the Limited Partners (who shall have no right to vote in respect thereof), may propose and adopt on behalf of the Partnership benefit plans, programs and practices (including plans, programs and practices involving the issuance of Partnership Interests or Derivative Instruments), or cause the Partnership to issue Partnership Interests or Derivative Instruments in connection with, or pursuant to, any benefit plan, program or practice maintained or sponsored by the General Partner or any of its Affiliates, any Group Member or their Affiliates, or any of them, in each case for the benefit of employees, officers, consultants and directors of the General Partner or its Affiliates, in respect of services performed, directly or indirectly, for the benefit of the Partnership Group. The Partnership agrees to issue and sell to the General Partner or any of its Affiliates any Partnership Interests that the General Partner or such Affiliates are obligated to provide to any employees, officers, consultants and directors pursuant to any such benefit plans, programs or practices. Expenses incurred by the General Partner in connection with any such plans, programs and practices (including the net cost to the General Partner or such Affiliates of Partnership Interests purchased by the General Partner or such Affiliates, from the Partnership or otherwise, to fulfill awards under such plans, programs and practices) shall be reimbursed in accordance with Section 7.5(a). Any and all obligations of the General Partner under any benefit plans, programs or practices adopted by the General Partner as permitted by this Section 7.5(c) shall constitute obligations of the General Partner hereunder and shall be assumed by any successor General Partner approved pursuant to Section 11.1 or Section 11.2 or the transferee of or successor to all of the General Partners General Partner Interest pursuant to Section 4.6.
Section 7.6 Outside Activities .
(a) The General Partner, for so long as it is the General Partner of the Partnership, shall not engage in any business or activity or incur any debts or liabilities except in connection with or incidental to (i) its performance as general partner or managing member, if any, of one or more Group Members or as described in or contemplated by the Registration Statement, (ii) the acquiring, owning or disposing of debt securities or equity interests in any Group Member or (iii) the direct or indirect provision of management, advisory, and administrative services to its Affiliates or to other Persons.
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(b) Each Unrestricted Person (other than the General Partner) shall have the right to engage in businesses of every type and description and other activities for profit and to engage in and possess an interest in other business ventures of any and every type or description, whether in businesses engaged in or anticipated to be engaged in by any Group Member, independently or with others, including business interests and activities in direct competition with the business and activities of any Group Member. No such business interest or activity shall constitute a breach of this Agreement, any fiduciary or other duty existing at law, in equity or otherwise, or obligation of any type whatsoever to the Partnership or other Group Member, to another Partner, to any Person who acquires an interest in a Partnership Interest or to any other Person bound by this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to any Unrestricted Person (including the General Partner). No Unrestricted Person (including the General Partner) who acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Partnership, shall have any duty to communicate or offer such opportunity to any Group Member, and such Unrestricted Person (including the General Partner) shall not be liable to the Partnership or other Group Member, to another Partner, to any Person who acquires an interest in a Partnership Interest or to any other Person bound by this Agreement for breach of any fiduciary or other duty existing at law, in equity or otherwise by reason of the fact that such Unrestricted Person (including the General Partner) pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not communicate such opportunity or information to any Group Member.
(d) The General Partner and each of its Affiliates may acquire Units or other Partnership Interests in addition to those acquired on the Closing Date and, except as otherwise expressly provided in Section 7.11, shall be entitled to exercise, at their option, all rights relating to all Units or other Partnership Interests acquired by them.
Section 7.7 Indemnification .
(a) To the fullest extent permitted by law, all Indemnitees shall be indemnified and held harmless by the Partnership from and against any and all losses, claims, damages, liabilities (joint or several), expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee and acting (or refraining to act) in such capacity; provided , that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in Bad Faith or, in the case of a criminal matter, acted with knowledge that the Indemnitees conduct was unlawful. Any indemnification pursuant to this Section 7.7 shall be made only out of the assets of the Partnership, it being agreed that the General Partner shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate such indemnification.
(b) To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7.7(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7, the Indemnitee is not entitled to be indemnified upon receipt by the Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7.7.
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(c) The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, pursuant to any vote of the holders of Outstanding Limited Partner Interests, as a matter of law, in equity or otherwise, both as to actions in the Indemnitees capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
(d) The Partnership may purchase and maintain (or reimburse the General Partner or its Affiliates for the cost of) insurance, on behalf of the General Partner, its Affiliates, the Indemnitees and such other Persons as the General Partner shall determine, against any liability that may be asserted against, or expense that may be incurred by, such Person in connection with the Partnerships activities or such Persons activities on behalf of the Partnership, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement.
(e) For purposes of this Section 7.7, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of Section 7.7(a); and action taken or omitted by an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Partnership.
(f) In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 7.7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
(i) No amendment, modification or repeal of this Section 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Partnership, nor the obligations of the Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Section 7.8 Liability of Indemnitees .
(a) Notwithstanding anything to the contrary set forth in this Agreement, any Group Member Agreement, or under the Delaware Act or any other law, rule or regulation or at equity, no Indemnitee shall be liable for monetary damages or otherwise to the Partnership, to another Partner, to any other Person who acquires an interest in a Partnership Interest or to any other Person bound by this Agreement, for losses sustained or liabilities incurred, of any kind or character, as a result of its or any of any other Indemnitees determinations, act(s) or omission(s) in their capacities as Indemnitees; provided , however , that an Indemnitee shall be liable for
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losses or liabilities sustained or incurred by the Partnership, the other Partners, any other Persons who acquire an interest in a Partnership Interest or any other Person bound by this Agreement, if it is determined by a final and non-appealable judgment entered by a court of competent jurisdiction that such losses or liabilities were the result of the conduct of that Indemnitee engaged in by it in Bad Faith or with respect to any criminal conduct, with the knowledge that its conduct was unlawful.
(b) The General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents, and the General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by the General Partner if such appointment was not made in Bad Faith.
(c) To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Partnership, to the Partners, to any Person who acquires an interest in a Partnership Interest or to any other Person bound by this Agreement, the General Partner and any other Indemnitee acting in connection with the Partnerships business or affairs shall not be liable to the Partnership , to any Partner, to any Person who acquires an interest in a Partnership Interest or to any other Person bound by this Agreement for its reliance on the provisions of this Agreement.
(d) Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
Section 7.9 Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties .
(a) Whenever the General Partner, acting in its capacity as the general partner of the Partnership, or the Board of Directors or any committee of the Board of Directors (including the Conflicts Committee) or any Affiliates of the General Partner cause the General Partner to make a determination or take or omit to take any action in such capacity, whether or not under this Agreement, any Group Member Agreement or any other agreement contemplated hereby, then, unless another lesser standard is provided for in this Agreement, the General Partner, the Board of Directors, such committee or such Affiliates, shall not make such determination, or take or omit to take such action, in Bad Faith. The foregoing and other lesser standards provided for in this Agreement are the sole and exclusive standards governing any such determinations, actions and omissions of the General Partner, the Board of Directors, any committee of the Board of Directors (including the Conflicts Committee) and any Affiliate of the General Partner and no such Person shall be subject to any fiduciary duty or other duty or obligation, or any other, different or higher standard (all of which duties, obligations and standards are hereby waived and disclaimed), under this Agreement any Group Member Agreement or any other agreement contemplated hereby, or under the Delaware Act or any other law, rule or regulation or at equity. Any such determination, action or omission by the General Partner, the Board of Directors of the General Partner or any committee thereof (including the Conflicts Committee) or of any Affiliates of the General Partner, will for all purposes be presumed to have been in Good Faith. In any proceeding brought by or on behalf of the Partnership, any Limited Partner, or any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement, challenging such determination, act or omission, the Person bringing or prosecuting such proceeding shall have the burden of proving that such determination, action or omission was not in Good Faith.
(b) Whenever the General Partner makes a determination or takes or omits to take any action, or any of its Affiliates causes it to do so, not acting in its capacity as the general partner of the Partnership, whether or not
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under this Agreement, any Group Member Agreement or any other agreement contemplated hereby, then the General Partner, or such Affiliates causing it to do so, are entitled, to the fullest extent permitted by law, to make such determination or to take or omit to take such action free of any fiduciary duty or duty of Good Faith, or other duty or obligation existing at law, in equity or otherwise whatsoever to the Partnership, to another Partner, to any Person who acquires an interest in a Partnership Interest or to any other Person bound by this Agreement, and the General Partner, or such Affiliates causing it to do so, shall not, to the fullest extent permitted by law, be required to act in Good Faith or pursuant to any fiduciary or other duty or standard imposed by this Agreement, any Group Member Agreement or any other agreement contemplated hereby or under the Delaware Act or any other law, rule or regulation or at equity.
(c) For purposes of Sections 7.9(a) and (b) of this Agreement, acting in its capacity as the general partner of the Partnership means and is solely limited to, the General Partner exercising its authority as a general partner under this Agreement, other than when it is acting in its individual capacity. For purposes of this Agreement, acting in its individual capacity means: (i) any action by the General Partner or its Affiliates other than through the exercise of the General Partner of its authority as a general partner under this Agreement; and (ii) any action or inaction by the General Partner by the exercise (or failure to exercise) of its rights, powers or authority under this Agreement that are modified by: (A) the phrase at the option of the General Partner, (B) the phrase in its sole discretion or in its discretion or (iii) some variation of the phrases set forth in clauses (i) and (ii). For the avoidance of doubt, whenever the General Partner votes, acquires Partnership Interests or transfers its Partnership Interests, or refrains from voting or transferring its Partnership Interests, it shall be and be deemed to be acting in its individual capacity.
(d) Whenever a potential conflict of interest exists or arises between the General Partner or any of its Affiliates, on the one hand, and the Partnership, any Group Member or any Partner, any other Person who acquires an interest in a Partnership Interest or any other Person who is bound by this Agreement on the other hand, the General Partner may in its discretion submit any resolution, course of action with respect to or causing such conflict of interest or transaction (i) for Special Approval or (ii) for approval by the vote of a majority of the Common Units (excluding Common Units owned by the General Partner or its Affiliates). If any resolution, course of action or transaction: (A) receives Special Approval; or (B) receives approval of a majority of the Common Units (excluding Common Units owned by the General Partner or its Affiliates), then such resolution, course of action or transaction shall be conclusively deemed to be approved by the Partnership, all the Partners, each Person who acquires an interest in a Partnership Interest and each other Person who is bound by this Agreement, and shall not constitute a breach of this Agreement, of any Group Member Agreement, of any agreement contemplated herein or therein, or of any fiduciary or other duty or obligation existing at law, in equity or otherwise or obligation of any type whatsoever.
(e) Notwithstanding anything to the contrary in this Agreement, the General Partner and its Affiliates or any other Indemnitee shall have no duty or obligation, express or implied, to (i) sell or otherwise dispose of any asset of the Partnership Group or (ii) permit any Group Member to use any facilities or assets of the General Partner and its Affiliates, except as may be provided in contracts entered into from time to time specifically dealing with such use. Any determination by the General Partner or any of its Affiliates to enter into such contracts or transactions shall be in its sole discretion.
(f) The Partners and each Person who acquires an interest in a Partnership Interest or is otherwise bound by this Agreement hereby authorize the General Partner, on behalf of the Partnership as a partner or member of a Group Member, to approve actions by the general partner or managing member of such Group Member similar to those actions permitted to be taken by the General Partner pursuant to this Section 7.9.
(g) For the avoidance of doubt, whenever the Board of Directors, any committee of the Board of Directors (including the Conflicts Committee), the officers of the General Partner or any Affiliates of the General
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Partner make a determination on behalf of the General Partner, or cause the General Partner to take or omit to take any action, whether in the General Partners capacity as the General Partner or in its individual capacity, the standards of care applicable to the General Partner shall apply to such Persons, and such Persons shall be entitled to all benefits and rights of the General Partner hereunder, including waivers and modifications of duties, protections and presumptions, as if such Persons were the General Partner hereunder.
Section 7.10 Other Matters Concerning the General Partner .
(a) The General Partner may rely, and shall be protected in acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.
(b) The General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the advice or opinion (including an Opinion of Counsel) of such Persons as to matters that the General Partner reasonably believes to be within such Persons professional or expert competence shall be conclusively presumed to have been done or omitted in Good Faith and in accordance with such advice or opinion.
(c) The General Partner shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its or the Partnerships duly authorized officers, a duly appointed attorney or attorneys-in-fact.
Section 7.11 Purchase or Sale of Partnership Interests . The General Partner may cause the Partnership to purchase or otherwise acquire Partnership Interests. As long as any Partnership Interests are held by any Group Member, such Partnership Interests shall not be entitled to any vote and shall not be considered to be Outstanding.
Section 7.12 Registration Rights of the General Partner and its Affiliates .
(a) If (i) the General Partner or any of its Affiliates (including for purposes of this Section 7.12, any Person that is an Affiliate of the General Partner at the date hereof notwithstanding that it may later cease to be an Affiliate of the General Partner) holds Partnership Interests that it desires to sell and (ii) Rule 144 of the Securities Act (or any successor rule or regulation to Rule 144) or another exemption from registration is not available to enable such holder of Partnership Interests (the Holder ) to dispose of the number of Partnership Interests it desires to sell at the time it desires to do so without registration under the Securities Act, then at the option and upon the request of the Holder, the Partnership shall file with the Commission as promptly as practicable after receiving such request, and use all commercially reasonable efforts to cause to become effective and remain effective for a period of not less than six months following its effective date or such shorter period as shall terminate when all Partnership Interests covered by such registration statement have been sold, a registration statement under the Securities Act registering the offering and sale of the number of Partnership Interests specified by the Holder; provided , however , that the Partnership shall not be required to effect more than two registrations pursuant to this Section 7.12(a) in any twelve-month period; and provided further , however , that if the General Partner determines that a postponement of the requested registration would be in the best interests of the Partnership and its Partners due to a pending transaction, investigation or other event, the filing of such registration statement or the effectiveness thereof may be deferred for up to six months, but not thereafter. In connection with any registration pursuant to the immediately preceding sentence, the Partnership shall (i) promptly prepare and file (A) such documents as may be necessary to register or qualify the securities subject to such registration under the securities laws of such states as the Holder shall reasonably request;
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provided , however , that no such qualification shall be required in any jurisdiction where, as a result thereof, the Partnership would become subject to general service of process or to taxation or qualification to do business as a foreign corporation or partnership doing business in such jurisdiction solely as a result of such registration, and (B) such documents as may be necessary to apply for listing or to list the Partnership Interests subject to such registration on such National Securities Exchange as the Holder shall reasonably request, and (ii) do any and all other acts and things that may be necessary or appropriate to enable the Holder to consummate a public sale of such Partnership Interests in such states. Except as set forth in Section 7.12(c), all costs and expenses of any such registration and offering (other than the underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by the Holder.
(b) If the Partnership shall at any time propose to file a registration statement under the Securities Act for an offering of Partnership Interests for cash (other than an offering relating solely to a benefit plan), the Partnership shall use all commercially reasonable efforts to include such number or amount of Partnership Interests held by any Holder in such registration statement as the Holder shall request; provided , that the Partnership is not required to make any effort or take any action to so include the Partnership Interests of the Holder once the registration statement becomes or is declared effective by the Commission, including any registration statement providing for the offering from time to time of Partnership Interests pursuant to Rule 415 of the Securities Act. If the proposed offering pursuant to this Section 7.12(b) shall be an underwritten offering, then, in the event that the managing underwriter or managing underwriters of such offering advise the Partnership and the Holder that in their opinion the inclusion of all or some of the Holders Partnership Interests would adversely and materially affect the timing or success of the offering, the Partnership shall include in such offering only that number or amount, if any, of Partnership Interests held by the Holder that, in the opinion of the managing underwriter or managing underwriters, will not so adversely and materially affect the offering. Except as set forth in Section 7.12(c), all costs and expenses of any such registration and offering (other than the underwriting discounts and commissions) shall be paid by the Partnership, without reimbursement by the Holder.
(c) If underwriters are engaged in connection with any registration referred to in this Section 7.12, the Partnership shall provide indemnification, representations, covenants, opinions and other assurance to the underwriters in form and substance reasonably satisfactory to such underwriters. Further, in addition to and not in limitation of the Partnerships obligation under Section 7.7, the Partnership shall, to the fullest extent permitted by law, indemnify and hold harmless the Holder, its officers, directors and each Person who controls the Holder (within the meaning of the Securities Act) and any agent thereof (collectively, Indemnified Persons ) from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (hereinafter referred to in this Section 7.12(c) as a claim and in the plural as claims ) based upon, arising out of or resulting from any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which any Partnership Interests were registered under the Securities Act or any state securities or Blue Sky laws, in any preliminary prospectus (if used prior to the effective date of such registration statement), or in any summary or final prospectus or issuer free writing prospectus or in any amendment or supplement thereto (if used during the period the Partnership is required to keep the registration statement current), or arising out of, based upon or resulting from the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein not misleading; provided , however , that the Partnership shall not be liable to any Indemnified Person to the extent that any such claim arises out of, is based upon or results from an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, such preliminary, summary or final prospectus or free writing prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Partnership by or on behalf of such Indemnified Person specifically for use in the preparation thereof.
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(d) The provisions of Section 7.12(a) and Section 7.12(b) shall continue to be applicable with respect to the General Partner (and any of the General Partners Affiliates) after it ceases to be a general partner of the Partnership, during a period of two years subsequent to the effective date of such cessation and for so long thereafter as is required for the Holder to sell all of the Partnership Interests with respect to which it has requested during such two-year period inclusion in a registration statement otherwise filed or that a registration statement be filed; provided , however , that the Partnership shall not be required to file successive registration statements covering the same Partnership Interests for which registration was demanded during such two-year period. The provisions of Section 7.12(c) shall continue in effect thereafter.
(e) The rights to cause the Partnership to register Partnership Interests pursuant to this Section 7.12 may be assigned (but only with all related obligations) by a Holder to a transferee or assignee of such Partnership Interests, provided (i) the Partnership is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee or assignee and the Partnership Interests with respect to which such registration rights are being assigned; and (ii) such transferee or assignee agrees in writing to be bound by and subject to the terms set forth in this Section 7.12.
(f) Any request to register Partnership Interests pursuant to this Section 7.12 shall (i) specify the Partnership Interests intended to be offered and sold by the Person making the request, (ii) express such Persons present intent to offer such Partnership Interests for distribution, (iii) describe the nature or method of the proposed offer and sale of Partnership Interests, and (iv) contain the undertaking of such Person to provide all such information and materials and take all action as may be required in order to permit the Partnership to comply with all applicable requirements in connection with the registration of such Partnership Interests.
Section 7.13 Reliance by Third Parties . Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner and any officer of the General Partner authorized by the General Partner to act on behalf of and in the name of the Partnership has full power and authority to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any authorized contracts on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner or any such officer as if it were the Partnerships sole party in interest, both legally and beneficially. Each Limited Partner, each other Person who acquires an interest in a Partnership Interest and each other Person bound by this Agreement hereby waives, to the fullest extent permitted by law, any and all defenses or other remedies that may be available to such Person or Partner to contest, negate or disaffirm any action of the General Partner or any such officer in connection with any such dealing. In no event shall any Person dealing with the General Partner or any such officer or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General Partner or any such officer or its representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (a) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (b) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (c) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.
ARTICLE VIII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 8.1 Records and Accounting . The General Partner shall keep or cause to be kept at the principal office of the Partnership appropriate books and records with respect to the Partnerships business, including all
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books and records necessary to provide to the Limited Partners any information required to be provided pursuant to Section 3.4(a). Any books and records maintained by or on behalf of the Partnership in the regular course of its business, including the record of the Record Holders of Units or other Partnership Interests, books of account and records of Partnership proceedings, may be kept on, or be in the form of, computer disks, hard drives, magnetic tape, photographs, micrographics or any other information storage device; provided , that the books and records so maintained are convertible into clearly legible written form within a reasonable period of time. The books of the Partnership shall be maintained, for financial reporting purposes, on an accrual basis in accordance with U.S. GAAP. The Partnership shall not be required to keep books maintained on a cash basis and the General Partner shall be permitted to calculate cash-based measures, including Operating Surplus and Adjusted Operating Surplus, by making such adjustments to its accrual basis books to account for non-cash items and other adjustments as the General Partner determines to be necessary or appropriate.
Section 8.2 Fiscal Year . The fiscal year of the Partnership shall be a fiscal year ending December 31.
Section 8.3 Reports .
(a) As soon as practicable, but in no event later than 105 days after the close of each fiscal year of the Partnership, the General Partner shall cause to be mailed or made available, by any reasonable means, to each Record Holder of a Unit or other Partnership Interest as of a date selected by the General Partner, an annual report containing financial statements of the Partnership for such fiscal year of the Partnership, presented in accordance with U.S. GAAP, including a balance sheet and statements of operations, Partnership equity and cash flows, such statements to be audited by a firm of independent public accountants selected by the General Partner, and such other information as may be required by applicable law, regulation or rule of any National Securities Exchange on which the Units are listed or admitted to trading, or as the General Partner determines to be necessary or appropriate.
(b) As soon as practicable, but in no event later than 50 days after the close of each Quarter except the last Quarter of each fiscal year, the General Partner shall cause to be mailed or made available, by any reasonable means to each Record Holder of a Unit or other Partnership Interest, as of a date selected by the General Partner, a report containing unaudited financial statements of the Partnership and such other information as may be required by applicable law, regulation or rule of any National Securities Exchange on which the Units are listed or admitted to trading, or as the General Partner determines to be necessary or appropriate.
(c) The General Partner shall be deemed to have made a report available to each Record Holder as required by this Section 8.3 if it has either (i) filed such report with the Commission via its Electronic Data Gathering, Analysis and Retrieval system and such report is publicly available on such system or (ii) made such report available on any publicly available website maintained by the Partnership.
ARTICLE IX
TAX MATTERS
Section 9.1 Tax Returns and Information . The Partnership shall timely file all returns of the Partnership that are required for federal, state and local income tax purposes on the basis of the accrual method and the taxable period or year that it is required by law to adopt, from time to time, as determined by the General Partner. If the Partnership is required to use a taxable period other than a year ending on December 31, the General Partner shall use reasonable efforts to change the taxable period of the Partnership to a year ending on December 31. The tax information reasonably required by Record Holders for federal, state and local income tax reporting purposes with respect to a taxable period shall be furnished to them within 90 days of the close of the calendar year in
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which the Partnerships taxable period ends. The classification, realization and recognition of income, gain, losses and deductions and other items shall be on the accrual method of accounting for U.S. federal income tax purposes.
Section 9.2 Tax Elections .
(a) The Partnership shall make the election under Section 754 of the Code in accordance with applicable regulations thereunder, subject to the reservation of the right to seek to revoke any such election upon the General Partners determination that such revocation is in the best interests of the Limited Partners. Notwithstanding any other provision herein contained, for the purposes of computing the adjustments under Section 743(b) of the Code, the General Partner shall be authorized (but not required) to adopt a convention whereby the price paid by a transferee of a Limited Partner Interest will be deemed to be the lowest Closing Price of the Limited Partner Interests on any National Securities Exchange on which such Limited Partner Interests are listed or admitted to trading during the calendar month in which such transfer is deemed to occur pursuant to Section 6.2(f) without regard to the actual price paid by such transferee.
(b) Except as otherwise provided herein, the General Partner shall determine whether the Partnership should make any other elections permitted by the Code.
Section 9.3 Tax Controversies . Subject to the provisions hereof, the General Partner is designated as the Tax Matters Partner (as defined in the Code) and is authorized and required to represent the Partnership (at the Partnerships expense) in connection with all examinations of the Partnerships affairs by tax authorities, including resulting administrative and judicial proceedings, and to expend Partnership funds for professional services and costs associated therewith. Each Partner agrees to cooperate with the General Partner and to do or refrain from doing any or all things reasonably required by the General Partner to conduct such proceedings.
Section 9.4 Withholding; Tax Payments .
(a) The General Partner may treat taxes paid by the Partnership on behalf of, all or less than all of the Partners, either as a distribution of cash to such Partners or as a general expense of the Partnership, as determined appropriate under the circumstances by the General Partner.
(b) Notwithstanding any other provision of this Agreement, the General Partner is authorized to take any action that may be required to cause the Partnership and other Group Members to comply with any withholding requirements established under the Code or any other federal, state or local law including pursuant to Sections 1441, 1442, 1445 and 1446 of the Code. To the extent that the Partnership is required or elects to withhold and pay over to any taxing authority any amount resulting from the allocation or distribution of income or from a distribution to any Partner (including by reason of Section 1446 of the Code), the General Partner may treat the amount withheld as a distribution of cash pursuant to Section 6.3 in the amount of such withholding from such Partner.
ARTICLE X
ADMISSION OF PARTNERS
Section 10.1 Admission of Limited Partners .
(a) By acceptance of the transfer of any Limited Partner Interests in accordance with Article IV or the acceptance of any Limited Partner Interests issued pursuant to Article V or pursuant to a merger or consolidation or conversion pursuant to Article XIV, and except as provided in Section 4.8, each transferee of, or other such Person acquiring, a Limited Partner Interest (including any nominee holder or an agent or representative
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acquiring such Limited Partner Interests for the account of another Person) (i) shall be admitted to the Partnership as a Limited Partner with respect to the Limited Partner Interests so transferred or issued to such Person when any such transfer or issuance is reflected in the books and records of the Partnership and such Limited Partner becomes the Record Holder of the Limited Partner Interests so transferred or issued, (ii) shall become bound, and shall be deemed to have agreed to be bound, by the terms of this Agreement, (iii) represents that the transferee or other recipient has the capacity, power and authority to enter into this Agreement and (iv) makes the consents, acknowledgements and waivers contained in this Agreement, all with or without execution of this Agreement by such Person. The transfer of any Limited Partner Interests and the admission of any new Limited Partner shall not constitute an amendment to this Agreement. A Person may become a Limited Partner or Record Holder of a Limited Partner Interest without the consent or approval of any of the Partners. A Person may not become a Limited Partner without acquiring a Limited Partner Interest and until such Person is reflected in the books and records of the Partnership as the Record Holder of such Limited Partner Interest. The rights and obligations of a Person who is an Ineligible Holder shall be determined in accordance with Section 4.8.
(b) The name and mailing address of each Record Holder shall be listed on the books and records of the Partnership maintained for such purpose by the Partnership or the Transfer Agent. The General Partner shall update the books and records of the Partnership from time to time as necessary to reflect accurately the information therein (or shall cause the Transfer Agent to do so, as applicable).
(c) Any transfer of a Limited Partner Interest shall not entitle the transferee to share in the profits and losses, to receive distributions, to receive allocations of income, gain, loss, deduction or credit or any similar item or to any other rights to which the transferor was entitled until the transferee becomes a Limited Partner pursuant to Section 10.1(a).
Section 10.2 Admission of Successor General Partner . A successor General Partner approved pursuant to Section 11.1 or Section 11.2 or the transferee of or successor to all of the General Partner Interest pursuant to Section 4.6 who is proposed to be admitted as a successor General Partner shall be admitted to the Partnership as the General Partner, effective immediately prior to the withdrawal or removal of the predecessor or transferring General Partner, pursuant to Section 11.1 or Section 11.2 or the transfer of the General Partner Interest pursuant to Section 4.6, provided , however , that no such successor shall be admitted to the Partnership until compliance with the terms of Section 4.6 has occurred and such successor has executed and delivered such other documents or instruments as may be required to effect such admission. Any such successor shall, subject to the terms hereof, carry on the business of the members of the Partnership Group without dissolution.
Section 10.3 Amendment of Agreement and Certificate of Limited Partnership . To effect the admission to the Partnership of any Partner, the General Partner shall take all steps necessary or appropriate under the Delaware Act to amend the records of the Partnership to reflect such admission and, if necessary, to prepare as soon as practicable an amendment to this Agreement and, if required by law, the General Partner shall prepare and file an amendment to the Certificate of Limited Partnership.
ARTICLE XI
WITHDRAWAL OR REMOVAL OF PARTNERS
Section 11.1 Withdrawal of the General Partner .
(a) The General Partner shall be deemed to have withdrawn from the Partnership upon the occurrence of any one of the following events (each such event herein referred to as an Event of Withdrawal );
(i) The General Partner voluntarily withdraws from the Partnership by giving written notice to the other Partners;
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(ii) The General Partner transfers all of its General Partner Interest pursuant to Section 4.6;
(iii) The General Partner is removed pursuant to Section 11.2;
(iv) The General Partner (A) makes a general assignment for the benefit of creditors; (B) files a voluntary bankruptcy petition for relief under Chapter 7 of the U.S. Bankruptcy Code; (C) files a petition or answer seeking for itself a liquidation, dissolution or similar relief (but not a reorganization) under any law; (D) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the General Partner in a proceeding of the type described in clauses (A)- (C) of this Section 11.1(a)(iv); or (E) seeks, consents to or acquiesces in the appointment of a trustee (but not a debtor-in-possession), receiver or liquidator of the General Partner or of all or any substantial part of its properties;
(v) A final and non-appealable order of relief under Chapter 7 of the U.S. Bankruptcy Code is entered by a court with appropriate jurisdiction pursuant to a voluntary or involuntary petition by or against the General Partner; or
(vi)(A) if the General Partner is a corporation, a certificate of dissolution or its equivalent is filed for the General Partner, or 90 days expire after the date of notice to the General Partner of revocation of its charter without a reinstatement of its charter, under the laws of its state of incorporation; (B) if the General Partner is a partnership or a limited liability company, the dissolution and commencement of winding up of the General Partner; (C) if the General Partner is acting in such capacity by virtue of being a trustee of a trust, the termination of the trust; and (D) if the General Partner is a natural person, his death or adjudication of incompetency.
If an Event of Withdrawal specified in Section 11.1(a)(iv), (v) or (vi)(A), (B) or (C) occurs, the withdrawing General Partner shall give notice to the Limited Partners within 30 days after such occurrence. The Partners hereby agree that only the Events of Withdrawal described in this Section 11.1 shall result in the withdrawal of the General Partner from the Partnership.
(b) Withdrawal of the General Partner from the Partnership upon the occurrence of an Event of Withdrawal shall not constitute a breach of this Agreement under the following circumstances: (i) at any time during the period beginning on the Closing Date and ending at 11:59 pm, prevailing Central Time, on , 2024, the General Partner voluntarily withdraws by giving at least 90 days advance notice of its intention to withdraw to the Limited Partners; provided , that prior to the effective date of such withdrawal, the withdrawal is approved by Unitholders holding a majority of the Outstanding Common Units (excluding Common Units held by the General Partner and its Affiliates) and the General Partner delivers to the Partnership an Opinion of Counsel ( Withdrawal Opinion of Counsel ) that such withdrawal (following the selection of the successor General Partner) would not result in the loss of the limited liability under the Delaware Act of any Limited Partner or cause any Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already so treated or taxed); (ii) at any time after 11:59 pm, prevailing Central Time, on , 2024, the General Partner voluntarily withdraws by giving at least 90 days advance notice to the Unitholders, such withdrawal to take effect on the date specified in such notice; (iii) at any time that the General Partner ceases to be the General Partner pursuant to Section 11.1(a)(ii) or is removed pursuant to Section 11.2; or (iv) notwithstanding clause (i) of this sentence, at any time that the General Partner voluntarily withdraws by giving at least 90 days advance notice of its intention to withdraw to the Limited Partners, such withdrawal to take effect on the date specified in the notice, if at the time such notice is given one Person and its Affiliates (other than the General Partner and its Affiliates) own beneficially or of record or control at least 50% of the Outstanding Units. The withdrawal of the General Partner from the Partnership upon the occurrence of an Event of Withdrawal shall also constitute the withdrawal of the
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General Partner as general partner or managing member, if any, to the extent applicable, of the other Group Members. If the General Partner gives a notice of withdrawal pursuant to Section 11.1(a)(i), a Unit Majority may, prior to the effective date of such withdrawal, elect a successor General Partner. The Person so elected as successor General Partner shall automatically become the successor general partner or managing member, to the extent applicable, of the other Group Members of which the General Partner is a general partner or a managing member. If, prior to the effective date of the General Partners withdrawal pursuant to Section 11.1(a)(i), a successor is not selected by the Unitholders as provided herein or the Partnership does not receive a Withdrawal Opinion of Counsel, the Partnership shall be dissolved in accordance with Section 12.1 unless the business of the Partnership is continued pursuant to Section 12.2. Any successor General Partner elected in accordance with the terms of this Section 11.1 shall be subject to the provisions of Section 10.2.
Section 11.2 Removal of the General Partner . The General Partner may be removed if such removal is approved by the Unitholders holding at least 66 2/3% of the Outstanding Units (including Units held by the General Partner and its Affiliates) voting as a single class. Any such action by such holders for removal of the General Partner must also provide for the election of a successor General Partner by the Unitholders holding a majority of the Outstanding Common Units, voting as a class, and a majority of the Outstanding Subordinated Units, voting as a class (including, in each case, Units held by the General Partner and its Affiliates). Such removal shall be effective immediately following the admission of a successor General Partner pursuant to Section 10.2. The removal of the General Partner shall also automatically constitute the removal of the General Partner as general partner or managing member, to the extent applicable, of the other Group Members of which the General Partner is a general partner or a managing member. If a Person is elected as a successor General Partner in accordance with the terms of this Section 11.2, such Person shall, upon admission pursuant to Section 10.2, automatically become a successor general partner or managing member, to the extent applicable, of the other Group Members of which the General Partner is a general partner or a managing member. The right of the holders of Outstanding Units to remove the General Partner shall not exist or be exercised unless the Partnership has received an opinion opining as to the matters covered by a Withdrawal Opinion of Counsel. Any successor General Partner elected in accordance with the terms of this Section 11.2 shall be subject to the provisions of Section 10.2.
Section 11.3 Interest of Departing General Partner and Successor General Partner .
(a) In the event of (i) withdrawal of the General Partner under circumstances where such withdrawal does not violate this Agreement or (ii) removal of the General Partner by the holders of Outstanding Units under circumstances where Cause does not exist, if the successor General Partner is elected in accordance with the terms of Section 11.1 or Section 11.2, the Departing General Partner shall have the option, exercisable prior to the effective date of the withdrawal or removal of such Departing General Partner, to require its successor to purchase its General Partner Interest and its or its Affiliates general partner interest (or equivalent interest), if any, in the other Group Members and all of its or its Affiliates Incentive Distribution Rights (collectively, the Combined Interest ) in exchange for an amount in cash equal to the fair market value of such Combined Interest, such amount to be determined and payable as of the effective date of its withdrawal or removal. If the General Partner is removed by the Unitholders under circumstances where Cause exists or if the General Partner withdraws under circumstances where such withdrawal violates this Agreement, and if a successor General Partner is elected in accordance with the terms of Section 11.1 or Section 11.2 (or if the business of the Partnership is continued pursuant to Section 12.2 and the successor General Partner is not the former General Partner), such successor shall have the option, exercisable prior to the effective date of the withdrawal or removal of such Departing General Partner (or, in the event the business of the Partnership is continued, prior to the date the business of the Partnership is continued), to purchase the Combined Interest for such fair market value of such Combined Interest. In either event, the Departing General Partner shall be entitled to receive all reimbursements due such Departing General Partner pursuant to Section 7.5, including any employee-related
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liabilities (including severance liabilities), incurred in connection with the termination of any employees employed by the Departing General Partner or its Affiliates (other than any Group Member) for the benefit of the Partnership or the other Group Members.
For purposes of this Section 11.3(a), the fair market value of the Combined Interest shall be determined by agreement between the Departing General Partner and its successor or, failing agreement within 30 days after the effective date of such Departing General Partners withdrawal or removal, by an independent investment banking firm or other independent expert selected by the Departing General Partner and its successor, which, in turn, may rely on other experts, and the determination of which shall be conclusive as to such matter. If such parties cannot agree upon one independent investment banking firm or other independent expert within 45 days after the effective date of such withdrawal or removal, then the Departing General Partner shall designate an independent investment banking firm or other independent expert, the Departing General Partners successor shall designate an independent investment banking firm or other independent expert, and such firms or experts shall mutually select a third independent investment banking firm or independent expert, which third independent investment banking firm or other independent expert shall determine the fair market value of the Combined Interest. In making its determination, such third independent investment banking firm or other independent expert may consider the value of the Units, including the then current trading price of Units on any National Securities Exchange on which Units are then listed or admitted to trading, the value of the Partnerships assets, the rights and obligations of the Departing General Partner, the value of the Incentive Distribution Rights and the General Partner Interest and other factors it may deem relevant.
(b) If the Combined Interest is not purchased in the manner set forth in Section 11.3(a), the Departing General Partner (and its Affiliates, if applicable) shall become a Limited Partner and the Combined Interest shall be converted into Common Units pursuant to a valuation made by an investment banking firm or other independent expert selected pursuant to Section 11.3(a), without reduction in such Partnership Interest (but subject to proportionate dilution by reason of the admission of its successor). Any successor General Partner shall indemnify the Departing General Partner as to all debts and liabilities of the Partnership arising on or after the date on which the Departing General Partner becomes a Limited Partner. For purposes of this Agreement, conversion of the Combined Interest to Common Units will be characterized as if the Departing General Partner (and its Affiliates, if applicable) contributed the Combined Interest to the Partnership in exchange for the newly issued Common Units.
(c) If a successor General Partner is elected in accordance with the terms of Section 11.1 or Section 11.2 (or if the business of the Partnership is continued pursuant to Section 12.2 and the successor General Partner is not the former General Partner) and the option described in Section 11.3(a) is not exercised by the party entitled to do so, the successor General Partner shall, at the effective date of its admission to the Partnership, contribute to the Partnership cash in the amount equal to the product of (x) the quotient obtained by dividing (i) the Percentage Interest of the General Partner Interest of the Departing General Partner by (ii) a percentage equal to 100% less the Percentage Interest of the General Partner Interest of the Departing General Partner and (y) the Net Agreed Value of the Partnerships assets on such date. In such event, such successor General Partner shall, subject to the following sentence, be entitled to its Percentage Interest of all Partnership allocations and distributions to which the Departing General Partner was entitled. In addition, the successor General Partner shall cause this Agreement to be amended to reflect that, from and after the date of such successor General Partners admission, the successor General Partners interest in all Partnership distributions and allocations shall be its Percentage Interest.
Section 11.4 Conversion of Subordinated Units . Notwithstanding any provision of this Agreement, if the General Partner is removed as general partner of the Partnership under circumstances where Cause does not exist, the Subordinated Units held by any Person will immediately and automatically convert into Common Units on a one-for-one basis, provided (i) neither such Person nor any of its Affiliates voted any of its Units in favor of the
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removal and (ii) such Person is not an Affiliate of the successor General Partner; provided , however , that such converted Subordinated Units shall remain subject to the provisions of Section 5.5(c)(ii), Section 6.1(d)(x), Section 6.7(b) and Section 6.7(c).
Section 11.5 Withdrawal of Limited Partners . No Limited Partner shall have any right to withdraw from the Partnership; provided , however , that when a transferee of a Limited Partners Limited Partner Interest becomes a Record Holder of the Limited Partner Interest so transferred, such transferring Limited Partner shall cease to be a Limited Partner with respect to the Limited Partner Interest so transferred.
ARTICLE XII
DISSOLUTION AND LIQUIDATION
Section 12.1 Dissolution . The Partnership shall not be dissolved by the admission of additional Limited Partners or by the admission of a successor General Partner in accordance with the terms of this Agreement. Upon the removal or withdrawal of the General Partner, if a successor General Partner is elected pursuant to Section 11.1, Section 11.2 or Section 12.2, the Partnership shall not be dissolved and such successor General Partner is hereby authorized to, and shall, continue the business of the Partnership. Subject to Section 12.2, the Partnership shall dissolve, and its affairs shall be wound up, upon:
(a) an Event of Withdrawal of the General Partner as provided in Section 11.1(a) (other than Section 11.1(a)(ii)), unless a successor is elected and such successor is admitted to the Partnership pursuant to this Agreement;
(b) an election to dissolve the Partnership by the General Partner that is approved by a Unit Majority;
(c) the entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Delaware Act; or
(d) at any time there are no Limited Partners, unless the Partnership is continued without dissolution in accordance with the Delaware Act.
Section 12.2 Continuation of the Business of the Partnership After Dissolution . Upon (a) an Event of Withdrawal caused by the withdrawal or removal of the General Partner as provided in Section 11.1(a)(i) or (iii) and the failure of the Partners to select a successor to such Departing General Partner pursuant to Section 11.1 or Section 11.2, then within 90 days thereafter, or (b) an event constituting an Event of Withdrawal as defined in Section 11.1(a)(iv), (v) or (vi), then, to the maximum extent permitted by law, within 180 days thereafter, a Unit Majority may elect to continue the business of the Partnership on the same terms and conditions set forth in this Agreement by appointing as a successor General Partner a Person approved by a Unit Majority. Unless such an election is made within the applicable time period as set forth above, the Partnership shall conduct only activities necessary to wind up its affairs. If such an election is so made, then:
(i) the Partnership shall continue without dissolution unless earlier dissolved in accordance with this Article XII;
(ii) if the successor General Partner is not the former General Partner, then the interest of the former General Partner shall be treated in the manner provided in Section 11.3; and
(iii) the successor General Partner shall be admitted to the Partnership as General Partner, effective as of the Event of Withdrawal, by agreeing in writing to be bound by this Agreement;
provided , that the right of a Unit Majority to approve a successor General Partner and to continue the business of the Partnership shall not exist and may not be exercised unless the Partnership has received an
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Opinion of Counsel that (x) the exercise of the right would not result in the loss of limited liability under the Delaware Act of any Limited Partner and (y) neither the Partnership nor any Group Member would be treated as an association taxable as a corporation or otherwise be taxable as an entity for U.S. federal income tax purposes upon the exercise of such right to continue (to the extent not already so treated or taxed).
Section 12.3 Liquidator . Upon dissolution of the Partnership, unless the business of the Partnership is continued pursuant to Section 12.2, the General Partner shall select one or more Persons to act as Liquidator. The Liquidator (if other than the General Partner) shall be entitled to receive such compensation for its services as may be approved by holders of a majority of the Outstanding Common Units and Subordinated Units, voting as a single class. The Liquidator (if other than the General Partner) shall agree not to resign at any time without 15 days prior notice and may be removed at any time, with or without cause, by notice of removal approved by holders of a majority of the Outstanding Common Units and Subordinated Units, voting as a single class. Upon dissolution, removal or resignation of the Liquidator, a successor and substitute Liquidator (who shall have and succeed to all rights, powers and duties of the original Liquidator) shall within 30 days thereafter be approved by holders of a majority of the Outstanding Common Units and Subordinated Units, voting as a single class. The right to approve a successor or substitute Liquidator in the manner provided herein shall be deemed to refer also to any such successor or substitute Liquidator approved in the manner herein provided. Except as expressly provided in this Article XII, the Liquidator approved in the manner provided herein shall have and may exercise, without further authorization or consent of any of the parties hereto, all of the powers conferred upon the General Partner under the terms of this Agreement (but subject to all of the applicable limitations, contractual and otherwise, upon the exercise of such powers, other than the limitation on sale set forth in Section 7.4) necessary or appropriate to carry out the duties and functions of the Liquidator hereunder for and during the period of time required to complete the winding up and liquidation of the Partnership as provided for herein.
Section 12.4 Liquidation . The Liquidator shall proceed to dispose of the assets of the Partnership, discharge its liabilities, and otherwise wind up its affairs in such manner and over such period as determined by the Liquidator, subject to Section 17-804 of the Delaware Act and the following:
(a) The assets may be disposed of by public or private sale or by distribution in kind to one or more Partners on such terms as the Liquidator and such Partner or Partners may agree. If any property is distributed in kind, the Partner receiving the property shall be deemed for purposes of Section 12.4(c) to have received cash equal to its fair market value; and contemporaneously therewith, appropriate cash distributions must be made to the other Partners. The Liquidator may defer liquidation or distribution of the Partnerships assets for a reasonable time if it determines that an immediate sale or distribution of all or some of the Partnerships assets would be impractical or would cause undue loss to the Partners. The Liquidator may distribute the Partnerships assets, in whole or in part, in kind if it determines that a sale would be impractical or would cause undue loss to the Partners.
(b) Liabilities of the Partnership include amounts owed to the Liquidator as compensation for serving in such capacity (subject to the terms of Section 12.3) and amounts to Partners otherwise than in respect of their distribution rights under Article VI. With respect to any liability that is contingent, conditional or unmatured or is otherwise not yet due and payable, the Liquidator shall either settle such claim for such amount as it thinks appropriate or establish a reserve of cash or other assets to provide for its payment. When paid, any unused portion of the reserve shall be distributed as additional liquidation proceeds.
(c) All property and all cash in excess of that required to discharge liabilities as provided in Section 12.4(b) shall be distributed to the Partners in accordance with, and to the extent of, the positive balances in their respective Capital Accounts, as determined after taking into account all Capital Account adjustments (other than those made by reason of distributions pursuant to this Section 12.4(c)) for the taxable period of the Partnership during which the liquidation of the Partnership occurs (with such date of occurrence being determined pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(g)), and such distribution shall be made by the end of such taxable period (or, if later, within 90 days after said date of such occurrence).
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Section 12.5 Cancellation of Certificate of Limited Partnership . Upon the completion of the distribution of Partnership cash and property as provided in Section 12.4 in connection with the liquidation of the Partnership, the Certificate of Limited Partnership and all qualifications of the Partnership as a foreign limited partnership in jurisdictions other than the State of Delaware shall be canceled and such other actions as may be necessary to terminate the Partnership shall be taken.
Section 12.6 Return of Contributions . The General Partner shall not be personally liable for, and shall have no obligation to contribute or loan any monies or property to the Partnership to enable it to effectuate, the return of the Capital Contributions of the Limited Partners or Unitholders, or any portion thereof, it being expressly understood that any such return shall be made solely from Partnership assets.
Section 12.7 Waiver of Partition . To the maximum extent permitted by law, each Partner hereby waives any right to partition of the Partnership property.
Section 12.8 Capital Account Restoration . No Limited Partner shall have any obligation to restore any negative balance in its Capital Account upon liquidation of the Partnership. The General Partner shall be obligated to restore any negative balance in its Capital Account upon liquidation of its interest in the Partnership by the end of the taxable period of the Partnership during which such liquidation occurs, or, if later, within 90 days after the date of such liquidation.
ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE
Section 13.1 Amendments to be Adopted Solely by the General Partner . Each Partner agrees that the General Partner, without the approval of any Partner, may amend any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith, to reflect:
(a) a change in the name of the Partnership, the location of the principal place of business of the Partnership, the registered agent of the Partnership or the registered office of the Partnership;
(b) admission, substitution, withdrawal or removal of Partners in accordance with this Agreement;
(c) a change that the General Partner determines to be necessary or appropriate to qualify or continue the qualification of the Partnership 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 the Group Members will not be treated as associations taxable as corporations or otherwise taxed as entities for U.S. federal income tax purposes;
(d) a change that the General Partner determines (i) does not adversely affect the Limited Partners (including any particular class of Partnership Interests as compared to other classes of Partnership Interests) in any material respect, (ii) to be necessary or appropriate to (A) 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 (including the Delaware Act) or (B) facilitate the trading of the Units (including the division of any class or classes of Outstanding Units into different classes to facilitate uniformity of tax consequences within such classes of Units) or comply with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are or will be listed or admitted to trading, (iii) to be necessary or appropriate in connection with action taken by the General Partner pursuant to Section 5.9 or (iv) is required to effect the intent expressed in the Registration Statement or the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement;
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(e) a change in the fiscal year or taxable period of the Partnership and any other changes that the General Partner determines to be necessary or appropriate as a result of a change in the fiscal year or taxable period of the Partnership including, if the General Partner shall so determine, a change in the definition of Quarter and the dates on which distributions are to be made by the Partnership;
(f) an amendment that is necessary, in the Opinion of Counsel, to prevent the Partnership, or the General Partner or its directors, officers, trustees or agents from in any manner being subjected to the provisions of the Investment Company Act of 1940, as amended, the Investment Advisers Act of 1940, as amended, or plan asset regulations adopted under the Employee Retirement Income Security Act of 1974, as amended, regardless of whether such are substantially similar to plan asset regulations currently applied or proposed by the U.S. Department of Labor;
(g) an amendment that the General Partner determines to be necessary or appropriate in connection with the creation, authorization or issuance of any class or series of Partnership Interests and Derivative Instruments pursuant to Section 5.6;
(h) any amendment expressly permitted in this Agreement to be made by the General Partner acting alone;
(i) an amendment effected, necessitated or contemplated by a Merger Agreement approved in accordance with Section 14.3;
(j) an amendment that the General Partner determines to be necessary or appropriate to reflect and account for the formation by the Partnership of, or investment by the Partnership in, any corporation, partnership, joint venture, limited liability company or other entity, in connection with the conduct by the Partnership of activities permitted by the terms of Section 2.4 or 7.1(a);
(k) a merger, conveyance or conversion pursuant to Section 14.3(d); or
(l) any other amendments substantially similar to the foregoing.
Section 13.2 Amendment Procedures . Amendments to this Agreement may be proposed only by the General Partner. To the fullest extent permitted by law, the General Partner shall have no duty or obligation to propose or approve any amendment to this Agreement and may decline to do so in its sole discretion. An amendment shall be effective upon its approval by the General Partner and, except as otherwise provided by Section 13.1 or 13.3, a Unit Majority, unless a greater or different percentage is required under this Agreement or by Delaware law. Each proposed amendment that requires the approval of the holders of a specified percentage of Outstanding Units shall be set forth in a writing that contains the text of the proposed amendment. If such an amendment is proposed, the General Partner shall seek the written approval of the requisite percentage of Outstanding Units or call a meeting of the Unitholders to consider and vote on such proposed amendment. The General Partner shall notify all Record Holders upon final adoption of any amendments. The General Partner shall be deemed to have notified all Record Holders as required by this Section 13.2 if it has either (i) filed such amendment with the Commission via its Electronic Data Gathering, Analysis and Retrieval system and such amendment is publicly available on such system or (ii) made such amendment available on any publicly available website maintained by the Partnership.
Section 13.3 Amendment Requirements .
(a) Notwithstanding the provisions of Section 13.1 (other than Section 13.1(d)(iv)) and Section 13.2, no provision of this Agreement (other than Section 11.2 or Section 13.4) that establishes a percentage of
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Outstanding Units (including Units deemed owned by the General Partner) or requires a vote or approval of Partners (or a subset of Partners) holding a specified Percentage Interest to take any action shall be amended, altered, changed, repealed or rescinded in any respect that would have the effect of reducing or increasing such percentage, unless such amendment is approved by the written consent or the affirmative vote of holders of Outstanding Units whose aggregate Outstanding Units constitute not less than the voting requirement sought to be reduced or increased, as applicable, or the affirmative vote of Partners whose aggregate Percentage Interests constitute not less than the voting requirement sought to be reduced or increased, as applicable.
(b) Notwithstanding the provisions of Section 13.1 (other than Section 13.1(d)(iv)) and Section 13.2, no amendment to this Agreement may (i) enlarge the obligations of (including requiring any holder of a class of Partnership Interests to make additional Capital Contributions to the Partnership) any Limited Partner without its consent, unless such shall be deemed to have occurred as a result of an amendment approved pursuant to Section 13.3(c), or (ii) enlarge the obligations of, restrict, change or modify in any way any action by or rights of, or reduce in any way the amounts distributable, reimbursable or otherwise payable to, the General Partner or any of its Affiliates without its consent, which consent may be given or withheld at its option.
(c) Except as provided in Section 14.3 or Section 13.1, any amendment that would have a material adverse effect on the rights or preferences of any class of Partnership Interests in relation to other classes of Partnership Interests must be approved by the holders of not less than a majority of the Outstanding Partnership Interests of the class affected. If the General Partner determines an amendment does not satisfy the requirements of Section 13.1(d)(i) because it adversely affects one or more classes of Partnership Interests, as compared to other classes of Partnership Interests, in any material respect, such amendment shall only be required to be approved by the adversely affected class or classes.
(d) Notwithstanding any other provision of this Agreement, except for amendments pursuant to Section 13.1 and except as otherwise provided by Section 14.3(b), no amendments shall become effective without the approval of the holders of at least 90% of the Percentage Interests of all Limited Partners voting as a single class unless the Partnership obtains an Opinion of Counsel to the effect that such amendment will not affect the limited liability of any Limited Partner under applicable partnership law of the state under whose laws the Partnership is organized.
(e) Except as provided in Section 13.1, this Section 13.3 shall only be amended with the approval of Partners (including the General Partner and its Affiliates) holding at least 90% of the Percentage Interests of all Limited Partners.
Section 13.4 Special Meetings . All acts of Limited Partners to be taken pursuant to this Agreement shall be taken in the manner provided in this Article XIII. Special meetings of the Limited Partners may be called by the General Partner or by Limited Partners owning 50% or more of the Outstanding Units of the class or classes for which a meeting is proposed. Limited Partners shall call a special meeting by delivering to the General Partner one or more requests in writing stating that the signing Limited Partners wish to call a special meeting and indicating the specific purposes for which the special meeting is to be called and the class or classes of Units for which the meeting is proposed. No business may be brought by any Limited Partner before such special meeting except the business listed in the related request. Within 60 days after receipt of such a call from Limited Partners or within such greater time as may be reasonably necessary for the Partnership to comply with any statutes, rules, regulations, listing agreements or similar requirements governing the holding of a meeting or the solicitation of proxies for use at such a meeting, the General Partner shall send a notice of the meeting to the Limited Partners either directly or indirectly through the Transfer Agent. A meeting shall be held at a time and place determined by the General Partner on a date not less than 10 days nor more than 60 days after the time notice of the meeting is given as provided in Section 16.1. Limited Partners shall not vote on matters that would cause the Limited
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Partners to be deemed to be taking part in the management and control of the business and affairs of the Partnership so as to jeopardize the Limited Partners limited liability under the Delaware Act or the law of any other state in which the Partnership is qualified to do business.
Section 13.5 Notice of a Meeting . Notice of a meeting called pursuant to Section 13.4 shall be given to the Record Holders of the class or classes of Units for which a meeting is proposed in writing by mail or other means of written communication in accordance with Section 16.1. The notice shall be deemed to have been given at the time when deposited in the mail or sent by other means of written communication.
Section 13.6 Record Date . For purposes of determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners or to give approvals without a meeting as provided in Section 13.11 the General Partner may set a Record Date, which shall not be less than 10 nor more than 60 days before (a) the date of the meeting (unless such requirement conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed or admitted to trading or U.S. federal securities laws, in which case the rule, regulation, guideline or requirement of such National Securities Exchange or U.S. federal securities laws shall govern) or (b) in the event that approvals are sought without a meeting, the date by which Limited Partners are requested in writing by the General Partner to give such approvals. If the General Partner does not set a Record Date, then (i) the Record Date for determining the Limited Partners entitled to notice of or to vote at a meeting of the Limited Partners shall be the close of business on the day next preceding the day on which notice is given, and (ii) the Record Date for determining the Limited Partners entitled to give approvals without a meeting shall be the date the first written approval is deposited with the Partnership in care of the General Partner in accordance with Section 13.11.
Section 13.7 Postponement and Adjournment . Prior to the date upon which any meeting of Limited Partners is to be held, the General Partner may postpone such meeting one or more times for any reason by giving notice to each Limited Partner entitled to vote at the meeting so postponed of the place, date and hour at which such meeting would be held. Such notice shall be given not fewer than two days before the date of such meeting and otherwise in accordance with this Article XIII. When a meeting is postponed, a new Record Date need not be fixed unless such postponement shall be for more than 45 days. Any meeting of Limited Partners may be adjourned by the General Partner one or more times for any reason, including the failure of a quorum to be present at the meeting with respect to any proposal or the failure of any proposal to receive sufficient votes for approval. No Limited Partner vote shall be required for any adjournment. A meeting of Limited Partners may be adjourned by the General Partner as to one or more proposals regardless of whether action has been taken on other matters. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting and a new Record Date need not be fixed, if the time and place thereof are announced at the meeting at which the adjournment is taken, unless such adjournment shall be for more than 45 days. At the adjourned meeting, the Partnership may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 45 days or if a new Record Date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given in accordance with this Article XIII.
Section 13.8 Waiver of Notice; Approval of Meeting ; Approval of Minutes . The transaction of business at any meeting of Limited Partners, however called and noticed, and whenever held, shall be as valid as if it had occurred at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy. Attendance of a Limited Partner at a meeting shall constitute a waiver of notice of the meeting, except when the Limited Partner attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened; and except that attendance at a meeting is not a waiver of any right to disapprove the consideration of matters required to be included in the notice of the meeting, but not so included, if the disapproval is expressly made at the meeting.
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Section 13.9 Quorum and Voting . The holders of a majority, by Percentage Interest, of Partnership Interests of the class or classes for which a meeting has been called (including Partnership Interests deemed owned by the General Partner) represented in person or by proxy shall constitute a quorum at a meeting of Partners of such class or classes unless any such action by the Partners requires approval by holders of a greater Percentage Interest, in which case the quorum shall be such greater Percentage Interest. At any meeting of the Partners duly called and held in accordance with this Agreement at which a quorum is present, the act of Partners holding Partnership Interests that, in the aggregate, represent a majority of the Percentage Interest of those present in person or by proxy at such meeting shall be deemed to constitute the act of all Partners, unless a greater or different percentage is required with respect to such action under the provisions of this Agreement, in which case the act of the Partners holding Partnership Interests that in the aggregate represent at least such greater or different percentage shall be required; provided , however , that if, as a matter of law or provision of this Agreement, approval by plurality vote of Partners (or any class thereof) is required to approve any action, no minimum quorum shall be required. The Partners present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough Partners to leave less than a quorum, if any action taken (other than adjournment) is approved by Partners holding the required Percentage Interest specified in this Agreement.
Section 13.10 Conduct of a Meeting . The General Partner shall have full power and authority concerning the manner of conducting any meeting of the Limited Partners or solicitation of approvals in writing, including the determination of Persons entitled to vote, the existence of a quorum, the satisfaction of the requirements of Section 13.4, the conduct of voting, the validity and effect of any proxies and the determination of any controversies, votes or challenges arising in connection with or during the meeting or voting. The General Partner shall designate a Person to serve as chairman of any meeting and shall further designate a Person to take the minutes of any meeting. All minutes shall be kept with the records of the Partnership maintained by the General Partner. The General Partner may make such other regulations consistent with applicable law and this Agreement as it may deem advisable concerning the conduct of any meeting of the Limited Partners or solicitation of approvals in writing, including regulations in regard to the appointment of proxies, the appointment and duties of inspectors of votes and approvals, the submission and examination of proxies and other evidence of the right to vote, and the revocation of approvals in writing.
Section 13.11 Action Without a Meeting . If authorized by the General Partner, any action that may be taken at a meeting of the Limited Partners may be taken without a meeting, without a vote and without prior notice, if an approval in writing setting forth the action so taken is signed by Limited Partners owning not less than the minimum percentage, by Percentage Interest, of the Partnership Interests of the class or classes for which a meeting has been called (including Partnership Interests deemed owned by the General Partner), as the case may be, that would be necessary to authorize or take such action at a meeting at which all the Limited Partners entitled to vote at such meeting were present and voted (unless such provision conflicts with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are listed or admitted to trading, in which case the rule, regulation, guideline or requirement of such National Securities Exchange shall govern). Prompt notice of the taking of action without a meeting shall be given to the Limited Partners who have not approved in writing. The General Partner may specify that any written ballot submitted to Limited Partners for the purpose of taking any action without a meeting shall be returned to the Partnership within the time period, which shall be not less than 20 days, specified by the General Partner. If a ballot returned to the Partnership does not vote all of the Units held by the Limited Partners, the Partnership shall be deemed to have failed to receive a ballot for the Units that were not voted. If approval of the taking of any action by the Limited Partners is solicited by any Person other than by or on behalf of the General Partner, the written approvals shall have no force and effect unless and until (a) they are deposited with the Partnership in care of the General Partner and (b) an Opinion of Counsel is delivered to the General Partner to the effect that the exercise of such right and the action proposed to be taken with respect to any particular matter (i) will not cause the Limited Partners to be deemed to
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be taking part in the management and control of the business and affairs of the Partnership so as to jeopardize the Limited Partners limited liability, and (ii) is otherwise permissible under the state statutes then governing the rights, duties and liabilities of the Partnership and the Partners. Nothing contained in this Section 13.11 shall be deemed to require the General Partner to solicit all Limited Partners in connection with a matter approved by the holders of the requisite percentage of Units acting by written consent without a meeting.
Section 13.12 Right to Vote and Related Matters .
(a) Only those Record Holders of the Outstanding Units on the Record Date set pursuant to Section 13.6 shall be entitled to notice of, and to vote at, a meeting of Limited Partners or to act with respect to matters as to which the holders of the Outstanding Units have the right to vote or to act. All references in this Agreement to votes of, or other acts that may be taken by, the Outstanding Units shall be deemed to be references to the votes or acts of the Record Holders of such Outstanding Units.
(b) With respect to Units that are held for a Persons account by another Person (such as a broker, dealer, bank, trust company or clearing corporation, or an agent of any of the foregoing), in whose name such Units are registered, such other Person shall, in exercising the voting rights in respect of such Units on any matter, and unless the arrangement between such Persons provides otherwise, vote such Units in favor of, and at the direction of, the Person who is the beneficial owner, and the Partnership shall be entitled to assume it is so acting without further inquiry. The provisions of this Section 13.12(b) (as well as all other provisions of this Agreement) are subject to the provisions of Section 4.3.
Section 13.13 Voting of Incentive Distribution Rights .
(a) For so long as a majority of the Incentive Distribution Rights are held by the General Partner and its Affiliates, the holders of the Incentive Distribution Rights shall not be entitled to vote such Incentive Distribution Rights on any Partnership matter except as may otherwise be required by law and the holders of the Incentive Distribution Rights, in their capacity as such, shall be deemed to have approved any matter approved by the General Partner.
(b) If less than a majority of the Incentive Distribution Rights are held by the General Partner and its Affiliates, the Incentive Distribution Rights will be entitled to vote on all matters submitted to a vote of Unitholders, other than amendments and other matters that the General Partner determines do not adversely affect the holders of the Incentive Distribution Rights as a whole in any material respect. On any matter in which the holders of Incentive Distribution Rights are entitled to vote, such holders will vote together with the Subordinated Units, prior to the end of the Subordination Period, or together with the Common Units, thereafter, in either case as a single class except as otherwise required by Section 13.3(c), and such Incentive Distribution Rights shall be treated in all respects as Subordinated Units or Common Units, as applicable, when sending notices of a meeting of Limited Partners to vote on any matter (unless otherwise required by law), calculating required votes, determining the presence of a quorum or for other similar purposes under this Agreement. The relative voting power of the Incentive Distribution Rights and the Subordinated Units or Common Units, as applicable, will be set in the same proportion as cumulative cash distributions, if any, in respect of the Incentive Distribution Rights for the four consecutive Quarters prior to the record date for the vote bears to the cumulative cash distributions in respect of such class of Units for such four Quarters.
(c) In connection with any equity financing, or anticipated equity financing, by the Partnership of an Expansion Capital Expenditure, the General Partner may, without the approval of the holders of the Incentive Distribution Rights, temporarily or permanently reduce the amount of Incentive Distributions that would otherwise be distributed to such holders, provided that in the judgment of the General Partner, such reduction will be in the long-term best interest of such holders.
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ARTICLE XIV
MERGER OR CONSOLIDATION
Section 14.1 Authority . The Partnership may merge or consolidate with or into one or more corporations, limited liability companies, statutory trusts or associations, real estate investment trusts, common law trusts or unincorporated businesses, including a partnership (whether general or limited (including a limited liability partnership)) or convert into any such entity, whether such entity is formed under the laws of the State of Delaware or any other state of the U.S., pursuant to a written plan of merger or consolidation ( Merger Agreement ) in accordance with this Article XIV.
Section 14.2 Procedure for Merger or Consolidation .
(a) Merger or consolidation of the Partnership pursuant to this Article XIV requires the prior consent of the General Partner, provided , however , that, to the fullest extent permitted by law, the General Partner, in declining to consent to a merger or consolidation, may act in its sole discretion.
(b) If the General Partner shall determine to consent to the merger or consolidation, the General Partner shall approve the Merger Agreement, which shall set forth:
(i) the name and jurisdiction of formation or organization of each of the business entities proposing to merge or consolidate;
(ii) the name and jurisdiction of formation or organization of the business entity that is to survive the proposed merger or consolidation (the Surviving Business Entity );
(iii) the terms and conditions of the proposed merger or consolidation;
(iv) the manner and basis of exchanging or converting the equity interests of each constituent business entity for, or into, cash, property or interests, rights, securities or obligations of the Surviving Business Entity; and (A) if any interests, securities or rights of any constituent business entity are not to be exchanged or converted solely for, or into, cash, property or interests, rights, securities or obligations of the Surviving Business Entity, then the cash, property or interests, rights, securities or obligations of any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity) which the holders of such interests, securities or rights are to receive in exchange for, or upon conversion of their interests, securities or rights, and (B) in the case of equity interests represented by certificates, upon the surrender of such certificates, which cash, property or interests, rights, securities or obligations of the Surviving Business Entity or any general or limited partnership, corporation, trust, limited liability company, unincorporated business or other entity (other than the Surviving Business Entity), or evidences thereof, are to be delivered;
(v) a statement of any changes in the constituent documents or the adoption of new constituent documents (the articles or certificate of incorporation, articles of trust, declaration of trust, certificate or agreement of limited partnership, certificate of formation or limited liability company agreement or other similar charter or governing document) of the Surviving Business Entity to be effected by such merger or consolidation;
(vi) the effective time of the merger, which may be the date of the filing of the certificate of merger pursuant to Section 14.4 or a later date specified in or determinable in accordance with the Merger Agreement ( provided , that if the effective time of the merger is to be later than the date of the filing of such certificate of merger, the effective time shall be fixed at a date or time certain and stated in the certificate of merger); and
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(vii) such other provisions with respect to the proposed merger or consolidation that the General Partner determines to be necessary or appropriate.
Section 14.3 Approval by Limited Partners .
(a) Except as provided in Section 14.3(d) and 14.3(e), the General Partner, upon its approval of the Merger Agreement shall direct that the Merger Agreement and the merger or consolidation contemplated thereby, as applicable, be submitted to a vote of Limited Partners, whether at a special meeting or by written consent, in either case in accordance with the requirements of Article XIII. A copy or a summary of the Merger Agreement, as the case may be, shall be included in or enclosed with the notice of a special meeting or the written consent.
(b) Except as provided in Sections 14.3(d) and 14.3(e), the Merger Agreement shall be approved upon receiving the affirmative vote or consent of the holders of a Unit Majority unless the Merger Agreement contains any provision that, if contained in an amendment to this Agreement, the provisions of this Agreement or the Delaware Act would require for its approval the vote or consent of a greater percentage of the Outstanding Units or of any class of Limited Partners, in which case such greater percentage vote or consent shall be required for approval of the Merger Agreement.
(c) Except as provided in Sections 14.3(d) and 14.3(e), after such approval by vote or consent of the Limited Partners, and at any time prior to the filing of the certificate of merger pursuant to Section 14.4, the merger or consolidation may be abandoned pursuant to provisions therefor, if any, set forth in the Merger Agreement.
(d) Notwithstanding anything else contained in this Article XIV or in this Agreement, the General Partner is permitted, without Limited Partner approval, to convert the Partnership or any Group Member into a new limited liability entity, to merge the Partnership or any Group Member into, or convey all of the Partnerships assets to, another limited liability entity that shall be newly formed and shall have no assets, liabilities or operations at the time of such merger or conveyance other than those it receives from the Partnership or other Group Member if (i) the General Partner has received an Opinion of Counsel that the merger or conveyance, as the case may be, would not result in the loss of the limited liability under the Delaware Act of any Limited Partner or cause the Partnership or any Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already treated as such), (ii) the sole purpose of such merger, or conveyance is to effect a mere change in the legal form of the Partnership into another limited liability entity and (iii) the governing instruments of the new entity provide the Limited Partners and the General Partner with substantially the same rights and obligations as are herein contained.
(e) Additionally, notwithstanding anything else contained in this Article XIV or in this Agreement, the General Partner is permitted, without Limited Partner approval, to merge or consolidate the Partnership with or into another entity if (A) the General Partner has received an Opinion of Counsel that the merger or consolidation, as the case may be, would not result in the loss of the limited liability under the Delaware Act of any Limited Partner or cause the Partnership or any Group Member to be treated as an association taxable as a corporation or otherwise to be taxed as an entity for U.S. federal income tax purposes (to the extent not already treated as such), (B) the merger or consolidation would not result in an amendment to this Agreement, other than any amendments that could be adopted pursuant to Section 13.1, (C) the Partnership is the Surviving Business Entity in such merger or consolidation, (D) each Partnership Interest outstanding immediately prior to the effective date of the merger or consolidation is to be an identical Partnership Interest of the Partnership after the effective date of the merger or consolidation, and (E) the number of Partnership Interests to be issued by the
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Partnership in such merger or consolidation does not exceed 20% of the Partnership Interests (other than Incentive Distribution Rights) Outstanding immediately prior to the effective date of such merger or consolidation.
(f) Pursuant to Section 17-211(g) of the Delaware Act, an agreement of merger or consolidation approved in accordance with this Article XIV may (i) effect any amendment to this Agreement or (ii) effect the adoption of a new partnership agreement for the Partnership if it is the Surviving Business Entity. Any such amendment or adoption made pursuant to this Section 14.3 shall be effective at the effective time or date of the merger or consolidation.
Section 14.4 Certificate of Merger . Upon the required approval by the General Partner and the Unitholders of a Merger Agreement, a certificate of merger shall be executed and filed with the Secretary of State of the State of Delaware in conformity with the requirements of the Delaware Act.
Section 14.5 Effect of Merger or Consolidation .
(a) At the effective time of the certificate of merger:
(i) all of the rights, privileges and powers of each of the business entities that has merged or consolidated, and all property, real, personal and mixed, and all debts due to any of those business entities and all other things and causes of action belonging to each of those business entities, shall be vested in the Surviving Business Entity and after the merger or consolidation shall be the property of the Surviving Business Entity to the extent they were of each constituent business entity;
(ii) the title to any real property vested by deed or otherwise in any of those constituent business entities shall not revert and is not in any way impaired because of the merger or consolidation;
(iii) all rights of creditors and all liens on or security interests in property of any of those constituent business entities shall be preserved unimpaired; and
(iv) all debts, liabilities and duties of those constituent business entities shall attach to the Surviving Business Entity and may be enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contracted by it.
ARTICLE XV
RIGHT TO ACQUIRE LIMITED PARTNER INTERESTS
Section 15.1 Right to Acquire Limited Partner Interests .
(a) Notwithstanding any other provision of this Agreement, if at any time the General Partner and its Affiliates hold more than 80% of the total Limited Partner Interests of any class then Outstanding, the General Partner shall then have the right, which right it may assign and transfer in whole or in part to the Partnership or any Affiliate of the General Partner, exercisable in its sole discretion, to purchase all, but not less than all, of such Limited Partner Interests of such class then Outstanding held by Persons other than the General Partner and its Affiliates, at the greater of (x) the Current Market Price as of the date three days prior to the date that the notice described in Section 15.1(b) is mailed and (y) the highest price paid by the General Partner or any of its Affiliates for any such Limited Partner Interest of such class purchased during the 90-day period preceding the date that the notice described in Section 15.1(b) is mailed.
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(b) If the General Partner, any Affiliate of the General Partner or the Partnership elects to exercise the right to purchase Limited Partner Interests granted pursuant to Section 15.1(a), the General Partner shall deliver to the Transfer Agent notice of such election to purchase (the Notice of Election to Purchase ) and shall cause the Transfer Agent to mail a copy of such Notice of Election to Purchase to the Record Holders of Limited Partner Interests of such class (as of a Record Date selected by the General Partner) at least 10, but not more than 60, days prior to the Purchase Date. Such Notice of Election to Purchase shall also be filed and distributed as may be required by the Commission or any National Securities Exchange on which such Limited Partner Interests are listed. The Notice of Election to Purchase shall specify the Purchase Date and the price (determined in accordance with Section 15.1(a)) at which Limited Partner Interests will be purchased and state that the General Partner, its Affiliate or the Partnership, as the case may be, elects to purchase such Limited Partner Interests, upon surrender of Certificates representing such Limited Partner Interests in the case of Limited Partner Interests evidenced by Certificates, in exchange for payment, at such office or offices of the Transfer Agent as the Transfer Agent may specify, or as may be required by any National Securities Exchange on which such Limited Partner Interests are listed or admitted to trading. Any such Notice of Election to Purchase mailed to a Record Holder of Limited Partner Interests at his address as reflected in the records of the Transfer Agent shall be conclusively presumed to have been given regardless of whether the owner receives such notice. On or prior to the Purchase Date, the General Partner, its Affiliate or the Partnership, as the case may be, shall deposit with the Transfer Agent cash in an amount sufficient to pay the aggregate purchase price of all of such Limited Partner Interests to be purchased in accordance with this Section 15.1. If the Notice of Election to Purchase shall have been duly given as aforesaid at least 10 days prior to the Purchase Date, and if on or prior to the Purchase Date the deposit described in the preceding sentence has been made for the benefit of the holders of Limited Partner Interests subject to purchase as provided herein, then from and after the Purchase Date, notwithstanding that any Certificate shall not have been surrendered for purchase, all rights of the holders of such Limited Partner Interests shall thereupon cease, except the right to receive the purchase price (determined in accordance with Section 15.1(a)) for Limited Partner Interests therefor, without interest, upon surrender to the Transfer Agent of the Certificates representing such Limited Partner Interests in the case of Limited Partner Interests evidenced by Certificates, and such Limited Partner Interests shall thereupon be deemed to be transferred to the General Partner, its Affiliate or the Partnership, as the case may be, on the record books of the Transfer Agent and the Partnership, and the General Partner or any Affiliate of the General Partner, or the Partnership, as the case may be, shall be deemed to be the owner of all such Limited Partner Interests from and after the Purchase Date and shall have all rights as the owner of such Limited Partner Interests.
(c) In the case of Limited Partner Interests evidenced by Certificates, at any time from and after the Purchase Date, a holder of an Outstanding Limited Partner Interest subject to purchase as provided in this Section 15.1 may surrender his Certificate evidencing such Limited Partner Interest to the Transfer Agent in exchange for payment of the amount described in Section 15.1(a), therefor, without interest thereon.
ARTICLE XVI
GENERAL PROVISIONS
Section 16.1 Addresses and Notices; Written Communications .
(a) Any notice, demand, request, report or proxy materials required or permitted to be given or made to a Partner under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class U.S. mail or by other means of written communication to the Partner at the address described below. Any notice, payment or report to be given or made to a Partner hereunder shall be deemed conclusively to have been given or made, and the obligation to give such notice or report or to make such payment shall be deemed conclusively to have been fully satisfied, upon sending of such notice, payment or
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report to the Record Holder of such Partnership Interests at his address as shown on the records of the Transfer Agent or as otherwise shown on the records of the Partnership, regardless of any claim of any Person who may have an interest in such Partnership Interests by reason of any assignment or otherwise. Notwithstanding the foregoing, if (i) a Partner shall consent to receiving notices, demands, requests, reports or proxy materials via electronic mail or by the Internet or (ii) the rules of the Commission shall permit any report or proxy materials to be delivered electronically or made available via the Internet, any such notice, demand, request, report or proxy materials shall be deemed given or made when delivered or made available via such mode of delivery. An affidavit or certificate of making of any notice, payment or report in accordance with the provisions of this Section 16.1 executed by the General Partner, the Transfer Agent or the mailing organization shall be prima facie evidence of the giving or making of such notice, payment or report. If any notice, payment or report given or made in accordance with the provisions of this Section 16.1 is returned marked to indicate that such notice, payment or report was unable to be delivered, such notice, payment or report and, in the case of notices, payments or reports returned by the U.S. Postal Service (or other physical mail delivery mail service outside the U.S.), any subsequent notices, payments and reports shall be deemed to have been duly given or made without further mailing (until such time as such Record Holder or another Person notifies the Transfer Agent or the Partnership of a change in his address) or other delivery if they are available for the Partner at the principal office of the Partnership for a period of one year from the date of the giving or making of such notice, payment or report to the other Partners. Any notice to the Partnership shall be deemed given if received by the General Partner at the principal office of the Partnership designated pursuant to Section 2.3. The General Partner may rely and shall be protected in relying on any notice or other document from a Partner or other Person if believed by it to be genuine.
(b) The terms in writing, written communications, written notice and words of similar import shall be deemed satisfied under this Agreement by use of e-mail and other forms of electronic communication.
Section 16.2 Further Action . The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
Section 16.3 Binding Effect . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
Section 16.4 Integration . This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto.
Section 16.5 Creditors . None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Partnership.
Section 16.6 Waiver . No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach of any other covenant, duty, agreement or condition.
Section 16.7 Third-Party Beneficiaries . Each Partner agrees that (a) any Indemnitee shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Indemnitee and (b) any Unrestricted Person shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Unrestricted Person.
Section 16.8 Counterparts . This Agreement may be executed in counterparts, all of which together shall constitute an agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories
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to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto or, in the case of a Person acquiring a Limited Partner Interest, pursuant to Section 10.1(a) without execution hereof.
Section 16.9 Applicable Law; Forum, Venue and Jurisdiction; Waiver of Trial by Jury; Attorney Fees .
(a) This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law.
(b) Each of the Partners and each Person holding any beneficial interest in the Partnership (whether through a broker, dealer, bank, trust company or clearing corporation or an agent of any of the foregoing or otherwise):
(i) irrevocably agrees that any claims, suits, actions or proceedings (A) arising out of or relating in any way to this Agreement (including any claims, suits or actions to interpret, apply or enforce the provisions of this Agreement or the duties, obligations or liabilities among Partners or of Partners to the Partnership, or the rights or powers of, or restrictions on, the Partners or the Partnership), (B) brought in a derivative manner on behalf of the Partnership, (C) asserting a claim of breach of a fiduciary or other duty owed by any director, officer, or other employee of the Partnership or the General Partner, or owed by the General Partner, to the Partnership or the Partners, (D) asserting a claim arising pursuant to any provision of the Delaware Act or (E) asserting a claim governed by the internal affairs doctrine shall be exclusively brought in the Court of Chancery of the State of Delaware (or, if such court does not have subject matter jurisdiction thereof, any other court located in the State of Delaware with subject matter jurisdiction), in each case regardless of whether such claims, suits, actions or proceedings sound in contract, tort, fraud or otherwise, are based on common law, statutory, equitable, legal or other grounds, or are derivative or direct claims;
(ii) irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if such court does not have subject matter jurisdiction thereof, any other court located in the State of Delaware with subject matter jurisdiction) in connection with any such claim, suit, action or proceeding;
(iii) agrees not to, and waives any right to, assert in any such claim, suit, action or proceeding that (A) it is not personally subject to the jurisdiction of the Court of Chancery of the State of Delaware or of any other court to which proceedings in the Court of Chancery of the State of Delaware may be appealed, (B) such claim, suit, action or proceeding is brought in an inconvenient forum, or (C) the venue of such claim, suit, action or proceeding is improper;
(iv) expressly waives any requirement for the posting of a bond by a party bringing such claim, suit, action or proceeding;
(v) consents to process being served in any such claim, suit, action or proceeding by mailing, certified mail, return receipt requested, a copy thereof to such party at the address in effect for notices hereunder, and agrees that such services shall constitute good and sufficient service of process and notice thereof; provided , nothing in this clause (v) shall affect or limit any right to serve process in any other manner permitted by law; and
(vi) IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY SUCH CLAIM, SUIT, ACTION OR PROCEEDING; and
(vii) agrees that if such Partner or Person does not obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought in any such claim, suit, action or
W ESTLAKE C HEMICAL P ARTNERS LP
F IRST A MENDED AND R ESTATED A GREEMENT OF L IMITED P ARTNERSHIP
A-78
proceeding, then such Partner or Person shall be obligated to reimburse the Partnership and its Affiliates for all fees, costs and expenses of every kind and description, including but not limited to all reasonable attorneys fees and other litigation expenses, that the parties may incur in connection with such claim, suit, action or proceeding.
Section 16.10 Invalidity of Provisions . If any provision or part of a provision of this Agreement is or becomes for any reason, invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and/or parts thereof contained herein shall not be affected thereby and this Agreement shall, to the fullest extent permitted by law, be reformed and construed as if such invalid, illegal or unenforceable provision, or part of a provision, had never been contained herein, and such provision or part reformed so that it would be valid, legal and enforceable to the maximum extent possible.
Section 16.11 Consent of Partners . Each Partner hereby expressly consents and agrees that, whenever in this Agreement it is specified that an action may be taken upon the affirmative vote or consent of less than all of the Partners, such action may be so taken upon the concurrence of less than all of the Partners and each Partner shall be bound by the results of such action.
Section 16.12 Facsimile Signatures . The use of facsimile signatures affixed in the name and on behalf of the transfer agent and registrar of the Partnership on Certificates representing Units is expressly permitted by this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
W ESTLAKE C HEMICAL P ARTNERS LP
F IRST A MENDED AND R ESTATED A GREEMENT OF L IMITED P ARTNERSHIP
A-79
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
GENERAL PARTNER: | ||
WESTLAKE CHEMICAL PARTNERS GP LLC | ||
By: |
|
|
Name: | ||
Title: |
ORGANIZATIONAL LIMITED PARTNER: | ||
WESTLAKE INTERNATIONAL SERVICES CORPORATION | ||
By: |
|
|
Name: | ||
Title: |
S IGNATURE P AGE
W ESTLAKE C HEMICAL P ARTNERS LP
F IRST A MENDED AND R ESTATED A GREEMENT OF L IMITED P ARTNERSHIP
GLOSSARY OF TERMS
Calvert City Olefins : Our one ethylene production facility at Westlakes Calvert City, Kentucky complex.
Delaware Act : Delaware Revised Uniform Limited Partnership Act.
EBITDA : A non-GAAP financial measure defined as net income (loss) before net interest expense, income tax expense and depreciation and amortization expense.
EDC : Ethylene dichloride, a liquid used as an intermediate to make PVC.
Ethylene : A gas that alone has no consumer applications, but can be used as a feedstock to manufacture PE, ethylene oxide, ethylene glycol, PVC and styrene.
GAAP : Generally accepted accounting principles in the United States.
Geismar Facility : Westlakes vinyl facility located in Geismar, Louisiana along the Mississippi River.
General partner : Westlake Chemical Partners GP LLC.
Greenfield facility : A new production facility.
HDPE : High-density PE, which is a type of polyethylene and is a rigid plastic. It is used to manufacture products such as grocery, merchandise and trash bags, plastic containers, plastic closures and pipes.
Lake Charles Olefins : Our two ethylene production facilities at Westlakes Lake Charles, Louisiana complex.
LDPE : Low-density PE, which was a type of polyethylene and a flexible plastic. It is used in end products such as bread bags, dry cleaning bags, food wraps, milk carton coatings and food packaging.
LLDPE : Linear low-density PE, which is the type of PE and used for higher film strength applications such as stretch film and heavy duty sacks.
Naphtha : A feedstock derived from crude oil used to produce olefins, gasoline and aromatics, such as benzene.
NGLs : Natural gas liquids, are liquid hydrocarbons that have been extracted from natural gas (such as ethane, propane and butane).
Olefins : A family of reactive hydrocarbons, such as ethylene and propylene gases, that serve as a feedstock for the petrochemical industry used in a wide variety of reactions such as polymerization.
OpCo : Westlake Chemical OpCo LP.
PE : Polyethylene, which is the single largest ethylene derivative, accounting for approximately 60% of global ethylene consumption. PE is the most widely consumed polymer globally and is used in the manufacture of a wide variety of film, coatings and molded product applications primarily used in packaging, carpet fibers, automotive parts and many other products.
PVC : Polyvinylchloride, the third most widely used plastic globally, is an attractive alternative to traditional materials such as glass, metal, wood, concrete and other plastic materials because of its versatility, durability and cost-competitiveness. Because of this versatility, PVC can be manufactured into a flexible or rigid form.
Styrene : A liquid hydrocarbon, which is produced from ethylene and benzene used to make polymers such as polystyrene.
VCM : Vinyl chloride monomer, which is a liquid substance primarily used to make PVC.
Westlake : Westlake Chemical Corporation and its subsidiaries, other than our general partner, us, OpCo and OpCos general partner.
B-1
Westlake Chemical Partners LP
Common Units
Representing Limited Partner Interests
Prospectus
, 2014
Barclays
UBS Investment Bank
BofA Merrill Lynch
Deutsche Bank Securities
Morgan Stanley
Goldman, Sachs & Co.
J.P. Morgan
Wells Fargo Securities
Through and including , 2014 (25 days after the date of this prospectus), all dealers that buy, sell or trade our common units, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 13. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
Set forth below are the expenses (other than underwriting discounts) expected to be incurred in connection with the issuance and distribution of the securities registered hereby. With the exception of the Securities and Exchange Commission registration fee, the FINRA filing fee and the New York Stock Exchange listing fee the amounts set forth below are estimates.
SEC registration fee |
$ | 34,993 | ||
FINRA filing fee |
41,253 | |||
Printing and engraving expenses |
500,000 | |||
Fees and expenses of legal counsel |
1,100,000 | |||
Accounting fees and expenses |
1,444,000 | |||
Transfer agent and registrar fees |
5,000 | |||
New York Stock Exchange listing fee |
25,000 | |||
Miscellaneous |
100,000 | |||
|
|
|||
Total |
$ | 3,250,246 | ||
|
|
ITEM 14. | INDEMNIFICATION OF OFFICERS AND MEMBERS OF OUR BOARD OF DIRECTORS. |
Subject to any terms, conditions or restrictions set forth in the partnership agreement, Section 17-108 of the Delaware Revised Uniform Limited Partnership Act empowers a Delaware limited partnership to indemnify and hold harmless any partner or other persons from and against all claims and demands whatsoever. The section of the prospectus entitled The Partnership AgreementIndemnification 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.
Our general partner will purchase insurance covering its officers and directors against liabilities asserted and expenses incurred in connection with their activities as officers and directors of the general partner or any of its direct or indirect subsidiaries.
The underwriting agreement to be entered into in connection with the sale of the securities offered pursuant to this registration statement, the form of which will be filed as an exhibit to this registration statement, provides for indemnification of Westlake Chemical Corporation and our general partner, their officers and directors, and any person who controls Westlake Chemical Corporation and our general partner, including indemnification for liabilities under the Securities Act.
ITEM 15. | RECENT SALES OF UNREGISTERED SECURITIES. |
On March 14, 2014, in connection with the formation of Westlake Chemical Partners LP, we issued (i) the general partner interest in us to Westlake Chemical Partners GP LLC and (ii) the 100.0% limited partner interest in us to Westlake International Services Corporation, a wholly owned subsidiary of Westlake Chemical Corporation, for $1,000.00. The issuance was exempt from registration under Section 4(a)(2) of the Securities Act. There have been no other sales of unregistered securities within the past three years.
ITEM 16. | EXHIBITS. |
See the Index to Exhibits on the page immediately preceding the exhibits for a list of exhibits filed as part of this registration statement on Form S-1, which Index to Exhibits is incorporated herein by reference.
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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.
The undersigned registrant hereby undertakes that, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, 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:
(1) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(2) 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;
(3) 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
(4) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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.
The undersigned registrant undertakes to send to each common unitholder, at least on an annual basis, a detailed statement of any transactions with the General Partner or its affiliates, and of fees, commissions, compensation and other benefits paid, or accrued to the General Partner or its affiliates for the fiscal year completed, showing the amount paid or accrued to each recipient and the services performed.
The undersigned 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-2
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 Houston, State of Texas, on July 14, 2014.
Westlake Chemical Partners LP | ||
By: |
Westlake Chemical Partners GP LLC, its general partner |
By: |
/s/ Albert Chao |
|
Name: |
Albert Chao | |
Title: |
President, Chief Executive Officer and Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and the dates indicated.
Name |
Title |
Date |
||
/s/ Albert Chao
|
President, Chief Executive Officer and Director (Principal Executive Officer) |
July 14, 2014 | ||
Albert Chao | ||||
*
|
Senior Vice President, Chief Financial Officer, Treasurer and Director (Principal Financial Officer) |
July 14, 2014 | ||
M. Steven Bender
|
||||
*
|
Vice President and Chief Accounting Officer (Principal Accounting Officer) | July 14, 2014 | ||
George Mangieri | ||||
*
|
Vice President, General Counsel, Secretary and Director | July 14, 2014 | ||
L. Benjamin Ederington |
*By: |
/s/ Albert Chao
|
|
Albert Chao Attorney-in-fact |
II-3
INDEX TO EXHIBITS
Exhibit
|
Description |
|||
1.1* | | Form of Underwriting Agreement | ||
2.1*+ | | Form of Contribution Agreement among WPT LLC and Westlake Chemical Partners LP | ||
2.2*+ | | Form of Contribution Agreement by and among Westlake Vinyls, Inc., Westlake Petrochemicals LLC, WPT LLC, Westlake Chemical Corporation, Westlake Ethylene Pipeline Corporation, Westlake Longview Corporation, Westlake Chemical OpCo LP and Westlake Chemical OpCo GP LLC | ||
3.1*** | | Certificate of Limited Partnership of Westlake Chemical Partners LP | ||
3.2* | | Form of Amended and Restated Limited Partnership Agreement of Westlake Chemical Partners LP (included as Appendix A in the prospectus included in this Registration Statement) | ||
4.1 | | Indenture dated as of January 1, 2006 by and among Westlake, the potential subsidiary guarantors listed therein and JPMorgan Chase Bank, National Association, as trustee (incorporated by reference to Westlakes Current Report on Form 8-K, filed on January 13, 2006, File No. 1-32260) | ||
4.2 | | First Supplemental Indenture dated as of January 13, 2006 by and among Westlake, the subsidiary guarantors party thereto and JPMorgan Chase Bank, National Association, as trustee (incorporated by reference to Westlakes Current Report on Form 8-K, filed on January 13, 2006, File No. 1-32260) | ||
4.3 | | Second Supplemental Indenture, dated as of November 1, 2007, among Westlake, the Subsidiary Guarantors (as defined therein) and The Bank of New York Trust Company, N.A., as trustee (incorporated by reference to Westlakes Current Report on Form 8-K, filed on December 18, 2007, File No. 1-32260) | ||
4.4 | | Third Supplemental Indenture, dated as of July 2, 2010, among Westlake, the Subsidiary Guarantors (as defined therein) and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Westlakes Current Report on Form 8-K, filed on July 8, 2010, File No. 1-32260) | ||
4.5 | | Fourth Supplemental Indenture, dated as of December 2, 2010, among Westlake, the Subsidiary Guarantors (as defined therein) and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Westlakes Current Report on Form 8-K, filed on December 8, 2010, File No. 1-32260) | ||
4.6 | | Fifth Supplemental Indenture, dated as of December 2, 2010, among Westlake, the Subsidiary Guarantors (as defined therein) and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Westlakes Current Report on Form 8-K, filed on December 8, 2010, File No. 1-32260) | ||
4.7 | | Supplemental Indenture, dated as of December 31, 2007, among Westlake, WPT LLC, Westlake Polymers LLC, Westlake Petrochemicals LLC, Westlake Styrene LLC, the other subsidiary guarantors party thereto and The Bank of New York Trust Company, N.A. related to the 6 5/8% senior notes (incorporated by reference to Exhibit 4.6 to Westlakes Annual Report on Form 10-K for the year ended December 31, 2007, filed on February 20, 2008, File No. 1-32260) | ||
4.8 | | Supplemental Indenture, dated as of December 31, 2007, among Westlake, WPT LLC, Westlake Polymers LLC, Westlake Petrochemicals LLC, Westlake Styrene LLC, the other subsidiary guarantors party thereto and The Bank of New York Trust Company, N.A. related to the 6 ¾% senior notes (incorporated by reference to Exhibit 4.7 to Westlakes Annual Report on Form 10-K for the year ended December 31, 2007, filed on February 20, 2008, File No. 1-32260) |
II-4
Exhibit
|
Description |
|||
4.9 | | Sixth Supplemental Indenture, dated as of July 17, 2012, among Westlake, the Subsidiary Guarantors (as defined therein) and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.2 to Westlakes Current Report on Form 8-K, filed with the Securities and Exchange Commission on July 16, 2012, File No. 1-32260) | ||
4.10 | | Seventh Supplemental Indenture, dated as of February 12, 2013, among Westlake, the Subsidiary Guarantors (as defined therein) and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.16 to Westlakes Annual Report on Form 10-K for the year ended December 31, 2012, filed on February 22, 2013, File No. 1-32260) | ||
4.11 | | Supplemental Indenture, dated as of May 1, 2013, among North American Specialty Products LLC, a Delaware limited liability company, Westlake, the other Subsidiary Guarantors (as defined therein) and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.2 to Westlakes Quarterly Report on Form 10-K, filed on July 31, 2013, File No. 1-32260) | ||
4.12 | | Supplemental Indenture, dated as of June 1, 2013, among Westlake Pipeline Investments LLC, a Delaware limited liability company, Westlake, the other Subsidiary Guarantors (as defined therein) and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.3 to Westlakes Quarterly Report on Form 10-K, filed on July 31, 2013, File No. 1-32260) | ||
4.13 | | Supplemental Indenture, dated as of June 1, 2013, among Westlake NG IV Corporation, a Delaware corporation, and Westlake NG V Corporation, a Delaware corporation, Westlake, the other Subsidiary Guarantors (as defined therein) and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.4 to Westlakes Quarterly Report on Form 10-K, filed on July 31, 2013, File No. 1-32260) | ||
4.14* | | Form of Registration Rights Agreement | ||
5.1* | | Opinion of Vinson & Elkins L.L.P. as to the legality of the securities being registered | ||
8.1* | | Opinion of Vinson & Elkins L.L.P. relating to tax matters | ||
10.1*** | | Form of Omnibus Agreement among Westlake Management Services, Inc., Westlake Vinyls Corporation, Westlake Chemical Partners GP LLC, Westlake Chemical Partners LP, WPT LLC, Westlake Petrochemicals LLC, Westlake Vinyls, Inc., Westlake Longview Corporation, Westlake Chemical OpCo GP LLC and Westlake Chemical OpCo LP | ||
10.2*** | | Form of Ethylene Sales Agreement between Westlake Chemical OpCo LP, WPT LLC, Westlake Vinyls, Inc. and Westlake Petrochemicals LLC | ||
10.3* | | Form of Feedstock Supply Agreement between Westlake Petrochemicals LLC and Westlake Chemical OpCo LP | ||
10.4* | | Form of Services and Secondment Agreement by and between Westlake Chemical OpCo LP and Westlake Management Services, Inc., Westlake Vinyls, Inc., WPT LLC and Westlake Petrochemicals LLC | ||
10.5* | | Form of Site Lease Agreement between Westlake Vinyls, Inc. and Westlake Chemical OpCo LP | ||
10.6* | | Form of Site Lease Agreement between Westlake Petrochemical LLC and Westlake Chemical OpCo LP | ||
10.7*** | | Form of Amended and Restated Limited Partnership Agreement of Westlake Chemical OpCo LP | ||
10.8*** | | Unsecured Promissory Note between WPT LLC and Westlake Development Corporation |
II-5
Exhibit
|
Description |
|||
10.9 | | Unsecured Promissory Note between Westlake Vinyls, Inc. and Westlake Development Corporation | ||
10.10 | | Unsecured Promissory Note between Westlake Petrochemicals LLC and Westlake Development Corporation | ||
10.11*** | | Form of Intercompany Revolving Credit Agreement between Westlake Chemical OpCo LP and Westlake Development Corporation | ||
10.12* | | Form of Westlake Chemical Partners LP Long-Term Incentive Plan | ||
10.13 | | Second Amended and Restated Credit Agreement dated as of September 16, 2011 by and among the financial institutions party thereto, as lenders, Bank of America, N.A., as agent, and Westlake and certain of its domestic subsidiaries, as borrowers, relating to a $400.0 million senior secured revolving credit facility (incorporated by reference to Westlakes Current Report on Form 8-K/A, filed on June 27, 2014, File No. 1-32260) | ||
10.14* | | Form of Phantom Unit Agreement for Non-Employee Directors | ||
10.15* | | Form of Intercompany IP Transfer Agreement by and between Westlake Management Services, Inc. and Westlake Chemical OpCo LP | ||
21.1*** | | List of Subsidiaries of Westlake Chemical Partners LP | ||
23.1*** | | Consent of PricewaterhouseCoopers LLP | ||
23.2*** | | Consent of Wood Mackenzie Limited | ||
23.3* | | Consent of Vinson & Elkins L.L.P. (contained in Exhibit 5.1) | ||
23.4* | | Consent of Vinson & Elkins L.L.P. (contained in Exhibit 8.1) | ||
24.1*** | | Powers of Attorney (contained on signature page) |
* | Provided herewith. |
** | To be provided by amendment. |
*** | Previously provided. |
| The Unsecured Promissory Notes between Westlake Development Corporation and each of Westlake Vinyls, Inc. and Westlake Petrochemicals LLC are not filed because they are identical to Exhibit 10.10 except for the identity of the borrower. |
| Confidential status has been requested for certain portions thereof pursuant to a Confidential Treatment Request filed on July 9, 2014. Such provisions have been filed separately with the Securities and Exchange Commission. |
+ | The schedules to this agreement have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K. We will furnish copies of such schedules to the Securities and Exchange Commission upon request. |
II-6
Exhibit 1.1
FORM OF
WESTLAKE CHEMICAL PARTNERS LP
[] Common Units representing Limited Partner Interests
UNDERWRITING AGREEMENT
[], 2014
B ARCLAYS C APITAL I NC .
UBS S ECURITIES LLC
As Representatives of the several
Underwriters named in Schedule I attached hereto,
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Westlake Chemical Partners LP, a Delaware limited partnership (the Partnership ), proposes to sell [] common units (the Firm Units ), representing limited partner interests in the Partnership (the Common Units ) to the underwriters (the Underwriters ) named in Schedule I attached to this agreement (this Agreement ). In addition, the Partnership proposes to grant to the Underwriters an option to purchase up to [] additional Common Units on the terms set forth in Section 2 (the Option Units ). The Firm Units and the Option Units, if purchased, are hereinafter collectively called the Units . This Agreement is to confirm the agreement concerning the purchase of the Units from the Partnership by the Underwriters.
It is understood and agreed to by all parties hereto that the Partnership was formed indirectly by Westlake Chemical Corporation, a Delaware corporation ( WLK ), to operate, acquire and develop ethylene production facilities and related assets. It is further understood and agreed to by all parties that as of the date hereof, after giving effect to the transactions contemplated by the Contribution Agreements:
(1) Westlake International Services Corporation, a Delaware Corporation and indirect, wholly owned subsidiary of WLK (the WISC ) directly owns 100% of the limited liability company interests in Westlake Chemical Partners GP LLC, a Delaware limited liability company and the sole general partner of the Partnership (the General Partner ).
(2) WISC owns 100% of the limited partner interests in the Partnership and the General Partner owns 100% of the non-economic general partner interest in the Partnership.
(3) WPT LLC, a Delaware limited liability company and indirect, wholly owned subsidiary of WLK ( WPT LLC ), owns 100% of the limited liability company interests in Westlake Chemical OpCo GP LLC ( OpCo GP ).
(4) WPT LLC owns 100% of the limited partner interests in Westlake Chemical OpCo LP, a Delaware limited partnership ( OpCo ), and OpCo GP owns 100% of the non-economic general partner interest in OpCo.
It is further understood and agreed to by all parties hereto that the following transactions (the Transactions ) will occur on or before the Initial Delivery Date (as defined in Section 4):
(1) (i) WPT LLC will convey an ethylene production facility located in Lake Charles, Louisiana, ( Petro 2 ), including all related personalty and a 50-year lease (the Petro 2 Lease ) of the underlying real property, (ii) Westlake Petrochemicals LLC, a Delaware limited liability company ( Petrochem ), will convey a second ethylene production facility located in Lake Charles Louisiana ( Petro 1 ), including all related personalty and a 50-year lease (the Petro 1 Lease ) of the underlying real property, and (iii) Westlake Vinyls, Inc., a Delaware corporation ( Vinyls ), will convey certain personalty and a 50-year lease (the Calvert City Lease and together with the Petro 2 Lease and the Petro 1 Lease, the Leases ) of the real property underlying the Calvert City, Kentucky ethylene production facility, in each case to OpCo in exchange for an equity interest in OpCo.
(2) Westlake Ethylene Pipeline Corporation, a Delaware corporation ( Pipeline ), will merge with and into OpCo and Westlake Longview Corporation, a Delaware corporation and the owner of Pipeline ( Longview ), will receive limited partner interests in OpCo.
(3) WPT LLC will contribute a [ l ]% interest in OpCo and all of its interest in OpCo GP to the Partnership in exchange for [ l ] common units, [ l ] subordinated units, and the Partnerships incentive distribution rights, each representing limited partner interests in the Partnership.
(4) WPT LLC, Petrochem, Westlake Polymers LLC, a Delaware limited liability company ( Polymers ), Longview, Vinyls, and OpCo will enter into a contribution agreement substantially in the form filed as an exhibit to the Registration Statement (the Asset Contribution Agreement ).
(5) Vinyls, Petrochem, WPT, Pipeline, Longview, OpCo and OpCo GP will enter into a contribution agreement substantially in the form filed as an exhibit to the Registration Statement (the OpCo Contribution Agreement and together with the Asset Contribution Agreement, the Contribution Agreements ).
(6) Westlake Management Services, Inc., a Delaware corporation ( Services ), Vinyls, the General Partner, the Partnership, WPT LLC, Petrochem, Vinyls, Longview, OpCo GP and OpCo will enter into an Omnibus Agreement substantially in the form filed as an exhibit to the Registration Statement (the Omnibus Agreement ) that addresses certain administrative and indemnification matters.
2
(7) OpCo, WPT, Vinyls, and Longview will enter into an Ethylene Sales Agreement substantially in the form filed as an exhibit to the Registration Statement (the Ethylene Sales Agreement ) that will require WLK to purchase a minimum volume of ethylene from OpCo each year.
(8) Petrochem and OpCo will enter into a Feedstock Supply Agreement substantially in the form filed as an exhibit to the Registration Statement (the Feedstock Supply Agreement ) pursuant to which Petrochem will agree to sell to OpCo sufficient feedstock to produce the ethylene to be sold under the Ethylene Sales Agreement.
(9) OpCo, Services, Vinyls, WPT, and Petrochem will enter into a Services Agreement substantially in the form filed as an exhibit to the Registration Statement (the Services Agreement ).
(10) WISC will amend and restate the General Partners limited liability company agreement (such agreement, together with any amendments to and/or restatements thereof on or prior to an applicable Delivery Date (as the case may be), the GP LLC Agreement )
(11) The General partner and WISC will amend and restate the Partnerships limited partnership agreement, substantially in the form filed as an exhibit to the Registration Statement (such agreement, together with any amendments to and/or restatements thereof on or prior to an applicable Delivery Date (as the case may be), the Partnership Agreement ).
(12) OpCo GP and WPT LLC will amend and restate OpCos limited partnership agreement, substantially in the form filed as an exhibit to the Registration Statement (such agreement, together with any amendments to and/or restatements thereof on or prior to an applicable Delivery Date (as the case may be), the OpCo Partnership Agreement ).
(13) The Partnership will amend and restate OpCo GPs limited liability company agreement (such agreement, together with any amendments to and/or restatements thereof on or prior to an applicable Delivery Date (as the case may be), the OpCo GP LLC Agreement ).
(14) The Partnership and WPT LLC will enter into a Registration Rights Agreement, substantially in the form filed as an exhibit to the Registration Statement (the Registration Rights Agreement ).
(15) OpCo will assume $[] of indebtedness pursuant to unsecured promissory note agreements (the Promissory Notes ) with [].
(16) OpCo will enter into a credit facility (the Credit Facility and together with the Promissory Notes, the Debt Facilities ) with [].
(17) The public offering of the Firm Units contemplated hereby (the Offering ) will be consummated.
(18) The Partnership will (i) pay transaction expenses for the Offering, as described under Use of Proceeds in the Pricing Disclosure Package and the Prospectus (as such terms are defined in Section 1(a) ), (ii) redeem WISCs interest in the Partnership in exchange for a distribution of the amount contributed at formation and (iii) contribute the balance of the proceeds to OpCo in exchange for an additional []% interest in OpCo.
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(19) If the Underwriters exercise their option to purchase any Option Units pursuant to Section 2 of this Agreement, then the Partnership will contribute the net proceeds received on each Option Units Delivery Date (as defined in Section 4) to OpCo in exchange for additional interests in OpCo.
The Partnership, the General Partner, OpCo and OpCo GP are referred to collectively herein as the Partnership Parties . The Partnership Parties, WLK, WISC, WPT LLC, Petrochem, Vinyls, and Longview are referred to collectively herein as the Westlake Parties and together with Polymers and Services the Westlake Entities . The Partnership Parties and WPT LLC are referred to collectively herein as the WLK Parties .
This Agreement, the Leases, the Contribution Agreements, the Omnibus Agreement, the Debt Facilities, the Ethylene Sales Agreement, the Feedstock Supply Agreement, the Services Agreement and the Registration Rights Agreement are referred to collectively herein as the Transaction Agreements . The Partnership Agreement, the GP LLC Agreement, the OpCo Partnership Agreement and the OpCo GP LLC Agreement are referred to collectively herein as the Organizational Agreements . The Transaction Agreements and the Organizational Agreements are referred to collectively herein as the Operative Agreements and each, individually, as an Operative Agreement .
1. Representations, Warranties and Agreements of the WLK Parties . The WLK Parties, jointly and severally, represent, warrant and agree that:
(a) A registration statement on Form S-1 (File No. 333-195551) relating to the Units has (i) been prepared by the Partnership in conformity with the requirements of the Securities Act of 1933, as amended (the Securities Act ), and the rules and regulations of the Securities and Exchange Commission (the Commission ) thereunder; (ii) been filed with the Commission under the Securities Act; and (iii) become effective under the Securities Act. Copies of such registration statement and any amendment thereto have been delivered by the Partnership to you as the representatives (the Representatives ) of the Underwriters. As used in this Agreement:
(i) Applicable Time means [] [a.m.][p.m.] (New York City time) on [], 2014;
(ii) Effective Date means the date and time as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission;
(iii) Issuer Free Writing Prospectus means each issuer free writing prospectus (as defined in Rule 433 under the Securities Act) prepared by or on behalf of the Partnership or used or referred to by the Partnership in connection with the offering of the Units;
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(iv) Preliminary Prospectus means any preliminary prospectus relating to the Units included in such registration statement or filed with the Commission pursuant to Rule 424(b) under the Securities Act;
(v) Pricing Disclosure Package means, as of the Applicable Time, the most recent Preliminary Prospectus, together with the information included in Schedule III hereto and each Issuer Free Writing Prospectus filed or used by the Partnership on or before the Applicable Time, other than a road show that is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433 under the Securities Act;
(vi) Prospectus means the final prospectus relating to the Units, as filed with the Commission pursuant to Rule 424(b) under the Securities Act; and
(vii) Registration Statement means such registration statement, as amended as of the Effective Date, including any Preliminary Prospectus or the Prospectus, all exhibits to such registration statement and including the information deemed by virtue of Rule 430A under the Securities Act to be part of such registration statement as of the Effective Date.
Any reference to the most recent Preliminary Prospectus shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) under the Securities Act prior to or on the date hereof. Any reference herein to the term Registration Statement shall be deemed to include any abbreviated registration statement to register additional Common Units under Rule 462(b) under the Securities Act (the Rule 462(b) Registration Statement ). The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose has been instituted or threatened by the Commission.
(b) The Partnership was not at the time of the initial filing of the Registration Statement and at the earliest time thereafter that the Partnership or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Units, is not on the date hereof and will not be on the applicable Delivery Date, an ineligible issuer (as defined in Rule 405 under the Securities Act).
(c) The Registration Statement conformed and will conform in all material respects on the Effective Date and on the applicable Delivery Date, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the requirements of the Securities Act and the rules and regulations thereunder. The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) under the Securities Act and on the applicable Delivery Date to the requirements of the Securities Act and the rules and regulations thereunder.
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(d) The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with written information furnished to the Partnership through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(e) .
(e) The Prospectus will not, as of its date or as of the applicable Delivery Date, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Prospectus in reliance upon and in conformity with written information furnished to the Partnership through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(e) .
(f) The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with written information furnished to the Partnership through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(e) .
(g) Each Issuer Free Writing Prospectus listed in Schedule IV hereto, when taken together with the Pricing Disclosure Package, did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made as to information contained in or omitted from such Issuer Free Writing Prospectus listed in Schedule IV hereto in reliance upon and in conformity with written information furnished to the Partnership through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information is specified in Section 8(e) . The information included in each Issuer Free Writing Prospectus listed in Schedule III hereto does not conflict with the information contained in the Registration Statement or the most recent Preliminary Prospectus or to be contained in the Prospectus.
(h) Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act and the rules and regulations thereunder on the date of first use, and the Partnership has complied with all prospectus delivery and any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Securities Act and the rules and regulations thereunder. The Partnership has not made any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives. The Partnership has retained in accordance with the Securities Act and the rules and regulations thereunder all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the Securities Act and the rules and regulations thereunder. The Partnership has taken all actions necessary so that any road show (as defined in Rule 433 under the Securities Act) in connection with the offering of the Units will not be required to be filed pursuant to the Securities Act and the rules and regulations thereunder.
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(i) Each of the statements made by the Partnership in the Registration Statement and the Pricing Disclosure Package and to be made in the Prospectus (and any supplements thereto) within the coverage of Rule 175(b) under the Securities Act, including (but not limited to) any statements with respect to projected results of operations, estimated cash available for distribution and future cash distributions of the Partnership, and any statements made in support thereof or related thereto under the heading Cash Distribution Policy and Restrictions on Distributions or the anticipated ratio of taxable income to distributions, was made or will be made with a reasonable basis and in good faith.
(j) Each of the Westlake Entities has been duly formed, is validly existing and in good standing as a corporation, limited partnership or limited liability company, as the case may be, under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each jurisdiction (as set forth on Schedule VI ) in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing would not, in the aggregate, reasonably be expected to (i) have a material adverse effect on the condition (financial or otherwise), results of operations, members equity or partners capital, properties, business or prospects of the Partnership Parties taken as a whole (a Material Adverse Effect ), (ii) materially impair the ability of any of the Westlake Entities to consummate the Transactions or any other transactions provided for in this Agreement or the Operative Agreements, or (iii) subject the limited partners of the Partnership to any material liability or disability. Each of the Westlake Entities has all corporate, limited partnership or limited liability company power and authority, as the case may be, necessary to enter into and perform its obligations under the Operative Agreements to which it is a party and to own or hold its properties and to conduct the businesses as presently conducted in all material respects.
(k) The General Partner has, and at each Delivery Date will have, full limited liability company power and authority to serve as general partner of the Partnership in all material respects as disclosed in the Registration Statement and the most recent Preliminary Prospectus.
(l) WISC owns all of the issued and outstanding membership interests in the General Partner; such membership interests have been duly authorized and validly issued in accordance with the limited liability company agreement of the General Partner, as in effect on the date hereof, and at each Delivery Date will be duly authorized and validly issued in accordance with the GP LLC Agreement and will be fully paid (to the extent required under the GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-303, 18-607 and 18-804 of the Delaware Limited Liability Company Act (the Delaware LLC Act )); and WISC owns such membership interests free and clear of all liens, encumbrances, security interests, equities, charges or claims ( Liens ), except for restrictions on transferability that may be imposed by federal or state securities laws or contained in the GP LLC Agreement or as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, if any.
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(m) The General Partner is, and at each applicable Delivery Date, after giving effect to the Transactions, will be, the sole general partner of the Partnership, with a non-economic general partner interest in the Partnership; such general partner interest has been, and on each Delivery Date, after giving effect to the Transactions, will be, duly authorized and validly issued in accordance with the Partnership Agreement; and the General Partner owns such general partner interest free and clear of all Liens, except for restrictions on transferability that may be imposed by federal or state securities laws or contained in the Partnership Agreement or as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, if any.
(n) At each applicable Delivery Date, after giving effect to the Transactions, WPT LLC will own all of the Incentive Distribution Rights (as such term is defined in the Partnership Agreement); the Incentive Distribution Rights and the limited partner interests represented thereby will be duly authorized and validly issued in accordance with the Partnership Agreement and will be fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act (the Delaware LP Act )); and WPT LLC will own such Incentive Distribution Rights free and clear of all Liens, except for restrictions on transferability that may be imposed by federal or state securities laws or contained in the Partnership Agreement or as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, if any.
(o) Assuming no purchase by the Underwriters of any Option Units, at each applicable Delivery Date, after giving effect to the Transactions, (i) WPT LLC will own [] Common Units and [] Subordinated Units (collectively, the Sponsor Units ); the Sponsor Units and the limited partner interests represented thereby will have been duly authorized and validly issued in accordance with the Partnership Agreement and will be fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act); and WPT LLC will own the Sponsor Units free and clear of all Liens, except for restrictions on transferability that may be imposed by federal or state securities laws or contained in the Partnership Agreement or as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, if any.
(p) At each applicable Delivery Date, the Units to be sold by the Partnership and the limited partner interests represented thereby will have been duly authorized in accordance with the Partnership Agreement and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act). Other than the Sponsor Units, the Incentive Distribution Rights and any limited partner interests issued pursuant to the long-term incentive plan of the General Partner (the LTIP ) as described in the Registration Statement and the most recent Preliminary Prospectus, the Units will be the only limited partner interests of the Partnership issued or outstanding at each Delivery Date.
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(q) At each applicable Delivery Date, after giving effect to the Transactions, the Partnership will own 100% of the outstanding membership interests of OpCo GP; such membership interests have been duly authorized and validly issued in accordance with the limited liability company agreement of OpCo GP, as in effect on the date hereof, and at each applicable Delivery Date, after giving effect to the Transactions, will have been, duly authorized and validly issued in accordance with the OpCo GP LLC Agreement and will be fully paid (to the extent required under the OpCo GP LLC Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-303, 18-607 and 18-804 of the Delaware LLC Act); and such membership interests will be owned free and clear of all Liens, except for (i) restrictions on transferability that may be imposed by federal or state securities laws or contained in the OpCo GP LLC Agreement or as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, if any, and (ii) Liens arising under or in connection with the Debt Facilities.
(r) Assuming no purchase by the Underwriters of any Option Units, at each applicable Delivery Date, after giving effect to the Transactions, (i) the Partnership will own 10% of the limited partner interests in OpCo, (ii) Petrochem will own []% of the limited partner interests in OpCo, (iii) Longview will own []% of the limited partner interests in OpCo, (iv) Vinyls will own []% of the limited partner interests in OpCo and (v) WPT LLC will own 90% of the limited partner interests in OpCo (collectively, the OpCo LP Interests ); the OpCo LP Interests will have been duly authorized and validly issued in accordance with the OpCo Partnership Agreement and will be fully paid (to the extent required under the OpCo Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act); and the Partnership, Petrochem, Longview, Vinyls and WPT LLC will own their OpCo LP Interests free and clear of all Liens, except for (i) restrictions on transferability that may be imposed by federal or state securities laws or contained in the OpCo Partnership Agreement or as described in the Registration Statement, the Pricing Disclosure Package and the Prospectus, if any, and (ii) Liens arising under or in connection with the Debt Facilities.
(s) At each applicable Delivery Date, after giving effect to the Transactions, the General Partner will not own or control, directly or indirectly, any equity or long-term debt securities of any corporation, partnership, limited liability company, joint venture, association or other entity other than (i) indirectly held interests in OpCo and OpCo GP and (ii) its non-economic general partner interest in the Partnership. At each applicable Delivery Date, after giving effect to the Transactions, OpCo GP and OpCo are the only subsidiaries of the Partnership and OpCo will be deemed to be a significant subsidiary (as such term is defined in Section 1-02 of Regulation S-X of the Securities Act) of the Partnership.
(t) Following the Transactions, the Units, the Sponsor Units, the Incentive Distribution Rights and the non-economic general partner interest will conform in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(u) Except as described in the Registration Statement, the Pricing Disclosure Package and to be described in the Prospectus, there are no profits interests or other equity interests, options, warrants, preemptive rights, rights of first refusal or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any membership interests or partnership interests in any of the Partnership Parties. Except as described in the Registration
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Statement, the Pricing Disclosure Package and the Prospectus, there are no persons with registration rights or other similar rights to have any securities (debt or equity) registered pursuant to the Registration Statement or included in the offering contemplated by this Agreement, and there are no persons with tag-along rights or other similar rights to have any securities (debt or equity) included in the offering contemplated by this Agreement or sold in connection with the sale of the Units pursuant to this Agreement.
(v) Each of the Westlake Parties has all requisite corporate, limited partnership or limited liability company power and authority to execute and deliver this Agreement and to perform its respective obligations hereunder. The Partnership has all requisite limited partnership power and authority to (i) issue, sell and deliver the Units, in accordance with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement, the Registration Statement and the most recent Preliminary Prospectus and (ii) consummate the Transactions and any other transactions contemplated by this Agreement. At each Delivery Date, all corporate, limited partnership or limited liability company action, as the case may be, required to be taken by any of the Westlake Parties or any of their respective unitholders, members or partners for the authorization, issuance, sale and delivery of the Units, the execution and delivery of the Operative Agreements and the consummation of the Transactions and any other transactions contemplated by this Agreement and the Operative Agreements, shall have been validly taken.
(w) This Agreement has been duly authorized and validly executed and delivered by or on behalf of each of the Westlake Parties.
(x) At each applicable Delivery Date:
(i) the GP LLC Agreement will have been duly authorized, executed and delivered by WISC and will be a valid and legally binding agreement of WISC, enforceable against WISC in accordance with its terms;
(ii) the Partnership Agreement will have been duly authorized, executed and delivered by WPT LLC and the General Partner and will be a valid and legally binding agreement of WPT LLC and the General Partner, enforceable against each of them in accordance with its terms;
(iii) the OpCo GP LLC Agreement will have been duly authorized, executed and delivered by the Partnership and will be a valid and legally binding agreement of the Partnership, enforceable against the Partnership in accordance with its terms;
(iv) the OpCo Partnership Agreement will have been duly authorized, executed and delivered by the Partnership, WPT LLC, Petrochem, Longview, Vinyls and OpCo GP and will be a valid and legally binding agreement of each such entity, enforceable against each of them in accordance with its terms; and
(v) the Transaction Agreements will have been duly authorized, executed and delivered by each Westlake Entity party thereto and will be valid and legally binding agreements of each of the Westlake Entities party thereto, enforceable against such Westlake Entity in accordance with their terms;
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provided that, with respect to each such agreement, the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors rights and remedies generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (ii) public policy, applicable law relating to fiduciary duties and indemnification and an implied covenant of good faith and fair dealing.
(y) None of (i) the offering, issuance or sale of the Units as described in the Registration Statement and the most recent Preliminary Prospectus, (ii) the execution, delivery and performance of the Operative Agreements by the Westlake Entities party hereto or thereto, (iii) the consummation of the Transactions or any other transactions contemplated by the Operative Agreements or (iv) the application of the proceeds from the sale of the Units as described under Use of Proceeds in the most recent Preliminary Prospectus (A) conflicts with or will conflict with or constitutes or will constitute a violation of the Organizational Agreements, articles of incorporation, bylaws, certificate of limited partnership agreement, limited liability company agreement, certificate of formation, certificate of conversion or other governing document (collectively, the Organizational Documents ) of any of the Westlake Entities, (B) conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a change of control or default (or an event that, with notice or lapse of time or both, would constitute such an event) under, any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which any of the Westlake Entities is a party or by which any of them or any of their respective properties may be bound, (C) violates or will violate any statute, law, regulation, ruling or any order, judgment, decree or injunction of any court or governmental agency or body having jurisdiction over any of the Westlake Entities or any of their properties in a proceeding to which any of them or their property is a party or is bound or (D) results or will result in the creation or imposition of any Lien (other than Liens arising under or in connection with the Debt Facilities) upon any property or assets of any of the Westlake Entities, except with respect to clauses (B), (C) and (D) for any such conflicts, violations, breaches, defaults or Liens that would not, individually or in the aggregate, materially impair and will not materially impair the ability of any of the Westlake Entities to consummate the transactions (including the Transactions) contemplated under this Agreement.
(z) No consent, approval, authorization, order, registration, filing or qualification ( consent ) of or with any court, governmental agency or body having jurisdiction over any of the Westlake Entities or any of their properties or assets is required in connection with (i) the offering, issuance or sale by the Partnership of the Units as described in the Registration Statement and the most recent Preliminary Prospectus, (ii) the execution, delivery and performance of the Operative Agreements by the Westlake Entities party hereto or thereto, (iii) the consummation of the Transactions or any other transactions contemplated by the Operative Agreements or (iv) the application of the proceeds from the sale of the Units as described under Use of Proceeds in the most recent Preliminary Prospectus, except (A) for registration of the Units under the Securities Act and consents required under the Securities Exchange Act of 1934, as amended (the Exchange Act ), applicable state securities or Blue Sky laws, and the rules of the Financial Industry Regulatory Authority, Inc. ( FINRA ) in connection with the purchase and distribution of the Units by the Underwriters, (B) for such consents that have been, or prior to the Initial Delivery Date will be, obtained or made, (C) for any such consents that the absence or omission of which would not reasonably be expected to materially impair the ability of any of the Westlake Entities to consummate the transactions (including the Transactions) contemplated under this Agreement and (D) as described in the Registration Statement and the most recent Preliminary Prospectus.
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(aa) None of the Westlake Entities is in (i) violation of its Organizational Documents, (ii) violation of any law, statute, ordinance, administrative or governmental rule or regulation applicable to it or of any order, judgment, decree or injunction of any court or governmental agency or body having jurisdiction over it or any of its properties or (iii) breach, default (or an event that, with notice or lapse of time or both, would constitute such an event) or violation in the performance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any agreement, indenture, lease or other instrument to which it is a party or by which it or any of its properties may be bound, except in the case of clauses (ii) or (iii) for any such breaches, defaults and violations that, individually or in the aggregate, would not reasonably be expected to materially impair the ability of any of the Westlake Entities to consummate the transactions (including the Transactions) contemplated under this Agreement.
(bb) The historical financial statements (including the related notes and supporting schedules) included in the Registration Statement and the most recent Preliminary Prospectus (i) comply as to form in all material respects with the applicable accounting requirements of the Securities Act, (ii) present fairly in all material respects the financial condition, results of operations and cash flows of the entities purported to be shown thereby, at the dates and for the periods indicated, and (iii) have been prepared in conformity with accounting principles generally accepted in the United States applied on a consistent basis throughout the periods indicated, except to the extent disclosed therein. The summary historical financial and operating data included in the Registration Statement and most recent Preliminary Prospectus under the caption Prospectus SummarySummary Historical and Pro Forma Combined Carve-out Financial and Operating Data and the selected historical financial and operating data set forth under the caption Selected Historical and Pro Forma Combined Carve-Out Financial and Operating Data included in the Registration Statement and the most recent Preliminary Prospectus (and any amendment or supplement thereto) is accurately presented in all material respects and prepared on a basis consistent with the audited and unaudited historical consolidated financial statements from which they have been derived, except as described therein. The other financial information of the Partnership (or its predecessor for accounting purposes), including non-GAAP financial measures, contained in the Registration Statement and the most recent Preliminary Prospectus has been derived from the accounting records of the Westlake Entities, and fairly presents in all material respects the information purported to be shown thereby and complies with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Securities Act, to the extent applicable. There are no financial statements (historical or pro forma) that are required to be included in the Registration Statement or the most recent Preliminary Prospectus that are not so included and the Partnership Parties do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations), not described in the Registration Statement (excluding the exhibits thereto) or the most recent Preliminary Prospectus.
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(cc) The pro forma financial statements included in the Registration Statement and the most recent Preliminary Prospectus include assumptions that provide a reasonable basis for presenting the significant effects directly attributable to the transactions and events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma adjustments reflect an appropriate application of those adjustments to the historical financial statement amounts in the pro forma financial statements included in the Registration Statement and the most recent Preliminary Prospectus. The pro forma financial statements included in the Registration Statement and the most recent Preliminary Prospectus comply as to form in all material respects with the applicable requirements of Regulation S-X under the Securities Act.
(dd) PricewaterhouseCoopers LLP, who has audited certain combined financial statements of the accounting predecessor of the Partnership (the Predecessor ) and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries and whose report appears in the most recent Preliminary Prospectus, is an independent public accounting firm with respect to the Partnership and the Predecessor as required by the Securities Act and the rules and regulations thereunder.
(ee) Each of the Partnership Parties maintains internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States, including, but not limited to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorization, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with accounting principles generally accepted in the United States and to maintain accountability for its assets, (iii) access to assets is permitted only in accordance with managements general or specific authorization, and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. As of the date of the most recent balance sheet of the Predecessor and its consolidated subsidiaries reviewed or audited by PricewaterhouseCoopers LLP, the WLK Parties were not aware of any material weaknesses in the internal controls of any Partnership Party.
(ff) (i) The Partnership Parties maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act), (ii) such disclosure controls and procedures are designed to ensure that the information required to be disclosed by the Partnership in the reports to be filed or submitted under the Exchange Act is accumulated and communicated to management of the General Partner, including the principal executive officer and principal financial officer of the General Partner, as appropriate, to allow timely decisions regarding required disclosure to be made, and (iii) such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established to the extent required by Rule 13a-15 of the Exchange Act.
(gg) Since the date of the most recent balance sheet of the Partnership and its consolidated subsidiaries reviewed or audited by PricewaterhouseCoopers LLP, (i) the Partnership has not been advised of or become aware of (A) any significant deficiencies in the design or operation of internal controls that could adversely affect the ability of the Partnership or any of its subsidiaries to record, process, summarize and report financial data, or any material weaknesses in internal controls, and (B) any fraud, whether or not material, that involves
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management or other employees of any Partnership Party who have a significant role in the internal controls of the Partnership Parties; and (ii) there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(hh) At the Effective Date, the Partnership, and to the knowledge of the Partnership Parties, the officers and directors of the General Partner, in their capacities as such, were, and on each applicable Delivery Date, will be, in compliance in all respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith or the rules of The New York Stock Exchange that are effective and applicable to the Partnership.
(ii) Except as described in the Registration Statement and the Pricing Disclosure Package, since the date of the latest audited financial statements included in the most recent Preliminary Prospectus, none of the Westlake Parties has (i) sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, (ii) issued or granted any securities, (iii) incurred any material liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (iv) entered into any material transaction not in the ordinary course of business, or (v) declared or paid any distribution or dividend on its equity interests, and since such date, there has not been any change in the partnership or limited liability interests, as applicable, or long-term debt of any of the Partnership Parties or any adverse change, or any development involving a prospective adverse change, in or affecting the condition (financial or otherwise), results of operations, partners equity, properties, management, business or prospects of the Partnership Parties taken as a whole, in each case except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(jj) At the Initial Delivery Date and each Option Units Delivery Date, if any, after giving effect to the Transactions, the Partnership Parties will have good and indefeasible title to all real property owned in fee by the Partnership Parties (excluding easements and rights-of-way) and good title to all personal property owned by it, in each case free and clear of all Liens, except (i) as described in the Registration Statement and the most recent Preliminary Prospectus, (ii) such as are created under or permitted by the Debt Facilities or (iii) such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by any of the Partnership Parties. All assets held under lease by each of the Partnership Parties are held by it under valid, subsisting and enforceable leases, with such exceptions as do not materially interfere with the use made or proposed to be made of such assets by any of the Partnership Parties as described in the Registration Statement and the most recent Preliminary Prospectus.
(kk) At the Initial Delivery Date and each Option Units Delivery Date, if any, after giving effect to the Transactions, each of the Partnership Parties will have such consents, easements, rights-of-way, permits or licenses from each person (collectively, rights-of-way ) as are necessary to conduct its business in the manner described in the Registration Statement and the most recent Preliminary Prospectus, subject to the limitations described in the Registration Statement and the most recent Preliminary Prospectus, if any, except for (i) such rights-of-way
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that, if not obtained, would not have, individually or in the aggregate, a Material Adverse Effect and (ii) qualifications, reservations and encumbrances with respect thereto that would not have a Material Adverse Effect; each of the Partnership Parties has, or at the applicable Delivery Date will have, fulfilled and performed, in all material respects, its obligations with respect to such rights-of-way and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or would result in any impairment of the rights of the holder of any such rights-of-way, except for such revocations, terminations and impairments that, individually or in the aggregate, would not have a Material Adverse Effect; and none of such rights-of-way contains any restriction that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(ll) At the Initial Delivery Date and each Option Units Delivery Date, if any, after giving effect to the Transactions, each of the Partnership Parties will have such permits, licenses, patents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities ( Permits ) as are necessary under applicable law to own its properties and conduct its business in the manner described in the Registration Statement and the most recent Preliminary Prospectus, except for any of the foregoing that could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. Each of the Westlake Entities has fulfilled and performed all of its obligations with respect to the Permits, and no event has occurred that allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder or any such Permits, except for any of the foregoing that could not reasonably be expected to have a Material Adverse Effect. None of the Westlake Entities has received notice of proceedings relating to the revocation or modification of any such Permits or has any reason to believe that any such Permits that, individually or in the aggregate, if subject to an unfavorable decision, ruling or finding, would be reasonably expected to have a Material Adverse Effect.
(mm) Each of the Partnership Parties owns, licenses or possesses adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses, know-how, software, systems and technology (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of its business and has no reason to believe that the conduct of its business will conflict with, and has not received any notice of any claim of conflict with, any such rights of others, except in each case as would not reasonably be expected to have a Material Adverse Effect.
(nn) Except as described in the Registration Statement and the most recent Preliminary Prospectus, there are no legal or governmental proceedings pending to which any of the Partnership Parties is a party or of which any property or assets of any of the Westlake Entities that will be contributed to OpCo is the subject that would, in the aggregate, reasonably be expected to have a Material Adverse Effect or could, in the aggregate, reasonably be expected to have a Material Adverse Effect on the performance of this Agreement, the Operative Agreements or the consummation of the Transactions or any other transactions contemplated hereby or thereby, and to the Westlake Parties knowledge, no such proceedings are threatened or contemplated by governmental authorities or others.
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(oo) There are no contracts or other documents required by the Securities Act to be described in the Registration Statement or the most recent Preliminary Prospectus or filed as exhibits to the Registration Statement that are not described and filed as required. The statements made in the most recent Preliminary Prospectus, insofar as they purport to constitute summaries of the terms of the contracts and other documents described and filed, constitute accurate summaries of the terms of such contracts and documents in all material respects. The Westlake Parties have no knowledge that any other party to any such contract or other document has any intention not to render full performance as contemplated by the terms thereof.
(pp) The statements made in the most recent Preliminary Prospectus, insofar as they purport to constitute summaries of the terms of statutes, rules or regulations, legal or governmental proceedings constitute accurate summaries of the terms of such statutes, rules and regulations, legal and governmental proceedings in all material respects.
(qq) Each of the Partnership Parties carries, or is covered by, insurance from reputable insurers in such amounts and covering such risks as is reasonably adequate for the conduct of its business and the value of its properties and as is customary for companies engaged in similar businesses in similar industries. All policies of insurance of the Partnership Parties are in full force and effect; each of the Partnership Parties is in compliance with the terms of such policies in all material respects; and none of the Partnership Parties has received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance; there are no claims by any of the Partnership Parties under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; and none of the Partnership Parties has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that could not reasonably be expected to have a Material Adverse Effect.
(rr) No relationship, direct or indirect, exists between or among Partnership Parties, on the one hand, and any affiliate, equity holder, director, manager, officer, customer or supplier of any of the Partnership Parties, on the other hand, that is required by the Securities Act to be described in the Registration Statement and most recent Preliminary Prospectus that is not so described. There are no outstanding personal loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees of indebtedness by any Partnership Party to or for the benefit of any of the executive officers, directors or managers of any Partnership Party or their respective family members.
(ss) No labor disturbance by or dispute with the employees of any of the Partnership Parties exists or, to the knowledge of the Partnership Parties, is imminent or threatened that could reasonably be expected to have a Material Adverse Effect.
(tt) Except as described in the Registration Statement and the most recent Preliminary Prospectus and except as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, (i) each of the Partnership Parties is, and at all times prior hereto were, in compliance with all applicable laws, regulations, ordinances, rules, orders, judgments, decrees, permits or other legal requirements of any governmental authority, including without
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limitation any international, foreign, national, state, provincial, regional or local authority, relating to pollution, the protection of human health or safety (to the extent such health or safety relates to exposure to Hazardous Materials, as defined below), the environment, or natural resources, or to the use, handling, storage, manufacturing, transportation, treatment, discharge, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants ( Environmental Laws ) applicable to such entity, which compliance includes, without limitation, obtaining, maintaining and complying with all permits and authorizations and approvals required by Environmental Laws to conduct its business, and (ii) no Partnership Party has received notice or otherwise has knowledge of any actual or alleged violation of Environmental Laws, or of any actual or potential liability for or other obligation concerning the presence, disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except in the case of clause (i) or (ii) where such non-compliance, violation, liability, or other obligation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as described in the Registration Statement and the most recent Preliminary Prospectus, (x) there are no proceedings that are pending, or known to be contemplated, against any of the Partnership Parties under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, (y) none of the Partnership Parties is aware of any issues regarding compliance with Environmental Laws, including any pending or proposed Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants, that could reasonably be expected to have a material effect on the capital expenditures, earnings or competitive position of any of the Partnership Parties, and (z) none of the Partnership Parties anticipates material capital expenditures relating to Environmental Laws.
(uu) The Partnership Parties have filed all federal, state, local and foreign tax returns required to be filed by the Partnership Parties through the date hereof (which returns are complete and correct in all material respects), subject to any applicable extensions, and have timely paid all taxes (and any interest, fine, penalty or other like assessment or addition thereto) due, except those taxes, assessments or other charges that are being contested in good faith, and no material tax deficiency has been determined adversely to the Partnership Parties that has not been abated, paid in full, or adequately provided for in the financial statements included in the Registration Statement and the most recent Preliminary Prospectus, nor do any of the Partnership Parties have any knowledge of any tax deficiencies that have been asserted against the Partnership Parties that could, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(vv) (i) Each employee benefit plan (within the meaning of Section 3(3) of the Employee Retirement Security Act of 1974, as amended ( ERISA )) for which the Partnership or any member of its Controlled Group (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the Code )) would have any liability (each a Plan ) has been maintained in compliance with its terms and with the requirements of all applicable statutes, rules and regulations including ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no reportable event (within the
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meaning of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur, (B) no accumulated funding deficiency (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has occurred or is reasonably expected to occur, (C) the fair market value of the assets under each Plan exceeds the present value of all benefits accrued under such Plan (determined based on those assumptions used to fund such Plan), and (D) neither the Partnership nor any member of its Controlled Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan (including a multiemployer plan, within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification.
(ww) The statistical and market-related data included in the most recent Preliminary Prospectus are based on or derived from sources that the Partnership believes to be reliable in all material respects.
(xx) None of the Partnership Parties is, and as of each applicable Delivery Date, after giving effect to the offer and sale of the Units and the application of the proceeds therefrom as described under Use of Proceeds in the most recent Preliminary Prospectus and the Prospectus, none of them will be, (i) an investment company or a company controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended (the Investment Company Act ), and the rules and regulations of the Commission thereunder, or (ii) a business development company (as defined in Section 2(a)(48) of the Investment Company Act).
(yy) None of the Westlake Entities is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise to a valid claim against any of them or the Underwriters for a brokerage commission, finders fee or like payment in connection with the offering and sale of the Units.
(zz) The sale and issuance of the Sponsor Units and the Incentive Distribution Rights to WPT LLC and the non-economic general partner interest in the Partnership to the General Partner are exempt from the registration requirements of the Securities Act and securities laws of any state having jurisdiction with respect thereto, the Partnership has not sold or issued any securities that would be integrated with the offering of the Units contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission.
(aaa) The Partnership and its affiliates have not taken, directly or indirectly, any action designed to or that has constituted or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Partnership in connection with the offering of the Units.
(bbb) The Units have been approved for listing, subject to official notice of issuance and evidence of satisfactory distribution, on The New York Stock Exchange.
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(ccc) The Partnership has not distributed and, prior to the later to occur of any Delivery Date and completion of the distribution of the Units, will not distribute any offering material in connection with the offering and sale of the Units other than any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with Section 1(h) or 5(a)(vi) and any Issuer Free Writing Prospectus set forth on Schedule V hereto and, in connection with the Directed Unit Program described in Section 4 , the enrollment materials prepared by UBS Financial Services Inc. on behalf of the Partnership.
(ddd) None of the Partnership Parties, nor, to the knowledge of the Westlake Parties, any director, officer, agent, employee or other person associated with or acting on behalf of any of the Partnership Parties, has (i) used any of its funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from its funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(eee) The operations of the Westlake Entities are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws ) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving any Partnership Entity with respect to the Money Laundering Laws is pending or, to the knowledge of the Partnership Parties, threatened.
(fff) None of the Partnership Parties nor, to the knowledge of the Westlake Parties, any director, officer, agent, employee or affiliate of the Partnership Parties is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department ( OFAC ); and the Partnership will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(ggg) Each Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus comply, and any further amendments or supplements thereto will comply, with any applicable laws or regulations of foreign jurisdictions in which such Preliminary Prospectus, Prospectus or such Issuer Free Writing Prospectus, as amended or supplemented, if applicable, are distributed in connection with the Directed Unit Program. No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental agency or body, other than such as have been obtained, is required under the securities laws and regulations of any foreign jurisdiction in which the Directed Units are offered or sold outside the United States.
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(hhh) The Partnership has not offered, or caused UBS Financial Services Inc. to offer, Units to any person pursuant to the Directed Unit Program with the specific intent to unlawfully influence (i) a customer or supplier of any Partnership Party to alter the customers or suppliers level or type of business with any Partnership Party or (ii) a trade journalist or publication to write or publish favorable information about any Partnership Party, its business or its products.
(iii) OpCo is not currently prohibited, directly or indirectly, from paying any distributions to the Partnership, from making any other distribution on such subsidiarys equity interests, from repaying to the Partnership any loans or advances to such subsidiary from the Partnership or from transferring any of such subsidiarys property or assets to the Partnership or any other subsidiary of the Partnership, except for such prohibitions mandated by the laws of the State of Delaware and the Organizational Agreements of OpCo.
Any certificate signed by any officer of any of the Partnership Parties and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Units shall be deemed a representation and warranty by the Partnership, as to matters covered thereby, to each Underwriter.
2. Purchase of the Units by the Underwriters . On the basis of the representations, warranties and covenants contained in, and subject to the terms and conditions of, this Agreement, the Partnership agrees to sell [] Firm Units to the several Underwriters, and each of the Underwriters, severally and not jointly, agrees to purchase the number of Firm Units set forth opposite that Underwriters name in Schedule I hereto. The respective purchase obligations of the Underwriters with respect to the Firm Units shall be rounded among the Underwriters to avoid fractional units, as the Representatives may determine.
In addition, the Partnership grants to the Underwriters an option to purchase up to [] additional Option Units. Such option is exercisable in the event that the Underwriters sell more Common Units than the number of Firm Units in the offering and as set forth in Section 4 hereof. Each Underwriter agrees, severally and not jointly, to purchase the number of Option Units (subject to such adjustments to eliminate fractional units as the Representatives may determine) that bears the same proportion to the total number of Option Units to be sold on such Delivery Date as the number of Firm Units set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Units.
The purchase price payable by the Underwriters for the Firm Units shall be $[] per Unit. The purchase price payable by the Underwriters for any Option Units purchased by the Underwriters shall be $[] per Unit less any amount equal to any distributions declared by the Partnership and payable on each Firm Unit but not on such Option Units being purchased.
The Partnership is not obligated to deliver any of the Firm Units or Option Units to be delivered on the applicable Delivery Date, except upon payment for all such Units to be purchased on such Delivery Date as provided herein.
3. Offering of Units by the Underwriters . Upon authorization by the Representatives of the release of the Firm Units, the several Underwriters propose to offer the Firm Units for sale upon the terms and conditions to be set forth in the Prospectus.
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It is understood that approximately [] Units (the Directed Units ) will initially be reserved by the several Underwriters for offer and sale upon the terms and conditions to be set forth in the most recent Preliminary Prospectus and in accordance with the rules and regulations of FINRA to employees of the General Partner and its affiliates and subsidiaries and persons having relationships with the General Partner and its affiliates and subsidiaries who have heretofore delivered to UBS Financial Services Inc. offers or indications of interest to purchase Firm Units in form satisfactory to UBS Financial Services Inc. (such program, the Directed Unit Program ) and that any allocation of such Firm Units among such persons will be made in accordance with timely directions received by UBS Financial Services Inc. from the Partnership; provided that under no circumstances will UBS Financial Services Inc. or any Underwriter be liable to the Partnership or to any such person for any action taken or omitted in good faith in connection with such Directed Unit Program. It is further understood that any Directed Units not affirmatively reconfirmed for purchase by any participant in the Directed Unit Program by 8:00 A.M., New York City time, on the first business day following the date hereof or otherwise are not purchased by such persons will be offered by the Underwriters to the public upon the terms and conditions set forth in the Prospectus.
The Partnership agrees to pay all fees and disbursements incurred by the Underwriters in connection with the Directed Unit Program and any stamp duties or other taxes incurred by the Underwriters in connection with the Directed Unit Program.
4. Delivery of and Payment for the Units . Delivery of and payment for the Firm Units shall be made at [10:00] A.M., New York City time, on the third full business day following the date of this Agreement or at such other date or place as shall be determined by agreement between the Representatives and the Partnership. This date and time are sometimes referred to as the Initial Delivery Date . Delivery of the Firm Units shall be made to the Representatives for the account of each Underwriter against payment by the several Underwriters through the Representatives of the respective aggregate purchase prices of the Firm Units being sold by the Partnership to or upon the order of the Partnership by wire transfer in immediately available funds to the accounts specified by the Partnership. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. The Partnership shall deliver the Firm Units through the facilities of DTC unless the Representatives shall otherwise instruct.
The option granted in Section 2 will expire 30 days after the date of this Agreement and may be exercised in whole or from time to time in part by written notice being given to the Partnership by the Representatives; provided that if such date falls on a day that is not a business day, the option granted in Section 2 will expire on the next succeeding business day. Such notice shall set forth the aggregate number of Option Units as to which the option is being exercised, the names in which the Option Units are to be registered, the denominations in which the Option Units are to be issued and the date and time, as determined by the Representatives, when the Option Units are to be delivered; provided, however , that this date and time shall not be earlier than the Initial Delivery Date nor earlier than the second business day after the date on which the option shall have been exercised nor later than the fifth business day after the date on which the option shall have been exercised. Each date and time any Option Units are delivered is sometimes referred to as an Option Units Delivery Date , and the Initial Delivery Date and any Option Units Delivery Date are sometimes each referred to as a Delivery Date .
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Delivery of the Option Units by the Partnership and payment for the Option Units by the several Underwriters through the Representatives shall be made at [10:00] A.M., New York City time, on the date specified in the corresponding notice described in the preceding paragraph or at such other date or place as shall be determined by agreement between the Representatives and the Partnership. On each Option Units Delivery Date, the Partnership shall deliver or cause to be delivered the Option Units to the Representatives for the account of each Underwriter against payment by the several Underwriters through the Representatives and of the aggregate purchase price of the Option Units being sold by the Partnership to or upon the order of the Partnership by wire transfer in immediately available funds to the accounts specified by the Partnership. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. The Partnership shall deliver the Option Units through the facilities of DTC unless the Representatives shall otherwise instruct.
5. Further Agreements . The Partnership and the General Partner jointly and severally covenant and agree with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commissions close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Delivery Date except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Units for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal.
(ii) To furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
(iii) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus,
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and (C) each Issuer Free Writing Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Units or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus in order to comply with the Securities Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the judgment of the Partnership or the Representatives, be required by the Securities Act or requested by the Commission.
(v) Prior to filing with the Commission any amendment or supplement to the Registration Statement or the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives to the filing.
(vi) Not to make any offer relating to the Units that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives.
(vii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any event shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(viii) As soon as practicable after the Effective Date (it being understood that the Partnership shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the Effective Date is the last fiscal quarter of the Partnerships fiscal year, 455 days after the end of the Partnerships current fiscal quarter), to make generally available to the Partnerships security holders and to deliver to the Representatives an earnings statement of the Partnership and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Partnership, Rule 158).
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(ix) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Units for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Units; provided that in connection therewith the Partnership shall not be required to (i) qualify as a foreign entity in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process in any such jurisdiction, or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(x) For a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus (the Lock-Up Period ), not to, directly or indirectly, (A) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units or securities convertible into or exercisable or exchangeable for Common Units (other than the Units and Common Units issued pursuant to employee benefit plans, qualified option plans or other employee compensation plans existing on the date hereof), or sell or grant options, rights or warrants with respect to any Common Units or securities convertible into or exchangeable for Common Units, (B) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such Common Units, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, (C) make any demand for or exercise any right to file or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any Common Units or securities convertible, exercisable or exchangeable into Common Units or any other securities of the Partnership (other than any registration statement on Form S-8), or (D) publicly disclose the intention to do any of the foregoing, in each case without the prior written consent of Barclays Capital Inc. and UBS Securities LLC, on behalf of the Underwriters, and to cause each officer or director of the General Partner and each unitholder of the Partnership set forth on Schedule II hereto to furnish to the Representatives, prior to the Initial Delivery Date, a letter or letters, substantially in the form of Exhibit A hereto (the Lock-Up Agreements ); notwithstanding the foregoing, if (x) during the last 17 days of the Lock-Up Period, the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs, or (y) prior to the expiration of the Lock-Up Period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed in this paragraph shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless each of Barclays Capital Inc. and UBS Securities LLC, on behalf of the Underwriters, agree in writing not to require such extension.
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(xi) To apply the net proceeds from the sale of the Units being sold by the Partnership substantially in accordance with the description as set forth in the Prospectus under the caption Use of Proceeds.
(xii) To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Securities Act.
(xiii) If the Partnership elects to rely upon Rule 462(b) under the Securities Act, the Partnership shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Partnership shall at the time of filing pay the Commission the filing fee for the Rule 462(b) Registration Statement.
(xiv) In connection with the Directed Unit Program, to ensure that the Directed Units will be restricted from sale, transfer, assignment, pledge or hypothecation to the same extent as sales and dispositions of Units by the Partnership are restricted pursuant to Section 5(a)(x) , UBS Financial Services Inc. will notify the Partnership as to which Directed Unit Participants will need to be so restricted. At the request of UBS Financial Services Inc., the Partnership will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time as is consistent with Section 5(a)(x) .
(xv) To comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Units are offered in connection with the Directed Unit Program
(xvi) The Partnership and its affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Partnership in connection with the offering of the Units.
(xvii) The WLK Parties will do and perform all things required or necessary to be done and performed under this Agreement by it prior to each Delivery Date, and to satisfy all conditions precedent to the Underwriters obligations hereunder to purchase the Units.
(b) Each Underwriter severally agrees that such Underwriter shall not include any issuer information (as defined in Rule 433 under the Securities Act) in any free writing prospectus (as defined in Rule 405 under the Securities Act) used or referred to by such Underwriter without the prior consent of the Partnership (any such issuer information with respect to whose use the Partnership has given its consent, Permitted Issuer Information ); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by any Partnership Party with the Commission prior to the use of such free writing prospectus, and (ii) issuer information, as used in this paragraph, shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information.
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6. Expenses. The Partnership agrees to pay all expenses, costs, fees and taxes incident to and in connection with (a) the authorization, issuance, sale and delivery of the Units and any stamp duties or other taxes payable in that connection, and the preparation and printing of certificates for the Units; (b) the preparation, printing and filing under the Securities Act of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus and any amendment or supplement thereto, all as provided in this Agreement; (d) the production and distribution of this Agreement, any supplemental agreement among the Underwriters, and any other related documents in connection with the offering, purchase, sale and delivery of the Units; (e) any required review by the FINRA of the terms of sale of the Units (including related fees and expenses of counsel to the Underwriters in an amount that is not greater than $20,000); (f) the listing of the Units on the New York Stock Exchange and/or any other exchange; (g) the qualification of the Units under the securities laws of the several jurisdictions as provided in Section 5(a)(i) and the preparation, printing and distribution of a Blue Sky Memorandum (including related fees and expenses of counsel to the Underwriters); (h) the preparation, printing and distribution of one or more versions of the Preliminary Prospectus and the Prospectus for distribution in Canada, including in the form of a Canadian wrapper (including related fees and expenses of Canadian counsel to the Underwriters); (i) the offer and sale of Units by the Underwriters in connection with the Directed Unit Program, including the fees and disbursements of counsel to the Underwriters related thereto, the costs and expenses of preparation, printing and distribution of the Directed Unit Program material and all stamp duties or other taxes incurred by the Underwriters in connection with the Directed Unit Program; (j) the investor presentations on any road show undertaken in connection with the marketing of the Units, including, without limitation, expenses associated with any electronic road show, travel and lodging expenses of the representatives and officers of the General Partner; and (k) all other costs and expenses incident to the performance of the obligations of the Partnership under this Agreement; provided that, except as provided in this Section 6 and in Section 11, the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel, any transfer taxes on the Units which they may sell, the expenses of advertising any offering of the Units made by the Underwriters, the cost of any aircraft chartered in connection with the road show and the transportation and other expenses incurred by the Underwriters on their own behalf in connection with presentations to prospective purchasers of the Units. The Partnership agrees to pay to Barclays Capital Inc. and UBS Securities LLC an aggregate structuring fee in an amount equal to [ l ]% of the gross proceeds from the sale of the Units for providing advice regarding the capital structure of the Partnership, the terms of the offering of the Common Units, the terms of the Partnership Agreement and the terms of certain other agreements between the Partnership and its affiliates.
7. Conditions of Underwriters Obligations . The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Westlake Parties contained herein, to the performance by the Westlake Parties of their obligations hereunder, and to each of the following additional terms and conditions:
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(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i) . The Partnership shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with. If the Partnership has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement.
(b) No Underwriter shall have discovered and disclosed to the Partnership on or prior to such Delivery Date that the Registration Statement, the Prospectus or the Pricing Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Latham & Watkins LLP, counsel for the Underwriters, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein (or in the case of the Prospectus and the Pricing Disclosure Package, in the light of the circumstances under which such statements were made) or is necessary to make the statements therein not misleading.
(c) All proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the other Operative Agreements, the Units, the Registration Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the other Operative Agreements and the Transactions (and any other transactions contemplated by the Operative Agreements) shall be reasonably satisfactory in all material respects to counsel for the Underwriters, and the Westlake Parties shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Vinson & Elkins L.L.P. shall have furnished to the Representatives its written opinion, as counsel to the Partnership, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B-1 .
(e) L. Benjamin Ederington shall have furnished to the Representatives his written opinion, as General Counsel of the General Partner, addressed to the Underwriters and dated such Delivery Date, in form and substance reasonably satisfactory to the Representatives, substantially in the form attached hereto as Exhibit B-2 .
(f) The Representatives shall have received from Latham & Watkins LLP, counsel for the Underwriters, such opinion or opinions, dated such Delivery Date, with respect to the issuance and sale of the Units, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Westlake Parties shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
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(g) At the time of execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants comfort letters to underwriters in connection with registered public offerings.
(h) With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the initial letter ), the Partnership shall have furnished to the Representatives a letter (the bring-down letter ) of such accountants, addressed to the Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
(i) The Partnership Parties shall have furnished to the Representatives (i) a certificate, dated such Delivery Date, of the Chief Executive Officer and the Chief Financial Officer of the General Partner and (ii) a certificate, dated such Delivery Date, of the Chief Executive Officer and the Chief Financial Officer of WPT LLC, in each case as to such matters as the Representatives may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the WLK Parties in Section 1 are true and correct on and as of such Delivery Date, and each WLK Party has complied with all their agreements contained herein and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to such Delivery Date;
(ii) That no stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened;
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(iii) That they have examined the Registration Statement, the Prospectus and the Pricing Disclosure Package, and, in their opinion, (A) (1) the Registration Statement, as of the Effective Date, (2) the Prospectus, as of its date and on the applicable Delivery Date, and (3) the Pricing Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and
(iv) To the effect of Section 7(j) ( provided that no representation with respect to the judgment of the Representatives need be made) and Section 7(k) .
(j) Except as described in the most recent Preliminary Prospectus, (i) none of the WLK Entities (other than WLK) shall have sustained, since the date of the latest audited financial statements included in the most recent Preliminary Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, and (ii) since such date there shall not have been any change in the equity interests or long-term debt of any of the Partnership Parties or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, partners equity, properties, management, business or prospects of the Partnership Parties taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Units being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(k) Subsequent to the execution and delivery of this Agreement, to the extent applicable (i) no downgrading shall have occurred in the rating accorded to the Partnerships debt securities or preferred equity by any nationally recognized statistical rating organization (as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Partnerships debt securities or preferred equity.
(l) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) (A) trading in securities generally on any securities exchange that has registered with the Commission under Section 6 of the Exchange Act (including the New York Stock Exchange, The NASDAQ Global Select Market, The NASDAQ Global Market or The NASDAQ Capital Market), or (B) trading in any securities of the Partnership on any exchange or in the over-the-counter market, shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been
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established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States, or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or delivery of the Units being delivered on such Delivery Date on the terms and in the manner contemplated in the Prospectus.
(m) The New York Stock Exchange shall have approved the Units for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(n) FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Units.
(o) The Lock-Up Agreements between the Representatives and the officers and directors of the General Partner and unitholders of the Partnership set forth on Schedule II , delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on such Delivery Date.
(p) On or prior to each Delivery Date, the WLK Parties shall have furnished to the Underwriters such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The WLK Parties hereby agree, jointly and severally, to indemnify and hold harmless each Underwriter, its affiliates, directors, officers and employees, and the agents of each Underwriter who have or who are alleged to have participated in the distribution of the Units as underwriters (collectively, the selling agents ), and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Units), to which that Underwriter, affiliate, director, officer, employee, selling agent or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary
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Prospectus, the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment or supplement thereto, (C) any Permitted Issuer Information used or referred to in any free writing prospectus (as defined in Rule 405 under the Securities Act) used or referred to by any Underwriter or (D) any materials or information provided to investors by, or with the approval of, the Partnership in connection with the marketing of the offering of the Units, including any road show (as defined in Rule 433 under the Securities Act) not constituting an Issuer Free Writing Prospectus ( Marketing Materials ) or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information or any Marketing Materials, any material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and shall reimburse each Underwriter and each such affiliate, director, officer, employee, selling agent or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, affiliate, director, officer, employee, selling agent or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided , however , that none of the WLK Parties shall be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer Information or any Marketing Materials, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Partnership through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 8(e) . The foregoing indemnity agreement is in addition to any liability which the Partnership Parties may otherwise have to any Underwriter or to any affiliate, director, officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the WLK Parties, their respective directors, officers and employees, and each person, if any, who controls a WLK Party within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Partnership or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the
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extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Partnership through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 8(e) . The foregoing indemnity agreement is in addition to any liability that any Underwriter may otherwise have to the Partnership or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8 , notify the indemnifying party in writing of the claim or the commencement of that action; provided , however , that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced (through the forfeiture of substantive rights and defenses) by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 8 . If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however , that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and those other indemnified parties and their respective directors, officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought under this Section 8 if (i) the indemnified party and the indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party and its directors, officers, employees and controlling persons shall have reasonably concluded that there may be legal defenses available to them that are different from or in addition to those available to the indemnifying party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnified parties or their respective directors, officers, employees or controlling persons, on the one hand, and the indemnifying party, on the other hand, and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying party. No indemnifying party shall (x) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or
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consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (y) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(a) or (b) hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request or disputed in good faith the indemnified partys entitlement to such reimbursement prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Partnership, on the one hand, and the Underwriters, on the other, from the offering of the Units, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Partnership, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Partnership, on the one hand, and the Underwriters, on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Units purchased under this Agreement (before deducting expenses) received by the Partnership, as set forth in the table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the Units purchased under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Partnership or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Partnership and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred
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to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d) , any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d) , in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Units exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute as provided in this Section 8(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the WLK Parties acknowledge and agree that the statements regarding delivery of the Common Units by the Underwriters set forth on the cover page of, and the concession and reallowance figures and the paragraph relating to stabilization by the Underwriters appearing under the caption Underwriting in, the most recent Preliminary Prospectus and the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Partnership by or on behalf of the Underwriters specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials.
(f) The WLK Parties shall indemnify and hold harmless UBS Financial Services Inc. (including its affiliates, directors, officers and employees) and each person, if any, who controls UBS Financial Services Inc. within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act ( UBS Entities ), from and against any loss, claim, damage or liability or any action in respect thereof to which any of the UBS Entities may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action (i) arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the approval of any Westlake Entity for distribution to Directed Unit Participants in connection with the Directed Unit Program or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) arises out of, or is based upon, the failure of the Directed Unit Participant to pay for and accept delivery of Directed Units that the Directed Unit Participant agreed to purchase, or (iii) is otherwise related to the Directed Unit Program; provided that the Westlake Parties shall not be liable under this clause (iii) for any loss, claim, damage, liability or action that is determined in a final judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the UBS Entities. The Partnership shall reimburse the UBS Entities promptly upon demand for any legal or other expenses reasonably incurred by them in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred.
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9. Defaulting Underwriters .
(a) If, on any Delivery Date, any Underwriter defaults in its obligations to purchase the Units that it has agreed to purchase under this Agreement, the remaining non-defaulting Underwriters may in their discretion arrange for the purchase of such Units by the non-defaulting Underwriters or other persons satisfactory to the Partnership on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Units, then the Partnership shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Units on such terms. In the event that within the respective prescribed periods, the non-defaulting Underwriters notify the Partnership that they have so arranged for the purchase of such Units, or the Partnership notifies the non-defaulting Underwriters that it has so arranged for the purchase of such Units, either the non-defaulting Underwriters or the Partnership may postpone such Delivery Date for up to seven full business days in order to effect any changes that in the opinion of counsel for the Partnership or counsel for the Underwriters may be necessary in the Registration Statement, the Prospectus or in any other document or arrangement, and the Partnership agrees to promptly prepare any amendment or supplement to the Registration Statement, the Prospectus or in any such other document or arrangement that effects any such changes. As used in this Agreement, the term Underwriter includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule I hereto that, pursuant to this Section 9 , purchases Units that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Units of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Partnership as provided in paragraph (a) above, the total number of Units that remains unpurchased does not exceed one-eleventh of the total number of all Units, then the Partnership shall have the right to require each non-defaulting Underwriter to purchase the total number of Units that such Underwriter agreed to purchase hereunder plus such Underwriters pro rata share (based on the total number of Units that such Underwriter agreed to purchase hereunder) of the Units of such defaulting Underwriter or Underwriters for which such arrangements have not been made; provided that the non-defaulting Underwriters shall not be obligated to purchase more than 110% of the total number of Units that it agreed to purchase on such Delivery Date pursuant to the terms of Section 2 .
(c) If, after giving effect to any arrangements for the purchase of the Units of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Partnership as provided in paragraph (a) above, the total number of Units that remains unpurchased exceeds one-eleventh of the total number
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of all Units, or if the Partnership shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Partnership, except that the Partnership will continue to be liable for the payment of expenses as set forth in Sections 6 and 11 and except that the provisions of Section 8 shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Partnership or any non-defaulting Underwriter for damages caused by its default.
10. Termination. The obligations of the Underwriters hereunder may be terminated by the Representatives by notice given to and received by the Partnership prior to delivery of and payment for the Firm Units if, prior to that time, any of the events described in Sections 7(j) , 7(k) and 7(l) shall have occurred or if the Underwriters shall decline to purchase the Units for any reason permitted under this Agreement.
11. Reimbursement of Underwriters Expenses . If (a) the Partnership shall fail to tender the Units for delivery to the Underwriters for any reason other than by reason of a default by any of the Underwriters, or (b) the Underwriters shall decline to purchase the Units for any reason permitted under this Agreement, the Partnership will reimburse the Underwriters for all reasonable out-of-pocket expenses (including fees and disbursements of counsel for the Underwriters) incurred by the Underwriters in connection with this Agreement and the proposed purchase of the Units, and upon demand the Partnership shall pay the full amount thereof to the Representatives. If this Agreement is terminated pursuant to Section 9 by reason of the default of one or more Underwriters, the Partnership shall not be obligated to reimburse any defaulting Underwriter on account of those expenses.
12. Research Analyst Independence . The Partnership acknowledges that the Underwriters research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Partnership and/or the offering that differ from the views of their respective investment banking divisions. Each of the WLK Parties hereby waives and releases, to the fullest extent permitted by law, any claims that any of the WLK Parties may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to any of the WLK Parties by such Underwriters investment banking divisions. Each of the WLK Parties acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
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13. No Fiduciary Duty . Each of the WLK Parties acknowledges and agrees that in connection with this offering, the sale of the Units or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters: (a) no fiduciary or agency relationship between the WLK Parties and any other person, on the one hand, and the Underwriters, on the other, exists; (b) the Underwriters are not acting as advisors, expert or otherwise, to any of the WLK Parties, including, without limitation, with respect to the determination of the public offering price of the Units, and such relationship between the WLK Parties, on the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (c) any duties and obligations that the Underwriters may have to any of the WLK Parties shall be limited to those duties and obligations specifically stated herein; and (d) the Underwriters and their respective affiliates may have interests that differ from those of the WLK Parties. Each of the WLK Parties hereby waives any claims that any of the WLK Parties may have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering.
14. Notices, etc. All statements, requests, notices and agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (Fax: (646) 834-8133), with a copy, in the case of any notice pursuant to Section 8(c) , to the Director of Litigation, Office of the General Counsel, Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019; and
(b) if to the Partnership, shall be delivered or sent by mail or facsimile transmission to the address of the Partnership set forth in the Registration Statement, Attention: L. Benjamin Ederington (Fax: (713) 629-6239).
Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Partnership shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Representatives.
15. Persons Entitled to Benefit of Agreement . This Agreement shall inure to the benefit of and be binding upon the Underwriters, the WLK Parties and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the WLK Parties contained in this Agreement shall also be deemed to be for the benefit of the directors, officers, employees and agents of each Underwriter, each affiliate of any Underwriter who has participated or is alleged to have participated in the distribution of Units as underwriters, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and (b) the indemnity agreement of the Underwriters contained in Section 8(b) of this Agreement shall be deemed to be for the benefit of the directors of the General Partner, the officers of the General Partner who have signed the Registration Statement and any person controlling the Partnership within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 15, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
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16. Survival. The respective indemnities, representations, warranties and agreements of the WLK Parties and the Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Units and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them.
17. Definition of the Terms Business Day, Affiliate and Subsidiary . For purposes of this Agreement, (a) business day means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close, and (b) affiliate and subsidiary have the meanings set forth in Rule 405 under the Securities Act.
18. Governing Law . This Agreement and any claim, controversy or dispute arising under or related to it shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict of laws principles (other than Section 5-1401 of the General Obligations Law).
19. Waiver of Jury Trial. The WLK Parties and the Underwriters hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
20. Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
21. Headings. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
[Signature Page Follows]
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If the foregoing correctly sets forth the agreement among the Partnership Parties and the Underwriters, please indicate your acceptance in the space provided for that purpose below.
Very truly yours, | ||
WESTLAKE CHEMICAL PARTNERS GP LLC | ||
By: |
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Name: | ||
Title: | ||
WESTLAKE CHEMICAL PARTNERS LP | ||
By: | Westlake Chemical Partners GP LLC, its general partner | |
By: |
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Name: | ||
Title: | ||
WESTLAKE CHEMICAL OPCO GP LLC | ||
By: |
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Name: | ||
Title: | ||
WESTLAKE CHEMICAL OPCO LP | ||
By: | Westlake Chemical OpCo GP LLC, its general partner | |
By: |
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Name: | ||
Title: |
Signature Page to Underwriting Agreement
WPT LLC | ||
By: |
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Name: | ||
Title: |
Signature Page to Underwriting Agreement
B ARCLAYS C APITAL I NC . | ||
UBS S ECURITIES LLC | ||
For themselves and as Representatives of the several Underwriters named in Schedule I hereto | ||
By B ARCLAYS C APITAL I NC . | ||
By: |
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By UBS S ECURITIES LLC |
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By: |
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By: |
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Signature Page to Underwriting Agreement
SCHEDULE I
Underwriters |
Number of
Firm Units |
Number of
Option Units |
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Barclays Capital Inc. |
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UBS Securities LLC |
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Merrill Lynch, Pierce, Fenner & Smith
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Deutsche Bank Securities Inc. |
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Morgan Stanley & Co. LLC |
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Goldman, Sachs & Co. |
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J.P. Morgan Securities LLC |
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Wells Fargo Securities, LLC |
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Total |
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SCHEDULE II
PERSONS DELIVERING LOCK-UP AGREEMENTS
Directors
James Chao
Max L. Lukens
Officers
Albert Chao
M. Steven Bender
L. Benjamin Ederington
George Mangieri
Lawrence Teel
Dave Hansen
Entities
WPT LLC
SCHEDULE III
ORALLY CONVEYED PRICING INFORMATION
Number of Units: | [] Firm Units or, if the Underwriters exercise in full their option to purchase the Option Units granted in Section 2 hereof, [] Units |
Public Offering Price: $[] per Unit
SCHEDULE IV
ISSUER FREE WRITING PROSPECTUSES ROAD SHOW MATERIALS
Insert list of certain road show materials
SCHEDULE V
ISSUER FREE WRITING PROSPECTUS
Insert list of all Issuer Free Writing Prospectuses
[None]
SCHEDULE VI
LIST OF JURISDICTIONS OF FOREIGN QUALIFICATION
Entity |
Jurisdiction of Formation |
Foreign Qualifications |
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Westlake Chemical Partners LP |
Delaware | Kentucky, Louisiana, Texas | ||
Westlake Chemical Partners GP LLC |
Delaware | Kentucky, Louisiana, Texas | ||
Westlake Chemical OpCo LP |
Delaware | Kentucky, Louisiana, Texas | ||
Westlake Chemical OpCo GP LLC |
Delaware | Kentucky, Louisiana, Texas | ||
Westlake Chemical Corporation |
Delaware | Texas | ||
Westlake International Services Corporation |
Delaware | Texas | ||
WPT LLC |
Delaware | Louisiana, Texas | ||
Westlake Petrochemicals LLC |
Delaware | Louisiana, Ohio, Washington, Texas | ||
Westlake Vinyls, Inc. |
Delaware | Alabama, Illinois, Indiana, Kentucky, Louisiana, Montana, Ohio, Pennsylvania, Tennessee, Texas, West Virginia | ||
Westlake Ethylene Pipeline Corporation |
Delaware | Texas | ||
Westlake Polymers LLC |
Delaware | California, Florida, Georgia, Illinois, Indiana, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, Washington | ||
Westlake Management Services, Inc. |
Delaware | Louisiana, Texas |
EXHIBIT A
LOCK-UP LETTER AGREEMENT
B ARCLAYS C APITAL I NC .
UBS S ECURITIES LLC
As Representatives of the several
Underwriters named in Schedule I,
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
The undersigned understands that you and certain other firms (the Underwriters ) propose to enter into an Underwriting Agreement (the Underwriting Agreement ) providing for the purchase by the Underwriters of Common Units (the Units ) representing limited partner interests ( Common Units ) of Westlake Chemical Partners LP, a Delaware limited partnership (the Partnership ), and that the Underwriters propose to reoffer the Units to the public (the Offering ).
In consideration of the execution of the Underwriting Agreement by the Underwriters, and for other good and valuable consideration, the undersigned hereby irrevocably agrees that, without the prior written consent of Barclays Capital Inc. and UBS Securities LLC, on behalf of the Underwriters, the undersigned will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any Common Units (including, without limitation, Common Units that may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission and Common Units that may be issued upon exercise of any options or warrants) or securities convertible into or exercisable or exchangeable for Common Units, (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of Common Units, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Units or other securities, in cash or otherwise, (3) make any demand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with respect to the registration of any Common Units or securities convertible into or exercisable or exchangeable for Common Units or any other securities of the Partnership, or (4) publicly disclose the intention to do any of the foregoing for a period commencing on the date hereof and ending on the 180th day after the date of the Prospectus relating to the Offering (such 180-day period, the Lock-Up Period ).
The foregoing restrictions shall not apply to any bona fide gifts, sales or other dispositions of Common Units that are made exclusively between and among the undersigned and members of the undersigneds family, or a trust the beneficiaries of which are the undersigned and/or members of the undersigneds family; provided that it
Exhibit A-1
shall be a condition to any such transfer that (i) the transferee/donee agrees to be bound by the terms of this Lock-Up Letter Agreement (including, without limitation, the restrictions set forth in the preceding sentence) to the same extent it would be bound if the transferee/donee were a party hereto, (ii) each party (donor and donee) shall not be required by law (including without limitation the disclosure requirements of the Securities Act of 1933, as amended, and the Securities and Exchange Act of 1934, as amended), to make, and shall agree to not voluntarily make, any filing or public announcement of the transfer prior to the expiration of the Lock-Up Period and (iii) the undersigned notifies Barclays Capital Inc. and UBS Securities LLC at least two business days prior to the proposed transfer.
If the undersigned is an officer or director of the Partnerships General Partner, the undersigned agrees that the foregoing provisions shall be equally applicable to any issuer-directed Units, as referred to in FINRA Rule 5131(d)(2)(A) that the undersigned may purchase in the Offering pursuant to an allocation of Units that is directed in writing by the Partnership. The provisions of this paragraph will not apply if both (a) the release or waiver is effected solely to permit a transfer not for consideration, and (b) the transferee has agreed in writing to be bound by the same terms described in this letter that are applicable to the transferor, to the extent and for the duration that such terms remain in effect at the time of the transfer.
Notwithstanding the foregoing, if (1) during the last 17 days of the Lock-Up Period, the Partnership issues an earnings release or material news or a material event relating to the Partnership occurs, or (2) prior to the expiration of the Lock-Up Period, the Partnership announces that it will release earnings results during the 16-day period beginning on the last day of the Lock-Up Period, then the restrictions imposed by this Lock-Up Letter Agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or the occurrence of the material event, unless the Representatives agree not to require such extension in writing. The undersigned hereby further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this Lock-Up Letter Agreement during the period from the date of this Lock-Up Letter Agreement to and including the 34 th day following the expiration of the Lock-Up Period, it will give notice thereof to the Partnership and will not consummate such transaction or take any such action unless it has received written confirmation from the Partnership that the Lock-Up Period (as such may have been extended pursuant to this paragraph) has expired.
In furtherance of the foregoing, the Partnership and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Lock-Up Letter Agreement.
It is understood that, if the Partnership notifies the Underwriters that it does not intend to proceed with the Offering, if the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Units, the undersigned will be released from its obligations under this Lock-Up Letter Agreement.
Exhibit A-2
The undersigned understands that the Partnership and the Underwriters will proceed with the Offering in reliance on this Lock-Up Letter Agreement.
Whether or not the Offering actually occurs depends on a number of factors, including market conditions. Any Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Partnership and the Underwriters.
[Signature page follows]
Exhibit A-3
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Letter Agreement and that, upon request, the undersigned will execute any additional documents necessary in connection with the enforcement hereof. Any obligations of the undersigned shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.
Very truly yours, | ||
By: |
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Name: | ||
Title: |
Dated:
Exhibit A-4
EXHIBIT B-1
FORM OF OPINION OF PARTNERSHIPS COUNSEL
[To be provided]
Exhibit B-1
EXHIBIT B-2
FORM OF OPINION OF GENERAL PARTNERS GENERAL COUNSEL
[To be provided]
Exhibit B-2
Exhibit 2.1
FORM OF
CONTRIBUTION AGREEMENT
BY AND BETWEEN
WPT LLC
AND
WESTLAKE CHEMICAL PARTNERS LP
DATED AS OF , 2014
CONTRIBUTION AGREEMENT
This Contribution Agreement, dated as of , 2014 (this Agreement ), is entered into by and between WPT LLC, a Delaware limited liability company ( WPT ), and Westlake Chemical Partners LP, a Delaware limited partnership (the Partnership ). The above named entities are sometimes referred to herein as a Party and collectively as the Parties .
RECITALS
WHEREAS , Westlake International Services Corporation, a Delaware corporation ( WISC ), and Westlake Chemical Partners GP LLC, a Delaware limited liability company (the General Partner ), entered into an Agreement of Limited Partnership of the Partnership, effective as of March 14, 2014 (the Original LPA ), pursuant to which WISC owns a 100% limited partner interest in the Partnership and the General Partner owns a non-economic general partner interest in the Partnership;
WHEREAS, WISC owns a 100% membership interest in the General Partner;
WHEREAS , WPT, Westlake Chemical OpCo LP, a Delaware limited partnership ( OpCo ), Westlake Chemical OpCo GP, LLC, a Delaware limited liability company and the general partner of OpCo ( OpCo GP ), and certain other Affiliates of Westlake Chemical Corporation ( Westlake ) entered into that certain Contribution Agreement dated ,2014, pursuant to which OpCo acquired ethylene crackers, pipelines, and related assets and entered into the Amended and Restated Partnership Agreement of OpCo;
WHEREAS, WPT owns a 100% membership interest in OpCo GP;
WHEREAS , each of the following actions will occur at the times specified hereafter:
1. | WISC and the General Partner will amend and restate the Original LPA by executing the A&R LPA; |
2. | WPT shall contribute, assign, transfer, convey and deliver a 6% limited partner interest in OpCo and its 100% membership interest in OpCo GP to the Partnership in exchange for the Sponsor Common Units, the Sponsor Subordinated Units and the issuance by the Partnership of the Incentive Distribution Rights to WPT; |
3. | In connection with a firm commitment underwritten offering of the Firm Units (the Offering ), the public, through the Underwriters, will contribute cash to the Partnership pursuant to the Underwriting Agreement in exchange for the Firm Units; |
4. | The Partnership shall use the proceeds of the Offering to (1) pay the Underwriters Spread and estimated expenses incurred in connection with the Offering (including the reimbursement of amounts previously paid by Westlake or its Affiliates), (2) distribute $1,000 to WISC and thereby redeem WISCs limited partner interest in the Partnership and (3) contribute the remainder of the cash from the Offering to OpCo in exchange for an additional % limited partner interest in OpCo; and |
5. | Provided that the Underwriters Over-Allotment Option is exercised, the Partnership shall contribute the net proceeds from the Over-Allotment Option to OpCo in exchange for an additional % limited partner interest in OpCo. |
WHEREAS , each of the Parties and the stockholders, members, partners, boards of directors or managers of the Parties, as the case may be, have taken all corporate, partnership, limited liability company or other action, as the case may be, required to be taken to approve the transactions contemplated by this Agreement; and
WHEREAS , the Partnership may adjust upward or downward the number of Firm Units, with corresponding adjustments to the total number of Common Units to be offered to the public through the Underwriters, in which case the Parties will make appropriate adjustments to this Agreement.
NOW THEREFORE , in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
The following defined terms will have the meaning given below:
Affiliate means, with respect to a specified Person, any other Person that directly or indirectly controls, is controlled by, or is under direct or indirect common control with such specified Person. For the purposes of this definition, control means the power to direct or cause the direction of the management and policies of a Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
A&R LPA means the First Amended and Restated Agreement of Limited Partnership of the Partnership, which will be substantially in the form attached as Appendix A to the prospectus constituting part of the Registration Statement.
Common Units has the meaning set forth in the A&R LPA.
Effective Time means the date and time of the delivery of the Firm Units and payment therefor as set forth in the Underwriting Agreement.
Firm Units means the Common Units to be sold to the Underwriters pursuant to the terms of the Underwriting Agreement, excluding the Option Units.
General Partner has the meaning set forth in the Recitals of this Agreement.
Incentive Distribution Rights has the meaning set forth in the A&R LPA.
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Offering has the meaning set forth in the Recitals of this Agreement.
OpCo has the meaning set forth in the Recitals of this Agreement.
OpCo GP has the meaning set forth in the Recitals of this Agreement.
Option Units means the Common Units subject to the Over-Allotment Option.
Original LPA has the meaning set forth in the Recitals of this Agreement.
Over-Allotment Option the Underwriters option to purchase a number of Common Units up to 15% of the Firm Units pursuant to the Underwriting Agreement.
Person means any individual, corporation, partnership, limited liability company, voluntary association, joint venture, trust, limited liability partnership, unincorporated organization, government or any agency, instrumentality or political subdivision thereof, or any other form of entity.
Registration Statement means the Registration Statement on Form S-1 filed with the Securities and Exchange Commission (Registration No. 333-195551), as amended.
Reserves Contribution has the meaning set forth in Section 2.2 hereof.
Sponsor Common Units shall mean [ ] Common Units.
Sponsor Subordinated Units shall mean [ ] subordinated units representing limited partner interests in the Partnership.
Structuring Fee means a structuring fee equal to 0.375% of the gross proceeds of the Offering payable by the Partnership to Barclays Capital Inc. and UBS Securities LLC.
Underwriters means the underwriting syndicate listed in Schedule I of the Underwriting Agreement.
Underwriters Spread means the Underwriters discount plus Structuring Fee as set forth in the Underwriting Agreement.
Underwriting Agreement means a firm commitment underwriting agreement in substantially the form attached as Exhibit 1.1 to the Registration Statement.
WISC has the meaning set forth in the Recitals of this Agreement.
WPT has the meaning set forth in the Recitals of this Agreement.
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ARTICLE II
CONTRIBUTIONS AND OTHER MATTERS
Concurrently with the Effective Time, the following capital contributions and transactions shall be completed in the order set forth below:
Section 2.1 Execution of A&R LPA.
WISC and the General Partner shall amend and restate the Original LPA by executing the A&R LPA, with such changes as WISC and the General Partner may deem necessary or advisable.
Section 2.2 Contribution of Interests in OpCo and OpCo GP.
(a.) WPT shall contribute, assign, transfer, convey and deliver a [ ]% limited partner interest (on a fully diluted basis, after giving effect to the transaction contemplated by Section 2.5) in OpCo and a 100% membership interest in OpCo GP (together the Reserves Contribution ) to the Partnership, and the Partnership hereby accepts such interests. As consideration for the Reserves Contribution, the Partnership shall issue the Sponsor Common Units, the Sponsor Subordinated Units and the Incentive Distribution Rights to WPT.
Section 2.3 Underwriter Cash Contribution.
The Parties acknowledge that the Partnership is undertaking the Offering, and the public through the Underwriters, pursuant to the Underwriting Agreement, will make a capital contribution to the Partnership in cash in an amount determined pursuant to the terms of the Underwriting Agreement in exchange for the issuance by the Partnership to the Underwriters of the Firm Units.
Section 2.4 Execution of Registration Rights Agreement .
WPT and the Partnership shall execute a Registration Rights Agreement in substantially the form attached as Exhibit 4.14 to the Registration Statement.
Section 2.5 Use of Offering Proceeds
The Partnership shall, at the Effective Time, use the proceeds from the Firm Units to (1) pay the Underwriters Spread and estimated expenses incurred in connection with the Offering, (2) distribute $1,000 to WISC, thereby redeeming WISCs limited partner interest in the Partnership and (3) contribute the remainder of the cash from the Firm Units to OpCo in exchange for an additional [ ]% limited partner interest in OpCo such that the Partnerships limited partner interest in OpCo will be 10% following the Offering.
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Section 2.6 Use of Proceeds from Over-Allotment Option.
If the Underwriters Over-Allotment Option is exercised, the Partnership shall contribute the net proceeds from the Over-Allotment Option to OpCo in exchange for additional [ ]% limited partner interest in OpCo per million dollars of gross proceeds from the exercise of the Over-Allotment Option.
ARTICLE III
MISCELLANEOUS
Section 3.1 Further Assurances.
In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
Section 3.2 Successors and Assigns.
No Party to this Agreement may assign or otherwise transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the other Parties hereto, and any purported transfer in violation hereof shall be null and void. This Agreement shall be binding upon, and inure the benefit of, permitted successors and assigns.
Section 3.3 No Third Party Rights.
The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no third party shall have the right, separate and apart from the Parties to this Agreement, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.
Section 3.4 Severability.
If any provision of this Agreement shall be finally determined to be unenforceable, illegal or unlawful, such provision shall, so long as the economic and legal substance of the transactions contemplated hereby is not affected in any materially adverse manner as to any Party, be deemed severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
Section 3.5 Entire Agreement.
This Agreement constitutes the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.
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Section 3.6 Amendment or Modification .
This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto. Each such instrument shall be reduced to writing and shall be designated on its face an Amendment or an Addendum to this Agreement.
Section 3.7 Construction.
All Article and Section headings in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any of the provisions hereof. All references herein to Articles and Sections shall, unless the context requires a different construction, be deemed to be references to the Articles and Sections of this Agreement. The words hereof, herein and hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, and not to any particular provision of this Agreement. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The use herein of the word including following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as without limitation, but not limited to, or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter.
Section 3.8 Counterparts.
This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.
Section 3.9 Deed; Bill of Sale; Assignment.
To the extent required and permitted by applicable law, this Agreement shall also constitute a deed, bill of sale or assignment of the assets and interests referenced herein.
Section 3.10 Applicable Law.
This Agreement shall be subject to and governed by the laws of the State of Texas, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Each of the Parties hereby agrees: (i) to submit to the exclusive jurisdiction of any state or federal court sitting in Houston, Texas in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) that all claims in respect of any such action or proceeding may be heard and determined in any such court, (iii) that such Party will not bring any action or proceeding arising out of or relating to this Agreement in any other court, and (iv) that such Party waives any defense of inconvenient forum to the maintenance of any such action or proceeding, and waives any bond, surety or other security that might be required of any other Party with respect to any such action or proceeding.
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IN WITNESS WHEREOF , this Agreement has been duly executed by the Parties as of the date first written above.
WPT LLC | ||
By: |
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Name: | ||
Title: | ||
WESTLAKE CHEMICAL PARTNERS LP | ||
By: | Westlake Chemical Partners GP LLC, its general partner | |
By: |
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Name: | ||
Title: |
S IGNATURE P AGE
C ONTRIBUTION A GREEMENT
Exhibit 2.2
FORM OF
CONTRIBUTION AGREEMENT
by and among
WESTLAKE VINYLS, INC.
WESTLAKE PETROCHEMICALS LLC
WPT LLC
WESTLAKE ETHYLENE PIPELINE CORPORATION
WESTLAKE LONGVIEW CORPORATION
WESTLAKE CHEMICAL OPCO LP
WESTLAKE CHEMICAL CORPORATION
and
WESTLAKE CHEMICAL OPCO GP LLC
Dated as of [ ] [ ], 2014
CONTRIBUTION AGREEMENT
This Contribution Agreement, dated as of [ ] [ ], 2014 (this Agreement ), is by and among Westlake Vinyls, Inc., a Delaware corporation ( Vinyls ), Westlake Petrochemicals LLC, a Delaware limited liability company ( Petrochemicals ), WPT LLC, a Delaware limited liability company ( WPT , and together with Vinyls and Petrochemicals, the Contributors ), Westlake Ethylene Pipeline Corporation, a Delaware corporation ( Pipeline ), Westlake Longview Corporation, a Delaware corporation ( Longview ), Westlake Chemical OpCo LP, a Delaware limited partnership ( OpCo ), and Westlake Chemical OpCo GP LLC, a Delaware limited liability company and general partner of OpCo (the General Partner ). The above named entities are sometimes hereinafter referred to individually as a Party and collectively as the Parties . Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in Article I .
RECITALS
WHEREAS , WPT and the General Partner have formed OpCo pursuant to the Delaware Revised Uniform Limited Partnership Act (the Delaware Partnership Act ) for any lawful purpose;
WHEREAS , WPT and the General Partner deem it advisable and in the best interests of OpCo to acquire, own, operate and develop ethylene crackers, pipelines and related assets;
WHEREAS , in order to accomplish the objectives and purposes in the preceding recital, the following actions have been taken in the following order prior to the date hereof:
1. WPT formed the General Partner under the terms of the Delaware Limited Liability Act (the Delaware LLC Act ) and made an initial capital contribution in exchange for all of the limited liability company interests in the General Partner;
2. WPT and the General Partner formed OpCo under the terms of the Delaware Partnership Act and WPT contributed $1,000 in exchange for a 100% limited partner interest in OpCo (the Initial LP Interest ) and the General Partner was issued a non-economic general partner interest in OpCo;
WHEREAS , at the Closing, each of the matters provided for in Article II will occur in accordance with its respective terms;
WHEREAS , the stockholders, members or partners of the Parties have taken all corporate, limited liability company and partnership action, as the case may be, required to approve the transactions contemplated by this Agreement.
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NOW, THEREFORE , in consideration of the mutual covenants, representations, warranties and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms below:
Amended and Restated Partnership Agreement means that certain Amended and Restated Agreement of Limited Partnership of OpCo, dated as of the date of this Agreement.
Calvert City Lease means that certain Site Lease Agreement dated as of the date of this Agreement by and between Vinyls, as lessor, and OpCo, as lessee.
Closing means the closing of the transactions contemplated by this Agreement.
Effective Time means 12:01 a.m. Central Time on the date of the Closing.
Lake Charles Lease means that certain Site Lease Agreement dated as of the date of this Agreement by and between Petrochemicals, as lessor, and OpCo, as lessee.
OpCo Interests means limited partnership interests in OpCo.
Original Partnership Agreement means that certain Agreement of Limited Partnership of OpCo, dated as of May 6, 2014.
Related Party Leases means the Calvert City Lease and the Lake Charles Lease.
ARTICLE II
CONTRIBUTIONS, ETC.
The following shall be completed immediately following the Effective Time in the order set forth herein:
Section 2.1 Contribution of Calvert City Cracker to OpCo . Vinyls shall contribute certain assets, including an ethylene cracker in Calvert City, Kentucky and certain assets related thereto, but expressly excluding the land underlying such assets, to OpCo, and OpCo shall accept such contribution (the Calvert City Contribution ), pursuant to a Conveyance Excluding Land, substantially in the form attached hereto as Exhibit 2.1(a) and a Bill of Sale and Assignment, substantially in the form attached hereto as Exhibit 2.1(b) . In consideration for the Calvert City Contribution, OpCo shall (i) issue OpCo Interests to Vinyls in accordance with Section 2.6, (ii) assume notes associated with the property contributed and (iii) distribute $____ to Vinyls, which, to the maximum extent possible, shall be treated as reimbursement of preformation capital expenditures within the meaning of Treasury Regulation Section 1.707-4(d).
Section 2.2 Contribution of Petro 1 Cracker to OpCo . Petrochemicals shall contribute certain assets, including an ethylene cracker in Lake Charles, Louisiana and certain assets related thereto, but expressly excluding the land underlying such assets, to OpCo, and OpCo shall accept such contribution (the Petro 1 Contribution ), pursuant to a Conveyance Excluding Land, substantially in the form attached hereto as Exhibit 2.2(a) and a Bill of Sale and Assignment, substantially in the form attached hereto as Exhibit 2.2(b) . In consideration for the Petro 1 Contribution, OpCo shall (i) issue OpCo Interests to Petrochemicals in accordance with Section 2.6, (ii) assume notes associated with the property contributed and (iii) distribute $____ to Petrochemicals, which, to the maximum extent possible, shall be treated as reimbursement of preformation capital expenditures within the meaning of Treasury Regulation Section 1.707-4(d).
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Section 2.3 Contribution of Petro 2 Cracker to OpCo . WPT shall contribute certain assets, including an ethylene cracker in Lake Charles, Louisiana and certain assets related thereto, but expressly excluding the land underlying such assets, to OpCo, and OpCo shall accept such contribution (the Petro 2 Contribution , and together with the Calvert City Contribution and the Petro 1 Contribution, the Asset Contributions ), pursuant to a Conveyance Excluding Land, substantially in the form attached hereto as Exhibit 2.3(a) and a Bill of Sale and Assignment, substantially in the form attached hereto as Exhibit 2.3(b) . In consideration for the Petro 2 Contribution, OpCo shall (i) issue OpCo Interests to WPT in accordance with Section 2.6, (ii) assume notes associated with the property contributed and (iii) distribute $____ to WPT, which, to the maximum extent possible, shall be treated as reimbursement of preformation capital expenditures within the meaning of Treasury Regulation Section 1.707-4(d).
Section 2.4 Entry into Related Party Leases . (a) Vinyls and OpCo shall enter into the Calvert City Lease, substantially in the form attached hereto as Exhibit 2.4(a) and (b) Petrochemicals and OpCo shall enter into the Lake Charles Lease, substantially in the form attached hereto as Exhibit 2.4(b) . Pursuant to the terms of the Related Party Leases, OpCo shall pay a base rental of $1 per year per lease.
Section 2.5 Merger of Pipeline into OpCo . Pipeline will merge with and into OpCo, where OpCo will be the surviving entity (the Merger ). The Merger is contingent on the execution of the agreements and the completion of the corresponding actions described in Sections 2.1 through 2.4 hereof. Upon the completion of such actions, the Merger shall become effective. Subject to the completion of the Merger, the rights, privileges, powers and franchises of Pipeline shall be vested in OpCo, and all debts, liabilities and duties of Pipeline shall become the debts, liabilities and duties of OpCo, and OpCo, shall (i) issue OpCo Interests to Westlake Longview Corporation in accordance with Section 2.6 and (ii) distribute $____ to Westlake Longview Corporation, which, to the maximum extent possible, shall be treated as reimbursement of preformation capital expenditures within the meaning of Treasury Regulation Section 1.707-4(d). This Agreement shall serve as the agreement of merger with respect to the Merger.
Section 2.6 Issuance of OpCo Interests . In consideration for the Asset Contributions and the Merger, OpCo shall issue to each of the Contributors and Longview, the number of OpCo Interests set forth opposite such entitys name on Exhibit 2.6 hereto, free and clear of any liens or any restrictions on the right to vote, sell, transfer or otherwise dispose of such OpCo Interests, other than restrictions contained in the Amended and Restated Partnership Agreement and as set forth under applicable law.
Section 2.7 Execution of the Amended and Restated Partnership Agreement . OpCo, Vinyls, Petrochemicals, WPT, the General Partner, and Longview shall amend and restate the Original Partnership Agreement by executing the Amended and Restated Partnership Agreement, substantially in the form attached hereto as Exhibit 2.7 .
ARTICLE III
FURTHER ASSURANCES
In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
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ARTICLE IV
EFFECTIVE TIME
Section 4.1 Order of Completion of Transactions . The transactions provided for in Article II of this Agreement shall be completed immediately following the Effective Time in the order set forth therein.
Section 4.2 Effective Time . Notwithstanding anything contained in this Agreement to the contrary, none of the provisions of Article II or Article III shall be operative or have any effect until the Effective Time, at which time all such provisions shall be effective and operative in accordance with Section 4.1 without further action by any Party.
ARTICLE V
MISCELLANEOUS
Section 5.1 Headings; References; Interpretation . All Article and Section headings in this Agreement are for convenience only and shall not be deemed to control or affect the meaning or construction of any of the provisions hereof. The words hereof, herein and hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, including, without limitation, all Schedules and Exhibits attached hereto, and not to any particular provision of this Agreement. All references herein to Articles, Sections, Schedules and Exhibits shall, unless the context requires a different construction, be deemed to be references to the Articles and Sections of this Agreement and the Schedules and Exhibits attached hereto, and all such Schedules and Exhibits attached hereto are hereby incorporated herein and made a part hereof for all purposes. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The use herein of the word including following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as without limitation, but not limited to or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter.
Section 5.2 Assignment . No Party to this Agreement may assign or otherwise transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the other Parties hereto, and any purported transfer in violation hereof shall be null and void. This Agreement shall be binding upon, and inure the benefit of, permitted successors and assigns.
Section 5.3 Rights of Third Parties . The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no third party shall have the right, separate and apart from the Parties to this Agreement, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.
Section 5.4 Counterparts . This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.
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Section 5.5 Choice of Law; Submission to Jurisdiction . This Agreement shall be subject to and governed by the laws of the State of Texas, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Each of the Parties hereby agrees: (i) to submit to the exclusive jurisdiction of any state or federal court sitting in Houston, Texas in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) that all claims in respect of any such action or proceeding may be heard and determined in any such court, (iii) that such Party will not bring any action or proceeding arising out of or relating to this Agreement in any other court and (iv) that such Party waives any defense of inconvenient forum to the maintenance of any such action or proceeding, and waives any bond, surety or other security that might be required of any other Party with respect to any such action or proceeding.
Section 5.6 Severability . If any provision of this Agreement shall be finally determined to be unenforceable, illegal or unlawful, such provision shall, so long as the economic and legal substance of the transactions contemplated hereby is not affected in any materially adverse manner as to any Party, be deemed severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
Section 5.7 Amendment or Modification . This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto. Each such written agreement shall designate on its face that it is an Amendment or an Addendum to this Agreement.
Section 5.8 Entire Agreement . This Agreement (including any Exhibits hereto) constitute the entire agreement of the Parties relating to the matters contained herein and therein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein and therein.
Section 5.9 Deed; Bill of Sale; Assignment . To the extent required and permitted by applicable law, this Agreement shall also constitute a deed, bill of sale or assignment of the assets and interests referenced herein.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties to this Agreement have caused it to be duly executed as of the date first above written.
WESTLAKE VINYLS, INC | ||
By: | ||
Name: | ||
Title: | ||
WESTLAKE PETROCHEMICALS LLC | ||
By: | ||
Name: | ||
Title: | ||
WPT LLC | ||
By: | ||
Name: | ||
Title: | ||
WESTLAKE ETHYLENE PIPELINE CORPORATION | ||
By: | ||
Name: | ||
Title: |
Signature Page to Contribution Agreement
WESTLAKE LONGVIEW CORPORATION | ||
By: | ||
Name: | ||
Title: | ||
WESTLAKE CHEMICAL CORPORATION | ||
By: | ||
Name: | ||
Title: | ||
WESTLAKE CHEMICAL OPCO LP | ||
By: Westlake Chemical OpCo GP LLC, its general partner | ||
By: | ||
Name: | ||
Title: | ||
WESTLAKE CHEMICAL OPCO GP LLC | ||
By: | ||
Name: | ||
Title: |
Signature Page to Contribution Agreement
Exhibit 4.14
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this Agreement ) is made and entered into as of [ ], 2014, by and between Westlake Chemical Partners LP, a Delaware limited partnership (the Partnership ), and WPT LLC, a Delaware limited liability company ( WPT ).
WHEREAS, this Agreement is made in connection with the transactions contemplated by the Contribution Agreement by and between the Partnership and WPT dated as of [ ], 2014 (the Contribution Agreement ); and
WHEREAS, the Partnership has agreed to provide certain registration and other rights set forth in this Agreement for the benefit of WPT pursuant to the Contribution Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party hereto, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions . Capitalized terms used herein without definition shall have the meanings given to them in the First Amended and Restated Agreement of Limited Partnership of the Partnership dated [ ], 2014, as amended from time to time (the Partnership Agreement ). The terms set forth below are used herein as so defined:
Affiliate means, with respect to a specified Person, any other Person that directly or indirectly controls, is controlled by, or is under direct or indirect common control with such specified Person. For the purposes of this definition, control means the power to direct or cause the direction of the management and policies of a Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
Agreement has the meaning given to such term in the introductory paragraph.
Commission has the meaning given to such term in Section 1.02 .
Contribution Agreement has the meaning given to such term in the recitals of this Agreement.
Effectiveness Period has the meaning given to such term in Section 2.01 .
Exchange Act has the meaning given to such term in Section 2.07(a) .
General Partner means Westlake Chemical Partners GP LLC, as the general partner of the Partnership.
Holder means the record holder of any Registrable Securities.
Losses has the meaning given to such term in Section 2.07(a) .
Managing Underwriter(s) means, with respect to any Underwritten Offering, the book-running lead manager(s) of such Underwritten Offering.
Notice has the meaning given to such term in Section 2.01 .
Partnership has the meaning given to such term in the introductory paragraph.
Person means any individual, corporation, partnership, limited liability company, voluntary association, joint venture, trust, limited liability partnership, unincorporated organization, government or any agency, instrumentality or political subdivision thereof, or any other form of entity.
Registrable Securities means the (i) Common Units issued (or issuable) to WPT pursuant to the Contribution Agreement; (ii) Subordinated Units; and (iii) Common Units issuable upon conversion of the Subordinated Units or the Combined Interests pursuant to the terms of the Partnership Agreement, which Registrable Securities are subject to the rights provided herein until such rights terminate pursuant to the provisions hereof.
Registration Expenses means all expenses (other than Selling Expenses) incident to the Partnerships performance under or compliance with this Agreement to effect the registration of Registrable Securities on a Registration Statement pursuant to Section 2.01 and/or in connection with an Underwritten Offering pursuant to Section 2.02(a) , and the disposition of such Registrable Securities, including, without limitation, all registration, filing, securities exchange listing and securities exchange fees, all registration, filing, qualification and other fees and expenses of complying with securities or blue sky laws, fees of the Financial Industry Regulatory Authority, fees of transfer agents and registrars, all word processing, duplicating and printing expenses, any transfer taxes and the fees and disbursements of counsel and independent public accountants for the Partnership, including the expenses of any special audits or cold comfort letters required by or incident to such performance and compliance.
Registration Statement has the meaning given to such term in Section 2.01 .
Securities Act has the meaning given to such term in Section 1.02 .
Selling Expenses means all underwriting fees, discounts and selling commissions applicable to the sale of Registrable Securities.
Selling Holder means a Holder who is selling Registrable Securities pursuant to a Registration Statement.
Shelf Registration Statement has the meaning given to such term in Section 2.01 .
Testing-the-Waters Communication means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act.
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Underwritten Offering means an offering (including an offering pursuant to a Registration Statement) in which Registrable Securities are sold to an underwriter on a firm commitment basis for reoffering to the public or an offering that is a bought deal with one or more investment banks.
WPT has the meaning given to such term in the introductory paragraph.
Written Testing-the-Waters Communication means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act.
Section 1.02. Registrable Securities . Any Registrable Security will cease to be a Registrable Security (a) at the time a Registration Statement covering such Registrable Security has been declared effective by the Securities and Exchange Commission (the Commission ), or otherwise has become effective, and such Registrable Security has been sold or disposed of pursuant to such Registration Statement; (b) at the time such Registrable Security has been disposed of pursuant to Rule 144 (or any similar provision then in effect under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the Securities Act )); (c) if such Registrable Security is held by the Partnership or one of its subsidiaries; (d) at the time such Registrable Security has been sold in a private transaction in which the transferors rights under this Agreement are not assigned to the transferee of such securities; or (e) if such Registrable Security has been sold in a private transaction in which the transferors rights under this Agreement are assigned to the transferee and such transferee is not an Affiliate of the the General Partner, at the time that is two years following the later of: (i) if the Registrable Security is a Subordinated Unit, the conversion of the Subordinated Units into Common Units and (ii) the transfer of such Registrable Security to such transferee.
ARTICLE II
REGISTRATION RIGHTS
Section 2.01. Demand Registration . Upon the written request (a Notice ) by WPT or by any other Holder(s) owning at least [ ] percent ( %) of the then-outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04 ), the Partnership shall file with the Commission, as soon as reasonably practicable, but in no event more than 90 days following the receipt of the Notice, a registration statement (each, a Registration Statement ) under the Securities Act providing for the resale of the Registrable Securities (which may, at the option of the Holders giving such Notice, be a registration statement under the Securities Act that provides for the resale of the Registrable Securities pursuant to Rule 415 from time to time by the Holders (a Shelf Registration Statement )). The Partnership shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as soon as reasonably practicable after the initial filing of the Registration Statement. Any Registration Statement shall provide for the resale pursuant to any method or combination of methods legally available to, and requested by, the Holders of any and all Registrable Securities covered by such Registration Statement. The Partnership shall use its commercially reasonable efforts to cause each Registration Statement filed pursuant to this Section 2.01 to be continuously effective, supplemented and amended to the extent necessary to ensure that it is available for the resale of all Registrable Securities by the Holders until all Registrable Securities covered by such
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Registration Statement have ceased to be Registrable Securities (the Effectiveness Period ). Each Registration Statement when effective (and the documents incorporated therein by reference) shall comply as to form in all material respects with all applicable requirements of the Securities Act and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. There shall be no limit on the number of Registration Statements that may be required by the Holders hereunder.
Section 2.02. Underwritten Offerings .
(a) Request for Underwritten Offering . In the event that one or more Holders collectively elect to dispose of at least [ ] percent ([ ]%) of the then-outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04 ) under a Registration Statement pursuant to an Underwritten Offering, the Partnership shall, upon written request by such Holders, retain underwriters in order to permit such Holders to effect such sale through an Underwritten Offering. The obligation of the Partnership to retain underwriters shall include entering into an underwriting agreement in customary form with the Managing Underwriter(s), which shall include customary indemnities in favor of, and taking all reasonable actions as are requested by, the Managing Underwriter(s) to expedite or facilitate the disposition of such Registrable Securities. The Partnership shall, upon request of the Holders, cause its management to participate in a roadshow or similar marketing effort on behalf of the Holders.
(b) Limitation on Underwritten Offerings . Notwithstanding Section 2.02(a) above, in no event shall the Partnership be required under Section 2.02(a) to participate in more than two Underwritten Offerings in any twelve-month period.
(c) General Procedures . In connection with any Underwritten Offering under this Agreement, the Holders of a majority of the Registrable Securities being sold in such Underwritten Offering shall be entitled, subject to the Partnerships consent (which is not to be unreasonably withheld), to select the Managing Underwriter(s). In connection with any Underwritten Offering under this Agreement, each Selling Holder and the Partnership shall be obligated to enter into an underwriting agreement that contains such representations and warranties, covenants, indemnities and other rights and obligations as are customary in underwriting agreements for firm commitment offerings of securities. No Selling Holder may participate in such Underwritten Offering unless such Selling Holder agrees to sell its Registrable Securities on the basis provided in such underwriting agreement and completes and executes all questionnaires, powers of attorney, indemnities and other documents reasonably required under the terms of such underwriting agreement. Each Selling Holder may, at its option, require that any or all of the representations and warranties by, and the other agreements on the part of, the Partnership to and for the benefit of such underwriters also be made to and for such Selling Holders benefit and that any or all of the conditions precedent to the obligations of such underwriters under such underwriting agreement also be conditions precedent to such Selling Holders obligations. If any Selling Holder disapproves of the terms of an Underwritten Offering, such Selling Holder may elect to withdraw from such Underwritten Offering by notice to the Partnership and the Managing Underwriter(s); provided, however , that such withdrawal must be made at a time prior to the time of pricing of such Underwritten Offering. No such withdrawal shall affect the Partnerships obligation to pay Registration Expenses.
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Section 2.03. Delay Rights . If the General Partner determines that the Partnerships compliance with its obligations under this Article II would be materially detrimental to the Partnership and its Partners because such registration would (a) materially interfere with a significant acquisition, reorganization, financing or other similar transaction involving the Partnership, (b) require premature disclosure of material information that the Partnership has a bona fide business purpose for preserving as confidential or (c) render the Partnership unable to comply with applicable securities laws, then the Partnership shall have the right to postpone compliance with its obligations under this Article II for a period of not more than six months, provided, that such right pursuant to this Section 2.03 may not be utilized more than twice in any twelve-month period.
Section 2.04. Sale Procedures . In connection with its obligations under this Article II , the Partnership will, as expeditiously as possible:
(a) prepare and file with the Commission such amendments and supplements to each Registration Statement and the prospectus used in connection therewith as may be necessary to keep each Registration Statement effective for the Effectiveness Period and as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement;
(b) if a prospectus supplement will be used in connection with the marketing of an Underwritten Offering and the Managing Underwriter(s) notifies the Partnership in writing that, in the sole judgment of such Managing Underwriter(s), inclusion of detailed information in such prospectus supplement is of material importance to the success of the Underwritten Offering of such Registrable Securities, use its commercially reasonable efforts to include such information in such prospectus supplement;
(c) furnish to each Selling Holder (i) as far in advance as reasonably practicable before filing a Registration Statement or any supplement or amendment thereto, upon request, copies of reasonably complete drafts of all such documents proposed to be filed (including exhibits and each document incorporated by reference therein to the extent then required by the rules and regulations of the Commission), and provide each such Selling Holder the opportunity to object to any information pertaining to such Selling Holder and its plan of distribution that is contained therein and make the corrections reasonably requested by such Selling Holder with respect to such information prior to filing a Registration Statement or supplement or amendment thereto, and (ii) such number of copies of such Registration Statement and the prospectus included therein and any supplements and amendments thereto as such Persons may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities covered by such Registration Statement;
(d) if applicable, use its commercially reasonable efforts to register or qualify the Registrable Securities covered by a Registration Statement under the securities or blue sky laws of such jurisdictions as the Selling Holders or, in the case of an Underwritten Offering, the Managing Underwriter(s), shall reasonably request; provided , however , that the Partnership will not be required to qualify generally to transact business in any jurisdiction where it is not then required to so qualify or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject;
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(e) promptly notify each Selling Holder and each underwriter, at any time when a prospectus is required to be delivered under the Securities Act, of (i) the filing of a Registration Statement or any prospectus or prospectus supplement to be used in connection therewith, or any amendment or supplement thereto, and, with respect to such Registration Statement or any post-effective amendment thereto, when the same has become effective; and (ii) any written comments from the Commission with respect to any filing referred to in clause (i) hereof and any written request by the Commission for amendments or supplements to a Registration Statement or any prospectus or prospectus supplement thereto;
(f) immediately notify each Selling Holder and each underwriter, at any time when a prospectus is required to be delivered under the Securities Act, of (i) the happening of any event as a result of which the prospectus or prospectus supplement contained in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (in the case of the prospectus contained therein, in the light of the circumstances under which a statement is made); (ii) the issuance or threat of issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement, or the initiation of any proceedings for that purpose; or (iii) the receipt by the Partnership of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue sky laws of any jurisdiction. Following the provision of such notice, the Partnership agrees to, as promptly as practicable, amend or supplement the prospectus or prospectus supplement or take other appropriate action so that the prospectus or prospectus supplement does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading in the light of the circumstances then existing and to take such other commercially reasonable action as is necessary to remove a stop order, suspension, threat thereof or proceedings related thereto;
(g) upon request and subject to appropriate confidentiality obligations, furnish to each Selling Holder copies of any and all transmittal letters or other correspondence with the Commission or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to any offering of Registrable Securities;
(h) in the case of an Underwritten Offering, furnish upon request, (i) an opinion of counsel for the Partnership dated the date of the closing under the underwriting agreement and (ii) a cold comfort letter, dated the pricing date of such Underwritten Offering (to the extent available) and a letter of like kind dated the date of the closing under the underwriting agreement, in each case, signed by the independent public accountants who have certified the Partnerships financial statements included or incorporated by reference into the applicable registration statement, and each of the opinion and the cold comfort letter shall be in customary form and covering substantially the same matters with respect to such registration statement (and the prospectus and any prospectus supplement included therein) as have been customarily covered in opinions of issuers counsel and in accountants letters delivered to the underwriters in Underwritten Offerings of securities by the Partnership and such other matters as such underwriters and Selling Holders may reasonably request;
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(i) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(j) make available to the appropriate representatives of the Managing Underwriter(s) and Selling Holders access to such information and Partnership personnel as is reasonable and customary to enable such parties to establish a due diligence defense under the Securities Act;
(k) cause all Registrable Securities registered pursuant to this Agreement to be listed on each securities exchange or nationally recognized quotation system on which similar securities issued by the Partnership are then listed;
(l) use its commercially reasonable efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Partnership to enable the Selling Holders to consummate the disposition of the Registrable Securities;
(m) provide a transfer agent and registrar for all Registrable Securities covered by a Registration Statement not later than the effective date of such registration statement; and
(n) enter into customary agreements and take such other actions as are reasonably requested by the Selling Holders or the underwriters, if any, in order to expedite or facilitate the disposition of the Registrable Securities.
Each Selling Holder, upon receipt of notice from the Partnership of the happening of any event of the kind described in subsection (f) of this Section 2.04 , shall forthwith discontinue disposition of the Registrable Securities by means of a prospectus or prospectus supplement until such Selling Holders receipt of the copies of the supplemented or amended prospectus contemplated by subsection (f) of this Section 2.04 or until it is advised in writing by the Partnership that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings incorporated by reference in the prospectus.
Section 2.05. Cooperation by Holders . The Partnership shall have no obligation to include in a Registration Statement, or in an Underwritten Offering pursuant to Section 2.02(a) , Registrable Securities of a Selling Holder who has failed to timely furnish such information that the Partnership determines, after consultation with counsel, is reasonably required in order for the Registration Statement or prospectus supplement, as applicable, to comply with the Securities Act.
Section 2.06. Expenses . The Partnership will pay all reasonable Registration Expenses, including in the case of an Underwritten Offering, regardless of whether any sale is made in such Underwritten Offering. Each Selling Holder shall pay all Selling Expenses in connection with any sale of its Registrable Securities hereunder. In addition, except as otherwise provided in Section 2.07 , the Partnership shall not be responsible for legal fees incurred by Holders in connection with the exercise of such Holders rights hereunder.
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Section 2.07. Indemnification .
(a) By the Partnership . In the event of a registration of any Registrable Securities under the Securities Act pursuant to this Agreement, the Partnership will indemnify and hold harmless each Selling Holder participating therein, its directors, officers, employees and agents, and each Person, if any, who controls such Selling Holder within the meaning of the Securities Act and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the Exchange Act ), and its directors, officers, employees or agents, against any losses, claims, damages, expenses or liabilities (including reasonable attorneys fees and expenses) (collectively, Losses ), joint or several, to which such Selling Holder, director, officer, employee, agent or controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Losses (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact (in the case of any prospectus or any Written Testing-the-Waters Communication, in the light of the circumstances under which such statement is made) contained in any Written Testing-the-Waters Communication, a Registration Statement, any preliminary prospectus or prospectus supplement, free writing prospectus or final prospectus or prospectus supplement contained therein, or any amendment or supplement thereof, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus or any Written Testing-the-Waters Communication, in the light of the circumstances under which they were made) not misleading, and will reimburse each such Selling Holder, its directors, officers, employee and agents, and each such controlling Person for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such Loss or actions or proceedings as such expenses are incurred; provided, however , that the Partnership will not be liable in any such case if and to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission so made in conformity with information furnished by such Selling Holder, its directors, officers, employees and agents or such controlling Person in writing specifically for use in any Written Testing-the-Waters Communication, a Registration Statement, or prospectus or any amendment or supplement thereto, as applicable. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Selling Holder or any such directors, officers, employees agents or controlling Person, and shall survive the transfer of such securities by such Selling Holder.
(b) By Each Selling Holder . Each Selling Holder agrees severally and not jointly to indemnify and hold harmless the Partnership, its directors, officers, employees and agents and each Person, if any, who controls the Partnership within the meaning of the Securities Act or of the Exchange Act, and its directors, officers, employees and agents, to the same extent as the foregoing indemnity from the Partnership to the Selling Holders, but only with respect to information regarding such Selling Holder furnished in writing by or on behalf of such Selling Holder expressly for inclusion in any Written Testing-the-Waters Communication, a Registration Statement, any preliminary prospectus or prospectus supplement, free writing prospectus or final prospectus or prospectus supplement contained therein, or any amendment or supplement thereof; provided, however , that the liability of each Selling Holder shall not be greater in amount than the dollar amount of the proceeds (net of any Selling Expenses) received by such Selling Holder from the sale of the Registrable Securities giving rise to such indemnification.
8
(c) Notice . Promptly after receipt by an indemnified party hereunder of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party hereunder, notify the indemnifying party in writing thereof, but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to any indemnified party other than under this Section 2.07 . In any action brought against any indemnified party, the indemnified party shall notify the indemnifying party of the commencement thereof. The indemnifying party shall be entitled to participate in and, to the extent it shall wish, to assume and undertake the defense thereof with counsel reasonably satisfactory to such indemnified party and, after notice from the indemnifying party to such indemnified party of its election so to assume and undertake the defense thereof, the indemnifying party shall not be liable to such indemnified party under this Section 2.07 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation and of liaison with counsel so selected; provided, however , that, (i) if the indemnifying party has failed to assume the defense or employ counsel reasonably acceptable to the indemnified party or (ii) if the defendants in any such action include both the indemnified party and the indemnifying party and counsel to the indemnified party shall have concluded that there may be reasonable defenses available to the indemnified party that are different from or additional to those available to the indemnifying party, or if the interests of the indemnified party reasonably may be deemed to conflict with the interests of the indemnifying party, then the indemnified party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the reasonable expenses and fees of such separate counsel and other reasonable expenses related to such participation to be reimbursed by the indemnifying party as incurred. Notwithstanding any other provision of this Agreement, no indemnified party shall settle any action brought against it with respect to which it is entitled to indemnification hereunder without the consent of the indemnifying party, unless the settlement thereof imposes no liability or obligation on, and includes a complete and unconditional release from all liability of, the indemnifying party.
(d) Contribution . If the indemnification provided for in this Section 2.07 is held by a court or government agency of competent jurisdiction to be unavailable to any indemnified party or is insufficient to hold them harmless in respect of any Losses, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Loss in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of such indemnified party on the other in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations; provided, however , that in no event shall any Selling Holder be required to contribute an aggregate amount in excess of the dollar amount of proceeds (net of Selling Expenses) received by such Selling Holder from the sale of Registrable Securities giving rise to such indemnification. The relative fault of the indemnifying party on the one hand and the indemnified party on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact has been made by, or relates to, information supplied by such party, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this paragraph were to be determined by pro rata allocation or by any other method of allocation that does not take account of the equitable
9
considerations referred to herein. The amount paid by an indemnified party as a result of the Losses referred to in the first sentence of this paragraph shall be deemed to include any legal and other expenses reasonably incurred by such indemnified party in connection with investigating or defending any Loss that is the subject of this paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who is not guilty of fraudulent misrepresentation.
(e) Other Indemnification . The provisions of this Section 2.07 shall be in addition to any other rights to indemnification or contribution that an indemnified party may have pursuant to law, equity, contract or otherwise.
Section 2.08. Rule 144 Reporting . With a view to making available the benefits of certain rules and regulations of the Commission that may permit the sale of the Registrable Securities to the public without registration, the Partnership agrees to use its commercially reasonable efforts to:
(a) make and keep public information regarding the Partnership available, as those terms are understood and defined in Rule 144 under the Securities Act, at all times from and after the date hereof;
(b) file with the Commission in a timely manner all reports and other documents required of the Partnership under the Exchange Act at all times from and after the date hereof; and
(c) so long as a Holder owns any Registrable Securities, unless otherwise available via EDGAR, furnish to such Holder forthwith upon request a copy of the most recent annual or quarterly report of the Partnership, and such other reports and documents so filed as such Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing such Holder to sell any such securities with out registration.
Section 2.09. Transfer or Assignment of Registration Rights . The rights to cause the Partnership to register Registrable Securities granted to a Holder by the Partnership under this Article II may be transferred or assigned by such Holder to one or more transferee(s) or assignee(s) of such Registrable Securities (or Subordinated Units prior to conversion); provided, however , that (a) unless such transferee or assignee is an Affiliate of WPT, each such transferee or assignee holds Registrable Securities (or Subordinated Units prior to conversion) representing at least [ ] percent ([ ]%) of the then-outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04 ), (b) the Partnership is given written notice prior to any said transfer or assignment, stating the name and address of each such transferee and identifying the Registrable Securities with respect to which such registration rights are being transferred or assigned and (c) each such transferee agrees to be bound by this Agreement.
Section 2.10. Restrictions on Public Sale by Holders of Registrable Securities . WPT and any other Holder(s) who, along with its Affiliates, holds at least [ ] percent ([ ]%) of the then-outstanding Registrable Securities (subject to adjustment pursuant to Section 3.04 ), agrees to enter into a customary letter agreement with underwriters providing such Holder will not effect any public sale or distribution of the Registrable Securities during the 90 calendar day
10
period beginning on the date of a prospectus or prospectus supplement filed with the Commission with respect to the pricing of an Underwritten Offering, provided that (i) the duration of the foregoing restrictions shall be no longer than the duration of the shortest restriction generally imposed by the underwriters on the Partnership or the officers, directors or any other unitholder of the Partnership on whom a restriction is imposed and (ii) the restrictions set forth in this Section 2.10 shall not apply to any Registrable Securities that are included in such Underwritten Offering by such Holder.
ARTICLE III
MISCELLANEOUS
Section 3.01. Communications . All notices and other communications provided for or permitted hereunder shall be made in writing by facsimile, electronic mail, courier service or personal delivery:
(a) if to WPT:
WPT LLC
2801 Post Oak Boulevard, Suite 600
Houston, Texas 77056
Attention: Secretary
Facsimile: [(713) 960-8738]
Electronic Mail: [lcressman@westlake.com]
(b) if to a transferee of WPT, to such Holder at the address provided pursuant to Section 2.09 ; and
(c) if to the Partnership:
Westlake Chemical Partners LP
c/o Westlake Chemical Partners GP LLC
2801 Post Oak Boulevard, Suite 600
Houston, Texas 77056
Attention: General Counsel
Facsimile: (713) 629-6239
Electronic Mail: bederington@westlake.com
All such notices and communications shall be deemed to have been received at the time delivered by hand, if personally delivered and when actually received, if sent by courier service or any other means.
Section 3.02. Successor and Assigns . This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including subsequent Holders of Registrable Securities to the extent permitted herein.
11
Section 3.03. Assignment of Rights . All or any portion of the rights and obligations of the Holders under this Agreement may be transferred or assigned by the Holders in accordance with Section 2.09 hereof.
Section 3.04. Recapitalization, Exchanges, Etc. Affecting the Registrable Securities . The provisions of this Agreement shall apply to the full extent set forth herein with respect to any and all securities of the Partnership or any successor or assign of the Partnership (whether by merger, consolidation, sale of assets or otherwise) that may be issued in respect of, in exchange for or in substitution of, the Registrable Securities, and shall be appropriately adjusted for combinations, splits, recapitalizations, pro rata distributions and the like occurring after the date of this Agreement.
Section 3.05. Specific Performance . Damages in the event of breach of this Agreement by a party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed that each party, in addition to and without limiting any other remedy or right it may have, will have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of the parties hereto hereby waives any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right will not preclude any such party from pursuing any other rights and remedies at law or in equity that such party may have.
Section 3.06. Counterparts . This Agreement may be executed in any number of counterparts and by the parties in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.
Section 3.07. Headings . The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
Section 3.08. Governing Law . The laws of the State of Delaware shall govern this Agreement.
Section 3.09. Severability of Provisions . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting or impairing the validity or enforceability of such provision in any other jurisdiction.
Section 3.10. Scope of Agreement . The rights granted pursuant to this Agreement are intended to supplement and not to reduce or replace any rights any Holders may have under the Partnership Agreement with respect to the Registrable Securities. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. Except as provided in the Partnership Agreement, there are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the rights granted by the Partnership set forth herein. Except as provided in the Partnership Agreement, this Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.
12
Section 3.11. Amendment . This Agreement may be amended only by means of a written amendment signed by the Partnership and the Holders of a majority of the then outstanding Registrable Securities; provided, however , that no such amendment shall materially and adversely affect the rights of any Holder hereunder without the consent of such Holder.
Section 3.12. No Presumption . If any claim is made by a party relating to any conflict, omission, or ambiguity in this Agreement, no presumption or burden of proof or persuasion shall be implied by virtue of the fact that this Agreement was prepared by or at the request of a particular party or its counsel.
Section 3.13. Aggregation of Registrable Securities . All Registrable Securities held or acquired by Persons who are Affiliates of one another shall be aggregated together for the purpose of determining the availability of any rights under this Agreement.
Section 3.14. Obligations Limited to Parties to Agreement . Each of the parties hereto covenants, agrees and acknowledges that no Person other than the Partnership and the Holders shall have any obligation hereunder and that, notwithstanding that one or more of the Holders may be a corporation, partnership or limited liability company, no recourse under this Agreement or under any documents or instruments delivered in connection herewith or therewith shall be had against any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the Holders or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the Holders or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, as such, for any obligations of the Holders under this Agreement or any documents or instruments delivered in connection herewith or therewith or for any claim based on, in respect of or by reason of such obligation or its creation, except in each case for any assignee of the Holders hereunder.
Section 3.15. Interpretation . All references to Articles and Sections shall be deemed to be references to Articles and Sections of this Agreement, unless otherwise specified. All references to instruments, documents, contracts and agreements are references to such instruments, documents, contracts and agreements as the same may be amended, supplemented and otherwise modified from time to time, unless otherwise specified. The word including shall mean including but not limited to. Whenever any determination, consent or approval is to be made or given by the Holders under this Agreement, such action shall be in the Holders sole discretion unless otherwise specified.
[Signature page follows]
13
IN WITNESS WHEREOF, the parties hereto execute this Agreement, effective as of the date first above written.
WPT LLC | ||
By: |
|
|
Name: | ||
Title: | ||
WESTLAKE CHEMICAL PARTNERS LP | ||
By: | Westlake Chemical Partners GP LLC, | |
its general partner | ||
By: |
|
|
Name: | ||
Title: |
S IGNATURE P AGE
TO
R EGISTRATION R IGHTS A GREEMENT
Exhibit 5.1
, 2014
Westlake Chemical Partners LP
2801 Post Oak Boulevard, Suite 600
Houston, TX 77056
Ladies and Gentlemen:
We have acted as special counsel to Westlake Chemical Partners LP, a Delaware limited partnership (the Partnership ), in connection with the registration under the Securities Act of 1933, as amended (the Securities Act ), of the offering and sale by the Partnership of up to an aggregate of [ ] common units representing limited partner interests in the Partnership (the Common Units ) and up to an additional [ ] Common Units pursuant to the underwriters option to purchase additional Common Units.
We are rendering this opinion as of the time the Partnerships Registration Statement on Form S-1 (File No. 333-195551), as amended (the Registration Statement ), to which this opinion is an exhibit and relating to the Common Units, becomes effective in accordance with Section 8(a) of the Securities Act. The term Common Units shall include any additional common units representing limited partner interests in the Partnership registered pursuant to Rule 462(b) under the Securities Act in connection with the offering contemplated by the Registration Statement.
As the basis for the opinion hereinafter expressed, we examined such statutes, including the Delaware Revised Uniform Limited Partnership Act (the Delaware LP Act ), and the Partnerships respective records and documents, certificates of the Partnership and public officials, and other instruments and documents as we deemed necessary or advisable for the purposes of this opinion. In such examination, we have assumed (i) the authenticity of all documents submitted to us as originals and the conformity with the original documents of all documents submitted to us as copies and (ii) that a definitive underwriting agreement in the form filed as an exhibit to the Registration Statement with respect to the sale of the Common Units will have been duly authorized and validly executed and delivered by the Partnership and the other parties thereto.
Based on the foregoing and on such legal considerations as we deem relevant, we are of the opinion that (i) the Partnership has been duly formed and is validly existing as a limited partnership under the Delaware LP Act and (ii) the Common Units, when issued and delivered on behalf of the Partnership against payment therefor as described in the Registration Statement, will be duly authorized, validly issued, fully paid and non-assessable.
The foregoing opinion is limited to the federal laws of the United States of America, the Constitution of the State of Delaware and the Delaware LP Act, each as interpreted by the courts of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the reference to us under the heading Validity of Our Common Units in the Registration Statement and the filing of this opinion as an exhibit to the Registration Statement. We further consent to the incorporation by reference of this letter and consent into any registration statement filed pursuant to Rule 462(b) under the Securities Act with respect to the Common Units. By giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.
Very truly yours, |
/s/ Vinson & Elkins L.L.P. |
Vinson & Elkins L.L.P. |
Vinson & Elkins LLP Attorneys at Law Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London Moscow New York Palo Alto Riyadh San Francisco Shanghai Tokyo Washington |
1001 Fannin Street, Suite 2500 Houston, TX 77002-6760 Tel +1.713.758.2222 www.velaw.com |
Exhibit 8.1
July 10, 2014
Westlake Chemical Partners LP
2801 Post Oak Boulevard, Suite 600
Houston, Texas 77056
RE: | Westlake Chemical Partners LP Registration Statement on Form S-1 |
Ladies and Gentlemen:
We have acted as counsel for Westlake Chemical Partners LP (the Partnership ), a Delaware limited partnership, with respect to certain legal matters in connection with the initial offer and sale of common units representing limited partner interests in the Partnership. We have also participated in the preparation of a Prospectus dated [July ], 2014 (the Prospectus ), forming part of the Registration Statement on Form S-1, No. 333-195551 (the Registration Statement ).
This opinion is based on various facts and assumptions, and is conditioned upon certain representations made by the Partnership as to factual matters through a certificate of an officer of the Partnership (the Officers Certificate ). In addition, this opinion is based upon the factual representations of the Partnership concerning its business, properties and governing documents as set forth in the Registration Statement.
In our capacity as counsel to the Partnership, we have made such legal and factual examinations and inquiries, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments, as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic original documents of all documents submitted to us as copies. For the purpose of our opinion, we have not made an independent investigation or audit of the facts set forth in the above-referenced documents or in the Officers Certificate. In addition, in rendering this opinion we have assumed the truth and accuracy of all representations and statements made to us which are qualified as to knowledge or belief, without regard to such qualification.
We hereby confirm that all statements of legal conclusions contained in the discussion in the Prospectus under the caption Material U.S. Federal Income Tax Consequences constitute the opinion of Vinson & Elkins L.L.P. with respect to the matters set forth therein as of the effective date of the Registration Statement, subject to the assumptions, qualifications, and limitations set forth therein. This opinion is based on various statutory provisions, regulations promulgated thereunder and interpretations thereof by the Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Also, any variation or difference in the facts from those set forth in the representations described above, including in the Registration Statement and the Officers Certificate, may affect the conclusions stated herein.
Vinson & Elkins LLP Attorneys at Law Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London Moscow New York Palo Alto Riyadh Shanghai Tokyo Washington |
First City Tower, 1001 Fannin Street, Suite 2500 Houston, TX 77002-6760 Tel +1.713.758.2222 Fax +1.713.758.2346 www.velaw.com |
No opinion is expressed as to any matter not discussed in the Prospectus under the caption Material U.S. Federal Income Tax Consequences. We are opining herein only as to the federal income tax matters described above, and we express no opinion with respect to the applicability to, or the effect on, any transaction of other federal laws, foreign laws, the laws of any state or any other jurisdiction or as to any matters of municipal law or the laws of any other local agencies within any state.
This opinion is rendered to you as of the effective date of the Registration Statement, and we undertake no obligation to update this opinion subsequent to the date hereof. This opinion is furnished to you, and is for your use in connection with the transactions set forth in the Registration Statement. This opinion may not be relied upon by you for any other purpose or furnished to, assigned to, quoted to or relied upon by any other person, firm or other entity, for any purpose, without our prior written consent. However, this opinion may be relied upon by you and by persons entitled to rely on it pursuant to applicable provisions of federal securities law, including persons purchasing common units pursuant to the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the Prospectus and to the use of our name under the captions Material U.S. Federal Income Tax Consequences and Legal Matters in the Registration Statement. By giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
Vinson & Elkins L.L.P.
Exhibit 10.3
FORM OF
FEEDSTOCK SUPPLY AGREEMENT
between
W ESTLAKE P ETROCHEMICALS LLC
as Seller
and
W ESTLAKE C HEMICAL O P C O LP
as Buyer
Dated , 2014
TABLE OF CONTENTS
ARTICLE I |
DEFINITIONS |
1 | ||||
1.1 |
Certain Defined Terms |
1 | ||||
1.2 |
Interpretation |
5 | ||||
ARTICLE II |
TERM |
6 | ||||
ARTICLE III |
ANNUAL PLANNED REQUIREMENTS |
6 | ||||
3.1 |
Forecast of Annual Planned Requirements |
6 | ||||
3.2 |
Monthly Requirements |
7 | ||||
ARTICLE IV |
PURCHASE AND DELIVERY OBLIGATIONS |
7 | ||||
4.1 |
Purchase and Take Commitments |
7 | ||||
4.2 |
Seller Deficiency |
7 | ||||
4.3 |
Uniformity |
9 | ||||
4.4 |
Title, Transfer and Possession |
9 | ||||
ARTICLE V |
PRICE |
9 | ||||
5.1 |
Price |
9 | ||||
5.2 |
Index |
9 | ||||
ARTICLE VI |
STATEMENTS AND PAYMENT |
10 | ||||
6.1 |
Monthly Statements |
10 | ||||
6.2 |
Payment |
10 | ||||
6.3 |
Payment Method |
11 | ||||
6.4 |
Access to Books and Records |
11 | ||||
6.5 |
Adequate Assurance of Performance |
12 | ||||
ARTICLE VII |
QUALITY |
12 | ||||
7.1 |
Specifications |
12 | ||||
7.2 |
Off-Spec Feedstock |
12 | ||||
ARTICLE VIII |
MEASUREMENT AND TESTING |
13 | ||||
ARTICLE IX |
FORCE MAJEURE |
13 | ||||
9.1 |
Performance Excused |
13 | ||||
9.2 |
Force Majeure Defined |
13 | ||||
9.3 |
Force Majeure Notice |
14 | ||||
9.4 |
Settlement of Industrial Disturbances |
14 | ||||
9.5 |
Extended Force Majeure |
14 |
i
ARTICLE X |
TERMINATION |
15 | ||||
10.1 |
General |
15 | ||||
10.2 |
Seller Suspension |
15 | ||||
10.3 |
Events of Default |
15 | ||||
10.4 |
Remedies for Events of Default |
15 | ||||
10.5 |
Termination for Extended Force Majeure |
16 | ||||
10.6 |
Effect of Termination |
16 | ||||
ARTICLE XI |
REPRESENTATIONS AND WARRANTIES |
16 | ||||
11.1 |
Title to Feedstock |
16 | ||||
11.2 |
Warranty to Specification |
16 | ||||
11.3 |
Financial Obligations |
16 | ||||
11.4 |
Disclaimer of any Other Warranties |
17 | ||||
ARTICLE XII |
LIMITATIONS ON LIABILITIES |
17 | ||||
12.1 |
Consequential Loss or Damage |
17 | ||||
12.2 |
Liquidated Damages Not Penalty |
17 | ||||
12.3 |
Exclusive Remedies |
17 | ||||
ARTICLE XIII |
INSURANCE |
18 | ||||
ARTICLE XIV |
CONFIDENTIALITY |
18 | ||||
14.1 |
Information |
18 | ||||
14.2 |
Definition |
18 | ||||
14.3 |
Legal Requirement |
18 | ||||
14.4 |
Survival |
19 | ||||
ARTICLE XV |
ASSIGNMENT; CHANGE OF CONTROL |
19 | ||||
15.1 |
Assignment Generally |
19 | ||||
15.2 |
Assignment to Affiliates |
19 | ||||
ARTICLE XVI |
TAXES |
19 | ||||
ARTICLE XVII |
MISCELLANEOUS |
20 | ||||
17.1 |
Choice of Law; Submission to Jurisdiction |
20 | ||||
17.2 |
Dispute Resolution |
20 | ||||
17.3 |
Survival |
22 | ||||
17.4 |
Notice |
22 | ||||
17.5 |
Entire Agreement |
23 | ||||
17.6 |
Amendment or Modification |
23 | ||||
17.7 |
Counterparts |
23 | ||||
17.8 |
Severability |
23 |
ii
17.9 |
Further Assurances |
23 | ||||
17.10 |
No Waiver |
23 | ||||
17.11 |
Set Off |
23 | ||||
17.12 |
Rights of Third Parties |
23 | ||||
17.13 |
Legal Relationship |
23 |
SCHEDULES
Schedule 7.1 Specifications
iii
This FEEDSTOCK SUPPLY AGREEMENT (this Agreement ) is made and entered into as of , 2014 (the Effective Date ), by and between Westlake Petrochemicals LLC, a Delaware limited liability company ( Seller ), and Westlake Chemical OpCo LP, a Delaware limited partnership ( Buyer ). Seller and Buyer hereinafter are referred to each individually as a Party and collectively as the Parties .
WITNESSETH:
WHEREAS, Buyer owns and operates two ethylene production facilities at Westlakes (as defined herein) Lake Charles, Louisiana complex (collectively referred to as the Lake Charles Plants ), and one ethylene production facility at Westlakes Calvert City, Kentucky complex (the Calvert City Plant , and together with the Lake Charles Plants, the Plants , and each, a Plant ) with a current combined annual production capacity of approximately 3.4 billion pounds of Ethylene (as defined herein);
WHEREAS, Seller desires to sell and tender to Buyer, and Buyer desires to purchase and receive from Seller, certain quantities of Feedstock (as defined herein) to enable Buyer to produce Ethylene and associated co-products at the Plants in conformance with, and with the objective of supporting Buyers obligations under, the Ethylene Sales Agreement (as defined herein), subject to the terms and conditions hereinafter set forth and in conformity with the applicable Specifications (as defined herein);
WHEREAS, Downstream Buyer (as defined below) desires to utilize certain quantities of Ethylene purchased under the Ethylene Sales Agreement as feedstock at certain petrochemical plants located in Lake Charles, Louisiana; Geismar, Louisiana; Calvert City, Kentucky; and Longview, Texas (collectively, the Downstream Facilities ), and sell certain quantities of Ethylene purchased under the Ethylene Sales Agreement to Affiliates (as defined herein) and Third Parties (as defined herein); and
WHEREAS, the Parties are entering into this Agreement with the understanding that Buyer will enter into the Ethylene Sales Agreement with Downstream Buyer whereby Buyer will sell certain quantities of Ethylene to Downstream Buyer;
NOW, THEREFORE, Seller and Buyer, in consideration of the premises and mutual covenants hereinafter set forth, do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 | Certain Defined Terms . For the purposes of this Agreement, the following terms shall have the following meanings: |
AAA shall have the meaning set forth in Section 17.2(b)(iv) .
Adequate Assurance of Performance shall have the meaning set forth in Section 6.5(d) .
1
Affiliate means (a) with respect to Westlake, any other Person that directly or indirectly through one or more intermediaries controls or is controlled by Westlake, excluding Westlake Chemical Partners GP LLC and any other Person that directly or indirectly through one or more intermediaries is controlled by Westlake Chemical Partners GP LLC; (b) with respect to the Partnership Entities (as defined in the Omnibus Agreement), any Person that directly or indirectly through one or more intermediaries is controlled by Westlake Chemical Partners GP LLC; and (c) with respect to any other Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with such first Person; provided that, for purposes of this Agreement, Seller and Buyer shall not be considered Affiliates of each other. As used herein, the term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
Agreement shall have the meaning set forth in the Preamble.
All Other Cash Production Costs shall have the meaning set forth in the Ethylene Sales Agreement.
Annual Planned Production shall have the meaning given to such term in the Ethylene Sales Agreement.
Annual Planned Requirements shall have the meaning set forth in Section 3.1 .
Annual Quantity shall have the meaning set forth in Section 4.1(a) .
Base Rate shall mean, interest compounded on a Monthly basis, at the rate per annum equal to the one-month term, London Interbank Offered Rate (LIBOR rate) for U.S. dollar deposits, as published by The Wall Street Journal or if not published, then by the Financial Times of London.
Btu or British Thermal Unit shall mean the amount of heat required to raise the temperature of one pound of pure water from fifty-nine degrees Fahrenheit (59°F) to sixty degrees Fahrenheit (60°F) at a constant pressure of fourteen and six hundred and ninety-six thousandths (14.696) pounds per square inch absolute.
Business Day shall mean every Day other than Saturdays, Sundays, and United States public holidays.
Buyer shall have the meaning set forth in the Preamble.
Buyer Event of Default shall have the meaning set forth in Section 10.3(b) .
Calvert City Plant shall have the meaning specified in the Recitals.
Confidential Information shall have the meaning set forth in Section 14.2 .
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Contract Year shall mean a calendar year that commences on January 1 and ends on December 31 of such calendar year, except that (a) the first Contract Year shall commence on the Effective Date and end on December 31, 2014, and (b) the final Contract Year shall commence on January 1 of the calendar year in which the Term expires or is terminated in accordance herewith, and end on the last Day that this Agreement is in effect.
Day shall mean a 24-hour period commencing immediately upon midnight.
Default Rate shall mean the Base Rate plus two percentage points per annum, applicable on the first Business Day prior to the due date of payment and thereafter on the first Business Day of each succeeding Month; provided , however , that the Default Rate shall never exceed the maximum rate permitted by applicable Law.
dispute shall have the meaning set forth in Section 17.2(a) .
Downstream Buyer shall mean, collectively, Seller, WPT LLC, a Delaware limited liability company, and Westlake Vinyls, Inc., a Delaware corporation.
Downstream Facilities shall have the meaning specified in the Recitals.
Effective Date shall have the meaning set forth in the Preamble.
Ethane shall mean ethane conforming to the applicable Specifications.
Ethane Price shall have the meaning set forth in Section 5.2(a) .
Ethylene shall mean the ethylene product conforming to the applicable specifications set forth in the Ethylene Sales Agreement.
Ethylene Sales Agreement shall mean that certain ethylene sales agreement entered into by and between Buyer and Downstream Buyer on or about the date hereof.
Ethylene Shortfall Fee shall have the meaning given to such term in the Ethylene Sales Agreement.
Feedstock means, as applicable, jointly or individually, Ethane and Propane.
Feedstock Shortfall Fee shall have the meaning set forth in Section 4.2(c) .
Force Majeure shall have the meaning set forth in Section 9.2 .
Gallon means a U.S. gallon of 231 cubic inches of liquid at sixty degrees Fahrenheit (60°F) and equilibrium vapor pressure of the liquid.
Governmental Authority shall mean any foreign, federal, state, regional, local, municipal, tribal or other government; any governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial, legislative, regulatory or taxing authority or power; and any court or governmental tribunal.
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Initial Term shall have the meaning set forth in Article II .
Lake Charles Plants shall have the meaning specified in the Recitals.
Law shall mean any law, statute, code, ordinance, order, rule, rule of common law, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization, or other directional requirement of any Governmental Authority.
Month shall mean a calendar month (according to the Gregorian calendar), (and Monthly shall refer to a frequency of one Month) and also refers to the partial calendar months created by the beginning and end of the Term, as applicable, except that (a) the Month during which the Effective Date occurs shall be deemed the first Month that this Agreement is in effect, and (b) the Month during which the Term expires or is terminated in accordance herewith shall be deemed the final Month that this Agreement is in effect.
Monthly Statement shall have the meaning set forth in Section 6.1 .
Natural Gas shall mean natural gas conforming to the applicable specifications set forth in the Services Agreement.
Off-Spec Feedstock shall have the meaning set forth in Section 7.2(a) .
Omnibus Agreement means the Omnibus Agreement among Buyer and certain Affiliates of Westlake dated on or about the date hereof.
OPIS Index shall have the meaning set forth in Section 5.2(a) .
Party/Parties shall have the meaning specified in the Preamble.
Person shall mean any individual, partnership, corporation, limited liability company, unlimited liability company, association, firm, foundation, joint stock company, trust, joint venture, unincorporated organization, Governmental Authority (or any department, agency, or political subdivision thereof) or any other entity (in each case whether or not incorporated and whether or not having a separate legal identity).
Plant / Plants shall have the meaning specified in the Recitals.
pound or lb shall mean one pound avoirdupois.
Prior Year Adjustment shall have the meaning specified in the Ethylene Sales Agreement.
Propane shall mean propane conforming to the applicable Specifications.
Propane Price shall have the meaning set forth in Section 5.2(a) .
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Reasonable and Prudent Operator shall mean a Person seeking in good faith to perform its contractual obligations, and in so doing, and in the general conduct of its undertaking, acting in a proper and workmanlike manner in accordance with practices customarily used in the operation of ethylene production or similar facilities, and exercising that degree of skill, diligence, prudence, and foresight that would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of undertaking under the same or similar circumstances and conditions.
Receipt Point(s) shall mean, in respect of each Plant, the inlet flange at the plant line of the applicable Plant, as more fully described and depicted in the applicable Site Lease Agreement, or such other points that may be designated by the Parties from time to time in writing.
Related Agreements means this Agreement, the Feedstock Supply Agreement, the Services Agreement, the Site Lease Agreement, and the Omnibus Agreement.
Renewal Term shall have the meaning set forth in Article II .
Seller shall have the meaning specified in the Preamble.
Seller Deficiency Quantity shall have the meaning set forth in Section 4.2(a) .
Seller Event of Default shall have the meaning set forth in Section 10.3(a) .
Services Agreement means the Services Agreement among Buyer and certain Affiliates of Westlake dated on or about the date hereof.
Site Lease Agreement means, with respect to each Plant, the Site Lease Agreement between Buyer and an Affiliate of Westlake dated on or about the date hereof.
Specifications shall have the meaning set forth in Section 7.1 .
Term shall have the meaning set forth in Article II .
Third Party shall mean any Person that is not a Party or an Affiliate of a Party.
Westlake shall mean Westlake Chemical Corporation, a Delaware corporation.
1.2 |
Interpretation . Within this Agreement, including the Recitals and attachments, except where expressly provided to the contrary, (a) in the event of a conflict, the provisions of the main body of this Agreement shall prevail over the provisions contained in any attachment; (b) words denoting the singular include the plural and vice versa, unless the context requires otherwise; (c) words denoting individuals or persons include all types of Persons, unless the context requires otherwise; (d) words denoting any gender include male, female, and neuter genders, unless the context requires otherwise; (e) references to Sections, paragraphs, recitals, Articles, Schedules, and Exhibits shall mean Sections in, paragraphs of, recitals to, Articles of, Schedules to, and Exhibits to this Agreement; (f) references to any document (including this Agreement) or to any Law shall mean the |
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same as amended, modified or restated from time to time; (g) references to any amount of money shall mean a reference to the amount in United States dollars; (h) references to a time and date in connection with the performance of an obligation by a Party shall mean a reference to the time and the date in the location where the relevant Plant(s) is located or the location where the relevant activities are to be performed if such activities will not be performed at the applicable Plant(s); (i) references to a Party or any Person shall include its successors and permitted assigns; (j) the words include and including shall be deemed to be qualified by a reference to without limitation; (k) or when used as a conjunction shall connote any or all of; (l) words, phrases or expressions that are not defined in this Agreement but that have a generally accepted meaning in the practice of measurement and metering in the international businesses of production, transportation, distribution, tolling, purchase, and sale of Feedstock shall have that meaning in this Agreement; and (m) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Agreement. |
ARTICLE II
TERM
This Agreement shall become effective on the Effective Date and, unless earlier terminated in accordance with Article X , shall continue in effect until December 31, 2026 (such period, the Initial Term ). This Agreement will continue in effect thereafter on an annual basis (each period after the end of the Initial Term during which this Agreement remains in effect, a Renewal Term ) unless and until terminated at the end of either the Initial Term or any Renewal Term upon no less than 12 Months prior written notice; provided that the Term of this Agreement shall not be renewed unless and until the Ethylene Sales Agreement is simultaneously renewed. The Initial Term and any Renewal Term are referred to herein collectively as the Term .
ARTICLE III
ANNUAL PLANNED REQUIREMENTS
3.1 | Forecast of Annual Planned Requirements . Not later than 25 Days prior to the first Day of each Contract Year, Buyer shall furnish to Seller in writing a non-binding forecast that sets out a reasonable good faith projection of the total quantity of each type of Feedstock (in Gallons) that it will require Seller to sell and make available during such Contract Year at each Plant (the Annual Planned Requirements ); provided that the Annual Planned Requirements for the first Contract Year shall equal Buyers forecasted aggregate requirements of Feedstock (in Gallons) for such Contract Year beginning on the Effective Date and ending December 31, 2014. The Annual Planned Requirements shall: |
(a) | identify applicable quantities of Ethane and Propane that are, in Buyers good faith determination, required at the Calvert City Plant and at the Lake Charles Plants for Buyer to produce the Annual Planned Production of Ethylene during such Contract Year; |
(b) | be based on Buyers then-current budget for each Plant; and |
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(c) | take into account Buyers reasonable estimate of planned outages at each Plant during such Contract Year. |
3.2 | Monthly Requirements . Prior to the first Day of each Month, Buyer shall provide to Seller in writing a forecast of the quantity of each type of Feedstock (in Gallons) that it expects to require Seller to sell and make available at the Calvert City Plant and the Lake Charles Plants during the following Month. |
ARTICLE IV
PURCHASE AND DELIVERY OBLIGATIONS
4.1 | Purchase and Take Commitments . |
(a) | Commencing with the Effective Date, and continuing throughout the Term, subject in each case to the terms and conditions of this Agreement, Seller shall sell and make available, and Buyer shall purchase, take delivery of and accept at the applicable Receipt Points, during each Contract Year, the quantity of the Annual Planned Requirements notified to Seller under Section 3.1 in respect of the relevant Contract Year (as adjusted pursuant to this Section 4.1 , the Annual Quantity ), not to exceed a quantity of Feedstock necessary to produce 3.8 billion pounds of Ethylene in a given Contract Year. Buyer shall use commercially reasonable efforts to purchase, take delivery of, and accept the Annual Quantity during each Contract Year on a ratable Monthly basis. |
(b) | Notwithstanding anything contained herein to the contrary, Buyer shall be entitled from time to time during the Term, by prior notice, to adjust the Annual Quantity upward or downward if it determines, in its reasonable discretion, that any such adjustment is appropriate in order to (i) account for operating conditions or marketing conditions or (ii) source from other suppliers all or a part of the Feedstock required to sell approximately 5% of the aggregate quantities of Ethylene actually produced at the Plants during such Contract Year to Third Parties. |
(c) | The Annual Quantity for the Contract Year in which the Term commences and ends, respectively, shall be proportionately reduced based on the number of Days during such Contract Year that occur during the Term, if applicable. |
(d) | Seller shall use commercially reasonable efforts to deliver the Feedstock mix notified to Seller under Section 3.1 . The Parties shall consult with one another from time to time during the Contract Year and use commercially reasonable efforts to achieve an economically optimal Feedstock mix for the operation of the Plants, as determined by Buyer in good faith. |
4.2 | Seller Deficiency . |
(a) | If the total quantity of Feedstock sold and delivered by Seller under this Agreement during any Contract Year (in Gallons) is less than |
(i) | the applicable Annual Quantity, minus |
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(ii) | the quantities (in Gallons) made available by Seller but not purchased and taken by Buyer during such Contract Year due to either |
(A) | Buyers breach of its obligations hereunder or |
(B) | Force Majeure affecting the Plants to the extent that any such occurrence exceeds 45 consecutive Days, |
then such deficiency (in Gallons) shall be the Seller Deficiency Quantity .
(b) | For the avoidance of doubt, the Seller Deficiency Quantity shall not be reduced by any quantity of Feedstock not made available by Seller due to |
(i) | Sellers breach of any of its obligations hereunder, or |
(ii) | Force Majeure affecting the Plants to the extent that any such occurrence does not exceed 45 consecutive Days; or |
(iii) | Force Majeure affecting Seller. |
(c) | If, in respect of any Contract Year, there is a Seller Deficiency Quantity, Seller shall pay Buyer a deficiency fee ($) (the Feedstock Shortfall Fee ) equal to the quantity of Ethylene (in pounds) that Buyer was unable to produce and deliver from the Plants as a result of the Seller Deficiency Quantity multiplied by the sum of: |
(i) | $0.10/lb plus |
(ii) | the then-current All Other Cash Production Costs ($/lb), plus |
(iii) | the then-current Prior Year Adjustment ($), if any, divided by the Annual Planned Production of Ethylene (expressed in pounds) for such Contract Year; |
provided, however , Buyer shall rebate to Seller the Variable Cash Conversion Costs and the Cost of Feedstock (each as defined in the Ethylene Sales Agreement) that are actually avoided by Buyer for such Contract Year, if any, as a result of such deficiency, such rebate to be by way of credit in the invoice for the last Month of the Contract Year.
(d) | If at any time the Feedstock Shortfall Fee and the Ethylene Shortfall Fee may be applied to the same volume of Ethylene not produced or purchased, then with respect to only such volume of Ethylene contemplated by this Section 4.2(d) : |
(i) | Downstream Buyer shall pay the applicable Ethylene Shortfall Fee in accordance with Section 4.2(c) of the Ethylene Sales Agreement and |
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(ii) | Seller shall have no obligation to pay the applicable Feedstock Shortfall Fee hereunder, |
it being understood and agreed that the Ethylene Shortfall Fee and the Feedstock Shortfall Fee shall not be applied in respect of the same volume of Ethylene not produced or delivered.
4.3 | Uniformity . Seller shall make available and Buyer shall receive and take quantities of Feedstock hereunder at each Receipt Point, as nearly as practicable, at uniform hourly and daily rates of flow for the quantities of Feedstock purchased hereunder. |
4.4 | Title, Transfer and Possession . |
(a) | Title to and risk of loss of the Feedstock delivered hereunder shall pass from Seller to Buyer at the applicable Receipt Point free and clear of all liens, claims and encumbrances. |
(b) | Seller shall be deemed to be in exclusive control and possession of the Feedstock deliverable to Buyer hereunder prior to the time such Feedstock shall have been delivered to Buyer at the applicable Receipt Point, and Buyer shall be deemed to be in exclusive control and possession thereof after such delivery. |
(c) | Seller shall bear all costs of any nature concerning the Feedstock before delivery to each applicable Receipt Point, including all applicable taxes payable by Seller in accordance with Article XVI . Buyer shall bear all costs of any nature concerning the Feedstock at or after delivery to each applicable Receipt Point, including all applicable taxes payable by Buyer in accordance with Article XVI . |
ARTICLE V
PRICE
5.1 | Price . Commencing with the Effective Date and continuing for each Month of the Term, Buyer shall reimburse Seller for (a) the purchase of Feedstock for sale under this Agreement at a deemed purchase price equal to the OPIS Index, plus (b) all commercially reasonable and verifiable costs incurred (excluding internal costs of Seller) for the storage, handling, and transportation of such quantities from the Mont Belvieu pricing point to the applicable Receipt Points. Seller will use commercially reasonable efforts to minimize such costs. |
5.2 | Index . |
(a) | OPIS Index means the monthly average of the daily high and low prices per Gallon, for the month of delivery, as quoted by Oil Price Information Service, or its successor-in-interest, in the OPIS LPG Report for Any Current Month under Mont Belvieu Spot Gas Liquids Prices using (i) the Purity Ethane prices for Ethane ( Ethane Price ), and (ii) the Non-TET prices for Propane ( Propane Price ). |
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(b) | If, for any given Month, the Ethane Price or the Propane Price fails to settle or be published prior to invoicing hereunder, the provisional price therefor shall be the Ethane Price or the Propane Price (as applicable) for the immediately preceding Month or the last settled Month of delivery, as the case may be. Once the Ethane Price or the Propane Price (as applicable) has settled for the Month of delivery or is otherwise published, Seller will promptly reissue the invoice for the Month in question, which invoice will provide the appropriate adjustment to reflect the change to the provisional price. Any additional amounts owing by Buyer will be paid within 15 Days of the receipt of such invoice and any credits owing to Buyer will be applied to the next invoice delivered by Seller. |
(c) | Should the OPIS Index be discontinued, it will be replaced by the index specified by the applicable publisher to be the replacement index therefor, or, if no replacement index is specified by the applicable publisher, the Parties shall promptly and in good faith attempt to mutually agree to a satisfactory and comparable successor index or publication. |
ARTICLE VI
STATEMENTS AND PAYMENT
6.1 | Monthly Statements . On or before the 20th Day of each Month, Seller shall provide to Buyer a statement for each of the Receipt Points setting forth Sellers calculation of the total amount payable by Buyer for the prior Month for deliveries made to each Receipt Point (each, a Monthly Statement ). The Parties shall provide for the exchange of all relevant data reasonably necessary in connection with preparing each Monthly Statement, including the aggregate quantities (in Gallons) of each Feedstock delivered by Seller and taken by Buyer for each Day of such Month at each Receipt Point, information relating to any Seller Deficiency Quantity for such Month at each Receipt Point (if applicable), and information relating to any events of Force Majeure. |
6.2 | Payment . |
(a) | Buyer shall pay the amount of each Monthly Statement, other than any amount thereof that is disputed in accordance with clause (d) below, no later than the 5th Day following receipt by Buyer of such Monthly Statement. If the due date for payment is not a Business Day, then the due date for payment shall be the immediately succeeding Business Day. Any adjustments necessary to reconcile the resolution of a disputed amount with the amount actually paid shall be paid within five Days following resolution of the disputed amount. Any adjustments, whether for overpayment or underpayment, for disputed amounts shall bear interest at the Base Rate from the date of overpayment or underpayment, as the case may be, until the actual date of payment. |
(b) | In the event that any amount reflected in any statement or invoice is not paid when due, other than any amount thereof that is disputed in accordance with clause (d) below, such unpaid amount shall bear interest from and including the Day following the due date therefor up to and including the date when payment is made, at the Default Rate. |
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(c) | If Buyer fails to make payment of any amount of any Monthly Statement, other than any amount thereof that is disputed in accordance with clause (d) below, on or before the later of (i) the 60th Day after such payment is due and (ii) the 30th Day after notice by Seller of such non-payment, Seller shall have the right to suspend deliveries of Feedstock hereunder to Buyer until such payment is made. |
(d) | Seller and Buyer, as the case may be, may withhold payment of all or any portion of any amount reflected as owing by such Party in any statement or invoice received from the other Party to the extent that the receiving Party disputes payment of such amount or such portion thereof in good faith. For the avoidance of doubt, as to any Monthly Statement, Buyer may withhold payment as to any disputed amount, including to account for any credit Buyer believes it is owed with respect to the purchase, sale or delivery of Feedstock, or the failure thereof. In the event of such a dispute, the disputing Party shall promptly notify the other Party, stating its reason for disputing such amount and, to the extent available, providing reasonable supporting documentation therefor. |
(e) | Buyer may dispute a Monthly Statement or any portion thereof, by notice to Seller, up to one calendar year following receipt of such Monthly Statement; provided that if Buyer fails to deliver such notification within such period, Buyer shall be deemed to have waived the right to dispute the applicable Monthly Statement. |
6.3 | Payment Method . All payments under this Agreement shall be made in United States dollars by wire transfer in immediately available funds by deposit to the bank account designated in writing by the Party receiving the payment. Any wire transfer charges shall be for the account of the Party making the payment. If a Party elects to change the bank or account to which payments are to be made, that Party shall notify the other Party before the effective date of such change. |
6.4 | Access to Books and Records . To the extent necessary to verify the accuracy of any statement, invoice, charge or computation made under this Agreement, each Party shall have the right, at its cost, to interview representatives of the other Party and to examine the books and records of the other Party relating to this Agreement during normal business hours and upon reasonable notice to the other Party; provided that each Party has the right to redact from the records subject to examination any portions thereof as necessary to comply with such Partys confidentiality obligations. Such examination must be commenced within 12 Months of receiving said statement, invoice, charge or computation made under this Agreement and will take place at a location mutually agreeable to the Parties. All records subject to examination hereunder shall be caused to be retained for no less than two calendar years after their creation. If any such examination establishes any inaccuracy in any billing made prior to such examination, the necessary adjustments to such billings will be made promptly without any interest charge. |
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6.5 | Adequate Assurance of Performance . |
(a) | If Seller, in its sole judgment, has reasonable grounds for insecurity regarding the ability of Buyer to perform its financial obligations hereunder, or any other material obligation under this Agreement, the Parties shall work together in good faith to resolve Sellers concerns. If the Parties cannot resolve such concerns, Seller may request that Buyer provide Adequate Assurance of Performance (as defined below) and if Buyer fails to provide such Adequate Assurance of Performance within five Business Days of receipt of request therefor, Seller may, without waiving any other rights or remedies available to it under this Agreement or now or hereafter existing at Law or in equity, withhold further deliveries until the demanded Adequate Assurance of Performance is received. |
(b) | Buyers duty to provide such Adequate Assurance of Performance, if demanded in accordance herewith, shall be a condition precedent to Sellers obligation to perform under this Agreement. |
(c) | As of the Effective Date, Seller acknowledges that it is satisfied with Buyers ability to perform its obligations under this Agreement and therefore, as of the Effective Date, no Adequate Assurance of Performance is required from Buyer. |
(d) | Adequate Assurance of Performance shall mean sufficient security or proof of Buyers capability to perform its obligations under this Agreement in the form of any one of or a combination of one or more of the following: (i) a guarantee from a creditworthy entity, (ii) a standby irrevocable letter of credit (in a form and amount and for a term reasonably acceptable to Seller and issued by a financial institution reasonably acceptable to Seller), (iii) a prepayment, or (iv) a cash payment security deposit (to be held by Seller without obligation for payment of interest thereon). |
ARTICLE VII
QUALITY
7.1 | Specifications . All Feedstock sold and delivered to Buyer at each applicable Receipt Point pursuant to this Agreement shall conform to the applicable specifications set forth in Schedule 7.1 (the Specifications ). |
7.2 | Off-Spec Feedstock . |
(a) | The Parties will work together to minimize (i) any deliveries or receipts of Feedstock that does not or will not conform to the Specifications ( Off-Spec Feedstock ), and (ii) the negative consequences that may result if and when Off-Spec Feedstock is delivered at a Receipt Point. |
(b) |
Seller shall be liable for any damages incurred by Buyer to the extent arising out of or resulting from Off-Spec Feedstock delivered by Seller to Buyer in accordance with the provisions of this Agreement (including delivery by Buyer to Downstream Buyer of Off-Spec Ethylene (as defined in the Ethylene Sales |
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Agreement), the off-specification nature of which reasonably resulted from such Off-Spec Feedstock); provided, however , that Seller shall not be so liable if (i) Buyer fails to act as a Reasonable and Prudent Operator in (A) accepting, testing, handling, storing, or throughputting the Off-Spec Feedstock or (B) failing to detect the off-specification nature thereof, or (ii) notwithstanding Buyers acting as a Reasonable and Prudent Operator, Buyer accepts Off-Spec Feedstock with actual knowledge of the off-specification nature thereof. |
(c) | Notwithstanding clauses (a) and (b) above, Sellers liability in connection with the delivery by Seller to a Receipt Point of any Off-Spec Feedstock, on a per Gallon basis, shall not exceed the amount in $/Gallon calculated as (i) 300% of the amount to be reimbursed to Seller in the applicable Month or Months pursuant to Article V divided by (ii) the total quantity (Gallons) of Feedstock delivered in the applicable Month or Months. |
ARTICLE VIII
MEASUREMENT AND TESTING
Seller or its designee shall own, operate and maintain, at or proximate to each Receipt Point, the metering equipment necessary to measure the quantity of each Feedstock delivered under this Agreement. All measurements and/or tests shall be made in accordance with the latest standards or guidelines published by the ASTM or other applicable industry standard methods. Sellers (or its designees) volume and/or other measurements of Feedstock shall be used for billing purposes, unless proved to be in error. Buyers laboratory analysis and methods shall determine whether Feedstock specifications have been met, unless Seller proves to Buyers reasonable satisfaction that Buyers analysis report is erroneous. No Feedstock quantity claims will be made, including pursuant to Article VII , unless the difference is more than one percent (1%) of the invoiced quantity.
ARTICLE IX
FORCE MAJEURE
9.1 | Performance Excused . Buyer shall not be liable for any delay or failure in performance hereunder if and to the extent such delay or failure is a result of Force Majeure, except for the performance of any payment obligation that has accrued prior to the Force Majeure event. Other than in the event of an extended period of Force Majeure pursuant to Section 9.5 , nothing contained herein, express or implied, shall be construed to permit Seller to withhold, delay, or condition payment of any portion of the Feedstock Shortfall Fee in the event that a Seller Deficiency Quantity accrues as a result of the occurrence or continuance of a Force Majeure; provided, however , that Buyer shall not be entitled to that portion of the Feedstock Shortfall Fee that equals the portion of the then-current All Other Cash Production Costs that Buyer did not actually incur during the continuance of such Force Majeure. |
9.2 |
Force Majeure Defined . The term Force Majeure shall mean any cause, whether of the kind enumerated herein or otherwise, which is not within the reasonable control of Buyer, and which by the exercise of reasonable diligence Buyer is unable to prevent or |
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overcome, and which wholly or partially prevents or delays Buyers performance of any of its obligations under this Agreement (other than any payment obligations hereunder), including any of the following which satisfy the foregoing criteria: acts of God; strikes, lockouts or other industrial disputes or disturbances; acts of the public enemy, sabotage, wars, blockades, insurrections, riots and other civil disturbances; epidemics; landslides, floods, lightning, earthquakes, fires, tornadoes, hurricanes, named storms or other weather events that necessitate extraordinary measures and expenses to maintain operations of any of the Plants, and warnings for any of the foregoing which may necessitate the precautionary shut-down of any Plant, any portion thereof, or other related facilities; arrests and restraints of governments (either federal, state, civil or military), including any orders of courts or of a Governmental Authority; explosions, breakage or accidents to equipment, machinery, any Plant or any portion thereof, or lines of pipe, or the making of repairs or alterations to any of the foregoing necessitated as a result of a Force Majeure event; inability to secure, or unavoidable delays in securing, labor or materials that are required for Buyers performance hereunder; electric power shortages or outages; or the necessity for compliance with any applicable Law. |
9.3 | Force Majeure Notice . As soon as reasonably possible after the occurrence of a Force Majeure event, Buyer shall provide written notice to Seller, and in such notice shall give reasonably full particulars concerning the nature, scope and anticipated duration of the Force Majeure. |
9.4 | Settlement of Industrial Disturbances . Notwithstanding anything contained herein to the contrary, the settlement of strikes, lockouts or other industrial disturbances shall be entirely within the discretion of the Party experiencing such situations, and nothing herein shall require such Party to settle industrial disputes by yielding to demands made on it when it considers such action inadvisable. |
9.5 | Extended Force Majeure . If, after 45 consecutive Days have elapsed since the commencement of a Force Majeure continuously affecting any Plant, and Buyer has been rendered and remains unable, wholly or in part, by such Force Majeure to accept delivery of a quantity of Feedstock during a given Contract Year equal to the Annual Quantity, then (a) the Annual Quantity shall be reduced by a quantity of Feedstock equal to the annualized average of such shortfall, (b) Seller shall be credited such portion of the Feedstock Shortfall Fee(s) paid during the Contract Year (if any) for such deficient quantities, and (c) if (but only if) both Parties are entitled to insurance proceeds from the same insurance carrier, Buyer shall be entitled to any insurance proceeds from such carrier accruing during such extended period of Force Majeure on a first priority basis. Buyer shall notify Seller as soon as reasonably practicable if and when Buyer determines such Force Majeure is no longer continuing. Upon receipt of such notice by Seller, the Parties respective obligations during such Contract Year to sell and tender, and purchase and receive, a quantity of Feedstock equal to the Annual Quantity, less that quantity of Feedstock determined in accordance with clause (a) above, shall be reinstated for all purposes hereunder. |
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ARTICLE X
TERMINATION
10.1 | General . In addition to the further provisions of this Article X , this Agreement shall terminate upon the expiration of the Initial Term or any Renewal Term, as the case may be, and shall be terminable (a) upon the written agreement of the Parties, (b) by any Party following an uncured breach of this Agreement by the other Party, for a period of 60 Days after receipt by the breaching Party of written notice thereof, (c) by any Party pursuant to Force Majeure in accordance with Section 10.5 , (d) upon the effective date of termination of the Ethylene Sales Agreement, (i) by Seller only, if such termination results from the uncured breach by Buyer thereunder, and (ii) by Buyer only, if such termination does not result from the uncured breach by Buyer thereunder, or (e) by Buyer only, upon the effective date of expiration (if any) of the Ethylene Sales Agreement. |
10.2 | Seller Suspension . Without prejudice to any other rights and remedies available under this Agreement, Seller may suspend delivery of Feedstock upon seven Days advance written notice in any of the following circumstances: (a) Buyer has failed to make payments in full when due; (b) Buyer has failed to comply with its obligations under Section 6.5 ; or (c) at Sellers reasonable discretion, instead of or prior to terminating this Agreement, upon the occurrence of any Buyer Event of Default under Section 10.3(b) below. Upon and for the duration of such suspension, Seller shall be relieved of obligations to supply Feedstock under this Agreement, but Buyer shall not be discharged of any of its obligations under this Agreement. Seller shall resume delivering Feedstock as soon as reasonably practicable following the cure of the events listed above and in any case within two Business Days of such cure. |
10.3 | Events of Default . |
(a) | Seller Event of Default . A Seller Event of Default shall be deemed to exist upon the occurrence and during the continuance of any one or more of the following events: (i) Seller breaches a material term of this Agreement, and such breach is not cured within 60 Days following written notice from Buyer; or (ii) Seller fails to pay any amount due under this Agreement in full within 60 Days of the due date of such payment, subject to Section 17.2 . |
(b) | Buyer Event of Default . A Buyer Event of Default shall be deemed to exist upon the occurrence and during the continuance of any one or more of the following events: (i) Buyer breaches a material term of this Agreement, and such breach is not cured within 60 Days following written notice from Seller; or (ii) Buyer fails to pay any amount due under this Agreement in full within 60 Days of the due date of such payment, subject to Section 17.2 . |
10.4 | Remedies for Events of Default . |
(a) |
Upon the occurrence of any Seller Event of Default or Buyer Event of Default that is not cured within the period of time provided by this Agreement, if any, Buyer (in the case of a Seller Event of Default) or Seller (in the case of a Buyer |
15
Event of Default), as applicable, shall have the right to terminate this Agreement with 60 Days advance written notice to the defaulting Party and to pursue any other remedy provided under this Agreement or now or hereafter existing at Law or in equity. Except in such circumstance or as elsewhere expressly provided in this Agreement, each Party waives any right to terminate this Agreement. If a fact giving rise to a right of termination is wholly or partly overcome during such 60-Day notice period, then any notice of termination furnished under this Article X shall be deemed cancelled and of no effect and this Agreement shall remain in full force and effect. |
(b) | Other than as expressly provided in this Agreement, Seller will not be entitled to suspend or terminate the delivery of Feedstock to Buyer under this Agreement in any circumstance, including in connection with the exercise of a right of offset or other equitable remedy, and any purported suspension or termination of any delivery of Feedstock to Buyer shall be deemed to be a material breach of this Agreement by Seller under this Article X and permit Buyer to exercise the remedies contemplated in this Section 10.4 . |
10.5 | Termination for Extended Force Majeure . If a Force Majeure continues, or its consequence remains, such that Buyer is unable to substantially comply with its obligations under this Agreement with respect to all Plants continuously for a period in excess of 12 Months, then, provided such Force Majeure is still in effect at the time of notice, Seller may terminate this Agreement upon 30 Days advance notice without any liability upon either of the Parties to the other Party except to the extent that any amount shall have accrued prior to the occurrence of the event of Force Majeure. |
10.6 | Effect of Termination . Except as expressly provided in Section 10.1 , no Party shall have any right to terminate this Agreement. Upon the termination of this Agreement, this Agreement shall become void and have no effect, subject to Section 17.3 , except that such termination shall not affect any rights or obligations that have vested, matured or accrued at any time prior to such termination. |
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 | Title to Feedstock . Seller warrants title to all Feedstock supplied hereunder and covenants that Seller has all necessary right, authority and interest to sell and deliver the Feedstock under this Agreement and that such Feedstock will be free from liens, encumbrances, adverse claims and proprietary rights at the passing of title at each Receipt Point. |
11.2 | Warranty to Specification . Seller warrants to Buyer that Feedstock delivered hereunder meets the applicable Specifications. |
11.3 | Financial Obligations . Buyer warrants to Seller that it is unaware, as of the date hereof, of any fact related to its financial condition that would prevent it from performing its financial obligations under this Agreement in accordance with the terms and conditions contained herein. |
16
11.4 | Disclaimer of any Other Warranties . EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE PARTIES MAKE NO, AND EXPRESSLY DISCLAIM ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING ANY PLANT OR PORTION THEREOF, THE FEEDSTOCK OR WITH RESPECT TO THE SUBJECT MATTER HEREOF. |
ARTICLE XII
LIMITATIONS ON LIABILITIES
12.1 | Consequential Loss or Damage . Notwithstanding any other provision of this Agreement, no Party shall be liable to the other Party for or in respect of any consequential loss or damage, special or punitive damages or loss of profits or business interruption, suffered or incurred by any other Party arising out of, in connection with, or resulting from, this Agreement, whether any claim for such loss or damage is based on tort (including negligence), strict liability, contract (including breach of or failure to perform this Agreement or the breach of any representation or warranty hereunder, whether express or implied) or otherwise, except as provided in Section 12.2 . |
12.2 | Liquidated Damages Not Penalty . Because of the unique nature of the economic damages and losses that would be sustained under this Agreement where specified damages are used, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by a non-breaching Party in such circumstances. Therefore, it is acknowledged and agreed by the Parties that in such circumstances: (a) it would be impracticable or extremely difficult to fix the actual damages to a non-breaching Party resulting therefrom; (b) any sums that would be payable under this Agreement in such circumstances are stipulated by the Parties to be in the nature of liquidated damages and not a penalty, and are acknowledged and agreed to be fair, reasonable and appropriate; (c) such payment represents a reasonable estimate of compensation for a portion of the losses that may reasonably be anticipated from such failure and shall, without duplication, be the sole and exclusive measurement of monetary damages of such non-breaching Party with respect to such circumstances; and (d) if the breaching Party challenges the enforceability of such liquidated damages, the non-breaching Party may elect at its option for damages in such circumstances to be based on actual damages instead of liquidated damages and such actual damages shall not be subject to the limitations set forth in Section 12.1 . |
12.3 | Exclusive Remedies . Notwithstanding anything to the contrary contained in this Agreement, from and after the Effective Date, this Agreement contains the Parties exclusive remedies against each other with respect to the transactions contemplated hereby, including breaches of the representations, warranties, and agreements of the Parties contained in this Agreement or in any document delivered pursuant to this Agreement. |
17
ARTICLE XIII
INSURANCE
During the Term, each Party shall, for all risks and circumstances that should and may be covered by insurance in accordance with prudent industry practices, purchase and maintain sufficient casualty, environmental, and property insurance in order to satisfy the legal liabilities for bodily injuries and damages to properties (including the properties of such Party) as a result of or in association with the performance of this Agreement and sufficient third party liability insurance and other insurance(s) required by applicable Law and any Governmental Authority.
ARTICLE XIV
CONFIDENTIALITY
14.1 | Information . Each of the Parties agrees that it will utilize any Confidential Information received from the other Party solely in connection with the performance of its obligations hereunder and the exercise by the recipient Party of its rights and remedies hereunder and under applicable Law, and all such Confidential Information will be subject to and bound by the provisions set forth in this Article XIV . Upon termination of this Agreement, the recipient Party shall return or destroy all such Confidential Information (and cease all further use and disclosure of such Confidential Information) that has been provided to it, together with all reproductions thereof in the recipient Partys possession; provided that the recipient Party shall have the right to retain copies of any such information and records that (a) were created by automatic computer generated backup systems or (b) relate to its performance of any services and the exercise of its rights and remedies hereunder or under the Related Agreements and under applicable Law, and all such copies and the information reflected thereon shall be subject to the first sentence of this Section 14.1 and to Section 14.2 . |
14.2 | Definition . Confidential Information means any and all information (regardless of format or medium of exchange) that is disclosed by any disclosing Party or any Affiliate, employee or agent thereof to the recipient Party or any Affiliate, employee or agent of the recipient Party in connection with the performance of this Agreement or the Related Agreements provided that Confidential Information shall not include any information that is publicly known or independently developed by such recipient Party. It is further understood that each Party may have the opportunity as a result of proximity or close operational ties to observe or obtain Confidential Information of any other Party and agrees not to divulge or use such information other than as set forth in this Article XIV . |
14.3 |
Legal Requirement . If the recipient Party is legally required (by interrogatories, discovery requests for information or documents, subpoena, civil or criminal investigative demand or similar process) to disclose any Confidential Information, it is agreed that the recipient Party prior to disclosure will use commercially reasonable efforts to provide the disclosing Party with prompt notice of such request(s) so that the disclosing Party may seek an appropriate protective order or other appropriate remedy or waive the recipient Partys compliance with this Article XIV . If such protective order or other remedy is not obtained, or the disclosing Party grants a waiver hereunder, the recipient Party required to furnish Confidential Information may furnish that portion (and |
18
only that portion) of the Confidential Information which, in the opinion of such Partys counsel, the recipient Party is legally compelled to disclose, and the recipient Party will exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished. Disclosure of Confidential Information by the recipient Party shall not violate this Article XIV to the extent that the recipient Party (or its ultimate parent) in the exercise of reasonable good faith judgment deems it necessary, pursuant to law, regulation or stock exchange rule, to disclose such information in or in connection with filings made with the U.S. Securities and Exchange Commission, any securities exchange upon which debt or equity securities of such recipient Party or its parent may be listed, to any Governmental Authority or in presentations to lenders or ratings agencies. |
14.4 | Survival . The provisions of this Article XIV shall survive the termination of this Agreement for a period of three years following such termination. |
ARTICLE XV
ASSIGNMENT; CHANGE OF CONTROL
15.1 | Assignment Generally . Each Party hereunder shall be entitled to assign all of its rights and obligations under this Agreement with the prior written consent of the other Party, in each case which consent shall not be unreasonably withheld by the non-assigning Party. No assignment hereunder shall release the assigning Party from any of its obligations under this Agreement except to the extent expressly agreed in writing by each other Party. Any purported assignment of this Agreement in violation of this Section 15.1 is null and void ab initio . |
15.2 | Assignment to Affiliates . Notwithstanding the foregoing, this Agreement may be assigned by a Party to an Affiliate (other than the other Party) without the consent of the other Party, provided that such Affiliate executes an agreement satisfactory to the other Party, whereby the Affiliate assumes all of the applicable obligations of the assigning Party under this Agreement; provided further that the assigning Party shall not be released of its obligations under this Agreement such that the assigning Party and its Affiliate shall be jointly and severally liable for the performance of the obligations of the assigning Party hereunder. |
ARTICLE XVI
TAXES
During the Term, Seller shall be responsible for the payment of any sales, use, and excise taxes or any other tax, fee or charge due and levied by any federal, state, local or other Governmental Authority on the Feedstock prior to each Receipt Point and for any taxes, fees or charges due as a result of Seller making Feedstock available to Buyer hereunder, except to the extent any such taxes are, by applicable Law, required to be paid directly by Buyer, in which event such taxes shall be paid by Buyer and reimbursed by Seller, and Seller shall indemnify, defend and hold Buyer harmless from any liability against such taxes, fees or charges. During the Term, Buyer shall be responsible for the payment of any taxes, fees or charges applicable to the Feedstock at or downstream of each Receipt Point and for taxes, fees and charges applicable to any products
19
produced or manufactured from the use of such Feedstock, except to the extent any such taxes are, by applicable Law, required to be paid directly by Seller, in which event such taxes shall be paid by Seller and reimbursed by Buyer, and Buyer shall indemnify, defend and hold Seller harmless from any liability against such taxes, fees or charges. The above notwithstanding, Seller shall remain liable for and Buyer shall have no obligation to reimburse Seller for (a) any taxes imposed on or calculated based upon net profits, gross or net income, profit margin or gross receipts of Seller, (b) any taxes measured by capital value or net worth of Seller; or (c) any ad valorem or personal property taxes on any Plant or the property of Seller. Any penalties or interest imposed by a taxing authority on either Party due to failure to pass information by the other Party will be paid by the Party failing to pass along necessary tax notices.
ARTICLE XVII
MISCELLANEOUS
17.1 | Choice of Law; Submission to Jurisdiction . This Agreement shall be subject to and governed by the laws of the State of Texas, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Each of the Parties hereby agrees: (a) to submit to the exclusive jurisdiction of any state or federal court sitting in Houston, Texas for the enforcement of any arbitration decision pursuant to Section 17.2 , (b) that all claims in respect of any such action or proceeding may be heard and determined in any such court, (c) that such Party will not bring any action or proceeding arising out of or relating to this Agreement in any other court, and (d) that such Party waives any defense of inconvenient forum to the maintenance of any such action or proceeding, and waives any bond, surety or other security that might be required of any other Party with respect to any such action or proceeding. |
17.2 | Dispute Resolution . |
(a) | The dispute resolution provisions set forth in this Section 17.2 shall be the final, binding and exclusive means to resolve all disputes, controversies or claims (each, a dispute ) arising under the Agreement, and EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO ANY TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT. |
(b) | If a dispute arises, the following procedures shall be implemented: |
(i) | Any Party may at any time invoke the dispute resolution procedures set forth in this Section 17.2 as to any dispute by providing written notice of such action to the other Parties. |
(ii) | Notwithstanding the existence of any dispute or the pendency of any procedures pursuant to this Section 17.2 , the Parties agree and undertake that all payments not in dispute shall continue to be made and that all obligations not in dispute shall continue to be performed. |
(iii) |
Within 30 days after receipt of notice of a dispute under Section 17.2(b)(i) , representatives of the Parties shall engage in non-binding mediation, and a |
20
specific timetable and completion date for its implementation shall also be agreed upon. If the completion date therefor shall occur without the Parties having resolved the dispute, then the Parties shall proceed under Section 17.2(b)(iv) . |
(iv) | If, after satisfying the requirement above, the dispute is not resolved, the Parties shall resolve the dispute by a binding arbitration, to be held in the State of Texas pursuant to the Federal Arbitration Act and in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association (the AAA ). The AAA shall select one arbitrator. Each Party shall bear its own expenses incurred in connection with arbitration and the fees and expenses of the arbitrator shall be shared equally by the Parties involved in the dispute and advanced by them from time to time as required. It is the mutual intention and desire of the Parties that the arbitrator be selected as expeditiously as possible following the submission of the dispute to arbitration. Once the arbitrator is selected and except as may otherwise be agreed in writing by the Parties involved in such dispute or as ordered by the arbitrator upon substantial justification shown, the hearing for the dispute will be held within 60 days of submission of the dispute to arbitration. The arbitrator shall render his final award within 60 days, subject to extension by the arbitrator upon substantial justification shown of extraordinary circumstances, following conclusion of the hearing and any required post hearing briefing or other proceedings ordered by the arbitrator. Any discovery in connection with arbitration hereunder shall be limited to information directly relevant to the controversy or claim in arbitration. The decision of the arbitrator in any such proceeding will be reasoned, final and binding and final judgment may be entered upon such an award in any court of competent jurisdiction, but entry of such judgment will not be required to make such award effective. Any action against any Party ancillary to arbitration (as determined by the arbitrator), including any action for provisional or conservatory measures or action to enforce an arbitration award or any judgment entered by any court in respect of any thereof may be brought in any federal or state court of competent jurisdiction located within the State of Texas, and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state court located within the State of Texas over any such action. The Parties hereby irrevocably waive, to the fullest extent permitted by Law, any objection which they may now or hereafter have to the laying of venue of any such action brought in such court or any defense of inconvenient forum for the maintenance of such action. Each of the Parties agrees that a judgment in any such action may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. |
(c) |
The Parties agree that to the extent that there are two or more related disputes arising under (i) this Agreement, (ii) any guarantee issued pursuant to Section 6.5 or (iii) any letter of credit issued pursuant to Section 6.5 (as between these Parties |
21
or the parties to such guarantee or letter of credit), then they consent to the consolidation of those disputes in circumstances where: |
(i) | no arbitration is currently pending under (A) this Agreement, (B) any guarantee issued pursuant to Section 6.5 or (C) any letter of credit issued pursuant to Section 6.5 ; or |
(ii) | the tribunal in the first commenced arbitration (or the AAA where no tribunal has yet been constituted in either case) finds (having invited and allowed opportunity for submissions from all the parties to both arbitrations) that it would be convenient and efficient to do so, having regard to the time and cost impact of consolidating the disputes into one proceeding. Such an application for consolidation must be brought prior to the constitution of a tribunal in the second commenced arbitration in time, and should be resolved within one Month of the application being received by the relevant tribunal/the AAA. |
17.3 | Survival . Cancellation, expiration or termination of this Agreement shall not relieve the Parties of any obligations that, by their very nature, must survive said cancellation, expiration or termination, including choice of law ( Section 17.1 ), dispute resolution provisions ( Section 17.2 ), limitations of liability ( Article XII ), confidentiality provisions ( Article XIV ), and defined terms and certain miscellaneous provisions ( Article I and Article XVII ), all of which shall remain in effect until all rights, obligations and remedies have been finally extinguished, and all disputes under Section 17.2 have been finally resolved. Notwithstanding the foregoing, the statute of limitations for bringing any action with respect to this Agreement or any Partys performance hereunder is not extended by the provisions of this Section 17.3 . |
17.4 | Notice . All notices, requests or consents provided for by, or permitted to be given pursuant to, this Agreement must be in writing and must be given by depositing same in the United States mail, addressed to the Person to be notified, postpaid, and registered or certified with return receipt requested or by delivering such notice in person or by facsimile or e-mail to such Party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by facsimile or e-mail shall be effective upon actual receipt if received during the recipients normal business hours or at the beginning of the recipients next Business Day after receipt if not received during the recipients normal business hours. All notices to be sent to a Party pursuant to this Agreement shall be sent to or made at the address set forth below such Partys signature to this Agreement or at such other address as such Party may stipulate to the other Parties in the manner provided in this Section 17.4 . |
If to Seller:
[To come.]
If to Buyer:
[To come.]
22
17.5 | Entire Agreement . This Agreement and the Related Agreements (including any exhibits or schedules hereto or thereto) constitute the entire agreement of the Parties relating to the matters contained herein and therein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein and therein. |
17.6 | Amendment or Modification . This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto and each such written agreement shall be designated on its face an Amendment or an Addendum to this Agreement. |
17.7 | Counterparts . This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument. |
17.8 | Severability . If any provision of this Agreement shall be finally determined to be unenforceable, illegal or unlawful, such provision shall, so long as the economic and legal substance of the transactions contemplated hereby is not affected in any materially adverse manner as to any Party, be deemed severed from this Agreement and the remainder of this Agreement shall remain in full force and effect. |
17.9 | Further Assurances . In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions. |
17.10 | No Waiver . Failure of any Party to require performance of any provision of this Agreement shall not affect such Partys right to full performance thereof at any time thereafter, and the waiver by any Party of a breach of any provision hereof shall not constitute a waiver of any similar breach in the future or of any other breach or nullify the effectiveness of such provision. |
17.11 | Set Off . Each Party has the right to set off against any amounts due to the other Party hereunder any and all amounts that the other Party owes to the first Party under this Agreement or the Related Agreements. |
17.12 | Rights of Third Parties . The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no third party shall have the right, separate and apart from the Parties to this Agreement, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement. |
17.13 | Legal Relationship . The Parties do not intend to create any sort of partnership, joint venture or any other legal entity by entering into or performing this Agreement. Each Party will perform its obligations under this Agreement in its own name. Each Party will be solely responsible for its own acts and omissions (and the acts and omissions of its employees, consultants and other agents), and without the express written consent of each other Party, no Party will have the authority nor will purport to act for, or legally bind, any other Party in any transaction. |
23
[Remainder of page intentionally left blank. Signature page follows.]
24
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their duly authorized representatives as of the date first set forth above.
SELLER : | ||
W ESTLAKE P ETROCHEMICALS LLC | ||
By: | Westlake Chemical Investments, Inc., | |
its Manager | ||
By: |
|
|
Name: |
|
|
Title: |
|
|
BUYER : | ||
W ESTLAKE C HEMICAL O P C O LP | ||
By: |
|
|
Name: |
|
|
Title: |
|
Signature Page to Feedstock Supply Agreement
SCHEDULE 7.1
SPECIFICATIONS
Ethane Specifications Lake Charles Plants
Attribute |
Specification |
Test Method
|
||||||||||
Ethane |
min. | 95.0 | % | vol | % | ASTM D2163 | ||||||
Methane |
max. | 3.0 | % | vol | % | ASTM D2163 | ||||||
Propane and heavier |
max. | 3.5 | % | vol | % | ASTM D2163 | ||||||
Carbon Dioxide, wt. % |
max. | 1000 | ppm | ASTM D2105 | ||||||||
Sulfur, wt. % |
max. | 30 | ppm | ASTM D2784 |
Propane Specifications Lake Charles Plants
Attribute |
Specification |
Test Method
|
||||||||||
Propane |
min. | 90 | % | vol | % | ASTM D2163 | ||||||
Propylene |
max. | 5.0 | % | vol | % | ASTM D2163 | ||||||
Ethane and lighter |
max. | 5.0 | % | vol | % | ASTM D2163 | ||||||
Sulfur |
max. | 123 | wt. | % | ASTM D2784 | |||||||
Water |
No free water |
Schedule 7.1
Ethane Specifications Calvert City Plant
Attribute |
Specification |
Test Method
|
||||||
Methane |
max. | 3.0 | Liq. vol % | ASTM D-2163 | ||||
Ethane |
min. | 95.0 | Liq. vol % | ASTM D-2163 | ||||
Ethylene |
max. | 1.0 | Liq. vol % | ASTM D-2163 | ||||
Propane and heavier |
max. | 3.5 | Liq. vol % | ASTM D-2163 | ||||
Corrosion, Copper Strip |
No. 1 | ASTM D-1838 | ||||||
Total Sulfur |
max. | 30 | ppm wt. | GPA-2199 | ||||
Water Content |
No Free Water at
sixty degrees (60°) Fahrenheit |
VISUAL | ||||||
Carbon Dioxide |
max. | 1,000 |
ppm
wt. in Liquid |
ASTM D-2504 |
Propane Specifications Calvert City Plant
Component/Property |
Specification |
Test Method
|
||||||||||
Propane |
min. | 90.0 | vol. | % | ASTM D-2163 | |||||||
Propylene |
max. | 5.0 | vol. | % | ASTM D-2163 | |||||||
C 4 s and Heavier |
max. | 2.5 | vol. | % | ASTM D-2163 | |||||||
Vapor Pressure @ 100°F |
max. | 208 | psig | ASTM D-1267 | ||||||||
Specific Gravity @ 60/60°F |
min. | 0.500 | ASTM D-1657 | |||||||||
Specific Gravity @ 60/60°F |
max. | 0.510 | ASTM D-1657 | |||||||||
Sulfur |
max. | 123 |
|
ppm by
weight |
|
ASTM D-2784 | ||||||
Free Water |
None | None |
Schedule 7.1
Exhibit 10.4
FORM OF
SERVICES AND SECONDMENT AGREEMENT
by and between
WESTLAKE CHEMICAL OPCO LP
and
WESTLAKE MANAGEMENT SERVICES, INC.
and
WESTLAKE VINYLS, INC.
and
WPT LLC
and
WESTLAKE PETROCHEMICALS LLC
, 2014
TABLE OF CONTENTS
PAGE | ||||||
ARTICLE I | ||||||
DEFINITIONS, CONSTRUCTION | ||||||
1.1 |
Definitions |
1 | ||||
1.2 |
Construction |
6 | ||||
ARTICLE II | ||||||
SHARED SERVICES | ||||||
2.1 |
Engagement of the Westlake Parties |
6 | ||||
2.2 |
Common Facilities Services |
6 | ||||
2.3 |
Utility Services |
8 | ||||
2.4 |
Permits |
9 | ||||
2.5 |
Consultations |
10 | ||||
2.6 |
Relationship of the Parties |
10 | ||||
ARTICLE III | ||||||
OPERATING SERVICES | ||||||
3.1 |
Seconded Employees of the Westlake Parties |
10 | ||||
3.2 |
Owners Rights |
11 | ||||
3.3 |
Consultations |
11 | ||||
3.4 |
Title, Documents and Data |
11 | ||||
ARTICLE IV | ||||||
WESTLAKE PROVIDED UTILITIES | ||||||
4.1 |
Engagement of the Westlake Parties |
11 | ||||
4.2 |
High Pressure Steam |
11 | ||||
4.3 |
Other Steam |
12 | ||||
4.4 |
Consultations |
12 | ||||
ARTICLE V | ||||||
OWNER PROVIDED SERVICES | ||||||
5.1 |
Engagement of Owner |
12 | ||||
5.2 |
Owner Provided Services |
12 | ||||
5.3 |
Consultations |
13 | ||||
5.4 |
Relationship of the Parties |
13 | ||||
ARTICLE VI | ||||||
ADDITIONAL SERVICES | ||||||
6.1 |
Additional Westlake Provided Services |
13 | ||||
6.2 |
Additional Seconded Employees |
13 | ||||
6.3 |
Additional Westlake Provided Utilities |
13 | ||||
6.4 |
Additional Owner Provided Services |
14 |
i
ARTICLE VII | ||||||
AUTHORIZED PERSONS AND EMPLOYEES | ||||||
7.1 |
Delegation |
14 | ||||
7.2 |
Personnel and Secondment |
14 | ||||
ARTICLE VIII | ||||||
BUDGETS, AUDITS AND ACCOUNTING | ||||||
8.1 |
Approved Annual Budgets |
16 | ||||
8.2 |
Unbudgeted Expenditures |
16 | ||||
8.3 |
Accounting, Reimbursement and Fee |
17 | ||||
8.4 |
Reports |
17 | ||||
8.5 |
Audit and Examination |
17 | ||||
ARTICLE IX | ||||||
STANDARD OF CARE, NEGATIVE COVENANTS, CONFIDENTIAL INFORMATION AND PROPRIETARY INVENTIONS | ||||||
9.1 |
Standard of Care |
17 | ||||
9.2 |
Negative Covenants |
18 | ||||
9.3 |
Proprietary Inventions and Techniques |
18 | ||||
ARTICLE X | ||||||
PAYMENT OF COSTS | ||||||
10.1 |
Payments |
18 | ||||
10.2 |
Reimbursement for Emergencies |
19 | ||||
ARTICLE XI | ||||||
TAXES | ||||||
11.1 |
Embedded Tax Amounts |
20 | ||||
11.2 |
Income Taxes |
20 | ||||
ARTICLE XII | ||||||
WARRANTY/CLAIMS | ||||||
12.1 |
Warranties |
21 | ||||
12.2 |
Claims |
21 | ||||
ARTICLE XIII | ||||||
TERMINATION | ||||||
13.1 |
Term |
21 | ||||
13.2 |
Termination |
21 | ||||
13.3 |
Self Help |
22 | ||||
13.4 |
General Obligations |
22 |
ii
ARTICLE XIV | ||||||
ACCESS TO ETHYLENE ASSETS | ||||||
ARTICLE XV | ||||||
INDEMNIFICATION | ||||||
15.1 |
By the Westlake Parties |
23 | ||||
15.2 |
By Owner |
23 | ||||
15.3 |
Indemnification Procedures |
23 | ||||
ARTICLE XVI | ||||||
FORCE MAJEURE | ||||||
16.1 |
Force Majeure Event |
24 | ||||
16.2 |
Force Majeure Notice |
24 | ||||
ARTICLE XVII | ||||||
OTHER PROVISIONS | ||||||
17.1 |
Assignment |
24 | ||||
17.2 |
Notices |
25 | ||||
17.3 |
Severability |
25 | ||||
17.4 |
Entire Agreement |
25 | ||||
17.5 |
Amendment or Modification |
26 | ||||
17.6 |
No Waiver |
26 | ||||
17.7 |
Safety Regulations |
26 | ||||
17.8 |
Relationship of Parties |
26 | ||||
17.9 |
Governing Law |
26 | ||||
17.10 |
Dispute Resolution |
26 | ||||
17.11 |
Waiver of Consequential Damages |
27 | ||||
17.12 |
Further Assurances |
27 | ||||
17.13 |
Set Off |
27 | ||||
17.14 |
Counterparts |
27 | ||||
17.15 |
Rights of Third Parties |
27 |
iii
SCHEDULES
SCHEDULE 1 |
Ethylene Assets |
|
SCHEDULE 2 |
Common Facilities |
|
SCHEDULE 3 |
Common Facilities Services |
|
SCHEDULE 4 |
Utility Services |
|
SCHEDULE 5 |
Operating Services |
|
SCHEDULE 6 |
Owner Provided Services |
|
SCHEDULE 7 |
Accounting Procedures |
iv
SERVICES AND SECONDMENT AGREEMENT
THIS AGREEMENT is made effective as of , 2014, by and between Westlake Chemical OpCo LP, a Delaware limited partnership ( Owner ), and Westlake Management Services, Inc., a Delaware corporation ( WMSI ), Westlake Vinyls, Inc., a Delaware corporation ( Vinyls ), WPT LLC, a Delaware limited liability company ( WPT ) and Westlake Petrochemicals LLC, a Delaware limited liability company ( Petrochemicals ) (collectively, the Westlake Parties ). Owner and the Westlake Parties are sometimes referred to herein separately as Party or collectively as the Parties .
RECITALS
Owner is owner of the Ethylene Assets and Westlake Chemical Corporation ( Westlake Chemical ) and the Westlake Parties are the owners of the adjacent Westlake Facilities and the Common Facilities. The Ethylene Assets are currently connected to and have been operated on an integrated basis with the Westlake Facilities.
In order to continue to operate the Ethylene Assets and the Westlake Facilities in an efficient manner, Owner and the Westlake Parties have agreed to common use of the Common Facilities and Utility Services. The Westlake Parties have agreed to provide certain shared services and Seconded Employees who Owner will use in the operation and maintenance of the Ethylene Assets, and Owner has agreed to provide certain purge gas processing services and certain other services relating to the operation of the Westlake Facilities, in accordance with the terms of this Agreement.
Furthermore, the Parties and certain of their Affiliates have agreed to provide each other with certain utilities for use in their respective production processes.
Concurrent with the execution of this Agreement, Owner and the Westlake Parties or certain of their Affiliates will enter into the Related Agreements.
AGREEMENT
NOW, THEREFORE, Owner and the Westlake Parties hereby agree as follows:
ARTICLE I
DEFINITIONS, CONSTRUCTION
1.1 Definitions. In this Agreement, capitalized terms used, but not otherwise defined, shall have the respective meanings given to such terms set forth below:
Accounting Procedures means the terms and provisions set forth in Schedule 7.
Affiliate means (i) with respect to the Westlake Parties, any other Person that directly or indirectly through one or more intermediaries is controlled by Westlake Chemical, excluding GP and any other Person that directly or indirectly through one or more intermediaries is controlled by GP (including Owner); and (ii) with respect to Owner, GP and any other Person that directly or indirectly through one or more intermediaries is controlled by GP. As used herein, the term control means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
Applicable Law means all statutes, regulations, rules, ordinances, codes, licenses, permits, orders, approvals and rules of common law of each Governmental Authority having jurisdiction over the Parties, including Environmental Laws, all health, building, fire, safety and other codes, ordinances and requirements and all applicable standards of the National Board of Fire Underwriters, in each case, as amended, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree, judgment or settlement; in each case, as applicable to Owner, the Westlake Parties, the Ethylene Assets or the Westlake Facilities.
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Agreement means this Services and Secondment Agreement, as the same may be amended.
Approved Annual Budget shall mean the budget so labeled and already approved by Owner and the Westlake Parties for the period commencing on the date of this Agreement and ending December 31, 2014 and the budget for any applicable succeeding Fiscal Year proposed by the Westlake Parties, subject to Section 8.1.
Bankruptcy Proceeding means with respect to a Party or entity, such Party or entity (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (iv) institutes a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights; (v) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights, or a petition is presented for its winding up or liquidation, and any such proceeding or petition is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (vi) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); (vii) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; (viii) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced, or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (ix) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (i) to (viii) (inclusive); or (x) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
Base Rate shall mean, interest compounded on a Monthly basis, at the rate per annum equal to the one-month term, London Interbank Offered Rate (LIBOR rate) for U.S. dollar deposits, as published by The Wall Street Journal or if not published, then by the Financial Times of London.
Business Day means any day other than a Saturday, a Sunday, or a holiday on which national banking associations in the State of Texas are closed.
Calvert City Assets means an ethylene plant in Calvert City, Kentucky, owned by Owner and more fully described on Schedule 1.
Capital Expenditures means all Expenditures that are capitalized by the Westlake Parties or Owner, as applicable in accordance with GAAP and the relevant Partys accounting capitalization procedures, in each case as consistently applied and as in effect from time to time.
Claims shall have the meaning set forth in Section 15.1.
Code means the Internal Revenue Code of 1986, as amended.
Common Facilities means certain facilities owned by the Westlake Parties and their Affiliates in Calvert City, Kentucky and Lake Charles, Louisiana, and described on Schedule 2, and any other facilities owned by the Westlake Parties and their Affiliates as may be required for the performance of the Shared Services.
Common Facilities Services means those services described in Section 2.2 and Schedule 3.
Common Units means common units representing limited partner interests in the MLP.
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Conflicts Committee shall have the meaning ascribed to such term in the MLPs agreement of limited partnership, as amended from time to time.
Default Rate shall mean the Base Rate plus two percentage points per annum, applicable on the first Business Day prior to the due date of payment and thereafter on the first Business Day of each succeeding Month; provided, however, that the Default Rate shall never exceed the maximum rate permitted by Applicable Law.
Demineralized Water means demineralized water produced by the Lake Charles Assets.
Dispute shall have the meaning set out in Section 17.10(a).
Emergency means the events described in Section 10.2(b).
Environmental Law or Environmental Laws means any and all Applicable Laws pertaining to (i) pollution, protection of the environment (including natural resources), or workplace health and safety, (ii) any Release, threatened Release or exposure of any Person or property to Hazardous Substances, or (iii) the generation, manufacture, processing, distribution, use, treatment, storage, disposal, transport, arrangement for disposal or transport, or handling of Hazardous Substances. Without limiting the foregoing, Environmental Laws include including the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; 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 Clean Air Act, 42 U.S.C. § 7401 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq.; the Oil Pollution Act, 33 U.S.C. § 2701 et seq.; the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 et seq.; the Safe Drinking Water Act, 42 U.S.C. §§ 300f through 300j; the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; and all similar Applicable Laws of any Governmental Authority having jurisdiction over the Ethylene Assets or the Westlake Facilities or their respective operations, and all amendments to such Applicable Laws and all regulations implementing any of the foregoing.
Ethylene Assets means the Calvert City Assets, the Lake Charles Assets and the Ethylene Pipeline, collectively.
Ethylene Pipeline means an ethylene pipeline from Mont Belvieu, Texas to Longview, Texas, owned by Owner.
Ethylene Sales Agreement means the Ethylene Sales Agreement between Owner and certain Affiliates of Westlake Chemical, dated of even date herewith, as the same may be amended.
Expenditure means a cost, expense or expenditure.
Feedstock Supply Agreement means the Feedstock Supply Agreement between Owner and Petrochemicals, dated of even date herewith, as the same may be amended.
Fiscal Year means each 12 month period beginning on the first day of January of a year and ending on December 31 of the same year; provided, the first Fiscal Year hereunder shall begin on the date of this Agreement and shall end on December 31, 2014; and further provided, the last Fiscal Year shall end at the expiration or termination of this Agreement.
First Approved Annual Budget shall have the meaning set forth in Section 8.1(a).
Force Majeure Event means the following events, conditions and circumstances, and all similar events, conditions and circumstances of the kind enumerated herein, for which a Party is rendered, wholly or substantially, unable to perform its obligations hereunder, except in each case, (i) to the extent any of the following is within the reasonable control of, could be sufficiently alleviated by the reasonable efforts of, or is caused by the gross negligence, breach or default of, the Party claiming the Force Majeure, and provided that, the Party claiming the Force Majeure takes all reasonable efforts to mitigate the effects of the Force Majeure and (ii) that changes in costs of goods and services (including amounts payable under the Related Agreements), changes in costs of regulatory or other compliance with Applicable Law, and the lack of finances do not constitute Force Majeure:
(a) any act of God or the public enemy, fire, explosion, perils of the sea, flood, unusually bad weather (including hurricanes, tornadoes and ice storms), drought, war, terrorism, national emergency, riot, sabotage or embargo, and any interruption of or delay in transportation, electrical or other utility shortage or blackout, or any inadequacy or shortage or failure or breakdown of supply of raw materials or equipment or mechanical breakdown or other production shutdown or accident to machinery;
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(b) any Labor Difficulties from whatever cause arising and whether or not the demands of the employees involved are within the power of the claiming Party to concede, including Labor Difficulties affecting transportation facilities, raw material supplies or services to the Westlake Facilities, Ethylene Assets or Common Facilities, which shall constitute events of Force Majeure to the extent that such Labor Difficulties affect a Partys ability to perform its obligations hereunder;
(c) compliance with any order, action, direction or request of any Governmental Authority or with any Applicable Law not brought about by any action or omission on the part of the Party claiming the Force Majeure.
GAAP means United States generally accepted accounting principles as in effect from time to time.
Governmental Authority means any governmental authority, agency, department, commission, bureau, board, instrumentality, court or quasi-governmental authority of any foreign nation, the United States, or any state that has or obtains jurisdiction over the matter in question, or any political subdivision thereof.
GP means Westlake Chemical Partners GP LLC, the general partner of the MLP.
High Pressure Steam means steam described in Schedule 6 under the heading High Pressure Steam, all within the tolerances and in compliance with the specifications therein contained.
Indemnified Party shall have the meaning set forth in Section 15.3(a).
Indemnifying Party shall have the meaning set forth in Section 15.3(a).
Initial Term shall have the meaning set forth in Section 13.1.
Labor Difficulties means strikes and lockouts, both legal and illegal, and other forms of organized actions, howsoever called, by labor or other personnel to stop or significantly reduce or slow down work or production or to withdraw or withhold labor or services.
Lake Charles Assets means ethylene plants Petro 1 and Petro 2 and the co-products storage and shipping area in Lake Charles, Louisiana, owned by Owner and more fully described on Schedule 1.
Limited Partner is defined in the Partnership Agreement.
MLP means Westlake Chemical Partners LP.
Month means calendar month.
Monthly Invoice shall have the meaning set forth in Section 10.1(a).
Non-Discriminatory Basis means performing any Service or taking any other action without a preference or bias which unduly favors the Westlake Facilities or any part or operation thereof over the Ethylene Assets or any part or operation thereof or vice versa.
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Omnibus Agreement means the Omnibus Agreement between Owner, Westlake Chemical and certain of its Affiliates, dated of even date herewith, as the same may be amended.
Operating Expenses means all Expenditures that are treated as operating expenses in accordance with GAAP and the Westlake Parties accounting procedures, in each case as consistently applied and as in effect from time to time.
Operating Services have the meaning set forth in Section 3.1.
Owner shall have the meaning set forth in the first paragraph.
Owner Group shall have the meaning set forth in Section 15.2.
Owner Indemnified Parties shall have the meaning set forth in Section 15.1.
Owner Provided Services shall have the meaning set forth in Section 5.2.
Partnership Agreement means the First Amended and Restated Agreement of Limited Partnership of Westlake Chemical Partners LP, dated as of [ ], as such agreement is in effect on [ ], to which reference is hereby made for all purposes of this Agreement. No amendment or modification to the Partnership Agreement subsequent to [ ] shall be given effect for the purposes of this Agreement unless consented to by each of the Parties to this Agreement.
Party or Parties means any of the entities named in the first paragraph to this Agreement and any respective successors or permitted assigns in accordance with the provisions of this Agreement.
Period of Secondment shall have the meaning set forth in Section 7.2(b).
Permit means all permits, licenses, franchises, consents, authorizations, certifications, exemptions, variances, and approvals, as necessary under Applicable Laws for operating the Ethylene Assets.
Person means any natural person, corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, joint stock company or Governmental Authority.
Petrochemicals has the meaning set forth in the first paragraph.
Purge Gas means such purge gas from the LDPE Plant, located near the Lake Charles Assets, and owned by Westlake Polymers LLC.
Related Agreements means the Site Lease Agreements, the Omnibus Agreement, the Ethylene Sales Agreement and the Feedstock Supply Agreement.
Renewal Term shall have the meaning set forth in Section 13.1.
Seconded Employee(s) shall have the meaning set forth in Section 7.2(b).
Services means the Operating Services, the Shared Services, the Westlake Provided Utilities and the Owner Provided Services.
Shared Services shall have the meaning set forth in Section 2.1.
Site Lease Agreements means, collectively, (i) the Calvert City Site Lease Agreement between Owner and Vinyls; and (ii) the Lake Charles Site Lease Agreement between Owner, WPT and Petrochemicals, each dated of even date herewith, as the same may be amended.
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Subject Services shall have the meaning set forth in Section 13.3.
Term shall have the meaning set forth in Section 13.1.
Utility Services has the meaning set forth in Section 2.3(a).
Vinyls shall have the meaning set forth in the first paragraph.
Westlake Chemical shall have the meaning set forth in the Recitals.
Westlake Facilities means certain facilities all owned by the Westlake Chemical, the Westlake Parties and their Affiliates in Calvert City, Kentucky and Lake Charles, Louisiana and other assets and properties near the Ethylene Assets, other than the Common Facilities.
Westlake Group shall have the meaning set out in Section 15.1.
Westlake Indemnified Parties shall have the meaning set forth in Section 15.2.
Westlake Parties shall have the meaning set forth in the first paragraph.
Westlake Provided Services means the Operating Services and the Shared Services.
Westlake Provided Utilities shall have the meaning set forth in Section 4.1.
WMSI shall have the meaning set forth in the first paragraph.
WPT shall have the meaning set forth in the first paragraph.
1.2 Construction . In construing this Agreement, the following principles shall be followed: (a) no consideration shall be given to the captions of articles, sections or subsections; (b) no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Agreement; (c) the word includes and its syntactic variants means includes, but is not limited to and corresponding syntactic variant expressions; and (d) the plural shall be deemed to include the singular, and vice versa.
ARTICLE II
SHARED SERVICES
2.1 Engagement of the Westlake Parties. Subject to the terms of this Agreement, Owner hereby engages the Westlake Parties to perform the Common Facilities Services (as defined below) and make available the Utility Services (as defined below) (together, the Shared Services ). Owner hereby authorizes the Westlake Parties to perform all acts that are necessary or appropriate in the reasonable judgment of the Westlake Parties, to perform the Shared Services and the Westlake Parties hereby accept such engagement and agree to perform all acts necessary or appropriate in the reasonable judgment of the Westlake Parties, to perform the Shared Services, all in accordance with the terms and conditions and subject to the limitations set forth in this Agreement.
2.2 Common Facilities Services.
(a) The Westlake Parties hereby grant Owner full and free access to and use of the Common Facilities in accordance with the Westlake Parties policies, procedures and requirements and at all times in accordance with the terms of this Agreement, as necessary or appropriate for Owner to operate the Ethylene Assets; provided that such access shall not materially and unreasonably interfere with the operations of the Westlake Facilities; and
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(b) The Westlake Parties shall have the responsibility for maintaining the Common Facilities for use by the Westlake Facilities and the Ethylene Assets, including, but not limited to, the following services and those listed on Schedule 3:
(i) issuing and enforcing health, safety and environmental policies, procedures and requirements and other activities relating to the Common Facilities, and training employees of the Westlake Parties, Owner, their Affiliates or their subcontractors with respect thereto;
(ii) training all employees of the Westlake Parties and their Affiliates employed in connection with the operation and maintenance of the Common Facilities;
(iii) performing safety reviews associated with the Common Facilities in accordance with the applicable policies, procedures and requirements;
(iv) taking such actions as they deem necessary to keep the Common Facilities in sound operating condition, including overseeing site administration and preparing and maintaining daily operating logs and records regarding the operation and maintenance of the Common Facilities in accordance with the policies, procedures and requirements of this Agreement;
(v) providing such information for technical evaluation of the Common Facilities as may be reasonably requested by Owner subject to the terms and conditions of this Agreement at Owners sole cost and expense;
(vi) carrying out such periodic performance tests of the Common Facilities as they deem necessary to operate the Common Facilities in accordance with this Agreement and recommending to Owner any remedial action that the Westlake Parties consider necessary or prudent to correct any operational deficiencies revealed by analysis of the test results or otherwise discovered during operation of the Common Facilities, and, at Owners sole cost and expense, carrying out such additional tests as Owner may reasonably request (provided that such additional tests do not materially and unreasonably interfere with the operation by the Westlake Parties of the Westlake Facilities);
(vii) providing such engineering services as they deem necessary for the operation and maintenance of the Common Facilities in accordance with this Agreement;
(viii) managing, organizing and supervising any contracted and subcontracted maintenance, repair and testing services used to carry out scheduled inspections, periodic overhauls, scheduled and unscheduled maintenance, and any major breakdown repairs of the Common Facilities;
(ix) advising Owner by telephone (with confirmation in writing) as soon as practicable of the occurrence of any event or the reasonable probability of occurrence of any event (including a Force Majeure Event) that could have a material adverse effect or has had a material adverse effect on the operation and maintenance of the Common Facilities;
(x) maintaining accounting records regarding the Common Facilities Services in accordance with this Agreement;
(xi) promptly notifying Owner of all material defects in the Common Facilities; and
(xii) procuring of all goods and services they deem necessary to maintain the Common Facilities; and storing all items so procured in accordance with the same practices and procedures used by the Westlake Parties in connection with the storage of similar items for the Westlake Facilities.
(c) Owner hereby engages the Westlake Parties to provide the services described in this Section 2.2(c), including all necessary or desirable services in connection therewith, for the benefit of the Westlake Facilities and the Ethylene Assets:
(i) maintaining or causing to be maintained all roads, easements, yards, parking areas, walkways, environmental compliance equipment and utilities located on or at the Common Facilities or necessary for access to or for the operation and maintenance of the Ethylene Assets and the Common Facilities;
7
(ii) maintaining or causing to be maintained fire protection, health equipment and safety equipment required in connection with the operation and maintenance of the Ethylene Assets and the Common Facilities;
(iii) providing or causing to be provided reasonably adequate security, firefighting, wastewater treatment and emergency response services (including fire brigade, rescue and hazmat teams) for the Ethylene Assets and the Common Facilities in accordance with standards established by Applicable Law and not less than the quality being used in the operation of the Common Facilities and the Ethylene Assets as of the date of this Agreement, and as otherwise mutually agreed upon by the Parties;
(iv) providing or causing to be provided transportation, loading and unloading services (including tank car and barge facilities and repair services) for use in the movement of such raw materials, process chemicals and other supplies and fuels as required in connection with the operation of the Ethylene Assets and the Common Facilities;
(v) providing accounting and human resources services, marketing services and purchasing of such chemicals and supplies as required in connection with the operation of the Ethylene Assets and the Common Facilities;
(vi) providing information technology, telephone, office support and other technology and support services for the Ethylene Assets and the Common Facilities;
(vii) providing water control management services, quality control and laboratory services required for the Ethylene Assets and the Common Facilities;
(viii) providing cooling tower services and waste treatment in connection with the operation of the Ethylene Assets and the Common Facilities; and
(ix) providing housekeeping services for the Ethylene Assets and the Common Facilities, including HVAC, janitorial services, weed control, and trash pickup,
(subsections (a), (b) and (c), collectively, the Common Facilities Services ).
2.3 Utility Services .
(a) The Westlake Parties are party to various contracts with utilities and other parties pursuant to which the Ethylene Assets and the Westlake Facilities receive electricity, natural gas, nitrogen, water and other utility services described on Schedule 4 (collectively, the Utility Services ) necessary to operate and maintain the Ethylene Assets, the Westlake Facilities and the Common Facilities. Subject to the terms and provisions of this Agreement, the Westlake Parties shall use commercially reasonable efforts to make available to Owner electricity, natural gas, fuel gas, boiler feed water, cooling water, potable water, steam, process steam and such other services as may be needed to operate the Ethylene Assets. The quality, standards and specifications for such Utility Services shall be suitable for the operation of the Common Facilities and the Ethylene Assets in accordance with standards and quality being used in the operation of the Common Facilities and the Ethylene Assets as of the date of this Agreement or as may be reasonably requested by Owner based upon changed needs. It is understood that the Utility Services are furnished by outside providers who supply services to the Westlake Facilities and that Owner shares the expense related to such services in accordance with this Agreement. The Westlake Parties are not public utilities or common carriers and do not sell, provide or furnish utility services or utilities, and are not in the business of selling, providing or furnishing such services or utilities, but rather share the costs thereof in accordance with this Agreement.
(b) Owner shall provide the Westlake Parties with timely information regarding any changes in Owners requirements for Utility Services and the Westlake Parties shall consult with Owner and consider Owners interest on an equal footing along with the interests of the Westlake Parties concerning any negotiations with third parties from whom the Westlake Parties obtain or propose to obtain Utility Services relating to the Common Facilities or the Ethylene Assets.
8
(c) The Westlake Parties shall not enter into contracts with third Persons with respect to the provision of Utility Services to the Ethylene Assets without the prior written consent of Owner, which consent shall not be unreasonably withheld. At the request of Owner, the Westlake Parties shall use commercially reasonable efforts to (i) add Owner as a party to the Westlake Parties utility contract or (ii) reach a mutually acceptable accommodation with one or more of the Westlake Parties utility providers whereby each Party would be able to receive utility services on an individual basis.
(d) Notwithstanding anything to the contrary, in the event that the Westlake Parties delivery of electricity, water or other Utility Service to Owner is challenged before a judicial, regulatory or administrative body and the Westlake Parties determine, in their sole judgment, that it is likely that such body will determine that, in connection with such challenge, the Westlake Parties or their affected Affiliate will be subject to regulation under Applicable Law as a consequence of such delivery of electricity, water or other Utility Service (including the regulation or classification of the Westlake Parties or such Affiliate, as the case may be, as a utility, public utility, retail public utility, electric utility, retail electric utility, common carrier, water and sewer utility or similar designation), then the Westlake Parties and Owner will cooperate in an attempt to restructure the provision of such Service in a manner which will not subject the Westlake Parties to such regulation (provided that any such restructure does not materially and unreasonably interfere with the Westlake Parties or Owners operations or cause significant net economic detriment to the Westlake Parties or Owner). If such restructuring efforts are unsuccessful or not reasonably practicable, then the Westlake Parties shall have the right to require Owner to obtain from a third party such electricity, water or other Utility Service that would cause the Westlake Parties to be subject to regulation as a utility, and the Westlake Parties will cooperate with Owner in connection therewith and shall grant such access rights or similar rights as may be reasonably necessary for such Utility Service to be so provided to Owner. In the event that a challenge proceeds despite restructuring, then the Westlake Parties will provide notice to Owner of any such challenge and the Westlake Parties and Owner will cooperate to resist the challenge. The cost of resisting such challenge pursuant to a mutually agreed upon course of action shall be paid equally by the Westlake Parties and Owner. Any penalty, fee or fine imposed on the Westlake Parties or their Affiliate, as a result of the Westlake Parties delivery of electricity, water or other Utility Service to Owner shall be shared pro rata by the Westlake Parties and Owner in proportion to the consumption of the Utility Service being challenged. If such challenges and restrictions are removed, pursuant to appeal or otherwise, so that the Westlake Parties and their Affiliates will not be subject to such regulation, Owner will resume receipt of the affected Utility Service in accordance with the terms of this Agreement.
(e) If the Westlake Parties become aware of any planned or actual outage or involuntary reduction with respect to any of the Utility Services, the Westlake Parties shall promptly give notice thereof to Owner and the Westlake Parties shall coordinate such outage or reduction as nearly as reasonably practicable on a Non Discriminatory Basis so as to minimize adverse impact on each Partys respective operations (with the standard being the equitable allocation of such Utility Services between the Westlake Facilities and the Ethylene Assets).
2.4 Permits.
(a) Subject to section [ 3.5 ] of each of the Site Lease Agreements, the Westlake Parties shall use commercially reasonable efforts to (i) obtain and maintain with respect to the Ethylene Assets, the Westlake Facilities and the Common Facilities, all Permits for which Owner is not a necessary and indispensable party, including with respect to Environmental Law, reasonably necessary in connection with the ownership or operation thereof, and (ii) use commercially reasonable efforts to comply with all conditions and requirements imposed by such Permits, including all sampling, testing and monitoring required by any Permit or Governmental Authority in connection with any Permit.
(b) Owner shall cooperate in all reasonable respects with the Westlake Parties in Westlakes obtaining and maintaining all necessary Permits, including Owners signing, submitting and prosecuting all applications or submissions for Permits with respect to the Ethylene Assets for which Owner is a necessary and indispensable party and taking every other action reasonably required of Owner to enable the Westlake Parties to perform their obligations under Section 2.4(a). Owner shall notify the Westlake Parties promptly of any written notification that
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Owner receives of any investigation, proceeding or other action commenced by any Governmental Authority relating to any such Permit or Applicable Law with respect to the Ethylene Assets. Owner shall promptly provide the Westlake Parties with copies of any and all written notices or other communications received by Owner from any Government Authority with respect to the Ethylene Assets and, at the reasonable request of the Westlake Parties, any other information or document that is within Owners possession relating to such Ethylene Asset Permits or any Westlake obligations thereunder.
2.5 Consultations .
(a) The Westlake Parties and Owner agree to meet for the purpose of coordinating outages or involuntary reductions in the availability of the Common Facilities on a Non-Discriminatory Basis so as to minimize adverse impact on each Partys respective operations (with the standard being the equitable allocation of such services between the Westlake Facilities and the Ethylene Assets). The Westlake Parties shall provide notice of any outages or reductions in availability of Common Facilities to Owner promptly after becoming aware of any such outage or reduction. The Parties shall commit to keep each other timely informed about planned turnarounds, shutdowns, major technical projects, capital projects, significant operational events and other major events that are relevant to the safe and efficient operation of the Ethylene Assets and the performance of Owners obligations under this Agreement.
(b) At Owners request from time to time, the Westlake Parties shall consult with Owner with respect to the performance of the Shared Services and shall provide to Owner such information as may be reasonably requested by Owner regarding the performance of the Shared Services. Without limiting the foregoing, the Westlake Parties and Owner shall consult as frequently as reasonably necessary regarding the scope of Shared Services and particular circumstances that may require an adjustment to the scope of any such Shared Services. The Westlake Parties and Owner agree that the Ethylene Assets will be operated to the maximum extent possible in an efficient manner with the Westlake Facilities, but in any event in a manner that permits Owner to comply with its obligations under this Agreement and the Related Agreements.
(c) The Westlake Parties shall deliver to Owner at least (i) twelve months advance written notice of any permanent planned shutdown of the Westlake Facilities and (ii) nine months advance written notice of any planned reconfiguration of the Westlake Facilities that is reasonably anticipated to result in the Ethylene Assets being shutdown for more than three months (excluding planned maintenance turnarounds). The Westlake Parties represent to Owner that, as of the date of this Agreement, they are not considering a permanent shutdown of the Westlake Facilities or any changes to the Westlake Facilities that would have a material adverse effect on the operation of the Westlake Facilities or the Ethylene Assets.
2.6 Relationship of the Parties. At all times during the performance of the Shared Services hereunder, all Persons performing such Shared Services (including agents, temporary employees, independent third parties and consultants) shall be construed as being independent from the Owner, and such Persons shall not be considered or deemed to be an employee of Owner or its Affiliates nor entitled to any employee benefits of Owner or its Affiliates as a result of this Agreement. Notwithstanding anything to the contrary expressed or implied, this Agreement shall not constitute or create any agency, joint venture, partnership or other fiduciary relationship or any fiduciary duty or fiduciary obligation, all of the same being hereby expressly disclaimed and waived.
ARTICLE III
OPERATING SERVICES
3.1 Seconded Employees of the Westlake Parties . Subject to the terms of this Agreement, the Westlake Parties agree to provide Seconded Employees (as defined in Section 7.2(b)) who, in their capacity as employees of the Owner, will perform the services described on Schedule 5, except as outsourced by Owner to third party service providers (the Operating Services ), in order for the Owner to operate the Ethylene Assets in an efficient manner with the Westlake Facilities, and in a manner that permits Owner to comply with its obligations under the Ethylene Sales Agreement and Feedstock Supply Agreement. The Seconded Employees will perform the Operating Services in accordance with the terms and conditions and subject to the limitations set forth in this Agreement.
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3.2 Owners Rights. The Seconded Employees shall be subject to the direction and control of Owner. The Westlake Parties shall respond in a commercially reasonable manner to all instructions, notices, requests or inquiries from Owner with respect to the Seconded Employees. Decisions, acts or omissions so undertaken by the Seconded Employees or the Westlake Parties with respect to the Seconded Employees pursuant to the direction and control of Owner shall not give rise to any breach of or default under this Agreement by the Westlake Parties or liability to the Westlake Parties provided that the Westlake Parties otherwise act in accordance with the requirements of Section 3.1.
3.3 Consultations . The Westlake Parties and Owner shall consult as frequently as reasonably necessary regarding the scope of Operating Services to be performed by the Seconded Employees and particular circumstances that may require an adjustment to the Westlake Parties obligation to provide the Seconded Employees, and shall keep each other timely informed about planned turnarounds, shutdowns, major technical projects, capital projects, significant operational events and other major events that are relevant to the safe and efficient operation of the Ethylene Assets and the Westlake Facilities and the performance of the Parties respective obligations under this Agreement.
3.4 Title, Documents and Data. Title to all materials, equipment, supplies, consumables, spare parts and other items purchased or obtained by the Westlake Parties for or on behalf of the Ethylene Assets or Owner shall pass immediately to and vest in Owner free and clear of all liens or encumbrances (other than liens and security interests securing any unpaid portion of the purchase price for the same) upon passage of title from the vendor or supplier thereof. All materials, data and documents prepared or developed by the Westlake Parties or their employees, representatives or contractors prior to or during the Term of this Agreement for Owner in connection with the Seconded Employees performance of the Operating Services, including all manuals, data, designs, drawings, plans, specifications and reports, shall belong to Owner. All such materials in whatever form, including electronic copies and databases, shall be provided promptly to Owner following any termination of this Agreement, or at such other times as Owner may reasonably direct.
ARTICLE IV
WESTLAKE PROVIDED UTILITIES
4.1 Engagement of the Westlake Parties . Subject to the terms of this Agreement, Owner hereby engages the Westlake Parties to, or to cause their Affiliates to, make available the utility services described in Sections 4.2 and 4.3 (the Westlake Provided Utilities ) and authorizes the Westlake Parties to perform, or cause to be performed, all acts that are necessary or appropriate in the Westlake Parties reasonable judgment to provide the Westlake Provided Utilities. The Westlake Parties hereby accept such engagement and agree to perform, or cause to be performed, all acts necessary or appropriate in the Westlake Parties reasonable judgment to provide the Westlake Provided Utilities, all in accordance with the terms and conditions and subject to the limitations set forth in this Agreement. The Westlake Parties agree to provide, or cause to be provided, the Westlake Provided Utilities to permit the Ethylene Assets to be operated to the maximum extent possible in an efficient manner with the Westlake Facilities, but in any event in a manner that permits Owner to comply with its obligations under the Ethylene Sales Agreement and Feedstock Supply Agreement.
4.2 High Pressure Steam. The Westlake Parties shall, upon reasonable request by Owner make, or cause certain of their Affiliates to, make available to Owner High Pressure Steam produced at a cost to Owner as incurred by the Westlake Parties or such Affiliates in the production of such High Pressure Steam and calculated in accordance with a formula as agreed between the Parties, and at sufficient pressure, amounts, and of such quality, standards and specifications suitable for the operation of the Ethylene Assets, in accordance with standards and quality being used in the operation of the Ethylene Assets as of the date of this Agreement, or as may be reasonably requested by Owner based upon changed needs. The Westlake Parties shall use commercially reasonable efforts to, or cause their Affiliates to, make available such High Pressure Steam when requested by Owner; provided that the Westlake Parties shall not be obligated to make, or cause its Affiliates to make available High Pressure Steam hereunder if doing so would have a material adverse effect on the operations of the Westlake Facilities. Owner shall provide reasonable notice to the Westlake Parties of the approximate date, time and quantity of each of its requirements of the High Pressure Steam.
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4.3 Other Steam. The Westlake Parties may, or may cause certain of its Affiliates to, supply Owner with any steam (other than High Pressure Steam) produced in the operation of the Westlake Facilities, which is not required by such operation and is required for Owners operation, at a cost to Owner as incurred by the Westlake Parties or such Affiliates in the production of such steam; provided that the Westlake Parties shall not be obligated to make, or cause its Affiliates to make available steam hereunder if doing so would have a material adverse effect on the operations of the Westlake Facilities. Owner shall provide reasonable notice to the Westlake Parties of the approximate date, time and quantity of each of its requirements of such steam.
4.4 Consultations . At Owners request from time to time, the Westlake Parties shall consult with Owner with respect to the performance of the Westlake Provided Utilities and shall provide to Owner such information as may be reasonably requested by Owner regarding the performance of the Westlake Provided Utilities. Without limiting the generality of the foregoing, the Westlake Parties and Owner shall consult as frequently as reasonably necessary regarding the scope of Westlake Provided Utilities and particular circumstances that may require an adjustment to the scope of any Westlake Provided Utilities, and shall keep each other timely informed about planned turnarounds, shutdowns, major technical projects, capital projects, significant operational events and other major events that are relevant to the safe and efficient operation of the Ethylene Assets and the Westlake Facilities and the performance of the Parties respective obligations under this Agreement.
ARTICLE V
OWNER PROVIDED SERVICES
5.1 Engagement of Owner . Subject to the terms of this Agreement, the Westlake Parties and certain of their Affiliates hereby engage Owner to perform the Owner Provided Services (as defined below) and authorize Owner to perform all acts that are necessary or appropriate in Owners reasonable judgment to perform the Owner Provided Services. Owner hereby accepts such engagement and agrees to perform all acts necessary or appropriate in Owners reasonable judgment to perform the Owner Provided Services, all in accordance with the terms and conditions and subject to the limitations set forth in this Agreement. Owner agrees to provide the Owner Provided Services to permit the Westlake Facilities to be operated to the maximum extent possible in an efficient manner with the Owner Facilities, but in any event in a manner that permits the Westlake Parties to comply with their obligations under the Ethylene Sales Agreement and Feedstock Supply Agreement.
5.2 Owner Provided Services.
(a) High Pressure Steam. Owner shall, upon reasonable request by the Westlake Parties make available to the Westlake Parties High Pressure Steam produced by the Ethylene Assets at a cost to the Westlake Parties as incurred by Owner in the production of such High Pressure Steam, and at sufficient pressure, amounts, and of such quality, standards and specifications suitable for the operation of the Westlake Facilities, in accordance with standards and quality being used in the operation of the Westlake Facilities as of the date of this Agreement, or as may be reasonably requested by the Westlake Parties based upon changed needs. Owner shall use commercially reasonable efforts to make available such High Pressure Steam when requested by the Westlake Parties; provided that Owner shall not be obligated to make available High Pressure Steam hereunder if doing so would have a material adverse effect on the operations of the Ethylene Assets. The Westlake Parties shall provide reasonable notice to Owner of the approximate date, time and quantity of each of their requirements of High Pressure Steam.
(b) Other Steam. Owner may supply the Westlake Parties with any steam (other than High Pressure Steam) produced in the operation of the Ethylene Assets, which is not required by such operation and is required for the Westlake Parties operation, at a cost to the Westlake Parties as incurred by Owner in the production of such steam; provided that Owner shall not be obligated to make available steam hereunder if doing so would have a material adverse effect on the operations of the Ethylene Assets. The Westlake Parties shall provide reasonable notice to Owner of the approximate date, time and quantity of each of its requirements of such steam.
(c) Purge Gas Services. Owner shall receive for processing and purification from the Westlake Parties or their Affiliate and return to the Westlake Parties or their Affiliates, at a cost to the Westlake Parties as set forth in Schedule 6, all of the Purge Gas. Owner shall provide such Purge Gas processing and purification services in accordance with standards and quality being used in the Westlake Facilities as of the date of this Agreement, or as may be reasonably requested by the Westlake Parties based upon changed needs. Owner shall use commercially
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reasonable efforts to make available such Purge Gas purification services when requested by the Westlake Parties; provided that Owner shall not be obligated to make available the purge gas purification services hereunder if doing so would have a material adverse effect on the operations of the Ethylene Assets. The Westlake Parties shall provide reasonable notice to Owner of the approximate date and time of their requirement for purge gas purification services and the volume of Purge Gas for processing.
(d) Demineralized Water. Owner shall, upon reasonable request by the Westlake Parties make available to the Westlake Parties or their Affiliates Demineralized Water, at a cost to the Westlake Parties as incurred by Owner in relation to such Demineralized Water, and in sufficient amounts, and of such quality, standards and specifications suitable for the operation of the Westlake Facilities, in accordance with the standards and quality being used in the operation of the Westlake Facilities as of the date of this Agreement, or as may be reasonably requested by the Westlake Parties based upon changed needs. Owner shall use commercially reasonable efforts to make available such Demineralized Water when requested by the Westlake Parties; provided that Owner shall not be obligated to make available Demineralized Water hereunder if doing so would have a material adverse effect on the operations of the Ethylene Assets. The Westlake Parties shall provide reasonable notice to Owner of the approximate date, time and quantity of each of their requirements of Demineralized Water,
(subsections (a), (b), (c) and (d), collectively, the Owner Provided Services ).
5.3 Consultations . At the Westlake Parties request from time to time, Owner shall consult with the Westlake Parties with respect to the performance of the Owner Provided Services and shall provide to the Westlake Parties such information as may be reasonably requested by the Westlake Parties regarding the performance of the Owner Provided Services. Without limiting the generality of the foregoing, Owner and the Westlake Parties shall consult as frequently as reasonably necessary regarding the scope of Owner Provided Services and particular circumstances that may require an adjustment to the scope of any Owner Provided Services, and shall keep each other timely informed about planned turnarounds, shutdowns, major technical projects, capital projects, significant operational events and other major events that are relevant to the safe and efficient operation of the Ethylene Assets and the Westlake Facilities and the performance of the Parties respective obligations under this Agreement.
5.4 Relationship of the Parties. At all times during the performance of the Owner Provided Services hereunder, all Persons performing such Owner Provided Services (including agents, temporary employees, independent third parties and consultants) shall be construed as being independent from the Westlake Parties, and such Persons shall not be considered or deemed to be an employee of the Westlake Parties or their Affiliates nor entitled to any employee benefits of the Westlake Parties or their Affiliates as a result of this Agreement. Notwithstanding anything to the contrary expressed or implied, this Agreement shall not constitute or create any agency, joint venture, partnership or other fiduciary relationship or any fiduciary duty or fiduciary obligation, all of the same being hereby expressly disclaimed and waived.
ARTICLE VI
ADDITIONAL SERVICES
6.1 Additional Westlake Provided Services. If, subsequent to the date hereof, additional common facilities or services are required to operate the Westlake Facilities that are not listed on Schedule 3 or Schedule 4 the Westlake Parties shall use commercially reasonable efforts to supply such additional facilities and services on mutually agreeable pricing and other terms to be determined on a basis similar to the pricing and other terms set forth in this Agreement, whereupon such facility or service shall be considered part of the Common Facilities Services or Utility Services, as applicable.
6.2 Additional Seconded Employees. If, subsequent to the date hereof, additional common facilities or services are required to operate the Ethylene Assets that are not listed on Schedule 5, the Westlake Parties shall use commercially reasonable efforts to provide Seconded Employees to operate such additional facilities and services on mutually agreeable pricing and other terms to be determined on a basis similar to the pricing and other terms set forth in this Agreement, whereupon such facility or service shall be considered part of the Operating Services.
6.3 Additional Westlake Provided Utilities. If, subsequent to the date hereof, additional utilities are required to operate the Ethylene Assets that are not described in Article IV, the Westlake Parties shall use
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commercially reasonable efforts to supply such additional utilities on mutually agreeable pricing and other terms to be determined on a basis similar to the pricing and other terms set forth in this Agreement, whereupon such service shall be considered part of the Westlake Provided Utilities.
6.4 Additional Owner Provided Services. If, subsequent to the date hereof, additional utilities or services are required to operate the Westlake Facilities that are not described in Article V or listed on Schedule 6, Owner shall use commercially reasonable efforts to supply such additional utilities or services on mutually agreeable pricing and other terms to be determined on a basis similar to the pricing and other terms set forth in this Agreement, whereupon such service shall be considered part of the Owner Provided Services.
ARTICLE VII
AUTHORIZED PERSONS AND EMPLOYEES
7.1 Delegation.
(a) Subject to Section 3.2, Owner hereby delegates full authority to the Westlake Parties to take such actions as may be necessary or appropriate in the Westlake Parties reasonable judgment for the performance of the Operating Services;
(b) Owner hereby delegates full authority to the Westlake Parties to take such actions as may be necessary or appropriate in the Westlake Parties reasonable judgment for the performance of the Shared Services;
(c) Owner hereby delegates full authority to the Westlake Parties to take such actions as may be necessary or appropriate in the Westlake Parties reasonable judgment for the provision of the Westlake Provided Utilities; and
(d) The Westlake Parties hereby delegate full authority to Owner to take such actions as may be necessary or appropriate in Owners reasonable judgment for the performance of the Owner Provided Services,
which delegation of authority shall include the right to further delegate such authority to others. If any of the Services are delegated to and performed by an Affiliate of a Party or an employee of a Party or an employee of any Affiliate of a Party, Section 9.1 shall apply thereto.
7.2 Personnel and Secondment .
(a) Pursuant to Section 3.1, the Westlake Parties shall provide, or cause to be provided, to Owner the Seconded Employees (as defined in Section 7.2(b) below) and such other Persons (including consultants and professionals, service or other organizations)) as the Westlake Parties deem necessary or appropriate in order to perform the Operating Services in an efficient and prudent manner. Subject to the Westlake Parties right to be reimbursed for such expenses in accordance with the Accounting Procedures, each Westlake Party shall pay all expenses incurred by it in connection with the retention of the Seconded Employees and such other Persons, including, but not limited to, compensation, salaries, wages and overhead and administrative expenses, charges to or incurred by such Westlake Party, and, if applicable, social security taxes, workers compensation insurance, retirement and insurance benefits and other such expenses. Any such Seconded Employees and other Persons retained by any Westlake Party may be union or non-union employees, and the Westlake Parties shall have the sole right to negotiate the terms and provisions of any labor or other agreements with the unions to which such employees belong. The Westlake Parties shall provide, or cause to be provided, all workers who will perform Services.
(b) During the term of this Agreement, the Westlake Parties shall, from time to time, designate certain of their employees to be seconded to Owner to perform duties at the Owners assets or facilities or otherwise work on behalf of Owner in accordance with and subject to the terms of this Agreement. Each such employee who the Westlake Parties second to Owner shall, during the time that such employee is seconded to Owner under this Agreement (the Period of Secondment ), be referred to individually herein as a Seconded Employee and, collectively, as the Seconded Employees.
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(c) The Westlake Parties will give notice to each Seconded Employee at times and in the normal processes by which it gives similar notices to employees or otherwise in its discretion. The notices will include that (i) each such Seconded Employee will be a joint employee of the Westlake Parties and Owner, and (ii) for any work place injury, the Seconded Employees sole remedy against either the Westlake Parties or Owner will be under the workers compensation insurance policy or qualified self-insured program of the Westlake Parties. For the avoidance of doubt, the Parties acknowledge that the Seconded Employees will, during the Period of Secondment, be called upon to perform services for both Owner and the Westlake Parties of the same or closely-related nature. The Westlake Parties retain the right to terminate the secondment of any Seconded Employee for any reason at any time or to hire or discharge the Seconded Employees with respect to their employment with the Westlake Parties. Owner will have the right to terminate the secondment to it of any Seconded Employee for any reason at any time, upon prior written notice to the Westlake Parties, but at no time will Owner have the right to terminate any Seconded Employees employment by the Westlake Parties. Upon the termination of the secondment of any Seconded Employee, such Seconded Employee will cease performing services for Owner.
(d) In the course and scope of performing any Seconded Employees job functions for Owner, the Seconded Employee will report into Owners management structure, and will be under the direct management, supervision, direction and control of Owner with respect to such Seconded Employees performance of the Operating Services and day-to-day activities.
(e) Those Seconded Employees who serve as supervisors or managers and who are called upon to oversee the work of Seconded Employees working at Owners assets or facilities or to provide management support on behalf of Owner are designated by Owner as supervisors to act on the behalf of Owner in supervising the Seconded Employees pursuant to Section 7.2(d) above. Any Seconded Employee so designated will be acting on the behalf of Owner when supervising the work of the Seconded Employees or when they are otherwise providing management or executive support on behalf of Owner.
(f) With respect to Owners operations in Texas, the Westlake Parties shall obtain workers compensation coverage as defined by Texas Labor Code Section 401.011(44) on behalf of both the Westlake Parties and Owner, and Owner shall be considered an employer solely for the purposes of Texas Labor Code Section 401.011(18) and Section 408.001. With respect to the Owners operations in Kentucky, the Westlake Parties shall obtain workers compensation coverage as defined by Kentucky Revised Statute Section 342.340 on behalf of both the Westlake Parties and Owner, and Owner shall be considered an employer solely for the purposes of Kentucky Revised Statute Section 342.630 and Section 342.690. With respect to the Owners operations in Louisiana, the Westlake Parties shall obtain workers compensation coverage as defined by Louisiana Revised Statute Section 23:1168 on behalf of both the Westlake Parties and Owner, and Owner shall be considered an employer solely for the purposes of Louisiana Revised Statute Section 23:1031 and Section 23:1032. With respect to Owner Group operations performed in any jurisdiction other than Texas, Kentucky, or Louisiana, the Westlake Parties shall obtain workers compensation coverage as defined and required by Law on behalf of both the Westlake Parties and Owner, provided that Owner shall be considered an employer solely for the purposes of its status as a dual, joint- or co-employer under the relevant workers compensation regime. For the avoidance of doubt, nothing in this Agreement has any effect on the right of a Seconded Employee to prosecute a workers compensation claim against Owner, the Westlake Parties, or both.
(g) Owner and the Westlake Parties acknowledge that the services provided for under this Agreement are an integral part of and essential to the ability of Owner to generate the goods, products, and services of Owner, and to enable Owner to fulfill its business and commercial contracts, which are the core of its business. By executing this Agreement, Owner undertakes to execute work that is part of its trade, business, and occupation. Owner and the Westlake Parties expressly recognize Owner as the statutory employer of the Seconded Employees for workers compensation purposes, whether those employees be direct employees or statutory employees of the Westlake Parties. Notwithstanding anything in this Section 7.2(g), Owner remains the joint employer, with the Westlake Parties, of the Seconded Employees when under secondment, and should any conflict be found between this Section 7.2(g) and Section 7.2(c), Section 7.2(c) shall predominate.
(h) Owner shall not be a participating employer in any benefit plan of any Westlake Party. The Westlake Parties shall remain solely responsible for all obligations and liabilities arising with respect to any benefit plans relating to any Seconded Employees and Owner shall not assume any benefit plan or have any obligations or liabilities arising thereunder, in each case except for costs properly chargeable to Owner.
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ARTICLE VIII
BUDGETS, AUDITS AND ACCOUNTING
8.1 Approved Annual Budgets .
(a) Owner and the Westlake Parties acknowledge that they have agreed upon an Approved Annual Budget consistent with the Accounting Procedures for the period commencing on the date of this Agreement and ending December 31, 2014 (the First Approved Annual Budget ).
(b) The Westlake Parties shall prepare and deliver to Owner, no later than 30 days before the commencement of each Fiscal Year, a proposed budget for the Shared Services and the Operating Services to be performed by the Westlake Parties and the Seconded Employees, respectively, during such Fiscal Year. Each such budget shall be prepared on the same basis and using the same methodology as the First Approved Annual Budget. Such budgets shall be prepared in sufficient detail to satisfy the reasonable requirements of Owner. However, at a minimum, such budgets shall include estimates of the labor expense and expenses incurred by employees of the Westlake Parties or their Affiliates in performing the Shared Services and the Operating Services as well as an itemized list of estimated third Person expenses to be incurred in performing the Shared Services and the Operating Services, in each case consistent with the Accounting Procedures. If requested by Owner, the Westlake Parties shall also prepare and deliver to Owner an explanation of any specific Expenditure. The Parties shall use good faith efforts to agree upon an Approved Annual Budget reasonably acceptable to Owner no later than 15 days prior to the commencement of the Fiscal Year for which such budget applies. Owner shall have the right to reasonably comment on and make objections to each annual budget proposed by the Westlake Parties, to the extent such comments and objections are with respect to the failure to prepare such budget on the same basis and using the same methodology as the First Annual Approved Budget; provided that if Owner and the Westlake Parties fail to agree on such budget, the Westlake Parties budget shall provisionally constitute an Annual Approved Budget. If the Parties have not reached agreement on the annual budget within 30 days after Owners notice of objection thereto, then senior management representatives of the Parties shall engage in negotiations, and if the Parties have not reached agreement within 30 days after commencement of negotiations, either Party shall have the right to resolve such dispute in a court of law pursuant to this Agreement. If any such dispute is resolved in favor of Owner, the Westlake Parties shall reimburse Owner the amount of Expenditures determined not to be chargeable to the Westlake Parties, with interest as provided in Section 10.1(c). As to each Approved Annual Budget, no later than the 15th day preceding the commencement of the second, third and fourth quarterly periods covered by such Approved Annual Budget, the Westlake Parties will provide to Owner adjustments to such Approved Annual Budget to reflect the estimated Expenditures to be incurred in the performance of the Shared Services and the Operating Services over the balance of the Fiscal Year covered by such Approved Annual Budget.
(c) It is acknowledged and agreed by the Parties that the annual budgeting process, the quarterly updates to such budgets, and the revisions of such budgets pursuant to this Article VIII to cover overages are for planning purposes, and if the actual Expenditures incurred by the Westlake Parties in the performance of the Shared Services and the Operating Services exceed such budgeted Expenditures, the Westlake Parties shall nevertheless be entitled to reimbursement of such actual Expenditures pursuant and subject to the terms of Article X.
8.2 Unbudgeted Expenditures. The Westlake Parties shall notify Owner as soon as practicable of any occurrences or other circumstances which the Westlake Parties have reason to believe may (a) cause any line item in the most recently Approved Annual Budget (as updated pursuant to Section 8.1) to be exceeded by the greater of (i) twenty percent (20%); or (ii) 1 million US dollars or (b) cause the total amount of such Approved Annual Budget to be exceeded by the greater of (i) twenty percent (20%); or (ii) 1 million US dollars. If the Westlake Parties determine that either clause (a) or (b) will likely occur, the Westlake Parties shall in the notice advising Owner describe the circumstances thereof in writing in such detail as may reasonably be necessary to provide an informed understanding of the situation including a description of the category or categories of Expenditures involved, the reason for such projected overage, the necessary revisions to the Approved Annual Budget to cover such overage, and such further information as Owner may reasonably request. Owner shall have the right, acting reasonably, to comment on and make objections to such revisions; provided that if Owner and the Westlake Parties fail to agree on such revisions, the Westlake Parties revisions shall remain in place, subject to Owners right to resolve disputes in a court of law pursuant to this Agreement.
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8.3 Accounting, Reimbursement and Fee .
(a) The Westlake Parties shall keep a full and complete account of all Expenditures incurred by them in connection with the performance of the Shared Services and the Operating Services in the manner set forth in the Accounting Procedures, and shall otherwise keep a full and complete account of all accounts that Owner is required to maintain (except accounts required for Owners investors), or that are otherwise contemplated, under this Agreement.
(b) The Westlake Parties shall be reimbursed by Owner for Expenditures and Capital Expenditures incurred by the Westlake Parties in the performance of the Shared Services and the Operating Services, in accordance with the Accounting Procedures; provided, Owner shall not be required to reimburse the Westlake Parties for (i) Expenditures arising out of claims for non-payment of any and all contributions, withholding deductions or taxes measured by the wages, salaries or compensation paid to Persons employed by the Westlake Parties or any of their Affiliates in connection herewith or (ii) Expenditures for which the Westlake Parties are required to provide indemnification to Owner pursuant to Section 15.1.
8.4 Reports. The Westlake Parties shall cause to be timely prepared and delivered to Owner such reports, forecasts, implementation plans, plans of action, studies and other information pertaining to the performance of the Shared Services and the Operating Services as Owner may reasonably request from time to time. The costs incurred by the Westlake Parties in preparing and delivering such reports, forecasts, plans, studies and other information shall be included in the Expenditures to be reimbursed by Owner pursuant to Sections 8.3(b) and 8.3(c).
8.5 Audit and Examination .
(a) To the extent necessary to verify the accuracy of any statement, invoice, charge or computation made under this Agreement, each Party shall have the right, at its cost, to interview representatives of the other Party and to examine the books and records maintained by such other Party relating to this Agreement, including support for costs charged by the Partys third party contractors, relating to the performance of the relevant Services, during normal business hours and upon reasonable notice to the other Party; provided that each Party has the right to redact from the records subject to examination of any portions thereof as necessary to comply with such Partys confidentiality obligations. Such audit must be commenced within 12 Months of receiving said statement, invoice, charge or computation made under this Agreement and will take place at a location mutually agreeable to the Parties. All records subject to audit hereunder shall be caused to be retained for no less than two calendar years after their creation. If any such examination establishes any inaccuracy in any billing made prior to such examination, the necessary adjustments to such billings will be made promptly without any interest charge.
(b) Absent fraud or intentional concealment or misrepresentation by the relevant Party, such Party shall neither be required nor permitted to adjust any Expenditure incurred by such Party during a Fiscal Year unless a claim therefor is presented or adjustment is initiated within the 12 Months following such Fiscal Year, and in the absence of such timely claims or adjustments, the books and records rendered by the Westlake Parties shall be conclusively established as correct. If a Party has commenced an audit within the period referenced in Section 8.5(a) but has been unable to complete the audit within such period despite its good faith efforts to do so, then such Party may request a reasonable extension of time to complete the audit and such request will not be unreasonably denied by the other Party.
ARTICLE IX
STANDARD OF CARE, NEGATIVE COVENANTS, CONFIDENTIAL INFORMATION AND PROPRIETARY INVENTIONS
9.1 Standard of Care. In performing the Services, the Parties shall at all times act in accordance with the following: (a) the requirements of this Agreement, (b) prudent operating and maintenance practices of the U.S.
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chemical industry; (c) all Applicable Law including environmental standards in effect from time to time, and any other applicable rules and requirements of Governmental Authorities; and (d) good faith and reasonable commercial standards; provided, in no event shall a Party be obligated to comply with a requirement if such compliance would result in a breach by that Party of Applicable Law. In addition, the Services to be provided hereunder shall be performed generally in a good faith effort to be cost effective, and with the same general degree of care and at the same general degree of accuracy and responsiveness as when such Party performs services for itself at the Westlake Facilities or the Ethylene Assets, as applicable. NOTWITHSTANDING ANY CONTRARY PROVISIONS OF THIS AGREEMENT OR APPLICABLE LAW, EXCEPT IN THE CASE OF ACTUAL FRAUD, THE PARTIES AND THEIR AFFILIATES (AND THEIR RESPECTIVE OWNERS, EMPLOYEES, AGENTS AND CONTRACTORS) SHALL NOT HAVE ANY LIABILITY TO OWNER UNDER OR WITH RESPECT TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE (WHETHER SOLE OR CONCURRENT, STRICT LIABILITY OR OTHERWISE)) FOR LOSSES SUSTAINED OR LIABILITIES INCURRED EXCEPT PURSUANT TO SECTION 15.1.
9.2 Negative Covenants. A Party shall not, without the prior written consent of the other Party, do or, to the extent the same is within its reasonable control and consistent with the other terms of this Agreement, permit to occur or to continue, any of the following:
(a) Commit the other Party to, or enter into on behalf of such other Party, any contract or agreement except in the ordinary course of operating the Westlake Facilities or the Ethylene Assets, as applicable, unless the Party is authorized to do so by the other Party;
(b) Create or incur any lien, security interest or encumbrance upon the Westlake Facilities or the Ethylene Assets, as applicable, including without limitation any mechanics or material mens liens or similar encumbrances arising out of claims for work, labor or materials furnished to the Party in connection with the provision of Services by that Party hereunder;
(c) Purport to sell, lease, pledge, mortgage, assign, transfer or otherwise dispose of the Westlake Facilities or the Ethylene Assets, as applicable or any of the other Partys now owned or hereafter acquired assets, except for replaced parts and other assets that are taken out of service and are sold or otherwise disposed of in the ordinary course of operating the Westlake Facilities or the Ethylene Assets, as applicable; or
(d) Commit the other Party to be or to become directly or contingently responsible or liable for obligations of any other Person, by assumption, guarantee, endorsement or otherwise.
9.3 Proprietary Inventions and Techniques. Owner grants to the Westlake Parties an irrevocable, royalty-free, non-exclusive and non-assignable license to use, during the Term of this Agreement, any proprietary inventions, processes and techniques of Owner which are necessary or useful in the operation of the Common Facilities. As a condition precedent to the effectiveness of such license to use, the Westlake Parties hereby expressly agree that they will utilize such proprietary inventions, processes and techniques solely in connection with the performance of its duties hereunder. Upon termination of this Agreement, such license shall terminate and the Westlake Parties shall return to Owner whatever possessory interest the Westlake Parties have in all inventions, processes or techniques that are proprietary to Owner.
ARTICLE X
PAYMENT OF COSTS
10.1 Payments .
(a) Each Party shall issue to the other Party an invoice on or before the 20 th day of each Month (the Monthly Invoice ) reflecting such other Partys allocable share of Expenditures (split between Operating Expenses and Capital Expenditures) incurred by the Party under this Agreement in the provision of Services for the prior Month (the Relevant Month ).
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(b) Each Party shall pay the amount of each Monthly Invoice to the other Party, other than any amount thereof that is disputed in accordance with Section 10.1(e) below, not later than the 5 th day following receipt from such other Party of the Monthly Invoice. If the due date for payment is not a Business Day, then the due date for payment shall be the immediately succeeding Business Day. Any adjustments necessary to reconcile the resolution of a disputed amount with the amount actually paid shall be paid within five Days following resolution of the disputed amount. Any adjustments, whether for overpayment or underpayment, for disputed amounts shall bear interest at the Base Rate from the date of overpayment or underpayment, as the case may be, until the actual date of payment.
(c) In the event that any amount reflected in any statement or invoice is not paid when due, other than any amount thereof that is disputed in accordance with Section 10.1(e) below, such unpaid amount shall bear interest from and including the day following the due date therefor up to and including the date when payment is made, at the Default Rate.
(d) If any Party fails to make payment of any amount of any Monthly Invoice, other than any amount thereof that is disputed in accordance with Section 10.1(e) below, on or before the later of (i) the 60 th day after such payment is due an (ii) the 30 th day after notice to such Party of non-payment, the other Party shall have the right to suspend the performance of the relevant Services hereunder to such Party until such payment is made.
(e) A Party may withhold payment of all or any portion of any amount reflected as owing by the other Party in any statement or invoice received from the other Party to the extent that the paying Party disputes payment of such amount or such portion thereof in good faith. For the avoidance of doubt, as to any Monthly Invoice, a Party may withhold payment as to any disputed amount, including to account for any credit such Party believes it is owed with respect to the performance or receipt of Services, or the failure thereof. In the event of such a dispute, the disputing Party shall promptly notify the other Party, stating its reasons for disputing such amount and, to the extent available providing reasonable supporting documentation therefor.
(f) A Party may dispute a Monthly Invoice, or any portion thereof, by notice to the other Party, up to one calendar year following receipt of such Monthly Invoice, provided that if a Party fails to deliver such notification within such period, it shall be deemed to have waived the right to dispute the applicable Monthly Invoice.
(g) All payments pursuant to this Section 10.1 shall be calculated in accordance with the Accounting Principles and shall exclude any costs or expenses for which a Party is required to indemnify the other Party pursuant to Section 15.1.
(h) Monthly Invoices shall take into account any prior payments made by a Party that have not been used by the Party providing services. Each Monthly Invoice shall include a reconciliation (split between Operating Expenses and Capital Expenditures) of the Monthly Invoice payment made by the relevant Party for the Month and such Partys allocable share of the actual Expenditures incurred by the Party providing the services during such Month, and any amount owing by one Party to the other Party pursuant to such reconciliation shall adjust the amount otherwise payable on that Monthly Invoice.
(i) All payments under this Agreement shall be made in United States dollars by wire transfer in immediately available funds by deposit to the bank account designated in writing by the Party receiving the payment. Any wire transfer charges shall be for the account of the Party making the payment. If a Party elects to change the bank or account to which payments are to be made, that Party shall notify the other Party before the effective date of such change.
10.2 Reimbursement for Emergencies .
(a) If the Westlake Parties take any action pursuant to an Emergency involving or related to the Common Facilities or the Ethylene Assets, the Westlake Parties shall be entitled to reimbursement for Owners allocable share of all Expenditures reasonably incurred in taking such action (subject to Section 10.2(c)). The Westlake Parties agree to promptly notify Owner of any such Emergency, and to provide Owner with sufficient
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explanation and justification for any action taken in response thereto and the Expenditures incurred, or expected to be incurred, in connection therewith, any further action required, and such other details as may be required for reporting to any Governmental Authority. Owner shall reimburse the Westlake Parties for Owners allocable share of Expenditures reasonably incurred under this Section 10.2 upon receipt of invoices, if applicable, sent by the Westlake Parties in the ordinary course after the Expenditures have been incurred and Owner is notified thereof.
(b) The Westlake Parties are hereby authorized to make immediate commitments or expenditures, without prior approval, as necessary to accomplish the following:
(i) prevent imminent escape of gas, liquids, chemicals or vapors from the Common Facilities and/or the Ethylene Assets;
(ii) prevent imminent injury to any Person arising out of the operation of the Common Facilities and/or the Ethylene Assets;
(iii) prevent, curtail, minimize or otherwise mitigate imminent damage to the environment or the property of Owner, the Westlake Parties or third parties arising out of the operation of the Common Facilities and/or the Ethylene Assets or from the performance of the Services;
(iv) prevent imminent failure or unplanned shutdown of the Common Facilities, any Utility Service or the Ethylene Assets;
(v) restore the Common Facilities, any Utility Service and the Ethylene Assets to operating condition following an unplanned shutdown or failure; or
(vi) comply with emergency orders of any Governmental Authority arising out of the operation of the Common Facilities, the Ethylene Assets or the performance of the Services.
(c) Notwithstanding anything to the contrary, the Westlake Parties shall not be entitled to reimbursement for Expenditures made in accordance with this Section 10.2 if the circumstance giving rise to the Expenditure resulted from the Westlake Parties gross negligence or willful misconduct.
(d) If an Emergency or other situation requiring prompt action arises and the Westlake Parties are not reasonably responding in a prompt fashion, Owner shall have the right to take such remedial action as it deems appropriate, at Owners cost, and the Westlake Parties will reimburse Owner for the Westlake Parties allocable share of the costs incurred by Owner in connection with such remedial action; provided, if the circumstance giving rise to such remedial action resulted from the Westlake Parties gross negligence or willful misconduct, then the cost of such remedial action shall be borne and paid by the Westlake Parties.
ARTICLE XI
TAXES
11.1 Embedded Tax Amounts. If any portion of any payment made by a Party hereunder is to reimburse the other Party for any federal, state or local taxes or assessments, then such other Party shall cause such taxes and assessments to be paid prior to delinquency.
11.2 Income Taxes. Notwithstanding anything to the contrary, Expenditures for which a Party is entitled to reimbursement pursuant to this Agreement shall not include taxes that are measured or based on that Partys income or franchise taxes or similar taxes, and all such income, franchise and similar taxes shall be the responsibility of that Party.
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ARTICLE XII
WARRANTY/CLAIMS
12.1 Warranties.
(a) The Westlake Parties shall use commercially reasonable efforts, as agent for Owner, to secure from vendors, suppliers and subcontractors, for Owners benefit, such warranties and guarantees as may reasonably be available regarding supplies, materials, equipment and services purchased for the Ethylene Assets in the performance of the Operating Services, and to enforce such warranties and guarantees on behalf of Owner. As regards any equipment, materials, supplies or services obtained by the Westlake Parties from vendors, suppliers and subcontractors, the only warranties, if any, applicable thereto and available to Owner shall be those offered by such vendors, suppliers and subcontractors. THE WESTLAKE PARTIES MAKE NO EXPRESS OR IMPLIED WARRANTY, GUARANTY OR REPRESENTATION, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, SUITABILITY OR MERCHANTABILITY, REGARDING THE DESIGN OR ANY OTHER CHARACTERISTICS OF THE ETHYLENE ASSETS OR ANY SUCH EQUIPMENT, MATERIALS, SUPPLIES OR SERVICE, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED AND NEGATED.
(b) OWNERS EXCLUSIVE REMEDIES WITH RESPECT TO EQUIPMENT, MATERIALS, SUPPLIES OR SERVICES OBTAINED BY THE WESTLAKE PARTIES FROM THIRD PARTY VENDORS, SUPPLIERS AND SUBCONTRACTORS SHALL BE THOSE UNDER THE VENDOR, SUPPLIER AND SUBCONTRACTOR WARRANTIES REFERENCED IN SECTION 12.1(a), AND THE WESTLAKE PARTIES ONLY OBLIGATION, ARISING OUT OF OR IN CONNECTION WITH ANY SUCH WARRANTY OR BREACH THEREOF, SHALL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO ENFORCE SUCH WARRANTIES AND OWNER SHALL HAVE NO OTHER REMEDIES AGAINST THE WESTLAKE PARTIES WITH RESPECT TO EQUIPMENT, MATERIALS, SUPPLIES OR SERVICES OBTAINED BY THE WESTLAKE PARTIES FROM SUCH VENDORS, SUPPLIERS AND SUBCONTRACTORS.
12.2 Claims. Any and all claims against Owner instituted by anyone other than the Westlake Parties arising out of the performance of the Operating Services that are not covered by insurance shall be settled or litigated and defended by the Westlake Parties except when (a) the amount involved is stated to be (or estimated to be, as the case may be) greater than $1,000,000 or (b) criminal sanction is sought. The settlement or defense of any claim described in clause (a) or (b) above shall be decided by Owner in its sole and absolute discretion following consultation with the Westlake Parties. Each Party shall provide written notice to the other Party as soon as practicable of any claims instituted against Owner or the Westlake Parties in their capacity as provider of the Operating Services (regardless of the amount or nature of the claim).
ARTICLE XIII
TERMINATION
13.1 Term. This Agreement shall commence as of the date of this Agreement and shall continue in effect until the 12 th anniversary hereof (the Initial Term ) or, if earlier, the date upon which this Agreement is terminated pursuant to Section 13.2. Beginning at least one] year prior to the expiration of the Initial Term, the Parties will negotiate in good faith using commercially reasonable efforts to reach agreement upon terms for the renewal of this Agreement (a Renewal Term ; and the Initial Term together with any Renewal Term is the Term of this Agreement), along with the terms for renewal of the Related Agreements. If the Parties have not reached agreement upon terms for the renewal of this Agreement and the Related Agreements by the date that is six months prior to the expiration of this Agreement, then senior management representatives of the Parties (including at least one representative from each Party who has not previously been directly engaged in the prior renewal negotiations) shall engage in discussions regarding such renewal; provided, however, that neither Party shall be obligated to renew this Agreement.
13.2 Termination. The following provisions shall govern the termination of this Agreement. Any termination pursuant to this Section 13.2 shall be evidenced by a notice given by the Party effectuating such termination.
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(a) Owner shall have the option to terminate this Agreement if:
(i) the Westlake Parties materially default in the performance of their obligations under this Agreement and (1) such material default continues for a period of 30 days after notice thereof by Owner to the Westlake Parties or (2) if the default is not reasonably susceptible of being cured within a 30 day period, the Westlake Parties fail to commence the cure of said default within a 30 day period or thereafter fails to pursue the cure with commercially reasonable diligence; or
(ii) the annual fees payable by Owner in respect of Services exceed such amount given in the Agreed Annual Budget for the relevant Fiscal Year by the greater of (i) 20 %; or (ii) 1 million US dollars, without the prior written consent of Owner; and
(b) The Westlake Parties shall have the option to terminate this Agreement if:
(i) Owner materially defaults in the performance of its obligations under this Agreement and (i) such material default continues for a period of 30 days after notice thereof by the Westlake Parties to Owner or (ii) if the default is not reasonably susceptible of being cured within a 30 day period, Owner fails to commence the cure of said default within a 30 day period or thereafter fails to pursue the cure with commercially reasonable diligence;
(ii) Owner becomes subject to a Bankruptcy Proceeding;
(iii) Owner permanently shuts down the Ethylene Assets; or
(iv) Owner has not operated the Ethylene Assets for a period of more than six consecutive months for any reason other than for (A) construction following a casualty loss, which construction is being performed in compliance with [Section 8.4] of each of the Site Lease Agreements or (B) Force Majeure.
(c) A Party shall have the option to terminate this Agreement in the case of a Force Majeure Event which is continuing for at least 12 months after receipt by the other Party of notice pursuant to Section 16.2.
(d) This Agreement shall automatically terminate if the Ethylene Sales Agreement terminates pursuant to the provisions therein.
13.3 Self Help. During any period that a Party (a) is unable pursuant to Article XVI or (b) has failed to perform any Service after receipt of notice from the other Party regarding such failure, to perform any of the Services (the Subject Services ), the other Party shall have the right to perform or cause to be performed the Subject Services, and the first Party shall take all actions reasonably necessary to facilitate such performance of the Subject Services.
13.4 General Obligations. As reasonably requested by a Party during the 180 day period following the termination of this Agreement, the other Party shall provide Services pursuant to the terms of this Agreement (and for which the requesting Party shall continue to advance or reimburse Expenditures as set forth in Article X) and otherwise reasonably cooperate with Owner, provided that Owner is not in payment default at any time during such period.
ARTICLE XIV
ACCESS TO ETHYLENE ASSETS
The Westlake Parties, their agents and contractors and the Seconded Employees shall at all times during their performance of the Westlake Provided Services hereunder have full and free, non-exclusive access to the Ethylene Assets as necessary to perform their obligations under this Agreement, and all such Persons shall comply with all safety and other procedures from time to time imposed by Owner or the Westlake Parties in connection with any access to or work performed on or about the Ethylene Assets or the Westlake Facilities. Owner shall reasonably cooperate with the Westlake Parties in connection with the Westlake Parties performance of their obligations under
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this Agreement, including (a) signing, submitting and prosecuting applications or submissions for Permits with respect to the Ethylene Assets for which Owner is a necessary and indispensable party and taking such other action reasonably required of Owner to enable the Westlake Parties to perform their obligations under this Agreement including, obtaining and maintaining applicable Permits; (b) granting the Westlake Parties and their representatives and agents such, non-exclusive access to the Ethylene Assets and information to the extent known by Owner about historic, current and projected operations as may be reasonably needed by the Westlake Parties in order to fulfill their obligations under this Agreement; and (c) granting the Westlake Parties and their representatives and agents the right to undertake all sampling, testing and monitoring required by any Permit or Governmental Authority in connection with any Permit. Owner shall notify the Westlake Parties promptly of any written notification that it receives by Owner of any investigation, proceeding or other action commenced by any Governmental Authority relating to any Ethylene Asset Permit or any Applicable Law relating to the Ethylene Assets. Owner shall promptly provide the Westlake Parties with copies of any and all written notices or other communications received by Owner from any Governmental Authority with respect to the Ethylene Assets and, at the reasonable request of the Westlake Parties, any other information or document that is within Owners possession relating to such Ethylene Assets Permits or any obligations thereunder.
ARTICLE XV
INDEMNIFICATION
15.1 By the Westlake Parties. The Westlake Parties shall indemnify, protect and defend Owner and its Affiliates and all of their officers, directors, employees and agents (the Owner Indemnified Parties ) against, and hold the Owner Indemnified Parties harmless from, any and against all losses (including lost profits), costs, damages, injuries, taxes, penalties, interests, expenses, obligations, claims and liabilities (joint or severable) of any kind or nature whatsoever (collectively, Claims ) that are incurred by such Owner Indemnified Parties in connection with, relating to or arising out of (a) the breach by any Westlake Party, the Westlake Parties Affiliates, or their directors, officers, employees, agents, contractors, subcontractors or consultants (the Westlake Group ) of any term or condition of this Agreement, or (b) the performance of any Services hereunder; provided, however, that the Westlake Parties shall not be obligated to indemnify, reimburse, defend or hold harmless any Owner Indemnified Party for any Claims incurred by such Owner Indemnified Party in connection with, relating to or arising out of (i) a breach by such Owner Indemnified Party of this Agreement, (ii) the gross negligence, willful misconduct, bad faith or reckless disregard of such Owner Indemnified Party with respect to the Services hereunder or (iii) the fraudulent or dishonest acts of such Owner Indemnified Party.
15.2 By Owner. Owner shall indemnify, protect and defend the Westlake Parties and their Affiliates and all of their officers, directors, employees and agents (the Westlake Indemnified Parties ) against, and hold the Westlake Indemnified Parties harmless from, any and against all Claims that are incurred by such Westlake Indemnified Parties in connection with, relating to or arising out of (a) the breach by Owner, Owners Affiliates, or its directors, officers, employees, agents, contractors, subcontractors or consultants (the Owner Group ) of any term or condition of this Agreement, or (b) the performance of any Services hereunder; provided, however, that Owner shall not be obligated to indemnify, reimburse, defend or hold harmless any Westlake Indemnified Party for any Claims incurred by such Westlake Indemnified Party in connection with, relating to or arising out of (i) a breach by such Westlake Indemnified Party of this Agreement, (ii) the gross negligence, willful misconduct, bad faith or reckless disregard of such Westlake Indemnified Party with respect to the Services hereunder or (iii) the fraudulent or dishonest acts of such Westlake Indemnified Party.
15.3 Indemnification Procedures.
(a) A Party (the Indemnified Party ) agrees that promptly after it becomes aware of facts giving rise to a Claim under this Article XV, it will provide notice thereof to the other Party pursuant to Section 15.1 or Section 15.2 (the Indemnifying Party ), specifying the nature of and specific basis for such claim, copies of all correspondence with third parties, Governmental Authorities or other individuals relating to the claim, and other relevant information reasonably requested by the Indemnifying Party.
(b) The Indemnifying Party shall have the right to control all aspects of the response to and/or defense of (and any counterclaims with respect to) any claims brought against the Indemnified Party that are covered by the indemnification under this Article XV, including correspondence and negotiation with Governmental Authorities,
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the selection of counsel and engineering and other consultants, determination of the scope of and approach to any investigation or remediation, determination of whether to appeal any decision of any court, determination of whether to enter into any voluntary agreement with any Governmental Authority, and the settling of any such matter or any issues relating thereto; provided, however, that no such settlement shall be entered into without the consent of the Indemnified Party unless it includes a full release of the Indemnified Party from such matter or issues, as the case may be.
(c) The Indemnified Party agrees to cooperate fully with the Indemnifying Party, with respect to all aspects of the defense of any claims covered by the indemnification under this Article XV, including the prompt furnishing to the Indemnifying Party of any correspondence or other notice relating thereto that the Indemnified Party may receive, permitting the name of the Indemnified Party to be utilized in connection with such defense, the making available to the Indemnifying Party of any files, records or other information of the Indemnified Party that the Indemnifying Party considers relevant to such defense and the making available to the Indemnifying Party of any employees of the Indemnified Party; provided, however, that in connection therewith the Indemnifying Party agrees to use reasonable efforts to minimize the impact thereof on the operations of the Indemnified Party and further agrees to maintain the confidentiality of all files, records, and other information furnished by the Indemnified Party pursuant to this Section 15.3. In no event shall the obligation of the Indemnified Party to cooperate with the Indemnifying Party as set forth in the immediately preceding sentence be construed as imposing upon the Indemnified Party an obligation to hire and pay for counsel in connection with the defense of any claims covered by the indemnification set forth in this Article XV; provided, however, that that the Indemnified Party may, at its own option, cost and expense, hire and pay for counsel in connection with any such defense. The Indemnifying Party agrees to keep any such counsel hired by the Indemnified Party informed as to the status of any such defense, but the Indemnifying Party shall have the right to retain sole control over such defense.
(d) In determining the amount of any loss, cost, damage or expense for which the Indemnified Party is entitled to indemnification under this Agreement, the gross amount of the indemnification will be reduced by (i) any insurance proceeds realized by the Indemnified Party, and such correlative insurance benefit shall be net of any incremental insurance premiums that become due and payable by the Indemnified Party as a result of such claim and (ii) all amounts recovered by the Indemnified Party under contractual indemnities from third Persons.
ARTICLE XVI
FORCE MAJEURE
16.1 Force Majeure Event. Subject to the following provisions of this Article XVI, a Party shall not be in default hereunder or responsible for any loss or damage to the other Party resulting from any delay in performing or failure to perform any obligation of such Party under this Agreement (other than a Partys failure or delay to make advances and payments for the provision of Services performed or to be performed) to the extent such failure or delay is caused by a Force Majeure Event. For clarification purposes, a Party shall not be obligated to make advances or payments for Services that are not performed as a result of a Force Majeure Event.
16.2 Force Majeure Notice. The Party whose ability to perform is affected by a Force Majeure Event must, as a condition to its right to suspend its obligations under Section 16.1, promptly give the other Party notice setting forth the particulars of the Force Majeure Event and, to the extent possible, the expected duration of the Force Majeure Event and the Services to be affected by the Force Majeure Event. Such notice shall also include a description of the steps taken and proposed to be taken to lessen and cure the Force Majeure Event. The cause of the Force Majeure Event shall so far as commercially reasonable be remedied with all reasonable dispatch, except that no Party shall be obligated to resolve any Labor Difficulties other than as it shall determine to be in its best interests.
ARTICLE XVII
OTHER PROVISIONS
17.1 Assignment. Except as permitted pursuant to the Omnibus Agreement, neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Parties hereto, and any purported assignment or transfer in violation hereof shall be null and void. This Agreement shall be binding upon, and inure the benefit of, permitted successors and assigns.
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17.2 Notices. All notices or requests or consents provided for by, or permitted to be given pursuant to, this Agreement must be in writing and must be given by depositing same in the United States mail, addressed to the Person to be notified, postpaid, and registered or certified with return receipt requested or by delivering such notice in person or by facsimile or e-mail to such Party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by facsimile or e-mail shall be effective upon actual receipt if received during the recipients normal business hours or at the beginning of the recipients next Business Day after receipt if not received during the recipients normal business hours. All notices to be sent to a Party pursuant to this Agreement shall be sent to or made at the address set forth below such Partys signature to this Agreement or at such other address as such Party may stipulate to the other Parties in the manner provided in this Section 17.2.
Owner:
Westlake Chemical OpCo, LP
Email:
The Westlake Parties:
Westlake Management Services, Inc.
Email:
Westlake Vinyls, Inc.
Email:
WPT LLC
Email:
Westlake Petrochemicals LLC
Email:
17.3 Severability. If any provision of this Agreement shall be finally determined to be unenforceable, illegal or unlawful, such provision shall, so long as the economic and legal substance of the transactions contemplated hereby is not affected in any materially adverse manner as to any Party, be deemed severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
17.4 Entire Agreement. This Agreement and the Related Agreements (including any exhibits hereto or thereto) constitute the entire agreement of the Parties relating to the matters contained herein and therein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein and therein.
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17.5 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto; provided, that the Owner may not, without the prior approval of the Conflicts Committee, agree to any amendment or modification of this Agreement that, in the reasonable judgment of the GP, will adversely affect the holders of Common Units. Each such instrument shall be reduced to writing and shall be designated on its face an Amendment or an Addendum to this Agreement.
17.6 No Waiver. Failure of either Owner or the Westlake Parties to require performance of any provision of this Agreement shall not affect either Partys right to full performance thereof at any time thereafter, and the waiver by either Owner or the Westlake Parties of a breach of any provision hereof shall not constitute a waiver of any similar breach in the future or of any other breach or nullify the effectiveness of such provision.
17.7 Safety Regulations. All employees of each Party when on the property of the other Party will conform to the rules, regulations and procedures concerning safety of such other Party. From time to time, each Party shall furnish the other Party with complete, accurate and current copies of all such rules, regulations and procedures.
17.8 Relationship of Parties. This Agreement does not create a partnership, joint venture, or relationship of trust or agency between the Parties.
17.9 Governing Law. This Agreement shall be subject to and governed by the laws of the State of Texas, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Each of the Parties hereby agrees: (i) to submit to the exclusive jurisdiction of any state or federal court sitting in Houston, Texas in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (ii) that all claims in respect of any such action or proceeding may be heard and determined in any such court, (iii) that such Party will not bring any action or proceeding arising out of or relating to this Agreement in any other court, and (iv) that such Party waives any defense of inconvenient forum to the maintenance of any such action or proceeding, and waives any bond, surety or other security that might be required of any other Party with respect to any such action or proceeding.
17.10 Dispute Resolution.
(a) The dispute resolution provisions set forth in this Section 17.10 shall be the final, binding and exclusive means to resolve all disputes, controversies or claims (each, a Dispute ) arising under the Agreement, and each Party irrevocably waives any right to any trial by jury with respect to any dispute arising under this Agreement.
(b) If a dispute arises, the following procedures shall be implemented:
(i) Any Party may at any time invoke the dispute resolution procedures set forth in this Section 17.10 as to any dispute by providing written notice of such action to the other Parties.
(ii) Notwithstanding the existence of any dispute or the pendency of any procedures pursuant to this Section 17.10, and subject to Section 17.3, the Parties agree and undertake that all payments not in dispute shall continue to be made and that all obligations not in dispute shall continue to be performed.
(iii) Within 30 days after receipt of notice of a dispute, representatives of the Parties shall engage in non-binding mediation, and a specific timetable and completion date for its implementation shall also be agreed upon. If the completion date therefor shall occur without the Parties having resolved the dispute, then the Parties shall proceed under subsection (b)(iv).
(iv) If, after satisfying the requirement above, the dispute is not resolved, the Parties shall resolve the dispute by a binding arbitration, to be held in the State of Texas pursuant to the Federal Arbitration Act and in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association (the AAA ). The AAA shall select one (1) arbitrator. Each Party shall bear its own expenses incurred in connection with arbitration and the fees and expenses of the arbitrator shall be shared equally by the Parties involved
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in the dispute and advanced by them from time to time as require. It is the mutual intention and desire of the Parties that the arbitrator be selected as expeditiously as possible following the submission of the dispute to arbitration. Once the arbitrator is selected and except as may otherwise be agreed in writing by the Parties involved in such dispute or as ordered by the arbitrator upon substantial justification shown, the hearing for the dispute will be held within sixty (60) days of submission of the dispute to arbitration. The arbitrator shall render his final award within sixty (60) days, subject to extension by the arbitrator upon substantial justification shown of extraordinary circumstances, following conclusion of the hearing and any required post-hearing briefing or other proceedings ordered by the arbitrator. Any discovery in connection with arbitration hereunder shall be limited to information directly relevant to the controversy or claim in arbitration. The decision of the arbitrator in any such proceeding will be reasoned, final and binding and final judgment may be entered upon such an award in any court of competent jurisdiction, but entry of such judgment will not be required to make such award effective. Any action against any Party ancillary to arbitration (as determined by the arbitrators), including any action for provisional or conservatory measures or action to enforce an arbitration award or any judgment entered by any court in respect of any thereof may be brought in any federal or state court of competent jurisdiction located within the State of Texas, and the Parties hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state court located within the State of Texas over any such action. The Parties hereby irrevocably waive, to the fullest extent permitted by Law, any objection which they may now or hereafter have to the laying of venue of any such action brought in such court or any defense of inconvenient forum for the maintenance of such action. Each of the Parties agrees that a judgment in any such action may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
17.11 Waiver of Consequential Damages. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NO PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR OR IN RESPECT OF ANY CONSEQUENTIAL LOSS OR DAMAGE, SPECIAL OR PUNITIVE DAMAGES OR LOSS OF PROFITS OR BUSINESS INTERRUPTION, SUFFERED OR INCURRED BY ANY OTHER PARTY ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM, THIS AGREEMENT, WHETHER ANY CLAIM FOR SUCH LOSS OR DAMAGE IS BASED ON TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, CONTRACT (INCLUDING BREACH OF OR FAILURE TO PERFORM THIS AGREEMENT OR THE BREACH OF ANY REPRESENTATION OR WARRANTY HEREUNDER, WHETHER EXPRESS OR IMPLIED) OR OTHERWISE, EXCEPT FOR ANY SUCH DAMAGES RECOVERED BY ANY THIRD PARTY AGAINST ANY PARTY IN RESPECT OF WHICH SUCH PARTY WOULD OTHERWISE BE ENTITLED TO INDEMNIFICATION PURSUANT TO ARTICLE XV, PROVIDED THAT NO PARTY SHALL BE ENTITLED TO INDEMNIFICATION FOR ANY DAMAGES THAT ARE CONTRARY TO APPLICABLE LAW.
17.12 Further Assurances . In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
17.13 Set Off. Each Party has the right to set off against any amounts due to the other Party hereunder any and all amounts that the other Party owes to the first Party under this Agreement or the Related Agreements.
17.14 Counterparts . This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument.
17.15 Rights of Third Parties. The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no third party (including any Limited Partner of the MLP) shall have the right, separate and apart from the Parties to this Agreement, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.
[Signatures on following page]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above.
WESTLAKE CHEMICAL OPCO LP | ||
By: | Westlake Chemical OpCo GP LLC, its general partner | |
By: |
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WESTLAKE MANAGEMENT SERVICES, INC. | ||
By: |
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Title: |
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WESTLAKE VINYLS, INC. | ||
By: |
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Name: |
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Title: |
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WPT LLC | ||
By: | Westlake Chemical Investments, Inc., its manager | |
By: |
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Title: |
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WESTLAKE PETROCHEMICALS LLC | ||
By: | Westlake Chemical Investments, Inc., its manager | |
By: |
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Schedule 2
SCHEDULE 1
ETHYLENE ASSETS
PART A
CALVERT CITY ASSETS
The ethylene plant was built in 1963 and occupies approximately 13 acres. The original unit was designed and built by C. F. Braun. The unit was converted to ethane feedstock and expanded to an annual capacity of 630 million pounds in early 2014.
PART B
LAKE CHARLES ASSETS
1. | Petro 1 was started up in 1991 and occupies 26.99 acres. It was built with KBR technology as an ethane cracker and is now being expanded with Technip technology to 1.5B lb/yr of ethylene. |
2. | Petro 2 was started up in 1997 and occupies 23.43 acres. It was built by Lummus as an ethane and propane cracker. It was expanded in 2013 to 1.49B lb/yr of ethylene by Lummus and will achieve that capacity with the start-up of the seventh furnace at the end of 2014. |
3. | As part of the Petro 2 project in 1997, the co-products storage and shipping area was built. The co-products storage area occupies 7.75 acres. |
4. | The Lake Charles Assets comprise 58.17 acres in total. |
Schedule 1
SCHEDULE 2
COMMON FACILITIES
1. | Lake Charles Common Facilities |
The Petro Site has 320 acres and has Petro 1, Petro 2, Co-products, Styrene and Poly 3. As noted Petro 1, Petro 2 and Co-products are owned by Owner and have 58.17 acres. To the west of the Petro Site, Westlake Chemical owns about 350 acres of land for future development.
2. | Calvert City Common Facilities: |
i. | The Chlor Alkali plant was built in 1966 and occupies approximately 40 acres. It was upgraded and expanded to 275K ECU capacity in 2001 utilizing Asahi Kasei membrane technology. The feedstocks are rock salt and electricity. |
ii. | The VCM unit was built in 1953 utilizing B. F. Goodrich technology. The unit occupies approximately 55 acres and has an annual production capacity of 1.3 billion pounds of VCM. The feedstocks are Chlorine, Ethylene and Oxygen as well as supplemental Ethylene Dichloride as required. |
iii. | The PVC unit was built in 1959 and occupies approximately 26 acres. It has a current annual production capacity of 1.4 billion pounds. The units feedstock is VCM produced by the Westlake VCM unit. |
3. | Common Facilities which are owned by Westlake Parties and their Affiliates that Owner may use, and will be charged through Shared Services, will include, but shall not be limited to: |
i. | Parking lots |
ii. | Security |
iii. | Internal roads |
iv. | Walk ways |
v. | Maintenance buildings |
vi. | Warehouses |
vii. | Engineering buildings |
viii. | Office buildings |
ix. | Lay down areas |
x. | Rail tracks and loading and unloading |
xi. | Truck loading and unloading |
xii. | Raw water supply system |
xiii. | Power supply system |
Schedule 2
xiv. | Feedstock supply system |
xv. | Product outlet |
xvi. | Co-product handling |
xvii. | Waste water line |
xviii. | Firewater |
xix. | Fire equipment in emergencies |
Schedule 2
SCHEDULE 3
COMMON FACILITIES SERVICES
Plant Services
Maintenance direct labor and direct supervision for routine maintenance and construction
Warehouse routine supplies and critical spare parts
Laboratory
Plant safety includes safety training and maintaining safety equipment
Site Security includes manning front gate (contract)
Emergency Response includes fire brigade, rescue and hazmat teams
Railroad Services loading rack and dock services, including direct labor and direct supervision
Wastewater Treatment includes sewer system
Cooling Tower
Purchasing of and arranging for feedstock, services and supplies, including risk management and insurance thereto.
Technical Services
Direct Process Engineering
Process Safety Management
Environmental
Process and Quality Control
Project Engineering
IT
Other Services
Marketing, accounting, human resources
Buildings and Grounds: HVAC, janitorial, lawn care, weed control, trash, sprinkler system, roads, fencing, lighting, medical services and uniform
Buildings and Grounds include Maintenance Shop, Warehouse and associated storage buildings, Central Control Room, Main Office, Security Building, Fire House, Motor Control Centers, Boilerhouse, Chemical Storage unit
Training
Miscellaneous: phones, faxes, copiers, printers, mail services, office supplies
Schedule 3
SCHEDULE 4
UTILITY SERVICES
Utility Services
Electric Power
Natural Gas
Nitrogen
Fuel Gas
Steam and process steam
Cooling water
Potable water
Boiler feed water, service and soft water
Raw water (from Sabine Diversion)
Instrument/Utility air
Schedule 4
SCHEDULE 5
OPERATING SERVICES
The services shall include the personnel, supplies, parts and materials necessary for the provision of comprehensive Operating Services. The Westlake Parties shall provide or cause to be provided the following Operating Services in connection with the operation and maintenance of the Ethylene Assets, all in accordance with, and subject to, the requirements of this Agreement, including the following services by the Westlake Parties:
1. | provide, or procure and manage, those services (including operation, maintenance, engineering and construction services) necessary for the operation of the Ethylene Assets and to maintain the Ethylene Assets in sound operating condition and good repair; |
2. | perform routine maintenance, preventative maintenance and capitalized repairs; |
3. | perform corrosion and inspection services, |
4. | submit the applications for, pursue the issuance of, and maintain in force, the environmental and all other permits necessary for the operation of the Ethylene Assets; |
5. | prepare, sign and file, or cause to be prepared, signed and filed, all filings required to be filed by an operator of comparable manufacturing facilities with any Governmental Authority with respect to the Ethylene Assets or the operation thereof; |
6. | pay any existing or future ad valorem tax, and any existing or future sales tax, use tax, value added tax, environmental tax or other governmental charge or tax (other than taxes measured by income) levied or imposed on the Westlake Parties with respect to the Operating Services and prepare, deliver and maintain the required reports, valuations and statements with respect to such charges and taxes; |
7. | provide, or procure and manage, any raw materials, catalysts, additives, process chemicals and other supplies required for the operation of the Ethylene Assets; |
8. | operate the Ethylene Assets for the production of ethylene and certain ethylene co-products, including, but not limited to propylene, butadiene, pygas, pyoil and hydrogen ( Products ); |
9. | use, store, handle, treat and, on Owners behalf and in Owners name, dispose of, in accordance with Applicable Law, the hazardous waste and other hazardous materials and nonhazardous waste made, used, processed, stored or generated in the operation of the Ethylene Assets; |
10. | maintain proper inventory control and counting procedures and read, maintain and calibrate metering devices and maintain proper records in respect of the Products and other raw materials, catalysts, process chemicals, supplies and fuel used in the operation of the Ethylene Assets; |
11. | transport and store Products, including through exchange transactions; |
12. | sell and distribute the Products to third-parties; |
13. | prepare and maintain accounting, statistical, production runs and other operational reports, special reports detailing any accident or other significant event and such other reports and records as are required by Applicable Law or as are customarily maintained by prudent operators for facilities similar to the Ethylene Assets, including, as applicable, the following information: |
i. | intakes and outturns of the Ethylene Assets; |
ii. | production of Products; |
iii. | maintenance of the Ethylene Assets, including turnarounds; |
iv. | scheduled and unscheduled shutdowns and other events reducing available time, space or other available use of the Ethylene Assets; |
Schedule 5
v. | inventory feedstock, Product and other raw materials, catalysts, additives, process chemicals and other supplies and fuel; |
vi. | permit violations; and |
vii. | NOVs/NODs, and environmental releases or spills requiring the preparation, maintenance or submission of reports or records under any Environmental Laws or such other policy as Owner may specify in advance in writing or any other event materially affecting the environment, health and/or safety; |
14. | propose such capital projects to the Ethylene Assets as it may consider necessary or useful and provide, or procure the provision of, project assistance for capital projects to the Ethylene Assets as requested by Owner, including the development of project scope, plans, cost estimates, performance targets and other relevant information for capital projects that the Owner may reasonably request; |
15. | provide, or procure and manage, engineering, technical services, construction and installation work to the Ethylene Assets, including for capital projects; |
16. | prepare and maintain periodic reviews and updates of facilities procedures manuals and other documentation and of appropriate rules, regulations, procedures and manuals for the protection of the environment, health and/or safety as required by Applicable Law and as would be customarily prepared and maintained by a prudent operator for facilities similar to the Ethylene Assets; |
17. | take such reasonable actions as to cause the warranties and guaranties from vendors, operators and contractors required by applicable contract or design specifications to be delivered and maintained; |
18. | maintain such quality certifications with respect to the Ethylene Assets as is necessary for the production of Products. In addition, if Owner shall require a quality certification for the Ethylene Assets to satisfy the requirements of a customer of any end use products, the Westlake Parties shall obtain and maintain such certification provided that to do so does not place excessive administrative or other burdens on the Westlake Parties and Owner pays all incremental costs of obtaining and maintaining such quality certification; and |
19. | perform laboratory testing procedures for the Ethylene Assets products required for process and quality control and to maintain compliance with specifications. |
In the event that, subsequent to the date hereof, additional services are required to operate the Ethylene Assets that are not listed on this Schedule 5, the Westlake Parties shall use commercially reasonable efforts to supply such additional services on a mutually agreeable pricing and other terms, whereupon such services shall be considered to be an Operating Service for purposes of this Agreement.
Schedule 5
SCHEDULE 6
OWNER PROVIDED SERVICES
Purge Gas Processing
At the Lake Charles Assets the Poly 1/2 units send ethylene purge gas from their process to maintain the quality of the polyethylene product. This purge gas is returned to Petro 1 or Petro 2 and reprocessed, as it is largely ethylene.
A reprocessing charge that covers the cost of energy, chemicals, etc. is made. This cost is to be mutually agreed between the parties from time to time, based upon to cost of energy, chemicals, etc. pursuant to the mutual agreement of the Parties.
High Pressure Steam
At the Lake Charles Assets, in order to support the Petro 1 and Styrene plants, there is a line between them to allow the transfer of 600 psig superheated steam from one plant to the other for unit upsets and emergencies. This steam is sold at the full cost of production of the steam, based on an agreed upon formula.
Schedule 6
SCHEDULE 7
ACCOUNTING PROCEDURES
1.0 Statements and Billings. Each Party shall bill the other Party in accordance with Section 10.1(a) of this Agreement. If requested by a Party, the Party issuing the bill will promptly provide reasonably sufficient support for the Expenditures anticipated to be incurred for the following Month. Bills will be summarized by appropriate classifications indicative of the nature thereof and will be accompanied by such detail and supporting documentation as the paying Party may reasonably request.
2.0 Records. The Parties shall maintain accurate books and records covering all of such Parties performance of the relevant Services.
3.0 Purchase of Materials. All material, equipment and supplies used or consumed at the Ethylene Assets will be owned by Owner and purchased or furnished for its account. So far as is reasonably practical and consistent with efficient, safe and economical operation as determined by the Westlake Parties, only such material shall be obtained for the Ethylene Assets as may be required for immediate or near-term use, and the accumulation of surplus stock shall be avoided. To the extent reasonably possible, the Westlake Parties shall take advantage of discounts available by early payments and pass such benefits (or an allocable portion thereof) on to Owner.
4.0 Accounting Principles.
(a) The Westlake Parties are part of an affiliated group of companies (the Affiliated Group ) that as of the date of this Agreement are engaged in the manufacture and marketing of chemicals, vinyls, olefins, polymers and various fabricated building products. Accounting, purchasing, and risk management (among other functions and services) as of the date of this Agreement are managed or provided by the Westlake Parties or one of their Affiliates to the Affiliated Group. The costs and expenses incurred by the Westlake Parties or such Affiliate in managing or providing such functions and services are accrued on the books and records of the Westlake Parties in accordance with GAAP and are allocated (where applicable) among the members of the Affiliated Group in accordance with GAAP (the Accounting Principles ).
(b) The costs and expenses incurred by Owner or such Affiliate in managing or providing functions and services as at the date of this Agreement are accrued on the books and records of Owner in accordance with the Accounting Principles.
(c) For purposes of this Schedule, Expenditures shall be classified as either Owner Only Expenditures, Westlake Only Expenditures or Other Expenditures:
(i) Owner Only Expenditures shall be comprised of the Expenditures (Operating Expenses and Capital Expenditures) which are incurred solely in respect of the Ethylene Assets, Owner or Owners business. Owner Only Expenditures shall include (without limitation) Taxes imposed on the Ethylene Assets or the operation thereof, the cost of employees, labor, materials, equipment, supplies, replacement parts, license and Permit fees and fees of accountants and other professionals, in case incurred solely in respect of the Ethylene Assets, Owner or Owners business.
(ii) Westlake Only Expenditures shall be comprised of the Expenditures (Operating Expenses and Capital Expenditures) which are incurred solely in respect of the Westlake Facilities, the Westlake Parties or the business of the Westlake Parties. Westlake Only Expenditures shall include (without limitation) Taxes imposed on the Westlake Facilities or the operation thereof, the cost of employees, labor, materials, equipment, supplies, replacement parts, and fees of accountants and other professionals, in case incurred solely in respect of the Westlake Facilities, the Westlake Parties or the business of the Westlake Parties.
Schedule 7
(iii) Other Expenditures shall include all Expenditures (Operating and Capital Expenditures) other than Owner Only Expenditures or Westlake Only Expenditures.
(d) The Parties shall apply the Accounting Principles in determining the Expenditures and in allocating the Other Expenditures among the Parties or the other applicable members of the Affiliated Group. The Accounting Principles shall provide a mechanism for validating an Expenditure and all allocations of an Expenditure. If a Party believes that the determination or allocation of any Expenditure is inconsistent with the Accounting Principles, then such Party shall notify the other Party in writing of the specific manner in which the first Party regards such determination or allocation to be deficient or objectionable. The second Party shall either correct or change such determination or allocation in accordance with the notice, or, if the second Party disagrees with first Partys notice, disputes shall be resolved in accordance with Section 17.10 of this Agreement. Owners auditors and the Audit Committee of the GP may make reasonable suggestions on accounting relating to this Agreement, then the Westlake Parties will reasonably cooperate with Owner in addressing such changes; provided, the implementation of such suggestions shall be subject to the mutual agreement of Owner and the Westlake Parties.
(e) There shall be no duplication of charges for the same Expenditure. Likewise, no duplication of an Expenditure that has been charged to a Party under any other agreement between the Parties may occur.
Schedule 7
Exhibit 10.5
FORM OF
SITE LEASE AGREEMENT
(CALVERT CITY)
BETWEEN
WESTLAKE VINYLS, INC.,
AS LESSOR,
AND
WESTLAKE CHEMICAL OPCO LP,
AS LESSEE
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS AND CONSTRUCTION |
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1.1 | Certain Defined Terms | 1 | ||||
1.2 | References | 6 | ||||
1.3 | Headings | 6 | ||||
ARTICLE II DEMISE OF PREMISES AND TERM |
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2.1 | Demise of Leased Premises and Term | 6 | ||||
2.2 | Shared Access Facilities | 6 | ||||
2.3 | Rent | 8 | ||||
2.4 | Net Lease | 8 | ||||
ARTICLE III CONDUCT OF BUSINESS |
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3.1 | Use of Leased Premises | 8 | ||||
3.2 | Waste | 8 | ||||
3.3 | Governmental Regulations | 8 | ||||
3.4 | Utilities | 8 | ||||
3.5 | Site-Wide Permits | 9 | ||||
ARTICLE IV ALTERATIONS, ADDITIONS AND IMPROVEMENTS |
|
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4.1 | Additional Improvements | 9 | ||||
4.2 | No Liens | 9 | ||||
4.3 | Removal of Improvements | 9 | ||||
ARTICLE V MAINTENANCE OF PREMISES |
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5.1 | Maintenance | 10 | ||||
5.2 | Operation of the Leased Premises | 10 | ||||
5.3 | Surrender of the Leased Premises | 10 | ||||
5.4 | Release of Hazardous Substances | 10 | ||||
ARTICLE VI TAXES, ASSESSMENTS |
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6.1 | Lessees Obligation to Pay | 11 | ||||
6.2 | Manner of Payment | 11 | ||||
ARTICLE VII EMINENT DOMAIN; CASUALTY; INSURANCE |
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7.1 | Condemnation of Leased Premises | 12 | ||||
7.2 | Condemnation Awards | 12 | ||||
7.3 | Casualty | 12 | ||||
7.4 | Insurance | 13 |
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ARTICLE VIII ASSIGNMENT AND SUBLETTING |
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8.1 | Assignment and Subletting | 14 | ||
ARTICLE IX DEFAULTS; REMEDIES; TERMINATION |
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9.1 | Default by Lessee | 14 | ||
9.2 | Lessors Remedies | 15 | ||
9.3 | Default by Lessor | 15 | ||
9.4 | Lessees Remedies | 15 | ||
ARTICLE X INDEMNITY |
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10.1 | Indemnification by Lessor | 16 | ||
10.2 | Indemnification by Lessee | 16 | ||
10.3 | Matters Involving a Third Party | 17 | ||
10.4 | Survival | 17 | ||
10.5 | Related Agreements | 17 | ||
ARTICLE XI GENERAL PROVISIONS |
||||
11.1 | Estoppel Certificates | 17 | ||
11.2 | Severability | 17 | ||
11.3 | Time of Essence | 18 | ||
11.4 | Captions | 18 | ||
11.5 | Entire Agreement | 18 | ||
11.6 | Amendment or Modification | 18 | ||
11.7 | Exhibits | 18 | ||
11.8 | Notices | 18 | ||
11.9 | Waivers | 19 | ||
11.10 | No Partnership | 19 | ||
11.11 | No Third Party Beneficiaries | 19 | ||
11.12 | Waiver of Landlords Lien | 19 | ||
11.13 | Mutual Cooperation; Further Assurances | 19 | ||
11.14 | No Recording | 20 | ||
11.15 | Binding Effect | 20 | ||
11.16 | Choice of Law | 20 | ||
11.17 | Quiet Possession | 20 | ||
11.18 | Force Majeure | 20 | ||
11.19 | Survival | 20 | ||
11.20 | Brokerage Commissions | 20 | ||
11.21 | Condition of the Leased Premises | 20 | ||
11.22 | Relocation | 21 | ||
11.23 | Dispute Resolution | 21 |
ii
EXHIBITS
Exhibit A | Description of Leased Premises | |
Exhibit B | Depiction of Leased Premises |
iii
SITE LEASE AGREEMENT
(CALVERT CITY)
THIS SITE LEASE AGREEMENT (CALVERT CITY) (this Lease ) is made and entered into to be effective as of , 2014 (the Effective Date ), by and between WESTLAKE VINYLS, INC. , a Delaware corporation ( Lessor ), and WESTLAKE CHEMICAL OPCO LP , a Delaware limited partnership ( Lessee ).
RECITALS :
A. Pursuant to that certain [ Conveyance Instrument ] dated as of the Effective Date (the Conveyance ), Lessor contributed and conveyed the Lessee Assets to Lessee.
B. The Lessee Assets are situated upon the Leased Premises, which Leased Premises are located within, and are a part of, Lessors Calvert City Complex.
C. Lessor and certain Affiliates of Lessor own, directly and/or indirectly, ownership interests in Lessee; additionally, Lessor and/or certain Affiliates of Lessor are parties to the Related Agreements. As a result of the foregoing, Lessor anticipates receiving substantial direct and/or indirect economic and other benefits from Lessees operations at, on and from the Leased Premises.
D. Lessor and Lessee now desire to enter into this Lease to set forth the terms and conditions under which Lessee will be permitted to lease the Leased Premises and access and use certain other portions of the Calvert City Complex.
AGREEMENTS :
NOW, THEREFORE, in consideration of the Related Agreements and the mutual agreements set forth in this Lease, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee covenant and agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 Certain Defined Terms . Unless the context otherwise requires, the following terms shall have the respective meanings set forth in this Section 1.1 :
Additional Improvements shall have the meaning ascribed to such term in Section 4.1 .
Affiliates means, with respect to any Person, any other Person, that at the time such consideration is being made, directly or indirectly Controls, is Controlled by or under common Control with, such Person; provided, however, that, notwithstanding the foregoing, for purposes of this Lease, (a) neither MLP GP nor any direct or indirect subsidiary of MLP GP (including Lessee) shall be considered Affiliates of Lessor, and (b) neither Westlake Chemical Corporation
1
nor any direct or indirect subsidiary of Westlake Chemical Corporation (including Lessor), other than MLP GP and its direct and indirect subsidiaries, shall be considered Affiliates of Lessee. As used in the aforesaid context, Control (and derivations thereof) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of another, whether through the ownership of voting securities, by contract or otherwise.
Bankruptcy Event means with respect to a Party or entity, such Party or entity (a) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; (c) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (d) institutes a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights; (e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights, or a petition is presented for its winding up or liquidation, and any such proceeding or petition is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (f) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); (g) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; (h) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced, or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (i) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (a) to (i) (inclusive); or (j) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
Calvert City Complex shall have the meaning ascribed to such term in Section 2.2(d) . Notwithstanding anything in this Lease to the contrary, the Lessee Assets and any Additional Improvements are expressly excluded from the definition of, and do not constitute a part of, the Calvert City Complex.
Casualty Event shall have the meaning ascribed to such term in Section 7.3(a) .
Casualty Purchase Option shall have the meaning ascribed to such term in Section 7.3(c) .
Claims shall have the meaning ascribed to such term in Section 10.1 .
Conveyance shall have the meaning ascribed to such term in the Recitals.
Cure Period shall have the meaning ascribed to such term in Section 11.23(b)(i) .
Default Rate shall have the meaning ascribed to such term in Section 9.2 .
dispute shall have the meaning ascribed to such term in Section 11.23(a) .
2
Dispute Notice shall have the meaning ascribed to such term in Section 11.23(b)(i) .
Effective Date shall have the meaning ascribed to such term in the preface to this Lease.
Environmental Law or Environmental Laws means all federal, state and local laws, statutes, rules, regulations, orders and ordinances now or hereafter in effect, relating to protection of the environment including, without limitation, the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil Pollution Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, and other environmental conservation and protection laws, each as amended from time to time.
Ethylene Sales Agreement means the Ethylene Sales Agreement between Lessor and certain Affiliates of Lessor and Lessee, dated on or about the Effective Date, as it may be amended, restated or otherwise modified.
Fair Market Value shall have the meaning ascribed to such term in Section 7.3(d) .
Feedstock Supply Agreement means the Feedstock Supply Agreement between Westlake Petrochemicals LLC, an Affiliate of Lessor, and Lessee, dated on or about the Effective Date, as it may be amended, restated or otherwise modified.
Force Majeure means acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, wars, blockades, insurrections, riots, storms, floods, washouts, arrests, the order of any Governmental Authority having jurisdiction while the same is in force and effect, civil disturbances, explosions, breakage, accident to machinery, storage tanks or lines of pipe, inability to obtain or unavoidable delay in obtaining material or equipment, and any other causes whether of the kind herein enumerated or otherwise not reasonably within the control of the Party claiming suspension and which by the exercise of due diligence such Party is unable to prevent or overcome.
Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Hazardous Substances means (1) any substance that is designated, defined, or classified as a hazardous waste, hazardous material, pollutant, contaminant, or toxic or hazardous substance, or that is otherwise regulated under any Environmental Law, including, without limitation, any hazardous substance as defined under the Comprehensive Environmental Response, Compensation, and Liability Act, and (2) petroleum, crude oil, gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel, and other refined petroleum hydrocarbons.
Indemnified Party means the Party seeking indemnification under Section 10.1 or Section 10.2 .
3
Indemnifying Party means the Party required to provide indemnification under Section 10.1 or Section 10.2 .
Laws means any applicable statute, law, regulation, ordinance, rule, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, agreement, requirement, or other governmental restriction or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued under any of the foregoing by, or any determination of, any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect and in each case as amended (including, without limitation, all of the terms and provisions of the common law of such Governmental Authority), as interpreted and enforced at the time in question.
Lease means this Site Lease Agreement.
Leased Premises shall mean the tracts or parcels of land within the Calvert City Complex upon which the Lessee Assets are situated, as more particularly described in Exhibit A attached hereto (and shown as the shaded areas in the depiction attached hereto, for reference purposes only, as Exhibit B ). Notwithstanding anything in this Lease to the contrary, the Lessee Assets and any Additional Improvements are expressly excluded from the definition of, and do not constitute a part of, the Leased Premises.
Lessee shall have the meaning ascribed to such term in the preface to this Lease.
Lessee Assets means the units, facilities, equipment, properties and other assets (whether real, personal or mixed) contributed and conveyed to Lessee pursuant to the Conveyance.
Lessee Indemnified Parties shall have the meaning ascribed to such term in Section 10.1 .
Lessee Release shall have the meaning ascribed to such term in Section 11.14 .
Lessees Parties shall have the meaning ascribed to such term in Section 2.2(a) .
Lessor shall have the meaning ascribed to such term in the preface to this Lease.
Lessor Indemnified Parties shall have the meaning ascribed to such term in Section 10.2 .
Lessors Parties shall have the meaning ascribed to such term in Section 2.2(b) .
MLP means Westlake Chemical Partners LP, a Delaware limited partnership.
MLP GP means Westlake Chemical Partners GP LLC, a Delaware limited liability company, the general partner of the MLP.
4
MLP Partnership Agreement means the First Amended and Restated Agreement of Limited Partnership of Westlake Chemical Partners LP dated as of , 2014, as it may be amended, restated or otherwise modified.
Omnibus Agreement means the Omnibus Agreement among Lessor and certain Affiliates of Lessor and Lessee and certain Affiliates of Lessee, dated on or about the Effective Date, as it may be amended, restated or otherwise modified.
Option Closing Date shall have the meaning ascribed to such term in Section 7.3(d) .
Option Notice shall have the meaning ascribed to such term in Section 7.3(d) .
Parties means, collectively, Lessor and Lessee, and Party shall mean either Lessor or Lessee individually.
Permits means all permits, licenses, franchises, authorities, consents and approvals required under applicable Laws, including Environmental Laws, in connection with the use and operation of the Lessee Assets and/or the Additional Improvements.
Person means any individual or entity, including any partnership, corporation, association, joint stock company, trust, joint venture, limited liability company, unincorporated organization or Governmental Authority (or any department, agency or political subdivision thereof).
Purchase Price shall have the meaning ascribed to such term in Section 7.3(d) .
Related Agreements means, collectively, the Omnibus Agreement, the Ethylene Sales Agreement, the Feedstock Supply Agreement, the Services Agreement, and any other agreement executed by the Parties and/or their respective Affiliates relating to Lessees ownership, use or operation of the Lessee Assets or the conduct of Lessees business on, at or within the Calvert City Complex.
Rent shall have the meaning ascribed to such term in Section 2.3 .
Services Agreement means the Services and Secondment Agreement between Lessor and certain Affiliates of Lessor and Lessee, dated on or about the Effective Date, as it may be amended, restated or otherwise modified.
Shared Access Facilities shall have the meaning ascribed to such term in Section 2.2(a) .
Taxes shall have the meaning ascribed to such term in Section 6.1 .
Term shall have the meaning ascribed to such term in Section 2.1 .
Third Party shall mean a Person which is not (a) Lessor or an Affiliate of Lessor, (b) Lessee or an Affiliate of Lessee or (c) a Person that, after the signing of this Lease becomes a successor entity of Lessor, Lessee or any of their respective Affiliates. An employee of Lessor or Lessee shall not be deemed an Affiliate.
5
Third-Party Claim shall have the meaning ascribed to such term in Section 10.3 .
1.2 References . As used in this Lease, unless a clear contrary intention appears: (a) the singular includes the plural and vice versa; (b) reference to any Person includes such Persons successors and assigns but, in the case of a Party, only if such successors and assigns are permitted by this Lease, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) reference to any gender includes each other gender; (d) reference to any agreement (including this Lease), document or instrument means such agreement, document, or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of this Lease; (e) reference to any Section means such Section of this Lease, and references in any Section or definition to any clause means such clause of such Section or definition; (f) hereunder, hereof, hereto and words of similar import will be deemed references to this Lease as a whole and not to any particular Section or other provision hereof or thereof; (g) including (and with correlative meaning include) means including without limiting the generality of any description preceding such term; and (h) relative to the determination of any period of time, from means from and including, to means to but excluding and through means through and including.
1.3 Headings . The headings of the Sections of this Lease and the Exhibits hereto are included for convenience only and shall not be deemed to constitute part of this Lease or to affect the construction or interpretation hereof or thereof.
ARTICLE II
DEMISE OF PREMISES AND TERM
2.1 Demise of Leased Premises and Term . For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and subject to the terms and conditions hereof, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Leased Premises for a 50-year term commencing on the Effective Date and expiring on , 2064, subject to renewal or early termination in accordance with the express provisions of this Lease (the Term ). Upon expiration of the Term, the Parties may (but shall have no obligation to) renew the Term for such period or periods, and on such terms, as are mutually-acceptable to the Parties.
2.2 Shared Access Facilities .
(a) Lessor hereby grants to Lessee and its Affiliates, agents, employees and contractors (collectively, Lessees Parties ), free of charge, the non-exclusive right to access and use such portions of the Calvert City Complex as may be reasonably necessary for access to the Leased Premises and/or use and operation of the Lessee Assets and any Additional Improvements. Any such access, use and operation by Lessees Parties shall not unreasonably interfere with Lessors operations of the Calvert City Complex and shall comply with Lessors rules, regulations and procedures governing safety and security for the Calvert City Complex. The portions of the Calvert City Complex that are subject to the access and use rights provided
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under this Section 2.2 are referred to herein as the Shared Access Facilities . Lessees Parties non-exclusive rights to use and access the Shared Access Facilities shall automatically expire and terminate concurrently with the expiration of the Term or earlier termination of this Lease. Notwithstanding anything in this Lease to the contrary, but subject to Lessors covenant and warranty set forth in Section 11.17 , any access or use by Lessees Parties of any portion of the Calvert City Complex (including, if applicable, any Shared Access Facilities) that is not owned by Lessor shall be conditioned upon such access or use being permitted by, and shall be subject to the terms and conditions of, the lease or other agreement pursuant to which Lessors rights with respect to such portion of the Calvert City Complex derives.
(b) Notwithstanding anything in this Lease to the contrary, Lessor hereby retains for itself and its Affiliates, agents, employees and contractors (collectively, Lessors Parties ), the right to access, use and operate the Calvert City Complex and all portions thereof, including without limitation the Shared Access Facilities. Lessor further hereby retains for itself and any of the other Lessors Parties, the right of access to the Leased Premises, the Lessee Assets and any Additional Improvements (i) to determine whether the conditions and covenants contained in this Lease are being kept and performed, (ii) to comply with Environmental Laws, (iii) to inspect, maintain, repair, improve and operate any assets of Lessor located on the Leased Premises (including, if applicable, any Shared Access Facilities), (iv) to install or construct any structures or equipment necessary for the maintenance, operation or improvement of the Calvert City Complex or any portion thereof, and (v) to address any emergency situation affecting the Calvert City Complex in each instance so long as such access by Lessors Parties does not unreasonably interfere with Lessees operations of the Lessee Assets or any Additional Improvements and complies with Lessees rules, regulations and procedures governing safety and security for the Lessee Assets.
(c) During the Term, Lessee shall reimburse Lessor for Lessees reasonable share (allocated on an equitable basis mutually acceptable to Lessor and Lessee) of the costs and expenses incurred by Lessor in maintaining and operating the Shared Access Facilities. Such reimbursement payments, plus an administrative fee equal to five percent (5%) of the amount being reimbursed, shall be made by Lessee within 30 days after Lessors written demand therefor.
(d) The Parties acknowledge that the composition of the Calvert City Complex may change from time to time as Lessor acquires or disposes of properties or other assets. As used in this Lease, the term Calvert City Complex means the land, including the Leased Premises, and the equipment, facilities, properties and other assets comprising Lessors petrochemical production facilities located in Calvert City, Kentucky, as the same may be constituted from time to time. Any land, equipment, facility, property or other asset that is acquired by Lessor for use as a part of, or exclusively in connection with, the Calvert City Complex after the Effective Date shall, automatically upon such acquisition, be added to and become a part of the Calvert City Complex; subject to Lessors covenant and warranty set forth in Section 11.17 , any land, equipment, facility, property or other asset that previously constituted a portion of the Calvert City Complex shall, automatically upon disposition thereof by Lessor, be removed from, and shall no longer constitute a portion of, the Calvert City Complex.
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2.3 Rent . Lessee agrees to pay to Lessor, in advance, annual rental in the amount of One and 00/100 Dollars ($1.00) ( Rent ) on or before each anniversary of the Effective Date during the Term. Lessees initial payment of Rent shall be paid concurrently with Lessees execution and delivery of this Lease. All Rent shall be payable in lawful money of the United States of America at Lessors address set forth in Section 11.8 . Unless otherwise expressly set forth in this Lease, Rent shall be paid without any claim on the part of Lessee for diminution, setoff or abatement, and nothing shall suspend, abate or reduce any Rent to be paid hereunder except as otherwise expressly set forth herein.
2.4 Net Lease . Except as otherwise expressly provided in this Lease or in any Related Agreements, this is a net lease and Lessor shall not at any time be required to pay any costs or expenses associated with the ownership, operation, use, maintenance, repair, alteration or improvement of the Leased Premises, the Lessee Assets or the Additional Improvements. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Lease or in any Related Agreements, Lessor shall not be required to provide, maintain or incur costs or expenses with respect to taxes, insurance or utilities related to the Leased Premises, the Lessee Assets or the Additional Improvements.
ARTICLE III
CONDUCT OF BUSINESS
3.1 Use of Leased Premises . Lessee shall have the right to use the Leased Premises for the purpose of owning, operating, maintaining, repairing, replacing and improving the Lessee Assets and the Additional Improvements, and for any other lawful purpose associated with Lessees ownership and operation of the Lessee Assets and the Additional Improvements.
3.2 Waste . Lessee shall not commit, or suffer to be committed, any physical waste to the Leased Premises, ordinary wear and tear, casualty and condemnation excepted.
3.3 Governmental Regulations . Subject to any obligations of Lessor and/or its Affiliates under the Related Agreements, Lessee shall, at Lessees sole cost and expense, cause the Leased Premises, the Lessee Assets and the Additional Improvements to comply all applicable Laws (including Environmental Laws). Lessee shall promptly notify Lessor of Lessees receipt of any notice of material non-compliance relating to the Leased Premises, the Lessee Assets or the Additional Improvements. If Lessor reasonably believes at any time that Lessee is not materially complying with all applicable Laws with respect to the Leased Premises, the Lessee Assets and the Additional Improvements, Lessor may provide written notice to Lessee of such non-compliance and, if Lessee thereafter fails to take appropriate action to remedy or correct the applicable non-compliance within 30 days after receipt of such written notice, Lessor may, without further notice to Lessee, take such actions for Lessees account. Within 30 days following the date Lessor delivers to Lessee evidence of payment for any actions taken by Lessor in accordance with this Section 3.3 , Lessee shall reimburse Lessor all amounts paid by Lessor on Lessees behalf.
3.4 Utilities . Unless otherwise set forth in the Services Agreement or any other Related Agreements, Lessee shall be responsible, at its sole cost and expense, for the provision of all utilities (electricity, natural gas, water, steam, etc.) necessary for Lessees use of the Leased Premises, the Lessee Assets and any Additional Improvements.
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3.5 Site-Wide Permits . Lessor and Lessee shall use commercially reasonable efforts to cause any applicable Governmental Authorities to allow Lessee to use and operate the Lessee Assets and the Additional Improvements under any existing Permits applicable to the Calvert City Complex as a whole, or other Permits held directly by Lessor, and Lessor agrees, to the extent allowed by such applicable Governmental Authorities and to the extent permitted by applicable Laws, to allow the Lessee Assets and the Additional Improvements to continue to be covered by any such existing Permits. To the extent applicable Governmental Authorities or applicable Laws will not or do not allow Lessee to use and operate the Lessee Assets and/or the Additional Improvements under any particular existing Permit, Lessee shall be responsible for securing a separate Permit to be held directly by Lessee with respect to the Lessee Assets and the Additional Improvements. Lessor will reasonably cooperate with Lessee, at Lessees cost, in connection with Lessees efforts to secure such separate Permit.
ARTICLE IV
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
4.1 Additional Improvements . Subject to the provisions of this Article IV , Lessee may make any alterations, additions, improvements or other changes to the Leased Premises and the Lessee Assets as may be necessary or useful in connection with the operation of its business (collectively, the Additional Improvements ). If such Additional Improvements require alterations, additions or improvements to the Leased Premises or any of the Shared Access Facilities, Lessee shall notify Lessor in writing in advance and the parties shall negotiate in good faith to provide for reimbursement of any increase in cost to Lessor that results from any such alterations, additions or improvements. Any Additional Improvements or other alterations, additions, improvements or changes by Lessee to the Leased Premises, Lessee Assets, Additional Improvements or Shared Access Facilities shall be made in a good and workmanlike manner and in accordance with all applicable Laws.
4.2 No Liens . Lessee shall not have the right or power to create or permit any lien of any kind or character to attach to or be binding against the Leased Premises by reason of repair or construction or other work. In the event any such lien is filed against the Leased Premises, Lessee shall cause such lien to be discharged or bonded within thirty (30) days of the date of filing thereof.
4.3 Removal of Improvements . The Lessee Assets and all Additional Improvements shall be, and at all times during the Term shall remain, the property of Lessee. Within one year after the expiration or termination of this Lease, Lessee may (but shall not be obligated to) remove any or all Lessee Assets and/or Additional Improvements from the Leased Premises, at Lessees sole cost and expense; provided that (a) Lessee shall only be permitted to remove any of the Lessee Assets or Additional Improvements if such removal can be undertaken without unreasonable damage or harm to the Leased Premises or the remainder of the Calvert City Complex and without material interruption to Lessors operations at the Calvert City Complex, (b) Lessee shall repair and restore any damage to the Leased Premises or the remainder of the Calvert City Complex caused by any such removal, and (c) Lessees removal rights under this
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Section 4.3 shall not arise if Lessor elects to exercise the Casualty Purchase Option pursuant to Section 7.3(c) . Any Lessee Assets, Additional Improvements, or other property of Lessee that are not timely removed from the Leased Premises in accordance with this Section 4.3 shall be deemed to have been surrendered to, and shall thereafter be the property of, Lessor.
ARTICLE V
MAINTENANCE OF PREMISES
5.1 Maintenance . Except as otherwise expressly provided in this Article V or otherwise in this Lease, and subject to any obligations of Lessor or its Affiliates under any Related Agreements, Lessee shall be responsible, at its sole cost and expense, for the maintenance, repair, replacement, and alteration of the Leased Premises, the Lessee Assets and the Additional Improvements, and for the removal and disposal of all materials, debris and waste generated thereby or therefrom. All such maintenance, repairs, replacements and alterations by Lessee shall be made in a good and workmanlike manner, and in accordance with applicable Laws. Except as otherwise expressly provided in this Lease, and subject to any obligations of Lessee or its Affiliates under any Related Agreements, Lessor shall be responsible, at its sole cost and expense, for the maintenance, repair, replacement, and alteration of the Shared Access Facilities, and for the removal and disposal of all materials, debris and waste generated thereby or therefrom. All such maintenance, repairs, replacements and alterations by Lessor shall be made in a good and workmanlike manner, and in accordance with applicable Laws.
5.2 Operation of the Leased Premises . Subject to the obligations of Lessor or its Affiliates under the Related Agreements, Lessee covenants and agrees to operate the Lessee Assets and Additional Improvements in accordance with normal and customary practices in the industry and in accordance with all applicable Laws.
5.3 Surrender of the Leased Premises . Subject to Lessees rights to remove the Lessee Assets and the Additional Improvements pursuant to Section 4.3 above, upon expiration or earlier termination of this Lease, Lessee shall surrender the Leased Premises in substantially the same condition as it was delivered to Lessee on the Effective Date, ordinary wear and tear excepted.
5.4 Release of Hazardous Substances . Lessee shall give prompt notice to Lessor of any release of Hazardous Substances on, at or from the Leased Premises that occur during the Term. Lessee shall promptly take all necessary or required steps to contain or remediate (or both) any such release and provide any notifications required by applicable Laws (including Environmental Laws). If Lessor reasonably believes at any time that Lessee is failing to contain or remediate, in compliance with all applicable Laws (including Environmental Laws), any release arising from Lessees operations on, at or from the Leased Premises, Lessor may provide written notice to Lessee of such non-compliance and, if Lessee thereafter fails to take appropriate action to remedy or correct such non-compliance within 30 days after receipt of such written notice, Lessor may, without further notice to Lessee, take such actions for Lessees account. Within 30 days following the date Lessor delivers to Lessee evidence of payment for any actions taken by Lessor in accordance with this Section 5.4 , Lessee shall reimburse Lessor all amounts paid by Lessor on Lessees behalf.
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ARTICLE VI
TAXES, ASSESSMENTS
6.1 Lessees Obligation to Pay . Lessee shall pay during the Term, all federal, state and local real and personal property ad valorem taxes, assessments, and other governmental charges, general and special, ordinary and extraordinary, including assessments for public improvements or benefits assessed against the Leased Premises, or improvements situated thereon, including the Lessee Assets and all Additional Improvements, including any federal, state or local income, gross receipts, withholding, franchise, excise, sales, use, value added, recording, transfer or stamp tax, levy, duty, charge or withholding of any kind imposed or assessed by any federal, state or local government, agency or authority, together with any addition to tax, penalty, fine or interest thereon, other than state or U.S. federal income tax imposed upon the taxable income of Lessor and any franchise taxes imposed upon Lessor (such taxes and assessments being hereinafter called Taxes ). In the event that Lessee fails to pay its share of such Taxes in accordance with the provisions of this Section 6.1 prior to the time the same become delinquent, Lessor may pay the same and Lessee shall reimburse Lessor all amounts paid by Lessor on Lessees behalf within 30 days following the date Lessor delivers to Lessee evidence of such payment.
6.2 Manner of Payment . Lessee shall pay directly to the applicable taxing authority, prior to delinquency, all Taxes that are separately assessed against the Leased Premises, the Lessee Assets and the Additional Improvements, and, if requested by Lessor, shall promptly thereafter provide Lessor with evidence of such payment. Lessor shall be responsible for the payment of all Taxes that are jointly assessed against the Calvert City Complex and the Leased Premises, the Lessee Assets and any Additional Improvements, and Lessee shall reimburse Lessor for Lessees reasonable share (allocated on an equitable basis mutually acceptable to Lessor and Lessee) of the costs and expenses incurred by Lessor in paying such Taxes. Such reimbursement payments shall be made by Lessee within 30 days after Lessors delivery to Lessee of the applicable tax bill or bills and a calculation of Lessees share of the tax reimbursement payments. Lessee may contest, at Lessees sole cost and expense, by appropriate proceedings diligently conducted in good faith in accordance with applicable Laws, the validity or amount of any Taxes or the valuation of the Leased Premises and/or the Lessee Assets and the Additional Improvements, but only to the extent the foregoing are separately assessed, and Lessor shall reasonably cooperate with Lessee, at Lessees cost, in any such contest. Additionally, Lessee shall have the right to request that Lessor contest any Taxes that are jointly assessed against the Calvert City Complex and the Leased Premises, the Lessee Assets and any Additional Improvements, and, if Lessor agrees in its reasonable discretion that such contest is necessary or desirable, Lessor shall contest the validity or amount of such Taxes or the valuation of the Calvert City Complex; the cost of any such contest by Lessor shall be allocated between Lessor and Lessee on a mutually acceptable, equitable basis. Taxes for the first and last years of the Term shall be prorated between the Parties based on the portions of such years that are coincident with the applicable tax years and for which each applicable Party is responsible.
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ARTICLE VII
EMINENT DOMAIN; CASUALTY; INSURANCE
7.1 Condemnation of Leased Premises . If the whole of the Leased Premises are taken or condemned under power of eminent domain, then this Lease shall automatically terminate as of the effective date of such taking or condemnation. If a portion (but less than all) of the Leased Premises are taken or condemned under power of eminent domain, and if, in the reasonable opinion of Lessee, such taking or condemnation materially and adversely affects Lessees use and operation of the Lessee Assets, then Lessee shall have the right, within 60 days after the effective date of such taking or condemnation, to terminate this Lease by written notice to Lessor.
7.2 Condemnation Awards . Lessor shall be entitled to any award and all damages payable as a result of any condemnation or taking of the fee title of the Leased Premises. Lessee shall have the right to claim and recover from the condemning authority, but not from Lessor, such compensation as may be separately awarded or recoverable by Lessee with respect to Lessees leasehold interests in the Leased Premises or otherwise on account of any damage to the Lessee Assets, the Additional Improvements and/or Lessees business.
7.3 Casualty .
(a) If the Lessee Assets and the Additional Improvements are destroyed or damaged (each, a Casualty Event ), and if, in the reasonable opinion of Lessee, such Casualty Event materially and adversely affects Lessees use and operation of the Lessee Assets, then Lessee shall have the right, within 180 days after the occurrence of such Casualty Event, to terminate this Lease by written notice to Lessor. In the event this Lease is terminated pursuant to this Section 7.3, (i) all charges paid or owing hereunder shall be prorated as of the effective date of such termination, (ii) Lessee shall be entitled to any insurance proceeds applicable to the Lessee Assets and the Additional Improvements, and (iii) Lessee shall, in good faith and with due diligence, remove all Lessee Assets and Additional Improvements from the Leased Premises, and repair and restore any damage to the Leased Premises or the remainder of the Calvert City Complex caused by such removal, at Lessees sole cost and expense.
(b) In the event Lessee does not timely elect to terminate this Lease following the occurrence of a Casualty Event in accordance with Section 7.3(a) , Lessee shall repair and restore any damaged or destroyed Lessee Assets and/or Additional Improvements to substantially the condition in which such Lessee Assets and/or Additional Improvements existed immediately prior to the applicable Casualty Event. Such repair and restoration by Lessee shall be performed in good faith and with due diligence, subject to Lessees receipt of any required building or construction permits.
(c) If, notwithstanding Section 7.3(b) , Lessee fails to act in good faith or to use due diligence to repair and restore the Lessee Assets and Additional Improvements to the required condition within a reasonable time, then (i) Lessor shall have the right to take such actions as are necessary or reasonable to effect such repair and restoration (and Lessee shall take all actions reasonably necessary to facilitate Lessors actions), and insurance proceeds with respect to any remaining repair or restoration work shall be payable to Lessor, (ii) Lessor shall
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have the right to immediately terminate this Lease upon written notice to Lessee, (iii) Lessee shall be obligated to use any insurance proceeds actually received by Lessee to reasonably clean up the Lessee Assets, Additional Improvements and Leased Premises and (iv) Lessor shall have the option to purchase the Lessee Assets and Additional Improvements for the Purchase Price (the Casualty Purchase Option ), as determined in accordance with Section 7.3(d) .
(d) If Lessor elects to exercise the Casualty Purchase Option, Lessor shall notify Lessee in writing (the Option Notice ). Promptly thereafter, Lessor and Lessee shall engage a mutually-acceptable independent appraiser with experience in valuing petrochemical production assets to determine the fair market value of the Lessee Assets and the Additional Improvements (the Fair Market Value ), which is the price at which a willing buyer would be willing to buy, and a willing seller would be willing to sell, each under no compulsion, the Lessee Assets and Additional Improvements in their then-current condition. The closing of the purchase and sale of the Lessee Assets and Additional Improvement shall occur on the closing date set forth in the Option Notice (the Option Closing Date ), which date shall not be more than 90 days after Lessors delivery of the Option Notice. At such closing, (i) Lessee shall deliver such duly executed and, if applicable, acknowledged, conveyances, deeds, assignments, bills of sale and other documents and instruments as are required to convey and transfer the Lessee Assets and Additional Improvements to Lessor, each of which shall include a special warranty of title or similar warranty of claims and encumbrances created or existing by, through or under Lessee and its Affiliates, but otherwise without warranty and (ii) Lessor shall deliver to Lessee, by wire transfer or other immediately available funds, the Purchase Price. As used herein, the Purchase Price means the Fair Market Value, less any costs and expenses incurred by Lessor in connection with the restoration and repair of the Lessee Assets and Additional Improvements prior to the Option Closing Date (excluding costs and expenses for which Lessor has actually received insurance proceeds).
7.4 Insurance . Except as otherwise agreed by Lessor and Lessee, Lessee shall, at all times during the Term, maintain or cause to be maintained property and casualty insurance (including pollution insurance) with respect to the Leased Premises, the Lessee Assets and the Additional Improvements in accordance with normal and customary practices in the industry. All such insurance shall be issued by reputable insurance providers licensed to do business in the state in which the Leased Premises is located. Except as otherwise agreed by Lessor and Lessee, Lessor shall, at all times during the term, maintain or cause to be maintained property and casualty insurance (including pollution insurance) with respect to the Shared Access Facilities in accordance with normal and customary practices in the industry. All such insurance shall be issued by insurance providers which are licensed or authorized to do business in the State of Texas and are rated by A.M. Bests Key Rating Guide as A-, Financial Size VIII, or better. Lessor and Lessee each waives any claim it might have against the other for any damage to or theft, destruction, loss, or loss of use of any property, to the extent the same is insured against under any insurance policy of the types described in this Section 7.4 that covers the Leased Premises, the Lessee Assets, the Additional Improvements or the Shared Access Facilities, regardless of whether the negligence of the other Party caused such loss . Each Party shall cause its insurance carrier to endorse all applicable policies waiving the carriers rights of recovery under subrogation or otherwise against the other Party.
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ARTICLE VIII
ASSIGNMENT AND SUBLETTING
8.1 Assignment and Subletting . Except as permitted pursuant to the Omnibus Agreement, neither Party may assign or otherwise transfer any of its rights or obligations under this Lease without the prior written consent of the other Party, and any purported assignment or transfer in violation hereof shall be null and void. Additionally, Lessee may not sublease or otherwise permit any person or entity to occupy any portion of the Leased Premises without the prior written consent of Lessor, and any purported sublease or other occupancy agreement shall be null and void.
ARTICLE IX
DEFAULTS; REMEDIES; TERMINATION
9.1 Default by Lessee . The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee:
(a) the failure by Lessee to make any payment required to be made by Lessee hereunder as and when the same becomes due and payable, if such failure continues for a period of 15 days following written notice from Lessor;
(b) the failure by Lessee to observe or perform any of the other covenants, conditions or provisions of this Lease to be observed or performed by Lessee, if such failure continues for a period of 30 days following written notice from Lessor; provided, however, if a reasonable time to cure such default would exceed 30 days, Lessee shall not be in default so long as Lessee begins to cure such default within 30 days of receiving written notice from Lessor and thereafter completes the curing of such default within reasonable period of time (under the circumstances) following the receipt of such written notice from Lessor;
(c) the occurrence of any Bankruptcy Event with respect to Lessee;
(d) the termination of the Ethylene Sales Agreement by Lessor or Lessors Affiliates, in accordance with the provisions thereof, due to a breach or default by Lessee thereunder, or due to the occurrence of a Force Majeure (as defined in the Ethylene Sales Agreement); or
(e) the failure by Lessee to operate the Lessee Assets and Additional Improvements for any period of six consecutive months (subject to extension for Force Majeure in accordance with Section 11.18 ), other than during periods of reconstruction due to the occurrence of a Casualty Event or condemnation, so long as such reconstruction is being performed in compliance with this Lease.
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9.2 Lessors Remedies .
(a) Lessor shall have the right, at Lessors option at any time that a default or breach under Section 9.1(a) or 9.1(b) remains uncured, to invoke the dispute resolution procedures set forth in Section 11.23 . Except as otherwise set forth in this Section 9.2 , Lessors right to invoke the dispute resolution provisions set forth in Section 11.23 shall be Lessors sole and exclusive remedy under this Lease with respect to a default or breach under Section 9.1(a) or 9.1(b) .
(b) Lessor shall have the right, at Lessors option at any time that a default or breach under Section 9.1(c) , 9.1(d) or 9.1(e) remains uncured, to terminate this Lease and Lessees right to possession of the Leased Premises, without further notice or demand, and to forthwith repossess the Leased Premises by any lawful means in which event Lessee shall immediately surrender possession of the Leased Premises to Lessor; and any such action on the part of Lessor shall be in addition to any other remedy that may be available to Lessor for breach of contract, or otherwise, including the right of setoff.
(c) If, by the terms of this Lease, Lessee is required to do or perform any act or to pay any sum to a third party, and fails or refuses to do so, Lessor, after 30 days written notice to Lessee, without waiving any other right or remedy hereunder for such default, may do or perform such act, at Lessees expense, or pay such sum for and on behalf of Lessee, and the amounts so expended by Lessor shall be repayable on demand, and bear interest from the date expended by Lessor until paid at a rate equal to the lesser of (i) an interest rate equal to the Prime Rate as published in The Wall Street Journal , Southwest Edition, in its listing of Money Rates plus five percent (5%) or (ii) the maximum non-usurious rate of interest permitted under applicable Law (the Default Rate ).
9.3 Default by Lessor . The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessor:
(a) The failure by Lessor to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessor, if such failure continues for a period of 30 days following written notice from Lessee; provided, however, if a reasonable time to cure such default would exceed 30 days, Lessor shall not be in default so long as Lessor begins to cure such default within 30 days of receiving written notice from Lessee and thereafter completes the curing of such default within a reasonable period of time following the receipt of such written notice from Lessee; or
(b) The occurrence of a Bankruptcy Event with respect to Lessor.
9.4 Lessees Remedies .
(a) Lessee shall have the right, at Lessees option at any time that a default or breach under Section 9.3(a) or 9.3(b) remains uncured, to invoke the dispute resolution procedures set forth in Section 11.23 . Except as otherwise set forth in this Section 9.4 , Lessees right to invoke the dispute resolution provisions set forth in Section 11.23 shall be Lessees sole and exclusive remedy under this Lease with respect to a default or breach under Section 9.3(a) or 9.3(b) .
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(b) If, by the terms of this Lease, Lessor is required to do or perform any act or to pay any sum to a third party, and fails or refuses to do so, Lessee, after 30 days written notice to Lessor, without waiving any other right or remedy hereunder for such default, may do or perform such act, at Lessors expense, or pay such sum for and on behalf of Lessor, and the amounts so expended by Lessee shall be repayable on demand, and bear interest from the date expended by Lessee until paid at the Default Rate.
ARTICLE X
INDEMNITY
10.1 Indemnification by Lessor . Lessor agrees to indemnify, defend, protect, save and keep harmless Lessee and its Affiliates and their respective officers, directors, shareholders, unitholders, members, partners, managers, agents, employees, representatives, successors and assigns (collectively, the Lessee Indemnified Parties ) from and against any and all liabilities, obligations, losses, damages, penalties, demands, claims (including claims involving strict or absolute liability in tort), actions, suits, costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, Claims ) which may be imposed on, incurred by or asserted against any of the Lessee Indemnified Parties, in any way relating to or arising out of (a) any failure to perform any covenant or agreement made or undertaken by Lessor in this Lease, or (b) the exercise of Lessors Parties rights and obligations under Section 2.2(b) ; provided, however, Lessor shall not have any obligation to indemnify the Lessee Indemnified Parties for any such Claim under clauses (a) or (b) to the extent resulting from or arising out of the willful misconduct or negligence of any of the Lessee Indemnified Parties. To the extent that the Lessee Indemnified Parties in fact receive full indemnification payments from Lessor under the indemnification provisions of this Section 10.1 , Lessor shall be subrogated to the Lessee Indemnified Parties rights with respect to the transaction or event requiring or giving rise to such indemnity. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, IN NO EVENT SHALL LESSOR BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES IN TORT, CONTRACT OR OTHERWISE UNDER OR ON ACCOUNT OF THIS LEASE, EXCEPT THOSE PAYABLE TO THIRD PARTIES FOR WHICH LESSOR WOULD BE LIABLE UNDER THIS SECTION .
10.2 Indemnification by Lessee . Lessee agrees to indemnify, defend, protect, save and keep harmless Lessor and its Affiliates, and their respective officers, directors, shareholders, unitholders, members, partners, managers, agents, employees, representatives, successors and assigns (collectively, the Lessor Indemnified Parties ) from and against any and all Claims which may be imposed on, incurred by or asserted against the Lessor Indemnified Parties, in any way and to the extent relating to or arising out of (a) any failure to perform any covenant or agreement made or undertaken by Lessee in this Lease, or (b) the exercise of Lessees Parties rights under Section 2.2(a); provided, however, Lessee shall not have any obligation to indemnify the Lessor Indemnified Parties for any such Claim under clauses (a) or (b) to the extent resulting from or arising out of the willful misconduct or negligence of any of the Lessor Indemnified Parties. To the extent that the Lessor Indemnified Parties in fact receive full indemnification payments from Lessee under the indemnification provisions of this Section 10.2 , Lessee shall be subrogated to the Lessor Indemnified Parties rights with respect to the
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transaction or event requiring or giving rise to such indemnity. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, IN NO EVENT SHALL LESSEE BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES IN TORT, CONTRACT OR OTHERWISE UNDER OR ON ACCOUNT OF THIS LEASE, EXCEPT THOSE PAYABLE TO THIRD PARTIES FOR WHICH LESSEE WOULD BE LIABLE UNDER THIS SECTION .
10.3 Matters Involving a Third Party . If any Third Party shall notify either Lessor or Lessee with respect to any action or claim by a Third Party (a Third-Party Claim ) that may give rise to a right to claim for indemnification against the other Party under Section 10.1 or Section 10.2 , then the Indemnified Party shall promptly notify the Indemnifying Party thereof in writing; provided, however, that failure to give timely notice shall not affect the right to indemnification to the extent such failure to give timely notice is not prejudicial to the Indemnifying Party.
10.4 Survival . Notwithstanding anything contained in this Lease to the contrary, the provisions of this Article X shall survive the expiration or earlier termination of this Lease.
10.5 Related Agreements . The Related Agreements may contain additional indemnity provisions. The indemnities contained in this Article X are in addition to, and not in lieu of, any such indemnity provisions contained in the Related Agreements.
ARTICLE XI
GENERAL PROVISIONS
11.1 Estoppel Certificates . Lessee and Lessor shall, at any time and from time to time upon not less than 20 days prior written request from the other party, execute, acknowledge and deliver to the other a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which Rent and other charges are paid, (b) acknowledging that there are not, to the executing partys knowledge, any uncured defaults on the part of the other party hereunder (or specifying such defaults, if any are claimed), and (c) making such other factual statements as the executing Party may reasonably agree to make. Any such statement may be conclusively relied upon by any prospective purchaser of the Leased Premises or the leasehold evidenced by this Lease or any lender with respect to the Leased Premises or the leasehold evidenced by this Lease. Nothing in this Section 11.1 shall be construed to waive the conditions elsewhere contained in this Lease applicable to assignment or subletting of the Leased Premises by Lessee.
11.2 Severability . If any provision of this Lease shall be finally determined to be unenforceable, illegal or unlawful, such provision shall, so long as the economic and legal substance of the transactions contemplated hereby is not affected in any materially adverse manner as to any Party, be deemed severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
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11.3 Time of Essence . Time is of the essence in the performance of all obligations falling due hereunder.
11.4 Captions . The headings to Articles, Sections and other subdivisions of this Lease are inserted for convenience of reference only and will not affect the meaning or interpretation of this Lease.
11.5 Entire Agreement . This Lease and the Related Agreements (including any exhibits hereto or thereto) constitute the entire agreement of the Parties relating to the matters contained herein and therein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein and therein.
11.6 Amendment or Modification . This Lease may be amended or modified from time to time only by the written agreement of all the Parties hereto; provided, that Lessee may not, without the prior approval of the Conflicts Committee (as defined in the MLP Partnership Agreement), agree to any amendment or modification of this Agreement that, in the reasonable judgment of MLP GP, will adversely affect the holders of Common Units (as defined in the MLP Partnership Agreement). Each such instrument shall be reduced to writing and shall be designated on its face an Amendment or an Addendum to this Lease.
11.7 Exhibits . All exhibits attached to this Lease are hereby made a part hereof and incorporated herein by this reference.
11.8 Notices . Any notice or other communication given under this Agreement shall be in writing and shall be (a) delivered personally, (b) sent by documented overnight delivery service, (c) sent by electronic mail transmission, or (d) sent by first class mail, postage prepaid (certified or registered mail, return receipt requested). Such notice shall be deemed to have been duly given on the date of the delivery. Notices or other communications shall be directed to the following addresses:
Notices to Lessor: | Westlake Vinyls, Inc. | |
c/o Westlake Chemical Corporation | ||
2801 Post Oak Boulevard, Suite 600 | ||
Houston, Texas 77056 | ||
Attention: __________________ | ||
E-mail: ____________________ | ||
Notices to Lessee: | Westlake Chemical OpCo LP | |
c/o Westlake Chemical Partners LP | ||
2801 Post Oak Boulevard, Suite 600 | ||
Houston, Texas 77056 | ||
Attention: __________________ | ||
E-mail: ____________________ |
Either Party may at any time change its address for service from time to time by giving notice to the other Party in accordance with this Section 11.8 .
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11.9 Waivers . No waiver or waivers of any breach or default or any breaches or defaults by either Party of any term, condition or liability of or performance by the other party of any duty or obligation hereunder shall be deemed or construed to be a waiver or waivers of subsequent breaches or defaults of any kind, character or description under any circumstance.
11.10 No Partnership . The relationship between Lessor and Lessee at all times shall remain solely that of landlord and tenant and shall not be deemed a partnership or joint venture.
11.11 No Third Party Beneficiaries . Subject to the provisions of Article X and Section 11.15 hereof, this Lease inures to the sole and exclusive benefit of Lessor and Lessee, their respective Affiliates, successors, legal representatives, sublessees and assigns, and confers no benefit on any third party.
11.12 Waiver of Landlords Lien . To the extent permitted by Law, Lessor hereby expressly waives any and all liens (constitutional, statutory, contractual or otherwise) upon Lessees personal property now or hereafter installed or placed in or on the Leased Premises, which otherwise might exist to secure payment of the sums herein provided to be paid by Lessee to Lessor.
11.13 Mutual Cooperation; Further Assurances . Upon request by either Party from time to time during the Term, each Party hereto agrees to execute and deliver all such other and additional instruments, notices and other documents and do all such other acts and things as may be reasonably necessary to carry out the purposes of this Lease and to more fully assure the Parties rights and interests provided for hereunder. Lessor and Lessee each agree to reasonably cooperate with the other on all matters relating to required Permits and regulatory compliance by either Lessee or Lessor in respect of the Leased Premises so as to ensure continued full operation of the Leased Premises by Lessee pursuant to the terms of this Lease.
11.14 No Recording . Unless otherwise mutually-agreed by the Parties, neither this Lease nor any memorandum of lease, short-form lease or other evidence of this Lease shall be filed in the real property records of the county in which the Leased Premises are located. In the event the Parties mutually elect to record this Lease or evidence of this Lease, Lessee shall execute and deliver to Lessor an instrument, in recordable form, evidencing the termination and release of this Lease and any memorandum of lease, short-form lease or other evidence of this Lease (the Lessee Release ), promptly after Lessors request therefor at any time after the expiration or earlier termination of this Lease. If Lessee fails to deliver the executed Lessee Release within ten days after Lessors request therefor, Lessor shall have the right to execute the Lessee Release on behalf of and in the name of Lessee, and Lessee hereby grants to Lessor an irrevocable power of attorney coupled with an interest for such purpose. Lessor shall have the right to record the Lessee Release at any time after the expiration or termination of this Lease. This Section 11.14 shall survive the expiration or termination of this Lease.
11.15 Binding Effect . Except as herein otherwise expressly provided, this Lease shall be binding upon and inure to the benefit of the Parties and their respective successors, sublessees and assigns. Nothing in this Section shall be construed to waive the conditions elsewhere contained in this Lease applicable to assignment or subletting of the Leased Premises by the Parties.
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11.16 Choice of Law . The provisions of this Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky, excluding any conflicts-of-law rule or principle that might require the application of laws of another jurisdiction.
11.17 Quiet Possession . Lessor covenants and warrants that Lessee, upon observing and performing all of the covenants, conditions and provisions on Lessees part to be observed and performed hereunder, may peaceably and quietly have, hold, occupy, use and enjoy, and, subject to the terms of this Lease, shall have the full, exclusive, and unrestricted use and enjoyment of, the Leased Premises during the Term for the purposes permitted herein.
11.18 Force Majeure . In the event of Lessor or Lessee being rendered unable, wholly or in part, by Force Majeure to carry out its obligations under this Lease, other than to make payments due hereunder and the obligations under Section 11.17 , it is agreed that on such Partys giving notice and full particulars of such Force Majeure to the other Party as soon as practicable after the occurrence of the cause relied on, then the obligations of the Parties, so far as they are affected by such Force Majeure, shall be suspended during the continuance of any inability so caused but for no longer period, and such cause shall, as far as possible, be remedied with all reasonable dispatch. It is understood and agreed that the settlement of strikes or lockouts shall be entirely within the discretion of the Party having the difficulty, and that the above requirements that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to the demands of the opposing party when such course is inadvisable in the discretion of the Party having the difficulty. Notwithstanding anything in this Lease to the contrary, inability of a Party to make payments when due, be profitable or secure funds, arrange bank loans or other financing, obtain credit or have adequate capacity or production (other than for reasons of Force Majeure) shall not be regarded as events of Force Majeure.
11.19 Survival . All obligations of Lessor and Lessee that shall have accrued under this Lease prior to the expiration or earlier termination hereof shall survive such expiration or termination to the extent the same remain unsatisfied as of the expiration or earlier termination of this Lease. Lessor and Lessee further expressly agree that all provisions of this Lease which contemplate performance after the expiration or earlier termination hereof shall survive such expiration or earlier termination of this Lease.
11.20 Brokerage Commissions . Each Party represents and warrants to the other that it has not dealt with any broker or agent in connection with this Lease. Each Party hereby indemnifies the other for all costs, attorneys fees, and other liabilities for commissions or other compensation claimed by any broker or agent claiming the same by, through, or under the indemnifying party.
11.21 Condition of the Leased Premises . LESSEE HEREBY ACCEPTS THE LEASED PREMISES AS IS, WHERE IS, AND WITH ALL FAULTS, AND LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, UNDER THIS LEASE AS TO THE PHYSICAL CONDITION OF THE LEASED PREMISES, INCLUDING THE PREMISES MERCHANTABILITY, HABITABILITY, CONDITION, FITNESS, OR SUITABILITY FOR ANY PARTICULAR USE OR PURPOSE.
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11.22 Relocation . If Lessor determines that Lessors use or operations of the Calvert City Complex require the relocation of any Lessee Assets or Additional Improvements, Lessee shall cause the applicable Lessee Assets or Additional Improvements to be relocated within the Calvert City Complex, but only so long as (a) the applicable Lessee Assets or Additional Improvements can be relocated within material diminution in the use or value thereof, and (b) during any such relocation, Lessees use and operation of the Lessee Assets and Additional Improvements, taken as a whole, is not materially diminished or otherwise materially and adversely affected. Any relocation of the Lessee Assets or Additional Improvements shall be undertaken by Lessee at Lessors sole cost and expense. Upon completion of any applicable relocation pursuant to this Section 11.22 , the Parties shall execute an amendment to this Lease reflecting the new location(s) of the Lessee Assets.
11.23 Dispute Resolution .
(a) Except as otherwise expressly set forth in Section 9.2 or 9.4 , the dispute resolution provisions set forth in this Section 11.23 shall be the final, binding and exclusive means to resolve all disputes, controversies or claims (each, a dispute ) arising under this Lease, and each Party irrevocably waives any right to any trial by jury with respect to any dispute arising under this Lease; provided, this Section 11.23 shall not limit either Partys recourse to courts of competent jurisdiction for injunctive or equitable relief that may be necessary to protect the rights and property of such Party or maintain the status quo before or during the pendency of the process set forth in this Section 11.23 .
(b) If a dispute arises, the following procedures shall be implemented:
(i) Any Party may at any time invoke the dispute resolution procedures set forth in this Section 11.23 as to any dispute by providing written notice of such action to the other Party (a Dispute Notice ). The Parties shall thereafter schedule a meeting between the Parties to be held in Houston, Texas on a mutually-acceptable date no later than ten business days after the applicable Dispute Notice is delivered. The meeting shall be attended by representatives of each Party having decision-making authority regarding the dispute as well as the dispute resolution process. The meeting shall also be attended by upper management level personnel of each of the Parties, which persons have not previously been directly engaged in asserting or responding to the dispute. Such persons shall attempt in a commercially reasonable manner to negotiate a resolution of the dispute, which negotiations may entail the involvement of and meetings attended by additional upper management level personnel senior to such persons. If such upper management level personnel have not negotiated a resolution to the dispute within 45 days the date on which the applicable Dispute Notice was delivered, then a meeting attended by the chief executive officer of each Party (or their ultimate parent entities) having full decision-making authority with respect to the applicable Party shall occur and such persons shall attempt in a commercially reasonable manner to negotiate a resolution of the dispute before these procedures may be deemed to have been exhausted. If such persons succeed in negotiating a resolution of the dispute, the Parties shall be directed (in as comprehensive detail as reasonably practicable) to take the actions necessary to carry out such resolution. Each Party shall have a commercially reasonable time in which to take the actions required of it, and such period shall automatically be extended if such Party has in good faith and diligently commenced and continued with its actions (a Cure Period ).
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(ii) Notwithstanding the existence of any dispute or the pendency of any procedures pursuant to this Section 11.23 , the Parties agree and undertake that all payments under this Lease, and all obligations under this Lease, that are not in dispute shall continue to be paid and performed.
(iii) If a dispute is not resolved pursuant to Section 11.23(b)(i) within 90 days after delivery of the Dispute Notice, or if, following the Cure Period, a Party believes in good faith that a dispute still exists, the representatives of the Parties shall engage in mediation (or such other technique of alternative dispute resolution as the Parties may then agree upon), and a specific timetable and completion date for its implementation shall also be agreed upon. If the completion date therefor shall occur without the Parties having resolved the dispute, then the Parties shall proceed under Section 11.23(b)(iv) below.
(iv) If, after satisfying the requirements above, the dispute is not resolved, then such dispute shall be resolved by any state or federal court sitting in Houston, Texas. Each Party acknowledges and agrees that any controversy that may arise under this Lease is likely to involve complicated and difficult issues, and therefore irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Lease. Each Party acknowledges and agrees that it understands and has considered the implications of such waiver, that it makes such waiver voluntarily and that it has been induced to enter into this Lease by, among other things, the mutual waivers in this Section 11.23 .
[Remainder of Page Intentionally Left Blank]
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The Parties hereto have executed this Lease to be effective as of the Effective Date.
LESSOR: | ||||
WESTLAKE VINYLS, INC., a Delaware corporation | ||||
By: |
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Name: |
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Title: |
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LESSEE: | ||||
WESTLAKE CHEMICAL OPCO LP, a Delaware limited partnership | ||||
By: | Westlake Chemical OpCo GP LLC, a Delaware limited liability company, its general partner | |||
By: |
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Name: |
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Title: |
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Signature Page to
Site Lease Agreement
(Calvert City)
EXHIBIT A
DESCRIPTION OF LEASED PREMISES
Ethylene Plant Tract
A certain tract of land as surveyed by Kyrun Jett Wood, P.L.S.#3445 and being generally located north side of Kentucky Highway 1523, Calvert City, Marshall County, Kentucky, more particularly described as follows:
Beginning at a point, said point being the 230.01 ft. west of the west railroad spur centerline and on the north edge of Second Street;
Thence N00º0000E a distance of 148.01 ft. to a point;
Thence N90º0000E a distance of 173.89 ft. to a point;
Thence N00º0000E a distance of 5.00 ft. to a point;
Thence N90º0000W a distance of 285.33 ft. to a point;
Thence N00º0000E a distance of 109.27 ft. to a point;
Thence N90º0000E a distance of 27.40 ft. to a point;
Thence N00º0000E a distance of 22.26 ft. to a point;
Thence N90º0000E a distance of 114.88 ft. to a point;
Thence N00º0000E a distance of 124.84 ft. to a point;
Thence N90º0000W a distance of 114.57 ft. to a point;
Thence N00º0000E a distance of 25.25 ft. to a point;
Thence N90º0000W a distance of 40.61 ft. to a point;
Thence N00º0000E a distance of 398.20 ft. to a point;
Thence N90º0000W a distance of 449.71 ft. to a point;
Thence N00º0413W a distance of 215.00 ft. to a point;
Thence N89º2221W a distance of 28.77 ft. to a point;
Thence N00º0145E a distance of 287.64 ft. to a point;
Thence N00º0627E a distance of 334.62 ft. to a point;
A-1
Thence N42º4255W a distance of 19.07 ft. to a point;
Thence S54º2657W a distance of 24.27 ft. to a point;
Thence N34º5957W a distance of 129.05 ft. to a point;
Thence N55º3555E a distance of 56.90 ft. to a point;
Thence N35º1526W a distance of 25.35 ft. to a point;
Thence S55º3555W a distance of 119.44 ft. to a point;
Thence S35º1526E a distance of 25.35 ft. to a point;
Thence N55º3555E a distance of 56.55 ft. to a point;
Thence S34º5957E a distance of 134.17 ft. to a point;
Thence N54º2657E a distance of 25.91 ft. to a point;
Thence S42º4255E a distance of 12.70 ft. to a point;
Thence S00º0627W a distance of 332.66 ft. to a point;
Thence S00º0145W a distance of 292.60 ft. to a point;
Thence S89º2221E a distance of 28.78 ft. to a point;
Thence S00º0413E a distance of 310.66 ft. to a point;
Thence S58º2616W a distance of 284.46 ft. to a point;
Thence S00º0233E a distance of 126.02 ft. to a point;
Thence N89º5755E a distance of 114.82 ft. to a point;
Thence S00º0059W a distance of 358.18 ft. to a point;
Thence N90º0000E a distance of 706.43 ft. to the Point of Beginning .
The above described Tract contains 12.576 acres.
Being a part of the Westlake CA & O Corporation, North Tract property (recorded in Deed Book 297, Page 96).
[LEGAL DESCRIPTION CONTINUES ON THE FOLLOWING PAGE.]
A-2
Ethylene Control Room Tract
A certain tract of land as surveyed by Kyrun Jett Wood, P.L.S.#3445 and being generally located north side of Kentucky Highway 1523, Calvert City, Marshall County, Kentucky, more particularly described as follows:
Beginning at a point, said point being the northwest corner of the Ethylene Control Room building;
Thence with the west edge of the above said building S00º0500W a distance of 177.90 ft. to a point;
Thence with the south edge of the above said building S89º5218E a distance of 55.00 ft. to a point;
Thence with the east edge of the above said building N00º0051W a distance of 178.04 ft. to a point;
Thence with north edge of the above S89º5918W a distance of 54.69 ft. to the Point of Beginning .
The above described Tract contains 0.224 acres.
Being a part of the Westlake CA & O Corporation, North Tract property (recorded in Deed Book 297, Page 96).
A-3
EXHIBIT B
DEPICTION OF LEASED PREMISES
B-1
Exhibit 10.6
FORM OF
SITE LEASE AGREEMENT
(LAKE CHARLES)
BETWEEN
WESTLAKE PETROCHEMICALS LLC,
AS LESSOR,
AND
WESTLAKE CHEMICAL OPCO LP,
AS LESSEE
TABLE OF CONTENTS
Page | ||||||
ARTICLE I DEFINITIONS AND CONSTRUCTION |
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1.1 |
Certain Defined Terms |
1 | ||||
1.2 |
References |
6 | ||||
1.3 |
Headings |
6 | ||||
ARTICLE II DEMISE OF PREMISES AND TERM |
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2.1 |
Demise of Leased Premises and Term |
6 | ||||
2.2 |
Shared Access Facilities |
6 | ||||
2.3 |
Rent |
8 | ||||
2.4 |
Net Lease |
8 | ||||
ARTICLE III CONDUCT OF BUSINESS |
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3.1 |
Use of Leased Premises |
8 | ||||
3.2 |
Waste |
8 | ||||
3.3 |
Governmental Regulations |
8 | ||||
3.4 |
Utilities |
9 | ||||
3.5 |
Site-Wide Permits |
9 | ||||
ARTICLE IV ALTERATIONS, ADDITIONS AND IMPROVEMENTS |
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4.1 |
Additional Improvements |
9 | ||||
4.2 |
No Liens |
9 | ||||
4.3 |
Removal of Improvements |
9 | ||||
ARTICLE V MAINTENANCE OF PREMISES |
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5.1 |
Maintenance by Lessee |
10 | ||||
5.2 |
Operation of the Leased Premises |
10 | ||||
5.3 |
Surrender of the Leased Premises |
10 | ||||
5.4 |
Release of Hazardous Substances |
10 | ||||
ARTICLE VI TAXES, ASSESSMENTS |
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6.1 |
Lessees Obligation to Pay |
11 | ||||
6.2 |
Manner of Payment |
11 | ||||
ARTICLE VII EMINENT DOMAIN; CASUALTY; INSURANCE |
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7.1 |
Condemnation of Leased Premises |
12 | ||||
7.2 |
Condemnation Awards |
12 | ||||
7.3 |
Casualty |
12 | ||||
7.4 |
Insurance |
13 |
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ARTICLE VIII ASSIGNMENT AND SUBLETTING |
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8.1 |
Assignment and Subletting |
14 | ||||
ARTICLE IX DEFAULTS; REMEDIES; TERMINATION |
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9.1 |
Default by Lessee |
14 | ||||
9.2 |
Lessors Remedies |
15 | ||||
9.3 |
Default by Lessor |
15 | ||||
9.4 |
Lessees Remedies |
15 | ||||
ARTICLE X INDEMNITY |
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10.1 |
Indemnification by Lessor |
16 | ||||
10.2 |
Indemnification by Lessee |
16 | ||||
10.3 |
Matters Involving a Third Party |
17 | ||||
10.4 |
Survival |
17 | ||||
10.5 |
Related Agreements |
17 | ||||
ARTICLE X IGENERAL PROVISIONS |
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11.1 |
Estoppel Certificates |
17 | ||||
11.2 |
Severability |
17 | ||||
11.3 |
Time of Essence |
18 | ||||
11.4 |
Captions |
18 | ||||
11.5 |
Entire Agreement |
18 | ||||
11.6 |
Amendment or Modification |
18 | ||||
11.7 |
Exhibits |
18 | ||||
11.8 |
Notices |
18 | ||||
11.9 |
Waivers |
19 | ||||
11.10 |
No Partnership |
19 | ||||
11.11 |
No Third Party Beneficiaries |
19 | ||||
11.12 |
Waiver of Landlords Lien |
19 | ||||
11.13 |
Mutual Cooperation; Further Assurances |
19 | ||||
11.14 |
No Recording |
19 | ||||
11.15 |
Binding Effect |
19 | ||||
11.16 |
Choice of Law |
20 | ||||
11.17 |
Quiet Possession |
20 | ||||
11.18 |
Force Majeure |
20 | ||||
11.19 |
Survival |
20 | ||||
11.20 |
Brokerage Commissions |
20 | ||||
11.21 |
Condition of the Leased Premises |
20 | ||||
11.22 |
Relocation |
21 | ||||
11.23 |
Dispute Resolution |
21 |
ii
EXHIBITS
Exhibit A Description of Leased Premises
Exhibit B Depiction of Leased Premises
iii
SITE LEASE AGREEMENT
(LAKE CHARLES)
THIS SITE LEASE AGREEMENT (LAKE CHARLES) (this Lease ) is made and entered into to be effective as of , 2014 (the Effective Date ), by and between WESTLAKE PETROCHEMICALS LLC , a Delaware limited liability company ( Lessor ), and WESTLAKE CHEMICAL OPCO LP , a Delaware limited partnership ( Lessee ).
RECITALS :
A. Pursuant to that certain [ Conveyance Instrument ] dated as of the Effective Date (the Lessor Conveyance ), Lessor contributed and conveyed certain of the Lessee Assets to Lessee.
B. Pursuant to that certain [ Conveyance Instrument ] dated as of the Effective Date (the WPT Conveyance ), WPT LLC, a Delaware limited liability company and an Affiliate of Lessor, contributed and conveyed certain of the Lessee Assets to Lessee.
C. The Lessee Assets are situated upon the Leased Premises, which Leased Premises are located within, and are a part of, Lessors Lake Charles Complex.
D. Lessor and certain Affiliates of Lessor own, directly and/or indirectly, ownership interests in Lessee; additionally, Lessor and/or certain Affiliates of Lessor are parties to the Related Agreements. As a result of the foregoing, Lessor anticipates receiving substantial direct and/or indirect economic and other benefits from Lessees operations at, on and from the Leased Premises.
E. Lessor and Lessee now desire to enter into this Lease to set forth the terms and conditions under which Lessee will be permitted to lease the Leased Premises and access and use certain other portions of the Lake Charles Complex.
AGREEMENTS :
NOW, THEREFORE, in consideration of the Related Agreements and the mutual agreements set forth in this Lease, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee covenant and agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 Certain Defined Terms . Unless the context otherwise requires, the following terms shall have the respective meanings set forth in this Section 1.1 :
Additional Improvements shall have the meaning ascribed to such term in Section 4.1 .
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Affiliates means, with respect to any Person, any other Person, that at the time such consideration is being made, directly or indirectly Controls, is Controlled by or under common Control with, such Person; provided, however, that, notwithstanding the foregoing, for purposes of this Lease, (a) neither MLP GP nor any direct or indirect subsidiary of MLP GP (including Lessee) shall be considered Affiliates of Lessor, and (b) neither Westlake Chemical Corporation nor any direct or indirect subsidiary of Westlake Chemical Corporation (including Lessor), other than MLP GP and its direct and indirect subsidiaries, shall be considered Affiliates of Lessee. As used in the aforesaid context, Control (and derivations thereof) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of another, whether through the ownership of voting securities, by contract or otherwise.
Bankruptcy Event means with respect to a Party or entity, such Party or entity (a) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (b) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; (c) makes a general assignment, arrangement or composition with or for the benefit of its creditors; (d) institutes a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights; (e) has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors rights, or a petition is presented for its winding up or liquidation, and any such proceeding or petition is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (f) has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); (g) seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; (h) has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced, or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter; (i) causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (a) to (i) (inclusive); or (j) takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
Casualty Event shall have the meaning ascribed to such term in Section 7.3(a) .
Casualty Purchase Option shall have the meaning ascribed to such term in Section 7.3(c) .
Claims shall have the meaning ascribed to such term in Section 10.1 .
Conveyance means, collectively, the Lessor Conveyance and the WPT Conveyance.
Cure Period shall have the meaning ascribed to such term in Section 11.23(b)(i) .
Default Rate shall have the meaning ascribed to such term in Section 9.2 .
dispute shall have the meaning ascribed to such term in Section 11.23(a) .
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Dispute Notice shall have the meaning ascribed to such term in Section 11.23(b)(i) .
Effective Date shall have the meaning ascribed to such term in the preface to this Lease.
Environmental Law or Environmental Laws means all federal, state and local laws, statutes, rules, regulations, orders and ordinances now or hereafter in effect, relating to protection of the environment including, without limitation, the federal Comprehensive Environmental Response, Compensation, and Liability Act, the Superfund Amendments Reauthorization Act, the Resource Conservation and Recovery Act, the Clean Air Act, the Federal Water Pollution Control Act, the Toxic Substances Control Act, the Oil Pollution Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, and other environmental conservation and protection laws, each as amended from time to time.
Ethylene Sales Agreement means the Ethylene Sales Agreement between Lessor and certain Affiliates of Lessor and Lessee, dated on or about the Effective Date, as it may be amended, restated or otherwise modified.
Fair Market Value shall have the meaning ascribed to such term in Section 7.3(d) .
Feedstock Supply Agreement means the Feedstock Supply Agreement between Lessor and Lessee, dated on or about the Effective Date, as it may be amended, restated or otherwise modified.
Force Majeure means acts of God, strikes, lockouts or other industrial disturbances, acts of the public enemy, wars, blockades, insurrections, riots, storms, floods, washouts, arrests, the order of any Governmental Authority having jurisdiction while the same is in force and effect, civil disturbances, explosions, breakage, accident to machinery, storage tanks or lines of pipe, inability to obtain or unavoidable delay in obtaining material or equipment, and any other causes whether of the kind herein enumerated or otherwise not reasonably within the control of the Party claiming suspension and which by the exercise of due diligence such Party is unable to prevent or overcome.
Governmental Authority means any federal, state, local or foreign government or any provincial, departmental or other political subdivision thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory, administrative or other governmental functions or any court, department, commission, board, bureau, agency, instrumentality or administrative body of any of the foregoing.
Hazardous Substances means (1) any substance that is designated, defined, or classified as a hazardous waste, hazardous material, pollutant, contaminant, or toxic or hazardous substance, or that is otherwise regulated under any Environmental Law, including, without limitation, any hazardous substance as defined under the Comprehensive Environmental Response, Compensation, and Liability Act, and (2) petroleum, crude oil, gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel, and other refined petroleum hydrocarbons.
Indemnified Party means the Party seeking indemnification under Section 10.1 or Section 10.2 .
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Indemnifying Party means the Party required to provide indemnification under Section 10.1 or Section 10.2 .
Lake Charles Complex shall have the meaning ascribed to such term in Section 2.2(d) . Notwithstanding anything in this Lease to the contrary, the Lessee Assets and any Additional Improvements are expressly excluded from the definition of, and do not constitute a part of, the Lake Charles Complex.
Laws means any applicable statute, law, regulation, ordinance, rule, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, agreement, requirement, or other governmental restriction or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued under any of the foregoing by, or any determination of, any Governmental Authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect and in each case as amended (including, without limitation, all of the terms and provisions of the common law of such Governmental Authority), as interpreted and enforced at the time in question .
Lease means this Site Lease Agreement.
Leased Premises shall mean the tracts or parcels of land within the Lake Charles Complex upon which the Lessee Assets are situated, as more particularly described in Exhibit A attached hereto (and identified as Petro 1 Unit, Petro 1.1 Unit, Petro 2 Unit and Co-Products in the depictions attached hereto, for reference purposes only, as Exhibit B ). Notwithstanding anything in this Lease to the contrary, the Lessee Assets and any Additional Improvements are expressly excluded from the definition of, and do not constitute a part of, the Leased Premises.
Lessee shall have the meaning ascribed to such term in the preface to this Lease.
Lessee Assets means the units, facilities, equipment, properties and other assets (whether real, personal or mixed) contributed and conveyed to Lessee pursuant to the Conveyance.
Lessee Indemnified Parties shall have the meaning ascribed to such term in Section 10.1 .
Lessee Release shall have the meaning ascribed to such term in Section 11.14 .
Lessees Parties shall have the meaning ascribed to such term in Section 2.2(a) .
Lessor shall have the meaning ascribed to such term in the preface to this Lease.
Lessor Conveyance shall have the meaning ascribed to such term in the Recitals.
Lessor Indemnified Parties shall have the meaning ascribed to such term in Section 10.2 .
Lessors Parties shall have the meaning ascribed to such term in Section 2.2(b) .
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MLP means Westlake Chemical Partners LP, a Delaware limited partnership.
MLP GP means Westlake Chemical Partners GP LLC, a Delaware limited liability company, the general partner of the MLP.
MLP Partnership Agreement means the First Amended and Restated Agreement of Limited Partnership of Westlake Chemical Partners LP dated as of , 2014, as it may be amended, restated or otherwise modified.
Omnibus Agreement means the Omnibus Agreement among Lessor and certain Affiliates of Lessor and Lessee and certain Affiliates of Lessee, dated on or about the Effective Date, as it may be amended, restated or otherwise modified.
Option Closing Date shall have the meaning ascribed to such term in Section 7.3(d) .
Option Notice shall have the meaning ascribed to such term in Section 7.3(d) .
Parties means, collectively, Lessor and Lessee, and Party shall mean either Lessor or Lessee individually.
Permits means all permits, licenses, franchises, authorities, consents and approvals required under applicable Laws, including Environmental Laws, in connection with the use and operation of the Lessee Assets and/or the Additional Improvements.
Person means any individual or entity, including any partnership, corporation, association, joint stock company, trust, joint venture, limited liability company, unincorporated organization or Governmental Authority (or any department, agency or political subdivision thereof).
Purchase Price shall have the meaning ascribed to such term in Section 7.3(d) .
Related Agreements means, collectively, the Omnibus Agreement, the Ethylene Sales Agreement, the Feedstock Supply Agreement, the Services Agreement, and any other agreement executed by the Parties and/or their respective Affiliates relating to Lessees ownership, use or operation of the Lessee Assets or the conduct of Lessees business on, at or within the Lake Charles Complex.
Rent shall have the meaning ascribed to such term in Section 2.3 .
Services Agreement means the Services and Secondment Agreement between Lessor and certain Affiliates of Lessor and Lessee, dated on or about the Effective Date, as it may be amended, restated or otherwise modified.
Shared Access Facilities shall have the meaning ascribed to such term in Section 2.2(a) .
Taxes shall have the meaning ascribed to such term in Section 6.1 .
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Term shall have the meaning ascribed to such term in Section 2.1 .
Third Party shall mean a Person which is not (a) Lessor or an Affiliate of Lessor, (b) Lessee or an Affiliate of Lessee or (c) a Person that, after the signing of this Lease becomes a successor entity of Lessor, Lessee or any of their respective Affiliates. An employee of Lessor or Lessee shall not be deemed an Affiliate.
Third-Party Claim shall have the meaning ascribed to such term in Section 10.3 .
WPT Conveyance shall have the meaning ascribed to such term in the Recitals.
1.2 References . As used in this Lease, unless a clear contrary intention appears: (a) the singular includes the plural and vice versa; (b) reference to any Person includes such Persons successors and assigns but, in the case of a Party, only if such successors and assigns are permitted by this Lease, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) reference to any gender includes each other gender; (d) reference to any agreement (including this Lease), document or instrument means such agreement, document, or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms of this Lease; (e) reference to any Section means such Section of this Lease, and references in any Section or definition to any clause means such clause of such Section or definition; (f) hereunder, hereof, hereto and words of similar import will be deemed references to this Lease as a whole and not to any particular Section or other provision hereof or thereof; (g) including (and with correlative meaning include) means including without limiting the generality of any description preceding such term; and (h) relative to the determination of any period of time, from means from and including, to means to but excluding and through means through and including.
1.3 Headings . The headings of the Sections of this Lease and the Exhibits hereto are included for convenience only and shall not be deemed to constitute part of this Lease or to affect the construction or interpretation hereof or thereof.
ARTICLE II
DEMISE OF PREMISES AND TERM
2.1 Demise of Leased Premises and Term . For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and subject to the terms and conditions hereof, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Leased Premises for a 50-year term commencing on the Effective Date and expiring on , 2064, subject to renewal or early termination in accordance with the express provisions of this Lease (the Term ). Upon expiration of the Term, the Parties may (but shall have no obligation to) renew the Term for such period or periods, and on such terms, as are mutually-acceptable to the Parties.
2.2 Shared Access Facilities .
(a) Lessor hereby grants to Lessee and its Affiliates, agents, employees and contractors (collectively, Lessees Parties ), free of charge, the non-exclusive right to access and use such portions of the Lake Charles Complex as may be reasonably necessary for access to
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the Leased Premises and/or use and operation of the Lessee Assets and any Additional Improvements. Any such access, use and operation by Lessees Parties shall not unreasonably interfere with Lessors operations of the Lake Charles Complex and shall comply with Lessors rules, regulations and procedures governing safety and security for the Lake Charles Complex. The portions of the Lake Charles Complex that are subject to the access and use rights provided under this Section 2.2 are referred to herein as the Shared Access Facilities . Lessees Parties non-exclusive rights to use and access the Shared Access Facilities shall automatically expire and terminate concurrently with the expiration of the Term or earlier termination of this Lease. Notwithstanding anything in this Lease to the contrary, but subject to Lessors covenant and warranty set forth in Section 11.17 , any access or use by Lessees Parties of any portion of the Lake Charles Complex (including, if applicable, any Shared Access Facilities) that is not owned by Lessor shall be conditioned upon such access or use being permitted by, and shall be subject to the terms and conditions of, the lease or other agreement pursuant to which Lessors rights with respect to such portion of the Lake Charles Complex derives.
(b) Notwithstanding anything in this Lease to the contrary, Lessor hereby retains for itself and its Affiliates, agents, employees and contractors (collectively, Lessors Parties ), the right to access, use and operate the Lake Charles Complex and all portions thereof, including without limitation the Shared Access Facilities. Lessor further hereby retains for itself and any of the other Lessors Parties, the right of access to the Leased Premises, the Lessee Assets and any Additional Improvements (i) to determine whether the conditions and covenants contained in this Lease are being kept and performed, (ii) to comply with Environmental Laws, (iii) to inspect, maintain, repair, improve and operate any assets of Lessor located on the Leased Premises (including, if applicable, any Shared Access Facilities), (iv) to install or construct any structures or equipment necessary for the maintenance, operation or improvement of the Lake Charles Complex or any portion thereof, and (v) to address any emergency situation affecting the Lake Charles Complex in each instance so long as such access by Lessors Parties does not unreasonably interfere with Lessees operations of the Lessee Assets or any Additional Improvements and complies with Lessees rules, regulations and procedures governing safety and security for the Lessee Assets.
(c) During the Term, Lessee shall reimburse Lessor for Lessees reasonable share (allocated on an equitable basis mutually acceptable to Lessor and Lessee) of the costs and expenses incurred by Lessor in maintaining and operating the Shared Access Facilities. Such reimbursement payments, plus an administrative fee equal to five percent (5%) of the amount being reimbursed, shall be made by Lessee within 30 days after Lessors written demand therefor.
(d) The Parties acknowledge that the composition of the Lake Charles Complex may change from time to time as Lessor acquires or disposes of properties or other assets. As used in this Lease, the term Lake Charles Complex means the land, including the Leased Premises, and the equipment, facilities, properties and other assets comprising Lessors petrochemical production facilities located in Lake Charles, Louisiana, as the same may be constituted from time to time. Any land, equipment, facility, property or other asset that is acquired by Lessor for use as a part of, or exclusively in connection with, the Lake Charles Complex after the Effective Date shall, automatically upon such acquisition, be added to and become a part of the Lake Charles Complex; subject to Lessors covenant and warranty set forth
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in Section 11.17 , any land, equipment, facility, property or other asset that previously constituted a portion of the Lake Charles Complex shall, automatically upon disposition thereof by Lessor, be removed from, and shall no longer constitute a portion of, the Lake Charles Complex.
2.3 Rent . Lessee agrees to pay to Lessor, in advance, annual rental in the amount of One and 00/100 Dollars ($1.00) ( Rent ) on or before each anniversary of the Effective Date during the Term. Lessees initial payment of Rent shall be paid concurrently with Lessees execution and delivery of this Lease. All Rent shall be payable in lawful money of the United States of America at Lessors address set forth in Section 11.8 . Unless otherwise expressly set forth in this Lease, Rent shall be paid without any claim on the part of Lessee for diminution, setoff or abatement, and nothing shall suspend, abate or reduce any Rent to be paid hereunder except as otherwise expressly set forth herein.
2.4 Net Lease . Except as otherwise expressly provided in this Lease or in any Related Agreements, this is a net lease and Lessor shall not at any time be required to pay any costs or expenses associated with the ownership, operation, use, maintenance, repair, alteration or improvement of the Leased Premises, the Lessee Assets or the Additional Improvements. Without limiting the generality of the foregoing, except as otherwise expressly provided in this Lease or in any Related Agreements, Lessor shall not be required to provide, maintain or incur costs or expenses with respect to taxes, insurance or utilities related to the Leased Premises, the Lessee Assets or the Additional Improvements.
ARTICLE III
CONDUCT OF BUSINESS
3.1 Use of Leased Premises . Lessee shall have the right to use the Leased Premises for the purpose of owning, operating, maintaining, repairing, replacing and improving the Lessee Assets and the Additional Improvements, and for any other lawful purpose associated with Lessees ownership and operation of the Lessee Assets and the Additional Improvements.
3.2 Waste . Lessee shall not commit, or suffer to be committed, any physical waste to the Leased Premises, ordinary wear and tear, casualty and condemnation excepted.
3.3 Governmental Regulations . Subject to any obligations of Lessor and/or its Affiliates under the Related Agreements, Lessee shall, at Lessees sole cost and expense, cause the Leased Premises, the Lessee Assets and the Additional Improvements to comply all applicable Laws (including Environmental Laws). Lessee shall promptly notify Lessor of Lessees receipt of any notice of material non-compliance relating to the Leased Premises, the Lessee Assets or the Additional Improvements. If Lessor reasonably believes at any time that Lessee is not materially complying with all applicable Laws with respect to the Leased Premises, the Lessee Assets and the Additional Improvements, Lessor may provide written notice to Lessee of such non-compliance and, if Lessee thereafter fails to take appropriate action to remedy or correct the applicable non-compliance within 30 days after receipt of such written notice, Lessor may, without further notice to Lessee, take such actions for Lessees account. Within 30 days following the date Lessor delivers to Lessee evidence of payment for any actions taken by Lessor in accordance with this Section 3.3 , Lessee shall reimburse Lessor all amounts paid by Lessor on Lessees behalf.
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3.4 Utilities . Unless otherwise set forth in the Services Agreement or any other Related Agreements, Lessee shall be responsible, at its sole cost and expense, for the provision of all utilities (electricity, natural gas, water, steam, etc.) necessary for Lessees use of the Leased Premises, the Lessee Assets and any Additional Improvements.
3.5 Site-Wide Permits . Lessor and Lessee shall use commercially reasonable efforts to cause any applicable Governmental Authorities to allow Lessee to use and operate the Lessee Assets and the Additional Improvements under any existing Permits applicable to the Lake Charles Complex as a whole, or other Permits held directly by Lessor, and Lessor agrees, to the extent allowed by such applicable Governmental Authorities and to the extent permitted by applicable Laws, to allow the Lessee Assets and the Additional Improvements to continue to be covered by any such existing Permits. To the extent applicable Governmental Authorities or applicable Laws will not or do not allow Lessee to use and operate the Lessee Assets and/or the Additional Improvements under any particular existing Permit, Lessee shall be responsible for securing a separate Permit to be held directly by Lessee with respect to the Lessee Assets and the Additional Improvements. Lessor will reasonably cooperate with Lessee, at Lessees cost, in connection with Lessees efforts to secure such separate Permit.
ARTICLE IV
ALTERATIONS, ADDITIONS AND IMPROVEMENTS
4.1 Additional Improvements . Subject to the provisions of this Article IV , Lessee may make any alterations, additions, improvements or other changes to the Leased Premises and the Lessee Assets as may be necessary or useful in connection with the operation of its business (collectively, the Additional Improvements ). If such Additional Improvements require alterations, additions or improvements to the Leased Premises or any of the Shared Access Facilities, Lessee shall notify Lessor in writing in advance and the parties shall negotiate in good faith to provide for reimbursement of any increase in cost to Lessor that results from any such alterations, additions or improvements. Any Additional Improvements or other alterations, additions, improvements or changes by Lessee to the Leased Premises, Lessee Assets, Additional Improvements or Shared Access Facilities shall be made in a good and workmanlike manner and in accordance with all applicable Laws.
4.2 No Liens . Lessee shall not have the right or power to create or permit any lien of any kind or character to attach to or be binding against the Leased Premises by reason of repair or construction or other work. In the event any such lien is filed against the Leased Premises, Lessee shall cause such lien to be discharged or bonded within thirty (30) days of the date of filing thereof.
4.3 Removal of Improvements . The Lessee Assets and all Additional Improvements shall be, and at all times during the Term shall remain, the property of Lessee. Within one year after the expiration or termination of this Lease, Lessee may (but shall not be obligated to) remove any or all Lessee Assets and/or Additional Improvements from the Leased Premises, at Lessees sole cost and expense; provided that (a) Lessee shall only be permitted to remove any of the Lessee Assets or Additional Improvements if such removal can be undertaken without unreasonable damage or harm to the Leased Premises or the remainder of the Lake Charles Complex and without material interruption to Lessors operations at the Lake Charles Complex,
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(b) Lessee shall repair and restore any damage to the Leased Premises or the remainder of the Lake Charles Complex caused by any such removal, and (c) Lessees removal rights under this Section 4.3 shall not arise if Lessor elects to exercise the Casualty Purchase Option pursuant to Section 7.3(c) . Any Lessee Assets, Additional Improvements, or other property of Lessee that are not timely removed from the Leased Premises in accordance with this Section 4.3 shall be deemed to have been surrendered to, and shall thereafter be the property of, Lessor.
ARTICLE V
MAINTENANCE OF PREMISES
5.1 Maintenance . Except as otherwise expressly provided in this Article V or otherwise in this Lease, and subject to any obligations of Lessor or its Affiliates under any Related Agreements, Lessee shall be responsible, at its sole cost and expense, for the maintenance, repair, replacement, and alteration of the Leased Premises, the Lessee Assets and the Additional Improvements, and for the removal and disposal of all materials, debris and waste generated thereby or therefrom. All such maintenance, repairs, replacements and alterations by Lessee shall be made in a good and workmanlike manner, and in accordance with applicable Laws. Except as otherwise expressly provided in this Lease, and subject to any obligations of Lessee or its Affiliates under any Related Agreements, Lessor shall be responsible, at its sole cost and expense, for the maintenance, repair, replacement, and alteration of the Shared Access Facilities, and for the removal and disposal of all materials, debris and waste generated thereby or therefrom. All such maintenance, repairs, replacements and alterations by Lessor shall be made in a good and workmanlike manner, and in accordance with applicable Laws.
5.2 Operation of the Leased Premises . Subject to the obligations of Lessor or its Affiliates under the Related Agreements, Lessee covenants and agrees to operate the Lessee Assets and Additional Improvements in accordance with normal and customary practices in the industry and in accordance with all applicable Laws.
5.3 Surrender of the Leased Premises . Subject to Lessees rights to remove the Lessee Assets and the Additional Improvements pursuant to Section 4.3 above, upon expiration or earlier termination of this Lease, Lessee shall surrender the Leased Premises in substantially the same condition as it was delivered to Lessee on the Effective Date, ordinary wear and tear excepted.
5.4 Release of Hazardous Substances . Lessee shall give prompt notice to Lessor of any release of Hazardous Substances on, at or from the Leased Premises that occur during the Term. Lessee shall promptly take all necessary or required steps to contain or remediate (or both) any such release and provide any notifications required by applicable Laws (including Environmental Laws). If Lessor reasonably believes at any time that Lessee is failing to contain or remediate, in compliance with all applicable Laws (including Environmental Laws), any release arising from Lessees operations on, at or from the Leased Premises, Lessor may provide written notice to Lessee of such non-compliance and, if Lessee thereafter fails to take appropriate action to remedy or correct such non-compliance within 30 days after receipt of such written notice, Lessor may, without further notice to Lessee, take such actions for Lessees account. Within 30 days following the date Lessor delivers to Lessee evidence of payment for any actions taken by Lessor in accordance with this Section 5.4 , Lessee shall reimburse Lessor all amounts paid by Lessor on Lessees behalf.
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ARTICLE VI
TAXES, ASSESSMENTS
6.1 Lessees Obligation to Pay . Lessee shall pay during the Term, all federal, state and local real and personal property ad valorem taxes, assessments, and other governmental charges, general and special, ordinary and extraordinary, including assessments for public improvements or benefits assessed against the Leased Premises, or improvements situated thereon, including the Lessee Assets and all Additional Improvements, including any federal, state or local income, gross receipts, withholding, franchise, excise, sales, use, value added, recording, transfer or stamp tax, levy, duty, charge or withholding of any kind imposed or assessed by any federal, state or local government, agency or authority, together with any addition to tax, penalty, fine or interest thereon, other than state or U.S. federal income tax imposed upon the taxable income of Lessor and any franchise taxes imposed upon Lessor (such taxes and assessments being hereinafter called Taxes ). In the event that Lessee fails to pay its share of such Taxes in accordance with the provisions of this Section 6.1 prior to the time the same become delinquent, Lessor may pay the same and Lessee shall reimburse Lessor all amounts paid by Lessor on Lessees behalf within 30 days following the date Lessor delivers to Lessee evidence of such payment.
6.2 Manner of Payment . Lessee shall pay directly to the applicable taxing authority, prior to delinquency, all Taxes that are separately assessed against the Leased Premises, the Lessee Assets and the Additional Improvements, and, if requested by Lessor, shall promptly thereafter provide Lessor with evidence of such payment. Lessor shall be responsible for the payment of all Taxes that are jointly assessed against the Lake Charles Complex and the Leased Premises, the Lessee Assets and any Additional Improvements, and Lessee shall reimburse Lessor for Lessees reasonable share (allocated on an equitable basis mutually acceptable to Lessor and Lessee) of the costs and expenses incurred by Lessor in paying such Taxes. Such reimbursement payments shall be made by Lessee within 30 days after Lessors delivery to Lessee of the applicable tax bill or bills and a calculation of Lessees share of the tax reimbursement payments. Lessee may contest, at Lessees sole cost and expense, by appropriate proceedings diligently conducted in good faith in accordance with applicable Laws, the validity or amount of any Taxes or the valuation of the Leased Premises and/or the Lessee Assets and the Additional Improvements, but only to the extent the foregoing are separately assessed, and Lessor shall reasonably cooperate with Lessee, at Lessees cost, in any such contest. Additionally, Lessee shall have the right to request that Lessor contest any Taxes that are jointly assessed against the Lake Charles Complex and the Leased Premises, the Lessee Assets and any Additional Improvements, and, if Lessor agrees in its reasonable discretion that such contest is necessary or desirable, Lessor shall contest the validity or amount of such Taxes or the valuation of the Lake Charles Complex; the cost of any such contest by Lessor shall be allocated between Lessor and Lessee on a mutually acceptable, equitable basis. Taxes for the first and last years of the Term shall be prorated between the Parties based on the portions of such years that are coincident with the applicable tax years and for which each applicable Party is responsible.
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ARTICLE VII
EMINENT DOMAIN; CASUALTY; INSURANCE
7.1 Condemnation of Leased Premises . If the whole of the Leased Premises are taken or condemned under power of eminent domain, then this Lease shall automatically terminate as of the effective date of such taking or condemnation. If a portion (but less than all) of the Leased Premises are taken or condemned under power of eminent domain, and if, in the reasonable opinion of Lessee, such taking or condemnation materially and adversely affects Lessees use and operation of the Lessee Assets, then Lessee shall have the right, within 60 days after the effective date of such taking or condemnation, to terminate this Lease by written notice to Lessor.
7.2 Condemnation Awards . Lessor shall be entitled to any award and all damages payable as a result of any condemnation or taking of the fee title of the Leased Premises. Lessee shall have the right to claim and recover from the condemning authority, but not from Lessor, such compensation as may be separately awarded or recoverable by Lessee with respect to Lessees leasehold interests in the Leased Premises or otherwise on account of any damage to the Lessee Assets, the Additional Improvements and/or Lessees business.
7.3 Casualty .
(a) If the Lessee Assets and the Additional Improvements are destroyed or damaged (each, a Casualty Event ), and if, in the reasonable opinion of Lessee, such Casualty Event materially and adversely affects Lessees use and operation of the Lessee Assets, then Lessee shall have the right, within 180 days after the occurrence of such Casualty Event, to terminate this Lease by written notice to Lessor. In the event this Lease is terminated pursuant to this Section 7.3, (i) all charges paid or owing hereunder shall be prorated as of the effective date of such termination, (ii) Lessee shall be entitled to any insurance proceeds applicable to the Lessee Assets and the Additional Improvements, and (iii) Lessee shall, in good faith and with due diligence, remove all Lessee Assets and Additional Improvements from the Leased Premises, and repair and restore any damage to the Leased Premises or the remainder of the Lake Charles Complex caused by such removal, at Lessees sole cost and expense.
(b) In the event Lessee does not timely elect to terminate this Lease following the occurrence of a Casualty Event in accordance with Section 7.3(a) , Lessee shall repair and restore any damaged or destroyed Lessee Assets and/or Additional Improvements to substantially the condition in which such Lessee Assets and/or Additional Improvements existed immediately prior to the applicable Casualty Event. Such repair and restoration by Lessee shall be performed in good faith and with due diligence, subject to Lessees receipt of any required building or construction permits.
(c) If, notwithstanding Section 7.3(b) , Lessee fails to act in good faith or to use due diligence to repair and restore the Lessee Assets and Additional Improvements to the required condition within a reasonable time, then (i) Lessor shall have the right to take such actions as are necessary or reasonable to effect such repair and restoration (and Lessee shall take all actions reasonably necessary to facilitate Lessors actions), and insurance proceeds with respect to any remaining repair or restoration work shall be payable to Lessor, (ii) Lessor shall
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have the right to immediately terminate this Lease upon written notice to Lessee, (iii) Lessee shall be obligated to use any insurance proceeds actually received by Lessee to reasonably clean up the Lessee Assets, Additional Improvements and Leased Premises and (iv) Lessor shall have the option to purchase the Lessee Assets and Additional Improvements for the Purchase Price (the Casualty Purchase Option ), as determined in accordance with Section 7.3(d) .
(d) If Lessor elects to exercise the Casualty Purchase Option, Lessor shall notify Lessee in writing (the Option Notice ). Promptly thereafter, Lessor and Lessee shall engage a mutually-acceptable independent appraiser with experience in valuing petrochemical production assets to determine the fair market value of the Lessee Assets and the Additional Improvements (the Fair Market Value ), which is the price at which a willing buyer would be willing to buy, and a willing seller would be willing to sell, each under no compulsion, the Lessee Assets and Additional Improvements in their then-current condition. The closing of the purchase and sale of the Lessee Assets and Additional Improvement shall occur on the closing date set forth in the Option Notice (the Option Closing Date ), which date shall not be more than 90 days after Lessors delivery of the Option Notice. At such closing, (i) Lessee shall deliver such duly executed and, if applicable, acknowledged, conveyances, deeds, assignments, bills of sale and other documents and instruments as are required to convey and transfer the Lessee Assets and Additional Improvements to Lessor, each of which shall include a special warranty of title or similar warranty of claims and encumbrances created or existing by, through or under Lessee and its Affiliates, but otherwise without warranty and (ii) Lessor shall deliver to Lessee, by wire transfer or other immediately available funds, the Purchase Price. As used herein, the Purchase Price means the Fair Market Value, less any costs and expenses incurred by Lessor in connection with the restoration and repair of the Lessee Assets and Additional Improvements prior to the Option Closing Date (excluding costs and expenses for which Lessor has actually received insurance proceeds).
7.4 Insurance . Except as otherwise agreed by Lessor and Lessee, Lessee shall, at all times during the Term, maintain or cause to be maintained property and casualty insurance (including pollution insurance) with respect to the Leased Premises, the Lessee Assets and the Additional Improvements in accordance with normal and customary practices in the industry. All such insurance shall be issued by reputable insurance providers licensed to do business in the state in which the Leased Premises is located. Except as otherwise agreed by Lessor and Lessee, Lessor shall, at all times during the term, maintain or cause to be maintained property and casualty insurance (including pollution insurance) with respect to the Shared Access Facilities in accordance with normal and customary practices in the industry. All such insurance shall be issued by insurance providers which are licensed or authorized to do business in the State of Texas and are rated by A.M. Bests Key Rating Guide as A-, Financial Size VIII, or better. Lessor and Lessee each waives any claim it might have against the other for any damage to or theft, destruction, loss, or loss of use of any property, to the extent the same is insured against under any insurance policy of the types described in this Section 7.4 that covers the Leased Premises, the Lessee Assets, the Additional Improvements or the Shared Access Facilities, regardless of whether the negligence of the other Party caused such loss . Each Party shall cause its insurance carrier to endorse all applicable policies waiving the carriers rights of recovery under subrogation or otherwise against the other Party.
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ARTICLE VIII
ASSIGNMENT AND SUBLETTING
8.1 Assignment and Subletting . Except as permitted pursuant to the Omnibus Agreement, neither Party may assign or otherwise transfer any of its rights or obligations under this Lease without the prior written consent of the other Party, and any purported assignment or transfer in violation hereof shall be null and void. Additionally, Lessee may not sublease or otherwise permit any person or entity to occupy any portion of the Leased Premises without the prior written consent of Lessor, and any purported sublease or other occupancy agreement shall be null and void.
ARTICLE IX
DEFAULTS; REMEDIES; TERMINATION
9.1 Default by Lessee . The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee:
(a) the failure by Lessee to make any payment required to be made by Lessee hereunder as and when the same becomes due and payable, if such failure continues for a period of 15 days following written notice from Lessor;
(b) the failure by Lessee to observe or perform any of the other covenants, conditions or provisions of this Lease to be observed or performed by Lessee, if such failure continues for a period of 30 days following written notice from Lessor; provided, however, if a reasonable time to cure such default would exceed 30 days, Lessee shall not be in default so long as Lessee begins to cure such default within 30 days of receiving written notice from Lessor and thereafter completes the curing of such default within reasonable period of time (under the circumstances) following the receipt of such written notice from Lessor;
(c) the occurrence of any Bankruptcy Event with respect to Lessee;
(d) the termination of the Ethylene Sales Agreement by Lessor or Lessors Affiliates, in accordance with the provisions thereof, due to a breach or default by Lessee thereunder, or due to the occurrence of a Force Majeure (as defined in the Ethylene Sales Agreement); or
(e) the failure by Lessee to operate the Lessee Assets and Additional Improvements for any period of six consecutive months (subject to extension for Force Majeure in accordance with Section 11.18 ), other than during periods of reconstruction due to the occurrence of a Casualty Event or condemnation, so long as such reconstruction is being performed in compliance with this Lease.
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9.2 Lessors Remedies .
(a) Lessor shall have the right, at Lessors option at any time that a default or breach under Section 9.1(a) or 9.1(b) remains uncured, to invoke the dispute resolution procedures set forth in Section 11.23 . Except as otherwise set forth in this Section 9.2 , Lessors right to invoke the dispute resolution provisions set forth in Section 11.23 shall be Lessors sole and exclusive remedy under this Lease with respect to a default or breach under Section 9.1(a) or 9.1(b) .
(b) Lessor shall have the right, at Lessors option at any time that a default or breach under Section 9.1(c) , 9.1(d) or 9.1(e) remains uncured, to terminate this Lease and Lessees right to possession of the Leased Premises, without further notice or demand, and to forthwith repossess the Leased Premises by any lawful means in which event Lessee shall immediately surrender possession of the Leased Premises to Lessor; and any such action on the part of Lessor shall be in addition to any other remedy that may be available to Lessor for breach of contract, or otherwise, including the right of setoff.
(c) If, by the terms of this Lease, Lessee is required to do or perform any act or to pay any sum to a third party, and fails or refuses to do so, Lessor, after 30 days written notice to Lessee, without waiving any other right or remedy hereunder for such default, may do or perform such act, at Lessees expense, or pay such sum for and on behalf of Lessee, and the amounts so expended by Lessor shall be repayable on demand, and bear interest from the date expended by Lessor until paid at a rate equal to the lesser of (i) an interest rate equal to the Prime Rate as published in The Wall Street Journal , Southwest Edition, in its listing of Money Rates plus five percent (5%) or (ii) the maximum non-usurious rate of interest permitted under applicable Law (the Default Rate ).
9.3 Default by Lessor . The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessor:
(a) The failure by Lessor to observe or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessor, if such failure continues for a period of 30 days following written notice from Lessee; provided, however, if a reasonable time to cure such default would exceed 30 days, Lessor shall not be in default so long as Lessor begins to cure such default within 30 days of receiving written notice from Lessee and thereafter completes the curing of such default within a reasonable period of time following the receipt of such written notice from Lessee; or
(b) The occurrence of a Bankruptcy Event with respect to Lessor.
9.4 Lessees Remedies .
(a) Lessee shall have the right, at Lessees option at any time that a default or breach under Section 9.3(a) or 9.3(b) remains uncured, to invoke the dispute resolution procedures set forth in Section 11.23 . Except as otherwise set forth in this Section 9.4 , Lessees right to invoke the dispute resolution provisions set forth in Section 11.23 shall be Lessees sole and exclusive remedy under this Lease with respect to a default or breach under Section 9.3(a) or 9.3(b) .
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(b) If, by the terms of this Lease, Lessor is required to do or perform any act or to pay any sum to a third party, and fails or refuses to do so, Lessee, after 30 days written notice to Lessor, without waiving any other right or remedy hereunder for such default, may do or perform such act, at Lessors expense, or pay such sum for and on behalf of Lessor, and the amounts so expended by Lessee shall be repayable on demand, and bear interest from the date expended by Lessee until paid at the Default Rate.
ARTICLE X
INDEMNITY
10.1 Indemnification by Lessor . Lessor agrees to indemnify, defend, protect, save and keep harmless Lessee and its Affiliates and their respective officers, directors, shareholders, unitholders, members, partners, managers, agents, employees, representatives, successors and assigns (collectively, the Lessee Indemnified Parties ) from and against any and all liabilities, obligations, losses, damages, penalties, demands, claims (including claims involving strict or absolute liability in tort), actions, suits, costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, Claims ) which may be imposed on, incurred by or asserted against any of the Lessee Indemnified Parties, in any way relating to or arising out of (a) any failure to perform any covenant or agreement made or undertaken by Lessor in this Lease, or (b) the exercise of Lessors Parties rights and obligations under Section 2.2(b) ; provided, however, Lessor shall not have any obligation to indemnify the Lessee Indemnified Parties for any such Claim under clauses (a) or (b) to the extent resulting from or arising out of the willful misconduct or negligence of any of the Lessee Indemnified Parties. To the extent that the Lessee Indemnified Parties in fact receive full indemnification payments from Lessor under the indemnification provisions of this Section 10.1 , Lessor shall be subrogated to the Lessee Indemnified Parties rights with respect to the transaction or event requiring or giving rise to such indemnity. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, IN NO EVENT SHALL LESSOR BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES IN TORT, CONTRACT OR OTHERWISE UNDER OR ON ACCOUNT OF THIS LEASE, EXCEPT THOSE PAYABLE TO THIRD PARTIES FOR WHICH LESSOR WOULD BE LIABLE UNDER THIS SECTION .
10.2 Indemnification by Lessee . Lessee agrees to indemnify, defend, protect, save and keep harmless Lessor and its Affiliates, and their respective officers, directors, shareholders, unitholders, members, partners, managers, agents, employees, representatives, successors and assigns (collectively, the Lessor Indemnified Parties ) from and against any and all Claims which may be imposed on, incurred by or asserted against the Lessor Indemnified Parties, in any way and to the extent relating to or arising out of (a) any failure to perform any covenant or agreement made or undertaken by Lessee in this Lease, or (b) the exercise of Lessees Parties rights under Section 2.2(a); provided, however, Lessee shall not have any obligation to indemnify the Lessor Indemnified Parties for any such Claim under clauses (a) or (b) to the extent resulting from or arising out of the willful misconduct or negligence of any of the Lessor Indemnified Parties. To the extent that the Lessor Indemnified Parties in fact receive full indemnification payments from Lessee under the indemnification provisions of this Section 10.2 , Lessee shall be subrogated to the Lessor Indemnified Parties rights with respect to the
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transaction or event requiring or giving rise to such indemnity. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, IN NO EVENT SHALL LESSEE BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES IN TORT, CONTRACT OR OTHERWISE UNDER OR ON ACCOUNT OF THIS LEASE, EXCEPT THOSE PAYABLE TO THIRD PARTIES FOR WHICH LESSEE WOULD BE LIABLE UNDER THIS SECTION .
10.3 Matters Involving a Third Party . If any Third Party shall notify either Lessor or Lessee with respect to any action or claim by a Third Party (a Third-Party Claim ) that may give rise to a right to claim for indemnification against the other Party under Section 10.1 or Section 10.2 , then the Indemnified Party shall promptly notify the Indemnifying Party thereof in writing; provided, however, that failure to give timely notice shall not affect the right to indemnification to the extent such failure to give timely notice is not prejudicial to the Indemnifying Party.
10.4 Survival . Notwithstanding anything contained in this Lease to the contrary, the provisions of this Article X shall survive the expiration or earlier termination of this Lease.
10.5 Related Agreements . The Related Agreements may contain additional indemnity provisions. The indemnities contained in this Article X are in addition to, and not in lieu of, any such indemnity provisions contained in the Related Agreements.
ARTICLE XI
GENERAL PROVISIONS
11.1 Estoppel Certificates . Lessee and Lessor shall, at any time and from time to time upon not less than 20 days prior written request from the other party, execute, acknowledge and deliver to the other a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which Rent and other charges are paid, (b) acknowledging that there are not, to the executing partys knowledge, any uncured defaults on the part of the other party hereunder (or specifying such defaults, if any are claimed), and (c) making such other factual statements as the executing Party may reasonably agree to make. Any such statement may be conclusively relied upon by any prospective purchaser of the Leased Premises or the leasehold evidenced by this Lease or any lender with respect to the Leased Premises or the leasehold evidenced by this Lease. Nothing in this Section 11.1 shall be construed to waive the conditions elsewhere contained in this Lease applicable to assignment or subletting of the Leased Premises by Lessee.
11.2 Severability . If any provision of this Lease shall be finally determined to be unenforceable, illegal or unlawful, such provision shall, so long as the economic and legal substance of the transactions contemplated hereby is not affected in any materially adverse manner as to any Party, be deemed severed from this Agreement and the remainder of this Agreement shall remain in full force and effect.
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11.3 Time of Essence . Time is of the essence in the performance of all obligations falling due hereunder.
11.4 Captions . The headings to Articles, Sections and other subdivisions of this Lease are inserted for convenience of reference only and will not affect the meaning or interpretation of this Lease.
11.5 Entire Agreement . This Lease and the Related Agreements (including any exhibits hereto or thereto) constitute the entire agreement of the Parties relating to the matters contained herein and therein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein and therein.
11.6 Amendment or Modification . This Lease may be amended or modified from time to time only by the written agreement of all the Parties hereto; provided, that Lessee may not, without the prior approval of the Conflicts Committee (as defined in the MLP Partnership Agreement), agree to any amendment or modification of this Agreement that, in the reasonable judgment of MLP GP, will adversely affect the holders of Common Units (as defined in the MLP Partnership Agreement). Each such instrument shall be reduced to writing and shall be designated on its face an Amendment or an Addendum to this Lease.
11.7 Exhibits . All exhibits attached to this Lease are hereby made a part hereof and incorporated herein by this reference.
11.8 Notices . Any notice or other communication given under this Agreement shall be in writing and shall be (a) delivered personally, (b) sent by documented overnight delivery service, (c) sent by electronic mail transmission, or (d) sent by first class mail, postage prepaid (certified or registered mail, return receipt requested). Such notice shall be deemed to have been duly given on the date of the delivery. Notices or other communications shall be directed to the following addresses:
Notices to Lessor: |
Westlake Petrochemicals LLC | |
c/o Westlake Chemical Corporation 2801 Post Oak Boulevard, Suite 600 Houston, Texas 77056 |
||
Attention: __________________ | ||
E-mail: ____________________ | ||
Notices to Lessee: |
Westlake Chemical OpCo LP | |
c/o Westlake Chemical Partners LP 2801 Post Oak Boulevard, Suite 600 Houston, Texas 77056 |
||
Attention: __________________ | ||
E-mail: ____________________ |
Either Party may at any time change its address for service from time to time by giving notice to the other Party in accordance with this Section 11.8 .
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11.9 Waivers . No waiver or waivers of any breach or default or any breaches or defaults by either Party of any term, condition or liability of or performance by the other party of any duty or obligation hereunder shall be deemed or construed to be a waiver or waivers of subsequent breaches or defaults of any kind, character or description under any circumstance.
11.10 No Partnership . The relationship between Lessor and Lessee at all times shall remain solely that of landlord and tenant and shall not be deemed a partnership or joint venture.
11.11 No Third Party Beneficiaries . Subject to the provisions of Article X and Section 11.15 hereof, this Lease inures to the sole and exclusive benefit of Lessor and Lessee, their respective Affiliates, successors, legal representatives, sublessees and assigns, and confers no benefit on any third party.
11.12 Waiver of Landlords Lien . To the extent permitted by Law, Lessor hereby expressly waives any and all liens (constitutional, statutory, contractual or otherwise) upon Lessees personal property now or hereafter installed or placed in or on the Leased Premises, which otherwise might exist to secure payment of the sums herein provided to be paid by Lessee to Lessor.
11.13 Mutual Cooperation; Further Assurances . Upon request by either Party from time to time during the Term, each Party hereto agrees to execute and deliver all such other and additional instruments, notices and other documents and do all such other acts and things as may be reasonably necessary to carry out the purposes of this Lease and to more fully assure the Parties rights and interests provided for hereunder. Lessor and Lessee each agree to reasonably cooperate with the other on all matters relating to required Permits and regulatory compliance by either Lessee or Lessor in respect of the Leased Premises so as to ensure continued full operation of the Leased Premises by Lessee pursuant to the terms of this Lease.
11.14 No Recording . Unless otherwise mutually-agreed by the Parties, neither this Lease nor any memorandum of lease, short-form lease or other evidence of this Lease shall be filed in the real property records of the county in which the Leased Premises are located. In the event the Parties mutually elect to record this Lease or evidence of this Lease, Lessee shall execute and deliver to Lessor an instrument, in recordable form, evidencing the termination and release of this Lease and any memorandum of lease, short-form lease or other evidence of this Lease (the Lessee Release ), promptly after Lessors request therefor at any time after the expiration or earlier termination of this Lease. If Lessee fails to deliver the executed Lessee Release within ten days after Lessors request therefor, Lessor shall have the right to execute the Lessee Release on behalf of and in the name of Lessee, and Lessee hereby grants to Lessor an irrevocable power of attorney coupled with an interest for such purpose. Lessor shall have the right to record the Lessee Release at any time after the expiration or termination of this Lease. This Section 11.14 shall survive the expiration or termination of this Lease.
11.15 Binding Effect . Except as herein otherwise expressly provided, this Lease shall be binding upon and inure to the benefit of the Parties and their respective successors, sublessees and assigns. Nothing in this Section shall be construed to waive the conditions elsewhere contained in this Lease applicable to assignment or subletting of the Leased Premises by the Parties.
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11.16 Choice of Law . The provisions of this Lease shall be governed by and construed in accordance with the laws of the State of Louisiana, excluding any conflicts-of-law rule or principle that might require the application of laws of another jurisdiction.
11.17 Quiet Possession . Lessor covenants and warrants that Lessee, upon observing and performing all of the covenants, conditions and provisions on Lessees part to be observed and performed hereunder, may peaceably and quietly have, hold, occupy, use and enjoy, and, subject to the terms of this Lease, shall have the full, exclusive, and unrestricted use and enjoyment of, the Leased Premises during the Term for the purposes permitted herein.
11.18 Force Majeure . In the event of Lessor or Lessee being rendered unable, wholly or in part, by Force Majeure to carry out its obligations under this Lease, other than to make payments due hereunder and the obligations under Section 11.17 , it is agreed that on such Partys giving notice and full particulars of such Force Majeure to the other Party as soon as practicable after the occurrence of the cause relied on, then the obligations of the Parties, so far as they are affected by such Force Majeure, shall be suspended during the continuance of any inability so caused but for no longer period, and such cause shall, as far as possible, be remedied with all reasonable dispatch. It is understood and agreed that the settlement of strikes or lockouts shall be entirely within the discretion of the Party having the difficulty, and that the above requirements that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes or lockouts by acceding to the demands of the opposing party when such course is inadvisable in the discretion of the Party having the difficulty. Notwithstanding anything in this Lease to the contrary, inability of a Party to make payments when due, be profitable or secure funds, arrange bank loans or other financing, obtain credit or have adequate capacity or production (other than for reasons of Force Majeure) shall not be regarded as events of Force Majeure.
11.19 Survival . All obligations of Lessor and Lessee that shall have accrued under this Lease prior to the expiration or earlier termination hereof shall survive such expiration or termination to the extent the same remain unsatisfied as of the expiration or earlier termination of this Lease. Lessor and Lessee further expressly agree that all provisions of this Lease which contemplate performance after the expiration or earlier termination hereof shall survive such expiration or earlier termination of this Lease.
11.20 Brokerage Commissions . Each Party represents and warrants to the other that it has not dealt with any broker or agent in connection with this Lease. Each Party hereby indemnifies the other for all costs, attorneys fees, and other liabilities for commissions or other compensation claimed by any broker or agent claiming the same by, through, or under the indemnifying party.
11.21 Condition of the Leased Premises . LESSEE HEREBY ACCEPTS THE LEASED PREMISES AS IS, WHERE IS, AND WITH ALL FAULTS, AND LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, UNDER THIS LEASE AS TO THE PHYSICAL CONDITION OF THE LEASED PREMISES, INCLUDING THE PREMISES MERCHANTABILITY, HABITABILITY, CONDITION, FITNESS, OR SUITABILITY FOR ANY PARTICULAR USE OR PURPOSE.
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11.22 Relocation . If Lessor determines that Lessors use or operations of the Lake Charles Complex require the relocation of any Lessee Assets or Additional Improvements, Lessee shall cause the applicable Lessee Assets or Additional Improvements to be relocated within the Lake Charles Complex, but only so long as (a) the applicable Lessee Assets or Additional Improvements can be relocated within material diminution in the use or value thereof, and (b) during any such relocation, Lessees use and operation of the Lessee Assets and Additional Improvements, taken as a whole, is not materially diminished or otherwise materially and adversely affected. Any relocation of the Lessee Assets or Additional Improvements shall be undertaken by Lessee at Lessors sole cost and expense. Upon completion of any applicable relocation pursuant to this Section 11.22 , the Parties shall execute an amendment to this Lease reflecting the new location(s) of the Lessee Assets.
11.23 Dispute Resolution .
(a) Except as otherwise expressly set forth in Section 9.2 or 9.4 , the dispute resolution provisions set forth in this Section 11.23 shall be the final, binding and exclusive means to resolve all disputes, controversies or claims (each, a dispute ) arising under this Lease, and each Party irrevocably waives any right to any trial by jury with respect to any dispute arising under this Lease; provided, this Section 11.23 shall not limit either Partys recourse to courts of competent jurisdiction for injunctive or equitable relief that may be necessary to protect the rights and property of such Party or maintain the status quo before or during the pendency of the process set forth in this Section 11.23 .
(b) If a dispute arises, the following procedures shall be implemented:
(i) Any Party may at any time invoke the dispute resolution procedures set forth in this Section 11.23 as to any dispute by providing written notice of such action to the other Party (a Dispute Notice ). The Parties shall thereafter schedule a meeting between the Parties to be held in Houston, Texas on a mutually-acceptable date no later than ten business days after the applicable Dispute Notice is delivered. The meeting shall be attended by representatives of each Party having decision-making authority regarding the dispute as well as the dispute resolution process. The meeting shall also be attended by upper management level personnel of each of the Parties, which persons have not previously been directly engaged in asserting or responding to the dispute. Such persons shall attempt in a commercially reasonable manner to negotiate a resolution of the dispute, which negotiations may entail the involvement of and meetings attended by additional upper management level personnel senior to such persons. If such upper management level personnel have not negotiated a resolution to the dispute within 45 days the date on which the applicable Dispute Notice was delivered, then a meeting attended by the chief executive officer of each Party (or their ultimate parent entities) having full decision-making authority with respect to the applicable Party shall occur and such persons shall attempt in a commercially reasonable manner to negotiate a resolution of the dispute before these procedures may be deemed to have been exhausted. If such persons succeed in negotiating a resolution of the dispute, the Parties shall be directed (in as comprehensive detail as reasonably practicable) to take the actions necessary to carry out such resolution. Each Party shall have a commercially reasonable time in which to take the actions required of it, and such period shall automatically be extended if such Party has in good faith and diligently commenced and continued with its actions (a Cure Period ).
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(ii) Notwithstanding the existence of any dispute or the pendency of any procedures pursuant to this Section 11.23 , the Parties agree and undertake that all payments under this Lease, and all obligations under this Lease, that are not in dispute shall continue to be paid and performed.
(iii) If a dispute is not resolved pursuant to Section 11.23(b)(i) within 90 days after delivery of the Dispute Notice, or if, following the Cure Period, a Party believes in good faith that a dispute still exists, the representatives of the Parties shall engage in mediation (or such other technique of alternative dispute resolution as the Parties may then agree upon), and a specific timetable and completion date for its implementation shall also be agreed upon. If the completion date therefor shall occur without the Parties having resolved the dispute, then the Parties shall proceed under Section 11.23(b)(iv) below.
(iv) If, after satisfying the requirements above, the dispute is not resolved, then such dispute shall be resolved by any state or federal court sitting in Houston, Texas. Each Party acknowledges and agrees that any controversy that may arise under this Lease is likely to involve complicated and difficult issues, and therefore irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Lease. Each Party acknowledges and agrees that it understands and has considered the implications of such waiver, that it makes such waiver voluntarily and that it has been induced to enter into this Lease by, among other things, the mutual waivers in this Section 11.23 .
[Remainder of Page Intentionally Left Blank]
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The Parties hereto have executed this Lease to be effective as of the Effective Date.
LESSOR: | ||
WESTLAKE PETROCHEMICALS LLC, a Delaware limited liability company |
||
By: | ||
Name: | ||
Title: | ||
LESSEE: | ||
WESTLAKE CHEMICAL OPCO LP , a Delaware limited partnership |
||
By: |
Westlake Chemical OpCo GP LLC, a Delaware limited liability company, its general partner |
|
By: | ||
Name: | ||
Title: |
Signature Page to
Site Lease Agreement
(Lake Charles)
EXHIBIT A
DESCRIPTION OF LEASED PREMISES
Petro 1 Unit Tract
THAT CERTAIN PORTION OF LAND KNOWN AS THE PETRO 1 UNIT, SITUATED PRIMARILY IN THE W1/2 OF THE NE1/4 OF SECTION 23, T10S R10W, CALCASIEU PARISH, LOUISIANA, SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWES:
COMMENCING AT A PK NAIL FOUND IN THE CENTER OF DAVE DUGAS ROAD, HAVING STATE PLANE COORDINATES OF N:612614.14, E:2639362.74;
THENCE S89°1311E, ALONG THE APPARENT CENTERLINE OF DAVE DUGAS ROAD A DISTANCE OF 2661.07 TO A CALCULATED POINT, HAVING STATE PLANE VALUES OF N=612577.91, E=2642023.39;
THENCE N00°5123EA DISTANCE OF 3413.13 TO A CALCULATED POINT, HAVING STATE PLANE VALUES OF N=615990.43, E=2642074.40;
THENCE N89°0829W A DISTANCE OF 137.69 TO THE POINT OF BEGINNING OF SAID PETRO UNIT 1 TRACT, HAVING STATE PLANE COORDINATES OF N:=615992.50, E=2641936.74.
THENCE, N89° 08 29W A DISTANCE OF 1147.23 TO A TO A 5/8 I.R.S. FOR CORNER
THENCE, N00° 51 53E A DISTANCE OF 221.34 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, S89° 07 45E A DISTANCE OF 236.49 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, N00° 52 01E A DISTANCE OF 354.83 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, N89° 08 03W A DISTANCE OF 85.99 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, N00° 51 48E A DISTANCE OF 121.74 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, N89° 07 15W A DISTANCE OF 86.90 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, N00° 50 45E A DISTANCE OF 91.86 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, S89° 08 18E A DISTANCE OF 50.29 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, N00° 52 11E A DISTANCE OF 155.40 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, S89° 11 32E A DISTANCE OF 36.57 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, N00° 51 56E A DISTANCE OF 218.09 TO A TO A 5/8 I.R.S. FOR CORNER;
THENCE, S 89° 08 31E A DISTANCE OF 996.65 TO A TO A 5/8 I.R.S. FOR CORNER. THENCE, S 00° 51 47 W FOR A DISTANCE OF 1163.30 TO A TO THE POINT OF BEGINNING AND CONTAINING 26.99 ACRES OR 1175894 SQUARE FEET.
[LEGAL DESCRIPTIONS CONTINUE ON THE FOLLOWING PAGE]
A-1
Petro 1.1 Unit Tract
THAT CERTAIN PORTION OF LAND KNOWN AS THE PETRO 1.1 UNIT, SITUATED PRIMARILY IN THE W1/2 OF THE NE1/4 OF SECTION 23, T10S R10W, CALCASIEU PARISH, LOUISIANA, SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWES:
COMMENCING AT A 5/8 I.R.S. FOR A SOUTHWEST CORNER OF THE PETRO 1 26.99 ACRE TRACT; THENCE N06°2406E A DISTANCE OF 96.38 TO A CALCULATED POINT FOR THE POINT OF BEGINNING, HAVING STATE PLANE VALUES OF N=616326.77, E=2640803.80, FROM WHICH A 5/8 I.R.S. FOR AN OFFSET CORNER BEARS N89°0150W A DISTANCE OF 6.00;
THENCE N00°5035E A DISTANCE OF 62.20 TO A CALCULATED POINT FOR CORNER, FROM WHICH A 5/8 I.R.S. FOR AN OFFSET CORNER BEARS N89°0936W A DISTANCE OF 6.00;
THENCE S89°0936E A DISTANCE OF 47.56 TO A 5/8 I.R.S. FOR CORNER;
THENCE S00°4804W A DISTANCE OF 62.30 TO A 5/8 I.R.S. FOR CORNER;
THENCE N89°0150W A DISTANCE OF 47.61 TO THE POINT OF BEING CONTAINING 0.07 ACRES OR 3049 SQUARE FEET.
Petro 2 Unit Tract
THAT CERTAIN PORTION OF LAND KNOWN AS THE PETRO 2 UNIT, PRIMARILY SITUATED IN THE E1/2 OF THE NW1/4 OF SECTION 23, T10S R10W, CALCASIEU PARISH, LOUISIANA, SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWES:
COMMENCING AT A PK NAIL FOUND IN THE CENTER OF DAVE DUGAS ROAD, HAVING STATE PLANE COORDINATES OF N:612614.14,E:2639362.74;
THENCE,N00°5256E A DISTANCE OF 3,320.76 TO A CALCULATED POINT, HAVING STATE PLANE VALUES OF N-615934.28,E-2639413.86;
THENCE, S89°0704E A DISTANCE OF 487.93 TO THE POINT OF BEGINNING OF SAID PETRO UNIT 2, HAVING STATE PLANE VALUES OF N=615926.77, E=2639901.69.
THENCE, N00°5131E A DISTANCE OF 1201.33 TO A 5/8 I.R.S FOR CORNER;
THENCE,S89°0826E A DISTANCE OF 849.64 TO A 5/8 I.R.S. FOR CORNER;
THENCE, S00°5139W A DISTANCE OF 1201.31 TO A 5/8 I.R.S. FOR CORNER;
THENCE, N89°0832W A DISTANCE OF 849.60 TO THE POINT OF BEGINNING, CONTAINING 23.43 ACRES OR 1,020,662 SQUARE FEET.
[LEGAL DESCRIPTIONS CONTINUE ON THE FOLLOWING PAGE.]
A-2
Co-Products Tract
THAT CERTAIN PORTION OF LAND KNOWN AS CO-PRODUCTS, SITUATED IN THE E1/2 OF THE NW1/4 OF THE SE1/4 OF SECTION 23, T10S R10W, CALCASIEU PARISH, LOUISIANA, SAID TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWES:
COMMENCING AT A PK NAIL FOUND IN THE CENTER OF DAVE DUGAS ROAD, HAVING STATE PLANE COORDINATES OF N:612614.14,E:2639362.74;
THENCE N89°1311E, ALONG THE APPARENT CENTERLINE OF DAVE DUGAS ROAD A DISTANCE OF 2661.07 TO A CALCULATED POINT, HAVING STATE PLANE VALUES OF N=612577.91, E=2642023.39;
THENCE N00°5123E A DISTANCE OF 1449.71 TO A CALCULATED POINT, HAVING STATE PLANE VALUES OF N=614027.36, E=2642045.06;
THENCE N89°0757W A DISTANCE OF 144.00 TO 5/8 I.R.S. FOR THE POINT OF BEGINNING OF SAID CO-PRODUCTS TRACT, HAVING STATE PLANE COORDINATES OF N:=614029.19, E=2641901.07.
THENCE N89°0757W A DISTANCE OF 177.72 TO A 5/8 I.R.S. FOR CORNER;
THENCE N48°1708W A DISTANCE OF 339.29 TO A 5/8 I.R.S. FOR CORNER;
THENCE N00°5141E A DISTANCE OF 620.78 TO A 5/8 I.R.S. FOR CORNER;
THENCE S89°0834E A DISTANCE OF 434.29 TO A 5/8 I.R.S. FOR CORNER;
THENCE S00°5123W A DISTANCE OF 842.77 TO THE POINT OF BEGINNING AND CONTAINING 7.75 ACRES OF OR 337540 SQUARE FEET.
A-3
EXHIBIT B
DEPICTION OF LEASED PREMISES
Petro 1 Unit and Petro 1.1 Unit
B-1
Petro 2 Unit
B-2
Co-Products
B-3
Exhibit 10.12
FORM OF
WESTLAKE CHEMICAL PARTNERS LP
LONG-TERM INCENTIVE PLAN
Section 1. Purpose of the Plan . The Westlake Chemical Partners LP Long-Term Incentive Plan (the Plan ) has been adopted by Westlake Chemical Partners GP LLC, a Delaware limited liability company (the General Partner ), the general partner of Westlake Chemical Partners LP, a Delaware limited partnership (the Partnership ). The Plan is intended to promote the interests of the Partnership and its Affiliates by providing to Employees, Consultants and Directors incentive compensation awards denominated in or based on Units to encourage superior performance. The Plan is also intended to enhance the ability of the General Partner, the Partnership and their respective Affiliates to attract and retain the services of individuals who are essential for the growth and profitability of the Partnership and to encourage such individuals to devote their best efforts to advancing the business of the Partnership and its Affiliates.
Section 2. Definitions . As used in the Plan, the following terms shall have the meanings set forth below:
(a) Affiliate means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term control means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
(b) ASC Topic 718 means Accounting Standards Codification Topic 718, Compensation Stock Compensation , or any successor accounting standard.
(c) Award means an Option, Restricted Unit, Phantom Unit, DER, Unit Appreciation Right, Other Unit-Based Award or Unit Award granted under the Plan.
(d) Award Agreement means the written or electronic agreement by which an Award shall be evidenced.
(e) Board means the board of directors of the General Partner.
(f) Code means the Internal Revenue Code of 1986, as amended.
(g) Committee means the Board or such committee of, and appointed by, the Board to administer the Plan; provided , however , that in the absence of the Boards appointment of a committee to administer the Plan, the Compensation Committee of the Board shall serve as the Committee.
(h) Consultant means an individual, other than a Director or Employee, who renders bona fide consulting or advisory services to the General Partner, the Partnership or any of their respective Affiliates.
(i) DER means a distribution equivalent right representing a contingent right to receive an amount in cash, Units, Restricted Units and/or Phantom Units, as determined by the Committee in its sole discretion, equal in value to the distributions made by the Partnership with respect to a Unit during the period such Award is outstanding.
(j) Director means a member of the Board who is not an Employee.
(k) Employee means an employee of the General Partner, the Partnership or any of their respective Affiliates.
(l) Exchange Act means the Securities Exchange Act of 1934, as amended.
(m) Fair Market Value means, as of any given date, (i) if the Units are traded on a national securities exchange on such date, the closing sales price of a Unit on such date during normal trading hours (or, if there are no reported sales on such date, on the last date prior to such date on which there were reported sales) on the New York Stock Exchange or, if the Units are not then-listed on such exchange, on any other national securities exchange on which the Units are listed or on an inter-dealer quotation system, in any case, as reported in such source as the Committee shall select or (ii) if there is no regular public trading market for the Units at the time a determination of fair market value is required to be made hereunder, the amount determined in good faith by the Committee and, to the extent applicable, in compliance with the requirements of Section 409A, to be the fair market value of a Unit as of such date.
(n) Option means an option to purchase Units granted pursuant to Section 6(a) of the Plan.
(o) Other Unit-Based Award means an Award granted pursuant to Section 6(e) of the Plan.
(p) Participant means an Employee, Consultant or Director granted an Award under the Plan.
(q) Person means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, governmental agency or political subdivision thereof or other entity.
(r) Phantom Unit means a notional interest granted under the Plan that, to the extent vested, entitles the Participant to receive a Unit (or such greater or lesser number of Units as may be provided pursuant to the applicable Award Agreement), an amount of cash equal to the Fair Market Value of a Unit (or such greater or lesser number of Units as may be provided pursuant to the applicable Award Agreement) or a combination thereof, as determined by the Committee in its discretion and as provided in the applicable Award Agreement.
(s) Qualified Member means a member of the Committee who is a nonemployee director within the meaning of Rule 16b-3.
(t) Restricted Period means the period established by the Committee with respect to an Award during which the Award or Unit remains subject to restrictions established by the
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Committee, including, without limitation, a period during which an Award or Unit is subject to forfeiture or restrictions on transfer, or is not yet exercisable by or payable to the Participant, as the case may be. As the context requires, the word vest and its derivatives refers to the lapse of some or all, as the case may be, of the restrictions imposed during such Restricted Period.
(u) Restricted Unit means a Unit granted pursuant to Section 6(b) of the Plan that is subject to a Restricted Period.
(v) Rule 16b-3 means Rule 16b-3 promulgated by the SEC under the Exchange Act or any successor rule or regulation thereto as in effect from time to time.
(w) SEC means the Securities and Exchange Commission, or any successor thereto.
(x) Section 409A means Section 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder, including, without limitation, any such regulations or guidance that may be amended or issued after the effective date of the Plan.
(y) UDR means a distribution made by the Partnership with respect to a Restricted Unit.
(z) Unit means a common unit of the Partnership.
(aa) Unit Appreciation Right or UAR means an Award that, upon exercise, entitles the holder to receive the excess of the Fair Market Value of a Unit on the exercise date of the UAR over the exercise price established for such UAR. Such excess may be paid in cash and/or in Units as determined by the Committee in its discretion and as provided in the applicable Award Agreement.
(bb) Unit Award means an Award granted pursuant to Section 6(d) of the Plan.
Section 3. Administration .
(a) Authority of the Committee . The Plan shall be administered by the Committee, subject to Section 3(b); provided, however , that in the event that the Board is not also serving as the Committee, the Board, in its sole discretion, may at any time and from time to time exercise any and all rights and duties of the Committee under the Plan. The governance of the Committee shall be subject to the charter, if any, of the Committee as approved by the Board. Subject to the following and applicable law, the Committee, in its sole discretion, may delegate any or all of its powers and duties under the Plan, including the power to grant Awards under the Plan, to the Chief Executive Officer of the General Partner, subject to such limitations on such delegated powers and duties as the Committee may impose, if any. Upon any such delegation all references in the Plan to the Committee, other than in Section 7, shall be deemed to include the Chief Executive Officer; provided, however , that such delegation shall not limit the Chief Executive Officers right to receive Awards under the Plan. Notwithstanding the foregoing, the Chief Executive Officer may not grant Awards to, or take any action with respect to any Award previously granted to, a person who is then an officer subject to Rule 16b-3 or a member of the Board. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have
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full power and authority to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Units to be covered by Awards; (iv) determine the terms and conditions of any Award, consistent with the terms of the Plan, which terms may include any provision regarding the acceleration of vesting or waiver of forfeiture restrictions or any other condition or limitation regarding an Award, based on such factors as the Committee shall determine, in its sole discretion; (v) determine whether, to what extent, and under what circumstances Awards may be vested, settled, exercised, canceled, or forfeited; (vi) interpret and administer the Plan and any instrument or agreement relating to an Award made under the Plan; (vii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (viii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan. The Committee may correct any defect, supply any omission, or reconcile any inconsistency in the Plan, in any Award or in any Award Agreement in such manner and to such extent as the Committee deems necessary or appropriate. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons, including the General Partner, the Partnership, any of their respective Affiliates, any Participant, and any beneficiary of any Award.
(b) Authority of a Subcommittee of the Committee . At any time that a member of the Committee is not a Qualified Member, any action of the Committee relating to an Award granted or to be granted to a Participant who is then subject to Section 16 of the Exchange Act in respect of the Partnership may be taken either (i) by a subcommittee, designated by the Committee, composed solely of two or more Qualified Members, (ii) by the Committee but with each such member who is not a Qualified Member abstaining or recusing himself or herself from such action; provided, however , that upon such abstention or recusal the Committee remains composed solely of two or more Qualified Members, or (iii) by the full Board. Such action, authorized by such a subcommittee, by the Committee upon the abstention or recusal of such non-Qualified Member(s) or by the full Board, shall be the action of the Committee for all purposes of the Plan.
(c) Limitation of Liability . The Committee and each member thereof shall be entitled to, in good faith, rely or act upon any report or other information furnished to him or her by any officer or employee of the General Partner, the Partnership or their respective Affiliates, the General Partners or the Partnerships legal counsel, independent auditors, consultants or any other agents assisting in the administration of the Plan. Members of the Committee and any officer or employee of the General Partner, the Partnership or any of their respective Affiliates acting at the direction or on behalf of the Committee shall not be personally liable for any action or determination taken or made in good faith with respect to the Plan, and shall, to the fullest extent permitted by law, be indemnified and held harmless by the General Partner with respect to any such action or determination.
Section 4. Units .
(a) Limits on Units Deliverable . Subject to adjustment as provided in Section 4(c) and Section 7, the number of Units that may be delivered with respect to Awards under the Plan
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is . If any Award is forfeited, cancelled, exercised, settled in cash or otherwise terminates or expires without the actual delivery of Units pursuant to such Award (the grant of Restricted Units is not a delivery of Units for this purpose unless and until the Restricted Period for such Restricted Units lapses), or if any Units under an Award are held back to cover the exercise price or tax withholding (including the withholding of Units with respect to an Award of Restricted Units), then, in either such case, the Units underlying such Awards that are so forfeited, cancelled, exercised, settled in cash or that otherwise terminate or expire without the actual delivery of Units and Units so held back shall be available to satisfy future Awards under the Plan. There shall not be any limitation on the number of Awards that may be paid in cash.
(b) Sources of Units Deliverable under Awards . Any Units delivered pursuant to an Award shall consist, in whole or in part, of (i) Units acquired in the open market, (ii) Units acquired from the Partnership (including newly issued Units), any Affiliate of the Partnership or any other Person or (iii) any combination of the foregoing, as determined by the Committee in its discretion.
(c) Adjustments .
(i) Certain Restructurings . Upon the occurrence of any equity restructuring event that could result in an additional compensation expense to the General Partner or the Partnership pursuant to the provisions of ASC Topic 718 if adjustments to Awards with respect to such event were discretionary, the Committee shall equitably adjust the number and type of Units (or other securities or property) covered by each outstanding Award and the terms and conditions, including the exercise price and performance criteria (if any), of such Award to equitably reflect such event and shall adjust the number and type of Units (or other securities or property) with respect to which Awards may be granted under the Plan after such event. Upon the occurrence of any other similar event that would not result in an accounting charge under ASC Topic 718 if the adjustment to Awards with respect to such event were subject to discretionary action, the Committee shall have complete discretion to adjust Awards and the number and type of Units (or other securities or property) with respect to which Awards may be granted under the Plan in such manner as it deems appropriate with respect to such other event. In the event the Committee makes any adjustment pursuant to the foregoing provisions of this Section 4(c), the Committee shall make a corresponding and proportionate adjustment with respect to the maximum number of Units that may be delivered with respect to Awards under the Plan as provided in Section 4(a) and the kind of Units or other securities available for grant under the Plan.
(ii) Other Adjustments . Subject to, and without limiting the scope of, the provisions of Section 4(c)(i), in the event that the Committee determines that any distribution (whether in the form of cash, Units, other securities, or other property), recapitalization, split, reverse split, reorganization, merger, change of control, consolidation, split-up, spin-off, combination, repurchase, or exchange of Units or other securities of the Partnership, issuance of warrants or other rights to purchase Units or other securities of the Partnership, or other similar transaction or event affects the Units such that an adjustment is determined by the Committee, in its sole discretion, to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (A) the number and type of Units (or
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other securities or property) with respect to which Awards may be granted, (B) the number and type of Units (or other securities or property) subject to outstanding Awards, and (C) the grant or exercise price with respect to any Award or, if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award; provided , that the number of Units subject to any Award shall always be a whole number. Further, upon the occurrence of any event described in the preceding sentence, the Committee, acting in its sole discretion without the consent or approval of any holder, may effect one or more of the following alternatives, which may vary among individual holders and which may vary among Awards: (I) remove any applicable forfeiture restrictions on any Award; (II) accelerate the time of exercisability or the time at which the Restricted Period shall lapse to a specific date specified by the Committee; (III) require the mandatory surrender to the General Partner or the Partnership by selected holders of some or all of the outstanding Awards held by such holders (irrespective of whether such Awards are then subject to a Restricted Period or other restrictions pursuant to the Plan) as of a date specified by the Committee, in which event the Committee shall thereupon cancel such Awards and cause the General Partner, the Partnership or an Affiliate thereof to pay to each holder an amount of cash per Unit equal to the per Unit value as determined by the Committee as of the date determined by the Committee to be the date of cancellation and surrender of such Awards less the exercise price, if any, applicable to such Awards; provided , however , that to the extent the exercise price of an Option or UAR exceeds such per Unit value as determined by the Committee, no consideration will be paid with respect to that Award; (IV) cancel Awards that remain subject to a Restricted Period as of a date specified by the Committee without payment of any consideration to the Participant for such Awards; or (V) make such adjustments to Awards then outstanding as the Committee deems appropriate to reflect such event (including, without limitation, the substitution of new awards for Awards); provided , however , that the Committee may determine in its sole discretion that no adjustment is necessary to Awards then outstanding.
Section 5. Eligibility . Any Employee, Consultant or Director shall be eligible to be designated a Participant and receive an Award under the Plan.
Section 6. Awards .
(a) Options and UARs . The Committee shall have the authority to determine the Employees, Consultants and Directors to whom Options and/or UARs shall be granted, the number of Units to be covered by each Option or UAR, the exercise price therefor, the Restricted Period and other conditions and limitations applicable to the exercise of the Option or UAR, including the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Plan.
(i) Exercise Price . The exercise price per Unit purchasable under an Option or subject to a UAR shall be determined by the Committee at the time the Option or UAR is granted but, except with respect to substitute Awards pursuant to Section 6(f)(viii), may not be less than the Fair Market Value of a Unit as of the date of grant of such Option or UAR.
(ii) Time and Method of Exercise . The Committee shall determine the exercise terms and the Restricted Period, if any, with respect to an Option or UAR, which may include, without limitation, a provision for accelerated vesting upon the achievement of specified performance goals and/or other events, and the method or methods by which payment of the
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exercise price with respect to an Option or UAR may be made or deemed to have been made, which may include, without limitation, cash, check acceptable to the General Partner, withholding Units having a Fair Market Value on the exercise date equal to the relevant exercise price from the Award, a cashless-broker exercise through procedures approved by the General Partner, other securities or other property, a note (in a form acceptable to the General Partner), or any combination of the foregoing methods.
(iii) Forfeitures . Except as otherwise provided in the terms of the Award Agreement, upon termination of a Participants employment with (or service to) the General Partner and its Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all outstanding Options and UARs awarded to the Participant shall be automatically forfeited on such termination. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participants Options and UARs.
(b) Restricted Units and Phantom Units . The Committee shall have the authority to determine the Employees, Consultants and Directors to whom Restricted Units or Phantom Units shall be granted, the number of Restricted Units or Phantom Units to be granted to each such Participant, the applicable Restricted Period, the conditions under which the Restricted Units or Phantom Units may become vested or forfeited and such other terms and conditions as the Committee may establish with respect to such Awards, including whether DERs are granted with respect to the Phantom Units.
(i) UDRs . To the extent determined by the Committee, in its discretion, the Award Agreement for a grant of Restricted Units may provide that distributions made by the Partnership with respect to the Restricted Units shall be subject to the same forfeiture and other restrictions as the Restricted Unit and, if restricted, such distributions shall be held, without interest, until the Restricted Unit vests or is forfeited with the UDR being paid or forfeited at the same time, as the case may be. Absent such a restriction on the UDRs in the Award Agreement, UDRs shall be paid to the holder of the Restricted Unit without restriction at the same time as cash distributions are paid by the Partnership to its unitholders.
(ii) Forfeitures . Except as otherwise provided in the terms of the applicable Award Agreement, upon termination of a Participants employment with (or service to) the General Partner and its Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all outstanding, unvested Restricted Units and Phantom Units awarded to the Participant shall be automatically forfeited on such termination.
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(iii) Lapse of Restrictions .
(A) Phantom Units . Unless otherwise provided in the applicable Award Agreement, upon or as soon as reasonably practical following the vesting of each Phantom Unit, subject to Section 8(b), the Participant shall be entitled to settlement of such Phantom Unit and shall receive one Unit (or such greater or lesser number of Units as may be provided pursuant to the applicable Award Agreement) or an amount in cash equal to the Fair Market Value (for purposes of this Section 6(b)(iii), as calculated on the last day of the Restricted Period) of a Unit (or such greater or lesser number of Units as may be provided pursuant to the applicable Award Agreement) or a combination thereof, as determined by the Committee in its discretion and as provided in the applicable Award Agreement.
(B) Restricted Units . Upon or as soon as reasonably practicable following the vesting of each Restricted Unit, subject to Section 8(b), the Participant shall be entitled to have the restrictions removed from his or her Unit certificate (or book entry account, as applicable).
(c) DERs . The Committee shall have the authority to determine the Employees, Consultants and/or Directors to whom DERs are granted, whether such DERs are tandem or separate Awards, whether such DERs shall be paid directly to the Participant, be credited to a bookkeeping account (with or without interest), any vesting restrictions and payment provisions applicable to the DERs, and such other provisions or restrictions as determined by the Committee in its discretion, all of which shall be specified in the applicable Award Agreements. Distributions in respect of DERs shall be credited as of the distribution dates during the period between the date an Award is granted to a Participant and the date such Award vests, is exercised, is distributed or expires, as determined by the Committee. Such DERs shall be converted to cash, Units, Restricted Units and/or Phantom Units by such formula and at such time(s) and subject to such limitations as may be determined by the Committee. Tandem DERs may be subject to the same or different vesting restrictions as the underlying Award, or be subject to such other provisions or restrictions as determined by the Committee in its discretion. Notwithstanding the foregoing, DERs shall only be paid in a manner that is either exempt from or in compliance with Section 409A.
(d) Unit Awards . Unit Awards may be granted under the Plan (i) to such Employees, Consultants and/or Directors and in such amounts as the Committee, in its discretion, may select and (ii) subject to such other terms and conditions, including, without limitation, restrictions on transferability, as the Committee may establish with respect to such Awards.
(e) Other Unit-Based Awards . Other Unit-Based Awards may be granted under the Plan to such Employees, Consultants and/or Directors as the Committee, in its discretion, may select. An Other Unit-Based Award shall be an award denominated or payable in, valued in or otherwise based on or related to Units, in whole or in part. The Committee shall determine the terms and conditions of any Other Unit-Based Award. An Other Unit-Based Award may be paid in cash, Units (including Restricted Units) or any combination thereof as provided in the applicable Award Agreement.
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(f) Certain Provisions Applicable to Awards .
(i) Awards May Be Granted Separately or Together . Awards may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution for any other Award granted under the Plan or any award granted under any other plan of the General Partner or any Affiliate of the General Partner. Awards granted in addition to or in tandem with other Awards or awards granted under any other plan of the General Partner, the Partnership or any of their respective Affiliates may be granted either at the same time as or at a different time from the grant of such other Awards or awards.
(ii) Limits on Transfer of Awards .
(A) Except as provided in Section 6(f)(ii)(C), each Option and UAR shall be exercisable only by the Participant during the Participants lifetime, or by the Person to whom the Participants rights shall pass by will or the laws of descent and distribution.
(B) Except as provided in Section 6(f)(ii)(C), no Award and no right under any such Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant other than by will or the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the General Partner, the Partnership or any of their respective Affiliates.
(C) The Committee may provide in an Award Agreement or in its discretion that an Award may, on such terms and conditions as the Committee may from time to time establish, be transferred by a Participant without consideration to any family member of the Participant, as defined in the instructions to use of the Form S-8 Registration Statement under the Securities Act of 1933, as amended, or any related family trust, limited partnership or other transferee specifically approved by the Committee.
(iii) Term of Awards . The term of each Award shall be for such period as may be determined by the Committee.
(iv) Issuance of Units . The Units or other securities of the Partnership delivered pursuant to an Award may be evidenced in any manner deemed appropriate by the Committee in its sole discretion, including, without limitation, in the form of a certificate issued in the name of the Participant or by book entry, electronic or otherwise and shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the SEC, any securities exchange upon which such Units or other securities are then listed, and any applicable laws, and the Committee may cause a legend or legends to be inscribed on any certificates, if applicable, to make appropriate reference to such restrictions.
(v) Consideration for Grants . To the extent permitted by applicable law, Awards may be granted for such consideration, including services, as the Committee shall determine.
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(vi) Delivery of Units or other Securities and Payment by Participant of Consideration . Notwithstanding anything in the Plan or any Award Agreement to the contrary, subject to compliance with Section 409A, the Partnership shall not be required to issue or deliver any certificates or make any book entries evidencing Units pursuant to the exercise or vesting of any Award unless and until the Board or the Committee has determined, with advice of counsel, that the issuance of such Units is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any securities exchange on which the Units are listed or traded, and the Units are covered by an effective registration statement or applicable exemption from registration. In addition to the terms and conditions provided herein, the Board or the Committee may require that a Participant make such reasonable covenants, agreements, and representations as the Board or the Committee, in its discretion, deems advisable in order to comply with any such laws, regulations, or requirements. Without limiting the generality of the foregoing, the delivery of Units pursuant to the exercise or vesting of an Award may be deferred for any period during which, in the good faith determination of the Committee, the Partnership is not reasonably able to obtain or deliver Units pursuant to such Award without violating applicable law or the applicable rules or regulations of any governmental agency or authority or securities exchange. No Units or other securities shall be delivered pursuant to any Award until payment in full of any amount required to be paid pursuant to the Plan or the applicable Award Agreement (including, without limitation, any exercise price or tax withholding) is received by the General Partner. Such payment may be made by such method or methods and in such form or forms as the Committee shall determine, including, without limitation, cash, other Awards, withholding of Units, cashless broker exercises with simultaneous sale, or any combination thereof; provided that the combined value, as determined by the Committee, of all cash and cash equivalents and the Fair Market Value of any such Units or other property so tendered to the General Partner, as of the date of such tender, is at least equal to the full amount required to be paid to the General Partner pursuant to the Plan or the applicable Award Agreement.
(vii) Change of Control . If specifically provided in an Award Agreement, upon a change of control (as defined in the Award Agreement) the Award may automatically vest and be payable or become exercisable in full, as the case may be.
(viii) Substitute Awards . Awards may be granted under the Plan in substitution of similar awards held by individuals who are or who become Employees, Consultants or Directors in connection with a merger, consolidation or acquisition by the Partnership or one of its Affiliates of another entity or the securities or assets of another entity (including in connection with the acquisition by the Partnership or one of its Affiliates of additional securities of an entity that is an existing Affiliate of the Partnership). To the extent permitted by Section 409A, such substitute Awards that are Options or UARs may have exercise prices less than the Fair Market Value of a Unit on the date of the substitution.
(ix) Prohibition on Repricing of Options and UARs . Subject to the provisions of Section 4(c) and Section 7(c), the terms of outstanding Award Agreements may not be amended without the approval of the Partnerships unitholders so as to (A) reduce the Unit exercise price of any outstanding Options or UARs, (B) grant a new Option, UAR or other Award in substitution for, or upon the cancellation of, any previously granted Option or UAR that has the effect of reducing the exercise price thereof, (C) exchange any Option or UAR for
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Units, cash or other consideration when the exercise price per Unit under such Option or UAR exceeds the Fair Market Value of the underlying Units, or (iv) take any other action that would be considered a repricing of an Option or UAR under the listing standards of the New York Stock Exchange or, if the Units are not then-listed on such exchange, to the extent applicable, on any other national securities exchange on which the Units are listed. Subject to Section 4(c), Section 7(c) and Section 8(n), the Committee shall have the authority, without the approval of the Partnerships unitholders, to amend any outstanding Award to increase the per Unit exercise price of any outstanding Options or UARs or to cancel and replace any outstanding Options or UARs with the grant of Options or UARs having a per Unit exercise price that is equal to or greater than the per Unit exercise price of the original Options or UARs.
Section 7. Amendment and Termination . Except to the extent prohibited by applicable law:
(a) Amendments to the Plan . Except as required by applicable law or the rules of the principal securities exchange on which the Units are traded and subject to Section 7(b) below, the Board or the Committee may amend, alter, suspend, discontinue, or terminate the Plan in any manner, including increasing the number of Units available for Awards under the Plan, without the consent of any partner, Participant, other holder or beneficiary of an Award, or other Person.
(b) Amendments to Awards . Subject to Section 7(a), the Committee may waive any conditions or rights under, amend any terms of, or alter any Award theretofore granted (including, without limitation, requiring or allowing for an election to settle an Award in cash), provided no change, other than pursuant to Section 4(c) or Section 7(c), in any Award shall (i) materially reduce the benefit to a Participant without the consent of such Participant or (ii) cause such Award to fail to comply with the requirements of Section 409A (to the extent applicable).
(c) Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring Events . The Committee is hereby authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events (including, without limitation, the events described in Section 4(c)) affecting the Partnership or the financial statements of the Partnership, or of changes in applicable laws, regulations, or accounting principles, whenever the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or such Award; provided, however , that no such adjustment may be made that would cause the Plan or such Award to fail to comply with the requirements of Section 409A (to the extent applicable).
Section 8. General Provisions .
(a) No Rights to Award . No Person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Participants. The terms and conditions of Awards need not be the same with respect to each recipient.
(b) Tax Withholding . Unless other arrangements have been made that are acceptable to the General Partner or any of its Affiliates, the General Partner or any Affiliate of the General
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Partner is authorized to deduct, withhold, or cause to be deducted or withheld, from any Award, from any payment due or transfer made under any Award or from any compensation or other amount owing to a Participant the amount (in cash, Units, including Units that would otherwise be issued pursuant to such Award, or other property) of any applicable taxes payable in respect of the grant or settlement of an Award, its exercise, the lapse of restrictions thereon, or any other payment or transfer under an Award or under the Plan and to take such other action as may be necessary in the opinion of the General Partner or any Affiliate of the General Partner to satisfy its withholding obligations for the payment of such taxes. In the event that Units that would otherwise be issued pursuant to an Award are used to satisfy such withholding obligations, the number of Units that may be withheld or surrendered shall be limited to the number of Units that have a Fair Market Value on the date of withholding equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such supplemental taxable income.
(c) No Right to Employment or Service Relationship . The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the General Partner or any of its Affiliates, to continue providing consulting services, or to remain on the Board, as applicable. Furthermore, the General Partner or an Affiliate of the General Partner may at any time dismiss a Participant from employment or his or her service relationship, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan, any Award Agreement or other written agreement between any such entity and a Participant.
(d) Governing Law . The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware without regard to its conflict of laws principles.
(e) Severability . If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable law or, if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
(f) Other Laws . The Committee may refuse to issue or transfer any Units or other consideration under an Award if, in its sole discretion, it determines that the issuance or transfer of such Units or such other consideration might violate any applicable law or regulation, the rules of the principal securities exchange on which the Units are then traded, or entitle the Partnership or an Affiliate of the Partnership to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the General Partner by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder or beneficiary.
(g) No Trust or Fund Created . Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the General Partner or any Affiliate of the General Partner and a Participant or any other Person. To
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the extent that any Person acquires a right to receive payments from the General Partner or any Affiliate of the General Partner pursuant to an Award, such right shall be no greater than the right of any general unsecured creditor of the General Partner or such Affiliate.
(h) No Fractional Units . No fractional Units shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine in its sole discretion whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Units or whether such fractional Units or any rights thereto shall be canceled, terminated, or otherwise eliminated with or without consideration.
(i) Headings . Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision hereof.
(j) Facility Payment . Any amounts payable hereunder to any individual under legal disability or who, in the judgment of the Committee, is unable to properly manage his financial affairs, may be paid to the legal representative of such individual, or may be applied for the benefit of such individual in any manner that the Committee may select, and the General Partner, the Partnership and their respective Affiliates shall be relieved of any further liability for payment of such amounts.
(k) Participation by Affiliates . In making Awards to Employees employed by, or Consultants providing services to, an Affiliate of the General Partner, the Committee shall be acting on behalf of the Affiliate of the General Partner, and to the extent the Partnership has an obligation to reimburse the General Partner for compensation paid to Employees or Consultants for services rendered for the benefit of the Partnership, such reimbursement payments may be made by the Partnership directly to the Affiliate of the General Partner, and, if made to the General Partner, shall be received by the General Partner as agent for the Affiliate of the General Partner.
(l) Allocation of Costs . Nothing herein shall be deemed to override, amend, or modify any cost sharing arrangement, omnibus agreement, or other arrangement between the General Partner, the Partnership, and any of their respective Affiliates regarding the sharing of costs between such entities.
(m) Gender and Number . Words in the masculine gender shall include the feminine gender, the plural shall include the singular and the singular shall include the plural.
(n) Compliance with Section 409A . Nothing in the Plan or any Award Agreement shall operate or be construed to cause the Plan or an Award that is subject to Section 409A to fail to comply with the requirements of Section 409A. The applicable provisions of Section 409A are hereby incorporated by reference and shall control over any Plan or Award Agreement provision in conflict therewith or that would cause a failure of compliance thereunder, to the extent necessary to resolve such conflict or obviate such failure. Subject to any other restrictions or limitations contained herein, in the event that a specified employee (as defined under Section 409A) becomes entitled to a payment under an Award that constitutes a deferral of compensation (as defined under Section 409A) on account of a separation from service (as
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defined under Section 409A), to the extent required by the Code, such payment shall not occur until the date that is six months plus one day from the date of such separation from service. Any amount that is otherwise payable within the six-month period described herein will be aggregated and paid in a lump sum without interest.
(o) No Guarantee of Tax Consequences . None of the Board, the Committee, the Partnership nor the General Partner (i) provides or has provided any tax advice to any Participant or any other Person or makes or has made any assurance, commitment or guarantee that any federal, state, local or other tax treatment will (or will not) apply or be available to any Participant or other Person or (ii) assumes any liability with respect to any tax or associated liabilities to which any Participant or other Person may be subject.
(p) Clawback . To the extent required by applicable law or any applicable securities exchange listing standards, or as otherwise determined by the Committee, Awards and amounts paid or payable pursuant to or with respect to Awards shall be subject to the provisions of any applicable clawback policies or procedures adopted by the General Partner or the Partnership, which clawback policies or procedures may provide for forfeiture, repurchase and/or recoupment of Awards and amounts paid or payable pursuant to or with respect to Awards. Notwithstanding any provision of the Plan or any Award Agreement to the contrary, the General Partner and the Partnership reserve the right, without the consent of any Participant or beneficiary of any Award, to adopt any such clawback policies and procedures, including such policies and procedures applicable to the Plan or any Award Agreement with retroactive effect.
Section 9. Term of the Plan . The Plan shall be effective on the date on which it is adopted by the Board and shall continue until the earliest of (i) the date terminated by the Board or the Committee, (ii) the date that all Units available under the Plan have been delivered to Participants, or (iii) the 10th anniversary of the date on which the Plan is adopted by the Board. However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award granted prior to such termination, and the authority of the Board or the Committee under the Plan or an Award Agreement to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award, shall extend beyond such termination date.
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Exhibit 10.14
FORM OF
PHANTOM UNIT AGREEMENT
This Phantom Unit Agreement (this Agreement ) is made as of [ ] (the Grant Date ) between Westlake Chemical Partners GP LLC, a Delaware limited liability company (the General Partner ), and [ ] (the Director ) pursuant to the terms and conditions of the Westlake Chemical Partners LP Long-Term Incentive Plan (the Plan ). Capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings ascribed to such terms in the Plan, unless the context requires otherwise.
WHEREAS , the General Partner has adopted the Plan to, among other things, attract, retain and motivate certain directors, employees and consultants of the General Partner, Westlake Chemical Partners LP (the Partnership ) and their respective Affiliates (collectively, the Westlake Group ); and
WHEREAS , subject to the terms and conditions set forth in this Agreement and the Plan, the General Partner desires to grant to the Director on the terms and conditions set forth herein, and the Director desires to accept on such terms and conditions, the number of Phantom Units specified herein.
NOW, THEREFORE , the parties hereto, intending to be legally bound, hereby agree as follows:
1. Grant of Phantom Units . The General Partner hereby grants [ ] Phantom Units to the Director, effective as of the Grant Date, subject to all of the terms and conditions set forth in the Plan and in this Agreement (the Phantom Units ). The Director acknowledges receipt of a copy of the Plan, and agrees that the terms and provisions of the Plan, including any future amendments thereto, shall be deemed a part of this Agreement as if fully set forth herein. Unless and until a Phantom Unit vests pursuant to this Agreement, the Director will have no right to payment in respect of such Phantom Unit. Prior to settlement of a vested Phantom Unit, each Phantom Unit will represent an unsecured obligation, payable (if at all) only from the general assets of the Partnership. The Phantom Units granted pursuant to this Agreement do not and shall not entitle the Director to any rights of a holder of Units prior to the date, if any, on which Units are issued or recorded in book entry form on the records of the Partnership or its transfer agents or registrars, and delivered in certificate or book entry form to the Director or any Person claiming under or through the Director.
2. Distribution Equivalent Rights (DERs) . This grant of Phantom Units includes a tandem grant of DERs with respect to each Phantom Unit. Each DER granted hereunder shall remain outstanding from the Grant Date until the earlier of the payment or forfeiture of the Phantom Unit to which it corresponds. If the Partnership pays a cash distribution in respect of its outstanding Units and, on the record date for such distribution, the Participant holds Phantom Units granted pursuant to this Agreement that have not vested and been settled, then the Partnership shall pay to the Director, within 30 days following the record date of such distribution, an amount equal to the aggregate cash distribution that would have been paid to the Director if the Director were the record owner, as of the record date of such distribution, of a number of Units equal to the number of Phantom Units granted hereunder.
3. Vesting and Forfeiture of the Phantom Units .
(a) Vesting Schedule . The Phantom Units will vest on the third anniversary of the Grant Date (the Vesting Date ) so long as the Director continuously serves as a member of the Board from the Grant Date through the Vesting Date.
(b) Forfeiture . If, prior to the Vesting Date, the Directors membership on the Board terminates for any reason or no reason whatsoever, then all unvested Phantom Units and DERs granted hereunder then held by Director shall be automatically forfeited upon such termination.
4. Settlement of Phantom Units . As soon as administratively practicable after the vesting of a Phantom Unit, but not later than 30 days thereafter, the Director shall be issued one Unit in settlement of such Phantom Unit; provided, however, that the Committee may, in its sole discretion, direct that a cash payment be paid to the Director in lieu of the delivery of such Unit. Any such cash payment shall be equal to the Fair Market Value of a Unit on the date such Phantom Unit becomes vested.
5. Status of Units . The Phantom Units granted pursuant to this Agreement do not and shall not entitle the Director to any rights of a holder of Units prior to the date Units, if any, are issued to the Director in settlement of vested Phantom Units. Any Units that the Director acquires upon vesting and settlement of the Phantom Units may not be sold or otherwise disposed of in any manner that would constitute a violation of any applicable federal or state securities laws or the rules, regulations and other requirements of the SEC and any stock exchange upon which the Units are then listed. All certificates representing Units issued hereunder (and all Units issued pursuant to book entry procedures hereunder) may bear such legend or legends as the Committee deems appropriate in order to assure compliance with applicable securities laws. The General Partner and the Partnership may refuse to issue or deliver the Units acquired under this award if such proposed issuance or delivery would, in the opinion of counsel satisfactory to the General Partner, constitute a violation of any applicable securities law. In addition to the terms and conditions provided herein, the General Partner may require that the Director make such covenants, agreements, and representations as the Committee, in its sole discretion, deems advisable in order to comply with applicable laws, rules, regulations, or requirements.
6. Transferability and Assignment . This Agreement and the Phantom Units granted hereunder may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Director (or any permitted transferee) other than by will or the laws of descent and distribution. Any purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be null, void and unenforceable against the Westlake Group.
7. Tax Withholding . Upon any taxable event arising in connection with the Phantom Units, the General Partner shall have the authority and the right to deduct or withhold (or cause another member of the Westlake Group to deduct or withhold), or to require the Director to remit to the General Partner (or another member of the Westlake Group), an amount sufficient to satisfy all applicable federal, state and local taxes required by law to be withheld with respect to such event.
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8. General Provisions .
(a) Administration . This Agreement shall at all times be subject to the terms and conditions of the Plan. The Committee shall have sole and complete discretion with respect to all matters reserved to it by the Plan and all decisions of a majority of the Committee with respect thereto and this Agreement shall be final and binding upon the Director and the General Partner. In the event of any conflict between the terms and conditions of this Agreement and the Plan, the provisions of the Plan shall control.
(b) Tax Consultation . Neither the Board, the Committee nor any member of the Westlake Group has made any warranty or representation to the Director with respect to the income tax consequences of the grant, vesting or settlement of the Phantom Units or the DERs or the transactions contemplated by this Agreement, and the Director represents that the Director is in no manner relying on such entities or any of their respective managers, directors, officers, employees or authorized representatives (including attorneys, accountants, consultants, bankers, lenders, prospective lenders and financial representatives) for tax advice or an assessment of such tax consequences. The Director represents that the Director has consulted with any tax consultants that the Director deems advisable in connection with the Phantom Units.
(c) Successors . This Agreement shall be binding upon the Director, the Directors legal representatives, heirs, legatees and distributees, and upon the General Partner, its successors and assigns.
(d) No Liability for Good Faith Determinations . The General Partner, the Partnership and their Affiliates, and the members of the Board and the Committee, shall not be liable for any act, omission or determination taken or made in good faith with respect to this Agreement or the Phantom Units granted hereunder.
(e) Membership on the Board . Nothing in the adoption of the Plan, nor the grant of Phantom Units pursuant to this Agreement, shall confer upon the Director the right to continued membership on the Board or affect in any way the right of the General Partner to terminate such membership at any time. Any question as to whether and when there has been a termination of the Directors membership on the Board, and the cause of such termination, shall be determined by the Committee or its delegate, and its determination shall be final and conclusive for all purposes.
(f) Entire Agreement . This Agreement constitutes the entire agreement of the parties with regard to the subject matter hereof, and contains all the covenants, promises, representations, warranties and agreements between the parties with respect to the Phantom Units granted hereby. Without limiting the scope of the preceding sentence, all prior understandings and agreements, if any, among the parties hereto relating to the subject matter hereof are hereby null and void and of no further force and effect.
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(g) Governing Law . This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to conflicts of law principles thereof.
(h) Amendments, Suspension and Termination . This Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Board or the Committee (i) to the extent permitted by the Plan, (ii) to the extent necessary to comply with applicable laws and regulations or to conform the provisions of this Agreement to any changes thereto and/or (iii) to settle vested Phantom Units pursuant to all applicable provisions of the Plan. Except as provided in the preceding sentence, this Agreement cannot be modified, altered or amended, except by a written agreement signed by both the General Partner and the Director.
(i) Clawback . The Director acknowledges that the Phantom Units granted and the Units (if any) issued hereunder are subject to clawback as provided in Section 8(p) of the Plan.
(j) Consent to Electronic Delivery; Electronic Signature . In lieu of receiving documents in paper format, the Director agrees, to the fullest extent permitted by law, to accept electronic delivery of any documents that any member of the Westlake Group may be required to deliver (including, without limitation, prospectuses, prospectus supplements, grant or award notifications and agreements, account statements, annual and quarterly reports, and all other forms of communications) in connection with this and any other award made or offered by the General Partner under the Plan. Electronic delivery may be made via the electronic mail system of the General Partner or one of its Affiliates or by reference to a location on an intranet site to which the Director has access. The Director hereby consents to any and all procedures the General Partner has established or may establish for an electronic signature system for delivery and acceptance of any such documents that the General Partner may be required to deliver, and agrees that the Directors electronic signature is the same as, and shall have the same force and effect as, the Directors manual signature.
(k) Code Section 409A . Neither the Phantom Units nor any amounts payable pursuant to this Agreement are intended to constitute or provide for a deferral of compensation that is subject to Section 409A. Notwithstanding the foregoing, the General Partner makes no representations that the payments and benefits provided under this Agreement are exempt from Section 409A and in no event shall the General Partner be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Director on account of non-compliance with Section 409A.
[Remainder of Page Intentionally Blank;
Signature Page Follows]
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IN WITNESS WHEREOF , the General Partner has caused this Agreement to be executed by its duly authorized officer and the Director has executed this Agreement as of the day of , 20 , effective for all purposes as provided above.
WESTLAKE CHEMICAL PARTNERS GP LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
DIRECTOR | ||||
[Insert name of Director] |
S IGNATURE P AGE TO
P HANTOM U NIT A GREEMENT
Exhibit 10.15
FORM OF
INTERCOMPANY INTELLECTUAL PROPERTY TRANSFER AGREEMENT
This Intercompany Intellectual Property Transfer Agreement (this Agreement ), is entered into and effective as of (the Effective Date ), by and between Westlake Management Services, Inc. ( Services ) and Westlake Chemical OpCo LP ( OpCo ), each a Party and collectively the Parties .
In connection with the Services and Secondment Agreement by and among the Parties, Westlake Vinyls, Inc., WPT LLC and Westlake Petrochemicals LLC, dated (as amended, modified or supplemented from time to time (the Services and Secondment Agreement ), the Parties desire to evidence their understanding, as more fully set forth in this Agreement with respect to the assignment and licensing of certain technical information and intellectual property.
Therefore, the Parties agree as follows:
1. DEFINITIONS
(a) Capitalized terms not otherwise defined herein shall have the meaning set forth in the Services and Secondment Agreement.
(a) Books and Records means all records in whatever form or media, whether paper, written, electronic or otherwise, whether created or generated in whole or in part on, before, or after the Effective Date, that are related to the business or operations of OpCo, including computer programs, source code, object code, data, databases, manuals, customer and supplier lists, engineering drawings and files, operating manuals, emails, letters, memoranda, contracts, process designs, operating records, engineering studies, flow diagrams, accounting records, environmental, health and safety records.
(b) Confidential Information shall mean all confidential, proprietary or non-public information of a Party, in whatever form or media, whether paper, written, electronic, orally disclosed, or otherwise, whether created or generated in whole or in part on, before, or after the Effective Date, including all information and materials of such Party (and of third parties with which such Party has entered into confidentiality agreements) that one Party discloses or provides access to the other Party, including information regarding products, processes, business strategies and plans, customer lists, research and development programs, computer programs, hardware configuration information, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), trade secrets, schematics and other technical, business, marketing and product development plans, revenues, expenses, earnings projections, forecasts, strategies, and other non-public business, technological, and financial information. Confidential Information created or generated by Services in connection with providing services to OpCo shall be deemed the Confidential Information of OpCo, not Services.
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(c) Intellectual Property means any and all proprietary and intellectual property rights, under the law of any jurisdiction, including both statutory and common law rights, whether acquired, authored, invented, discovered, created, generated or otherwise developed in whole or in part on, before, or after the Effective Date, and including; (i) utility models, supplementary protection certificates, statutory invention registrations, patents and applications for same, and extensions, divisions, continuations, continuations-in-part, reexaminations, and reissues thereof; (ii) copyrights, moral rights, other rights in works of authorship and registrations and applications for registration of the foregoing; and (iii) rights in trade secrets, know-how, and rights in confidential information, including designs, concepts, compilations of information, methods, techniques, procedures, processes, whether or not patentable or copyrightable. For the purposes of this Agreement, Intellectual Property shall not include any trademarks, service marks, trade names, slogans, domain names, logos, or trade dress (including any goodwill associated with the foregoing), nor any registrations or applications for registrations thereof.
(d) Licensed Intellectual Property means any Intellectual Property owned by or licensed by a third party to Services on, before, and after the Effective Date.
(e) Developed Intellectual Property means any Intellectual Property acquired, authored, invented, discovered, created, generated, or otherwise developed by employees or contractors of Services in connection with providing services to OpCo, whether on, before or after the Effective Date.
(f) Transferred Intellectual Property shall mean the Licensed Intellectual Property and the Developed Intellectual Property.
2. GRANT
(a) Services hereby assigns, conveys, and transfers to OpCo, and OpCo hereby accepts such assignment, conveyance, and transfer of, Servicess entire right, title, and interest in and to the Developed Intellectual Property, together with the right to sue for and recover damages, lost profits, and relief for, any and all past, present, and future infringement, misappropriation, and/or violation of any rights in any of the Developed Intellectual Property.
(b) (i) Subject to the terms and conditions of this Agreement, and to the extent that Services may do so, Services hereby grants to OpCo, and OpCo hereby accepts, a worldwide, non-exclusive, royalty-free, fully paid-up, perpetual and irrevocable license and right under the Licensed Intellectual Property to use the same in connection with OpCos business and operations, including without limitation the right and license to make, have made, use, sell, offer for sale, and/or import into the United States any machines, products, compositions of matter, articles of manufacture, and to practice or perform any methods or processes, copy, distribute, prepare derivative works from, and publicly perform and display any and all works of authorship, and otherwise use, disclose and exploit any or all of the Licensed Intellectual Property in any manner whatsoever as deemed reasonably necessary by OpCo for its business or operations. (ii) To the extent that Services may not grant a license to any items of Licensed Intellectual Property to the full extent of the license set forth in Section 2(b)(i), Services hereby grants to OpCo, subject to the terms and conditions of this Agreement, and OpCo hereby accepts, a license under such items of the Licensed Intellectual Property to the fullest extent that Services may grant such licenses.
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(c) Subject to the terms and conditions of this Agreement, and to the extent that OpCo may do so, OpCo hereby grants to Services, and Services hereby accepts, the right to grant a sublicense to each Westlake Entity which has granted to Services a license with the right to grant to OpCo a sublicense that is substantially of the same scope as the license granted by Services in Section 2(b)(i) or 2(b)(ii) above, with such sublicense being a worldwide, non-exclusive, royalty-free, fully paid-up, perpetual and irrevocable sublicense and right under the Developed Licensed Intellectual Property to use the same in connection with such Westlake Entitys business and operations, including without limitation the right and license to make, have made, use, sell, offer for sale, and/or import into the United States any machines, products, compositions of matter, articles of manufacture, and to practice or perform any methods or processes, copy, distribute, prepare derivative works from, and publicly perform and display any and all woks of authorship, and otherwise use, disclose and exploit any or all of the Licensed Intellectual Property in any manner whatsoever as deemed reasonably necessary by such Westlake Entity for its business or operations.
3. DELIVERY; CONFIDENTIALITY
(a) Services shall promptly deliver copies of the Books and Records and the Transferred Intellectual Property, as applicable, to OpCo in a format acceptable to OpCo upon OpCos request. Each Party shall retain ownership of its Confidential Information notwithstanding any disclosures, use, or licenses as set forth in this Agreement.
(b) Each Party shall use reasonable efforts to retain the other Partys Confidential Information in confidence and not disclose the same to any third party nor use the same, except as authorized by the disclosing Party in writing or as expressly permitted in this Agreement. Each Party further agrees to take the same care with the other Partys Confidential Information as it does with its own, but in no event less than a reasonable degree of care. Confidential Information shall not include any information which:
(i) is available, or becomes available, to the general public without fault of the receiving Party;
(ii) was in the possession of the receiving Party on a non-confidential basis prior to receipt of the same from the disclosing Party;
(iii) is obtained by the receiving Party without an obligation of confidence from a third party who is rightfully in possession of such information and, to the receiving Partys knowledge, is under no obligation of confidentiality to the disclosing Party; or
(iv) is independently developed by the receiving Party without reference to or use of the disclosing Partys Confidential Information.
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(c) Notwithstanding Section 3(b), if the receiving Party becomes legally compelled to disclose, or is required to disclose by applicable law, by subpoena or other legal process, any of the disclosing Partys Confidential Information, the receiving Party shall promptly advise the disclosing Party of such requirement to disclose Confidential Information, in order that, where possible, the disclosing Party may seek a protective order or such other remedy as the disclosing Party may consider appropriate in the circumstances. The receiving Party shall disclose only that portion of the disclosing Partys Confidential Information that it is required to disclose.
(d) Upon written request by the disclosing Party, all of the disclosing Partys Confidential Information in whatever form shall be returned to the disclosing Party or destroyed upon termination of this Agreement, without the receiving Party retaining copies thereof except that one copy of all such Confidential Information may be retained by a Partys legal department solely to the extent that such Party is required to keep a copy of such Confidential Information for its records. Notwithstanding the foregoing, nothing in this Agreement shall require a Party to erase, reformat, or destroy any hard drives or any backups of computer systems made in the ordinary course of its business.
(e) The receiving Party shall limit access to the Confidential Information of the disclosing Party to those of its employees and contractors that have a need to know such information in order for the receiving Party to exercise or perform its rights and obligations under this Agreement or the Services and Secondment Agreement (the Receiving Party Personnel ). The Receiving Party Personnel who have access to any Confidential Information of the disclosing Party shall be made aware of the confidentiality provisions of this Agreement, and will be required to abide by the terms thereof. Any third party contractors of a receiving party that are given access to Confidential Information of a disclosing Party pursuant to the terms hereof shall be required to sign a written agreement pursuant to which such Receiving Party Personnel agree to be bound by the provisions of this Agreement, which written agreement will expressly state that it is enforceable against such Receiving Party Personnel by the disclosing Party.
4. BOOKS AND RECORDS. Services retains title to all tangible and electronic or digital copies of the Books and Records, including all rights of copyright in and to such Books and Records. Services may retain and use, copy, distribute, or modify the Books and Records in furtherance of Servicess providing services to OpCo. Services may retain copies of the Books and Records after termination of this Agreement for documentation purposes only and to the extent reasonably necessary for purposes of exploiting the right and licenses granted to Services herein. Upon OpCos request, Services shall promptly provide to OpCo in a timely manner copies of the Books and Records and all associated updates to the same. Upon termination of the Services and Secondment Agreement, Services shall deliver to OpCo at a location to be designated by OpCo, current and complete copies of all Books and Records.
5. RELATIONSHIP TO SERVICES AND SECONDMENT AGREEMENT
(a) With respect to the Transferred Intellectual Property, to the extent of any conflict between the provisions of this Agreement and the Services and Secondment Agreement, the provisions of this Agreement will control.
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(b) Other than as expressly set forth in this Agreement, the rights and obligations of the Parties pursuant to the Services and Secondment Agreement are not affected, enlarged, or diminished by this Agreement.
6. MISCELLANEOUS
(a) Amendments . The written provisions contained in this Agreement, together with the Services and Secondment Agreement, constitute the entire agreement between the Parties with respect to the subject matter hereof and constitute the sole and entire agreement made between the Parties concerning the Transferred Intellectual Property and supersedes and cancels all prior and contemporaneous negotiations, representations, understandings or agreements, whether written or oral. Any modifications of this Agreement shall not be valid unless made in writing and signed by both Parties.
(b) Waiver . The waiver by either Party of a breach of any provision of this Agreement by the other Party shall not operate or be construed as a waiver of any other or subsequent breach by that Party.
(c) Notices . All notices permitted or required to be given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person, or upon receipt, if deposited in the United States mail, postage prepaid, certified mail, return receipt requested, to the following addresses, or to such address as the Parties may provide to each other in writing from time to time:
Notices to Services:
Westlake Management Services, Inc.
2801 Post Oak Boulevard, Suite 600
Houston, Texas 77056
Attention: General Counsel
Attn:
Notices to OpCo:
Westlake Chemical OpCo LP
c/o Westlake Chemical OpCo GP LLC
2801 Post Oak Boulevard, Suite 600
Houston, Texas 77056
Attention: General Counsel
Attn:
(d) Term . The term of this Agreement shall begin on the Effective Date and shall continue thereafter for so long as the Services and Secondment Agreement remains in effect, except that either Party may terminate this Agreement upon ninety (90) days prior written notice to the other Party. Notwithstanding the earlier expiration or termination of this Agreement, Sections 2, 3(b)-3(e), 4, 5, and 6 of this Agreement shall survive and remain binding and effective, and any licenses and sublicenses granted by or granted in accordance with this Agreement shall survive and remain binding and effective.
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(e) Independent Contractors . The Parties agree that they are independent contractors and not agents or legal representatives of each other.
(f) Interpretation . The Parties acknowledge and agree that the terms and conditions of this Agreement, including those relating to allocations of, releases from, exclusions against and limitations of liability, have been freely and fairly negotiated. Each Party acknowledges that in executing this Agreement it has relied solely on its own judgment, belief, and knowledge, and such advice as it may have received from its own counsel, and it has not been influenced by any representation or statements made by the other Party or its counsel. No provision in this Agreement is to be interpreted for or against any Party because that Party or its counsel drafted such provision. The Parties agree to look solely to each other with respect to performance of this Agreement. Services may have portions of its obligations performed by its affiliates or their employees, in which event Services shall be responsible for and OpCo shall look solely to Services as if such obligations were performed by Services hereunder.
(g) Severability . In the event that any portion or all of this Agreement is held to be void or unenforceable, the Parties agree to negotiate in good faith to amend the commercial and other terms of this Agreement in order to effect the intent of the Parties as set forth in this Agreement.
(h) Construction . If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb). Terms defined in the singular have the corresponding meanings in the plural, and vice versa. Unless the context of this Agreement clearly dictates otherwise, words importing the masculine gender shall include the feminine and neutral genders and vice versa. The terms include, includes or including shall mean including without limitation. The words hereof, hereto, hereby, herein, hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular section or article in which such words appear. The headings in this Agreement are for convenience only and will not be considered a part of or affect the construction or interpretation of any provision of this Agreement.
(i) Assignment . OpCo has the right to assign or transfer this Agreement (or any of its rights and obligations hereunder) to any person or entity. Services shall not assign or transfer this Agreement, in whole or part, without OpCos prior written consent, which shall not be unreasonably withheld, provided , however , Services may assign this Agreement in whole to an affiliate of Services without such consent. Any purported assignment or transfer of this Agreement, in whole or part, other than as set forth in this Section 6(i) shall be null and void.
(j) Disputes . Any dispute arising out of or in connection with this agreement or its performance, including but not limited to its validity, construction, interpretation or enforcement shall to the extent possible be settled amicably by negotiation between the Parties. The state and federal courts situated in Houston, Texas shall have exclusive jurisdiction and venue over any and all controversies and disputes arising out of or related to this Agreement or its breach.
(k) Governing Law . This Agreement shall be governed by the laws of the State of Texas, exclusive of any provisions thereof which reference the laws of other states or jurisdictions.
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(l) Counterparts . This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which, taken together, shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile (or other commonly-used electronic means (e.g., e-mailed PDF)) shall be effective as delivery of a manually executed counterpart of this Agreement.
( Signature page follows. )
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This Agreement has been signed by the duly authorized representatives of the Parties as of the Effective Date.
Westlake Management Services, Inc. | Westlake Chemical OpCo LP | |||||||
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