Exhibit 10.1
EXECUTION VERSION
MARKETING SERVICES AGREEMENT
This Marketing Services Agreement (this “Agreement”) is entered into as of June 28, 2021 (“Effective Date”) by and between USD Clean Fuels LLC, a Delaware limited liability company (“USDCF”) and West Colton Rail Terminal LLC, a Delaware limited liability company (“WCRT”). USDCF and WCRT are individually referred to herein as a “Party” and collectively as the “Parties”.
RECITALS:
(A) WCRT operates that certain rail offloading facility in West Colton, California (the “West Colton Terminal”) (the provision of rail transloading services at the West Colton Terminal, together with any expansions of those operations in accordance with the terms of this Agreement, are herein collectively referred to as the “Terminalling Services”);
(B) The West Colton Terminal is located on property leased by WCRT from Union Pacific Railroad Company (“Lessor”) pursuant to a certain Lease of Property (Industrial Lease – Unimproved – Year to Year) dated July 17, 2009, between Lessor and WCRT, as lessee, as amended and supplemented by Supplemental Agreements dated November 16, 2009, December 22, 2009 and April 11, 2013 (collectively and as amended from time to time, the “Lease”);
(C) Concurrently with this Agreement, WCRT has entered into a terminal services agreement (“WCRT TSA”) with USDCF to make available Terminalling Services at the West Colton Terminal for a specified minimum barrels of renewable diesel throughput per month (“WCRT Commitment”) at the West Colton Terminal until the termination date as set forth in the WCRT TSA, as such period may be extended or earlier terminated pursuant to the terms of the WCRT TSA (“WCRT TSA End Date”);
(D) WCRT desires that USDCF market, on an exclusive basis, the Terminalling Services available at the West Colton Terminal only with respect to renewable diesel opportunities in excess of the WCRT Commitment, and USDCF is willing to provide such renewable diesel marketing services, all in accordance with the terms and conditions of this Agreement; and
(E) WCRT desires to grant USDCF, on an exclusive basis, certain development rights with respect to the West Colton Terminal, all in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, IT IS AGREED between the Parties as follows:
1. Appointment; Scope of Services
1.1 WCRT hereby designates and appoints USDCF as the exclusive marketer of, and USDCF hereby accepts such appointment to market, the Available Services at the West Colton Terminal pursuant and subject to the terms and conditions set forth in this Agreement. “Available Services” means:
(a) the available Terminalling Services at the West Colton Terminal only with respect to renewable diesel opportunities in excess of the WCRT Commitment from the Effective Date until the WCRT TSA End Date; and
(b) the total Terminalling Services available only with respect to renewable diesel opportunities following the WCRT TSA End Date at the West Colton Terminal.
WCRT shall update USDCF from time to time on the un-contracted quantity of Available Services. For the avoidance of doubt, in no event shall the Available Services include Terminalling Services or any other services with respect to ethanol.
1.2 USDCF shall use commercially reasonable efforts to perform this Agreement to maximize the Available Services sold, which must be on the following terms:
(a) except in the case of spot sales or transactions having a term no greater than one (1) month, the counterparty must commit to a minimum monthly throughput quantity or minimum throughput payment;
(b) any deficiency from the minimum throughput quantity or minimum throughput payment must expire no later than six (6) months following the month in which the deficiency is accrued; and
(c) such other terms and conditions as set forth in the WCRT TSA, as may be revised and updated from time to time by WCRT.
1.3 USDCF shall provide all reasonable details on any proposed transaction it presents to WCRT to enable WCRT to effectuate such proposed transaction, including any capital improvements or modifications required at the West Colton Terminal in connection with such proposed transaction. WCRT shall be obligated to accept any proposed transaction meeting the criterion set forth in Section 1.2 above and that is otherwise in compliance with this Agreement.
1.4 In connection with any proposed transaction meeting the criterion set forth in Section 1.2, if USDCF executes a definitive agreement with the associated counterparty (any such definitive agreement, a “Confirmed TSA”, and any such counterparty to a Confirmed TSA, a “Confirmed Counterparty”), then WCRT and USDCF shall enter into a back-to-back agreement (“B2B TSA”) in relation to such Confirmed TSA, with such B2B TSA varying only with respect to the base throughput fee, in accordance with Section 2.1. For the avoidance of doubt, the WCRT TSA is not a B2B TSA.
1.5 On or prior to the Effective Date, USDCF shall deliver to WCRT, and shall thereafter maintain throughout the Development Term, a guaranty of US Development Group, LLC (“USDG”) in the form attached hereto as Exhibit A (the “USDG Guaranty”). If at any time during the Development Term there occurs either (a) a change in ownership (direct or indirect) of USDG or (b) a sale or transfer of all or substantially all of USDG’s assets, in each case pursuant to which USDG no longer owns or controls, directly or indirectly, a majority of the ownership or voting interests of USDCF, then upon such transaction USDCF shall deliver to WCRT and shall thereafter maintain a replacement guaranty from an entity and in form and substance reasonably satisfactory to WCRT.
2. Compensation and Expenses
2.1 As full compensation for USDCF marketing the Available Services:
(a) With respect to any Confirmed TSA executed by USDCF, USDCF shall retain any and all compensation received by it under each Confirmed TSA after any payment to WCRT under the associated B2B TSA, which shall conform with the following:
(i) from the Effective Date of this Agreement through the date on which the Initial Term (as defined in the WCRT TSA) of the WCRT TSA terminates or expires (such date, the “WCRT TSA Initial Term End Date”), the throughput fee assessed by WCRT in any B2B TSA shall be at least equal to the Estimated Incremental Operating Expenses with respect to such B2B TSA; and
(ii) from and after the WCRT TSA Initial Term End Date, the per-barrel throughput fee assessed by WCRT in any B2B TSA per month shall be the full per-barrel fee assessed under each Confirmed TSA until the aggregate of such fees result in Adjusted EBITDA of an amount in United States dollars per month for the term of such Confirmed TSA equivalent to the average Adjusted EBITDA per month assessed by WCRT under the WCRT TSA during the twelve (12) months prior to the WCRT TSA Initial Term End Date (the “EBITDA Floor”), and thereafter the per-barrel throughput fee assessed by WCRT in any B2B TSA per month shall be at least equal to the Estimated Incremental Operating Expenses associated with such volume (on a per-barrel basis). The EBITDA Floor shall be adjusted effective August 1 of each year during the Development Term, commencing on August 1 of the year following the year during which the WCRT TSA Initial Term End Date occurs, by adjusting the EBITDA Floor in effect immediately prior to such adjustment effective date for 100% of any percentage increase in the annual average all-items consumer price index for the South Region (overall index), as published by the United States Bureau of Labor Statistics relative to the immediately prior calendar year). For purposes of this Agreement, the term “Adjusted EBITDA” shall be calculated based on the same methodology as USD Partners LP, the parent entity of WCRT, calculates “Consolidated EBITDA” for purposes of its Amended and Restated Credit Agreement, dated as of November 2, 2018, among USD Partners LP and USD Terminals Canada ULC, as Borrowers, Citibank, N.A. as Administrative Agent, Swing Line Lender and L/C Issuer, U.S. Bank National Association and Bank of Montreal, as L/C Issuers and the other lenders and agents party thereto, as amended, restated, modified, renewed, refunded, replaced or refinanced from time to time (the “Credit Agreement”) and allocating cost and expenses on the greater of contracted or actual volume throughput under each contract existing during such 12-month period. If such Credit Agreement is terminated without being amended, restated, modified, renewed, refunded, replaced or refinanced, or if the Credit Agreement is amended, modified, renewed, refunded replaced or refinanced and as modified, does not include a methodology for calculating the Adjusted EBITDA, then the Adjusted EBITDA shall thereafter and for the balance of the remaining Development Term be calculated as set forth in such Credit Agreement immediately prior to such termination or other modification.
(iii) For purposes of this Agreement, the term “Estimated Incremental Operating Expenses” with respect to any B2B TSA shall mean WCRT’s estimate, determined in good faith and utilizing commercially reasonable efforts to mitigate such costs, of the incremental operating costs, calculated on a per-barrel basis, necessary to be incurred by WCRT in order to perform under such B2B TSA. With respect to any B2B TSA with a term of greater than one year (including as a result of exercising renewal options), WCRT shall set the Estimated Incremental Operating Expenses not more frequently than annually. With respect to any B2B TSA with a term of less than one year, WCRT shall
determine the Estimated Incremental Operating Expenses one time at commencement. WCRT shall calculate its estimate of Estimated Incremental Operating Expenses by excluding the operating expenses associated with the WCRT TSA and all B2B TSAs or Confirmed TSAs then in effect. Estimated Incremental Operating Expenses shall also exclude all corporate overhead and any other selling, general or administrative expenses in accordance with Generally Accepted Accounting Principles then in effect, or any other similar expenses not directly associated with the operation of the West Colton Terminal and the relevant B2B TSA. Following written request from USDCF, WCRT shall promptly provide USDCF, in writing, with all information and other support reasonably necessary for USDCF to validate WCRT’s compliance with this Section 2.1(a)(iii) with respect to WCRT’s calculations of Estimated Incremental Operating Expenses.
(b) With respect to any Confirmed TSA executed directly by WCRT, WCRT shall retain only that portion of the compensation received by it under each Confirmed TSA equivalent to the payment(s) it would have received from USDCF under a B2B TSA pursuant to Section 2.1(a) had USDCF executed the Confirmed TSA and entered into a B2B TSA with WCRT in connection therewith, and shall pay the balance of the compensation received by it under such Confirmed TSA to USDCF.
2.2 If any proposed transaction requires a capital improvement or modification to the West Colton Terminal, then USDCF shall also pay the costs of such capital improvement or modification directly or shall reimburse WCRT for such costs as they are incurred by WCRT. Any such improvements or modifications to the West Colton Terminal will become the sole property of WCRT.
2.3 Subject to the terms of this Agreement, all payment obligations between WCRT and USDCF with respect to this Agreement shall be addressed in each B2B TSA.
2.4 USDCF and WCRT shall each be solely responsible for any costs and expenses incurred by it in the performance of this Agreement, except to the extent otherwise provided in Section 3.2(e).
2.5 USDCF shall be responsible for all taxes with respect to any payments from WCRT under this Section 2.
3. Exclusive Development Rights
3.1 The Parties agree that during the Initial Term and any Renewal Term (collectively, the “Development Term”), USDCF shall have the exclusive right to develop, own and operate any additional improvements or businesses at the West Colton Terminal or any portion of the property thereof other than any improvements or businesses existing as of the Effective Date and the provision of the Terminalling Services (collectively, “Development Projects”), provided that no Development Project may materially interfere with the provision by WCRT of any then-existing Terminalling Services and that such Development Project shall not violate the terms and conditions of the Lease. WCRT shall not, and shall not permit any other person or entity during the Development Term, to develop, construct or install any facilities or other improvements at the West Colton Terminal or any portion of the property thereof (other than the development, construction or installation of any facilities or other improvements related to the Terminalling Services by WCRT) without the prior written approval of USDCF, which approval maybe given
or withheld in the sole and absolute discretion of USDCF, and if applicable, the prior written approval of the Lessor.
3.2 In the event that USDCF desires to exercise its right to commence a Development Project at the West Colton Terminal pursuant to this Section 3, WCRT agrees and covenants to cooperate in good faith with USDCF in connection with each such Development Project and, without in any way limiting the foregoing and in each case subject to compliance with the terms and conditions of the Lease, the following shall apply:
(a) WCRT shall sell, lease, grant an easement or otherwise convey to USDCF, its Affiliates, its customers and/or any other third parties, on reasonable and arms-length terms and for reasonable and arms-length consideration, the rights to, or to use, those portions of the West Colton Terminal necessary for the development, ownership and operation of such Development Project, including, without limitation, permanent and/or temporary easements, access rights and development and use rights (the “Easements and Related Rights”) in, on, over, under and across the West Colton Terminal in connection with such Development Project, including, but not limited to, easements and related rights for access (including vehicle road access), rail purposes, utilities, drainage and storm water retention facilities, construction and grading (including for slopes and roads), aerial easements and for other general use purposes as necessary to support the commencement, completion and operation of such Development Project to or for the benefit of USDCF or such other third parties as USDCF shall reasonably request, provided that the location and terms of such Easements and Related Rights shall not materially interfere with the provision by WCRT of the Terminalling Services;
(b) In order to further implement the purpose and intention of this Agreement, prior to the commencement of any site work with respect to such Development Project, the Parties shall, each acting reasonably, timely and in good faith and in accordance with industry practice and custom, negotiate the terms of and enter into appropriate construction, reciprocal easement, joint use and operation, shared facilities or similar agreement(s) pertaining to the development, construction, operation and/or use of such Development Project and the West Colton Terminal;
(c) In the event that any portion of the West Colton Terminal is damaged by any site work being performed by USDCF pursuant to the rights granted to USDCF hereunder, USDCF shall promptly repair or replace the same at USDCF’s sole cost and expense;
(d) In the event that WCRT determines that USDCF is subjecting any such improvements to excess wear and tear, WCRT shall have the right to charge USDCF reasonable costs related to USDCF’s use of any such improvements;
(e) USDCF shall indemnify, defend and hold harmless WCRT and its Affiliates and their respective officers, directors, employees, owners and agents from and against all claims arising out of the performance or completion of any such Development Project, and against any and all claims by any third party for loss, liability, damage, cost or expense arising out of WCRT’s operation of the West Colton Terminal to the extent related to any B2B TSA and not caused by WCRT’s gross negligence or willful misconduct;
(f) WCRT covenants and agrees to cooperate with USDCF and to use commercially reasonable efforts to cause the Lessor and any mortgagee or lender holding a superior lien on the West Colton Terminal to approve any property or other rights granted by WCRT to USDCF and agreements entered into pursuant to this Agreement, in each case to the extent required by the terms of the Lease or the related loan documents, and to attorn Lessor’s rights and to subordinate such mortgagee’s or lender’s lien to the rights and obligations granted thereunder; and
(g) USDCF shall be fully responsible for removal of all improvements, structures, property and other materials placed on the West Colton Terminal as a result of any Development Project and shall restore the surface of the property so affected by such Development Project to as good a condition as the same was in before USDCF installed or erected any applicable improvement, structure, property and other material placed on the West Colton Terminal as a result of any Development Project, all in compliance with the vacation of premises and removal and restoration of property provisions of the Lease.
3.3 Nothing in this Section 3 shall prevent WCRT from developing, constructing or installing improvements to the West Colton Terminal to maintain the provision of the Terminalling Services.
4. Term
4.1 This Agreement shall enter into force on the Effective Date and continue for a period of fifteen (15) years (“Initial Term”). Following the Initial Term, this Agreement shall automatically renew for one period of five (5) years (the “Renewal Term”), unless USDCF provides written notice of cancellation to WCRT at least thirty (30) days in advance of the end of the Initial Term that it does not wish to renew the term of this Agreement.
4.2 If at any time the Lease expires or is terminated, this Agreement shall terminate.
5. Relationship of the Parties
5.1 USDCF is and shall at all times remain an independent contractor of WCRT, and this Agreement shall not be construed to create any association, partnership, joint venture, employment or agency relationship between USDCF and WCRT for any purpose. USDCF shall not have the authority (and shall not act, represent or hold itself out as having authority) to act as an agent or partner of WCRT or otherwise to bind or commit WCRT or any of its Affiliates to any obligation, contract, agreement or other legal commitment, or to pledge or extend credit in the name or on behalf of WCRT. USDCF’s business is completely separate from WCRT’s business and this Agreement in no way merges or integrates the two businesses.
5.2 For purposes of this Agreement, an “Affiliate” means, with respect to a Party, any entity which: (a) controls, either directly or indirectly, such Party; (b) is controlled, directly or indirectly, by such Party; or (c) is directly or indirectly controlled by an entity which directly or indirectly controls such Party, where “control” means the direct or indirect ownership interest of more than fifty percent (50%) of the outstanding capital stock or other equity interests having ordinary voting power with respect to the management of such Party or entity.
6. Confidentiality
The Parties agree to maintain the confidentiality of, and prevent the unauthorized use or disclosure of, (a) the terms and conditions of this Agreement and (b) all information provided by it to the other hereunder in the performance of this Agreement. Notwithstanding the foregoing, USDCF shall be permitted to disclose the existence of this Agreement to potential counterparties in the performance of marketing services hereunder. Confidential information excludes information that was independently developed by the receiving Party without reference to or knowledge of the disclosing Party’s confidential information, information that was known to the receiving Party prior to disclosure by the disclosing Party and that is free from any obligation to keep it confidential, information that is within the public domain through no action on the part of the receiving Party, and information that was received from a third party who was under no obligation to keep such information confidential.
7. Representations and Warranties
Each Party hereby represents and warrants to the other that:
(a) the execution, delivery and performance by it of this Agreement have been duly authorized by all necessary corporate action and it has been validly executed and delivered;
(b) this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms;
(c) the execution and performance of this Agreement do not and will not conflict with or result in any breach or default under any other contract or agreement to which it is subject or a party; and
(d) it shall perform this Agreement in compliance with all applicable federal, state, and local laws and regulations.
8. Limitation of Liabilities
To the fullest extent permitted by law, neither Party shall be liable to the other Party for any indirect, incidental or consequential loss or damage or any exemplary or punitive damages, resulting from any act or omission of the breaching Party hereunder or related to the performance of or breach of this Agreement, whether in contract, tort or otherwise. The total aggregate liability of WCRT in connection with this Agreement, whether arising out of or relating to breach of contract, tort, or otherwise, is limited to the aggregate throughput fees paid to WCRT under the B2B TSAs in accordance with the terms of this Agreement; provided that the foregoing limitation on maximum liability does not apply to amounts resulting from WCRT’s gross negligence or willful misconduct.
9. Assignment
A Party may not assign this Agreement in whole or in part without the prior written consent of the other Party; provided that a Party may (on prior written notice to, but without the consent of the other Party) assign this Agreement in whole or in part to an Affiliate of such Party that has the technical capability, financial wherewithal and physical assets and infrastructure necessary to perform its obligations under this Agreement and provided that upon any such assignment by
USDCF to an Affiliate, either (x) the USDG Parent Guaranty is simultaneously assigned to such Affiliate as the Guaranteed Party (as defined therein), in accordance with the terms thereof, or (y) such Affiliate provides a replacement guaranty in form and substance satisfactory to WCRT in its sole discretion. Any assignment made in violation of this Section 9 shall be null and void ab initio. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
10. No Subcontracting
Neither USDCF’s performance under this Agreement, nor any of USDCF’s rights or obligations under this Agreement, shall be subcontracted or delegated by USDCF to a non-Affiliate of USDCF without WCRT’s prior written consent.
11. Miscellaneous
11.1 Any expiration or termination of this Agreement shall be without prejudice to any rights, remedies, powers, obligations and liabilities in respect of this Agreement that accrued at or prior to such expiry or termination. Sections 6 (for an additional one year period), 8, 10 and 11 shall survive termination of this Agreement for any reason.
11.2 Any notice provided for in this Agreement must be in writing and must be either personally delivered, mailed by first class mail (postage prepaid and return receipt requested), e-mailed with confirmation of transmittal or receipt, or sent by reputable overnight courier service (charges prepaid):
if to USDCF, to: USD Clean Fuels LLC
811 Main, Suite 2800
Houston, Texas 77002
Attn: General Counsel
Email: ************
if to WCRT, to: West Colton Rail Terminal LLC
811 Main, Suite 2800
Houston, Texas 77002
Attn: General Counsel
Email: ************
or to such other address or the attention of such other person as the recipient Party may specify by prior written notice to the sending Party. Any notice under this Agreement shall be deemed to have been given when so delivered or sent or, if mailed, five (5) days after deposit in the U.S. mail.
11.3 The Parties have participated jointly in the negotiation and drafting of this Agreement. No provision of this Agreement shall be construed or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured or drafted such provision.
11.4 This Agreement embodies the entire agreement and understanding between the Parties relating to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the Parties, written or oral.
11.5 Section headings in this Agreement are included herein for reference purposes only and shall not constitute a part of this Agreement for any other purpose. The term “Section” herein shall refer to provisions of this Agreement unless expressly indicated otherwise.
11.6 This Agreement shall be governed by and construed in accordance with the laws of State of Texas, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Texas.
11.7 Any dispute, controversy or claim of any kind whatsoever (whether sounding in contract, tort, equity or otherwise) arising out of or relating to this Agreement, including any question regarding its existence, breach, validity or termination or the relationship between the Parties, which cannot be amicably resolved through discussions between the Parties shall be finally settled by binding arbitration as follows:
(a) the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”);
(b) the arbitral tribunal shall consist of three (3) arbitrators, of which, the claimant shall appoint one arbitrator at the time it submits its request for arbitration, the party acting as respondent shall appoint one (1) arbitrator with its answer to the request for arbitration, and the two (2) so-appointed arbitrators shall appoint a third (3rd) arbitrator who will act as president of the arbitral tribunal;
(c) the seat of the arbitration shall be Houston, Texas; and
(d) the language of the arbitration shall be English.
11.8 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.9 This Agreement may be executed in multiple counterparts and by facsimile or other electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument. This Agreement shall not be binding upon any Party unless and until executed by both Parties.
11.10 Any amendment or modification to this Agreement must be made in writing and signed by both Parties. Any waiver by or on behalf of a Party for any breach of a provision of this Agreement must be expressed in writing, duly executed and delivered by the waiving Party in accordance with the notice provisions of this Agreement. No waiver by any Party shall operate or be construed as a waiver in respect of any failure or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise or delay in exercising any right or remedy arising from this Agreement shall operate or be construed as a waiver of such right or remedy.
[Signature page follows.]
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by one of its duly authorized representatives as of the Effective Date.
USD CLEAN FUELS LLC
By: /s/ Brad Sanders
Name: Brad Sanders
Title: Executive Vice President and Chief Commercial Officer
WEST COLTON RAIL TERMINAL LLC
By: /s/ Adam Altsuler
Name: Adam Altsuler
Title: Senior Vice President and Chief Financial Officer
Signature Page to Marketing Services Agreement
Exhibit A
Form of Guaranty
PERFORMANCE GUARANTY AGREEMENT
This Performance Guaranty Agreement (this “Guaranty”) is entered into as of [____________], 2021 (“Effective Date”) and is made by US Development Group, LLC, a Delaware limited liability company (“Guarantor”), in favor of West Colton Rail Terminal LLC, a Delaware limited liability company (“Guaranteed Party”) in order to induce the Guaranteed Party to enter that certain Marketing Services Agreement (the “Agreement”), made effective as of June 28, 2021, with USD Clean Fuels LLC, a Delaware limited liability company (“USDCF”). In consideration of the foregoing, the Guarantor agrees as follows:
1. Guaranty. The Guarantor unconditionally and absolutely guarantees, as a primary obligor and not merely as a surety, the due and punctual performance (which may include the payment of monies, costs and expenses) of all of the obligations, including, without limitation, indemnities, covenants, agreements and other performance provisions of, and compliance with, such obligations owed by USDCF to the Guaranteed Party that become due and owing in accordance with the terms of the Agreement (the “Guaranteed Obligations”). Without limiting the generality of the foregoing, the Guaranteed Obligations shall extend to all liabilities, costs, losses and damages incurred by Guaranteed Party arising from the breach by USDCF of its undertakings, obligations and covenants in the Agreement. If the Guaranteed Party notifies the Guarantor in writing by proper notice that the Guaranteed Party is drawing on this Guaranty for the performance of all or any part of the Guaranteed Obligations, the Guarantor shall perform or cause to be performed such Guaranteed Obligations to the Guaranteed Party within ten (10) business days after receipt of such notice.
2. Amount. The Guarantor’s liability under this Guaranty is specifically limited to the performance of the Guaranteed Obligations that USDCF is expressly required to perform under the Agreement (even if such Guaranteed Obligations are deemed to be damages). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS GUARANTY, THE GUARANTOR SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR IN THE AGREEMENT TO BE DUE FROM USDCF TO THE GUARANTEED PARTY, WHICH IN NO EVENT SHALL EXCEED ACTUAL DAMAGES UNDER THE AGREEMENT.
3. Term. This Guaranty shall expire upon expiration of the Agreement. The Guarantor will not be liable under this Guaranty for any transactions or other obligations created, incurred or contracted by the Guaranteed Party after such expiration or termination; provided, however, that such expiration or termination shall not affect in any manner any of the Guaranteed Party’s rights under this Guaranty with respect to any transactions or obligations created, incurred, or contracted prior to such expiration or termination.
4. Nature of Guaranty. The Guarantor’s obligations hereunder with respect to any Guaranteed Obligation shall not be limited, diminished, or otherwise affected by the existence, validity, enforceability, perfection, release, or extent of any collateral for such Guaranteed Obligations. The Guaranteed Party will not be obligated to file any claim relating to the Guaranteed Obligations owing to it in the event that USDCF becomes subject to a bankruptcy, reorganization, or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder. If after receipt from USDCF of any payment or performance of all or any part of the Guaranteed Obligations, the Guaranteed Party is compelled to surrender or voluntarily surrenders such payment to any person because such payment is or may be avoided, invalidated, set aside, or determined to be a preference, fraudulent conveyance, or impermissible set-off under bankruptcy, insolvency, reorganization or similar laws affecting creditor’s rights, then the Guaranteed Obligations or part thereof intended to be satisfied shall be reinstated or returned by the Guaranteed Party, and this Guaranty shall continue to be effective as if such payment had not been made or value received notwithstanding any revocation thereof.
5. Representations and Warranties. The Guarantor represents and warrants to the Guaranteed Party on the date hereof that (a) it is duly organized and validly existing and in good standing under the laws of the jurisdiction in which it was organized and has the power and authority to execute, deliver and perform this Guaranty; (b) the execution, delivery and performance of this Guaranty require no action by, or filing with, any governmental body or any court having jurisdiction over the Guarantor; and (c) this Guaranty constitutes the legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject, as to enforceability only, to applicable bankruptcy, moratorium, insolvency or similar laws affecting the rights of creditors generally and to general principles of equity.
6. Subrogation. Subject to the second sentence of this paragraph, the Guarantor waives its right to be subrogated to the rights of the Guaranteed Party against USDCF with respect to any Guaranteed Obligations paid or performed by the Guarantor until all Guaranteed Obligations have been paid in full to the Guaranteed Party and the Guarantor has fully satisfied all of the Guarantor’s obligations under this Guaranty. If the Guarantor shall make any payment or render any performance to the Guaranteed Party pursuant to this Guaranty, it shall (to the extent of the payment(s) or performance(s) so made) be subrogated to the Guaranteed Party’s rights against USDCF; provided, however, that the Guarantor agrees that it shall take no action to exercise such rights until the payment or performance in full to the Guaranteed Party of all Guaranteed Obligations of USDCF under the Agreement.
7. Amendment of Guaranty. No term or provision of this Guaranty shall be amended, modified, waived, or supplemented except in writing signed by the Guarantor and the Guaranteed Party.
8. Waivers. The Guarantor hereby waives (a) notice of acceptance of this Guaranty; (b) presentment and demand concerning the liabilities of the Guarantor; (c) any right to require that any action or proceeding be brought against USDCF or any other person, or to require that the Guaranteed Party seek enforcement of any performance against USDCF or any other person, prior to any action against the Guarantor under the terms hereof; (d) notice of the amounts or terms of the Agreement with USDCF or of any modifications, renewals, replacements, or extensions thereof; (e) notice of any extension of time for the payment of sums due and payable or performance of obligations to the Guaranteed Party; (f) with respect to any notes or evidences of indebtedness received by the Guaranteed Party from USDCF, notice of presentment, demand for payment or notice of protest; and (g) notice of any dishonor or default by, or disputes with, USDCF. Except as to applicable statutes of limitation, no delay of the Guaranteed Party in the exercise of, or failure to exercise, any rights hereunder shall operate as a
waiver of such rights or a release of the Guarantor from any obligations hereunder. The Guarantor consents to the renewal, compromise, extension, acceleration or other changes in the time of payment or performance or other terms of the Guaranteed Obligations, any acceptance or release of collateral, or any changes or modifications to the terms of the Agreement, without in any way releasing or discharging the Guarantor from its obligations hereunder.
9. Notice. Any notice, request, instruction, correspondence or other document to be given hereunder (herein collectively called “Notice”) shall be in writing and delivered personally or mailed by certified mail, postage prepaid and return receipt requested, or by electronic mail (email), to the Guarantor or to the Guaranteed Party at their respective addresses set forth below. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by facsimile shall be effective upon actual receipt if received during the recipient’s normal business hours, or at the beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours. The Guarantor and the Guaranteed Party may change any address to which Notice is to be given to such party by giving Notice thereof as provided above.
If to Guaranteed Party: If to Guarantor:
West Colton Rail Terminal LLC US Development Group LLC
Attn: General Counsel Attn: General Counsel
811 Main Street, Suite 2800 811 Main Street, Suite 2800
Houston, TX 77002 Houston, TX 77002
Email: ************ Email: ************
10. Assignability. This Guaranty may not be assigned by the Guarantor or the Guaranteed Party without the prior written consent of the other; provided, the Guarantor's consent shall not be required for any assignment of this Guaranty by the Guaranteed Party to an affiliate of the Guaranteed Party contemporaneously with an assignment to such affiliate of the Agreement.
11. Other Guarantees. THIS GUARANTY SHALL SUPERCEDE AS OF THE DATE ABOVE ANY OTHER GUARANTEES PREVIOUSLY MADE BY THE GUARANTOR FOR THE BENEFIT OF THE GUARANTEED PARTY AND ANY TERM OR PROVISION THEREOF.
12. GOVERNING LAW. THIS GUARANTY SHALL BE IN ALL RESPECTS GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE LAWS OF THE STATE OF TEXAS.
13. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF.
14. Final Agreement; Reservation of Rights. This Guaranty embodies the entire agreement of the parties, and supersedes all prior agreements and understandings of the parties, with respect to the subject matter hereof. The Guarantor reserves to itself all rights, setoffs, counterclaims and other defenses that is available to USDCF pursuant to the terms of the Agreement, except for defenses arising out of corporate capacity or authority of USDCF and the bankruptcy, insolvency, dissolution or liquidation of USDCF.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed and delivered as of the date first above written.
US DEVELOPMENT GROUP, LLC
By:
Name: ______________________________
Title: ______________________________
Exhibit 10.2
EXECUTION VERSION
AMENDED AND RESTATED OMNIBUS AGREEMENT
This Amended and Restated Omnibus Agreement (this “Agreement”) is entered into on, and effective as of, June 28, 2021 (the “Effective Date”) among US Development Group, LLC, a Delaware limited liability company (“US Development”), USD Group LLC, a Delaware limited liability company (“USD”), USD Partners LP, a Delaware limited partnership (the “Partnership”), USD Partners GP LLC, a Delaware limited liability company and the general partner of the Partnership (the “General Partner”), and USD Logistics Operations LP, a Delaware limited partnership (the “Operating Partnership” and, together with US Development, USD, the Partnership and the General Partner, the “Parties” and each a “Party”).
RECITALS
US Development, USD, the Partnership, the General Partner and the Operating Partnership have previously entered into that certain Omnibus Agreement, effective as of October 15, 2014 (the “Closing Date”) and now desire to amend and restate such Omnibus Agreement as provided herein.
ARTICLE I
Definitions and Interpretation
1.1 Definitions. In addition to the terms defined in the introductory paragraph and the recitals of this Agreement, for purposes hereof, the capitalized terms used herein and not otherwise defined shall have the meanings set forth in Appendix A.
1.2 Rules of Construction. Unless expressly provided for elsewhere in this Agreement, this Agreement shall be interpreted in accordance with the following provisions:
(a) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(b) The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
(c) A reference to any Party to this Agreement or another agreement or document includes the Party’s successors and assigns.
(d) 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, and article, section, subsection and schedule references are to this Agreement unless otherwise specified.
(e) The words “including,” “include,” “includes” and all variations thereof shall mean “including without limitation.”
(f) The word “or” shall have the inclusive meaning represented by the phrase “and/or.”
(g) The words “shall” and “will” have equal force and effect.
(h) The schedules identified in this Agreement are incorporated herein by reference and made a part of this Agreement.
(i) References to “$” or to “dollars” shall mean the lawful currency of the United States of America.
ARTICLE II
Indemnification
2.1 Environmental Indemnification. The Partnership shall indemnify, defend and hold harmless USD from and against any Losses suffered or incurred by any of the USD Entities, directly or indirectly, by reason of or arising out of:
(a) any violation of Environmental Laws as in effect on or after the Closing Date and such violation is associated with or arises from the ownership or operation of the Assets on or after the Closing Date; and
(b) any environmental event, condition or matter associated with or arising from the ownership or operation of the Assets on or after the Closing Date (including the presence of Hazardous Substances on, under, about or migrating to or from the Assets or the disposal or the release of Hazardous Substances generated by operation of the Assets at Asset locations) including (A) the cost and expense of any investigation, assessment, evaluation, monitoring, containment, cleanup, repair, restoration, remediation, risk-based closure activities, or other corrective action required or necessary under Environmental Laws in effect on or after the Closing Date, and (B) the cost or expense of the preparation and implementation of any closure, remedial, corrective action, or other plans required or necessary under Environmental Laws as in effect on or after the Closing Date;
in each case, regardless of whether such violation under Section 2.1(a) or such environmental event, condition or matter included under Section 2.1(b) occurred before or after the Closing Date, in each case, to the extent that any of the foregoing are not related to any environmental event, condition or matter associated with or arising from the Retained Assets, whether occurring before, on or after the Closing Date and whether occurring under Environmental Laws as in effect prior to, at or after the Closing Date.
2.2 Additional Indemnification.
(a) USD shall indemnify, defend, and hold harmless each Group Member from and against any Losses suffered or incurred by such Group Member by reason of or arising out of:
(i) the consummation of the transactions contemplated by the Contribution Agreement. For the avoidance of doubt, the Parties agree that, subject to the qualifications set forth on Schedule A, each Group Member shall be entitled to
indemnification by USD under this Section 2.2(a)(i) for those litigation matters listed on Schedule A;
(ii) events and conditions associated with the Retained Assets, whether occurring before, on or after the Closing Date; and
(iii) all federal, state and local tax liabilities attributable to the ownership or operation of the Assets prior to the Closing Date, including under Treasury Regulation Section 1.1502-6, as it may be amended (or any similar provision of state or local law), and any such tax liabilities that may result from the consummation of the formation transactions for the Partnership Group and the General Partner occurring prior to the Closing Date or from the consummation of the transactions contemplated by the Contribution Agreement (clauses (i) and (iii) being referred to collectively as “Covered Non-Environmental Losses”).
(b) The Partnership shall indemnify, defend, and hold harmless USD from and against any Losses suffered or incurred by any of the USD Entities by reason of or arising out of events and conditions to the extent associated with the ownership or operation of the Assets and occurring after the Closing Date (other than Losses for which the Partnership is indemnifying USD under Section 2.1), unless such indemnification would not be permitted by any Group Member under the Partnership Agreement.
2.3 Indemnification Procedures.
(a) The Indemnified Party agrees that within a reasonable period of time after it becomes aware of facts giving rise to a claim for indemnification under this Article II, it will provide notice thereof in writing to the Indemnifying Party, specifying the nature of and specific basis for such claim.
(b) The Indemnifying Party shall have the right to control all aspects of the defense of (and any counterclaims with respect to) any claims brought against the Indemnified Party that are covered by the indemnification under this Article II, including, without limitation, the selection of counsel, determination of whether to appeal any decision of any court and the settling of any such claim or any matter or any issues relating thereto; provided, however, that no such settlement for only the payment of money shall be entered into without the consent of the Indemnified Party unless it includes a full release of the Indemnified Party from such claim; provided further, that no such settlement containing any form of injunctive or similar relief shall be entered into without the prior written consent of the Indemnified Party, which consent shall not be unreasonably delayed or withheld.
(c) The Indemnified Party agrees to cooperate in good faith and in a commercially reasonable manner with the Indemnifying Party, with respect to all aspects of the defense of and pursuit of any counterclaims with respect to any claims covered by the indemnification under this Article II, including, without limitation, 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 and
counterclaims, 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 counterclaims, the making available to the Indemnifying Party of any employees of the Indemnified Party and the granting to the Indemnifying Party of reasonable access rights to the properties and facilities 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 2.3. The obligation of the Indemnified Party to cooperate with the Indemnifying Party as set forth in the immediately preceding sentence shall not be construed as imposing upon the Indemnified Party an obligation to hire and pay for counsel in connection with the defense of and pursuit of any counterclaims with respect to any claims covered by the indemnification set forth in this Article II; provided, however, that the Indemnified Party may, at its own option, cost and expense, hire and pay for counsel in connection with any such defense and counterclaims. The Indemnifying Party agrees to keep any such counsel hired by the Indemnified Party informed as to the status of any such defense or counterclaim, but the Indemnifying Party shall have the right to retain sole control over such defense and counterclaims so long as the Indemnified Party is still seeking indemnification hereunder.
(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 premium that becomes 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.
2.4 Limitations Regarding Indemnification.
(a) USD shall not be obligated to indemnify, defend and hold harmless any Group Member for a Covered Non-Environmental Loss under Section 2.2 until such time as the aggregate amount of all Covered Non-Environmental Losses exceeds $500,000 (the “Non-Environmental Deductible”), at which time USD shall be obligated to indemnify the Partnership Group for the amount of all Covered Non-Environmental Losses over the Non-Environmental Deductible that are incurred by the Partnership Group.
(b) For the avoidance of doubt, the obligation of USD to indemnify any Group Member, as specified in Section 2.2, shall be limited to the extent of the Losses incurred by the Partnership with respect to its direct or indirect ownership interest in such Group Member.
(c) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ANY PARTY’S INDEMNIFICATION OBLIGATION HEREUNDER COVER OR INCLUDE CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR SIMILAR DAMAGES OR LOST PROFITS (INCLUDING ANY DIMINUTION IN VALUE OF ANY PARTY’S RESPECTIVE INVESTMENT IN THE PARTNERSHIP) SUFFERED, DIRECTLY OR INDIRECTLY, BY ANY OTHER PARTY ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT, EXCEPT AS A
REIMBURSEMENT FOR ANY SUCH DAMAGES AS ARE PAID TO A GOVERNMENTAL AUTHORITY OR OTHER THIRD PARTY.
ARTICLE III
General and Administrative Services
3.1 General. USD agrees to provide, and agrees to cause its Affiliates to provide, to the General Partner, for the Partnership Group’s benefit, the centralized general and administrative services that USD and its Affiliates have traditionally provided in connection with the ownership and operation of the Assets, which consist of the services set forth on Schedule C (the “General and Administrative Services”). Absent the written agreement of the Parties to the contrary, the Parties agree that the General and Administrative Services will be received by the General Partner, for the benefit of the Partnership Group, at the General Partner’s principal place of business.
3.2 Administrative Fee.
(a) As consideration for USD’s and its Affiliates’ provision of the General and Administrative Services, the Partnership Group will pay to USD an annual fee that will reflect the costs incurred by USD and its Affiliates in providing such General and Administrative Services (other than those costs for which USD and its Affiliates are entitled to reimbursement pursuant to Section 3.3), as determined in good faith by USD (the “Administrative Fee”). The Parties acknowledge and agree that it is the intent of the Parties that the General and Administrative Services be provided based on an arm’s-length standard, and that the Administrative Fee is intended to reflect such standard. For the avoidance of doubt, the Parties further acknowledge and agree that the Administrative Fee will cover the fully burdened cost of the General and Administrative Services provided by USD and its Affiliates to the Partnership Group, as well as any third party costs actually incurred by USD and its Affiliates on behalf of the Partnership Group in providing such General and Administrative Services (other than those costs for which USD and its Affiliates are entitled to reimbursement pursuant to Section 3.3), including the following:
(i) the compensation and employee benefits of employees of USD or its Affiliates (and any withholding or payroll taxes related thereto), to the extent, but only to the extent, such employees perform General and Administrative Services for the Partnership Group’s benefit. For the avoidance of doubt, the Administrative Fee shall include any withholding and payroll related taxes paid by USD and its Affiliates in connection with any long-term incentive plan of the General Partner or the Partnership Group. With respect to employees that do not devote all of their business time to the Partnership Group, such compensation and employee benefits (and any withholding or payroll taxes related thereto) shall be allocated to the Partnership Group based on the annual weighted average of time spent and number of employees devoting services to the Partnership Group;
(ii) any expenses incurred or payments made by USD or its Affiliates on behalf of the Partnership Group for insurance coverage with respect to the Assets or the business of the Partnership Group;
(iii) all expenses and expenditures incurred by USD or its Affiliates on behalf of the Partnership Group as a result of the Partnership becoming and continuing as a publicly traded entity, including, but not limited to, costs associated with annual, quarterly and current 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, outside director fees and director and officer insurance expenses; and
(iv) all sales, use, excise, value added or similar taxes, if any, that may be applicable from time to time with respect to the services provided by USD and its Affiliates to the Partnership Group pursuant to Section 3.1.
(b) As part of the Administrative Fee, the Partnership Group shall pay to USD a fixed fee in consideration for the services of certain employees of USD and its Affiliates in their capacities as officers of the General Partner and the Group Members, which for the 2021 calendar year shall not exceed the amount set forth in the budget for the 2021 calendar year previously approved by the Board of Directors of the General Partner on behalf of the Partnership.
(c) The Parties acknowledge and agree that the Administrative Fee may change each calendar year, as determined by USD in good faith, to accurately reflect the degree and extent of the General and Administrative Services provided to the Partnership Group and may be adjusted to reflect, among other things, the contribution, acquisition or disposition of assets to or by the Partnership Group or to reflect any change in the cost of providing General and Administrative Services to the Partnership Group due to changes in any law, rule or regulation applicable to the USD Entities or the Partnership Group, including any interpretation of such laws, rules or regulations.
(d) On or prior to January 1 of each calendar year during the term of this Agreement, USD will notify the General Partner of the estimated amount of the Administrative Fee (including both the fixed and variable portions of the Administrative Fee to be paid by the Partnership Group for such calendar year. The Administrative Fee shall be invoiced and paid as follows:
(i) Within 20 days following the end of each month during the term of this Agreement, USD will submit to the Partnership Group an invoice of the amounts due for such month for the Administrative Fee. Each invoice will contain reasonably satisfactory support of such amounts and such other supporting detail as the General Partner may reasonably require.
(ii) The Partnership Group will pay the Administrative Fee within 10 days after the receipt of the invoice therefor. The Partnership Group shall not offset any
amounts owing to it by USD or any of its Affiliates against the Administrative Fee payable hereunder.
3.3 Reimbursement of Expenses.
(a) In addition to the Administrative Fee payable under Section 3.2, the Partnership Group will reimburse USD and its Affiliates for any additional out-of-pocket costs and expenses actually incurred by USD and its Affiliates in providing the General and Administrative Services, as well as any other out-of-pocket expenses incurred on behalf of the Partnership Group. For the avoidance of doubt, the Partnership Group will reimburse USD for all tax costs and expenses incurred or payments made by USD and its Affiliates on behalf of the Partnership Group including all sales, use, excise, value added, margin, franchise or similar taxes, if any, that may be applicable from time to time associated with the ownership and operation of the Assets or with respect to the General and Administrative Services provided by the Partnership Group.
(b) The Partnership Group will reimburse USD and its Affiliates for any costs and expenses incurred by USD and its Affiliates under Section 3.3(a) as incurred on a monthly basis.
ARTICLE IV
Right of First Offer
4.1 Right of First Offer to Purchase Certain Assets.
(a) USD and US Development hereby grant to the Partnership a right of first offer on any proposed Transfer of any ROFO Asset (other than ROFO Assets Transferred to an Affiliate of USD or US Development who agrees in writing that such ROFO Asset remains subject to the provisions of this Article IV and assumes the obligations under this Article IV with respect to such ROFO Asset).
(b) The Parties acknowledge that any Transfer of ROFO Assets pursuant to the Partnership’s right of first offer is subject to the terms of all existing agreements with respect to the ROFO Assets and shall be subject to and conditioned on the obtaining of any and all necessary consents of security holders, Governmental Authorities, lenders or other third parties.
(c) This right of first offer given pursuant to Section 4.1(a) is granted for a period (the “ROFO Period”) beginning at the Effective Date and ending on the earlier of (i) October 15, 2026 and (ii) the occurrence of a Partnership Change of Control.
4.2 Procedures for Right of First Offer.
(a) If a US Development ROFO Entity proposes to Transfer any ROFO Asset during the ROFO Period (other than to an Affiliate as described in Section 4.1(a)) (any such transaction, a “Proposed Transaction”), USD or US Development shall or shall cause such US Development ROFO Entity to, prior to entering into any such Proposed Transaction, first give notice in writing to the Partnership (the “ROFO Notice”) of its intention to enter into such Proposed Transaction. The ROFO Notice shall include any material terms, conditions and other details as would be
reasonably necessary for the Partnership to make a responsive offer to enter into the Proposed Transaction with the applicable US Development ROFO Entity, which terms, conditions and details shall include any material terms, conditions or other details that such US Development ROFO Entity would propose to provide to non-Affiliates in connection with the Proposed Transaction.
(b) The Partnership shall have 60 days following receipt of the ROFO Notice (the “ROFO Review Period”) to propose an offer to enter into the Proposed Transaction with such US Development ROFO Entity (the “ROFO Response”). The ROFO Response shall set forth the terms and conditions (including the purchase price the Partnership proposes to pay for the ROFO Asset and the other terms of the purchase) pursuant to which the Partnership would be willing to enter into a binding agreement for the Proposed Transaction.
(i) If the Partnership submits a ROFO Response within the ROFO Review Period, the Partnership and USD or US Development shall negotiate, in good faith, the terms of the purchase and sale of the ROFO Asset for 60 days following the receipt of the ROFO Response by the US Development ROFO Entity. If USD or US Development and the Partnership are unable to agree on such terms during such 60-day period, the US Development ROFO Entity may Transfer the ROFO Asset to any third party during a 180-day period following the expiration of such 60-day period on terms and conditions that are not more favorable in the aggregate to such third party than those proposed in respect of the Partnership in the ROFO Response.
(ii) If the Partnership fails to submit a ROFO Response within the ROFO Review Period, then the Partnership shall be deemed to have waived its right of first offer with respect to such ROFO Asset, and, for a 180-day period after the expiration of the ROFO Review Period, the applicable US Development ROFO Entity shall be free to Transfer the ROFO Asset to any third party on terms and conditions no more favorable to such third party than those set forth in the ROFO Notice.
(iii) If the closing of the Transfer of the ROFO Asset does not occur within either of the 180-day periods set forth in clauses (i) and (ii) above, then the ROFO Asset in question shall once again become subject to the restrictions of this Section 4.2, and the US Development ROFO Entity shall no longer be permitted to Transfer such ROFO Asset without again fully complying with the provisions of this Section 4.2.
ARTICLE V
Licenses of Marks
5.1 Grant of USD License. Upon the terms and conditions set forth in this Article V, USD hereby grants and conveys to the Partnership and each of the entities currently or hereafter comprising a part of the Partnership Group a nontransferable, nonexclusive, royaltyfree right and license (the “USD License”) to use the “USD” logo and trademark and the other trademarks and tradenames owned by USD (collectively, the “USD Marks”).
5.2 Ownership and Quality of USD Marks. The Partnership, on behalf of itself and the other Group Members, agrees that ownership of the USD Marks and the goodwill relating thereto shall remain vested in USD during the term of the USD License and thereafter. The Partnership agrees, and agrees to cause the other Group Members, never to challenge, contest or question the validity of USD’s ownership of the USD Marks or any registration thereof by USD. In connection with the use of the USD Marks, the Partnership and any other Group Member shall not in any manner represent that they have any ownership in the USD Marks or registration thereof. The Partnership, on behalf of itself and the other Group Members, acknowledges that the use of the USD Marks shall not create any right, title or interest in or to the USD Marks, and all use of the USD Marks by the Partnership or any other Group Member shall inure to the benefit of USD. The Partnership agrees, and agrees to cause the other Group Members, to use the USD Marks in accordance with such quality standards established by USD and communicated to the Partnership Group from time to time, it being understood that the products and services offered by the Group Members as of the Closing Date are of a quality that is acceptable to USD.
5.3 Grant of the Partnership License. Upon the terms and conditions set forth in this Article V, the General Partner, for the benefit of the Partnership, hereby grants and conveys to USD and its Affiliates a nontransferable, nonexclusive, royalty-free right and license (“Partnership License”) to use the “USDP” logo and trademark and the other trademarks and tradenames owned by the General Partner for the benefit of the Partnership (collectively, the “Partnership Marks”).
5.4 Ownership and Quality of the Partnership Marks. USD agrees, on behalf of itself and the other USD Entities, that ownership of the Partnership Marks and the goodwill relating thereto shall remain vested in the General Partner, for the benefit of the Partnership, during the term of the Partnership License and thereafter. USD agrees, and agrees to cause the other USD Entities, to the fullest extent permitted by law, never to challenge, contest or question the validity of the General Partner’s ownership of the Partnership Marks or any registration thereof by the General Partner or the Partnership. In connection with the use of the Partnership Marks, neither USD nor any of the other USD Entities shall in any manner represent that they have any ownership in the Partnership Marks or registration thereof. USD, on behalf of itself and the other USD Entities, acknowledges that the use of the Partnership Marks shall not create any right, title or interest in or to the Partnership Marks, and all use of the Partnership Marks by USD or any of the other USD Entities shall inure to the benefit of the General Partner and the Partnership. USD agrees, and agrees to cause the other USD Entities, to use the Partnership Marks in accordance with such quality standards established by the General Partner, on behalf of and for the benefit of the Partnership, and communicated to USD from time to time.
5.5 Termination. The USD License and the Partnership License shall each terminate upon the termination of this Agreement pursuant to Section 6.5.
ARTICLE VI
Miscellaneous
6.1 Confidentiality.
(a) From and after the Closing Date, each of the Parties shall hold, and shall cause their respective Subsidiaries and Affiliates and its and their directors, officers, employees, agents, consultants, advisors, and other representatives (collectively, “Representatives”) to hold all Confidential Information in strict confidence, with at least the same degree of care that applies to such Party’s confidential and proprietary information and shall not use such Confidential Information and shall not release or disclose such Confidential Information to any other Person, except its Representatives or except as required by applicable law. Each Party shall be responsible for any breach of this section by any of its Representatives.
(b) If a Party receives a subpoena or other demand for disclosure of Confidential Information received from any other Party or must disclose to a Governmental Authority any Confidential Information received from such other Party in order to obtain or maintain any required governmental approval, the receiving Party shall, to the extent legally permissible, provide notice to the providing Party before disclosing such Confidential Information. Upon receipt of such notice, the providing Party shall promptly either seek an appropriate protective order, waive the receiving Party’s confidentiality obligations hereunder to the extent necessary to permit the receiving Party to respond to the demand, or otherwise fully satisfy the subpoena or demand or the requirements of the applicable Governmental Authority. If the receiving Party is legally compelled to disclose such Confidential Information or if the providing Party does not promptly respond as contemplated by this section, the receiving Party may disclose that portion of Confidential Information covered by the notice or demand.
(c) Each Party acknowledges that the disclosing Party would not have an adequate remedy at law for the breach by the receiving Party of any one or more of the covenants contained in this Section 6.1 and agrees that, in the event of such breach, the disclosing Party may, in addition to the other remedies that may be available to it, apply to a court for an injunction to prevent breaches of this Section 6.1 and to enforce specifically the terms and provisions of this Section 6.1. Notwithstanding any other section hereof, to the extent permitted by applicable law, the provisions of this Section 6.1 shall survive the termination of this Agreement.
(d) The foregoing restrictions shall not apply to any information that is disclosed by Energy Capital Partners III-A, LP, a Delaware limited partnership, Energy Capital Partners III, LP, a Delaware limited partnership, Energy Capital Partners III-B (USD IP), LP, a Delaware limited partnership and Energy Capital Partners III-C (USD IP), LP, a Delaware limited partnership to any investor in Energy Capital Partners III, LP or its parallel or co-investment funds (“ECP LPs”) (including potential ECP LPs), provided that each ECP LP is bound by customary confidentiality provisions, informed of the confidential nature of such information and requested to maintain the confidentiality thereof.
6.2 Choice of Law; Mediation; Submission to Jurisdiction.
(a) This Agreement shall be subject to and governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. EACH OF THE PARTIES HERETO AGREES THAT THIS AGREEMENT INVOLVES AT LEAST U.S. $100,000.00
AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN EXPRESS RELIANCE UPON 6 DEL. C. § 2708. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES (i) TO BE SUBJECT TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND OF THE FEDERAL COURTS SITTING IN THE STATE OF DELAWARE, AND (ii) TO THE EXTENT SUCH PARTY IS NOT OTHERWISE SUBJECT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE, TO APPOINT AND MAINTAIN AN AGENT IN THE STATE OF DELAWARE AS SUCH PARTY’S AGENT FOR ACCEPTANCE OF LEGAL PROCESS AND TO NOTIFY THE OTHER PARTY OF THE NAME AND ADDRESS OF SUCH AGENT.
(b) If the Parties cannot resolve any dispute or claim arising under this Agreement, then no earlier than 10 days nor more than 60 days following written notice to the other Parties, any Party may initiate mandatory, non-binding mediation hereunder by giving a notice of mediation (a “Mediation Notice”) to the other Parties to the dispute or claim. In connection with any mediation pursuant to this Section 6.2, the mediator shall be jointly appointed by the Parties to the dispute or claim and the mediation shall be conducted in Houston, Texas unless otherwise agreed to by the Parties to the dispute or claim. All costs and expenses of the mediator appointed pursuant to this Section 6.2 shall be shared equally by the Parties to the dispute or claim. The then-current Model ADR Procedures for Mediation of Business Disputes of the Center for Public Resources, Inc., either as written or as modified by mutual agreement of the Parties to the dispute or claim, shall govern any mediation pursuant to this Section 6.2. In the mediation, each Party to the dispute or claim shall be represented by one or more senior representatives who shall have authority to resolve any disputes. If a dispute or claim has not been resolved within 30 days after the receipt of the Mediation Notice by a Party, then any Party to the dispute or claim may refer the resolution of the dispute or claim to litigation.
(c) Subject to Section 6.2(b), each Party agrees that it shall bring any action or proceeding in respect of any claim arising out of or related to this Agreement, whether in tort or contract or at law or in equity, exclusively in any federal or state courts located in Delaware and (i) irrevocably submits to the exclusive jurisdiction of such courts, (ii) waives any objection to laying venue in any such action or proceeding in such courts, (iii) waives any objection that such courts are an inconvenient forum or do not have jurisdiction over it and (iv) agrees that, to the fullest extent permitted by law, service of process upon it may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to it at its address specified in Section 6.3. The foregoing consents to jurisdiction and service of process shall not constitute general consents to service of process in the State of Delaware for any purpose except as provided herein and shall not be deemed to confer rights on any Person other than the Parties.
6.3 Notice. 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 e-mail or 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 to such Party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by e-mail shall be effective upon actual receipt if received during the recipient’s normal business hours or at the
beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours, provided, in each case, that no automatic response has been received from the recipient’s e-mail system indicating non-receipt of the email message or unavailability of the recipient. All notices to be sent to a Party pursuant to this Agreement shall be sent to or made at the address set forth below or at such other address as such Party may stipulate to the other Parties in the manner provided in this Section 6.3.
If to US Development:
US Development Group, LLC
811 Main Street, Suite 2800
Houston, Texas 77002
Attention: General Counsel
E-mail: **************
If to USD:
USD Group LLC
811 Main Street, Suite 2800
Houston, Texas 77002
Attention: General Counsel
E-mail: **************
If to any Group Member:
USD Partners LP
811 Main Street, Suite 2800
Houston, Texas 77002
Attention: Chief Financial Officer
E-mail: **************
6.4 Entire Agreement. This Agreement constitutes the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.
6.5 Termination of Agreement. This Agreement, other than the provisions set forth in Article II hereof, may be terminated (a) by the written agreement of all of the Parties or (b) by USD, US Development or the Partnership immediately upon a Partnership Change of Control by written notice given to the other Parties to this Agreement. For the avoidance of doubt, the Parties’ indemnification obligations under Article II shall, to the fullest extent permitted by law, survive the termination of this Agreement in accordance with their respective terms.
6.6 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the Parties. Each such instrument shall be reduced to writing and shall be designated on its face an “Amendment” or an “Addendum” to this Agreement.
6.7 Assignment. No Party shall have the right to assign its rights or obligations under this Agreement without the consent of the other Parties; provided, however, that the Partnership Group may make a collateral assignment of this Agreement solely to secure financing for the Partnership Group.
6.8 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 and shall be construed together and shall constitute one and the same instrument. The exchange of copies of this Agreement and signature pages by email in .pdf or .tif format (and including, without limitation, any electronic signature complying with the U.S. ESIGN Act of 2000, such as, www.docusign.com), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Such execution and delivery shall be considered valid, binding and effective for all purposes.
6.9 Severability. If any provision of this Agreement shall be held invalid or unenforceable by a court or regulatory body of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.
6.10 Further Assurances. In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
6.11 Rights of Limited Partners. The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no Limited Partner or other interest holder of the Partnership shall have the right, separate and apart from the Partnership, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of, the Effective Date.
US Development Group, LLC
By: /s/ Adam Altsuler
Name: Adam Altsuler
Title: Executive Vice President, Chief Financial Officer
USD Group LLC
By: /s/ Adam Altsuler
Name: Adam Altsuler
Title: Senior Vice President, Chief Financial Officer
USD Partners GP LLC
By: /s/ Adam Altsuler
Name: Adam Altsuler
Title: Executive Vice President, Chief Financial Officer
USD Partners LP
By: USD Partners GP LLC, its general partner
By: /s/ Adam Altsuler
Name: Adam Altsuler
Title: Executive Vice President, Chief Financial Officer
USD Logistics Operations LP
By: USD Logistics Operations GP LLC, its general partner
By: /s/ Adam Altsuler
Name: Adam Altsuler
Title: Executive Vice President, Chief Financial Officer
[Signature page to Amended and Restated Omnibus Agreement]
APPENDIX A
Attached to and made part of that certain Amended and Restated Omnibus Agreement, dated as of June 28, 2021, by and among US Development Group, LLC, a Delaware limited liability company, USD Group LLC, a Delaware limited liability company, USD Partners LP, a Delaware limited partnership, USD Partners GP LLC, a Delaware limited liability company, and USD Logistics Operations LP, a Delaware limited partnership.
“Administrative Fee” is defined in Section 3.2(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.
“Agreement” has the meaning set forth in the preamble.
“Assets” means the equity interests in the entities being conveyed, contributed or otherwise transferred to any Group Member pursuant to the Contribution Agreement and any rail terminals, pipelines, railcars, vehicles, related equipment, offices, real estate, contracts and other assets, or portions thereof owned by, leased by or necessary for the operation of the business of any Group Member as of the Closing Date.
“Bitumen” means a dense, highly viscous, petroleum-based hydrocarbon that is found in deposits such as oil sands.
“Closing Date” has the meaning set forth in the preamble.
“Confidential Information” means any proprietary or confidential information that is competitively sensitive material or otherwise of value to a Party or its Affiliates and not generally known to the public, including trade secrets, scientific or technical information, design, invention, process, procedure, formula, improvements, product planning information, marketing strategies, financial information, information regarding operations, consumer and/or customer relationships, consumer and/or customer identities and profiles, sales estimates, business plans, and internal performance results relating to the past, present or future business activities of a Party or its Affiliates and the consumers, customers, clients and suppliers of any of the foregoing. Confidential Information includes such information as may be contained in or embodied by documents, substances, engineering and laboratory notebooks, reports, data, specifications, computer source code and object code, flow charts, databases, drawings, pilot plants or demonstration or operating facilities, diagrams, specifications, bills of material, equipment, prototypes and models, and any other tangible manifestation (including data in computer or other digital format) of the foregoing; provided, however, that Confidential Information does not include information that a receiving Party can show (A) has been published or has otherwise become available to the general public as part of the public domain without breach of this Agreement, (B) has been furnished or made known to the receiving Party without
any obligation to keep it confidential by a third party under circumstances which are not known to the receiving Party to involve a breach of the third party’s obligations to a Party or (C) was developed independently of information furnished or made available to the receiving Party as contemplated under this Agreement.
“Contribution Agreement” means that certain Contribution, Conveyance and Assumption Agreement, dated as of the Closing Date, among US Development Group, LLC, USD, the General Partner, the Partnership and the Operating Partnership, together with the additional conveyance documents and instruments contemplated or referenced thereunder, as such may be amended, supplemented or restated from time to time.
“Covered Non-Environmental Losses” is defined in Section 2.2(a)(iii).
“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 Section 11.2 of the Partnership Agreement.
“Effective Date” has the meaning set forth in the preamble.
“Environmental Laws” means all U.S. and Canadian federal, state, provincial and local laws, statutes, rules, regulations, orders, judgments, ordinances, codes, injunctions, decrees, Environmental Permits and other legally enforceable requirements and rules of common law relating to pollution or protection of human health, natural resources, wildlife and the environment or workplace health or safety including, without limitation, the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§9601 et seq., the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. §§6901 et seq., the Clean Air Act, as amended, 42 U.S.C. §§7401 et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§1251 et seq., the Toxic Substances Control Act, as amended, 15 U.S.C. §§2601 et seq., the Oil Pollution Act of 1990, 33 U.S.C. §§2701 et seq., the Safe Drinking Water Act of 1974, as amended, 42 USC §§300f et seq., the Hazardous Materials Transportation Act of 1994, as amended, 49 U.S.C. §§ 5101 et seq., and other environmental conservation and protection laws and the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq, and the regulations promulgated pursuant thereto, and any Canadian federal, state, provincial or local counterparts, each as amended from time to time.
“Environmental Permit” means any permit, approval, identification number, license, registration, certification, consent, exemption, variance or other authorization required under or issued pursuant to any applicable Environmental Law, including applications for renewal of such permits in which the application allows for continued operation under the terms of an expired permit.
“General and Administrative Services” is defined in Section 3.1.
“General Partner” means USD 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 its capacity as general partner of the Partnership (except as the context otherwise requires).
“Governmental Authority” means any federal, state, tribal, foreign or local governmental entity, authority, department, court or agency, including any political subdivision thereof, exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power of any nature, and including any arbitrating body, commission or quasi-governmental authority or self-regulating organization of competent authority exercising or enlisted to exercise similar power or authority.
“Group Member” means a member of the Partnership Group.
“Hardisty Phase II project” means the additional infrastructure at the Hardisty rail terminal which could expand the number of 120-railcar unit trains that can be loaded from two unit trains to up to four unit trains per day that USD currently anticipates will commence operations in late 2015 or early 2016.
“Hardisty Phase III project” means the additional infrastructure at the Hardisty rail terminal which could expand the number of 120-railcar unit trains that can be loaded by one unit train per day, specifically targeting the loading of bitumen, that USD currently anticipates will commence operations during 2016.
“Hazardous Substance” means (a) any substance, whether solid, liquid, gaseous, semi-solid, or any combination thereof, that is designated, defined or classified as a hazardous waste, solid waste, hazardous material, pollutant, contaminant or toxic or hazardous substance, or terms of similar meaning, 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, as amended, and including asbestos and lead-containing paints or coatings, and (b) petroleum, oil, gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel, and other refined petroleum hydrocarbons.
“Indemnified Party” means the Party entitled to indemnification in accordance with Article II.
“Indemnifying Party” means the Party from whom indemnification may be sought in accordance with Article II.
“Limited Partner” means, unless the context otherwise requires, each Person that becomes a Limited Partner pursuant to the terms of the Partnership Agreement and any Departing General Partner upon the change of its status from General Partner to Limited Partner pursuant to Section 11.3 of the Partnership Agreement, in each case, in such Person’s capacity as a limited partner of the Partnership; provided, however, that when the term “Limited Partner” is used herein in the context of any vote or other approval, such term shall not, solely for such purpose, include any holder of any Incentive Distribution Right (solely with respect to its
Incentive Distribution Rights and not with respect to any other limited partner interest held by such Person) (as such term “Incentive Distribution Rights” is defined in the Partnership Agreement) except as may otherwise be required by law.
“Losses” means any losses, damages, liabilities, claims, demands, causes of action, judgments, settlements, fines, penalties, costs and expenses (including, without limitation, court costs and reasonable attorney’s and expert’s fees) of any and every kind or character, known or unknown, fixed or contingent.
“Mediation Notice” is defined in Section 6.2(b).
“Non-Environmental Deductible” is defined in Section 2.4(a).
“Operating Partnership” has the meaning set forth in the preamble.
“Partnership” has the meaning set forth in the preamble.
“Partnership Agreement” means the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of the Closing Date.
“Partnership Change of Control” means either US Development or USD ceases to control, directly or indirectly, the General Partner. For purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the General Partner, whether through ownership of voting securities, by contract, or otherwise.
“Partnership Group” means, collectively, the Partnership and its Subsidiaries.
“Partnership License” is defined in Section 5.3.
“Partnership Marks” is defined in Section 5.3.
“Party” has the meaning set forth in the preamble.
“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.
“Proposed Transaction” is defined in Section 4.2(a).
“Representatives” is defined in Section 6.1(a).
“Retained Assets” means all terminals or terminal expansions (whether completed, under construction, or to be constructed), vehicles, other midstream infrastructure, offices and related equipment, real estate, contracts and other related assets, or ownership interests or portions thereof owned by USD that were not directly or indirectly conveyed, contributed or otherwise
transferred to the Partnership Group pursuant to the Contribution Agreement or the other documents referenced in the Contribution Agreement.
“ROFO Asset” means any right, title or interests in (i) the Hardisty Phase II and Hardisty Phase III projects and (ii) any midstream infrastructure assets and businesses that any of the US Development ROFO Entities may acquire or construct in the future, which assets shall include the terminal facilities, pipelines, storage tanks, equipment, machinery and the real property appurtenant thereto.
“ROFO Notice” is defined in Section 4.2(a).
“ROFO Period” is defined in Section 4.1(c).
“ROFO Response” is defined in Section 4.2(a).
“ROFO Review Period” is defined in Section 4.2(a).
“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 or limited partner of such partnership, but only if more than 50% of the partnership interests of such partnership (considering all of the partnership interests of the partnership as a single class) 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; or (c) any other Person (other than a corporation or a partnership) in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.
“Transfer” including the correlative terms “Transferred” or “Transferring” means any direct or indirect transfer, assignment, sale, gift, pledge, hypothecation or other encumbrance, or any other disposition (whether voluntary, involuntary or by operation of law) of any assets, property or rights, but excludes, for the purposes of Article IV, any pledge, hypothecation or granting of a lien for security purposes by a USD or US Development Entity. For the avoidance of doubt, the sale, assignment or transfer, directly or indirectly, to a Person that is not an Affiliate of USD or a US Development Entity of (i) all or substantially all of the voting equity securities in USD or (ii) any equity interests in, or all or substantially all of the assets of, US Development, in each case, in a single transaction or series of related transactions shall not constitute a Transfer.
“US Development” has the meaning set forth in the preamble.
“US Development Entities” means US Development and each of its Affiliates, other than the General Partner and the Group Members.
“US Development ROFO Entities” means US Development and each of its controlled Affiliates, other than the General Partner and the Group Members. For the avoidance of doubt, “US Development ROFO Entities” shall not include any entities that control US Development, including Energy Capital Partners III-A, LP, a Delaware limited partnership, Energy Capital Partners III, LP, a Delaware limited partnership, Energy Capital Partners III-B (USD IP), LP, a Delaware limited partnership and Energy Capital Partners III-C (USD IP), LP, a Delaware limited partnership, or any entities that are under common control with US Development, other than entities controlled by US Development.
“USD” has the meaning set forth in the preamble.
“USD Entities” means USD and each of its Affiliates, other than US Development, the General Partner and the Group Members.
“USD License” is defined in Section 5.1.
“USD Marks” is defined in Section 5.1.
Schedule A
Pre-Closing Litigation
None.
Schedule B
Environmental Remediation Locations
None.
Schedule C
General and Administrative Services
Pursuant to Section 3.1
(1) Management services of USD and its Affiliates (other than the General Partner) provided by employees who devote less than 50% of their business time to the business and affairs of the Partnership. This cost includes USD-stock based compensation expense.
(2) Financial and administrative services (including treasury and accounting)
(3) Information technology services—professional services
(4) Legal services
(5) Health, environmental, safety and security services (including third party security services)
(6) Human resources services
(7) Tax services
(8) Procurement services
(9) Investor relations; Government & public affairs services
(10) Analytical & engineering services
(11) Business development services
