EXHIBIT 10.2
CONTRIBUTION, CONVEYANCE AND
ASSUMPTION AGREEMENT
▇▇▇▇▇ ENERGY PARTNERS, L.P.
INDEX
ARTICLE I DEFINITIONS; SCHEDULES; RECORDATION.....................................................................6
1.1 Definitions...........................................................................................6
1.2 Schedules............................................................................................11
1.3 Recordation of Evidence of Ownership of Assets.......................................................11
ARTICLE II CONCURRENT TRANSACTIONS...............................................................................11
2.1 Contribution of Navajo Southern Common Stock by Navajo Pipeline to Pipeline GP LLC...................11
2.2 Conversion of Navajo Southern to Southern LP.........................................................11
2.3 Contribution and Conveyance by Navajo Pipeline to Pipeline Assets LP of the Texas Navajo
Pipeline Assets......................................................................................12
2.4 Contribution and Conveyance by Navajo Pipeline to Pipeline LLC of the Non-Texas Navajo
Pipeline Assets......................................................................................12
2.5 Contribution and Conveyance by ▇▇▇▇▇ to Mountain LLC of the Mountain Home Terminal Assets............12
2.6 Contribution and Conveyance by ▇▇▇▇▇ Cross Refining to ▇▇▇▇▇ Cross LLC of the ▇▇▇▇▇ Cross
Assets...............................................................................................12
2.7 Contribution and Conveyance by Navajo Refining to Refining Assets LP of the Texas Navajo
Refining Assets......................................................................................13
2.8 Contribution and Conveyance by Navajo Refining to Refining LLC of the Non-Texas Navajo
Refining Assets......................................................................................13
2.9 Contribution by Navajo Pipeline to GP LP of All of Its Interests in Pipeline Assets LP,
Pipeline GP LLC, Navajo Southern LP, and Pipeline LLC................................................13
2.10 Contribution by GP LP to the MLP of the Navajo Pipeline Aggregate Interests..........................14
2.11 Contribution by ▇▇▇▇▇ to the MLP of All of Its Interests in Mountain LLC.............................14
2.12 Contribution by Navajo Refining to the MLP of All of Its Interests in Refining Assets LP,
Refining GP LLC, and Refining LLC....................................................................14
2.13 Contribution by ▇▇▇▇▇ Cross Refining to the MLP of All of Its Interests in ▇▇▇▇▇ Cross LLC...........15
2.14 Public Cash Contribution.............................................................................15
2.15 MLP Receipt of Cash Contribution.....................................................................15
2.16 MLP Cash Distribution to GP LP, Holly, Navajo Refining and ▇▇▇▇▇ Cross Refining......................15
2.17 Contribution of Cash and Interests in the Entities by the MLP to the OLP.............................16
2.18 OLP Cash Contributions to [Pipeline Assets LP, Navajo Southern LP, Refining Assets LP,
Pipeline LLC, Mountain LLC, Refining LLC, and ▇▇▇▇▇ Cross LLC.]......................................16
2.19 Distribution of Debt Proceeds from the OLP to the MLP................................................17
2.20 Distribution of Debt Proceeds from the MLP to GP LP..................................................17
2.21 Cash Distribution from GP LP to Navajo Pipeline......................................................17
2.22 Loan from GP LP to ▇▇▇▇▇.............................................................................17
2.23 Cash Distribution from Navajo Pipeline to ▇▇▇▇▇......................................................17
2.24 Specific Conveyances.................................................................................18
ARTICLE III ASSUMPTION OF CERTAIN LIABILITIES....................................................................18
3.1 Assumption of Texas Navajo Pipeline Liabilities by Pipeline Assets LP................................18
3.2 Assumption of Non-Texas Navajo Pipeline Liabilities by Pipeline LLC..................................18
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3.3 Assumption of Mountain Home Terminal Liabilities by Mountain LLC.....................................18
3.4 Assumption of ▇▇▇▇▇ Cross Liabilities by ▇▇▇▇▇ Cross LLC.............................................19
3.5 Assumption of
Texas Navajo Refining Liabilities by Refining Assets LP................................19
3.6 Assumption of Non-
Texas Navajo Refining Liabilities by Refining LLC..................................19
3.7 Assumption of Navajo Pipeline Aggregate Liabilities by GP LP.........................................19
3.8 Assumption of Navajo Pipeline Aggregate Liabilities by the MLP.......................................20
3.9 Assumption of Mountain LLC Aggregate Liabilities by the MLP..........................................20
3.10 Assumption of Navajo Refining Aggregate Liabilities by the MLP.......................................20
3.11 Assumption of ▇▇▇▇▇ Cross LLC Aggregate Liabilities by the MLP.......................................21
3.12 Assumption of MLP Aggregate Liabilities by the OLP...................................................21
3.13 General Provisions Relating to Assumption of Liabilities.............................................21
ARTICLE IV TITLE MATTERS.........................................................................................22
4.1 Encumbrances.........................................................................................22
4.2 Disclaimer of Warranties; Subrogation; Waiver of Bulk Sales Laws.....................................22
ARTICLE V FURTHER ASSURANCES.....................................................................................24
5.1 Further Assurances...................................................................................24
5.2 Other Assurances.....................................................................................24
ARTICLE VI POWERS OF ATTORNEY....................................................................................24
6.1 Navajo Pipeline......................................................................................24
6.2 Navajo Refining......................................................................................25
6.3 ▇▇▇▇▇................................................................................................26
6.4 ▇▇▇▇▇ Cross Refining.................................................................................26
6.5 Contributing Parties.................................................................................27
ARTICLE VII MISCELLANEOUS........................................................................................27
7.1 Order of Completion of Transactions..................................................................27
7.2 Consents; Restriction on Assignment..................................................................28
7.3 Costs................................................................................................28
7.4 Headings; References; Interpretation.................................................................28
7.5 Successors and Assigns...............................................................................29
7.6 No Third Party Rights................................................................................29
7.7 Counterparts.........................................................................................29
7.8 Governing Law........................................................................................29
7.9 Severability.........................................................................................29
7.10 Deed; ▇▇▇▇ of Sale; Assignment.......................................................................29
7.11 Amendment or Modification............................................................................29
7.12 Integration..........................................................................................29
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CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT
THIS
CONTRIBUTION, CONVEYANCE AND ASSUMPTION AGREEMENT, dated as of
__________, 2004, is entered into by and among ▇▇▇▇▇ Corporation, a Delaware
corporation ("▇▇▇▇▇"); Navajo Pipeline Co., L.P., a Delaware limited partnership
("Navajo Pipeline"); ▇▇▇▇▇ Logistic Services, L.L.C., a Delaware limited
liability company ("GP LLC"); HEP Logistics Holdings, L.P., a Delaware limited
partnership ("GP LP"); ▇▇▇▇▇ Energy Partners, L.P., a Delaware limited
partnership (the "MLP"); HEP Logistics GP, L.L.C., a Delaware limited liability
company ("OLP GP"); HEP Operating Company, L.P., a Delaware limited partnership
(the "OLP"); HEP Mountain Home LLC, a Delaware limited liability company
("Mountain LLC"); Navajo Refining Company, L.P., a Delaware limited partnership
("Navajo Refining"); HEP Refining LLC, a Delaware limited liability company
("Refining LLC"); HEP Refining GP LLC, a Delaware limited liability company
("Refining GP LLC"); HEP Refining Assets LP, a Delaware limited partnership
("Refining Assets LP"); HEP Pipeline LLC, a Delaware limited liability company
("Pipeline LLC"); HEP Pipeline GP LLC, a Delaware limited liability company
("Pipeline GP LLC"); HEP Pipeline Assets Limited Partnership, a Delaware limited
partnership ("Pipeline Assets LP"); ▇▇▇▇▇ Cross Refining Company, L.L.C., a
Delaware limited liability company ("▇▇▇▇▇ Cross Refining"); HEP ▇▇▇▇▇ Cross
LLC, a Delaware limited liability company ("▇▇▇▇▇ Cross LLC"); Navajo Southern,
Inc., a Delaware corporation ("Navajo Southern"); and HEP Navajo Southern LP, a
Delaware limited partnership ("Navajo Southern LP"). The foregoing shall be
referred to individually as a "Party" and collectively as the "Parties".
RECITALS
WHEREAS, ▇▇▇▇▇ and GP LP have formed the MLP pursuant to the Delaware
Revised Uniform Limited Partnership Act (the "Delaware Limited Partnership
Act"), for the purpose of acquiring, owning and operating certain assets of
certain subsidiaries and affiliates of ▇▇▇▇▇ used in storage, transportation and
distribution of crude oil and refined petroleum products;
WHEREAS, in order to accomplish the objectives and purposes in the
preceding recital, the following actions have been taken prior to the date
hereof:
1. Navajo Pipeline formed GP LLC under the terms of the Delaware
Limited Liability Company Act (the "Delaware LLC Act"), and
contributed $1,000 in exchange for all of the membership
interests in GP LLC.
2. GP LLC and Navajo Pipeline formed GP LP under the terms of the
Delaware Limited Partnership Act to which GP LLC contributed
$0.10 in exchange for a .001% general partner interest and
Navajo Pipeline contributed $999.90 in exchange for a 99.999%
limited partner interest in GP LP.
3. GP LP and ▇▇▇▇▇ formed the MLP, to which GP LP contributed
$20.00 and ▇▇▇▇▇ contributed $980.00 in exchange for a 2%
general partner and 98% limited partner interest,
respectively.
4. The MLP formed OLP GP under the terms of the Delaware LLC Act
and contributed $100.00 in exchange for all of the membership
interests in OLP GP.
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5. OLP GP and the MLP formed the OLP under the terms of the
Delaware Limited Partnership Act, to which OLP GP contributed
$0.10 and the MLP contributed $999.90 in exchange for a .001%
general partner and a 99.999% limited partner interest,
respectively.
6. ▇▇▇▇▇ formed Mountain LLC under the terms of the Delaware LLC
Act and contributed $1,000.00 in exchange for all of the
membership interests in Mountain LLC.
7. Navajo Refining formed Refining LLC and Refining GP LLC, each
under the Delaware LLC Act, to each of which Navajo Refining
contributed $1,000.00 in exchange for all of the membership
interests in each.
8. Refining GP LLC and Navajo Refining formed Refining Assets LP
under the terms of the Delaware Limited Partnership Act, to
which Refining GP LLC contributed $0.10 and Navajo Refining
contributed $999.90 in exchange for a .001% general partner
and 99.999% limited partner interest, respectively.
9. Navajo Pipeline formed Pipeline LLC and Pipeline GP LLC, each
under the terms of the Delaware LLC Act, to each of which
Navajo Pipeline contributed $1,000.00 in exchange for the
membership interests in each.
10. Pipeline GP LLC and Navajo Pipeline formed Pipeline Assets LP
under the terms of the Delaware Limited Partnership Act, to
which Pipeline GP LLC contributed $0.10 and Navajo Pipeline
contributed $999.90 in exchange for a .001% general partner
and a 99.999% limited partner interest, respectively.
11. ▇▇▇▇▇ Cross Refining formed ▇▇▇▇▇ Cross LLC under the terms of
the Delaware LLC Act and contributed $1,000.00 in exchange for
all of the membership interests in ▇▇▇▇▇ Cross LLC.
WHEREAS, concurrently with the consummation of the transactions
contemplated hereby, each of the following shall occur:
12. Navajo Pipeline will contribute .001% of the stock of Navajo
Southern to Pipeline GP LLC as a capital contribution.
13. Navajo Southern will file a Certificate of Conversion under
Section 266 of the Delaware Corporation Act (the "Delaware
Corporation Act") and Section 17-217 of the Delaware Limited
Partnership Act to convert itself to Navajo Southern LP,
designating Pipeline GP LLC as its general partner and Navajo
Pipeline as its limited partner, owning a .001% general
partner interest and a 99.999% limited partner interest,
respectively.
14. Navajo Pipeline will convey its
Texas assets, other than
working capital, going into the MLP and its subsidiaries to
Pipeline Assets LP as a capital contribution (99.999% for
itself and .001% on behalf of Pipeline GP LLC), with Pipeline
Assets LP assuming the
Texas Navajo Pipeline Liabilities, as
defined herein.
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15. Navajo Pipeline will convey its non-Texas assets going into
the MLP and its subsidiaries, other than (a) working capital,
(b) the Lovington Crude System (as defined herein), and (c)
the interests in Pipeline GP LLC, GP LLC, GP LP, Pipeline LLC,
Southern LP, and Pipeline Assets LP, to Pipeline LLC as a
capital contribution in exchange for an assumption by Pipeline
LLC of the Non-Texas Navajo Pipeline Liabilities, as defined
herein.
16. ▇▇▇▇▇ will convey the Mountain Home Terminal Assets, as
defined herein, and related assets other than working capital
to Mountain LLC as a capital contribution and in exchange for
an assumption by Mountain LLC of the Mountain Home Terminal
Liabilities.
17. ▇▇▇▇▇ Cross Refining will convey its assets going into the MLP
and its subsidiaries to ▇▇▇▇▇ Cross LLC as a capital
contribution by ▇▇▇▇▇ Cross LLC in exchange for an assumption
by ▇▇▇▇▇ Cross LLC of a portion of the ▇▇▇▇▇ Cross Debt (as
defined herein) and the ▇▇▇▇▇ Cross Assets Aggregate
Liabilities (as defined herein).
18. Navajo Refining will convey its Texas assets, other than
working capital, going into the MLP and its subsidiaries to
Refining Assets LP as a capital contribution (99.999% on its
behalf and .001% on behalf of Refining GP LLC) in exchange for
the assumption by Refining Assets LP of the Texas Navajo
Refining Liabilities, (as defined herein).
19. Navajo Refining will convey all of its non-Texas assets, other
than working capital, going into the MLP and its subsidiaries
and its interests in Refining Assets LP, Refining LLC,
Refining GP LLC and ▇▇▇▇▇ Cross LLC, to Refining LLC as a
capital contribution in exchange for the assumption by
Refining LLC of the Non-Texas Navajo Refining Liabilities, as
defined herein.
20. Navajo Pipeline will convey all of its interests in Pipeline
Assets LP, Pipeline GP LLC, Navajo Southern LP and Pipeline
LLC to GP LP as a capital contribution (99.999% for itself and
.001% on behalf of GP LLC) and the assumption by GP LP of the
Navajo Pipeline Aggregate Liabilities, as defined herein.
21. A. GP LP will contribute its interest in Pipeline Assets LP,
Pipeline GP LLC, Navajo Southern LP, and Pipeline LLC to the
MLP in exchange for (a) a continuation of its 2% general
partner interest in the MLP and its Incentive Distribution
Rights, (b) _______________ Subordinated Units (as defined
herein) representing limited partner interests with a ____%
interest in the MLP, (c) the right to receive
$_________________ of which $____________ is intended to
reimburse GP LP for capital expenditures, (d) the right to
receive the Debt Proceeds (defined below), and (e) the
assumption by the MLP of the Navajo Pipeline Aggregate
Liabilities.
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B. Holly will contribute all of its interest in Mountain LLC
to the MLP in exchange for (a) __________ Subordinated Units
representing limited partner interests with a ____% interest
in the MLP, (b) the right to receive $______________ of which
$_______________ is intended to reimburse ▇▇▇▇▇ for capital
expenditures, and (c) the assumption by the MLP of the
Mountain LLC Aggregate Liabilities.
C. Navajo Refining will contribute all of its interest in
Refining Assets LP, Refining GP LLC, and Refining LLC to the
MLP in exchange for (a) ___________ Subordinated Units,
representing limited partner interests with a _____% interest
in the MLP, (b) the right to receive $_________ of which
$____________ is intended to reimburse Navajo Refining for
capital expenditures, (c) _______________ Common Units (as
defined herein) representing limited partner interests with a
% interest in the MLP, and (d) the assumption by the MLP of
the Navajo Refining Aggregate Liabilities.
▇. ▇▇▇▇▇ Cross Refining will contribute all of its interest in
▇▇▇▇▇ Cross Assets LLC to the MLP in exchange for (a)
______________ Subordinated Units, representing limited
partner interests with a ____% interest in the MLP, and (b)
the right to receive $_________ of which $___________ is
intended to reimburse ▇▇▇▇▇ Cross Refining for capital
expenditures.
E. The public, through the underwriters of the Offering (as
defined herein) will contribute $______________ to the MLP in
exchange for 6,000,000 Common Units representing limited
partner interests with a 42% interest in the MLP.
22. The MLP will pay or cause to be paid the underwriting
discounts and offering expenses incurred by the MLP in
connection with the initial public offering (the "Offering")
of the Common Units (collectively, the "Offering Costs"),
which are estimated to be $____________.
23. The MLP will distribute $_______________, $__________________,
$__________________, and $_____________________ to GP LP,
Holly, Navajo Refining, and ▇▇▇▇▇ Cross LLC, respectively, an
aggregate of $____________, a portion of which is to satisfy
their rights to be reimbursed for capital expenditures.
24. The MLP will contribute to the OLP the remaining equity cash
($____________) and all of its interests in Navajo Southern
LP, Pipeline Assets LP, Pipeline GP LLC, Pipeline LLC,
Mountain LLC, Refining Assets LP, Refining GP LLC, Refining
LLC, and ▇▇▇▇▇ Cross LLC as additional capital contributions
(99.999% for itself and .001% on behalf of OLP GP) and in
exchange for the assumption by the OLP of the MLP Aggregate
Liabilities, as defined herein.
25. The OLP will contribute the following amounts to the following
entities as additional contributions and to (a) replenish
working capital and (b) pay all of the
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Subsidiary Debt (as defined herein), all of which shall be
paid by the respective entities:
[A. Pipeline Assets LP of $_____________ cash (.001% on behalf
of Pipeline GP LLC);
B. Navajo Southern LP of $___________ cash (.001% on behalf of
Pipeline GP LLC);
C. Refining Assets LP of $____________ cash (.001% on behalf
of Refining GP LLC);
D. Pipeline LLC of $____________ cash;
E. Mountain LLC of $___________ cash;
F. Refining LLC of $____________ cash; and
▇. ▇▇▇▇▇ Cross LLC of $____________ cash.]
[SPECIFIC SUBSIDIARIES AND AMOUNTS TO BE DETERMINED AT
CLOSING.]
26. The OLP will borrow $25,000,000 in non-recourse debt (the
"Debt") and will distribute $25,000,000 to the MLP (.001% on
behalf of the OLP GP); in turn the MLP will distribute the
funds to GP LP.
27. GP LP will distribute $________________ in cash to Navajo
Pipeline and will loan $_________________ in cash to ▇▇▇▇▇; in
turn Navajo Pipeline will distribute the $_____________ it
received to ▇▇▇▇▇.
28. To the extent the over allotment option which has been granted
to the underwriters of the Offering is exercised, the
proceeds, net of the underwriters' spread (i.e.
$____________), will be used by the MLP to redeem from Navajo
Refining a number of Common Units equal to those sold pursuant
to exercise of such over allotment.
29. The agreements of limited partnership of each of the following
will be amended and restated to the extent necessary to
reflect the applicable matters set forth above and in Article
II and Article III of this Agreement (as defined below):
(a) the MLP;
(b) the OLP;
(c) GP LP;
(d) Pipeline Assets LP;
(e) Refining Assets LP;
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(f) Navajo Southern LP;
(g) Navajo Pipeline; and
(h) Navajo Refining.
30. The limited liability company agreements of each of the
following will be amended to the extent necessary to reflect
the applicable matters set forth above and in Article II and
Article III in this Agreement:
(a) GP LLC;
(b) Mountain LLC;
(c) OLP GP LLC;
(d) Pipeline GP LLC;
(e) Pipeline LLC;
(f) Refining GP LLC;
(g) Refining LLC;
(h) ▇▇▇▇▇ Cross LLC; and
(i) ▇▇▇▇▇ Cross Refining.
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the Parties undertake and agree as follows:
ARTICLE I
DEFINITIONS; SCHEDULES; RECORDATION
1.1 Definitions. The following capitalized terms have the meanings
given below.
"Acts" shall mean collectively the Delaware Limited
Partnership Act, the Delaware LLC Act, and the Delaware Corporation Act.
"Affiliate" has the meaning assigned to such term in the
Partnership Agreement.
"Agreement" means this
Contribution, Conveyance and Assumption
Agreement.
"Assets" has the meaning assigned to such term in Section 4.1.
"Beneficial Owner" has the meaning assigned to such term in
Section 7.2.
"Common Units" has the meaning assigned to such term in the
Partnership Agreement.
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"Contributing Party" has the meaning assigned to such term in
Section 6.5.
"Debt Proceeds" has the meaning assigned to such term in
Section 2.19.
"Delaware Corporation Act" has the meaning assigned to such
term in Item 13 of the Recitals of this Agreement.
"Delaware LLC Act" has the meaning assigned to such term in
Item 1 of the Recitals of this Agreement.
"Delaware Limited Partnership Act" has the meaning assigned to
such term in the initial Recital to this Agreement.
"Effective Date" means _________________, 2004.
"Effective Time" means 12:01 a.m. Eastern Standard Time on the
Effective Date.
"Entities" means, collectively, Pipeline Assets LP, Refining
Assets LP, Pipeline LLC, Pipeline GP LLC, Navajo Southern LP, Mountain LLC,
Refining GP LLC, Refining LLC and ▇▇▇▇▇ Cross LLC.
"FERC" means the Federal Energy Regulatory Commission.
"GP LLC" has the meaning assigned to such term in the first
paragraph of this Agreement.
"GP LP" has the meaning assigned to such term in the first
paragraph of this Agreement.
"GP LP Special LP Interest" has the meaning assigned to such
term in Section 2.10.
"▇▇▇▇▇" has the meaning assigned to such term in the first
paragraph of this Agreement.
"Incentive Distribution Rights" has the meaning assigned to
such term in the Partnership Agreement.
"Laws" means any and all laws, statutes, ordinances, rules or
regulations promulgated by a governmental authority, orders of a governmental
authority, judicial decisions, decisions of arbitrators or determinations of any
governmental authority or court.
"Lovington Crude System" means those intermediate product
pipelines currently owned by Navajo Pipeline transporting feedstocks and crude
oil from Lovington, New Mexico, to Artesia, New Mexico, through an 8-inch
pipeline and a 10-inch pipeline, each of which is approximately 65 miles long.
"MLP" has the meaning assigned to such term in the first
paragraph of this Agreement.
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"MLP Aggregate Interests" has the meaning assigned to such
term in Section 2.17.
"MLP Aggregate Liabilities" shall mean all of the obligations
under the applicable regulations and the limited partnership agreement relating
to the MLP Aggregate Interests.
"MLP Special LP Interest" has the meaning assigned to such
term in Section 2.17.
"Mountain Home Terminal Assets" has the meaning assigned to
such term in Section 2.5.
"Mountain Home Terminal Liabilities" means all obligations and
liabilities associated with the Mountain Home Assets.
"Mountain LLC" has the meaning assigned to such term in the
first paragraph of this Agreement.
"Mountain LLC Aggregate Interests" has the meaning assigned to
such term in Section 2.11.
"Mountain LLC Aggregate Liabilities" means all obligations and
liabilities associated with the Mountain LLC Aggregate Interests.
"Navajo Pipeline" has the meaning assigned to such term in the
first paragraph of this Agreement.
"Navajo Pipeline Aggregate Interests" has the meaning assigned
to such term in Section 2.9.
"Navajo Pipeline Aggregate Liabilities" means all obligations
and liabilities associated with the Navajo Pipeline Aggregate Interests.
"Navajo Refining Aggregate Interests" has the meaning assigned
to such term in Section 2.12.
"Navajo Refining Aggregate Liabilities" means all obligations
and liabilities associated with the Navajo Refining Aggregate Interests.
"Navajo Southern" has the meaning assigned to such term in the
first paragraph of this Agreement.
"Navajo Southern LP" has the meaning assigned to such term in
the first paragraph of this Agreement.
"Navajo Southern Stock" has the meaning assigned to such term
in Section 2.1.
"Non-Texas Navajo Pipeline Assets" has the meaning assigned to
such term in Section 2.4.
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"Non-Texas Navajo Pipeline Liabilities" means all obligations
and liabilities associated with the Non-Texas Navajo Pipeline Assets.
"Non-Texas Navajo Refining Assets" has the meaning assigned to
such term in Section 2.8.
"Non-Texas Navajo Refining Liabilities" means all obligations
and liabilities associated with the Non-Texas Navajo Refining Assets.
"Offering" has the meaning assigned to such term in Item 22 of
the Recitals of this Agreement.
"Offering Costs" has the meaning assigned to such term in
[Item 22] of the Recitals to this Agreement.
"OLP" has the meaning assigned to such term in the first
paragraph of this Agreement.
"OLP GP" has the meaning assigned to such term in the first
paragraph of this Agreement.
"Omnibus Agreement" means the Omnibus Agreement dated of even
date herewith, by and among ▇▇▇▇▇, Navajo Pipeline, GP LLC, GP LP, the MLP, [OLP
GP], and the OLP.
"Partnership Agreement" means the Agreement of Limited
Partnership of the MLP, as it may be amended and restated from time to time.
"Partnership Group" has the meaning assigned to such term in
the Omnibus Agreement.
"Party and Parties" have the meanings assigned to such terms
in the first paragraph of this Agreement.
"Pipeline Assets LP" has the meaning assigned to such term in
the first paragraph of this Agreement.
"Pipeline GP LLC" has the meaning assigned to such term in the
first paragraph of this Agreement.
"Pipeline LLC" has the meaning assigned to such term in the
first paragraph of this Agreement.
"Receiving Party" has the meaning assigned to such term in
Section 6.5.
"Refining Assets LP" has the meaning assigned to such term in
the first paragraph of this Agreement.
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"Refining GP LLC" has the meaning assigned to such term in the
first paragraph of this Agreement.
"Refining LLC" has the meaning assigned to such term in the
first paragraph of this Agreement.
"Restriction" has the meaning assigned to such term in Section
7.2.
"Restriction Asset" has the meaning assigned to such term in
Section 7.2.
"Registration Statement" means the registration statement on
Form S-1 filed by the MLP relating to the Offering.
"Specific Conveyances" has the meaning assigned to such term
in Section 2.24.
"Subordinated Units" has the meaning assigned to such term in
the Partnership Agreement.
"Subsidiary Debt" means the debt of certain subsidiaries of
the OLP as set forth on Schedule 2.18.
"Texas Navajo Pipeline Assets" has the meaning assigned to
such term in Section 2.3.
"Texas Navajo Pipeline Liabilities" means all obligations and
liabilities associated with the Texas Navajo Pipeline Assets.
"Texas Navajo Refining Assets" has the meaning assigned to
such term in Section 2.7.
"Texas Navajo Refining Liabilities" means all obligations and
liabilities associated with the Texas Navajo Refining Assets.
"Underwriters" has the meaning assigned to such term in Item
___ of the Recitals to this Agreement.
"Underwriting Agreement" means the Underwriting Agreement
dated _____________, 2004, by and between the Underwriters and [▇▇▇▇▇, GP LP,
the MLP, GP LLC, and OLP].
"▇▇▇▇▇ Cross Assets" has the meaning assigned to such term in
Section 2.6.
"▇▇▇▇▇ Cross Debt" means ________________________.
"▇▇▇▇▇ Cross Liabilities" means all obligations and
liabilities associated with the ▇▇▇▇▇ Cross Assets.
"▇▇▇▇▇ Cross LLC" has the meaning assigned to such term in the
first paragraph of this Agreement.
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"▇▇▇▇▇ Cross LLC Aggregate Interests" has the meaning assigned
to such term in Section 2.11.
"▇▇▇▇▇ Cross LLC Aggregate Liabilities" means all obligations
and liabilities associated with the ▇▇▇▇▇ Cross LLC Aggregate Interests.
"▇▇▇▇▇ Cross Refining" has the meaning assigned to such term
in the first paragraph of this Agreement.
1.2 Schedules. The following schedules are attached hereto:
(a) Schedule 2.3 - List of Texas Navajo Pipeline Assets
(b) Schedule 2.4 - List of Non-Texas Navajo Pipeline
Assets
(c) Schedule 2.5 - List of Mountain Home Assets
(d) Schedule 2.6 - List of ▇▇▇▇▇ Cross Assets
(e) Schedule 2.7 - List of Texas Navajo Refining Assets
(f) Schedule 2.8 - List of Non-Texas Navajo Refining
Assets
(g) Schedule 2.18 - List of Debts of Various Limited
Partnerships and Limited Liability Companies
1.3 Recordation of Evidence of Ownership of Assets. In connection with
the conversions and mergers under the applicable Acts that are referred to in
the recitals to this Agreement, the Parties acknowledge that certain
jurisdictions in which the assets of the applicable parties to such conversions
and mergers are located may require that documents be recorded by the entities
resulting from such conversions and mergers in order to evidence title to assets
in such entities. All such documents shall evidence such new ownership and are
not intended to modify, and shall not modify, any of the terms, covenants and
conditions herein set forth.
ARTICLE II
CONCURRENT TRANSACTIONS
2.1 Contribution of Navajo Southern Common Stock by Navajo Pipeline to
Pipeline GP LLC. Navajo Pipeline hereby grants, contributes, transfers, assigns
and conveys to Pipeline GP LLC, its successors and assigns, for its and their
own use forever, all right, title and interest in and to .001% of the issued and
outstanding common stock of Navajo Southern (the "Navajo Southern Stock"), and
Pipeline GP LLC hereby accepts the Navajo Southern Stock as an additional
contribution to the capital of Pipeline GP LLC.
TO HAVE AND TO HOLD the Navajo Southern Stock unto Pipeline GP LLC, its
successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.2 Conversion of Navajo Southern to Southern LP. Navajo Southern has
adopted articles of conversion and has converted to Navajo Southern LP, having
(a) Pipeline GP LLC as the general partner owning a .001% general partner
interest and (b) Navajo Pipeline as the limited partner owning a 99.999% limited
partner interest.
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2.3 Contribution and Conveyance by Navajo Pipeline to Pipeline Assets
LP of the Texas Navajo Pipeline Assets. Navajo Pipeline hereby grants,
contributes, transfers, assigns and conveys to Pipeline Assets LP, its
successors and assigns, for its and their own use forever, all right, title and
interest of Navajo Pipeline in and to all of the assets described on Schedule
2.3 (the "Texas Navajo Pipeline Assets"), and Pipeline Assets LP hereby accepts
the Texas Navajo Pipeline Assets, as an additional contribution to the capital
of Pipeline Assets LP, 99.999% on behalf of Navajo Pipeline and .001% on behalf
of Pipeline GP LLC, subject to all matters to be contained in the instruments of
conveyance covering the Texas Navajo Pipeline Assets to evidence such
contribution and conveyance.
TO HAVE AND TO HOLD the Texas Navajo Pipeline Assets unto Pipeline
Assets LP, its successors and assigns, together with all and singular the rights
and appurtenances thereto in anywise belonging, subject, however, to the terms
and conditions stated in this Agreement, and in such instruments of conveyance
forever.
2.4 Contribution and Conveyance by Navajo Pipeline to Pipeline LLC of
the Non-Texas Navajo Pipeline Assets. Navajo Pipeline hereby grants,
contributes, transfers, assigns and conveys to Pipeline LLC, its successors and
assigns, for its and their own use forever, all right, title and interest of
Navajo Pipeline in and to all of the assets described on Schedule 2.4 (the
"Non-Texas Navajo Pipeline Assets"), and Pipeline LLC hereby accepts the
Non-Texas Navajo Pipeline Assets, as an additional contribution to the capital
of Pipeline LLC, subject to all matters to be contained in the instruments of
conveyance covering the Non-Texas Navajo Pipeline Assets to evidence such
contribution and conveyance.
TO HAVE AND TO HOLD the Non-Texas Navajo Pipeline Assets unto Pipeline
Assets LLC, its successors and assigns, together with all and singular the
rights and appurtenances thereto in anywise belonging, subject, however, to the
terms and conditions stated in this Agreement, and in such instruments of
conveyance forever.
2.5 Contribution and Conveyance by ▇▇▇▇▇ to Mountain LLC of the
Mountain Home Terminal Assets. ▇▇▇▇▇ hereby grants, contributes, transfers,
assigns and conveys to Mountain LLC, its successors and assigns, for its and
their own use forever, all right, title and interest of ▇▇▇▇▇ in and to all of
the assets described on Schedule 2.5 (the "Mountain Home Terminal Assets"), and
Mountain LLC hereby accepts the Mountain Home Terminal Assets, as an additional
contribution to the capital of Mountain LLC, subject to all matters to be
contained in the instruments of conveyance covering the Mountain Home Terminal
Assets to evidence such contribution and conveyance.
TO HAVE AND TO HOLD the Mountain Home Terminal Assets unto Mountain
LLC, its successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, and in such instruments of conveyance
forever.
2.6 Contribution and Conveyance by ▇▇▇▇▇ Cross Refining to ▇▇▇▇▇ Cross
LLC of the ▇▇▇▇▇ Cross Assets. ▇▇▇▇▇ Cross Refining hereby grants, contributes,
transfers, assigns and conveys to ▇▇▇▇▇ Cross LLC, its successors and assigns,
for its and their own use forever, all right, title and interest of ▇▇▇▇▇ Cross
Refining in and to all of the assets described on
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Schedule 2.6 (the "▇▇▇▇▇ Cross Assets"), and ▇▇▇▇▇ Cross LLC hereby accepts the
▇▇▇▇▇ Cross Assets, as an additional contribution to the capital of ▇▇▇▇▇ Cross
LLC, subject to all matters to be contained in the instruments of conveyance
covering the ▇▇▇▇▇ Cross Assets to evidence such contribution and conveyance.
TO HAVE AND TO HOLD the ▇▇▇▇▇ Cross Assets unto ▇▇▇▇▇ Cross LLC, its
successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, and in such instruments of conveyance
forever.
2.7 Contribution and Conveyance by Navajo Refining to Refining Assets
LP of the Texas Navajo Refining Assets. Navajo Refining hereby grants,
contributes, transfers, assigns and conveys to Refining Assets LP, its
successors and assigns, for its and their own use forever, all right, title and
interest of Navajo Refining in and to all of the assets described on Schedule
2.7 (the "Texas Navajo Refining Assets"), and Refining Assets LP hereby accepts
the Texas Navajo Refining Assets, as an additional contribution to the capital
of Refining Assets LP, 99.999% on behalf of Navajo Refining and .001% on behalf
of Refining GP LLC, subject to all matters to be contained in the instruments of
conveyance covering the Texas Navajo Refining Assets to evidence such
contribution and conveyance.
TO HAVE AND TO HOLD the Texas Navajo Refining Assets unto Refining
Assets LP, its successors and assigns, together with all and singular the rights
and appurtenances thereto in anywise belonging, subject, however, to the terms
and conditions stated in this Agreement, and in such instruments of conveyance
forever.
2.8 Contribution and Conveyance by Navajo Refining to Refining LLC of
the Non-Texas Navajo Refining Assets. Navajo Refining hereby grants,
contributes, transfers, assigns and conveys to Refining LLC, its successors and
assigns, for its and their own use forever, all right, title and interest of
Navajo Refining in and to all of the assets described on Schedule 2.8 (the
"Non-Texas Navajo Refining Assets"), and Refining LLC hereby accepts the
Non-Texas Navajo Refining Assets, as an additional contribution to the capital
of Refining LLC, subject to all matters to be contained in the instruments of
conveyance covering the Non-Texas Navajo Refining Assets to evidence such
contribution and conveyance.
TO HAVE AND TO HOLD the Non-Texas Navajo Refining Assets unto Refining
Assets LLC, its successors and assigns, together with all and singular the
rights and appurtenances thereto in anywise belonging, subject, however, to the
terms and conditions stated in this Agreement, and in such instruments of
conveyance forever.
2.9 Contribution by Navajo Pipeline to GP LP of All of Its Interests in
Pipeline Assets LP, Pipeline GP LLC, Navajo Southern LP, and Pipeline LLC.
Navajo Pipeline hereby grants, contributes, transfers, assigns and conveys to GP
LP, its successors and assigns, for its and their own use forever, all of its
right, title and interest in and to (a) its 100% membership interest in Pipeline
GP LLC, (b) its 99.999% limited partner interest in Pipeline Assets LP, (c) its
100% membership interest in Pipeline LLC, and (d) its 99.999% limited partner
interest in Navajo Southern LP (herein collectively called the "Navajo Pipeline
Aggregate Interests"), and GP LP
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hereby accepts the Navajo Pipeline Aggregate Interests as an additional
contribution to the capital of GP LP, 99.999% on behalf of Navajo Pipeline and
..001% on behalf of GP LLC.
TO HAVE AND TO HOLD the Navajo Pipeline Aggregate Interests unto GP LP,
its successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.10 Contribution by GP LP to the MLP of the Navajo Pipeline Aggregate
Interests. GP LP hereby grants, contributes, transfers, assigns and conveys to
the MLP, its successors and assigns, for its and their own use forever, all of
the Navajo Pipeline Aggregate Interests, and the MLP hereby accepts the Navajo
Pipeline Aggregate Interests as an additional contribution to the capital of the
MLP in exchange for (a) a continuation of GP LP's 2% general partner interest in
the MLP and its Incentive Distribution Rights in the MLP, (b) ___________
Subordinated Units, representing limited partner interests with a ___% interest
in the MLP, (c) the right to receive $______________, of which
$____________________ is intended to reimburse GP LP for capital expenditures,
and (d) a special limited partnership interest in the MLP (the "GP LP Special LP
Interest") giving GP LP only the right to receive the Debt Proceeds in cash from
the MLP upon redemption of the GP LP Special LP Interest.
TO HAVE AND TO HOLD the Navajo Pipeline Aggregate Interests unto the
MLP its successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.11 Contribution by ▇▇▇▇▇ to the MLP of All of Its Interests in
Mountain LLC. ▇▇▇▇▇ hereby grants, contributes, transfers, assigns and conveys
to the MLP, its successors and assigns, for its and their own use forever, all
of its right, title and interest in and to its 100% membership interest in
Mountain LLC (the "Mountain LLC Aggregate Interests"), and the MLP hereby
accepts the Mountain LLC Aggregate Interests as a contribution to the capital of
the MLP in exchange for (a) _______________ Subordinated Units, representing
limited partner interests with a ____% interest in the MLP, and (b) the right to
receive $_____________, of which $__________ is intended to reimburse ▇▇▇▇▇ for
capital expenditures.
TO HAVE AND TO HOLD the Mountain LLC Aggregate Interests unto the MLP,
its successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.12 Contribution by Navajo Refining to the MLP of All of Its Interests
in Refining Assets LP, Refining GP LLC, and Refining LLC. Navajo Refining hereby
grants, contributes, transfers, assigns and conveys to the MLP, its successors
and assigns, for its and their own use forever, all of its right, title and
interest in and to (a) its 100% membership interest in Refining GP LLC, (b) its
99.999% limited partner interest in Refining Assets LP, and (c) its 100%
membership interest in Refining LLC (herein collectively called the "Navajo
Refining Aggregate Interests"), and the MLP hereby accepts the Navajo Refining
Aggregate Interests as a contribution to the capital of the MLP in exchange for
(i) _______________ Subordinated ▇▇▇▇▇,
▇▇
representing limited partner interests with a ____% interest in the MLP, (ii)
the right to receive $_____________, of which $__________ is intended to
reimburse Navajo Refining for capital expenditures, and (iii) ___________ Common
Units, representing limited partner interests with a ___% interest in the MLP.
TO HAVE AND TO HOLD the Navajo Refining Aggregate Interests unto the
MLP, its successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.13 Contribution by ▇▇▇▇▇ Cross Refining to the MLP of All of Its
Interests in ▇▇▇▇▇ Cross LLC. ▇▇▇▇▇ Cross Refining hereby grants, contributes,
transfers, assigns and conveys to the MLP, its successors and assigns, for its
and their own use forever, all of its right, title and interest in and to its
100% membership interest in ▇▇▇▇▇ Cross LLC (the "▇▇▇▇▇ Cross LLC Aggregate
Interests"), and the MLP hereby accepts the ▇▇▇▇▇ Cross LLC Aggregate Interests
as a contribution to the capital of the MLP in exchange for (a) _______________
Subordinated Units, representing limited partner interests with a ____% interest
in the MLP, and (b) the right to receive $_____________, of which $__________ is
intended to reimburse ▇▇▇▇▇ Cross Refining for capital expenditures.
TO HAVE AND TO HOLD the ▇▇▇▇▇ Cross LLC Aggregate Interests unto the
MLP, its successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.14 Public Cash Contribution. The Parties acknowledge a cash
contribution of $____________ from the public to the MLP in connection with the
Offering in exchange for 6,000,000 Common Units, representing limited partner
interests with a 42% interest in the MLP.
2.15 MLP Receipt of Cash Contribution. The MLP acknowledges receipt of
$____________ in cash obtained from the Offering as a capital contribution to
the MLP, and Parties acknowledge that the MLP has used all of such capital
contribution (a) to pay the Offering Costs that are due and payable or that have
been previously paid and (b) to make an additional capital contribution to the
OLP as described in Section 2.17.
2.16 MLP Cash Distribution to GP LP, Holly, Navajo Refining and ▇▇▇▇▇
Cross Refining.
(a) The Parties acknowledge the distribution by the MLP to GP
LP and the receipt by GP LP of $______________;
(b) The Parties acknowledge the distribution by the MLP to
▇▇▇▇▇ and the receipt by ▇▇▇▇▇ of $______________;
(c) The Parties acknowledge the distribution by the MLP to
Navajo Refining and the receipt by Navajo Refining of $______________; and
15
(d) The Parties acknowledge the distribution by the MLP to
▇▇▇▇▇ Cross Refining and the receipt by ▇▇▇▇▇ Cross Refining of
$____________________.
A portion of each of the above distributions has been made to satisfy
the rights to reimbursement for capital expenditures of the above respective
parties.
2.17 Contribution of Cash and Interests in the Entities by the MLP to
the OLP. The OLP acknowledges the additional contribution by the MLP to the OLP
and the receipt by the OLP of $____________. The MLP hereby grants, contributes,
transfers, assigns and conveys to the OLP, its successors and assigns, for its
and their own use forever, all of its right, title and interest in and to the
Entities (being all of the following respective interests which are herein
collectively called the "MLP Aggregate Interests"):
(a) a 99.999% limited partner interest in Pipeline Assets
LP;
(b) a 99.999% limited partner interest in Refining Assets
LP;
(c) a 100% membership interest in Pipeline LLC;
(d) a 100% membership interest in Pipeline GP LLC;
(e) a 99.999% limited partner interest in Navajo Southern
LP;
(f) a 100% membership interest in Mountain LLC;
(g) a 100% membership interest in Refining GP LLC;
(h) a 100% membership interest in Refining LLC; and
(i) a 100% membership interest in ▇▇▇▇▇ Cross LLC.
The OLP hereby accepts the $____________ cash and the MLP Aggregate
Interests as an additional contribution to the capital of the OLP (99.999% on
behalf of the MLP and .001% on behalf of OLP GP) in exchange for a special
limited partner interest in the OLP (the "MLP Special LP Interest") giving the
MLP only the right to receive the Debt Proceeds from the OLP upon redemption of
the MLP Special LP Interest.
TO HAVE AND TO HOLD the MLP Aggregate Interests unto the OLP, its
successors and assigns, together with all and singular the rights and
appurtenances thereto in anywise belonging, subject, however, to the terms and
conditions stated in this Agreement, forever.
2.18 OLP Cash Contributions to [Pipeline Assets LP, Navajo Southern LP,
Refining Assets LP, Pipeline LLC, Mountain LLC, Refining LLC, and ▇▇▇▇▇ Cross
LLC.]
(a) [The Parties acknowledge the contribution by the OLP to
Pipeline Assets LP and the receipt by Pipeline Assets LP of $______________ cash
(99.999% on behalf of the OLP and .001% on behalf of Pipeline GP LLC);
16
(b) The Parties acknowledge the contribution by the OLP to
Navajo Southern LP and the receipt by Navajo Southern LP of $______________ cash
(99.999% on behalf of the OLP and .001% on behalf of Pipeline GP LLC);
(c) The Parties acknowledge the contribution by the OLP to
Refining Assets LP and the receipt by Refining Assets LP of $______________ cash
(99.999% on behalf of the OLP and .001% on behalf of Refining GP LLC);
(d) The Parties acknowledge the contribution by the OLP to
Pipeline LLC and the receipt by Pipeline LLC of $______________ cash;
(e) The Parties acknowledge the contribution by the OLP to
Mountain Home LLC and the receipt by Mountain Home LLC of $______________ cash;
(f) The Parties acknowledge the contribution by the OLP to
Refining LLC and the receipt by Refining LLC of $______________ cash; and
(g) The Parties acknowledge the contribution by the OLP to
▇▇▇▇▇ Cross LLC and the receipt by ▇▇▇▇▇ Cross LLC of $______________ cash.]
[SPECIFIC SUBSIDIARIES AND AMOUNTS TO BE DETERMINED AT CLOSING.]
The above contributions have been made to (i) replenish working capital
of the above subsidiaries of the OLP and (ii) pay the debt of each such
subsidiary in the respective amount set forth on Schedule 2.18. Each of the
Parties acknowledges that each of the debts listed on Schedule 2.18 has been
paid in full by each of the respective subsidiaries listed on Section 2.18 with
the amounts acknowledged as being contributed under this Section 2.18.
2.19 Distribution of Debt Proceeds from the OLP to the MLP. The Parties
acknowledge that the OLP has borrowed $25,000,000 (the "Debt Proceeds") on a
recourse basis and has distributed the Debt Proceeds to the MLP (99.999% on
behalf of the OLP and .001% on behalf of OLP GP) in redemption of the MLP
Special LP Interest. The MLP hereby acknowledges receipt of the Debt Proceeds
from the OLP in redemption of the MLP Special LP Interest.
2.20 Distribution of Debt Proceeds from the MLP to GP LP. The Parties
acknowledge that the MLP has distributed the Debt Proceeds to GP LP in
redemption of the GP LP Special LP Interest. GP LP hereby acknowledges receipt
of the Debt Proceeds from the MLP in redemption of the GP LP Special LP
Interest.
2.21 Cash Distribution from GP LP to Navajo Pipeline. The Parties
acknowledge that GP LP has distributed $_____________ to Navajo Pipeline.
2.22 Loan from GP LP to ▇▇▇▇▇. The Parties acknowledge that GP LP has
made a loan to ▇▇▇▇▇ of $_________________.
2.23 Cash Distribution from Navajo Pipeline to ▇▇▇▇▇. The Parties
acknowledge that Navajo Pipeline has distributed $_____________ to ▇▇▇▇▇.
17
2.24 Specific Conveyances. To further evidence the contributions of the
Assets reflected in this Agreement, each party making such contribution may have
executed and delivered to the party receiving such contribution certain
conveyance, assignment and ▇▇▇▇ of sale instruments (the "Specific
Conveyances"). The Specific Conveyances shall evidence and perfect such sale and
contribution made by this Agreement and shall not constitute a second conveyance
of any assets or interests therein and shall be subject to the terms of this
Agreement.
ARTICLE III
ASSUMPTION OF CERTAIN LIABILITIES
3.1 Assumption of Texas Navajo Pipeline Liabilities by Pipeline Assets
LP. In connection with the contribution by Navajo Pipeline of the Texas Navajo
Pipeline Assets to Pipeline Assets LP, as set forth in Section 2.3 above,
Pipeline Assets LP hereby assumes and agrees to duly and timely pay, perform and
discharge all of the Texas Navajo Pipeline Liabilities, to the full extent that
Navajo Pipeline has been heretofore or would have been in the future obligated
to pay, perform and discharge the Texas Navajo Pipeline Liabilities were it not
for such contribution and the execution and delivery of this Agreement;
provided, however, that said assumption and agreement to duly and timely pay,
perform and discharge the Texas Navajo Pipeline Liabilities shall not (a)
increase the obligation of Pipeline Assets LP with respect to the Texas Navajo
Pipeline Liabilities beyond that of Navajo Pipeline, (b) waive any valid defense
that was available to Navajo Pipeline with respect to the Texas Navajo Pipeline
Liabilities or (c) enlarge any rights or remedies of any third party under any
of the Texas Navajo Pipeline Liabilities.
3.2 Assumption of Non-Texas Navajo Pipeline Liabilities by Pipeline
LLC. In connection with the contribution by Navajo Pipeline of the Non-Texas
Navajo Pipeline Assets to Pipeline LLC, as set forth in Section 2.4 above,
Pipeline LLC hereby assumes and agrees to duly and timely pay, perform and
discharge all of the Non-Texas Navajo Pipeline Liabilities, to the full extent
that Navajo Pipeline has been heretofore or would have been in the future
obligated to pay, perform and discharge the Non-Texas Navajo Pipeline
Liabilities were it not for such contribution and the execution and delivery of
this Agreement; provided, however, that said assumption and agreement to duly
and timely pay, perform and discharge the Non-Texas Navajo Pipeline Liabilities
shall not (a) increase the obligation of Pipeline LLC with respect to the
Non-Texas Navajo Pipeline Liabilities beyond that of Navajo Pipeline, (b) waive
any valid defense that was available to Navajo Pipeline with respect to the
Non-Texas Navajo Pipeline Liabilities or (c) enlarge any rights or remedies of
any third party under any of the Non-Texas Navajo Pipeline Liabilities.
3.3 Assumption of Mountain Home Terminal Liabilities by Mountain LLC.
In connection with the contribution by ▇▇▇▇▇ of the Mountain Home Terminal
Assets to Mountain LLC, as set forth in Section 2.5 above, Mountain LLC hereby
assumes and agrees to duly and timely pay, perform and discharge all of the
Mountain Home Terminal Liabilities, to the full extent that ▇▇▇▇▇ has been
heretofore or would have been in the future obligated to pay, perform and
discharge the Mountain Home Terminal Liabilities were it not for such
contribution and the execution and delivery of this Agreement; provided,
however, that said assumption and agreement to duly and timely pay, perform and
discharge the Mountain Home Terminal Liabilities shall not (a) increase the
obligation of Mountain LLC with respect to the Mountain
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Home Terminal Liabilities beyond that of ▇▇▇▇▇, (b) waive any valid defense that
was available to ▇▇▇▇▇ with respect to the Mountain Home Terminal Liabilities or
(c) enlarge any rights or remedies of any third party under any of the Mountain
Home Terminal Liabilities.
3.4 Assumption of ▇▇▇▇▇ Cross Liabilities by ▇▇▇▇▇ Cross LLC. In
connection with the contribution by ▇▇▇▇▇ Cross Refining of the ▇▇▇▇▇ Cross
Assets to ▇▇▇▇▇ Cross LLC, as set forth in Section 2.6 above, ▇▇▇▇▇ Cross LLC
hereby assumes and agrees to duly and timely pay, perform and discharge all of
the ▇▇▇▇▇ Cross Liabilities, to the full extent that ▇▇▇▇▇ Cross Refining has
been heretofore or would have been in the future obligated to pay, perform and
discharge the ▇▇▇▇▇ Cross Liabilities were it not for such contribution and the
execution and delivery of this Agreement; provided, however, that said
assumption and agreement to duly and timely pay, perform and discharge the ▇▇▇▇▇
Cross Liabilities shall not (a) increase the obligation of ▇▇▇▇▇ Cross LLC with
respect to the ▇▇▇▇▇ Cross Liabilities beyond that of ▇▇▇▇▇ Cross Refining, (b)
waive any valid defense that was available to ▇▇▇▇▇ Cross Refining with respect
to the ▇▇▇▇▇ Cross Liabilities or (c) enlarge any rights or remedies of any
third party under any of the ▇▇▇▇▇ Cross Liabilities.
3.5 Assumption of Texas Navajo Refining Liabilities by Refining Assets
LP. In connection with the contribution by Navajo Refining of the Texas Navajo
Refining Assets to Refining Assets LP, as set forth in Section 2.7 above,
Refining Assets LP hereby assumes and agrees to duly and timely pay, perform and
discharge all of the Texas Navajo Refining Liabilities, to the full extent that
Navajo Refining has been heretofore or would have been in the future obligated
to pay, perform and discharge the Texas Navajo Refining Liabilities were it not
for such contribution and the execution and delivery of this Agreement;
provided, however, that said assumption and agreement to duly and timely pay,
perform and discharge the Texas Navajo Refining Liabilities shall not (a)
increase the obligation of Refining Assets LP with respect to the Texas Navajo
Refining Liabilities beyond that of Navajo Refining, (b) waive any valid defense
that was available to Navajo Refining with respect to the Texas Navajo Refining
Liabilities or (c) enlarge any rights or remedies of any third party under any
of the Texas Navajo Refining Liabilities.
3.6 Assumption of Non-Texas Navajo Refining Liabilities by Refining
LLC. In connection with the contribution by Navajo Refining of the Non-Texas
Navajo Refining Assets to Refining LLC, as set forth in Section 2.8 above,
Refining LLC hereby assumes and agrees to duly and timely pay, perform and
discharge all of the Non-Texas Navajo Refining Liabilities, to the full extent
that Navajo Refining has been heretofore or would have been in the future
obligated to pay, perform and discharge the Non-Texas Navajo Refining
Liabilities were it not for such contribution and the execution and delivery of
this Agreement; provided, however, that said assumption and agreement to duly
and timely pay, perform and discharge the Non-Texas Navajo Refining Liabilities
shall not (a) increase the obligation of Refining LLC with respect to the
Non-Texas Navajo Refining Liabilities beyond that of Navajo Refining, (b) waive
any valid defense that was available to Navajo Refining with respect to the
Non-Texas Navajo Refining Liabilities or (c) enlarge any rights or remedies of
any third party under any of the Non-Texas Navajo Refining Liabilities.
3.7 Assumption of Navajo Pipeline Aggregate Liabilities by GP LP. In
connection with the contributions by Navajo Pipeline of the Navajo Pipeline
Aggregate Interests to GP LP,
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as set forth in Section 2.9 above, GP LP hereby assumes and agrees to duly and
timely pay, perform and discharge all of the Navajo Pipeline Aggregate
Liabilities, to the full extent that Navajo Pipeline has been heretofore or
would have been in the future obligated to pay, perform and discharge the Navajo
Pipeline Aggregate Liabilities were it not for the execution and delivery of
this Agreement; provided, however, that said assumption and agreement to duly
and timely pay, perform and discharge the Navajo Pipeline Aggregate Liabilities
shall not (a) increase the obligation of GP LP with respect to the Navajo
Pipeline Aggregate Liabilities beyond that of Navajo Pipeline, (b) waive any
valid defense that was available to Navajo Pipeline with respect to the Navajo
Pipeline Aggregate Liabilities or (c) enlarge any rights or remedies of any
third party under any of the Navajo Pipeline Aggregate Liabilities.
3.8 Assumption of Navajo Pipeline Aggregate Liabilities by the MLP. In
connection with the contributions by GP LP to the MLP of the Navajo Pipeline
Aggregate Interests as set forth in Section 2.10 above, the MLP hereby assumes
and agrees to duly and timely pay, perform and discharge all of the Navajo
Pipeline Aggregate Liabilities, to the full extent that GP LP has been
heretofore or would have been in the future obligated to pay, perform and
discharge such obligations and liabilities were it not for the execution and
delivery of this Agreement; provided, however, that said assumption and
agreement to duly and timely pay, perform and discharge the Navajo Pipeline
Aggregate Liabilities shall not (a) increase the obligation of the MLP with
respect to the Navajo Pipeline Aggregate Liabilities beyond that of GP LP, (b)
waive any valid defense that was available to GP LP with respect to the Navajo
Pipeline Aggregate Liabilities or (c) enlarge any rights or remedies of any
third party under any of the Navajo Pipeline Aggregate Liabilities.
3.9 Assumption of Mountain LLC Aggregate Liabilities by the MLP. In
connection with the contribution by ▇▇▇▇▇ to the MLP of the Mountain LLC
Aggregate Interests as set forth in Section 2.11 above, the MLP hereby assumes
and agrees to duly and timely pay, perform and discharge all of the Mountain LLC
Aggregate Liabilities, to the full extent that ▇▇▇▇▇ has been heretofore or
would have been in the future obligated to pay, perform and discharge such
obligations and liabilities were it not for the execution and delivery of this
Agreement; provided, however, that said assumption and agreement to duly and
timely pay, perform and discharge the Mountain LLC Aggregate Liabilities shall
not (a) increase the obligation of the MLP with respect to the Mountain LLC
Aggregate Liabilities beyond that of ▇▇▇▇▇, (b) waive any valid defense that was
available to ▇▇▇▇▇ with respect to the Mountain LLC Aggregate Liabilities or (c)
enlarge any rights or remedies of any third party under any of the Mountain LLC
Aggregate Liabilities.
3.10 Assumption of Navajo Refining Aggregate Liabilities by the MLP. In
connection with the contributions by Navajo Refining to the MLP of the Navajo
Refining Aggregate Interests as set forth in Section 2.12 above, the MLP hereby
assumes and agrees to duly and timely pay, perform and discharge all of the
Navajo Refining Aggregate Liabilities, to the full extent that Navajo Refining
has been heretofore or would have been in the future obligated to pay, perform
and discharge such obligations and liabilities were it not for the execution and
delivery of this Agreement; provided, however, that said assumption and
agreement to duly and timely pay, perform and discharge the Navajo Refining
Aggregate Liabilities shall not (a) increase the obligation of the MLP with
respect to the Navajo Refining Aggregate Liabilities beyond that of Navajo
Refining, (b) waive any valid defense that was available to Navajo
20
Refining with respect to the Navajo Refining Aggregate Liabilities or (c)
enlarge any rights or remedies of any third party under any of the Navajo
Refining Aggregate Liabilities.
3.11 Assumption of ▇▇▇▇▇ Cross LLC Aggregate Liabilities by the MLP. In
connection with the contribution by ▇▇▇▇▇ Cross Refining to the MLP of the ▇▇▇▇▇
Cross LLC Aggregate Interests as set forth in Section 2.13 above, the MLP hereby
assumes and agrees to duly and timely pay, perform and discharge all of the
▇▇▇▇▇ Cross LLC Aggregate Liabilities, to the full extent that ▇▇▇▇▇ Cross
Refining has been heretofore or would have been in the future obligated to pay,
perform and discharge such obligations and liabilities were it not for the
execution and delivery of this Agreement; provided, however, that said
assumption and agreement to duly and timely pay, perform and discharge the ▇▇▇▇▇
Cross LLC Aggregate Liabilities shall not (a) increase the obligation of the MLP
with respect to the ▇▇▇▇▇ Cross LLC Aggregate Liabilities beyond that of ▇▇▇▇▇
Cross Refining, (b) waive any valid defense that was available to ▇▇▇▇▇ Cross
Refining with respect to the ▇▇▇▇▇ Cross LLC Aggregate Liabilities or (c)
enlarge any rights or remedies of any third party under any of the ▇▇▇▇▇ Cross
LLC Aggregate Liabilities.
3.12 Assumption of MLP Aggregate Liabilities by the OLP. In connection
with the contribution by the MLP to the OLP of the MLP Aggregate Interests as
set forth in Section 2.17 above, the OLP hereby assumes and agrees to duly and
timely pay, perform and discharge all of the MLP Aggregate Liabilities, to the
full extent that the MLP has been heretofore or would have been in the future
obligated to pay, perform and discharge the MLP Aggregate Liabilities were it
not for the execution and delivery of this Agreement; provided, however, that
said assumption and agreement to duly and timely pay, perform and discharge the
MLP Aggregate Liabilities and to be bound by all such agreements shall not (a)
increase the obligation of the OLP with respect to the MLP Aggregate Liabilities
beyond that of the MLP, (b) waive any valid defense that was available to the
MLP with respect to the MLP Aggregate Liabilities or (c) enlarge any rights or
remedies of any third party under any of the MLP Aggregate Liabilities.
3.13 General Provisions Relating to Assumption of Liabilities.
Notwithstanding anything to the contrary contained in this Agreement including,
without limitation, the terms and provisions of this Article III, none of the
Parties shall be deemed to have assumed, and none of the Assets have been or are
being contributed subject to, (a) any liens or security interests securing
consensual indebtedness covering any of the Assets, except to the extent set
forth on a schedule to this Agreement, and all such liens and security interests
shall be deemed to be excluded from the assumptions of liabilities made under
this Article III or (b) any of the liabilities covered by the indemnities set
forth in the Omnibus Agreement to the extent such liabilities are covered by
such indemnities, and all such liabilities shall be deemed to be excluded from
the assumptions of liabilities made under this Article III to the extent that
such liabilities are covered by such indemnities.
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ARTICLE IV
TITLE MATTERS
4.1 Encumbrances.
(a) Except to the extent provided in Section 3.13 or any other
document executed in connection with this Agreement or the Offering including,
without limitation, the Omnibus Agreement, the contribution and conveyance (by
operation of law or otherwise) of the various physical assets as reflected in
this Agreement (collectively, the "Assets") are made expressly subject to all
recorded encumbrances, agreements, defects, restrictions, and adverse claims
covering the respective Assets (other than liens not shown on any of the
schedules to this Agreement) and all laws, rules, regulations, ordinances,
judgments and orders of governmental authorities or tribunals having or
asserting jurisdiction over the Assets and operations conducted thereon or
therewith, in each case to the extent the same are valid and enforceable and
affect the Assets, including, without limitation, (i) all matters that a current
on the ground survey, title insurance commitment or policy, or visual inspection
of the Assets would reflect, (ii) the applicable liabilities assumed in Article
III, and (iii) all matters contained in the Specific Conveyances.
(b) To the extent that certain jurisdictions in which the
Assets are located may require that documents be recorded in order to evidence
the transfers of title reflected in this Agreement, then the provisions set
forth in Section 4.1(a) immediately above shall also be applicable to the
conveyances under such documents.
4.2 Disclaimer of Warranties; Subrogation; Waiver of Bulk Sales Laws.
(a) EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING
INCLUDING, WITHOUT LIMITATION THE OMNIBUS AGREEMENT, THE PARTIES ACKNOWLEDGE AND
AGREE THAT NONE OF THE PARTIES HAS MADE, DOES NOT MAKE, AND EACH SUCH PARTY
SPECIFICALLY NEGATES AND DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, PAST OR PRESENT, REGARDING (A)
THE VALUE, NATURE, QUALITY OR CONDITION OF THE ASSETS INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL, GEOLOGY OR ENVIRONMENTAL CONDITION OF THE ASSETS
GENERALLY, INCLUDING THE PRESENCE OR LACK OF HAZARDOUS SUBSTANCES OR OTHER
MATTERS ON THE ASSETS, (B) THE INCOME TO BE DERIVED FROM THE ASSETS, (C) THE
SUITABILITY OF THE ASSETS FOR ANY AND ALL ACTIVITIES AND USES THAT MAY BE
CONDUCTED THEREON, (D) THE COMPLIANCE OF OR BY THE ASSETS OR THEIR OPERATION
WITH ANY LAWS (INCLUDING WITHOUT LIMITATION ANY ZONING, ENVIRONMENTAL
PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR
REQUIREMENTS), OR (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE ASSETS. EXCEPT TO THE
EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN
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CONNECTION WITH THIS AGREEMENT OR THE OFFERING INCLUDING, WITHOUT LIMITATION,
THE OMNIBUS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE THAT EACH HAS HAD THE
OPPORTUNITY TO INSPECT THE RESPECTIVE ASSETS, AND EACH IS RELYING SOLELY ON ITS
OWN INVESTIGATION OF THE RESPECTIVE ASSETS AND NOT ON ANY INFORMATION PROVIDED
OR TO BE PROVIDED BY ANY OF THE PARTIES. EXCEPT TO THE EXTENT PROVIDED IN ANY
OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE
OFFERING INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT, NONE OF THE
PARTIES IS LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE ASSETS FURNISHED BY ANY AGENT,
EMPLOYEE, SERVANT OR THIRD PARTY. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING
INCLUDING, WITHOUT LIMITATION, THE OMNIBUS AGREEMENT, EACH OF THE PARTIES
ACKNOWLEDGES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE CONTRIBUTION OF
THE ASSETS AS PROVIDED FOR HEREIN IS MADE IN AN "AS IS", "WHERE IS" CONDITION
WITH ALL FAULTS, AND THE ASSETS ARE CONTRIBUTED AND CONVEYED SUBJECT TO ALL OF
THE MATTERS CONTAINED IN THIS SECTION. THIS SECTION SHALL SURVIVE SUCH
CONTRIBUTION AND CONVEYANCE OR THE TERMINATION OF THIS AGREEMENT. THE PROVISIONS
OF THIS SECTION HAVE BEEN NEGOTIATED BY THE PARTIES AFTER DUE CONSIDERATION AND
ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR
WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE ASSETS
THAT MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN EFFECT, OR OTHERWISE,
EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION WITH THIS AGREEMENT OR THE OFFERING, INCLUDING, WITHOUT
LIMITATION, THE OMNIBUS AGREEMENT.
(b) To the extent that certain jurisdictions in which the
Assets are located may require that documents be recorded in order to evidence
the transfers of title reflected in this Agreement, then the disclaimers set
forth in Section 4.2(a) immediately above shall also be applicable to the
conveyances under such documents.
(c) The contributions of the Assets made under this Agreement
are made with full rights of substitution and subrogation of the respective
parties receiving such contributions, and all persons claiming by, through and
under such parties, to the extent assignable, in and to all covenants and
warranties by the predecessors-in-title of the parties contributing the Assets,
and with full subrogation of all rights accruing under applicable statutes of
limitation and all rights of action of warranty against all former owners of the
Assets.
(d) Each of the Parties agrees that the disclaimers contained
in this Section 4.2 are "conspicuous" disclaimers. Any covenants implied by
statute or law by the use of the words "grant," "convey," "bargain," "sell,"
"assign," "transfer," "deliver," or "set over" or any of them or any other words
used in this Agreement or any exhibits hereto are hereby expressly disclaimed,
waived or negated.
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Each of the Parties hereby waives compliance with any
applicable bulk sales law or any similar law in any applicable jurisdiction in
respect of the transactions contemplated by this Agreement.
ARTICLE V
FURTHER ASSURANCES
5.1 Further Assurances. From time to time after the date
hereof, and without any further consideration, the Parties agree to execute,
acknowledge and deliver all such additional deeds, assignments, bills of sale,
conveyances, instruments, notices, releases, acquittances and other documents,
and will do all such other acts and things, all in accordance with applicable
law, as may be necessary or appropriate (a) more fully to assure that the
applicable Parties own all of the properties, rights, titles, interests,
estates, remedies, powers and privileges granted by this Agreement, or which are
intended to be so granted (b) more fully and effectively to vest in the
applicable Parties and their respective successors and assigns beneficial and
record title to the interests contributed and assigned by this Agreement or
intended so to be and to more fully and effectively carry out the purposes and
intent of this Agreement.
5.2 Other Assurances. From time to time after the date hereof,
and without any further consideration, each of the Parties shall execute,
acknowledge and deliver all such additional instruments, notices and other
documents, and will do all such other acts and things, all in accordance with
applicable law, as may be necessary or appropriate to more fully and effectively
carry out the purposes and intent of this Agreement. Without limiting the
generality of the foregoing, the Parties acknowledge that the parties have used
their good faith efforts to attempt to identify all of the assets being
contributed to the MLP or its subsidiaries as required in connection with the
Offering. However, due to the age of some of those assets and the difficulties
in locating appropriate data with respect to some of the assets it is possible
that assets intended to be contributed to the MLP or its subsidiaries were not
identified and therefore are not included in the assets contributed to the MLP
or its subsidiaries. It is the express intent of the Parties that the MLP or its
subsidiaries own all assets necessary to operate the assets that are identified
in this Agreement and in the Registration Statement. To the extent any assets
were not identified but are necessary to the operation of assets that were
identified, then the intent of the Parties is that all such unidentified assets
are intended to be conveyed to the appropriate members of the Partnership Group.
To the extent such assets are identified at a later date, the Parties shall take
the appropriate actions required in order to convey all such assets to the
appropriate members of the Partnership Group. Likewise, to the extent that
assets are identified at a later date that were not intended by the parties to
be conveyed as reflected in the Registration Statement, the Parties take the
appropriate actions required in order to convey all such assets to the
appropriate party.
ARTICLE VI
POWERS OF ATTORNEY
6.1 Navajo Pipeline.
(a) Navajo Pipeline hereby constitutes and appoints Pipeline
Assets LP and its successors and assigns, its true and lawful attorney-in-fact
with full power of substitution for it
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and in its name, place and stead or otherwise on behalf of Navajo Pipeline and
its successors and assigns, and for the benefit of Pipeline Assets LP and its
successors and assigns, to demand and receive from time to time the Texas Navajo
Pipeline Assets and to execute in the name of Navajo Pipeline and its successors
and assigns, instruments of conveyance, instruments of further assurance and to
give receipts and releases in respect of the same, and from time to time to
institute and prosecute in the name of Navajo Pipeline for the benefit of
Pipeline Assets LP as may be appropriate, any and all proceedings at law, in
equity or otherwise which Pipeline Assets LP and its successors and assigns, may
deem proper in order (i) to collect, assert or enforce any claims, rights or
titles of any kind in and to the Texas Navajo Pipeline Assets, (ii) to defend
and compromise any and all actions, suits or proceedings in respect of any of
the Texas Navajo Pipeline Assets, and (iii) to do any and all such acts and
things in furtherance of this Agreement as Pipeline Assets LP or its successors
or assigns shall deem advisable. Navajo Pipeline hereby declares that the
appointments hereby made and the powers hereby granted are coupled with an
interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of Navajo Pipeline or its successors or assigns or by
operation of law.
(b) Navajo Pipeline hereby constitutes and appoints Pipeline
LLC and its successors and assigns, its true and lawful attorney-in-fact with
full power of substitution for it and in its name, place and stead or otherwise
on behalf of Navajo Pipeline and its successors and assigns, and for the benefit
of Pipeline LLC and its successors and assigns, to demand and receive from time
to time the Non-Texas Navajo Pipeline Assets and to execute in the name of
Navajo Pipeline and its successors and assigns, instruments of conveyance,
instruments of further assurance and to give receipts and releases in respect of
the same, and from time to time to institute and prosecute in the name of Navajo
Pipeline for the benefit of Pipeline LLC as may be appropriate, any and all
proceedings at law, in equity or otherwise which Pipeline LLC and its successors
and assigns, may deem proper in order (i) to collect, assert or enforce any
claims, rights or titles of any kind in and to the Non-Texas Navajo Pipeline
Assets, (ii) to defend and compromise any and all actions, suits or proceedings
in respect of any of the Non-Texas Navajo Pipeline Assets, and (iii) to do any
and all such acts and things in furtherance of this Agreement as Pipeline LLC or
its successors or assigns shall deem advisable. Navajo Pipeline hereby declares
that the appointments hereby made and the powers hereby granted are coupled with
an interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of Navajo Pipeline or its successors or assigns or by
operation of law.
6.2 Navajo Refining.
(a) Navajo Refining hereby constitutes and appoints Refining
Assets LP and its successors and assigns, its true and lawful attorney-in-fact
with full power of substitution for it and in its name, place and stead or
otherwise on behalf of Navajo Refining and its successors and assigns, and for
the benefit of Refining Assets LP and its successors and assigns, to demand and
receive from time to time the Texas Navajo Refining Assets and to execute in the
name of Navajo Refining and its successors and assigns, instruments of
conveyance, instruments of further assurance and to give receipts and releases
in respect of the same, and from time to time to institute and prosecute in the
name of Navajo Refining for the benefit of Refining Assets LP as may be
appropriate, any and all proceedings at law, in equity or otherwise which
Refining Assets LP and its successors and assigns, may deem proper in order (i)
to collect, assert or enforce any claims, rights or titles of any kind in and to
the Texas Navajo Refining Assets, (ii) to
25
defend and compromise any and all actions, suits or proceedings in respect of
any of the Texas Navajo Refining Assets, and (iii) to do any and all such acts
and things in furtherance of this Agreement as Refining Assets LP or its
successors or assigns shall deem advisable. Navajo Refining hereby declares that
the appointments hereby made and the powers hereby granted are coupled with an
interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of Navajo Refining or its successors or assigns or by
operation of law.
(b) Navajo Refining hereby constitutes and appoints Refining
LLC and its successors and assigns, its true and lawful attorney-in-fact with
full power of substitution for it and in its name, place and stead or otherwise
on behalf of Navajo Refining and its successors and assigns, and for the benefit
of Refining LLC and its successors and assigns, to demand and receive from time
to time the Non-Texas Navajo Refining Assets and to execute in the name of
Navajo Refining and its successors and assigns, instruments of conveyance,
instruments of further assurance and to give receipts and releases in respect of
the same, and from time to time to institute and prosecute in the name of Navajo
Refining for the benefit of Refining LLC as may be appropriate, any and all
proceedings at law, in equity or otherwise which Refining LLC and its successors
and assigns, may deem proper in order (i) to collect, assert or enforce any
claims, rights or titles of any kind in and to the Non-Texas Navajo Refining
Assets, (ii) to defend and compromise any and all actions, suits or proceedings
in respect of any of the Non-Texas Navajo Refining Assets, and (iii) to do any
and all such acts and things in furtherance of this Agreement as Refining LLC or
its successors or assigns shall deem advisable. Navajo Refining hereby declares
that the appointments hereby made and the powers hereby granted are coupled with
an interest and are and shall be irrevocable and perpetual and shall not be
terminated by any act of Navajo Refining or its successors or assigns or by
operation of law.
6.3 ▇▇▇▇▇. ▇▇▇▇▇ hereby constitutes and appoints Mountain LLC and its
successors and assigns, its true and lawful attorney-in-fact with full power of
substitution for it and in its name, place and stead or otherwise on behalf of
▇▇▇▇▇ and its successors and assigns, and for the benefit of Mountain LLC and
its successors and assigns, to demand and receive from time to time the Mountain
Home Terminal Assets and to execute in the name of ▇▇▇▇▇ and its successors and
assigns instruments of conveyance, instruments of further assurance and to give
receipts and releases in respect of the same, and from time to time to institute
and prosecute in the name of ▇▇▇▇▇ for the benefit of Mountain LLC as may be
appropriate, any and all proceedings at law, in equity or otherwise which
Mountain LLC and its successors and assigns, may deem proper in order (a) to
collect, assert or enforce any claims, rights or titles of any kind in and to
the Mountain Home Terminal Assets, (b) to defend and compromise any and all
actions, suits or proceedings in respect of any of the Mountain Home Terminal
Assets, and (c) to do any and all such acts and things in furtherance of this
Agreement as Mountain LLC or its successors or assigns shall deem advisable.
▇▇▇▇▇ hereby declares that the appointments hereby made and the powers hereby
granted are coupled with an interest and are and shall be irrevocable and
perpetual and shall not be terminated by any act of ▇▇▇▇▇ or its successors or
assigns or by operation of law.
6.4 ▇▇▇▇▇ Cross Refining. ▇▇▇▇▇ Cross Refining hereby constitutes and
appoints ▇▇▇▇▇ Cross LLC and its successors and assigns, its true and lawful
attorney-in-fact with full power of substitution for it and in its name, place
and stead or otherwise on behalf of ▇▇▇▇▇ Cross Refining and its successors and
assigns, and for the benefit of ▇▇▇▇▇ Cross LLC and its
26
successors and assigns, to demand and receive from time to time the ▇▇▇▇▇ Cross
Assets and to execute in the name of ▇▇▇▇▇ Cross Refining and its successors and
assigns instruments of conveyance, instruments of further assurance and to give
receipts and releases in respect of the same, and from time to time to institute
and prosecute in the name of ▇▇▇▇▇ Cross Refining for the benefit of ▇▇▇▇▇ Cross
LLC as may be appropriate, any and all proceedings at law, in equity or
otherwise which ▇▇▇▇▇ Cross LLC and its successors and assigns, may deem proper
in order (a) to collect, assert or enforce any claims, rights or titles of any
kind in and to the ▇▇▇▇▇ Cross Assets, (b) to defend and compromise any and all
actions, suits or proceedings in respect of any of the ▇▇▇▇▇ Cross Assets, and
(c) to do any and all such acts and things in furtherance of this Agreement as
▇▇▇▇▇ Cross LLC or its successors or assigns shall deem advisable. ▇▇▇▇▇ Cross
Refining hereby declares that the appointments hereby made and the powers hereby
granted are coupled with an interest and are and shall be irrevocable and
perpetual and shall not be terminated by any act of ▇▇▇▇▇ Cross Refining or its
successors or assigns or by operation of law.
6.5 Contributing Parties. In addition to the specific powers of
attorney granted in the other sections of this Article VI, each of the Parties
that has contributed the Assets as reflected by this Agreement (each a
"Contributing Party") hereby constitutes and appoints the party to whom the
respective Assets were contributed and its successors and assigns (the
"Receiving Party"), its true and lawful attorney-in-fact with full power of
substitution for it and in its name, place and stead or otherwise on behalf of
the applicable Contributing Party and its successors and assigns, and for the
benefit of the applicable Receiving Party and its successors and assigns, to
demand and receive from time to time the applicable Assets contributed and to
execute in the name of the applicable Contributing Party and its successors and
assigns instruments of conveyance, instruments of further assurance and to give
receipts and releases in respect of the same, and from time to time to institute
and prosecute in the name of the applicable Contributing Party for the benefit
of the applicable Receiving Party as may be appropriate, any and all proceedings
at law, in equity or otherwise which the applicable Receiving Party and its
successors and assigns, may deem proper in order to (a) collect, assert or
enforce any claims, rights or titles of any kind in and to the applicable
Assets, (b) defend and compromise any and all actions, suits or proceedings in
respect of any of the applicable Assets, and (c) do any and all such acts and
things in furtherance of this Agreement as the applicable Receiving Party or its
successors or assigns shall deem advisable. Each Contributing Party hereby
declares that the appointments hereby made and the powers hereby granted are
coupled with an interest and are and shall be irrevocable and perpetual and
shall not be terminated by any act of any Contributing Party or its successors
or assigns or by operation of law.
ARTICLE VII
MISCELLANEOUS
7.1 Order of Completion of Transactions. The transactions provided for
in Article II (except as otherwise noted) and Article III of this Agreement
shall be completed on the Effective Date in the following order:
First, the transactions provided for in Article II shall be
completed in the order set forth therein; and
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Second, the transactions provided for in Article III shall be
completed in the order set forth therein.
7.2 Consents; Restriction on Assignment. If there are prohibitions
against or conditions to the contribution and conveyance of one or more of the
Assets without the prior written consent of third parties, including, without
limitation, governmental agencies (other than consents of a ministerial nature
which are normally granted in the ordinary course of business), which if not
satisfied would result in a breach of such prohibitions or conditions or would
give an outside party the right to terminate rights of the Party to whom the
applicable Assets were intended to be conveyed (the "Beneficial Owner") with
respect to such portion of the Assets (herein called a "Restriction"), then any
provision contained in this Agreement to the contrary notwithstanding, the
transfer of title to or interest in each such portion of the Assets (herein
called the "Restriction Asset") pursuant to this Agreement shall not become
effective unless and until such Restriction is satisfied, waived or no longer
applies. When and if such a Restriction is so satisfied, waived or no longer
applies, to the extent permitted by applicable law and any applicable
contractual provisions, the assignment of the Restriction Asset subject thereto
shall become effective automatically as of the Effective Time, without further
action on the part of any Party. Each of the applicable Parties that were
involved with the conveyance of a Restriction Asset agree to use their
reasonable best efforts to obtain on a timely basis satisfaction of any
Restriction applicable to any Restriction Asset conveyed by or acquired by any
of them. The description of any portion of the Assets as a "Restriction Asset"
shall not be construed as an admission that any Restriction exists with respect
to the transfer of such portion of the Assets. In the event that any Restriction
Asset exists, the applicable Party agrees to continue to hold such Restriction
Asset in trust for the exclusive benefit of the applicable Party to whom such
Restriction Asset was intended to be conveyed and to otherwise use its
reasonable best efforts to provide such other Party with the benefits thereof,
and the party holding such Restriction Asset will enter into other agreements,
or take such other action as it may deem necessary, in order to ensure that the
applicable Party to whom such Restriction Asset was intended to be conveyed has
the assets and concomitant rights necessary to enable the applicable Party to
operate such Restriction Asset in all material respects as it was operated prior
to the Effective Time.
7.3 Costs. The OLP shall pay all sales, use and similar taxes arising
out of the contributions, conveyances and deliveries to be made hereunder, and
shall pay all documentary, filing, recording, transfer, deed, and conveyance
taxes and fees required in connection therewith. In addition, the OLP shall be
responsible for all costs, liabilities and expenses (including court costs and
reasonable attorneys' fees) incurred in connection with the satisfaction or
waiver of any Restriction pursuant to Section 7.2 to the extent such Restriction
was disclosed to the OLP on or before the Effective Date.
7.4 Headings; References; Interpretation. All Article and Section
headings in this Agreement are for convenience only and shall not be deemed to
control or affect the meaning or construction of any of the provisions hereof.
The words "hereof," "herein" and "hereunder" and words of similar import, when
used in this Agreement, shall refer to this Agreement as a whole, including
without limitation, all Schedules attached hereto, and not to any particular
provision of this Agreement. All references herein to Articles, Sections, and
Schedules shall, unless the context requires a different construction, be deemed
to be references to the Articles, Sections and Schedules of this Agreement,
respectively, and all such Schedules attached hereto are hereby
28
incorporated herein and made a part hereof for all purposes. All personal
pronouns used in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders, and the singular shall include
the plural and vice versa. The use herein of the word "including" following any
general statement, term or matter shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately
following such word or to similar items or matters, whether or not non-limiting
language (such as "without limitation," "but not limited to," or words of
similar import) is used with reference thereto, but rather shall be deemed to
refer to all other items or matters that could reasonably fall within the
broadest possible scope of such general statement, term or matter.
7.5 Successors and Assigns. The Agreement shall be binding upon and
inure to the benefit of the parties signatory hereto and their respective
successors and assigns.
7.6 No Third Party Rights. The provisions of this Agreement are
intended to bind the parties signatory hereto as to each other and are not
intended to and do not create rights in any other person or confer upon any
other person any benefits, rights or remedies and no person is or is intended to
be a third party beneficiary of any of the provisions of this Agreement.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
7.8 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Texas applicable to contracts made
and to be performed wholly within such state without giving effect to conflict
of law principles thereof, except to the extent that it is mandatory that the
law of some other jurisdiction, wherein the Assets are located, shall apply.
7.9 Severability. If any of the provisions of this Agreement are held
by any court of competent jurisdiction to contravene, or to be invalid under,
the laws of any political body having jurisdiction over the subject matter
hereof, such contravention or invalidity shall not invalidate the entire
Agreement. Instead, this Agreement shall be construed as if it did not contain
the particular provision or provisions held to be invalid, and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the Parties as expressed in this Agreement at the time of
execution of this Agreement.
7.10 Deed; ▇▇▇▇ of Sale; Assignment. To the extent required and
permitted by applicable law, this Agreement shall also constitute a "deed,"
"▇▇▇▇ of sale" or "assignment" of the Assets.
7.11 Amendment or Modification. This Agreement may be amended or
modified from time to time only by the written agreement of all the Parties
hereto and affected thereby.
7.12 Integration. This Agreement and the instruments referenced herein
supersede all previous understandings or agreements among the Parties, whether
oral or written, with respect to its subject matter. This Agreement and such
instruments contain the entire understanding of the Parties with respect to the
subject matter hereof and thereof. No understanding, representation, promise or
agreement, whether oral or written, is intended to be or shall be
29
included in or form part of this Agreement unless it is contained in a written
amendment hereto executed by the Parties hereto after the date of this
Agreement.
30
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
▇▇▇▇▇ CORPORATION, a Delaware corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"▇▇▇▇▇"
NAVAJO PIPELINE CO., L.P., a Delaware limited
partnership
By: Navajo Pipeline GP, L.L.C., a Delaware limited
liability company, its general partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Navajo Pipeline"
▇▇▇▇▇ LOGISTIC SERVICES, L.L.C., a Delaware limited
liability company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"GP LLC"
HEP LOGISTICS HOLDINGS, L.P., a Delaware limited
partnership
By: ▇▇▇▇▇ Logistic Services, L.L.C., a Delaware
limited liability company, its general partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"GP LP"
Signature Page 1 of 5 to the
Contribution, Conveyance and Assumption Agreement
▇▇▇▇▇ ENERGY PARTNERS, L.P., a Delaware limited
partnership
By: HEP Logistics Holdings, L.P., a Delaware
limited partnership, its general partner
By: ▇▇▇▇▇ Logistic Services, L.L.C., a
Delaware limited liability company,
its general partner
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
the "MLP"
HEP LOGISTICS GP, L.L.C., a Delaware limited liability
company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"OLP GP"
HEP OPERATING COMPANY, L.P., a Delaware limited
partnership
By: HEP Logistics GP, L.L.C., a Delaware limited
liability company, its general partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
the "OLP"
Signature Page 2 of 5 to the
Contribution, Conveyance and Assumption Agreement
HEP MOUNTAIN HOME LLC, a Delaware limited liability
company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Mountain LLC"
NAVAJO REFINING COMPANY, L.P., a Delaware limited
partnership
By: Navajo Refining GP, L.L.C., a Delaware limited
liability company, its general partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Navajo Refining"
HEP REFINING LLC, a Delaware limited liability company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Refining LLC"
HEP REFINING GP LLC, a Delaware limited liability
company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Refining GP LLC"
Signature Page 3 of 5 to the
Contribution, Conveyance and Assumption Agreement
HEP REFINING ASSETS LP, a Delaware limited partnership
By: HEP Refining GP LLC, a Delaware limited
liability company, its general partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Refining Assets LP"
HEP PIPELINE LLC, a Delaware limited liability company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Pipeline LLC"
HEP PIPELINE GP LLC, a Delaware limited liability
company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Pipeline GP LLC"
HEP PIPELINE ASSETS LIMITED PARTNERSHIP, a Delaware
limited partnership
By: HEP Pipeline GP LLC, a Delaware limited
liability company, its general partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Pipeline Assets LP"
Signature Page 4 of 5 to the
Contribution, Conveyance and Assumption Agreement
▇▇▇▇▇ CROSS REFINING COMPANY, L.L.C., a Delaware
limited liability company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"▇▇▇▇▇ Cross Refining"
HEP ▇▇▇▇▇ CROSS LLC, a Delaware limited liability
company
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"▇▇▇▇▇ Cross LLC"
NAVAJO SOUTHERN, INC., a Delaware corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Navajo Southern"
HEP NAVAJO SOUTHERN LP, a Delaware limited partnership
By: Pipeline GP LLC, a Delaware limited liability
company, its general partner
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
"Navajo Southern LP"
Signature Page 5 of 5 to the
Contribution, Conveyance and Assumption Agreement
SCHEDULE 2.3
LIST OF TEXAS NAVAJO PIPELINE ASSETS
SCHEDULE 2.4
LIST OF NON-TEXAS NAVAJO PIPELINE ASSETS
SCHEDULE 2.5
LIST OF MOUNTAIN HOME ASSETS
SCHEDULE 2.6
LIST OF ▇▇▇▇▇ CROSS ASSETS
SCHEDULE 2.7
LIST OF TEXAS NAVAJO REFINING ASSETS
SCHEDULE 2.8
LIST OF NON-TEXAS NAVAJO REFINING ASSETS
SCHEDULE 2.18
LIST OF DEBTS OF VARIOUS LIMITED PARTNERSHIPS
AND LIMITED LIABILITY COMPANIES