OMNIBUS AGREEMENT among AXEL JOHNSON INC., SPRAGUE RESOURCES HOLDINGS LLC, SPRAGUE RESOURCES LP and SPRAGUE RESOURCES GP LLC
Exhibit 10.4
among
XXXX XXXXXXX INC.,
XXXXXXX RESOURCES HOLDINGS LLC,
XXXXXXX RESOURCES LP
and
XXXXXXX RESOURCES GP LLC
This OMNIBUS AGREEMENT (“Agreement”) is entered into on, and effective as of, , 2011 among Xxxx Xxxxxxx Inc. (“Xxxx Xxxxxxx”), Xxxxxxx Resources Holdings LLC, a Delaware limited liability company (“Xxxxxxx Holdings”), Xxxxxxx Resources LP, a Delaware limited partnership (the “Partnership”), and Xxxxxxx Resources GP LLC, a Delaware limited liability company and the general partner of the Partnership (the “General Partner”). The above-named entities are sometimes referred to in this Agreement each as a “Party” and collectively as the “Parties.”
RECITALS:
Upon the closing of the initial public offering of the Partnership (the “Initial Offering”), each of the Parties desires to enter into this Omnibus Agreement in order to address (i) the agreement of Xxxx Xxxxxxx to offer to the Partnership and to cause its controlled Affiliates to offer to the Partnership opportunities to acquire certain businesses and assets and (ii) the obligation of Xxxxxxx Holdings to indemnify the Partnership for certain liabilities.
ARTICLE I
Definitions
As used in this Agreement, all capitalized terms not otherwise defined herein shall have the respective meanings set forth in the First Amended and Restated Agreement of Limited Partnership of Xxxxxxx Resources LP dated as of , 2011.
ARTICLE II
Right of First Refusal
Xxxx Xxxxxxx hereby agrees, and will cause its controlled Affiliates to agree, for so long as Xxxx Xxxxxxx or its controlled Affiliates, individually or as part of a group, control the General Partner, that if Xxxx Xxxxxxx or any of its controlled Affiliates has the opportunity to acquire a controlling interest in any assets or any business having assets that are primarily engaged in the businesses in which the Partnership is engaged as of the closing of the Initial Offering and that operate primarily in the United States or Quebec, Ontario or the Maritimes, Canada, then Xxxx Xxxxxxx or its controlled Affiliates will offer such acquisition opportunity to the Partnership and give the Partnership a reasonable opportunity to acquire such assets or business either before Xxxx Xxxxxxx or its controlled Affiliates acquire it or promptly after the consummation of such acquisition by Xxxx Xxxxxxx or its controlled Affiliates, at a price equal to the purchase price paid or to be paid by Xxxx Xxxxxxx or its controlled Affiliates plus any related transactions costs and expenses incurred by Xxxx Xxxxxxx or its controlled Affiliates. The Partnership’s decision to acquire or not acquire any such assets or businesses will require the approval of the Conflicts Committee. Any assets or businesses that the Partnership does not acquire pursuant to this right of first refusal may be acquired and operated by Xxxx Xxxxxxx or its controlled Affiliates.
This right of first refusal will not apply to:
| • | Any acquisition of any additional interests in any assets or businesses owned by Xxxx Xxxxxxx or its controlled Affiliates as of the closing of the Initial Offering but not contributed to the Partnership in connection with the Initial Offering, including any replacements and natural extensions thereof and 9047-1137 Quebec, Inc. (“Kildair), a corporation which owns all of the equity interests in Kildair Service Ltd., an asphalt and residual fuel oil marketing and storage company (including the remaining ownership interest in Kildair that Xxxx Xxxxxxx and its Affiliates do not own as of the closing of the Initial Offering and any replacements and natural extensions thereof); |
| • | Any investment in or acquisition of any assets or businesses primarily engaged in the businesses in which the Partnership is engaged as of the closing of the Initial Offering and that do not operate primarily in the United States or Quebec, Ontario or the Maritimes, Canada; |
| • | Any investment in or acquisition of a minority non-controlling interest in any assets or businesses primarily engaged in the businesses described above; or |
| • | Any investment in or acquisition of any assets or businesses that Xxxx Xxxxxxx or its controlled Affiliates, as of the closing of the Initial Offering, are actively seeking to invest in or acquire, or have the right to invest in or acquire. |
ARTICLE III
Right of Negotiation
Xxxx Xxxxxxx hereby agrees and will cause its controlled Affiliates to agree, for so long as Xxxx Xxxxxxx or its controlled Affiliates, individually or as part of a group, control the General Partner, that if Xxxx Xxxxxxx or any of its controlled Affiliates decide to attempt to sell (other than to another controlled Affiliate of Xxxx Xxxxxxx) any assets or businesses that are primarily engaged in a business in which the Partnership is engaged as of the closing of the Initial Offering and that operate primarily in the United States or Quebec, Ontario or the Maritimes, Canada (including its equity interests in Kildair), Xxxx Xxxxxxx or its controlled Affiliate will notify the Partnership of its desire to sell such assets or businesses and, prior to selling such assets or businesses to a third party, will negotiate with the Partnership exclusively and in good faith for a period of 60 days in order to give the Partnership an opportunity to enter into definitive documentation for the purchase and sale of such assets or businesses on terms that are mutually acceptable to Xxxx Xxxxxxx or its controlled Affiliate and the Partnership. If the Partnership and Xxxx Xxxxxxx or its controlled Affiliate have not entered into a letter of intent or a definitive purchase and sale agreement with respect to such assets or businesses within such 60 days, Xxxx Xxxxxxx or its controlled Affiliate will have the right to sell such assets or businesses to a third party following the expiration of such 60 days on any terms that are acceptable to Xxxx Xxxxxxx or its controlled Affiliate and such third party. The Partnership’s decision to acquire or not to acquire assets or businesses pursuant to this right will require the approval of the Conflicts Committee.
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ARTICLE IV
Indemnification
Xxxxxxx Holdings will indemnify the Partnership for losses attributable to a failure to own any of the equity interests contributed to the Partnership in connection with the formation transactions described in the Registration Statement and income taxes attributable to operations ending at the beginning of the day after the Closing Date and the formation transactions described in the Registration Statement.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ANY PARTY’S INDEMNIFICATION OBLIGATION HEREUNDER COVER OR INCLUDE CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR SIMILAR DAMAGES OR LOST PROFITS SUFFERED BY ANY OTHER PARTY ENTITLED TO INDEMNIFICATION UNDER THIS AGREEMENT.
ARTICLE V
Miscellaneous
5.1 Choice of Law; Submission to Jurisdiction. This Agreement shall be subject to and governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state.
5.2 Notice. All notices or requests or consents provided for by, or permitted to be given pursuant to, this Agreement must be in writing and must be given by depositing same in the United States mail, addressed to the Person to be notified, postpaid, and registered or certified with return receipt requested or by delivering such notice in person or by facsimile to such Party. Notice given by personal delivery or mail shall be effective upon actual receipt. Notice given by facsimile shall be effective upon actual receipt if received during the recipient’s normal business hours or at the beginning of the recipient’s next business day after receipt if not received during the recipient’s normal business hours. All notices to be sent to a Party pursuant to this Agreement shall be sent to or made at the address set forth below such Party’s signature to this Agreement or at such other address as such Party may stipulate to the other Parties in the manner provided in this Section 5.2.
If to Xxxx Xxxxxxx:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx, President and CEO
Facsimile: 000-000-0000
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If to Xxxxxxx Holdings:
0 Xxxxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx XX 00000
Attn: Xxxx X. Scoff, Vice President & General
Counsel Facsimile: 000-000-0000
If to the Partnership or the General Partner:
Xxxxxxx Resources GP LLC
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxxxxx 00000
Attn: Xxxx X. Scoff, Vice President and General
Counsel Facsimile: 000-000-0000
5.3 Entire Agreement. This Agreement constitutes the entire agreement of the Parties relating to the matters contained herein, superseding all prior contracts or agreements, whether oral or written, relating to the matters contained herein.
5.4 Termination of Agreement. This Agreement, other than the provisions set forth in Article IV hereof, may be terminated by any Party in the event that Xxxx Xxxxxxx, directly or indirectly, owns less than 50% of the voting equity of the General Partner. For avoidance of doubt, the Parties’ indemnification obligations under Article IV shall survive the termination of this Agreement in accordance with their respective terms.
5.5 Amendment or Modification. This Agreement may be amended or modified from time to time only by the written agreement of all the Parties hereto. Each such instrument shall be reduced to writing and shall be designated on its face an “Amendment” or an “Addendum” to this Agreement.
5.6 Assignment. No Party shall have the right to assign its rights or obligations under this Agreement without the consent of the other Parties hereto; provided, however, that the Partnership may make a collateral assignment of this Agreement solely to secure working capital financing for the Partnership.
5.7 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signatory parties had signed the same document. All counterparts shall be construed together and shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart hereof.
5.8 Severability. If any provision of this Agreement shall be held invalid or unenforceable by a court or regulatory body of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.
5.9 Further Assurances. In connection with this Agreement and all transactions contemplated by this Agreement, each signatory party hereto agrees to execute and deliver such
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additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions and conditions of this Agreement and all such transactions.
5.10 Rights of Limited Partners. The provisions of this Agreement are enforceable solely by the Parties to this Agreement, and no Limited Partner of the Partnership shall have the right, separate and apart from the Partnership, to enforce any provision of this Agreement or to compel any Party to this Agreement to comply with the terms of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on, and effective as of, the Closing Date.
| XXXX XXXXXXX INC. | ||
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| XXXXXXX RESOURCES HOLDINGS LLC | ||
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| XXXXXXX RESOURCES LP
By: Xxxxxxx Resources GP LLC, its general partner | ||
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| XXXXXXX RESOURCES GP LLC | ||
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