FINANCING AGREEMENT
Exhibit 10.2
dated as of January 17, 2024
among
X. XXXX & COMPANY LLC,
CALUMET SHREVEPORT REFINING, LLC,
as the Company
and
CALUMET REFINING, LLC,
as Calumet Refining
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Table of Contents
(continued)
Page
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Schedules
Schedule | Description |
Schedule A | Eligible Pipeline Carriers |
Schedule B | Eligible Railroad Carriers and Eligible Vessel Carriers |
Exhibits
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This Financing Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) is made as of January 17, 2024 (the “Effective Date”), among X. Xxxx & Company LLC (“Xxxx”), a limited liability company organized under the laws of New York and located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Xxxxxxx Xxxxxxxxxx Refining, LLC (the “Company”), a limited liability company organized under the laws of Delaware and located at 0000 Xxxxxx Xxx, Xxxxxxxxxx, XX 00000, and Calumet Refining, LLC (“Calumet Refining”), a Delaware limited liability company (Calumet Refining, together with the Company, each a “Transaction Party” and collectively, the “Transaction Parties”) (each of the Transaction Parties, individually or collectively, as the context may require, and Xxxx referred to individually as a “Party” or collectively as the “Parties”).
WHEREAS, the Company owns and operates the Refinery for the processing and refining of Feedstock and the recovery therefrom of refined products;
WHEREAS, the Transaction Parties and Xxxx have entered into that certain Supply and Offtake Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Supply and Offtake Agreement”), pursuant to which, among other things, Xxxx and the Company will enter into transactions pursuant to which Xxxx will (a) purchase Feedstock from the Transaction Parties or certain third parties, (b) sell Feedstock to the Transaction Parties, (c) purchase Products from the Transaction Parties and (d) sell Products to the Transaction Parties, in each case, in accordance with the terms thereof;
WHEREAS, the Company and the other Transaction Parties have requested that Xxxx provide certain financial accommodations to the Transaction Parties based on product groups, with respect to Feedstock and Products pursuant to the terms hereof;
WHEREAS, in connection with the transactions contemplated by this Agreement, the Supply and Offtake Agreement and the other Transaction Documents entered into in connection therewith, the Transaction Parties and Xxxx entered into that certain Monetization Master Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Monetization Master Agreement”);
WHEREAS, it is a condition precedent to the occurrence of the Commencement Date under the Monetization Master Agreement that the Parties enter into this Agreement on the date hereof; and
NOW, THEREFORE, in consideration of the premises and respective promises, conditions, terms and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties do hereby agree as follows:
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in each case, the amount of such Advance to be determined by the Product Groups and quantities set forth on Schedule D to the Monetization Master Agreement; provided, that, at all times, for
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purposes of determining the Lien Amount for each Product Group, volumes of such Product Group in Included Title Locations shall first be applied against the Maximum Inventory Level for such Product Group prior to volumes of such Product Group in Included Lien Locations.
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and the result of any of the foregoing shall be to increase the cost to Xxxx of making, converting to, continuing or maintaining any Advance or of maintaining its obligation to make any such Advance, or to reduce the amount of any sum received or receivable by Xxxx xxxxxxxxx (whether of principal, interest or any other amount) then, upon request of Xxxx, the Company will pay to
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Xxxx such additional amount or amounts as will compensate Xxxx for such additional costs incurred or reduction suffered.
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(A)Xxxx and any other Recipient that is a U.S. Person shall deliver to the Transaction Parties on or prior to the Commencement Date (or, in the case of a Recipient other than Xxxx, on or prior to such date that such Recipient becomes a Recipient) (and, in each case, from time to time thereafter upon the reasonable request of the Transaction Parties), executed copies of IRS Form W-9 (or any successor form) certifying that Xxxx or such other Recipient, as applicable, is exempt from U.S. federal backup withholding Tax;
(B)Any Recipient that is not a U.S. Person shall, to the extent it is legally entitled to do so, deliver to the Transaction Parties (in such number of copies as shall be requested by the Transaction Parties) on or prior to the date on which such Recipient becomes a Recipient (and from time to time thereafter upon the reasonable request of the Transaction Parties), whichever of the following is applicable:
(1)in the case of a Recipient claiming the benefits of an income Tax treaty to which the United States is a party (x) with respect to payments of interest (including any amounts treated as interest for U.S. federal income tax purposes) under any Transaction Document, executed copies of IRS Form W-8BEN or W-8BEN-E (or any successor form) establishing an exemption from, or reduction of U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Transaction Document, IRS Form W-8BEN or W-8BEN-E (or any successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2)in the case of a Recipient claiming that its extension of credit will generate U.S. effectively connected income, executed originals of IRS Form W-8ECI (or any successor form);
(3)in the case of a Recipient claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit IV to the effect that (A) such Recipient is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of either Transaction Party within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code and (B) the interest payments in question are not effectively connected with a U.S. trade or business conducted by such Recipient or are effectively connected but are not includible in the Recipient’s gross income for U.S. federal income Tax purposes under an income Tax treaty (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or W-8BEN-E (or any successor form); or
(4)to the extent a Recipient is not the beneficial owner, executed copies of IRS Form W-8IMY (or any successor form), accompanied by IRS Form W-8ECI (or any successor form), IRS Form W-8BEN or W-8BEN-E (or any successor form), a U.S. Tax Compliance Certificate substantially in the form of Exhibit V or Exhibit VI, IRS Form W-9 (or any successor form), and/or other certification documents from each beneficial owner,
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as applicable; provided that if the Recipient is a partnership and one or more direct or indirect partners of such Recipient are claiming the portfolio interest exemption, such Recipient may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit VII on behalf of each such direct and indirect partner;
(C)any Recipient shall, to the extent it is legally entitled to do so, deliver to the Transaction Parties (in such number of copies as shall be requested by the Transaction Parties) on or prior to the date on which such Recipient becomes a Recipient under any Transaction Document (and from time to time thereafter upon the reasonable request of the Transaction Parties), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Transaction Parties to determine the withholding or deduction required to be made; and
(D)if a payment made to a Recipient under any Transaction Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Recipient shall deliver to the Transaction Parties at the time or times prescribed by law and at such time or times reasonably requested by the Transaction Parties such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Transaction Parties as may be necessary for the Transaction Parties to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the Commencement Date.
Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Transaction Parties in writing of its legal inability to do so.
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The provisions of Article 23 of the Monetization Master Agreement are incorporated herein by reference, mutatis mutandis, as if fully set forth herein.
All invoices, notices, requests and other communications given pursuant to this Agreement shall be delivered in accordance with Article 24 of the Monetization Master Agreement.
The provisions of Article 25 of the Monetization Master Agreement are incorporated herein by reference, mutatis mutandis, as if fully set forth herein.
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The provisions of Article 26 of the Monetization Master Agreement are incorporated herein by reference, mutatis mutandis, as if fully set forth herein.
The provisions of Article 27 of the Monetization Master Agreement are incorporated herein by reference, mutatis mutandis, as if fully set forth herein.
Article 28 of the Monetization Master Agreement is incorporated herein by reference, mutatis mutandis, as if fully set forth herein.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be executed by its duly authorized representative as of the Effective Date.
X. XXXX & COMPANY LLC
| | |
By: | /s/ Xxxxx Xxxxxxx | |
Name: | Xxxxx Xxxxxxx | |
Title: | Authorized Signatory | |
CALUMET SHREVEPORT REFINING, LLC,
as the Company
| | |
By: | /s/ Xxxxx Xxxxx | |
Name: | Xxxxx Xxxxx | |
Title: | Executive Vice President & Chief Financial Officer | |
CALUMET REFINING, LLC,
as Calumet Refining
| | |
By: | /s/ Xxxxx Xxxxx | |
Name: | Xxxxx Xxxxx | |
Title: | Executive Vice President & Chief Financial Officer | |
SCHEDULE A
Eligible Pipeline Carriers
None.
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SCHEDULE B
Eligible Railroad Carriers and Eligible Vessel Carriers
None.
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Exhibit I
Form of Carrier Notice
[See attached]
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Exhibit II
Form of Customs Broker Agreement
[See attached]
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Exhibit III
Form of Freight Forwarder Agreement
[See attached]
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Exhibit IV
Form of U.S. Tax Compliance Certificate
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
[See attached]
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Exhibit V
Form of U.S. Tax Compliance Certificate
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
[See attached]
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Exhibit VI
Form of U.S. Tax Compliance Certificate
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
[See attached]
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Exhibit VII
Form of U.S. Tax Compliance Certificate
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
[See attached]
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