Attachment B - Renewable Identification Numbers

Transcription

1 Attachment B - Renewable Identification Numbers The terms of this Attachment B shall only be applicable to the transfer (sale and purchase) of Renewable Identification Numbers in connection with the sale and purchase of physical Products and shall be referred to herein as the General Terms. 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions. Capitalized terms not defined herein shall have the meaning ascribed to them in the GTCs. The following terms shall have the meaning ascribed to them below. (d) (e) (f) (g) Applicable Law means any federal, state or local law, statute, regulation, code, ordinance, license, permit, compliance requirement, decision, order, writ, injunction, directive, judgment, policy, decree, including any judicial or administrative interpretations thereof, or any agreement, concession or arrangement with any Governmental Authority, applicable to the RINs transferred, sold or purchased hereunder and either Party or either Party s performance under the Agreement, and any amendments or modifications to the foregoing. Approved Facility means a facility registered with the EPA under the RFS Program and either generally acceptable to the Buyer in its sole discretion, or as agreed by the Parties and designated in the relevant Confirmation. Eastern Prevailing Time means the time prevailing on the East Coast of the U.S., taking into account daylight savings time if it is in effect. EMTS means the EPA Moderated Transaction System or any replacement or successor system designated by the EPA for the recording or transfer of RINs. Entity means an individual, government or state or division of it, government or state agency, corporation, limited liability company, partnership, trusts, banks or such other entity as the context may require. EPA means the U.S. Environmental Protection Agency or any successor having responsibility at law for the implementation and administration of the RFS Program. Governmental Authority means the United States of America, any State of the United States of America, any local authority, and any political subdivision of any of the foregoing, and any agency, department, commission, board, bureau, court or other tribunal or governmental unit (foreign, federal, state, county, district, municipal, city, quasi-governmental or otherwise) having jurisdiction over the Parties under this Agreement. (h) Invalid RIN has the meaning set forth in Section 4.1. (i) (j) Product Transfer Document means such document(s) as may be required pursuant to the RFS Program, 40 C.F.R. Part 80, Subpart M. Qualified Replacement RIN means a valid RIN of the same category as that specified in the relevant Confirmation and generated either in the same year specified in the Confirmation, or if RINs generated in the year specified in the Confirmation are expired or not reasonably available, the then-current compliance year.

2 (k) (l) (m) (n) (o) (p) (q) (r) Required Authorizations has the meaning set out in Section 3.1. RFS Program means Renewable Fuel Standard Program under the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007 and implementing regulations, including without limitation, 40 C.F.R. Part 80, Subpart M, as the same may be amended from time to time. RIN means a Renewable Identification Number generated pursuant to the RFS Program. Title Transfer Date means the date when the EMTS reflects the RINs in Buyer s account. Trade Date means the date a transaction that is the subject of the Agreement is agreed to by the Parties. Transfer means a sale by Seller and purchase by Buyer of RINs and the transfer of title and control of those RINs from Seller to Buyer. Transfer Date means the date specified as such on the Product Transfer Document. U.S. means United States of America, and every reference to money, price, or Contract Price pertains to U.S. Dollars. 1.2 Interpretation. Unless otherwise specified, all section references in these General Terms are to the Sections of these General Terms. All headings in these General Terms are intended solely for convenience of reference and shall not affect the meaning or interpretation of these General Terms, the GTC s, or the Agreement. Unless expressly provided otherwise, the word including as used herein does not limit the preceding words or terms and shall be read to be followed by the words without limitation or words having similar import and the words other and otherwise shall not be construed as being limited by the context in which they appear or the words that precede them. Unless expressly provided otherwise, references to consent mean the prior written consent of the Party at issue. Unless provided otherwise, when a Party s response is required hereunder within a specific time period following receipt of notice or documentation, as applicable, the day of receipt thereof by such Party shall be considered day zero. Any reference to time shall be a reference to time in Eastern Prevailing Time on a Banking Day. Any specific references to laws, statutes, or regulations will include any amendments, replacements, or modifications thereto. 1.3 Inconsistency. In the event of any inconsistency between the provisions of the Confirmation and these General Terms, the Confirmation will prevail. In the event of a conflict between the provisions of the GTCs and these General Terms, these General Terms will prevail. 2

3 2. GENERAL OBLIGATIONS; TITLE TRANSFER 2.1 General Obligations. Seller shall issue a Product Transfer Document and Seller and Buyer shall subsequently effect the Transfer of RINs specified in the Product Transfer Document using the EMTS. All right, title and interest in and to the RINs identified in the Confirmation and corresponding Product Transfer Document will Transfer from Seller to Buyer on the Title Transfer Date. 2.2 In respect of each Transfer, Seller and Buyer shall adhere to the rules of the RFS Program and do all things reasonably necessary to effect each Transfer. 2.3 Compliance with Applicable Law. Seller and Buyer shall comply with Applicable Law in the performance of their respective obligations under the Agreement. 3. REPRESENTATIONS AND WARRANTIES 3.1 Representations and Warranties by Both Parties. Each Party represents and warrants to the other Party (which representations and warranties are deemed to be repeated by each Party on the Transfer Date) that: It has the corporate and legal capacity, authority, and power, and all governmental and other licenses, authorizations, permits, consents, contracts and other approvals (if any), necessary to execute, deliver, and perform the Agreement ( Required Authorizations ), and has complied with any conditions to the Required Authorizations applicable to the execution, delivery and performance of the Agreement, and states that such Required Authorizations shall remain in full force and effect until its obligations under the Agreement have been fulfilled; It is a registered user of the EMTS and has completed any registration required by the RFS Program; and The Agreement, and such Party s performance of same, is in compliance with all its obligations under the RFS Program as the same may apply to the Agreement, and such Party s performance thereunder. 3.2 Representations and Warranties by Seller Seller represents and warrants to Buyer that on the Transfer Date: (d) It shall convey good title to all RINs it transfers hereunder, free and clear of any liens, security interests, and encumbrances or any interest in or to them by any Entity; Transferred is valid under the RFS Program; Transferred is separated and unassigned; Transferred was generated or initiated from an Approved Facility; 3

4 (e) (f) Transferred was generated during the year specified in the Confirmation and corresponding Product Transfer Document and has not been retired; and OTHER THAN THE WARRANTIES SPECIFIED IN THIS SECTION 3.2 AND THE REQUIREMENT OF COMPLIANCE WITH LAW CONTAINED IN SECTION 2.3, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY THAT THE RINS WILL BE MERCHANTABLE OR FIT OR SUITABLE FOR A SPECIFIC PURPOSE, EVEN IF SUCH PURPOSE IS KNOWN TO SELLER, UNLESS OTHERWISE STATED IN THE CONFIRMATION FOR A PARTICULAR TRANSACTION. SELLER EXPRESSLY DISCLAIMS ANY WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT. 4. REMEDIES FOR INVALID RINS 4.1 In the event that Seller fails or is unable to transfer title to Buyer for all of the RINs required under the Agreement or breaches any of the warranties contained in Section 3 or transfers RINs that are or become invalid for purposes of the RFS Program (each such purchased RIN not transferred or subject to a breach of warranty or that is or becomes invalid for purposes of the RFS Program is hereinafter referred to as an Invalid RIN ), Seller shall, at Seller s sole cost and expense, transfer to Buyer Qualified Replacement RINs in a volume equal to the volume of Invalid RINs ( Deficient Quantity ) within ten (10) days of the later of (i) discovery of the Invalid RINs, or (ii) Buyer s demand for replacement. 4.2 In the event Seller fails or refuses to transfer sufficient Qualified Replacement RINs under Section 4.1, Buyer may either: Require Seller, within ten (10) days of Buyer s request, to reimburse Buyer s costs and expenses incurred in connection with Buyer obtaining and transferring a volume of Qualified Replacement RINS equal to the Deficient Quantity, as follows: (1) the cost of the Qualified Replacement RINs purchased by Buyer provided such purchase price was no less favorable than that available to Buyer through good faith negotiations in an arms-length transaction, plus Buyer s related reasonable expenses including without limitation reasonable broker, consultant and attorneys fees, minus (2) any unpaid amount due under the Agreement; except that if such difference is zero or negative, then no payment shall be made by Seller to Buyer; or Require Seller, within five (5) Banking Days of Buyer s demand, to pay Buyer an amount equal to the product of the Deficient Quantity multiplied by the current market price (determined by Buyer in a commercially reasonable manner) of the RINs contracted for, or if those RINs have expired or are no longer available, the current year RINs of the same type. Buyer shall not be required to enter into an actual replacement transaction in order to receive payment under this paragraph; or Require Seller to do a combination of and. 4.3 In the event the provisions of this Section 4 are invoked and subject to Seller s obligations under this Section 4 of these General Terms, Seller and Buyer agree to cooperate in an effort to achieve an efficient, commercial and practical resolution consistent with the foregoing options (or any combination thereof) in order to cure any default with respect to any Invalid RINs, provided, however, the replacement RINs delivered by Seller hereunder must be Qualified Replacement RINs unless otherwise mutually agreed to in writing by the Parties. 4

5 4.4 In the event any Qualified Replacement RINs transferred to Buyer are or become invalid for purposes of the RFS Program, such Qualified Replacement RINs shall be treated as Invalid RINs for purposes of this Section Notwithstanding anything in the Agreement or the RFS Program to the contrary, to the extent Buyer elects financial settlement as a remedy and receives the full financial settlement amount from Seller, Buyer shall not have recourse to Seller for replacement RINs. 5. EVENTS OF BREACH The Parties agree that upon Seller s failure to transfer valid RINs to Buyer, Buyer may terminate the Agreement. 6. FORCE MAJEURE APPLICABLE TO TRANSFER OF RINS To the extent a party (the "Force Majeure Party") is rendered unable, due to technical problems, including but not limited to those with the EMTS, that prevents the Force Majeure Party from taking the action required of it to effectuate a Transfer (the Force Majeure event ), such party shall be relieved of its obligations until such time as it is able to perform its obligations. In the case of a Force Majeure event, the Force Majeure Party must orally advise the other Party promptly of the Force Majeure event, to be followed up in writing. The Force Majeure Party must use reasonable endeavors to terminate or overcome the event or circumstance constituting Force Majeure and resuming full performance of its obligations as soon as reasonably practicable. 7. TAXES APPLICABLE TO RINS Each Party shall be responsible for any taxes or other fees owed by such Party in connection with its respective purchase and sale or transfer of RINs hereunder. 5