0000950103-13-006800.txt : 20131122 0000950103-13-006800.hdr.sgml : 20131122 20131122170711 ACCESSION NUMBER: 0000950103-13-006800 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20131122 DATE AS OF CHANGE: 20131122 GROUP MEMBERS: NT INTERHOLDCO LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Northern Tier Energy LP CENTRAL INDEX KEY: 0001533454 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 800763623 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-87061 FILM NUMBER: 131238882 BUSINESS ADDRESS: STREET 1: 38C GROVE STREET STREET 2: SUITE 100 CITY: RIDGEFIELD STATE: CT ZIP: 06877 BUSINESS PHONE: (203) 244-6550 MAIL ADDRESS: STREET 1: 38C GROVE STREET STREET 2: SUITE 100 CITY: RIDGEFIELD STATE: CT ZIP: 06877 FORMER COMPANY: FORMER CONFORMED NAME: Northern Tier Energy, Inc. DATE OF NAME CHANGE: 20111025 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Western Refining, Inc. CENTRAL INDEX KEY: 0001339048 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 203472415 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 6500 TROWBRIDGE DRIVE CITY: EL PASO STATE: TX ZIP: 79905 BUSINESS PHONE: (915) 775-3488 MAIL ADDRESS: STREET 1: 6500 TROWBRIDGE DRIVE CITY: EL PASO STATE: TX ZIP: 79905 SC 13D 1 dp42062_sc13d.htm FORM SC 13D
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.  20549
 
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
 
Northern Tier Energy LP
(Name of Issuer)
 
Common Units, no par value
(Title of Class of Securities)
 
665826103
(CUSIP Number)
 
Lowry Barfield
123 W. Mills Avenue, Suite 200
El Paso, Texas 79901
(915) 534-1400
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
 
November 12, 2013
(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-l(f) or 240.13d-l(g), check the following box.
 
Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See §240.13d-7 for other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 
 
1
 
 
 
 
CUSIP No.
 
 
 
665826103
1.
Name of Reporting Person
 
Western Refining, Inc.
2.
Check the appropriate box if a member of a group*
(a)  o
(b)  x
 
3.
SEC use only
 
 
4.
Source of Funds
 
BK, WC
5.
Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
 
 
6.
Citizenship or Place of Organization
 
Delaware
Number of Shares
Beneficially
Owned by Each
Reporting Person
With:
7.
Sole Voting Power:
 
0
8.
 
Shared Voting Power:
 
35,622,500*
9.
 
Sole Dispositive Power:
 
0
10.
 
Shared Dispositive Power:
 
35,622,500*
11.
Aggregate Amount Beneficially Owned by each Reporting Person:
 
35,622,500*
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares
 
 
13.
Percent of Class Represented by Amount in Row (11)
 
38.7% **
14.
Type of Reporting Person:
 
CO

* 
Consists of 35,622,500 common units representing limited partner interests in Northern Tier Energy LP held by NT InterHoldCo LLC.  Western Refining, Inc. may also be deemed to be the indirect beneficial owner of the non-economic general partner interest in Northern Tier Energy LP.

** 
Based on a total of 92,100,053 common units representing limited partner interests in Northern Tier Energy LP outstanding as of November 12, 2013 as reported on Northern Tier Energy LP’s Form 10-Q filed with the Securities and Exchange Commission on November 12, 2013.
 
 
 
 
2
 
 
 
CUSIP No.
 
 
 
665826103
1.
Name of Reporting Person:
 
NT InterHoldCo LLC
2.
Check the appropriate box if a member of a group*
(a)  o
(b)  x
 
3.
SEC use only
 
 
4.
Source of Funds
 
OO
5.
Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)
 
 
6.
Citizenship or Place of Organization
 
Delaware
Number of Shares
Beneficially
Owned by Each
Reporting Person
With:
7.
Sole Voting Power:
 
0
8.
 
Shared Voting Power:
 
35,622,500*
9.
 
Sole Dispositive Power:
 
0
10.
 
Shared Dispositive Power:
 
35,622,500*
11.
Aggregate Amount Beneficially Owned by each Reporting Person:
 
35,622,500*
12.
Check if the Aggregate Amount in Row (11) Excludes Certain Shares
 
 
13.
Percent of Class Represented by Amount in Row (11)
 
38.7% **
14.
Type of Reporting Person:
 
OO

* 
Consists of 35,622,500 common units representing limited partner interests in Northern Tier Energy LP.  NT InterHoldCo LLC also owns 100% of the equity interests in Northern Tier Energy GP LLC, the sole general partner of Northern Tier Energy LP.

** 
Based on a total of 92,100,053 common units representing limited partner interests in Northern Tier Energy LP outstanding as of November 12, 2013 as reported on Northern Tier Energy LP’s Form 10-Q filed with the Securities and Exchange Commission on November 12, 2013.

 
 
 
3
 
 
 
SCHEDULE 13D
 
The reporting persons named in Item 2 below are hereby jointly filing this Schedule 13D (this “Statement”) because, due to certain affiliations and relationships among the reporting persons, such reporting persons may be deemed to beneficially own some or all of the same securities directly or indirectly acquired from the Partnership (defined below) by one or more of the reporting persons. In accordance with Rule 13d-1(k)(1) promulgated pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the reporting persons named in Item 2 below have executed a written agreement relating to the joint filing of this Statement (the “Joint Filing Agreement”), a copy of which is annexed hereto as Exhibit A.
 
Item 1. Security and Partnership.
 
This Statement is being filed with respect to the common units representing limited partner interests (“common units”) of Northern Tier Energy LP (the “Partnership”). The address of the principal executive offices of the Partnership is 38C Grove Street, Suite 100, Ridgefield, CT 06877.
 
Item 2. Identity and Background
 
(a)      This Statement is filed by:
 
 
(i)
Western Refining, Inc., a Delaware corporation (“Western”); and
 
 
(ii)
NT InterHoldCo LLC, a Delaware limited liability company (“InterHoldCo” and, together with Western, the “Reporting Persons”).
 
All disclosures herein with respect to any Reporting Person are made only by such Reporting Person. Any disclosures herein with respect to persons other than the Reporting Persons are made on information and belief after making inquiry to the appropriate party.
 
Western is a public company and owns 100% of the equity interests of InterHoldCo, and InterHoldCo owns 100% of the equity interests of Northern Tier Energy GP LLC, a Delaware limited liability company and the general partner of the Partnership (the “General Partner”).
 
InterHoldCo is a limited partner of the Partnership and the record holder of 35,622,500 common units.
 
(b)      The business address and principal office of each of the Reporting Persons is 123 W. Mills Avenue, Suite 200, El Paso, Texas 79901.
 
(c)      The principal business of:
 
 
(i)
Western is to hold equity interests in InterHoldCo and other entities, the principal business of which is the refining of crude oil and other feedstocks, the distribution and marketing of refined products and the operation of retail stores that sell fuel and convenience store merchandise; and
 
 
 (ii)
InterHoldCo is to hold common units and 100% of the equity interests in the General Partner.
 
(d)      None of the Reporting Persons has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
 
(e)      None of the Reporting Persons has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
In accordance with the provisions of General Instruction C to Schedule 13D, certain information concerning the executive officers and directors of the Reporting Persons and persons controlling the Reporting Persons, as applicable (collectively, the “Covered Persons”), required by Item 2 of Schedule 13D is provided on Schedule 1 and is incorporated by reference herein. To the Reporting Persons’ knowledge, none of the Covered Persons listed on Schedule 1 as a director or executive officer of Western or InterHoldCo has been, during the last five years, (i)
 
 
 
 
4
 
 
 
convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
Item 3. Sources and Amount of Funds or Other Consideration
 
On November 11, 2013, Northern Tier Holdings LLC (“NTH”) contributed 35,622,500 common units and all of the membership interests in the General Partner (the “Parent Interests”) to InterHoldCo, a wholly owned subsidiary of NTH, pursuant to a Contribution Agreement dated as of November 11, 2013.  On November 12, 2013, Western and NTH entered into a Purchase Agreement (the “Purchase Agreement”), pursuant to which Western purchased all of NTH’s interests in InterHoldCo for a purchase price of $775,000,000 (the “Transaction”).  Western’s sources of funds for the Transaction consideration and related fees and expenses consisted of $245 million of cash on hand and $550 million in cash that was provided pursuant to a term loan facility under a Term Loan Credit Agreement (the “Term Loan Agreement”), dated as of November 12, 2013, among Western, Bank of America, N.A., as Administrative Agent, and the lenders party thereto.  The Transaction was consummated on November 12, 2013.
 
Each of the Reporting Persons disclaims beneficial ownership of the securities held by others, including the other Reporting Persons and Covered Persons, except to the extent of such Reporting Person’s pecuniary interest therein, if any.
 
References to and descriptions of the Purchase Agreement and Term Loan Agreement set forth above in this Item 3 do not purport to be complete and are qualified in their entirety by reference to the full text of the Purchase Agreement and Term Loan Agreement, which have been filed as Exhibits B and C, respectively, and are incorporated herein by reference.
 
Item 4. Purpose of Transaction
 
The Reporting Persons acquired the common units reported herein solely for investment purposes. The Reporting Persons may make additional purchases of common units either in the open market or in private transactions depending on the Reporting Person’s business, prospects and financial condition, the market for the common units, general economic conditions, stock market conditions and other future developments.
 
The following describes plans or proposals that the Reporting Persons may have with respect to the matters set forth in Item 4(a)-(j) of Schedule 13D:
 
(a)      The Partnership may grant unit options, restricted units, phantom units, unit appreciation rights and other awards that derive their value from the market price of the common units to employees and directors of the Partnership, the General Partner and their respective affiliates pursuant to the Partnership’s 2012 Long Term Incentive Plan (the “2012 Long Term Incentive Plan”) adopted by the Partnership acting through the General Partner. The Partnership may satisfy its obligations to deliver units pursuant to awards under the 2012 Long Term Incentive Plan with common units issued by the Partnership or with common units acquired on the open market, from any affiliate, from any other person or any combination of the foregoing.
 
(b)      None.
 
(c)      None.
 
 (d)     Pursuant to the terms of the Purchase Agreement, at the closing of the Transaction, the Reporting Persons caused Paul L. Foster, Jeff A. Stevens, Scott D. Weaver and Lowry Barfield to fill vacancies in the board of directors of the General Partner (the “Board”) created by the resignations of Eric Liaw, Michael MacDougall, Bernard Aronson and Jonathan Ginns.  Furthermore, as direct and indirect owners of the General Partner, the Reporting Persons may, under the Third Amended and Restated Limited Liability Company Agreement of the General Partner (the “GP LLC Agreement”), at any time, remove directors from the Board, appoint directors to the Board and fix the number of members of the Board.  In addition, under the First Amended and Restated Agreement of Limited Partnership of the Partnership (the “Partnership Agreement”), the Reporting Persons may conduct, direct and manage all activities of the Partnership, including by selecting, employing, retaining and dismissing members of
 
 
 
5
 
 
 
management of the Partnership.  The Reporting Persons, however, have no current intention of changing the Board or the present management of the Partnership, except as described in the first sentence of this paragraph.
 
(e)     The Reporting Persons, as direct and indirect owners of the General Partner, may cause the Partnership to change its dividend policy or its capitalization, through the issuance of debt or equity securities, from time to time in the future. The Reporting Persons, however, have no current intention of changing the present capitalization or dividend policy of the Partnership.
 
(f)      None.
 
(g)     The Reporting Persons, as direct and indirect owners of the General Partner, may amend the terms and provisions of the GP LLC Agreement at any time. In addition, as direct and indirect owners of the General Partner, the Reporting Persons may make certain amendments to the Partnership Agreement without the approval of any limited partner.  The Reporting Persons, however, have no current intention of amending the GP LLC Agreement or the Partnership Agreement.
 
(h)     None.
 
(i)      None.
 
(j)      Except as described in this Item 4, the Reporting Persons do not have, as of the date of this Statement, any other plans or proposals that relate to or would result in any of the actions or events specified in clauses (a) through (i) of Item 4 of Schedule 13D.  The Reporting Persons may, at any time and from time to time, review or reconsider their positions and/or change their purpose and/or formulate plans or proposals with respect thereto.  As a result of these activities, the Reporting Persons may, including in their capacities as direct or indirect owners of the General Partner, suggest or take a position with respect to potential changes in the operations, management or capital structure of the Partnership.  Such suggestions or positions may include one or more plans or proposals that relate to or would result in any of the actions required to be reported herein, including, without limitation, such matters as acquiring additional securities of the Partnership or disposing of securities of the Partnership; entering into an extraordinary transaction, such as a merger, reorganization or liquidation, involving the Partnership or any of its subsidiaries; selling or transferring a material amount of assets of the Partnership or any of its subsidiaries; materially changing the present capitalization or distribution policy of the Partnership; materially changing the Partnership’s business or structure; changing the Partnership’s certificate of limited partnership, limited partnership agreement or instruments corresponding thereto or taking other actions which may impede the acquisition of control of the Partnership by any person; causing a class of securities of the Partnership to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; causing a class of equity securities of the Partnership to become eligible for termination of registration pursuant to Section 12(g)(4) of the Securities Act of 1933, as amended (the “Securities Act”); and taking any action similar to any of those enumerated above.  In determining from time to time whether to sell the common units reported as beneficially owned in this Statement (and in what amounts) or to retain such securities, the Reporting Persons will take into consideration such factors as they deem relevant, including the business and prospects of the Partnership, anticipated future developments concerning the Partnership, existing and anticipated market conditions from time to time, general economic conditions, regulatory matters and other opportunities available to the Reporting Persons. The Reporting Persons reserve the right to acquire additional securities of the Partnership in the open market, in privately negotiated transactions (which may be with the Partnership or with third parties) or otherwise, to dispose of all or a portion of their holdings of securities of the Partnership or to change their intention with respect to any or all of the matters referred to in this Item 4.
 
References to and descriptions of the 2012 Long Term Incentive Plan, GP LLC Agreement and Partnership Agreement set forth above in this Item 4 do not purport to be complete and are qualified in their entirety by reference to the full text of the 2012 Long Term Incentive Plan, GP LLC Agreement and Partnership Agreement, which have been filed as Exhibits D, E and F, respectively, and are incorporated herein by reference.
 
Item 5. Interest in Securities of the Issuer
 
(a) – (b) The aggregate number and percentage of shares of units beneficially owned by the Reporting Persons (on the basis of a total of 92,100,053 units issued and outstanding as of November 12, 2013 as reported on the
 
 
 
6
 
 
 
Partnership’s Form 10-Q filed with the Securities and Exchange Commission (the “Commission”) on November 12, 2013) are as follows:
 
Western
 
(a)      Amount beneficially owned: 35,622,500 units                                                                                     Percentage: 38.7%
(b)      Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 35,622,500 units
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 35,622,500 units
 
InterHoldCo
 
(a)      Amount beneficially owned: 35,622,500 units                                                                                     Percentage: 38.7%
(b)      Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 35,622,500 units
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 35,622,500 units
 
(c)      Except as described in Item 3 above or elsewhere in this Statement, none of the Reporting Persons or, to the Reporting Persons’ knowledge, the Covered Persons has effected any transactions in the common units during the past 60 days.
 
(d)      The Reporting Persons have the right to receive distributions from, and the proceeds from the sale of, the respective common units reported by such persons on the cover pages of this Statement and in this Item 5, subject to NTH’s right under the Purchase Agreement to receive any cash distribution made by the Partnership in respect of the common units for the quarter ended September 30, 2013. Except for the foregoing and the cash distributions described in Item 6 below, no other person is known by the Reporting Persons to have the right to receive or the power to direct the receipt of distributions from, or the proceeds from the sale of, common units beneficially owned by the Reporting Persons or, to the Reporting Persons’ knowledge, the Covered Persons.
 
(e)      Not applicable.
 
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
 
The information provided or incorporated by reference in Item 3, Item 4 and Item 5(d) is hereby incorporated by reference herein.
 
The Partnership Agreement
 
The General Partner, as the sole general partner of the Partnership, is party to the Partnership Agreement.
 
Cash Distributions
 
The Board has adopted a policy pursuant to which distributions for each quarter are in an amount equal to the available cash generated by the Partnership in such quarter.  Available cash for each quarter is determined by the Board following the end of such quarter.  Distributions on the Partnership’s units are in cash.  The Partnership does not have a minimum quarterly distribution or employ structures intended to consistently maintain or increase distributions over time. The Board may change the Partnership’s distribution policy at any time. The Partnership Agreement does not require the Partnership to pay distributions to its unitholders on a quarterly or other basis.
 
Issuance of Additional Units
 
The Partnership Agreement authorizes the Partnership to issue an unlimited number of additional partnership interests for the consideration and on the terms and conditions determined by the General Partner without the approval of the unitholders.
 
 
 
 
7
 
 
 
Limited Preemptive Right
 
The General Partner has the right, which it may from time to time assign in whole or in part to any of its affiliates, including the Reporting Persons, to purchase common units or other partnership units, whenever, and on the same terms that, the Partnership issues such interests to persons other than the General Partner and its affiliates, to the extent necessary to maintain the percentage interest of our general partner and its affiliates, including such interest represented by common units, that existed immediately prior to such issuance. The holders of common units do not have preemptive rights under the Partnership Agreement.
 
Limited Voting Rights
 
The General Partner controls the Partnership and the unitholders have only limited voting rights. Unitholders have no right to appoint the General Partner or its directors. The General Partner may not be removed, except by a vote of the holders of at least 66 2/3% of the Partnership’s outstanding units, including units owned by the General Partner and its affiliates, voting together as a single class. Because the Reporting Persons directly or indirectly own 38.7% of the Partnership’s outstanding units and 100% of the membership interests in the General Partner, the Reporting Persons have the ability to prevent the General Partner’s involuntary removal.
 
Limited Call Right
 
If at any time the General Partner and its affiliates own more than 90% of the then-issued and outstanding common units, the General Partner has the right, which it may assign in whole or in part to any of its affiliates or to the Partnership, to acquire all, but not less than all, of the common units held by unaffiliated persons, as of a record date to be selected by the General Partner, on at least 10 but not more than 60 days’ notice, at a price equal to the greater of (a) the average of the daily closing price of the common units over the 20 trading days preceding the date three days before notice of exercise of the call right is first mailed, and (b) the highest per-unit price paid by the General Partner or any of its affiliates for common units during the 90-day period preceding the date such notice is first mailed.
 
References to and descriptions of the Partnership Agreement set forth above in this Item 6 do not purport to be complete and are qualified in their entirety by reference to the full text of the Partnership Agreement, which has been filed as Exhibit F and is incorporated herein by reference.
 
Registration Rights
 
In connection with its initial public offering, the Partnership entered into an amended and restated registration rights agreement (the “Registration Rights Agreement”) with NTH, Northern Tier Investors, LLC (“NTI”), TPG Refining, L.P. (“TPG Refining”), Acon Refining Partners, L.L.C. (“Acon Refining”), NTI Management Company, L.P. (“NTI Management”), NTR Partners LLC and NTR Partners II LLC.  NTH assigned all of its rights under the Registration Rights Agreement to InterHoldCo pursuant to an Assignment of Registration Rights, dated as of November 11, 2013.  Under the Registration Rights Agreement, InterHoldCo (as successor-in-interest to NTH), ACON Refining and TPG Refining can cause, and after ACON Refining and TPG Refining and their transferees no longer hold registrable securities, NTR Partners LLC and NTR Partners II LLC can cause, the Partnership to register their common units under the Securities Act, and to maintain a shelf registration statement effective with respect to such units.  In addition, under the Registration Rights Agreement, InterHoldCo (as successor-in-interest to NTH), ACON Refining, TPG Refining, NTR Partners LLC, NTR Partners II LLC and NTI Management are entitled to participate in certain other registration statements and offerings conducted on behalf of the Partnership or third parties.
 
References to and descriptions of the Registration Rights Agreement and Assignment of Registration Rights set forth above in this Item 6 do not purport to be complete and are qualified in their entirety by reference to the full text of the Registration Rights Agreement and Assignment of Registration Rights, which have been filed as Exhibits G and H, respectively, and are incorporated herein by reference.
 
To the Reporting Persons’ knowledge, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and any person with respect to any securities of the Partnership.
 

 
 
8
 
 
 
Item 7. Material to be Filed as Exhibits.
 
Exhibit A
Joint Filing Agreement (filed herewith).
 
Exhibit B
Purchase Agreement, dated as of November 12, 2013, by and between Northern Tier Holdings LLC and Western Refining, Inc. (previously filed with the Commission as Exhibit 10.1 to Form 8-K filed by Western Refining, Inc. on November 14, 2013).
 
Exhibit C
Term Loan Credit Agreement dated as of November 12, 2013, among Western Refining, Inc., Bank of America, N.A., as administrative agent, and the lenders party thereto (previously filed with the Commission as Exhibit 10.1 to Form 8-K filed by Western Refining, Inc. on November 14, 2013).
 
Exhibit D
Northern Tier Energy LP 2012 Long Term Incentive Plan (previously filed with the Commission as Exhibit 10.2 to Form 8-K filed by Northern Tier Energy LP on July 30, 2012).
 
Exhibit E
Third Amended Restated Limited Liability Company Agreement of Northern Tier Energy GP LLC, dated November 12, 2013 (filed herewith).
 
Exhibit F
First Amended and Restated Agreement of Limited Partnership of Northern Tier Energy LP, dated July 31, 2012 (previously filed with the Commission as Exhibit 3.1 to Form 8-K filed by Northern Tier Energy LP on August 2, 2012).
 
Exhibit G
Amended and Restated Registration Rights Agreement, dated July 31, 2012, by and among TPG Refining, L.P., ACON Refining Partners, L.L.C., NTI Management Company, L.P., NTR Partners LLC, NTR Partners II LLC, Northern Tier Investors, LLC, Northern Tier Holdings LLC and Northern Tier Energy LP (previously filed with the Commission as Exhibit 4.1 to Form 8-K filed by Northern Tier Energy LP on August 2, 2012).
 
Exhibit H
Assignment of Registration Rights, dated November 11, 2013, by and between Northern Tier Holdings LLC and NT InterHoldCo LLC (filed herewith).
 
 
 
 
 
 
9
 

 
 
SIGNATURES
 
After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
 
 
Date: November 22, 2013
WESTERN REFINING, INC.
  
       
 
By:
/s/ Gary R. Dalke  
    Name: Gary R. Dalke  
    Title: Chief Financial Officer  
       
 
 
 
NT INTERHOLDCO LLC
  
       
 
By:
/s/ Gary R. Dalke  
    Name: Gary R. Dalke  
    Title: Chief Financial Officer of Western Refining, Inc., as the sole member of NT InterHoldCo LLC  
       
 
 
 

 
10
 
 
 
Schedule 1
 
Directors of Western Refining, Inc.
 
Jeff A. Stevens
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: President and Chief Executive Officer and Director of Western Refining, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Carin M. Barth
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: President of LB Capital, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Paul L. Foster
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Executive Chairman, Chairman of the Board and Director of Western Refining, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
L. Frederick Francis
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Executive Chairman of WestStar Bank
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Sigmund L. Cornelius
c/o Western Refining, Inc.
 
 
 
11
 
 
 
 
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Director of Western Refining, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Brian J. Hogan
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: President and Chief Executive Officer of Hogan Truck Leasing, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Scott D. Weaver
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Vice President, Assistant Treasurer and Assistant Secretary and Director of Western Refining, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
William D. Sanders
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Chairman of Strategic Management Partners and Strategic Growth Bank Incorporated
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Ralph A. Schmidt
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901 Principal Occupation: Director of Western Refining, Inc. Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
 

 
 
12
 
 
 
Executive Officers of Western Refining, Inc.
 
Paul L. Foster
(see above)
 
Jeff A. Stevens
(see above)
 
Mark J. Smith
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: President – Refining and Marketing of Western Refining, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Gary R. Dalke
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Chief Financial Officer of Western Refining, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
William R. Jewell
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Chief Accounting Officer of Western Refining, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Lowry Barfield
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Senior Vice President - Legal, General Counsel and Secretary of Western Refining, Inc.
Citizenship: USA
Amount beneficially owned: 0 common units                                                                                                        Percentage: 0%
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 0
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 0
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
 
 
 
13
 
 
 
 
Jeffrey S. Beyersdorfer
c/o Western Refining, Inc.
123 W. Mills Avenue, Suite 200, El Paso, Texas 79901
Principal Occupation: Senior Vice President - Treasurer, Director of Investor Relations and Assistant Secretary of Western
Refining, Inc.
Citizenship: USA
Amount beneficially owned: 500 common units                                                                                                    Percentage: *
Number of shares to which the Reporting Person has:
 
i.
Sole power to vote or to direct the vote: 500 units
 
ii.
Shared power to vote or to direct the vote: 0
 
iii.
Sole power to dispose or to direct the disposition of: 500 units
 
iv.
Shared power to dispose or to direct the disposition of: 0
 
Scott D. Weaver
(see above)
 
Sole Member of NT InterHoldCo LLC
 
Western Refining, Inc.
 
*    Less than 1%.
 
 
 

 
14

 
 EX-99.A 2 dp42062_ex-a.htm EXHIBIT 99.A
EXHIBIT A
JOINT FILING AGREEMENT

We, the undersigned, hereby express our agreement that the attached Schedule 13D is, and any further amendments thereto signed by each of the undersigned shall be, filed on behalf of each of us pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended. This agreement may be terminated with respect to the obligations to jointly file future amendments to such statement on Schedule 13D as to any of the undersigned upon such person giving written notice thereof to each of the other persons signatory hereto, at the principal office thereof.

 
Date: November 22, 2013
  
WESTERN REFINING, INC.
  
             
             
      By:
/s/ Gary R. Dalke
  
        Name: Gary R. Dalke  
        Title: Chief Financial Officer  
 

 
 
  
NT INTERHOLDCO LLC
  
             
             
      By:
/s/ Gary R. Dalke
  
        Name: Gary R. Dalke  
        Title:
Chief Financial Officer of Western Refining, Inc., as the sole member of NT InterHoldCo LLC
  
 
 EX-99.E 3 dp42062_ex-e.htm EXHIBIT 99.E
EXHIBIT E
 
Execution Version
 
 
 
 
 
 
THIRD AMENDED AND RESTATED
 
LIMITED LIABILITY COMPANY AGREEMENT
 
OF
 
NORTHERN TIER ENERGY GP LLC
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
TABLE OF CONTENTS
 
ARTICLE I DEFINITIONS
 
Section 1.1 
Definitions
1
Section 1.2
Construction
3
     
ARTICLE II ORGANIZATION
 
Section 2.1
Formation
4
Section 2.2
Name
4
Section 2.3
Registered Office; Registered Agent; Principal Office
4
Section 2.4
Purpose
4
Section 2.5
Powers
4
Section 2.6
Term
4
     
ARTICLE III CAPITAL CONTRIBUTIONS; DISTRIBUTIONS
 
Section 3.1
Initial Capital Contributions
4
Section 3.2
Additional Capital Contributions
5
Section 3.3
Distributions
5
     
ARTICLE IV MANAGEMENT AND OPERATION OF BUSINESS
 
Section 4.1
The Board; Delegation of Authority and Duties
5
Section 4.2
Number and Appointment of Directors; Term; Current Directors; Executive Chairman; Expenses; D&O Insurance
6
Section 4.3
Meetings of the Board and Committees
7
Section 4.4
Quorum; Voting
8
Section 4.5
Reliance by Third Parties
9
     
ARTICLE V OFFICERS
 
Section 5.1
Appointment
9
Section 5.2
Term of Office, Removal and Vacancies
10
     
ARTICLE VI INDEMNIFICATION; BUSINESS OPPORTUNITIES
 
Section 6.1
Indemnification
10
Section 6.2
Liability of Indemnitees
12
Section 6.3
Business Opportunities
12
     
ARTICLE VII BOOKS, RECORDS, ACCOUNTING AND REPORTS
 
 
 
i
 
 
 
Section 7.1
Records and Accounting
13
Section 7.2
Reports
13
     
ARTICLE VIII DISSOLUTION AND LIQUIDATION
 
Section 8.1
Dissolution
13
Section 8.2
Effect of Dissolution
13
Section 8.3
Application of Proceeds
13
     
ARTICLE IX GENERAL PROVISIONS
 
Section 9.1
Amendments to this Agreement
14
Section 9.2
Entire Agreement
14
Section 9.3
Addresses and Notices
14
Section 9.4
Applicable Law
15
Section 9.5
Creditors
15
Section 9.6
Third Party Beneficiaries
15
Section 9.7
Invalidity of Provisions
15
Section 9.8
Successors and Assigns
15
 
 
Third Amended and Restated Limited Liability Company Agreement
of
Northern Tier Energy GP LLC
 
ii
 


THIRD AMENDED AND RESTATED
LIMITED LIABILTY COMPANY AGREEMENT
OF
NORTHERN TIER ENERGY GP LLC
 
THIS THIRD AMENDED AND RESTATED LIMITED LIABILTY COMPANY AGREEMENT of Northern Tier Energy GP LLC, a Delaware limited liability company (the “Company”), dated as of November 12, 2013 is entered into by NT InterHoldCo LLC, a Delaware limited liability company (“InterHoldCo”), as sole member of the Company as of the date hereof (in such capacity, the “Sole Member”).
 
RECITALS:
 
WHEREAS, the Company was formed as a limited liability company under the Delaware Limited Liability Company Act by filing a Certificate of Formation with the Secretary of State of the State of Delaware on June 4, 2012.
 
WHEREAS, NTH as the initial member of the Company entered into that certain Limited Liability Company Agreement dated as of June 4, 2012,
 
WHEREAS, NTH as the sole member of the Company entered into that certain First Amended and Restated Limited Liability Company Agreement (the “First A&R LLC Agreement”) dated as of July 31, 2012.
 
WHEREAS, pursuant to that certain Contribution Agreement between NTH and InterHoldCo dated November 11, 2013, NTH transferred 100% of the membership interests in the Company to InterHoldCo.
 
WHEREAS, the Sole Member entered into that certain Second Amended and Restated Limited Liability Company Agreement (the “Second A&R LLC Agreement”) dated as of November 11, 2013.
 
WHEREAS, the Sole Member now desires to amend and restate the Second A&R LLC Agreement in its entirety by executing this Third Amended and Restated Limited Liability Company Agreement of the Company.
 
NOW THEREFORE, in consideration of the covenants, conditions and agreements contained herein, the Sole Member hereby enters into this Agreement:
 
ARTICLE I
 
DEFINITIONS
 
Section 1.1                      Definitions
 
.  The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
 
 “Act” means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et seq., as amended, supplemented or restated from time to time, and any successor to such statute.
 
 
1
 
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
 
“Agreement” means this Third Amended and Restated Limited Liability Company Agreement of the Company, as it may be amended, supplemented or restated from time to time. The Agreement constitutes a “limited liability company agreement” as such term is defined in the Act.
 
“Board” has the meaning assigned to such term in Section 4.1(a).
 
“Capital Contribution” means any contribution to the Company of cash or cash equivalents, property or services rendered, or a promissory note or other obligation to contribute cash or cash equivalents or property or to perform services.
 
“Certificate of Formation” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware as referenced in Section 2.1, as such Certificate of Formation may be amended, supplemented or restated from time to time.
 
“Chairman” has the meaning assigned to such term in Section 4.2(b).
 
“Common Unit” has the meaning assigned to such term in the Partnership Agreement.
 
“Company” has the meaning assigned to such term in the introductory paragraph of this Agreement.
 
“Company Group” means the Company and any Subsidiary of the Company, treated as a single consolidated entity.
 
“Director” means a member of the Board.
 
“First A&R LLC Agreement” has the meaning assigned to such term in the recitals of this Agreement.
 
“Group Member” means a member of the Company Group.
 
“Indemnitee” means (a) the Sole Member, (b) any Person who is or was an Affiliate of the Company, (c) any Person who is or was a manager, managing member, general partner, director, officer, employee, agent, fiduciary or trustee of any Group Member or any of their respective Affiliates, (d) any Person who is or was serving at the request of the Company or any of its respective Affiliates as an officer, director, manager, managing member, general partner, employee, agent, fiduciary or trustee of another Person owing a fiduciary or similar duty to any Group Member; provided that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (e) any Person who controls the Sole Member and (f) any Person the Company designates as an “Indemnitee” for purposes of this Agreement because such Person’s service, status or relationship exposes such Person to potential
 
 
2
 
claims, demands, actions, suits or proceedings relating to the Company Group’s business and affairs.
 
“Independent Director” has the meaning assigned to such term in Section 4.1(c)(ii).
 
“InterHoldCo” has the meaning assigned to such term in the introductory paragraph of this Agreement.
 
“Membership Interest” means all of the Sole Member’s rights and interest in the Company in the Sole Member’s capacity as the Sole Member, all as provided in the Certificate of Formation, this Agreement and the Act, including, without limitation, the Sole Member’s interest in the capital, income, gain, deductions, losses and credits of the Company.
 
“NTH” means Northern Tier Holdings LLC, a Delaware limited liability company.
 
“Officer” has the meaning given to such term in Section 5.1(a).
 
“Partnership” means Northern Tier Energy Partners LP, a Delaware limited partnership.
 
“Partnership Agreement” means the First Amended and Restated Agreement of Limited Partnership of the Partnership, as it may be amended, supplemented or restated from time to time.
 
“Person” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, government agency or political subdivision thereof or other entity.
 
“Second A&R LLC Agreement” has the meaning assigned to such term in the recitals of this Agreement.
 
“Sole Member” has the meaning assigned to such term in the introductory paragraph of this Agreement.
 
“Subsidiary” means, with respect to any Person, (a) a corporation of which more than 50% of the voting power of shares entitled (without regard to the occurrence of any contingency) to vote in the election of directors or other governing body of such corporation is owned, directly or indirectly, at the date of determination, by such Person, by one or more Subsidiaries of such Person or a combination thereof, (b) a partnership (whether general or limited) in which such Person or a Subsidiary of such Person is, at the date of determination, a general partner of such partnership, but only if such Person, directly or by one or more Subsidiaries of such Person, or a combination thereof, controls such partnership, directly or indirectly, at the date of determination or (c) any other Person in which such Person, one or more Subsidiaries of such Person, or a combination thereof, directly or indirectly, at the date of determination, has (i) at least a majority ownership interest or (ii) the power to elect or direct the election of a majority of the directors or other governing body of such Person.
 
Section 1.2   Construction.  Unless the context requires otherwise: (i) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms; (ii)
 
 
 
3
 
references to Articles and Sections refer to Articles and Sections of this Agreement; (iii) the terms “include”, “includes”, “including” and words of like import shall be deemed to be followed by the words “without limitation”; and (iv) the terms “hereof”, “herein” and “hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement.  The table of contents and headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of this Agreement.
 
ARTICLE II
ORGANIZATION
 
Section 2.1   Formation.  The Company was formed as a Delaware limited liability Company pursuant to the filing of the Certificate of Formation with the Secretary of State of the State of Delaware on June 4, 2012.
 
Section 2.2   Name.  The name of the Company is “Northern Tier Energy GP LLC”.  The business of the Company may be conducted upon compliance with all applicable laws, under any other name or names designated by the Sole Member; provided that such name contains the words “Limited Liability Company,” “L.L.C.” or “LLC”.
 
Section 2.3   Registered Office; Registered Agent; Principal Office.  Unless and until changed by the Board, the registered office of the Company in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware 19801, and the registered agent for service of process on the Company in the State of Delaware at such registered office shall be The Corporation Trust Company.  The principal office of the Company shall be located at 123 W. Mills Avenue, El Paso, Texas 79901, or such other place as the Sole Member may from time to time designate.
 
Section 2.4   Purpose.  The purpose of the Company is to act as the general partner of the Partnership as described in and subject to the Partnership Agreement and to engage in any lawful business or activity ancillary or related thereto.
 
Section 2.5   Powers.  Subject to the provisions of this Agreement, the Company shall be empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purpose described in Section 2.4.
 
Section 2.6   Term.  The term of the Company commenced upon the filing of the Certificate of Formation with the Secretary of State of the State of Delaware and shall continue until the dissolution of the Company in accordance with the provisions of Article VII.
 
ARTICLE III
CAPITAL CONTRIBUTIONS; DISTRIBUTIONS
 
Section 3.1   Initial Capital Contributions.  In connection with the formation of the Company, NTH made a Capital Contribution in the amount of $10.00 in exchange for all of the membership interests of the Company.
 
 
4
 
Section 3.2   Additional Capital Contributions.  The Sole Member shall not be obligated to make additional Capital Contributions to the Company.
 
Section 3.3   Distributions.  Distributions by the Company of cash or other property shall be made to the Sole Member at the times and in the amounts as the Sole Member determines.
 
ARTICLE IV
MANAGEMENT AND OPERATION OF BUSINESS
 
Section 4.1   The Board; Delegation of Authority and Duties.
 
(a)   Board.  The business and affairs of the Company shall be managed under the direction of a board of directors of the Company (the “Board”).  The members of the Board shall be deemed “managers” of the Company as such term is defined in the Act.  Except as otherwise provided in this Agreement or as required by the Act, all management powers over the business and affairs of the Company shall be exclusively vested in the Board.
 
(b)   Delegation by the Board.  The Board shall have the power and authority to delegate to one or more other Persons the Board’s rights and powers to manage and control the business and affairs of the Company, including delegating such rights and powers of the Board to agents and employees of the Company Group (including Officers).
 
(c)   Committees.
 
(i)   The Board may establish committees of the Board and appoint chairmen thereof.  The Board may delegate any of its responsibilities to such committees, except as prohibited by applicable law.
 
(ii)   Subject to the transition rules of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder and by the New York Stock Exchange or any national securities exchange on which the Common Units are listed, the Board shall have an audit committee comprised of Directors who meet the independence standards required of directors who serve on an audit committee of a board of directors established by the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder and by the New York Stock Exchange or any national securities exchange on which the Common Units are listed (each director, an “Independent Director”). Such audit committee shall establish a written audit committee charter in accordance, and shall otherwise comply, with the rules and regulations of the Commission and the New York Stock Exchange or any national securities exchange on which the Common Units are listed.
 
(iii)   The Board may, from time to time, establish a conflicts committee as provided for in the Partnership Agreement.
 
(d)   Member Consent Required for Extraordinary Matters.  Notwithstanding anything herein to the contrary, the Board will not take any action without approval of the Sole Member with respect to an extraordinary matter that would have, or would reasonably be expected to have, a material effect, directly or indirectly, on the Sole Member’s Membership
 
 
5
 
Interest.  The type of extraordinary matter referred to in the prior sentence which requires approval of the Sole Member shall include, but not be limited to, the following:  (i) commencement of any action relating to bankruptcy, insolvency, reorganization or relief of debtors by any Group Member; (ii) a merger, consolidation, recapitalization or similar transaction involving a Group Member; (iii) a sale, exchange or other transfer not in the ordinary course of business of a substantial portion of the assets of the Partnership or a Subsidiary of the Partnership, viewed on a consolidated basis, in one or a series of related transactions; (iv) dissolution or liquidation of the Company or the Partnership; and (v) a material amendment of the Partnership Agreement.  An extraordinary matter will be deemed approved by the Sole Member if the Board receives a written, facsimile or electronic instruction evidencing such approval from the Sole Member or if a majority of the Directors that do not qualify as Independent Directors because of their affiliation with the Sole Member, approve such matter.  To the fullest extent permitted by law, a Director, acting as such, shall have no duty, responsibility or liability to the Sole Member with respect to any action by the Board approved by the Sole Member.
 
(e)   Member-Managed Decisions.  Notwithstanding anything herein to the contrary, the Sole Member shall have exclusive authority over the internal business and affairs of the Company that do not relate to management and control of the Partnership and its Subsidiaries.  For illustrative purposes, the internal business and affairs of the Company where the Sole Member shall have exclusive authority include (i) the amount and timing of distributions paid by the Company, (ii) the issuance or repurchase of any equity interests in the Company, (iii) the prosecution, settlement or management of any claim made directly against the Company, (iv) the decision to sell, convey, transfer or pledge any asset of the Company, (v) the decision to amend, modify or waive any rights relating to the assets of the Company and (vi) the decision to enter into any agreement to incur an obligation of the Company other than an agreement entered into for and on behalf of the Partnership for which the Company is liable exclusively by virtue of the Company’s capacity as general partner of the Partnership.
 
In addition, notwithstanding anything herein to the contrary, the Sole Member shall have exclusive authority to cause the Company to exercise the rights of the Company as general partner of the Partnership (or those exercisable after the Company ceases to be the general partner of the Partnership) where (a) the Company makes a determination or takes or declines to take any other action in its individual capacity under the Partnership Agreement or (b) where the Partnership Agreement permits the Company to make a determination or take or decline to take any other action in its sole discretion.  For illustrative purposes, a list of provisions where the Company would be acting in its individual capacity or is permitted to act in its sole discretion is contained in Exhibit A hereto.
 
Section 4.2   Number and Appointment of Directors; Term; Current Directors; Executive Chairman; Expenses; D&O Insurance.
 
(a)   Number and Appointment of Directors.  The Board shall consist of at least five and not more than twelve Directors, unless otherwise fixed from time to time by the Sole Member.  The Directors shall be appointed by the Sole Member.  The Sole Member may remove any Director at any time either with or without cause.
 
 
6
 
(b)   Term.  Once elected or appointed, a Director shall continue in office until the removal of such Director in accordance with the provisions of this Agreement or until the earlier death or resignation of such Director.  Any Director may resign at any time by giving written notice of such Director’s resignation to the Board.  Any such resignation shall take effect at the time the Board receives such notice or at any later effective time specified in such notice.  Unless otherwise specified in such notice, the acceptance by the Board of such Director’s resignation shall not be necessary to make such resignation effective.
 
(c)   Current Directors.  The Directors of the Company as of the date of this Agreement are the following individuals:
 
Dan Smith, Executive Chairman
Hank Kuchta
Tom Hofmann
Scott Josey
Rocky L. Duckworth
Jeff Stevens
Paul Foster
Scott Weaver
Lowry Barfield
 
(d)   Executive Chairman of the Board. The Sole Member may appoint an executive chairman (the “Chairman”) of the Board, and the Chairman as of the date hereof is Dan Smith.  The Chairman of the Board, if appointed, shall be a member of the Board and shall preside at all meetings of the Board.  The Chairman of the Board shall not be an Officer by virtue of being the Chairman of the Board but may otherwise be an Officer.  The Sole Member may remove the Chairman at any time either with or without cause.  No removal or resignation as Chairman of the Board shall affect such Chairman’s status as a Director.
 
(e)   Director Expenses.  The Company shall reimburse the Directors for all reasonable out-of-pocket expenses incurred in connection with their attendance at meetings of the Board and any committees thereof, including without limitation travel, lodging and meal expenses.
 
(f)   Director Insurance.  The Company shall obtain customary director and officer indemnity insurance on commercially reasonable terms, unless such insurance has been obtained by a Subsidiary or Affiliate of the Company and remains in place with coverage extending to the Directors and Officers of the Company.
 
Section 4.3   Meetings of the Board and Committees.
 
(a)   Meetings.  Except as set forth in Section 4.3(d), all actions of the Board (or any committee of the Board) shall be taken at meetings of the Board (or such committee) in accordance with Article IV.  The Board (or any committee of the Board) shall meet at such time and at such place as the Chairman of the Board (or the chairman of such committee) or, if there is no such chairman, then a majority of the members of the Board (or of such committee), may designate.
 
 
7
 
(b)   Notice.
 
(i)   Written notice of all regular meetings of the Board (or any committee of the Board) must be given to all Directors (or all members of such committee) at least two days prior to the regular meeting of the Board (or such committee).
 
(ii)   Special meetings of the Board (or any committee of the Board) shall be held at the request of the Chairman, a majority of the Directors (or a majority of the members of such committee) or the Sole Member upon at least two days (if the meeting is to be held in person) or twenty-four hours (if the meeting is to be held telephonically) oral or written notice to the Directors (or the members of such committee) or upon such shorter notice as may be approved by the Directors (or the members of such committee), which approval may be given before or after the relevant meeting to which the notice relates.
 
(iii)   All notices and other communications to be given to Directors (or members of a committee) shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service or three days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or when received as an attachment to an electronic mail message or facsimile, and shall be directed to the address, electronic mail address or facsimile number as such Director (or member) shall designate by notice to the Company.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board (or committee) need be specified in the notice of such meeting.
 
(iv)   Any Director (or member of such committee) may waive the requirement of such notice as to such Director (or such member).
 
(c)   Conduct of Meetings.  Any meeting of the Board (or any committee of the Board) may be held by telephone conference or similar communications equipment by means of which all Persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
 
(d)   Action Without a Meeting.  Any action required or permitted to be taken at any meeting of the Board (or any committee of the Board) may be taken without a meeting.
 
Section 4.4   Quorum; Voting.
 
(a)   Quorum.  Fifty percent or more of all Directors (or of the members of a committee of the Board), present in person or by proxy, shall constitute a quorum for the transaction of business, but if at any meeting of the Board (or committee) there shall be less than a quorum present, a majority of the Directors (or members of a committee) present may adjourn the meeting without further notice.  The Directors (or members of a committee) present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough Directors (or members of a committee) to leave less than a quorum; provided, however, that only the acts of the Directors (or members of a committee) meeting the requirements of Section 4.4(b) shall be deemed to be acts of the Board (or such committee).
 
 
8
 
(b)   Voting.  Except as otherwise provided in this Agreement, the effectiveness of any vote, consent or other action or decision of the Board (or any committee) in respect of any matter shall require either (1) the presence of a quorum and the affirmative vote of at least a majority of the Directors (or members of such committee) present, or (2) the written consent (in lieu of meeting) of the Directors (or members of such committee) having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of the Board (or any committee) at which all Directors (or members of such committee) entitled to vote thereon were present and voted.  Any Director may vote in person or by proxy (pursuant to a power of attorney) on any matter that is to be voted on by the Board at a meeting thereof.
 
Section 4.5   Reliance by Third Parties.  Persons dealing with the Company, other than the Sole Member, are entitled to rely conclusively upon the power and authority of the Board (or any Officer authorized by the Board) in taking any action in the name of the Company without inquiry into the provisions of this Agreement or compliance herewith. Every agreement, instrument or document executed by the Board (or any Officer authorized by the Board) in the name of the Company with respect to any business or property of the Company shall be conclusive evidence in favor of any Person relying thereon or claiming thereunder that (i) at the time of the execution or delivery thereof, this Agreement was in full force and effect, (ii) such agreement, instrument or document was duly executed according to this Agreement and is binding upon the Company and (iii) the Board or such Officer was duly authorized and empowered to execute and deliver such agreement, instrument or document for and on behalf of the Company.
 
ARTICLE V
OFFICERS
 
Section 5.1   Appointment.
 
(a)   Generally.  The Board shall appoint agents of the Company, referred to as “Officers” of the Company as described in this Article V, who shall be responsible for the day-to-day business affairs of the Company, subject to the overall direction and control of the Board.  Exhibit B to this Agreement sets forth (i) the Persons who serve as Officers as of the date hereof and (ii) the office for which each such Person serves.
 
(b)   Powers and Duties.  Except as otherwise expressly provided in this Agreement, the Officers shall have such powers and duties in the management of the Company as generally pertain to their respective offices of a corporation governed by the General Corporation Law of the State of Delaware.
 
(c)   Other Officers and Agents.  The Board of Directors may elect or appoint such other officers to assist and report to the Board or the existing Officers as it deems necessary or appropriate. Subject to the preceding sentence, each such officer shall have such authority and shall perform such duties as may be provided herein or as the Board may prescribe. The Board may delegate to any Officer the power to choose such other officers and to prescribe their respective duties and powers.
 
 
9
 
(d)   Officers’ Delegation of Authority.  Unless otherwise provided by resolution of the Board, no Officer shall have the power or authority to delegate to any Person such Officer’s rights and powers as an Officer to manage the business and affairs of the Company.
 
Section 5.2   Term of Office, Removal and Vacancies.  The Officers shall be appointed by the Board at such time and for such terms as the Board shall determine.  Any Officer may be removed, with or without cause, only by the Board.   Vacancies in any office may be filled only by the Board.
 
ARTICLE VI
INDEMNIFICATION; BUSINESS OPPORTUNITIES
 
Section 6.1   Indemnification.
 
(a)   To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, all Indemnitees shall be indemnified and held harmless by the Company from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee and acting (or refraining to act) in such capacity; provided, that the Indemnitee shall not be indemnified and held harmless if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 6.1, the Indemnitee acted in bad faith or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  Any indemnification pursuant to this Section 6.1 shall be made only out of the assets of the Company, it being agreed that the Sole Member shall not be personally liable for such indemnification and shall have no obligation to contribute or loan any monies or property to the Company to enable it to effectuate such indemnification.
 
(b)   To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 6.1(a) in appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 6.1, that the Indemnitee is not entitled to be indemnified upon receipt by the Company of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 6.1.
 
(c)   The indemnification provided by this Section 6.1 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in
 
 
10
 
such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the Indemnitee.
 
(d)   The Company may purchase and maintain (or reimburse the Sole Member or its Affiliates for the cost of) insurance, on behalf of the Indemnitees and such other Persons as the Sole Member shall determine, against any liability that may be asserted against, or expense that may be incurred by, such Indemnitee in connection with the Company’s activities or such Indemnitee’s activities on behalf of the Company, regardless of whether the Company would have the power to indemnify such Indemnitee against such liability under the provisions of this Agreement.
 
(e)   For purposes of this Section 6.1, the Company shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Company also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” within the meaning of Section 6.1(a); and action taken or omitted by an Indemnitee with respect to any employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the best interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose that is in the best interests of the Company.
 
(f)   An Indemnitee shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person (including any other Indemnitee and any expert or advisor retained by or on behalf of the Company or the Board) as to matters the Indemnitee reasonably believes to be within such other Person’s professional or expert competence.
 
(g)   In no event may an Indemnitee subject the Sole Member to personal liability by reason of the indemnification provisions set forth in this Agreement.
 
(h)   An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.1 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement.
 
(i)   The provisions of this Section 6.1 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons.
 
(j)   No amendment, modification or repeal of this Section 6.1 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Company, nor the obligations of the Company to indemnify any such Indemnitee under and in accordance with the provisions of this Section 6.1 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
 
 
11
 
Section 6.2   Liability of Indemnitees.
 
(a)   Notwithstanding anything to the contrary set forth in this Agreement or the Partnership Agreement, no Indemnitee shall be liable for monetary damages to the Company, the Sole Member or any other Persons who have acquired interests in the Company or is otherwise bound by this Agreement, for losses sustained or liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.  The Sole Member, any other Person who acquires an interest in the Company or any other Person bound by this Agreement, each on their own behalf and on behalf of the Company, waives any and all rights to claim punitive damages or damages based upon the federal, state or local income taxes paid or payable by any such Person.
 
(b)   To the extent that, at law or in equity, an Indemnitee has duties (including fiduciary duties) and liabilities relating thereto to the Company,  to the Sole Member or any other Persons who have acquired interests in the Company or are otherwise bound by this Agreement and any other Indemnitee acting in connection with the Company’s business or affairs shall not be liable, to the fullest extent permitted by law, to the Company, the Sole Member or any other Persons who have acquired interests in the Company or are otherwise bound by this Agreement, for their reliance on the provisions of this Agreement.
 
(c)   Any amendment, modification or repeal of this Section 6.2 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the liability of the Indemnitees under this Section 6.2 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.
 
Section 6.3   Business Opportunities.
 
(a)   Existing Business Ventures. The Sole Member, each Director and their respective Affiliates shall have the right to engage in businesses of every type and description and other activities for profit and to engage in and possess an interest in other business ventures of any and every type or description, whether in businesses engaged in or anticipated to be engaged in by the Company, independently or with others, including business interests and activities in direct competition with the business and activities of the Company. No such business interest or activity shall constitute a breach of this Agreement, any fiduciary or other duty existing at law, in equity or otherwise, or obligation of any type whatsoever to the Company, the Sole Member, any Person who acquires an interest in the Company or any Person who is otherwise bound by this Agreement; provided such Person does not engage in such business or activity as a result of or using confidential or proprietary information provided by or on behalf of the Partnership to such Peron.
 
(b)   Business Opportunities. Notwithstanding anything to the contrary in this Agreement, the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to the Sole Member, each Director or their respective Affiliates. None of the Sole Member, each
 
 
12
 
Director or their respective Affiliates who acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Company shall have any duty to communicate or offer such opportunity to the Company, and none of the Sole Member, each Director or any of their respective Affiliates shall be liable to the Company or any Person who acquires an interest in the Company or any other Person who is otherwise bound by this Agreement for breach of any fiduciary or other duty existing at law, in equity or otherwise by reason of the fact that the Sole Member, each Director or any of their respective Affiliates, as the case may be, pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not communicate such opportunity or information to the Company.
 
ARTICLE VII
BOOKS, RECORDS, ACCOUNTING AND REPORTS
 
Section 7.1   Records and Accounting.  The Company shall keep at the principal office of the Company appropriate books and records with respect to the Company’s business.  The books of the Company shall be (3) maintained on the basis of a fiscal year ending December 31 and (4) maintained on an accrual basis in accordance with U.S. generally accepted accounting principles.
 
Section 7.2   Reports.  The Board shall oversee the accounting, tax and record keeping matters of the Company.  The Company shall prepare and promptly send to the Sole Member accounting, tax and other financial information, reports and schedules as the Sole Member shall reasonably request.
 
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
 
Section 8.1   Dissolution.
 
(a)   The Company shall dissolve, and its affairs shall be wound up, upon:
 
(i)   an election to dissolve the Company by the Sole Member; or
 
(ii)   an event described in Section 18-801(a)(4) of the Act.
 
(b)   No other event shall cause a dissolution of the Company.
 
Section 8.2   Effect of Dissolution.  Except as otherwise provided in this Agreement, upon the dissolution of the Company, the Sole Member shall take such actions as may be required pursuant to the Act and shall proceed to wind up, liquidate and terminate the business and affairs of the Company.
 
Section 8.3   Application of Proceeds.  Upon dissolution and liquidation of the Company, the assets of the Company shall be applied and distributed in the following order of priority:
 
(a)   First, to the payment of debts and liabilities of the Company (including to the Sole Member to the extent permitted by applicable law) and the expenses of liquidation;
 
 
13
 
(b)   Second, to the setting up of such reserves as the Sole Member may reasonably deem necessary or appropriate for any disputed, contingent or unforeseen liabilities or obligations of the Company; and
 
(c)   Thereafter, the remainder to the Sole Member.
 
ARTICLE IX
GENERAL PROVISIONS
 
Section 9.1   Amendments to this Agreement.  The terms and provisions of this Agreement may be modified or amended at any time and from time to time by the written consent of the Sole Member.
 
Section 9.2   Entire Agreement.  The Agreement supersedes all prior agreements with respect to the subject matter hereof.  This instrument contains the entire agreement with respect to such subject matter.  This instrument may not be amended, supplemented or discharged, and no provision hereof may be modified or waived, except expressly by an instrument in writing signed by the Sole Member.  No waiver of any provision hereof shall be deemed a continuing waiver of any matter.  No amendment, modification, supplement, discharge or waiver hereof or hereunder shall require the consent of any Person not a party to this Agreement.
 
Section 9.3   Addresses and Notices.  Unless otherwise specified herein, all notices and other communications that are required to be or may be given pursuant to this Agreement shall be in writing and shall be delivered in person or by courier or mailed by registered or certified mail (postage prepaid, return receipt requested) or by a national overnight courier service to the relevant party at the following addresses or sent by facsimile or electronic mail to the following numbers:
 
 
If to the Company or the Board of Directors:
 
Northern Tier Energy GP LLC
38C Grove Street, Suite 100
Ridgefield, CT 06877
Attn: General Counsel
Facsimile No.: (203) 431-7672
 
If to the Sole Member:
 
NT InterHoldCo LLC
c/o Western Refining, Inc., its sole member
123 W. Mills Avenue
El Paso, Texas  79901
Attn: General Counsel
Facsimile No.: (602) 797-2650
 
 
14
 
With a copy (which shall not constitute notice) to:
 
Pillsbury Winthrop Shaw Pittman LLP
Four Embarcadero Center, 22nd Floor
San Francisco, California  94111
Attn:  Patrick J. Devine
Facsimile No.: (415) 983-1200

or to such other address or facsimile number as the parties, from time to time, designate in a written notice given in accordance with this Section 9.3. Any such notice or communication shall be deemed to have been duly given: (i) if delivered in person or by courier, upon actual receipt by the intended recipient, (ii) if mailed in accordance with the foregoing provisions, upon the earlier of the third business day after deposit in the mail and the date of delivery as shown by the return receipt therefor, (iii) on the first business day with respect to which a national overnight courier service guarantees delivery, (iv) if sent by facsimile transmission, 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 recipient’s normal business hours, or (v) when receipt is acknowledged by intended recipient if by electronic email
 
Section 9.4   Applicable Law.  This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law.
 
Section 9.5   Creditors.  None of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Company.
 
Section 9.6   Third Party Beneficiaries.  The Sole Member agrees that any Indemnitee shall be entitled to assert rights and remedies hereunder as a third-party beneficiary hereto with respect to those provisions of this Agreement affording a right, benefit or privilege to such Indemnitee.
 
Section 9.7   Invalidity of Provisions.  If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
 
Section 9.8   Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the Sole Member and its respective successors and permitted assigns.
 
[The Remainder Of This Page Is Intentionally Blank]
 
 
15
 
 
IN WITNESS WHEREOF, the Sole Member has executed this Agreement as of the date first written above.
 
 
 
 
 
NT INTERHOLDCO LLC
  
       
       
 
By:
Western Refining, Inc., its sole member
  
       
       
 
By:
/s/ Mark J. Smith
 
 
Name:
 Mark J. Smith  
 
Title:
President - Refining and Marketing
  
 
 
 
 
 
Signature Page to
Third Amended and Restated Limited Liability Company Agreement
of
Northern Tier Energy GP LLC
 
 
 EX-99.H 4 dp42062_ex-h.htm EXHIBIT 99.H
EXHIBIT H

ASSIGNMENT OF REGISTRATION RIGHTS
 
This ASSIGNMENT OF REGISTRATION RIGHTS (this “Agreement”), dated as of November 11, 2013 is made by and between Northern Tier Holdings LLC, a Delaware limited liability company (“Assignor”), and NT InterHoldCo LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Assignee”).
 
W I T N E S S E T H

WHEREAS, Assignor is party to that certain Amended and Restated Registration Rights Agreement dated July 31, 2012 (as may be amended from time to time, the “RRA”) by and between TPG Refining, L.P., ACON Refining Partners L.L.C., NTI Management Company, L.P., NTR Partners LLC, NTR Partners II LLC, Northern Tier Investors, LLC, Assignor and Northern Tier Energy LP;
 
WHEREAS, pursuant to Section 3.06 of the RRA, Assignor may assign all or a portion of its rights hereunder to any Person (as defined in the RRA) to which such party transfers its ownership of all or any of its Registrable Securities (as defined in the RRA);
 
WHEREAS, Assignor has contributed all of its Registrable Securities to Assignee pursuant to that certain Contribution Agreement between Assignor and Assignee dated as of November 11, 2013; and
 
WHEREAS, Assignor desires to assign all of its rights under the RRA associated with the Subject Common Units (as defined in the Contribution Agreement) (the “Assigned Rights”) to Assignee.
 
NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
 
1.           Assignor hereby conveys, assigns, transfers and delivers to Assignee, and Assignee hereby acquires and accepts from Assignor, all the Assigned Rights.
 
2.           In consideration of the assignment of the Assigned Rights, Assignee hereby assumes and agrees to perform and fully discharge all of the liabilities of Assignor with respect to the RRA.
 
3.           Assignor and Assignee agree from time to time, after the date hereof, to execute and deliver or cause to be executed and delivered such instruments and further assurances as may be necessary or desirable to give effect to the provisions of this Agreement.
 
4.           Assignee shall promptly execute a counterpart to the RRA and deliver such counterpart to the other parties of the RRA, along with a copy of this Agreement.
 
5.           This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to the choice of law principles thereof.
 
 
 
 
 
6.           This Agreement may be executed in two counterparts, each of which shall be deemed an original, but all of which shall be considered one and the same agreement.
 
[Signature Page Follows]
 
 
 
 
 
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the parties as of the date first written above.

 
  NORTHERN TIER HOLDINGS LLC  
     
     
  By: /s/ Peter T. Gelfman  
  Name: Peter T. Gelfman  
  Title: Vice President, General Counsel & Secretary  
 
 
 
NT INTERHOLDCO LLC
  
     
     
  By: /s/ Peter T. Gelfman  
  Name: Peter T. Gelfman  
  Title: Vice President & Secretary