Exhibit 10.11
EXECUTION COPY
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XXXXX COMPLEX GROUND LEASE
AND BLANKET EASEMENT AGREEMENT
dated as of August 19, 1999
between
XXXXX REFINING & MARKETING, INC.
and
PORT XXXXXX XXXXX COMPANY L.P.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS........................................................1
SECTION 1.1 Definitions...........................................1
SECTION 1.2 Other Definitional Provisions.........................1
ARTICLE II
LEASE AND GRANT OF EASEMENTS.......................................1
SECTION 2.1 Lease.................................................1
SECTION 2.2 Grant of Easements....................................2
SECTION 2.3 Easements Appurtenant.................................3
SECTION 2.4 No Interference ......................................3
ARTICLE III
POSSESSION AND QUIET ENJOYMENT.....................................3
ARTICLE IV
TITLE..............................................................3
ARTICLE V
FIXTURES...........................................................4
ARTICLE VI
AUXILIARY FACILITIES...............................................4
ARTICLE VII
UNDERTAKINGS OF LESSOR; FURTHER ASSURANCES.........................5
ARTICLE VIII
RESERVATIONS AND RESTRICTIONS......................................6
SECTION 8.1 Reservations..........................................6
ARTICLE IX
MAINTENANCE; INSPECTION; COMPLIANCE WITH LAWS......................6
SECTION 9.1 Maintenance...........................................6
SECTION 9.2 Inspection............................................6
SECTION 9.3 Compliance with Laws..................................6
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ARTICLE X
LIENS..............................................................7
SECTION 10.1 Lessee Liens.........................................7
SECTION 10.2 Lessor Liens ........................................8
ARTICLE XI
TAXES AND CHARGES..................................................8
SECTION 11.1 Taxes................................................8
SECTION 11.2 Apportionment .......................................8
ARTICLE XII
INSURANCE..........................................................9
SECTION 12.1 Lessee Insurance.....................................9
SECTION 12.2 Lessor Insurance ....................................9
ARTICLE XIII
RENT...............................................................9
SECTION 13.1 Initial Term.........................................9
SECTION 13.2 Renewal Term ........................................9
ARTICLE XIV
NONTERMINATION....................................................10
ARTICLE XV
CONDEMNATION......................................................11
ARTICLE XVI
BINDING EFFECT; SUCCESSORS AND ASSIGNS............................11
ARTICLE XVII
LESSEE'S OPTION TO REMOVE THE FACILITY............................11
ARTICLE XVIII
POSSESSION UPON TERMINATION.......................................12
ARTICLE XIX
INDEMNITY.........................................................12
SECTION 19.1 Lessee Indemnity....................................12
SECTION 19.2 Lessor Indemnity ...................................13
ARTICLE XX
TERM..............................................................13
SECTION 20.1 Xxxxx Complex Ground Lease Term.....................13
SECTION 20.2 Renewal Term .......................................14
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ARTICLE XXI
MINERAL RIGHTS....................................................14
ARTICLE XXII
MISCELLANEOUS.....................................................14
SECTION 22.1 Assignment as Security for Lessee's Obligations....14
SECTION 22.2 Memorandum of Lease................................15
SECTION 22.3 Relationship of the Parties........................15
SECTION 22.4 Time is of the Essence.............................15
SECTION 22.5 Notices ...........................................15
SECTION 22.6 Severability ......................................16
SECTION 22.7 Amendment .........................................16
SECTION 22.8 Headings, etc. ....................................16
SECTION 22.9 Counterparts ......................................17
SECTION 22.10 GOVERNING LAW......................................17
SECTION 22.11 WAIVER OF JURY TRIAL...............................17
ARTICLE XXIII
NO MERGER.........................................................17
SECTION 23.1 No Merger...........................................17
APPENDIX A -- DEFINITIONS
EXHIBITS
A Xxxxx Site Description
B Blanket Easement Description
C Dock Easement Description
D Air Products Utilities
E Form of Assignment and Consent Agreement
F Auxiliary Facilities
G Form of Memorandum of Lease
SCHEDULES
I Xxxxx Complex Site Permitted Liens
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GROUND LEASE AND BLANKET EASEMENT AGREEMENT (the "Xxxxx Complex Ground
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Lease"), dated as of August 19, 1999, between Xxxxx Refining & Marketing, Inc.,
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a Delaware corporation ("Lessor") and Port Xxxxxx Xxxxx Company L.P., a Delaware
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Limited Partnership ("Lessee").
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WHEREAS, the Lessor is the owner of the Xxxxx Complex Site;
WHEREAS, Lessee wishes to lease the Xxxxx Complex Site from Lessor in order
to construct and operate the Xxxxx Complex at the Xxxxx Complex Site; and
WHEREAS, Lessor wishes to lease the Xxxxx Complex Site to Lessee;
NOW THEREFORE, for and in consideration of the mutual covenants, premises
and agreements set forth herein, and good and valuable consideration, the
receipt, sufficiency and adequacy of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Except as otherwise defined herein, the
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capitalized terms used herein shall have the respective meanings assigned
thereto in Appendix A.
SECTION 1.2 Other Definitional Provisions.
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(a) The words "hereof", "herein", "hereto" and "hereunder" and words of
similar import when used in this Xxxxx Complex Ground Lease shall refer to this
Xxxxx Complex Ground Lease as a whole and not to any particular provision of
this Xxxxx Complex Ground Lease, and Article, Section and Schedule references
are to this Xxxxx Complex Ground Lease unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
ARTICLE II
LEASE AND GRANT OF EASEMENTS
SECTION 2.1 Lease. The Lessor hereby demises, leases and delivers to the
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Lessee and Lessee hereby leases and accepts from Lessor the following described
properties for a term of years equal to the Xxxxx Complex Ground Lease Term,
subject to all Permitted Liens now or hereafter in existence, (such estates
being referred to herein as the "Xxxxx Complex Leasehold"):
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(a) the property (the "Xxxxx Complex Site") described in
Exhibit A; provided, however, that as to the portions of Avenue H and
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00xx Xxxxxx included in the description of the Xxxxx Complex Site,
Lessee's use shall be non-exclusive and in common with Lessor and other
occupants of the Adjacent Refinery Property; and
(b) all equipment, buildings, structures, fixtures and
improvements located on the Xxxxx Complex Site.
SECTION 2.2 Grant of Easements. Lessor does hereby grant and
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convey to Lessee, for the Xxxxx Complex Ground Lease Term, the following
easements (which, together with all other easements granted or to be granted by
or pursuant to this Xxxxx Complex Ground Lease are referred to as "Easements")
appurtenant to the Xxxxx Complex Leasehold:
(a) a nonexclusive easement on, over and under the Adjacent
Refinery Property, as more particularly described in Exhibit B, for the
purpose of ingress and egress, for the construction and maintenance of
interconnection pipes, wiring, other pipelines and communication and
utility lines and for any other purpose as may be necessary or
desirable in connection with the construction, ownership and operation
of the Xxxxx Complex or the operation of the Heavy Oil Processing
Facility or any of the Auxiliary Facilities, including, without
limitation, the provision by Lessee to Air Products of any of the
utilities described on Exhibit D hereto pursuant to Section 17.4 of the
Hydrogen Supply Agreement;
(b) a nonexclusive easement on that portion of the dock
described in Exhibit C for the purpose of unloading cargoes of crude
oil and other feedstocks and loading products of the Xxxxx Complex and
for the construction and maintenance of pipes, pumps, valves, gauges
and other equipment in connection with such loading and unloading; and
(c) a nonexclusive easement on, over and under all pipelines,
oil handling facilities and terminaling facilities (including, in each
case, any and all easements relating thereto) owned or otherwise
controlled by Lessor (i) for the purpose of transporting oil (A) from
the facilities of Sun Pipe Line Company in Nederland, Texas to and
through the facility commonly known as "Xxxxx Terminal" and (B) from
Xxxxx Terminal to the Adjacent Refinery Property, (ii) for the purpose
of transporting crude oil and the access to and maintenance of oil
pipelines, interconnection pipes, tanks, wiring, other pipelines and
communication and utility lines and (iii) for any other purpose as may
be necessary or desirable in connection with the transportation of
crude oil from the docking facilities of Sun Pipe Line Company in
Nederland, Texas to the Refinery. Lessor shall, at its sole cost and
expense and promptly upon notice from Lessee, take all such actions as
Lessee may reasonably request to further specify, document or reflect
in the public records the foregoing easement described in this clause
(c) or to obtain title insurance with respect to such easement.
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SECTION 2.3 Easements Appurtenant. The Easements shall be deemed to be
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appurtenant to the Xxxxx Complex Leasehold and shall be for the benefit of the
Lessee and its permitted successors and assigns. Lessor agrees that it will not
make any use or permit any use of the land described in Exhibit B or Exhibit C
that would interfere with the use and enjoyment of the Easements or the
operation of the Xxxxx Complex by the Lessee or its successors, assigns or
subtenants at any time during the Xxxxx Complex Ground Lease Term, except to the
extent that such use would not impair (i) the ability of the Lessee or its
successors, assigns or subtenants to operate the Xxxxx Complex in accordance
with the Base Case Financial Model or (ii) any of the security interests granted
or to be granted by the Xxxxx Company to the Financing Parties pursuant to the
Financing Documents.
SECTION 2.4 No Interference. With respect to any nonexclusive easement
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granted pursuant to this Xxxxx Complex Ground Lease, the Lessor shall not grant
or convey any easement or other interest (other than a Permitted Lien) that, if
used or enjoyed in accordance with its terms, would interfere with the use and
enjoyment of the Xxxxx Complex, Xxxxx Complex Leasehold and Easements or the
operation of the Xxxxx Complex by the Lessee or its permitted successors,
assigns or subtenants at any time during the Xxxxx Complex Ground Lease Term,
except to the extent that such easement or interest would not impair (i) the
ability of the Lessee or its successors, assigns or subtenants to operate the
Xxxxx Complex in accordance with the Base Case Financial Model or (ii) any of
the security interests granted or to be granted by the Xxxxx Company to the
Financing Parties pursuant to the Financing Documents.
ARTICLE III
POSSESSION AND QUIET ENJOYMENT
The Lessor covenants with the Lessee that the Lessee will enjoy quiet
possession of the Xxxxx Complex Leasehold and the right to utilize the
Easements, free from claims of persons in possession and third parties claiming
rights thereto.
ARTICLE IV
TITLE
The Lessor warrants and represents that it has (a) good and indefeasible
title to the Xxxxx Complex Site and to all property covered by any Easement
(other than the Easement granted pursuant to clause (c) of Section 2.2, with
respect to which it has a valid and enforceable easement interest with the right
to grant such Easement), in fee simple absolute and (b) the right to convey the
Easements, in each case free and clear of all liens and encumbrances, except for
Permitted Liens. The Lessor further warrants and represents that Permitted Liens
in existence on the date hereof do not and will not adversely affect the use of
the Xxxxx Complex Site, the Easements and the Auxiliary Facilities as
contemplated by the other Project Documents.
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ARTICLE V
FIXTURES
As a material part of this Xxxxx Complex Ground Lease, the Lessor and the
Lessee agree and intend that each item representing part of the Xxxxx Complex
(a) is attached, affixed and annexed to the Xxxxx Complex Site or the Easements,
as the case may be, (b) shall remain attached, affixed and annexed to the Xxxxx
Complex Site or the Easements, as the case may be, (c) shall be considered with
respect to the interests of the parties hereto as the real property of the
Lessee for the Xxxxx Complex Ground Lease Term (subject to Lessor's reversionary
interest therein), (d) shall be considered to become fixtures to and a part of
the Xxxxx Complex Site or the Easements, as the case may be, immediately upon
being installed or constructed on, or otherwise affixed or annexed to, the Xxxxx
Complex Site, (e) is adaptable to the uses and purposes for which the Xxxxx
Complex Site is being leased by Lessor to Lessee, and (f) cannot be removed from
the Xxxxx Complex Site without doing substantial injury and/or material damage
to the Xxxxx Complex Site.
ARTICLE VI
AUXILIARY FACILITIES
For purposes hereof, "Auxiliary Facilities" shall mean: the nonexclusive
use of any equipment or facilities owned by the Lessor and located on the
Easements and necessary to the operation of the Xxxxx Complex, including,
without limitation, the facilities necessary for Lessee to provide Air Products
with any of the utilities described on Exhibit D hereto pursuant to Section 17.4
of the Hydrogen Supply Agreement. The Auxiliary Facilities include, without
limitation, the equipment and facilities described on Exhibit F.
The Lessor hereby grants to the Lessee the license to use the Auxiliary
Facilities during the Xxxxx Complex Ground Lease Term. Such right shall be a
nonexclusive license in real property, irrevocable for the Xxxxx Complex Ground
Lease Term, and such rights to use the Auxiliary Facilities are herein called
the "Auxiliary Rights". The Lessor may not grant a license to any other Person
to use any of the Auxiliary Facilities during the Ground Lease Term, except to
the extent that the granting of such license and the use of such Auxiliary
Facilities by such Person would not impair (i) the ability of the Lessee or its
successors, assigns or subtenants to operate the Xxxxx Complex in accordance
with the Base Case Financial Model, (ii) the ability of Lessee to provide Air
Products with any of the utilities described on Exhibit D hereto pursuant to
Section 17.4 of the Hydrogen Supply Agreement or (iii) any of the security
interests granted or to be granted by the Lessee to the Financing Parties
pursuant to the Financing Documents.
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ARTICLE VII
UNDERTAKINGS OF LESSOR; FURTHER ASSURANCES
The Lessor covenants, represents and warrants to the Lessee that the Xxxxx
Complex Leasehold, the Easements and the Auxiliary Rights are sufficient and
will, at all times during the Xxxxx Complex Ground Lease Term, be sufficient or,
if the same shall cease to be so sufficient, the Lessor will at its expense take
such action, including the conveyance of easements and the grant of additional
Auxiliary Rights, as is reasonable or necessary, in order to provide the Lessee
with reasonable means of constructing, connecting, operating, maintaining,
replacing, renewing and repairing the Xxxxx Complex including, but not limited
to (a) reasonable means of transporting materials to be processed to the Xxxxx
Complex and shipping processed material from the Xxxxx Complex, (b) reasonable
access subject to regulatory restrictions to communications networks and sources
of electric power, natural gas and other utilities for operation of the Xxxxx
Complex, (c) reasonable access subject to regulatory restrictions to sources of
potable water, (d) reasonable access subject to regulatory restrictions to areas
for or means of disposing of waste materials generated by the operation of the
Xxxxx Complex, (e) reasonable access on the Xxxxx Complex Site to a supply of
hydrogen, by pipeline or other commercially reasonable alternative, sufficient
for the requirements of the Xxxxx Complex, and (f) existing firewater systems,
as they may be modified, necessary to maintain, protect and preserve the Xxxxx
Complex Site. At all times during the Xxxxx Complex Ground Lease Term the
Lessor, at its expense, shall maintain the Easements and the Auxiliary
Facilities in good condition and repair and in accordance with Applicable Laws
so that they will be available for the operation of the Xxxxx Complex,
including, without limitation, the maintenance of roads, equipment, pumps, and
pipelines located on Easements or constituting part of an Auxiliary Facility.
The agreement and obligation of Lessor to provide electric utilities and
electric service, natural gas and gas service, potable water and water service
and sanitary sewage service to the Xxxxx Complex pursuant to the Services and
Supply Agreement is incident to, dependent upon and inseparable from the
landlord/tenant relationship established by this Xxxxx Complex Ground Lease, and
such obligation shall continue only for the Xxxxx Complex Ground Lease Term and
the existence of such landlord/tenant relationship. All charges for potable
water and sanitary sewer services to be provided by Lessor to Lessee pursuant to
the Services and Supply Agreement are included in the rent payable to Lessor
hereunder. The provisions of the Services and Supply Agreement are intended only
to provide a mechanism for Lessor to recover from Lessee the cost of providing
electricity and electric service, and natural gas and gas service, to the Xxxxx
Complex, and it is not intended that Lessor shall make a profit by providing
such utilities. Lessee acknowledges, understands and agrees that none of such
utilities may be sold or resold by Lessee, and none of such utilities may be
used by any other party or for any other purpose other than in connection with
its tenancy hereunder.
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ARTICLE VIII
RESERVATIONS AND RESTRICTIONS
SECTION 8.1 Reservations. The grant and conveyance of the
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Easements and the Auxiliary Rights by the Lessor to the Lessee are subject to
the following reservations and understandings:
(a) The Lessor reserves the right to relocate all or any
portion of the Xxxxx Complex or other property of the Lessee located on
the Adjacent Refinery Property provided that such relocation (i) does
not subject such property to any Liens, conditions or other
restrictions (other than Permitted Liens), (ii) is at the Lessor's
expense and (iii) does not deprive the Lessee of effective use of such
property or make the use of such property more expensive or burdensome
or adversely affect the operation of the Xxxxx Complex, except to the
extent that such relocation would not impair (x) the ability of the
Lessee or its successors, assigns or subtenants to operate the Xxxxx
Complex in accordance with the Base Case Financial Model or (y) any of
the security interests granted or to be granted by the Lessee to the
Financing Parties pursuant to the Financing Documents.
(b) Subject to Section 2.2 and clause (a) of this Section 8.1,
the Lessor reserves the right to use, permit the use of, or grant
easements or licenses to use, any part of the Adjacent Refinery
Property.
ARTICLE IX
MAINTENANCE; INSPECTION; COMPLIANCE WITH LAWS
SECTION 9.1 Maintenance. During the Xxxxx Complex Ground
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Lease Term, the Lessee shall take care of and maintain the Xxxxx Complex Site.
So long as the Services and Supply Agreement is in effect, such performance with
respect to maintenance of the Xxxxx Complex Site as rendered by Lessor
thereunder shall be deemed to fulfill Lessee's obligations under this Section.
SECTION 9.2 Inspection. During the Xxxxx Complex Ground Lease
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Term, the Lessor and its authorized representatives may, at their own expense,
at reasonable times and by appointment on reasonable notice, inspect the Xxxxx
Complex Site and the Xxxxx Complex and any other property located on the Xxxxx
Complex Site.
SECTION 9.3 Compliance with Laws. (a) During the Xxxxx Complex
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Ground Lease Term, the Lessee, at its sole cost and expense, shall conform to,
comply with and take any and all action necessary to avoid or eliminate any
violation of any Applicable Laws applicable to the Xxxxx Complex Site and the
Xxxxx Complex, or the use, ownership or occupancy thereof, unless and to the
extent that (x) the Lessee shall be prosecuting in good faith a test, challenge,
appeal or proceeding for review of such Applicable Laws by appropriate
proceedings that do not involve any substantial risk of (i) foreclosure, sale,
forfeiture or loss of, or imposition of any Lien
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prohibited by Article X on the Xxxxx Complex Site or any part thereof, (ii)
extending the ultimate imposition of such requirement beyond the termination of
the Xxxxx Complex Ground Lease Term or (iii) any material claim against the
Lessor, the Xxxxx Complex Site or any property of the Lessor or (y) such
violation relates to the presence of or any failure to remediate environmental
contamination existing on or under the Xxxxx Complex Site prior to the date
hereof. So long as the Services and Supply Agreement is in effect, such
performance with respect to compliance with laws applicable to the Xxxxx Complex
Site and the Xxxxx Complex as may be rendered thereunder by the Lessor shall be
deemed to fulfill Lessee's obligations under this Section.
(b) During the Xxxxx Complex Ground Lease Term, the Lessor, at its sole
cost and expense, shall conform to, comply with and take any and all action
necessary to avoid or eliminate any violation of any Applicable Laws applicable
to the Xxxxx Refinery Property (other than the Xxxxx Complex Site, except to the
extent that such violation relates to any environmental condition on or under
the Xxxxx Complex Site prior to the date hereof), or the use or occupancy
thereof, unless and to the extent that (x) the Lessor shall be prosecuting in
good faith a test, challenge, appeal or proceeding for review of such Applicable
Laws by appropriate proceedings that do not involve any substantial risk of (i)
foreclosure, sale, forfeiture or loss of, or imposition of any Lien prohibited
by Article X on the Xxxxx Refinery Property or any part thereof, (ii) extending
the ultimate imposition of such requirement beyond the termination of the Xxxxx
Complex Ground Lease Term or (iii) any material claim against the Lessee, the
Xxxxx Refinery Property or any property of the Lessee, or (y) such violation
could not reasonably be expected to have a material adverse effect on the Xxxxx
Complex Site or the right of the Lessee to use and enjoy the Easements.
ARTICLE X
LIENS
SECTION 10.1 Lessee Liens. (a) During the Xxxxx Complex Ground Lease Term,
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the Lessee shall not directly or indirectly create, assume or suffer to exist
any Lien by any Person claiming by, through or under the Lessee, on or with
respect to the Xxxxx Complex Site, except Permitted Liens and any other Liens
against any part of the Xxxxx Complex Site or the Easements (i) in favor of any
taxing authority by reason of the nonpayment by the Lessor of any Tax (other
than Taxes being diligently contested in good faith in appropriate proceedings),
(ii) resulting from any act of the Lessor, or failure by the Lessor to take any
action required hereunder, or (iii) arising in connection with claims against
the Lessor.
(b) If any Lien, other than a Lien excepted under clause (a) of this
Section 10.1, on any property of the Lessor arising in connection with the
Lessee's use or occupation of the Xxxxx Complex Site or the Easements or work of
any character performed by or at the direction of the Lessee, shall arise at any
time during the Xxxxx Complex Ground Lease Term, the Lessee shall promptly
discharge it at its own cost and expense and shall indemnify and hold harmless
the Lessor from and against any loss, damage, costs or expense (including legal
fees and expenses) as a result of the existence or enforcement of such Lien.
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SECTION 10.2 Lessor Liens. During the Xxxxx Complex Ground Lease Term, the
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Lessor shall not directly or indirectly create, assume or suffer to exist any
Lien by any Person claiming by, through or under the Lessor, on or with respect
to the Xxxxx Refinery Property, except Permitted Liens. If any Lien, other than
a Permitted Lien, on any property of the Lessee arising in connection with the
Lessor's use, ownership or occupation of the Xxxxx Refinery Property or work of
any character performed by or at the direction of the Lessor, shall arise at any
time during the Xxxxx Complex Ground Lease Term, the Lessor shall promptly
discharge it at its own cost and expense and shall indemnify and hold harmless
the Lessee from and against any loss, damage, costs or expense (including legal
fees and expenses) as a result of the existence or enforcement of such Lien.
ARTICLE XI
TAXES AND CHARGES
SECTION 11.1 Taxes. (a) During the Xxxxx Complex Ground Lease Term, the
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Lessee shall pay or cause to be paid, before delinquency, any Tax assessed,
levied, imposed upon, or to become due and payable out of or in respect of the
use, ownership, possession, operation, control, maintenance or insurance of the
Xxxxx Complex Site.
(b) The Lessee shall have the right to contest in good faith, at the
Lessee's sole cost and expense, the amount or validity, in whole or in part, of
any Tax by appropriate proceedings, so long as such contest and proceedings
shall not involve any material risk of sale, forfeiture or loss of the Xxxxx
Complex Site, or any part thereof or the imposition of any Lien prohibited by
Article X. Notwithstanding anything herein to the contrary, during the Xxxxx
Complex Ground Lease Term, the Lessor shall not contest or object to any Taxes
due and payable out of or in respect of the use, ownership, possession,
operation, control, maintenance or insurance of the Xxxxx Complex Site without
the prior written consent of Lessee and the Financing Parties.
(c) During the Xxxxx Complex Ground Lease Term, the Lessor shall pay or
cause to be paid, before delinquency, any tax assessed, levied, imposed upon, or
to become due and payable out of or in respect of the use, ownership,
possession, operation, control, maintenance or insurance of the Xxxxx Refinery
Property (other than the Xxxxx Complex Site), other than Taxes payable by Lessee
pursuant to clause (a) above.
(d) The Lessor shall have the right to contest in good faith, at the
Lessor's sole cost and expense, the amount or validity, in whole or in part, of
any Tax, due and payable out of or in respect of the use, ownership, possession,
operation, control, maintenance or insurance of the Xxxxx Refinery Property by
appropriate proceedings, so long as such contest and proceedings shall not
involve any substantial risk of sale, forfeiture or loss of the Xxxxx Refinery
Property, or any part thereof or the imposition of any Lien prohibited by
Article X.
SECTION 11.2 Apportionment. If during the Xxxxx Complex Ground Lease Term
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any one of the Xxxxx Complex Site shall not be separately assessed but shall be
assessed as
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part of a larger tract of land, then Lessor and Lessee shall fairly and
equitably apportion any Tax resulting from such assessment based on (a) with
respect to any tax assessed on equipment, the relative value of the equipment
being leased hereunder and any other equipment included in such assessment, and
(b) with respect to any land, the relative acreage of the land comprising the
Ancillary Equipment Site and any other land being taxed.
ARTICLE XII
INSURANCE
SECTION 12.1 Lessee Insurance. During the Xxxxx Complex Ground Lease Term,
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the Lessee shall, without cost to the Lessor, maintain or cause to be maintained
in effect with insurers of good national or international repute, comprehensive
general liability insurance policies with respect to the Xxxxx Complex Site, the
Xxxxx Complex, and any other property located on the Xxxxx Complex Site,
insuring against death and bodily injury, loss or damage to property of others
and such other risks as are customarily insured against in the petroleum
refining industry, all in such amounts as are reasonable under the
circumstances. Any insurance policies maintained in accordance with this Section
12.1 shall name (a) the Lessor and the Collateral Trustee as additional insured
parties and (b) the Collateral Trustee as sole loss payee thereunder. Copies or
certificates of such policies shall be delivered to the Lessor and the
Collateral Trustee by the Lessee.
SECTION 12.2 Lessor Insurance. During the Xxxxx Complex Ground Lease Term,
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the Lessor shall, without cost to the Lessee, maintain or cause to be maintained
in effect with insurers of good national or international repute, comprehensive
general liability insurance policies with respect to the Xxxxx Refinery
Property, other than the Xxxxx Complex Site, insuring against death and bodily
injury, loss or damage to property of others and such other risks as are
customarily insured against in the petroleum refining industry, all in such
amounts as are reasonable under the circumstances. Any insurance policies
maintained in accordance with this Section 12.2 shall name the Lessee and the
Collateral Trustee as additional insured parties thereunder. Copies or
certificates of such policies shall be delivered to the Lessee and the
Collateral Trustee by the Lessor.
ARTICLE XIII
RENT
SECTION 13.1 Initial Term. For the entire Xxxxx Complex Initial Term the
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rent payable by the Lessee for the Xxxxx Complex Leasehold, the Easements and
the Auxiliary Rights shall be $25,000, payable in advance in a lump sum upon
Financial Close.
SECTION 13.2 Renewal Term. If Lessee has provided notice of exercise of its
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option to extend the term hereof for a Xxxxx Complex Renewal Term as provided in
Section 20.2 hereof, Lessor and Lessee shall consult for the purpose of
determining the Fair Market Rental Value of the Xxxxx Complex Site (without
attributing any value to the Xxxxx Complex) as of the
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end of the Xxxxx Complex Initial Term or the applicable Xxxxx Complex Renewal
Term, as the case may be, and any values agreed upon in writing shall constitute
such Fair Market Rental Value of the Xxxxx Complex for purposes of this Section
13.2. If Lessor and Lessee fail to agree upon such values on or prior to the
date six months prior to the expiration of the Xxxxx Complex Initial Term or a
Xxxxx Complex Renewal Term, as the case may be, either party may request, by
written notice to the other, that such values be determined by the Appraisal
Procedure. During any Xxxxx Complex Lease Renewal Term, rent determined in
accordance herewith shall be paid quarterly in arrears.
ARTICLE XIV
NONTERMINATION
Except as provided in Article XV, this Agreement shall not terminate, nor
shall any of the Easements or Auxiliary Rights or the Xxxxx Complex Leasehold be
extinguished, lost, conveyed or otherwise impaired, or be merged into or with
any other interest or estate in the Xxxxx Complex Site or any other property
interest, in whole or in part, by any cause or for any reason whatsoever,
including, without limitation, the following: (a) any damage to or destruction
of all or any part of the Xxxxx Complex, or the taking of the Xxxxx Complex or
any portion thereof by condemnation, requisition, eminent domain or otherwise,
(b) any prohibition, limitation or restriction of any party's use of all or any
part of the Xxxxx Complex Site, the Xxxxx Complex, the Easements, the Auxiliary
Rights or the interference of such use by any Person, or any eviction by
paramount title or otherwise, (c) the coincident ownership by any Person
(including the Lessee) of any estate or interest in the Easements or the
Auxiliary Facilities and other rights granted and conveyed pursuant to this
Agreement with any estate or interest in the Xxxxx Complex Site, the Xxxxx
Complex or the Auxiliary Facilities, (d) any inadequacy, incorrectness or
failure of the description of the Xxxxx Complex Site, the Easements, the
Auxiliary Rights or any other property or rights intended to be granted or
conveyed by this Agreement, (e) any default in the performance or the observance
by any party of any of their respective covenants and agreements to be performed
and observed by the respective party under any of the Project Documents, (f) the
insolvency, bankruptcy, reorganization or similar proceedings by or against any
party hereto (and in the event of a bankruptcy proceeding involving Lessor, it
is expressly intended that Lessee shall have the rights and options provided in
(S) 365(h) of Title 11 of the United States Code), (g) any nonuse or excessive
use of any Easement or any Auxiliary Right, (h) any execution of the security
interest granted by the Lessee to the Collateral Trustee or subsequent transfer
or reassignment of the rights hereunder, or (i) any other reason whatsoever,
whether similar or dissimilar to any of the foregoing. It is intended and agreed
by the parties hereto that the Xxxxx Complex Leasehold, the Easements, the
Auxiliary Rights and other rights granted and conveyed hereunder shall be
separate and independent covenants and agreements of the parties hereto and
that, except as provided in Article XV, no Xxxxx Complex Leasehold, Easement,
Auxiliary Right or other right granted or conveyed pursuant to this Agreement
may be terminated without the express consent of the Collateral Trustee.
11
Except as expressly provided in subparagraph (e) above, the provisions of
this Article XIV shall not limit or restrict the remedies available to Lessor or
Lessee in the event of a default by Lessee or Lessor under this Xxxxx Complex
Ground Lease, and all such remedies are hereby reserved to Lessor or Lessee, as
the case may be, including (without limitation) an action for damages and/or an
action for specific performance.
ARTICLE XV
CONDEMNATION
If all or such a substantial portion of the Xxxxx Complex Site is condemned
or transferred in lieu of condemnation and the remainder is not sufficient to
permit operation of the Xxxxx Complex on a commercial basis, the Xxxxx Complex
Ground Lease Term shall terminate at the time title vests in the condemning
authority, and the net proceeds of the condemnation shall be applied first to
pay off any amounts outstanding under the Financing Documents and the remainder,
if any, shall be divided between the Lessee and the Lessor in proportion to the
fair market sales value of their respective interests in the property condemned.
If an insubstantial portion of the Xxxxx Complex Site is condemned at any time,
the Xxxxx Complex Ground Lease Term shall not terminate and net proceeds of the
condemnation shall be used first to restore the Xxxxx Complex Site, with the
balance divided between the Lessor and the Lessee in proportion to the fair
market sales value of their interests in the property condemned. For the
purposes of this Article XV, the net proceeds of a condemnation shall mean the
total condemnation proceeds less the costs and expenses incurred in connection
with the condemnation (including legal fees).
ARTICLE XVI
BINDING EFFECT; SUCCESSORS AND ASSIGNS
The terms and provisions of this Xxxxx Complex Ground Lease, the
appurtenant easements and license in real property provided herein, and the
respective rights and obligations hereunder of the Lessee and the Lessor shall
be binding upon, and inure to the benefit of, their respective permitted
successors, assigns and sublessees, including without limitation the Collateral
Trustee, the Financing Parties and any subsequent transferee or assignee
thereof. Notwithstanding anything to the contrary herein, no assignment of the
rights of either party to this Xxxxx Complex Ground Lease to any Person shall be
effective unless or until the rights of such party under the other Xxxxx R&M
Agreements are assigned to such Person
ARTICLE XVII
LESSEE'S OPTION TO REMOVE THE FACILITY
It is understood by the parties hereto that the Lessee is constructing the
Xxxxx Complex on the Xxxxx Complex Site and the Xxxxx Complex, and all other
improvements and structures constructed by Lessee on the Xxxxx Complex Site
during the Xxxxx Complex Ground
12
Lease Term, are the property of, and are owned by, the Lessee. At the end of the
Xxxxx Complex Ground Lease Term. Lessee shall have the right and option to
disannex, dismantle and remove the Xxxxx Complex from the Xxxxx Complex Site (in
which event such items shall again become the personal property of Lessee and
shall no longer be fixtures to real property), provided (i) Lessee is not then
--------
in default under the terms and provisions of this Xxxxx Complex Ground Lease,
and (ii) Lessee provides Lessor written notice of its intention to remove the
Xxxxx Complex from the Xxxxx Complex Site at least sixty (60) days prior to the
scheduled expiration date of the Xxxxx Complex Ground Lease Term (or any Xxxxx
Complex Renewal Term, if applicable), (iii) Lessee commences such removal within
sixty (60) days following the end of the Xxxxx Complex Ground Lease Term, and
thereafter diligently and continuously pursues such removal to completion within
a reasonable period of time, and (iv) Lessee repairs any and all damage to the
Xxxxx Complex Site caused by such removal and restores the Xxxxx Complex Site as
nearly as practicable to the condition in which such site existed prior to
construction of the Xxxxx Complex. All terms and provisions of this Xxxxx
Complex Ground Lease (except for the obligation of Lessee to pay rent) shall
continue in full force and effect for the period of Lessee's occupancy of the
Xxxxx Complex Site for such removal. In the event Lessee elects not to or fails
to remove the Xxxxx Complex as hereinabove provided, then the Xxxxx Complex
shall become and be the property of Lessor, without compensation to Lessee and,
upon request of Lessor, Lessee promptly shall execute and deliver to Lessor a
recordable special warranty deed (deed to improvements on leasehold) conveying
the improvements installed or constructed on the Xxxxx Complex Site by Lessee to
Lessor.
ARTICLE XVIII
POSSESSION UPON TERMINATION
The Lessee covenants and agrees that at the end of the Xxxxx Complex Ground
Lease Term it will peaceably and quietly yield up and surrender possession of
the Xxxxx Complex Site and any property thereon to the Lessor (subject to the
provisions of Article XVII hereof.
ARTICLE XIX
INDEMNITY
SECTION 19.1 Lessee Indemnity. During the Xxxxx Complex Ground Lease Term,
----------------
the Lessee assumes liability for, and agrees to protect, defend, indemnify, save
and hold harmless and keep whole the Lessor from and against any and all
liabilities (including without limitation liabilities arising out of the
doctrine of strict liability), obligations, losses, claims, actions, suits,
causes of action, judgments, damages, penalties, costs, disbursements and
expenses (including without limitation counsel fees), whether founded or
unfounded, of whatsoever kind or nature, imposed on, incurred by or asserted
against the Lessor or any other Person, relating to or arising from (i) the
conduct, operation or management of, or any work, act or omission whatsoever
done in or on the Xxxxx Complex, the Xxxxx Complex Site or the Easements, (ii)
any breach or default on the part of the Lessee in the performance of any
covenant or obligation on
13
the part of the Lessee to be performed pursuant to the terms of this Xxxxx
Complex Ground Lease, (iii) any tortious act or negligence of the Lessee or any
of the Lessee's agents, contractors, servants, employees, invitees, licensees or
guests with respect to the Xxxxx Complex, the Xxxxx Complex Site or the
Easements or any other property of the Lessee on the Xxxxx Complex Site, or (iv)
any accident, injury or damage whatsoever caused to any person or property in or
on the Xxxxx Complex, the Xxxxx Complex Site or the Easements or any other
property of the Lessee on the Xxxxx Complex Site; provided, however, that the
Lessee shall not be required to indemnify the Lessor for any liability arising
out of acts or events occurring after the end of the Xxxxx Complex Ground Lease
Term, and provided further, however, that the Lessee shall not be required to
indemnify the Lessor for any liability arising out of any work, act or omission
whatsoever done by the Lessor at any time (whether pursuant to the Services and
Supply Agreement or otherwise).
SECTION 19.2 Lessor Indemnity. During the Xxxxx Complex Ground Lease Term,
----------------
the Lessor assumes liability for, and agrees to protect, defend, indemnify, save
and hold harmless and keep whole the Lessee from and against any and all
liabilities (including without limitation liabilities arising out of the
doctrine of strict liability), obligations, losses, claims, actions, suits,
causes of action, judgments, damages, penalties, costs, disbursements and
expenses (including without limitation counsel fees), whether founded or
unfounded, of whatsoever kind or nature, imposed on, incurred by or asserted
against the Lessee or any other Person, relating to or arising from (i) the
conduct, operation or management of, or any work, act or omission whatsoever
done in or on the Xxxxx Refinery Property, other than in or on the Xxxxx Complex
Site, (ii) any breach or default on the part of the Lessor in the performance of
any covenant or obligation on the part of the Lessor to be performed pursuant to
the terms of this Xxxxx Complex Ground Lease, (iii) any tortious act or
negligence of the Lessor or any of the Lessor's agents, contractors, servants,
employees, invitees, licensees or guests with respect to the Xxxxx Refinery
Property, (iv) any accident, injury or damage whatsoever caused to any person or
property in or on the Xxxxx Refinery Property, other than the Xxxxx Complex Site
(subject to the following subclause (v)), or (v) any liability arising out of
any work, act or omission whatsoever done by Lessor at any time (whether
pursuant to the Services and Supply Agreement or otherwise); provided, however,
that the Lessor shall not be required to indemnify the Lessee for any liability
arising out of acts or events occurring after the end of the Xxxxx Complex
Ground Lease Term.
ARTICLE XX
TERM
SECTION 20.1 Xxxxx Complex Ground Lease Term. The term of this Xxxxx
-------------------------------
Complex Leasehold (the "Xxxxx Complex Ground Lease Term") shall commence on the
-------------------------------
date hereof and, unless this Xxxxx Complex Ground Lease is sooner terminated
pursuant to the provisions hereof, the Xxxxx Complex Ground Lease Term shall end
on the last day of the Xxxxx Complex Initial Term or, if this Xxxxx Complex
Ground Lease is renewed pursuant to Section 20.2 hereof, on the last day of the
last Xxxxx Complex Renewal Term. At the expiration of the Xxxxx Complex Ground
Lease Term all Easements and Auxiliary Rights granted and conveyed herein shall
wholly terminate and revert to the Lessor.
14
SECTION 20.2 Renewal Term. If this Xxxxx Complex Ground Lease shall
------------
not have been earlier terminated, Lessee shall be entitled, at its option upon
irrevocable written notice to Lessor given at least twelve months prior to the
end of the then-current Xxxxx Complex Ground Lease Term, at the end of the Xxxxx
Complex Initial Term and each Xxxxx Complex Renewal Term, to renew this Lease
for up to five (5) additional terms of five years each (each, an "Xxxxx Complex
Renewal Term"). All of the provisions of this Lease shall be applicable during
each Xxxxx Complex Renewal Term, except that rent shall be determined in
accordance with Section 13.2 hereof. If Lessee gives written notice to Lessor as
aforesaid exercising its option for a Xxxxx Complex Renewal Term, then Lessor
and Lessee shall immediately begin the determination of Fair Market Rental Value
for such Xxxxx Complex Renewal Term, as provided in Section 13.2. Rent during
each Xxxxx Complex Renewal Term shall be payable quarterly in arrears.
ARTICLE XXI
MINERAL RIGHTS
Lessor hereby reserves all of the oil, gas and other minerals in and under
the Xxxxx Complex Leasehold and that may be produced therefrom (including the
right to receive royalties under existing leases), waiving hereby, for the term
of the Xxxxx Complex Leasehold and any extensions thereof, all its rights to use
the surface of the land included in the Xxxxx Complex Leasehold for the purpose
of exploring for or producing the said oil, gas and other minerals.
ARTICLE XXII
MISCELLANEOUS
SECTION 22.1 Assignment as Security for Lessee's Obligations. To
-----------------------------------------------
secure the indebtedness evidenced by the Senior Debt, the Lessee will assign,
mortgage and convey pursuant to a deed of trust to the Collateral Trustee its
right, title and interest hereunder and in and to this Xxxxx Complex Ground
Lease and the Xxxxx Complex Leasehold, Easements and Auxiliary Rights pursuant
to the terms of the Financing Documents. The Lessor hereby consents to (i) such
assignment and mortgage and (ii) any further assignment or mortgage by (x) the
Collateral Trustee, any successors and assigns of the Collateral Trustee,
including, without limitation, any purchaser of the Xxxxx Complex Leasehold at a
trustee's sale, foreclosure sale, deed in lieu of foreclosure or other transfer
in connection with the Indenture or (y) any successor or assign of any purchaser
described in the preceding clause (x). Lessor agrees, in connection with any
such assignment under this Section 22.1, to enter into the consent and
assignment agreement substantially in the form of Exhibit F, provided that such
consent and assignment agreement in no way alters or amends the respective
rights and obligation and Lessee as set out in this Xxxxx Complex Ground Lease.
In the event of a termination of this Xxxxx Complex Ground Lease pursuant to
Section 365 of the Bankruptcy Reform Act of 1984, as amended, or any other
present or future law permitting the termination of this Xxxxx Complex Ground
Lease, Lessor
15
hereby agrees to enter into a new lease, on the same terms as this Xxxxx Complex
Ground Lease, with the Collateral Trustee or any other mortgagee of the Xxxxx
Complex Leasehold or any designee of any thereof, provided that the Collateral
Trustee, such other mortgagee or such designee requests such a new lease within
60 days after receipt of notice from Lessor that such termination has occurred.
SECTION 22.2 Memorandum of Lease. Concurrently with the execution
-------------------
and delivery of this Xxxxx Complex Ground Lease, Lessor and Lessee have executed
a Memorandum of this Xxxxx Complex Ground Lease in the form of Exhibit G hereto,
which promptly shall be recorded in the Official Public Records of Real Property
of Jefferson County, Texas, by Lessee at its expense. Upon expiration or
termination of this Lease, the parties shall execute and deliver, and Lessee
shall record at its expense, a memorandum of expiration or termination of this
Xxxxx Ground Lease. Such obligation shall survive the expiration or termination
of this Xxxxx Ground Lease and shall be specifically enforceable.
SECTION 22.3 Relationship of the Parties. The only relationship
---------------------------
between Lessor and Lessee established and evidenced by this Xxxxx Complex Ground
Lease is the relationship of landlord and tenant, and the only estates intended
to be conveyed to Lessee or otherwise evidenced hereby are the leasehold estate
of Lessee in and with respect to the Xxxxx Complex Site, the appurtenant
easement estates and right of use (license in real property) as herein expressly
provided; and Lessee=s fee ownership of the improvements on and to the leasehold
estate for the Xxxxx Complex Ground Lease Term (subject to Lessor=s reversionary
right with respect to such improvements). This Xxxxx Complex Ground Lease is not
intended to grant, transfer, assign, convey or evidence any other estate in or
to Lessee, including (without limitation) any fee simple estate, determinable
fee estate, nor fee estate for years in or to the Xxxxx Complex Site.
SECTION 22.4 Time is of the Essence. Time is of the essence of this
----------------------
Xxxxx Complex Ground Lease.
SECTION 22.5 Notices. Any notice, request, consent, waiver or other
-------
communication required or permitted hereunder shall be effective only if it is
in writing and personally delivered by hand or by overnight courier or sent by
certified or registered mail, postage prepaid, return receipt requested,
addressed as follows:
If to Lessor:
Xxxxx Refining & Marketing, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
16
If to Lessee:
Port Xxxxxx Xxxxx Company L.P.
Port Xxxxxx Refinery
0000 X. Xxxxxxx Xxxxx
Office Number 36
Port Xxxxxx, Texas 77640
Attention: X.X. Xxxx
(or if sent by U.S. Mail:
Port Xxxxxx Xxxxx Company L.P.
X.X. Xxx 000
Xxxx Xxxxxx, Xxxxx 00000-0000
Attention: X.X. Xxxx)
Any such notice, request, consent, waiver or other communication required
or permitted hereunder, whether to Lessor or Lessee, shall also be personally
delivered by hand or by overnight courier or sent by certified or registered
mail, postage prepaid, return receipt requested, to the Collateral Trustee on
behalf of the Financing Parties, addressed as follows:
Bankers Trust Company
Corporate Trust & Agency Services
Four Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxxx
SECTION 22.6 Severability. Any provision of this Xxxxx Complex
------------
Ground Lease that shall be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 22.7 Amendment. Neither this Xxxxx Complex Ground Lease nor
---------
any of the terms hereof may be terminated, amended, supplemented, waived or
modified orally, but only by an instrument in writing signed by the party
against which the enforcement of the termination, amendment, supplement, waiver
or modification shall be sought and, unless and until the Lessor shall have
received written notice from the Collateral Trustee that the Liens securing the
Senior Debt have been released, the Collateral Trustee.
SECTION 22.8 Headings, etc. Captions and headings in this Xxxxx
-------------
Complex Ground Lease are for reference only and do not constitute a part of the
substance of this Xxxxx Complex Ground Lease.
17
SECTION 22.9 Counterparts. This Xxxxx Complex Ground Lease may be
------------
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument. Delivery of an executed
signature page of this Xxxxx Complex Ground Lease by facsimile transmission
shall be effective as delivery of a manually executed counterpart hereof.
SECTION 22.10 GOVERNING LAW. THIS XXXXX COMPLEX GROUND LEASE HAS
-------------
BEEN DELIVERED IN, AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE.
SECTION 22.11 WAIVER OF JURY TRIAL. THE LESSOR AND LESSEE HEREBY
--------------------
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS XXXXX COMPLEX GROUND LEASE OR ANY OTHER PROJECT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
ARTICLE XXIII
NO MERGER
SECTION 23.1 No Merger. So long as the Senior Debt is outstanding, unless
---------
the Collateral Trustee shall otherwise expressly consent in writing, the fee
title to each of the Xxxxx Complex Site shall remain separate and distinct from
and shall not be merged into the leasehold estate demised to the Lessee hereby.
18
IN WITNESS WHEREOF, the Lessor and the Lessee have each caused
this Xxxxx Complex Ground Lease to be duly executed and delivered as of the day
and year first above written.
PORT XXXXXX XXXXX COMPANY L.P.
By: SABINE RIVER HOLDING CORP.,
General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
XXXXX REFINING & MARKETING, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Title: Executive Vice President and
Chief Financial Officer
APPENDIX A - DEFINITIONS TO THE:
Services and Supply Agreement
Product Purchase Agreement
Xxxxx Complex Ground Lease
Ancillary Equipment Site Lease
Transfer and Assignment Agreement
General Provisions
------------------
The following terms shall have the following meanings for all purposes of
the Services and Supply Agreement, the Product Purchase Agreement, Xxxxx Complex
Ground Lease, the Ancillary Equipment Site Lease and the Transfer and Assignment
Agreement, each referred to below, unless otherwise defined in such agreements
or the context thereof shall otherwise require, and such meanings shall be
equally applicable to both the singular and the plural forms of the terms herein
defined. In the case of any conflict between the provisions of this Appendix A
and the provisions of the main body of any of the above agreements, the
provisions of the main body of such agreement shall control the construction of
such agreement.
Unless the context otherwise requires, references to (i) agreements shall
include sections, schedules, exhibits and appendices thereto and shall be deemed
to mean and include such agreement (and sections, schedules, exhibits and
appendices) as the same may be amended, supplemented and otherwise modified from
time to time, (ii) parties to agreements or government agencies shall be deemed
to include the permitted successors and assigns of such parties and the
successors and assigns of such agencies and (iii) laws or regulations shall be
deemed to mean such laws or regulations as the same may be amended from time to
time and any superseding laws or regulations covering the same subject matter.
"Actual Xxxxx Capacity" means with respect to the Xxxxx, its capacity, from
---------------------
time to time, to process feedstreams.
"Actual Crude Capacity" means with respect to the Ancillary Equipment, its
---------------------
capacity, from time to time, to process crude oil.
"Actual Hydrocracker Capacity" means with respect to the Hydrocracker, its
----------------------------
capacity, from time to time, to process gas oil.
"Adjacent Refinery Property" means the land described on Exhibit B to the
--------------------------
Xxxxx Complex Ground Lease and also on Exhibit C to the Ancillary Equipment Site
Lease.
"Amine Treating Unit" means the amine treating unit to be constructed at
-------------------
the Refinery and designated ATU 7841.
"Ancillary Equipment" means, collectively, the Crude Unit and the other
-------------------
processing units described on Exhibit B to the Ancillary Equipment Site Lease.
"Ancillary Equipment Easement" has the meaning given such term in Section
----------------------------
2.2 of the Ancillary Equipment Site Lease.
20
"Ancillary Equipment Operating Fee" has the meaning given such term in
---------------------------------
Section 13.2(b) of the Ancillary Equipment Site Lease.
"Ancillary Equipment Site" has the meaning given such term in Section 2.1
------------------------
of the Ancillary Equipment Site Lease.
"Ancillary Equipment Site Initial Term" means the period commencing on the
-------------------------------------
August 19, 1999 and ending on August 19, 2029.
"Ancillary Equipment Site Lease" means the Ancillary Equipment Site Lease
------------------------------
and Easement Agreement, dated as of August 19, 1999, between Xxxxx R&M and the
Xxxxx Company.
"Ancillary Equipment Site Leasehold" has the meaning given such term in
----------------------------------
Section 2.1 of the Ancillary Equipment Site Lease.
"Ancillary Equipment Site Lease Term" has the meaning given such term in
-----------------------------------
Article XX of the Ancillary Equipment Site Lease.
"Ancillary Equipment Site Renewal Term" means each period following the end
-------------------------------------
of the Ancillary Equipment Initial Term with respect to which Lessee has the
option to renew the Ancillary Equipment Site Lease pursuant to Article XX of the
Ancillary Equipment Site Lease.
"Ancillary Equipment Upgrade Contract" means the Reimbursable Contract for
------------------------------------
Engineering, Procurement and Construction, dated as of March 24, 1998, between
Xxxxx R&M and the Contractor, as amended by Amendment No. One, dated as of
August 19, 1999, as further amended, supplemented or otherwise modified from
time to time.
"Annual Budget and Operating Plan" means, for any Operating Year, the
--------------------------------
budget and operating plan in effect pursuant to Section 6 of the Services and
Supply Agreement.
"Applicable Law" means, collectively, (i) all Permits and (ii) all laws,
--------------
treaties, ordinances, judgments, decrees, injunctions, writs, orders and
stipulations of any court, arbitrator or governmental agency or authority and
statutes, rules, regulations, orders and interpretations thereof of any federal,
state, county, municipal, regional, environmental or other governmental body,
instrumentality, agency, authority, court or other body applicable from time to
time to the Refinery, the operation or maintenance of the Refinery, or the
performance of any obligations under the Xxxxx R&M Agreements, any other Project
Document or any other agreement entered into in connection therewith.
"Appraisal Procedure" with respect to any renewal option of any lease,
-------------------
means a procedure whereby two independent Qualified Appraisers, one appointed by
the lessor and one by the lessee, shall agree upon the value, period, amount or
determination then the subject of an appraisal, as follows: If either the lessor
or the lessee shall determine that a value, period or amount of determination to
be determined under such lease or any related document cannot
21
timely be established by agreement, such party shall appoint its Qualified
Appraiser and give notice thereof to the other party, which shall appoint its
Qualified Appraiser within 10 days thereafter. If such other party does not
appoint its Qualified Appraiser within such ten day period, the determination of
the first Qualified Appraiser made within 20 days thereafter shall be conclusive
and binding on the lessor and the lessee. If within 20 days after appointment of
the second of the two Qualified Appraisers, such Qualified Appraisers are unable
to agree upon the value, period, amount or determination in question, they
jointly shall appoint a third Qualified Appraiser within 10 days thereafter, or,
if they do not do so, either the lessor or the lessee may request the American
Arbitration Association office in Houston, Texas (or if no such office exists at
such time, the American Arbitration Association office in New York, New York),
or any organization successor thereto, to appoint the third Qualified Appraiser
from a panel of arbitrators knowledgeable on the subject of refinery land and
asset valuations in the Texas Gulf Coast area. The decision of the third
Qualified Appraiser shall be given within 20 days after his appointment. If
three Qualified Appraisers shall be so appointed, the average of all three
determinations shall be conclusive and binding on the lessor and the lessee
unless the determination of one Qualified Appraiser is disparate from the middle
determination by more than twice the amount by which the third determination is
disparate from the middle determination, in which case the determination of the
most disparate Qualified Appraiser shall be excluded and the average of the
remaining two determinations shall be conclusive and binding on the lessor and
the lessee. The obligation to pay the fees and expenses of Qualified Appraisers
incurred in connection with any Appraisal Procedure shall be divided equally
between the lessor and the lessee.
"Auxiliary Facilities" has the meaning given such term in Article VI of the
--------------------
Xxxxx Complex Ground Lease.
"Auxiliary Rights" has the meaning given such term in Article VI of the
----------------
Xxxxx Complex Ground Lease.
"Available Xxxxx Company Maya" means, for any day, the sum of (a) the
----------------------------
Contract Quantity for such day, plus (b) the extent, if any, that the Available
Xxxxx Company Maya for the preceding day exceeds the Actual Crude Capacity for
such preceding day.
"Available Xxxxx Company VTBs" means, for any day, the sum of (a) the Xxxxx
----------------------------
Company VTBs produced by the Crude Unit on such day, plus (b) the extent, if any
that Available Xxxxx Company VTBs for the preceding day exceeds Actual Xxxxx
Capacity for such preceding day.
"Base Case Financial Model" shall mean the financial model described on
-------------------------
Exhibit A to the Services and Supply Agreement.
"BPD" has the meaning given such term in the Long-Term Oil Supply
---
Agreement.
"Business Day" means any day other than Saturday, Sunday or a legal holiday
------------
in the United States of America.
22
"Xxxxx Equipment" means all Xxxxx Refinery Property other than the
---------------
Ancillary Equipment.
"Xxxxx Hydrogen Supply Contract" means the Product Supply Agreement, dated
as of August 1, 1999, between Xxxxx R&M and Air Products, Inc.
"Xxxxx Xxxx" means Maya Crude Oil purchased by Xxxxx R&M.
"Xxxxx Processing Fee" means, for any monthly period, the total fees due
the Xxxxx Company from Xxxxx R&M for processing services provided pursuant to
Sections 3.5, 4.2 and 4.3.
"Xxxxx R&M" means Xxxxx Refining & Marketing, Inc., a Delaware corporation.
"Xxxxx R&M Agreements" means, collectively, (i) the Services and Supply
Agreement, (ii) the Product Purchase Agreement, (ii) the Xxxxx Complex Ground
Lease and (iv) the Ancillary Equipment Site Lease.
"Xxxxx Refinery Property" means all real and personal property owned by
Xxxxx R&M and located at the Refinery.
"Xxxxx" means the delayed xxxxx to be constructed at the Refinery and
designated DCU 843.
"Xxxxx Company" means Port Xxxxxx Xxxxx Company L.P., a Delaware limited
partnership.
"Xxxxx Company Crude Oil Volume" means, on any day, the volume, stated in
BPD, of Xxxxx Company-owned crude oil processed through the Crude Unit.
"Xxxxx Company Maya" means Maya Crude Oil purchased by the Xxxxx Company.
"Xxxxx Complex" means, collectively, the Xxxxx, the Hydrocracker, the
Sulfur Plant, the Sour Water Stripper, the Amine Treating Unit and the Xxxxx
Complex Offsites.
"Xxxxx Complex Design Capacity" means with respect to the Xxxxx Complex,
its nameplate capacity, stated in BPD, to process feedstocks.
"Xxxxx Complex Ground Lease" means the Xxxxx Complex Ground Lease and
Blanket Easement Agreement, dated as of August 19, 1999, between Xxxxx R&M and
the Xxxxx Company.
"Xxxxx Complex Ground Lease Term" has the meaning given such term in
Article XX of the Xxxxx Complex Ground Lease.
23
"Xxxxx Complex Initial Term" means the period commencing on August 19, 1999
and ending on August 19, 2029.
"Xxxxx Complex Leasehold" has the meaning given such term in Section 2.1 of
the Xxxxx Complex Ground Lease.
"Xxxxx Complex Offsites" means, collectively, (a) the control room, flare,
cooling tower, sulfur loading facilities and power station no. 6 that are being
constructed pursuant to the EPC Contract and (b) the xxxxx feed tank nos. 108
and 109 that are being modified pursuant to the EPC Contract.
"Xxxxx Complex Renewal Term" means each period following the end of the
Initial Term with respect to which Lessee has the option to renew the Xxxxx
Complex Ground Lease pursuant to Article XX of the Xxxxx Complex Ground Lease.
"Xxxxx Complex Site" has the meaning give such term in Section 2.1(a) of
the Xxxxx Complex Ground Lease.
"Xxxxx Design Capacity" means with respect to the Xxxxx, its nameplate
capacity, stated in BPD, to process feedstocks.
"Collateral Trustee" means the collateral trustee granted a security
interest, on behalf of the Financing Parties, in the Senior Debt pursuant to the
Financing Documents and any successor collateral trustee thereunder.
"Common Security Agreement" means the Common Security Agreement, dated as
of August 19, 1999, among the Xxxxx Company, the Funding Company, Sabine,
Neches, Bankers Trust Company, as Collateral Trustee and Depositary Bank,
Deutsche Bank AG, New York Branch, as Administrative Agent, Winterthur
International Insurance Company Limited, as Oil Payment Insurers Administrative
Agent and HSBC Bank USA, as Capital Markets Trustee,
"Contract Quantity" means (a) for any day when the Long-Term Oil Supply
Agreement is in effect and PMI has not reduced the volume of Maya available to
the Xxxxx Company pursuant thereto, the "Contract Quantity" in effect on such
day pursuant to the Long-Term Oil Supply Agreement or such lesser amount of Maya
Crude Oil as may be purchased thereunder pursuant to Section 8.2 of the
Long-Term Oil Supply Agreement, and (b) for any other day, the amount of Maya
Crude Oil sufficient to operate the Xxxxx at eighty percent of Actual Xxxxx
Capacity.
"Contractor" means Xxxxxx Xxxxxxx USA Corporation, a Delaware corporation.
"Crude Design Capacity" means with respect to the Ancillary Equipment, its
nameplate capacity, stated in BPD, to process heavy crude oil.
24
"Crude Unit" means the crude unit and vacuum tower located at the Refinery
and collectively designated AVU-146.
"CRU 1344 Hydrotreater" means the naphtha hydrotreater located at the
Refinery and designated CRU 1344.
"Easements" has the meaning given such term in Section 2.2 of the Xxxxx
Complex Ground Lease.
"EPC Contract" means the Contract for Engineering, Procurement and
Construction Services, dated as of July 12, 1999, between the Xxxxx Company and
the Contractor, as amended, supplemented or otherwise modified from time to
time.
"Event of Force Majeure" means any event or circumstance if (i) such event
or circumstance is beyond the reasonable control of the affected party and (ii)
such event or circumstance is not the direct or indirect result of a party=s
negligence or the failure of such party to perform any of its obligations under
the applicable Xxxxx R&M Agreement, including, without limitation:
1. any interruption or cessation in delivery of Xxxxx Company Maya to the
Refinery, whether or not due to an event of force majeure under the
Long-Term Oil Supply Agreement;
2. acts of God, epidemic, earthquake, landslide, lightning, fire,
explosion, accident, tornado, drought, blight, famine, flood,
hurricane, or other extraordinary weather conditions more severe than
those experienced at any time in the last thirty (30) years for the
geographic area of the Refinery;
3. acts of a public enemy, war (declared or undeclared), blockade,
insurrection, riot or civil disturbance, sabotage, quarantine, or any
exercise of the power of eminent domain, police power, condemnation or
other taking by or on behalf of any public, quasi-public or private
entity;
4. laws, rules, regulations, orders, judgments or other acts of any
foreign, federal, state or local court, administrative agency,
governmental body or authority;
5. strikes, boycotts or lockouts, except any such strike, boycott or
lockout that is not national or industry-wide that involves the
employees of Xxxxx R&M; and
6. a partial or entire interruption or other failure of (a) the supply of
electricity, water, wastewater treatment, steam, hydrogen or other
utilities
25
to the Refinery or any part thereof, or (b) pipeline service, ship or
barge service, dock access or usage or other transportation
facilities.
"Excess Xxxxx Capacity" means, for any day, the extent that Actual Xxxxx
Capacity for such day exceeds the capacity necessary for the Xxxxx to process
the Available Xxxxx Company VTBs for such day.
"Excess Xxxxx Capacity Option" has the meaning given such term in Section
4.2(a) of the Services and Supply Agreement.
"Excess Crude Capacity" means, for any day, the extent that Actual Crude
Capacity for such day exceeds the capacity necessary for the Ancillary Equipment
to process the Available Xxxxx Company Maya for such day and the light crude oil
necessary to process such Available Xxxxx Company Maya.
"Excess Crude Capacity Option" has the meaning given such term in Section
3.5(b) of the Services and Supply Agreement.
"Excess Hydrocracker Capacity" means, for any day, the extent that Actual
Hydrocracker Capacity for such day exceeds the capacity necessary for the
Hydrocracker to process Xxxxx Company VGO produced by the Xxxxx on such day.
"Excess Hydrocracker Capacity Option" has the meaning given such term in
Section 4.3(a) of the Services and Supply Agreement.
"Fair Market Rental Value" shall mean, with respect to any land and/or
equipment to be leased pursuant to a lease, the value, which shall not in any
event be less than zero, that would be obtained in an arm's length transaction
for cash between an informed and willing lessee and an informed and willing
lessor, neither of whom is under any compulsion to lease, for the use of such
land and/or equipment for a given period, without regard, in the case of land,
(i) to the value of any equipment or improvements that are not included in such
lease but which are located on such land, (ii) to the value of any reversionary
interest of the lessor in any equipment or improvements located on such land,
whether or not included in such lease, or (iii) to the highest and best use of
such land.
"Final Completion" has the meaning given such term in the EPC Contract.
"Financial Close" means the date when the initial funding of the Senior
Debt has occurred.
"Financing Documents" has the meaning given such term in the Common
Security Agreement.
"Financing Parties" means any lender or note purchaser that may at any time
be party to the Financing Documents and any trustee or agent acting on their
behalf.
26
"Funding Company" means Port Xxxxxx Finance Corp., a Delaware corporation.
"GFU 241" means the distillate hydrotreater located at the Refinery and
designated GFU 241.
"GFU 242" means the distillate hydrotreater located at the Refinery and
designated GFU 242.
"GFU 243" means the distillate hydrotreater located at the Refinery and
designated GFU 243.
"Guaranteed Values" has the meaning given such term in the EPC Contract.
"Heavy Oil Processing Facility" means, collectively, the Xxxxx Complex and
the Ancillary Equipment.
"Hydrocracker" or "HCU 942" means the hydrocracker to be constructed at the
Refinery and designated HCU 942.
"Hydrogen" means hydrogen purchased by the Xxxxx Company pursuant to the
Hydrogen Supply Agreement.
"Hydrogen Supply Agreement" means the Supply Agreement, dated as of August
1, 1999, between the Xxxxx Company and Air Products, Inc.
"Independent Engineer" means Xxxxxx & Xxxxx, Inc., or successor thereto
appointed pursuant to the Financing Documents.
"Inflation Factor" shall mean, for any month, (a) the most current Producer
Price Index published by the U.S. Department of Labor, Bureau of Statistics,
divided by, (b) the Producer Price Index on August 19, 1999.
"Labor Costs" shall mean, with respect to any service provided by Xxxxx
R&M, all reasonable direct labor costs of Xxxxx R&M in performing such service
including wages, salaries, overtime charges, reasonable and customary bonuses,
payroll insurance and taxes and holidays, vacations, group medical, dental and
life insurance and other employee benefits.
"LCO" means light cycle oil.
"Lessor Ancillary Equipment Upgrade" shall have the meaning given such term
in Section 6.1 of the Ancillary Equipment Site Lease.
"Lien" any mortgage, security interest, pledge, hypothecation, encumbrance
or lien (statutory or other) of any kind or nature whatsoever.
27
"Long-Term Oil Supply Agreement" means the Maya Crude Oil Sale Agreement,
dated as of March 10, 1998, between PMI and Xxxxx R&M, as amended by the First
Amendment and Supplement to the Maya Crude Oil Sales Agreement, dated as of
August 19, 1999, and as assigned by Xxxxx R&M to the Xxxxx Company pursuant to
the Long-Term Oil Supply Agreement Assignment.
"Long-Term Oil Supply Agreement Assignment" means the Assignment of the
Long-Term Oil Supply Agreement, dated as of August 19, 1999, by Xxxxx R&M to the
Xxxxx Company.
"Maya Crude Oil" means Mexican crude oil of the "Maya" type, as more
particularly described in the Long-Term Oil Supply Agreement and, to the extent
necessary, such alternative crude oil(s) and/or other feedstock(s) that may be
used to produce the Required Product Mix.
"Neches" mean Neches River Holding Corp., a Delaware corporation.
"Operating Year" means (i) the period beginning on the Start-up Date and
ending on the last day of the calendar year in which the Start-up Date occurs
and (ii) each calendar year thereafter. All annual amounts set forth in the
Xxxxx R&M Agreements shall be adjusted pro rata for the first Operating Year.
"Performance Test Standards" has the meaning given such term in the EPC
Contract.
"Permit" means any valid waiver, exemption, variance, franchise, permit,
authorization, license or similar order of or from any federal, state, county,
municipal, regional, environmental or other governmental body, instrumentality,
agency, authority, court or other body having jurisdiction over the Refinery,
the Xxxxx Complex or the Ancillary Equipment or the performance of any
obligation under any Xxxxx R&M Agreement, any Project Document or any other
agreement in connection therewith.
"Permitted Liens" means (i) the respective rights and interests created by
or under the Financing Documents and the Project Documents, (ii) Liens for Taxes
that either are not delinquent or are being contested in good faith and by
appropriate proceedings diligently conducted, so long as such proceedings do not
(a) involve a substantial risk of foreclosure, forfeiture, loss or sale of any
portion of the Xxxxx Refinery Property subject to the Ancillary Equipment Site
Lease or the Xxxxx Complex Ground Lease or interest therein, (b) interfere with
the use, possession or disposition of any Xxxxx Refinery Property subject to the
Ancillary Equipment Site Lease or the Xxxxx Complex Ground Lease or interest
therein or (c) interfere with the payment of rent under the Ancillary Equipment
Site Lease or the Xxxxx Complex Ground Lease; (iii) materialmen's, mechanics',
workmen's, repairmen's, employees', carriers', warehousemen's and other like
Liens arising in the ordinary course of business for amounts that either are not
more than 30 days past due or are being contested in good faith by appropriate
proceedings, so long as such proceedings satisfy the conditions for the
continuation of
28
proceedings to contest Taxes set forth in clause (ii) above; (iv) Liens of any
of the types referred to in clauses (ii) and (iii) above that have been bonded
for the full amount in dispute (or as to which other security arrangements
reasonably satisfactory to the Collateral Trustee have been made); (v) Liens
securing judgments, decrees or orders of any court (i) that are not currently
dischargeable or (ii) that have been discharged or stayed or appealed within
thirty (30) days after the date of such judgment, decree or order (in the case
of a stay or appeal, during the period of such stay or appeal); (vi) other Liens
that would not impair (x) the ability of the Xxxxx Company or its successors,
assigns or subtenants to operate the Xxxxx Complex in accordance with the Base
Case Financial Model or (y) any of the security interests granted, or to be
granted, by the Xxxxx Company to the Financing Parties pursuant to the Financing
Documents, (vii) with respect to the Ancillary Equipment Site Lease, the Liens
listed on Schedule I thereto; and (viii) with respect to the Xxxxx Complex
Ground Lease, the Liens listed on Schedule I thereto.
"Permitted Reimbursable Expenses" shall mean, with respect to any service
provided by Xxxxx R&M, any reasonable expense or expenditure incurred in
performance of such service including, without limitation, (i) Labor Costs, (ii)
purchases of spare parts, tools, equipment, consumables, materials and other
supplies necessary for performance of such service and (iii) direct cost of
subcontract labor or services needed to perform such service.
"Person" an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, governmental
authority or other entity of whatever nature.
"PMI" means P.M.I. Comercio Internacional, S.A. de C.V., a corporation
organized under the laws of Mexico.
"Product Purchase Agreement" means the Product Purchase Agreement, dated as
of August 19, 1999, between Xxxxx R&M and the Xxxxx Company, as amended,
supplemented or otherwise modified from time to time.
"Products" means each product described under the heading "Product" on
Exhibits A-1 through A-42 to the Product Purchase Agreement.
"Project Documents" means, collectively, the Services and Supply Agreement,
the Product Purchase Agreement, the Long-Term Oil Supply Agreement, the EPC
Contract, the Xxxxx Complex Ground Lease, the Ancillary Equipment Site Lease and
the Hydrogen Supply Agreement.
"Prudent Industry Practice" means those practices, methods, equipment,
specifications and standards of safety and performance, as the same may change
from time to time, as are commonly used in refinery facilities in the United
States of a type and size similar to the Refinery.
"Qualified Appraiser" means an appraisal firm with a national reputation
and experience in appraising facilities of a nature and type similar to the
Refinery.
29
"Reconciliation Statement" has the meaning given such term in Section
------------------------
7.2(a) of the Services and Supply Agreement.
"Refinery" means, collectively, the existing oil refinery owned by Xxxxx
--------
R&M located in Port Xxxxxx, Texas, the Ancillary Equipment and the Xxxxx
Complex.
"Regulated Utilities" has the meaning given such term in Section 5.5(f) of
-------------------
the Services and Supply Agreement.
"Required Product Mix" means, from time to time, the quantity and quality
--------------------
specifications of products to be produced by the Heavy Oil Processing Facility
pursuant to Section 2.2 of the Product Purchase Agreement.
"Sabine" means Sabine River Holding Corp., a Delaware corporation.
------
"Senior Debt" has the meaning given such term in the Common Security
-----------
Agreement.
"Senior Debt Obligations" means the obligations to pay principal and
-----------------------
interest on the disbursed Senior Debt, and all commissions, fees, indemnitees,
prepayment premiums and other amounts payable to the senior lenders under the
Financing Documents.
"Services" has the meaning set forth in Section 2.1 of the Services and
--------
Supply Agreement.
"Services and Supply Agreement" means the Services and Supply Agreement,
-----------------------------
dated as of August 19, 1999, between Xxxxx R&M and the Xxxxx Company, as
amended, supplemented or otherwise modified from time to time.
"Sour Water Stripper" means the sour water stripper to be constructed at
-------------------
the Refinery and designated SWS-8747.
"Standards" means, in addition to any other standards set forth in the EPC
---------
Contract, the technical requirements of the Project Documents, generally
accepted standards of professional care, skill, diligence and competence
applicable to engineering and construction and project management practices,
good refinery and petrochemical industry practices for oil refineries of similar
size, type and design to the Refinery, manufacturer's specifications and
warranty requirements and all Applicable Laws.
"Start-up Date" means the date on which hydrocarbons are first introduced
-------------
into the Xxxxx Complex for the processing of test runs under the EPC Contract.
"Start-up Period" means the period from the Start-up Date until Final
---------------
Completion.
30
"Sulfur Plant" means the sulfur plant to be constructed at the Refinery and
------------
designated SRU 545.
"Supplies" has the meaning set forth in Section 2.1 of the Services and
--------
Supply Agreement.
"Tax" means, with respect to any site or parcel of land and the
---
improvements thereon, all real estate taxes and assessments, including
substitutes therefor or supplements thereto, assessed upon, levied against or
imposed on such land and improvements located thereon which accrue and are due
and payable during the term of the Xxxxx Complex Ground Lease. Notwithstanding
anything to the contrary contained herein, the term "Taxes" shall not include
any franchise, income, corporation, inheritance, succession, gift, estate,
realty transfer, capital or other tax which may be charged or assessed against
Lessor or any income, excess profit or revenue tax or any other tax which may be
assessed against or become a lien upon the Xxxxx Complex Site or the rent
accruing therefrom.
"Total Crude Oil Volume" means, for any day, the total daily volume, stated
----------------------
in BPD, of crude oil processed by the Crude Unit.
"Transfer and Assignment Agreement" means the Transfer and Assignment
---------------------------------
Agreement, dated as of August 19, 1999, between Xxxxx R&M and the Xxxxx Company,
as amended, supplemented or otherwise modified from time to time.
"VGO" means vacuum gas oil.
---
"VTBs" means vacuum tower bottoms.
---
"Warranties" means the requirements of all warranties and guarantees
----------
applicable to equipment and structures constituting the Xxxxx Complex or the
Ancillary Equipment provided by the Contractor, subcontractors, vendors,
suppliers or others.
34
Exhibit A
Xxxxx Complex Ground Lease
XXXXX COMPLEX SITE DESCRIPTION*
46.2189 acres of land (being a 47.7267-acre tract less and except a 1.5078-acre
tract) out of the X.X. Xxxxxx Survey, Abstract No. 61, Jefferson County, Texas,
and being all of Lots 1-4 of X.X.X.X. SUBDIVISION, a Subdivision of Jefferson
County, Texas, according to the map or plat thereof recorded in Volume 16, Page
169, of the Map Records of Jefferson County, Texas, and being also described by
metes and bounds on Pages 2 through 7 of this Exhibit A.
Page 1 of 7
-----------------------
* Seven pages of metes and bounds descriptions accompanying this Exhibit have
been omitted from the filing of this registration statement and shall be
made available to the Commission upon request.
Exhibit B
Xxxxx Complex Ground Lease
ADJACENT REFINERY PROPERTY DESCRIPTION**
The Adjacent Refinery property is composed of eleven (11) Tracts of land
described by metes and bounds on Pages 2 through 30 of the Exhibit B; LESS AND
--------
EXCEPT the parcels of land (Parcels "X," "X," "C," "D," "E," "F," "G," "H,"
------
"12," "13", "0", "J-2," "0.519 Acre Tract," "L," "M," and "N1") described by
metes and bounds on Pages 31 through 70 of this Exhibit C.
Page 1 of 70
-----------------------
** Sixty nine pages of metes and bounds descriptions accompanying this Exhibit
have been omitted from the filing of this registration statement and shall
be made available to the Commission upon request.
Exhibit C
Xxxxx Complex Ground Lease
DOCK EASEMENT DESCRIPTION
The easement described in Section 2.2(b) of this Xxxxx Complex Ground Lease and
Blanket Easement Agreement is a nonexclusive, blanket easement covering the
docks (and related piers, pilings and mooring dolphins, if any) and dock
facilities owned, operated or otherwise controlled by Lessor that are situated
on the Adjacent Refinery Property and/.or on or within the waters of Xxxxxx'x
Bayou and/or the Port Xxxxxx Turning Basin running along and adjacent to the
Adjacent Refinery Property.
Exhibit X
Xxxxx Complex Ground Lease
AIR PRODUCTS UTILITIES
24.0 Cooling Water
Approximately 15,540 gpm of cooling water to the battery limits of Air
Products' new hydrogen plant at the Refinery (the "Facility"). The cooling
water is expected to typically have the following constituents at 10
cycles of concentration:
-------------------------------------------------------------------------------------------------------------------
Characteristics Minimum Normal Maximum
-------------------------------------------------------------------------------------------------------------------
Feed Water pH 7.2
-------------------------------------------------------------------------------------------------------------------
Temperature *(F) 88 93
-------------------------------------------------------------------------------------------------------------------
Calcium Hardness as CaCO3 ppm 82
-------------------------------------------------------------------------------------------------------------------
Magnesium Hardness as CaCO3 ppm 50
-------------------------------------------------------------------------------------------------------------------
Total Hardness as CaCO3 *ppm 115
-------------------------------------------------------------------------------------------------------------------
Sodium as Na ppm 78
-------------------------------------------------------------------------------------------------------------------
Potassium as K *mg/L
-------------------------------------------------------------------------------------------------------------------
Iron as Fe ppm 6.0
-------------------------------------------------------------------------------------------------------------------
Manganese as Mn mg/L
-------------------------------------------------------------------------------------------------------------------
Copper as Cu ppm 0.23
-------------------------------------------------------------------------------------------------------------------
Aluminum as Al mg/L
-------------------------------------------------------------------------------------------------------------------
Zinc as Zn mg/L
-------------------------------------------------------------------------------------------------------------------
Ammonia and Ammonium Ion as NH3 mg/L
-------------------------------------------------------------------------------------------------------------------
Methyl Orange (M) Alkalinity as CaCO3 ppm 56
-------------------------------------------------------------------------------------------------------------------
Phenolphthalein (P) Alkalinity as CaCO3 ppm 0
-------------------------------------------------------------------------------------------------------------------
Chloride as Cl ppm 295
-------------------------------------------------------------------------------------------------------------------
Sulfate as SO4 mg/L
-------------------------------------------------------------------------------------------------------------------
Nitrate as NO4 mg/L
-------------------------------------------------------------------------------------------------------------------
Orthophosphate as PO4 ppm 32
-------------------------------------------------------------------------------------------------------------------
Total Phosphate as PO4 mg/L
-------------------------------------------------------------------------------------------------------------------
Silica as SiO2 ppm 88
-------------------------------------------------------------------------------------------------------------------
4
-------------------------------------------------------------------------------------------------------------------
Characteristics Minimum Normal Maximum
-------------------------------------------------------------------------------------------------------------------
Total Dissolved Solids, TDS *mg/L
-------------------------------------------------------------------------------------------------------------------
Total Suspended Solids, TSS mg/L 25
-------------------------------------------------------------------------------------------------------------------
Turbidity as NTU *mg/L
-------------------------------------------------------------------------------------------------------------------
Oil and Grease mg/L
-------------------------------------------------------------------------------------------------------------------
Specific Conductance at 251C Fohms 802
-------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx Index *mg/L
-------------------------------------------------------------------------------------------------------------------
Chemical Oxygen Demand, COD *mg/L
-------------------------------------------------------------------------------------------------------------------
Total Organic Carbon, TOC *mg/L
-------------------------------------------------------------------------------------------------------------------
Free Chlorine Residual as Cl2 mg/L
-------------------------------------------------------------------------------------------------------------------
Total Sulfur as SO4 ppm 140
-------------------------------------------------------------------------------------------------------------------
Tolyltriazole ppm 0.4
-------------------------------------------------------------------------------------------------------------------
Min. Normal Max.
---- ------ ----
Supply Pressure 60 psig 60 psig 80 psig
Temperature 56(F) 88(F) 93(F)
The mechanical design pressure and temperature will be 80 psig and 150(F).
25.0 Boiler Feed Water Make-up
Boiler feed water make-up to the Facility in accordance with the following:
--------------------------------------------------------------------------
Boiler Feed Water
--------------------------------------------------------------------------
pH 7.5-10
--------------------------------------------------------------------------
Nonvolatile TOC, mg/LC Less than 0.5
--------------------------------------------------------------------------
Oily Matter, MG/L Less than 0.5
--------------------------------------------------------------------------
Specific Conductance at 251C, Fmhos Less than 10
--------------------------------------------------------------------------
Alkalinity, ppm Less than 0.15
--------------------------------------------------------------------------
Total Sulfur as SO4, ppm Less than 0.5
--------------------------------------------------------------------------
5
--------------------------------------------------------------------------
Boiler Feed Water
--------------------------------------------------------------------------
Chloride as Cl, ppm Less than 0.5
--------------------------------------------------------------------------
Total Hardness as CaCO\\3\\, ppm Less than 0.1
--------------------------------------------------------------------------
Total Calcium Hardness as CaCO\\3\\, ppm Less than 0.05
--------------------------------------------------------------------------
Total Magnesium Hardness as CaCO\\3\\, ppm Less than 0.05
--------------------------------------------------------------------------
Total Copper as Cu, ppm Less than 0.015
--------------------------------------------------------------------------
Total Iron as Fe, ppm Less than 0.02
--------------------------------------------------------------------------
Sodium as Na, ppm Less than 0.24
--------------------------------------------------------------------------
Silica as SiO\\2\\, ppm Less than 0.20
--------------------------------------------------------------------------
Conditions at the Facility's Battery Limits:
Min. Normal Max.
---- ------ ----
Pressure 54 psig 60 psig 85 psig
Temperature 56(degrees)F 100(degrees)F 104(degrees)F
Flowrate N/A 1,200 gpm 1,350 gpm
26.0 Filtered Water
Filtered water to the Facility for utility purposes.
The water quality shall be as shown below:
Conditions at the Battery Limits of the Air Products; hydrogen plant:
Min. Normal Max.
---- ------ ----
Pressure 30 psig 60 psig 85 psig
Temperature 56(degrees)F 86(degrees)F 104(degrees)F
Flowrate N/A 0 gpm nominal
The mechanical design pressure and temperature will be 150(degrees)F and
150 psig.
40
6
27.0 Firewater
3000 gpm delivered at 121 psig.
The mechanical design pressure will be 150 psig.
28.0 Potable Water
Approximately 280 gpd of potable water to the Facility's battery limit:
Min. Normal Max.
---- ------ ----
Pressure 30 psig 60 psig 80 psig
Temperature 56(degrees)F 86(degrees)F 86(degrees)F
The mechanical design temperature and pressure will be
150(degrees)F and 150 psig.
29.0 Nitrogen
Gaseous nitrogen to the Facility's battery limit for continuous purging
and instrument air backup. Nitrogen shall meet 99.9% purity (minimum)
and -40(degrees)F dew point. Approximately 65 SCFM will be required for
normal continuous purge requirements. Additional nitrogen for startup,
shutdown, and emergencies to the extent required beyond the quantities
listed below.
Min. Normal Max.
---- ------ ----
Flowrate 3900 SCFH 3900 SCFH 8000 SCFH
Pressure 190 psig 225 psig 600 psig
Temperature 56(degrees)F 71(degrees)F 100(degrees)F
The mechanical design temperature and pressure and temperature will be
150(degrees)F and 660 psig.
7
30.0 Plant Air
Water saturated, oil-free instrument air at the Facility's battery
limits.
Min. Normal Max.
---- ------ ----
Pressure 80 psig 80 psig 125 psig
Temperature 56(F) 100(F) 104(F)
Flowrate 710 SCFM 710 SCFM 1100 SCFM
The mechanical design temperature and pressure will be 150(F) and 150
psig.
31.0 Wastewater
Compressor blowdowns, steam blowdowns, gas turbine water wash waste,
plant air knock-out drum and storm water runoffs from diked areas will be pumped
to the dirty water system at the Refinery. An oil-water separator is not
included. Steam blowdowns will be cooled to 100(F) via the blowdown cooler
(E129). The pressure and temperature of the wastewater shall be as follows:
Min. Normal Max.
---- ------ ----
Pressure N/A 95 psig ___ psig
Temperature 56(F) 71(F) 100(F)
Stormwater runoff from non-diked areas will be gravity fed to the
stormwater system at the Refinery. Trace liquids knocked out of the refinery
fuel stream will be directed to the sourwater system at the Refinery.
Sanitary wastes will be pumped to the dirty water system at the Refinery.
32.0 Back-up Power Supply
In the event of a gas turbine generator outage and during Facility
startup, supply to the Facility of 13.8 kV, 60Hz, 3 phase power. Maximum voltage
drop to be to 13.2kV. Delivery rates shall be:
8
Normal Max.
------ ----
8,000 KW 13,000 KW
33. Feed and Fuel Streams
33.1 Natural Gas
Natural gas will be used as feedstock and trim fuel for the Facility
and as fuel for the gas turbine generator. It is understood that the
design and performance of the Facility is based on the following:
Composition: 94.5 mo1% CH\\4\\
2.4% C\\2\\H\\6\\
0.5% C\\3\\H\\8\\
0.1%i-C\\4\\H\\10\\
0.1%n-C\\4\\H\\10\\
0.5%n-C\\6\\H\\14\\
1.4% CO\\2\\
0.5% N\\2\\
4 ppmv H\\2\\S (max.)
4 ppmv Total Mercaptans (max.)
0 ppmv Olefins and Unsaturates
MW=17.41
HHV=1,039.5 Btu/SCF
Min. Normal Max.
---- ------ ----
Pressure 500 psig 525 psig 540 psig
Temperature 56(F) 71(F) 86(F)
Flowrates (MMBtu/hr,HHV) N/A 2208 2750
9
The Facility will be capable of operating at reduced hydrogen
production rates at a natural gas supply pressure of 450 psig. The
mechanical design pressure and temperature will be 600 psig and 150(F).
33.2 Refinery Fuel
Refinery fuel to be made available as fuel for the Facility's burners.
The refinery fuel composition, temperature and pressure, supplied at Facility's
battery limits will vary depending upon the operation of the Refinery with
typical composition to be as follows:
Composition (typical):
Hydrogen 43.0 mol%
Methane 39.1 mol%
Ethane 6.5 mol%
Ethene 0.9 mol%
Propane 4.7 mol%
Propene 0.6 mol%
Butane 0.5 mol%
iso-Butane 0.8 mol%
l-Butene 0.1 mol%
n-Pentane 0.2 mol%
Hexane 0.2 mol%
Carbon Dioxide 0.3 mol%
Carbon Monoxide 0.3 mol%
Nitrogen 2.7 mol%
HsS 20 ppmv (min.)
40 ppmv (avg.)
80 ppmv (max.)
10
Min. Normal Max.
---- ------ ----
Pressure 50 psig 55 psig 80 psig
Temperature 56 degree F 71 degree F 104 degree F
HHV (Btu/SCF) 600 900 1,250
LHV (Btu/SCF) 774
Flow Rates (MMBtu/hr,HHV) 143 228 461
The mechanical design pressure and temperature will be 105 psig and
150 degree F.
34.0 Hydrotreater Spill Stream
A single, combined spill stream from hydrotreater units (GFU
241/242/243/244) will be sent to a separate PSA for hydrogen purification. The
spill stream composition, temperature and pressure, supplied to the Facility's
battery limits shall be:
Min. Normal Max.
---- ------ ----
H\\2\\O 0.10 mol% 0.18 mol% 0.23 mol%
NH\\3\\ 1 ppmv 8 ppmv 20 ppmv
N\\2\\ 0.00 mol% 0.31 mol% 0.79 mol%
H\\2\\S 40 ppmv 123 ppmv 150 ppmv
H\\2\\ 69.47 mol% 72.33 mol% 76.75 mol%
CH\\4\\ 12.00 mol% 15.15 mol% 18.00 mol%
C\\2\\H\\6\\ 5.00 mol% 7.09 mol% 10.00 mol%
C\\3\\H\\8\\ 2.00 mol% 3.46 mol% 4.00 mol%
n-C\\4\\H\\10\\ 0.50 mol% 0.90 mol% 1.50 mol%
i-C\\5\\H\\12\\ 0.03 mol% 0.28 mol% 0.49 mol%
n-C\\5\\H\\12\\ 0.03 mol% 0.28 mol% 0.49 mol%
n-C\\6\\H\\14\\ 0.01 mol% 0.01 mol% 0.02 mol%
Based on the normal composition shown above, the process design spill
stream feed flow, pressure and temperature at the Facility's battery limits will
be:
Min. Normal Max.
---- ------ ----
Flow 4.2 MMSCFD 8.9 MMSCFD 11.7 MMSCFD
Pressure 350 psig 425 psig 600 psig
Temperature 56(degrees)F 71(degrees)F 104(degrees)F
The mechanical design pressure and maximum temperature will be 720 psig
and 120(degrees)F.
Exhibit E
Xxxxx Complex Ground Lease
FORM OF ASSIGNMENT AND CONSENT AGREEMENT
CONSENT AND AGREEMENT, dated as of August 19, 1999, among XXXXX REFINING &
MARKETING, INC., a Delaware corporation ("Xxxxx R&M"), BANKERS TRUST COMPANY, a
---------
New York banking corporation, as Collateral Trustee for the benefit of the
Secured Parties (as hereinafter defined) (in such capacity, together with its
successors and assigns, the "Collateral Trustee"), and PORT XXXXXX XXXXX COMPANY
------------------
L.P., a Delaware limited partnership (the "Partnership").
-----------
WHEREAS, the Partnership is constructing and will own and operate a new
delayed xxxxx facility and certain related refinery equipment, located at Xxxxx
R&M's refinery in Port Xxxxxx, Texas (the "Xxxxx Complex");
-------------
WHEREAS, Xxxxx R&M and the Partnership have entered into (i) the Services
and Supply Agreement (the "SSA"), (ii) the Product Purchase Agreement (the
---
"PPA"), (iii) the Xxxxx Complex Ground Lease and Blanket Easement Agreement (the
---
"Ground Lease"), (iv) the Ancillary Equipment Site Lease and Easement Agreement
------------
(the "Site Lease") and (v) the Transfer and Assignment Agreement (the "Transfer
----------
and Assignment"), each of which is dated as of August 19, 1999 (all five
agreements, as amended, supplemented or otherwise modified from time to time,
collectively, the "Agreements"), in connection with the construction and
----------
operation of the Xxxxx Complex;
WHEREAS, in order to finance the construction and operation of the Xxxxx
Complex, the Partnership has entered into financing arrangements (as the same
may be amended, supplemented or otherwise modified, or extended or refinanced,
from time to time, the "Financing Arrangements") with the banks and other
----------------------
financial institutions from time to time parties thereto (together with their
respective successors and assigns, the "Financing Parties");
-----------------
WHEREAS, the Financing Arrangements provide, among other things, for the
making of the loans and other extensions of credit to the Partnership, the
proceeds of which are to be applied to finance the construction of the Xxxxx
Complex;
WHEREAS, the loans, bonds and other obligations of the Partnership incurred
in connection with the Financing Arrangements will be secured by substantially
all of the assets of the Partnership pursuant to a Common Security Agreement,
dated as of August, 19, 1999, entered into by the Partnership in favor of the
Collateral Trustee, pursuant to which the Partnership has assigned to the
Collateral Trustee for the benefit of the Secured Parties, as collateral
security for the Senior Debt Obligations, all of the Partnership's right, title
and interest in, to and under among other things the Agreements;
WHEREAS, it is a condition to the obligations of the Financing Parties
under the Financing Arrangements that Xxxxx R&M execute and deliver this
Consent;
2
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. The following terms shall have the meanings indicated:
-------------
"Agreements" has the meaning specified in the recitals to this
----------
Consent.
"Xxxxx Complex" has the meaning specified in the recitals.
-------------
"Collateral Trustee" has the meaning specified in the caption of this
------------------
Consent.
"Common Security Agreement" means the Common Security Agreement, dated
-------------------------
as of August 19, 1999, among the Partnership, the Collateral Trustee and
the other parties named therein, as the same may be amended, supplemented
or otherwise modified from time to time.
"Consent" means this Consent and Agreement, as the same may be
-------
amended, supplemented or otherwise modified from time to time.
"Xxxxx R&M" has the meaning specified in the caption of this Consent.
---------
"Default Notice" has the meaning specified in Section 5(a).
--------------
"Event of Default" means any of the events listed in Section 10.1 of
----------------
the Common Security Agreement.
"Financing Arrangements" has the meaning specified in the recitals to
----------------------
this Consent.
"Financing Documents" means the Common Security Agreement and any
-------------------
other agreement or instrument entered into by the Partnership or any other
Person pursuant to the Financing Arrangements which secures, evidences or
governs payment or performance of any of the Senior Debt Obligations.
"Financing Parties" has the meaning specified in the recitals to this
-----------------
Consent.
"Ground Lease" has the meaning specified in the recitals to this
------------
Consent.
"Nominee" has the meaning specified in Section 5(b).
-------
"Notice" has the meaning specified in Section 5(a).
------
"Partnership" has the meaning specified in the caption of this
-----------
Consent.
3
"Person" means an individual, partnership, corporation, business
------
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority or other legal entity of whatever nature.
"Project Revenue Account" has the meaning specified in the Common
-----------------------
Security Agreement.
"PPA" has the meaning specified in the recitals to this Consent.
---
"Refinancing" means any financing transaction or debt offering
-----------
transaction, or series of such transactions, all or part of the proceeds of
which are used to repay the Senior Debt Obligations or otherwise are used
to provide financing for the Xxxxx Complex.
"Replacement Party" has the meaning specified in Section 5(c).
-----------------
"Secured Parties" has the meaning specified in the Common Security
---------------
Agreement.
"Senior Debt Obligations" has the meaning specified in the Common
-----------------------
Security Agreement.
"Site Lease" has the meaning specified in the recitals to this
----------
Consent.
"SSA" has the meaning specified in the recitals to this Consent.
---
"Transfer and Assignment" has the meaning specified in the recitals to
-----------------------
this Consent.
"Transferee" has the meaning specified in Section 5(b)(i).
----------
1.2 Other Definitional Provisions.
-----------------------------
(a) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Consent shall refer to this Consent as a whole and not
to any particular provision of this Consent, and section and subsection
references are to this Consent unless otherwise specified.
(b) Each reference in this Consent to an agreement, instrument or
document shall be deemed to refer to such agreement, instrument or document as
the same may be amended, supplemented or otherwise modified from time to time.
(c) Any term defined by reference to an agreement, instrument or other
document shall have the meaning so assigned to it whether or not such agreement,
instrument or document is in effect.
(d) Each reference in this Consent to a Person shall be deemed to
include such Person's successors and assigns.
4
SECTION 2. CONSENTS TO ASSIGNMENTS, ETC.
Xxxxx R&M hereby:
2.1 acknowledges that the Secured Parties are entering into the
Financing Arrangements in reliance upon the performance by Xxxxx R&M of its
obligations under the Agreements and this Consent, and irrevocably consents to
the assignment of the Agreements, pursuant to Section 12.5 of the SSA, Section
9.11 of the PPA, Section 22.1 of the Ground Lease, Section 22.1 of the Site
Lease and Section 5.5 of the Transfer and Assignment, to the Collateral Trustee
for the benefit of the Secured Parties as collateral security for the Senior
Debt Obligations of all of Partnership's right, title and interest, (whether now
existing or hereafter arising) in, to and arising under the Agreements;
2.2 irrevocably consents, pursuant to Section 12.5 of the SSA,
Section 9.11 of the PPA, Section 22.1 of the Ground Lease and Section 22.1 of
the Site Lease and Section 5.5 of the Transfer and Assignment, to any subsequent
assignment of any of the Agreements by the Collateral Trustee pursuant to
Section 5(b), upon and after receipt by Xxxxx R&M of written notice from the
Collateral Trustee that it desires to exercise its rights and remedies as a
secured party, or as trustee for the benefit of the Secured Parties, in respect
of the Senior Debt Obligations (but without any right or obligation of Xxxxx R&M
to know or confirm whether any such subsequent assignment is permitted under the
Financing Documents), including the acquisition of all of the Partnership's
existing and future rights under the Agreements by sale, foreclosure or
otherwise, or the construction and/or operation of the Xxxxx Complex pending
sale or foreclosure through a receiver or otherwise, or the assignment of the
Agreements to any Person who is a Transferee; and Xxxxx R&M will, at the request
of any such Transferee, enter into a consent and agreement in connection
therewith having terms the same as the terms of this Consent, except such terms
as may be inapplicable;
2.3 confirms that the assignment of the Partnership=s right, title
and interest in, to and arising under the Agreements pursuant to Section 6.06 of
the Common Security Agreement is in accordance with all applicable provisions of
the Agreements;
2.4 irrevocably agrees that the Collateral Trustee and the other
Secured Parties shall not be subject to any liability or obligation under any of
the Agreements nor shall the Collateral Trustee or any Secured Party be
obligated or required (A) to perform any of the Partnership=s obligations under
any of the Agreements or (B) to take any action to collect or enforce any claim
for payment assigned to it under the Common Security Agreement or otherwise;
2.5 acknowledges the right of the Collateral Trustee and the other
Secured Parties to cure defaults by the Partnership under any of the Agreements
pursuant to the terms of this Consent (notwithstanding anything to the contrary
contained in such Agreement), without assuming or being responsible for any of
the obligations of the Partnership thereunder;
2.6 acknowledges the right of the Collateral Trustee, following the
occurrence of an Event of Default under the Common Security Agreement, to
exercise its rights thereunder as a secured creditor and collateral assignee of
the Agreements to make all demands, give all notices,
5
take all actions and exercise all rights of the Partnership under the Agreements
and to enforce the Agreements against Xxxxx R&M, notwithstanding anything to the
contrary contained in any of the Agreements (but without any right or obligation
of Xxxxx R&M to know or confirm whether any such subsequent assignment is
permitted under the Financing Documents);
2.7 acknowledges and irrevocably agrees, notwithstanding anything to
the contrary contained in any of the Agreements, but subject to the provisions
of this Consent, that none of the following shall constitute in and of itself,
as between Xxxxx R&M and the Collateral Trustee or any other Secured Party, a
default or breach by Partnership under any of the Agreements:
(a) the collateral assignment of any of the Agreements to the
Collateral Trustee for the benefit of the Secured Parties;
(b) the sale, foreclosure or other enforcement by the Collateral
Trustee or any other Secured Party of secured creditor remedies;
(c) the acquisition of the rights of the Partnership under any of
the Agreements by the Collateral Trustee or any other Person as a result of sale
or foreclosure (or acceptance of an absolute assignment of the Agreements in
lieu of sale or foreclosure) or the exercise of other secured creditor remedies;
or
(d) the assignment of any of the Agreements by the Collateral
Trustee or any other Secured Party or a Nominee to any other Person, following
the acquisition of the Agreements by the Collateral Trustee or any other Secured
Party or Nominee in the exercise of rights and remedies as a secured creditor
(or in lieu of the exercise of such rights and remedies); and
2.8 irrevocably agrees at the request of the Partnership, to enter
into a consent and agreement in connection with a Refinancing having terms the
same as this Consent, except such terms as may be inapplicable or other
non-substantive change.
SECTION 3. PAYMENT OF ASSIGNED SUMS
Until notified in writing by the Collateral Trustee that the Senior
Debt Obligations have been paid in full, Xxxxx R&M shall pay by wire transfer in
U.S. dollars of same day funds directly to the Project Revenue Account or as
otherwise instructed in writing by the Collateral Trustee any and all amounts,
if any, payable by Xxxxx R&M to the Partnership under the Agreements or as a
result of a breach thereof. The making of such payment into the Project Revenue
Account, and the currency of such payment are of the essence of this Consent.
All amounts paid to the Collateral Trustee shall be accompanied by a notice
specifying the amount of such payment and the purpose for which such payment is
being made. After Xxxxx R&M has been notified in writing by the Collateral
Trustee that the Senior Debt Obligations have been paid in full, Xxxxx R&M shall
pay such amounts directly to Partnership.
6
SECTION 4. REPRESENTATIONS AND WARRANTIES OF XXXXX R&M
Xxxxx R&M hereby represents and warrants that:
4.1 Organization. It is a corporation duly organized and existing
------------
under the laws of Delaware and has the legal capacity to enter into and perform
this Consent.
4.2 Government Authorizations. It has obtained all necessary
-------------------------
authorizations from the competent governmental authorities for the execution of
this Consent and the performance of its obligations hereunder.
4.3 Corporate Authority. The execution and performance by Xxxxx R&M
-------------------
of this Consent has been duly authorized by all necessary corporate action. This
Consent has been duly executed by Xxxxx R&M and, assuming the due authorization
and execution of this Consent by the Partnership and the Collateral Trustee,
constitutes the legal, valid and binding obligation of Xxxxx R&M, enforceable
against Xxxxx R&M in accordance with its terms.
4.4 No Conflict. Neither the execution of this Consent by Xxxxx R&M
-----------
nor the performance by Xxxxx R&M of its obligations hereunder will conflict with
or result in any breach of, or constitute a violation of or default under, any
applicable law or regulation, Xxxxx R&M=s charter or by-laws, or any indenture,
mortgage, deed of trust, or other instrument or agreement (including, without
limitation, any negative pledge or similar clause), to which Xxxxx R&M or any of
its affiliates is a party, or by which any of them may be bound, or to which any
of their respective property or assets may be subject.
4.5 No Litigation. No lawsuit or other proceeding is pending or, to
-------------
the knowledge of Xxxxx R&M, threatened against Xxxxx R&M which, if determined
adversely to Xxxxx R&M, may materially and adversely affect its business or
financial condition or the consummation of the transactions contemplated by, or
the performance of its obligations under, this Consent or any of the Agreements.
No action or proceeding has been instituted and no order, decree, injunction or
judgment of any kind from any court or other governmental authority has been
issued to avoid, restrain or in any other manner prevent the consummation of the
transactions contemplated by this Consent or any of the Agreements.
4.6 Enforcement. The Agreements and this Consent are in proper legal
-----------
form to be enforced against Xxxxx R&M, and it is not necessary to ensure the
legality, validity, enforceability or admissibility into evidence of the
Agreements or this Consent that they be filed, recorded or enrolled with any
governmental authority, or that any such document be stamped with any stamp,
registration or similar transaction tax.
4.7 Execution, Delivery; Binding Agreements. The Agreements are in
---------------------------------------
full force and effect and none of the Agreements have been assigned by Xxxxx
R&M. Except for the assignments referred to in Section 2(a) hereof, Xxxxx R&M
has not received any notice of transfer or assignment of any of the Agreements
by the Partnership.
4.8 No Default or Amendment. Neither Xxxxx R&M nor, to its knowledge,
-----------------------
the Partnership is in default under any of the Agreements. Xxxxx R&M has no
existing claims,
7
counterclaims, offsets or defenses against the Partnership in respect of any of
the Agreements. None of the Agreements have been amended, modified or
supplemented in any manner.
SECTION 5. RIGHTS OF COLLATERAL TRUSTEE
Xxxxx R&M agrees that the Collateral Trustee, for the benefit of the
Secured Parties, so long as any Senior Debt Obligations remain outstanding,
shall have the following rights with respect to the Agreements:
5.1 Notwithstanding anything to the contrary contained in any of the
Agreements, none of the Agreements shall be terminated or canceled by action of
Xxxxx R&M as the result of any breach or default of the Partnership without
prior notice in writing to the Collateral Trustee, specifying the basis therefor
(hereinafter called a "Notice"). In the event of a default by Partnership under
------
any of the Agreements, Xxxxx R&M (i) will give prompt written notice to the
Collateral Trustee (a "Default Notice") of such default and any cure period
--------------
pursuant to such Agreement (the "Partnership's Cure Period"), (ii) will allow
-------------------------
the Collateral Trustee and the other Secured Parties to cure such default during
the Partnership's Cure Period (whether or not the Partnership or any equity
investor in the Partnership also has the right to cure such default during such
period) and (iii) prior to the exercise by Xxxxx R&M of any right to terminate
such Agreement, will afford the Collateral Trustee and the other Secured Parties
the longer of (A) 120 days after the receipt by the Collateral Trustee of the
Default Notice and (B) 60 days after the expiration of the Partnership's Cure
Period (the "Secured Parties' Cure Period") to cure such default, provided that
---------------------------- --------
the Secured Parties' Cure Period shall be extended for such longer period of
time as is necessary as long as the Collateral Trustee or any other Secured
Party shall be diligently acting in good faith to cure such default or to obtain
title to the Xxxxx Complex; and provided, further, that notwithstanding the
-------- -------
foregoing, in no event shall the Secured Parties' Cure Period with respect to a
payment default by the Partnership exceed 90 days after the Default Notice from
Xxxxx R&M. No curing of any defaults under such Agreement shall be construed as
an assumption by the Collateral Trustee or the Secured Party of any of the
obligations, covenants or agreements of the Partnership under such Agreement.
5.2 If the Collateral Trustee or any other Secured Party, or a
Nominee (as defined below), shall become the legal or beneficial owner of the
Xxxxx Complex, or shall become entitled to cause the disposition of the Xxxxx
Complex pursuant to the exercise of its rights and remedies as a secured
creditor, then:
(a) Such Person, at its election, may continue the Agreements
by delivering to Xxxxx R&M a written notice of continuation. Such Person may
thereafter cause the Partnership's interest in the Agreements to be transferred
to itself or to a third party by delivering to Xxxxx R&M a written notice of
such transfer and an agreement from such Person or such third party satisfying
the conditions of Section 5(b)(ii) hereof (such Person or such third party, as
the case may be, being herein called a "Transferee"), and in the event of any
----------
transfer and any successive transfers thereafter, (A) Xxxxx R&M will continue to
perform, for the benefit of such Transferee, its obligations under the
Agreements pursuant to its terms as modified hereby, without regard to any
default by the Partnership thereunder, (B) the Partnership shall remain liable
to Xxxxx R&M for all its obligations and duties under the Agreements, and (C)
any Transferee shall become
8
liable, not personally but solely to the extent of its direct or indirect right,
title and interest in and to the Xxxxx Complex and the operating contracts
relating thereto, to perform the duties and obligations of the Partnership under
the Agreements only as arise in respect of the period commencing on the date of
such Transferee's succession. Only the Transferee, and not the Person delivering
a notice of continuation, shall have liabilities and obligations under the
Agreements.
(b) Any agreement delivered pursuant to the second sentence of
subparagraph (i) of this Section 5(b) shall provide that the Transferee shall
(A) assume and agree to perform all future obligations of the Partnership under
the Agreements and agree to be bound by the terms of the Agreements in
connection therewith and (B) be bound by all actions taken and notices given by
the parties under the Agreements prior to any such transfer.
(c) As used in this Section 5, "Nominee" shall mean (A) any
Person or entity that is directly or indirectly owned and controlled by the
Collateral Trustee, the Collateral Trustee or any other Secured Party and (B)
which has acquired the Partnership's right, title and interest in the Xxxxx
Complex.
5.3 If (i) the Partnership or a trustee or receiver or any Person
exercising the powers of a trustee or receiver in any bankruptcy, insolvency,
receivership, arrangement, liquidation or similar proceeding applicable to the
Partnership rejects any of the Agreements, or (ii) any of the Agreements is
terminated (x) by reason of any bankruptcy, insolvency, receivership,
arrangement, liquidation or similar proceeding applicable to the Partnership or
(y) by reason of any default by the Partnership under such Agreement, and if, in
any such case, within 90 days after such termination, the Collateral Trustee
shall so request, Xxxxx R&M will execute and deliver to the Collateral Trustee,
one or more of the Secured Parties, a Nominee or a Transferee, as shall be
designated by the Collateral Trustee (herein called the "Replacement Party"), a
-----------------
new contract with the Replacement Party. The new contract shall contain
substantially the same terms and provisions as such Agreement for the balance of
the unexpired term thereof.
(d) If the Collateral Trustee, for the benefit of the Secured Parties,
or any Replacement Party is prohibited from curing any default by the
Partnership under any of the Agreements by any process, stay or injunctions
issued by any governmental authority or pursuant to any bankruptcy or insolvency
proceeding involving the Partnership, then the Secured Parties' Cure Period
shall be extended for the period of such prohibition.
SECTION 6. AGREEMENTS OF XXXXX R&M
6.1 Continuation of Performance. Xxxxx R&M agrees to continue the
---------------------------
performance of its obligations under each of the Agreements notwithstanding any
default by the Partnership under any Financing Document, or the exercise by any
Person of its rights under any Financing Document.
6.2 No Set-Offs, Deductions or Counterclaim. Xxxxx R&M agrees that no
---------------------------------------
amounts due to the Partnership under any of the Agreements shall be subject to
any reduction for any set-off, deduction, counterclaim or otherwise based upon
any claim against the Partnership. Xxxxx R&M
9
shall not assert any claim it may have by reason of the Partnership's default
under any of the Agreements as a defense to performance of its obligations under
any other agreement with the Partnership or any affiliate of the Partnership or
under this Consent. Nothing contained in this paragraph (c) shall waive Xxxxx
R&M's rights to enforce any such claim as a cause of action against the
Partnership.
6.3 Compliance with Instructions from Collateral Trustee. Xxxxx R&M
----------------------------------------------------
hereby agrees that it shall (i) comply with any and all written instructions
received from the Collateral Trustee pursuant to the Financing Documents, (ii)
treat such instructions as coming directly from the Partnership, (iii) disregard
any contradictory instructions received from the Partnership and (iv) with
effect as of the date of receipt of such instructions, direct to the Collateral
Trustee (with a copy to the Partnership) all communications and correspondence
arising out of or in connection with any of the Agreements.
6.4 Notices. All notices or other communications to be delivered to
-------
the Collateral Trustee or any of the other Secured Parties pursuant to this
Consent or any of the Agreements shall be delivered to the Collateral Trustee at
the address specified in Section 8 below and, in the case of Xxxxx R&M or the
Partnership, to each of these respective entities at the addresses specified in
Section 8 below.
6.5 Amendments of Agreements, Etc. Xxxxx R&M will not agree to any
-----------------------------
amendment, cancellation or early termination of any of the Agreements, and will
not assign its rights or obligations under any of the Agreements to a third
party, without the prior written consent of the Collateral Trustee.
6.6 Reservation of Rights. Xxxxx R&M expressly reserves all rights
---------------------
and remedies available at law or in equity under the Agreements, except to the
extent expressly modified in this Consent.
6.7 Copies of Notices to Partnership. Xxxxx R&M will deliver to the
--------------------------------
Collateral Trustee a copy of each notice given by it to the Partnership
concurrently with delivery of such notice to the Partnership.
SECTION 7. FURTHER ASSURANCES
The parties hereto hereby agree to provide to each other such
documents and to take such other action as may be reasonably necessary to
effectuate fully the purposes of this Consent.
SECTION 8. NOTICES
All notices and other communication under or in connection
with this Consent shall be in writing, shall refer on their face to the
applicable Agreement(s) (although failure to so refer shall not render any such
notice or communication ineffective), shall be sent by first class
10
registered or certified mail, by facsimile, by hand or by overnight courier
service and shall be addressed:
(a) if to Xxxxx R&M, in accordance with the Agreements;
(b) if to the Collateral Trustee, to
Bankers Trust Company
Corporate Trust & Agency Services
Four Albany Street, 4th Floor
New York, New York 10006
Attention: Xxxxx XxXxxxxxx
(c) if to the Partnership, in accordance with the Agreements; or
(d) to such other address as Xxxxx R&M, the Partnership or the
Collateral Trustee, as the case may be, may designated by prior written notice
to the other parties given pursuant hereto.
SECTION 9. MISCELLANEOUS
9.1 Separate Counterparts; Amendments, Waiver. This Consent may be
-----------------------------------------
executed in separate counterparts, each of which when so executed and delivered
shall be an original but all of such counterparts together shall constitute one
and the same instrument. Neither this Consent nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified except by an instrument in
writing signed by Xxxxx R&M, the Collateral Trustee and the Partnership.
9.2 Severability. Any provision of this Consent which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.3 Successors and Assigns. This Consent shall be binding upon and
----------------------
inure to the benefit of Xxxxx R&M, the Collateral Trustee, the other Secured
Parties, the Partnership and their respective successors and permitted assigns.
9.4 GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED
-------------
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9.5 Submission to Jurisdiction. Xxxxx R&M hereby irrevocably and
--------------------------
unconditionally: (i) submits for itself and its property in any legal action or
proceeding relating to this Consent, or for recognition and enforcement of any
judgment in respect thereof or the enforcement of an award rendered pursuant to
Section 11.6 of the SSA and Section 9.7 of the PPA, to the non-exclusive general
jurisdiction of the courts of the State of New York located in the Borough of
Manhattan,
11
City of New York and the Federal courts of the U.S. for the Southern District of
New York located in the Borough of Manhattan, City of New York; and, (ii)
notwithstanding anything to the contrary contained in the Agreements, consents
that any action or proceeding in connection with the Agreements may be brought
by the Collateral Trustee and the Financing Parties in such courts and waives
any objection that it may now or hereafter have to the venue of any such action
or proceeding in any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same.
9.6 Enforcement of Judgments. Xxxxx R&M agrees that a final judgment
------------------------
against it in any action, suit or proceeding brought in any New York State or
Federal court in accordance with paragraph (e) above shall be conclusive and may
be enforced in any jurisdiction by suit on the judgment, a certified copy of
which judgment shall be conclusive evidence thereof, or by any other means
provided by law.
9.7 No Implied Waiver. Failure or delay on the part of any party
-----------------
hereto to exercise a right under this Consent shall not operate as a waiver
thereof; nor shall any single or partial exercise of a right preclude any other
future exercise thereof.
9.8 Agent for Service of Process. Xxxxx R&M hereby irrevocably and
----------------------------
unconditionally appoints CT Corporation, with an office on the date hereof at
0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent, which shall
be a commercial process agent (the "Process Administrative Agent") to receive on
----------------------------
behalf of Xxxxx R&M and its property service of copies of the summons and
complaint and any other process which may be served in any such action or
proceeding in such New York State or Federal court. In any such action or
proceeding, such service may be made on Xxxxx R&M by delivering a copy of such
process to Xxxxx R&M in care of the Process Administrative Agent at the Process
Administrative Agent's above address and by depositing a copy of such process in
the mails by certified or registered air mail, addressed to Xxxxx R&M at its
address set forth beneath its signature hereto (such service to be effective
upon such receipt by the Process Administrative Agent and the depositing of such
process in the mails as aforesaid). Xxxxx R&M hereby further irrevocably and
unconditionally authorizes and directs such Process Administrative Agent to
accept such service on its behalf. If for any reason the Process Administrative
Agent shall cease to be available to act as such, Xxxxx R&M agrees to designate
a new agent in New York City on the terms and for the purposes of this provision
satisfactory to the Collateral Trustee. As an alternate method of service, Xxxxx
R&M irrevocably and unconditionally consents to the service of any and all
process in any such action or proceeding in such New York State or Federal court
by mailing of copies of such process to Xxxxx R&M by certified or registered air
mail at its address set forth in the Agreements, such service to become
effective 30 days after such mailing. Nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction. Xxxxx R&M hereby agrees that, to the
fullest extent permitted by applicable law, a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
XXXXX REFINING & MARKETING, INC.
By:
----------------------------------------
Name:
Title:
Acknowledged and agreed:
BANKERS TRUST COMPANY, as Collateral
Trustee for the benefit of the Secured
Parties
By:
------------------------------------
Name:
Title:
PORT XXXXXX XXXXX COMPANY L.P.
By: SABINE RIVER HOLDING CORP.,
as General Partner
By:
--------------------------------
Name:
Title:
Exhibit F
Xxxxx Complex Ground Lease
AUXILIARY FACILITIES
Processing Unit/Facility Refinery Designation
------------------------ --------------------
Saturated Gas Recovery Unit SRGU 1242
C4 Mercaptan Removal Unit MRU 7542
Amine Treating Unit ATU 7845
Wastewater Treatment Unit WWTU-8742
Sulfur Recovery Unit SRU 543/544
Sour Water Stripper SWS-8746
Air Compressor House 70 ACH
Water Treatment Plant Xx. 0 XXX Xx.0
Xxx Xxxxx XX-0000
XX Treating BBT 7543/4
Boiler House 15 BH-15
Power Plant @ BH-15 PP-4
Boiler House 16 BH-16
Power Plant @ BH-16 PP-2
Cooling Towers C.T. 100, 136A/B, 233, 244,
314, 316, 354, 360, 366, 372
Refinery Docks Docks
Crude Feed Tanks Tank Nos. 110, 111, 106, 107,
283, 284, 000
Xxxxxx Xxxx Tank Farm SRTF
Pump House 41 PH-41
Port Xxxxxx Products Station PAPS
Xxxxx Products Terminal Xxxxx Station
Pump House 138 (Butane Storage) PH-138
Processing Unit/Facility Refinery Designation
------------------------ --------------------
Rail Transportation Facilities ALL
Crude Oil Pipelines:
Sun Terminal to Xxxxx Sun Docks
Xxxxx to Refinery Xxxxx Station
Fannett Terminal Fannett LPG Storage
Hydrogen Gathering System HGS
Flare Systems Flare Nos. 1, 5, 7, 8, 12, 13,
15, B103, 17, 18, 19, 20
Control Houses/Systems All related to AVU, GFUs,
HFAU, SRU, DCE, SGRU, FCCU,
CRU, WTU, SRTF, NSTF
Maintenance Facilities All
Storehouse Facilities All
Laboratories Main lab and Knockengine lab
Office Buildings Nos. 36, 47, 54, 100, 200
Security Buildings/Radio Communications ALL
Fire Station and Equipment ALL
Neches Pump Station NPS-P.S. 390
Nitrogen Distribution Systems ALL except to Chevron Chemical
Company ("CCC")
Fuel Gas Distribution Systems ALL except to CCC
Steam Distribution Systems ALL except to CCC
Electrical Distribution Systems ALL except to CCC
Exhibit G
Xxxxx Complex Ground Lease
FORM OF MEMORANDUM OF LEASE
MEMORANDUM OF XXXXX COMPLEX GROUND LEASE AND
BLANKET EASEMENT AGREEMENT
--------------------------
THE STATE OF TEXAS (S)
(S) KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF JEFFERSON (S)
THAT, XXXXX REFINING & MARKETING, INC., a Delaware corporation
("Lessor"), and PORT XXXXXX XXXXX COMPANY L.P., a Delaware limited partnership
("Lessee"), have made and entered into that certain Xxxxx Complex Ground Lease
and Blanket Easement Agreement dated effective as of August 19, 1999 (the "Xxxxx
Complex Ground Lease") with respect to the 46.2189-acre tract of land (being a
47.7267-acre tract less and except a 1.5078-acre tract) described on Exhibit A
---------
attached hereto and made a part hereof for all purposes (the "Xxxxx Complex
Site").
1. Defined Terms. All defined terms used in this Memorandum shall have
-------------
the respective meanings provided for such defined terms in the Xxxxx Complex
Ground Lease.
2. Lease. On and subject to the terms, provisions and conditions of
-----
the Xxxxx Complex Ground Lease, Lessor has leased, let, demised and rented the
Xxxxx Complex Site to Lessee, and Lessee has leased and accepted the Xxxxx
Complex Site from Lessor, for an initial lease term (the "Xxxxx Complex Initial
Term") commencing on the date hereof and ending on August 19, 2029.
3. Options to Renew. The Xxxxx Complex Ground Lease provides that, on
----------------
and subject to the terms, provisions and conditions set forth therein, Lessee
shall have the right and option to extend the Xxxxx Complex Initial Term for up
to five (5) additional terms of five (5) years each (each, a "Xxxxx Complex
Renewal Term").
4. Appurtenant Easements. The grant by Lessor to Lessee under the
---------------------
Xxxxx Complex Ground Lease includes certain specified, nonexclusive easements,
appurtenant to the Xxxxx Complex Leasehold and for the Xxxxx Complex Ground
Lease Term, more particularly described as follows:
4.1 a nonexclusive easement on, over and under the Adjacent
Refinery Property, as more particularly described in Exhibit B attached
---------
hereto and made a part hereof for all purposes, for the purpose of
ingress and egress to and from the Xxxxx Complex Site, for the
construction and maintenance of interconnection pipes, wiring,
2
other pipelines and communication and utility lines, and for any other
purpose as may be necessary or desirable in connection with the
construction, ownership and operation of the Xxxxx Complex, or the
operation of the Heavy Oil Processing Facility or any of the Auxiliary
Facilities; and
4.2 a nonexclusive easement on that portion of the dock
described in Exhibit C attached hereto and made a part hereof for all
---------
purposes, for the purpose of unloading cargoes of crude oil and other
feedstocks and loading products of the Xxxxx Complex and for the
construction and maintenance of pipes, pumps, valves, gauges and other
equipment in connection with such loading and unloading.
5. Controlling Document. This Memorandum has been executed by Lessor
--------------------
and Lessee pursuant to the provisions of the Xxxxx Complex Ground Lease, for
recordation in the Official Public Records of Real Property of Jefferson County,
Texas, and it is the intent of this Memorandum to give record notice that Lessor
and Lessee have entered into the Xxxxx Complex Ground Lease for the Xxxxx
Complex. It is not the purpose of this Memorandum to amend, modify, eliminate,
or add to the provisions of such Xxxxx Complex Ground Lease. In the event and to
the extent of any conflict between the terms of this Memorandum and the terms of
the Xxxxx Complex Ground Lease, the terms of the Xxxxx Complex Ground Lease
shall supersede and control.
6. Successors and Assigns. The rights and obligations of the parties
----------------------
to the Xxxxx Complex Ground Lease shall be binding upon, and shall inure to the
benefit of, the respective permitted successors and assigns of the parties (but
without affecting any restrictions on assignment and subletting set forth in the
Xxxxx Complex Ground Lease).
IN WITNESS WHEREOF, Lessor and Lessee have executed this Memorandum of
Xxxxx Complex Ground Lease and Blanket Easement Agreement to be effective as of
the date first set forth above.
LESSEE: LESSOR:
PORT XXXXXX XXXXX COMPANY L.P., XXXXX REFINING & MARKETING,
a Delaware limited partnership INC., a Delaware corporation
By: Sabine River Holding Corp., a
Delaware corporation, its sole By:
general partner Name:
Title:
By:
Name:
Title:
3
STATE OF (S)
(S)
COUNTY OF (S)
This instrument was acknowledged before me on August ____, 1999, by
____________________________________________, the _________________________ of
XXXXX REFINING & MARKETING, INC., a Delaware corporation, on behalf of said
corporation.
Notary Public, State of
STATE OF (S)
(S)
COUNTY OF (S)
This instrument was acknowledged before me on August ____, 1999, by
________________________________, the ___________________________ of Sabine
River Holding Corp., a Delaware corporation and the sole general partner of PORT
XXXXXX XXXXX COMPANY L.P., a Delaware limited partnership, on behalf of said
limited partnership.
Notary Public, State of
List of Exhibits:
----------------
Exhibit A - Description of the Xxxxx Complex Site
---------
Exhibit B - Description of the Adjacent Refinery Property
---------
Exhibit C - Description of the Dock
---------
4
EXHIBIT A
TO
MEMORANDUM OF XXXXX COMPLEX GROUND LEASE
AND BLANKET EASEMENT AGREEMENT
------------------------------
Description of the Xxxxx Complex Site
46.2189 acres of land (being a 47.7267-acre tract less and except a 1.5078-acre
tract) out of the X. X. Xxxxxx Survey, Abstract No. 61, Jefferson County, Texas,
and being all of Lots 1-4 of X.X.X.X SUBDIVISION, a Subdivision in Jefferson
County, Texas, according to the map or plat thereof recorded in Volume 16, Page
169, of the Map Records of Jefferson County, Texas.
5
EXHIBIT B
TO
MEMORANDUM OF XXXXX COMPLEX GROUND LEASE
AND BLANKET EASEMENT AGREEMENT
------------------------------
Description of the Adjacent Refinery Property
6
EXHIBIT C
TO
MEMORANDUM OF XXXXX COMPLEX GROUND LEASE
AND BLANKET EASEMENT AGREEMENT
------------------------------
Description of the Dock