AMENDMENT NO. 5 TO NOTE PURCHASE AGREEMENT
Exhibit 4.1
AMENDMENT NO. 5 TO NOTE PURCHASE AGREEMENT
THIS AMENDMENT NO. 5 TO NOTE PURCHASE AGREEMENT, dated as of December 23, 2013 but effective as of the Effective Date (as defined in Section 2 hereof) (this “Amendment”), to the Note Purchase Agreement dated as of June 19, 2012, as amended by Amendment No. 1 thereto dated as of January 15, 2013, Amendment No. 2 thereto dated as of May 8, 2013, Amendment No. 3 thereto dated as of September 30, 2013, and Amendment No. 4 thereto dated as of November 5, 2013 (such note purchase agreement, as so amended, being referred to herein as the “Existing Note Purchase Agreement” and as the same shall be further amended hereby, the “Note Purchase Agreement”), is among NGL Energy Partners LP, a Delaware limited partnership (the “Company”), the Guarantors (solely with respect to Section 5(c) hereof) and the holders of Notes listed on the signature pages hereto (collectively, the “Noteholders”).
RECITALS:
A. The Company and the Purchasers party thereto have previously entered into the Existing Note Purchase Agreement. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Existing Note Purchase Agreement.
B. The Guarantors entered into that certain Guaranty Agreement dated as of June 19, 2012 (as heretofore amended, supplemented or otherwise modified, the “Guaranty Agreement”).
C. The Company has requested certain amendments to the Existing Note Purchase Agreement as more fully described herein below.
D. The Noteholders have agreed to such amendments, subject to the performance and observance in full of each of the covenants, terms and conditions, and in reliance upon all of the representations and warranties of the Company, set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants, terms, conditions, representations and warranties herein contained, the parties hereto hereby agree as follows:
Section 1. AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT. Subject to the covenants, terms and conditions set forth herein and in reliance upon the representations and warranties of the Company herein contained, the Company and the Noteholders hereby agree to amend in their entirety Sections 9.12(b) and 9.12(c) of the Existing Note Purchase Agreement, effective as of the Effective Date, to read as follows:
(b) (i) Keep the Risk Management Policy in full force and effect, and in accordance therewith, conduct its business in compliance with the Risk Management Policy, and (ii) ensure that the Note Parties’ Net Open Positions at no time exceed (A) 350,000 barrels or barrel equivalents of Crude Oil, (B) 450,000 barrels of Natural Gas Liquids or (C) 1,500,000 MMBTUs of Natural Gas.
(c) Provide written notice to the holders of Notes of any material amendment, modification, supplement or other change to the Risk Management Policy not later than 10 Business Days after any such amendment, modification, supplement or other change; provided that changes in personnel reflected in the Risk Management Policy will not be deemed “material” for purposes of this Section 9.12(c) and provided further that no changes shall be made by the Note Parties that would have the effect of causing the Note Parties’ Net Open Positions to exceed (i) 350,000 barrels or barrel equivalents of Crude Oil (ii) 450,000 barrels of Natural Gas Liquids or (iii) 1,500,000 MMBTUs of Natural Gas.
Section 2. EFFECTIVENESS OF AMENDMENTS. The amendments set forth in Section 1 of this Amendment shall become effective (the date of such effectiveness being referred to herein as the “Effective Date”) upon the satisfaction of each of the conditions provided immediately below in this Section 2 (with each of the documents referred to below being in form and substance satisfactory to the Required Holders and in full force and effect):
(a) Execution and Delivery of this Amendment. The Noteholders shall have received a copy of this Amendment duly executed and delivered by the Company and the Guarantors, and by the Noteholders constituting the Required Holders.
(b) Representations and Warranties. Each of the representations and warranties of the Company made in this Amendment shall be true and correct on and as of the Effective Date.
(c) Amendment to Credit Agreement. The Noteholders shall have received a copy of an amendment in respect of the Credit Agreement, dated on or prior to the date hereof, in form and substance satisfactory to the Required Holders and executed and delivered by the Note Parties, the Administrative Agent and the Required Lenders (as defined in the Credit Agreement).
(d) Proceedings and Documents. All corporate and other proceedings pertaining directly to this Amendment and all documents and instruments directly incident to this Amendment shall be satisfactory to the Required Holders and their special counsel, and the Noteholders and their special counsel shall have received all such counterpart originals or certified or other copies of such documents as the Required Holders or such special counsel may reasonably request.
Section 3. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. To induce the Noteholders to enter into this Amendment, the Company (by delivery of its counterpart to this Amendment) hereby (i) represents and warrants to the Noteholders that after giving effect to this Amendment and the contemporaneous amendments to the Credit Agreement, its representations and warranties contained in the Note Purchase Agreement are true and correct in all material respects (except for those representations and warranties qualified by “materiality,” “Material Adverse Effect” or a like qualification, which shall be correct in all respects) on and as of the Effective Date with the same effect as though made on and as of the Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in all material respects (except for those representations and warranties qualified by “materiality,” “Material Adverse Effect” or a
like qualification, which were true in all respects) as of such earlier date), (ii) represents and warrants to the Noteholders that in connection with this Amendment and all other documents delivered in connection herewith it (x) has the requisite power and authority to make, deliver and perform the same, (y) has taken all necessary limited partnership action to authorize its execution, delivery and performance of the same, and (z) has duly executed and delivered the same and (iii) certifies that no Default or Event of Default exists under any of the Note Documents (both immediately before and after giving effect to this Amendment) or will result from the making of this Amendment.
Section 4. EXPENSES. The Company will promptly (and in any event within thirty (30) days of receiving any statement or invoice therefor) pay all reasonable out-of-pocket expenses and costs incurred by the Noteholders relating to this Amendment, including, but not limited to, the reasonable fees and disbursements of Xxxxx Xxxxx L.L.P., incurred in connection with the preparation, negotiation and delivery of this Amendment, and all other related documentation. This Section 4 shall not be construed to limit the Company’s obligations under Section 15.1 of the Existing Note Purchase Agreement.
Section 5. MISCELLANEOUS.
(a) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, the parties hereto. Delivery of this Amendment may be made by telecopy or electronic transmission of a duly executed counterpart copy hereof; provided that any such delivery by electronic transmission shall be effective only if transmitted in .pdf format, .tif format or other format in which the text is not readily modifiable by any recipient thereof.
(c) Affirmation of Obligations. Notwithstanding that such consent is not required under the Guaranty Agreement, or any of the other Note Documents to which it is a party, each of the Guarantors consents to the execution and delivery of this Amendment by the parties hereto. As a material inducement to the undersigned to amend the Existing Note Purchase Agreement, each of the Guarantors (i) acknowledges and confirms the continuing existence, validity and effectiveness of the Guaranty Agreement and each of the other Note Documents to which it is a party and (ii) agrees that the execution, delivery and performance of this Amendment shall not in any way release, diminish, impair, reduce or otherwise affect its obligations thereunder.
(d) Note Document. This Amendment is a Note Document and all of the provisions of the Note Purchase Agreement which apply to Note Documents apply hereto.
(Remainder of Page Intentionally Left Blank; Signature Pages Follow)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers effective as of the Effective Date.
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By: NGL Energy Holdings LLC, | ||
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its general partner | ||
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By: |
/s/ Xxxxxx X. Xxxxxxx | |
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Name: |
Xxxxxx X. Xxxxxxxx | |
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Title: |
Chief Financial Officer and Treasurer | |
Signature Page to Amendment No. 5 to Note Purchase Agreement
The foregoing is hereby agreed to as of the date hereof:
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NOTEHOLDERS: |
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THE PRUDENTIAL INSURANCE COMPANY |
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OF AMERICA, as a Noteholder |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President |
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PRUCO LIFE INSURANCE COMPANY, |
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as a Noteholder |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Assistant Vice President |
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UNIVERSAL PRUDENTIAL ARIZONA |
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REINSURANCE COMPANY, as a Noteholder |
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By: |
Prudential Investment Management, Inc., |
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as investment manager |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President |
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PRUDENTIAL ARIZONA REINSURANCE |
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CAPTIVE COMPANY, as a Noteholder |
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By: |
Prudential Investment Management, Inc., |
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as investment manager |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President |
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Signature Page to Amendment No. 5 to Note Purchase Agreement
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PRUDENTIAL ARIZONA REINSURANCE |
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UNIVERSAL COMPANY, as a Noteholder |
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By: |
Prudential Investment Management, Inc., |
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as investment manager |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President |
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PRUDENTIAL RETIREMENT INSURANCE AND |
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ANNUITY COMPANY, as a Noteholder |
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By: |
Prudential Investment Management, Inc., |
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as investment manager |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Vice President |
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Signature Page to Amendment No. 5 to Note Purchase Agreement
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AMERICAN GENERAL LIFE INSURANCE COMPANY (successor by merger to | ||
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AMERICAN GENERAL LIFE AND ACCIDENT INSURANCE COMPANY) | |
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AMERICAN GENERAL LIFE INSURANCE COMPANY (successor by merger to | ||
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AMERICAN GENERAL LIFE INSURANCE COMPANY OF DELAWARE) | |
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AMERICAN GENERAL LIFE INSURANCE COMPANY (successor by merger to | ||
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SUNAMERICA ANNUITY AND LIFE ASSURANCE COMPANY) | |
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THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK | ||
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COMMERCE AND INDUSTRY INSURANCE COMPANY | ||
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NEW HAMPSHIRE INSURANCE COMPANY | ||
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CHARTIS PROPERTY CASUALTY COMPANY | ||
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By: |
AIG ASSET MANAGEMENT (U.S.), LLC, Investment Adviser | |
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By: |
/s/ Xxxxxx X. Xxxxxxxx |
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Name: |
Xxxxxx X. Xxxxxxxx |
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Title: |
Vice President |
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Signature Page to Amendment No. 5 to Note Purchase Agreement
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TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF | ||
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AMERICA, as a Noteholder |
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By: |
/s/ Xxxxxx X. Leicester |
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Name: |
Xxxxxx X. Leicester |
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Title: |
Director |
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Signature Page to Amendment No. 5 to Note Purchase Agreement
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SUN LIFE ASSURANCE COMPANY OF CANADA, |
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as a Noteholder |
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By: |
/s/ Xxxxx Xxxxxxxx |
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Name: |
Xxxxx Xxxxxxxx |
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Title: |
Senior Managing Director, Private Fixed Income |
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By: |
/s/ Xxxxxxx Xxxxx |
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Name: |
Xxxxxxx Xxxxx |
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Title: |
Managing Director, Private Securitization Finance |
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Private Fixed Income |
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Signature Page to Amendment No. 5 to Note Purchase Agreement
Agreed to and acknowledged by the undersigned solely with respect to Section 5(c) hereof:
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GUARANTORS: | |
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NGL ENERGY OPERATING LLC | |
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NGL SUPPLY, LLC | |
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HICKSGAS, LLC | |
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NGL SUPPLY RETAIL, LLC | |
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NGL SUPPLY WHOLESALE, LLC | |
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NGL SUPPLY TERMINAL COMPANY, LLC | |
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XXXXXXXX PROPANE, LLC | |
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NGL-NE REAL ESTATE, LLC | |
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NGL-MA REAL ESTATE, LLC | |
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NGL-MA, LLC | |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: |
Xxxxxx X. Xxxxxxxx |
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Title: |
Chief Financial Officer and Treasurer |
Signature Page to Amendment No. 5 to Note Purchase Agreement
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HIGH SIERRA ENERGY, LP (by High Sierra Energy GP, LLC, its general partner) | |
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GREENSBURG OILFIELD, LLC | |
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ANTICLINE DISPOSAL, LLC | |
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HIGH SIERRA SERTCO, LLC | |
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HIGH SIERRA ENERGY MARKETING, LLC | |
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CENTENNIAL ENERGY, LLC | |
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CENTENNIAL GAS LIQUIDS ULC | |
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HIGH SIERRA TRANSPORTATION, LLC | |
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HIGH SIERRA CRUDE OIL & MARKETING, LLC | |
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HIGH SIERRA WATER SERVICES, LLC | |
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XXXXXXX OIL BUYERS, INC. | |
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HIGH SIERRA MARINE, LLC | |
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HIGH SIERRA WATER-EAGLE FORD, LLC | |
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PETRO SOURCE TERMINALS, LLC | |
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PECOS GATHERING & MARKETING, L.L.C. | |
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BLACK HAWK GATHERING, L.L.C. | |
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MIDSTREAM OPERATIONS L.L.C. | |
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HIGH SIERRA ENERGY OPERATING, LLC | |
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HIGH SIERRA COMPRESSION, LLC | |
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HIGH SIERRA WATER HOLDINGS, LLC | |
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HIGH SIERRA XXXXXX SWD, LLC | |
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HIGH SIERRA XXXXX SWD, LLC | |
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HIGH SIERRA XXXXXXXX SWD, LLC | |
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HIGH SIERRA CANADA HOLDINGS, LLC | |
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HIGH SIERRA COTULLA SWD, LLC | |
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HIGH SIERRA SWD OPERATOR, LLC | |
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HIGH SIERRA SWD SHARED SERVICES, LLC | |
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HIGH SIERRA WATER PERMIAN, LLC | |
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LOTUS OILFIELD SERVICES, L.L.C. | |
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COASTAL PLAINS DISPOSAL #1, L.L.C. | |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: |
Xxxxxx X. Xxxxxxxx |
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Title: |
Chief Financial Officer |
Signature Page to Amendment No. 5 to Note Purchase Agreement
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GAVILON, LLC, a Delaware limited liability company; | |
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GAVILON ENERGY HOLDINGS I, LLC, a Delaware limited liability company; | |
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GAVILON ENERGY HOLDINGS II, LLC, a Delaware limited liability company; | |
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GAVILON ENERGY HOLDINGS III, LLC, a Delaware limited liability company; | |
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GAVILON ENERGY HOLDINGS IV, LLC, a Delaware limited liability company; | |
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GAVILON MIDSTREAM ENERGY, LLC, a Delaware limited liability company; | |
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GAVILON OIL TANKS AND TERMINALS, LLC, an Oklahoma limited liability company; | |
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GAVILON PIPELINE AND STORAGE, LLC, an Oklahoma limited liability company; | |
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GAVILON SHIPPING AND TRADING, LLC, a Delaware limited liability company; | |
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GAVILON ENERGY TRANSPORTATION HOLDCO, LLC, a Delaware limited liability company; | |
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GAVILON ENERGY LOGISTICS, LLC, a Delaware limited liability company; | |
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GAVILON ENERGY TRANSPORT SERVICES, LLC, a Delaware limited liability company | |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: |
Xxxxxx X. Xxxxxxxx |
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Title: |
Chief Financial Officer |
Signature Page to Amendment No. 5 to Note Purchase Agreement
