FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "FIRST AMENDMENT") is
entered into effective as of December 23, 2003, among XXXXXX OPERATING
PARTNERSHIP L.P., a Delaware limited partnership, as borrower (the "BORROWER"),
XXXXXX MIDSTREAM PARTNERS L.P. (the "MLP"), a Delaware limited partnership, and
XXXXXX OPERATING GP LLC, a Delaware limited liability company, as guarantors,
the financial institutions parties to the Credit Agreement (collectively, the
"LENDERS"), and ROYAL BANK OF CANADA, as administrative agent (the
"ADMINISTRATIVE AGENT") and collateral agent for the Lenders and as L/C Issuer,
Swing Line Lender and a Lender.
WHEREAS, the Borrower, the MLP, the Administrative Agent and the Lenders
are parties to that certain Credit Agreement dated as of November 6, 2002 (the
"CREDIT AGREEMENT");
WHEREAS, the Borrower has entered into that certain Asset Purchase
Agreement (as amended, supplemented, restated or otherwise modified prior to the
date hereof, the "TESORO ASSET PURCHASE AGREEMENT") dated as of October 27, 2003
by and between the Borrower, the MLP and Tesoro Marine Services, L.L.C.
("Tesoro"), pursuant to which the Borrower has agreed to purchase from Tesoro
certain petroleum distribution and terminalling assets, vessels and related
assets (collectively, the "ACQUIRED ASSETS") (the acquisition of the Acquired
Assets contemplated by the Tesoro Asset Purchase Agreement is herein called the
"TESORO ACQUISITION"); and
WHEREAS, the Borrower has requested that the Lenders agree to amend
certain provisions of the Credit Agreement in order to facilitate the Tesoro
Acquisition, which include, among other things, an increase in the amount of the
Acquisition Subfacility Commitment by $20,000,000 in order to finance the Tesoro
Acquisition.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Definitions. Unless otherwise defined in this First Amendment,
terms used in this First Amendment which are defined in the Credit Agreement
shall have the meanings assigned to such terms in the Credit Agreement. The
interpretive provisions set forth in SECTION 1.02 of the Credit Agreement shall
apply to this First Amendment.
SECTION 2. Amendments to the Credit Agreement. Subject to satisfaction of
the conditions precedent set forth in SECTION 3 of this First Amendment, the
Credit Agreement is hereby amended as follows:
(a) From and after the First Amendment Effective Date (defined below), (i)
the Acquisition Subfacility Commitment under the Credit Agreement shall be
increased from $10,000,000 to $30,000,000, and (ii) the Committed Sum of each
Lender shall be as set forth on SCHEDULE 2.01 attached hereto as APPENDIX A.
(b) The following definitions are inserted alphabetically into SECTION
1.01 of the Credit Agreement:
First Amendment means that certain First Amendment to Credit
Agreement dated as of the First Amendment Effective Date among the
Borrower, the MLP, Xxxxxx Operating GP, LLC, the Administrative Agent, the
Collateral Agent and the Lenders.
First Amendment Effective Date means December 23, 2003.
Minimum Fixed Asset Coverage Percentage means 150%; provided,
however, from and after the date that is twelve months after the First
Amendment Effective Date, the term Minimum Fixed Asset Coverage Percentage
shall mean 175%.
Non-Offset Agreement means that certain Non-Offset Agreement dated
as of December 23, 2003, among the Borrower, the MLP, Xxxxxx Operating GP
LLC, Xxxxxx Midstream GP LLC, Xxxxxx Resource and the Subsidiaries of
Xxxxxx Resource therein named.
OLV has the meaning set forth in Section 7.15(e).
Super Majority Lenders means (a) on any date of determination prior
to the Maturity Date, those Lenders holding more than 75% of the sum of
(i) the Revolver Commitment plus (ii) the Term Loan Principal Debt; and
(c) on any date of determination on or after the Maturity Date, those
Lenders holding more than 75% of the Outstanding Amount of Loans.
Tesoro Acquisition means the acquisition by the Borrower of the
petroleum distribution and terminalling assets, vessels and related assets
from Tesoro Marine Services, L.L.C. pursuant to the Asset Purchase
Agreement dated as of October 27, 2003, by and between Tesoro Marine
Services, L.L.C., the Borrower and the MLP, as amended, supplemented,
restated or otherwise modified from time to time.
(c) The definition of "Acquisition Subfacility Commitment" in SECTION 1.01
of the Credit Agreement is hereby amended by replacing the term "$10,000,000"
set forth therein with the term "$30,000,000".
(d) The definition of "Applicable Rate" in SECTION 1.01 of the Credit
Agreement is hereby amended by adding the following sentence to the end thereof:
"Notwithstanding the foregoing, the Applicable Rate shall be
adjusted on the First Amendment Effective Date and shall be set at the
higher of (i) the Applicable Rate set forth in the Pricing Grid above that
corresponds to the Pro Forma Leverage Ratio (defined below in this
paragraph), and (ii) Pricing Level 3. Such adjusted Applicable Rate shall
remain in effect until the Borrower delivers a Compliance Certificate
pursuant to Section 6.01(b) for the year ending December 31, 2003, and on
the first day of the fiscal quarter following delivery of such Compliance
Certificate, the Applicable Rate will be adjusted based on the Leverage
Ratio set forth in such Compliance Certificate, as set forth in the
preceding paragraph. As used in this paragraph, "Pro Forma Leverage Ratio"
means the Leverage Ratio based on the pro forma financial statements
delivered by the Borrower on the First Amendment Effective Date, which pro
forma financial statements shall give effect to the Tesoro Acquisition and
the making of the Loans on the First Amendment Effective Date and shall be
prepared on a pro forma basis (in a manner satisfactory to the
Administrative Agent) as of the end of the fiscal quarter most recently
ended. In the event the Borrower fails to deliver a Compliance Certificate
in accordance with Section 6.01(b) for the year ended December 31, 2003,
then the Applicable Rate shall be adjusted in accordance with the rules
set forth in clauses (a), (b) and (c) of the preceding paragraph."
(e) The definition of "Capital Expenditure" in SECTION 1.01 of the Credit
Agreement is hereby amended by adding the following sentence to the end thereof:
"For the avoidance of doubt, as used in this Credit Agreement, the
terms Capital Expenditure, capital expenditure and expenditure shall not
include expenditures for Acquisitions."
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(f) The definition of "Material Agreements" in SECTION 1.01 of the Credit
Agreement is hereby amended by adding the following new clauses after clause (p)
thereof and renaming the existing clause (q) and (r) accordingly:
"(q) Marine Lubricants Delivery Agency & Transportation Agreement by and
between Chevron International Oil Company, Inc. and Tesoro Petroleum
Distributing Company dated November 1, 1993,
(r) Marine Products Handling Agreement by and between Texaco Fuel and
Marine Marketing and Tesoro Petroleum Distributing Co. dated January 1,
1993,
(s) Lubricants Reseller Contract by and between Shell Oil Company and
Tesoro Petroleum Distributing Company dated December 1, 1990,
(t) Marine Lubricants Distributor Agreement by and between ExxonMobil Oil
Corporation and Tesoro Marine Services, LLC dated July 1, 2001,
(u) Lubrication Marketer Agreement by and between Chevron Products
Company, a division of Chevron U.S.A. Inc. and Tesoro Marine Services,
Inc. dated August 1, 2003,
(v) Lease Agreement, Galveston, Texas (Terminal #1) by and between BJ
Services Company, U.S.A. and Tesoro Coastwide Services Company dated
September 1, 1997,
(w) Lease Agreement Harbor Island, Texas by and between BJ Services
Company, U.S.A. and Tesoro Coastwide Services Company dated September 1,
1997,
(x) Warehousing and Service Agreement - Freeport / Harbor / Island /
Sabine Pass / Galveston / Port X'Xxxxxx by and between M-I Drilling Fluids
L.L.C. and Coastwide Marine Services, Inc. dated April 10, 1995,
(y) Continuing Contract No. C-33146 by and between Exxon Company, USA and
Tesoro Marine Services, Inc. dated December 17, 1990,
(z) Service Agreement by and between Newpark Drilling Fluids and Tesoro
Coastwide Service Company dated September 19, 1997,
(aa) Tank Farm Operating Agreement between Chevron U.S.A. Production
Company and Tesoro Coastwide Services Company dated effective April 25,
1997,
(bb) Transportation Services Agreement between the Borrower and Midstream
Fuel Service LLC dated as of December 23, 2003,
(cc) Terminal Services Agreement between the Borrower and Midstream Fuel
Service LLC dated as of December 23, 2003,"
(g) Clause (a) of the definition of "Permitted Acquisition" in SECTION
1.01 of the Credit Agreement is hereby amended to read in its entirety as
follows:
"(a) (i) in the case of each Investment, such Investment results in
the Borrower's ownership of a Subsidiary (or such Investment is an
Investment in an existing Subsidiary) and the
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Borrower shall have complied with the requirements of Sections 6.15 and
6.18 as of the date of such Investment, and (ii) in the case of each
Acquisition, the Borrower or applicable Subsidiary consummating the
Acquisition shall have complied with Section 6.18 as of the date of such
Acquisition;"
(H) SECTION 6.18(a) of the Credit Agreement is hereby amended to read in
its entirety as follows:
"(a) The Borrower and the MLP shall cause the MLP and each
Subsidiary of the Borrower and the MLP to take such actions and to execute
and deliver such documents and instruments as the Administrative Agent
shall request pursuant to this Section 6.18(a) to ensure that the
Collateral Agent on behalf of the Lenders shall, at all times, have
currently effective duly executed Loan Documents granting Liens and
security interests in (i) not less than 80% (based on the OLV) of the
Vessels and the other Fixed Assets, (ii), all accounts receivable,
inventory, equipment, general intangibles, and deposit accounts, and (iii)
all other material assets and properties of the MLP, the Borrower, and
their Subsidiaries, including all capital stock, partnership, joint
venture, membership interests, or other equity interests; provided that,
(A) equity interests in XX Xxxxxx Sulphur will not be pledged until (1)
the XX Xxxxxx Sulphur Organization Documents no longer prohibit the MLP,
the Borrower, or their Subsidiaries from granting a Lien and security
interest in equity interests of XX Xxxxxx Sulphur or (2) Xxxxxx Resource,
its Subsidiaries, or Affiliates own all of the equity interests in XX
Xxxxxx Sulphur and XX Xxxxxx Sulphur General Partner, (B) general
partnership interests in the Borrower shall not be pledged by the Borrower
General Partner until (1) such time as the Borrower General Partner
Organization Documents no longer prohibit the Borrower General Partner
from granting a Lien and security interest in the general partnership
interests of the Borrower and (2) such pledge shall not result in any
material adverse tax consequences to the MLP or its Subsidiaries, and (C)
if the grant of a Lien on any specific lease, contract right, governmental
license or approval or similar property (collectively, the "Non-Pledgeable
Collateral") is expressly prohibited by, or would cause a default under or
termination, avoidance or forfeiture of, any lease, contract, license or
Law to which the MLP, the Borrower, or any of their Subsidiaries is a
party or is subject, then the Loan Parties shall not be required to xxxxx
x Xxxx to the Collateral Agent on such Non-Pledgeable Collateral; and
provided further, that upon the request of the Administrative Agent, the
Loan Parties agree to use commercially reasonable efforts to obtain any
consents, authorizations, waivers, or other approvals that may be required
in order to xxxxx x Xxxx on Non-Pledgeable Collateral specifically
requested by the Administrative Agent ("Required Approvals"). Subject to
the preceding provisions of this Section 6.18(a), the Borrower and the MLP
agree that upon the written request of the Administrative Agent, the MLP,
the Borrower and/or their Subsidiaries, as applicable, shall, within 30
days from and after receipt of such written request, execute and deliver
to the Administrative Agent supplemental Loan Documents, in form and
substance satisfactory to the Administrative Agent and its counsel,
securing payment of the Notes and the other Obligations and covering
additional assets and properties not then encumbered by any Loan Documents
(together with such other information, as may be requested by the
Administrative Agent, each of which shall be in form and substance
reasonably acceptable to the Administrative Agent) such that the
Administrative Agent shall have received currently effective duly executed
and perfected Collateral Documents encumbering substantially all of the
assets of the MLP, the Borrower and each of their respective Subsidiaries
as required by this Section 6.18(a) (it being acknowledged and agreed that
if the Loan Parties cannot obtain all Required Approvals in respect of any
specific Non-Pledgeable Collateral using commercially reasonable efforts,
then the Loan Parties shall not be required to xxxxx x Xxxx on such
Non-Pledgeable Collateral to the Collateral Agent). Notwithstanding
anything to the contrary set forth herein, no lease, contract or license
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between (x) the MLP, the Borrower or any of their Subsidiaries and (y)
Xxxxxx Resource or any of its Subsidiaries shall prohibit a Lien in favor
of, or foreclosure by, the Collateral Agent thereon."
(I) SECTION 6.18(c) of the Credit Agreement is hereby amended by deleting
in its entirety the second sentence thereof.
(J) SECTION 7.01 of the Credit Agreement is hereby amended by (i) deleting
the word "and" at the end of subsection (p) thereof, (ii) deleting the period at
the end of subsection (q) thereof and adding "; and" at the end of such
subsection, and (iii) adding the following subsection (r) thereto:
"(r) Liens encumbering the Acquired Assets (as such term is defined
in the First Amendment) which, under the terms of the First Amendment, are
expressly permitted to encumber such Acquired Assets.
(k) The following is hereby added as the last sentence of SECTION 7.11 of
the Credit Agreement:
"Notwithstanding the foregoing, the Lenders hereby authorize the
MLP, the Borrower and their respective Subsidiaries to enter into the
Non-Offset Agreement."
(l) SECTION 7.15(c) of the Credit Agreement (Minimum Net Worth) is hereby
amended by replacing "$35,000,000" with "$40,000,000".
(m) SECTION 7.15(e) of the Credit Agreement (Fixed Asset Coverage) is
hereby amended as follows: (A) the phrase "subject to the Collateral Documents"
is deleted and (B) each time the term "200%" appears, it is deleted and replaced
by the term "the Minimum Fixed Asset Coverage Percentage".
(n) SECTION 10.01(a) of the Credit Agreement is hereby amended by revising
the clause "provided, however," to read as follows: "provided however, except as
provided in Section 10.01(b),".
(o) SECTION 10.01(b) of the Credit Agreement is hereby amended by adding
the following sentence to the end thereof: "Any amendment to the definition of
"Minimum Fixed Asset Coverage Percentage" must be by an instrument in writing
executed by the Borrower, the Administrative Agent and the Super Majority
Lenders."
(p) SCHEDULE 2.01 to the Credit Agreement is hereby replaced in its
entirety by a new SCHEDULE 2.01 in the form attached hereto as APPENDIX A.
(q) SCHEDULE 5.21 to the Credit Agreement is hereby replaced in its
entirety by a new SCHEDULE 5.21 in the form attached hereto as APPENDIX B.
SECTION 3. Conditions of Effectiveness. The amendments to the Credit
Agreement set forth in SECTION 2 of this First Amendment shall not be effective
until the date (such date, the "FIRST AMENDMENT EFFECTIVE Date") each of the
following conditions precedent has been satisfied in full:
(a) The Administrative Agent shall have received the following:
(i) a counterpart of this First Amendment executed by each of the
parties hereto (which may be by telecopy transmission);
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(ii) Notes executed by the Borrower in favor of those Lenders
increasing their Commitments hereunder and requesting such Notes, each in
a principal amount equal to the increase in each such Lender's Committed
Sum;
(iii) from each Loan Party, such certificates of secretary,
assistant secretary, manager, or general partner, as applicable, as the
Administrative Agent may require, certifying (A) resolutions authorizing
the execution and performance of this First Amendment and the other Loan
Documents which such Person is executing in connection herewith, (B) the
incumbency and signature of the officer executing such documents, and (C)
that there has been no change in such Person's Organizational Documents
since November 6, 2002 (or, if there has been a change, attaching a copy
thereof);
(iv) a copy of the Tesoro Asset Purchase Agreement, and schedules
and exhibits thereto (as supplemented or amended prior to the First
Amendment Effective Date), certified by the Borrower as true and complete,
in form and substance reasonably satisfactory to the Administrative Agent;
(v) executed counterparts of the Mortgages and Security Agreements
granting the Administrative Agent a first priority lien (subject only to
Permitted Liens and, with respect to the Galveston Assets (defined below)
and the Harbor Island Assets (defined below), the title exceptions and
qualifications referenced in SECTION 3(a)(xiii) below) on (A) the Vessels
(as defined in the Tesoro Asset Purchase Agreement) (the "TESORO
VESSELS"), (b) other than the water bottom lease, coastal easements, and
lease described on SCHEDULE 4(b) attached hereto, the Acquired Assets
located on Pelican Island, Galveston County, Texas (the "GALVESTON
ASSETS") and the Acquired Assets located on Harbor Island, Nueces County,
Texas (the "HARBOR ISLAND ASSETS"), (C) two fertilizer plants located in
Ector County, Texas, and one fertilizer plant located in Xxxx County,
Texas (the "PLANTS"), (D) the assets acquired by the Borrower from Cross
Oil Refining & Marketing, Inc. in October, 2003, and described on SCHEDULE
3(a)(v)(D) hereto (collectively, the "CROSS ASSETS"), and (E) the vessels
acquired by the Borrower from Cenac Towing Company, Inc. in October, 2003,
and described on SCHEDULE 3(a)(v)(E) hereto (collectively, the "CENAC
VESSELS") (the Tesoro Vessels, the Galveston Assets, the Harbor Island
Assets, the Plants, the Cross Assets, and the Cenac Vessels are
collectively referred to herein as the "MORTGAGED ASSETS"), each of which
shall be in form and substance satisfactory to the Administrative Agent
and shall have been duly authorized, executed and delivered by each of the
parties thereto;
(vi) evidence that all recordings or filings of UCC financing
statements, the Mortgages and such other documents as may be reasonably
deemed necessary by the Administrative Agent to perfect the rights, titles
and interests of the Lenders and the Administrative Agent in the Mortgaged
Assets shall have been made, or arrangements satisfactory to the
Administrative Agent shall have been made for the making of such
recordings and filings in the appropriate places or offices;
(vii) opinions dated as of the First Amendment Effective Date, in
form and substance reasonably satisfactory to the Administrative Agent,
from Xxxxx Xxxxx L.L.P., counsel to each Loan Party and the General
Partner;
(viii) a duly completed Compliance Certificate, dated as of the
First Amendment Effective Date, substantially in the form of EXHIBIT C to
the Credit Agreement, signed by a Responsible Officer of the Borrower and
a Responsible Officer of the MLP, demonstrating pro forma compliance with
SECTIONS 7.15(a), (b), (c) and (d) of the Credit Agreement as of the end
of
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the most recent fiscal quarter for which the Borrower is required to
provide financial statements pursuant to SECTION 6.01(c), after giving
effect to the Tesoro Acquisition and the making of the Loans on the First
Amendment Effective Date, and, in each case, including the revenue
adjustments and cost savings expected, in the good faith judgment of the
management of the Loan Parties, to be achieved in connection with the
Tesoro Acquisition to the extent such revenue adjustments and cost savings
could be reflected in pro forma financial information complying with the
requirements of Article XI of Regulation S-X under the Securities and
Exchange Act of 1934, as if the Tesoro Acquisition had been consummated as
of the first day of the relevant fiscal quarter;
(ix) a certificate of a Responsible Officer of the Borrower, dated
as of the First Amendment Effective Date, providing unaudited pro forma
financial statements of the Borrower as of the end of the most recent
fiscal quarter for which the Borrower is required to provide financial
statements pursuant to SECTION 6.01(c), including balance sheet and
statements of income and cash flow, giving effect on a pro forma basis (in
a manner satisfactory to the Administrative Agent) to the Tesoro
Acquisition and the making of the Loans on the First Amendment Effective
Date, and, in each case, including the revenue adjustments and cost
savings expected, in the good faith judgment of the management of the Loan
Parties, to be achieved in connection with the Tesoro Acquisition to the
extent such revenue adjustments and cost savings could be reflected in pro
forma financial information complying with the requirements of Article XI
of Regulation S-X under the Securities and Exchange Act of 1934, as if the
Tesoro Acquisition had been consummated as of the first day of the
relevant fiscal quarter;
(x) a certificate signed by a Responsible Officer of the Borrower,
dated as of the First Amendment Effective Date, certifying that:
(A) (1) the closing of the Tesoro Acquisition is being
consummated on such date, simultaneously with the funding of the
Loans under the Acquisition Subfacility being made on such date, and
(2) the acquisition contemplated by the Additional Purchase
Agreement (as defined in the Tesoro Asset Purchase Agreement) is
being consummated on such date, simultaneously with the closing of
the Tesoro Acquisition;
(B) attached to such certificate are additions to the Annexes
to the Pledge and Security Agreement executed by the Borrower (the
"BORROWER SECURITY AGREEMENT"), and, as amended by such additions,
the Annexes to the Borrower Security Agreement and the Annexes to
the Pledge and Security Agreements executed by the MLP and by Xxxxxx
Operating GP LLC are accurate and complete in all material respects;
(C) except as otherwise set forth on SCHEDULE 5(b) to this
First Amendment, both before and after taking into account the
Tesoro Acquisition and the funding of Loans on such date, the
representations and warranties contained in ARTICLE V of the Credit
Agreement and in the Collateral Documents are true and correct in
all material respects on and as of such date except to the extent
such representations and warranties relate solely to an earlier
date;
(D) both before and after taking into account the Tesoro
Acquisition, no Default or Event of Default has occurred and is
continuing as of such date;
(E) since December 31, 2002 there has occurred no material
adverse change in (x) the business, assets, liabilities (actual or
contingent), operations, or condition (financial or otherwise) of
the Borrower and its Subsidiaries, taken as a whole, or the
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MLP and its Subsidiaries, taken as a whole, or (y) any of the
Mortgaged Assets or the Acquired Assets;
(F) there is no litigation, investigation or proceeding known
to and affecting the Borrower or any Borrower Affiliate for which
the Borrower is required to give notice pursuant to SECTION 6.03(c)
of the Credit Agreement; and
(G) there are no actions, suits, investigations or proceedings
pending or, to the knowledge of the MLP or the Borrower, threatened
in any court or before any arbitrator or governmental authority by
or against the Borrower, any Guarantor, the MLP General Partner, or
any of their respective properties, that (x) if adversely
determined, could reasonably be expected to materially and adversely
affect the Borrower, any Guarantor, or any of the Mortgaged Assets
or the Acquired Assets, or (y) seek to affect or pertain to any
transaction contemplated hereby, the Tesoro Acquisition, or the
ability of the Borrower or any Guarantor to perform its obligations
under the Loan Documents;
(xi) a certificate of a Responsible Officer, dated as of the First
Amendment Effective Date, (A) listing the Material Agreements executed in
connection with, or assumed in connection with, the Tesoro Acquisition,
including without limitation the Transportation Services Agreement between
the Borrower and Midstream Fuel Service LLC dated as of December 23, 2003,
and the Terminal Services Agreement between the Borrower and Midstream
Fuel Service LLC dated as of December 23, 2003, each executed as of the
First Amendment Effective Date by Xxxxxx Resource Management Corporation
and the Borrower, (B) attaching a copy of each of such Material Agreement,
and (C) certifying that the Borrower has no knowledge of any material
default thereunder by any party thereto;
(xii) an appraisal of the Mortgaged Assets and the other Acquired
Assets from an independent appraiser reasonably acceptable to the
Administrative Agent setting forth the orderly liquidation value of (A)
the Galveston Assets, the Tesoro Vessels and the Plants, which shall be at
least $20,000,000, and (B) the other Acquired Assets;
(xiii) with respect to the Mortgaged Assets that are real estate
Collateral, (A) a commitment to issue a mortgagee's title policy and a pro
forma policy issued by a title company reasonably satisfactory to the
Administrative Agent (i) for all such real estate Collateral other than
the Galveston Assets and the Harbor Island Assets, in form and substance
reasonably satisfactory to the Administrative Agent (including such
endorsements as the Administrative Agent shall reasonably require), and
(ii) for the Galveston Assets and the Harbor Island Assets, containing
such title exceptions and qualifications as are contained in the deeds or
other instruments of conveyance under which the Borrower takes title to
the Galveston Assets and the Harbor Island Assets in accordance with the
Tesoro Asset Purchase Agreement, and in each case together with the
payment of all premiums for the issuance of such title policy, and (B) if
required by the Administrative Agent, a survey (if such Mortgaged Assets
are located in Texas, such survey shall be a Texas Board of Professional
Land Surveyors Surveyor's Manual Category 1A Condition II Land Title
Survey, and if such Mortgaged Assets are located in Louisiana, such survey
shall be a Class B Property Boundary Survey meeting the minimum surveying
standards established by the Louisiana Professional Engineering and Land
Surveying Board; provided however, that if the underwriter of the
mortgagee's policies of title insurance requires surveys of a different
type, the Borrower shall provide surveys meeting such requirements);
(xiv) with respect to the Borrower's existing real property
Collateral located in Jefferson County, Texas, a commitment to issue a
mortgagee's title policy and a pro forma policy
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issued by a title company reasonably satisfactory to the Administrative
Agent, which shall be in form and substance substantially similar to
existing title insurance policy for such real property, together with the
payment of all premiums for the issuance of such title policy;
(xv) applications for certificates of documentation and such other
documentation reasonably required by Administrative Agent to evidence
transfer of title for each U.S. Flag Vessel from Tesoro to the Borrower
and to evidence the Administrative Agent's Liens thereon;
(xvi) an opinion of Borrower's insurance broker as to insurance
coverage for the U.S. Flag Vessels that constitute Mortgaged Assets;
(xvii) receipt of such landlord consents, tenant estoppels and other
third-party approvals and consents in connection with the pledge by the
Borrower of the Mortgaged Assets (other than with respect to the Galveston
Assets and the Harbor Island Assets), as required by the Administrative
Agent;
(xviii) receipt of Phase I environmental study of the Acquired
Assets with results satisfactory to the Administrative Agent;
(xix) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent may require.
(b) All fees due and payable at the First Amendment Effective Date shall
have been paid, including the fees required by SECTION 6 of this First
Amendment, and the Borrower shall have paid Attorney Costs of the Administrative
Agent to the extent invoiced prior to, or on, the First Amendment Effective
Date.
SECTION 4. Further Assurances; Agreement of Administrative Agent and
Lenders. (a) In order to induce the Administrative Agent and the Lenders to
enter into this First Amendment, and notwithstanding anything to the contrary
contained in the Credit Agreement, as amended hereby, the Borrower hereby agrees
to deliver, and to cause the other Loan Parties to deliver, to the
Administrative Agent, the following, in each case on or before the later of (x)
the 30th day after the First Amendment Effective Date and (y) December 31, 2003:
(i) executed counterparts of the Mortgages and Security Agreements
granting the Administrative Agent a lien on the Acquired Assets located in
Cameron Parish, Louisiana (other than the Subject Leasehold (defined
below)) and Jefferson, Brazoria, and Xxxxxxx Counties, Texas (other than
the water bottom lease, coastal easements, and lease described on SCHEDULE
4(b) attached hereto (such Acquired Assets are collectively referred to
herein as the "POST-CLOSING MORTGAGED ASSETS"), in each case subject only
to Permitted Liens and the title exceptions and qualifications referred to
in SECTION 4(a)(iv) below, and each of which shall be in form and
substance satisfactory to the Administrative Agent and shall have been
duly authorized, executed and delivered by each of the parties thereto;
provided however, that if the grant of a Lien on any specific Post-Closing
Mortgaged Asset or any portion thereof is expressly prohibited by, or
would cause a default under or termination, avoidance or forfeiture of,
any lease, contract, license or Law to which the MLP, the Borrower, or any
of their Subsidiaries is a party or is subject, then the Loan Parties
shall not be required to xxxxx x Xxxx to the Collateral Agent on such
Post-Closing Mortgaged Asset or portion thereof (as used herein, "SUBJECT
LEASEHOLD" shall mean all of the Loan Parties' rights, titles and
interests in, to and under that certain lease of approximately 17.4328
acres of land between Stream Family Limited Partnership and Tesoro
effective March 1, 2003, and the personal property of the Loan Parties
located thereon);
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(ii) evidence that all recordings or filings of UCC financing
statements, the Mortgages and such other documents as may be reasonably
deemed necessary by the Administrative Agent to perfect the rights, titles
and interests of the Lenders and the Administrative Agent in the
Post-Closing Mortgaged Assets shall have been made, or arrangements
satisfactory to the Administrative Agent shall have been made for the
making of such recordings and filings in the appropriate places or
offices;
(iii) opinions dated as of the date of delivery thereof, in form and
substance reasonably satisfactory to the Administrative Agent, from (A)
Xxxxx Xxxxx L.L.P., counsel to each Loan Party and the General Partner,
and (B) local counsel to each Loan Party with respect to each deed of
trust or mortgage executed by such Loan Party in connection with such
Post-Closing Mortgaged Assets; and
(iv) with respect to the Post-Closing Mortgaged Assets that are real
estate Collateral, (A) a commitment to issue a mortgagee's title policy
and a pro forma policy issued by a title company satisfactory to the
Administrative Agent and containing such title exceptions and
qualifications as are contained in the deeds or other instruments of
conveyance under which the Loan Parties take title to such real estate
Collateral in accordance with the Tesoro Asset Purchase Agreement,
together with the payment of all premiums for the issuance of such title
policy, (B) if required by the Administrative Agent, a survey (if such
Mortgaged Assets are located in Texas, such survey shall be a Texas Board
of Professional Land Surveyors Surveyor's Manual Category 1A Condition II
Land Title Survey, and, if such Mortgaged Assets are located in Louisiana,
such survey shall be a Class B Property Boundary Survey meeting the
minimum surveying standards established by the Louisiana Professional
Engineering and Land Surveying Board; provided however, that if the
underwriter of the mortgagee's policies of title insurance requires
surveys of a different type, the Borrower shall provide surveys meeting
such requirements), and (C) such other certificates, authorizations,
estoppels and waivers as shall be requested by the Administrative Agent
pursuant to SECTION 6.18(b) of the Credit Agreement, in each case in form
and substance satisfactory to the Administrative Agent; provided, however,
that it is hereby acknowledged and agreed by the Administrative Agent, the
Lenders, and the Loan Parties that the Administrative Agent and the
Lenders shall not require the delivery of, and that the Loan Parties shall
be under no obligation to deliver, any certificate, landlord consent,
subordination and non-disturbance agreement, tenant or other estoppel, or
other third party consent, authorization or waiver in connection with the
Acquired Assets and the pledge by the Borrower and the other Loan Parties
thereof, except as set forth in SECTION 4(b) below).
(b) In order to induce the Administrative Agent and the Lenders to enter
into this First Amendment, the Borrower hereby agrees to use reasonable
commercial efforts to obtain consents from the relevant Governmental Authorities
in the States of Louisiana and Texas with respect to the assignment by Tesoro to
the Borrower under and in accordance with the Tesoro Asset Purchase Agreement of
the water bottom lease and coastal easements described on SCHEDULE 4(b) attached
hereto.
(c) The Administrative Agent, the Collateral Agent and the Lenders hereby
acknowledge and agree that (i) during the period from the Closing Date to and
including the date hereof the Loan Parties have been in compliance with the
requirements of SECTION 6.18 of the Credit Agreement, and (ii) subject to the
satisfaction of the conditions precedent contained in SECTION 3(a)(v) of this
Amendment, on the date hereof the Loan Parties shall be in compliance with the
requirements of SECTION 6.18 of the Credit Agreement, as amended hereby.
10
SECTION 5. Representations and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this First Amendment, the
Borrower represents and warrants to the Administrative Agent and to each Lender
that:
(a) This First Amendment, the Credit Agreement as amended hereby and each
Loan Document have been duly authorized, executed and delivered by the Borrower
and the applicable Loan Parties and constitute their legal, valid and binding
obligations enforceable in accordance with their respective terms (subject, as
to the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting creditors' rights generally
and to general principles of equity).
(b) Except as provided on SCHEDULE 5(b) hereto, the representations and
warranties set forth in ARTICLE V of the Credit Agreement and in the Collateral
Documents are true and correct in all material respects on and as of the First
Amendment Effective Date, after giving effect to this First Amendment and the
Tesoro Acquisition, as if made on and as of the First Amendment Effective Date
except to the extent such representations and warranties relate solely to an
earlier date.
(c) As of the date hereof, at the time of and after giving effect to this
First Amendment and the Tesoro Acquisition, no Default or Event of Default has
occurred and is continuing.
(d) Except as provided on SCHEDULE 4(b) hereto, no approval, consent,
exemption, authorization or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the execution
and delivery of this First Amendment, the performance by the Borrower or any
Loan Party of its obligations hereunder, or the Tesoro Acquisition. Each of this
First Amendment and the Tesoro Acquisition has been duly authorized by all
necessary corporate, partnership, or limited liability company action. The
execution, delivery and performance of this First Amendment and the documents
and transactions contemplated hereby, and the consummation of the Tesoro
Acquisition does not and will not (a) contravene the terms of the Borrower's or
any other Loan Party's Organization Documents, (b) conflict with or result in
any breach or contravention of, or result in creation of any Lien (other than
Liens in favor of the Administrative Agent) under, any document evidencing any
material Contractual Obligation to which the Borrower or any other Loan Party is
a party or any order, injunction, writ or decree of any Governmental Authority
to which the Borrower or any other Loan Party is subject, or (c) violate any
material provision and Law applicable to any Loan Party.
(e) The Borrower knows of no reason why the consents from the relevant
Governmental Authorities in the States of Louisiana and Texas with respect to
the assignment by Tesoro to the Borrower under and in accordance with the Tesoro
Asset Purchase Agreement of the water bottom lease and coastal easements
described on SCHEDULE 4(b) hereto will not be obtained in due course by the
Borrower after the First Amendment Effective Date, and the Borrower does not
believe that such consents will contain any condition or requirement the
compliance with which would reasonably be expected to result in a Material
Adverse Effect.
SECTION 6. Costs. The Borrower agrees to pay on demand reasonable Attorney
Costs of the Administrative Agent and all other costs and expenses of the
Administrative Agent, in connection with the preparation, execution and delivery
of this First Amendment and any other documents executed in connection herewith.
SECTION 7. Fees. The Borrower shall pay to each Lender on the First
Amendment Effective Date, a fee equal to 0.125% of the amount of each such
Lender's Committed Sum. The foregoing fees shall be paid to the Administrative
Agent, on behalf of each approving Lender.
11
SECTION 8. Effect of Amendment. (a) This First Amendment (i) except as
expressly provided herein, shall not be deemed to be a consent to the
modification or waiver of any other term or condition of the Credit Agreement or
of any of the instruments or agreements referred to therein and (ii) shall not
prejudice any right or rights which the Administrative Agent, the Collateral
Agent or the Lenders may now have under or in connection with the Credit
Agreement, as amended by this First Amendment. Except as otherwise expressly
provided by this First Amendment, all of the terms, conditions and provisions of
the Credit Agreement shall remain the same. It is declared and agreed by each of
the parties hereto that the Credit Agreement, as amended hereby, shall continue
in full force and effect, and that this First Amendment and such Credit
Agreement shall be read and construed as one instrument.
(b) Each of the undersigned Guarantors hereby consents to and accepts the
terms and conditions of this First Amendment and the transactions contemplated
thereby, agrees to be bound by the terms and conditions thereof, and ratifies
and confirms that each Guaranty and each of the other Loan Documents to which it
is a party is, and shall remain, in full force and effect after giving effect to
this First Amendment. The Borrower and each of the other Loan Parties hereby
confirm and agree that all Liens and other security now or hereafter held by the
Collateral Agent for the benefit of the Lenders as security for payment of the
Obligations are the legal, valid and binding obligations of the Borrower and the
Loan Parties, remain in full force and effect, are unimpaired by this First
Amendment, and are hereby ratified and confirmed as security for payment of the
Obligations.
SECTION 9. Miscellaneous. This First Amendment shall for all purposes be
construed in accordance with and governed by the laws of the State of New York
and applicable federal law. The captions in this First Amendment are for
convenience of reference only and shall not define or limit the provisions
hereof. This First Amendment may be executed in separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this First Amendment, it
shall not be necessary to produce or account for more than one such counterpart.
This First Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
SECTION 10. Entire Agreement. THE CREDIT AGREEMENT (AS AMENDED BY THIS
FIRST AMENDMENT) AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 11. Additional Further Assurances. The parties hereto each agree
to execute from time to time such further documents as may be necessary to
implement the terms of this First Amendment.
[SIGNATURES BEGIN ON NEXT PAGE]
12
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the date and year first above written.
XXXXXX OPERATING PARTNERSHIP L.P.,
a Delaware limited partnership, as Borrower
By: XXXXXX OPERATING GP LLC,
its General Partner
By: XXXXXX MIDSTREAM PARTNERS L.P.,
its Sole Member
By: XXXXXX MIDSTREAM GP LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx, III
-------------------------------------
Xxxxx X. Xxxxxx, III
President and Chief Executive Officer
XXXXXX MIDSTREAM PARTNERS L.P.,
a Delaware limited partnership, as a Guarantor
By: XXXXXX MIDSTREAM GP LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx, III
-------------------------------
Xxxxx X. Xxxxxx, III
President and Chief Executive Officer
THIS IS A SIGNATURE PAGE TO THE XXXXXX OPERATING PARTNERSHIP L.P.
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXXX OPERATING GP LLC,
a Delaware limited liability company, as a Guarantor
By: XXXXXX MIDSTREAM PARTNERS L.P.,
its Sole Member
By: XXXXXX MIDSTREAM GP LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx, III
---------------------------------
Xxxxx X. Xxxxxx, III
President and Chief Executive Officer
THIS IS A SIGNATURE PAGE TO THE XXXXXX OPERATING PARTNERSHIP L.P.
FIRST AMENDMENT TO CREDIT AGREEMENT
ROYAL BANK OF CANADA, as Administrative Agent
and Collateral Agent
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
-------------------------------------
Title: Managing Director RBCCM
-------------------------------------
THIS IS A SIGNATURE PAGE TO THE XXXXXX OPERATING PARTNERSHIP L.P.
FIRST AMENDMENT TO CREDIT AGREEMENT
ROYAL BANK OF CANADA, as a Lender,
as L/C Issuer, and as Swing Line Lender
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
-------------------------------------
Title: Attorney-In-Fact
-------------------------------------
THIS IS A SIGNATURE PAGE TO THE XXXXXX OPERATING PARTNERSHIP L.P.
FIRST AMENDMENT TO CREDIT AGREEMENT
COMERICA BANK (successor by merger with
Comerica Bank - Texas), as a Lender
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
THIS IS A SIGNATURE PAGE TO THE XXXXXX OPERATING PARTNERSHIP L.P.
FIRST AMENDMENT TO CREDIT AGREEMENT
SOUTHWEST BANK OF TEXAS, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxx, III
---------------------------------------
Name: Xxxxxxx X. Xxxxxx, III
---------------------------------------
Title: Assistant Vice President Energy Lending
---------------------------------------
THIS IS A SIGNATURE PAGE TO THE XXXXXX OPERATING PARTNERSHIP L.P.
FIRST AMENDMENT TO CREDIT AGREEMENT
WHITNEY NATIONAL BANK, as a Lender
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
-------------------------------------
Title: Banking Officer
-------------------------------------
THIS IS A SIGNATURE PAGE TO THE XXXXXX OPERATING PARTNERSHIP L.P.
FIRST AMENDMENT TO CREDIT AGREEMENT
HIBERNIA NATIONAL BANK, as a Lender
By: /s/ Xxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
THIS IS A SIGNATURE PAGE TO THE XXXXXX OPERATING PARTNERSHIP L.P.
FIRST AMENDMENT TO CREDIT AGREEMENT
APPENDIX A
SCHEDULE 2.01
COMMITMENTS
Revolver Facility
Acquisition Working
Lender Term Loan Facility Subfacility Capital
Subfacility
Royal Bank of Canada $ 9,722,222.22 $ 6,507,936.51 $ 3,769,841.27
Comerica Bank $ 6,250,000.00 $ 7,500,000.00 $ 6,250,000.00
Southwest Bank of Texas, N.A $ 4,166,666.66 $ 4,166,666.67 $ 4,166,666.67
Whitney National Bank $ 4,861,111.12 $ 3,968,253.97 $ 3,670,634.91
Hibernia National Bank $ 0 $ 7,857,142.85 $ 7,142,857.15
TOTAL: $ 25,000,000 $ 30,000,000 $ 25,000,000
$ 55,000,000
Appendix A
APPENDIX B
SCHEDULE 5.21
VESSELS
VESSEL NAME IDENTIFICATION NUMBER FLAG OWNER
----------- --------------------- ---- -----
Xxxxx Xxxxxx 633613 U.S. Borrower
Xxxx Xxxxx 567170 U.S. Borrower
Brooke 638713 U.S. Borrower
Herndon R 586238 U.S. Borrower
Xxxxxx G 561236 U.S. Borrower
MF 731 662943 U.S. Borrower
MF 732 662944 U.S. Borrower
PIC 589995 U.S. Borrower
TTT 101 602061 U.S. Borrower
TTT 102 602062 U.S. Borrower
TTT 104 633292 U.S. Borrower
TTT 105 932209 U.S. Borrower
TTT 251 974023 U.S. Borrower
TTT 252 974024 U.S. Borrower
TTT 261 1053079 U.S. Borrower
TTT 310 982537 U.S. Borrower
TTT 320 1063123 U.S. Borrower
TTT 330 1063035 U.S. Borrower
Xxxx Xxxxx 634102 U.S. Borrower
Jo Xxx Xxxxxxx 630572 U.S. Borrower
Xxxx Xxxxx 984928 U.S. Borrower
Xxxx Xxxxxxx 296384 U.S. Borrower
MGM 1650 552444 U.S. Borrower
MGM 2350 552443 U.S. Borrower
MGM 3001 999818 U.S. Borrower
MGM 3002 999817 U.S. Borrower
MGM 601 1038570 U.S. Borrower
MGM 602 1038569 U.S. Borrower
Orion 251737 U.S. Borrower
Poseidon 552864 U.S. Borrower
Xxxxxx Challenger 1051672 U.S. Borrower
Xxxxxx Endeavor 523487 U.S. Borrower
Xxxxxx Spirit 653760 U.S. Borrower
Xxxxxx Voyager 523750 U.S. Borrower
MGM 401 563916 U.S. Borrower
MGM 402 563917 U.S. Borrower
MGM 403 563919 U.S. Borrower
MGM 501 1035344 U.S. Borrower
MGM 502 1035345 U.S. Borrower
Xxxxxx Admiral 523032 U.S. Borrower
Xxxxxx Captain 557601 U.S. Borrower
Xxxxxx Commander 530608 U.S. Borrower
Appendix B
VESSEL NAME IDENTIFICATION NUMBER FLAG OWNER
----------- --------------------- ---- -----
Xxxxxx Xxxxxxxxx 000000 X.X. Borrower
MMLP 110 550340 U.S. Borrower
MMLP 112 176247 U.S. Borrower
MMLP 114 633584 U.S. Borrower
MMLP 115 517903 U.S. Borrower
MMLP 116 512345 U.S. Borrower
MMLP 117 1061638 U.S. Borrower
MMLP 118 976562 U.S. Borrower
MMLP 119 642815 U.S. Borrower
MMLP 219 506316 U.S. Borrower
MMLP 220 506317 U.S. Borrower
MMLP 221 506139 U.S. Borrower
MMLP 222 514372 U.S. Borrower
Xxxxxx Navigator 632798 U.S. Borrower
Appendix B
SCHEDULE 3(A)(V)(D)
CROSS ASSETS
The real property described below and the equipment, inventory, and fixtures
located upon the real property described below or upon the adjacent banks, bed,
or waters of the Ouachita River.
Real Property
A part of the Northeast Quarter of Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 15 West,
Ouachita County, Arkansas, being more particularly described as follows:
Commencing from the Northeast Corner of the Northeast Quarter of the Northeast
Quarter of said Section 27, thence along the North line of said Forty, North 89
degrees 57 minutes 50 seconds West for a distance of 660.29 feet to a Found I.P.
for a point of beginning, thence South 01 degrees 15 minutes 00 seconds West for
a distance of 429.00 feet to a Found I.P., thence North 89 degrees 57 minutes 50
seconds West for a distance of 747.00 feet, thence North 01 degrees 23 minutes
05 seconds East for a distance of 162.46 feet, thence South 89 degrees 57
minutes 50 seconds East for a distance of 85.99 feet to a point on the shore
line of the Ouachita River, thence along said shore line, North 64 degrees 59
minutes 56 seconds East for a distance of 59.29 feet, thence along said shore
line, North 28 degrees 51 minutes 06 seconds East for a distance of 113.79 feet,
thence along said shore line, North 34 degrees 19 minutes 51 seconds East for a
distance of 171.51 feet to the North line of said forty, thence along the North
line of said Forty, South 89 degrees 57 minutes 50 seconds East for a distance
of 461.07 feet to the point of beginning. Said property contains 6.13 acres more
or less.
Easements and adjacent purchase rights granted in Warranty Deeds recorded in
Book 611, Pages 437, 443 and 449.
Schedule 3(a)(v)(D)
SCHEDULE 3(A)(V)(E)
CENAC VESSELS
VESSEL NAME IDENTIFICATION NUMBER FLAG OWNER
----------- --------------------- ---- -----
MMLP 220 506317 U.S. Borrower
MMLP 219 506316 U.S. Borrower
Xxxxxx Navigator 632798 U.S. Borrower
Schedule 3(a)(v)(E)
SCHEDULE 4(B)
AUTHORIZATIONS, CONSENTS, ETC.
Water Bottom Leases and Coastal Easements:
Consent of State of Louisiana, as lessor, is required under Water Bottom Lease
dated effective January 31, 2002 between State of Louisiana and Tesoro Marine
Services, Inc. (Cameron East Water Bottom Lease)
Consent of Texas General Land Office, as grantor, is required under Commercial
Coastal Easement No. LC940024 between Xxxxx Xxxxxxxx, Commissioner, Texas
General Land Office, and Tesoro Marine Services, Inc. dated effective January
31, 1999 to January 30, 2004 (Harbor Island Coastal Easement)
Consent of Texas School Land Board, as grantor, is required under Coastal
Easement No. 89-061 between Texas School Land Board, as grantor, and America
Petrofina Pipe Line Company dated effective January 9, 1989 (Harbor Island
Coastal Easement)
Consent of Texas General Land Office, as grantor, is required under Commercial
Coastal Easement No. LC970041 between Xxxxx X. Xxxxxxxxx, Commissioner, Texas
General Land Office, and Tesoro Coastwide Services Co. dated effective April 30,
2003 (Sabine Pass Coastal Easement)
Other Leases:
Consent of Nueces County, Texas, as lessor, is required under Lease Agreement
between Nueces County, Texas, as lessor, and Harbor Island Terminal, Inc. dated
effective June 20, 1985 (Harbor Island)
Schedule 4(b)
SCHEDULE 5(B)
DISCLOSURES
None.
Schedule 5(b)
