Exhibit 10.6
AMENDMENT NO. 2 TO REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO REVOLVING CREDIT AGREEMENT (this "Amendment") dated
as of October __, 2002, is made by and among KANEB PIPE LINE OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership ("Borrower"), KANEB PIPE LINE
PARTNERS, L.P., a Delaware limited partnership ("KPP"), each of the lenders
named on the signature pages hereof (hereinafter, together with their successors
and permitted assigns, collectively, the "Lenders" and, individually, a
"Lender"), and SUNTRUST BANK, in its capacity as Administrative Agent for the
Lenders (the "Administrative Agent").
W I T N E S S E T H:
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WHEREAS, Borrower, KPP, the Lenders, and the Administrative Agent are
parties to a certain Revolving Credit Agreement dated as of December 28, 2000,
as amended by Amendment No. 1 to the Revolving Credit Agreement dated as of July
31, 2002 (the "Credit Agreement"; defined terms used herein without definition
shall have the meanings ascribed to such terms in the Credit Agreement);
WHEREAS, Borrower, KPP, and the Lenders have agreed to amend the Credit
Agreement as more specifically set forth below;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
SECTION 1. Amendments to Credit Agreement. Effective as of the
Effective Date (as hereinafter defined), the Credit Agreement is hereby
amended as follows:
1.1 Section 1.1 of the Credit Agreement is hereby amended by
adding the following definitions in proper alphabetical order:
"Bridge Loan" shall mean the $150,000,000 bridge loan
extended to the Borrower under the Bridge Loan Agreement.
"Bridge Loan Agreement" shall mean that certain Bridge Loan
Agreement, dated as of November 1, 2002, by and among the
Borrower, KPP, the lenders from time to time parties thereto and
SunTrust Bank, as Administrative Agent.
"Senior Notes Indenture" shall mean that certain Indenture,
dated on or about February 21, 2002, between the Borrower and
JPMorgan Chase Bank, as trustee, with respect to the issuance of
the Borrower's 7.750% Senior Unsecured Notes due 2012.
1.2 Section 7.8 of the Credit Agreement is hereby amended by
replacing said Section 7.8 in its entirety with the following:
SECTION 7.8 Restrictive Agreements.
KPP will not, and will not permit any Subsidiary of KPP (other
than any Excluded Subsidiary) to, directly or indirectly, enter into,
incur or permit to exist any agreement (i) that prohibits, restricts
or imposes any condition upon the ability of any Subsidiary of KPP to
make Distributions with respect to its Equity Interests, to make or
repay loans or advances to Borrower or any Guarantor, to guarantee
Indebtedness of Borrower or any Guarantor or to transfer any of its
property or assets to Borrower or any Guarantor, or (ii) contains any
prohibitions or restrictions on KPP or such Subsidiary that are more
restrictive than the covenants contained in this Agreement; provided,
that (A) the foregoing shall not apply to restrictions or conditions
imposed by law or by this Agreement, any other Loan Document, the
Bridge Loan Agreement, and the Senior Notes Indenture, (B) the
foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of any Subsidiary of KPP
pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is sold and such sale is permitted
hereunder and (C) clause (i) shall not apply to restrictions on
transfer of property or assets to Borrower or any Guarantor contained
in any agreement or indenture pursuant to which Indebtedness is issued
to refinance the Bridge Loan in full so long as any restriction on
transfer of property or assets and any restriction on granting Liens
is no more restrictive than the restrictions on transferring property
and granting Liens contained in the Senior Notes Indenture as in
effect on the date of Amendment No. 2 to this Revolving Credit
Agreement.
SECTION 2. Conditions to Effectiveness of Amendment. This Amendment shall
become effective as of the date first above written (the "Effective Date") on
the first day when the Administrative Agent shall have received (i) the duly
executed counterparts of this Amendment from Borrower and the Lenders, and (ii)
the duly executed counterparts of the Acknowledgment of Guarantors attached to
this Amendment from KPP and the other Guarantors.
SECTION 3. Status of Obligations. Borrower hereby confirms and agrees that
all Loans and all other Obligations outstanding under the Credit Agreement and
the other Loan Documents as of the date hereof were duly and validly created and
incurred by Borrower thereunder, that all such outstanding amounts are owed in
accordance with the terms of the Credit Agreement and other Loan Documents, and
that there are no rights of offset, defense, counterclaim, claim or objection in
favor of Borrower arising out of or with respect to any of the Loans or other
Obligations of Borrower to the Administrative Agent or the Lenders, and any such
rights of offset, defense, counterclaim, claims or objections have been and are
hereby waived and released by Borrower.
SECTION 4. Representations and Warranties of Borrower. Each of Borrower and
KPP, without limiting the representations and warranties provided in the Credit
Agreement, represents and warrants to the Lenders and the Administrative Agent
as follows:
4.1 The execution, delivery and performance by Borrower and KPP of
this Amendment are within Borrower's and KPP's organizational powers, have
been duly authorized by all necessary organizational action and do not and
will not (a) violate any provision of any law, rule or regulation, any
judgment, order or ruling of any court or governmental agency, the charter
or by-laws of Borrower or KPP, or any indenture, agreement or other
instrument to which Borrower or KPP is a party or by which Borrower or KPP
or any of its properties is bound or (b) be in conflict with, result in a
breach of, or constitute with notice or lapse of time or both a default
under any such indenture, agreement or other instrument.
4.2 This Amendment constitutes the legal, valid and binding obligation
of Borrower and KPP, enforceable against Borrower and KPP in accordance
with its terms.
4.3 After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the Effective Date.
SECTION 5. Survival. Each of the foregoing representations and warranties
shall be made at and as of the Effective Date. Each of the foregoing
representations and warranties shall constitute a representation and warranty of
Borrower and KPP under the Credit Agreement, and it shall be an Event of Default
if any such representation and warranty shall prove to have been incorrect or
false in any material respect at the time when made. Each of the foregoing
representations and warranties shall survive and not be waived by the execution
and delivery of this Amendment or any investigation by the Lenders or the
Administrative Agent.
SECTION 6. Ratification of Credit Agreement and Loan Documents. Except as
expressly amended herein, all terms, covenants and conditions of the Credit
Agreement and the other Loan Documents shall remain in full force and effect,
and the parties hereto do expressly ratify and confirm the Credit Agreement (as
amended herein) and the other Loan Documents. All future references to the
Credit Agreement shall be deemed to refer to the Credit Agreement as amended
hereby.
SECTION 7. Release. In consideration of the amendments agreed to by the
Lenders pursuant to this Amendment, each of Borrower and KPP hereby (i)
releases, acquits and forever discharges the Administrative Agent, each Lender,
and each of their respective agents, employees, officers, partners, directors,
servants, representatives, attorneys, affiliates, successors and assigns
(collectively, the "Released Parties") from any and all liabilities, claims,
suits, debts, liens, losses, causes of action, demands, rights, damages, costs
and expenses of any kind, character or nature whatsoever, known or unknown,
fixed or contingent, that Borrower or KPP may have or claim to have against such
Lender which might arise out of or be connected with any act of commission or
omission of such Lender existing or occurring on or prior to the date of this
Amendment, including, without limitation, any claims, liabilities or obligations
relating to or arising out of or in connection with the Credit Agreement, any
other Loan Documents or this Amendment (including, without limitation, arising
out of or in connection with the initiation, negotiation, closing or
administration of the transactions contemplated thereby or related thereto),
through the execution and delivery of this release and the effectiveness of this
Amendment (the "Released Claims") and (ii) agrees to refrain from commencing,
instituting or prosecuting any lawsuit, action or other proceeding against the
Released Parties with respect to any and all Released Claims.
SECTION 8. Indemnity. In consideration of the amendments agreed to by the
Lenders pursuant to this Amendment, each of Borrower and KPP hereby indemnifies
the Administrative Agent and each Lender, and their respective officers,
partners, directors, employees, representatives and agents from, and hold each
of them harmless against, any and all costs, losses, liabilities, claims,
damages or expenses incurred by any of them (whether or not any of them is
designated a party thereto) (an "Indemnitee") arising out of or by reason of any
investigation, litigation or other proceeding related to this Amendment, the
Credit Agreement or any other Loan Documents or any actual or proposed use of
the proceeds of any of the Loans, including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding; provided, however, neither
Borrower nor KPP shall be obligated to indemnify any Indemnitee for any of the
foregoing arising out of such Indemnitee's gross negligence or willful
misconduct.
SECTION 9. No Other Waiver, Etc. Each of Borrower and KPP hereby agrees
that nothing herein shall constitute a waiver by the Lenders of any Default or
Event of Default, whether known or unknown, which may exist under the Credit
Agreement. Each of Borrower and KPP hereby further agrees that no action,
inaction or agreement by the Lenders, including without limitation, any
indulgence, waiver, consent or agreement altering the provisions of the Credit
Agreement which may have occurred with respect to the non-performance of any
obligation under the terms of the Credit Agreement or any portion thereof, or
any other matter relating to the Credit Agreement, shall require or imply any
future indulgence, waiver, or agreement by the Lenders.
SECTION 10. Binding Nature. This Amendment shall be binding upon and inure
to the benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
SECTION 11. Costs and Expenses. Borrower and KPP shall be responsible for
the costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and the other instruments
and documents to be delivered hereunder, including, without limitation, the fees
and out-of-pocket expenses of counsel for the Administrative with respect
thereto.
SECTION 12. Governing Law. This Amendment shall be CONSTRUED IN ACCORDANCE
WITH AND governed by the INTERNAL laws of the State of NEW YORK.
SECTION 13. Entire Understanding. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
SECTION 14. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts and
may be delivered by telecopier. Each counterpart so executed and delivered shall
be deemed an original and all of which taken together shall constitute but one
and the same instrument.
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[SIGNATURE PAGE TO AMENDMENT NO. 2 TO REVOLVING CREDIT AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
KANEB PIPE LINE OPERATING
PARTNERSHIP, L.P.
By: KANEB PIPE LINE COMPANY,
General Partner
By:
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Name:
Title:
KANEB PIPE LINE PARTNERS, L.P.
By: KANEB PIPE LINE COMPANY,
General Partner
By:
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Name:
Title:
SUNTRUST BANK,
as Administrative Agent and as a Lender
By:
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Name:
Title:
BANK OF AMERICA, N.A.,
as a Lender
By:
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Name:
Title:
BANK ONE, N.A.,
as a Lender
By: ------------------------------------------
Name:
Title:
BNP PARIBAS,
as a Lender
By:
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Name:
Title:
FLEET NATIONAL BANK,
as a Lender
By:
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Name:
Title:
BANK OF SCOTLAND,
as a Lender
By:
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Name:
Title:
ACKNOWLEDGMENT OF GUARANTORS
Each of the undersigned Guarantors hereby (i) acknowledges and consents to
the execution and delivery by Borrower and KPP of the foregoing Amendment No. 2
to Revolving Credit Agreement dated as of October __, 2002, and (ii)
acknowledges and agrees that (x) such execution and delivery of the foregoing
Amendment No. 2 to Revolving Credit Agreement shall not release, discharge,
limit or affect in any manner any of their obligations as such Guarantors
pursuant to the terms of the Revolving Credit Agreement dated as of December 28,
2000, as amended by Amendment No. 1 to the Credit Agreement, dated as of July
31, 2002, and as referred to and amended by the foregoing Amendment No. 2 to
Credit Agreement, or pursuant to the Subsidiary Guarantee Agreement delivered
thereunder, and (y) their respective obligations as such Guarantors in respect
of all Obligations as defined in such Revolving Credit Agreement shall remain in
full force and effect on and after the date hereof.
This Acknowledgment of Guarantors made and delivered as of October __,
2002.
GUARANTOR
KANEB PIPE LINE OPERATING
PARTNERSHIP, L.P.
By: KANEB PIPE LINE COMPANY,
General Partner
By:
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Name:
Title:
KANEB PIPE LINE PARTNERS, L.P.
By: KANEB PIPE LINE COMPANY,
General Partner
By:
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Name:
Title:
SUPPORT TERMINALS OPERATING
PARTNERSHIP, L.P.
By: SUPPORT TERMINAL SERVICES, INC.,
General Partner
By:
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Name:
Title:
SUPPORT TERMINAL SERVICES, INC.
By:
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Name:
Title:
STANTRANS, INC.
By:
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Name:
Title:
