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EXHIBIT 10.3
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of August 12, 1998 (this "Amendment"), to the
Second Amended and Restated Credit Agreement, dated as of March 23, 1995, as
amended and restated through December 13, 1996 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Credit Agreement"), among
LEVIATHAN GAS PIPELINE PARTNERS, L.P., a Delaware limited partnership (the
"Borrower"), the banks and other financial institutions (the "Lenders") parties
hereto, THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders and ING (U.S.) CAPITAL CORPORATION, a Delaware corporation, as
co-arranger for the Lenders (the "Co-Arranger").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, extensions of credit to the Borrower; and
WHEREAS, the Borrower has requested that certain provisions of the Credit
Agreement be amended and waived in the manner provided for in this Amendment;
and
WHEREAS, the consent of the Required Lenders has been obtained; and
WHEREAS, the Administrative Agent, the Co-Arranger and the Required Lenders
are willing to agree to such amendments and waivers, but only on the terms and
subject to the conditions set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
Borrower, the Administrative Agent, the Co-Arranger and the Required Lenders
hereby agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
recitals to this Amendment have the meanings specified therein, and terms
defined in the Credit Agreement (including all amendments thereto) are used
herein as therein defined.
2. Amendments to Credit Agreement.
(a) Amendment to Recitals. The second "Whereas" clause in the recitals is
amended by deleting the amount "$300,000,000" and substituting therefor the
amount "$350,000,000."
(b) The definition of "Management Agreement" is hereby deleted in its
entirety and replaced with the following new definition for the same defined
term:
"Management Agreement": (i) the First Amended and Restated Management
Agreement, dated as of June 27, 1994, between DeepTech and the General
Partner, as amended by the First Amendment thereto dated as of January 1,
1995, and as further amended, modified or supplemented from time to time in
accordance with subsection 8.9 or (ii) any other agreement or arrangement,
reasonably acceptable to the Administrative Agent, providing management,
administrative, operational and other functions to the Borrower adequate to
allow the Borrower to conduct operations consistent with prior practices.
(c) Amendment to Revolving Credit Commitments. Schedule I is amended by
deleting the amounts contained in the Revolving Credit Commitment column and
substituting therefor the corresponding amounts contained in Schedule I attached
to this Amendment. On the Amendment Effective Date (as defined below) the
aggregate Revolving Credit Commitments will be increased to $350,000,000 and the
Revolving Credit Commitment of each Lender will be as set forth on Schedule I
attached hereto.
3. Waivers to Credit Agreement. (a) It is the intention of the Borrower,
the Administrative Agent, the Co-Arranger and the Lenders that the provisions in
the Credit Agreement relating to the Incurrence
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Limitation not be effective from the Amendment Effective Date through January
31, 1999. Each of the Administrative Agent, the Co-Arranger and the Lenders
hereby waives compliance by the Borrower with the requirements of subsections
2.4, 3.1(a), 4.1(c) and 7.2(b)(ii)(y) during the period beginning the Amendment
Effective Date through and including January 31, 1999 to the extent and only to
the extent that such subsections relate to the Incurrence Limitation. All
provisions waived as a result of this paragraph shall become binding once again
as of February 1, 1999.
(b) Each of the Administrative Agent, the Co-Arranger and the Lenders
hereby waives compliance by the Borrower with the requirements of subsections
8.1(d) and 8.1(e) during the period beginning the Amendment Effective Date
through and including January 31, 1999.
4. Commitment Fee. From the Amendment Effective Date through and including
January 31, 1999, the commitment fee under subsection 2.5 of the Credit
Agreement payable to each Lender shall be computed at the rate per annum equal
to the then Applicable Margin therefor as set forth under the column heading
"Commitment Fee" on the average daily amount of the Available Revolving Credit
Commitment of such Lender.
5. Revolving Credit Notes. The Borrower will execute and deliver to the
Administrative Agent a new Revolving Credit Note for each Lender which requests
the same in the amount of the Revolving Credit Commitment of such Lender after
giving effect to this Amendment. Each such Lender will return the existing
Revolving Credit Note held by it to the Administrative Agent.
6. Conditions to Effectiveness. This Amendment shall become effective on
the date (the "Amendment Effective Date") on which all of the following
conditions precedent have been satisfied or waived:
(a) The Borrower, the Administrative Agent and the Required Lenders
shall have executed and delivered to the Administrative Agent this
Amendment, and the other Loan Parties shall have executed and delivered to
the Administrative Agent the attached Acknowledgment ("Acknowledgment")
approving this Amendment.
(b) The Administrative Agent shall have received from the Borrower (i)
for the account of each Lender which executes and delivers this Amendment
on or prior to the Amendment Effective Date, the fees associated with this
Amendment and (ii) for the account of the Administrative Agent and the Co-
Arranger, such additional fees as are separately agreed with the Borrower.
(c) The Administrative Agent shall have received a certificate of each
of the Borrower, Leviathan and each Subsidiary of the Borrower which is a
Loan Party, dated the Amendment Effective Date, as to the incumbency and
signature of the officers of each such Person executing this Amendment and
the Acknowledgment, satisfactory in form and substance to the
Administrative Agent, executed by the Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, President, Treasurer or any
Vice President and the Secretary or any Assistant Secretary of each such
Person.
(d) The Administrative Agent shall have received the executed legal
opinion of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel to the
Borrower and the other Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the General Partner authorizing on
behalf of the Borrower the execution, delivery and performance of this
Amendment, certified by the Secretary or an Assistant Secretary of the
General Partner on behalf of the Borrower as of the Amendment Effective
Date, which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(f) The Administrative Agent shall have received a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of Leviathan authorizing the execution,
delivery and performance of the Acknowledgment, certified by the Secretary
or an Assistant Secretary of Leviathan as of the Amendment Effective Date,
which certificate shall be in form and
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substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(g) The Administrative Agent shall have received a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Managing Member or the Board of Directors, as applicable, of
each Subsidiary of the Borrower which is a party to the Acknowledgment
authorizing the execution, delivery and performance of the Acknowledgment,
certified by the Secretary or an Assistant Secretary of such Subsidiary as
of the Amendment Effective Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
7. General.
(a) Representations and Warranties. After giving effect to this Amendment,
the Borrower represents that the representations and warranties made by the Loan
Parties in the Loan Documents are true and correct in all material respects on
and as of the Amendment Effective Date (unless such representations or
warranties are stated to refer to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date) as if made on and as of the Amendment
Effective Date and no Default or Event of Default will have occurred and be
continuing.
(b) Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
(c) No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement, the
Notes and the other Loan Documents are and shall remain in full force and
effect.
(d) Governing Law; Counterparts. (i) THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(ii) This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
[The remainder of this page has been left blank intentionally.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
LEVIATHAN GAS PIPELINE PARTNERS,
L.P.
By /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent and Lender
By /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Vice President
ING (U.S.) CAPITAL CORPORATION, as
Co-Arranger and Lender
By /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Senior Associate
DEN NORSKE BANK ASA
By /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
By /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
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XXXXX FARGO BANK TEXAS, N.A.
By /s/ XXXXXXXXX FAITH
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Name: Xxxxxxxxx Faith
Title: Assistant Vice President
MEESPIERSON CAPITAL CORP.
By /s/ XXXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
By /s/ KL
-----------------------------------
Name: KL
Title: Managing Director
BANK OF SCOTLAND
By /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Assistant Vice President
PARIBAS
By /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By /s/ XXXXXX XXXXXXXXXX
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Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
FIRST UNION NATIONAL BANK
By /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
ARAB BANKING CORPORATION (B.S.C.)
By /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
CREDIT AGRICOLE INDOSUEZ
By /s/ XXXX XXXXXX
-----------------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
Branch Manager
By /s/ XXXXX BOUNL
-----------------------------------
Name: Xxxxx Bounl, F.V.P.
Title: Head of Corporate Banking
Chicago
PNC BANK, NATIONAL ASSOCIATION
By /s/ XXXX X. WAY
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Name: Xxxx X. Way
Title: Assistant Vice President
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XXX XXXX XX XXXX XXXXXX
By /s/ F.C.W. XXXXX
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Name: F.C.W. Xxxxx
Title: Senior Manager Loan
Operations
HIBERNIA NATIONAL BANK
By /s/ XXXX X. XXXXXXXXXX
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Name: Xxxx X. Xxxxxxxxxx
Title: Assistant Vice President
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ACKNOWLEDGMENT
The undersigned guarantors hereby consent and agree to the foregoing
Amendment and confirm that their respective obligations under the Loan Documents
remain in full force and effect and, among other things, apply to the increase
in the Revolving Credit Commitments effected by the Amendment:
LEVIATHAN GAS PIPELINE COMPANY
By: /s/ XXXXX XXXXXX
----------------------------------
Name: Xxxxx Xxxxxx
Title:
DELOS OFFSHORE COMPANY, L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
XXXXX BANK GATHERING COMPANY, L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
FLEXTREND DEVELOPMENT COMPANY,
L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
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GREEN CAYNON PIPELINE COMPANY,
L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
LEVIATHAN OIL TRANSPORT SYSTEMS,
L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
MANTA RAY GATHERING COMPANY, L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
POSEIDON PIPELINE COMPANY, L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
SAILFISH PIPELINE COMPANY, L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
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STINGRAY HOLDING, L.L.C.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
Title:
TARPON TRANSMISSION COMPANY
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
TRANSCO HYDROCARBONS COMPANY, L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
TEXAM OFFSHORE GAS TRANSMISSION,
L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
TRANSCO OFFSHORE PIPELINE
COMPANY, L.L.C.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title:
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VK DEEPWATER GATHERING COMPANY,
L.L.C.
By: /s/ XXXXX XXXXXX
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Name:
Title:
VK-MAIN PASS GATHERING COMPANY,
L.L.C.
By: /s/ XXXXX XXXXXX
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Name:
Title:
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SCHEDULE I
LENDERS, COMMITMENTS AND COMMITMENT PERCENTAGES
REVOLVING CREDIT COMMITMENT
LENDER NAME AND ADDRESS COMMITMENT PERCENTAGE
----------------------- ---------------- --------------
The Chase Manhattan Bank.................................... $33,083,333.34 9.45238095429%
ING (U.S.) Capital Corporation.............................. $33,083,333.34 9.45238095429%
Den norske Bank ASA......................................... $30,333,333.33 8.66666666571%
Xxxxx Fargo Bank (Texas), N.A. ............................. $30,333,333.33 8.66666666571%
MeesPierson N.V. ........................................... $30,750,000.00 8.78571428571%
Credit Lyonnais Cayman Island Branch........................ $30,750,000.00 8.78571428571%
Bank of Scotland............................................ $25,000,000.00 7.00000000000%
Bank of Nova Scotia......................................... $23,750,000.00 6.78571428571%
Paribas..................................................... $23,333,333.33 6.66666666571%
First Union Bank of North Carolina.......................... $23,333,333.33 6.66666666571%
PNC Bank.................................................... $23,750,000.00 6.78571428571%
Credit Agricole............................................. $17,500,000.00 5.00000000000%
Hibernia National Bank...................................... $15,000,000.00 4.28571428571%
Arab Banking Corporation (B.S.C.)........................... $10,000,000.00 2.85714285714%
