SECOND AMENDMENT TO TREASURY SECURED REVOLVING CREDIT AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT TO TREASURY SECURED
REVOLVING
CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO
TREASURY SECURED REVOLVING CREDIT AGREEMENT (this
“Amendment”), is made effective as of October 18,
2007, by and among NGP CAPITAL RESOURCES COMPANY, a Maryland
corporation (the “Borrower”), the several banks and
other financial institutions from time to time party hereto (collectively,
the
“Lenders”) and SUNTRUST BANK, in its
capacity as Administrative Agent for the Lenders (the
“Administrative Agent”).
WITNESSETH:
WHEREAS,
the Borrower, the Lenders and the Administrative Agent are parties to a certain
Treasury Secured Revolving Credit Agreement, dated as of August 31, 2006
(as
amended, restated, supplemented or otherwise modified from time to time,
the
“Credit Agreement”; capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement), pursuant to which the Lenders have made certain financial
accommodations available to the Borrower;
WHEREAS,
the Borrower has requested that the Lenders and the Administrative Agent
amend
certain provisions of the Credit Agreement to clarify such provisions, and
subject to the terms and conditions hereof, the Lenders are willing to do
so;
NOW,
THEREFORE, for good and valuable consideration, the sufficiency and receipt
of
all of which are acknowledged, the Borrower, the Lenders and the Administrative
Agent agree as follows:
1. Amendments.
(a)
Section 2.21 of the Credit Agreement is hereby amended by replacing such
Section
in its entirety with the following:
Section
2.21 Increase
of Commitments; Additional Lenders.
(a) So
long as no Event of
Default has occurred and is continuing, from time to time after the Closing
Date, the Borrower may, by written notice to the Administrative Agent (who
shall
promptly provide a copy of such notice to each Lender), propose to increase
the
Aggregate Commitment Amount to an amount not to exceed $175,000,000 (the
amount
of any such increase, the “Additional Commitment Amount”). At
the election of the Borrower, if specified in such notice, each Lender shall
have the right for a period of 15 Business Days following receipt of such
notice, to elect by written notice to the Borrower and the Administrative
Agent
to increase its Treasury Revolving Commitment by a principal amount equal
to its
Pro Rata Share of the Additional Commitment
Amount. No
Lender (or any successor thereto) shall have any obligation to increase its
Treasury Revolving Commitment or its other obligations under this Agreement
and
the other Loan Documents, and any decision by a Lender to increase its Treasury
Revolving Commitment shall be made in its sole discretion independently from
any
other Lender.
(b)
If
the Borrower elected to not offer each Lender the right to elect to increase
its
Treasury Revolving Commitment pursuant to subsection (a) of this Section
2.21, or if any Lender shall not make such election, the Borrower may accept
from any Lender or Lenders, on a non-pro rata basis, an increase in its or
their
Treasury Revolving Commitment or may designate another bank or other financial
institution that is not an existing Lender (an “Additional Lender”) to
become a party to this Agreement and make a Treasury Revolving Commitment,
in
each case if such Lender or Additional Lender at the time agrees to;
provided, however, that any new bank or financial institution must
be acceptable to the Administrative Agent, which acceptance will not be
unreasonably withheld or delayed. The sum of the increases in the
Treasury Revolving Commitments of the existing Lenders pursuant to subsection
(a), if applicable, or this subsection (b) plus the Treasury Revolving
Commitments of the Additional Lenders shall not in the aggregate exceed the
Additional Commitment Amount.
(c)
An
increase in the aggregate amount of the Treasury Revolving Commitments pursuant
to this Section 2.21 shall become effective upon the receipt by the
Administrative Agent of an supplement or joinder in form and substance
satisfactory to the Administrative Agent executed by the Borrower, by each
Additional Lender and by each other Lender whose Treasury Revolving Commitment
is to be increased, setting forth the new Treasury Revolving Commitments
of such
Lenders and setting forth the agreement of each Additional Lender to become
a
party to this Agreement and to be bound by all the terms and provisions hereof,
together with Treasury Revolving Credit Notes evidencing such increase in
the
Treasury Revolving Commitments, and such evidence of appropriate corporate
authorization on the part of the Borrower with respect to the increase in
the
Treasury Revolving Commitments and such opinions of counsel for the Borrower
with respect to the increase in the Treasury Revolving Commitments as the
Administrative Agent may reasonably request.
(d)
Upon
the acceptance of any such supplement or joinder by the Administrative Agent,
the Treasury Revolving Commitment Amount shall automatically be increased
by the
amount of the Treasury Revolving Commitments added through such supplement
or
joinder and Schedule II shall automatically be deemed amended to reflect
the Treasury Revolving Commitments of all Lenders after giving effect to
the
addition of such Treasury Revolving Commitments.
2. Acknowledgement
with respect to Increase. Commerzbank, AG and
Administrative Agent hereby agree and acknowledge that simultaneously herewith
Commerzbank, AG is increasing its Treasury Revolving Commitment to
$60,000,000. This
Amendment
shall constitute a supplement required pursuant to Section 2.21 and Schedule
II shall automatically be deemed amended to reflect the Treasury Revolving
Commitments of all Lenders after giving effect to the increase in the Treasury
Revolving Commitment of Commerzbank, AG.
3. Conditions
to Effectiveness of this
Amendment. Notwithstanding any other
provision of this Amendment and without affecting in any manner the rights
of
the Lenders hereunder, it is understood and agreed that this Amendment shall
not
become effective, and the Borrower shall have no rights under this Amendment,
until the Administrative Agent shall have received (i) reimbursement or payment
of its costs and expenses incurred in connection with this Amendment or the
Credit Agreement (including reasonable fees, charges and disbursements of
King
& Spalding LLP, counsel to the Administrative Agent), and (ii) executed
counterparts to this Amendment from the Borrower, each of the Subsidiary
Guarantors and the Lenders.
4. Representations
and Warranties. To induce the Lenders
and the Administrative Agent to enter into this Amendment, Borrower hereby
represents and warrants to the Lenders and the Administrative Agent
that:
(a) The
execution, delivery and performance by Borrower of this Amendment (i) is
within
Borrower’s power and authority; (ii) has been duly authorized by all necessary
corporate and shareholder action; (iii) is not in contravention of any provision
of Borrower’s certificate of incorporation or bylaws or other organizational
documents; (iv) does not violate any law or regulation, or any order or decree
of any Governmental Authority; (v) does not conflict with or result in the
breach or termination of, constitute a default under or accelerate any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which Borrower or any of its Subsidiaries
is a
party or by which Borrower or any such Subsidiary or any of their respective
property is bound; (vi) does not result in the creation or imposition of
any
Lien upon any of the property of Borrower or any of its Subsidiaries; and
(vii)
does not require the consent or approval of any Governmental Authority or
any
other person;
(b) This
Amendment has been duly executed and delivered for the benefit of or on behalf
of Borrower and constitutes a legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms except as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditors’ rights and remedies in general;
and
(c) After
giving effect to this Amendment, the representations and warranties contained
in
the Credit Agreement and the other Loan Documents are true and correct in
all
material respects, and no Default or Event of Default has occurred and is
continuing as of the date hereof.
5. Reaffirmations
and Acknowledgments.
(a) Reaffirmation
of Subsidiary Guaranty. Each Subsidiary Guarantor consents to the
execution and delivery by the Borrower of this Amendment and jointly and
severally ratify and confirm the terms of the Subsidiary Guarantee Agreement
with respect to the indebtedness now
or
hereafter outstanding under the Credit Agreement as amended hereby and all
promissory notes issued thereunder. Each Subsidiary Guarantor acknowledges
that,
notwithstanding anything to the contrary contained herein or in any other
document evidencing any indebtedness of the Borrower to the Lenders or any
other
obligation of the Borrower, or any actions now or hereafter taken by the
Lenders
with respect to any obligation of the Borrower, the Subsidiary Guarantee
Agreement (i) is and shall continue to be a primary obligation of the
Guarantors, (ii) is and shall continue to be an absolute, unconditional,
joint
and several, continuing and irrevocable guaranty of payment, and (iii) is
and
shall continue to be in full force and effect in accordance with its
terms. Nothing contained herein to the contrary shall release,
discharge, modify, change or affect the original liability of the Subsidiary
Guarantors under the Subsidiary Guarantee Agreement.
(b) Acknowledgment
of Perfection of Security Interest. Borrower and each Subsidiary Guarantor
hereby acknowledges that, as of the date hereof, the security interests and
liens granted to the Administrative Agent and the Lenders under the Credit
Agreement and the other Loan Documents are in full force and effect, are
properly perfected and are enforceable in accordance with the terms of the
Credit Agreement and the other Loan Documents.
6. Effect
of Amendment. Except as set forth expressly herein, all
terms of the Credit Agreement, as amended hereby, and the other Loan Documents
shall be and remain in full force and effect and shall constitute the legal,
valid, binding and enforceable obligations of the Borrower to the Lenders
and
the Administrative Agent. The execution, delivery and effectiveness
of this Amendment shall not, except as expressly provided herein, operate
as a
waiver of any right, power or remedy of the Lenders under the Credit Agreement,
nor constitute a waiver of any provision of the Credit
Agreement. This Amendment shall constitute a Loan Document for all
purposes of the Credit Agreement.
7. Governing
Law. This Amendment shall be governed
by, and construed in accordance with, the internal laws of the State of New
York
and all applicable federal laws of the United States of America.
8. No
Novation. This Amendment is not
intended by the parties to be, and shall not be construed to be, a novation
of
the Credit Agreement or an accord and satisfaction in regard
thereto.
9. Costs
and Expenses. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of outside counsel
for the Administrative Agent with respect thereto.
11. 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.
12. 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.
[Signature
Pages To Follow]
IN
WITNESS WHEREOF, the parties hereto
have caused this Amendment to be duly executed, under seal in the case of
the
Borrower and the Subsidiary Guarantors, by their respective authorized officers
as of the day and year first above written.
BORROWER:
By:
________________________________
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
SUBSIDIARY
GUARANTORS:
NGPC
FUNDING GP, LLC
By:
______________________________
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
NGPC
FUNDING, LP
By:
NGPC
Funding GP, LLC
Its
general partner
By:
______________________________
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
NGPC
ASSET HOLDINGS GP, LLC
By:
______________________________
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
NGPC
ASSET HOLDINGS, LP
By:
NGPC
Asset Holdings GP, LLC
Its
general partner
By:
______________________________
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
NGPC
NEVADA, LLC
By:
______________________________
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
LENDERS:
SUNTRUST
BANK, individually and as Administrative Agent and as a
Lender
By:
Name:
Title:
COMMERZBANK,
AG
By:
Name:
Xxxxxx Xxxxxxxx
Title: Senior
Vice
president
By:
Name: Xxxxx
Xxx
Title:
Assistant
Treasurer
LANDESBANK
BADEN-WÜRTTEMBERG
By:
Name: Xxxxxx
Xxxxxx
Title: Vice
President
By:
Name: Xxxxxx
Xxxxxxxxx
Title: Assistant
Vice
President
BRANCH
BANK &TRUST CO.
By:
Name: Xxxx
Xxxxx
Title:
Senior Vice
President
AMERICAN
NATIONAL BANK
By:
Name: XXXX
X.
XXXX
Title: VICE
PRESIDENT
