FIRST AMENDMENT TO SENIOR SECURED REVOLVING CREDIT AGREEMENT
Exhibit
99.1
FIRST AMENDMENT TO SENIOR
SECURED
REVOLVING CREDIT
AGREEMENT
THIS FIRST AMENDMENT TO SENIOR
SECURED REVOLVING CREDIT AGREEMENT (this “Amendment”),
is made and entered into as of February 21, 2008, by and among XXXXX XXXXXXXX
ENERGY DEVELOPMENT 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”).
W I T N E S S E T H:
WHEREAS,
the Borrower, the Lenders and the Administrative Agent are parties to a certain
Senior Secured Revolving Credit Agreement, dated as of June 4, 2007 (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 informed the Lenders and the Administrative Agent that it
intends to cease qualifying as a retail investment company under subchapter M of
the Code;
WHEREAS,
in connection therewith, the Borrower has requested that the Lenders and the
Administrative Agent amend certain provisions of the Credit Agreement, and
subject to the terms and conditions hereof, the Lenders and the Administrative
Agent 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
1.1 of the Credit Agreement is hereby amended by replacing the definition of
“Distributable Cash Flow” with the following new definition:
“Distributable
Cash Flow” shall mean for the Borrower, for any period and without
duplication, an amount equal to the sum of (i) the Borrower’s consolidated net
investment income for such period, plus (ii) dividends
with respect to capital stock of Kinder, Enbridge or a similar equity investment
approved by the Administrative Agent in its reasonable discretion paid in
additional shares of such capital stock during such period ("PIK
Shares") plus (iii) imputed
dividends received during such period in the form of MLP Units purchased at a
discount in privately negotiated transactions ("Imputed MLP
Dividends"), plus (iv) the return
of the capital portion of dividends and distributions earned during such period,
plus (v) the
net realized cash gains for such period, plus (vi) any income tax expense
included in net investment income or realized gains for such period, plus (vii)
any cash income tax refund received during such period, minus (viii) any
income tax benefit included in net investment loss or net realized losses for
such period, minus (ix) any cash income taxes paid during such period, in each
case determined on a consolidated basis in accordance with
GAAP; provided, that in no
event shall the amounts set forth in parts (ii) and (iii) above with respect
to PIK Shares and Imputed MLP Dividends for such period exceed 5% of the
aggregate amount of consolidated investment income for such period (including
the return of the capital portion of dividends and distributions earned during
such period), as determined on a consolidated basis in accordance with GAAP;
provided,
further, the Borrower may include one hundred percent (100%) of the cash
proceeds of any sale of PIK Shares or any Imputed MLP Dividends during such
period in the determination of Distributable Cash Flow for such period, without
duplication for any portion of such proceeds that constitutes the net realized
cash gain for such PIK Shares or such Imputed MLP Dividends. For the
avoidance of doubt, the amount included in Distributable Cash Flow as a result
of any sale of PIK Shares or Imputed MLP Dividends shall not be subject to the
5% limitation set forth in the proviso to clause (v) above.
(b) Section
5.10 of the Credit Agreement is hereby amended by replacing such Section in its
entirety with the following:
Section
5.10. Maintenance
of Business Development Company. The Borrower will maintain
its status as a “business development company” under the Investment Company Act
and shall remain in compliance with the Investment Company Act, including
without limitation, all leverage regulations specified in the Investment Company
Act.
2. 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 (i) the Company shall have paid and the Administrative Agent shall have
received 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) the Administrative Agent shall have received
executed counterparts to this Amendment from the Borrower, each of the
Guarantors and the Lenders.
3. Representations
and Warranties. To induce the
Lenders and the Administrative Agent to enter into this Amendment, each Loan
Party hereby represents and warrants to the Lenders and the Administrative
Agent:
(a) The
Borrower and each of its Subsidiaries (i) is duly organized, validly
existing and in good standing as a corporation, partnership or limited liability
company under the laws of the jurisdiction of its organization, (ii) has
all requisite power and authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to be
so qualified would not reasonably be expected to result in a Material Adverse
Effect;
(b)
The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is a party are within such Loan Party’s
organizational powers and have been duly authorized by all necessary
organizational, and if required, shareholder, partner or member,
action;
(c) The
execution, delivery and performance by the Borrower of this Agreement, and by
each Loan Party of the other Loan Documents to which it is a party (i) do not
require any consent or approval of, registration or filing with, or any action
by, any Governmental Authority, except those as have been obtained or made and
are in full force and effect, (ii) will not violate any Requirements of Law
applicable to Borrower or any of its Subsidiaries or any judgment, order or
ruling of any Governmental Authority, (iii) will not violate or result in a
default under any indenture, material agreement or other material instrument
binding on the Borrower or any of its Subsidiaries or any of its assets or give
rise to a right thereunder to require any payment to be made by the Borrower or
any of its Subsidiaries and (iv) will not result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries, except
Liens (if any) created under the Loan Documents;
(d) This
Amendment has been duly executed and delivered for the benefit of or on behalf
of each Loan Party and constitutes a legal, valid and binding obligation of each
Loan Party, enforceable against such Loan Party 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
(e) 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.
4. Reaffirmations
and Acknowledgments.
(a) Reaffirmation of
Guaranty. Each Guarantor consents to the execution and
delivery by the Borrower of this Amendment and jointly and severally ratify and
confirm the terms of the Guaranty Agreement with respect to the indebtedness now
or hereafter outstanding under the Credit Agreement as amended hereby and all
promissory notes issued thereunder. Each 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 Guaranty 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 Guarantors under the Guaranty Agreement.
(b) Acknowledgement of Perfection of Security
Interest. Each Credit Party 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.
5. 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.
6. 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.
7. 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.
8. 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.
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.
11. 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 Guarantors, by their respective authorized officers as of the
day and year first above written.
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BORROWER:
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XXXXX
XXXXXXXX ENERGY
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DEVELOPMENT
COMPANY
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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KED
MME Investment Partners, LP
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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KED
MME Investment GP, LLC
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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KED
LCP Investment Partners, LP
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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KED
LCP Investment GP, LLC
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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KED
DF Investment Partners, LP
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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KED
DF Investment GP, LLC
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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KED
VP Investment Partners, LP
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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KED
VP Investment GP, LLC
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By:
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/s/
XXXXX X. XXXX
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Name:
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Xxxxx
X. Xxxx
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Title:
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Chief
Financial Officer
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LENDERS:
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SUNTRUST
BANK, as Administrative Agent, as Issuing Bank and as a
Lender
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By
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/s/
XXXX X. XXXXXX
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Name:
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Xxxx
X. Xxxxxx
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Title:
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Director
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CITIBANK,
N.A., as Syndication Agent and as a Lender
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By:
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/s/
XXXX X. XXXXX
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Name:
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Xxxx
X. Xxxxx
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Title:
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Vice
President
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XXXXXXX
XXXXX BANK USA, as Co-Documentation Agent and as a
Lender
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By:
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/s/
XXXXX XXXXXXX
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Vice
President
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AMEGY
BANK, as a Lender
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By
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/s/
W. XXXXX XXXXXXX
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Name:
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W.
Xxxxx Xxxxxxx
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Title:
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Sr.
Vice President
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CUSTODIAL
TRUST COMPANY, as a Lender
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By:
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/s/
XXX X. XXXXXXXXXXX
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Name:
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Xxx
X. Xxxxxxxxxxx
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Title:
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President
& CEO
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