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EXHIBIT 10.3
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of September 22, 1999 (this "Amendment"), to
the Third Amended and Restated Credit Agreement, dated as of March 23, 1995, as
amended and restated through May 27, 1999 (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"),
LEVIATHAN FINANCE CORPORATION, a Delaware corporation (the "Co-Borrower"), the
banks and other financial institutions (the "Lenders") parties hereto, CREDIT
LYONNAIS, as Syndication Agent, BANKBOSTON, N.A., as Documentation Agent, and
THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative
agent (in such capacity, the "Administrative Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, extensions of credit to the Borrower and the Co-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 in order to permit the transactions described in Exhibit A to this
Amendment; and
WHEREAS, the Administrative Agent 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 Co-Borrower, the Administrative Agent, 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 Subsection 1.1. (a) Subsection 1.1 of the
Credit Agreement is amended by adding the following definitions in proper
alphabetical order:
"Affected Joint Venture": as defined in Exhibit A to Amendment
No. 1 dated as of September 22, 1999 to this Agreement.
"ANR": ANR Pipeline Company, a Delaware corporation.
"Leviathan/ANR Holdings": the one or more holding companies
(including Western Gulf, if applicable) to be formed by Leviathan and
ANR or an Affiliate of ANR
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to consummate the Leviathan/ANR Reorganization and which will hold the
equity interests to be contributed pursuant to the Leviathan/ANR
Reorganization.
"Leviathan/ANR Parent Holdings": the Subsidiary of the
Borrower which owns the Borrower's equity interests in Leviathan/ANR
Holdings.
"Leviathan/ANR Reorganization": the corporate, partnership and
limited liability company reorganization described in Exhibit A to
Amendment No. 1 dated as of September 22, 1999 to this Agreement.
(b) The definition of "Consolidated EBITDA" is amended by
deleting the phrase "Unrestricted Subsidiaries and Joint Ventures," which
appears at the end of clause (x) and substituting thereafter the phrase
"Unrestricted Subsidiaries and Joint Ventures (other than cash proceeds funded
from the refinancing of the original capital investment by the Borrower and its
Subsidiaries in Unrestricted Subsidiaries and Joint Ventures)".
(c) The definition of "Joint Venture" is amended by deleting
the proviso clause therefrom and substituting therefor the following:
provided that each of Leviathan/ANR Holdings and its
Subsidiaries shall be deemed to be a Joint Venture for
purposes of the Loan Documents unless any such Person becomes
a Subsidiary in accordance with the definition thereof and the
Borrower designates such Person as a Subsidiary.
(d) The definition of "Subsidiary" is amended by deleting the
last sentence therefrom and substituting therefor the following:
Notwithstanding the foregoing, from and after the
Leviathan/ANR Reorganization, each of Leviathan/ANR Holdings
and its Subsidiaries shall be deemed not to be Subsidiaries of
the Borrower unless, and to the extent, any of the foregoing
would otherwise be a Subsidiary and is designated as a
Subsidiary of the Borrower in a writing delivered by the
Borrower to the Administrative Agent.
(e) The definition of "Subsidiary Guarantors" is amended by
(i) adding the phase "Leviathan/ANR Parent Holdings," immediately after the
phase "Sailfish," and (ii) upon the liquidation of Stingray Holding, THC, TOGT
and TOPC pursuant to subsection 8.5(e), deleting the phrases "Stingray Holding,"
"THC," "TOGT," and "TOPC".
B. Amendment to Subsection 8.5. Subsection 8.5 of the Credit
Agreement is amended by (i) deleting the word "and" from the end of paragraph
(c), (ii) deleting the period from the end of paragraph (d) and substituting
therefor the phrase "; and" and (iii) adding the following now paragraph (e) at
the end thereof.
(e) to effect the Leviathan/ANR Reorganization,
including, without limitation, the dissolution, by merger or
otherwise, of any Subsidiaries of the Borrower that are
holding companies for any Affected Joint Venture.
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C. Amendment to Subsection 8.6. Subsection 8.6 of the Credit
Agreement is hereby amended by (i) deleting the word "and" from the end of
paragraph (a), (ii) deleting the period from the end of paragraph (b) and
substituting therefor the phrase ", and" and (iii) adding the following new
paragraph (c):
(c) to the extent necessary to effect the Leviathan/ANR
Reorganization.
D. Amendment to Subsection 8.8. Subsection 8.8 of the Credit
Agreement is amended by (i) deleting the word "and" from the end of clause (f),
(ii) deleting the period from the end of clause (g) and substituting therefor
the phrase "; and" and (iii) adding the following new paragraph (h) at the end
thereof.
(h) to the extent necessary to effect the Leviathan/ANR
Reorganization.
E. Amendment to Subsection 8.20. Subsection 8.20 of the Credit
Agreement is amended by adding the following at the end thereof:
except to the extent necessary to effect the Leviathan/ANR
Reorganization.
3. Waiver of Subsection 8.10. Subsection 8.10 of the Credit Agreement
is waived to the extent necessary to permit the consummation of the
Leviathan/ANR Reorganization, it being agreed that subsection 8.10 shall
continue to apply thereafter to transactions with or benefiting Leviathan/ANR
Holdings and its Subsidiaries.
4. Releases. In accordance with subsection 11.18 of the Credit
Agreement the Lenders authorize the Administrative Agent to take any action
reasonably requested by the Borrower upon the consummation of the Leviathan/ANR
Reorganization (a) to release any assets of or Capital Stock in Leviathan/ANR
Holdings or any Affected Joint Venture from the Liens created by the Loan
Documents and (b) to release any Subsidiaries Guarantee delivered by
Leviathan/ANR Holdings, any Affected Joint Venture or any Holding company for
any Affected Joint Venture if such holding company is liquidated in connection
with the Leviathan/ANR Reorganization.
5. 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 Co-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
("Acknowledgement") approving this Amendment.
(b) The Borrower and Leviathan/ANR Parent Holdings shall have
complied with subsections 7.10 and 8.17 of the Credit Agreement. Without
limitation of the foregoing, (i) the Capital Stock of Leviathan/ANR Parent
Holdings shall have been pledged to the Administrative Agent pursuant to the
Security Documents, (ii) Leviathan/ANR Parent Holdings shall have executed and
delivered to the Administrative Agent the Subsidiaries Guarantee, the Subsidiary
Security Agreement and a pledge agreement in a form reasonably requested by the
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Administrative Agent in order to pledge the Capital Stock of Leviathan/ANR
Parent Holdings to the Administrative Agent.
6. General.
(a) Representations and Warranties. After giving effect to the
effectiveness of this Amendment, 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 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.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the day and year first above written.
LEVIATHAN GAS PIPELINE PARTNERS, LP.
LEVIATHAN FINANCE CORPORATION
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ PHILLIPE SOUSINS
---------------------------------
Name: Phillipe Sousins
Title: Senior Vice President
BANKBOSTON, N.A.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
ARAB BANKING CORPORATION (B.S.C.)
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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XXX XXXX XX XXXX XXXXXX
By: /s/ F.C.H. XXXXX
---------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
BANK OF SCOTLAND
By: /s/ XXXXX XXXXX
---------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
BANK OF AMERICA NT&SA
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
CREDIT AGRICOLE INDOSUEZ
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Relationship Manager
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: First Vice President
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CIBC, INC.
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
Title: Authorized Signatory
CREDIT SUISSE FIRST BOSTON
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE FUJI BANK, LIMITED
By:
------------------------------------
Name:
---------------------------------
Title:
HIBERNIA NATIONAL BANK
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
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FIRST UNION NATIONAL BANK
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
KBC BANK, N.A.
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
XXXXX FARGO BANK (TEXAS), N.A.
By: /s/ XXXXXXXXX FAITH
------------------------------------
Name: Xxxxxxxxx Faith
Title: AVP
PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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PARIBAS
By: /s/ XXXXXX XXXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Vice President
MIESPIERSON CAPITAL CORP.
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Managing Director
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
BANK ONE, NA (formerly known as THE
FIRST NATIONAL BANK OF CHICAGO)
By:
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Name:
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Title:
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ACKNOWLEDGMENT
Each undersigned guarantors hereby consents and agrees to the foregoing
Amendment and acknowledges and agrees that (i) all obligations of the Borrower
and Co-Borrower under the Credit Agreement, as amended by the foregoing
Amendment, are Obligations which are secured and guaranteed by the Security
Documents to which it is a party, (ii) all references to the Credit Agreement in
the Security Documents refer to the Credit Agreement, as amended from time to
time (including pursuant to the foregoing Amendment) and (iii) all references to
Loans and Letters of Credit and Letters of Credit in the Security Documents
refer to the Loans and Letter of Credit under the Credit Agreement, as amended
by the foregoing Amendment.
LEVIATHAN GAS PIPELINE COMPANY
DELOS OFFSHORE COMPANY, L.L.C.
XXXXX BANK GATHERING COMPANY, L.L.C.
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
GREEN CANYON PIPELINE COMPANY, L.L.C.
LEVIATHAN OIL TRANSPORT SYSTEMS, L.L.C.
MANTA RAY GATHERING COMPANY, L.L.C.
POSEIDON PIPELINE COMPANY, L.L.C.
SAILFISH PIPELINE COMPANY, L.L.C.
STINGRAY HOLDING, L.L.C.
TARPON TRANSMISSION COMPANY
TRANSCO HYDROCARBONS COMPANY, L.L.C.
TEXAM OFFSHORE GAS TRANSMISSION, L.L.C.
TRANSCO OFFSHORE PIPELINE COMPANY, L.L.C.
VK DEEPWATER GATHERING COMPANY, L.L.C.
VK-MAIN PASS GATHERING COMPANY, L.L.C.
NATOCO, L.L.C.
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UTOS HOLDING, L.L.C.
MORAY PIPELINE COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer of Each Such Entity
