EXHIBIT 10.36
SECOND AMENDMENT AND RESTATEMENT
SECOND AMENDMENT AND RESTATEMENT, dated as of November 13, 2001 (this
"AMENDMENT AND RESTATEMENT"), to that certain AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of April 6, 2001 (the "EXISTING AGREEMENT", and as amended
by this Amendment and Restatement, the "AMENDED AND RESTATED AGREEMENT"), among
TEPPCO PARTNERS, L.P., a Delaware limited partnership (the "BORROWER"), the
lenders party thereto and SunTrust Bank, as administrative agent for the lenders
party thereto and as issuer of letters of credit (the "AGENT").
PRELIMINARY STATEMENT
The Borrower, certain lenders and the Agent previously entered into the
Existing Agreement. The Borrower and the other parties hereto (the "LENDERS")
now wish to amend the Existing Agreement in its entirety to read as set forth in
the Existing Agreement with the amendments set forth below. The parties
therefore agree as follows (capitalized terms used but not defined herein having
the meanings assigned to such terms in the Existing Agreement):
SECTION 1. AMENDMENTS TO EXISTING AGREEMENT. The Existing Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) Schedule 2 is hereby amended in its entirety to read as
set forth in Exhibit A attached hereto.
(b) Paragraph (ii) of Section 3.2(c) is amended in its
entirety to read as follows:
"The Borrower shall promptly notify the Administrative Agent
upon the receipt of Net Cash Proceeds of any Asset Disposition or
Recovery Event and, at any time that such Net Cash Proceeds received
and not previously applied to any prepayment pursuant to this Section
3.2(c)(ii) shall equal or exceed $10,000,000, the Borrower shall prepay
Borrowings, together with payment of any Funding Losses, and/or deposit
funds in the Cash Collateral Account in respect of LC Outstandings
pursuant to Section 12.1(d), as applicable, in an aggregate amount
equal to 100% (without duplication) of such Net Cash Proceeds to the
Borrowings and/or the cash collateralization of LC Outstandings
pursuant to Section 12.1(d)."
SECTION 2. CONDITIONS OF EFFECTIVENESS OF AMENDMENT AND RESTATEMENT.
Section 1 of this Amendment and Restatement shall become effective as of the
date first set forth above when each of the following conditions shall have been
fulfilled:
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(i) all of the Lenders and the Borrower shall have executed
and delivered to the Agent a counterpart of this Amendment and
Restatement;
(ii) all of the Guarantors shall have executed and delivered
the consent to this Amendment and Restatement in substantially the form
of Exhibit B attached hereto;
(iii) the representations and warranties set forth in Section
3 hereof shall be true and correct on and as of the date of
effectiveness of this Amendment and Restatement as though made on and
as of such date; and
(iv) the Borrower shall have delivered an opinion of counsel
in form reasonably acceptable to the Agent.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants that (a) the representations and warranties contained in Article VII of
the Amended and Restated Agreement (with each reference therein to (i) "this
Agreement", "hereunder" and words of like import referring to the Existing
Agreement being deemed to be a reference to this Amendment and Restatement and
the Amended and Restated Agreement and (ii) "Credit Documents", "thereunder" and
words of like import being deemed to include this Amendment and Restatement and
the Amended and Restated Agreement) are true and correct on and as of the date
hereof as though made on and as of such date, and (b) no event has occurred and
is continuing, or would result from the execution and delivery of this Amendment
and Restatement, that constitutes an Event of Default.
SECTION 4. EFFECT ON THE CREDIT AGREEMENT. Except as specifically
amended above, the Existing Agreement shall continue to be in full force and
effect and is hereby in all respects ratified and confirmed. The execution,
delivery and effectiveness of this Amendment and Restatement shall not, except
as expressly provided herein, operate as a waiver of any right, power or remedy
of the Lenders under the Existing Agreement, nor constitute a waiver of any
provision of the Existing Agreement.
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution
and delivery of this Amendment and Restatement, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Agent with
respect thereto, and all costs and expenses (including, without limitation,
counsel fees and expenses), if any, in connection with the enforcement (whether
through negotiations, legal proceedings or otherwise) of this Amendment and
Restatement. In addition, the Borrower agrees to pay any and all stamp and other
taxes payable or determined to be payable in connection with the execution and
delivery of this Amendment and Restatement, and the other instruments and
documents to be delivered hereunder, and agree to save the Lenders and the Agent
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment and Restatement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same instrument.
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SECTION 7. GOVERNING LAW. This Amendment and Restatement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed and delivered by their respective duly
authorized officers as of the date first above written.
TEPPCO PARTNERS, L.P., as Borrower
By TEXAS EASTERN PRODUCTS
PIPELINE COMPANY, LLC, as General
Partner
By /s/ XXXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: SVP, CFO & Treasurer
SUNTRUST BANK, as Administrative Agent,
LC Issuing Bank and Lender
By /s/ XXXXX XXXXX
------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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UBS AG, STAMFORD BRANCH
By /s/ XXXXXXX X. SAINT
-------------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products
Services, US
By /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Associate Director
Banking Products Services, US
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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BANK ONE, NA
By /s/ XXXXXX XXXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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FIRST UNION NATIONAL BANK
By /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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THE BANK OF NEW YORK
By /s/ XXXXX X. XXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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ROYAL BANK OF CANADA
By /s/ XXXXX X. XxXXXXXXX
-------------------------------------
Name: Xxxxx X. XxXxxxxxx
Title: Manager
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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CREDIT LYONNAIS NEW YORK BRANCH
By /s/ XXXXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
S-8
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Associate Director
By /s/ XXXX XXXXX
-------------------------------------
Name: Xxxx Xxxxx
Title: Manager
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
S-9
INTENTIONALLY OMITTED
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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KBC BANK N.V.
By /s/ XXXX-XXXXXX DIELS
-------------------------------------
Name: Xxxx-Xxxxxx Diels
Title: First Vice President
By /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
S-11
BANK OF AMERICA, NATIONAL ASSOCIATION
By /s/ XXXXXX X. XxXXXX
-------------------------------------
Name: Xxxxxx X. XxXxxx
Title: Managing Director
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By /s/ XXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
and Manager
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
S-13
INTENTIONALLY OMITTED
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
S-14
INTENTIONALLY OMITTED
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
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NATEXIS BANQUES POPULAIRES
By /s/ XXXXX X. XXXXXXX, III
---------------------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Vice President and Group Manager
By /s/ XXXXXX XXXXX
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT
EXHIBIT A
SCHEDULE 2
LENDERS AND COMMITMENTS
LENDER COMMITMENT
SunTrust Bank $60,714,285.89
000 Xxxxxxxxx Xx. X.X.
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Vice President
Phone: 000-000-0000
Fax: 000-000-0000
Bank One, NA $53,571,428.55
Mail Code IL1-0363
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Assistant Vice President
Phone: 000-000-0000
Fax: 000-000-0000
First Union National Bank $53,571,428.55
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Vice President, Energy Investment Banking
Phone: 000-000-0000
Fax: 000-000-0000
UBS AG, Stamford Branch $49,999,999.69
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxxxx
Director
Phone: 000-000-0000
Fax: 000-000-0000
0
Xxx Xxxx xx Xxx Xxxx $35,714,285.70
Oil & Gas Division
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Vice President
Phone: 000-000-0000
Fax: 000-000-0000
Credit Lyonnais New York Branch $35,714,285.70
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Philippe Soustra
Executive Vice President
Phone: 000-000-0000
Fax: 000-000-0000
Royal Bank of Canada $35,714,285.70
(Royal Bank Financial Group)
Global Bank - Debt Products
0000 Xxxx Xxx Xxxx.
Xxxxxxx, XX 00000
Attn: Xxxxx XxXxxxxxx
Manager
Phone: 000-000-0000
Fax: 000-000-0000
Westdeutsche Landesbank Gironzentrale, New York Branch $28,571,428.56
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Director, Credit Department
Phone: 000-000-0000
Fax: 000-000-0000
Bank of America, National Association $17,857,142.85
Energy & Power - Houston
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Managing Director
Phone: 000-000-0000
Fax: 000-000-0000
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KBC Bank N.V $17,857,142.85
New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Vice President
Phone: 000-000-0000
Fax: 000-000-0000
The Industrial Bank of Japan, Limited $10,714,285.71
Corporate Finance Division # 1
000 Xxxxxxxxx Xx., X.X., Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. XxXxxx
Vice President
Phone: 404-524-8770 ext. 105
Fax: 000-000-0000
Natexis Banque Populaires $10,714,286.00
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Vice President and Group Manager
Phone: 000-000-0000
Fax: 000-000-0000
TOTAL COMMITMENTS $410,714,285.75
EXHIBIT B
FORM OF CONSENT
Dated as of November 13, 2001
The undersigned, [NAME OF GUARANTOR] (the "COMPANY"), as guarantor
under the Guaranty, dated as of April 6, 2001, made by the Company to SunTrust
Bank, as administrative agent (the "ADMINISTRATIVE AGENT") for the lenders (the
"LENDERS") party to the 3-Year Amended and Restated Credit Agreement, dated as
of April 6, 2001, as amended as of September 28, 2001 (as amended, the "CREDIT
AGREEMENT"), among TEPPCO Partners, L.P. (the "Borrower"), the Lenders and the
Administrative Agent, hereby consents to the amendment and restatement of the
Credit Agreement by the Second Amendment and Restatement, dated as of November
13, 2001 (the "AMENDMENT AND RESTATEMENT"), among the Borrower, the Lenders
signatories thereto and the Administrative Agent, and hereby confirms and agrees
that (i) the Guaranty is, and shall continue to be, in full force and effect and
is hereby ratified and confirmed in all respects except that, upon the
effectiveness of, and on and after the date of, the Amendment and Restatement,
each reference in the Guaranty to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement shall mean
and be a reference to the Credit Agreement, as amended by the Amendment and
Restatement and (ii) the Guaranty is, and shall continue to, be an unconditional
and irrevocable guaranty of all of the Obligations (as defined in the Guaranty).
[NAME OF GUARANTOR]
By
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Name:
Title:
