THIRD AMENDMENT TO MULTI-YEAR REVOLVING CREDIT AGREEMENT
EXHIBIT 4.47
THIRD AMENDMENT TO
MULTI-YEAR REVOLVING CREDIT AGREEMENT
MULTI-YEAR REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO MULTI-YEAR REVOLVING CREDIT AGREEMENT (this “Third Amendment”)
is made and entered into as of the 5th day of January, 2007 (the “Third Amendment
Effective Date”), among ENTERPRISE PRODUCTS OPERATING L.P., a Delaware limited partnership
(“Borrower”); WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent (in such
capacity, the “Administrative Agent”) for each of the lenders (the “Lenders”) that
is a signatory or which becomes a signatory to the hereinafter defined Credit Agreement; and the
Lenders party hereto.
RECITALS:
A. On August 25, 2004, the Borrower, the Lenders and the Administrative Agent entered into a
certain Multi-Year Revolving Credit Agreement, amended by that certain First Amendment to
Multi-Year Revolving Credit Agreement dated October 5, 2005 and that certain Second Amendment to
Multi-Year Revolving Credit Agreement dated June 22, 2006 (the “Credit Agreement”) whereby,
upon the terms and conditions therein stated, the Lenders agreed to make certain Loans (as defined
in the Credit Agreement) and extend certain credit to the Borrower.
B. The parties hereto mutually desire to amend the Credit Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
Borrower, the Lenders party hereto and the Administrative Agent hereby agree as follows:
1. Certain Definitions.
1.1 Terms Defined Above. As used in this Third Amendment, the terms “Administrative
Agent”, “Borrower”, “Credit Agreement”, “Third Amendment” and “Third Amendment Effective Date”,
shall have the meanings indicated above.
1.2 Terms Defined in Agreement. Unless otherwise defined herein, all terms beginning
with a capital letter which are defined in the Credit Agreement shall have the same meanings herein
as therein unless the context hereof otherwise requires.
2. Amendments to Credit Agreement.
2.1 Defined Terms.
(a) The term “Agreement,” as defined in Section 1.01 of the Credit Agreement, is hereby
amended to mean the Credit Agreement, as amended and supplemented by this Third Amendment and as
the same may from time to time be further amended or supplemented.
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(b) The reference to “franchise tax in the nature of an income or gross receipts tax” set
forth in the parenthetical contained in clause (a)(ii) of the definition of “Consolidated EBITDA”
as defined in Section 1.01 of the Credit Agreement is hereby amended to refer instead to “franchise
tax or margin tax in the nature of an income or gross receipts tax”, and the reference to “the
amount of cash dividends actually received during such period by the Borrower or a Subsidiary
(other than a Project Finance Subsidiary) from a Project Finance Subsidiary” set forth in clause
(b) of such definition is hereby amended to refer instead to “the amount of cash dividends or
distributions payable with respect to such period by a Project Finance Subsidiary or DEP which are
actually received by the Borrower or a Subsidiary (other than a Project Finance Subsidiary) on or
prior to the date the financial statements with respect to such period referred to in Section 5.01
are required to be delivered by the Borrower”.
(c) Clause (k) of the definition of “Permitted Liens” as defined in Section 1.01 of the Credit
Agreement is hereby amended in its entirety to read as follows:
(k) any lien upon any property or assets (i) existing thereon at the time of the
acquisition thereof by the Borrower, any Subsidiary or the Limited Partner, (ii) existing
thereon at the time such Person becomes a Subsidiary by acquisition, merger or otherwise, or
(iii) acquired by any Person after the time such Person becomes a Subsidiary by acquisition,
merger or otherwise, to the extent such lien is created by security documents existing at
the time such Person becomes a Subsidiary and not added to such security documents in
contemplation thereof;
(d) The reference to “a Subsidiary that is created principally to” set forth in the definition
of “Project Finance Subsidiaries” as defined in Section 1.01 of the Credit Agreement is hereby
amended to refer instead to “a Subsidiary that is (A) created principally to”, and such definition
is further amended and supplemented by adding a new clause (B) at the end thereof, to read as
follows:
and (B) designated as a Project Finance Subsidiary by the Borrower in writing to
Administrative Agent.
(e) The definition of “Subsidiary” as defined in Section 1.01 of the Credit Agreement is
hereby amended and supplemented by adding the following proviso at the end thereof, to read as
follows:
; provided, notwithstanding the foregoing, neither DEP nor any of its Subsidiaries
shall constitute or be deemed to be a Subsidiary of the Borrower or any of its Subsidiaries.
2.2 Additional Defined Terms. Section 1.01 of the Credit Agreement is hereby further
amended and supplemented by adding the following new definitions, which read in their entirety as
follows:
“DEP” means Xxxxxx Energy Partners L.P., a Delaware limited partnership.
“Notes” means any promissory notes issued by the Borrower pursuant to Section
2.10(e)
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“Third Amendment” means that certain Third Amendment to Multi-Year Revolving
Credit Agreement dated as of January 5, 2007, among the Borrower, the Lenders party thereto
and the Administrative Agent.
“Third Amendment Effective Date” means January 5, 2007.
2.3 Separateness. The proviso following clause (v) of Section 2.20 of the Credit
Agreement is hereby deleted in its entirety.
2.4 Financial Statements. The reference to “within 60 days after the close of each
fiscal quarter of the Borrower” set forth in Section 5.01(d) of the Credit Agreement is hereby
amended to refer instead to “within 60 days after the close of each of the first three fiscal
quarters of each fiscal year of the Borrower.”
2.5 Financial Covenants. The first sentence of the second-to-last paragraph of
Section 6.07(b) of the Credit Agreement (which reads “For purposes of calculating such ratio the
Project Finance Subsidiaries shall be disregarded.”) is hereby amended in its entirety to read as
follows:
For purposes of calculating such ratio the Project Finance Subsidiaries shall be disregarded
and, following the initial public offering of DEP (as described in DEP’s Form S-1
Registration Statement filed December 15, 2006 with the SEC, as from time to time amended or
supplemented): (i) Consolidated EBITDA and Consolidated Interest Expense in any prior fiscal
quarters attributable to assets contributed to DEP shall be excluded from the calculation of
Consolidated EBITDA and Consolidated Interest Expense for such prior fiscal quarters;
however, such exclusion does not apply to, and there shall be included in such calculation,
(A) the amount of cash dividends or distributions payable with respect to such a period by a
Project Finance Subsidiary or DEP which are actually received by the Borrower or a
Subsidiary (other than a Project Finance Subsidiary) on or prior to the date the financial
statements with respect to such period referred to in Section 5.01 are required to be
delivered by Borrower, and (B) with respect to EBITDA of a subsidiary owned jointly by DEP
and the Borrower, excluding amounts actually dividended or distributed by such subsidiary
and received by the owners thereof, an amount equal to such subsidiary’s EBITDA
times the Borrower’s direct or indirect ownership percentage of the Equity Interests
in such subsidiary (other than through DEP), and (ii) for purposes of calculating such ratio
for the fiscal quarters ending prior to March 31, 2008, any dividends or distributions paid
by DEP, without duplication, which are actually received by the Borrower shall be annualized
as follows: (A) for the fiscal quarter ending March 31, 2007, such dividends or
distributions received during the period commencing with such initial public offering and
ending on the date the financial statements with respect to such period are required to be
delivered by the Borrower times 365 divided by the number of days from such
initial public offering to Xxxxx 00, 0000, (X) for the fiscal quarter ending June 30, 2007,
such dividends or distributions received during the period commencing with such initial
public offering and ending on the date the financial statements with respect to such period
are required to be delivered by the Borrower times 365 divided by the number
of days from such initial public offering to June 30, 2007, (C) for the fiscal quarter
ending September 30, 2007, such dividends or distributions received during the period
commencing with such initial public offering and ending on the date the financial statements
with respect to such period are required to be delivered by the Borrower times 365
divided by the number of days from such initial
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public offering to September 30, 2007, and (D) for the fiscal quarter ending December 31,
2007, such dividends or distributions received during the period commencing with such
initial public offering and ending on the date the financial statements with respect to such
period are required to be delivered by the Borrower times 365 divided by the
number of days from such initial public offering to December 31, 2007.
2.6 Notices. The reference to “all notices and other communications” set forth in the
first sentence of Section 9.01 of the Credit Agreement is hereby amended to refer instead to “and
except as provided in Section 9.01(f), all notices and other communications”, and such Section 9.01
is further amended and supplemented by amending Section 9.01(e) in its entirety and adding a new
Section 9.01(f) thereafter, to read as follows:
(e) if to any other Lender, to it at its address (or telecopy number) of record with
the Administrative Agent, which Administrative Agent shall provide to the Borrower or any
Lender upon request from time to time; and
(f) The Borrower will have the option to provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to the
Administrative Agent pursuant to this Agreement or any other document executed in connection
herewith, including, without limitation, all notices, requests, financial statements,
financial and other reports, certificates and other information materials, but excluding any
such communication that (i) relates to a request for a new, or a conversion of an existing,
Borrowing or other extension of credit (including any election of an interest rate or
Interest Period relating thereto) or relates to the issuance, amendment, renewal or
extension of any Letter of Credit, (ii) relates to the payment of any principal or other
amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice
of any Default or Event of Default, or (iv) other than the requirements set forth in
Sections 3.04(a), 4.01(j) and 5.01, is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any Borrowing, any issuance,
amendment, renewal or extension of any Letter of Credit or any other extension of credit
hereunder (all such non-excluded communications being referred to herein collectively as
“Communications”), by transmitting the Communications in an electronic/soft medium
in a format acceptable to the Administrative Agent. The Borrower further agrees that the
Administrative Agent may make the Communications available to the Lenders and the Issuing
Bank by posting the Communications on SyndTrak or a substantially similar electronic
transmission system (the “Platform”). The Borrower acknowledges that the
distribution of material through an electronic medium is not necessarily secure and that
there are confidentiality and other risks associated with such distribution. The
Platform is provided “as is” and “as available”. The Agent Parties (as defined below) do
not warrant the accuracy or completeness of the Communications, or the adequacy of the
Platform and expressly disclaim liability for errors or omissions in the Communications. No
warranty of any kind, express, implied or statutory, including, without limitation, any
warranty of merchantability, fitness for a particular purpose, non-infringement of third
party rights or freedom from viruses or other code defects, is made by the Agent Parties in
connection with the Communications or the Platform. In no event shall the Administrative
Agent or any of its affiliates or any of their respective officers, directors, employees,
agents, advisors or representatives (collectively, “Agent Parties”) have any liability to
the Borrower, any Lender or any other Person or entity for damages of any kind,
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including, without limitation, direct or indirect, special, incidental or
consequential damages, losses or expenses (whether in tort, contract or otherwise) arising
out of the Borrower’s or the Administrative Agent’s transmission of Communications through
the internet, except to the extent the liability of any Agent Party is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted primarily from
such Agent Party’s gross negligence or willful misconduct. The Administrative Agent
agrees that the receipt of the Communications by the Administrative Agent at its e-mail
address as specified by the Administrative Agent from time to time shall constitute
effective delivery of the Communications to the Administrative Agent for purposes of this
Agreement and any other documents executed in connection herewith. Each of the Issuing Bank
and the Lenders agrees that notice to it (as provided in the next sentence) specifying that
the Communications have been posted to the Platform shall constitute effective delivery of
the Communications to such Issuing Bank or Lender, as the case may be, for purposes of this
Agreement and any other documents executed in connection herewith. Each of the Issuing Bank
and the Lenders agrees (i) to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Issuing Bank’s or Lender’s, as the case
may be, e-mail address to which the foregoing notice may be sent by electronic transmission,
and (ii) that the foregoing notice may be sent to such e-mail address. Nothing herein shall
prejudice the right of the Administrative Agent or any Lender to give any notice or other
communication pursuant hereto or any other document executed in connection herewith in any
other manner specified herein or therein.
2.7 Conditions Precedent. The obligation of the Lenders party hereto and the
Administrative Agent to enter into this Third Amendment shall be conditioned upon the following
conditions precedent:
(a) The Administrative Agent shall have received a copy of this Third Amendment, duly
completed and executed by the Borrower and Required Lenders; and acknowledged and ratified by the
Limited Partner pursuant to a duly executed Acknowledgement and Ratification in the form of Exhibit
A attached hereto;
(b) The Administrative Agent shall have received a certificate, dated the Third Amendment
Effective Date and signed by the President, an Executive Vice President or a Financial Officer of
the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02 of the Credit Agreement, and Section 2.5(d) hereof.
(c) The Administrative Agent shall have received all fees and other amounts due and payable on
or prior to the Third Amendment Effective Date, including, to the extent invoiced five (5) Business
Days prior to closing, reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(d) As of the Third Amendment Effective Date, no Material Adverse Change exists.
(e) The Administrative Agent shall have received such other information, documents or
instruments as it or its counsel may reasonably request.
3. Representations and Warranties. The Borrower represents and warrants that:
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(a) there exists no Default or Event of Default, or any condition or act which constitutes, or
with notice or lapse of time or both would constitute, an Event of Default under the Credit
Agreement, as hereby amended and supplemented;
(b) the Borrower has performed and complied with all covenants, agreements and conditions
contained in the Credit Agreement, as hereby amended and supplemented, required to be performed or
complied with by it; and
(c) the representations and warranties of the Borrower contained in the Credit Agreement, as
hereby amended and supplemented, were true and correct in all material respects when made, and are
true and correct in all material respects at and as of the time of delivery of this Third
Amendment, except to the extent such representations and warranties relate to an earlier date, in
which case such representations and warranties were true and correct in all material respects as of
such earlier date.
4. Extent of Amendments. Except as expressly herein set forth, all of the terms,
conditions, defined terms, covenants, representations, warranties and all other provisions of the
Credit Agreement are herein ratified and confirmed and shall remain in full force and effect.
5. Counterparts. This Third Amendment may be executed in two or more counterparts,
and it shall not be necessary that the signatures of all parties hereto be contained on any one
counterpart hereof; each counterpart shall be deemed an original, but all of which together shall
constitute one and the same instrument.
6. References. On and after the Third Amendment Effective Date, the terms
“Agreement”, “hereof”, “herein”, “hereunder”, and terms of like import when used in the Credit
Agreement shall, except where the context otherwise requires, refer to the Credit Agreement, as
amended and supplemented by this Third Amendment.
7. Governing Law. This Third Amendment shall be governed by and construed in
accordance with the laws of the State of New York and applicable federal law.
THIS THIRD AMENDMENT, THE CREDIT AGREEMENT, AS AMENDED HEREBY, THE NOTES AND THE OTHER
DOCUMENTS EXECUTED IN CONNECTION HEREWITH OR THEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
This Third Amendment shall benefit and bind the parties hereto, as well as their respective
assigns, successors, heirs and legal representatives.
[Signatures Begin on Next Page]
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EXECUTED as of the Third Amendment Effective Date.
| BORROWER: | ||||
| ENTERPRISE PRODUCTS OPERATING L.P. | ||||
| By: | Enterprise Products OLPGP, Inc., General Partner | |||
| By | /s/ W. Xxxxxxx Xxxxxx
|
|||||
| Senior Vice President and Treasurer |
S-1
| WACHOVIA BANK, NATIONAL ASSOCIATION, individually, as Administrative Agent, as Issuing Bank and as Swingline Lender |
||||
| By | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Director | |||
S-2
| CITIBANK, N.A. Individually and as Co-Syndication Agent |
||||
| By | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Attorney-in-Fact | |||
S-3
| JPMORGAN CHASE BANK, Individually and as Co-Syndication Agent |
||||
| By | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
S-4
| MIZUHO CORPORATE BANK, LTD., Individually and as Co-Documentation Agent |
||||
| By | /s/ Xxxx Mo | |||
| Name: | Xxxx Mo | |||
| Title: | Senior Vice President | |||
S-5
| SUNTRUST BANK, Individually and as Co-Documentation Agent |
||||
| By | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
S-6
| THE BANK OF NOVA SCOTIA, Individually and as Co-Documentation Agent |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Managing Director | |||
S-7
| BARCLAYS BANK PLC, Individually and as a Senior Managing Agent |
||||
| By | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Director | |||
X-0
| XXXXXXXXXX XXXX-XXX XXXXXXXXXXX XX, XXX XXXX BRANCH,
Individually and as
a Senior Managing Agent |
||||
| By | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Director | |||
| By | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Loan Specialist | |||
S-9
| BMO CAPITAL MARKETS FINANCING, INC., Individually and as a Senior Managing Agent |
||||
| By | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Vice President | |||
X-00
| XXX XXXXX XXXX XX XXXXXXXX plc, Individually and as a Senior Managing Agent |
||||
| By | /s/ Xxxxxxx Main | |||
| Name: | Xxxxxxx Main | |||
| Title: | Managing Director | |||
S-11
| BANK OF AMERICA, N.A., Individually and as a Managing Agent |
||||
| By | /s/ Xxxxxxx Menelik | |||
| Name: | Xxxxxxx Menelik | |||
| Title: | Vice President | |||
S-12
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., HOUSTON AGENCY, Individually and as a Managing Agent | ||||
| By | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Vice President & Manager | |||
S-13
| BNP PARIBAS, Individually and as a Managing Agent |
||||
| By: | /s/ X. Xxxxxxxx | |||
| Name: | X. Xxxxxxxx | |||
| Title: | Director | |||
| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice President | |||
S-14
| XXXXXX COMMERCIAL PAPER INC., Individually and as a Managing Agent |
||||
| By | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Authorized Signatory | |||
S-15
| XXXXXX XXXXXXX BANK, Individually and as a Managing Agent |
||||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Authorized Signatory, Xxxxxx Xxxxxxx Bank | |||
S-16
| UBS LOAN FINANCE LLC, Individually and as a Managing Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
| By | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Associate Director | |||
S-17
| SOCIETE GENERALE, Individually and as Co-Agent |
||||
| By | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Director | |||
S-18
| XXXXXXX SACHS CREDIT PARTNERS L.P., a Lender |
||||
| By | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Authorized Signatory | |||
S-19
| ING CAPITAL LLC, a Lender |
||||
| By | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Managing Director | |||
S-20
| SUMITOMO MITSUI BANKING CORPORATION, a Lender |
||||
| By | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | General Manager | |||
S-21
| DNB NOR BANK ASA, Individually and as Co-Agent |
||||
| By | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Senior Vice President | |||
| By | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Vice President | |||
X-00
| XXXXX XXXX XX XXXXXX, Individually and as Co-Agent |
||||
| By | /s/ Xxxxx X. XxXxxxxxx | |||
| Name: | Xxxxx X. XxXxxxxxx | |||
| Title: | Authorized Signatory | |||
S-23
| XXXXXXX XXXXX BANK USA, a Lender |
||||
| By | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Director | |||
S-24
| CAPITAL ONE, N.A., a Lender |
||||
| By | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
S-25
EXHIBIT A
ACKNOWLEDGMENT AND RATIFICATION OF GUARANTOR
The undersigned (“Guarantor”) hereby expressly (i) acknowledges the terms of the
foregoing Third Amendment to Multi-Year Revolving Credit Agreement; (ii) ratifies and affirms its
obligations under its Guaranty Agreement dated as of August 25, 2004, in favor of the
Administrative Agent; (iii) acknowledges, renews and extends its continued liability under said
Guaranty Agreement and Guarantor hereby agrees that its Guaranty Agreement remains in full force
and effect; and (iv) guarantees to the Administrative Agent the prompt payment when due of all
amounts owing or to be owing by it under its Guaranty Agreement pursuant to the terms and
conditions thereof, as modified hereby.
The foregoing acknowledgment and ratification of the undersigned Guarantor shall be evidenced
by signing the space provided below, to be effective as of the Third Amendment Effective Date.
| ENTERPRISE PRODUCTS PARTNERS L.P., | ||||||
| a Delaware limited partnership | ||||||
| By: | Enterprise Products GP, LLC, General Partner |
|||||
| By: | /s/ W. Xxxxxxx Xxxxxx
|
|||||
| W. Xxxxxxx Xxxxxx | ||||||
| Senior Vice President and Treasurer | ||||||
