AMENDMENT NO. 2
EXHIBIT
10.1 EXECUTION
COPY
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0, dated as of November 27, 2007 (this “Amendment”), by and among
BOARDWALK PIPELINES, LP, a Delaware limited partnership (the “Parent
Borrower”), TEXAS GAS TRANSMISSION, LLC, a Delaware limited liability
company (“Texas Gas”), and GULF SOUTH PIPELINE COMPANY,
LP, a Delaware limited partnership (“Gulf South” and,
together with the Parent Borrower and Texas Gas, the “Borrowers”),
severally as Borrowers, BOARDWALK PIPELINE PARTNERS, LP, a Delaware limited
partnership (the “MLP”), the Lenders party hereto, WACHOVIA BANK,
NATIONAL ASSOCIATION, as administrative agent for the Lenders and the Issuers
(in such capacity, the “Administrative Agent”), CITIBANK, N.A. and
JPMORGAN CHASE BANK, N.A., as co-syndication agents, DNB NOR BANK ASA, as
documentation agent, and WACHOVIA CAPITAL MARKETS LLC, CITIGROUP GLOBAL MARKETS
INC. and X.X. XXXXXX SECURITIES INC., as joint lead arrangers and joint book
managers.
W
I T N E S S E T H:
WHEREAS,
the Borrowers, the MLP, the Administrative Agent, the Lenders and the other
parties thereto have entered into that certain Amended and Restated Revolving
Credit Agreement, dated as of June 29, 2006 (as amended, supplemented or
otherwise modified from time to time, the “Credit
Agreement”);
WHEREAS,
the Borrowers have requested, among other things, a Revolving Credit Commitment
Increase in the amount of $300,000,000; and
WHEREAS,
the Lenders have agreed, subject to the terms and conditions hereinafter
set
forth, to amend the Credit Agreement as set forth below.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereby agree as follows:
1. Defined
Terms. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. Amendments. Effective
as of the Effective Date (as defined below) and subject to the terms and
conditions set forth herein, the Credit Agreement is hereby amended as
follows:
(a) Section
1.1 (Defined Terms) of the Credit Agreement is hereby amended by inserting
the following definitions in the appropriate alphabetical order:
“Amendment
No. 2”: the Amendment No. 2, dated as of November 27, 2007, by
and among the Borrowers, the MLP, the Administrative Agent, and the Lenders
party thereto.
“Amendment
No. 2 Effective Date”: the “Effective Date” under and
as defined in Amendment No. 2.”
(b) The
definitions of “Revolving Credit Sublimit” and “Swing Line Sublimit” in
Section 1.1 (Defined Terms) of the Credit Agreement are hereby amended
and restated in their entirety as follows:
“Revolving
CreditSublimit”: initially, with respect to each
Borrower, the amount set forth opposite such Borrower’s name below:
|
Borrower
|
Revolving
Credit Sublimit
|
|
Parent
Borrower
|
$500,000,000
|
|
Texas
Gas
|
$200,000,000
|
|
Gulf
South
|
$300,000,000
|
The
Parent Borrower may adjust the Revolving Credit Sublimit for each Borrower
from
time to time upon 3 Business Days’ prior written notice to the Administrative
Agent; provided, however, that, except as otherwise provided
in the following proviso in connection with a Revolving Credit Commitment
Increase, (a) the Parent Borrower’s Revolving Credit Sublimit shall not exceed
$1,000,000,000, (b) Texas Gas’ Revolving Credit Sublimit shall not exceed
$1,000,000,000, (c) Gulf South’s Revolving Credit Sublimit shall not exceed
$1,000,000,000 and (d) the aggregate Revolving Credit Sublimits for all
Borrowers shall not exceed the then effective Revolving Credit Commitments;
provided, further, that each Revolving Credit Commitment
Increase shall increase the maximum Revolving Credit Sublimit for each Borrower
in the preceding proviso ratably in accordance with their respective maximum
Revolving Credit Sublimits immediately prior to such Revolving Credit Commitment
Increase.
“Swingline
Loan Sublimit”: $100,000,000.
(c) Section
2.1(b) (Incremental Credit Extensions) of the Credit Agreement is hereby
amended by (i) replacing the phrase “after giving effect to the Revolving Credit
Commitment Increase on the Amendment No. 1 Effective Date, the aggregate
amount
of all Revolving Credit Commitment Increases shall not exceed $300,000,000” in
clause (A) in the proviso therein with “after giving effect to the Revolving
Credit Commitment Increase on the Amendment No. 2 Effective Date, the aggregate
amount of all Revolving Credit Commitment Increases shall not exceed
$300,000,000” and (ii) replacing the reference to “$1,000,000,000 in clause (B)
in the proviso therein with “$1,300,000,000”.
(d) Schedule
I (Revolving Credit Commitments) to the Credit Agreement is hereby amended
and restated in its entirety to read as attached hereto as Annex I.
3. Conditions
to Effectiveness of this Amendment. This Amendment shall become
effective as of the date (the “Effective Date”) each of the following
conditions precedent shall have been satisfied:
(a) The
Administrative Agent shall have received on or prior to the Effective Date
each
of the following, each dated the Effective Date unless otherwise indicated
or
agreed to by the Administrative Agent and in form and substance satisfactory
to
the Administrative Agent:
(i) counterparts
of this Amendment duly executed and delivered by each of the Borrowers, the
MLP,
the Administrative Agent, the Issuer, the Swingline Lender, each Lender
participating in the Revolving Credit Commitment Increase and the Required
Lenders under the Credit Agreement;
(ii) written
commitments duly executed by existing Lenders (or their Affiliates or Approved
Funds) or Eligible Assignees in an aggregate amount equal to $300,000,000
and,
in the case of each such Eligible Assignee that is not an existing Lender,
an
assumption agreement in form and substance satisfactory to the Administrative
Agent and duly executed by the Parent Borrower, the Administrative Agent
and
such Eligible Assignee;
(iii) a
favorable opinion of (A) Xxxxxx & Xxxxxx LLP, counsel to the Loan
Parties, and (B) in-house counsel to the Loan Parties, each addressed to
the
Administrative Agent, the Lenders and the Issuers and addressing such matters
as
the Administrative Agent may reasonably request;
(iv) a
certificate of the Secretary or an Assistant Secretary of each Loan Party
certifying (A) the names and true signatures of each officer of such Loan
Party that has been authorized to execute and deliver this Amendment and
the
other documents required hereunder to be executed and delivered by or on
behalf
of such Loan Party, (B) the resolutions of such Loan Party’s Board of Directors
(or equivalent governing body) approving and authorizing the execution, delivery
and performance of this Amendment and the other documents required hereunder
to
be executed and delivered by or on behalf of such Loan Party and (C) that
there have been no changes in the certificate of incorporation (or equivalent
Constituent Document) and the by-laws (or equivalent Constituent Document)
of
such Loan Party from the certificate of incorporation (or equivalent Constituent
Document) and the by-laws (or equivalent Constituent Document) previously
delivered to the Administrative Agent on the Amendment No. 1 Effective Date
(or
if there has been such a change, attaching a certified copy
thereof);
(v) a
certificate of the chief financial officer of each Borrower in his capacity
as
such (and not in his individual capacity), in form and substance satisfactory
to
the Administrative Agent, attesting to the solvency of the Borrowers and
the MLP
after giving effect to the Revolving Credit Commitment Increase contemplated
hereby; and
(vi) a
certificate of a Responsible Officer of the Borrowers to the effect that
the
conditions set forth in Section 4.2(b) (Conditions Precedent to Each
Extension of Credit) of the Credit Agreement have been satisfied both
before and after giving effect to this Amendment.
(b) The
Administrative Agent shall have received a certificate as to the good standing
of each Loan Party, certified as of a recent date by the Secretary of State
of
the State of Delaware.
(c) There
shall have been paid to the Administrative Agent, for the account of itself
and
the Lenders, as applicable, all fees and expenses (including reasonable fees
and
expenses of counsel) due and payable on or before the Effective
Date.
4. Pro
Rata Participations. On the Effective Date, each Lender or
Eligible Assignee participating in the Revolving Credit Commitment Increase
pursuant to this Amendment shall purchase and assume from each existing Lender
having Revolving Loans and participations in Letters of Credit and Swingline
Loans outstanding on Effective Date, without recourse or warranty, an undivided
interest and participation, to the extent of such Lender’s Ratable Portion of
the new Revolving Credit Commitments (after giving effect to such Revolving
Credit Commitment Increase), in the aggregate outstanding Revolving Loans
and
participations in Letters of Credit and Swingline Loans, so as to ensure
that,
on the Effective Date after giving effect to such Revolving Credit Commitment
Increase, each Revolving Lender is owed only its Ratable Portion of the
Revolving Loans and participations in Letters of Credit and Swingline Loans
on
the Effective Date.
5. Representations
and Warranties. Each Loan Party hereby represents and warrants to
the Administrative Agent and the Lenders, on and as of the date hereof,
that:
(a) (i)
Such Loan Party has taken all necessary action to authorize the execution,
delivery and performance of this Amendment, (ii) this Amendment has been
duly
executed and delivered by such Loan Party and (iii) this Amendment is the
legal,
valid and binding obligation of such Loan Party, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the
enforcement of creditors’ rights generally and by general equitable
principles.
(b) After
giving effect to this Amendment, each of the representations and warranties
made
by any Loan Party in or pursuant to the Loan Documents (other than the
representations and warranties set forth in Sections 3.2 and 3.6 of the Credit
Agreement) is true and correct in all material respects on and as of the
date
hereof, as if made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties are true and correct in all material
respects as of such earlier date.
(c) After
giving effect to this Amendment, no Default or Event of Default has occurred
and
is continuing as of the date hereof.
6. Reaffirmation.
(a) Each
Loan Party hereby consents to the execution, delivery and performance of
this
Amendment and agrees that each reference to the Credit Agreement in the Loan
Documents shall, on and after the Effective Date, be deemed to be a reference
to
the Credit Agreement as amended by this Amendment.
(b) Each
Loan Party hereby acknowledges and agrees that, after giving effect to this
Amendment, all of its respective obligations and liabilities under the Loan
Documents to which it is a party are reaffirmed, and remain in full force
and
effect.
7. Continuing
Effect. Except as expressly set forth in this Amendment, all of
the terms and provisions of the Credit Agreement are and shall remain in
full
force and effect and the Borrower shall continue to be bound by all of such
terms and provisions. The Amendment provided for herein is limited to
the specific provisions of the Credit Agreement specified herein and shall
not
constitute an amendment of, or an indication of the Administrative Agent’s or
the Lenders’ willingness to amend or waive, any other provisions of the Credit
Agreement or the same sections for any other date or purpose.
8. Expenses. The
Borrowers agree to pay and reimburse the Administrative Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with the
negotiation, preparation, execution and delivery of this Amendment, and other
documents prepared in connection herewith, and the transactions contemplated
hereby, including, without limitation, reasonable fees and disbursements
and
other charges of counsel to the Administrative Agent and the charges of SyndTrak
Online relating to the Amendment.
9. Choice
of Law. This Amendment and the rights and obligations of the
parties hereto shall be governed by, and construed and interpreted in accordance
with the law of the State of New York.
10. Counterparts. This
Amendment may be executed in any number of counterparts and by different
parties
and separate counterparts, each of which when so executed and delivered,
shall
be deemed an original, and all of which, when taken together, shall constitute
one and the same instrument. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile or e-mail shall be effective
as
delivery of a manually executed counterpart of this Amendment.
11. Integration. This
Amendment, together with the other Loan Documents, incorporates all negotiations
of the parties hereto with respect to the subject matter hereof and is the
final
expression and agreement of the parties hereto with respect to the subject
matter hereof.
12. Severability. In
case any provision in this Amendment shall be invalid, illegal or unenforceable,
such provision shall be severable from the remainder of this Amendment and
the
validity, legality and enforceability of the remaining provisions shall not
in
any way be affected or impaired thereby.
13. Loan
Document. This Amendment is a Loan Document.
14. Waiver
of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT
AND ANY
OTHER LOAN DOCUMENT.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties have entered into this Amendment as of the date
first above written.
BOARDWALK
PIPELINES, LP,
as
Borrower
By:
Boardwalk Operating GP,
LLC,
its
general partner
its
managing member
By:
Boardwalk GP, LP,
its
general partner
By:
Boardwalk GP, LLC,
its
general partner
By:
Name:
Title:
TEXAS
GAS
TRANSMISSION, LLC,
as
Borrower
By:
Name:
Title:
GULF
SOUTH PIPELINE COMPANY, LP,
as
Borrower
By:
GS PIPELINE COMPANY,
LLC,
its
general partner
By:
Name:
Title:
By:
Boardwalk GP, LP,
its
general partner
By:
Boardwalk GP, LLC,
its
general partner
By:
Name:
Title:
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Administrative
Agent, Issuer, Swingline Lender and Lender
By:
Name:
Title:
,
as
a
Lender
By:
Name:
Title:
|
|
|
|
Annex
I
|
|
|
to
|
Schedule
I
Revolving
Credit Commitments
|
Lender
|
Revolving
Credit Commitment
|
|||
|
Wachovia
Bank, National Association
|
$ |
96,333,334
|
||
|
Citibank,
N.A.
|
$ |
96,333,333
|
||
|
JPMorgan
Chase Bank, N.A.
|
$ |
96,333,333
|
||
|
DnB
Nor Bank ASA
|
$ |
90,000,000
|
||
|
Union
Bank of California, N.A.
|
$ |
75,000,000
|
||
|
Royal
Bank of Canada
|
$ |
60,000,000
|
||
|
Mizuho
Corporate Bank, Ltd.
|
$ |
60,000,000
|
||
|
UBS
Loan Finance LLC
|
$ |
55,000,000
|
||
|
Xxxxxxx
Xxxxx Bank USA
|
$ |
50,000,000
|
||
|
Xxxxxx
Xxxxxxx Bank
|
$ |
50,000,000
|
||
|
Credit
Suisse, Cayman Islands Branch
|
$ |
50,000,000
|
||
|
Xxxxxx
Commercial Paper Inc.
|
$ |
50,000,000
|
||
|
Xxxxx
Fargo Bank NA
|
$ |
50,000,000
|
||
|
Xxxxxxx
Street Commitment Corp.
|
$ |
45,000,000
|
||
|
Deutsche
Bank AG New York Branch
|
$ |
36,000,000
|
||
|
Bank
Hapoalim
|
$ |
25,000,000
|
||
|
Xxxxx
Xxx
|
$ |
15,000,000
|
||
|
TOTAL:
|
$ |
1,000,000,000
|
||
