EXHIBIT 10.15
FIRST AMENDMENT TO LOAN AGREEMENT
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THIS FIRST AMENDMENT TO LOAN AGREEMENT (herein called this "Amendment")
is made as of the 10th day of June, 1999 by and among Western Gas Resources,
Inc. ("Borrower"), and NationsBank, N.A., as Agent ("Agent"), and the Lenders
under the Loan Agreement referred to below.
WITNESSETH:
WHEREAS, Borrower, Agent, and Lenders have entered into that certain
Loan Agreement dated as of April 29, 1999 (as amended, restated, or supplemented
to the date hereof, the "Original Agreement"), for the purposes and
consideration therein expressed, pursuant to which Lenders made and became
obligated to make loans to Borrower as therein provided;
WHEREAS, in order to secure the Obligations, including the obligations
of Borrower under the Notes and the Loan Agreement, Borrower caused (i) WGR
Canada, Inc., a New Brunswick corporation ("WGRC"), to execute and deliver to
the Agent for the benefit of Lenders, that certain Guaranty dated as of April
29, 1999 (the "WGRC Guaranty"), and (ii) MGTC, Inc., a Wyoming corporation
("MGTC"), to execute and deliver to the Agent for the benefit of Lenders, that
certain Guaranty dated as of April 29, 1999 (the "MGTC Guaranty");
WHEREAS, Borrower has been advised by its Wyoming counsel that the MGTC
Guaranty is void because the approval of the Wyoming Public Service Commission
was not obtained with respect thereto and that the MGTC Guaranty should be
released and replaced by a new guaranty executed by MGTC which shall become
effective only upon obtaining the approval thereof by the Wyoming Public Service
Commission;
WHEREAS, in order to secure the Obligations, including the obligations
of Borrower under the Notes and the Loan Agreement, Borrower executed and
delivered that certain Pledge Agreement dated as of April 29, 1999 in favor of
Agent for the benefit of Lenders (the "Pledge Agreement"), pursuant to which
Borrower pledged and granted a security interest to Agent, for the benefit of
Lenders, in, among other things, 1,000 shares of common stock of WGRC (the "WGRC
Pledged Stock");
WHEREAS, Borrower and WGRC have requested that Agent and Lenders (i)
terminate the WGRC Guaranty and otherwise grant a general release of WGRC under
the WGRC Guaranty and any other obligations and liabilities arising under all
documents and agreements delivered pursuant to the WGRC Guaranty or in
connection therewith, (ii) terminate the MGTC Guaranty and otherwise grant a
general release of MGTC under the MGTC Guaranty and any other obligations and
liabilities arising under all documents and agreements delivered pursuant to the
MGTC Guaranty or in connection therewith and (iii) release the Agent's security
interest in 35% of the WGRC Pledged Stock (the "Releases");
WHEREAS, Borrower and Lenders desire to provide for Lenders' consent
and agreement that certain matters relating to the terms of subordinated debt to
be offered by Borrower are to Lenders' satisfaction, and the amendment of the
Loan Agreement as specified herein; and
WHEREAS, Administrative Agent and Lenders are willing to grant the
Releases, subject to the condition that the note purchasers parties to the Note
Purchase Agreement among Borrower and the American General Group, as amended
(the "AG Agreement") and the holders of the notes issued pursuant to the Master
Shelf Agreement dated as of December 19, 1991 between the Borrower and the
Prudential Insurance Company of America, as amended (the "Prudential Agreement")
grant similar releases of the guaranties provided by WGRC and MGTC to such note
purchasers and such holders, and the respective security interests of such note
purchasers and such holders in 350 shares of common stock of WGRC (the
"Corresponding Releases");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Original Agreement, in
consideration of the loans which may hereafter be made by Lenders to Borrower,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
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ss. 1.I. Defined Terms. Unless the context otherwise requires or unless
otherwise expressly defined herein, the terms defined in the Original Agreement
shall have the same meanings whenever used in this Amendment. As used herein,
the term "Loan Agreement" means the Original Agreement as amended by this
Amendment.
ARTICLE II.
Consent, Release and Amendments
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ss. 2.I. Consent. Subject to the terms and conditions set forth herein,
and in reliance upon the representations and warranties of Borrower contained
herein, pursuant to the definition of the term "Subordinated Debt" in Section
1.1 of the Loan Agreement, Lenders hereby consent and agree that $155,000,000 of
Debt of Borrower proposed to be issued by Borrower on the terms provided in that
certain Indenture, draft dated June 3, 1999, among Borrower, the Guarantors
(other than WGRC) and Chase Bank of Texas, N.A. (the "Draft Indenture") and the
guaranties by such Guarantors of such Debt to be entered into in connection with
the offering of such Debt and on the terms provided the Draft Indenture will be
subordinate in right of payment to the payment of the Obligations owing by
Borrower and such Guarantors in a manner satisfactory to Lenders, so long as the
terms of the final indenture entered into relating to the offering of such Debt
conform in all material respects to the terms provided in the Draft Indenture.
Pursuant to Section 8.1(i), each Lender hereby consents to the
execution and delivery of the following by Borrower and Guarantors: (i) an
amendment to the American General Agreement substantially in the form of the
draft thereof dated June 8, 1999 and (ii) an amendment to the Prudential
Agreement substantially in the form of the draft thereof dated June 6, 1999.
ss. 2.II. Release.
(a) WGRC Guaranty.' Agent and each Lender hereby release and discharge,
effective as of the Effective Date, WGRC and its successors and assigns
from all obligations and liabilities under the WGRC Guaranty and all
documents and agreements delivered pursuant thereto and further hereby
terminates the WGRC Guaranty and deletes WGRC from the definition of
Guarantor in Section 1.1 of the Loan Agreement; provided that the
Corresponding Releases are executed and delivered on or prior to the
Effective Date.
(b) WGRC Stock. In addition, Agent and each Lender hereby release and
discharge, effective as of the Effective Date, 350 shares of common
stock of WGRC from the liens and security interests granted by Borrower
pursuant to the Pledge agreement, automatically and without further
action by any party; provided that the Corresponding Releases are
executed and delivered on or prior to the Effective Date. Borrower
agrees that it shall, from time to time, execute, acknowledge and
deliver to Agent instruments, agreements, and other documents as Agent
shall reasonably request in order to further evidence the liens and
security interests in the 650 shares of common stock of WGRC remaining
subject to the Pledge Agreement, including delivering to NationsBank,
N.A., as Agent and as bailee for the note purchasers under the American
General Agreement and the holders under the Prudential Agreement, a new
stock certificate and a new stock power evidencing 650 shares of common
stock of WGRC.
(c) MGTC Guaranty. Agent and Lenders hereby release and discharge MGTC,
effective as of the Effective Date, from all obligations and
liabilities under the MGTC Guaranty and all documents and agreements
delivered pursuant thereto, provided that on or prior to the Effective
Date (i) the Corresponding Releases are executed and delivered, and
(ii) the conditional Guaranty described in Section 3.1(e) is executed
and delivered. In addition. Agent and Lenders hereby waive any Default
or Event of Default arising solely due to the failure of MGTC to obtain
prior approval of the Wyoming Public Service Commission with respect to
the MGTC Guaranty.
ss. 2.III. Definitions. (a) The definition of "Change in Control" in
Section 1.1 of the Loan Agreement is hereby amended by deleting the period at
the end thereof, adding a semicolon and the word "or" in place thereof, and
adding a new clause (f) to read as follows:
"(f) the occurrence of a 'Change of Control' as defined in the
Indenture."
(b) Section 1.1 of the Loan Agreement is hereby amended by adding the
following definition of "Indenture" immediately after the definition of "Highest
Lawful Rate" and by adding the following definition of "Required Holders"
immediately after the definition of "Related Person:"
"Indenture" means the Indenture dated June 15, 1999 among
Borrower, Guarantors and Chase Bank of Texas National Association, as
trustee, relating to the issuance of up to $225,000,000 aggregate
principal amount of Borrower's senior subordinated notes, as such
Indenture is in effect on June 15, 1999."
"Required Holders" means Majority Lenders for purposes of the
Indenture."
ss. 2.IV. Limitation on Prepayments of Debt Securities and Subordinated
Debt. Section 6.2(e) of the Loan Agreement is hereby amended by replacing the
period at the end of subsection (iii) with a semicolon and adding thereafter a
new subsection (iv) to read as follows:
"(iv) purchase, repurchase, defease or make any pre-payments
on the Subordinated Debt."
ss. 2.V. Guaranties of Borrower's Subsidiaries. Section 7.3 of the Loan
Agreement is hereby amended in its entirety to read as follows:
"Section 7.3. Guaranties of Borrower's Subsidiaries. Borrower
shall require each of the following Subsidiaries (other than
WGRC) to immediately execute and deliver to Agent an absolute
and unconditional guaranty of the timely repayment of the
Obligations and the due and punctual performance of the
obligations of Borrower hereunder, which guaranty shall be
satisfactory to Agent in form and substance:
(a) Each Subsidiary of Borrower which has EBITDA in any
Fiscal Quarter which constitutes ten percent (10%) or
more of Borrower's Consolidated EBITDA for such
Fiscal Quarter or which has assets at any time with a
book value equal to or exceeding ten percent (10%) of
the book value of Borrower's Consolidated assets at
such time;
(b) If the aggregate amount of Borrower's unconsolidated
EBITDA for any Fiscal Quarter plus the aggregate
EBITDA of Guarantors during such Fiscal Quarter does
not constitute eighty- five percent (85%) or more of
Borrower's Consolidated EBITDA for such Fiscal
Quarter or if the book value of Borrower's individual
assets at any time plus the aggregate book value of
the assets of Guarantors at such time does not exceed
eight-five percent (85%) of
the book value of Borrower's Consolidated assets at
such time, then Subsidiaries of Borrower with
aggregate assets and/or EBITDA necessary to comply
with the eighty-five percent (85%) tests contained in
this subsection;
(c) each Subsidiary which guaranties the Debt Securities
or the Subordinated Debt; and
(d) Upon request by Agent on behalf of Majority Lenders,
any other Subsidiary of Borrower."
ss. 0.XX. Events of Default. Section 8.1(b) is hereby amended in its
entirety to read as follows:
"(b) Any default occurs under any Loan Document, any
document governing or evidencing the Debt Securities
or the Subordinated Debt, or evidencing any interest
therein, or any event of default or termination event
occurs under any Hedging Contract to which a Lender
is a party, and such default, event of default or
termination event is not remedied within the
applicable period of grace (if any) provided for in
such document; or"
ARTICLE III.
Conditions of Effectiveness
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ss. 3.I. Effective Date. This Amendment shall become effective (the
"Effective Date") as of the date first above written when, and only when, Agent
shall have received all of the following:
(1) This Amendment, duly authorized, executed and delivered by Borrower
and Majority Lenders, and in form and substance satisfactory to Agent.
(2) A certificate of a duly authorized officer of Borrower to the
effect that all of the representations and warranties set forth in
Article IV hereof are true and correct at and as of the time of such
effectiveness.
(3) A certificate of the Secretary of Borrower dated the date of this
Amendment certifying that attached thereto is a true and complete copy
of resolutions adopted by the Board of Directors of Guarantor
authorizing the execution, delivery and performance of this Amendment
by Borrower and certifying the names and true signatures of the
officers of Borrower authorized to sign this Amendment and the other
Loan Documents on behalf of Borrower.
(4) A Guaranty executed by MGTC, which shall be in the form attached to
this Agreement expressly stating that the effectiveness thereof is
conditioned upon MGTC's obtaining the approval of the Public Service
Commission of the State of Wyoming.
(5) The Corresponding Releases.
(f) Such supporting documents as Agent may reasonably
request.
(g) Payment of all fees and expenses owing to Agent and
Lenders in connection with this Amendment and payment
of fees and disbursements of Xxxxxxxx & Xxxxxx, P.C.
relating to this Amendment and the Loan Agreement as
provided in the Loan Agreement.
ARTICLE IV.
Representations and Warranties
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ss. 4.I. Representations and Warranties of Borrower. In order to induce
each Lender to enter into this Amendment, Borrower represents and warrants to
each Lender that:
(1) The representations and warranties contained in Article V of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof except as such representations and warranties have
been modified by the transactions contemplated herein).
(2) Borrower is duly authorized to execute and deliver this Amendment
and Borrower is and will continue to be duly authorized to borrow
monies and to perform its obligations under the Loan Agreement.
Borrower has duly taken all corporate action necessary to authorize the
execution and delivery of this Amendment.
(3) The execution and delivery by Borrower of this Amendment, the
performance of its obligations hereunder and the consummation of the
transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the certificate of
incorporation and bylaws of Borrower or of any material agreement,
judgment, license, order or permit applicable to or binding upon
Borrower or result in the creation of any lien, charge or encumbrance
upon any assets or properties of Borrower. Except for those which have
been obtained, no consent, approval, authorization or order of any
court or governmental authority or third party is required in
connection with the execution and delivery by Borrower of this
Amendment.
(4) When duly executed and delivered, this Amendment and the Loan
Agreement will be a legal and binding obligation of Borrower
enforceable against Borrower in accordance with its terms, except as
limited by bankruptcy, insolvency or similar laws of general
application relating to the enforcement of creditors' rights and by
equitable principles of general application.
(5) The unaudited Consolidated quarterly financial statements of
Borrower dated as of March 31, 1999 fairly present the Consolidated
financial position at such date of Borrower and the Consolidated
statement of operations and the changes in Consolidated financial
position for the periods ending on such date for Borrower. Copies of
such financial statements have heretofore been delivered to Agent.
Since March 31, 1999, no material adverse change has occurred in the
financial condition or business or in the Consolidated financial
condition or business of Borrower.
(f) the 650 shares of common stock of WGRC remaining subject to
the liens and security interests granted by Borrower under the
Pledge Agreement, after giving effect to the release provided
for in Section 2.2(b) of this Amendment, constitute 65% of the
total number of issued and outstanding shares of capital stock
of WGRC.
ARTICLE V.
Miscellaneous
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ss. 5.I. Ratification of Agreements. The Original Agreement as hereby
amended is hereby ratified and confirmed in all respects. Any reference to the
Loan Agreement in any Loan Document shall be deemed to be a reference to the
Original Agreement as hereby amended. The Loan Documents, as they may be amended
or affected by this Amendment, are hereby ratified and confirmed in all
respects. 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 Lenders under the Loan Agreement, the Notes, or any other Loan
Document nor constitute a waiver of any provision of the Loan Agreement, the
Notes, or any other Loan Document.
ss. 5.11. Survival Agreements. All representations, warranties,
covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full. All statements and agreements contained
in any certificate or instrument delivered by Borrower hereunder or under the
Loan Agreement to any Lender shall be deemed to constitute representations and
warranties by, and/or agreements and covenants of, Borrower under this Amendment
and under the Loan Agreement.
ss. 5.III. Loan Documents. This Amendment is a Loan Document, and all
provisions in the Loan Agreement pertaining to Loan Documents apply hereto.
ss. 5.IV. Governing Law. This Amendment shall be governed by and
construed in accordance the laws of the State of Texas and any applicable laws
of the United States of America in all respects, including construction,
validity and performance.
ss. 5.V. Counterparts. This Amendment may be separately executed in
counterparts and by the different parties hereto in separate counterparts, each
of
which when so executed shall be deemed to constitute one and the same Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREE-MENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written
WESTERN GAS RESOURCES, INC.
By:
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Xxxxxxx X. Xxxxxxx, Vice President-Finance
NATIONSBANK, N.A., as Agent and Lender
By:
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
SOCIETE GENERALE SOUTHWEST AGENCY, a Lender
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK, a Lender
By:
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Group Vice President
By:
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
CREDIT LYONNAIS, a Lender
By:
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Name: Philippe Soustra
Title: Senior Vice President
BANKBOSTON, N.A., a Lender
By:
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Name: Xxxxxxxx Xxxxx
Title: Director
THE FIRST NATIONAL BANK OF CHICAGO, a Lender
By:
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Name: Xxxxx Xxxxxxxxxx
Title: Authorized Officer
UNION BANK OF CALIFORNIA, N.A., a Lender
By:
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Name: Xxxx Xxxxxxxxxx
Title: Assistant Vice President
By:
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, a Lender
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
CONSENT AND AGREEMENT
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Each of the undersigned hereby (i) consents to the provisions of this
Amendment and the transactions contemplated herein, and (ii) ratifies and
confirms its respective Guaranty dated as of April 29, 1999 made by it in favor
of Agent for the Benefit of each Lender, and agrees that its obligations and
covenants thereunder are unimpaired hereby and shall remain in full force and
effect.
MIGC, INC.
WESTERN GAS RESOURCES-TEXAS, INC.
MOUNTAIN GAS RESOURCES, INC.
WESTERN GAS RESOURCES-OKLAHOMA, INC.
XXXXX OIL & GAS COMPANY, INC.
PINNACLE GAS TREATING, INC.
WESTERN GAS WYOMING, L.L.C.
By:
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Xxxxxxx X. Xxxxxxx, Vice President-Finance
of each of the above-named companies
