Exhibit 10.3
FIRST AMENDMENT TO AMENDED AND
RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
NOARK PIPELINE SYSTEM, LIMITED PARTNERSHIP
This FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF NOARK PIPELINE SYSTEM, LIMITED PARTNERSHIP (this "First
Amendment") dated as of June 18,1998 amends that certain Amended and Restated
Agreement of Limited Partnership of NOARK Pipeline System, Limited Partnership
dated as of January 12, 1998 (the "Partnership Agreement") between Southwestern
Energy Pipeline Company, as a general partner, and Enogex Arkansas Pipeline
Corporation, as a general partner and a limited partner. Capitalized terms used
herein and not defined herein shall have the meanings assigned thereto in the
Partnership Agreement.
In consideration of the mutual promises made herein, and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Partners hereby agree as follows:
1. The definition of "Existing Loans" in Section 1.1 of the
Partnership Agreement is hereby amended in its entirety to read as
follows:
" "Existing Loans" means the NOARK Debt, and any subsequent loans to the
Partnership or any NOARK Related Entity replacing the then existing
principal balance of the NOARK Debt, or the then existing principal
balance of such subsequent loans, as applicable."
2. The definition of "NOARK Debt" in Section 1.1 of the Partnership
Agreement is hereby amended by inserting at the end thereof, the
following:
"; provided, however, that from and after June 18, 1998 "NOARK Debt" shall
mean the Finance Notes, and shall exclude for all purposes of this
Agreement the debt incurred by the Partnership pursuant to the terms of
that certain Loan Agreement dated as of June 1, 1998 between the
Partnership and NOARK Pipeline Finance, L.L.C., an Oklahoma limited
liability company."
3. Section 1.1 of the Partnership Agreement is hereby amended by
inserting the following definitions:
"Defaulting Guarantor" shall have the meaning assigned thereto in the
Indenture.
"EAPC Allocated Existing Loans" shall mean, at any time after indebtedness
is incurred pursuant to the last sentence of Section 3 4 b ) hereof, (i)
40% of the Existing Loans immediately prior to the incurrence of such
indebtedness and the application of the proceeds thereof; less, if and
only if southwestern Energy Company is the Defaulting Guarantor (as
defined in the Indenture), the principal amount of Finance Notes redeemed
upon application of the proceeds of such
indebtedness and (ii) if and only if Southwestern Energy Company is the
Defaulting Guarantor, the indebtedness incurred pursuant to the last
sentence of Section 3.5(b) hereof, and any subsequent loans to the
Partnership replacing the principal balance thereof at the time such
subsequent loans are made.
"Enogex Guaranty" shall have the meaning assigned thereto in the
Indenture.
"Finance Notes" shall mean the 7.15% Notes Due 201 8 issued by NOARK
Pipeline Finance, L.L.C. in the original aggregate principal amount of
$80,000,000 pursuant to the Indenture.
"Indenture" shall mean the Indenture dated as of June 1, 1998 between the
NOARK Pipeline Finance, L.L.C. and The Bank of New York, as trustee, as it
may be amended or supplemented from time to time.
"Non-Defaulting Guarantor" shall have the meaning assigned thereto in the
Indenture.
"Southwestern Guaranty" shall have the meaning assigned thereto in the
Indenture.
"SWPL Allocated Existing Loans" shall mean, at any time after indebtedness
is incurred pursuant to the last sentence of Section 3.5(b) hereof, the
sum of (i) 60% of the Existing Loans immediately prior to the incurrence
of such indebtedness and the application of the proceeds thereof, less, if
and only if Enogex Inc. is the Defaulting Guarantor (as defined in the
Indenture), the principal amount of Finance Notes redeemed upon
application of the proceeds of such indebtedness and (ii) if and only if
Enogex Inc. is the Defaulting Guarantor, the indebtedness incurred
pursuant to the last sentence of Section 3.5(b) hereof, and any subsequent
loans to the Partnership replacing the principal balance thereof at the
time such subsequent loans are made.
4. Subsection (b) of Section 3.5 of the Partnership Agreement is
hereby amended as follows:
(i) by inserting the words "by the Partnership (including any
NOARK Related Entity)" immediately after the words
"indebtedness for borrowed money" in the first line thereof;
and
(ii) by inserting at the end of said subsection (b), the following
sentence:
"Notwithstanding the foregoing, (i) if Southwestern Energy Company shall
be a Defaulting Guarantor and Enogex Inc. shall be a Non-Defaulting
Guarantor, the Partnership, at the direction of EAPC, may incur
indebtedness for borrowed money (x) upon a declaration of acceleration of
the Finance Notes pursuant to Section 6.l(b) of the Indenture, in a
principal amount equal to the Guaranteed Principal Amount (as defined in
the Enogex Guaranty) or (y) otherwise, in a
principal amount equal to the Redemption Price (as defined in the
Indenture) applicable to the redemption of Finance Notes in an aggregate
principal amount equal to the Guaranteed Principal Amount (as defined in
the Enogex Guaranty), in each case without the consent of the
SuperMajority in Interest of Partners, and the proceeds of such
indebtedness shall be applied on behalf of Enogex Inc. to the payment of
the Finance Notes upon acceleration thereof or to the redemption of
Finance Notes pursuant to Section 3.l(b) of the Indenture, as applicable,
and (ii) if Enogex Inc. shall be a Defaulting Guarantor and Southwestern
Energy Company shall be a Non-Defaulting Guarantor, the Partnership may,
at the direction of SWPL, incur indebtedness for borrowed money (x) upon a
declaration of acceleration of the Finance Notes pursuant to Section 6.1
(b) of the Indenture, in a principal amount equal to the Guaranteed
Principal Amount (as defined in the Southwestern Guaranty) or (y)
otherwise, in a principal amount equal to the Redemption Price (as defined
in the Indenture) applicable to the redemption of Finance Notes in an
aggregate principal amount equal to the Guaranteed Principal Amount (as
defined in the Southwestern Guaranty), in each case without the consent of
the SuperMajority in Interest of Partners, and the proceeds of such
indebtedness shall be applied on behalf of Southwestern Energy Company to
the payment of the Finance Notes upon acceleration thereof or to the
redemption of Finance Notes pursuant to Section 3.l(b) of the Indenture;
provided that any indebtedness incurred pursuant to this sentence without
the consent of the SuperMajority in Interest of Partners shall be
unsecured, shall be non-recourse to each of the Partners (unless with
respect to either Partner, such Partner shall otherwise consent in
writing) and shall not contain any -. covenants, agreements or provisions
which would in any material respect be more restrictive on the Partnership
and the NOARK Related Entities and their respective businesses and affairs
than the covenants, agreements or provisions of the Indenture and the
Finance Notes. In the event that EAPC directs the Partnership to incur
indebtedness as described in the preceding sentence, (i) EAPC, on behalf
of the Partnership, and the Partnership are hereby authorized to take such
action as may be reasonably required in order for the Partnership to incur
such indebtedness in conformity with the requirements of the preceding
sentence, without any further action by the Partners or the Management
Committee and (ii) SWPL shall take all such actions and execute any and
all documents reasonably required by it as a general partner of the
Partnership to facilitate the incurrence of such indebtedness by the
Partnership; provided that SWPL shall not incur any liability in respect
thereof. In the event that SWPL directs the Partnership to incur
indebtedness as described in the preceding sentence, (i) SWPL, on behalf
of the Partnership, and the Partnership are hereby authorized to take such
action as may be reasonably required in order for the Partnership to incur
such indebtedness in conformity with the requirements of the second
preceding sentence, without any further action by the Partners or the
Management Committee and (ii) EAPC shall take all such actions and - . ,
execute any and all documents reasonably required by it as a general
partner of the Partnership to facilitate the incurrence of such
indebtedness by the Partnership; provided that EAPC shall not incur any
liability in respect thereof.
5. Section 4.2(c) of the Partnership Agreement is hereby amended in
its entirety to read as follows:
(a) The Partners agree that (i) prior to the incurrence of any
indebtedness pursuant to the last sentence of Section 3.5(b), the
Existing Loans, including applicable interest, shall be repaid as
follows: (x) sixty percent (60%) of the Existing Loans, including
applicable interest, shall be repaid out of any amounts otherwise
distributable to SWPL, before taking into account debt service on
the Existing Loans, under this Agreement and (y) forty percent (40%)
of the Existing Loans, including applicable interest, shall be
repaid out of any amounts otherwise distributable to EAPC, before
taking into account debt service on the Existing Loans, under this
Agreement, and (ii) from and after the incurrence of any
indebtedness pursuant to the last sentence of Section 3.5(b), the
Existing Loans, including applicable interest, shall be repaid as
follows: (x) the SWPL Allocated Existing Loans, including applicable
interest, shall be repaid out of any amounts otherwise distributable
to SWPL, before taking into account debt service on the Existing
Loans, under this Agreement and (y) the EAPC Allocated Existing
Loans, including applicable interest, shall be repaid out of any
amounts otherwise distributable to EAPC, before taking into account
debt service on the Existing Loans, under this Agreement. If such
amounts referred to in clause (i) of the preceding sentence are
insufficient to pay a Partner's percentage share (i.e. 60% or 40% as
set forth above) of the debt service on the Existing Loans,
including applicable interest, in accordance with their terms, then
such Partner shall be responsible to contribute to the capital of
the Partnership amounts sufficient to pay its percentage share (i.e.
60% or 40% as set forth above) of the debt service on the Existing
Loans, including applicable interest, and shall do so upon notice
from the Project Leader. If such amounts referred to in clause (ii)
of the preceding sentence are insufficient to pay the debt service
on the SWPL Allocated Existing Loans or the EAPC Allocated Existing
Loans, in each case including applicable interest, in accordance
with its respective terms, then SWPL or EAPC, as the case may be,
shall be responsible to contribute to the capital of the Partnership
amounts sufficient to pay the debt service on the SWPL Allocated
Existing Loans or the EAPC Allocated Existing Loans, as applicable,
including in each case interest thereon, and shall do so upon notice
from the Project Leader. Notwithstanding the foregoing, if either
SWPL or EAPC obtains knowledge that it is responsible to contribute
to the capital of the Partnership pursuant to this Section 4.2(c),
then such Partner shall be obligated to make such contribution of
capital to the Partnership on a timely basis notwithstanding the
fact that the Project Leader has not given notice to such Partner as
contemplated hereby. Capital Contributions by the Partners pursuant
to this Section 4.2(c) shall not alter the Partnership Percentages
of the Partners. Default by a Partner in the making of such
Capital Contributions shall cause it to be deemed a Delinquent
Partner subject to the provisions of Section 4.3 hereof.
6. Section 4.2(d) of the Partnership Agreement is hereby amended in
its entirety to read as follows:
(a) Notwithstanding anything to the contrary in Section 4.2(c) above or
elsewhere in this Agreement, it is understood and agreed that the
terms of any Existing Loans may in the future (but do not currently)
provide that the amortization of the principal amount thereof shall
be borne or allocated in a manner different from the percentages set
forth in Section 4.2(c) or any Partner may direct the Project Leader
to apply amounts of Partnership cash otherwise distributable to such
Partner (except amounts to be paid to other Partners pursuant to the
other provisions of this Agreement) to the repayment or prepayment
of the principal amount of the Existing Loans in excess of the
amounts required to be repaid under the terms of the Existing Loans,
provided such Partner bears all costs and penalties of doing so. In
addition, either Partner may elect to redeem from such Partner's own
funds a portion of the Finance Notes pursuant to Section 3.1 of the
Indenture. Consequently, a Partner may thereby pay or bear more than
its attributable percentage of the principal amount of the Existing
Loans to be repaid. In such event, the percentages of the then
outstanding principal amount of the Existing Loans payable out of
the distributable amounts attributable to the Partners set forth in
Section 4.2(c) shall be adjusted as appropriate to reflect the
resulting percentage of the aggregate outstanding principal amount
of the Existing Loans then attributable to each Partner.
7. Section 5.3 of the Partnership Agreement is hereby amended in its
entirety to read as follows:
5.3. Special Interest Expense. The Partnership interest expense
deductions incurred with regard to the Existing Loans and the Finance
Notes as referenced in Section 4.2(c) shall be allocated to the Partners
as follows:
(i) prior to the incurrence of any indebtedness pursuant to the last
sentence of Section 3.5(b), 60% to SWPL and 40% to EAPC; and
(ii) following the incurrence of any indebtedness pursuant to the
last sentence of Section 3.5(b), the Partnership interest expense
deductions incurred with regard to the SWPL Allocated Existing Loans
shall be allocated to SWPL and the Partnership interest expense
deductions incurred with regard to the EAPC Allocated Existing Loans
shall be allocated to EAPC.
In the event the percentages of the outstanding principal amounts of the
Existing Loans payable out of the distributable amounts attributable to
each Partner are adjusted pursuant to Section 4.2(d), the foregoing
percentages shall be subject to
adjustment to reflect the same percentages as the percentages established
pursuant to Section 4.2(d).
8. The Partnership Agreement, as amended hereby, shall remain in
full force and effect and is hereby ratified, approved and confirmed in
all respects.
9. From and after the date hereof, each reference in the Partnership
Agreement to "this Agreement," "hereof," or "hereunder" or words of like
import, and all references to the Partnership Agreement in any and all
agreements, instruments, documents, notes, certificates and other writings
of every kind and nature shall be deemed to mean the Partnership
Agreement, as modified and amended by this First Amendment.
10. THE PROVISIONS OF THIS FIRST AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ARKANSAS (EXCLUDING ANY CONFLICTS-OF-LAW RULE OR PRINCIPLE THAT MIGHT
REFER SAME TO THE LAWS OF ANOTHER JURISDICTION), EXCEPT TO THE EXTENT THAT
SAME ARE MANDATORILY SUBJECT TO THE LAWS OF ANOTHER JURISDICTION PURSUANT
TO THE LAWS OF SUCH OTHER JURISDICTION.
11. This First Amendment may be executed in multiple counterparts,
each of which shall be deemed an original agreement, and all of which
shall constitute one agreement, by each of the parties hereto on the dates
respectively indicated in the signatures of said parties, notwithstanding
that all of the parties are not signatories to the original or to the same
counterpart, to be effective as of the day and year hereinabove set forth.
IN WITNESS WHEREOF, the Partners have executed this First Amendment on the
date first set forth above.
GENERAL PARTNERS:
ENOGEX ARKANSAS PIPELINE
CORPORATION
By: _________________________
Name: E. Xxxxx Xxxxxxxx
Title: Vice President
SOUTHWESTERN ENERGY
PIPELINE COMPANY
By: _________________________
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President - Finance &
Corporate Development
LIMITED PARTNER:
ENOGEX ARKANSAS PIPELINE
CORPORATION
By: _________________________
Name: E. Xxxxx Xxxxxxxx
Title: Vice President
