EXHIBIT 10.9
FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
dated as of January 31, 2001 is among:
(a) Xxxxxx Xxxxxx Energy Partners, L.P., a Delaware limited
partnership (the "Company");
(b) the banks and other financial institutions listed on the
signature pages hereof under the caption "Lender", (collectively, the
"Lenders"); and
(c) First Union National Bank, a national banking association,
individually as a Lender and as administrative agent for the Lenders (in such
capacity, the "Administrative Agent").
PRELIMINARY STATEMENT
The Company, the Lenders, the Administrative Agent, Bank of
America, N.A., as the syndication agent, and Bank One, N.A., as the
documentation agent, have entered into a Credit Agreement dated as of October
25, 2000 (as amended, modified, supplemented and/or restated from time to time,
the "Credit Agreement"). All capitalized terms defined in the Credit Agreement
and not otherwise defined herein shall have the same meanings herein as in the
Credit Agreement. The Company and the Lenders have agreed, upon the terms and
conditions specified herein, to amend the Credit Agreement as hereinafter set
forth:
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Company, the Lenders, and the
Administrative Agent hereby agree as follows:
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SECTION 1. Amendment to Section 6.07, Financial Covenants, of
the Credit Agreement. Sections 6.07 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"Section 6.07 Financial Covenants.
(a) Ratio of Consolidated Indebtedness to Consolidated EBITDA.
The Company will not at any time permit the ratio of Consolidated
Indebtedness to Consolidated EBITDA for the period of four full fiscal
quarters ended in respect of which financial statements shall have been
delivered pursuant to Section 5.01(a) or (b), as the case may be, to
exceed (a) 4.5 to 1.0 for such periods of four full fiscal quarters
ending at March 31, 2001 and June 30, 2001 and (b) 4.00 to 1.0 for any
such period of four full fiscal quarters ending thereafter. For
purposes of this Section 6.07(a), if during any period the Company
acquires any Person (or any interest in any Person) or all or
substantially all of the assets of any Person, the EBITDA attributable
to such assets or an amount equal to the percentage of ownership of the
Company in such Person times the EBITDA of such Person, for such period
determined on a pro forma basis (which determination, in each case,
shall be subject to approval of the Required Lenders, not to be
unreasonably withheld) may be included as Consolidated EBITDA for such
period, if on the date of such acquisition no Indebtedness (other than
Indebtedness permitted pursuant to Section 6.01) is incurred by reason
of and giving effect to such acquisition and such Person, or the entity
acquiring such assets, as the case may be, is a Subsidiary. For
purposes of ascertaining whether the Required Lenders have approved a
determination of the EBITDA attributable to acquired assets, or the
assets of an acquired Person, for inclusion in Consolidated EBITDA for
any period pursuant to the foregoing
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sentence, a Lender which has not, within 10 days after its receipt of
the certificate of a Responsible Officer required by the last sentence
of Section 5.01, objected to the inclusion in Consolidated EBITDA as
set forth therein of an amount of EBITDA attributable to such acquired
assets or the assets of such acquired Person, as the case may be, shall
be deemed to have approved both the determination of such amount of
EBITDA so included, and the inclusion thereof in Consolidated EBITDA
pursuant to the foregoing sentence.
(b) Ratio of Consolidated EBITDA to Consolidated Interest
Expense. The Company will not at any time permit the ratio of
Consolidated EBITDA for the period of four full fiscal quarters then
most recently ended in respect of which financial statements shall have
been delivered pursuant to Section 5.01(a) or (b), as the case may be,
to Consolidated Interest Expense for such four full fiscal quarters to
be less than(a) 3.0 to 1.0 for such periods of four full fiscal
quarters ending at March 31, 2001 and June 30, 2001 and (b) 3.50 to 1.0
for any such period of four full fiscal quarters ending thereafter.".
SECTION 2. Conditions of Effectiveness. This Amendment shall
become effective when the Company and the Lenders shall have executed a
counterpart hereof and delivered the same to the Administrative Agent or, in the
case of any Lender as to which an executed counterpart hereof shall not have
been so delivered, the Administrative Agent shall have received written
confirmation by telecopy or other similar writing from such Lender of execution
of a counterpart hereof by such Lender.
SECTION 3. Representations and Warranties True; No Default or
Event of Default. The Company hereby represents and warrants to the
Administrative Agent and the Lenders, that after giving effect to the execution
and delivery of this Amendment: (a) the representations and warranties
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set forth in the Credit Agreement are true and correct on the date hereof as
though made on and as of such date; and (b) no event has occurred and is
continuing that constitutes either a Default or an Event of Default.
SECTION 4. Reference to the Credit Agreement and Effect on the
Notes and Other Documents Executed Pursuant to the Credit Agreement.
(a) Upon the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement," "hereunder," "herein," "hereof" or
words of like import shall mean and be a reference to the Credit Agreement, as
amended hereby.
(b) Upon the effectiveness of this Amendment, each reference
in the Notes and the other documents and agreements delivered or to be delivered
pursuant to the Credit Agreement shall mean and be a reference to the Credit
Agreement, as amended hereby.
(c) The Credit Agreement and the Notes and other documents and
agreements delivered pursuant to the Credit Agreement, as modified by the
amendment referred to above, shall remain in full force and effect and are
hereby ratified and confirmed.
SECTION 5. Execution in Counterparts. This Amendment 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.
SECTION 6. GOVERNING LAW; BINDING EFFECT. THIS AMENDMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK AND APPLICABLE FEDERAL LAW AND SHALL BE BINDING UPON THE COMPANY, THE
ADMINISTRATIVE AGENT, THE
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SYNDICATION AGENT, THE DOCUMENTATION AGENT, THE LENDERS AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
SECTION 7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
SECTION 8. ENTIRE AGREEMENT. THIS AMENDMENT, THE CREDIT
AGREEMENT (INCLUDING THE EXHIBITS AND SCHEDULES THERETO), AS AMENDED HEREBY, AND
THE OTHER LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE
COMPANY, THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE DOCUMENTATION
AGENT AND THE LENDERS RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND
SUPERSEDE ALL PRIOR PROPOSALS, AGREEMENTS AND UNDERSTANDINGS RELATING TO SUCH
SUBJECT MATTER.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed effective as of the date first stated herein, by their
respective officers thereunto duly authorized.
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
By:
---------------------------------
Name:
Title:
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LENDER:
Commitment: $40,000,000.00 FIRST UNION NATIONAL BANK, as the
Administrative Agent and as a Lender
By:
--------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
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LENDER:
Commitment: $19,000,000.00 ABN AMRO BANK, N.V.
By:
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Name:
Title:
By:
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Name:
Title:
364-Day Facility
LENDER:
Commitment: $19,000,000.00 ARAB BANKING CORPORATION
By:
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Name:
Title:
364-Day Facility
LENDER:
Commitment: $25,000,000.00 BANCA COMMERCIALE ITALIANA - LOS
ANGELES FOREIGN BRANCH
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $25,000,000.00 BANCA DI ROMA
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $40,000,000.00 BANK OF AMERICA, N.A.
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $13,000,000.00 BANK OF MONTREAL
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $30,000,000.00 THE BANK OF NOVA SCOTIA
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $10,000,000.00 THE BANK OF TOKYO - MITSUBISHI, LTD.
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $40,000,000.00 BANK ONE, NA
(Main Office - Chicago)
By:
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Name:
Title:
364-Day Facility
LENDER:
Commitment: $13,000,000.00 FLEET NATIONAL BANK
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $30,000,000.00 BARCLAYS BANK PLC
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $25,000,000.00 BAYERISCHE LANDESBANK GIROZENTRALE
CAYMAN ISLANDS BRANCH
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $19,000,000.00 BNP PARIBAS
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $5,000,000.00 THE CHASE MANHATTAN BANK
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $20,000,000.00 CITIBANK, N.A.
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $30,000,000.00 COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
--------------------------------
Name:
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Title:
-----------------------------
By:
--------------------------------
Name:
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Title:
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364-Day Facility
LENDER:
Commitment: $30,000,000.00 CREDIT LYONNAIS NEW YORK BRANCH
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $19,000,000.00 THE DAI-ICHI KANGYO BANK, LTD.
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $30,000,000.00 THE FUJI BANK, LIMITED
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $19,000,000.00 KBC BANK N.V.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $30,000,000.00 NATIONAL AUSTRALIA BANK LIMITED,
A.C.N. 004044937
By:
--------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $13,000,000.00 THE NORTHERN TRUST COMPANY
By:
---------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $19,000,000.00 SUNTRUST BANK, ATLANTA
By:
---------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $25,000,000.00 U.S. BANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
Title:
364-Day Facility
LENDER:
Commitment: $12,000,000.00 XXXXX FARGO BANK OF TEXAS, N.A.
By:
---------------------------------
Name:
Title:
364-Day Facility
