FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
FIRST
AMENDMENT TO AMENDED AND RESTATED
THIS
FIRST AMENDMENT TO AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT (this
“Amendment”), is made effective as of August 31,
2006,
by and among NGP CAPITAL RESOURCES COMPANY, a Maryland
corporation (the “Borrower”), the several banks and
other financial institutions from time to time party hereto (collectively,
the
“Lenders”) and SUNTRUST BANK, in its
capacity as Administrative Agent for the Lenders (the
“Administrative Agent”).
WITNESSETH:
WHEREAS,
the Borrower, the Lenders and the Administrative Agent are parties to a certain
Amended and Restated Revolving Credit Agreement, dated as of August 31, 2006
(as
amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”; capitalized terms used herein and
not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement), pursuant to which the Lenders have made certain financial
accommodations available to the Borrower;
WHEREAS,
the Borrower has requested that the Lenders and the Administrative Agent amend
certain provisions of the Credit Agreement to clarify such provisions, and
subject to the terms and conditions hereof, the Lenders are willing to do
so;
NOW,
THEREFORE, for good and valuable consideration, the sufficiency and receipt
of
all of which are acknowledged, the Borrower, the Lenders and the Administrative
Agent agree as follows:
1. Amendments.
(a) Section
1.1 of the Credit Agreement is hereby amended by:
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(i) adding
the following definitions of “Approved Dealer”, “Fair Market Value”,
“Investment Grade Rating”, “Marketable Securities”, “Non-Investment Grade
Rating” and “Total Asset Value” in appropriate alphabetical
order:
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“Approved
Dealer” shall mean in the case of any Marketable Security, a bank
or a broker-dealer registered under the Securities Exchange Act of 1934 of
nationally recognized standing or an Affiliate thereof.
“Fair
Market Value” shall mean, as of any date of determination, in the
case of any Marketable Security, the mean prices as determined by two Approved
Dealers mutually acceptable to the Borrower and the Administrative
Agent.
“Investment
Grade Rating” shall mean, with respect to any Marketable
Securities, any actual or implied rating of such Marketable Securities which
is
at or above BBB- from S&P and at or above Baa3 from Xxxxx’x.
“Marketable
Securities” shall mean (i) those certain 7.20% Senior Notes due
2028 issued by Pioneer Natural Resources Company, (ii) those certain 5.00%
Senior Notes due 2015 issued by XTO Energy Inc., or (iii) those certain 8.75%
Senior Notes due 2011 issued by Venoco, Inc.
“Non-Investment
Grade Rating” shall mean, with respect to any Marketable
Securities, any actual or implied rating of such Marketable Securities which
is
below BBB- from S&P or below Baa3 from Xxxxx’x.
“Total
Asset Value” shall mean, for the Borrower and its Subsidiaries for
any period determined on a consolidated basis in accordance with GAAP, the
sum
of (i) the Borrower’s and its Subsidiaries’ total assets as reported in the most
recent public disclosures filed with the Securities and Exchange Commission
(which shall include all loans and investments of the Borrower in its
Subsidiaries, including those that are not Subsidiary Guarantors),
plus (ii) the value, determined in accordance with GAAP,
of assets
acquired (including loans made) by the Borrower or its Subsidiaries subsequent
to the most recent public disclosures filed with the Securities and Exchange
Commission, to the extent reported to the Administrative Agent in a certificate
of a Responsible Officer, minus (iii) to the extent reported or required to
be
reported to the Administrative Agent in a report of a Responsible Officer under
Section 5.1(g), the value, determined in accordance with GAAP, of assets
disposed of by the Borrower or its Subsidiaries (including loans repaid to
the
Borrower or its Subsidiaries) subsequent to the most recent public disclosures
filed with the Securities and Exchange Commission.
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(ii) replacing
the definition of “Eligible Net Asset Value” in its entirety with the
following:
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“Eligible
Net Asset Value” shall mean Total Asset Value, including fair
market value of Unencumbered Overriding Royalty Interests to the extent that
the
fair market value of all Unencumbered Overriding Royalty Interests does not
exceed in the aggregate five percent (5%) of Total Asset Value but excluding
(i)
all warrant positions, (ii) any assets of a subsidiary that is not a Guarantor
and any assets of the Borrower and its subsidiaries not pledged to the
Administrative Agent on terms and conditions satisfactory to Administrative
Agent, (iii) the fair market value of all other Unencumbered Overriding Royalty
Interests to the extent not expressly included as provided for above, (v) any
Treasury Revolving Credit Facility Collateral, and (vi) such other assets that
are not otherwise satisfactory to the Administrative Agent in its reasonable
discretion.
(iii) and
deleting the definition of “Net Asset Value.”
(b) Section
7.12 of the Credit Agreement is hereby amended by replacing such Section in
its
entirety with the following:
Section
7.12 Loans,
Etc. The Borrower will not permit at any time the aggregate
amount of all unfunded commitments of the Borrower and its Subsidiaries to
provide loans, advances or Guarantees with respect to such Investments (but
excluding any “unapproved capital expenditure amount” as defined below) to
exceed 100% of the sum of (i) all cash of the Borrower and its Subsidiaries
held
in deposit accounts that are subject to a Control Agreement granting the Agent
a
first priority security interest therein, excluding the Cash Collateral (as
such
term is defined in the Treasury Credit Agreement), plus (ii) the
difference between (x) the Senior Revolving Commitment Amount minus (y) the
Senior Revolving Credit Exposure, plus (iii) 95% of the Fair Market Value
of all Marketable Securities with an Investment Grade
Rating, plus (iv) 85% of the Fair Market Value of all
Marketable Securities with a Non-Investment Grade Rating. For
purposes of this Section 7.12, “unapproved capital expenditure amount” means the
portion of any commitment that (i) may only be used for capital expenditures
(including drilling and completion of xxxxx, the purchase of assets or other
capital expenditures) that are approved by (or consented to by) the Borrower
or
such Subsidiary in its sole discretion or words of similar effect (whether
under
a specific approval or under a budget that must be approved) and (ii) exceeds
the amount of the capital expenditures that have been so approved and that,
if
applicable, will not be paid from cash flow from operations under the approved
budget. In addition, for purposes of this Section 7.12, with respect
to all Marketable Securities, the Borrower shall, not less frequently than
once
each calendar week, determine the Fair Market Value of each such Marketable
Securities; provided, however, following the occurrence and continuation
of an Event of Default, the Administrative Agent shall have the right to require
the Borrower to make such determination on a more frequent basis and provide
such information to the Administrative Agent. Borrower shall also
provide to the Administrative Agent evidence of compliance with this Section
7.12 on each Compliance Certificate that it delivers pursuant to Section 5.1(c),
in form and substance acceptable to the Administrative Agent.
(c) Section
5.1(g) of the Credit Agreement is hereby amended by replacing such Section
in
its entirety with the following:
(g) a
report of a Responsible Officer of the Total Asset Value of assets disposed
of
by the Borrower or its Subsidiaries (including loans repaid to the Borrower
or
its Subsidiaries) subsequent to the most recent public disclosures filed with
the Securities and Exchange Commission, promptly following such disposition
to
the extent that the Total Asset Value of such assets (to the extent not
previously reported) exceeds $10,000,000.
(d) Section
5.9 of the Credit Agreement is hereby amended by replacing such Section in
its
entirety with the following:
Section
5.9 Use
of Proceeds and Letters of Credit. The Borrower will use
the proceeds of all Senior Revolving Loans for general corporate purposes and
for investments in loan portfolios and other similar investments permitted
under
the Internal Revenue Code. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that would violate
any
rule or regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X. All Letters of Credit will be used
for general corporate purposes.
(e) Section
5.11(b) of the Credit Agreement is hereby amended by replacing such Section
in
its entirety with the following:
(b) Upon
the occurrence of a Triggering Event, Borrower shall promptly, but in any event
within 10 days of such Triggering Event enter into a mortgage or deed of trust
covering such overriding royalty interest in favor of the Administrative Agent
and recorded in the real property records where such overriding royalty interest
is located (the “Mortgaged Property”); provided, however, such
Loan Party shall not be obligated to enter into a mortgage or deed of trust
in
respect of any overriding interest that the Borrower has, by notice to the
Administrative Agent, then excluded from the determination of Total Asset
Value.
2. Conditions
to Effectiveness of this
Amendment. Notwithstanding any other
provision of this Amendment and without affecting in any manner the rights
of
the Lenders hereunder, it is understood and agreed that this Amendment shall
not
become effective, and the Borrower shall have no rights under this Amendment,
until the Administrative Agent shall have received (i) reimbursement or payment
of its costs and expenses incurred in connection with this Amendment or the
Credit Agreement (including reasonable fees, charges and disbursements of King
& Spalding LLP, counsel to the Administrative Agent), and (ii) executed
counterparts to this Amendment from the Borrower, each of the Subsidiary
Guarantors and the Lenders.
3. Representations
and Warranties. To induce the Lenders
and the Administrative Agent to enter into this Amendment, Borrower hereby
represents and warrants to the Lenders and the Administrative Agent
that:
(a) The
execution, delivery and performance by Borrower of this Amendment (i) is within
Borrower’s power and authority; (ii) has been duly authorized by all necessary
corporate and shareholder action; (iii) is not in contravention of any provision
of Borrower’s certificate of incorporation or bylaws or other organizational
documents; (iv) does not violate any law or regulation, or any order or decree
of any Governmental Authority; (v) does not conflict with or result in the
breach or termination of, constitute a default under or accelerate any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which Borrower or any of its Subsidiaries
is a
party or by which Borrower or any such Subsidiary or any of their respective
property is bound; (vi) does not result in the creation or imposition of any
Lien upon any of the property of Borrower or any of its Subsidiaries; and (vii)
does not require the consent or approval of any Governmental Authority or any
other person;
(b) This
Amendment has been duly executed and delivered for the benefit of or on behalf
of Borrower and constitutes a legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms except as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditors’ rights and remedies in general;
and
(c) After
giving effect to this Amendment, the representations and warranties contained
in
the Credit Agreement and the other Loan Documents are true and correct in all
material respects, and no Default or Event of Default has occurred and is
continuing as of the date hereof.
4. Reaffirmations
and Acknowledgments.
(a) Reaffirmation
of Subsidiary Guaranty. Each Subsidiary Guarantor consents to the
execution and delivery by the Borrower of this Amendment and jointly and
severally ratify and confirm the terms of the Subsidiary Guarantee Agreement
with respect to the indebtedness now or hereafter outstanding under the Credit
Agreement as amended hereby and all promissory notes issued thereunder. Each
Subsidiary Guarantor acknowledges that, notwithstanding anything to the contrary
contained herein or in any other document evidencing any indebtedness of the
Borrower to the Lenders or any other obligation of the Borrower, or any actions
now or hereafter taken by the Lenders with respect to any obligation of the
Borrower, the Subsidiary Guarantee Agreement (i) is and shall continue to be
a
primary obligation of the Guarantors, (ii) is and shall continue to be an
absolute, unconditional, joint and several, continuing and irrevocable guaranty
of payment, and (iii) is and shall continue to be in full force and effect
in
accordance with its terms. Nothing contained herein to the contrary
shall release, discharge, modify, change or affect the original liability of
the
Subsidiary Guarantors under the Subsidiary Guarantee Agreement.
(b) Acknowledgment
of Perfection of Security Interest. Borrower and each Subsidiary Guarantor
hereby acknowledges that, as of the date hereof, the security interests and
liens granted to the Administrative Agent and the Lenders under the Credit
Agreement and the other Loan Documents are in full force and effect, are
properly perfected and are enforceable in accordance with the terms of the
Credit Agreement and the other Loan Documents.
5. Effect
of Amendment. Except as set forth expressly herein, all
terms of the Credit Agreement, as amended hereby, and the other Loan Documents
shall be and remain in full force and effect and shall constitute the legal,
valid, binding and enforceable obligations of the Borrower to the Lenders and
the Administrative Agent. 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 the Lenders under the Credit Agreement,
nor constitute a waiver of any provision of the Credit
Agreement. This Amendment shall constitute a Loan Document for all
purposes of the Credit Agreement.
6. Governing
Law. This Amendment shall be governed
by, and construed in accordance with, the internal laws of the State of New
York
and all applicable federal laws of the United States of America.
7. No
Novation. This Amendment is not
intended by the parties to be, and shall not be construed to be, a novation
of
the Credit Agreement or an accord and satisfaction in regard
thereto.
8. Costs
and Expenses. The Borrower agrees to pay on demand all
costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of outside counsel
for the Administrative Agent with respect thereto.
10. Binding
Nature. This Amendment shall be binding
upon and inure to the benefit of the parties hereto, their respective
successors, successors-in-titles, and assigns.
11. Entire
Understanding. This Amendment sets
forth the entire understanding of the parties with respect to the matters set
forth herein, and shall supersede any prior negotiations or agreements,
whether written or oral, with respect thereto.
[Signature
Pages To Follow]
IN
WITNESS WHEREOF, the parties hereto
have caused this Amendment to be duly executed, under seal in the case of the
Borrower and the Subsidiary Guarantors, by their respective authorized officers
as of the day and year first above written.
BORROWER:
By:
/s/
Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
SUBSIDIARY
GUARANTORS:
NGPC
FUNDING GP, LLC
By:
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
NGPC
FUNDING, LP
By:
NGPC
Funding GP, LLC
Its
general partner
By:
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
NGPC
ASSET HOLDINGS GP, LLC
By:
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
NGPC
ASSET HOLDINGS, LP
By:
NGPC
Asset Holdings GP, LLC
Its
general partner
By:
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
NGPC
NEVADA, LLC
By:
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
LENDERS:
SUNTRUST
BANK, individually and as Administrative Agent and Collateral
Agent
By:
/s/ Xxxxx Xxxxxx
Name: Xxxxx
Xxxxxx
Title:
Managing Director
BRANCH
BANK & TRUST CO.
By: /s/
Xxxx Xxxxxx
Name: Xxxx
Xxxxxx
Title:
Assistant Vice President
XXXXXXX
XXXXX BANK, FSB
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By:
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/s/
Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx
Senior
Vice President
COMERICA
BANK
By:/s/
Xxxx
Xxxxxxx
Name:
Xxxx Xxxxxxx
Title: Vice
President
AMEGY
BANK National Association
By:
/s/
W. Xxxxx
Xxxxxxx
W.
Xxxxx
Xxxxxxx
Senior
Vice President
Energy
Lending
