AMENDMENT NO. 1
Exhibit
10.1
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0, dated as of April 2, 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., as syndication agent, JPMORGAN CHASE BANK, N.A., UNION BANK
OF
CALIFORNIA, N.A. and UBS SECURITIES LLC, as co-documentation agents, 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. 1”:
the
Amendment No. 1, dated as of April 2, 2007, by and among the Borrowers, the
MLP,
the Administrative Agent, and the Lenders party thereto.
“Amendment
No. 1 Effective Date”:
the
“Effective
Date”
under
and as defined in Amendment No. 1.
“Extension
Option”:
as
defined in Section
2.17(a).
“Gulf
Crossing”:
Gulf
Crossing Pipeline Company LLC, a Delaware limited liability
company.
(b) The
definitions of “Consolidated EBITDA”, “Consolidated Leverage Ratio”,
“Consolidated Net Income”, “Hybrid Security”, “Revolving Credit Sublimit”,
“Scheduled Maturity Date” and “Swing Line Sublimit” in Section
1.1 (Defined Terms) of
the
Credit Agreement are hereby amended and restated in their entirety as
follows:
“Consolidated
EBITDA”:
of any
Person for any period, Consolidated Net Income of such Person and its
Subsidiaries for such period plus, without duplication and to the extent
reflected as a charge in the statement of such Consolidated Net Income for
such
period, the sum of (a) income tax expense, (b) consolidated interest expense,
amortization or write-off of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with Indebtedness,
(c) depreciation and amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and organization costs, (e) any
extraordinary, unusual or non-recurring expenses or losses (including, whether
or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, losses on sales of assets outside
of
the ordinary course of business) and (f) any other non-cash charges, and minus,
to the extent included in the statement of such Consolidated Net Income for
such
period, the sum of (a) interest income (except to the extent deducted in
determining consolidated interest expense), (b) any extraordinary, unusual
or
non-recurring income or gains (including, whether or not otherwise includable
as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business)
and (c) any other non-cash income, all as determined on a consolidated basis;
provided,
however,
that
for purposes of calculating Consolidated EBITDA of the MLP or any Borrower
for
any period, (i) the Consolidated EBITDA of any Person acquired by the MLP or
such Borrower or any of their respective Subsidiaries during such period shall
be included on a pro forma basis for such period (assuming the consummation
of
such acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders’
equity and of cash flows for the period in respect of which Consolidated EBITDA
is to be calculated (x) have been previously provided to the Administrative
Agent and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent certified
public accountants of nationally recognized standing or (2) have been found
acceptable by the Administrative Agent and (ii) the Consolidated EBITDA of
any
Person disposed of by the MLP or such Borrower or any of their respective
Subsidiaries during such period shall be excluded for such period (assuming
the
consummation of such disposition and the repayment of any Indebtedness in
connection therewith occurred on the first day of such period); provided,
further,
that
for purposes of calculating compliance with the covenant contained in Section
5,
with respect to any Material Project of any Borrower or any of their respective
Subsidiaries, an amount equal to the ratable portion of Consolidated EBITDA
projected for the first 12 months of operations of such Material Project shall
be added to actual Consolidated EBITDA of such Borrower at the end of each
Fiscal Quarter in proportion to the total expected capital costs of such
Material Project that have been incurred at the end of such Fiscal Quarter
(provided,
however,
that
(i) with respect to any Material Project of any non-Wholly Owned Subsidiary,
there shall be excluded the projected Consolidated EBITDA of such Material
Project multiplied by the percentage of the economic interests of such
non-Wholly Owned Subsidiary owned directly or indirectly by any Person other
than the Borrowers or any Wholly Owned Subsidiary of the Borrowers, (ii) the
aggregate amount of projected Consolidated EBITDA with respect to any Material
Project of any non-Wholly Owned Subsidiary included in the calculation of
Consolidated EBITDA shall not exceed 25% of the applicable Borrower’s actual
Consolidated EBITDA for the preceding 4 Fiscal Quarters and (iii) the
Administrative Agent shall have received Consolidated EBITDA projections and
such supporting documentation requested by it for each Material Project, in
each
case reasonably satisfactory to the Administrative Agent); provided,
further,
that
for purposes of calculating compliance with the covenant contained in Section
5
for the Fiscal Quarter ending June 30, 2006, Consolidated EBITDA of the MLP
for
the relevant period shall be deemed to equal Consolidated EBITDA of the MLP
for
the three consecutive Fiscal Quarters ended June 30, 2006 plus Consolidated
EBITDA of the Parent Borrower for the Fiscal Quarter ended September 30,
2005.
“Consolidated
Leverage Ratio”:
with
respect to any Person as of any date, the ratio of (a) Consolidated Total Debt
of such Person and its Subsidiaries on such date to (b) Consolidated EBITDA
of
such Person and its Subsidiaries for the last four Fiscal Quarter period ending
on or before such date; provided,
however,
that
Consolidated Total Debt shall exclude (i) any Subordinated Loans made by the
Permitted Investor or any Subsidiary thereof to the MLP or any Borrower;
provided, that the aggregate principal amount of such excluded Subordinated
Loans pursuant to this clause (i) outstanding at any time shall not exceed
$100,000,000, (ii) any Subordinated Loans made by the MLP or any Borrower to
any
Borrower; provided,
that
the aggregate principal amount of such excluded Subordinated Loans pursuant
to
this clause (ii) outstanding at any time shall not exceed $100,000,000, (iii)
obligations of the Parent Borrower or any of its Subsidiaries under any Hybrid
Securities and (iv) the aggregate principal amount of any Indebtedness of any
non-Wholly Owned Subsidiary multiplied by the percentage of the economic
interests of such non-Wholly Owned Subsidiary owned directly or indirectly
by
any Person other than the Borrowers or any Wholly Owned Subsidiary of the
Borrowers, unless any Borrower or any Wholly-Owned Subsidiary of any Borrower
has a Guarantee Obligation with respect to such Indebtedness, in which case
the
aggregate principal amount of such Indebtedness so guaranteed shall be included
in the calculation of Consolidated Total Debt.
“Consolidated
Net Income”:
of any
Person for any period, the consolidated net income (or loss) of such Person
and
its Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; provided,
that in
calculating Consolidated Net Income of the MLP or any Borrower for any period,
there shall be excluded (a) the income (or deficit) of any Person accrued prior
to the date it becomes a Subsidiary of the MLP or such Borrower or is merged
into or consolidated with the MLP or such Borrower or any of their respective
Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary
of the MLP or such Borrower) in which the MLP or such Borrower or any of their
respective Subsidiaries has an ownership interest, except to the extent that
any
such income is actually received by the MLP, such Borrower or such Subsidiary
in
the form of dividends or similar distributions, (c) the undistributed earnings
of any Subsidiary of the MLP or such Borrower to the extent that the declaration
or payment of dividends or similar distributions by such Subsidiary is not
at
the time permitted by the terms of any Contractual Obligation (other than under
any Loan Document) or Requirement of Law applicable to such Subsidiary and
(d)
the income (or deficit) of any non-Wholly Owned Subsidiary multiplied by the
percentage of the economic interests of such non-Wholly Owned Subsidiary owned
directly or indirectly by any Person other than the Borrowers or any Wholly
Owned Subsidiary of the Borrowers.
“Hybrid
Security”:
any
hybrid preferred securities consisting of trust preferred securities or
deferrable interest subordinated debt securities with maturities of at least
20
years issued by the Parent Borrower or wholly owned special purpose entities
that are direct Subsidiaries of the Parent Borrower.
“Revolving
Credit Sublimit”:
initially, with respect to each Borrower, the amount set forth opposite such
Borrower’s name below:
|
Borrower
|
Revolving
Credit Sublimit
|
|
Parent
Borrower
|
$350,000,000
|
|
Texas
Gas
|
$50,000,000
|
|
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 $700,000,000, (b) Texas Gas’ Revolving Credit Sublimit
shall not exceed $700,000,000, (c) Gulf South’s Revolving Credit Sublimit shall
not exceed $700,000,000 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.
“Scheduled
Maturity Date”:
the
later of (a) June 29, 2012 and (b) the then current Extended Maturity Date,
if
applicable.
“Swingline
Loan Sublimit”:
$70,000,000.
(c) The
definition of “Subsidiary”
in
Section 1.1 of the Credit Agreement is amended by adding the following sentence
at the end of such definition: “Notwithstanding the foregoing, Gulf Crossing
shall not be deemed a Subsidiary of the Parent Borrower for purposes of Sections
3, 6, 7 and 8, other than for purposes of Sections 3.10, 3.12, 3.17, 3.19,
6.1,
6.8, 7.3, 8.1(e) and 8.1(f).”
(d) Section
1.1 (Defined Terms) of
the
Credit Agreement is hereby amended by deleting the following definitions in
their entirety: “First
Extension Option”
and
“Second
Extension Option”.
(e) Section
2.1(b) (Incremental Credit Extensions)
of the
Credit Agreement is hereby amended by (i) replacing the phrase “the aggregate
amount of all Revolving Credit Commitments 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. 1 Effective Date,
the aggregate amount of all Revolving Credit Commitment Increases shall not
exceed $300,000,000”, (ii) renumbering the existing clause (B) in the proviso
therein as clause (C) and (iii) adding the following as a new clause (B) in
the
proviso therein: “(B) the aggregate amount of Revolving Credit Commitments shall
not exceed $1,000,000,000 at any time”.
(f) Section
2.17(a) (Extensions of Scheduled Maturity Date; Removal of Lenders)
of
the
Credit Agreement is hereby and restated in its entirety to read as
follows:
“(a)
Subject to the terms and provisions of this Section
2.17,
the
Parent Borrower shall have options from time to time to extend the Scheduled
Maturity Date for a period of one year each (each extension option shall be
referred to herein as an “Extension
Option”);
provided,
that in
no event shall the Parent Borrower have such option(s) to extend the Scheduled
Maturity Date during the Term Out Period. In connection with the initial
Extension Option, the Parent Borrower may, by written notice to the
Administrative Agent (a “Notice
of Extension”)
given
not earlier than 60 days prior to the first anniversary of the Effective Date
nor later than 45 days prior to the then effective Scheduled Maturity Date,
advise the Lenders that it requests an extension of the then effective Scheduled
Maturity Date (such then effective Scheduled Maturity Date being the
“Existing
Maturity Date”)
by one
year, effective on the Existing Maturity Date. In the event the initial
Extension Option is exercised and the Existing Maturity Date is extended
pursuant to the terms of this Section
2.17,
the
Parent Borrower may, by Notice of Extension given not earlier than 364 days
following the date of delivery of the Notice of Extension provided in connection
with the immediately prior Extension Option nor later than 45 days prior to
the
Existing Maturity Date, advise the Lenders that it has elected to exercise
another Extension Option and request to extend the Existing Maturity Date by
one
year, effective on said Existing Maturity Date. The Administrative Agent will
promptly, and in any event within five Business Days of the receipt of any
such
Notice of Extension, notify the Lenders of the contents of each such Notice
of
Extension.”
(g) 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 and each Lender
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 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
|
$86,333,334
|
|
Citibank,
N.A.
|
$86,333,333
|
|
JPMorgan
Chase Bank, N.A.
|
$86,333,333
|
|
Union
Bank of California, N.A.
|
$75,000,000
|
|
UBS
Loan Finance LLC
|
$75,000,000
|
|
Royal
Bank of Canada
|
$60,000,000
|
|
Mizuho
Corporate Bank, Ltd.
|
$60,000,000
|
|
Xxxxxxx
Xxxxx Bank USA
|
$45,000,000
|
|
Xxxxxxx
Street Commitment Corporation
|
$45,000,000
|
|
Xxxxxx
Xxxxxxx Bank
|
$45,000,000
|
|
Deutsche
Bank AG New York Branch
|
$36,000,000
|
|
TOTAL:
|
$700,000,000
|
