Execution Copy
THIRD AMENDMENT
TO
CREDIT AGREEMENT
DATED AS OF
FEBRUARY 19, 2002
AMONG
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
AS THE COMPANY,
THE LENDERS PARTY HERETO,
FIRST UNION NATIONAL BANK,
AS ADMINISTRATIVE AGENT,
JPMORGAN CHASE BANK,
AS SYNDICATION AGENT,
AND
THE BANK OF NOVA SCOTIA,
COMMERZBANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES,
AND
CREDIT LYONNAIS NEW YORK BRANCH,
AS CO-DOCUMENTATION AGENTS
FIRST UNION SECURITIES, INC.
AND
X.X. XXXXXX SECURITIES INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOK MANAGERS
THIRD AMENDMENT
TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as
of February 19, 2002 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
pursuant to a First Amendment to Credit Agreement, dated as of January 31, 2001,
and a Second Amendment to Credit Agreement dated as of October 24, 2001, (as so
amended and as may be further 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.
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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:
SECTION 1. Amendment to Section 6.07, Financial Covenants, of the
Credit Agreement. Section 6.07(a) of the Credit Agreement is hereby deleted in
its entirety and the following substituted therefor:
"(a) Ratio of Consolidated Indebtedness to Consolidated EBITDA. The
Company will not at any time permit the ratio of Consolidated Indebtedness
then outstanding to Consolidated EBITDA for the period of four full fiscal
quarters 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 exceed (a) 4.25 to 1.0 in the case of (i) such ratio
(calculated as of any date on or after February 19, 2002 and prior to the
date on which the following clause (a)(ii) shall first apply) of
Consolidated Indebtedness then outstanding to Consolidated EBITDA for such
period ended December 31, 2001, and (ii) such ratio of Consolidated
Indebtedness then outstanding to Consolidated EBITDA for such periods
ended March 31 and June 30, 2002, and (b) 4.0 to 1.0 in the case of such
ratio of Consolidated Indebtedness then outstanding to Consolidated EBITDA
for each such period ended 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
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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 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.".
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective when the Company and each of 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
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representations and warranties 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
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AGENT, THE SYNDICATION AGENT, THE CO-DOCUMENTATION AGENTS, 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 CO-DOCUMENTATION AGENTS 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: Xxxxxx Xxxxxx Management, LLC,
its Delegate
By:________________________________
Name:______________________________
Title:_____________________________
LENDER:
FIRST UNION NATIONAL BANK, as the
Administrative Agent and as a Lender
By:_________________________________________
Xxxxxxx X. Xxxxxxxx
Vice President
LENDER:
ABN AMRO BANK, N.V.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
XXXXXXX XXXXX BANK, USA
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
BANK OF MONTREAL
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
THE BANK OF NOVA SCOTIA
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
THE BANK OF TOKYO - MITSUBISHI, LTD.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
BANK ONE, NA
(Main Office - Chicago)
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
FLEET NATIONAL BANK
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
BARCLAYS BANK PLC
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
BNP PARIBAS
By:__________________________________________
Name:________________________________________
Title:_______________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
JPMORGAN CHASE BANK
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
CITIBANK, N.A.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:__________________________________________
Name:________________________________________
Title:_______________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
CREDIT LYONNAIS NEW YORK BRANCH
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
THE DAI-ICHI KANGYO BANK, LTD.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
THE FUJI BANK, LIMITED
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
KBC BANK N.V.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
THE NORTHERN TRUST COMPANY
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
SUNTRUST BANK, ATLANTA
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
U.S. BANK NATIONAL ASSOCIATION
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
CREDIT SUISSE FIRST BOSTON
By:__________________________________________
Name:________________________________________
Title:_______________________________________
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
THE ROYAL BANK OF SCOTLAND
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
ROYAL BANK OF CANADA
By:__________________________________________
Name:________________________________________
Title:_______________________________________
LENDER:
UBS AG, STAMFORD BRANCH
By:__________________________________________
Name:________________________________________
Title:_______________________________________
ANNEX I
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Commitment Lender
===================================================================
$50,000,000 First Union National Bank,
as the Administrative Agent and as a Lender
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$35,000,000 ABN AMRO Bank, N.V.
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$24,000,000 Bank of Montreal
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$50,000,000 The Bank of Nova Scotia
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$24,000,000 The Bank of Tokyo - Mitsubishi, Ltd.
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$35,000,000 Bank One, NA
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$35,000,000 Barclays Bank PLC
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$35,000,000 BNP Paribas
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$50,000,000 The Chase Manhattan Bank
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$24,000,000 Citibank, N.A.
-------------------------------------------------------------------
$50,000,000 Commerzbank AG, New York and
Grand Cayman Branches
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$50,000,000 Credit Lyonnais New York Branch
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$24,000,000 Credit Suisse First Boston
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$13,125,000 The Dai-Ichi Kangyo Bank, Ltd.
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$24,000,000 Fleet National Bank
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$21,875,000 The Fuji Bank, Limited
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$19,000,000 KBC Bank N.V.
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$24,000,000 Xxxxxxx Xxxxx Bank, USA
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$20,000,000 The Northern Trust Company
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$35,000,000 Royal Bank of Canada
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$35,000,000 The Royal Bank of Scotland
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$24,000,000 Suntrust Bank, Atlanta
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$24,000,000 UBS AG, Stamford Branch
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$24,000,000 U.S. Bank National Association
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