EXECUTION VERSION
EXECUTION VERSION
SECOND AMENDMENT
This Second Amendment, dated as of March 22, 2013 (this “Amendment”), among SOUTHERN STAR CENTRAL CORP. (the “Borrower”), ROYAL BANK OF CANADA, as a lender and issuing bank (“RBC”), U.S. BANK, NATIONAL ASSOCIATION, as a
lender (together with RBC, the “Existing Lenders”), ROYAL BANK OF CANADA, as
administrative agent (the “Administrative Agent”), and BANK OF AMERICA, N.A., as the New Lender (as defined below).
lender (together with RBC, the “Existing Lenders”), ROYAL BANK OF CANADA, as
administrative agent (the “Administrative Agent”), and BANK OF AMERICA, N.A., as the New Lender (as defined below).
WITNESSETH:
WHEREAS, the Borrower, the Existing Lenders and the Administrative Agent are parties to that certain Revolving Credit Agreement, dated as of July 3, 2012, as amended pursuant to the First Amendment thereto dated as of August 17, 2012 (as further amended from time to time, the “Credit Agreement”);
WHEREAS, the Borrower has requested that the Credit Agreement be amended to, among other things, (i) increase the aggregate Revolving Commitments thereunder from $65,000,000 to $125,000,000 and (ii) remove the provisions and definitions related to the Borrower’s ability to request incremental commitments described in Section 2.18 thereof;
WHEREAS, pursuant to the terms hereof, the Existing Lenders shall increase their respective Revolving Commitments pursuant to the terms hereof and Bank of America, N.A. (the “New Lender”) shall provide new Revolving Commitments under the Credit Agreement and will become a party thereto; and
WHEREAS, the Borrower, the Administrative Agent and the Required Lenders are willing to agree to the requested amendments subject to the provisions of this Amendment.
NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto agree as follows:
1. Amendments to Definitions.
a. The definitions of “Increased Facility Activation Date”, “Increased Facility Activation Notice”, “Increased Facility Closing Date”, “New Lender” and “New Lender Supplement” in Section 1.1 of the Credit Agreement are hereby deleted in their entirety.
b. The definition of “Revolving Commitment” in Section 1.1 of the Credit
Agreement is hereby deleted in its entirety and replaced with the following:
““Revolving Commitment”: as to any Lender, the obligation of such Lender,
if any, to make Revolving Loans and participate in Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount set forth
under the heading “Revolving Commitment” opposite such Lender’s name on
Schedule 1.1A or in the Assignment and Assumption pursuant to
if any, to make Revolving Loans and participate in Letters of Credit in an
aggregate principal and/or face amount not to exceed the amount set forth
under the heading “Revolving Commitment” opposite such Lender’s name on
Schedule 1.1A or in the Assignment and Assumption pursuant to
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which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The amount of the Total Revolving
Commitments as of the Second Amendment Effective Date is $125,000,000.”
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The amount of the Total Revolving
Commitments as of the Second Amendment Effective Date is $125,000,000.”
c. The following definitions shall be added to Section 1.1 of the Credit Agreement in proper alphabetical order:
i. “Second Amendment”: the Second Amendment to the Credit
Agreement dated as of March 22, 2013, among the Borrower, U.S. Bank, National Association, Royal Bank of Canada, the
Administrative Agent and Bank of America, N.A.
Administrative Agent and Bank of America, N.A.
ii. “Second Amendment Effective Date”: the effective date of the
Second Amendment, which date is March 22, 2013.
2. Amendment to Section 2.18. Section 2.18 of the Credit Agreement is hereby deleted
in its entirety.
3. Amendment to Section 7.2(m). Section 7.2(m) of the Credit Agreement is hereby
deleted in its entirety and replaced with the following:
“additional Indebtedness of the Borrower or any of its Restricted Subsidiaries
in an aggregate principal amount (for the Borrower and all Restricted
Subsidiaries) not to exceed the sum of (A) the greater of (i) $250,000,000 and
in an aggregate principal amount (for the Borrower and all Restricted
Subsidiaries) not to exceed the sum of (A) the greater of (i) $250,000,000 and
(ii) 15% of Consolidated Net Tangible Assets as set forth on the most recent
quarterly balance sheet at any one time outstanding minus (B) the aggregate
principal amount of debt outstanding pursuant to Section 7.2(a); and”
4. Amendment to Schedule 1.1A. Schedule 1.1A to the Credit Agreement is hereby deleted in its entirety and replaced with the schedule set forth in Annex I.
5. Amendments to Exhibits: Exhibits G and H and each reference thereto in the Credit
Agreement is hereby deleted in its entirety.
6. New Lender.
a. As a signatory hereto, as of the Amendment Effective Date (as defined
below), the New Lender shall become a Lender under the Credit Agreement
for all purposes and to the same extent as if originally a party thereto and
shall be bound by and entitled to the benefits of the Credit Agreement. The
New Lender shall have a Revolving Commitment in the amount set forth
under the heading “Revolving Commitment” opposite the New Lender’s
name in Schedule 1.1A to the Credit Agreement (as amended
for all purposes and to the same extent as if originally a party thereto and
shall be bound by and entitled to the benefits of the Credit Agreement. The
New Lender shall have a Revolving Commitment in the amount set forth
under the heading “Revolving Commitment” opposite the New Lender’s
name in Schedule 1.1A to the Credit Agreement (as amended
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pursuant to the
terms hereof). On the Amendment Effective Date, the New Lender shall
make available to the Administrative Agent its pro rata share of Revolving
Loans outstanding on such date in accordance with Section 2.2 of the Credit
Agreement as if the New Lender was party to the Credit Agreement on the
date such Revolving Loans were originally made and the Administrative
Agent shall reduce the amount of the outstanding Revolving Loans held by
each of the Existing Lenders as necessary to achieve a ratable allocation of
the outstanding Revolving Loans. For the avoidance of doubt, the Borrower
agrees to indemnify the Existing Lenders in accordance with Section 2.14 of
the Credit Agreement for any loss incurred by the Existing Lenders in
connection with the prepayment of the outstanding Revolving Loans
described in this Section 6(a).
terms hereof). On the Amendment Effective Date, the New Lender shall
make available to the Administrative Agent its pro rata share of Revolving
Loans outstanding on such date in accordance with Section 2.2 of the Credit
Agreement as if the New Lender was party to the Credit Agreement on the
date such Revolving Loans were originally made and the Administrative
Agent shall reduce the amount of the outstanding Revolving Loans held by
each of the Existing Lenders as necessary to achieve a ratable allocation of
the outstanding Revolving Loans. For the avoidance of doubt, the Borrower
agrees to indemnify the Existing Lenders in accordance with Section 2.14 of
the Credit Agreement for any loss incurred by the Existing Lenders in
connection with the prepayment of the outstanding Revolving Loans
described in this Section 6(a).
b. The New Lender (i) represents and warrants that (A) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Amendment and to consummate the transactions contemplated hereby and to
become a Lender under the Credit Agreement, (B) it satisfies the
requirements, if any, specified in the Credit Agreement that are required to be
satisfied by it in order to become a Lender and (C) it has received a copy of
become a Lender under the Credit Agreement, (B) it satisfies the
requirements, if any, specified in the Credit Agreement that are required to be
satisfied by it in order to become a Lender and (C) it has received a copy of
the Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 6.1 thereof, and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Amendment on the basis of
which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender and (ii) agrees that
statements delivered pursuant to Section 6.1 thereof, and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Amendment on the basis of
which it has made such analysis and decision independently and without
reliance on the Administrative Agent or any other Lender and (ii) agrees that
(A) it will, independently and without reliance on the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents and (B) it will perform
in accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents and (B) it will perform
in accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
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c. The New Lender’s address for notices for the purposes of the Credit Agreement is as follows:
Bank of America, N.A.
000 Xxxxxxxxx Xxxxxx, Xxxxxxx XX 00000
Attention: Xxxxxx XxXxxx, Managing Director-Energy Facsimile: 000-000-0000
Telephone: 000-000-0000
7. Upfront Fee. On the Amendment Effective Date, the Borrower shall pay (or cause to
be paid) to each of the Existing Lenders and the New Lender, in immediately available funds, a non-
refundable upfront fee (the “Upfront Fee”) in an amount equal to 50 basis points calculated on the
aggregate amount of (i) in the case of the Existing Lenders, Revolving Commitments provided by the
Existing Lenders as of the Amendment Effective Date in excess of Revolving Commitments
previously provided on the Closing Date and (ii) in the case of the New Lender, Revolving
Commitments provided by the New Lender under the Credit Agreement as of the Amendment
Effective Date, the full amount of which shall each be fully earned and payable on the Amendment
Effective Date and which fee shall be payable in addition to any other fees owing to the Existing
Lenders under the Credit Agreement.
be paid) to each of the Existing Lenders and the New Lender, in immediately available funds, a non-
refundable upfront fee (the “Upfront Fee”) in an amount equal to 50 basis points calculated on the
aggregate amount of (i) in the case of the Existing Lenders, Revolving Commitments provided by the
Existing Lenders as of the Amendment Effective Date in excess of Revolving Commitments
previously provided on the Closing Date and (ii) in the case of the New Lender, Revolving
Commitments provided by the New Lender under the Credit Agreement as of the Amendment
Effective Date, the full amount of which shall each be fully earned and payable on the Amendment
Effective Date and which fee shall be payable in addition to any other fees owing to the Existing
Lenders under the Credit Agreement.
8. Representations and Warranties. The Borrower and each Loan Party hereby represent and warrant on and as of the Amendment Effective Date that (i) it is legally authorized to enter into
and has duly executed and delivered this Amendment, (ii) no Default or Event of Default has occurred and is continuing and (iii) each of the representations and warranties of each Loan Party set forth in
the Loan Documents are true and correct in all material respects (except to the extent any such
representation or warranty is qualified by “materially”, “Material Adverse Effect” or a similar term, in which case such representation and warranty is true and correct in all respects) on and as of the
Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in all
material respects (except to the extent any such representation or warranty is qualified by
“materially”, “Material Adverse Effect” or a similar term, in which case such representation and
warranty is true and correct in all respects) as of such earlier date).
and has duly executed and delivered this Amendment, (ii) no Default or Event of Default has occurred and is continuing and (iii) each of the representations and warranties of each Loan Party set forth in
the Loan Documents are true and correct in all material respects (except to the extent any such
representation or warranty is qualified by “materially”, “Material Adverse Effect” or a similar term, in which case such representation and warranty is true and correct in all respects) on and as of the
Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties were true and correct in all
material respects (except to the extent any such representation or warranty is qualified by
“materially”, “Material Adverse Effect” or a similar term, in which case such representation and
warranty is true and correct in all respects) as of such earlier date).
9. Effectiveness of Amendment. This Amendment shall become effective upon the date on which the following conditions precedent have been satisfied or waived (such date, the
“Amendment Effective Date”).
“Amendment Effective Date”).
(a) The Administrative Agent shall have received counterparts to this
Amendment duly executed by the Borrower, the Required Lenders and the New Lender.
(b) At the time of and immediately after giving effect to this Amendment, no
Default or Event of Default shall have occurred and be continuing.
(c) Each of the Existing Lenders and the New Lender shall have received the
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Upfront Fee payable to them in accordance with Section 7 above.
(d) The Administrative Agent shall have received payment for all expenses for
which invoices have been presented at least one Business Day prior to the Amendment Effective Date (including the reasonable fees and expenses of legal counsel) required to be paid.
10. Continuing Effect; No Other Amendments or Consents. Except as expressly provided
herein, all of the terms and provisions of the Credit Agreement are and shall remain in full force and
effect. Each amendment provided for herein is limited to the specific subsection of the Credit
Agreement specified herein and shall not constitute a consent, waiver or amendment of, or an
indication of the Administrative Agent’s or the Lenders’ willingness to consent to any action
requiring consent under any other provisions of the Credit Agreement or the same subsection for any
other date or time period.
herein, all of the terms and provisions of the Credit Agreement are and shall remain in full force and
effect. Each amendment provided for herein is limited to the specific subsection of the Credit
Agreement specified herein and shall not constitute a consent, waiver or amendment of, or an
indication of the Administrative Agent’s or the Lenders’ willingness to consent to any action
requiring consent under any other provisions of the Credit Agreement or the same subsection for any
other date or time period.
11. Expenses. The Borrower agrees to pay and reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred in connection with the preparation and delivery of this Amendment, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent.
12. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties hereto.
13. Counterparts. This Amendment may be executed in any number of counterparts by the parties hereto (including by facsimile and electronic (e.g. “.pdf”, or “.tif”) transmission), each of which counterparts when so executed shall be an original, but all the counterparts shall together constitute one and the same instrument.
14. Interpretation; Capitalized Terms. This Agreement is a Loan Document for the purposes of the Credit Agreement. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement.
15. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President, Chief Financial Officer and Treasurer | |||
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ROYAL BANK OF CANADA, as Administrative Agent | ||||
By: | /s/ Xxx Xxxxxx | |||
Name: | Xxx Xxxxxx | |||
Title: | Manager, Agency | |||
ROYAL BANK OF CANADA, as an Existing Lender and Issuing Bank | ||||
By: | ||||
Name: | ||||
Title: | ||||
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ROYAL BANK OF CANADA, as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: | ||||
ROYAL BANK OF CANADA, as an Existing Lender and Issuing Bank | ||||
By: | /s/ Xxx X. XxXxxxxxxxx | |||
Name: | Xxx X. XxXxxxxxxxx | |||
Title: | Authorized Signatory | |||
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U.S. BANK NATIONAL ASSOCIATION, as an Existing Lender | ||||
By: | /s/ Xxx X. Xxxxx | |||
Name: | Xxx X. Xxxxx | |||
Title: | Vice President | |||
080599-0099-11824-00000000
BANK OF AMERICA, N.A., as the New Lender | ||||
By: | /s/ Xxxxxx X. XxXxxx | |||
Name: | Xxxxxx X. XxXxxx | |||
Title: | Managing Director | |||
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Annex I
Schedule 1.1A
Commitment Amounts of the Lenders
Name and Address of Lender | Revolving Commitment |
Royal Bank of Canada 2800 Xxxx Xxx Xxxx., Xxxxx 0000 Xxxxxxx, XX 00000 | $52,500,000.00 |
U.S. Bank, National Association 700 Xxxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000 | $27,500,000.00 |
Bank of America, X.X. Xxx Bryant Park, 20th Floor Xxx Xxxx, XX 00000 | $45,000,000.00 |
Total Revolving Commitments | $125,000,000.00 |
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