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EXHIBIT 10.4
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of January 29, 1999 (this "Amendment"), to
the Second Amended and Restated Credit Agreement, dated as of March 23, 1995, as
amended and restated through December 13, 1996 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Credit Agreement"), among
LEVIATHAN GAS PIPELINE PARTNERS, L.P., a Delaware limited partnership (the
"Borrower"), the banks and other financial institutions (the "Lenders") parties
hereto, THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders and ING (U.S.) CAPITAL CORPORATION, a Delaware corporation, as
co-arranger for the Lenders (the "Co-Arranger").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, extensions of credit to the Borrower; and
WHEREAS, the Borrower has requested that certain provisions of the
Credit Agreement be amended and waived in the manner provided for in this
Amendment; and
WHEREAS, the Administrative Agent, the Co-Arranger and the Required
Lenders are willing to agree to such amendments and waivers, but only on the
terms and subject to the conditions set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
Borrower, the Administrative Agent, the Co-Arranger and the Required Lenders
hereby agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
recitals to this Amendment have the meanings specified therein, and terms
defined in the Credit Agreement (including all amendments thereto) are used
herein as therein defined.
2. Amendments to Credit Agreement.
(a) Amendment to Recitals. The second "Whereas" clause in the
recitals is amended by adding immediately after the amount "$350,000,000" the
phrase "(subject to further increase as provided in subsection 2.9 hereof)".
(b) Amendment to Subsection 1.1. (a) Subsection 1.1 of the Credit
Agreement is amended by adding at the end of the definition of "Consolidated Net
Worth" the following sentence:
In calculating Consolidated Net Worth, any reductions thereto otherwise
required by ceiling test write downs relating to oil and gas reserves shall
be excluded.
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(b) Subsection 1.1 of the Credit Agreement is amended by adding to the
definition of "Revolving Credit Commitments" the phrase "or increased"
immediately after the word "reduced."
(c) Amendment to Section 2. Section 2 of the Credit Agreement is
amended by adding the following new subsection 2.9:
2.9 Increase in Revolving Credit Commitments. (a) The Borrower may
increase the aggregate Revolving Credit Commitments at any one time prior
to May 28, 1999 by notifying the Administrative Agent in writing of the
amount (the "Offered Increase Amount") of such proposed increase (such
notice, a "Commitment Increase Notice"). The Borrower shall offer one or
more of the Lenders the opportunity to participate in all or a portion of
the Offered Increase Amount pursuant to paragraph (b) below. Each
Commitment Increase Notice shall specify which Lenders the Borrower desires
to participate in such Revolving Credit Commitment increase. Any such
increase in the Revolving Credit Commitments shall become effective on the
dates specified in the Commitment Increase Agreements referred to in
paragraph (b) below.
(b) Any Lender which accepts an offer to it by the Borrower to
increase its Revolving Credit Commitment pursuant to subsection 2.9(a)
shall execute an agreement (a "Commitment Increase Agreement") with the
Borrower and the Administrative Agent, whereupon such Lender shall be bound
by and entitled to the benefits of this Agreement with respect to the full
amount of its Revolving Credit Commitment as so increased, and Schedule I
shall be deemed to be amended to so increase the Revolving Credit
Commitment and to reflect the resulting Commitment Percentages of the
respective Lenders after giving effect to such increase.
(c) Notwithstanding anything to the contrary in this subsection 2.9
(i) in no event shall any transaction effected pursuant to this subsection
2.9 cause the aggregate Revolving Credit Commitments hereunder to exceed
$375,000,000 and (ii) no Lender shall have any obligation to increase its
Revolving Credit Commitment unless it agrees to do so in its sole
discretion. The Borrower will execute and deliver to the Administrative
Agent a new Revolving Credit Note for each Lender which requests the same
in the amount of the Revolving Credit Commitment of such Lender after
giving effect to any increase in the Revolving Credit Commitments. Each
such Lender will return the existing Revolving Credit Note held by it to
the Administrative Agent.
(d) Amendment to Subsection 8.1. Subsection 8.1(a) of the Credit
Agreement is hereby amended by deleting the amount of "85,000,000" and
substituting therefor the amount of "60,000,000."
3. Waivers to Credit Agreement.
(a) It is the intention of the Borrower, the Administrative Agent, the
Co-Arranger and the Lenders that the provisions in the Credit Agreement relating
to the
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Incurrence Limitation not be effective from the Amendment Effective Date
through May 28, 1999. Each of the Administrative Agent, the Co-Arranger and the
Lenders hereby waives compliance by the Borrower with the requirements of
subsections 2.4, 3.1(a), 4.1(c) and 7.2(b)(ii)(y) during the period beginning
the Amendment Effective Date through and including May 28, 1999 to the extent
and only to the extent that such subsections relate to the Incurrence
Limitation. All provisions waived as a result of this paragraph shall become
binding once again as of May 29, 1999.
(b) Each of the Administrative Agent, the Co-Arranger and the Lenders
hereby waives compliance by the Borrower with the requirements of subsections
8.1(d) and 8.1(e) during the period beginning the Amendment Effective Date
through and including May 28, 1999.
4. Interest Rate. From the Amendment Effective Date through and including
May 28, 1999 the Applicable Margin for (a) Alternate Base Rate Loans shall be
1.00% and (b) Eurodollar Loans shall be 2.25%, notwithstanding the pricing grid
set forth in the definition of "Applicable Margin".
5. Commitment Fee. From the Amendment Effective Date through and including
May 28, 1999, the commitment fee under subsection 2.5 of the Credit Agreement
payable to each Lender shall be computed at the rate per annum equal to .50% on
the average daily amount of the Available Revolving Credit Commitment of such
Lender rather than at the Applicable Margin therefor as set forth under the
column heading "Commitment Fee".
6. Forms of Commitment Increase Notice and Commitment Increase Agreement.
The Commitment Increase Notice and Commitment Increase Agreement referred to in
subsection 2.9 of the Credit Agreement, as amended hereby, shall be
substantially in the form of Exhibits A and B hereto, respectively.
7. Conditions to Effectiveness. This Amendment shall become effective on
the date (the "Amendment Effective Date") on which all of the following
conditions precedent have been satisfied or waived:
(a) The Borrower, the Administrative Agent and the Required Lenders
shall have executed and delivered to the Administrative Agent this Amendment,
and the other Loan Parties shall have executed and delivered to the
Administrative Agent the attached Acknowledgment ("Acknowledgment") approving
this Amendment.
(b) The Administrative Agent shall have received from the Borrower (i)
for the account of each Lender which executes and delivers this Amendment on or
prior to the Amendment Effective Date, the fees associated with this Amendment
and (ii) for the account of the Administrative Agent and the Co-Arranger, such
additional fees as are separately agreed with the Borrower.
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(c) The Administrative Agent shall have received a certificate of each
of the Borrower, Leviathan and each Subsidiary of the Borrower which is a Loan
Party, dated the Amendment Effective Date, as to the incumbency and signature of
the officers of each such Person executing this Amendment and the
Acknowledgment, satisfactory in form and substance to the Administrative Agent,
executed by the Chief Executive Officer, Chief Operating Officer, Chief
Financial Officer, President, Treasurer or any Vice President and the Secretary
or any Assistant Secretary of each such Person.
(d) The Administrative Agent shall have received the executed legal
opinion of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel to the Borrower
and the other Loan Parties, in form and substance reasonably satisfactory to the
Administrative Agent.
8. General.
(a) Representations and Warranties. After giving effect to the
effectiveness of this Amendment, the representations and warranties made by the
Loan Parties in the Loan Documents are true and correct in all material respects
on and as of the Amendment Effective Date (unless such representations or
warranties are stated to refer to a specific earlier date, in which case such
representations and warranties shall be true and correct in all material
respects as of such earlier date) as if made on and as of the Amendment
Effective Date and no Default or Event of Default will have occurred and be
continuing.
(b) Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
(c) No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement, the
Notes and the other Loan Documents are and shall remain in full force and
effect.
(d) Governing Law; Counterparts. (i) THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(ii) This Amendment may be executed by one or more of the parties to
this Amendment on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
LEVIATHAN GAS PIPELINE PARTNERS, L.P.
By /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Administrative Agent and Lender
By /s/ XXXXX X. XXXX
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Name: Xxxxx X. Xxxx
Title: Vice President
ING (U.S.) CAPITAL CORPORATION, as
Co-Arranger and Lender
By /s/ X.X. XXXXX
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Name: X.X. Xxxxx
Title: Senior Vice President
DEN NORSKE BANK ASA
By /s/ XXXXXX XXXXXXXX
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Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
By /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
XXXXX FARGO BANK TEXAS, N.A.
By /s/ XXXXXXXXX FAITH
-----------------------------------
Name: Xxxxxxxxx Faith
Title: Assistant Vice President
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MEESPIERSON CAPITAL CORP.
By /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
By /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
BANK OF SCOTLAND
By /s/ XXXXX XXXX TAT
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Name: Xxxxx Xxxx Tat
Title: Senior Vice President
PARIBAS
By /s/ XXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
By /s/ XXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/ PHILIPPE SOUSTRA
-----------------------------------
Name: Philippe Soustra
Title: Authorized Signatory
FIRST UNION NATIONAL BANK
By /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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ARAB BANKING CORPORATION (B.S.C.)
By /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ
By /s/ XXXX XXXX XXXXX
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Name: Xxxx Xxxx Xxxxx
Title: Executive Vice President
By /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: First Vice President &
Deputy Chief Credit Officer
PNC BANK, NATIONAL ASSOCIATION
By /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. XXXXX
-----------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager
Loan Operations
HIBERNIA NATIONAL BANK
By /s/ XXXX X. XXXXXXXXXX
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Name: Xxxx X. Xxxxxxxxxx
Title: Assistant Vice President
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ACKNOWLEDGMENT
Each undersigned guarantors hereby consents and agrees to the foregoing
Amendment and acknowledges and agrees that (i) all obligations of the Borrower
under the Credit Agreement, as amended by the foregoing Amendment, including all
obligations in respect any increase in the Revolving Credit Commitments and
extensions of credit thereunder, are Obligations which are secured and
guaranteed by the Security Documents to which it is a party, (ii) all references
to the Credit Agreement in the Security Documents refer to the Credit Agreement,
as amended from time to time (including pursuant to the foregoing Amendment) and
(iii) all references to Loans and Letters of Credit and Letters of Credit in the
Security Documents refer to the Loans and Letter of Credit under the Credit
Agreement, as amended by the foregoing Amendment, including the Loan made and
Letters of Credit issued under any increase in the Revolving Credit Commitments
effected pursuant to the Amendment.
LEVIATHAN GAS PIPELINE COMPANY
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
DELOS OFFSHORE COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
XXXXX BANK GATHERING COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
FLEXTREND DEVELOPMENT COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
GREEN CANYON PIPELINE COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
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LEVIATHAN OIL TRANSPORT SYSTEMS, L.L.C.
/s/ XXXXX XXXXXX
-------------------------------------
Xxxxx Xxxxxx
Chief Financial Officer
MANTA RAY GATHERING COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
POSEIDON PIPELINE COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
SAILFISH PIPELINE COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
STINGRAY HOLDING, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
TARPON TRANSMISSION COMPANY
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
TRANSCO HYDROCARBONS COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
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TEXAM OFFSHORE GAS TRANSMISSION, L.L.C.
/s/ XXXXX XXXXXX
-----------------------------------------
Xxxxx Xxxxxx
Chief Financial Officer
TRANSCO OFFSHORE PIPELINE COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
VK DEEPWATER GATHERING COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
VK-MAIN PASS GATHERING COMPANY, L.L.C.
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
Chief Financial Officer
