FIRST AMENDMENT
Exhibit 10.2
FIRST AMENDMENT
THIS FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”) is entered into as of the 24th day of February, 2006 by and among
each of the persons listed on the signature pages hereof as banks (the “Banks”), Crosstex
Energy, L.P., a Delaware limited partnership (the “Borrower”), and Bank of America, N.A.,
as administrative agent (the “Administrative Agent”).
BACKGROUND
A. The Banks, the Administrative Agent and the Borrower are parties to that certain Fourth
Amended and Restated Credit Agreement dated as of November 1, 2005 (the “Credit
Agreement”). Terms defined in the Credit Agreement and not otherwise defined herein have the
same respective meanings when used herein.
B. The Borrower intends to amend the Note Agreement in order to increase the outstanding
principal amount of the Note Obligations by $60,000,000.
C. The Borrower has requested, and the Majority Banks have agreed, to (1) consent to the
issuance of Debt under the Note Agreement in an aggregate principal amount not to exceed
$260,000,000, and (2) make certain other amendments to the Credit Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which are all
hereby acknowledged, the Borrower and the Majority Banks (which are all of the Banks required under
the Credit Agreement to make the amendments and give the consents contemplated hereunder) hereto
covenant and agree as follows:
Section 1. Amendments. The Credit Agreement is hereby amended as follows:
(a) Section 6.02(j) of the Credit Agreement is hereby amended in its entirety as
follows:
(j) Debt under the Note Agreement in an aggregate principal amount not
to exceed $260,000,000; and
(b) Section 6.17(a) of the Credit Agreement is hereby amended by replacing
“$200,000,000” with “$260,000,000”.
Section 2. Consent and Waiver. The Majority Banks hereby consent to the Letter Amendment
No. 3 to the Note Agreement to permit the increase of the outstanding principal amount of Note
Obligations by $60,000,000 for a total of $260,000,000. This consent is limited to the extent
described herein and shall not be construed to be a consent to or a waiver of any other actions
prohibited by the Credit Agreement or any other Credit Document.
Section 3. Conditions Precedent. This Amendment shall become effective as of the date
first set forth above when the Administrative Agent shall have received all of the following, each
dated the date hereof, in form and substance satisfactory to the Administrative Agent and in the
number of originals requested by the Administrative Agent:
(a) this Amendment, duly executed by the Borrower, the Guarantors, the Majority Banks
and the Administrative Agent; and
(b) an executed copy of the Letter Amendment No. 3 to Note Agreement, certified by a
Responsible Officer as being a true and correct copy of such document, in form and substance
reasonably acceptable to the Administrative Agent.
Section 4. Representations and Warranties. The Borrower represents and warrants to the
Banks and the Administrative Agent as set forth below:
(a) The execution, delivery and performance by the Borrower of this Amendment are
within the Borrower’s legal powers, have been duly authorized by all necessary partnership
action and do not (i) contravene the Borrower Partnership Agreement, (ii) violate any
applicable Governmental Rule, the violation of which could reasonably be expected to have a
Material Adverse Effect, (iii) conflict with or result in the breach of, or constitute a
default under, any loan agreement, indenture, mortgage, deed of trust or lease, or any other
contract or instrument binding on or affecting the Borrower or any Subsidiary or any of
their respective properties, the conflict, breach or default of which could reasonably be
expected to have a Material Adverse Effect, or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of the Borrower, other
than Liens permitted by the Credit Agreement.
(b) No Governmental Action is required for the due execution, delivery or performance
by the Borrower of this Amendment.
(c) Assuming due execution and delivery by the Majority Banks and the Administrative
Agent, this Amendment constitutes legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting creditors’ rights generally or by general principles of equity
(regardless of whether such enforceability is considered in any proceeding in law or in
equity).
(d) The execution, delivery and performance of this Amendment do not adversely affect
the enforceability of any Lien of the Security Documents.
(e) The quarterly and annual financial statements most recently delivered to the Banks
pursuant to Sections 5.01(c) and (d) of the Credit Agreement fairly present the Consolidated
financial condition of the Borrower and its Subsidiaries as of the respective dates thereof
and the Consolidated results of the operations of the Borrower and its Subsidiaries for the
respective fiscal periods ended on such dates, all in accordance with GAAP applied on a
consistent basis (subject to normal year-end audit adjustments and the absence of footnotes
in the case of the quarterly financial statements). Since
December 31, 2004, no Material
Adverse Effect has occurred. The Borrower and its Subsidiaries have no material contingent
liabilities except as disclosed in such financial statements or the notes thereto.
(f) There is no pending or, to the knowledge of the Borrower, threatened action or
proceeding affecting the Borrower or any Subsidiary before any Governmental Person, referee
or arbitrator that could reasonably be expected to have a Material Adverse Effect.
(g) No event has occurred and is continuing, or would result from the effectiveness of
this Amendment, which constitutes a Default.
Section 5. Reference to and Effect on the Credit Agreement.
(a) On and after the effective date of this Amendment, each reference in the Credit
Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall
mean and be a reference to the Credit Agreement, and each reference in the other Credit
Documents to “the Credit Agreement,” “thereunder,” “thereof,” “therein” or words of like
import referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as amended by this Amendment.
(b) Except as specifically amended above, the Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby ratified and confirmed.
Without limiting the generality of the foregoing, the Security Documents and all of the
Collateral described therein do and shall continue to secure the payment of all obligations
stated to be secured thereby under the Credit Documents.
(c) Except as expressly set forth herein, the execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or remedy of the
Administrative Agent or any Bank under any of the Credit Documents or constitute a waiver of
any provision of any of the Credit Documents.
Section 6. Execution in Counterparts. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each which when so executed and
delivered shall be deemed to be an original and all of which when taken together shall constitute
but one and the same instrument. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of an originally executed counterpart of
this Amendment.
Section 7. Governing Law; Binding Effect. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Texas, and shall be binding
upon the Borrower, the Administrative Agent, each Bank and their respective successors and assigns.
Section 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 and the other instruments and documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent with respect
thereto and with respect to advising the Administrative Agent as to its rights and responsibilities
hereunder and thereunder.
Executed as of the 24th day of February, 2006.
| CROSSTEX ENERGY, L.P. | ||||||||
| By: | Crosstex Energy GP, L.P., | |||||||
| General Partner | ||||||||
| By: | Crosstex Energy GP, LLC, | |||||||
| General Partner | ||||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||||
| Vice President — Finance | ||||||||
| BANK OF AMERICA, N.A., | ||||||||
| as Administrative Agent and Collateral Agent | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||||
| Xxxxxxx X. Xxxxxxx | ||||||||
| Assistant Vice President | ||||||||
| BANK OF AMERICA, N.A., | ||||||||
| as a Bank and an Issuing Bank | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
| Xxxxxxx X. Xxxxxx | ||||||||
| Vice President | ||||||||
| UNION BANK OF CALIFORNIA, N.A. | ||||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||||
| Name: | Xxxxxx Xxxxxxx | |||||||
| Title: | Vice President | |||||||
| SUNTRUST BANK | ||||||||
| By: | /s/ Xxxxx Xxxxx | |||||||
| Name: | Xxxxx Xxxxx | |||||||
| Title: | Vice President | |||||||
| XXXXXX XXXXXXX FINANCING, INC., | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| BAYERISCHE HYPO-UND VEREINSBANK | ||||||
| AG, NEW YORK BRANCH | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | Director | |||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | Director | |||||
| BNP PARIBAS | ||||||
| By: | /s/ Matthieu Milandri | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| By: | /s/ Xxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | Director | |||||
| CITIBANK, N.A. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SCOTIABANC INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| WESTLB AG, NEW YORK BRANCH | ||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||
| Name: | ||||||
| Title: | Executive Director | |||||
| By: | /s/ Xxxxx XxXxxxxxx | |||||
| Name: | ||||||
| Title: | Managing Director | |||||
| ROYAL BANK OF CANADA | ||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||
| Name: | ||||||
| Title: | Authorized Signatory | |||||
| U.S. BANK NATIONAL ASSOCIATION | ||||||
| By: | /s/ Xxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| THE BANK OF TOKYO-MISTUBISHI UFJ LTD., | ||||||
| New York Branch | ||||||
| (successor by merger to UFJ Bank Limited) | ||||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||||
| Name: | ||||||
| Title: | Senior Vice President & Group Head | |||||
| FORTIS CAPITAL CORP. | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Managing Director | |||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | ||||||
| Title: | Senior Vice President | |||||
| GUARANTY BANK | ||||||
| By: | /s/ Xxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | Senior Vice President | |||||
| JPMORGAN CHASE BANK N.A. | ||||||
| By: | /s/ Xxxx Xxxxxxxxx | |||||
| Name: | ||||||
| Title: | Associate | |||||
| NATEXIS BANQUES POPULAIRES | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| By: | /s/ Xxxxx X. Xxxxxxx, III | |||||
| Name: | ||||||
| Title: | Group Manager | |||||
| XXXXX FARGO BANK, N.A. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| KEY BANK, N.A. | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| COMERICA BANK | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| SUMITOMO MITSUI BANKING | ||||||
| CORPORATION | ||||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Name: | ||||||
| Title: | General Manager | |||||
| SOCIÉTÉ GÉNÉRALE | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | Director | |||||
| STERLING BANK | ||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Name: | ||||||
| Title: | Senior Vice President | |||||
| COMPASS BANK | ||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Name: | ||||||
| Title: | Senior Vice President | |||||
| BANK OF SCOTLAND | ||||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Name: | ||||||
| Title: | Assistant Vice President | |||||
| MIZUHO CORPORATE BANK, LTD. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| NATIONAL CITY CORPORATION | ||||||
| By: | /s/ Xxxxxxx Xxxxx
|
|||||
| Name: | Xxxxxxx Xxxxx | |||||
| Title: | Vice President | |||||
Each of the undersigned, as guarantors under the Second Amended and Restated Subsidiary Guaranty
dated as of November 1, 2005 (the “Guaranty”), hereby (a) consents to this Amendment, and
(b) confirms and agrees that the Guaranty is and shall continue to be in full force and effect and
is ratified and confirmed in all respects, except that, on and after the effective date of the
Amendment each reference in the Guaranty to “the Credit Agreement,” “thereunder,” “thereof,”
“therein” or any other expression of like import referring to the Credit Agreement shall mean and
be a reference to the Credit Agreement as modified by this Amendment.
| CROSSTEX ENERGY SERVICES, L.P. | ||||||
| By: Crosstex Operating GP, LLC, its general | ||||||
| partner | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Vice President — Finance | ||||||
| CROSSTEX OPERATING GP, LLC | ||||||
| CROSSTEX ENERGY SERVICES GP, LLC | ||||||
| CROSSTEX LIG, LLC | ||||||
| CROSSTEX TUSCALOOSA, LLC | ||||||
| CROSSTEX LIG LIQUIDS, LLC | ||||||
| CROSSTEX PIPELINE, LLC | ||||||
| CROSSTEX PROCESSING SERVICES, LLC | ||||||
| CROSSTEX PELICAN, LLC | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx
|
|||||
| Xxxxx X. Xxxxxxx | ||||||
| Vice President — Finance | ||||||
| CROSSTEX ACQUISITION MANAGEMENT, L.P. | ||||||
| CROSSTEX MISSISSIPPI PIPELINE, L.P. | ||||||
| CROSSTEX SEMINOLE GAS, L.P. | ||||||
| CROSSTEX ALABAMA GATHERING SYSTEM, L.P. | ||||||
| CROSSTEX MISSISSIPPI INDUSTRIAL GAS SALES, L.P. | ||||||
| CROSSTEX GULF COAST TRANSMISSION LTD. | ||||||
| CROSSTEX GULF COAST MARKETING LTD. | ||||||
| CROSSTEX CCNG GATHERING LTD. | ||||||
| CROSSTEX CCNG PROCESSING LTD. | ||||||
| CROSSTEX CCNG TRANSMISSION LTD. | ||||||
| CROSSTEX TREATING SERVICES, L.P. | ||||||
| CROSSTEX NORTH TEXAS PIPELINE, L.P. | ||||||
| CROSSTEX NORTH TEXAS GATHERING, L.P. | ||||||
| CROSSTEX NGL MARKETING, L.P. | ||||||
| CROSSTEX NGL PIPELINE, L.P. | ||||||
| By: Crosstex Energy Services GP, LLC, general | ||||||
| partner of each above limited partnership | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Vice President — Finance | ||||||
| CROSSTEX PIPELINE PARTNERS, LTD. | ||||||
| By: Crosstex Pipeline, LLC, its general partner | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Vice President — Finance | ||||||
| SABINE PASS PLANT FACILITY JOINT | ||||||
| VENTURE | ||||||
| By: Crosstex Processing Services, LLC, as general partner, and |
||||||
| By: Crosstex Pelican, LLC, as general partner | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Vice President — Finance | ||||||
