FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO CREDIT AGREEMENT
This
First Amendment to Credit Agreement (this “First
Amendment”) is entered into as of the 10th
day of October, 2008 (the “Effective
Date”), by and among QUICKSILVER
GAS SERVICES LP, a Delaware limited partnership (“Borrower”),
BANK
OF AMERICA, N.A., as Administrative Agent (in such capacity, “Administrative
Agent”) and the Lenders party hereto (“Lenders”).
W
I T N E S S E T H:
WHEREAS, Borrower,
Administrative Agent and Lenders are parties to that certain Credit
Agreement dated as of August
10, 2007 (the “Credit
Agreement”) (unless otherwise defined herein, all terms used herein with
their initial letter capitalized shall have the meaning given such terms in the
Credit
Agreement);
and
WHEREAS, pursuant to the
Credit
Agreement,
Lenders have made revolving credit loans to Borrower and provided certain other
credit accommodations to Borrower; and
WHEREAS, Borrower has
requested the Credit
Agreement be amended to (i)
increase the Total Commitments from $150,000,000 to $235,000,000 and (ii) amend
certain other terms of the Credit
Agreement in certain respects
as provided in this First Amendment; and
WHEREAS, Borrower has
requested that Xxxxx Fargo Bank, N.A. (the foregoing financial institution is
herein referred to as “New
Lender”) become a new Lender under the Credit
Agreement with a Commitment as
shown on Schedule 2.01 to the Credit
Agreement (as amended hereby);
and
WHEREAS,
subject to and upon the terms and conditions set forth herein, Lenders have
agreed to Borrower’s requests.
NOW
THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed, Borrower,
Administrative Agent and Lenders hereby agree as follows:
Section 1. Amendments. In
reliance on the representations, warranties, covenants and agreements contained
in this First Amendment, and subject to the satisfaction of the conditions
precedent set forth in Section
2 hereof, the
Credit
Agreement shall be amended
effective as of the Effective Date in the manner provided in this Section
1.
1.1 Additional
Definitions. Section 1.01 of the Credit
Agreement is hereby amended to
add thereto in alphabetical order the definitions of “First
Amendment” and “First
Amendment Effective Date” which shall read in full as
follows:
“First
Amendment” means that certain First Amendment to Credit
Agreement dated as of the
First Amendment Effective Date among Borrower, Administrative Agent and Lenders
party thereto.
1
“First
Amendment Effective Date” means October 10, 2008.
1.2 Amendments
to Definitions. The definitions of “Applicable
Rate”, “Commitment”,
“Loan
Documents” and “Total
Commitment” contained in Section 1.01 of the Credit
Agreement are hereby amended
in their entirety to read in full as follows:
“Applicable
Rate” means, for any day, with respect to any ABR Loan, any Eurodollar
Loan or any Specified Rate Swingline Loan, or with respect to the commitment
fees payable hereunder, as the case may be, the applicable rate per annum set
forth in the appropriate intersection in the table below, based on the
Consolidated Leverage Ratio as of the most recent Quarterly Date with respect to
which the Administrative Agent shall have received the Current Information
required to be delivered to the Administrative Agent pursuant to Section
6.01(a) or Section
6.01(b) and the calculation certificate required to be delivered pursuant
to Section
6.01(c) in respect of such Current Information:
|
Consolidated
Leverage Ratio
|
ABR
Loan Percentage
|
Eurodollar
Loan Percentage
|
Specified
Rate Swingline Loan Percentage
|
Commitment
Fee Percentage
|
|
Category
1
Greater
than 5.00 to 1.00
|
1.250%
|
2.500%
|
2.500%
|
0.500%
|
|
Category
2
Greater
than 4.50 to 1.00
but
less than or equal to 5.00 to 1.00
|
1.000%
|
2.250%
|
2.250%
|
0.500%
|
|
Category
3
Greater
than 4.00 to 1.00
but
less than or equal to 4.50 to 1.00
|
0.750%
|
2.000%
|
2.000%
|
0.375%
|
|
Category
4
Greater
than 3.50 to 1.00
but
less than or equal to 4.00 to 1.00
|
0.500%
|
1.750%
|
1.750%
|
0.375%
|
|
Category
5
Greater
than 3.00 to 1.00
but
less than or equal to 3.50 to 1.00
|
0.250%
|
1.500%
|
1.500%
|
0.300%
|
|
Category
6
Less
than or equal to 3.00 to 1.00
|
0.000%
|
1.250%
|
1.250%
|
0.250%
|
Each
change in the Applicable Rate based on a change in the Current Information shall
become effective on the date on which the Current Information is delivered to
the Lenders pursuant to Section
6.01 (but in any event not later than the 60th day after the end of each
of the first three Fiscal Quarters of each Fiscal Year or the 120th day after
the end of each Fiscal Year, as the case may be) and shall remain in effect
until the next change to be effected pursuant to this paragraph. If
any Current Information is not
2
delivered
within the time periods specified in Section
6.01, then, commencing on the day following the applicable due date for
such Current Information as specified in Section
6.01 until such Current Information is delivered, the Consolidated
Leverage Ratio as at the end of the Fiscal Quarter that would have been covered
thereby shall for the purposes of this definition be deemed to be in Category 1
(Greater than 5.00 to 1.00). Notwithstanding any other provision to
the contrary, for the period from the First Amendment Effective Date until the
date on which the Current Information for the Fiscal Quarter ending March 31,
2009 is delivered to the Lenders, the Applicable Rate with respect to any ABR
Loan, any Eurodollar Loan or any Specified Rate Swingline Loan, and with respect
to any commitment fees payable hereunder, shall in no event be less than the
applicable rate per annum set forth in Category 4 of the above
table.
“Commitment”
means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline
Loans hereunder, and the commitment of the Swingline Lender to make Swingline
Loans, as such commitment may be (a) reduced from time to time pursuant to Section
2.08 or Section
2.10, (b) increased from time to time pursuant to Section
2.08, and (c) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section
10.04. The initial amount of each Lender’s Commitment is set
forth on Schedule
2.01, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. As of the First
Amendment Effective Date, the Total Commitment is $235,000,000.
“Loan
Documents” means this Agreement, the First Amendment, the Notes, the
Security Instruments, the Borrowing Requests, the Interest Election Requests,
the Issuer Documents, the Fee Letters, any Commitment Increase Certificate and
any Additional Lender Certificate, together with any other document, instrument
or agreement now or hereafter entered into in connection with the Loans, the
Letters of Credit, the Lender Indebtedness or the transactions contemplated by
this Agreement, as such documents, instruments or agreements may be amended,
modified or supplemented from time to time.
“Total
Commitment” means the aggregate of all Lenders’
Commitments. As of the First Amendment Effective Date, the Total
Commitment is $235,000,000.
3
1.3 Amendment to Increase in
Commitments Provision. Clause (d)(ii)(A) of
Section 2.08 of the Credit
Agreement shall be amended in
its entirety to read in full as follows:
(A) such
increase shall not be less than $5,000,000 unless the Administrative Agent
otherwise consents, such consent not to be unreasonably withheld, conditioned or
delayed, and no such increase shall be permitted if after giving effect thereto
(1) the aggregate amount of all such increases exceeds $115,000,000 more than
the Total Commitment on the First Amendment Effective Date after giving effect
to the First Amendment, or (2) the Total Commitment exceeds
$350,000,000.
1.4 Replacement
of Schedule 2.01. Schedule 2.01 to the Credit
Agreement shall be replaced in
its entirety with Schedule
2.01 to this First Amendment and Schedule
2.01 hereto shall be deemed to be attached as Schedule 2.01 to the
Credit
Agreement.
1.5 Joinder. New
Lender hereby joins in, becomes a party to, and agrees to comply with and be
bound by the terms and conditions of the Credit
Agreement as a Lender
thereunder and under each and every other Loan Document to which any Lender is
required to be bound by the Credit
Agreement, to
the same extent as if New Lender were an original signatory
thereto.
Section 2. Conditions
Precedent. The amendments contained in Section
1 hereof
are subject to the satisfaction of each of the following conditions
precedent:
2.1 Fees. Borrower
shall have paid to Administrative Agent any and all fees payable to
Administrative Agent or the New Lender pursuant to or in connection with this
First Amendment in consideration for the agreements set forth
herein.
2.2 No
Defaults. No Default or Event of Default shall have occurred
and be continuing as of the Effective Date.
2.3 Legal
Opinions. The Administrative Agent shall have received written
opinions (addressed to the Administrative Agent and the Lenders (as defined in
the Credit
Agreement, as
amended hereby) and dated the Effective Date) of (a) Xxxxx Day, counsel to the
Credit Parties, and (b) General Counsel of the General Partner, in each case in
form and substance reasonably satisfactory to the Administrative Agent, such
opinions covering such matters relating to the Credit Parties and the Loan
Documents as the Administrative Agent shall reasonably
request.
2.4 Organizational
Documents and Certificates. The Administrative Agent shall
have received such documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization, existence and good
standing in its jurisdiction of organization of each of the Credit Parties, the
authorization of the Financing Transactions and any other legal matters relating
to the Borrower, the other Credit Parties, the Credit
Agreement,
this First Amendment or the Financing Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its
counsel.
2.5 No
Material Adverse Effect. There shall not have occurred since
December 31, 2007 any events that, individually or in the aggregate, have had a
Material Adverse Effect.
4
2.6 Representations
and Warranties. The representations and warranties of the
Credit Parties set forth in the Credit
Agreement and the other Loan
Documents (other than the representations and warranties set forth in Section
3.05(b) of the Credit
Agreement,
which representations and warranties shall only be made as of the August 10,
2007 and also in accordance with the certificates of a Responsible Officer of
the General Partner delivered pursuant to Section 6.01(c) of the Credit
Agreement)
shall be true and correct in all material respects on and as of the Effective
Date (unless stated to relate solely to an earlier date, in which case such
representation and warranty shall have been true and correct in all material
respects on and as of such earlier date), except to the extent previously waived
in writing by the Lenders or the Required Lenders, as
applicable.
2.7 Break
Funding Payments. If, on the Effective Date, any Eurodollar
Borrowings are outstanding and if the Effective Date is not the last day of the
Interest Period(s) in respect of such Eurodollar Borrowings, the Borrower shall
have paid any compensation required under Section 2.16 of the Credit
Agreement.
2.8 Notes. Each
Lender that is a New Lender or whose Commitment is increasing hereunder that is
requesting a Note shall have received a duly completed and executed Note,
payable to the order of such Lender.
2.9 Other
Documentation. The Administrative Agent shall have received
such other customary instruments and documents as any of the Administrative
Agent, the Lenders or their counsel may reasonably request.
Section
3. Representations
and Warranties of Borrower. To induce Lenders and
Administrative Agent to enter into this First Amendment, Borrower hereby
represents and warrants as of the Effective Date to Lenders and Administrative
Agent as follows:
3.1 Reaffirm
Existing Representations and Warranties. After giving effect
to the amendments set forth in Section
1 hereof, the representations and warranties of the Credit Parties set
forth in the Credit
Agreement and the other Loan
Documents (other than the representations and warranties set forth in Section
3.05(b) of the Credit
Agreement,
which representations and warranties are made as of August 10, 2007 and also in
accordance with the certificates of a Responsible Officer of the General Partner
delivered pursuant to Section 6.01(c) of the Credit
Agreement)
are true and correct in all material respects on and as of the Effective Date
(unless stated to relate solely to an earlier date, in which case such
representation and warranty shall have been true and correct in all material
respects on and as of such earlier date), except to the extent previously waived
in writing by the Lenders or the Required Lenders, as
applicable.
3.2 Due
Authorization; No Conflict. The execution, delivery and
performance by Borrower of this First Amendment are within Borrower’s limited
partnership powers, have been duly authorized by all necessary action, require
no action by or in respect of, or filing with, any Governmental Authority (other
than (a) actions or filings pursuant to the Exchange Act and (b) actions or
filings that have been taken or made and are in full force and effect and
actions or filings which, if not taken or made, would not reasonably be expected
to have a Material Adverse Effect) and do not violate or constitute a default
under any applicable Governmental Rule or any Material Contract binding upon
Borrower or any other Credit Party (other than violations or
5
defaults
that would not reasonably be expected to have a Material Adverse Effect), or
result in the creation or imposition of any Lien on any Mortgaged Property or
other Collateral of Borrower or any other Credit Party except Permitted
Encumbrances.
3.3 Validity
and Enforceability. This First Amendment constitutes the valid
and binding obligation of Borrower enforceable in accordance with its terms,
except as (a) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditor’s
rights generally, and (b) equitable principles of general applicability (whether
enforcement is sought by proceedings at law or in equity).
3.4 No
Default or Event of Default. No Default or Event of Default
has occurred which is continuing.
3.5 No
Defense. Borrower acknowledges that Borrower has no defense to
(a) Borrower’s obligation to pay the Lender Indebtedness when due, or (b) the
validity, enforceability or binding effect against Borrower of the Credit
Agreement or any of the other
Loan Documents or any Liens intended to be created thereby.
Section
4. Representations
and Warranties of New Lender. New Lender (a) represents and
warrants that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this First Amendment, to consummate the
transactions contemplated hereby and to become a Lender under the Credit
Agreement,
(ii) from and after the Effective Date, it shall be bound by the provisions of
the Credit
Agreement as a Lender
thereunder, (iii) it has received a copy of the Credit
Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section 6.01 thereof, as applicable, and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this First Amendment and to become a Lender 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 (iv) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit
Agreement,
duly completed and executed by the New Lender; and (b) agrees that (i) 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 (ii) 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.
Section
5.
Miscellaneous.
5.1 Reaffirmation
of Loan Documents. Any and all of the terms and provisions of
the Credit
Agreement and the Loan
Documents shall, except as amended and modified hereby, remain in full force and
effect. The amendments contemplated hereby shall not limit or impair
any Liens securing the Lender Indebtedness, each of which are hereby ratified,
affirmed and extended to secure the Lender Indebtedness as they may be increased
pursuant hereto.
5.2 Parties
in Interest. All of the terms and provisions of this First
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
6
5.3 Legal
Expenses. Borrower hereby agrees to pay on demand all
reasonable and substantiated out-of-pocket fees and expenses of counsel to
Administrative Agent incurred by Administrative Agent in connection with the
preparation, negotiation and execution of this First Amendment and all related
documents.
5.4 Counterparts. This
First Amendment may be executed in counterparts, and all parties need not
execute the same counterpart. Facsimiles or other electronic
transmissions (e.g., pdf) shall be effective as originals.
5.5 Complete
Agreement. THIS FIRST AMENDMENT, THE CREDIT
AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE
PARTIES.
5.6 Headings. The
headings, captions and arrangements used in this First Amendment are, unless
specified otherwise, for convenience only and shall not be deemed to limit,
amplify or modify the terms of this First Amendment, nor affect the meaning
thereof.
5.7 No
Waivers. No failure or delay on the part of Administrative
Agent or Lenders to exercise any right or remedy under the Credit
Agreement,
any other Loan Documents or applicable law shall operate as a waiver thereof,
nor shall any single or partial exercise of any right or remedy preclude any
other or further exercise of any right or remedy, all of which are cumulative
and may be exercised without notice except to the extent notice is expressly
required (and has not been waived) under the Credit
Agreement,
the other Loan Documents and applicable law.
5.8 Effectiveness. This
First Amendment shall be effective automatically and without necessity of any
further action by Borrower, Administrative Agent or Lenders when counterparts
hereof have been executed by Borrower, the other Credit Parties party hereto,
Administrative Agent and Required Lenders (which shall include New Lender and
each Lender whose Commitment is increasing hereunder), and all conditions to the
effectiveness hereof set forth herein have been satisfied.
IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly
executed by their respective authorized officers on the date and year first
above written.
[Signature
Pages to Follow]
7
| BORROWER: | ||||
|
QUICKSILVER GAS
SERVICES LP,
a Delaware limited partnership
|
||||
|
|
By:
|
Quicksilver Gas Services GP LLC, a Delaware limited liability company, its General Partner | ||
| By: | /s/ XxxXx Xxxxxx | |||
|
XxxXx
Xxxxxx
Vice President - Treasurer
|
||||
Each of
the undersigned (i) consent and agree to this First Amendment, and (ii) agree
that the Loan Documents (as amended hereby) to which it is a party shall remain
in full force and effect and shall continue to be the legal, valid and binding
obligation of such Person, enforceable against it in accordance with its
terms.
|
QUICKSILVER GAS
SERVICES OPERATING LLC,
a Delaware limited liability
company
|
|||
|
|
By:
|
/s/ XxxXx Xxxxxx | |
| Name: | XxxXx Xxxxxx | ||
| Title: | Vice President - Treasurer | ||
|
QUICKSILVER GAS
SERVICES OPERATING GP LLC,
a Delaware limited liability
company
|
|||
|
|
By:
|
/s/ XxxXx Xxxxxx | |
| Name: | XxxXx Xxxxxx | ||
| Title: | Vice President - Treasurer | ||
|
COWTOWN GAS
PROCESSING PARTNERS L.P.,
a Texas limited partnership
|
|||||
|
By:
|
Quicksilver Gas Services Operating GP LLC, a Delaware limited liability company, its General Partner | ||||
| By: | /s/ XxxXx Xxxxxx | ||||
| Name: | XxxXx Xxxxxx | ||||
| Title: | Vice President - Treasurer | ||||
|
COWTOWN PIPELINE
PARTNERS L.P.,
a Texas limited partnership
|
|||||
|
By:
|
Quicksilver Gas Services Operating GP LLC, a Delaware limited liability company, its General Partner | ||||
| By: | /s/ XxxXx Xxxxxx | ||||
| Name: | XxxXx Xxxxxx | ||||
| Title: | Vice President - Treasurer | ||||
| ADMINISTRATIVE AGENT: | ||||
|
BANK OF AMERICA,
N.A.,
as Administrative Agent and as a
Lender
|
||||
| By: | /s/ Xxxxxx X. XxXxxx | |||
| Name: | Xxxxxx X. XxXxxx | |||
| Title: | Senior Vice President | |||
| LENDERS: | ||||
|
BNP PARIBAS,
as a Lender and as Syndication
Agent
|
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | XXXXXXX X. XXXXXX | |||
| Title: | Managing Director | |||
|
JPMORGAN CHASE BANK,
N.A.,
as a Lender and as a Co-Documentation
Agent
|
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Vice President | |||
|
THE ROYAL BANK OF
SCOTLAND plc,
as a Lender and as a Co-Documentation
Agent
|
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
|
FORTIS CAPITAL
CORP.,
as a Lender and as a Co-Documentation
Agent
|
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
|
BMO CAPITAL MARKETS
FINANCING, INC.,
as a Lender
|
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
|
COMPASS BANK,
as a Lender
|
||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxx | |||
| Title: | Senior Vice President | |||
[Signature
Page to First Amendment to Credit Agreement]
Quicksilver
Gas Services LP
|
COMERICA BANK,
as a Lender
|
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Assistant Vice President | |||
[Signature
Page to First Amendment to Credit Agreement]
Quicksilver
Gas Services XX
|
XXXXX FARGO BANK,
N.A.,
as a Lender
|
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
[Signature
Page to First Amendment to Credit Agreement]
Quicksilver
Gas Services LP
SCHEDULE
2.01
COMMITMENTS
|
Lender
|
Commitment
|
|||
|
Bank
of America, N.A.
|
$ | 31,900,000 | ||
|
BNP
Paribas
|
$ | 31,900,000 | ||
|
JPMorgan
Chase Bank, N.A.
|
$ | 31,900,000 | ||
|
Fortis
Capital Corp.
|
$ | 31,900,000 | ||
|
Compass
Bank
|
$ | 28,500,000 | ||
|
Xxxxx
Fargo Bank, N.A.
|
$ | 24,400,000 | ||
|
The
Royal Bank of Scotland plc
|
$ | 19,500,000 | ||
|
BMO
Capital Markets Financing, Inc.
|
$ | 17,500,000 | ||
|
Comerica
Bank
|
$ | 17,500,000 | ||
|
Total
Commitment:
|
$ | 235,000,000 | ||
Schedule 2.01-01
