EXHIBIT 10.10
Execution Copy
SECOND AMENDMENT
TO
CREDIT AGREEMENT
DATED AS OF
OCTOBER 24, 2001
AMONG
XXXXXX XXXXXX ENERGY PARTNERS, L.P.,
AS THE COMPANY,
THE LENDERS PARTY HERETO,
FIRST UNION NATIONAL BANK,
AS ADMINISTRATIVE AGENT,
THE CHASE MANHATTAN 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
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SECOND AMENDMENT
TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
dated as of October 24, 2001 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 the First Amendment to Credit Agreement, dated
as of January 31, 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. On the
date hereof, Bank of America, N.A., and Bank One, N.A., respectively, ceased to
be the Syndication Agent and the Document Agent under the Credit Agreement, and
Arab Banking Corporation, Banca Commerciale Italiana-Los Angeles Branch, Bank of
America, N.A., Banca di Roma, Bayerische Landesbank
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Girozentrale Cayman Island Branch, National Australian Bank Limited and Xxxxx
Fargo Bank of Texas, N.A. have ceased to be Lenders under the Credit Agreement.
By their execution of this Amendment, Credit Suisse First Boston, Xxxxxxx Xxxxx
Bank, USA, Royal Bank of Canada, and The Royal Bank of Scotland have agreed to
be Lenders under the Credit Agreement. The Company and the Lenders have agreed,
upon the terms and conditions specified herein, to further amend the Credit
Agreement to, inter alia, increase the aggregate commitments of the Lenders to
$750,000,000, all as hereinafter set forth:
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. Amendments to Section 1.01, Defined Terms,
of the Credit Agreement.
(a) Section 1.01 of the Credit Agreement is hereby amended to
add the following defined terms in their proper alphabetical order:
(i) " 'Co-Documentation Agents' means The Bank of
Nova Scotia, Commerzbank AG, New York and Grand Cayman
Branches, and Credit Lyonnais New York Branch.".
(ii) " 'Indemnified Matters' means, with respect to
any Indemnified Party, all losses, liabilities, claims and
damages (including reasonable legal fees).".
(iii) " 'Second Amendment' means the Second Amendment
to Credit Agreement dated as of October 24, 2001 among the
Company, the Lenders party
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thereto, the Administrative Agent, the Syndication Agent and
the Co-Documentation Agents.".
(b) The definition of the term "Commitment" contained in
Section 1.01 of the Credit Agreement is hereby amended in its entirety to read
as follows:
" 'Commitment' means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans hereunder, expressed
as an amount representing the maximum aggregate amount of such Lender's
Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.05. The initial amount of each Lender's
Commitment is set forth on Annex I to the Second Amendment or in the
Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable.".
(c) The definition of the term "Documentation Agent" contained
in Section 1.01 of the Credit Agreement is hereby amended in its entirety to
read as follows:
" 'Documentation Agent' means, collectively, the
Co-Documentation Agents.".
(d) The definition of the term "Original Termination Date"
contained in Section 1.01 of the Credit Agreement is hereby amended in its
entirety to read as follows:
" 'Original Termination Date' means October 23, 2002.".
(e) The definition of the term "Required Lenders" contained in
Section 1.01 of the Credit Agreement is hereby amended in its entirety to read
as follows:
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" 'Required Lenders' means, at any time Lenders having
Revolving Credit Exposures and unused Commitments representing 51% of
the sum of the total Revolving Credit Exposure and unused Commitments
at such time.".
(f) The definition of the term "Syndication Agent" contained
in Section 1.01 of the Credit Agreement is hereby amended in its entirety to
read as follows:
" 'Syndication Agent' means The Chase Manhattan Bank.".
SECTION 2. Amendments to Section 4.07, Financial Statements,
of the Credit Agreement. Section 4.07 of the Credit Agreement is hereby amended
in its entirety to read as follows:
"SECTION 4.07 Financial Statements. (a) The
consolidated and consolidating balance sheets of the Company and its
consolidated Subsidiaries as at December 31, 2000 and the related
consolidated and consolidating statements of income, partners',
shareholders' or members' equity and cash flow of the Company and its
consolidated Subsidiaries for the fiscal year ended on said date, with
(in the case of such consolidated financial statements) the opinion
thereon of PricewaterhouseCoopers LLP heretofore furnished to the
Lenders and the unaudited consolidated and consolidating balance sheets
of the Company and its consolidated Subsidiaries as at June 30, 2001
and their related consolidated and consolidating statements of income,
partners', shareholders' or members' equity and cash flow of the
Company and its consolidated Subsidiaries for the six-month period
ended on such date heretofore furnished to the Lenders, are complete
and correct in all material respects and fairly present the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at said dates and the results of their operations for
the fiscal year and the six-month period
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ended on said dates, all in accordance with GAAP, as applied on a
consistent basis (subject, in the case of the interim financial
statements, to the absence of footnotes and to normal year-end and
audit adjustments).
(b) Since December 31, 2000, there has been no
material adverse change in the business, assets, operations or
condition, financial or otherwise, of the Company and the Subsidiaries,
taken as a whole.".
SECTION 3. 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 4. 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 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 5. Reference to the Credit Agreement and Effect on
the Notes and Other Documents Executed Pursuant to the Credit Agreement.
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(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 6. 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 7. 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 AGENT, THE SYNDICATION AGENT, THE CO-DOCUMENTATION AGENTS, THE
LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 8. 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.
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SECTION 9. 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:
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Name:
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Title:
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LENDER:
FIRST UNION NATIONAL BANK, as the
Administrative Agent and as a Lender
By:
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Xxxxxxx X. Xxxxxxxx
Vice President
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LENDER:
ABN AMRO BANK, N.V.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LENDER:
XXXXXXX XXXXX BANK, USA
By:
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Name:
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Title:
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LENDER:
BANK OF MONTREAL
By:
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Name:
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Title:
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LENDER:
THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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LENDER:
THE BANK OF TOKYO - MITSUBISHI, LTD.
By:
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Name:
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Title:
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LENDER:
BANK ONE, NA
(Main Office - Chicago)
By:
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Name:
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Title:
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LENDER:
FLEET NATIONAL BANK
By:
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Name:
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Title:
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LENDER:
BARCLAYS BANK PLC
By:
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Name:
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Title:
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LENDER:
BNP PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LENDER:
THE CHASE MANHATTAN BANK
By:
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Name:
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Title:
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LENDER:
CITIBANK, N.A.
By:
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Name:
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Title:
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LENDER:
COMMERZBANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LENDER:
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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LENDER:
THE DAI-ICHI KANGYO BANK, LTD.
By:
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Name:
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Title:
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LENDER:
THE FUJI BANK, LIMITED
By:
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Name:
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Title:
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LENDER:
KBC BANK N.V.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LENDER:
THE NORTHERN TRUST COMPANY
By:
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Name:
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Title:
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LENDER:
SUNTRUST BANK, ATLANTA
By:
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Name:
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Title:
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LENDER:
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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LENDER:
CREDIT SUISSE FIRST BOSTON
By:
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Name:
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Title:
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By:
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Name:
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Title:
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LENDER:
THE ROYAL BANK OF SCOTLAND
By:
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Name:
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Title:
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LENDER:
ROYAL BANK OF CANADA
By:
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Name:
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Title:
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LENDER:
UBS AG, STAMFORD BRANCH
By:
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Name:
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Title:
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