SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT
10.33
SECOND
AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT is made as
of
October 22, 2008 (the "Second
Amendment to Restated Credit Agreement,"
or this
"Amendment"),
among
VANGUARD
NATURAL GAS, LLC,
a
Kentucky limited liability company ("Borrower"),
each
lender from time to time party hereto (collectively, the "Lenders")
COMPASS
BANK,
in its
capacity as a Lender (the "New
Lender"),
and
CITIBANK,
N.A.,
a
national banking association, in its capacity as Administrative Agent
("Administrative
Agent").
RECITALS
A. Borrower,
the Lenders, and the Administrative Agent are parties to that certain First
Amended and Restated Credit Agreement dated as of February 14, 2008, and as
amended by a First Amendment to First Amended and Restated Credit Agreement
dated as of May 15, 2008 (collectively, the "Original
Credit Agreement").
B. Borrower
has requested certain amendments to the Original Credit Agreement including
the
increase of the Borrowing Base from $150,000,000 to $175,000,000 and the
addition of the New Lender as a lender pursuant thereto, all as hereinafter
provided.
NOW,
THEREFORE, in consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
1. Same
Terms.
All
terms used herein which are defined in the Original Credit Agreement shall
have
the same meanings when used herein, unless the context hereof otherwise requires
or provides. In addition, all references in the Loan Documents to the
"Agreement" shall
mean the Original Credit Agreement, as amended by this Amendment, as the same
shall hereafter be amended from time to time. In addition, the following terms
have the meanings set forth below:
"Effective
Date"
means
October 22, 2008.
"Modification
Papers"
means
this Amendment, Citibank Replacement Note, the BNP Paribas Replacement Note,
the
Nova Scotia Replacement Note, the Wachovia Bank Replacement Note, the Compass
Bank Note, the Guarantor Confirmation Letters, and all of the other documents
and agreements executed in connection with the transactions contemplated by
this
Amendment.
2. Conditions
Precedent.
The
transactions contemplated by this Amendment shall be deemed to be effective
as
of the Effective Date, when the following conditions have been complied with
to
the satisfaction of Administrative Agent, unless waived in writing by
Administrative Agent:
A. Borrowing
Base Increase Fee.
Administrative Agent, for the accounts of the Lenders in accordance with their
Applicable Percentages, shall have received payment of a Borrowing Base increase
fee in the amount of $62,500.
B. Second
Amendment to Restated Credit Agreement.
This
Second Amendment to Restated Credit Agreement shall be in full force and
effect.
SECOND
AMENDMENT TO RESTATED CREDIT AGREEMENT –
Page 1
EXHIBIT
10.33
C. Notes.
Borrower shall have executed and delivered the Citibank Replacement Note, the
BNP Paribas Replacement Note, the Nova Scotia Replacement Note, the Wachovia
Bank Replacement Note and the Compass Bank Note.
D. Guarantor
Confirmation Letters.
Each of
Ariana Energy, LLC, Trust Energy Company, LLC, and Nami Resources Company L.L.C.
shall have executed a letter in favor of Administrative Agent (each a
"Guarantor
Confirmation Letter")
confirming that its Guaranty remains in full force and effect.
E. Authorization
Certificate.
Borrower shall have delivered a certificate satisfactory in form and substance
to Administrative Agent authorizing the execution, delivery and performance
of
the Modification Papers to which it is a party.
F. Fees
and Expenses.
Administrative Agent shall have received payment of all out-of-pocket fees
and
expenses (including reasonable attorneys' fees and expenses) incurred by
Administrative Agent in connection with the preparation, negotiation and
execution of the Modification Papers.
G. Representations
and Warranties
All
representations and warranties contained herein or in the documents referred
to
herein or otherwise made in writing in connection herewith or therewith shall
be
true and correct with the same force and effect as though such representations
and warranties have been made on and as of this date.
3. Amendments
to Original Credit Agreement.
On the
Effective Date, the Original Credit Agreement shall be deemed to be amended
as
follows:
(a) The
Borrowing Base Utilization Grid set forth in the definition of "Applicable
Margin" in Section 1.01 of the Original Credit Agreement shall be replaced
with
the Borrowing Base Utilization Grid below:
|
Borrowing
Base Utilization Grid
|
|||||||||||||
|
Borrowing
Base Utilization Percentage
|
<33
|
%
|
>33%<66
|
%
|
>66%<85
|
%
|
>85
|
%
|
|||||
|
Eurodollar
Loans
|
1.50
|
%
|
1.75
|
%
|
2.00
|
%
|
2.125
|
%
|
|||||
|
ABR
Loans
|
.00
|
%
|
.25
|
%
|
.50
|
%
|
.75
|
%
|
|||||
|
Commitment
Fee Rate
|
.25
|
%
|
.30
|
%
|
.375
|
%
|
.375
|
%
|
|||||
|
Letter
of Credit Fee
|
1.00
|
%
|
1.25
|
%
|
1.50
|
%
|
1.75
|
%
|
|||||
(b) Section
1.01 of the Original Credit Agreement shall be amended by adding the following
definitions in appropriate alphabetical order:
"'Loan
Parties'
means,
collectively, the Borrower and each Person (other than the Administrative Agent,
the L/C Issuer or any Lender) executing a Loan Document."
(c) Annex
I
to the Original Credit Agreement shall be replaced with Annex I attached to
this
Amendment.
4. Increase
of Borrowing Base. As of the Effective Date, the Borrowing Base is
hereby increased from $150,000,000 to $175,000,000.
SECOND
AMENDMENT TO RESTATED CREDIT AGREEMENT –
Page 2
EXHIBIT
10.33
5. Adjustment
of Commitment Percentages of Lenders.
The
Borrowing Base has been increased to $175,000,000 per Section
4
of this
Amendment, and New Lender has become a Lender upon the execution of this
Amendment. Accordingly, as of the Effective Date:
(a) Citibank
will hold $55,250,000 (31.57142857%) of the $175,000,000 Borrowing
Base.
(b) BNP
Paribas will hold $55,250,000 (31.57142857%) of the $175,000,000 Borrowing
Base.
(c) The
Bank
of Nova Scotia will hold $22,375,000 (12.00000000%) of the $175,000,000
Borrowing Base.
(d) Compass
Bank will hold $22,375,000 (12.78571429%) of the $175,000,000 Borrowing
Base.
(e) Wachovia
Bank, National Association will hold $19,750,000 (11.28571429%) of the
$175,000,000 Borrowing Base.
(f) Borrower
shall issue to Citibank a new Note (the "Citibank
Replacement Note")
in the
original principal sum of $126,285,714.29 (31.57142857% of $400,000,000) to
replace the existing Note to Citibank in the amount of $147,333,200 dated
February 14, 2008.
(g) Borrower
shall issue to BNP Paribas a new Note (the "BNP
Paribas Replacement Note")
in the
original principal sum of $126,285,714.29 (31.57142857% of $400,000,000) to
replace the existing Note to Citibank in the amount of $147,333,200 dated
February 14, 2008.
(h) Borrower
shall issue to The Bank of Nova Scotia a new Note (the "Nova
Scotia Replacement Note")
in the
original principal sum of $51,142,857.14 (12.78571429% of $400,000,000) to
replace the existing Note to Citibank in the amount of $52,666,800 dated
February 14, 2008.
(i) Borrower
shall issue to Wachovia Bank, National Association a new Note (the "Wachovia
Bank Replacement Note")
in the
original principal sum of $45,142,857.14 (11.28571429% of $400,000,000) to
replace the existing Note to Citibank in the amount of $52,666,800 dated
February 14, 2008.
(j) Borrower
shall issue to Compass Bank a new Note (the "Compass
Bank Note")
in the
original principal sum of $51,142,857.14 (12.78571429% of
$400,000,000).
6. Concerning
the New Lender.
(a) New
Lender represents and warrants to the Administrative Agent as
follows:
(i) it
has
received a copy of the Original Credit Agreement, together with copies of the
most recent financial statements of the Borrower delivered pursuant
thereto;
(ii) it
has,
independently and without reliance upon any Lender or any related party of
the
Administrative Agent or any Lender (an "Agent-Related
Person")
and
based on such documents and information as it has deemed appropriate, made
its
own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated by the Credit Agreement, and
made
its own decision to enter into the Credit Agreement and to extend credit to
the
Borrower and the other Loan Parties under the Credit Agreement;
SECOND
AMENDMENT TO RESTATED CREDIT AGREEMENT–
Page 3
EXHIBIT
10.33
(iii) it
will,
independently and without reliance upon any Lender or any Agent-Related Person
and based on such documents and information as it shall deem appropriate at
the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under the Credit Agreement and the other Loan
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, and other condition
and creditworthiness of the Borrower and the other Loan Parties.
(b) New
Lender acknowledges as follows:
(i) no
Lender
or any Agent-Related Person has made any representation or warranty to it,
and
no act by the Administrative Agent hereafter taken, including any consent to
and
acceptance of any assignment or review of the affairs of any Loan Party or
any
Affiliate thereof, shall be deemed to constitute any representation or warranty
by any Lender or any Agent-Related Person to any Lender as to any matter,
including whether Agent-Related Persons have disclosed material information
in
their possession;
(ii) except
for notices, reports and other documents expressly required to be furnished
to
the Lenders by the Administrative Agent pursuant to the Credit Agreement, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person; and
(iii) on
the
Effective Date, subject to the satisfaction of the conditions to effectiveness
set forth in Section 2
of this
Amendment, it shall be deemed automatically to have become a party to the Credit
Agreement and have all rights and obligations of a Lender under the Credit
Agreement and the other Loan Documents as if it were an original Lender
signatory thereto.
(c) On
the
Effective Date, New Lender agrees to be bound by the terms and conditions set
forth in the Credit Agreement and the other Loan Documents applicable to the
Lenders as if it were an original Lender signatory thereto (and expressly makes
the appointment set forth in, and agrees to the obligations imposed under,
Article XI of the Credit Agreement).
7. Certain
Representations.
Borrower represents and warrants that, as of the Effective Date:
(a) Borrower and each Guarantor has full power and authority to execute the
Modification Papers to which it is a party and the Modification Papers executed
by Borrower and each Guarantor constitute the legal, valid and binding
obligation of Borrower and each such Guarantor enforceable in accordance with
their terms, except as enforceability may be limited by general principles
of
equity and applicable bankruptcy, insolvency, reorganization, moratorium, and
other similar laws affecting the enforcement of creditors' rights generally;
and
(b) no authorization, approval, consent or other action by, notice to, or
filing with, any governmental authority or other person is required for the
execution, delivery and performance by Borrower or each such Guarantor thereof.
In addition, Borrower represents that all representations and warranties
contained in the Original Credit Agreement are true and correct in all material
respects on and as of the Effective Date (except representations and warranties
that relate to a specific prior date are based upon the state of facts as they
exist as of such date).
SECOND
AMENDMENT TO RESTATED CREDIT AGREEMENT–
Page 4
EXHIBIT
10.33
8. No
Further Amendments.
Except
as previously amended in writing or as amended hereby, the Original Credit
Agreement shall remain unchanged and all provisions shall remain fully effective
among the parties.
9. Limitation
on Agreements.
The
modifications set forth herein are limited precisely as written and shall not
be
deemed (a) to be a consent under or a waiver of or an amendment to any
other term or condition in the Original Credit Agreement or any of the Loan
Documents, or (b) to prejudice any right or rights which Administrative
Agent and/or the Lenders now have or may have in the future under or in
connection with the Original Credit Agreement and the Loan Documents, each
as
amended hereby, or any of the other documents referred to herein or therein.
The
Modification Papers shall constitute Loan Documents for all purposes.
10. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which when
executed and delivered shall be deemed an original, but all of which constitute
one instrument. In making proof of this Amendment, it shall not be necessary
to
produce or account for more than one counterpart thereof signed by each of
the
parties hereto.
11. Incorporation
of Certain Provisions by Reference.
The
provisions of Section 12.09 of the Original Credit Agreement captioned
"Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Jury
Trial" are incorporated herein by reference for all purposes.
12. Entirety,
Etc.
This
instrument and all of the other Loan Documents embody the entire agreement
between the parties. THIS AMENDMENT AND ALL OF THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED
BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[This
space is left intentionally blank. Signature pages
follow.]
SECOND
AMENDMENT TO RESTATED CREDIT AGREEMENT–
Page 5
EXHIBIT
10.33
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment to be effective
as of the date and year first above written.
|
BORROWER:
|
VANGUARD
NATURAL GAS, LLC
|
|
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
|
|
Xxxxxxx
Xxxxxx
|
||
|
Executive
Vice President
|
||
|
and
Chief Financial Officer
|
||
S-1
EXHIBIT
10.33
|
ADMINISTRATIVE
AGENT:
|
CITIBANK,
N.A.
|
|
|
as
Administrative Agent
|
||
|
By:
|
/s/
Xxxx Xxxxxx
|
|
|
Xxxx
Xxxxxx
|
||
|
Vice
President
|
||
|
LENDERS:
|
CITIBANK,
N.A.
|
|
|
By:
|
/s/
Xxxx Xxxxxx
|
|
|
Xxxx
Xxxxxx
|
||
|
Vice
President
|
||
S-2
EXHIBIT
10.33
|
LENDERS:
|
BNP PARIBAS | |
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Title:
|
Managing
Director
|
|
|
By:
|
/s/
Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
S-3
EXHIBIT
10.33
|
LENDERS:
|
THE BANK OF NOVA SCOTIA | |
|
By:
|
/s/
Xxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
S-4
EXHIBIT
10.33
|
LENDERS:
|
COMPASS BANK | |
|
By:
|
/s/
Xxxxxxxx X. Xxxxx
|
|
|
Name:
|
Xxxxxxxx
X. Xxxxx
|
|
|
Title:
|
Senior
Vice President
|
|
S-5
EXHIBIT
10.33
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||
|
By:
|
/s/
Xxxxx Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Title:
|
Director
|
|
S-6
EXHIBIT
10.33
ANNEX
I
LIST
OF MAXIMUM CREDIT AMOUNTS
Aggregate
Maximum Credit Amounts
|
Name of Lender
|
Applicable Percentage
|
Maximum Credit Amount
|
|||||
|
BNP Paribas
|
31.57142857
|
%
|
$
|
126,285,714.29
|
|||
|
The
Bank of Nova Scotia
|
12.00000000
|
%
|
$
|
51,142,857.14
|
|||
|
Citibank,
N.A.
|
31.00000000
|
%
|
$
|
126,285,714.29
|
|||
|
Compass
Bank
|
12.00000000
|
%
|
$
|
51,142,857.14
|
|||
|
Wachovia
Bank, National Association
|
11.28571429
|
%
|
$
|
45,142,857.14
|
|||
|
TOTAL
|
100.00000000
|
%
|
$
|
400,000,000.00
|
|||
ANNEX
I – Solo Page
