EXHIBIT 10.3
EXECUTION VERSION
CONSENT AND AMENDMENT NO. 4
This CONSENT AND AMENDMENT NO. 4 (this "Agreement") dated as of July 8,
2005 is among Xxxxx Energy Partners - Operating, L.P., successor to HEP
Operating Company, L.P. (the "Borrower"), the Existing Guarantors (as defined
below), the Banks (as defined in the Credit Agreement (as defined below)), and
Union Bank of California, N.A., as administrative agent for such Banks (in such
capacity, the "Administrative Agent").
RECITALS
A. The Borrower, the Banks, and the Administrative Agent are parties to
the Credit Agreement dated as of July 7, 2004, as amended by the Consent and
Omnibus Amendment dated as of July 30, 2004, by the Consent, Waiver and
Amendment No. 2 dated as of February 28, 2005, and by the Waiver and Amendment
dated as of June 17, 2005 (as so amended, the "Credit Agreement").
B. In connection with such Credit Agreement, the undersigned Subsidiaries
of the Borrower (the "Existing Guarantors") executed and delivered a Guaranty
Agreement dated as of July 13, 2004 (as the same has been supplemented and as
the same may be further amended, modified or supplemented from time to time, the
"Guaranty") in favor of the Administrative Agent for the benefit of the
Beneficiaries (as defined therein).
C. The Borrower, Xxxxx Energy Partners, L.P., a Delaware limited
partnership (the "Limited Partner"), and HEP Pipeline, L.L.C., a Delaware
limited liability company ("HEP"), as buyer parties have entered into a Purchase
and Sale Agreement dated as of July 6, 2005 (the "Acquisition Agreement") with
Xxxxx Corporation, a Delaware corporation ("Parent"), Navajo Pipeline Co., L.P.,
a Delaware limited partnership ("Navajo Pipeline") and Navajo Refining Company,
L.P., a Delaware limited partnership ("Navajo Refining") as seller parties,
pursuant to which the Limited Partner and/or certain of its Subsidiaries will
acquire (the "Acquisition") certain pipelines and related assets (the "Acquired
Assets"), which Acquired Assets will, pursuant to a Contribution Agreement dated
as of July 8, 2005 (the "Contribution Agreement") among the Borrower, the
Limited Partner and HEP, as transferee parties, and Parent, Navajo Pipeline and
Navajo Refining, as transferor parties, be contributed to and owned by HEP after
the Acquisition.
D. Prior to the closing of, and to partially finance, the Acquisition, the
Limited Partner and Xxxxx Energy Finance Corp. ("Finance Corp") issued
$35,000,000 of unsecured 6.25% Senior Notes due 2015 which are guaranteed by all
wholly owned domestic subsidiaries of the Limited Partner and Finance Corp
E. The Borrower has requested that the Banks (i) expressly consent to the
Acquisition, and (ii) amend the Credit Agreement to (a) permit a junior security
interest in the Acquired Assets in favor of the Parent, and (b) make certain
other changes to the Credit Agreement.
F. Subject to the terms and conditions set forth herein, the Banks are
willing to make the consent and amendments set forth herein.
THEREFORE, the Borrower, the Existing Guarantors, the Required Banks, and
the Administrative Agent hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 TERMS DEFINED ABOVE. As used in this Agreement, each of the
terms defined in the opening paragraph and the Recitals above shall have the
meanings assigned to such terms therein.
SECTION 1.02 TERMS DEFINED IN THE CREDIT AGREEMENT. Each term defined in
the Credit Agreement and used herein without definition shall have the meaning
assigned to such term in the Credit Agreement, unless expressly provided to the
contrary.
SECTION 1.03 OTHER DEFINITIONAL PROVISIONS. The words "hereby", "herein",
"hereinafter", "hereof", "hereto" and "hereunder" when used in this Agreement
shall refer to this Agreement as a whole and not to any particular Article,
Section, subsection or provision of this Agreement. Section, subsection and
Exhibit references herein are to such Sections, subsections and Exhibits to this
Agreement unless otherwise specified. All titles or headings to Articles,
Sections, subsections or other divisions of this Agreement or the exhibits
hereto, if any, are only for the convenience of the parties and shall not be
construed to have any effect or meaning with respect to the other content of
such Articles, Sections, subsections, other divisions or exhibits, such other
content being controlling as the agreement among the parties hereto. Whenever
the context requires, reference herein made to the single number shall be
understood to include the plural; and likewise, the plural shall be understood
to include the singular. Words denoting sex shall be construed to include the
masculine, feminine and neuter, when such construction is appropriate; and
specific enumeration shall not exclude the general but shall be construed as
cumulative. Definitions of terms defined in the singular or plural shall be
equally applicable to the plural or singular, as the case may be, unless
otherwise indicated.
ARTICLE II.
CONSENT AND AMENDMENTS
SECTION 2.01 CONSENT. To the extent necessary and provided that (a) the
Acquisition is in compliance with the terms of the Credit Agreement and (b) the
conditions set forth in Article IV below are met, the Banks hereby consent to
the Acquisition and the transactions contemplated by the Acquisition Agreement
and the Contribution Agreement.
SECTION 2.02 AMENDMENTS TO CREDIT AGREEMENT. Effective as of the Effective
Date, the Credit Agreement shall hereby be amended as follows:
(a) The following definitions shall be inserted in alphabetical
order in Section 1.01 of the Credit Agreement:
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"Alon Contribution Agreement" means the Contribution Agreement dated
as of January 25, 2005 among T & R Assets, Inc., Fin-Tex Pipe Line
Company, and Alon USA Refining, Inc., as transferors, and Alon Pipeline
Assets, LLC, Alon Pipeline Logistics, LLC, Alon USA, Inc., Alon USA, LP,
the Limited Partner and certain of its Subsidiaries.
"Amendment No. 4" means Consent and Amendment No. 4 to this
Agreement dated as of July 8, 2005.
"HC Acquisition Closing Date" means the date upon which the
"Acquisition" as defined in Amendment No. 4 is consummated.
"HC Contribution Agreement" means the Contribution Agreement dated
as of July 8, 2005 among the Parent, Navajo Pipeline Co., L.P., a Delaware
limited partnership, and Navajo Refining Company, L.P., a Delaware limited
partnership, as transferor parties, and the Limited Partner, the Borrower
and HEP Pipeline, L.L.C., a Delaware limited liability company as
transferee parties.
"HC Mortgage" means the Mortgage and Deed of Trust (with Security
Agreement and Financing Statement) dated as of the HC Acquisition Closing
Date made by HEP Pipeline, L.L.C., a Delaware limited liability company,
to Xxxx X. Xxxxxxxxx, as Trustee for the benefit of the Parent.
"HC Pipelines Agreement" means the Pipelines Agreement dated as of
the HC Acquisition Closing Date among the Borrower, the Parent, the
Limited Partner, Navajo Refining Company, L.P., a Delaware limited
partnership, HEP Pipeline, L.L.C., a Delaware limited liability company,
HEP Logistics Holdings, Xxxxx Logistic Services, and the General Partner.
"HC Purchase and Sale Agreement" means the Purchase and Sale
Agreement dated as of July 6, 2005 among the Parent, Navajo Pipeline Co.,
a Delaware limited partnership, and Navajo Refining Company, L.P., a
Delaware limited partnership, as seller parties, and the Limited Partner,
the Borrower and HEP Pipeline, L.L.C., a Delaware limited liability
company, as buyer parties.
(b) The definition of "Contribution Agreement" in Section 1.01 of
the Credit Agreement is amended to be the defined term "Initial Contribution
Agreement", and such term shall be realphabetized. The rest of the definition
shall remain unchanged and all references to "Contribution Agreement" existing
in the Credit Agreement and the other Credit Documents prior to the date of this
Agreement shall be changed to refer instead to the "Initial Contribution
Agreement."
(c) The definition of "Interest Coverage Ratio" in Section 1.01 of
the Credit Agreement is hereby amended by adding the following sentence to the
end of such definition:
To the extent that the EBITDA included in the calculation of the Interest
Coverage Ratio for any period shall include pro forma amounts in connection with
the Acquisition of any Person during
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such period, the Interest Expense shall also include pro forma amounts with
respect to the Interest Expense of such Person.
(d) The definition of "Material Contracts" in Section 1.01 of the
Credit Agreement is amended and restated to read in its entirety as follows:
"Material Contracts" means, collectively, (a) the Borrower
Partnership Agreement, the Intercompany Pipelines and Terminals Agreement,
the Omnibus Agreement, the Initial Contribution Agreement, the Alon
Contribution Agreement, the Alon Mortgage, the Alon Pipelines and
Terminals Agreement, the HC Contribution Agreement, the HC Mortgage, the
HC Purchase and Sale Agreement, and the HC Pipelines Agreement, and (b)
any other material documents, agreements or instruments related to any of
the foregoing (i) to which the Borrower or any of its Subsidiaries is a
party, and (ii) which, if terminated or cancelled, could reasonably be
expected to have a Material Adverse Effect.
(e) The definition of "Pipeline Systems" in Section 1.01 of the
Credit Agreement is amended and restated to read in its entirety as follows:
"Pipeline Systems" means (a) the approximately 780 miles of Refined
Products pipelines located in New Mexico, Texas and Utah that are owned or
leased by Borrower or any of its Subsidiaries and that are used by
Borrower and its Subsidiaries in the Business, (b) the 249-mile Refined
Products pipeline owned by the Restricted Subsidiary which is used in the
Business to transport liquid petroleum gases from the western part of the
state of Texas to the border between the state of Texas and Mexico near El
Paso, (c) the Refined Product Pipelines (as defined and described in the
Alon Pipelines and Terminals Agreement) that are owned by HEP Pipeline and
that are used in the Business, (d) the Intermediate Product Pipelines (as
defined and described in the HC Pipelines Agreement) that are owned by HEP
Pipeline, L.L.C., a Delaware limited liability company, and that are used
in the Business, and (e) any other pipelines owned or leased by the
Borrower or any Subsidiary of the Borrower that are used in the Business.
(f) The definition of "Tangible Net Worth" in Section 1.01 of the
Credit Agreement is hereby deleted.
(g) The following clause (k) is added to the end of Section 6.01 of
the Credit Agreement:
(k) In favor of the Parent (or any assignee or successor thereto) securing
certain obligations under the HC Pipelines Agreement, pursuant to the HC
Mortgage, so long as such Liens are subordinated to the Liens on the same assets
securing the Obligations on terms not less advantageous to the Administrative
Agent and the Banks than those contained in the Subordination, Non-Disturbance
and Attornment Agreement executed by the Administrative Agent and the Parent as
of the date of the consummation of the Acquisition (as defined in Amendment No.
4).
(h) Section 6.12 of the Credit Agreement is amended and restated to
read in its entirety as follows:
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Section 6.12. Reserved. Reserved.
(i) Section 7.01(d)(iv) of the Credit Agreement is amended and
restated to read in its entirety as follows:
(iv) (A) Any default or event of default shall have occurred under
any of the Material Contracts which has not been cured within any
applicable grace period and which default or event of default could
reasonably be expected to have a Material Adverse Effect, (B) any of the
Material Contracts (other than the Alon Mortgage or the HC Mortgage) shall
have terminated, or (C) any Person other than the Limited Partner or any
of its Subsidiaries takes (or notifies the Limited Partner or any of its
Subsidiaries that it intends to take) remedial action under the Alon
Mortgage, the Alon Pipelines and Terminals Agreement, the HC Mortgage or
the HC Pipelines Agreement (or any successor or replacement agreement to
the foregoing) that constitutes or could reasonably be expected to take
the form of the purchase, occupation, or operation of any of the
applicable Pipeline Systems or Terminals by a Person other than the
Borrower or its wholly owned Subsidiaries.
(j) Exhibit D to the Credit Agreement is deleted and replaced with
Exhibit D attached hereto.
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01 BORROWER REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants that: (a) the representations and warranties contained
in the Credit Agreement and the representations and warranties contained in the
other Credit Documents are true and correct in all material respects on and as
of the Effective Date as if made on as and as of such date, except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date; (b) no
Default has occurred which is continuing; (c) the execution, delivery and
performance of this Agreement are within the partnership power and authority of
the Borrower and have been duly authorized by appropriate partnership action and
proceedings; (d) this Agreement constitutes the legal, valid, and binding
obligation of the Borrower enforceable in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the rights of creditors generally and general principles
of equity; (e) there are no governmental or other third party consents, licenses
and approvals required to be obtained by the Borrower in connection with the
execution, delivery, performance of this Agreement by the Borrower or the
validity and enforceability of this Agreement against the Borrower; and (f) the
Liens under the Security Documents are valid and subsisting and secure
Borrower's obligations under the Credit Documents.
SECTION 3.02 EXISTING GUARANTORS' REPRESENTATIONS AND WARRANTIES. Each
Existing Guarantor represents and warrants that: (a) the representations and
warranties of such Guarantor contained in the Guaranty and the representations
and warranties contained in the other Credit Documents to which such Existing
Guarantor is a party are true and correct in all material respects on and as of
the Effective Date as if made on as and as of such date, except to the extent
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that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct as of such earlier date; (b) no
Default has occurred which is continuing; (c) the execution, delivery and
performance of this Agreement are within the corporate or other organizational
power and authority of such Existing Guarantor and have been duly authorized by
appropriate action and proceedings; (d) this Agreement constitutes the legal,
valid, and binding obligation of such Existing Guarantor enforceable in
accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the rights of
creditors generally and general principles of equity; (e) there are no
governmental or other third party consents, licenses and approvals required to
be obtained by such Existing Guarantor in connection with the execution,
delivery or performance of this Agreement by such Existing Guarantor or the
validity and enforceability of this Agreement against such Existing Guarantor;
(f) it has no defenses to the enforcement of its Guaranty; and (g) the Liens
under the Security Documents to which such Existing Guarantor is a party are
valid and subsisting and secure such Existing Guarantor's obligations under the
Credit Documents.
SECTION 3.03 COVENANTS. The Borrower at its expense will, and will cause
each Existing Guarantor to, promptly execute and deliver to the Administrative
Agent upon reasonable request all such documents, agreements and instruments to
state more fully the security obligations set out in any of the Security
Documents, or to perfect, protect or preserve any Liens created pursuant to any
of the Security Documents, or to make any recordings, to file any notices or
obtain any consents, all as may be necessary or appropriate to grant or perfect
a first lien in each Existing Guarantor's assets. The Borrower hereby authorizes
the Administrative Agent to file any amendments to financing statements without
the signature of the Borrower to the extent permitted by applicable law in order
to perfect or maintain the perfection of any security interest granted under any
of the Credit Documents. Without limiting the foregoing:
(a) promptly after the closing of the Acquisition but in any event
not more than five days after the Effective Date (or, with respect to any
Acquired Assets not being acquired and conveyed to HEP on the Effective Date,
within five days after such acquisition by, and conveyance to, HEP of the
applicable Acquired Assets), the Borrower will at its expense deliver or cause
to be delivered to the Administrative Agent (i) Mortgages duly executed and
delivered by HEP in favor of the Administrative Agent for the benefit of the
Secured Parties (as defined therein) covering all real property assets included
in the applicable Acquired Assets, including, without limitation, those certain
Acquired Assets consisting of real property located in Eddy and Lea Counties,
New Mexico, (ii) a legal opinion of counsel to HEP licensed in New Mexico (which
counsel shall be acceptable to the Administrative Agent) with respect to the
Mortgages described in the preceding clause (i) in form and substance
satisfactory to the Administrative Agent and the Required Banks, and including,
without limitation, opinions regarding the enforceability of such Mortgages and
the validity and perfection of the Liens created thereby, and (iii) complete and
correct copies of any amendments to the Acquisition Agreement or the
Contribution Agreement not previously delivered to the Administrative Agent;
provided that, if HEP shall not have, within 90 days of the date of this
Agreement, (A) acquired substantially all of the Acquired Assets, (B) delivered
the Mortgages, opinions and other documents required by this Section 3.03(a),
and (C) caused the Administrative Agent to have an Acceptable Security Interest
in such Acquired Assets for the benefit of itself and the Banks (it being
understood, however, that if the legal opinions referred to above contain no
requirement or qualification regarding the need to obtain consents in order to
create or perfect the Liens granted under such
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Mortgages, then HEP shall not be required to obtain such consents in order to
comply with this clause (C)), then an Event of Default shall be deemed to have
occurred under the Credit Agreement.
(b) promptly after the closing of the Acquisition, the Borrower will
at its expense deliver or cause to be delivered to the Administrative Agent
complete and correct copies of any material bills of sale, material assignments,
and other material documents or agreements executed in connection with the
Acquisition and not previously delivered to the Administrative Agent.
ARTICLE IV.
CONDITIONS
The consent provided herein shall become effective and enforceable against
the parties hereto, and the Credit Agreement shall be amended as provided
herein, upon the date all of the following conditions precedent have been met
(the "Effective Date"):
SECTION 4.01 DOCUMENTS. The Administrative Agent shall have received each
of the following:
(a) this Agreement duly and validly executed and delivered by duly
authorized officers of the Borrower, the Existing Guarantors, the Administrative
Agent, and the Required Banks; and
(b) a fully executed copy, certified by the Limited Partner, of the
Contribution Agreement and the Acquisition Agreement, together with all of their
respective exhibits, schedules, and amendments thereto.
SECTION 4.02 NO DEFAULT. No Default shall have occurred which is
continuing as of the Effective Date.
SECTION 4.03 REPRESENTATIONS. The representations and warranties in this
Agreement shall be true and correct in all material respects as of the Effective
Date.
SECTION 4.04 FEES. The Borrower shall have paid all reasonable fees and
expenses of the Administrative Agent's outside legal counsel pursuant to all
invoices presented to the Borrower for payment not less than one Business Day
prior to the Effective Date. Additionally, the Borrower shall pay to the
Administrative Agent for the benefit of the Banks approving this Agreement in an
aggregate amount equal to .05% on each Bank's respective Commitment, such fee to
be due and payable on the date this Agreement is executed by the Administrative
Agent and the Required Banks.
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ARTICLE V.
MISCELLANEOUS
SECTION 5.01 EFFECT ON CREDIT DOCUMENTS; ACKNOWLEDGMENTS.
(a) The Borrower acknowledges that on the date hereof all
Obligations are payable without defense, offset, counterclaim or recoupment.
(b) The Administrative Agent, the Issuing Banks, and the Banks
hereby expressly reserve all of their rights, remedies, and claims under the
Credit Documents. Nothing in this Agreement shall constitute a waiver or
relinquishment of (i) any Default or Event of Default under any of the Credit
Documents, (ii) any of the agreements, terms or conditions contained in any of
the Credit Documents, (iii) any rights or remedies of the Administrative Agent,
the Issuing Bank or any Bank with respect to the Credit Documents, or (iv) the
rights of the Administrative Agent, any Issuing Bank or any Bank to collect the
full amounts owing to them under the Credit Documents.
(c) Each of the Borrower, the Existing Guarantors, Administrative
Agent, Issuing Banks, and Banks does hereby adopt, ratify, and confirm the
Credit Agreement and each other Credit Document, as amended hereby, and
acknowledges and agrees that the Credit Agreement and each other Credit
Document, as amended hereby, is and remains in full force and effect, and the
Borrower and the Existing Guarantors acknowledge and agree that their respective
liabilities under the Credit Agreement and the other Credit Documents are not
impaired in any respect by this Agreement.
(d) From and after the Effective Date, all references to the Credit
Agreement and the Credit Documents shall mean such Credit Agreement and such
Credit Documents as amended by this Agreement.
(e) This Agreement is a Credit Document for the purposes of the
provisions of the other Credit Documents. Without limiting the foregoing, any
breach of representations, warranties, and covenants under this Agreement shall
be a Default or Event of Default, as applicable, under the Credit Agreement.
SECTION 5.02 REAFFIRMATION OF THE GUARANTY. Each Existing Guarantor hereby
ratifies, confirms, acknowledges and agrees that its obligations under the
Guaranty are in full force and effect and that such Existing Guarantor continues
to unconditionally and irrevocably guarantee the full and punctual payment, when
due, whether at stated maturity or earlier by acceleration or otherwise, all of
the Guaranteed Obligations (as defined in the Guaranty), as such Guaranteed
Obligations may have been amended by this Agreement, and its execution and
delivery of this Agreement does not indicate or establish an approval or consent
requirement by such Existing Guarantor under the Guaranty in connection with the
execution and delivery of amendments to the Credit Agreement, the Notes or any
of the other Credit Documents (other than the Guaranty or any other Credit
Document to which such Existing Guarantor is a party).
SECTION 5.03 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original and all of which, taken
together, constitute a
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single instrument. This Agreement may be executed by facsimile signature and all
such signatures shall be effective as originals.
SECTION 5.04 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns permitted pursuant to the Credit Agreement.
SECTION 5.05 INVALIDITY. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement.
SECTION 5.06 GOVERNING LAW. This Agreement shall be deemed to be a
contract made under and shall be governed by and construed in accordance with
the laws of the State of Texas.
SECTION 5.07 ENTIRE AGREEMENT. THIS AGREEMENT, THE CREDIT AGREEMENT AS
AMENDED BY THIS AGREEMENT, THE NOTES, AND THE OTHER CREDIT DOCUMENTS CONSTITUTE
THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[SIGNATURES BEGIN ON NEXT PAGE]
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EXECUTED effective as of the date first above written.
BORROWER:
XXXXX ENERGY PARTNERS - OPERATING, L.P., a Delaware
limited partnership
By: HEP Logistics GP, L.L.C., a Delaware
limited liability company, its General Partner
By: Xxxxx Energy Partners, L.P., a Delaware
limited partnership, its Managing Member
By: HEP Logistics Holdings, L.P., a
Delaware limited partnership, its
General Partner
By: Xxxxx Logistic Services,
L.L.C., a Delaware limited
liability company, its General
Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and Chief
Executive Officer
Signature page to Consent, Waiver and Amendment No. 4
EXISTING GUARANTORS:
HEP PIPELINE GP, L.L.C., a Delaware
limited liability company
HEP REFINING GP, L.L.C., a Delaware
limited liability company
HEP MOUNTAIN HOME, L.L.C., a Delaware
limited liability company
HEP PIPELINE, L.L.C., a Delaware
limited liability company
HEP REFINING, L.L.C., a Delaware
limited liability company
HEP XXXXX CROSS, L.L.C., a Delaware
limited liability company
Each by: Xxxxx Energy Partners - Operating, L.P., a
Delaware limited partnership and its Sole
Member
By: HEP Logistics GP, L.L.C., a Delaware
limited liability company, its General Partner
By: Xxxxx Energy Partners, L.P., a Delaware
limited partnership, its Managing Member
By: HEP Logistics Holdings, L.P., a
Delaware limited partnership, its
General Partner
By: Xxxxx Logistic Services,
L.L.C., a Delaware limited
liability company, its General
Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and
Chief Financial Officer
XXXXX ENERGY FINANCE CORP., a Delaware corporation
By: /s/ Xxxxxxx X. XxXxxxxxx
------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and
Chief Financial Officer
Signature page to Consent, Waiver and Amendment No. 4
HEP NAVAJO SOUTHERN, L.P., a Delaware limited
partnership
HEP PIPELINE ASSETS, LIMITED PARTNERSHIP,
a Delaware limited partnership
HEP FIN-TEX/TRUST-RIVER, L.P., a Texas limited
partnership
Each by: HEP Pipeline GP, L.L.C., a Delaware
limited liability company and its General
Partner
By: Xxxxx Energy Partners - Operating, L.P., a
Delaware limited partnership and its Sole
Member
By: HEP Logistics GP, L.L.C., a Delaware
limited liability company, its General
Partner
By: Xxxxx Energy Partners, L.P., a
Delaware limited partnership, its
Managing Member
By: HEP Logistics Holdings, L.P., a
Delaware limited partnership, its
General Partner
By: Xxxxx Logistic Services,
L.L.C., a Delaware limited
liability company, its General
Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and
Chief Financial Officer
Signature page to Consent, Waiver and Amendment No. 4
XXXXX ENERGY PARTNERS, L.P., a Delaware limited
partnership
By: HEP Logistics Holdings, L.P., a Delaware
limited partnership, its General Partner
By: Xxxxx Logistic Services, L.L.C., a
Delaware limited liability company, its
General Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and
Chief Financial Officer
HEP REFINING ASSETS, L.P., a Delaware limited
partnership
By: HEP Refining GP, L.L.C., a Delaware limited
liability company and its General Partner
By: Xxxxx Energy Partners - Operating,
L.P., a Delaware limited partnership and
its Sole Member
By: HEP Logistics GP, L.L.C., a
Delaware limited liability company, its
General Partner
By: Xxxxx Energy Partners, L.P., a
Delaware limited partnership, its
Managing Member
By: HEP Logistics Holdings,
L.P., a Delaware limited
partnership, its General
Partner
By: Xxxxx Logistic Services,
L.L.C., a Delaware limited
liability company, its General
Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and
Chief Financial Officer
Signature page to Consent, Waiver and Amendment No. 4
HEP LOGISTICS GP, L.L.C., a Delaware limited
liability company
By: Xxxxx Energy Partners, L.P., a Delaware
limited partnership, its Managing Member
By: HEP Logistics Holdings, L.P., a
Delaware limited partnership, its General
Partner
By: Xxxxx Logistic Services, L.L.C., a
Delaware limited liability company, its
General Partner
By: /s/ Xxxxxxx X. XxXxxxxxx
-------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and
Chief Financial Officer
Signature page to Consent, Waiver and Amendment No. 4
ADMINISTRATIVE AGENT:
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx, Vice President
BANKS:
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx, Vice President
Signature page to Consent, Waiver and Amendment No. 4
BANK OF AMERICA, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxx
---------------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
Signature page to Consent, Waiver and Amendment No. 4
GUARANTY BANK
By: /s/ Xxx X. Xxxxxxxx
---------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
Signature page to Consent, Waiver and Amendment No. 4
FORTIS CAPITAL CORP.
By: /s/ Xxxxxxxx de Lathauwer
---------------------------------------
Name: Xxxxxxxx de Latheuwer
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Signature page to Consent, Waiver and Amendment No. 4
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Signature page to Consent, Waiver and Amendment No. 4
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
Signature page to Consent, Waiver and Amendment No. 4
EXHIBIT D
TO CREDIT AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
FOR THE PERIOD FROM _______, 200__ TO ________, 200__
This certificate dated as of ______________, _______ is prepared pursuant
to the Credit Agreement dated as of July 7, 2004 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") among Xxxxx Energy
Partners - Operating, L.P. (f/k/a HEP OPERATING COMPANY, L.P.) a Delaware
limited partnership ("Borrower"), the lenders party thereto (the "Banks"), the
Banks issuing letters of credit thereunder from time to time (the "Issuing
Banks") and UNION BANK OF CALIFORNIA, N.A., as administrative agent for such
Banks and Issuing Banks (in such capacity, the "Administrative Agent"). Unless
otherwise defined in this certificate, capitalized terms that are defined in the
Credit Agreement shall have the meanings assigned to them by the Credit
Agreement.
The undersigned hereby certifies (a) that no Default or Event of Default
has occurred or is continuing, (b) that all of the representations and
warranties made by the Borrower and the Guarantors contained in the Credit
Agreement and in each of the other Credit Documents are true and correct in all
material respects on and as of the date hereof, and (c) that as of the last day
of the previous fiscal quarter, the following statements, amounts, and
calculations were true and correct:
I. Section 6.10 Leverage Ratio.
(a) Consolidated Funded Debt $_______________
(b) Consolidated Net Income (1)
(c) Interest Expense (2) $_______________
(d) taxes, depreciation, amortization, and other
non-cash items $_______________
(e) EBITDA = (b) + (c)(3) + (d)(4) $____________(5)
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(1) The Consolidated net income of the Borrower and its Subsidiaries, as
determined in accordance with GAAP consistently applied, excluding, however, any
net gain or loss from extraordinary or non-recurring items (including, but not
limit to, any net gain or loss during such period arising from the sale,
exchange or other disposition of capital assets other than in the ordinary
course of business).
(2) For the Borrower and its Subsidiaries determined on a Consolidated
basis, for any period, the total interest, letter of credit fees, and other fees
incurred in connection with any Debt for such period, whether paid or accrued,
including, without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, all as determined in conformity with GAAP.
(3) To the extent deducted in determining Consolidated Net Income.
Exhibit D - Page 1 of 3
Leverage Ratio = (a) divided by (e) ________________
Maximum Leverage Ratio 3.50 to 1.00
Compliance Yes No
II. Section 6.11 Interest Coverage Ratio
(a) EBITDA (see I(e) above) _____________(5)
(b) Interest Expense(6) _____________(7)
Leverage Ratio = (a) divided by (b) ________________
Minimum Interest Coverage Ratio 3.50 to 1.00
Compliance Yes No
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(4) To the extent deducted in determining Consolidated Net Income.
(5) For each fiscal quarter, EBITDA shall be measured for the four fiscal
quarter period then ended. The results of operations of all Persons in which the
Borrower or any of its Subsidiaries owns less than all of the Equity Interests
of such Person (including the Restricted Subsidiary) shall only be included in
EBITDA to the extent that the Borrower or any other wholly-owned Subsidiary of
the Borrower actually receives cash distributions in respect of its ownership
interests in such Person during such period for which EBITDA is being
calculated.
(6) The total interest, letter of credit fees, and other fees incurred in
connection with any Debt for such period, whether paid or accrued, including,
without limitation, all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, all as
determined in conformity with GAAP.
(7) For each fiscal quarter, Interest Expense shall be measured for the
four fiscal quarter period then ended.
Exhibit D - Page 2 of 3
IN WITNESS THEREOF, I have hereto signed my name to this Compliance
Certificate as of _________________, 20____.
XXXXX ENERGY PARTNERS - OPERATING, L.P., a Delaware
limited partnership
By: HEP Logistics GP, L.L.C., a Delaware
limited liability company, its General Partner
By: Xxxxx Energy Partners, L.P., a Delaware
limited partnership, its Managing Member
By: HEP Logistics Holdings, L.P., a
Delaware limited partnership, its
General Partner
By: Xxxxx Logistic Services,
L.L.C., a Delaware limited
liability company, its General
Partner
By: _______________________________
Name: _____________________________
Title: ____________________________
Exhibit D - Page 3 of 3
