EXHIBIT 10.22
Execution
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (herein called this "Amendment")
is made as of the 8th day of July, 1998 by and among Western Gas Resources, Inc.
("Borrower") and NationsBank, N.A., successor by merger to NationsBank of Texas,
N.A., as Agent ("Agent"), and the Lenders referred to in the Original Agreement
(as defined below).
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Lenders have entered into that certain Credit
Agreement dated as of May 30, 1997 (as amended, restated, or supplemented to the
date hereof, the "Original Agreement"), for the purposes and consideration
therein expressed, pursuant to which Lenders made and became obligated to make
loans to Borrower as therein provided; and
WHEREAS, Borrower, Agent and Lenders desire to amend the Original Agreement
to for the purposes set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement, in consideration
of the loans which may hereafter be made by Lenders to Borrower, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I.
Definitions and References
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(S) 1.1 Terms Defined in the Original Agreement. Unless the context
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otherwise requires or unless otherwise expressly defined herein, the terms
defined in the Original Agreement shall have the same meanings whenever used in
this Amendment.
ARTICLE II.
Amendments
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(S) 2.2 Defined Terms. Section 1.1 of the Original Agreement is hereby
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amended by adding the following defined terms:
"'Xxxxxxx Complex' means those certain gas processing facilities and
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associated gas gathering systems (with all related assets) to be sold by
Borrower to RIS Resources (USA) Inc. pursuant to the Xxxxxxx Option and
Asset Purchase Agreement."
"'Xxxxxxx Option and Asset Purchase Agreement' means that certain
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Option and Asset Purchase Agreement dated November 14, 1997 by and between
Mountain Gas Resources, Inc., Borrower and RIS Resources (USA) Inc., as
amended.
(S) 2.2 Limitation on Sales of Property. Section 6.2(d) of the Original
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Agreement is hereby amended to read in its entirety as follows:
"Limitation on Sales of Property. No Related Person will sell, transfer,
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lease, exchange, alienate or dispose of any of its material assets or properties
or any material interest therein except:
(i) equipment which is worthless or obsolete or which is
replaced by equipment of equal suitability and value;
(ii) inventory which is sold in the ordinary course of business;
(iii) sales of receivables pursuant to a Permitted Receivables
Purchase Facility;
(iv) the sale of up to an undivided fifty percent (50%) interest
in the Xxxxxxx Complex pursuant to the Xxxxxxx Option and Asset
Purchase Agreement; and
(v) so long as no Default or Event of Default has occurred,
other assets or property which are sold in arm's length transactions
to third parties that are not Affiliates of Borrower and are sold for
fair consideration not in the aggregate in excess of $20,000,000
during any Fiscal Year; provided that the sale of the Xxxxxxx Complex
and related assets pursuant to the Xxxxxxx Option and Asset Purchase
Agreement shall not be included in the calculation of this clause (v).
Neither Borrower nor any of Borrower's Subsidiaries will sell, transfer or
otherwise dispose of capital stock of any of Borrower's Subsidiaries except
that any Subsidiary of Borrower may sell or issue its own capital stock to
the extent not otherwise prohibited hereunder. No Related Person will
discount, sell, pledge or assign any notes payable to it, accounts
receivable or future income except to the extent expressly permitted under
the Loan Documents."
(S) 2.3 Limitation on Investments and New Businesses Section 6.2(f)(iii)
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of the Original Agreement is hereby amended to read in its entirety as follows:
"(iii) make any acquisitions of or capital contributions to or
other investments except (A) capital contributions to and investments
in Williston Gas Company and Subsidiaries already wholly owned by such
Related Person and the joint ventures described on Schedule 4 hereto,
(B) deposits with any Lender, investments in obligations of any Lender
or any of such Lender's Affiliates, time
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deposits in other banking institutions which, at the time such deposit
is made, are rated "C" by Thomson BankWatch, Inc. and investments
maturing within one year from the date of acquisition in direct
obligations of or obligations supported by, the full faith and credit
of, the United States of America, (C) purchases of open market
commercial paper, maturing within 270 days after acquisition thereof,
with the highest or second highest credit rating given by either
Standard & Poor's Rating Group (a division of XxXxxx-Xxxx, Inc.) or
Xxxxx'x Investors Services, Inc. and investments in money market
mutual funds with equivalent ratings, or (D) preferred stock of RIS
Resources (USA) Inc. in an amount not to exceed $14,000,000 received
in connection with the sale of the Xxxxxxx Complex and related assets
described in Section 6.2;"
ARTICLE III.
Conditions of Effectiveness
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(S) 3.1. Effective Date. This Amendment shall become effective as of the
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date first above written when, and only when, Agent shall have received all of
the following documents:
(a) This Amendment, duly authorized, executed and delivered, and in
form and substance satisfactory to Agent.
(b) A certificate of a duly authorized officer of Borrower to the
effect that all of the representations and warranties set forth in Article
IV hereof are true and correct at and as of the time of such effectiveness.
(c) A certificate of the Secretary of Borrower dated the date of this
Amendment certifying that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of Borrower authorizing the
execution, delivery and performance of this Amendment and certifying the
names and true signatures of the officers of Borrower authorized to sign
this Amendment.
(d) Such supporting documents as Agent may reasonably request.
ARTICLE IV.
Representations and Warranties
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(S) 4.1. Representations and Warranties of Borrower. In order to induce
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each Lender to enter into this Amendment, Borrower represents and warrants to
each Lender that:
(a) The representations and warranties contained in Section 5.1 of the
Original Agreement are true and correct at and as of the time of the
effectiveness hereof (except as
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such representations and warranties have been modified by the transactions
contemplated herein).
(b) Borrower is duly authorized to execute and deliver this Amendment
and Borrower is and will continue to be duly authorized to borrow monies
and to perform its obligations under the Credit Agreement. Borrower has
duly taken all corporate and action necessary to authorize the execution
and delivery of this Amendment.
(c) The execution and delivery by Borrower of this Amendment, the
performance of its obligations thereunder and the consummation of the
transactions contemplated hereby do not and will not conflict with any
provision of law, statute, rule or regulation or of the certificate of
incorporation and bylaws of Borrower or of any material agreement,
judgment, license, order or permit applicable to or binding upon Borrower
or result in the creation of any lien, charge or encumbrance upon any
assets or properties of Borrower. Except for those which have been
obtained, no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with the
execution and delivery by Borrower and of this Amendment.
(d) When duly executed and delivered, this Amendment and the Credit
Agreement will be a legal and binding obligation of Borrower enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of
creditors' rights and by equitable principles of general application.
(e) The unaudited Consolidated quarterly financial statements of
Borrower dated as of March 31, 1998 fairly present the Consolidated
financial position at such date and the Consolidated statement of
operations and the changes in Consolidated financial position for the
periods ending on such date for Borrower. Copies of such financial
statements have heretofore been delivered to Agent. Since March 31, 1998,
no material adverse change has occurred in the financial condition or
business or in the Consolidated financial condition or business of
Borrower.
ARTICLE V.
Miscellaneous
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(S) 5.1. Ratification of Agreements. The Original Agreement as hereby
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amended is hereby ratified and confirmed in all respects. Any reference to the
Credit Agreement in any Loan Document shall be deemed to be a reference to the
Original Agreement as hereby amended. The Loan Documents, as they may be
amended or affected by the various Amendment Documents, are hereby ratified and
confirmed in all respects. The execution, delivery and effectiveness of this
Amendment and the other Amendment Documents shall not, except as expressly
provided herein or therein, operate as a waiver of any right, power or remedy of
Lenders under the Credit
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Agreement, the Notes, or any other Loan Document nor constitute a waiver of any
provision of the Credit Agreement, the Notes or any other Loan Document.
(S) 5.2. Survival of Agreements. All representations, warranties,
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covenants and agreements of Borrower herein shall survive the execution and
delivery of this Amendment and the performance hereof, including without
limitation the making or granting of the Loans, and shall further survive until
all of the Obligations are paid in full. All statements and agreements
contained in any certificate or instrument delivered by Borrower hereunder or
under the Credit Agreement to any Lender shall be deemed to constitute
representations and warranties by, and/or agreements and covenants of, Borrower
under this Amendment and under the Credit Agreement.
(S) 5.3. Loan Documents. This Amendment and each other Amendment Document
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is a Loan Document, and all provisions in the Credit Agreement pertaining to
Loan Documents apply hereto and thereto.
(S) 5.4. Governing Law. This Amendment shall be governed by and construed
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in accordance the laws of the State of Texas and any applicable laws of the
United States of America in all respects, including construction, validity and
performance.
(S) 5.5. Counterparts. This Amendment may be separately executed in
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counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to constitute one and the same
Amendment.
THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN 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 OF THE PARTIES.
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IN WITNESS WHEREOF, this Amendment is executed as of the date first above
written.
WESTERN GAS RESOURCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President - Finance
NATIONSBANK, N.A.
By: /s/ Xxxxx X. Rubinking
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Name: Xxxxx X. Rubinking
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
BANK OF MONTREAL
By: /s/ Cahal X. Xxxxxxx
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Name: Cahal X. Xxxxxxx
Title: Director
BANKBOSTON, N.A.
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Philippe Soustra
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Name: Philippe Soustra
Title: Senior Vice President
CIBC INC.
By: /s/ M.A. G. Xxxxxx
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Name: Xxxxxxx X. X. Xxxxxx
Title: Authorized Signatory
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ X.X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title Assistant Vice President
