FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, LIMITED WAIVER AND CONSENT AND FIRST AMENDMENT TO SECURITY AGREEMENT
Exhibit
10.4
FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT,
LIMITED
WAIVER AND CONSENT
AND
FIRST
AMENDMENT TO SECURITY AGREEMENT
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT,
LIMITED
WAIVER AND CONSENT AND FIRST AMENDMENT TO SECURITY AGREEMENT (hereinafter called
this “Amendment”)
is
dated as of June 17, 2008, by and among BREITBURN
OPERATING L.P., a Delaware limited partnership (the “Company”),
BREITBURN ENERGY PARTNERS L.P., as Parent Guarantor (“Parent”),
the
Company’s Subsidiaries, as guarantors (the “Guarantors”),
the
Lenders (defined below), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION, as administrative agent for the Lenders (in
such capacity, together with its successors in such capacity “Administrative
Agent”).
WITNESSETH:
WHEREAS,
the Company, the Guarantors, Administrative Agent, Issuing Lender and the
Lenders have entered into that certain Amended and Restated Credit Agreement
dated as of November 1, 2007 (as amended, modified or restated from time to
time, the “Credit
Agreement”),
whereby upon the terms and conditions therein stated the Lenders have agreed
to
make certain loans to the Company upon the terms and conditions set forth
therein; and
WHEREAS,
the Company has requested that the Lenders agree to increase the Borrowing
Base
to $900,000,000 pursuant to Section
2.05 of
the
Credit Agreement; and
WHEREAS,
the Company and the Parent have notified the Administrative Agent and the
Lenders that Parent intends to consummate the Provident Acquisition and the
BEC
Contribution each as herein defined; and
WHEREAS,
the Company and the Parent have notified the Administrative Agent and the
Lenders that the Parent will enter into an agreement with BreitBurn Energy
Corporation to transfer up to 50% of BreitBurn Management Company to a group
that includes BreitBurn Energy Corporation and which acquires BreitBurn Energy
Company L.P.; and
WHEREAS,
as a condition to the amendments, consents and waivers set forth herein, the
Administrative Agent and the Lenders require BreitBurn GP LLC to become a party
to the Security Agreement; and
WHEREAS,
subject to the terms hereof, the undersigned Lenders are willing to agree to
the
consents, waivers and amendments to the Credit Agreement and the Security
Agreement as set forth herein.
NOW,
THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained, the parties to this Amendment hereby agree as
follows:
SECTION
1. Defined Terms.
(a) As
used
in this Amendment the following terms have the meanings set forth
below.
“Amendment
Closing Date Transactions”
means
the Provident Acquisition and the BEC Contribution.
“Amendment
Effective Date”
has
the
meaning given to such term in Section 6.
“BEC
Contribution”
means
the contribution by BreitBurn Energy Corporation to the Parent of all of
BreitBurn Energy Corporation’s interests in BreitBurn Management Company on the
Amendment Effective Date pursuant to the BEC Contribution Agreement.
“BEC
Contribution Agreement”
means
the Contribution Agreement dated as of June 11, 2008, by and among BreitBurn
Energy Corporation and the Parent, as Buyer, governing the BEC Contribution.
“BMC
Transfer” means
the
transfer by the Parent of up to 50% of BreitBurn Management Company to BreitBurn
Energy Company L.P. to a group that includes BreitBurn Energy Corporation and
which acquires BreitBurn Energy Company, L.P. in a transaction that is approved
by the independent directors of BreitBurn GP LLC and that is on fair and
reasonable terms no less favorable to the Parent and its Affiliates than would
be obtainable in a comparable arm’s-length transaction with a Parent not an
Affiliate of the Parent.
“BreitBurn
Management Company”
means
BreitBurn Management Company, LLC, a Delaware limited liability
company.
“Organization
Document Amendments”
means
the amendments to the Organization Documents of the Loan Parties being made
on
the Amendment Effective Date.
“Provident”
means,
collectively, Pro
LP
Corp. and Pro GP Corp.
“Provident
Acquisition”
means
the consummation of the following transactions pursuant to the Provident
Acquisition Agreement: (i) the acquisition by the Parent from
Pro
LP Corp., an affiliate of Provident Energy Trust, of
all
of
Pro LP Corp.’s limited partnership interests in Parent, followed by cancellation
on the Amendment Closing Date of such interests, (ii) acquisition by the Parent
from Pro GP Corp. of all of Pro GP Corp.’s limited partnership interests in the
Parent, followed by cancellation on the Amendment Closing Date of such
interests, (iii) acquisition by the Parent from Pro GP Corp. and Pro LP Corp.,
an affiliate of Provident Energy Trust of all the limited liability company
interests in BreitBurn
Management Company owned by Pro GP Corp. and Pro LP Corp.,
(iv)
the contribution by BreitBurn
Management Company
to the
Parent of the ownership interest in BreitBurn GP LLC, so that following such
contribution BreitBurn GP LLC will be a wholly owned subsidiary of the Parent.
“Provident
Acquisition Agreements”
(i)
the
Purchase Agreement dated as of June 11, 2008, by and among Pro LP Corp., a
Delaware corporation and Pro GP Corp., a Delaware corporation, as Selling
Parties), and the Parent, as Buyer, governing the purchase and sale of general
partnership interests in the Parent, and (ii) the Purchase Agreement dated
as of
June 11, 2008, by and among Pro LP Corp., a Delaware corporation and Pro GP
Corp., a Delaware corporation, as Selling Parties), and the Parent, as Buyer,
governing the purchase and sale of limited liability company interests in
BreitBurn Management company, LLC .
“Transactions”
means
the
Amendment Closing Date Transactions and the BMC Transfer.
(b) Except
as
may otherwise be provided herein, all other capitalized terms that are defined
in the Credit Agreement shall have the same meaning herein as therein, all
of
such terms and their definitions being incorporated herein by reference.
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2
SECTION
2. Limited
Waiver and Consents.
Effective as of the Amendment Effective Date, pursuant to the request of the
Company and the Parent, the undersigned Lenders hereby:
(a) Waive
the
use of proceeds requirement contained in Section
7.16
of the
Credit Agreement to the extent required in order to permit an advance to be
made
to the Company on the Amendment Effective Date, provided
that
the
proceeds of such advance will be used by the Company (A) to pay a cash dividend
to the Parent in an amount up to $345,000,000, and such cash will be used by
the
Parent and its affiliates to consummate the Provident Acquisition, (ii) to
pay
transaction costs associated with the Amendment Closing Date Transactions and
with the Borrowing Base increase and the amendments, consents and waivers
described herein, and (B) to pay accrued interest and fees to the Lenders.
Waive
the requirement that the Borrower make the representation and warranty contained
in Section
6.08
of the
Credit Agreement (use of loan proceeds to purchase Margin Stock) in connection
with the advance made on the Amendment Effective Date.
(b)
Waive
the
provisions of Section
8.04 of
the
Credit Agreement to permit the Parent to invest in BreitBurn Management Company.
Waive the provisions of Section
8.02
of the
Credit Agreement to permit the BMC Transfer.
(c) Waive
the
restrictions on Investments contained in Section
8.04
of the
Credit Agreement and the restrictions on dividends and equity repurchases
contain in Section
8.09
of the
Credit Agreement to permit the payment of a dividend by the Company to the
Parent and to permit the acquisition of equity interests from Provident pursuant
to the Provident Acquisition.
(d) Waive
the
requirement that transactions among Affiliates must be “in the ordinary course
of business” contained in Section
8.06
of the
Credit Agreement to the extent required in order to permit the Transactions,
provided however, that the Lenders do not waive the requirement contained in
Section
8.06
of the
Credit Agreement that such transaction shall be upon fair and reasonable terms
no less favorable to the Parent than would be obtainable in a comparable
arm’s-length transaction with a Person not an Affiliate of the Parent.
(e) Consent
to the Organization Document Amendments pursuant to Section
8.11 (c)
of the
Credit Agreement.
(f) Waive
any
Default or Event of Default by reason of a Change of Control arising from the
Provident Acquisition under Section
9.01(h)
of the
Credit Agreement arising from the Amendment Closing Date Transactions.
(g) Waive
the
provisions contained in Article
IV and
Sections
7.14 and
7.15
of the
Credit Agreement to the extent required in order to permit the following: (a)
BreitBurn Management Company will not be required to give a guaranty and
security agreement on the Amendment Effective Date, provided
however,
that
(i) for so long as BreitBurn Management Company is not a Guarantor, the Parent
may not, either directly or through any of its Subsidiaries, make Investments
in
BreitBurn Management Company, and (ii) BreitBurn Management Company shall
execute a guaranty agreement and security agreement if it is still a Subsidiary
as defined in the Credit Agreement 90 days after the Amendment Effective Date;
(b) the Parent will not be required to pledge its interests in BreitBurn GP
LLC;
and (c) BreitBurn GP LLC shall not be required to pledge its general partnership
interest in the Parent.
SECTION
3. Amendments
to Credit Agreement.
Effective as of the Amendment Effective Date, the Credit Agreement is hereby
amended as follows:
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3
(a) Amendment
to Definition of Change of Control.
The
definition of Change of Control is amended to read as set forth below.
“Change
of Control”
means
(a)
General Partner shall cease to own, directly or indirectly, all of the general
partner interest (including without limitation, all outstanding securities
convertible to general partner interests) of the Company; or BreitBurn GP LLC
shall cease to own, directly or indirectly, all of the general partner interest
(including without limitation, all outstanding securities convertible to general
partner interests) of Parent; or
(b)
Parent shall cease to own, directly or indirectly, all of the limited
partnership interests (including without limitation, all outstanding Equity
convertible to limited partner interests) of the Company, or shall cease to
own,
directly or indirectly, all of the general partnership interest (including
without limitation, all outstanding Equity convertible to general partner
interests) of the Company, or shall cease to own, directly or indirectly, at
least 51%
of
the member interest (including without limitation, all outstanding Equity
convertible to limited partner interests) of BreitBurn GP LLC; or
(c)
a
sale of all or substantially all of the assets of the Loan Parties taken as
a
whole to any Person or group of Persons; or
(d)
the
liquidation or dissolution of Parent or the Company; or
(e)
any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of
such
person or its subsidiaries, and any person or entity acting in its capacity
as
trustee, agent or other fiduciary or administrator of any such plan) becomes
the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have
“beneficial ownership” of all securities that such person or group has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an “option right”)), directly or indirectly, of 50%
or more of the equity securities of the Parent or of the general partner of
the
Parent entitled to vote for members of the board of directors or equivalent
governing body of the Parent or the general partner of the Parent on a
fully-diluted basis (and taking into account all such securities that such
“person” or “group” has the right to acquire pursuant to any option right);
or
(f)
the
first day on which a majority of the Board of Directors of BreitBurn GP LLC
are
not Continuing Directors. “Continuing
Directors”
means
any member of the board of directors (or managers, in the case of a limited
liability company) of BreitBurn GP LLC, who (A) is a member of such board of
directors or managers as of the date of this Agreement or (B) was nominated
for
election or elected to such board of directors or managers with the affirmative
vote of two-thirds of the Continuing Directors who were members of such board
of
directors or managers at the time of such nomination or election (not including
as board nominees any directors which the board is obligated to nominate
pursuant to shareholders’ agreements, voting trust arrangements or similar
arrangements).
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4
(b) Amendment
to the Definition of Pricing Grid.
The
definition of Pricing Grid is amended as follows:
“Pricing
Grid”
means
the annualized variable rates (stated in terms of basis points (“bps”))
set
forth below for the Applicable Margin, Commitment Fee and Letter of Credit
Fee,
based upon the ratio of Effective Amount to the Borrowing Base Amount (the
“Borrowing
Base Utilization Percentage”),
as
follows:
|
Applicable
Margin
|
|||||||||||||
|
Effective
Amount/
Borrowing
Base
Amount
(Borrowing
Base
Utilization
Percentage)
|
LIBOR
(bps)
|
Base Rate
(bps)
|
Commitment
Fee
(bps)
|
Letter of Credit
Fee
(bps)
|
|||||||||
|
³
85%
|
200.00
|
100.00
|
50.00
|
200.00
|
|||||||||
|
<
85% ³
66%
|
175.00
|
75.00
|
37.50
|
175.00
|
|||||||||
|
<
66% ³
33%
|
150.00
|
50.00
|
37.50
|
150.00
|
|||||||||
|
<
33%
|
125.00
|
25.00
|
30.00
|
125.00
|
|||||||||
For
any
period where the ratio of the Parent’s Total Indebtedness to EBITDAX exceeds
3.50:1.00, the LIBOR margin, Base Rate margin and Letter of Credit Fee shall
be
25.0 basis points greater at each level than the margin indicated above, and
the
Commitment Fee shall be 5.0 basis points greater than indicated
above.
Each
change in the Applicable Margin, Commitment Fee and Letter of Credit Fee shall
apply during the period commencing on the date of such change in the Borrowing
Base Utilization Percentage (as defined above) and ending on the date
immediately preceding the effective date of the next such change in the
Borrowing Base Utilization Percentage, provided, however, that if at any time
the Company fails to deliver a Reserve Report pursuant to Section
7.02,
then
until such time as a Reserve Report is delivered the “Applicable Margin” means,
and the Commitment Fee and Letter of Credit shall be set at, the rate per annum
set forth on the grid when the Borrowing Base Utilization Percentage is at
its
highest level.
Any
increase or decrease in the Applicable Margin, Commitment Fee or Letter of
Credit Fee resulting from a change in the Parent’s Total Indebtedness to EBITDAX
shall become effective as of the first Business Day immediately following the
date a Compliance Certificate is delivered pursuant to Section
7.02(d);
provided, however, that if a Compliance Certificate is not delivered when due
in
accordance with such Section, then the 25.0 basis points and 5.0 basis points
increases shall apply as of the first Business Day after the date on which
such
Compliance Certificate was required to have been delivered and shall remain
in
effect until the date on which such Compliance Certificate is delivered.”
(c) Amendment
to Section 7.14 (Pledge of Equity in New Subsidiary).
Section
7.14
of the
Credit Agreement is amended by adding the parenthetical “(other than BreitBurn
GP LLC, for so long as it is the general partner of the Parent)” after the
phrase “any new Subsidiary”.
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5
(d) Amendment
to Section 8.10 (Derivative Contracts).
Section
8.10(a)(iii)
of the
Credit Agreement is amended by replacing the phrase “any of the Lenders or their
Affiliates” with “a Lender Derivative Provider” and Section
8.10(b)(iii)
of the
Credit Agreement is amended by replacing the phrase “a Lender or its Affiliate”
with “a Lender Derivative Provider”.
(e) Amendment
to Section 8.04 of the Credit Agreement (Loans and Investments).
Section 8.04
of the
Credit Agreement is amended by:
(i)
deleting the word “and” at the end of clause (i),
(iii)
inserting the following immediately following clause (i):
“(j)
Investments by the Parent in BreitBurn Management, Company LLC from and after
such time as Breitburn Management Company, LLC becomes a Guarantor;
and”
(iii)
relettering clause (j) as clause (k).
(f) Amendment
to Section 8.07 (Margin Stock). Section
8.07
of the
Credit Agreement is amended by designating the existing language as clause
(a)
and adding the following new clause (b):
“(b)
The
Loan Parties, individually or in the aggregate, shall not at any time own Margin
Stock the value of which, for purposes of Regulation U, would exceed 10% of
the
value of the Collateral unless (i) such Margin Stock shall have been pledged
to
the Administrative Agent to secure the Obligations and the relevant Loan Party
shall have delivered such documentation as the Administrative Agent requires
in
connection with such pledge and (ii) the Company shall have furnished to the
Administrative Agent and each Lender a statement in conformity with the
requirements of FR Form U-1 or such other form referred to in Regulation U
or
Regulation X of the FRB, as the case may be.”
(g) Amendment
to Section 8.15 (Leverage Ratio).
Section
8.15
of the
Credit Agreement is amended to read as set forth below:
8.15
Leverage Ratio.
Parent
shall not permit the ratio of Total Indebtedness to EBITDAX, as of the last
day
of each fiscal quarter ending on the date set forth below, to be greater than
the amount set forth below opposite such date:
(a)
June
30, 2008: 4.25 to 1.00;
(b)
September 30, 2008: 4.00 to 1.00, and
(c)
December 31, 2008 and thereafter: 3.50 to 1.00.
(h) Amendment
to Section 9.01 (Events of Default), Section
9.01 of the Credit Agreement is amended by deleting the period at the end of
clause (o) and inserting in lieu thereof “; or” and inserting the following new
clause (p): “A change shall occur in the manner in which Parent is treated for
U.S. federal income tax purposes if such change could reasonably be expected
to
have a Material Adverse Effect.”
(i) Amendment
to Exhibit A-1 Form of Notice of Revolving Credit Borrowing.
Exhibit
A-1 (Form of Notice of Revolving Credit Borrowing) of the Credit Agreement
is
amended by adding the following after the sentence “The Borrowing requested
herein complies with the provisions of Section 2.01 of the Credit
Agreement.”:
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6
“The
undersigned hereby certifies that the Pricing Grid Certificate attached hereto
is true and correct on the date hereof, and will be true and correct on the
Borrowing Date, before and after giving effect to the Loans as herein
specified.
The
Company agrees that if prior to the time of the Borrowing of the Loan requested
hereby any matter certified to by it will not be true and correct at such time
as if then made, it will immediately so notify the Administrative
Agent.”
(j) Amendment
to Schedule 2.01 Commitments and Pro Rata Shares.
Schedule
2.01
(Commitments and Pro Rata Shares) of the Credit Agreement is revised to read
as
set forth on Schedule 2.01 attached hereto.
(a) Amendment
to Exhibit A-1 Form of Notice of Revolving Credit Borrowing. Exhibit A-1 (Form
of Notice of Revolving Credit Borrowing) of the Credit Agreement is amended
by
adding the following after the sentence “The Borrowing requested herein complies
with the provisions of Section 2.01 of the Credit Agreement.”:
“The
undersigned hereby certifies that the Pricing Grid Certificate attached hereto
is true and correct on the date hereof, and will be true and correct on the
Borrowing Date, before and after giving effect to the Loans as herein
specified.
The
Company agrees that if prior to the time of the Borrowing of the Loan requested
hereby any matter certified to by it will not be true and correct at such time
as if then made, it will immediately so notify the Administrative
Agent.”
SECTION
4. Borrowing
Base Increase. Effective
as of the Amendment Effective Date, the Borrowing Base is increased to
$900,000,000 and each Lender’s share of the Borrowing Base is as set forth on
Schedule
2.01
attached
hereto.
SECTION
5. Amendment to Security Agreement. The
definition of “Excluded Equity Interests” is amended by adding a new clauses
(ii), (iii) and (iv), and by renumbering existing clause (ii) to become clause
(v), so that the definition reads in its entirety as follows:
“Excluded
Equity Interests
means,
(i) each Debtor’s Equity in Xxxxxxxx XXX Limited Partnership, Saginaw Bay
Lateral Michigan Limited Partnership, Seal Beach Gas Processing Venture,
Wilderness-Xxxxxxx Gas Processing Limited Partnership, Wilderness-Xxxxxxx LLC,
Wilderness Energy, L.C., and Wilderness Energy Services Limited Partnership
if,
and to the extent that, and for so long as,
including such Equity in the definition of “Collateral”
would
violate applicable law or a contractual obligation binding on such Equity,
(ii)
the Parent’s Equity in BreitBurn GP, LLC, (iii) BreitBurn GP, LLC’s general
partnership interest in the Parent, (iv) Margin Stock not required to be pledged
pursuant to Section
8.07(b),
and (v)
any Equity in an entity (other than those listed in clauses (i)-(iv)) to the
extent that, and for so long as, including such Equity in the definition of
“Collateral” would violate a contractual obligation binding on such assets that
existed at the time of the acquisition thereof and was not created or made
binding on such assets in contemplation or in connection with the acquisition
of
such assets; provided,
however,
that if
any entity listed in clause (i) becomes a Wholly Owned Subsidiary, no Debtor’s
Equity interests in such Wholly Owned Subsidiary shall be deemed Excluded Equity
Interests; and provided
further
that the term Excluded Equity Interests does not include dividends or other
distributions paid in respect of the Debtor’s Equity in the above-listed
entities and Equity, and does not include the proceeds of any Disposition of
such Equity.”
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7
SECTION
6. Conditions
of Effectiveness.
This
Agreement and the amendments, consents and Borrowing Base increase shall become
effective as of the date first set forth above (the “Amendment
Effective Date”),
provided that the following conditions shall have been satisfied:
(a)
Amendment.
The
Administrative Agent shall have received a
counterpart of this Amendment which shall have been executed by Administrative
Agent, the Lenders, the Company and
the
Guarantors (which may be by telecopy or PDF transmission).
(b) Security
Documents.
The
Administrative Agent shall have received guaranty agreements, security
agreements and other documents and instruments as required by Article
IV
and
Sections
7.14
and
7.15
of the
Credit Agreement, requiring pledge of collateral and requiring guaranties and
collateral from subsidiaries, together with certificates, financing statements
and other documents that the Administrative Agent may deem necessary or
desirable in connection with the Parent’s pledge of its Equity in BreitBurn
Management Company, and in connection with the execution by BreitBurn GP LLC
of
a guaranty agreement and a security agreement.
(c) Amendments
to Organization Documents.
The
Administrative Agent shall have received copies of the Organization Documents
Amendments and such amendments shall be reasonably satisfactory to the
Administrative Agent.
(d) Resolutions;
Incumbency; Organization Documents, Good Standing for Company and
Parent.
The
Administrative Agent shall have received a certificate of the Secretary or
Assistant Secretary or a Responsible Officer with similar responsibilities
of
each of the Company and the Parent, or such Person’s general partner, attaching
and certifying as of the Amendment Effective Date: (i) resolutions of its board
of directors or members, authorizing the transactions contemplated hereby;
(ii)
the names and genuine signatures of the Responsible Officers of such Person,
authorized to execute, deliver and perform, as applicable, this Amendment and
all other Loan Documents to be delivered by such Person; (iii) the Organization
Document Amendments and the Organization Documents of such Person as in effect
as of the Amendment Effective Date; and (iv) the good standing certificate
for
such Person, from its state of formation, dated as of a recent
date.
(e) Resolutions;
Incumbency; Organization Documents, Good Standing for Subsidiary
Guarantors.
The
Administrative Agent shall have received a certificate of the Secretary or
Assistant Secretary or a Responsible Officer with similar responsibilities
of
each Subsidiary Guarantor, attaching and certifying as of the Amendment
Effective Date: (i) Resolutions of each Loan Party; (ii) the names and genuine
signatures of the Responsible Officers of such Person, authorized to execute,
deliver and perform, as applicable, this Amendment and all other Loan Documents
to be delivered by such Person; (iii) the Organizational Documents of such
Person and its general partners that were delivered at the Effective Date in
connection with the Credit Agreement have not been amended, or if they have,
attaching and certifying copies of the amendments; and (iv) the good standing
certificate for such Person, from its state of formation, dated as of a recent
date.
(f) No
Default; Representations and Warranties; No Material Adverse
Effect.
Both
before and after giving effect to the Borrowing on the Amendment Effective
Date,
the Provident Acquisition and the BEC Contribution, and after giving effect
thereto:
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8
(i)
except as waived hereunder, the representations and warranties of the Company
and the Guarantors in Article
VI
of the
Credit Agreement and in the other Loan Documents shall be true and correct
in
all material respects (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date, and except that the representations and warranties
contained in Sections
(a)
and
(b)
of
Section
6.14
of the
Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to clauses
(a)
and
(b),
respectively, of Section
7.01
of the
Credit Agreement).
(ii)
no
Default or Event of Default shall exist, and
(iii)
since December 31, 2007, there shall have been no event, development or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect.
(g) Governmental
Action.
As of
the Amendment Effective Date, no order of any nature by any Governmental Entity
that is in effect restrains or prohibits the consummation of any of the
transactions contemplated by this Amendment, the Provident Acquisition, the
BEC
Contribution or any other Loan Document, and no action before any Governmental
Entity shall have been instituted or threatened by any person which seeks to
prevent or delay the consummation of any of such transactions or which
challenges the enforceability of the Provident Acquisition Agreements, the
BEC
Contribution Agreement or any of the Loan Documents.
(h) Litigation.
As of
the Amendment Effective Date, no actions are pending and, to the Company’s
knowledge, no action is threatened in law or in equity or before any
Governmental Entity, against any Loan Party or its properties, that, if
determined or resolved adversely, could result in a Material Adverse Effect,
or
that seeks to affect or pertain to the Provident Acquisition, the BEC
Contribution or the other transactions contemplated by this Amendment or any
other Loan Document.
(i) Provident
Acquisition; BEC Contribution.
Simultaneously with the making of the Loans on the Amendment Effective Date,
(i)
the Provident Acquisition shall be consummated in accordance with the terms
of
the Provident Acquisition Agreements, with the conditions precedent thereto
having been satisfied, and any amendments thereto shall be satisfactory to
the
Administrative Agent, (ii) the limited partnership interests of Parent acquired
by Parent pursuant to the Provident Acquisition shall be cancelled; (iii) the
BEC Contribution shall be consummated substantially in accordance with the
terms
of the BEC Contribution Agreement with the conditions precedent thereto having
been satisfied, and any amendments thereto shall be reasonably satisfactory
to
the Administrative Agent; (iii) any Governmental Entity, equity holder and
third
party approvals and consents necessary in connection with the execution,
delivery and performance by any of the Loan Parties of the Provident Acquisition
Agreements or any other Loan Document and in connection with the Provident
Acquisition and the BEC Contribution shall have been received and shall be
in
full force and effect.
(j) Certificate
of a Responsible Officer of Company and Parent.
The
Administrative Agent shall have received a certificate signed by a Responsible
Officer of the Company and the Parent: (i) certifying as of the Amendment
Effective Date to the matters set forth in Sections 4(f) through (i) above;
(ii)
attaching a Pricing Grid Certificate, including calculation of the ratio of
Total Indebtedness to EBITDAX as of March 31, 2008 calculated on a pro forma
basis including the advances on the Amendment Effective Date; (iii) certifying
that attached thereto is a true and complete executed copy of the Provident
Acquisition Agreements and the BEC Contribution Agreement and all amendments
thereto; and (iv) certifying as the names of the persons who comprise the board
of directors of BreitBurn GP LLC after giving effect to the Provident
Acquisition.
(k) Certificate
of the Chief Financial Officer of Parent.
The
Administrative Agent shall have received a certificate signed by the Chief
Financial Officer of the Parent, certifying as of the Amendment Effective Date
as to the solvency of the Company and its subsidiaries taken as a whole and
the
Parent and its subsidiaries taken as a whole (after giving effect to the
Provident Acquisition and the incurrence of indebtedness on the Amendment
Effective Date).
Page
9
(l) Opinions
of Counsel.
The
Administrative Agent shall have received opinions of counsel to the Company
and
the Loan Parties, covering such matters pertaining to this Amendment as the
Administrative Agent may reasonably require.
(m) Payment
of Fees.
Evidence of payment by the Company of all accrued and unpaid fees, costs and
expenses owed pursuant to this Amendment to the extent then due and payable
on
the Amendment Effective Date.
(n) Additional
Documents.
Such
other documents, in form and substance satisfactory to Administrative Agent,
as
the Administrative Agent may reasonably request.
SECTION
7. Representations
and Warranties.
Each of
the Company and each Guarantor represents and warrants to Administrative Agent
and the Lenders, with full knowledge that such Persons are relying on the
following representations and warranties in executing this Amendment, as
follows:
(a) It
has
the organizational power and authority to execute, deliver and perform this
Amendment, and all organizational action on the part of it requisite for the
due
execution, delivery and performance of this Amendment has been duly and
effectively taken.
(b) The
Credit Agreement, as amended by this Amendment, the Loan Documents and each
and
every other document executed and delivered in connection with this Amendment
to
which it is a party constitute the legal, valid and binding obligations of
it,
to the extent it is a party thereto, enforceable against such Person in
accordance with their respective terms
except
as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors’ rights generally or by
equitable principles relating to enforceability.
All
liens created by the Loan Documents are in full force and effect.
(c) This
Amendment does not and will not: (a) violate any provisions of any of the
Organization Documents (after giving effect to any amendment thereto on the
Amendment Effective Date) of it; and (b) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any Contractual Obligation to which such Person
is a party that would be prior to the Liens granted to the Administrative Agent
for the benefit of the Lenders or otherwise that would constitute a Material
Adverse Effect or any order, injunction, writ or decree of any Governmental
Authority to which such Person or its property is subject.
(d)
No
approval, consent, exemption, authorization, or other action by, or notice
to,
or filing with, any Governmental Authority is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Amendment.
(e) After
giving effect to this Amendment no Default or Event of Default will exist,
and
all of the representations and warranties contained in the Credit Agreement
and
all instruments and documents executed pursuant thereto are true and correct
in
all material respects on and as of this date (except to the extent such
representations and warranties expressly refer to an earlier date, in which
case
they shall be true and correct as of such earlier date).
Page
10
SECTION
8. Additional
Representations and Warranties.
(a) Each
of
the Company and Parent represent and warrant to Administrative Agent and the
Lenders that the amendments being made to the Organizational Documents on the
Amendment Effective Date are not materially adverse to the Lenders.
(b)
The
Parent hereby represents and warrants that the Provident Acquisition, the BEC
Contribution and the BMC Transfer are upon fair and reasonable terms no less
favorable to the Parent and its Affiliates than would be obtainable in a
comparable arm’s-length transaction with a Person not an Affiliate of the
Parent.
(c)
A
fairness opinion with respect to the Provident Acquisition has been received
by
the independent committee of directors of the Parent’s general
partner.
(d)
The
Borrower and the Parent represent and warrant that none of the Amendment Closing
Date Transactions, the Organization Document Amendments nor the acquisition
by
the Parent of BreitBurn GP LLC will result in or cause (1) the loss of limited
liability to the holders of common units of the Parent or (2) the taxation
of
the Parent as an association taxable as a corporation or to be otherwise taxed
as an entity for federal income tax purposes.
SECTION
9. Reference
to and Effect on the Credit Agreement.
(a) Upon
the
effectiveness hereof, on and after the date hereof, each reference in the Credit
Agreement to “this
Agreement,”
“hereunder,”
“hereof,”
“herein,”
or
words of like import, shall mean and be a reference to the Credit Agreement
as
amended hereby.
(b) Except
as
specifically amended by this Amendment, the Credit Agreement shall remain in
full force and effect and is hereby ratified and confirmed.
SECTION
10. Costs
and Expenses.
The
Company agrees to pay all reasonable legal fees and expenses incurred by
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment.
SECTION
11. Extent
of Amendments.
Except
as otherwise expressly provided herein, the Credit Agreement and the other
Loan
Documents are not amended, modified or affected by this Amendment. The Company
and each of the Guarantors hereby ratifies and confirms that (i) except as
expressly amended hereby, all of the terms, conditions, covenants,
representations, warranties and all other provisions of the Credit Agreement
remain in full force and effect, (ii) each of the other Loan Documents are
and
remain in full force and effect in accordance with their respective terms,
and
(iii) the Collateral and the Liens on the Collateral securing the Obligations
are unimpaired by this Amendment and remain in full force and
effect.
SECTION
12. Loan
Documents.
The
Loan Documents, as such may be amended in accordance herewith, are and remain
legal, valid and binding obligations of the parties thereto, enforceable in
accordance with their respective terms. This Amendment is a Loan Document.
SECTION
13. Claims.
As
additional consideration to the execution, delivery, and performance of this
Amendment by the parties hereto and to induce Administrative Agent and Lenders
to enter into this Amendment, the Company and each of the Guarantors represents
and warrants that it does not know of any defenses, counterclaims or rights
of
setoff to the payment of any Indebtedness of the Company or any of the
Guarantors to Administrative Agent, Issuing Lender or any
Lender.
Page
11
SECTION
14. Execution
and 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. Delivery of an executed counterpart
of this Amendment by facsimile or pdf shall be equally as effective as delivery
of a manually executed counterpart.
SECTION
15. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of Texas, except to the extent that federal laws of the United States
of
America may apply.
SECTION
16. Headings.
Section
headings in this Amendment are included herein for convenience and reference
only and shall not constitute a part of this Amendment for any other
purpose.
SECTION
17. NO
ORAL AGREEMENTS.
The
rights and obligations of each of the parties to the loan documents shall be
determined solely from written agreements, documents, and instruments, and
any
prior oral agreements between such parties are superseded by and merged into
such writings. This amendment and the other written loan documents executed
by
the Company, the Guarantors, Administrative Agent, Issuing Lender and/or Lenders
represent the final agreement between such parties, and may not be contradicted
by evidence of prior, contemporaneous, or subsequent oral agreements by such
parties. There are no unwritten oral agreements between such
parties.
SECTION
18. No
Waiver.
The
Company and each of the Guarantors hereby agrees that
no
Event of Default and no Default has been waived or remedied by the execution
of
this Amendment by the Administrative Agent or any Lender. Nothing contained
in
this Amendment nor any past indulgence by the Administrative Agent, Issuing
Lender or any Lender, nor any other action or inaction on behalf of the
Administrative Agent, Issuing Lender or any Lender, (i) shall constitute or
be
deemed to constitute a waiver of any Defaults or Events of Default which may
exist under the Credit Agreement or the other Loan Documents, or (ii) shall
constitute or be deemed to constitute an election of remedies by the
Administrative Agent, Issuing Lender or any Lender, or a waiver of any of the
rights or remedies of the Administrative Agent, Issuing Lender or any Lender
provided in the Credit Agreement, the other Loan Documents, or otherwise
afforded at law or in equity.
[Signature
Pages Follow]
Page
12
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be duly executed and delivered
by
their proper and duly authorized officers as of the day and year first above
written.
|
THE
COMPANY:
|
||||
|
BREITBURN
OPERATING L.P.,
|
||||
|
a
Delaware limited Partnership
|
||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxxxxx,
|
|||
|
Xxxxxxx
X. Xxxxxxxxxxx,
|
||||
|
Co-Chief
Executive Officer
|
||||
|
GUARANTORS:
|
||||
|
ALAMITOS
COMPANY,
|
||||
|
a
California corporation
|
||||
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxxxxx,
|
|||
|
Xxxxxxx
X. Xxxxxxxxxxx,
|
||||
|
Co-President
|
||||
|
BREITBURN
FLORIDA LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
By:
|
BreitBurn
Operating L.P.,
|
|||
|
its
sole member
|
||||
| By: |
BreitBurn
Operating GP, LLC
|
|||
|
its
general partner
|
||||
|
By:
|
/s/
Xxxxxxx
X. Xxxxxxxxxxx
|
|||
|
Xxxxxxx
X. Xxxxxxxxxxx
|
||||
| Co-Chief Executive Officer | ||||
|
BREITBURN
XXXXXX LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
By:
|
/s/
X. Xxxxxxx Xxxxxxxx,
|
|||
|
X.
Xxxxxxx Xxxxxxxx,
|
||||
|
President
|
||||
Signature
Page to
First
Amendment, Limited Waiver and Consent
|
BEAVER
CREEK PIPELINE, L.L.C.,
|
|
|
a
Michigan limited liability company,
|
|
|
BREITBURN
OPERATING GP, LLC,
|
|
|
a
Delaware limited liability company,
|
|
|
a
Delaware limited partnership,
|
|
|
GTG
PIPELINE LLC, a Virginia limited liability
company,
|
|
|
MERCURY
MICHIGAN COMPANY, LLC,
|
|
|
a
Michigan limited liability company,
|
|
|
TERRA
ENERGY COMPANY LLC,
|
|
|
a
Michigan limited liability company, and
|
|
|
TERRA
PIPELINE COMPANY LLC,
|
|
|
a
Michigan limited liability company
|
|
|
By:
|
/s/
Xxxxxxx X. Xxxxxxxxxxx
|
|
Name:
|
Xxxxxxx
X. Xxxxxxxxxxx
|
|
Title:
|
Co-Chief
Executive Officer
|
|
PHOENIX
PRODUCTION COMPANY,
|
|
|
a
Wyoming corporation and
|
|
|
PREVENTIVE
MAINTENANCE SERVICES LLC,
|
|
|
a
Colorado limited liability company
|
|
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx |
| Name: Xxxxxxx X. Xxxxxxxx | |
|
Title: President
|
|
Signature
Page to
First
Amendment, Limited Waiver and Consent
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
|
|
|
as
Administrative Agent
|
|
|
By:
|
/s/
Xxxxxxx Xxxxx
|
|
Xxxxxxx
Xxxxx
|
|
|
Senior
Vice President
|
|
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
|
|
|
By:
|
/s/
Xxxxxxx Xxxxx
|
|
Xxxxxxx
Xxxxx
|
|
|
Senior
Vice President
|
|
|
Credit Suisse, Cayman
Islands
Branch, as a lender
|
|
| By: | /s/ Xxxxxxx Xxxxx |
| Director | |
| By: | /s/ Xxxxx Xxxxx |
| Associate | |
|
The Royal Bank of Scotland Plc,
as
a lender
|
|
| By: | /s/ Xxxx Xxxxxx |
| Vice President | |
|
Citibank, N.A.,
as
a lender
|
|
| By: | /s/ Xxxx X. Xxxxx |
| Vice President | |
|
Toronto Dominion (Texas) LLC,
as
a lender
|
|
| By: | /s/ Xxxxxx Xxxxx |
| Authorized Signatory | |
|
JPMorgan Chase Bank, N.A.,
as
a lender
|
|
| By: | /s/ Xxxxxxx X. Xxxxxx |
| Vice President | |
|
Xxxxxx Brothers
Commercial
Bank, as a lender
|
|
| By: |
/s/
Xxxxxxx Xxxxx
|
| AVP | |
Signature
Page to
First
Amendment, Limited Waiver and Consent
