AMENDMENT NO. 1 TO
CREDIT AGREEMENT
----------------
This AMENDMENT NO. 1 (this "Amendment"), dated as of November 19, 2004, to
the CREDIT AGREEMENT, dated as of July 22, 2004 (the "Credit Agreement") among
Quest Cherokee, LLC, a Delaware limited liability company (the "Borrower"), the
guarantors party thereto and the Lenders (such term and each other capitalized
term used but not defined herein having the meaning given it in the Credit
Agreement) party thereto, UBS Securities LLC, as Arranger, Bookmanager,
Documentation Agent and Syndication Agent, UBS AG, Stamford Branch, as Issuing
Bank, LC Facility Issuing Bank, Administrative Agent and Collateral Agent, and
UBS Loan Finance LLC, as Swingline Lender, is entered into by and among the
Borrower and the several Lenders that have executed a signature page hereto.
R E C I T A L S :
---------------
A. Section 11.02 of the Credit Agreement provides that the Credit Agreement
may be amended with the consent of the Borrower and the Required Lenders.
B. The Borrower, the Agents and the Lenders wish to amend the Credit
Agreement to provide that counterparties to and participants in the ISDA Hedge
Agreement and the hedge transactions entered into thereunder are, subject to
certain requirements, Secured Parties who ratably benefit from the security
interests granted in connection with the Credit Agreement.
C. The undersigned Lenders collectively constitute the Required Lenders.
D. The Borrower and the undersigned Lenders hereby agree to amend the
Credit Agreement on the terms set forth herein.
A G R E E M E N T :
-----------------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. Amendments.
----------
(a) Section 1.01 of the Credit Agreement is hereby amended as of the
Effective Date by deleting the definition of "ISDA Hedge Agreement" contained
therein and replacing it with the following:
"ISDA Hedge Agreement" shall mean the ISDA Master Agreement
dated as of July 22, 2004 between UBS AG and Quest Cherokee, LLC,
together with the Commodity Hedging Agreements, Hedging Obligations and
other transactions entered into thereunder on or prior to the Closing
Date, as each such document may be amended, amended and restated,
supplemented, renewed, assigned (including, without limitation, the
assignment of any and all such Commodity Hedging Agreements, Hedging
Obligations and other transactions assigned separately and even if
-2-
governed by the terms of a new master or ISDA hedge agreement with any
counterparty in connection therewith), extended, participated or
otherwise modified from time to time.
(b) Section 1.01 of the Credit Agreement is hereby amended as of the
Effective Date by deleting the definition of "Loan Documents" contained therein
and replacing it with the following:
"Loan Documents" shall mean, collectively, (i) this Agreement,
(ii) the Letters of Credit, (iii) the Notes (if any), (iv) the Security
Documents, (v) the ISDA Hedge Agreement, (vi) each Hedging Obligation
relating to the Loans entered into with any counterparty that was a
Lender or an Affiliate of a Lender at the time such Hedging Obligation
was entered into and (vii) solely for purposes of Section 8.01(a), the
Fee Letter.
(c) Section 1.01 of the Credit Agreement is hereby amended as of the
Effective Date by deleting the definition of "Obligations" contained therein and
replacing it with the following:
"Obligations" shall mean (a) obligations of Borrower and the
other Loan Parties from time to time arising under or in respect of the
due and punctual payment of (i) the principal of and premium, if any,
and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the
Loans, when and as due, whether at maturity, by acceleration, upon one
or more dates set for prepayment or otherwise, (ii) each payment
required to be made by Borrower and the other Loan Parties under this
Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of Reimbursement Obligations, interest
thereon and obligations to provide cash collateral and (iii) all other
monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), of
Borrower and the other Loan Parties under this Agreement and the other
Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of Borrower and the other Loan
Parties under or pursuant to this Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all
obligations of Borrower and the other Loan Parties, to extent a party
thereto, under (i) the ISDA Hedge Agreement and (ii) each other Hedging
Agreement relating to the Loans entered into with any counterparty that
was a Lender or an Affiliate of a Lender at the time such Hedging
Agreement was entered into and (d) the due and punctual payment and
performance of all obligations in respect of overdrafts and related
liabilities owed to any Lender, any Affiliate of a Lender, the
Administrative Agent or the Collateral Agent arising from treasury,
depositary and cash management services or in connection with any
automated clearinghouse transfer of funds.
(d) Section 1.01 of the Credit Agreement is amended as of the Effective
Date by deleting the definition of "Secured Parties" contained therein and
replacing it with the following:
"Secured Parties" shall mean, collectively, (i) the
Administrative Agent, (ii) the Collateral Agent, (iii) the Issuing
Bank, (iv) each other Agent, (v) the Lenders,
-3-
(vi) each party to the ISDA Hedge Agreement and (vii) each party to
any other Hedging Agreement relating to the Loans if at the date of
entering into such Hedging Agreement such person was a Lender or an
Affiliate of a Lender; provided that in the case of such parties to
the ISDA Hedge Agreement or such other Hedging Agreement, each such
person must execute and deliver to the Administrative Agent a letter
agreement in form and substance acceptable to the Administrative Agent
(i) appointing the Collateral Agent as its agent under the ISDA Hedge
Agreement or other applicable Hedging Agreement, (ii) agreeing to be
bound, on a pro rata basis to the extent related to such Secured
Party's interest in Collateral, by the provisions of Sections 11.03
and (iii) agreeing to be bound by the provisions of Section 11.09.
SECTION 2. Representations and Warranties; No Default. The Borrower hereby
confirms that no Default or Event of Default exists under the Credit Agreement
and hereby affirms and restates the representations and warranties made by it in
the Credit Agreement and confirms that all such representations and warranties
are true and correct in all material respects as of the date hereof, after
giving effect to the effectiveness of this Amendment, except to the extent that
any such representation and warranty specifically relates to an earlier date.
SECTION 3. Miscellaneous.
-------------
(a) This Amendment relates only to the specific matters covered herein and
shall not constitute a consent to or waiver or modification of any other
provision, term or condition of the Credit Agreement.
(b) All terms, provisions, covenants, representations, warranties,
agreements and conditions contained in the Credit Agreement shall remain in full
force and effect except as expressly provided herein.
(c) This Amendment shall become effective when, and only when, (i) the
Administrative Agent shall have received counterparts of this Amendment executed
by the Borrower, the Agents and a number of Lenders sufficient to constitute the
Required Lenders and (ii) the Borrower has paid all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment and the other instruments and documents
to be delivered hereunder, if any (including, without limitation, the reasonable
fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx LLP) in accordance with the terms
of Section 11.03 of the Credit Agreement.
(d) From and after the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement," "hereof," "herein," "hereby" or words
of like import shall be deemed to be a reference to the Credit Agreement as
amended by this Amendment.
(e) 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 an original, but all such counterparts
together shall constitute but one and the same instrument.
(f) Any provision of this Amendment which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceabil-
-4-
ity without invalidating the remaining portions hereof or affecting the validity
or enforceability of such provisions in any other jurisdiction.
(g) This Amendment shall be binding upon the Borrower, the Guarantors, the
Agents and the Lenders and their respective successors and assigns, and shall
inure to the benefit of the Borrower, the Guarantors, the Agents and the Lenders
and the successors and assigns of the Agents and the Lenders. Except as hereby
amended, the Credit Agreement shall remain in full force and effect and is
hereby ratified and confirmed in all respects.
(h) This Amendment shall be governed by, and construed in accordance with,
the laws of the State of New York without regard to principles of conflict of
laws.
IN WITNESS WHEREOF, the Borrower and each of the undersigned Agents and
Lenders have caused this Amendment to be duly executed and delivered by their
duly authorized officers as of the date first above written.
QUEST CHEROKEE, LLC
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: CEO
-3-
UBS AG, STAMFORD BRANCH, as Issuing Bank,
LC Facility Issuing Bank, Administrative
Agent and Collateral Agent
By: /s/ Xxxxxxx X. Saint
-----------------------------------------
Name: Xxxxxxx X. Saint
Title: Director
Banking Products
Services, US
By: /s/ Xxxxxx Oh
-----------------------------------------
Name: Xxxxxx Oh
Title: Associate Director
Banking Products
Services, US
-4-
UBS LOAN FINANCE LLC, as Swingline Lender and a
Lender
By: /s/ Xxxxxxx X. Saint
-----------------------------------------
Name: Xxxxxxx X. Saint
Title: Director
Banking Products
Services, US
By: /s/ Xxxxxx Oh
-----------------------------------------
Name: Xxxxxx Oh
Title: Associate Director
Banking Products
Services, US
-5-
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ Xxxxxxx X. Saint
-----------------------------------------
Name: Xxxxxxx X. Saint
Title: Director
Banking Products
Services, US
By: /s/ Xxxxxx Oh
-----------------------------------------
Name: Xxxxxx Oh
Title: Associate Director
Banking Products
Services, US
-5-
NATIONWIDE MUTUAL INSURANCE COMPANY, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
NATIONWIDE MUTUAL FIRE INSRUANCE COMPANY, as a
Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
NATIONWIDE LIFE INSURANCE COMPANY, as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
-5-
PACIFICA CDO III, LTD, as a Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: SVP
-5-
MACQUARIE/FIRST TRUST GLOBAL INFRASTRUCTURE/
UTILITIES DIVIDEND & INCOME FUND, as a Lender
By: Four Corners Capital Management LLC, as
Collateral Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
-5-
FIRST TRUST/FOUR CORNERS SENIOR FLOATING RATE
INCOME FUND II, as a Lender
By: Four Corners Capital Management LLC, as
Collateral Manager
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
-5-
TRS CALLISTO LLC, as a Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
-5-
LANDMARK IV CDO LIMITED, as a Lender
By: Aladdin Capital Management LLC, as Manager,
as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director
QUEST CHEROKEE, LLC AMENDMENT NO. 1 TO iv CREDIT AGREEMENT
-5-
By: Callidus Debt Partners CDO Fund I, Ltd.
By: Its Collateral Manager, Callidus Capital
Management, LLC, as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Managing Director
-5-
By: Callidus Debt Partners CLO Fund II, Ltd.
By: Its Collateral Manager, Callidus Capital
Management, LLC, as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Managing Director
-5-
By: Callidus Debt Partners CLO Fund III, LLC
By: Its Collateral Manager, Callidus Capital
Management, LLC, as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Managing Director
-5-
ERSTE BANK, as a Lender
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: First Vice President
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director, Erste Bank
New York Branch
-5-
XXXXXXXXXXX SENIOR FLOATING RATE FUND, as a
Lender
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Manager
-5-
STONE TOWER CLO II LTD., as a Lender
By: Stone Tower Debt Advisors LLC As Its
Collateral Manager
By: /s/ W. Xxxxxxx Xxxxx
-----------------------------------------
Name: W. Xxxxxxx Xxxxx
Title: Authorized Signatory
-5-
AMMC CDO I, LIMITED
By: American Money Management Corp., as
Collateral Manager
By: /s/ Xxxxxxx X. Eng
-----------------------------------------
Name: Xxxxxxx X. Eng
Title: Senior Vice President
-5-
AMMC CDO II, LIMITED
By: American Money Management Corp., as
Collateral Manager
By: /s/ Xxxxxxx X. Eng
-----------------------------------------
Name: Xxxxxxx X. Eng
Title: Senior Vice President
-5-
AMMC CLO III, LIMITED
By: American Money Management Corp., as
Collateral Manager
By: /s/ Xxxxxxx X. Eng
-----------------------------------------
Name: Xxxxxxx X. Eng
Title: Senior Vice President
-5-
FOXE BASIN CLO 2003, LTD.
By: Royal Bank of Canada as Collateral Manager
By: /s/ Xxx X. Xxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
-5-
XXXXXX STRAITS CLO 2004, LTD.
By: Royal Bank of Canada as Collateral Manager
By: /s/ Xxx X. Xxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
-5-
SEQUILS-Glace Bay, Ltd.
By: Royal Bank of Canada as Collateral Manager
By: /s/ Xxx X. Xxxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxxx
Title: Authorized Signatory
-5-
AVENUE CLO FUND, as a Lender
By: /s/ Xxxxxxx X'Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Senior Portfolio Manager
