Exhibit 10.5
AMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT (this "Amendment") dated
as of July 31, 2002, is made by and among KANEB PIPE LINE OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership ("Borrower"), KANEB PIPE LINE PARTNERS,
L.P., a Delaware limited partnership ("KPP"), each of the lenders named on the
signature pages hereof (hereinafter, together with their successors and
permitted assigns, collectively, the "Lenders" and, individually, a "Lender"),
and SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
"Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower, KPP, the Lenders, and the Administrative Agent are
parties to a certain Revolving Credit Agreement dated as of December 28, 2000
(the "Credit Agreement"; defined terms used herein without definition shall have
the meanings ascribed to such terms in the Credit Agreement);
WHEREAS, Borrower, KPP, and the Lenders have agreed to amend the Credit
Agreement as more specifically set forth below;
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
SECTION 1. Amendments to Credit Agreement. Effective as of the Effective
Date (as hereinafter defined), the Credit Agreement is hereby amended as
follows:
1.1 Section 1.1 of the Credit Agreement is hereby amended by deleting
the defined term "Additional Debt" and its accompanying definition.
1.2 Section 1.1 of the Credit Agreement is hereby further amended by
deleting the defined term "Net Cash Proceeds" and the accompanying
definition, and substituting in lieu thereof the following defined term and
accompanying definition:
"Net Cash Proceeds" shall mean, with respect to any Asset
Disposition or Recovery Event (each, for purposes of this definition,
a "transaction"), the aggregate amount of cash received, as the case
may be, by (x) KPP or the Borrower or (y) any Significant Affiliate
and legally available to be distributed to KPP or the Borrower in the
form of dividends or distributions in connection with such transaction
after, in each case, deducting therefrom (i) payments made in respect
of any Indebtedness to the extent that such payments are required to
be made (other than under the Loan Documents) as a result of or in
connection with such transaction by applicable law or the terms of any
contractual agreement relating to such Indebtedness, (ii) reasonable
and customary transaction costs (which in the case of any Recovery
Event may include litigation costs and expenses and other costs and
expenses of collecting payments and settlements therefrom) that are
paid or reserved for payment (A) to a Person that is not an Affiliate
of KPP or (B) to KPP or an Affiliate of KPP to reimburse such Person
for payments made by such Person to another Person that is not KPP or
an Affiliate of KPP in respect of such transaction costs, (iii) the
amount of taxes paid or reserved for payment by KPP or such
Significant Affiliate in connection with or as a result of such
transaction, and (iv) any Reinvestment Amount.
1.3 Section 2.9(b) of the Credit Agreement is hereby amended by
deleting said Section 2.9(b) in its entirety and substituting in lieu
thereof the following Section 2.9(b):
(b) The Borrower shall promptly notify the Administrative Agent
upon the receipt of any Net Cash Proceeds and, at any time that Net
Cash Proceeds received and not previously applied to any prepayment
pursuant to this Section 2.9(b) shall equal or exceed $10,000,000, the
Borrower shall prepay Borrowings, together with payment of all amounts
required pursuant to Section 2.16, in an aggregate amount equal to one
hundred percent (100%) (without duplication) of the Net Cash Proceeds
of any Asset Disposition or Recovery Event.
1.4 Section 6.1 of the Credit Agreement is hereby amended by deleting
said Section 6.1 in its entirety and substituting in lieu thereof the
following Section 6.1:
SECTION 6.1 Funded Debt to EBITDA.
KPP and its Subsidiaries will maintain, as of the end of each fiscal
quarter of KPP, a ratio of Consolidated Funded Debt to Consolidated EBITDA
of not more than 4.25:1.00, measured, in each case, for the four-fiscal
quarter period ending on each date of such determination.
SECTION 2. Conditions to Effectiveness of Amendment. This Amendment
shall become effective as of the date first above written (the "Effective
Date") on the first day when the Administrative Agent shall have received
(i) the duly executed counterparts of this Amendment from Borrower and the
Lenders, and (ii) the duly executed counterparts of the Acknowledgment of
Guarantors attached to this Amendment from KPP and the Subsidiary
Guarantors.
SECTION 3. Status of Obligations. Borrower hereby confirms and agrees
that all Loans and all other Obligations outstanding under the Credit
Agreement and the other Loan Documents as of the date hereof were duly and
validly created and incurred by Borrower thereunder, that all such
outstanding amounts are owed in accordance with the terms of the Credit
Agreement and other Loan Documents, and that there are no rights of offset,
defense, counterclaim, claim or objection in favor of Borrower arising out
of or with respect to any of the Loans or other Obligations of Borrower to
the Administrative Agent or the Lenders, and any such rights of offset,
defense, counterclaim, claims or objections have been and are hereby waived
and released by Borrower.
SECTION 4. Representations and Warranties of Borrower. Each of
Borrower and KPP, without limiting the representations and warranties
provided in the Credit Agreement, represents and warrants to the Lenders
and the Administrative Agent as follows:
4.1 The execution, delivery and performance by Borrower and KPP
of this Amendment are within Borrower's and KPP's organizational
powers, have been duly authorized by all necessary organizational
action and do not and will not (a) violate any provision of any law,
rule or regulation, any judgment, order or ruling of any court or
governmental agency, the charter or by-laws of Borrower or KPP, or any
indenture, agreement or other instrument to which Borrower or KPP is a
party or by which Borrower or KPP or any of its properties is bound or
(b) be in conflict with, result in a breach of, or constitute with
notice or lapse of time or both a default under any such indenture,
agreement or other instrument.
4.2 This Amendment constitutes the legal, valid and binding
obligation of Borrower and KPP, enforceable against Borrower and KPP
in accordance with its terms.
4.3 After giving effect to this Amendment, no Default or Event of
Default has occurred and is continuing as of the Effective Date.
SECTION 5. Survival. Each of the foregoing representations and
warranties shall be made at and as of the Effective Date. Each of the
foregoing representations and warranties shall constitute a representation
and warranty of Borrower and KPP under the Credit Agreement, and it shall
be an Event of Default if any such representation and warranty shall prove
to have been incorrect or false in any material respect at the time when
made. Each of the foregoing representations and warranties shall survive
and not be waived by the execution and delivery of this Amendment or any
investigation by the Lenders or the Administrative Agent.
SECTION 6. Ratification of Credit Agreement and Loan Documents. Except
as expressly amended herein, all terms, covenants and conditions of the
Credit Agreement and the other Loan Documents shall remain in full force
and effect, and the parties hereto do expressly ratify and confirm the
Credit Agreement (as amended herein) and the other Loan Documents. All
future references to the Credit Agreement shall be deemed to refer to the
Credit Agreement as amended hereby.
SECTION 7. Release. In consideration of the amendments agreed to by
the Lenders pursuant to this Amendment, each of Borrower and KPP hereby (i)
releases, acquits and forever discharges the Administrative Agent, each
Lender, and each of their respective agents, employees, officers, partners,
directors, servants, representatives, attorneys, affiliates, successors and
assigns (collectively, the "Released Parties") from any and all
liabilities, claims, suits, debts, liens, losses, causes of action,
demands, rights, damages, costs and expenses of any kind, character or
nature whatsoever, known or unknown, fixed or contingent, that Borrower or
KPP may have or claim to have against such Lender which might arise out of
or be connected with any act of commission or omission of such Lender
existing or occurring on or prior to the date of this Amendment, including,
without limitation, any claims, liabilities or obligations relating to or
arising out of or in connection with the Credit Agreement, any other Loan
Documents or this Amendment (including, without limitation, arising out of
or in connection with the initiation, negotiation, closing or
administration of the transactions contemplated thereby or related
thereto), through the execution and delivery of this release and the
effectiveness of this Amendment (the "Released Claims") and (ii) agrees to
refrain from commencing, instituting or prosecuting any lawsuit, action or
other proceeding against the Released Parties with respect to any and all
Released Claims.
SECTION 8. Indemnity. In consideration of the amendments agreed to by
the Lenders pursuant to this Amendment, each of Borrower and KPP hereby
indemnifies the Administrative Agent and each Lender, and their respective
officers, partners, directors, employees, representatives and agents from,
and hold each of them harmless against, any and all costs, losses,
liabilities, claims, damages or expenses incurred by any of them (whether
or not any of them is designated a party thereto) (an "Indemnitee") arising
out of or by reason of any investigation, litigation or other proceeding
related to this Amendment, the Credit Agreement or any other Loan Documents
or any actual or proposed use of the proceeds of any of the Loans,
including, without limitation, the reasonable fees and disbursements of
counsel incurred in connection with any such investigation, litigation or
other proceeding; provided, however, neither Borrower nor KPP shall be
obligated to indemnify any Indemnitee for any of the foregoing arising out
of such Indemnitee's gross negligence or willful misconduct.
SECTION 9. No Other Waiver, Etc. Each of Borrower and KPP hereby
agrees that nothing herein shall constitute a waiver by the Lenders of any
Default or Event of Default, whether known or unknown, which may exist
under the Credit Agreement. Each of Borrower and KPP hereby further agrees
that no action, inaction or agreement by the Lenders, including without
limitation, any indulgence, waiver, consent or agreement altering the
provisions of the Credit Agreement which may have occurred with respect to
the non-performance of any obligation under the terms of the Credit
Agreement or any portion thereof, or any other matter relating to the
Credit Agreement, shall require or imply any future indulgence, waiver, or
agreement by the Lenders.
SECTION 10. Binding Nature. This Amendment shall be binding upon and
inure to the benefit of the parties hereto, their respective successors,
successors-in-titles, and assigns.
SECTION 11. Costs and Expenses. Borrower and KPP shall be responsible
for the 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, including, without
limitation, the fees and out-of-pocket expenses of counsel for the
Administrative with respect thereto.
SECTION 12. Governing Law. This Amendment shall be CONSTRUED IN
ACCORDANCE WITH AND governed by the INTERNAL laws of the State of NEW YORK.
SECTION 13. Entire Understanding. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein,
and shall supersede any prior negotiations or agreements, whether written
or oral, with respect thereto.
SECTION 14. Counterparts. This Amendment may be executed in any number
of counterparts and by the different parties hereto in separate
counterparts and may be delivered by telecopier. Each counterpart so
executed and delivered shall be deemed an original and all of which taken
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their duly authorized officers as of the day and
year first above written.
KANEB PIPE LINE OPERATING
PARTNERSHIP, L.P.
By: KANEB PIPE LINE COMPANY,
General Partner
By:
----------------------------------
Name:
Title:
KANEB PIPE LINE PARTNERS, L.P.
By: KANEB PIPE LINE COMPANY,
General Partner
By:
--------------------------------------
Name:
Title:
SUNTRUST BANK,
as Administrative Agent and as a Lender
By:
------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as a Lender
By:
------------------------------------------
Name:
Title:
BANK ONE, N.A.,
as a Lender
By: ------------------------------------------
Name:
Title:
BNP PARIBAS,
as a Lender
By:
------------------------------------------
Name:
Title:
FLEET NATIONAL BANK,
as a Lender
By:
------------------------------------------
Name:
Title:
BANK OF SCOTLAND,
as a Lender
By:
------------------------------------------
Name:
Title:
ACKNOWLEDGMENT OF GUARANTORS
Each of the undersigned Guarantors hereby (i) acknowledges and consents to
the execution and delivery by Borrower and KPP of the foregoing Amendment No. 1
to Revolving Credit Agreement dated as of July 31, 2002, and (ii) acknowledges
and agrees that (x) such execution and delivery of the foregoing Amendment No. 1
to Revolving Credit Agreement shall not release, discharge, limit or affect in
any manner any of their obligations as such Guarantors pursuant to the terms of
the Revolving Credit Agreement dated as of December 28, 2000, as referred to and
amended by the foregoing Amendment No. 1 to Credit Agreement, or pursuant to the
Subsidiary Guarantee Agreement delivered thereunder, and (y) their respective
obligations as such Guarantors in respect of all Obligations as defined in such
Revolving Credit Agreement shall remain in full force and effect on and after
the date hereof.
This Acknowledgment of Guarantors made and delivered as of July 31, 2002.
GUARANTORS:
KANEB PIPE LINE OPERATING
PARTNERSHIP, L.P.
By: KANEB PIPE LINE COMPANY,
General Partner
By:
----------------------------------
Name:
Title:
KANEB PIPE LINE PARTNERS, L.P.
By: KANEB PIPE LINE COMPANY,
General Partner
By:
--------------------------------------
Name:
Title:
SUPPORT TERMINALS OPERATING
PARTNERSHIP, L.P.
By: SUPPORT TERMINAL SERVICES, INC.,
General Partner
By:
--------------------------------------
Name:
Title:
SUPPORT TERMINAL SERVICES, INC.
By:
------------------------------------------
Name:
Title:
STANTRANS, INC.
By:
------------------------------------------
Name:
Title:
