EXHIBIT 10.59
EIGHTH AMENDMENT TO THIRD RESTATED LOAN AGREEMENT
(TERM)
THIS EIGHTH AMENDMENT TO THIRD RESTATED LOAN AGREEMENT (TERM) (herein
called the "Amendment") made as of the 16th day of October, 1996, by and among
Western Gas Resources, Inc., a Delaware corporation ("Borrower"), NationsBank of
Texas, N.A., a national banking association, as Agent ("Agent"), and NationsBank
of Texas, N.A., Bankers Trust Company, Bank of Montreal and CIBC Inc. (herein,
collectively referred to as "Lenders"),
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Lenders have entered into that certain Third
Restated Loan Agreement (Term) dated as of August 31, 1993, as amended by that
certain First Amendment to Third Restated Loan Agreement (Term) dated as of
December 31, 1993, that certain Second Amendment to Third Restated Loan
Agreement (Term) dated as of September 2, 1994, that certain Third Amendment to
Third Restated Loan Agreement (Term) dated as of December 2, 1994, that certain
Fourth Amendment to Third Restated Loan Agreement (Term) dated as of February
23, 1995, that certain Fifth Amendment to Third Restated Loan Agreement (Term)
dated as of July 19, 1995, among Borrower, Agent and Lenders, that certain Sixth
Amendment to Third Restated Loan Agreement (Term) dated as of November 29, 1995,
among Borrower, Agent and Lenders, and that certain Seventh Amendment to Third
Restated Loan Agreement (Term) dated as of March 22, 1996, among Borrower, Agent
and Lenders (as amended to the date hereof, the "Original Agreement") for the
purpose and consideration therein expressed, whereby Lenders became obligated to
make and made loans to Borrower as therein provided; and
WHEREAS, Borrower, Agent and Lenders desire to amend the Original Agreement
as expressly set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Original Agreement and 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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Section 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.
Section 1.2. Other Defined Terms. Unless the context otherwise requires,
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the following terms when used in this Amendment shall have the meanings assigned
to them in this Section 1.2.
"Amendment" means this Eighth Amendment to Third Restated Loan
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Agreement (Term).
"Loan Agreement" shall mean the Original Agreement as amended hereby.
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ARTICLE II. -- Amendments
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Section 2.1. Debt to Capitalization Ratio. Section 5.2(m) of the Original
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Agreement is hereby amended in its entirety to read as follows:
"(m) Debt to Capitalization Ratio. Borrower's Debt to
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Capitalization Ratio will never be greater than (i) 0.60 to 1.0 at any time
until and including December 31, 1996 and (ii) 0.55 to 1.0 at any time
thereafter."
ARTICLE III. -- Conditions of Effectiveness
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Section 3.1. Effective Date. This Amendment shall become effective as of
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the date first above written, except as otherwise provided herein, when, and
only when, Agent shall have received, at Agent's office, all of the following:
(a) Amendment. A counterpart of this Amendment executed and
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delivered by Borrower and all Lenders.
(b) Officer's Certificate. A certificate of a duly authorized
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officer of Borrower, dated the date of receipt thereof by Agent, duly
authorized, executed and delivered, and in form and substance satisfactory
to Agent, 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.
ARTICLE IV. -- Representations and Warranties
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Section 4.1. Representations and Warranties of Borrower. In order to
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induce each Lender to enter into this Amendment, Borrower represents and
warrants to each Lender that:
(a) The representations and warranties contained in each subsection
of Section 5.1 of the Original Agreement are true and correct at and as of
the time of the effectiveness hereof.
(b) Borrower is duly authorized to execute and deliver this
Amendment and is and will continue to be duly authorized to borrow monies
and to perform its obligations under the Loan Agreement. Borrower has duly
taken all corporate action necessary to authorize the execution and
delivery of this Amendment and to authorize the performance of the
obligations of Borrower hereunder.
(c) The execution and delivery by Borrower of this Amendment, the
performance by Borrower of its obligations hereunder 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 of this Amendment or to consummate the
transactions contemplated hereby.
(d) When duly executed and delivered, each of this Amendment and
the Loan 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 quarterly Consolidated financial statements of
Borrower dated as of June 30, 1996 fairly present Borrower's Consolidated
financial position at such date and the Consolidated results of Borrower's
operations and changes in Borrower's Consolidated cash flow for the period
thereof. Copies of such financial statements have heretofore been delivered
to each Lender. Since June 30, 1996, no material adverse change has
occurred in the financial condition or businesses or in the Consolidated
financial condition or businesses of Borrower.
ARTICLE V. -- Miscellaneous
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Section 5.1. Ratification of Agreements. The Original Agreement as hereby
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amended and each other Loan Document affected hereby are ratified and confirmed
in all respects. Any reference to the Loan Agreement in any Loan Document shall
be deemed to be a reference to the Original Agreement as hereby amended. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein or therein, operate as a waiver of any right, power or
remedy of Agent or Lenders under the Loan Agreement, or any other Loan Document
nor constitute a waiver of any provision of the Loan Agreement, or any other
Loan Document.
Section 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 or any Related
Person hereunder or under the Loan 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 Loan Agreement.
Section 5.3. Loan Documents. This Amendment is a Loan Document, and all
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provisions in the Loan Agreement pertaining to Loan Documents apply hereto.
Section 5.4. Governing Law. This Amendment shall be governed by and
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construed in accordance with 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.
Section 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above by their duly authorized officers.
WESTERN GAS RESOURCES, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Executive Vice President
NATIONSBANK OF TEXAS, N.A.
By:/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Senior Vice President
BANKERS TRUST COMPANY
By:/s/ Xxxx Xx Xxxxx
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Xxxx Xx Xxxxx
Assistant Vice President
BANK OF MONTREAL
By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
Director
CIBC INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
Vice President
CONFIRMATION, ACKNOWLEDGEMENT AND CONSENT OF GUARANTORS
Each of the undersigned (collectively "Guarantors") hereby (i) acknowledges
and consents to the foregoing Eighth Amendment to Third Restated Loan Agreement
(Term) of even date herewith by and among Western Gas Resources, Inc.,
NationsBank of Texas, N.A., as Agent ("Agent"), Bankers Trust Company, Bank of
Montreal, and CIBC Inc.; (ii) confirms the Restated Guaranty dated as of
September 2, 1994 executed by such Guarantor in favor of Agent and the Lenders
pursuant to the Original Agreement; and (iii) agrees that each of such
Guarantor's obligations and covenants with respect to such Restated Guaranty
shall remain in full force and effect after the execution of such Amendment.
Xxxxxxx X. Xxxxxxx, Vice President-Finance of Western Gas Resources
Oklahoma, Inc., Western Gas Resources Texas, Inc., Western Gas Resources
Storage, Inc., Mountain Gas Resources, Inc., MGTC, Inc. and MIGC, Inc., is
executing this Confirmation, Acknowledgment and Consent of Guarantors in his
capacity of officer of each such corporation.
Dated as of the 16th day of October, 1996.
WESTERN GAS RESOURCES OKLAHOMA, INC.
WESTERN GAS RESOURCES TEXAS, INC.
WESTERN GAS RESOURCES STORAGE, INC.
MOUNTAIN GAS RESOURCES, INC.
MGTC, INC.
MIGC, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Vice President-Finance
