CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Exhibit 10.2
CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED
THIS CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Amendment”), is made effective as of March 31, 2011, by and among NGP CAPITAL RESOURCES COMPANY, a Maryland corporation (the “Borrower”), the several banks and other financial institutions from time to time party hereto (collectively, the “Lenders”) and SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the “Administrative Agent”).
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to a certain Amended and Restated Revolving Credit Agreement, dated as of August 31, 2006, as amended by that certain First Amendment to the Credit Agreement, effective as of August 31, 2006, that certain Second Amendment to the Credit Agreement, effective as of March 13, 2008, that certain Third Amendment to the Credit Agreement, effective as of September 29, 2008, and that certain Fourth Amendment to the Credit Agreement, effective as of October 2, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement), pursuant to which the Lenders have made certain financial accommodations available to the Borrower;
WHEREAS, Borrower has advised the Administrative Agent and the Lenders of the Borrower’s desire to enter into a Treasury Secured Revolving Credit Agreement, dated as of March 31, 2011, by and among the Borrower, the several banks and financial institutions from time to time party thereto and SunTrust Bank as administrative agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “New Treasury Credit Agreement”);
(a) The Recitals of the Credit Agreement are hereby amended by deleting the third recital in its entirety and replacing it with the following:
“WHEREAS, the Borrower has entered into that certain Treasury Revolving Credit Agreement dated as of March 31 2011, by and between the Borrower, the several banks and financial institutions from time to time party thereto (the “New Treasury Lenders”) and SunTrust Bank as administrative agent (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “New Treasury Credit Agreement”);”
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting the defined terms “Treasury Credit Agreement”, “Treasury Lenders”, “Treasury Revolving Commitment”, “Treasury Revolving Credit Facility Collateral”, and “Treasury Revolving Loans”.
(c) Section 1.1 of the Credit Agreement is hereby amended by inserting the following definitions in the appropriate alphabetical order:
“Fifth Amendment Effective Date” shall mean March 31, 2011.
“New Treasury Credit Agreement” shall have the meaning set forth in the recitals to this Agreement.
“New Treasury Lenders” shall have the meaning set forth in the recitals to this Agreement.
“New Treasury Revolving Commitment” shall mean, with respect to each New Treasury Lender, the obligation of such New Treasury Lender to make New Treasury Revolving Loans.
“New Treasury Revolving Credit Facility Collateral” shall mean all “Collateral” as detailed in the New Treasury Credit Agreement.
“New Treasury Revolving Loans” shall have the meaning set forth in the New Treasury Credit Agreement.
(d) Section 7.1 of the Credit Agreement is hereby amended (i) by replacing the “.” at the end of subsection (j) with “;” and (ii) by adding the following new subsection (k) to such Section:
“(k) Indebtedness created pursuant to the New Treasury Credit Agreement or any replacement facility so long as the aggregate principal amount at any one time outstanding thereunder does not exceed $50,000,000.”
2
(e) Section 7.2 of the Credit Agreement is hereby amended (i) by replacing the “.” at the end of subsection (h) with “;” and (ii) by adding the following new subsection (i) to such Section:
“(i) Liens created pursuant to the New Treasury Credit Agreement or any replacement facility so long as the collateral consists solely of Cash Collateral (as defined in the New Treasury Credit Agreement).”
(f) Section 7.7 of the Credit Agreement is hereby amended (i) by deleting the “and” preceding clause (v) of the proviso and (ii) by adding the following new clause (vi) to the proviso:
“, and (vi) the foregoing shall not apply to restrictions or conditions imposed by the New Treasury Credit Agreement or any replacement facility permitted pursuant to Section 7.1.”
(g) All references in the Credit Agreement to the term “Treasury Credit Agreement” shall be deleted and replaced with the term “New Treasury Credit Agreement”.
(h) All references in the Credit Agreement to the term “Treasury Lenders” shall be deleted and replaced with the term “New Treasury Lenders”.
(i) All references in the Credit Agreement to the term “Treasury Revolving Commitment” shall be deleted and replaced with the term “New Treasury Revolving Commitment”.
(j) All references in the Credit Agreement to the term “Treasury Revolving Credit Facility Collateral” shall be deleted and replaced with the term “New Treasury Revolving Credit Facility Collateral”.
(k) All references in the Credit Agreement to the term “Treasury Revolving Loans” shall be deleted and replaced with the term “New Treasury Revolving Loans”.
3
(a) The execution, delivery and performance by Borrower of this Amendment (i) is within Borrower’s power and authority; (ii) has been duly authorized by all necessary corporate and shareholder action; (iii) is not in contravention of any provision of Borrower’s certificate of incorporation or bylaws or other organizational documents; (iv) does not violate any law or regulation, or any order or decree of any Governmental Authority; (v) does not conflict with or result in the breach or termination of, constitute a default under or accelerate any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which Borrower or any of its Subsidiaries is a party or by which Borrower or any such Subsidiary or any of their respective property is bound; (vi) does not result in the creation or imposition of any Lien upon any of the property of Borrower or any of its Subsidiaries; and (vii) does not require the consent or approval of any Governmental Authority;
(b) This Amendment has been duly executed and delivered for the benefit of or on behalf of Borrower and constitutes a legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms except as the enforceability hereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights and remedies in general and by general principals of equity; and
(c) After giving effect to this Amendment, the representations and warranties contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects, and no Default or Event of Default has occurred and is continuing as of the date hereof.
4
7. Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York and all applicable federal laws of the United States of America.
10. Counterparts. This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be as effective as delivery of a manually executed counterpart hereof.
5
BORROWER:
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer,
Secretary and Treasurer
SUBSIDIARY GUARANTORS:
NGPC FUNDING GP, LLC
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer,
Secretary and Treasurer
NGPC FUNDING, LP
By: NGPC Funding GP, LLC
Its general partner
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer,
Secretary and Treasurer
NGPC ASSET HOLDINGS GP, LLC
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer,
Secretary and Treasurer
[SIGNATURE PAGE TO CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
NGPC ASSET HOLDINGS, LP
NGPC ASSET HOLDINGS II, LP
NGPC ASSET HOLDINGS III, LP
NGPC ASSET HOLDINGS V, LP
NGPC ASSET HOLDINGS VI, LP
By: NGPC Asset Holdings GP, LLC
Their general partner
By: /s/ XXXXXXX X. GARDNER______
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer,
Secretary and Treasurer
NGPC NEVADA, LLC
By: /s/ XXXXXXX X. GARDNER______
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer,
Secretary and Treasurer
[SIGNATURE PAGE TO CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
LENDERS:
SUNTRUST BANK, individually and as Administrative Agent and Collateral Agent
By:/s/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Director
[SIGNATURE PAGE TO CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
BRANCH BANK AND TRUST COMPANY
By:/s/ XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
XXXXXXX XXXXX BANK, FSB
By:/s/ XXXXX X. XXXXXXXXX
Name:Xxxxx X. Xxxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]
COMERICA BANK
By:/s/ XXXX XXXXXXX
Name: Xxxx Xxxxxxx
Title: Vice President
[SIGNATURE PAGE TO CONSENT AND FIFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT]