Second Amendment to Amended Credit Agreement

EX-10.36 4 h94929ex10-36.txt SECOND AMENDMENT TO AMENDED CREDIT AGREEMENT EXHIBIT 10.36 SECOND AMENDMENT AND RESTATEMENT SECOND AMENDMENT AND RESTATEMENT, dated as of November 13, 2001 (this "AMENDMENT AND RESTATEMENT"), to that certain AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 6, 2001 (the "EXISTING AGREEMENT", and as amended by this Amendment and Restatement, the "AMENDED AND RESTATED AGREEMENT"), among TEPPCO PARTNERS, L.P., a Delaware limited partnership (the "BORROWER"), the lenders party thereto and SunTrust Bank, as administrative agent for the lenders party thereto and as issuer of letters of credit (the "AGENT"). PRELIMINARY STATEMENT The Borrower, certain lenders and the Agent previously entered into the Existing Agreement. The Borrower and the other parties hereto (the "LENDERS") now wish to amend the Existing Agreement in its entirety to read as set forth in the Existing Agreement with the amendments set forth below. The parties therefore agree as follows (capitalized terms used but not defined herein having the meanings assigned to such terms in the Existing Agreement): SECTION 1. AMENDMENTS TO EXISTING AGREEMENT. The Existing Agreement is, effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in Section 2 hereof, hereby amended as follows: (a) Schedule 2 is hereby amended in its entirety to read as set forth in Exhibit A attached hereto. (b) Paragraph (ii) of Section 3.2(c) is amended in its entirety to read as follows: "The Borrower shall promptly notify the Administrative Agent upon the receipt of Net Cash Proceeds of any Asset Disposition or Recovery Event and, at any time that such Net Cash Proceeds received and not previously applied to any prepayment pursuant to this Section 3.2(c)(ii) shall equal or exceed $10,000,000, the Borrower shall prepay Borrowings, together with payment of any Funding Losses, and/or deposit funds in the Cash Collateral Account in respect of LC Outstandings pursuant to Section 12.1(d), as applicable, in an aggregate amount equal to 100% (without duplication) of such Net Cash Proceeds to the Borrowings and/or the cash collateralization of LC Outstandings pursuant to Section 12.1(d)." SECTION 2. CONDITIONS OF EFFECTIVENESS OF AMENDMENT AND RESTATEMENT. Section 1 of this Amendment and Restatement shall become effective as of the date first set forth above when each of the following conditions shall have been fulfilled: 2 (i) all of the Lenders and the Borrower shall have executed and delivered to the Agent a counterpart of this Amendment and Restatement; (ii) all of the Guarantors shall have executed and delivered the consent to this Amendment and Restatement in substantially the form of Exhibit B attached hereto; (iii) the representations and warranties set forth in Section 3 hereof shall be true and correct on and as of the date of effectiveness of this Amendment and Restatement as though made on and as of such date; and (iv) the Borrower shall have delivered an opinion of counsel in form reasonably acceptable to the Agent. SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that (a) the representations and warranties contained in Article VII of the Amended and Restated Agreement (with each reference therein to (i) "this Agreement", "hereunder" and words of like import referring to the Existing Agreement being deemed to be a reference to this Amendment and Restatement and the Amended and Restated Agreement and (ii) "Credit Documents", "thereunder" and words of like import being deemed to include this Amendment and Restatement and the Amended and Restated Agreement) are true and correct on and as of the date hereof as though made on and as of such date, and (b) no event has occurred and is continuing, or would result from the execution and delivery of this Amendment and Restatement, that constitutes an Event of Default. SECTION 4. EFFECT ON THE CREDIT AGREEMENT. Except as specifically amended above, the Existing Agreement shall continue to be in full force and effect and is hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment and Restatement shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders under the Existing Agreement, nor constitute a waiver of any provision of the Existing Agreement. SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on demand all costs and expenses of the Agent in connection with the preparation, execution and delivery of this Amendment and Restatement, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Agent with respect thereto, and all costs and expenses (including, without limitation, counsel fees and expenses), if any, in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Amendment and Restatement. In addition, the Borrower agrees to pay any and all stamp and other taxes payable or determined to be payable in connection with the execution and delivery of this Amendment and Restatement, and the other instruments and documents to be delivered hereunder, and agree to save the Lenders and the Agent harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes. SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment and Restatement 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. 3 SECTION 7. GOVERNING LAW. This Amendment and Restatement shall be governed by, and construed in accordance with, the internal laws of the State of New York. S-1 IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Restatement to be duly executed and delivered by their respective duly authorized officers as of the date first above written. TEPPCO PARTNERS, L.P., as Borrower By TEXAS EASTERN PRODUCTS PIPELINE COMPANY, LLC, as General Partner By /s/ CHARLES H. LEONARD ---------------------------------- Name: Charles H. Leonard Title: SVP, CFO & Treasurer SUNTRUST BANK, as Administrative Agent, LC Issuing Bank and Lender By /s/ STEVE NEWBY ------------------------------------ Name: Steve Newby Title: Vice President SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-2 UBS AG, STAMFORD BRANCH By /s/ WILFRED V. SAINT ------------------------------------- Name: Wilfred V. Saint Title: Associate Director Banking Products Services, US By /s/ ANTHONY N. JOSEPH ------------------------------------- Name: Anthony N. Joseph Title: Associate Director Banking Products Services, US SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-3 BANK ONE, NA By /s/ THOMAS OKAMOTO ------------------------------------- Name: Thomas Okamoto Title: Vice President SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-4 FIRST UNION NATIONAL BANK By /s/ RUSSELL T. CLINGMAN ------------------------------------- Name: Russell T. Clingman Title: Vice President SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-5 THE BANK OF NEW YORK By /s/ PETER W. KELLER ------------------------------------- Name: Peter W. Keller Title: Vice President SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-6 ROYAL BANK OF CANADA By /s/ DAVID A. McCLUSKEY ------------------------------------- Name: David A. McCluskey Title: Manager SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-7 CREDIT LYONNAIS NEW YORK BRANCH By /s/ BERNARD WEYMULLER ------------------------------------- Name: Bernard Weymuller Title: Senior Vice President SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-8 WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH By /s/ JEFFREY S. DAVIDSON ------------------------------------- Name: Jeffrey S. Davidson Title: Associate Director By /s/ PAUL VERDI ------------------------------------- Name: Paul Verdi Title: Manager SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-9 INTENTIONALLY OMITTED SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-10 KBC BANK N.V. By /s/ JEAN-PIERRE DIELS ------------------------------------- Name: Jean-Pierre Diels Title: First Vice President By /s/ ERIC RASKIN ------------------------------------- Name: Eric Raskin Title: Vice President SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-11 BANK OF AMERICA, NATIONAL ASSOCIATION By /s/ RONALD E. McKAIG ------------------------------------- Name: Ronald E. McKaig Title: Managing Director SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-12 THE INDUSTRIAL BANK OF JAPAN, LIMITED By /s/ JAMES W. MASTERS ------------------------------------- Name: James W. Masters Title: Senior Vice President and Manager SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-13 INTENTIONALLY OMITTED SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-14 INTENTIONALLY OMITTED SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT S-15 NATEXIS BANQUES POPULAIRES By /s/ LOUIS P. LAVILLE, III --------------------------------------- Name: Louis P. Laville, III Title: Vice President and Group Manager By /s/ DANIEL PAYER --------------------------------------- Name: Daniel Payer Title: Vice President SIGNATURE PAGE TO 3-YEAR AMENDMENT AND RESTATEMENT EXHIBIT A SCHEDULE 2 LENDERS AND COMMITMENTS LENDER COMMITMENT SunTrust Bank $60,714,285.89 303 Peachtree St. N.E. 3rd Floor Atlanta, GA 30308 Attn: Steven J. Newby Vice President Phone: 404 ###-###-#### Fax: 404 ###-###-#### Bank One, NA $53,571,428.55 Mail Code IL1-0363 1 Bank One Plaza Chicago, IL 60670 Attn: Michele Cellini Assistant Vice President Phone: 312 ###-###-#### Fax: 312 ###-###-#### First Union National Bank $53,571,428.55 1001 Fannin Street, Suite 2255 Houston, TX 77002-6709 Attn: Russell T. Clingman Vice President, Energy Investment Banking Phone: 713 ###-###-#### Fax: 713 ###-###-#### UBS AG, Stamford Branch $49,999,999.69 677 Washington Boulevard Stamford, CT 06901 Attn: Dorothy L. McKinley Director Phone: 203 ###-###-#### Fax: 203 ###-###-#### 2 The Bank of New York $35,714,285.70 Oil & Gas Division One Wall Street New York, NY 10286 Attn: Peter W. Keller Vice President Phone: 212 ###-###-#### Fax: 212 ###-###-#### Credit Lyonnais New York Branch $35,714,285.70 1301 Avenue of the Americas New York, NY 10019-6022 Attn: Philippe Soustra Executive Vice President Phone: 212 ###-###-#### Fax: 212 ###-###-#### Royal Bank of Canada $35,714,285.70 (Royal Bank Financial Group) Global Bank - Debt Products 2800 Post Oak Blvd. Houston, TX 77056 Attn: David McCluskey Manager Phone: 713 ###-###-#### Fax: 713 ###-###-#### Westdeutsche Landesbank Gironzentrale, New York Branch $28,571,428.56 1211 Avenue of the Americas New York, NY 10036 Attn: Duncan M. Robertson Director, Credit Department Phone: 212 ###-###-#### Fax: 212 ###-###-#### Bank of America, National Association $17,857,142.85 Energy & Power - Houston 333 Clay Street, Suite 4550 Houston, TX 77002 Attn: Mike Dillon Managing Director Phone: 713 ###-###-#### Fax: 713 ###-###-#### 3 KBC Bank N.V $17,857,142.85 New York Branch 125 West 55th Street New York, NY 10019 Attn: Patrick A. Janssens Vice President Phone: 212 ###-###-#### Fax: 212 ###-###-#### The Industrial Bank of Japan, Limited $10,714,285.71 Corporate Finance Division # 1 191 Peachtree St., N.E., Suite 3825 Atlanta, GA 30303-1757 Attn: William D. LaDuca Vice President Phone: 404 ###-###-#### Fax: 404 ###-###-#### Natexis Banque Populaires $10,714,286.00 333 Clay Street, Suite 4340 Houston, TX 77002 Attn: Parker Laville Vice President and Group Manager Phone: 713 ###-###-#### Fax: 713 ###-###-#### TOTAL COMMITMENTS $410,714,285.75 EXHIBIT B FORM OF CONSENT Dated as of November 13, 2001 The undersigned, [NAME OF GUARANTOR] (the "COMPANY"), as guarantor under the Guaranty, dated as of April 6, 2001, made by the Company to SunTrust Bank, as administrative agent (the "ADMINISTRATIVE AGENT") for the lenders (the "LENDERS") party to the 3-Year Amended and Restated Credit Agreement, dated as of April 6, 2001, as amended as of September 28, 2001 (as amended, the "CREDIT AGREEMENT"), among TEPPCO Partners, L.P. (the "Borrower"), the Lenders and the Administrative Agent, hereby consents to the amendment and restatement of the Credit Agreement by the Second Amendment and Restatement, dated as of November 13, 2001 (the "AMENDMENT AND RESTATEMENT"), among the Borrower, the Lenders signatories thereto and the Administrative Agent, and hereby confirms and agrees that (i) the Guaranty is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that, upon the effectiveness of, and on and after the date of, the Amendment and Restatement, each reference in the Guaranty to the "Credit Agreement", "thereunder", "thereof" or words of like import referring to the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended by the Amendment and Restatement and (ii) the Guaranty is, and shall continue to, be an unconditional and irrevocable guaranty of all of the Obligations (as defined in the Guaranty). [NAME OF GUARANTOR] By ----------------------------------------- Name: Title: