FIRST AMENDMENT TO
CREDIT AGREEMENT
BY AND AMONG
ENTERPRISE PRODUCTS OPERATING L.P.,
DEN NORSKE BANK ASA
and
BANK OF TOKYO-MITSUBISHI, LTD., HOUSTON AGENCY,
as Co-Arrangers,
THE BANK OF NOVA SCOTIA,
as Co-Arranger and as Documentation Agent,
THE CHASE MANHATTAN BANK,
as Co-Arranger and as Agent,
and
THE BANKS SIGNATORY HERETO
Effective as of July 28, 1999
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1 Terms Defined Above.......................................................1
1.2 Terms Defined in Credit Agreement.........................................1
1.3 Other Definitional Provisions............................................ 1
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT
2.1 Amendments and Supplements to Definitions.................................2
2.2 Amendments to Subsection 2.4..............................................5
2.3 Amendments to Section 4...................................................5
2.4 Amendments to Section 5...................................................7
2.5 Amendments to Section 6...................................................7
2.6 Amendments to Section 7...................................................8
2.7 Amendments to Section 11.................................................11
SECTION 3. CONDITIONS
3.1 Loan Documents...........................................................11
3.2 Company Proceedings of Loan Parties......................................12
3.3 Representations and Warranties...........................................12
3.4 No Default...............................................................12
3.5 No Change................................................................12
3.6 Other Instruments or Documents...........................................12
3.7 Events...................................................................12
SECTION 4. MISCELLANEOUS
4.1 Adoption, Ratification and Confirmation of Credit Agreement..............13
4.2 Successors and Assigns...................................................13
4.3 Counterparts.............................................................13
4.4 Number and Gender........................................................13
4.5 Entire Agreement.........................................................13
4.6 Invalidity...............................................................13
4.7 Titles of Articles, Sections and Subsections.............................13
4.8 Governing Law............................................................14
FIRST AMENDMENT TO
CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") executed
effective as of the 28th day of July, 1999 (the "Effective Date"), is by and
among ENTERPRISE PRODUCTS OPERATING L.P., a limited partnership formed under the
laws of the State of Delaware (the "Company"); each of the banks that is a
signatory hereto or which becomes a signatory hereto and to the hereinafter
described Credit Agreement (individually, together with its successors and
assigns, a "Bank" and, collectively, the "Banks"); THE CHASE MANHATTAN BANK, DEN
NORSKE BANK ASA, THE BANK OF NOVA SCOTIA and BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY, as Co-Arrangers; THE BANK OF NOVA SCOTIA, as Documentation
Agent; and THE CHASE MANHATTAN BANK ("Chase"), as Agent for the Banks (in such
capacity, together with its successors in such capacity, the "Agent").
R E C I T A L S:
WHEREAS, the Company, the Agent, the Documentation Agent and the Banks are
parties to that certain Credit Agreement dated as of July 27, 1998, as Amended
and Restated as of September 30, 1998 (the "Credit Agreement"), pursuant to
which the Banks agreed to make loans to and extensions of credit on behalf of
the Company; and
WHEREAS, the Company and the Banks desire to amend the Credit Agreement in
the particulars hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Terms Defined Above. As used in this First Amendment, each of the terms
"Bank", "Banks", "Company", "Credit Agreement", "Effective Date" and "First
Amendment" shall have the meaning assigned to such term hereinabove.
1.2 Terms Defined in Credit Agreement. Each term defined in the Credit
Agreement and used herein without definition shall have the meaning assigned to
such term in the Credit Agreement, unless expressly provided to the contrary.
1.3 Other Definitional Provisions.
(a) The words "hereby", "herein", "hereinafter", "hereof", "hereto" and
"hereunder" when used in this First Amendment shall refer to this First
Amendment as a whole and not to any particular Article, Section, subsection or
provision of this First Amendment. (b) Section, subsection and Exhibit
references herein are to such Sections, subsections and Exhibits to this First
Amendment unless otherwise specified.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT
The Company, the Agent and the Banks agree that the Credit Agreement is
hereby amended, effective as of the Effective Date, in the following
particulars.
2.1 Amendments and Supplements to Definitions.
(a) The following terms, which are defined in subsection 1.1 of the Credit
Agreement, are hereby amended in their entirety to read as follows:
"Agreement": this Credit Agreement, as amended by the First Amendment and
as the same may from time to time be further amended, supplemented or modified.
"Applicable Margin": for each Revolving Credit Loan, the rate per annum set
forth below:
(a) if the Applicable Margin Certificate required pursuant to subsection
6.1(c) for any fiscal quarter of the Company shows that the Total
Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was less than
or equal to 1.5 to 1, then the Applicable Margin, during the period beginning on
(and including) the date on which such Applicable Margin Certificate was
delivered by the Company to the Banks and ending on (and excluding) the date on
which the next Applicable Margin Certificate is delivered by the Company to the
Banks pursuant to subsection 6.1(c), shall be (i) with respect to Alternate Base
Rate Loans, 0% and (ii) with respect to Eurodollar Loans, .75%; and
(b) if the Applicable Margin Certificate required pursuant to subsection
6.1(c) for any fiscal quarter of the Company shows that the Total
Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was greater
than 1.5 to 1 and less than or equal to 2.0 to 1, then the Applicable Margin,
during the period beginning on (and including) the date on which such Applicable
Margin Certificate was delivered by the Company to the Banks and ending on (and
excluding) the date on which the next Applicable Margin Certificate is delivered
by the Company to the Banks pursuant to subsection 6.1(c), shall be (i) with
respect to Alternate Base Rate Loans, 0% and (ii) with respect to Eurodollar
Loans, 1.00%;
(c) if the Applicable Margin Certificate required pursuant to subsection
6.1(c) for any fiscal quarter of the Company shows that the Total
Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was greater
than 2.0 to 1 and less than or equal to 2.5 to 1, then the Applicable Margin,
during the period beginning on (and including) the date on which such Applicable
Margin Certificate was delivered by the Company to the Banks and ending on (and
excluding) the date on which the next Applicable Margin Certificate is delivered
by the Company to the Banks pursuant to subsection 6.1(c), shall be (i) with
respect to Alternate Base Rate Loans, .25% and (ii) with respect to Eurodollar
Loans, 1.25%;
(d) if the Applicable Margin Certificate required pursuant to subsection
6.1(c) for any fiscal quarter of the Company shows that the Total
Indebtedness/EBITDA Ratio on the last day of such fiscal quarter was greater
than 2.5 to 1, then the Applicable Margin, during the period beginning on (and
including) the date on which such Applicable Margin Certificate was delivered by
the Company to the Banks and ending on (and excluding) the date on which the
next Applicable Margin Certificate is delivered by the Company to the Banks
pursuant to subsection 6.1(c), shall be (i) with respect to Alternate Base Rate
Loans, .50% and (ii) with respect to Eurodollar Loans, 1.50%;
provided, however, if the Company shall fail to deliver the Applicable
Margin Certificate by the end of the fiscal quarter in which it is required, the
Applicable Margin for the next fiscal quarter shall be as provided in clause (d)
above; provided further, however, that the Applicable Margin for the period from
the Closing Date until (and excluding) the date on which the Company delivers to
the Banks the Applicable Margin Certificate for the fiscal quarter of the
Company ended September 30, 1999, shall be (i) with respect to Alternate Base
Rate Loans, .50% and (ii) with respect to Eurodollar Loans, 1.50%; provided
further, however, that when the Company or the Limited Partner receives a senior
unsecured debt rating of at least BBB- from Standard & Poor's Ratings Services,
a division of ▇▇▇▇▇▇-▇▇▇▇, Inc. ("Standard & Poor's"), and a debt rating of at
least Baa3 from ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), the Applicable
Margin with respect to Eurodollar Loans shall be reduced by .125%; and, in the
event the senior unsecured debt rating is greater than BBB- from Standard &
Poor's and Baa3 from Moody's, the Applicable Margin with respect to Eurodollar
Loans shall be reduced by .250%. Each such reduction shall be effective on the
next Business Day following the date the applicable rating is achieved and shall
be reversed on the next Business Day following any downgrade of any one of the
ratings below the levels aforementioned.
"Change of Control": any of the following events:
(1) ▇▇▇ ▇▇▇▇▇▇ (his wife, descendants and trusts for the benefit of his
wife and/or descendants and the heirs, legatees and distributees of his estate)
shall cease to own, directly or indirectly, (A) at least 51% (on a fully
converted, fully diluted basis) of the economic interest in the Capital Stock of
EPCO or (B) an aggregate number of shares of Capital Stock of EPCO sufficient to
elect a majority of the board of directors of EPCO;
(2) EPCO shall cease to own 100% of the issued and outstanding Capital
Stock of EPC Partners II, Inc. ("EPC II");
(3) EPC II (or another wholly owned Subsidiary of EPCO) shall cease to own
at least 65% of the outstanding membership interests in the General Partner;
(4) EPC II shall fail to own at least a majority of the outstanding Common
Units;
(5) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
excluding EPC II and Shell Oil Company and any of its Affiliates acquiring or
owning an interest in any of the special units of the Limited Partner (or the
Common Units into which any of such special units are converted) issued by the
Limited Partner in connection with the Tejas Acquisition, shall become, or
obtain rights (whether by means of warrants, options or otherwise) to become,
the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the
Exchange Act), directly or indirectly, of more than 20% of the outstanding
Common Units;
(6) the General Partner shall cease to be the general partner of the
Limited Partner or the Company; or
(7) the Limited Partner shall cease to be the sole limited partner of the
Company.
"EBITDA": shall mean, for any period, the sum (without duplication) of (i)
operating income of the Company, and its consolidated Subsidiaries for such
period plus (ii) depreciation and amortization for such period to the extent not
already included in the calculation of operating income plus (iii) interest
income during such period (excluding interest income in respect of the BEF
Participation and the MBA Participation), plus (iv) cash distributions or
dividends received by the Company during such period from unconsolidated
entities (including, without limitation, unconsolidated Permitted Joint
Ventures), plus (v) other cash income received by the Company during such
period, plus (vi) interest and principal payments received by the Company with
respect to the BEF Participation and the MBA Participation, minus (vii)
operating lease expense for such period to the extent not already deducted in
the calculation of operating income, determined in each case, on a consolidated
basis in accordance with GAAP; provided, however, EBITDA (x) will not include
any extraordinary, unusual or non-recurring gains or losses from asset sales and
(y) will be adjusted from time to time for cash flows from acquisitions, which
cash flows shall be added on a pro forma basis to each of the prior four fiscal
quarters.
"Net Cash Proceeds": in connection with the issuance of Debt permitted by
subsection 7.1(j), the cash proceeds received from the issuance of such Debt,
net of all applicable attorney's fees, investment banking fees, accountant fees,
underwriting discounts, commissions and other customary fees and expenses
actually incurred in connection therewith.
"Revolving Credit Commitment Termination Date": the earlier of (a) July 26,
2000, or (b) the date the Revolving Credit Commitments are terminated pursuant
to the provisions of this Agreement, including without limitation, the
provisions of subsection 4.1(a).
(b) Subsection 1.1 of the Credit Agreement is hereby further amended and
supplemented by adding the following new definitions where alphabetically
appropriate, which read in their entirety as follows:
"First Amendment": the First Amendment to Credit Agreement dated as of
July 28, 1999, by and among the Company, the Agent, the Documentation Agent and
the Banks.
"Tejas Acquisition": the acquisition by the Company directly or indirectly
of the natural gas processing assets and other midstream assets of Tejas Natural
Gas Liquids, LLC.
2.2 Amendments to Subsection 2.4. Subsection 2.4(b) of the Credit Agreement
is hereby deleted in its entirety.
2.3 Amendments to Section 4.
(a) Subsection 4.1 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"4.1 Prepayments. (a) Mandatory Prepayments. If on any date the
Company shall receive Net Cash Proceeds from the issuance of Debt permitted
by subsection 7.1(j), then 100% of such Net Cash Proceeds shall be applied
on such date toward the payment in full of all Indebtedness, including,
without limitation, all principal, interest and fees owing under this
Agreement, the Revolving Credit Notes or any other Loan Document until all
of same shall be paid in full. Simultaneously with such payment in full,
the Revolving Credit Commitments shall be terminated.
(b) Optional Prepayments. The Company may on the last day of the relevant
Interest Period if the Revolving Credit Loans to be prepaid are in whole or in
part Eurodollar Loans, or at any time and from time to time if the Revolving
Credit Loans to be prepaid are Alternate Base Rate Loans, prepay the Revolving
Credit Loans, in whole or in part, without premium or penalty, upon at least (i)
three Working Days' irrevocable notice, in the case of Eurodollar Loans, and
(ii) one Business Day's irrevocable notice, in the case of Alternate Base Rate
Loans, in each case to the Agent, specifying the date and amount of prepayment
and whether the prepayment is of Working Capital Revolving Credit Loans or
Investment Revolving Credit Loans and whether of Eurodollar Loans or Alternate
Base Rate Loans or a combination thereof, and if of a combination thereof, the
amount of prepayment allocable to each. Upon receipt of such notice the Agent
shall promptly notify each Bank thereof. If such notice is given, the Company
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together with accrued interest
to such date on the amount prepaid.
(c) Each optional partial prepayment of the Revolving Credit Loans pursuant
to Subsection 4.1(b) shall be in an aggregate principal amount of $1,000,000 or
a whole multiple of $1,000,000 in excess thereof."
(b) Subsection 4.2 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"4.2 Commitment Fees. The Company agrees to pay to the Agent, for the
account of each Bank, commitment fees with respect to the Revolving Credit
Commitment of such Bank for the period from and including the Effective
Date of the First Amendment to and including the Revolving Credit
Termination Date, calculated at the following rates per annum on the
average daily Available Revolving Credit Commitment of such Bank for each
day during the period for which the commitment fee with respect to the
Revolving Credit Commitments is being paid:
(i) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after June
30, 1999 shows that the Total Indebtedness/EBITDA Ratio on the last day of
such fiscal quarter was less than or equal to 1.5 to 1, then the commitment
fee for the Revolving Credit Commitment, during the period beginning on
(and including) the date on which such Applicable Margin Certificate was
delivered by the Company to the Banks and ending on (and excluding) the
date on which the next Applicable Margin Certificate is delivered by the
Company to the Banks pursuant to subsection 6.1(c), shall be .25%;
(ii) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after June
30, 1999 shows that the Total Indebtedness/EBITDA Ratio on the last day of
such fiscal quarter was greater than 1.5 to 1 and less than or equal to 2.0
to 1, then the commitment fee for the Revolving Credit Commitment, during
the period beginning on (and including) the date on which such Applicable
Margin Certificate was delivered by the Company to the Banks and ending on
(and excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be .30%;
(iii) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after June
30, 1999 shows that the Total Indebtedness/EBITDA Ratio on the last day of
such fiscal quarter was greater than 2.0 to 1 and less than or equal to 2.5
to 1, then the commitment fee for the Revolving Credit Commitment, during
the period beginning on (and including) the date on which such Applicable
Margin Certificate was delivered by the Company to the Banks and ending on
(and excluding) the date on which the next Applicable Margin Certificate is
delivered by the Company to the Banks pursuant to subsection 6.1(c), shall
be .375%;
(iv) if the Applicable Margin Certificate required pursuant to
subsection 6.1(c) for any fiscal quarter of the Company ending after [June
30, 1999] shows that the Total Indebtedness/EBITDA Ratio on the last day of
such fiscal quarter was greater than 2.5 to 1, then the commitment fee for
the Revolving Credit Commitment, during the period beginning on (and
including) the date on which such Applicable Margin Certificate was
delivered by the Company to the Banks and ending on (and excluding) the
date on which the next Applicable Margin Certificate is delivered by the
Company to the Banks pursuant to subsection 6.1(c), shall be .50%;
provided, that the commitment fee for the Revolving Credit Commitment
for the period from the Closing Date until (and excluding) the date on
which the Company delivers to the Banks the Applicable Margin Certificate
for the fiscal quarter of the Company ended September 30, 1999, shall be
.50%; provided, further, if the Company shall fail to deliver the
Applicable Margin Certificate by the end of the fiscal quarter in which it
is required, the commitment fee for the Revolving Credit Commitment for the
next fiscal quarter shall be as provided in clause (iv) above.
The commitment fees with respect to the Revolving Credit Commitments shall
be payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing September 30, 1999, and on the Revolving
Credit Termination Date or such earlier date as the Revolving Credit Commitments
shall terminate as provided herein."
(c) Subsection 4.6 of the Credit Agreement is hereby amended and
supplemented by the addition of a new sentence to appear at the end of
subsection 4.6(d) which shall read in its entirety as follows:
"If all or any portion of interest due on any of the Revolving Credit Loans
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise) or if all or any portion of any fee due in connection with this
Agreement or any of the Revolving Credit Loans shall not be paid when due, then
any such overdue amount shall bear interest at a rate per annum which is 2%
above the Alternate Base Rate plus the Applicable Margin from the date of such
non-payment until paid in full (as well as after as before judgment)."
2.4 Amendments to Section 5. Subsection 5.22 is hereby amended by deleting
the date "March 31, 1999" therefrom and substituting therefor the date September
30, 1999".
2.5 Amendments to Section 6. Subsection 6.1(c) is hereby amended in its
entirety to read as follows: "6.1(c) Applicable Margin Certificates. (i) Within
45 days after the end of each fiscal quarter of the Company, a certificate of
the principal financial officer of the Company showing in detail the
computations necessary to calculate the Applicable Margin (an "Applicable Margin
Certificate"), and (ii) an Applicable Margin Certificate as soon as practicable
following the obtaining of, and each change in, a current senior unsecured debt
rating referenced in the last proviso contained in the definition of "Applicable
Margin" set forth in subsection 1.1."
2.6 Amendments to Section 7.
(a) Subsection 7.1 of the Credit Agreement is hereby amended as follows:
(i) Clause (g) of subsection 7.1 is hereby amended by deleting the word
"and" found at the end thereof.
(ii) Clause (h) of subsection 7.1 is hereby amended by deleting the
period(.) found at the end thereof and substituting therefor ";".
(iii) Subsection 7.1 is hereby amended and supplemented by adding thereto
two (2) new clauses, to be clauses (i) and (j) reading in their entirety as
follows:
"(i) Debt arising out of or pursuant to that certain Credit Agreement
dated July 28, 1999, by and among the Company, the Agent and the several
banks party thereto, as the same may from time to time be amended or
supplemented, up to the aggregate principal amount of $350,000,000 at any
one time outstanding; and
(j) Debt arising out of or pursuant to the issuance by the Company of
senior unsecured notes up to and including the aggregate principal amount
of $350,000,000, the Net Cash Proceeds of which shall be used by the
Company to make the mandatory prepayment required by subsection 4.1(a).
(b) Subsection 7.2 of the Credit Agreement is hereby amended as follows:
(i) Clause (b) of subsection 7.2 is hereby amended by deleting the
word "and" found at the end thereof.
(ii) Clause (c) of subsection 7.2 is hereby amended by deleting the
period (.) found at the end thereof and substituting therefor "; and".
(iii) Subsection 7.2 is hereby amended and supplemented by adding
thereto a new clause (d), reading in its entirety as follows:
"(d) Liens relating to the obligations under the Lease Agreement
referenced in subsection 7.1(g) and the sublease between the Company and
EPCO pertaining thereto."
(c) Subsection 7.3 of the Credit Agreement is hereby amended as follows:
(i) Clause (a) of subsection 7.3 is hereby amended by deleting the
word "and" found at the end thereof.
(ii) Clause (b) of subsection 7.3 is hereby amended by deleting the
period (.) found at the end thereof and substituting therefor "; and".
(iii) Subsection 7.3 is hereby amended and supplemented by adding
thereto a new clause (c), reading in its entirety as follows:
"(c) the Company and any Subsidiary may enter the natural gas
processing business generally as well as through and in connection with the
Tejas Acquisition."
(d) Subsection 7.5 of the Credit Agreement is hereby amended and
supplemented by adding thereto at the end thereof a new clause (iii), reading in
its entirety as follows:
"and (iii) as long as no Default or Event of Default has occurred and
is continuing or would result therefrom, the Company may make Restricted
Payments to the Limited Partner and the General Partner (but only if the
General Partner thereupon contributes such Common Units to the Limited
Partner) in the form of Common Units for purposes in connection with the
Limited Partner's employee deferred compensation plan, not to exceed
500,000 Common Units in the aggregate."
(e) Subsection 7.6 of the Credit Agreement is hereby amended as follows:
(i) Clause (h) of subsection 7.6 is hereby amended by deleting the
word "and" found at the end thereof.
(ii) Clause (i) of subsection 7.6 is hereby amended by changing the
reference thereof to "(m)."
(iii) Subsection 7.6 is hereby amended and supplemented by adding
thereto four (4) new clauses, to be (i), (j), (k) and (l), reading in their
entirety as follows:
"(i) capital contributions or other Investments to consummate the
Tejas Acquisition;
(j) capital contributions or other Investments in connection with the
proposed acquisition of a 263 mile liquids pipeline from Sorrento, Louisiana to
Mt. Belvieu, Texas, an ethane pipeline and an ethane storage well from Shell
Chemical Company or an affiliate thereof;
(k) capital contributions or other Investments to an entity to be owned by
the Company (or a Subsidiary of the Company) and an affiliate of Exxon
Corporation in connection with a new propylene concentrator facility in Baton
Rouge, Louisiana;"
(l) capital contributions or other Investments to consummate the
acquisition of the 50% general partner interest in Mont Belvieu Associates owned
by one or more Affiliates of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Energy Partners L.P.; and"
(iv) The last sentence of Subsection 7.6 is hereby amended in its
entirety to read as follows:
"Notwithstanding the foregoing, the aggregate amount of the capital
contributions or other Investments made in Permitted Joint Ventures
pursuant to paragraphs (e) and (g) above shall not exceed $25,000,000 in
any fiscal year (excluding Investments during fiscal years 1998 and 1999
with respect to the Wilprise Pipeline, the Tristates Pipeline, the Baton
Rouge Fractionator and the NGL Product Chiller)."
(f) Subsection 7.11 is hereby amended and supplemented by adding thereto
the following language at the end thereof:
"and further except for the natural gas processing business."
(g) Subsection 7.21(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(a) Tangible Net Worth. Permit its Consolidated Tangible Net Worth as
of the last day of any fiscal quarter of the Company to be less than
$250,000,000."
(h) Subsection 7.21(c) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(c) Ratio of Total Indebtedness to EBITDA. Permit the Total
Indebtedness/EBITDA Ratio to exceed 3.0 to 1.0 as of the last day of any
fiscal quarter of the Company.
For purposes of clauses (b) and (c) of this subsection, EBITDA shall mean,
at the date of determination occurring on September 30, 1999, the product of (A)
EBITDA for the nine-month period ending September 30, 1999 multiplied by (B)
12/9."
(i) Subsection 7.22 is hereby added to read in its entirety as follows:
"No Hostile Tender Offers. Make any hostile tender offer within the
contemplation of Section 14d of the Securities and Exchange Act of 1934, as
amended, or otherwise."
2.7 Amendments to Section 11.
(a) Clause (ii) of the proviso contained in the first full sentence of
subsection 11.2 of the Credit Agreement is hereby amended in its entirety to
read as follows:
"(ii) change the principal of or decrease the rate of interest on the
Revolving Credit Loans or any fees hereunder,".
(b) Subsection 11.4(c) of the Credit Agreement is hereby amended by
deleting therefrom the proviso contained at the end of the first sentence in
said subsection 11.4(c).
(c) Subsection 11.18 is hereby added to read in its entirety as follows:
"Co-Arrangers, etc. The Co-arrangers, co-agents and documentation
agent, in their capacities as such, shall not have any duties or
responsibilities under or pursuant to this Agreement."
SECTION 3. CONDITIONS
The enforceability of this First Amendment against the Agent and the Banks
is subject to the satisfaction of the following conditions precedent:
3.1 Loan Documents. The Agent shall have received multiple original
counterparts, as requested by the Agent, of this First Amendment executed and
delivered by a duly authorized officer of the Company, the Agent, the
Documentation Agent, and each Bank and otherwise in form and substance
satisfactory to the Agent.
3.2 Company Proceedings of Loan Parties. The Agent shall have received
multiple copies, as requested by the Agent, of the resolutions, in form and
substance reasonably satisfactory to the Agent, of the Board of Directors (or
equivalent body) of the Company, authorizing the execution, delivery and
performance of this First Amendment, each such copy being attached to an
original certificate of the Secretary or an Assistant Secretary of the Company,
dated as of the Effective Date, certifying (i) that the resolutions attached
thereto are true, correct and complete copies of resolutions duly adopted by
written consent or at a meeting of the Board of Directors (or equivalent body),
(ii) that such resolutions constitute all resolutions adopted with respect to
the transactions contemplated hereby, (iii) that such resolutions have not been
amended, modified, revoked or rescinded as of the Effective Date, (iv) that the
Partnership Agreement and the Management Agreement have not been amended or
otherwise modified since the effective date of the Credit Agreement, except
pursuant to any amendments attached thereto, and (v) as to the incumbency and
signature of the officers of the Company executing this First Amendment.
3.3 Representations and Warranties. Except as affected by the transactions
contemplated in the Credit Agreement and this First Amendment, each of the
representations and warranties made by the Company in or pursuant to the Loan
Documents, including the Credit Agreement, shall be true and correct in all
material respects as of the Effective Date, as if made on and as of such date.
3.4 No Default. No Default or Event of Default shall have occurred and be
continuing as of the Effective Date.
3.5 No Change. No event shall have occurred since March 31, 1999, which, in
the reasonable opinion of the Banks, could have a material adverse effect on the
condition (financial or otherwise), business, operations or prospects of the
Company.
3.6 Other Instruments or Documents. The Agent or any Bank or counsel to the
Agent shall receive such other instruments or documents as they may reasonably
request.
3.7 Events. The following events shall have occurred or shall occur
contemporaneously with the execution of this First Amendment:
(a) execution of appropriate documentation evidencing the Debt described in
subsection 7.1(i) of the Credit Agreement, as amended hereby;
(b) execution of the First Amendment to the EPCO Credit Agreement;
(c) execution of a contribution agreement in connection with the Tejas
Acquisition; and
(d) receipt by the applicable Banks of the amendment fee pertaining to this
First Amendment.
SECTION 4. MISCELLANEOUS
4.1 Adoption, Ratification and Confirmation of Credit Agreement. Each of
the Company, the Agent and the Banks does hereby adopt, ratify and confirm the
Credit Agreement, as amended hereby, and acknowledges and agrees that the Credit
Agreement, as amended hereby, is and remains in full force and effect.
4.2 Successors and Assigns. This First Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted pursuant to the Credit Agreement.
4.3 Counterparts. This First Amendment may be executed by one or more of
the parties hereto in any number of separate counterparts, and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument and shall be enforceable as of the Effective Date upon the execution
of one or more counterparts hereof by the Company, the Agent, the Documentation
Agent and the Banks. In this regard, each of the parties hereto acknowledges
that a counterpart of this First Amendment containing a set of counterpart
execution pages reflecting the execution of each party hereto shall be
sufficient to reflect the execution of this First Amendment by each necessary
party hereto and shall constitute one instrument.
4.4 Number and Gender. Whenever the context requires, reference herein made
to the single number shall be understood to include the plural; and likewise,
the plural shall be understood to include the singular. Words denoting sex shall
be construed to include the masculine, feminine and neuter, when such
construction is appropriate; and specific enumeration shall not exclude the
general but shall be construed as cumulative. Definitions of terms defined in
the singular or plural shall be equally applicable to the plural or singular, as
the case may be, unless otherwise indicated.
4.5 Entire Agreement. This First Amendment constitutes the entire agreement
among the parties hereto with respect to the subject hereof. All prior
understandings, statements and agreements, whether written or oral, relating to
the subject hereof are superseded by this First Amendment.
4.6 Invalidity. In the event that any one or more of the provisions
contained in this First Amendment shall for any reason be held invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this First Amendment.
4.7 Titles of Articles, Sections and Subsections. All titles or headings to
Articles, Sections, subsections or other divisions of this First Amendment or
the exhibits hereto, if any, are only for the convenience of the parties and
shall not be construed to have any effect or meaning with respect to the other
content of such Articles, Sections, subsections, other divisions or exhibits,
such other content being controlling as the agreement among the parties hereto.
4.8 Governing Law. This First Amendment shall be deemed to be a contract
made under and shall be governed by and construed in accordance with the
internal laws of the State of New York.
This First Amendment, the Credit Agreement, as amended hereby, the Notes,
and the other Loan Documents represent the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements of the parties.
There are no unwritten or oral agreements between the parties.
[Signatures begin on next page]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the Effective Date.
COMPANY:
ENTERPRISE PRODUCTS OPERATING L.P.
By: Enterprise Products GP, LLC, General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President and Chief
Financial Officer
BANKS AND AGENTS:
THE CHASE MANHATTAN BANK,
Individually as a Bank and as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA,
Individually as a Bank and as Documentation Agent
By: /s/ F.C.H. ▇▇▇▇▇
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Name: F.C.H. ▇▇▇▇▇
Title: Senior Manager Loan Operations
ABN AMRO BANK, NV
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANK OF TOKYO-MITSUBISHI, LTD., HOUSTON AGENCY
By: /s/ ▇. ▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇
Title: Deputy General Manager
CIBC INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
DEN NORSKE BANK ASA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
GUARANTY FEDERAL BANK, F.S.B.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ING (U.S.) CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Associate
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Duly Authorized Signatory
MEESPIERSON CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Bet Hunter
Name: Bet Hunter
Title:
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President & Manager