EXHIBIT 10.Q.1
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as
of November 21, 2002 (this "First Amendment"), is entered into among EPN HOLDING
COMPANY, L.P., a Delaware limited partnership (the "Borrower"), BANC ONE CAPITAL
MARKETS, INC. and WACHOVIA BANK, NATIONAL ASSOCIATION, as Co-Syndication Agents,
FLEET NATIONAL BANK and FORTIS CAPITAL CORP., as Co-Documentation Agents, and
JPMORGAN CHASE BANK, as Administrative Agent, and the several banks and other
financial institutions signatories hereto, and shall amend the Amended and
Restated Credit Agreement, dated as of April 8, 2002, as amended and restated
through October 10, 2002 (as amended, supplemented or otherwise modified prior
to the date hereof, the "Credit Agreement"), among the Borrower, the
Co-Borrower, the several banks and other financial institutions (the "Lenders")
parties thereto, Banc One Capital Markets, Inc. and Wachovia Bank, National
Association, as Co-Syndication Agents, Fleet National Bank and Fortis Capital
Corp., as Co-Documentation Agents, and JPMorgan Chase Bank, as Administrative
Agent for the Lenders. Unless otherwise defined or amended herein, capitalized
terms used herein shall have the respective meanings assigned to them in the
Credit Agreement and the other Loan Documents (as defined in the Credit
Agreement).
WHEREAS, El Paso Energy Partners, L.P., a Delaware limited partnership
and the indirect parent of Borrower ("EPN"), has entered into a purchase
agreement with El Paso Corporation ("El Paso") to acquire for approximately
$782,000,000, subject to closing adjustments and satisfaction of certain closing
conditions (the "Proposed San ▇▇▇▇ Acquisition"), the natural gas gathering
system located in the San ▇▇▇▇ Basin of New Mexico; natural gas liquids
transportation and fractionation assets located in Texas; and an oil and natural
gas gathering system located in the offshore deep water regions of the Gulf of
Mexico owned by El Paso (the "San ▇▇▇▇ Assets");
WHEREAS, in connection with the Proposed San ▇▇▇▇ Acquisition and other
proposed capital requirements of EPN, the Borrower desires, among other things,
(i) the ability of EPN to issue additional debt securities representing senior
subordinated debt, (ii) the ability of EPN to issue up to $300,000,000 of senior
secured debt, in the form of a senior secured acquisition term loan to provide a
portion of the funds used as consideration for the Proposed San ▇▇▇▇
Acquisition, (iii) consent to secure the obligations under such senior secured
acquisition term loan on a pari passu basis with the Obligations, the EPN Loan
Obligations, the ▇▇▇▇▇ ▇▇▇▇ Clawback obligations and the Cameron Highway
Clawback (as defined below) obligations by a lien on the Collateral; (iv) to
modify, on a temporary basis, the Leverage Ratio financial condition covenant
under the Credit Agreement, and (v) the ability for the Borrower and its
Subsidiaries to enter into certain hedging arrangements to allow ▇▇▇▇▇▇
appropriate to EPN's and its Subsidiaries' current business operations;
WHEREAS, EPN desires to form a Joint Venture (as defined in the EPN
Credit Agreement) for the construction and financing of an approximately
390-mile crude oil pipeline servicing the offshore deep water regions of the
Gulf of Mexico and fund future additional investments in such Joint Venture (as
defined in the EPN Credit Agreement);
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WHEREAS, the Borrower desires to correct and clarify other matters
related to the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders modify and amend
the Credit Agreement as more fully described herein and consent to certain
modifications and amendments to the EPN Credit Agreement;
WHEREAS, the Lenders are willing to agree to the amendments being
requested by the Borrower, but only on the terms and subject to the conditions
set forth in this First Amendment; and
WHEREAS, each of the signatories hereto is a party to the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Administrative Agent, the Lenders and each of
the other signatories hereto hereby agree as follows:
1. Amendments. The Credit Agreement is hereby amended as follows:
(a) Amendments to Section 1.1.
(i) The following definitions are hereby added
to Section 1.1 of the Credit Agreement where alphabetically
appropriate:
"Cameron Highway": Cameron Highway Oil
Pipeline Company, a Delaware general partnership and
a Joint Venture created by EPN and one or more
Persons that are not Affiliates of EPN to construct,
own and operate the Cameron Highway Oil Pipeline.
"Cameron Highway Clawback": the "clawback"
and similar obligations incurred by EPN and any of
its Restricted Subsidiaries under the Cameron Highway
Financing Documents in an aggregate amount not to
exceed $50,000,000 at any one time outstanding.
"Cameron Highway Financing": the loans made
to Cameron Highway under the Cameron Highway
Financing Documents to finance the construction and
operation of the Cameron Highway Oil Pipeline.
"Cameron Highway Financing Documents": (i)
the Credit Agreement to be entered into among Cameron
Highway, as Borrower, JPMorgan Chase Bank (or another
financial lending institution), individually and as
Administrative Agent, and the lenders party thereto
and (ii) the other financing documents (as identified
therein); in the case of (i) and (ii) above, as
amended, restated, renewed, replaced or otherwise
modified from time to time.
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"Cameron Highway Oil Pipeline": an
approximately 390-mile crude oil pipeline servicing
the offshore deep water regions of the Gulf of
Mexico.
"First Amendment": the First Amendment to
Amended and Restated Credit Agreement dated as of
November 21, 2002 among the Borrower, the Lenders
parties thereto, Banc One Capital Markets, Inc. and
Wachovia Bank, National Association, as
Co-Syndication Agents, Fleet National Bank and Fortis
Capital Corp., as Co-Documentation Agents and
JPMorgan Chase Bank, as Administrative Agent for the
Lenders.
"San ▇▇▇▇ Assets": the natural gas gathering
system located in the San ▇▇▇▇ Basin of New Mexico,
certain natural gas liquids transportation and
fractionation assets located in Texas, and an oil and
natural gas gathering system located in the offshore
deep water regions of the Gulf of Mexico, in each
case to be acquired by EPN from El Paso and certain
of its Affiliates for approximately $782,000,000,
subject to adjustment.
"Senior Secured Acquisition Term Loan
Administrative Agent" shall have the same meaning as
the defined term "Administrative Agent" in the Credit
Agreement evidencing the Senior Secured Acquisition
Term Loan Obligations.
"Senior Secured Acquisition Term Loan
Documents": (i) the Credit Agreement to be entered
into by EPN, EPEPFC and one or more financial lending
institutions, providing up to $300,000,000 of Senior
Secured Acquisition Term Loans, and (ii) the other
financing documents (as identified therein); in the
case of (i) and (ii) above, as amended, restated or
otherwise modified from time to time.
"Senior Secured Acquisition Term Loan
Lenders" shall have the same meaning as the defined
term "Lenders" in the Credit Agreement evidencing the
Senior Secured Acquisition Term Loan Obligations.
"Senior Secured Acquisition Term Loan
Obligations": the obligations and liabilities of EPN
and its Subsidiaries under the Senior Secured
Acquisition Term Loan Documents.
"Senior Secured Acquisition Term Loans": the
loans made to EPN and EPEPFC under the Senior Secured
Acquisition Term Loan Documents on the terms set
forth on Exhibit "A" to the First Amendment for the
purpose of providing funds in connection with the
acquisition of the San ▇▇▇▇ Assets.
"Senior Subordinated Note Indentures": means
(i) the Indenture dated as of May 27, 1999 among EPN,
EPEPFC, certain of their respective Subsidiaries and
the trustee named therein pursuant to which the
10-3/8% Senior Subordinated Notes due 2009 were
issued, (ii) the
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Indenture dated as of May 17, 2001 among EPN, EPEPFC,
certain of their respective Subsidiaries and the
trustee named therein pursuant to which the 8-1/2%
Senior Subordinated Notes due 2011 were issued, and
(iii) any other Indenture pursuant to which Senior
Subordinated Notes are issued, each together with all
instruments and other agreements entered into by EPN,
EPEPFC or such Subsidiaries of EPN in connection
therewith, as each may be amended, supplemented or
otherwise modified from time to time in accordance
with Section 8.9.
"Senior Subordinated Notes" means,
collectively, (i) the 10-3/8% Senior Subordinated
Notes due 2009, (ii) the 8-1/2% Senior Subordinated
Notes due 2011, and (iii) any other senior
subordinated notes having substantially similar
subordination provisions to the subordination
provisions contained in the 8-1/2% Senior
Subordinated Notes due 2011, in each case of EPN and
EPEPFC issued pursuant to a Senior Subordinated Note
Indenture.
(ii) The following definitions in Section 1.1 of
the Credit Agreement are hereby amended and restated in their
entirety as follows:
"Agreement": this Amended and Restated
Credit Agreement, as amended by the First Amendment,
and as further amended, supplemented or otherwise
modified from time to time.
"Applicable Margin": for each Type of Loan,
the rate per annum specified in Annex I attached
hereto, which rate is based on the ratio of
Consolidated Total Indebtedness of the Borrower at
such time to Consolidated EBITDA for the most
recently ended Calculation Period (the "Leverage
Ratio"). The Applicable Margin for any date shall be
determined by reference to the Leverage Ratio as of
the last day of the fiscal quarter most recently
ended as of such date and for the Calculation Period
ended on such last day, and any change (i) shall
become effective upon the delivery to the
Administrative Agent of a certificate of a
Responsible Officer of the Borrower (which
certificate may be delivered prior to delivery of the
relevant financial statements or may be incorporated
in the certificate delivered pursuant to subsection
7.2(b)) with respect to the financial statements to
be delivered pursuant to Section 7.1 for the most
recently ended fiscal quarter (x) setting forth in
reasonable detail the calculation of the Leverage
Ratio at the end of such fiscal quarter and (y)
stating that the signer has reviewed the terms of
this Agreement and other Loan Documents and has made,
or caused to be made under his or her supervision, a
review in reasonable detail of the transactions and
condition of the Borrower and its Subsidiaries during
the accounting period, and that the signer does not
have knowledge of the existence as at the date of
such officers' certificate of any Event of Default or
Default, and (ii) shall apply (A) in the case of the
Alternate Base Rate Loans, to Alternate Base Rate
Loans outstanding on such delivery date or
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made on and after such delivery date and (B) in the
case of the Eurodollar Loans, to Eurodollar Loans
made on and after such delivery date. It is
understood that the foregoing certificate of a
Responsible Officer shall be permitted to be
delivered prior to, but in no event later than, the
time of the actual delivery of the financial
statements required to be delivered pursuant to
Section 7.1. Notwithstanding the foregoing, at any
time during which the Borrower has failed to deliver
the certificate referred to above in this definition
as required under subsection 7.2(b) with respect to a
fiscal quarter following the date the delivery
thereof is due, the Leverage Ratio shall be deemed,
solely for the purposes of this definition, to be
greater than 5.0 to 1.0 until such time as Borrower
shall deliver such compliance certificate; provided,
however, that commencing on the date the Senior
Secured Acquisition Term Loan Obligations are
incurred and ending on the date such Senior Secured
Acquisition Term Loan Obligations are paid in full,
the Applicable Margin shall be (i) 3.50% per annum
with respect to any Eurodollar Loan and (ii) 2.25%
per annum with respect to Alternate Base Rate Loans.
"EPN Credit Agreement": the Sixth Amended
and Restated Credit Agreement, dated as of March 23,
1995, as amended and restated through October 10,
2002, among EPN, EPEPFC, the EPN Lenders party
thereto, Credit Lyonnais New York Branch and Wachovia
Bank, National Association, as co-syndication agents,
Fleet National Bank and Fortis Capital Corp., as
co-documentation agents, and JPMorgan, as
administrative agent, as amended by the First
Amendment to Sixth Amended and Restated Credit
Agreement dated as of November 21, 2002, and as such
agreement may be further amended, supplemented or
otherwise modified from time to time in accordance
with Section 8.9.
"EPN Group Administrative Agents": the
Administrative Agent, the EPNHC Administrative Agent
and, at any time that any Senior Secured Acquisition
Term Loan Obligation is outstanding, the Senior
Secured Acquisition Term Loan Administrative Agent.
"EPN Group Lenders": the Lenders, the EPNHC
Lenders and, at any time that any Senior Secured
Acquisition Term Loan Obligation is outstanding, the
Senior Secured Acquisition Term Loan Lenders.
"Intercreditor Agreement": means (i) prior
to the closing date of the Proposed San ▇▇▇▇
Acquisition, the Intercreditor Agreement dated as of
October 10, 2002, by and among the Administrative
Agent, for the benefit of the Lenders, the EPN
Administrative Agent, for the benefit of the EPN
Lenders, the administrative agent for the lenders in
connection with the ▇▇▇▇▇ ▇▇▇▇ Financing Documents,
for the benefit of the lenders thereunder, and the
Collateral Agent and acknowledged by the Borrower and
EPN and (ii) subsequent to the closing of the
Proposed San ▇▇▇▇ Acquisition, the Amended and
Restated Intercreditor Agreement dated as
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of the closing date of the Proposed San ▇▇▇▇
Acquisition by and among the Administrative Agent,
for the benefit of the Lenders, the EPN
Administrative Agent, for the benefit of the EPN
Lenders, the administrative agent for the lenders in
connection with the ▇▇▇▇▇ ▇▇▇▇ Financing Documents,
for the benefit of the lenders thereunder, the
administrative agent for the lenders in connection
with the Senior Secured Acquisition Term Loan
Documents, for the benefit of the lender thereunder,
and the Collateral Agent and acknowledged by the
Borrower and EPN, in either case as such agreement
may be further amended, modified or supplemented from
time to time, including without limitation, in
connection with the closing of the Cameron Highway
Financing, at which time the administrative agent for
the lenders in connection with the Cameron Highway
Financing, for the benefit of the lenders thereunder,
will become a party to such Intercreditor Agreement;
which Intercreditor Agreement shall provide for the
creation, administration and foreclosure of Liens on
the Collateral on a pari passu basis as described in
subsection 8.3(i).
"Total EPN Group Credit Percentage": as to
any EPN Group Lender at any time, the percentage of
the aggregate EPN Revolving Credit Commitments, EPN
Term Loans, Loans and Senior Secured Acquisition Term
Loans then constituted by its EPN Revolving Credit
Commitment, its EPN Term Loans, its Loans and its
Senior Secured Acquisition Term Loans (it being
agreed that in the case of the termination or
expiration of the EPN Revolving Credit Commitments,
the aggregate EPN Revolving Credit Commitments and
such EPN Lender's EPN Revolving Credit Commitment
shall be determined by reference to the EPN Aggregate
Outstanding Revolving Credit Extensions of Credit of
all EPN Group Lenders and such EPN Group Lender's EPN
Aggregate Outstanding Revolving Credit Extensions of
Credit).
(b) Amendment to Section 7.13 (Agreements Respecting
Unrestricted Subsidiaries). Section 7.13(c) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
(c) Notwithstanding any provision of the Loan
Documents to the contrary (i) the Borrower and the
Subsidiaries of the Borrower that are the Restricted
Subsidiaries may incur Guarantee Obligations
supporting obligations of (A) Gateway that were
assumed by it from Delos in connection with its
formation and the ▇▇▇▇▇ ▇▇▇▇ Financing and (B)
Cameron Highway that were assumed by it from EPN and
its Subsidiaries in connection with its formation and
the Cameron Highway Financing and (ii) the Borrower
and the Subsidiaries of the Borrower that are
Restricted Subsidiaries may incur Guarantee
Obligations (including Guarantee Obligations of which
any lenders under the ▇▇▇▇▇ ▇▇▇▇ Financing Documents
and the Cameron Highway Financing Documents are the
beneficiaries) consisting of guarantees of
performance obligations of
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Unrestricted Subsidiaries as long as such guarantees
do not constitute guarantees of payment.
(c) Amendment to Section 8.1 (Financial Condition
Covenants). Section 8.1(d) of the Credit Agreement is hereby amended
and restated in its entirety as follows:
(d) Leverage Ratio. Permit, on the last
day of any fiscal quarter of EPN, the ratio of (x)
the Consolidated Total Indebtedness (as defined in
the EPN Credit Agreement) at such date to (y) the
Consolidated EBITDA (as defined in the EPN Credit
Agreement) for the Calculation Period ending on such
date to exceed (i) on or prior to December 31, 2003,
5.25 to 1.0 or (ii) after December 31, 2003, 5.0 to
1.0.
(d) Amendments to Section 8.3 (Limitation on Liens).
Section 8.3 is hereby amended as follows:
(i) the word "and" is deleted from the end of
subsection (g) thereof;
(ii) Section 8.3(h) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
(h) the Borrower and its Subsidiaries
that are Restricted Subsidiaries may pledge
on a non-recourse basis (i) their equity
interest in Gateway to secure Indebtedness
of Gateway under the ▇▇▇▇▇ ▇▇▇▇ Financing
Documents and (ii) their equity interest in
Cameron Highway to secure Indebtedness of
Cameron Highway under the Cameron Highway
Financing Documents;
(iii) the following subsection (i) is hereby added
to Section 8.3 of the Credit Agreement:
(i) Liens on the Collateral securing
(i) the EPN Loan Obligations, (ii) the
Senior Secured Acquisition Term Loan
Obligations, and (iii) the Guarantee
Obligations permitted by subsections 8.4(e)
and 8.4(f), in each case on a pari passu
basis with the Liens on the Collateral
securing the Obligations and guarantees
thereof, subject to the terms and provisions
of the Intercreditor Agreement; and
(iv) the following subsection (j) is hereby added
to Section 8.3 of the Credit Agreement:
(j) Liens created pursuant to the Loan
Documents, the EPN Loan Documents and the
Senior Secured Acquisition Term Loan
Documents.
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(e) Amendments to Section 8.4 (Limitation on Guarantee
Obligations). Section 8.4 is hereby amended as follows:
(i) Section 8.4(e) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
(e) Guarantee Obligations of (i) up to
$22,500,000 in the aggregate incurred
pursuant to the ▇▇▇▇▇ ▇▇▇▇ Clawback and (ii)
up to $50,000,000 in the aggregate incurred
pursuant to the Cameron Highway Clawback;
(ii) Section 8.4(f) of the Credit Agreement is
hereby amended and restated in its entirety as follows:
(f) Guarantee Obligations of the
Borrower and of its Subsidiaries that are
Subsidiary Guarantors created pursuant to
the Guarantees, in each case with respect to
the EPN Loan Obligations and the Senior
Secured Acquisition Term Loan Obligations;
and
(f) Amendment to Section 8.9 (Limitation on Optional
Payments and Modifications of Debt Instruments and Other Agreements).
Section 8.9 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
(a) Make any optional payment or
prepayment on, redemption of or purchase of, or
voluntarily defease, or directly or indirectly
voluntarily or optionally purchase, redeem, retire or
otherwise acquire, the Senior Subordinated Notes or
any other Indebtedness or Guarantee Obligations
(other than the Obligations, the EPN Loan Obligations
or the Senior Secured Acquisition Term Loan
Obligations), (b) amend, modify or change, or consent
or agree to any amendment, modification or change to,
any of the terms of the Senior Subordinated Notes or
the Senior Subordinated Note Indentures (other than
any such amendment, modification or change which
would extend the maturity or reduce the amount of any
payment of principal thereof or which would reduce
the rate or extend the date for payment of interest
thereon), (c) amend, modify or change, or consent or
agree to any amendment, modification or change to,
any of the terms of the EPN Loan Documents or the
Senior Secured Acquisition Term Loan Documents
without the written consent of the Required Lenders
(other than any such amendment, modification or
change which would extend the maturity or reduce the
amount of any payment of principal thereof or which
would reduce the rate or extend the date for payment
of interest thereon), (d) amend, modify or change, or
consent or agree to any amendment, modification or
change to, any of the terms of any Indebtedness or
Guarantee Obligations with respect to any
Indebtedness (other than the Senior Subordinated
Notes, the EPN Loan Obligations and the Senior
Secured Acquisition Term Loan Obligations, which
Indebtedness may be amended, modified or changed only
as
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permitted by clauses (b) and (c) above, and the
Obligations, which Indebtedness may be amended,
modified or changed only as permitted by Section 11.1
hereof), other than any such amendment, modification
or change the effect of which (1) would be to extend
the maturity or reduce the amount of any payment of
principal thereof or reduce the rate or extend the
date for payment of interest with respect to such
Indebtedness or Guarantee Obligations and (2)
otherwise could not reasonably be expected to have a
Material Adverse Effect, (e) amend, modify or change,
or consent to any amendment, modification or change
to, any of the terms of, the Partnership Agreement,
the Borrower's certificate of limited partnership or
any Joint Venture Charter, except to the extent the
same could not reasonably be expected to have a
Material Adverse Effect, (f) waive or otherwise
relinquish any of its rights or causes of action
arising out of the Partnership Agreement, the
Borrower's certificate of limited partnership or any
Joint Venture Charter, except to the extent the same
could not reasonably be expected to have a Material
Adverse Effect or (g) designate any Indebtedness as
"Designated Senior Indebtedness" under the Senior
Subordinated Note Indentures without the consent of
the Administrative Agent (other than the Obligations,
the EPN Loan Obligations or the Senior Secured
Acquisition Term Loan Obligations). Notwithstanding
any provision contained in this Section 8.9, the
Borrower and its Subsidiaries that are Restricted
Subsidiaries shall have the absolute right to amend
any Joint Venture Charter to the extent necessary or
reasonably appropriate to evidence the substitution,
replacement or other changes of partners, members or
owners in any Joint Venture not in violation of
Section 8.19 or Section 8.21.
(g) Amendment to Section 8.20 (No Voluntary Termination
of Joint Venture Charters). Section 8.20 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
Section 8.20 No Voluntary Termination of
Joint Venture Charters. Voluntarily terminate or
permit any Subsidiary of the Borrower that is a
Restricted Subsidiary which is a partner in, or owner
of any interest in, any Joint Venture to voluntarily
terminate any Joint Venture Charter and liquidate
such Joint Venture to the extent permitted
thereunder.
(h) Amendment to Section 8.22 (Hedging Transactions).
Section 8.22 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
Section 8.22 Hedging Transactions. Enter
into any interest rate, cross-currency, commodity,
equity or other security, swap, collar or similar
hedging agreement or purchase any option to purchase
or sell or to cap any interest rate, cross-currency,
commodity, equity or other security, in any such
case, other than to hedge risk exposures in the
operation of its
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business, ownership of assets or the management of
its liabilities; provided, however, that such
permitted hedging agreements, including, without
limitation, any Commodity Hedging Programs, shall not
exceed 80% of annual production, volumes, throughput
and any other similar measures related to processing,
transportation, fractionation, compression, gathering
and treating or any other business activities engaged
in by EPN and its Subsidiaries as a whole in their
normal course of business.
(i) Amendments to Article IX (Events of Default). Section
9(e) is hereby amended and restated in its entirety as follows:
(e) (i) Any "Event of Default" under
and as defined in the EPN Credit Agreement shall
occur and be continuing; (ii) any "Event of Default"
under and as defined in the Credit Agreement
evidencing the Senior Secured Acquisition Term Loan
Obligations shall occur and be continuing; or (iii)
any Loan Party or any Subsidiary of the Borrower that
is a Restricted Subsidiary of the Borrower shall (A)
default in any payment of principal of or interest on
any Indebtedness (other than the Loans) or in the
payment of any Guarantee Obligation, beyond the
period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which
such Indebtedness or Guarantee Obligation was
created; or (B) default in the observance or
performance of any other agreement or condition
relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto,
or any other event shall occur or condition exist,
the effect of which default or other event or
condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such
Guarantee Obligation to become payable; provided,
however, that the aggregate principal amount of
Indebtedness and Guarantee Obligations with respect
to which such defaults shall have occurred shall
equal or exceed $5,000,000; or
(j) Amendments to Article XI (Miscellaneous). Article XI
is hereby amended by adding the following new Section 11.20 to the end
of such Article:
Section 11.20. Certain Permitted Transactions.
Notwithstanding any provision in the Loan Documents and
without increasing the obligations of the Lenders under
Article II of this Agreement or under Articles II and III of
the EPN Credit Agreement, EPEPC, EPN and its Subsidiaries
shall have the right to consummate the following transactions:
(a) Petal Gas Storage Facilities. A sale
leaseback arrangement with respect to the Petal Gas
Storage Facilities and intended improvements to be
made thereto in connection with the Firm Storage
Services Agreement
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dated as of December 22, 2000 by and between Petal
Gas Storage and Southern Company Services, Inc.,
provided that the obligations under such arrangement
or guarantee shall not exceed $140,000,000.
(b) El Paso Energy Management Offering. The
transactions and matters described in the El Paso
Energy Management Registration Statements (as such
term is defined in the EPN Credit Agreement, and
collectively, such transactions and matters
hereinafter called the "i-share Transactions"),
including: (i) the offering and sale to the public
and El Paso of shares representing limited liability
company interests; (ii) the offering and sale by EPN
to El Paso Energy Management, L.L.C. ("El Paso Energy
Management") of limited partnership units designated
as "i-units"; (iii) the delegation by EPEPC, in its
capacity as the general partner of EPN, of its
authority (subject to certain approval rights) to
direct the management of EPN; (iv) the payment by El
Paso Energy Management of $0.5 million to El Paso for
certain tax indemnity obligations assumed by El Paso
in connection with the i-share Transactions; (v) the
splitting, from time to time, of the outstanding
i-units contemporaneously with the payment of cash
distributions to the holders of Common Units of EPN;
(vi) the distribution of additional shares to the
holders of El Paso Energy Management shares in
connection with the unit splits described in (b)(v)
above; (vii) the amendment of the G&A Agreement (as
defined in the EPN Credit Agreement) to, among other
things, add El Paso Energy Management as a party and
beneficiary; and (viii) the offering and sale, from
time to time, of additional i-units by EPN and of
additional shares by El Paso Energy Management as
described in the El Paso Energy Management
Registration Statements.
(c) Cameron Highway Transactions.
(i) the contribution by EPN and its
Restricted Subsidiaries to Cameron Highway
of up to $95,000,000, in the aggregate, of
cash and other assets related to the Cameron
Highway Oil Pipeline;
(ii) the pledge by EPN and its
Restricted Subsidiaries of their equity
interests in Cameron Highway to secure
Indebtedness of Cameron Highway incurred in
connection with the Cameron Highway
Financing;
(iii) the incurrence by EPN of the
Cameron Highway Clawback, and the securing
of the Cameron Highway Clawback obligations
by the Collateral on a pari passu basis with
the Obligations, the EPN Loan Obligations,
the ▇▇▇▇▇ ▇▇▇▇ Clawback obligations and the
Senior Secured Acquisition Term Loan
Obligations, subject to the terms and
provisions of the Intercreditor Agreement;
and
11
(iv) the sale or otherwise disposition
of any equity interest in Cameron Highway,
provided that following any such sale or
other disposition, EPN and its Restricted
Subsidiaries, in the aggregate, continue to
hold at least 30% of the outstanding equity
interest in Cameron Highway.
(d) Senior Secured Acquisition Term Loans. The
Senior Secured Acquisition Term Loans on the terms
and conditions set forth on Exhibit "A" to this First
Amendment, including without limitation (i) the
incurrence of the Senior Secured Acquisition Term
Loan Obligations, (ii) the securing of the Senior
Secured Acquisition Term Loan Obligations by the
Collateral on a pari passu basis with the
Obligations, the EPN Loan Obligations, the ▇▇▇▇▇ ▇▇▇▇
Clawback obligations and the Cameron Highway Clawback
obligations, subject to the terms and provisions of
the Intercreditor Agreement, and (iii) the payment,
discharge or other satisfaction of the Senior Secured
Acquisition Term Loan Obligations prior to the stated
maturity thereof.
(k) Amendments to Sections 5.5, 5.6, 5.7, 7.1(d) and (e),
7.2(e), (f), (g) and (h), 7.12 and 8.21 (Sections relating to Joint
Ventures). Each of Sections 5.5, 5.6, 5.7, 7.1(d) and (e), 7.2(e), (f),
(g) and (h), 7.12 and 8.21 of the Credit Agreement is hereby amended by
inserting the words "the Borrower or" in between the words "owned by"
and "a Subsidiary of the Borrower that is a Restricted Subsidiary" in
each instance that the phrase "owned by a Subsidiary of the Borrower
that is a Restricted Subsidiary" appears in such Sections or
subsections.
2. Conditions to Effectiveness. This First Amendment shall become
effective on the date (the "First Amendment Effective Date") on which all of the
following conditions precedent have been satisfied or waived: (i) the Borrower,
the Administrative Agent and the Required Lenders shall have executed and
delivered to the Administrative Agent this First Amendment and (ii) the
Administrative Agent and the Lenders shall have received payment of all fees and
costs payable by the Borrower or EPN, as the case may be, on or before the First
Amendment Effective Date in connection with this First Amendment.
3. Consent to Amendments to EPN Credit Agreement. Each of the
Lenders that has executed and delivered this First Amendment to the
Administrative Agent hereby consents to the amendments, modifications and
changes to the EPN Credit Agreement effected by the First Amendment to Sixth
Amended and Restated Credit Agreement dated as of even date herewith by and
among EPN, EPEPFC, the EPN Lenders party thereto and the EPN Administrative
Agent.
4. Miscellaneous.
(a) Representations and Warranties. After giving effect
to the effectiveness of this First Amendment, the representations and
warranties made by the Loan Parties in the Loan Documents are true and
correct in all material respects on and as of the First Amendment
Effective Date (unless such representations or warranties are stated to
refer to a specific earlier date, in which case such representations
and warranties shall be true
12
and correct in all material respects as of such earlier date) as if
made on and as of the First Amendment Effective Date and no Default or
Event of Default will have occurred and be continuing.
(b) Payment of Expenses. The Borrower agrees to pay or
reimburse the Administrative Agent for all of its out-of-pocket costs
and reasonable expenses incurred in connection with this First
Amendment, any other documents prepared in connection hereby and the
transactions contemplated hereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative
Agent.
(c) No Other Amendments; Confirmation. Except as
expressly amended, modified and supplemented hereby, the provisions of
the Credit Agreement and the other Loan Documents are and shall remain
in full force and effect.
(d) Governing Law. THIS FIRST AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREBY SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
(e) Counterparts. This First Amendment may be executed by
one or more of the parties to this First Amendment on any number of
separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the
same instrument.
[Signature Pages Follow.]
13
IN WITNESS WHEREOF, the parties hereby have caused this First Amendment
to be duly executed and delivered as of the day and year first above written.
THE BORROWER:
EPN HOLDING COMPANY, L.P.
By: EPN GP Holding, L.L.C.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Chief Financial officer
SIGNATURE PAGE-1
THE ADMINISTRATIVE AGENT AND THE LENDERS:
JPMORGAN CHASE BANK, as Administrative
Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE-2
BANK ONE, NA (Main Office Chicago)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
SIGNATURE PAGE-3
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE-4
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
SIGNATURE PAGE-5
FORTIS CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE-6
ARAB BANKING CORPORATION (B.S.C.)
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-7
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE-8
BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President
SIGNATURE PAGE-9
BAYERISCHE HYPO-UND VEREINSBANK AG
(New York Branch)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
SIGNATURE PAGE-10
BNP PARIBAS
By: /s/ ▇▇▇▇ ▇. ▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE-11
CIBC INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
CIBC World Markets Corp. As Agent
SIGNATURE PAGE-12
CITICORP NORTH AMERICA, INC.
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-13
CREDIT SUISSE FIRST BOSTON CAYMAN
ISLANDS BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director Vice President
SIGNATURE PAGE-14
ROYAL BANK OF CANADA
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Manager
SIGNATURE PAGE-15
SOUTHWEST BANK OF TEXAS, N.A.
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE-16
SUNTRUST BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE-17
THE BANK OF NOVA SCOTIA
By: /s/ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇. ▇▇▇▇, Senior Manager
Title: ___________________________________________
SIGNATURE PAGE-18
THE ROYAL BANK OF SCOTLAND plc
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-19
APEX (IDM) CDO I, LTD.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as
Collateral Manager
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-20
ATRIUM CDO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
SIGNATURE PAGE-21
CSAM FUNDING I
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
SIGNATURE PAGE-22
CSAM FUNDING II
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
SIGNATURE PAGE-23
ELC (CAYMAN) LTD. 2000-I
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as
Collateral Manager
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-24
▇▇▇▇▇ CLO LTD. 2000-I
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as
Collateral Manager
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-25
FIRST DOMINION FUNDING I
By: ___________________________________________
Name: ___________________________________________
Title: Authorized Signatory
SIGNATURE PAGE-26
FIRST DOMINION FUNDING II
By: ___________________________________________
Name: ___________________________________________
Title: Authorized Signatory
SIGNATURE PAGE-27
FIRST DOMINION FUNDING III
By: ___________________________________________
Name: ___________________________________________
Title: Authorized Signatory
SIGNATURE PAGE-28
LONGHORN CDO (CAYMAN) LTD
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, L.P.,
as Investment Advisor
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-29
LONGHORN CDO II LTD.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, L.P.,
as Investment Advisor
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-30
LONG LANE MASTER TRUST IV
By: Fleet National Bank, as Trust Administrator
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-31
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-32
SANKATY HIGH YIELD PARTNERS III, LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
SIGNATURE PAGE-33
Sankaty Advisors, LLC as Collateral Manager for
CASTLE HILL II - INGOTS, LTD., as Term Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
SIGNATURE PAGE-33
Sankaty Advisors, LLC as Collateral Manager for
CASTLE HILL I - INGOTS, LTD., as Term Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
SIGNATURE ▇▇▇▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇ ▇▇▇▇) INC.
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
SIGNATURE PAGE-34
Exhibit "A"
Material Terms of Senior Secured Acquisition Term Loans
Borrowers: El Paso Energy Partners, L.P. ("EPN")
El Paso Energy Partners Finance Corporation
Facility: up to $300,000,000 Senior Secured Acquisition Term
Loan
Guarantors: El Paso Energy Partners Company
Each Subsidiary Guarantor
Maturity: May 16, 2004
Security: Sharing of all existing and future collateral on a
pari passu basis with the Obligations, the EPN Loan
Obligations, the ▇▇▇▇▇ ▇▇▇▇ Clawback obligations and
the Cameron Highway Clawback obligations
Rate: Ba1/BB+ LIBOR+3.50% ABR+2.25%
Ba2/BB LIBOR+4.50% ABR+3.25%
Ba3/BB- LIBOR+5.00% ABR+3.75%
Mandatory Prepayment: On a post closing basis: 100% of net proceeds of
equity offerings by EPN (excluding stock option plans
and other standard carve-outs); and
100% of net proceeds of debt offerings by EPN
(excluding EPN Revolving Credit Loans and other
standard carve-outs).
Conditions Precedent: (a) The successful closing of an "Equity
Investment" in an amount equal to not less than
$350,000,000 in proceeds from the issuance and
placement of common units of EPN and/or of Series C
units to El Paso Corporation ("El Paso") either
received by EPN and paid to El Paso or credited by El
Paso to EPN as a portion of the consideration of the
San ▇▇▇▇ Acquisition.
(b) The successful closing and distribution of a
public or private offering of Senior Subordinated
Notes with net proceeds of not less than
$150,000,000, available to EPN as a source of funds
in consummating the San ▇▇▇▇ Acquisition.
(c) Other conditions precedent customary for
financings of this type.
Exhibit "A"