SECOND AMENDMENT TO 5-YEAR TERM CREDIT AGREEMENT dated as of May 31, 2006 among VALERO LOGISTICS OPERATIONS, L.P., as Borrower, VALERO L.P., JPMORGAN CHASE BANK, N.A., as Administrative Agent, and The Lenders Party Hereto
Exhibit 10.37
EXECUTION COPY
SECOND AMENDMENT
TO
5-YEAR TERM CREDIT AGREEMENT
dated as of
May 31, 2006
among
VALERO LOGISTICS OPERATIONS, L.P.,
as Borrower,
as Borrower,
XXXXXX X.X.,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
as Administrative Agent,
and
The Lenders Party Hereto
SECOND AMENDMENT TO 5-YEAR TERM CREDIT AGREEMENT
THIS SECOND AMENDMENT TO 5-YEAR TERM CREDIT AGREEMENT (this “Second Amendment”) dated
as of May 31, 2006, is among VALERO LOGISTICS OPERATIONS, L.P., a Delaware limited
partnership (the “Borrower”); XXXXXX X.X., a Delaware limited partnership (the
“MLP”); JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, together with
its successors in such capacity, the “Administrative Agent”) for the lenders party to the
Credit Agreement referred to below (collectively, the “Lenders”); and the undersigned
Lenders.
R E C I T A L S
A. The Borrower, the Administrative Agent and the Lenders are parties to that certain 5-Year
Term Credit Agreement dated as of July 1, 2005 (as amended by the First Amendment to 5-Year Term
Credit Agreement dated as of May 15, 2006 among the Borrower, the MLP, the Administrative Agent and
the Lenders party thereto, the “Credit Agreement”), pursuant to which the Lenders have made
certain extensions of credit available to the Borrower.
B. The Borrower has requested and the Lenders have agreed to amend certain provisions of the
Credit Agreement.
C. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. Defined Terms. Each capitalized term used herein but not otherwise defined
herein has the meaning given such term in the Credit Agreement. Unless otherwise indicated, all
references to Sections in this Second Amendment refer to Sections of the Credit Agreement.
Section 2. Amendments to Credit Agreement.
2.1 Amendments to Section 1.01.
(a) The definition of “Agreement” is hereby amended in its entirety to read as
follows:
“Agreement” means this 5-Year Term Credit Agreement, as amended by the
First Amendment and the Second Amendment, as the same may be amended, modified,
supplemented or restated from time to time in accordance herewith.
(b) The grid in the definition of “Applicable Rate” is hereby amended in its
entirety to read as follows:
ABR | Eurodollar | |||||||
Index Debt Ratings: | Spread | Spread | ||||||
Tier 1 |
||||||||
Greater than BBB or Baa2 |
0.00 | % | 0.400 | % | ||||
Tier 2 |
||||||||
BBB or Baa2 |
0.00 | % | 0.550 | % | ||||
Tier 3 |
||||||||
BBB- or Baa3 |
0.000 | % | 0.650 | % | ||||
Tier 4 |
||||||||
BB+ or Ba1 |
0.000 | % | 0.800 | % | ||||
Tier 5 |
||||||||
Less than BB+ or Ba1 |
0.000 | % | 0.950 | % |
(c) The definition of “Consolidated EBITDA” is hereby amended in its entirety
to read as follows:
“Consolidated EBITDA” means, without duplication, as to the MLP and its
Subsidiaries, on a consolidated basis for each Rolling Period, the amount equal to
Consolidated Operating Income for such period (a) plus the following to the extent
deducted from Consolidated Operating Income in such period: (i) depreciation,
amortization and other non-cash charges for such period and (ii) cash distributions
received by the Borrower from Xxxxxx-Belvieu Pipeline Company, and similar joint
ventures, during such period; (b) minus all non-cash income added to Consolidated
Operating Income in such period; and (c) plus any Material Project EBITDA
Adjustments for such period; provided that (i) Consolidated EBITDA shall be
adjusted from time to time as necessary to give pro forma effect to permitted
acquisitions or Investments (other than Joint Venture Interests) or sales of
property by the MLP and its Subsidiaries and (ii) Consolidated EBITDA shall be
adjusted to take into account pro forma synergies as a result of the Acquisition in
an amount equal to (A) $17,500,000 for the Rolling Period ending on September 30,
2005, (B) $15,000,000 for the Rolling Period ending on December 31, 2005, (C)
$10,000,000 for the Rolling Period ending on March 31, 2006 and (D) $5,000,000 for
the Rolling Period ending on June 30, 2006.
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(d) The definition of “Maturity Date” is hereby amended in its entirety to read
as follows:
“Maturity Date” means May 31, 2011, and for any Lender agreeing to
extend its Maturity Date pursuant to Section 2.17, the date on May 31 in each year
thereafter pursuant to which the Maturity Date has been extended, but in no event
later than May 31, 2013.
(e) The following definitions are hereby added where alphabetically appropriate to read
as follows:
“Consenting Lenders” has the meaning set forth in Section 2.17(b).
“Extension Confirmation Date” has the meaning set forth in Section
2.17(b).
“Extension Effective Date” has the meaning set forth in Section
2.17(b).
“Material Project” means each new pipeline, storage facility,
processing plant or other capital expansion project wholly owned by the MLP or its
Subsidiaries, the construction of which commenced after May 31, 2006 and which has a
budgeted capital cost exceeding $25,000,000.
“Material Project EBITDA Adjustments” means, with respect to each
Material Project, (a) for any Rolling Period ending on or prior to the last day of
the fiscal quarter during which the Material Project is completed, a percentage
(based on the then-current completion percentage of the Material Project) of an
amount to be approved by the Required Lenders as the projected Consolidated EBITDA
attributable to such Material Project (such amount to be determined based on
contracts relating to such Material Project, the creditworthiness of the other
parties to such contracts and projected revenues from such contracts, capital costs
and expenses, scheduled completion, and other factors deemed appropriate by the
Lenders) shall be added to actual Consolidated EBITDA for the MLP and its
Subsidiaries for the fiscal quarter in which construction of such Material Project
commences and for each fiscal quarter thereafter until completion of the Material
Project (net of any actual Consolidated EBITDA attributable to such Material Project
following its completion), provided that if construction of the Material
Project is not completed by the scheduled completion date, then the foregoing amount
shall be reduced by the following percentage amounts depending on the period of
delay for completion (based on the period of actual delay or then-estimated delay,
whichever is longer): (i) longer than 90 days, but not more than 180 days, 25%, (ii)
longer than 180 days but not more than 270 days, 50%, and (iii) longer than 270
days, 100%; and (b) for each Rolling Period ending on the last day of the first,
second and third fiscal quarters, respectively, immediately following the fiscal
quarter during which the Material Project is completed, an amount equal to the
projected Consolidated EBITDA attributable to the Material Project for the period
from but excluding the end of such Rolling Period through and including the last day
of the fourth fiscal quarter following the
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fiscal quarter during which the Material Project is completed shall be added to
Consolidated EBITDA for such Rolling Period (net of any actual Consolidated EBITDA
attributable to the Material Project for the period from and including the date of
completion through and including the last day of the fiscal quarter during which the
Material Project is completed). Notwithstanding the foregoing, (i) no such
additions shall be allowed with respect to any Material Project unless not later
than 45 days prior to commencement of construction thereof, the Borrower shall have
delivered to the Administrative Agent and the Lenders written pro forma projections
of Consolidated EBITDA attributable to such Material Project and such other
information and documentation as the Administrative Agent or any Lender may
reasonably request, all in form and substance satisfactory to the Administrative
Agent and the Required Lenders, and (ii) the aggregate amount of all Material
Project EBITDA Adjustments during any period shall be limited to 20% of the total
actual Consolidated EBITDA of the MLP and its Subsidiaries for such period (which
total actual Consolidated EBITDA shall be determined without including any Material
Project EBITDA Adjustments or any adjustments in respect of any acquisitions or
dispositions as provided in the definition of Consolidated EBITDA).
“Responsible Officer” means, as to any Person, the Chief Executive
Officer, the President, any Financial Officer or any Vice President of such Person.
Unless otherwise specified, all references to a Responsible Officer herein shall
mean a Responsible Officer of the Borrower.
“Second Amendment” means the Second Amendment to 5-Year Term Credit
Agreement dated as of May 31, 2006 among the Borrower, the MLP, the Administrative
Agent and the Lenders party thereto.
(f) The definitions of “Consolidated Interest Coverage Ratio” and
“Consolidated Interest Expense” are hereby deleted.
2.2 Amendment to Section 2.16(b). Section 2.16(b) is hereby amended by inserting the
words “, or if any Lender shall fail to agree to extend the Maturity Date pursuant to Section 2.17
if the Required Lenders have agreed to do so,” after the word “hereunder,” and before the word
“then” in the fourth line thereof.
2.3 Amendment to Article II. Article II is hereby amended to add the following new
Section 2.17 to read as follows:
“Section 2.17. Extension of Maturity Date.
(a) Not earlier than 90 days prior to, nor later than 30 days prior to, each
anniversary of May 31, 2006, and on not more than two occasions, the Borrower may, upon
notice to the Administrative Agent (which shall promptly notify the Lenders), request a
one-year extension of the Maturity Date then in effect. Within 30 days of delivery of such
notice, each Lender shall notify the Administrative Agent whether or not it consents to such
extension (which consent may be given or withheld in such Lender’s sole and absolute
discretion). Any Lender not responding within the above time period
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shall be deemed not to have consented to such extension. The Administrative Agent
shall promptly notify the Borrower and the Lenders of the Lenders’ responses.
(b) The Maturity Date shall be extended only if the Required Lenders (calculated
excluding any Lender in default in its obligation to fund Loans hereunder and prior to
giving effect to any replacements of Lenders permitted herein) (the “Consenting
Lenders”) have consented thereto. If so extended, the Maturity Date, as to the
Consenting Lenders, shall be extended to the same date in the year following the Maturity
Date then in effect (such existing Maturity Date being the “Extension Effective
Date”). The Administrative Agent and the Borrower shall promptly confirm to the Lenders
such extension, specifying the date of such confirmation (the “Extension Confirmation
Date”), the Extension Effective Date, and the new Maturity Date (after giving effect to
such extension). As a condition precedent to such extension, the Borrower shall deliver to
the Administrative Agent a certificate of the Borrower dated as of the Extension
Confirmation Date (in sufficient copies for each Lender) signed by a Responsible Officer of
the Borrower (i) certifying and attaching the resolutions adopted by the Borrower approving
or consenting to such extension and (ii) certifying that, (A) before and after giving effect
to such extension, the representations and warranties contained in Article III made by it
are true and correct on and as of the Extension Confirmation Date, except to the extent that
such representations and warranties specifically refer to an earlier date, (B) before and
after giving effect to such extension no Default exists or will exist as of the Extension
Confirmation Date, and (C) since December 31, 2004, no event, development or circumstance
that has had or could reasonably be expected to have a Material Adverse Effect has occurred.
The Borrower shall prepay any Loans outstanding on the Extension Effective Date (and pay
any additional amounts required pursuant to Section 2.13) to the extent necessary to keep
outstanding Loans ratable with any revised and new Applicable Percentages of all the Lenders
effective as of the Extension Effective Date.”
2.4 Amendment to Section 6.01(f). Section 6.01(f) is hereby amended by:
(a) deleting the words “(i) the Consolidated Interest Coverage Ratio set forth in
Section 6.11(a) and (ii)”; and
(b) changing the reference to “Section 6.11(b)” therein to “Section 6.11”.
2.5 Amendments to Section 6.04(f) and (g). Section 6.04(f) and (g) are each hereby
amended by:
(a) deleting the words “, (ii) the Consolidated Interest Coverage Ratio set forth in
Section 6.11(a),”;
(b) renumbering “(iii)” to “(ii)”; and
(c) changing the reference to “Section 6.11(b)” therein to “Section 6.11”.
2.6 Amendment to Section 6.11. Section 6.11 is hereby amended in its entirety to read
as follows:
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“Section 6.11. Financial Condition Covenants. The MLP will not permit at any
time its Consolidated Debt Coverage Ratio to be in excess of (a) 5.00 to 1.00 for any
Rolling Period ending on or before June 30, 2006 and (b) 4.75 to 1.00 for any Rolling Period
ending on or subsequent to September 30, 2006; provided that if at any time the MLP or any
of its Subsidiaries consummates an acquisition (including the Acquisition) for which the MLP
or any of its Subsidiaries has paid aggregate net consideration of at least $100,000,000,
then, for the two Rolling Periods the last day of which immediately follow the date on which
such acquisition is consummated, the numerator of the maximum Consolidated Debt Coverage
Ratio otherwise permitted above shall be increased by 0.5; thereafter, compliance shall be
determined by reverting back to clause (a) or (b) above, as applicable.”
2.7 Amendment to Section 10.02(b). Clause (v) of Section 10.02(b) is hereby amended
by inserting the words “or Section 2.17” after the words “Section 4.01” and before the word “or” in
the second line of such clause (v).
Section 3. Conditions Precedent. This Second Amendment shall not become effective
until the date on which each of the following conditions is satisfied (or waived in accordance with
Section 10.02 of the Credit Agreement) (the “Effective Date”):
3.1 The Administrative Agent and the Lenders shall have received all fees and other amounts
due and payable, if any, in connection with this Second Amendment on or prior to the Effective
Date.
3.2 The Administrative Agent shall have received from all of the Lenders, the Borrower and the
MLP, counterparts (in such number as may be requested by the Administrative Agent) of this Second
Amendment signed on behalf of such Persons.
3.3 The Administrative Agent shall have received such other documents as the Administrative
Agent or special counsel to the Administrative Agent may reasonably request.
3.4 No Default shall have occurred and be continuing, after giving effect to the terms of this
Second Amendment.
Section 4. Miscellaneous.
4.1 Confirmation. The provisions of the Credit Agreement, as amended by this Second
Amendment, shall remain in full force and effect following the effectiveness of this Second
Amendment.
4.2 Ratification and Affirmation; Representations and Warranties. The Borrower and
the MLP each hereby (a) acknowledges the terms of this Second Amendment; (b) ratifies and affirms
its obligations under, and acknowledges, renews and extends its continued liability under, each
Loan Document to which it is a party and agrees that each Loan Document to which it is a party
remains in full force and effect, except as expressly amended hereby, notwithstanding the
amendments contained herein and (c) represents and warrants to the Lenders that as of the date
hereof, after giving effect to the terms of this Second Amendment: (i) all of the representations
and warranties contained in each Loan Document to which it is a party are
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true and correct, unless such representations and warranties are stated to relate to a
specific earlier date, in which case, such representations and warranties shall continue to be true
and correct as of such earlier date and (ii) no Default has occurred and is continuing.
4.3 Loan Document. This Second Amendment is a “Loan Document” as defined and
described in the Credit Agreement and all of the terms and provisions of the Credit Agreement
relating to Loan Documents shall apply hereto.
4.4 Counterparts. This Second 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. Delivery of this Second Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.
4.5 NO ORAL AGREEMENT. THIS SECOND AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR UNWRITTEN ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
4.6 GOVERNING LAW. THIS SECOND AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY
AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
[SIGNATURES BEGIN NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly
executed as of the date first written above.
VALERO LOGISTICS OPERATIONS, L.P. | |||||||||
By: | Xxxxxx XX, Inc., its General Partner | ||||||||
By: | /s/ | Xxxxxx X. Blank | |||||||
Xxxxxx X. Blank | |||||||||
Senior Vice President and | |||||||||
Chief Financial Officer | |||||||||
XXXXXX X.X. | |||||||||
By: | Riverwalk Logistics, L.P., its General Partner | ||||||||
By: | Xxxxxx XX, LLC, its General Partner | ||||||||
By: | /s/ | Xxxxxx X. Blank | |||||||
Xxxxxx X. Blank | |||||||||
Senior Vice President and | |||||||||
Chief Financial Officer |
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JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent |
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By | /s/ Xxxxxx Xxxxxxx | |||
Name: | Xxxxxx Xxxxxxx | |||
Title: | Vice President |
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BARCLAYS BANK PLC, individually and as Syndication Agent |
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By | /s/ Xxxxx Xxxxxxxxxx | |||
Name: | Xxxxx Xxxxxxxxxx | |||
Title: | Director |
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MIZUHO CORPORATE BANK, individually and as Co-Documentation Agent |
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By | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | Deputy General Manager |
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ROYAL BANK OF CANADA, individually and as Co-Documentation Agent |
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By | /s/ Xxx X. XxXxxxxxxxx | |||
Name: | Xxx X. XxXxxxxxxxx | |||
Title: | Authorized Signatory |
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THE ROYAL BANK OF SCOTLAND, plc, individually and as Co-Documentation Agent |
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By | /s/ Xxxxxxx Main | |||
Name: | Xxxxxxx Main | |||
Title: | Managing Director |
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SCOTIABANC INC., individually and as Co-Documentation Agent |
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By | /s/ Xxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxx | |||
Title: | Managing Director |
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SUNTRUST BANK, individually and as Co-Documentation Agent |
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By | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Vice President |
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THE BANK OF TOKYO-MITSUBISHI, LTD., individually and as Managing Agent |
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By | /s/ Xxxxxx Xxxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxxx | |||
Title: | Vice President & Manager |
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BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH |
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By | /s/ Xxxxxxx Xxxxxxxxxxx | |||
Name: | Xxxxxxx Xxxxxxxxxxx | |||
Title: | First Vice President |
By | /s/ Xxxxxx XxXxxxx | |||
Name: | Xxxxxx XxXxxxx | |||
Title: | First Vice President |
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SUMITOMO MITSUI BANKING CORPORATION, individually and as Managing Agent |
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By | /s/ Xxxxxxx X. Xxxx | |||
Name: | Xxxxxxx X. Xxxx | |||
Title: | General Manager |
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BANK OF AMERICA, N.A., individually and as Co-Agent |
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By | /s/ Xxxxxx Xxx | |||
Name: | Xxxxxx Xxx | |||
Title: | Senior Vice President |
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BNP PARIBAS, individually and as Co-Agent |
||||
By | /s/ Xxxx X. Xxx | |||
Name: | Xxxx X. Xxx | |||
Title: | Director |
By | /s/ Xxxxx Xxxxxxxx | |||
Name: | Xxxxx Xxxxxxxx | |||
Title: | Director |
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CITIBANK, N.A., individually and as Co-Agent |
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By | /s/ Xxx X. Xxxxx | |||
Name: | Xxx X. Xxxxx | |||
Title: | Attorney-in-Fact |
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, individually and as Co-Agent |
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By | /s/ Jo Xxx Xxxxxxx | |||
Name: | Jo Xxx Xxxxxxx | |||
Title: | Vice President |
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XXXXXX BROTHERS BANK, FSB |
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By | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Authorized Signatory |
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UBS LOAN FINANCE LLC |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Director, Banking Products Services, US |
By: | /s/ Xxxx X. Xxxx | |||
Name: | Xxxx X. Xxxx | |||
Title: | Associate Director, Banking Products Services, US |
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COMPASS BANK | ||||
By | /s/ Xxxxxx X. Xxxxx | |||
Name: | Xxxxxx X. Xxxxx | |||
Title: | Vice President |
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