Exhibit 10.31
FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (the "Fifth Amendment to Third Amended and Restated Credit Agreement," or this "Amendment") is entered into effective as of November 5, 2013, among VANGUARD NATURAL GAS, LLC, a Kentucky limited liability company ("Borrower"), and CITIBANK, N.A., as Administrative Agent and L/C Issuer (the "Administrative Agent"), and the financial institutions defined below as the Existing Lenders, and CREDIT SUISSE AG, and PNC BANK NATIONAL ASSOCIATION, as new Lenders ("New Lenders").
R E C I T A L S
A. Borrower, the financial institutions signing as Lenders and Administrative Agent are parties to a Third Amended and Restated Credit Agreement dated as of September 30, 2011, and as amended by a First Amendment to Third Amended and Restated Credit Agreement dated as of November 30, 2011, and as amended by a Second Amendment to Third Amended and Restated Credit Agreement dated as of June 29, 2012, and as amended by a Third Amendment to Third Amended and Restated Credit Agreement dated as of December 31, 2012 and as amended by a Fourth Amendment to Third Amended and Restated Credit Agreement dated as of April 16, 2013 (collectively, the "Original Credit Agreement").
B. Borrower has requested certain amendments to the Original Credit Agreement including the reaffirmation of the Borrowing Base and the addition of the New Lenders to the credit facility created under the Original Credit Agreement. Accordingly, the parties desire to amend the Original Credit Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of these premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Same Terms. All terms used herein which are defined in the Original Credit Agreement shall have the same meanings when used herein, unless the context hereof otherwise requires or provides. In addition, (i) all references in the Loan Documents to the "Agreement" shall mean the Original Credit Agreement, as amended by this Amendment, as the same shall hereafter be amended from time to time, and (ii) all references in the Loan Documents to the "Loan Documents" shall mean the Loan Documents, as amended by this Amendment, the Modification Papers, as the same shall hereafter be amended from time to time. In addition, the following terms have the meanings set forth below:
"Effective Date" means the date on which the conditions specified in Section 2 below are satisfied (or waived in writing by the Administrative Agent).
"Existing Lenders" means Citibank, N.A., Well Fargo Bank, N.A., Credit Agricole Corporate and Investment Bank, Royal Bank of Canada, The Bank of Nova Scotia, Barclays Bank PLC, Bank of Montreal, The Royal Bank of Scotland plc, UBS Loan Finance LLC, JPMorgan Chase Bank, N.A., Deutsche Bank Trust Company Americas, Bank of America, N.A., U.S. Bank National Association,
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Comerica Bank, Fifth Third Bank, Natixis, Morgan Stanley Bank, N.A., Associated Bank, N.A., Capital One, National Association, Canadian Imperial Bank of Commerce, New York Branch, Sumitomo Mitsui Banking Corporation, Whitney Bank, Amegy Bank National Association, Branch Banking and Trust Company.
“Guaranty/Debtor Confirmation Letter” has the meaning set forth in Section 2.C.
"Modification Papers" means this Amendment, the New Notes, the Guaranty/Debtor Confirmation Letters, the No Material Adverse Change Certificate, and each of the other documents and agreements executed in connection with the transactions contemplated by this Amendment.
"New Lenders" has the meaning specified in the opening paragraph.
"New Notes" has the meaning set forth in Section 7 below.
“No Material Adverse Change Certificate” has the meaning set forth in Section 2.E.
2. Conditions Precedent. The obligations, agreements and waivers of Lenders as set forth in this Amendment are subject to the satisfaction (in the opinion of Administrative Agent), unless waived in writing by Administrative Agent, of each of the following conditions:
A. Fifth Amendment to Third Amended and Restated Credit Agreement. This Amendment shall be executed and delivered by each of the parties hereto.
B. Notes. Borrower shall have executed and delivered the New Notes to the New Lenders.
C. Guaranty/Debtor Confirmation Letters. Each Guarantor shall have executed a letter in favor of Administrative Agent (each a "Guaranty/Debtor Confirmation Letter") confirming that the Security Instruments previously executed by it remain in full force and effect to secure the Obligations, as increased by this Amendment.
D. Fees and Expenses. Administrative Agent shall have received payment of all out-of-pocket fees and expenses (including reasonable attorneys' fees and expenses) incurred by Administrative Agent in connection with the preparation, negotiation and execution of the Modification Papers.
E. Representations and Warranties. Administrative Agent shall have received a certificate (the "No Material Adverse Change Certificate") to the effect that all representations and warranties contained herein or in the other Modification Papers or otherwise made in writing in connection herewith or therewith shall be true and correct with the same force and effect as though such representations and warranties have been made on and as of the Effective Date.
F. No Event of Default. No Event of Default exists or will exist as a result of the execution of this Amendment.
3. Amendments to Original Credit Agreement. On the Effective Date, the Original Credit Agreement shall be amended as follows:
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(a) Section 8.01(g) of the Original Credit Agreement shall be amended to read in its entirety as follows:
"(g) Certificate of Insurer -- Insurance Coverage. Upon request of Administrative Agent, a certificate of insurance coverage from each insurer with respect to the insurance required by Section 8.07, in form and substance satisfactory to the Administrative Agent, and, if requested by the Administrative Agent or any Lender, all copies of the applicable policies."
(b) Annex I of the Original Credit Agreement shall be replaced in its entirety with Annex I attached hereto.
4. New Borrowing Base. As of the Effective Date, the Borrowing Base is hereby reaffirmed at $1,300,000,000. The Borrowing Base as reaffirmed will remain in effect until adjusted pursuant to the provisions of Section 2.07 of the Original Credit Agreement.
5. Adjustment of Applicable Percentages of Lenders. The New Lenders have become Lenders upon their execution of the Amendment, and on the Effective Date, the New Lenders shall assume all rights and obligations of a Lender under the Original Credit Agreement, as amended hereby. The Administrative Agent, the Lenders and the Borrower hereby consent to each new Lender's acquisition of an interest in the Aggregate Commitments and its Applicable Percentage. The Lenders have agreed among themselves, in consultation with the Borrower, to reallocate their respective Commitments and Applicable Percentages as set forth on Annex I, and the Administrative Agent and the Borrower hereby consent to such reallocation. The Administrative Agent, the Lenders and the Borrower hereby waive (a) any requirement that an Assignment and Assumption or any other documentation be executed in connection with such reallocation, and (b) the payment of any processing and recordation fee to the Administrative Agent. Notwithstanding the foregoing, the reallocation of the Commitments and Applicable Percentages among the Lenders shall be deemed to have been consummated pursuant to the terms of an Assignment and Assumption attached as Exhibit F to the Original Credit Agreement as if the Lenders had executed an Assignment and Assumption with respect to such reallocation. On the Effective Date, the Commitment and Applicable Percentage of each Lender shall be as set forth on Annex I attached to this Amendment.
6. Concerning the New Lenders.
(a) In connection herewith, each of the Existing Lenders irrevocably sells and assigns to each New Lender, and each New Lender, severally and not jointly, hereby irrevocably purchases and assumes from the Existing Lenders, as of the Effective Date, so much of each Existing Lender's Commitment, outstanding Loans and participations in Letters of Credit, and rights and obligations in its capacity as a Lender under the Original Credit Agreement and any other documents or instruments delivered pursuant thereto (including without limitation any guaranties and, to the extent permitted to be assigned under applicable law, all claims (including without limitation contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity), suits, causes of action and any other right of any Existing Lender against any Person, whether known or unknown, arising under or in connection with the Original Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby), such that each Existing Lender's and each New Lender's Commitment, Applicable Percentage of the outstanding Loans and participations in Letters of Credit, and rights and obligations as a Lender shall be equal to its Applicable Percentage and
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Commitment set forth on Annex I to this Amendment. Each New Lender acknowledges and agrees that the sale and assignment, and purchase and assumption hereunder is without recourse to the Existing Lenders (or any other Lender) and without any warranties whatsoever by the Existing Lenders, any other Lender or the Administrative Agent, except that each Existing Lender represents and warrants to the New Lenders that (i) it is the legal and beneficial owner of the Loans, Letters of Credit, and Commitments being assigned hereunder, free and clear of any lien, encumbrance or any adverse claim, and (ii) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby.
(b) Upon the Effective Date, all Loans and participations in Letters of Credit of the Existing Lenders outstanding immediately prior to the Effective Date shall be, and hereby are, restructured, rearranged, renewed, extended and continued as provided in this Amendment and shall continue as Loans and participations in Letters of Credit of each Existing Lender and each New Lender, respectively, under the Original Credit Agreement.
(c) Each New Lender represents and warrants to the Administrative Agent as follows:
(i) it has received a copy of the Original Credit Agreement, together with copies of the most recent financial statements of the Borrower delivered pursuant thereto;
(ii) it has, independently and without reliance upon any Lender or any related party of the Administrative Agent or any Lender (an "Agent-Related Person") and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or other regulatory laws relating to the transactions contemplated by the Credit Agreement, and made its own decision to enter into the Credit Agreement and to extend credit to the Borrower and the other Loan Parties under the Credit Agreement;
(iii) it will, independently and without reliance upon any Lender or any Agent-Related Person and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under the Credit Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, and other condition and creditworthiness of the Borrower and the other Loan Parties.
(d) Each New Lender acknowledges as follows:
(i) no Lender or any Agent-Related Person has made any representation or warranty to it, and no act by the Administrative Agent hereafter taken, including any consent to and acceptance of any assignment or review of the affairs of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or warranty by any Lender or any Agent-Related Person to any Lender as to any matter, including whether Agent-Related Persons have disclosed material information in their possession;
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(ii) except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent pursuant to the Original Credit Agreement, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come into the possession of any Agent-Related Person; and
(iii) on the Effective Date, subject to the satisfaction of the conditions to effectiveness set forth in Section 2 of this Amendment, it shall be deemed automatically to have become a party to the Original Credit Agreement and have all rights and obligations of a Lender under the Original Credit Agreement and the other Loan Documents as if it were an original Lender signatory thereto.
(e) On the Effective Date, each New Lender agrees to be bound by the terms and conditions set forth in the Original Credit Agreement and the other Loan Documents applicable to the Lenders as if it were an original Lender signatory thereto (and expressly makes the appointment set forth in, and agrees to the obligations imposed under, Article XI of the Original Credit Agreement).
7. New Notes. The New Lenders have become Lenders upon their execution of this Amendment, and, on the Effective Date, the maximum Commitments of all Lenders are now set forth on Annex I to this Amendment. Accordingly, on the Effective Date, Borrower shall issue the following Notes ("New Notes"):
(a) A New Note in the original principal sum equal to the Commitment of Credit Suisse AG as set forth on Annex I of this Amendment.
(b) A New Note in the original principal sum equal to the Commitment of PNC Bank National Association as set forth on Annex I of this Amendment.
8. Certain Representations. Borrower represents and warrants that, as of the Effective Date: (a) Borrower has full power and authority to execute the Modification Papers and the Modification Papers constitute the legal, valid and binding obligation of Borrower enforceable in accordance with their terms, except as enforceability may be limited by general principles of equity and applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting the enforcement of creditors' rights generally; and (b) no authorization, approval, consent or other action by, notice to, or filing with, any governmental authority or other person is required for the execution, delivery and performance by Borrower thereof. In addition, Borrower represents that after giving effect to this Amendment all representations and warranties contained in the Original Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Effective Date as if made on and as of such date except to the extent that any such representation or warranty expressly relates solely to an earlier date, in which case such representation or warranty is true and correct in all material respects as of such earlier date.
9. No Further Amendments. Except as previously amended in writing or as amended hereby, the Original Credit Agreement shall remain unchanged and all provisions shall remain fully effective between the parties.
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10. Acknowledgments and Agreements. Borrower acknowledges that on the date hereof all outstanding Obligations are payable in accordance with their terms, and Borrower waives any defense, offset, counterclaim or recoupment with respect thereto. Borrower, Administrative Agent, Issuing Bank and each Lender do hereby adopt, ratify and confirm the Original Credit Agreement, as amended hereby, and acknowledge and agree that the Original Credit Agreement, as amended hereby, is and remains in full force and effect. Borrower acknowledges and agrees that its liabilities and obligations under the Original Credit Agreement, as amended hereby, and under the Loan Documents, are not impaired in any respect by this Amendment. Any breach of any representations, warranties and covenants under this Amendment shall be an Event of Default under the Original Credit Agreement.
11. Limitation on Agreements. The modifications set forth herein are limited precisely as written and shall not be deemed (a) to be a consent under or a waiver of or an amendment to any other term or condition in the Original Credit Agreement or any of the Loan Documents, or (b) to prejudice any right or rights which Administrative Agent now has or may have in the future under or in connection with the Original Credit Agreement and the Loan Documents, each as amended hereby, or any of the other documents referred to herein or therein. The Modification Papers shall constitute Loan Documents for all purposes.
12. Confirmation of Security. Borrower hereby confirms and agrees that all of the Security Instruments which presently secure the Obligations shall continue to secure, in the same manner and to the same extent provided therein, the payment and performance of the Obligations as described in the Original Credit Agreement as modified by this Amendment.
13. Counterparts. This Amendment may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original, but all of which constitute one instrument. In making proof of this Amendment, it shall not be necessary to produce or account for more than one counterpart thereof signed by each of the parties hereto.
14. Incorporation of Certain Provisions by Reference. The provisions of Section 12.09. of the Original Credit Agreement captioned "GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVER OF JURY TRIAL" are incorporated herein by reference for all purposes.
15. Entirety, Etc. This Amendment and all of the other Loan Documents embody the entire agreement between the parties. THIS AMENDMENT AND ALL OF THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
[This space is left intentionally blank. Signature pages follow.]
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The parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
BORROWER: VANGUARD NATURAL GAS, LLC
By: /s/ Richard Robert
Richard Robert
Executive Vice President
and Chief Financial Officer
and Chief Financial Officer
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ADMINISTRATIVE AGENT: CITIBANK, N.A.
as Administrative Agent
By: /s/ Phil Ballard
Phil Ballard
Vice President
LENDERS: CITIBANK, N.A.
By: /s/ Phil Ballard
Phil Ballard
Vice President
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LENDERS: WELLS FARGO BANK, N.A.
By: /s/ Matt Turner
Name: Matt Turner
Title: Vice President
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LENDERS: CREDIT AGRICOLE CORPORATE &
INVESTMENT BANK
INVESTMENT BANK
By: /s/ Dennis E. Petito
Name: Dennis E. Petito
Title: Managing Director
By: /s/ Michael D. Willis
Name: Michael D. Willis
Title: Managing Director
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LENDERS: ROYAL BANK OF CANADA
By: /s/ Kristan Spivey
Name: Kristan Spivey
Title: Authorized Signatory
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LENDERS: THE BANK OF NOVA SCOTIA
By: /s/ Terry Donovan
Name: Terry Donovan
Title: Managing Director
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LENDERS: BARCLAYS BANK PLC
By: /s/ Vanessa A. Kurbatskiy
Name: Vanessa A. Kurbatskiy
Title: Vice President
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LENDERS: BANK OF MONTREAL
By: /s/ Kevin Utsey
Name: Kevin Utsey
Title: Director
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LENDERS: THE ROYAL BANK OF SCOTLAND plc
By: /s/ Sanjay Remond
Name: Sanjay Remond
Title: Authorized Signatory
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LENDERS: UBS LOAN FINANCE LLC
By: /s/ Lana Gifas
Name: Lana Gifas
Title: Director
By: /s/ Jennifer Anderson
Name: Jennifer Anderson
Title: Associate Director
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LENDERS: JPMORGAN CHASE BANK, N.A.
By: /s/ Ryan Aman
Name: Ryan Aman
Title: Authorized Officer
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| LENDERS: | DEUTSCHE BANK TRUST COMPANY AMERICAS |
By: /s/ Michael Getz
Name: Michael Getz
Title: Vice President
By: /s/ Dusan Lazarov
Name: Dusan Lazarov
Title: Director
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LENDERS: BANK OF AMERICA, N.A.
By: /s/ Michael J. Clayborne
Name: Michael J. Clayborne
Title: Vice President
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LENDERS: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Jonathan H. Lee
Name: Jonathan H. Lee
Title: Vice President
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LENDERS: COMERICA BANK
By: /s/ William Robinson
Name: William Robinson
Title: Vice President
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LENDERS: FIFTH THIRD BANK
By: /s/ Richard C. Butler
Name: Richard C. Butler
Title: Senior Vice President
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LENDERS: NATIXIS
By: /s/ Kenyatta Gibbs
Name: Kenyatta Gibbs
Title: Director
By: /s/ Timothy L. Polvado
Name: Timothy L. Polvado
Title: Managing Director
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LENDERS: MORGAN STANLEY BANK, N.A.
By: /s/ William Jones
Name: William Jones
Title: Authorized Signatory
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LENDERS: ASSOCIATED BANK, N.A.
By: /s/ Kyle Lewis
Name: Kyle Lewis
Title: AVP
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LENDERS: CAPITAL ONE, NATIONAL ASSOCIATION
By: /s/ Scott Joyce
Name: Scott Joyce
Title: Managing Director
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| LENDERS: | CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH. |
By: /s/ Richard Antl
Name: Richard Antl
Title: Director
By: /s/ Jonathan J. Kim
Name: Jonathan J. Kim
Title: Executive Director
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LENDERS: SUMITOMO MITSUI BANKING CORPORATION
By: /s/ James D. Weinstein
Name: James D. Weinstein
Title: Managing Director
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LENDERS: WHITNEY BANK
By: /s/ Liana Tchernysheva
Name: Liana Tchernysheva
Title: Senior Vice President
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LENDERS: AMEGY BANK NATIONAL ASSOCIATION
By: /s/ Thomas Kleiderer
Name: Thomas Kleiderer
Title: Vice President
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LENDERS: BRANCH BANKING AND TRUST COMPANY
By: /s/ Deanna Breland
Name: Deanna Breland
Title: Senior Vice President
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LENDERS: CREDIT SUISSE AG, Cayman Islands Branch
By: /s/ Nupur Kumar
Name: Nupur Kumar
Title: Authorized Signatory
By: /s/ Michael Spaight
Name: Michael Spaight
Title: Authorized Signatory
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LENDERS: PNC BANK NATIONAL ASSOCIATION
By: /s/ Tom Byargeon
Name: Tom Byargeon
Title: Managing Director
ANNEX I
List of Commitments as of Effective Date of Fifth Amendment
List of Commitments as of Effective Date of Fifth Amendment
| Name of Lender | Applicable Percentage | Commitment |
| Citibank, N.A. | 5.154% | $67,000,000 |
| Wells Fargo Bank, N.A. | 6.565% | $85,344,809 |
| Bank of America, N.A. | 4.769% | $62,000,000 |
| Bank of Montreal | 4.769% | $62,000,000 |
| Barclays Bank PLC | 4.769% | $62,000,000 |
| Credit Agricole Corporate & Investment Bank | 4.769% | $62,000,000 |
| Deutsche Bank Trust Company Americas | 4.769% | $62,000,000 |
| JPMorgan Chase Bank, N.A. | 4.769% | $62,000,000 |
| Royal Bank of Canada | 4.769% | $62,000,000 |
| The Bank of Nova Scotia | 4.769% | $62,000,000 |
| The Royal Bank of Scotland | 4.769% | $62,000,000 |
| U.S. Bank National Association | 4.769% | $62,000,000 |
| UBS Loan Finance LLC | 4.769% | $62,000,000 |
| Credit Suisse AG | 4.385% | $57,000,000 |
| Comerica Bank | 3.308% | $43,000,000 |
| Fifth Third Bank | 3.308% | $43,000,000 |
| Morgan Stanley Bank, N.A. | 3.308% | $43,000,000 |
| Natixis | 3.308% | $43,000,000 |
| Sumitomo Mitsui Banking Corporation | 3.308% | $43,000,000 |
| Amegy Bank National Association | 2.146% | $27,900,179 |
| Associated Bank, N.A. | 2.146% | $27,900,179 |
| Capital One, National Association | 2.146% | $27,900,179 |
| Canadian Imperial Bank of Commerce, New York Branch | 2.146% | $27,900,179 |
| PNC Bank National Association | 2.146% | $27,900,170 |
| Whitney Bank | 2.146% | $27,900,179 |
| Branch Banking and Trust Company | 2.020% | $26,254,115 |
| TOTAL | 100% | $1,300,000,000 |
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