Exhibit 10.1
------------
FIRST AMENDMENT
TO
CREDIT AGREEMENT
DATED AS OF
AUGUST 5, 2005
AMONG
KINDER MORGAN ENERGY PARTNERS, L.P.,
AS THE COMPANY,
KINDER MORGAN OPERATING L.P. "B",
AS THE SUBSIDIARY BORROWER,
THE LENDERS PARTY HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT,
CITIBANK, N.A.
AND
JPMORGAN CHASE BANK, N.A.,
AS THE CO-SYNDICATION AGENTS
AND
THE ROYAL BANK OF SCOTLAND PLC
AND
BARCLAYS BANK PLC,
AS THE CO-DOCUMENTATION AGENTS
AND
WACHOVIA CAPITAL MARKETS, LLC
AND
CITIGROUP GLOBAL MARKETS, INC.,
AS JOINT LEAD ARRANGERS
AND
WACHOVIA CAPITAL MARKETS, LLC,
CITIGROUP GLOBAL MARKETS, INC.,
AND
J.P. MORGAN SECURITIES INC.,
AS JOINT BOOK MANAGERS
FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as
of October 28, 2005 is among:
(a) Kinder Morgan Energy Partners, L.P., a Delaware limited
partnership (the "Company");
(b) Kinder Morgan Operating L.P. "B", a Delaware limited partnership
(the "Subsidiary Borrower");
(c) the banks and other financial institutions listed on the
signature pages hereof under the caption "Lender" (collectively, the "Lenders");
(d) Wachovia Bank, National Association, a national banking
association, individually as a Lender and as administrative agent for the
Lenders (in such capacity, the "Administrative Agent");
(e) Citibank, N.A., and JPMorgan Chase Bank, N.A., as Co-Syndication
Agents (the "Co-Syndication Agents"); and
The Royal Bank of Scotland plc, and Barclays Bank PLC, as
Co-Documentation Agents (the "Co-Documentation Agents").
PRELIMINARY STATEMENT
The Company, the Subsidiary Borrower, the Lenders, the
Administrative Agent, the Co-Syndication Agents, and the Co-Documentation
Agents, have entered into a Credit Agreement dated as of August 5, 2005, (as
amended, modified, supplemented and/or restated
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from time to time, the "Credit Agreement"). All capitalized terms defined in the
Credit Agreement and not otherwise defined herein shall have the same meanings
herein as in the Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Company, the Lenders, and the
Administrative Agent hereby agree as follows:
SECTION 1. Amendment to Section 2.12(d) of the Credit Agreement.
Section 2.12(d) of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"The Company agrees to pay to the Administrative Agent for the
account of each Lender at all times when the aggregate outstanding
principal amount of the Committed Loans plus the LC Exposure plus the
aggregate principal amount of outstanding Competitive Loans and the
Swingline Exposure is greater than 50% of the Commitments a utilization
fee (the "Utilization Fee") computed at the Utilization Fee Rate on the
daily amount of the Committed Credit Exposure of such Lender. Accrued
Utilization Fees shall be paid in arrears on the last day of March, June
September and December of Each year, commencing September 30, 2005, and on
the date the Loans are paid in full. All Utilization Fees shall be
computed on the basis of a year of 365 or 366 days, as the case may be,
and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day)."
SECTION 2. Amendment to Section 6.01 of the Credit Agreement.
Section 6.01 of the Credit Agreement is hereby amended by deleting the word
"and" at the end of Section 6.01(b), adding the word "and" at the end of Section
6.01(c) and adding the following new subsection (d):
"(d) Liens in favor of Chevron U.S.A., Inc. granted by Kinder Morgan
Louisiana Pipeline Holding, LLC (the "Grantor"), for the benefit of the
Grantees (as defined in the Purchase Option Agreement dated on or about
October 31, 2005 by and among the Grantor and the Grantees) and securing
the Grantor's obligations thereunder."
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SECTION 3. Conditions of Effectiveness. This Amendment shall become
effective when the Company, the Subsidiary Borrower and all of the Lenders shall
have executed a counterpart hereof and delivered the same to the Administrative
Agent or, in the case of any Lender as to which an executed counterpart hereof
shall not have been so delivered, the Administrative Agent shall have received
written confirmation by telecopy or other similar writing from such Lender of
execution of a counterpart hereof by such Lender.
SECTION 4. Representations and Warranties True; No Default or Event
of Default. The Company hereby represents and warrants to the Administrative
Agent and the Lenders, that after giving effect to the execution and delivery of
this Amendment: (a) the representations and warranties set forth in Article IV
of the Credit Agreement (other than the representation set forth in Section
4.07(c)) and in the other Loan Documents are true and correct in all material
respects as of, and as if such representations and warranties were made on, the
date hereof (unless any such representation and warranty expressly relates to an
earlier date in which event such representation and warranty is true and correct
as of such date); and (b) no event has occurred and is continuing that
constitutes either a Default or an Event of Default.
SECTION 5. Reference to the Credit Agreement and Effect on the Notes
and Other Documents Executed Pursuant to the Credit Agreement.
(a) Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement," "hereunder," "herein," "hereof" or words
of like import shall mean and be a reference to the Credit Agreement, as amended
hereby.
(b) Upon the effectiveness of this Amendment, each reference in the
Notes and the other documents and agreements delivered or to be delivered
pursuant to the Credit Agreement shall mean and be a reference to the Credit
Agreement, as amended hereby.
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(c) The Credit Agreement and the Notes and other documents and
agreements delivered pursuant to the Credit Agreement, as modified by the
amendment referred to above, shall remain in full force and effect and are
hereby ratified and confirmed.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 7. GOVERNING LAW; BINDING EFFECT. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
AND APPLICABLE FEDERAL LAW AND SHALL BE BINDING UPON THE COMPANY, THE
ADMINISTRATIVE AGENT, THE LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 8. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
SECTION 9. ENTIRE AGREEMENT. THIS AMENDMENT, THE CREDIT AGREEMENT
(INCLUDING THE EXHIBITS AND SCHEDULES THERETO), AS AMENDED HEREBY, AND THE OTHER
LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE COMPANY,
THE ADMINISTRATIVE AGENT AND THE LENDERS RELATING TO THE SUBJECT MATTER HEREOF
AND THEREOF AND SUPERSEDE ALL PRIOR PROPOSALS, AGREEMENTS AND UNDERSTANDINGS
RELATING TO SUCH SUBJECT MATTER.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed effective as of the date first stated herein, by their respective
officers thereunto duly authorized.
KINDER MORGAN ENERGY PARTNERS, L.P.,
as the Company
By: Kinder Morgan G.P., Inc.,
its General Partner
By: Kinder Morgan Management, LLC,
its Delegate
By: /s/ Joseph Listengart
-----------------------------
Name: Joseph Listengart
Title: Vice President
KINDER MORGAN OPERATING L.P. "B",
as the Subsidiary Borrower
By: Kinder Morgan G.P., Inc.,
its General Partner
By: Kinder Morgan Management, LLC,
its Delegate
By: /s/ Joseph Listengart
-----------------------------
Name: Joseph Listengart
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION, as the Administrative Agent
and as a Lender
By: /s/ Shannan Townsend
--------------------------------------
Name: Shannan Townsend
Title: Director
CITIBANK, N.A.,
as a Co-Syndication Agent and as a Lender
By: /s/ Simon D. Walker
--------------------------------------
Name: Simon D. Walker
Title: Attorney-In-Fact
JPMORGAN CHASE BANK, N.A.
as a Co-Syndication Agent and as a Lender
By: /s/ Dianne L. Russell
--------------------------------------
Name: Dianne L. Russell
Title: Vice President
THE ROYAL BANK OF SCOTLAND plc,
as a Co-Documentation Agent and as a Lender
By: /s/ Matthew Main
--------------------------------------
Name: Matthew Main
Title: Managing Director
BARCLAYS BANK PLC,
as a Co-Documentation Agent and as a Lender
By: /s/ Nicholas A. Bell
--------------------------------------
Name: Nicholas A. Bell
Title: Director
THE BANK OF TOKOYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
By: /s/ John McGhee
--------------------------------------
Name: John McGhee
Title: Vice President & Manager
SUNTRUST BANK
By: /s/ Joseph M. McCreery
-------------------------------------
Name: Joseph M. McCreery
Title: Vice President
HARRIS NESBITT FINANCING, INC.
By: /s/ Cahal B. Carmody
-------------------------------------
Name: Cahal B. Carmody
Title: Vice President
WILLIAM STREET COMMITMENT CORPORATION
(Recourse only to assets of William Street
Commitment Corporation)
By: /s/ Mark Walton
-------------------------------------
Name: Mark Walton
Title: Assistant Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ William M. Ginn
-------------------------------------
Name: William M. Ginn
Title: General Manager
COMMERZBANK AG,
NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ Andrew Campbell
-------------------------------------
Andrew Campbell
Senior Vice President
By: /s/ Barbara Stacks
------------------------------------
Barbara Stacks
Assistant Vice President
LEHMAN BROTHERS BANK, FSB
By: /s/ Janine M. Shugan
-------------------------------------
Name: Janine M. Shugan
Title: Authorized Signatory
CALYON, NEW YORK BRANCH
By: /s/ Bertrand Cord'homme
-------------------------------------
Name: Bertrand Cord'homme
Title: Director
By: /s/ Michael Willis
-------------------------------------
Name: Michael Willis
Title: Vice President
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Rainer Meier
-------------------------------------
Name: Rainer Meier
Title: Assistant Vice President
By: /s/ Marcus Tarkington
-------------------------------------
Name: Marcus Tarkington
Title: Director
UBS LOAN FINANCE LLC
By: /s/ Joselin Fernandes
------------------------------------
Name: Joselin Fernandes
Title: Associate Director Banking Products
Services, US
By: /s/ Doris Mesa
-------------------------------------
Name: Doris Mesa
Title: Associate Director Banking Products
Services, US
BANK OF AMERICA, N.A.
By: /s/ Gregory B. Hanson
-------------------------------------
Name: Gregory B. Hanson
Title: Vice President
MERRILL LYNCH BANK USA
By: /s/ Louis Alder
------------------------------------
Name: Louis Alder
Title: Director
CREDIT SUISSE, Cayman Islands Branch
By: /s/ Vanessa Gomez
------------------------------------
Name: Vanessa Gomez
Title: Vice President
By: /s/ Nupur Kumar
------------------------------------
Name: Nupur Kumar
Title: Associate
WELLS FARGO BANK TEXAS, N.A.
By: /s/ Stephanie B. Casas
------------------------------------
Name: Stephanie B. Casas
Title: VP