FIRST AMENDMENT
TO
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of December 21, 1998 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) Kinder Morgan Operating L.P. "A", a Delaware limited partnership
("OLP `A'"); Kinder Morgan Operating L.P. "C", a Delaware limited partnership
("OLP `C'"); Kinder Morgan Operating L.P. "D", a Delaware limited partnership
("OLP `D'"); Kinder Morgan Natural Gas Liquids Corporation, a Delaware
corporation ("KMNGL"); Kinder Morgan CO2 LLC, a Delaware limited liability
company ("KMCO2"); and Kinder Morgan Bulk Terminals, Inc., a Louisiana
corporation ("KMBT", and together with OLP "A", OLP "C", OLP "D", KMNGL, KMCO2,
and the Subsidiary Borrower in its capacity as a guarantor pursuant to Article X
of the Credit Agreement (as defined below), collectively, the "Subsidiary
Guarantors");
(d) the banks and other financial institutions listed on the
signature pages hereof under the caption "Continuing Lender", (collectively, the
"Lenders"); and
(e) First Union National Bank, a national banking association,
individually as a Lender, as an arranger (in such capacity, the "Arranger"), as
a syndication agent for the other Lenders (in such capacity, the "Syndication
Agent"), as the issuing bank (in such capacity, the
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"Issuing Bank"), as the swingline lender (in such capacity, the "Swingline
Lender") and as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
PRELIMINARY STATEMENT
---------------------
The Company, the Subsidiary Borrower, the Subsidiary Guarantors,
the Lenders , the Syndication Agent, the Arranger, the Issuing Bank, the
Swingline Lender, and the Administrative Agent have entered into an Amended and
Restated Credit Agreement dated as of December 1, 1998 (as so amended and
restated, and as amended, modified, supplemented and/or restated 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. The Company, the Subsidiary Borrower, the Subsidiary
Guarantors, the Lenders, the Syndication Agent, the Arranger, the Issuing Bank,
the Swingline Lender, and the Administrative Agent have agreed, upon the terms
and conditions specified herein, to amend the Credit Agreement as hereinafter
set forth:
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 Subsidiary Borrower, the
Subsidiary Guarantors, the Lenders, the Syndication Agent, the Arranger, the
Issuing Bank, the Swingline Lender, and the Administrative Agent hereby agree as
follows:
SECTION 1. Amendment to Section 1.01, Defined Terms, of the Credit
Agreement. The definition of the term "Restricted Payment" contained in Section
1.01 of the Credit Agreement is hereby deleted in its entirety and the following
substituted therefor:
"Restricted Payment" means any distribution (whether in cash,
securities or other property) with respect to any partnership interest
in the Company, or any payment (whether in cash, securities or other
property), including any deposit, on
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account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such partnership interest or any
option or other right to acquire any such partnership interest;
provided, however, (A) that distributions with respect to the
partnership interests in the Company that do not exceed, with respect
to any fiscal quarter of the Company, the amount of Available Cash
for such quarter shall not constitute Restricted Payments so long as
in each case, both before and after the making of such distribution,
no Event of Default or Default shall have occurred and be continuing,
(B) that any partnership interest split, partnership interest reverse
split, dividend of Company partnership interests or similar
transaction will not constitute a Restricted Payment, and (C) that
the application by the Company of an aggregate amount not in excess
of $20,000,000.00 to the purchase, redemption, retirement,
cancellation, or termination of partnership interests in the Company
will not constitute a Restricted Payment, so long as, both before and
after any such purchase, redemption, retirement, cancellation, or
termination, no Event of Default or Default shall have occurred and
be continuing.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective when the Company, the Subsidiary Borrower, the Subsidiary Guarantors,
and the Required 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 3. Representations and Warranties True; No Default or Event
of Default. The Company hereby represents and warrants to the Administrative
Agent, the Lenders, the Arranger, the Issuing Bank, the Swingline Lender, and
the Syndication Agent that after giving effect to the execution and delivery of
this Amendment: (a) the representations and warranties set forth in the Credit
Agreement are true and correct on the date hereof as though made on and as of
such date, and (b) no event has occurred and is continuing that constitutes
either a Default or an Event of Default.
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SECTION 4. 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.
(c) The Credit Agreement and the Notes and other documents and
agreements delivered pursuant to the Credit Agreement, and modified by the
amendment referred to above, shall remain in full force and effect and are
hereby ratified and confirmed.
SECTION 5. 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 6. 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 SUBSIDIARY
BORROWER, THE SUBSIDIARY GUARANTORS, THE ADMINISTRATIVE AGENT, THE SYNDICATION
AGENT, THE ARRANGER, THE ISSUING BANK, THE SWINGLINE LENDER, AND THE LENDERS AND
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
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SECTION 7. 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 8. ENTIRE AGREEMENT. THIS AMENDMENT, THE CREDIT AGREEMENT
(INCLUDING THE EXHIBITS AND SCHEDULES THERETO), AS AMENDED HEREBY, THE COMPANY,
SUBSIDIARY BORROWER, AND SUBSIDIARY GUARANTORS COUNTERPARTS, IF ANY, THE
ASSIGNMENT AND ACCEPTANCES, IF ANY, THE LOAN DOCUMENTS, AND THE FEE LETTER
EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE COMPANY, THE SUBSIDIARY
BORROWER, THE SUBSIDIARY GUARANTORS, THE ADMINISTRATIVE AGENT, THE SYNDICATION
AGENT, THE ARRANGER, THE ISSUING BANK, THE SWINGLINE LENDER, 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: /s/ David G. Dehaemers, Jr.
__________________________________
Name: David G. Dehaemers, Jr.
Title: Chief Financial Officer
Address for Notices:
-------------------
1301 McKinney Street
Suite 3450
Houston, Texas 77010
Telecopier No.: (713) 844-9570
Telephone No.: (713) 844-9500
Attention: David G. Dehaemers, Jr.
Chief Executive Office and Principal Place
of Business:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
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KINDER MORGAN OPERATING L.P. "B",
as the Subsidiary Borrower and as a Subsidiary
Guarantor
By: Kinder Morgan G.P., Inc.,
its General Partner
By: /s/ David G. Dehaemers, Jr.
__________________________________
Name: David G. Dehaemers, Jr.
Title: Chief Financial Officer
Address for Notices:
-------------------
1301 McKinney Street
Suite 3450
Houston, Texas 77010
Telecopier No.: (713) 844-9570
Telephone No.: (713) 844-9500
Attention: David G. Dehaemers, Jr.
Chief Executive Office and Principal Place
of Business:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
-7-
KINDER MORGAN OPERATING L.P. "A",
as a Subsidiary Guarantor
By: Kinder Morgan G.P., Inc.,
its General Partner
By: /s/ David G. Dehaemers, Jr.
__________________________________
Name: David G. Dehaemers, Jr.
Title: Chief Financial Officer
Address for Notices:
-------------------
1301 McKinney Street
Suite 3450
Houston, Texas 77010
Telecopier No.: (713) 844-9570
Telephone No.: (713) 844-9500
Attention: David G. Dehaemers, Jr.
Chief Executive Office and Principal Place
of Business:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
-8-
KINDER MORGAN OPERATING L.P. "C",
as a Subsidiary Guarantor
By: Kinder Morgan G.P., Inc.,
its General Partner
By: /s/ David G. Dehaemers, Jr.
__________________________________
Name: David G. Dehaemers, Jr.
Title: Chief Financial Officer
Address for Notices:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
Telecopier No.: (713) 844-9570
Telephone No.: (713) 844-9500
Attention: David G. Dehaemers, Jr.
Chief Executive Office and Principal Place
of Business:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
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KINDER MORGAN OPERATING L.P. "D",
as a Subsidiary Guarantor
By: Kinder Morgan G.P., Inc.,
its General Partner
By: /s/ David G. Dehaemers, Jr.
__________________________________
Name: David G. Dehaemers, Jr.
Title: Chief Financial Officer
Address for Notices:
-------------------
1301 McKinney Street
Suite 3450
Houston, Texas 77010
Telecopier No.: (713) 844-9570
Telephone No.: (713) 844-9500
Attention: David G. Dehaemers, Jr.
Chief Executive Office and Principal Place
of Business:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
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KINDER MORGAN NATURAL GAS LIQUIDS CORPORATION,
as a Subsidiary Guarantor
By: /s/ David G. Dehaemers, Jr.
________________________________________
Name: David G. Dehaemers, Jr.
Title: Chief Financial Officer
Address for Notices:
-------------------
1301 McKinney Street
Suite 3450
Houston, Texas 77010
Telecopier No.: (713) 844-9570
Telephone No.: (713) 844-9500
Attention: David G. Dehaemers, Jr.
Chief Executive Office and Principal Place
of Business:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
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KINDER MORGAN BULK TERMINALS, INC.,
as a Subsidiary Guarantor
By: /s/ David G. Dehaemers, Jr.
________________________________________
Name: David G. Dehaemers, Jr.
Title: Chief Financial Officer
Address for Notices:
-------------------
1301 McKinney Street
Suite 3450
Houston, Texas 77010
Telecopier No.: (713) 844-9570
Telephone No.: (713) 844-9500
Attention: David G. Dehaemers, Jr.
Chief Executive Office and Principal Place
of Business:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
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KINDER MORGAN CO2, LLC,
as a Subsidiary Guarantor
By: Kinder Morgan Operating L.P. "A",
its Sole Member
By: Kinder Morgan G.P., Inc.,
its General Partner
By: /s/ David G. Dehaemers, Jr.
__________________________________
Name: David G. Dehaemers, Jr.
Title: Chief Financial Officer
Address for Notices:
-------------------
1301 McKinney Street
Suite 3450
Houston, Texas 77010
Telecopier No.: (713) 844-9570
Telephone No.: (713) 844-9500
Attention: David G. Dehaemers, Jr.
Chief Executive Office and Principal Place
of Business:
1301 McKinney Street
Suite 3450
Houston, Texas 77010
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CONTINUING LENDER:
Revolving Loan Commitment: FIRST UNION NATIONAL BANK, as the Arranger,
$47,000,000.00 the Syndication Agent, Administrative Agent,
the Issuing Bank, the Swingline Lender and
as a Lender
By: /s/ Paul N. Riddle
____________________________________
Name: Paul N. Riddle
Title: Senior Vice President
Address for Notices:
-------------------
First Union National Bank
301 South College Street, TW-10
Charlotte, North Carolina 28288-0608
Telecopier No.: (704) 383-0288
Telephone No.: (704) 383-0281
Attention: Syndication Agency Services
With copy to:
------------
First Union Capital Markets Corp.
1001 Fannin, Suite 2255
Houston, Texas 77002
Telecopier No.: (713) 650-6354
Telephone No.: (713) 650-3716
Attention: Paul N. Riddle
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CONTINUING LENDER:
Revolving Loan Commitment: GOLDMAN SACHS CREDIT PARTNERS L.P.
$8,000,000.00
By: /s/ Stephen B. King
____________________________________
Name: Stephen B. King
Title: Authorized Signatory
Address for Notices:
-------------------
Goldman Sachs & Co.
85 Broad Street, 15th Floor
New York, New York 10004
Telecopier No.: (212) 357-0932
Telephone No.: (212) 902-8123
Attention: Stephen B. King
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CONTINUING LENDER:
Revolving Loan Commitment: BANK OF AMERICA NATIONAL TRUST
$10,000,000.00 AND SAVINGS ASSOCIATION
By: /s/ Daryl G. Patterson
____________________________________
Name: Daryl G. Patterson
Title: Vice President
Address for Notices:
-------------------
Bank of America NT&SA
1850 Gateway Blvd.
Concord, California 94520
Telecopier No.: (510) 603-7243
Telephone No.: (510) 675-7148
Attention: Laurie Warner
With copy to:
------------
Pamela K. Rodgers
Bank of America NT&SA
333 Clay Street, Suite 4550
Houston, Texas 77002
Telecopier No.: (713) 651-4808
Telephone No.: (713) 651-4880
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CONTINUING LENDER:
Revolving Loan Commitment: BANK OF MONTREAL
$12,500,000.00
By: /s/ Cathal B. Carmody
____________________________________
Name: Cathal B. Carmody
Title: Director
Address for Notices:
-------------------
Bank of Montreal
700 Louisiana Street
Suite 4400
Houston, Texas 77002
Telecopier No.: (713) 223-4007
Telephone No.: (713) 546-9750
Attention: Cahal B. Carmody, Director
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CONTINUING LENDER:
Revolving Loan Commitment: BANK OF SCOTLAND
$20,000,000.00
By: /s/ Annie Chin Tat
____________________________________
Name: Annie Chin Tat
Title: Senior Vice President
Address for Notices:
-------------------
Bank of Scotland
565 Fifth Avenue
New York, New York 10017
Telecopier No.: (212) 557-9460
Telephone No.: (212) 450-0871
Attention: Annie Chin Tat
With copy to:
------------
Bank of Scotland
1750 Two Allen Center
1200 Smith Street
Houston, Texas 77002-4312
Telecopier No.: (713) 651-9714
Telephone No.: (713) 651-1870
Attention: Janna Blanter
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CONTINUING LENDER:
Revolving Loan Commitment: PARIBAS
$12,500,000.00
By: /s/ Barton D. Schouest
____________________________________
Name: Barton D. Schouest
Title: Managing Director
By: /s/ Betsy R. Jocher
____________________________________
Name: Betsy R. Jocher
Title: Assistant Vice President
Address for Notices:
-------------------
Paribas
1200 Smith Street, Suite 3100
Houston, Texas 77002
Telecopier No.: (713) 659-6915
Telephone No.: (713) 659-4811
Attention: Marian Livingston
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CONTINUING LENDER:
Revolving Loan Commitment: BARCLAYS BANK PLC
$22,000,000.00
By: /s/ J. Onischuk
____________________________________
Name: J. Onischuk
Title: Associate Director
Address for Notices:
-------------------
Barclays Bank PLC
222 Broadway
New York, New York 10038
Telecopier No.: (212) 412-7585
Telephone No.: (212) 412-7584
Attention: J. Onischuk
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CONTINUING LENDER:
Revolving Loan Commitment: CIBC INC.
$10,000,000.00
By: /s/ Roger Colden
____________________________________
Name: Roger Colden
Title: Executive Director
CIBC Oppenheimer Corp.
As Agent
Address for Notices:
-------------------
CIBC, Inc.
Two Paces West, Suite 1200
Two Paces Ferry Road
Atlanta, Georgia 30339
Telecopier No.: (770) 319-4950
Telephone No.: (770) 319-4821
Attention: Kanthryn S. McGovern
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CONTINUING LENDER:
Revolving Loan Commitment: COMMERZBANK AG, ATLANTA AGENCY
$10,000,000.00
By: /s/ Harry P. Yergey
____________________________________
Name: Harry P. Yergey
Title: SVP & Manager
By: /s/ W. David Suttles
____________________________________
Name: W. David Suttles
Title: Vice President
Address for Notices:
-------------------
Commerzbank AG, Atlanta Agency
Prominade 2, Suite 3500
1230 Peachtree Street, NE
Atlanta, Georgia 30309
Telecopier No.: (404) 888-6539
Telephone No.: (404) 888-6524
Attention: David Suttles, Vice President
With a copy to:
--------------
Dempsey L. Gable, Senior Vice President
Commerzbank AG, New York Branch
2 World Financial Center
New York, New York 10281-1050
Telecopier No.: (212) 266-07530
Telephone No.: (212) 266-7560
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CONTINUING LENDER:
Revolving Loan Commitment: CREDIT LYONNAIS NEW YORK BRANCH
$10,000,000.00
By: /s/ Xavier Ratouis
____________________________________
Name: Xavier Ratouis
Title: Senior Vice President
Address for Notices:
-------------------
Credit Lyonnais Houston Representative
Office
1000 Louisiana, Suite 5360
Houston, Texas 77002
Telecopier No.: (713) 751-0307
Telephone No.: (713) 753-8723
Attention: Bernadette Archie
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CONTINUING LENDER:
Revolving Loan Commitment: THE FIRST NATIONAL BANK OF CHICAGO
$39,000,000.00
By: /s/ Dixon P. Schultz
____________________________________
Name: Dixon P. Schultz
Title: First Vice President
Address for Notices:
-------------------
The First National Bank of Chicago
One First National Plaza
Suite 0634, I-10
Chicago, Illinois 60670
Telecopier No.: (312) 732-4840
Telephone No.: (312) 732-3659
Attention: John Beirne
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CONTINUING LENDER:
Revolving Loan Commitment: NATIONSBANK, N.A., as successor by
$22,000,000.00 merger to NationsBank of Texas, N.A.
By: /s/ Daryl G. Patterson
____________________________________
Name: Daryl G. Patterson
Title: Vice President
Address for Notices:
-------------------
NationsBank N.A.
700 Louisiana
Houston, Texas 77002
Telecopier No.: (713) 247-6568
Telephone No.: (713) 247-6952
Attention: Paul A. Squires
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CONTINUING LENDER:
Revolving Loan Commitment: THE PRUDENTIAL INSURANCE COMPANY
$50,000,000.00 OF AMERICA
By: /s/ Steven D. Arnold
____________________________________
Name: Steven D. Arnold
Title: Vice President
Address for Notices:
-------------------
The Prudential Insurance Company of
America
c/o Prudential Capital Group
Four Gateway Center
100 Mulberry Street
Newark, New Jersey 07102-4869
Telecopier No.: (973) 802-9425
Telephone No.: (973) 802-3141
Attention: Trade Management Manager
With copy to:
The Prudential Insurance Company of
America
c/o Prudential Capital Group
2200 Ross Avenue, Suite 4200 East
Dallas, Texas 75201
Attention: Managing Director
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CONTINUING LENDER:
Revolving Loan Commitment: SOCIETE GENERALE
$22,000,000.00
By: /s/ Richard A. Gould
____________________________________
Name: Richard A. Gould
Title: Director
Address for Notices:
-------------------
Societe Generale
2001 Ross Avenue, Suite 4800
Dallas, Texas 75201
Telecopier No.: (214) 979-0171
Telephone No.: (214) 979-2769
Attention: Lia Guerra
With copy to:
------------
Socie'te' Ge'ne'rale
1111 Bagby, Suite 2020
Houston, Texas 77002
Telecopier No.: (713) 650-0824
Telephone No.: (713) 759-6324
Attention: Richard Gould
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CONTINUING LENDER:
Revolving Loan Commitment: PNC BANK, NATIONAL ASSOCIATION
$10,000,000.00
By: /s/ John R. Way
____________________________________
Name: John R. Way
Title: Assistant Vice President
Address for Notices:
-------------------
249 5th Avenue
Pittsburgh, Pennsylvania 15222
Telecopier No.: (412) 762-2571
Telephone No.: (412) 762-5290
Attention: John R. Way
With a copy to:
Tina Lanuka
Two PNC Plaza, Third Floor
Old Liberty Avenue
Pittsburgh, Pennsylvania 15222
Telecopier: (412) 768-4586
Telephone: (412) 768-5876
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CONTINUING LENDER:
Revolving Loan Commitment: UNION BANK OF CALIFORNIA, N.A.
$10,000,000.00
By: /s/ Gary Shekerjian
____________________________________
Name: Gary Shekerjian
Title: Assistant Vice President
Address for Notices:
-------------------
Union Bank of California, N.A.
Energy Department
500 North Akard St., Suite 4200
Dallas, Texas 75201
Attention: Gary E. Shekerjian
-29
CONTINUING LENDER:
Revolving Loan Commitment: WELLS FARGO BANK (TEXAS), NA
$10,000,000.00
By: /s/ J. Alan Alexander
____________________________________
Name: J. Alan Alexander
Title: Vice President
Address for Notices:
-------------------
Wells Fargo Bank (Texas), NA
Energy Department
1000 Louisiana, Third Floor
Houston, Texas 77002
Telecopier No.: (713) 739-1087
Telephone No.: (713) 319-1368
Attention: J. Alan Alexander
With copy to:
------------
Oscar Enriquez
201 Third Street, 8th Floor
San Francisco, California 94103
Telecopier No.: (415) 979-0675
Telephone No.: (415) 477-5425