Exhibit 10.2
SUPPLEMENT AND JOINDER
AGREEMENT
THIS SUPPLEMENT AND JOINDER
AGREEMENT (this “ Agreement ”) dated as of
July 17, 2008, is being executed and delivered pursuant to the
provisions of Section 2.6 of that certain Amended and Restated
Credit Agreement dated as of October 21, 2004, among TEPPCO
PARTNERS, L.P., as Borrower, the Lenders from time to time parties
thereto, and SUNTRUST BANK, as Administrative Agent for the Lenders
(as the same has been, and may hereafter be, amended, restated and
supplemented from time to time, the “ Credit Agreement
”), by each of the existing Lenders listed on the signature
pages hereto (each a “ Consenting Lender ” and
collectively the “ Consenting Lenders ”), by
each of the banks and other lenders listed on the signature pages
hereto that was not, prior to the date hereof, a Lender under the
Credit Agreement (each an “ Additional Lender ”
and collectively the “ Additional Lenders ”),
and the Borrower, and accepted by the Administrative Agent.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit
Agreement.
BACKGROUND
A. Pursuant
to Section 2.6 of the Credit Agreement, the Borrower has notified
the Administrative Agent and each of the Lenders that the Borrower
proposes to increase the Aggregate Commitment Amount under the
Credit Agreement to the total amount of $950,000,000.
B. Each
of the Consenting Lenders has agreed to increase its Commitment by
the amount specified for such Consenting Lender on
Schedule I attached to this Agreement, and each of the
Additional Lenders has agreed to extend to the Borrower a new
Commitment in the amount specified for such Additional Lender on
such Schedule I and to become an additional Lender for
all purposes of the Credit Agreement.
C. The
parties to this Agreement are entering into this Agreement for
purposes of effecting the increase in the Commitments of the
Consenting Lenders and the extension of the new Commitments of the
Additional Lenders, all as contemplated by Section 2.6 of the
Credit Agreement.
Accordingly, each of the parties to
this Agreement hereby agrees as follows:
1. Each
of the Consenting Lenders hereby agrees to increase the amount of
its Commitment to the Borrower under the Credit Agreement by the
respective amount for such Consenting Lender shown as being its
“Increase in Commitment” on Schedule I
attached to this Agreement. Such increase shall take effect for all
purposes of the Credit Agreement on the Effective Date (as
hereinafter defined) of this Agreement.
2. Each
of the Additional Lenders hereby extends to the Borrower, subject
to and on the terms and conditions set forth in the Credit
Agreement, a Commitment in the amount shown for such Additional
Lender as its “Additional Commitment” on
Schedule I attached to this Agreement, from and after
the Effective Date of this Agreement, and agrees to perform in
accordance with the terms thereof all of the obligations which by
the terms of the Credit
Agreement and the other Credit Documents are
required to be performed by it as a Lender thereunder. Each
Additional Lender represents and warrants that (i) it has full
power and authority, and has taken all action necessary, to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby and to become a Lender under the Credit
Agreement, (ii) from and after the Effective Date of this
Agreement, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and shall have and perform all of
the obligations of a Lender thereunder, and (iii) it has received a
copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 8.1 of
the Credit Agreement, as applicable, and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Agreement and to extend
the Commitment to the Borrower pursuant to the terms of the Credit
Agreement, on the basis of which it has made such analysis and
decision independently and without reliance on the Administrative
Agent or any other Lender. Each Additional Lender agrees that it
will, independently and without reliance on the Administrative
Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions and analysis in taking or not taking
action under the Credit Agreement or any other Credit Documents.
Each Additional Lender has submitted, or shall promptly hereafter
submit, to the Administrative Agent an administrative questionnaire
duly completed by such Additional Lender to be used and relied upon
by the Administrative Agent for all purposes of the Credit
Agreement.
3. Each
party hereto acknowledges and agrees that the respective
Commitments of the Additional Lenders, the Consenting Lenders, and
the other Lenders under the Credit Agreement are several and not
joint commitments and obligations of such Lenders. After giving
effect to the additional and increased Commitments as provided in
this Agreement, each party further acknowledges and agrees that
upon the funding of any additional Borrowings on or after the
Effective Date, the outstanding principal amounts of all
Commitments and the respective Percentages of the Lenders are those
set forth on Schedule II .
4. Each
party hereto agrees that this Agreement and the effectiveness of
the additional and increased Commitments as provided in this
Agreement shall be subject to satisfaction by the Borrower of the
following conditions and requirements:
(a)
The Borrower shall have delivered to the Administrative Agent the
following in form and substance satisfactory to the Administrative
Agent:
(i)
a counterpart of this Agreement signed by the Consenting Lenders,
the Additional Lenders, the Borrower and the Administrative
Agent;
(ii)
a duly executed Note payable to each Consenting Lender and
Additional Lender to the extent requested by any such
Lender;
(iii)
a certificate of the Secretary
or Assistant Secretary of the General Partner of the Borrower,
attaching and certifying copies of the authorizing resolutions for
the additional and increased Commitments and any Borrowings
thereunder as provided in this Agreement; and
(iv) the favorable written
opinions of Bracewell & Giuliani LLP and Patricia A. Totten,
each as counsel to the Borrower, addressed to the Administrative
Agent and each of the Lenders, and covering such matters relating
to the Borrower and this Agreement and the transactions
contemplated herein as the Administrative Agent shall reasonably
request.
(b) The Borrower shall
have paid to the Administrative Agent (i) all costs and
expenses incurred by the
Administrative Agent in connection with this Supplement and Joinder
Agreement and the transactions contemplated herein, including
without limitation, all reasonable fees and expenses of counsel for
the Administrative Agent, and (ii) for the account of each
Consenting Lender and Additional Lender, an upfront fee in an
amount equal to 0.20% of such Consenting Lender’s Increase in
Commitment, and 0.20% of such Additional Lender’s Additional
Commitment, in each case as shown on Schedule I to this
Agreement.
The date on which the foregoing
conditions have been satisfied shall be the “ Effective
Date ” of this Agreement.
5. The
Borrower represents and warrants to the Administrative Agent and
the Lenders as of the Effective Date that (i) this Agreement has
been duly authorized, executed and delivered by the Borrower, (ii)
the Credit Agreement, as supplemented hereby, constitutes the
legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its terms except as may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of
equity, (iii) no Default or Event of Default exists, (iv) all
representations and warranties of the Borro
