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Exhibit (10) xxviii
SECOND AMENDMENT TO CREDIT AGREEMENT
among
KCS RESOURCES, INC.
KCS PIPELINE SYSTEMS, INC.
AS BORROWERS
and
BANK ONE, TEXAS, NATIONAL ASSOCIATION
AS A BANK, THE AGENT, AND THE ISSUING BANK
and
CIBC, INC.
AS A BANK
Effective as of
December 22, 1994
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TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS ......................................... 1
1.01 Terms Defined Above ........................... 1
1.02 Terms Defined in Agreement .................... 1
1.03 References .................................... 1
1.04 Articles and Sections ......................... 2
1.05 Number and Gender ............................. 2
ARTICLE II. AMENDMENTS .......................................... 2
2.01 Amendment of Section 1.2 ...................... 2
2.02 Amendment of Section 2.7 ...................... 2
2.03 Amendment of Section 2.12 ..................... 3
ARTICLE III. CONDITIONS .......................................... 3
3.01 Receipt of Documents .......................... 3
3.02 Accuracy of Representations and Warranties .... 4
3.03 Matters Satisfactory to Lender ................ 4
ARTICLE IV. REPRESENTATIONS AND WARRANTIES ...................... 4
ARTICLE V. RATIFICATION ........................................ 4
ARTICLE VI. MISCELLANEOUS ....................................... 4
6.01 Scope of Amendment ............................ 4
6.02 Agreement as Amended .......................... 5
6.03 Parties in Interest ........................... 5
6.04 Rights of Third Parties ....................... 5
6.05 ENTIRE AGREEMENT .............................. 5
6.06 GOVERNING LAW ................................. 5
6.07 JURISDICTION AND VENUE ........................ 5
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SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Second Amendment") is made and entered into effective as of December 22, 1994,
between KCS RESOURCES, INC. and KCS PIPELINE SYSTEMS, INC., both Delaware
corporations, ("Borrowers") and BANK ONE, TEXAS, NATIONAL ASSOCIATION, a
national banking association, as a Bank, the Agent and the Issuing Bank, and
CIBC, INC., a Canadian Chartered Bank, each a ("Bank") and collectively, the
("Banks").
W I T N E S S E T H:
WHEREAS, the above named parties did execute and exchange counterparts of
that certain Amended and Restated Credit Agreement dated September 29, 1994,
(the "Agreement"), to which reference is here made for all purposes;
WHEREAS, the parties subject to and bound by the Agreement are desirous of
amending the Agreement in the particulars hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties to the Agreement, as set forth therein, and the mutual covenants and
agreements of the parties hereto, as set forth in this Second Amendment, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.01 Terms Defined Above. As used herein, each of the terms "Agreement,"
"Borrowers," "Second Amendment," and "Banks" shall have the meaning assigned to
such term hereinabove.
1.02 Terms Defined in Agreement. As used herein, each term defined in the
Agreement shall have the meaning assigned thereto in the Agreement, unless
expressly provided herein to the contrary.
1.03 References. References in this Second Amendment to Article or Section
numbers shall be to Articles and Sections of this Second Amendment, unless
expressly stated herein to the contrary. References in this Second Amendment to
"hereby," "herein," "hereinafter," "hereinabove," "hereinbelow," "hereof," and
"hereunder" shall be to this Second Amendment in its entirety
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and not only to the particular Article or Section in which such reference
appears.
1.04 Articles and Sections. This Second Amendment, for convenience only,
has been divided into Articles and Sections and it is understood that the
rights, powers, privileges, duties, and other legal relations of the parties
hereto shall be determined from this Second Amendment as an entirety and without
regard to such division into Articles and Sections and without regard to
headings prefixed to such Articles and Sections.
1.05 Number and Gender. Whenever the context requires, reference herein
made to the single number shall be understood to include the plural and likewise
the plural shall be understood to include the singular. Words denoting sex shall
be construed to include the masculine, feminine, and neuter, when such
construction is appropriate, and specific enumeration shall not exclude the
general, but shall be construed as cumulative. Definitions of terms defined in
the singular and plural shall be equally applicable to the plural or singular,
as the case may be.
ARTICLE II.
AMENDMENTS
The Borrowers and the Banks hereby amend the Agreement in the following
particulars:
2.01 Amendment of Section 1.1. Section 1.1 of the Agreement is hereby
amended as follows:
The following definition is amended to read as follows:
"Applicable Rate" means: (i) during the period that an Advance is a Base
Rate Advance, the Base Rate plus one-fourth of one percent (1/4%); (ii)
during the period that an Advance is a Eurodollar Advance, the Adjusted
Eurodollar Rate plus one and one-half percent (1-1/2%); and (iii) during
the period that an Advance is a CD Advance, the Adjusted CD Rate plus one
and three-quarters percent (1-3/4%).
2.02 Amendment of Section 6.2. Section 6.2 of the Agreement is hereby
amended to read as follows:
6.02 Prepayment. The Borrowers may, upon same day notice to Agent by noon,
central standard or daylight time, in the case of Base Rate Advances, at
least two (2) Business Days prior notice to
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Agent in the case of CD Advances, and two (2) Business Days prior notice
to Bank in the case of Eurodollar Advances prepay the Bank One and/or
CIBC Credit Note in whole at any time or from time to time in part
without premium or penalty but with accrued interest to the date of
prepayment on the amount so prepaid; provided that a. Fixed Rate
Advances may be prepaid only on the last day of the Interest Period for
such Advances, and b. each partial prepayment shall be in the principal
amount of $100,000 or an integral multiple thereof.
2.03 Substitution of Exhibit B. Exhibit B, ADVANCE REQUEST FORM, of
the Agreement is replaced by the Exhibit B attached hereto and made a part
hereof.
ARTICLE III.
CONDITIONS
The obligation of the Banks to amend the Agreement as provided herein
is subject to the fulfillment of the following conditions precedent:
3.01 Receipt of Documents. The Banks shall have received, reviewed, and
approved the following documents and other items, appropriately executed when
necessary and in form and substance satisfactory to the Lender:
(a) multiple counterparts of this Second Amendment and the Note, as
requested by the Lender;
(b) multiple counterparts of Notice of Final Agreement; and
(c) such other agreements, documents, items, instruments, opinions,
certificates, waivers, consents, and evidence as the Lender may
reasonably request.
3.02 Accuracy of Representations and Warranties. The representations
and warranties contained in Article X of the Agreement and this Second
Amendment shall be true and correct.
3.03 Matters Satisfactory to Banks. All matters incident to the
consummation of the transactions contemplated hereby shall be satisfactory to
the Banks.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby expressly re-make, in favor of the Banks, all of
the representations and warranties set forth in Article X of the Agreement, and
represents and warrants that all such representations and warranties remain
true and unbreached.
ARTICLE V.
RATIFICATION
Each of the parties hereto does hereby adopt, ratify, and confirm the
Agreement and the other Loan Documents, in all things in accordance with the
terms and provisions thereof, as amended by this Second Amendment.
ARTICLE VI.
MISCELLANEOUS
6.01 Scope of Amendment. The scope of this Second Amendment is
expressly limited to the matters addressed herein and this Second Amendment
shall not operate as a waiver of any past, present, or future breach, or Event
of Default under the Agreement, except to the extent, if any, that any such
breach, or Event of Default is remedied by the effect of this Second Amendment.
6.02 Agreement as Amended. All references to the Agreement in any
document heretofore or hereafter executed in connection with the transactions
contemplated in the Agreement shall be deemed to refer to the Agreement as
amended by this Second Amendment.
6.03 Parties in Interest. All provisions of this Second Amendment shall
be binding upon and shall inure to the benefit of the Borrowers, the Banks and
their respective successors and assigns.
6.04 Rights of Third Parties. All provisions herein are imposed solely
and exclusively for the benefit of the Banks and the Borrowers, and no other
Person shall have standing to require satisfaction of such provisions in
accordance with their terms and any or all of such provisions may be freely
waived in whole or in part by the Banks at any time if in its sole discretion
it deems it advisable to do so.
6.05 ENTIRE AGREEMENT. THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT
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ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
6.06 APPLICABLE LAW. THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS (EXCEPT TO EXTENT OTHERWISE EXPRESSLY PROVIDED IN ANY OF THEM) SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
AND TO THE EXTENT APPLICABLE, LAWS OF THE UNITED STATES OF AMERICA; PROVIDED
HOWEVER, THE PROVISIONS OF CHAPTER 15 OF THE TEXAS CREDIT CODE (VERNON'S TEXAS
CIVIL STATUTES, ARTICLE 5069-15) ARE SPECIFICALLY DECLARED BY THE PARTIES
HERETO NOT TO BE APPLICABLE TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS OR TO THE TRANSACTIONS CONTEMPLATED HEREBY. THIS AGREEMENT AND EACH
OF THE OTHER LOAN DOCUMENTS HAVE BEEN ENTERED INTO IN ▇▇▇▇▇▇ COUNTY, TEXAS, AND
EACH SHALL BE PERFORMABLE BY EACH OF THE BORROWERS FOR ALL PURPOSES IN ▇▇▇▇▇▇
COUNTY, TEXAS.
6.07 SUBMISSION TO JURISDICTION; WAIVERS. TO THE MAXIMUM EXTENT NOT
EXPRESSLY PROHIBITED BY APPLICABLE LAW FROM TIME TO TIME IN EFFECT, EACH OF THE
BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY (AND AFTER IT HAS
CONSULTED WITH ITS OWN ATTORNEY) IRREVOCABLY AND UNCONDITIONALLY:
i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THE LOAN DOCUMENTS OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF ▇▇▇▇▇▇ COUNTY, TEXAS, THE COURTS OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON
DIVISION, AND APPELLATE COURTS FROM ANY THEREOF;
ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS, AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OR ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL),
POSTAGE PREPAID, TO SUCH PERSON AT ITS ADDRESS FOR NOTICES REFERRED TO IN
SECTION 12.09 OF THE CREDIT AGREEMENT, ATTENTION TO AN AUTHORIZED
REPRESENTATIVE OF SUCH PERSON (WITH COPY THEREOF, SO MAILED, TO ORLOFF,
LOWENBACH, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ATTENTION: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇) OR AT SUCH OTHER
ADDRESS OR ADDRESSES OF WHICH BANK SHALL HAVE BEEN NOTIFIED PURSUANT
HERETO;
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iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION; AND
v) IN RECOGNITION THAT IT MAY BE ENTITLED TO A TRIAL IN WHICH MATTERS
OF FACT ARE DETERMINED BY A JURY (AS OPPOSED TO A TRIAL IN WHICH SUCH
MATTERS ARE DETERMINED BY A PRESIDING JUDGE), WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY AT
ANY TIME ARISING OUT OF, UNDER, OR IN CONJUNCTION WITH, ANY OF THE LOAN
DOCUMENTS, OR ANY OF THE TRANSACTIONS PROVIDED FOR HEREIN OR THEREIN OR
CONTEMPLATED HEREBY OR THEREBY, WHETHER BEFORE OR AFTER MATURITY AND
WHETHER OR NOT COMMENCED BY OR AGAINST IT.
IN WITNESS WHEREOF, this Second Amendment to Credit Agreement is
executed effective the date first hereinabove written.
"KRI":
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KCS RESOURCES, INC.
By: /s/ ▇. ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
Address for Notices:
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KCS Resources, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
An Authorized Representative
(as herein defined and
addressed as expressly required
hereby)
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Principal Place of Business:
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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"KCS Pipeline"
KCS PIPELINE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
President
GUARANTOR:
KCS ENERGY, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇
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▇.▇. ▇▇▇▇▇▇
Vice President
BANK ONE, TEXAS, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
CIBC, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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