WHEN RECORDED RETURN TO:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxx
FIRST AMENDMENT TO MORTGAGE,
SECURITY AGREEMENT AND FINANCING STATEMENT
THIS FIRST AMENDMENT TO MORTGAGE, SECURITY AGREEMENT AND
FINANCING STATEMENT (this "Amendment") is entered into as of the effective time
and date hereinafter stated (the "Effective Date") by and between XXXXXX XXXXXX
OPERATING L.P. "B" (formerly known as Enron Transportation Services, L.P.), a
Delaware limited partnership with an address for notice hereunder of 0000
XxXxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("Mortgagor") and FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, a national banking association with offices and
banking quarters at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
individually (in such capacity, "First Union") and as agent for the lenders
which are or become parties to the Credit Agreement referred to below
(collectively called the "Lenders") (in such capacity as agent, together with
its successors in such capacity, the "Mortgagee").
R E C I T A L S
A. Mortgagor and First Union previously entered into a Credit Agreement
dated as of December 29, 1994, as amended (the "Prior Credit Agreement").
B. The Prior Credit Agreement is secured by, among other things, that
certain Mortgage, Security Agreement and Financing Statement dated of even date
therewith from Mortgagor to First Union (the "Mortgage").
C. The Mortgage was duly recorded in Uinta County, Wyoming on January 9,
1995 in Book 642, Page 320 in the Mortgage Records with Entry No. R68617.
D. Of even date herewith, Mortgagor, Mortgagee and the Lenders are
entering into that certain Credit Agreement, and in connection therewith,
Mortgagor and Mortgagee now desire to amend the Mortgage.
NOW, THEREFORE, in view of the foregoing and for good and valuable
consideration, the receipt of which is hereby acknowledged, Mortgagor and
Mortgagee do hereby agree as follows:
1. All capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Mortgage.
2. All references in the Mortgage to "this Mortgage", as defined in the
opening paragraph of the Mortgage shall mean the Mortgage as amended hereby and
as the same may from time to time be further amended or supplemented.
3. Each Lender has appointed and authorized First Union to act as its
agent under the Mortgage pursuant to Section 11.01 of the Credit Agreement,
therefore, all references in the Mortgage to "Mortgagee", as defined in Section
1.1 of the Mortgage shall be deemed to be references to First Union National
Bank of North Carolina, as agent for the Lenders.
4. Article II of the Mortgage is amended to read as follows:
"INDEBTEDNESS SECURED
This conveyance is made to secure and enforce the payment of the
following indebtedness, obligations and liabilities:
(a) Payment of and performance of any and all indebtedness,
obligations and liabilities of Mortgagor pursuant to the Credit Agreement
dated as of February 14, 1997 among Mortgagor, Mortgagee and the lenders
party thereto (the "Lenders") (as amended, restated or supplemented from
time to time the "Governing Agreement"), including without limitation,
those certain promissory notes which are or may be executed by Mortgagor
in the aggregate principal amount of $15,875,000 with final maturity on or
before February 14, 1999 and all other notes given in substitution
therefor or in modification, renewal or extension thereof, in whole or in
part (such notes, as from time to time supplemented, amended or modified
and all other notes given in substitution therefor or in modification,
renewal or extension thereof, in whole or in part, being hereafter called
the "Revolving Credit Notes");
(b) Replacement Term Note dated of even date herewith executed by
Mortgagor payable to the order of First Union National Bank of North
Carolina in the face amount of $23,700,000, bearing interest and payable
as therein provided with a final maturity of all principal and interest of
February 14, 1999 and all other notes given in substitution therefor or in
modification, renewal or extension thereof, in whole or in part (such
notes, as from time to time supplemented, amended or modified and all
other notes given in substitution
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therefor or in modification, renewal or extension thereof, in whole or in
part, being hereafter the "Replacement Term Note"; the Revolving Credit
Notes and the Term Note being herein collectively referred to as the
"Notes");
(c) Payment of any sums which may be advanced or paid by Mortgagee
under the terms hereof on account of the failure of Mortgagor to comply
with the covenants of Mortgagor contained herein; and all other
indebtedness of Mortgagor arising pursuant to the provisions of this
Mortgage;
(d) Payment of any additional loans made by the Lenders to Mortgagor.
It is contemplated that the Lenders may lend additional sums to Mortgagor
from time to time, but shall not be obligated to do so, and Mortgagor
agrees that any such additional loans shall be secured by this Mortgage;
(e) Payment of and performance of any and all present or future
obligations of Mortgagor according to the terms of any present or future
interest or currency rate swap, rate cap, rate floor, rate collar,
exchange transaction, forward rate agreement or other exchange or rate
protection agreements or any option with respect to any such transaction
now existing or hereafter entered into between Mortgagor and Mortgagee or
any of the Lenders;
(f) Payment of and performance of any and all present or future
obligations of Mortgagor according to the terms of any present or future
swap agreements, cap, floor, collar, exchange transaction, forward
agreement or other exchange or protection agreements relating to crude
oil, natural gas or other hydrocarbons or any option with respect to any
such transaction now existing or hereafter entered into between Mortgagor
and Mortgagee or any of the Lenders;
(g) All reimbursement obligations for drawn or undrawn portions under
that certain irrevocable letter of credit in the amount of $24,128,548.00
issued by First Union National Bank of North Carolina (the "Replacement
Letter of Credit") and any letter of credit now outstanding or hereafter
issued under or pursuant to the Governing Agreement in replacement of the
Replacement Letter of Credit; and
(h) Payment of and performance of any and all other indebtedness,
obligations and liabilities of any kind of Mortgagor to the Mortgagee or
any Lender, now or hereafter existing, arising directly between Mortgagor
and the Mortgagee or any Lender or acquired outright, as a participation,
conditionally or as collateral security from another by the Mortgagee or
any Lender, absolute or contingent, joint and/or several, secured or
unsecured, due or not due, arising by operation of law or otherwise, or
direct or indirect, including indebtedness, obligations and liabilities to
the Mortgagee or any Lender of Mortgagor as a
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member of any partnership, syndicate, association or other group, and
whether incurred by Mortgagor as principal, surety, endorser, guarantor,
accommodation party or otherwise.
The term "Indebtedness" as used herein shall mean and include said
Notes and all other indebtedness described, referred to or mentioned in
paragraphs (a) through (h), inclusive, of this Article II and all
renewals, extensions and modifications thereof and all substitutions
therefor, in whole or in part. Notwithstanding any other provision of this
Mortgage, the Indebtedness shall not include any reimbursement obligation
under the Support Letter of Credit (as defined in the Governing Agreement)
that may be issued under the Governing Agreement and any principal or
interest outstanding on the Support Term Note (as defined in the Governing
Agreement)."
5. All references to "Default Rate" in the Mortgage shall be deemed to be
references to "Post-Default Rate" as such term is defined in the Credit
Agreement.
6. Mortgagor hereby confirms that it has heretofore granted, bargained,
sold, conveyed, transferred and assigned and granted a security interest in the
Mortgaged Property to First Union, and Mortgagor further grants, bargains,
sells, conveys, transfers and assigns and grants a security interest in the
Mortgaged Property to Mortgagee to secure the payment and performance of the
Indebtedness as amended herein.
7. The parties hereto hereby acknowledge and agree that except as
specifically amended, changed or modified hereby, the Mortgage shall remain in
full force and effect in accordance with its terms. None of the rights, titles
and interests existing and to exist under the Mortgage are hereby released,
diminished or impaired, and Mortgagor hereby reaffirms all covenants,
representations and warranties made in the Mortgage.
8. This Amendment may be executed in two or more counterparts, and it
shall not be necessary that the signatures of all parties hereto be contained on
any one counterpart hereof.
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EXECUTED as of the 14th day of February, 1997 (the "Effective Date").
MORTGAGOR:
XXXXXX XXXXXX OPERATING L.P. "B"
(formerly known as Enron Transportation Services,
L.P.)
By: Kinder Xxxxxx X.X., Inc. (formerly known
as Enron Liquids Pipeline Company),
its General Partner
By:________________________________
Name: Xxxxxx X. Xxxx
Title: President
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MORTGAGEE:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, AS AGENT
By:__________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this ___ day of
February, 1997 by Xxxxxx X. Xxxx, President of Kinder Xxxxxx X.X., Inc.
(formerly known as Enron Liquids Pipeline Company), a Delaware corporation,
General Partner of XXXXXX XXXXXX OPERATING L.P. "B", a Delaware limited
partnership, on behalf of such corporation as General Partner of such limited
partnership.
------------------------------
Notary Public in and for the
State of Texas
Seal:
STATE OF NORTH CAROLINA )
)
COUNTY OF MECKLENBURG )
The foregoing instrument was acknowledged before me this ___ day of
February, 1997 by Xxxxxxx X. Xxxxxxxxxx, Vice President of FIRST UNION NATIONAL
BANK OF NORTH CAROLINA, a national banking association, on behalf of such
association.
------------------------------
Notary Public in and for the
State of North Carolina
Seal:
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