EXHIBIT 10.26
FIRST AMENDMENT TO AMENDED AND RESTATED
SECURED CREDIT AGREEMENT
among
TEJAS-ACADIAN HOLDING COMPANY,
as the Borrower
and
CERTAIN LENDING INSTITUTIONS,
as the Lenders
and
BANK OF MONTREAL,
CANADIAN IMPERIAL BANK OF COMMERCE
and
CITIBANK, N.A.,
as Co-Agents for the Lenders
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent for the Lenders
Dated as of December 20, 1996
FIRST AMENDMENT TO
AMENDED AND RESTATED SECURED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED SECURED CREDIT
AGREEMENT, dated as of December 20, 1996 (herein called this "FIRST AMENDMENT")
is entered into by and among TEJAS-ACADIAN HOLDING COMPANY, a Delaware
corporation (the "BORROWER"), the various financial institutions as are or may
from time to time become parties hereto (collectively the "LENDERS"), BANK OF
MONTREAL, acting through certain of its U.S. branches or agencies ("BMO"),
CANADIAN IMPERIAL BANK OF COMMERCE, acting through certain of its U.S. branches
or agencies ("CIBC") and CITIBANK, N.A. ("CITIBANK"), as co-agents (BMO, CIBC
and Citibank in such capacity, together with any successor(s) thereto in such
capacity, collectively called the "CO-AGENTS") for the Lenders, and CIBC, as
administrative agent (in such capacity, together with any successor(s) thereto
in such capacity, the "ADMINISTRATIVE AGENT") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Co-Agents and the Administrative
Agent have heretofore entered into an Amended and Restated Secured Credit
Agreement, dated as of January 12, 1995 (the "CREDIT AGREEMENT");
WHEREAS, the Borrower, the Lenders, the Co-Agents and the Administrative
Agent now desire to amend the Credit Agreement in certain respects, as
hereinafter provided,
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the Borrower, the Lenders, the Co-Agents and the
Administrative Agent hereby agree as follows:
I. AMENDMENTS TO CREDIT AGREEMENT.
A. The definitions of "AGGREGATE DISTRIBUTIONS AND INVESTMENTS,"
"EURODOLLAR INTEREST RATE," "RSN," "SHAREHOLDER'S EQUITY," "TRANSFER," and
"UNUSED ASSET TRANSFER ALLOWANCE" in Section 1.1 of the Credit Agreement are
respectively amended and restated in their entirety to read as follows:
AGGREGATE DISTRIBUTIONS AND INVESTMENTS - shall mean at the
time any determination thereof is to be made, the sum of (i) all
Distributions made in accordance with SECTION 9.3.1(i), (ii) the
aggregate amount of all Equity Investments in excess of $40,000,000
in the aggregate made in accordance with SECTION 9.3.5(xix), (iii)
the aggregate amount of principal and interest payments on the TSNs
made in accordance with SECTION 9.3.1(ii), (iv) loans made and not
repaid pursuant to
SECTION 9.3.5(xviii)(b) to the Parent Company in excess of
$150,000,000, made on or after December 31, 1994, to and including
the date of such determination, (v) the sum of (a) the aggregate
Fair Market Value of Assets Transferred in excess of $40,000,000 in
any fiscal year of the Borrower (other than any amount attributable
to a Transfer or any portion thereof for which the Unused Asset
Transfer Allowance is applied) PLUS (b) the aggregate Fair Market
Value of Assets Transferred in excess of the lesser of (x)
$80,000,000 and (y) the Unused Asset Transfer Allowance during the
period from the Effective Date to such date of determination as
permitted by SECTION 9.3.8(iii) and (vi) loans made and not repaid
pursuant to SECTION 9.3.5(xvii)(d) to any SPV, any SPVHC or any
other Subsidiary of the Borrower that is not a Material Subsidiary
in excess of $35,000,000 in the aggregate for all such loans to such
Persons.
EURODOLLAR INTEREST RATE - shall mean, with respect to each
Eurodollar Loan for any Eurodollar Interest Period, a rate per annum
(rounded upwards, if necessary, to the nearest integral multiple of
the number of decimal points displayed on Telerate Page 3750, or any
successor or similar service, or if neither such Telerate Page 3750
nor any successor or similar service is available and such rate is
determined using Reference Lenders, one one-hundredth of one percent
(1/100%)), equal to (i) the average of the offered quotations
appearing on Telerate Page 3750 (or if such Telerate Page shall not
be available, any successor or similar service as may be selected by
the Agents and the Borrower) as of 11:00 a.m., London time (or as
soon thereafter as practicable), two (2) Eurodollar Business Days
prior to the beginning of such Eurodollar Interest Period, and (ii)
if neither such Telerate Page 3750 nor any successor or similar
service is available, then the quotient of (x) the arithmetic
average of the quotation by each Reference Lender (notified to the
Administrative Agent by such Reference Lender) of the rate of
interest per annum at which deposits in Dollars in immediately
available funds are offered to such Reference Lender two (2)
Eurodollar Business Days prior to the beginning of such Eurodollar
Interest Period by prime banks in the interbank Eurodollar market as
at or about 10:00 a.m., New York City time, for delivery on the
first day of such Eurodollar Interest Period, in each case for a
period equal to such Eurodollar Interest Period and in an amount
equal to the proposed Eurodollar Loan of such Reference Lender to
which such Eurodollar Interest Period relates, divided by (y) the
remainder of one (1) minus the decimal equivalent of the applicable
Eurocurrency Reserve
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Percentage. If on any occasion any Reference Lender is unable, or
for any reason fails, so to notify the Administrative Agent by 11:00
a.m., New York City time, two (2) Eurodollar Business Days before
the first day of such Eurodollar Interest Period, the applicable
Eurodollar Interest Rate shall be determined on the basis of each
quotation furnished by those of the Reference Lenders which so
notify the Administrative Agent at or prior to said 11:00 a.m.
RSN - shall mean one or more revolving subordinated promissory
notes from the Borrower payable to the Parent Company in the form of
EXHIBIT 9.3.3B.
STOCKHOLDERS' EQUITY - shall mean, as of the time any
determination thereof is to be made, (i) at a time when the Borrower
is a corporation, the sum of the Borrower's capital stock (which
shall exclude treasury stock and any capital stock subject to
mandatory redemption by the issuer at the option of the holder
thereof) and additional paid-in capital, PLUS retained earnings
(MINUS accumulated deficit), and (ii) at a time when the Borrower is
a limited liability company, the sum of all membership interests of
all members of the Borrower, all as shown on the consolidated
balance sheet of the Borrower and its Subsidiaries (but excluding
SPVHCs) and based on GAAP (except to the extent of the exclusion of
the SPVHCs).
TRANSFER - shall mean (i) a sale, transfer, conveyance,
assignment or other disposition of an Asset (or related Assets)
having a Fair Market Value in excess of $100,000, or (ii)
destruction as a result of a casualty of an Asset (or related
Assets) having a Fair Market Value in excess of $500,000 in the
aggregate for any such casualty.
UNUSED ASSET TRANSFER ALLOWANCE - shall mean, as of the time
any determination thereof is to be made, the positive difference, if
any, of (a) $58,300,000 plus (b) the product of (i) $40,000,000
times (ii) the number of fiscal years of the Borrower ended during
the period from January 1, 1997 to such determination date MINUS (c)
the aggregate Fair Market Value of all Assets Transferred during the
period from the Effective Date to such determination date as
permitted by SECTION 9.3.8(iii) (other than any amount attributable
to a Transfer or any portion thereof made pursuant to CLAUSE (b)(2)
of SECTION 9.3.8(iii)).
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B. Section 1.1 of the Credit Agreement is hereby further amended by adding
the following definitions in appropriate alphabetical order:
HYDROCARBONS - shall mean collectively, natural gas, oil,
condensate and other liquid and gaseous hydrocarbons, including
natural gas or liquid products extracted from gas.
PERMITTED BUSINESS - shall have the meaning assigned to such
term in SECTION 9.3.11.
C. The definition of "PERMITTED INVESTMENTS" in Section 1.1 of the Credit
Agreement is amended (i) by deleting the phrase "Standard & Poors Corporation"
appearing in clauses (b), (c) and (d) of such definition and substituting
therefor the phrase "Standard & Poors Ratings Group" and (ii) by inserting the
word "or" at the end of clauses (a) and (c) immediately after the semicolon
appearing at the end of such clauses.
D. The definition of "PERSON" in Section 1.1 of the Credit Agreement is
amended by inserting the phrase "limited liability company" immediately after
the word "corporation," appearing in the first line of such definition.
E. Section 5.5(i) of the Credit Agreement is amended by inserting the
phrase "five (5) Business Days after" immediately after the letter "(A)"
appearing in the fourth and eighth lines of such Section.
F. Section 4.14 of the Credit Agreement is amended (i) by inserting the
word "actual" immediately before the word "loss" appearing in the second line of
such Section and (ii) by inserting the phrase "(but not any penalty or premium)"
immediately after the word "incur" appearing in the third line of such Section.
G. Section 4.15 of the Credit Agreement is amended by deleting the phrase
"that reduces the amount in SECTION 5.3" appearing in the seventh line of such
Section.
H. Section 8.1 of the Credit Agreement is amended by deleting the phrase
"financial condition, business, operations and prospects of the Borrower, or the
Borrower and its Subsidiaries taken as a whole" appearing in the ninth and tenth
lines of such Section and substituting therefor the phrase "consolidated
business condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries (taken as a whole)".
I. Sections 8.4(a), 8.5, 8.16(a), 8.16(b)(i), 8.16(b)(ii), 8.16(c),
8.16(d), 8.16(f), 8.16(h), 8.16(i), the first sentence of Section 8.17, the last
sentence of
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Section 8.17, and Sections 9.2.8, 9.2.9 and 9.3.10 of the Credit
Agreement are amended by deleting the phrase "financial condition, operations,
assets, business, properties or prospects of the Borrower and its Subsidiaries
(taken as a whole)" appearing in such Sections and substituting therefor the
phrase "consolidated business condition (financial or otherwise), operations,
performance or properties of the Borrower and its Subsidiaries (taken as a
whole)".
J. Section 9.1.1 of the Credit Agreement is amended by inserting the
phrase "showing compliance with SECTION 9.4 and" immediately after the word
"Borrower" appearing in the fifth to last line of such Section.
K. Section 9.1.2 of the Credit Agreement is amended by inserting the
following sentence at the end of such Section after the final period:
Such quarterly financial statements shall be accompanied by a certificate
(which certificate shall not be part of such quarterly financial
statements) from a duly authorized financial officer of the Borrower, and
showing compliance with SECTION 9.4 and containing a statement by such
authorized officer that in examining the financial statements and the
covenants contained in SECTION 9.4 such authorized officer did not become
aware of any Event of Default or Unmatured Event of Default, or if the
authorized officer has become aware of any such event, describing it and
the steps, if any, being taken to cure it.
L. Section 9.1.5 of the Credit Agreement is amended by deleting the word
"may" appearing in the seventh line of such Section and substituting therefor
the phrase "should reasonably be expected to".
M. Section 9.2.2 of the Credit Agreement is amended (1) by inserting the
phrase "during any period an Event of Default shall have occurred and be
continuing, but in no event more frequently than once per calendar quarter"
immediately before the phrase ", a certificate" appearing in clause (i) in the
sixth line of such Section and (2) by deleting the date "March 31st" appearing
in the tenth line of such Section and substituting the date "November 1st".
N. Section 9.3.1(i) of the Credit Agreement is amended by deleting the
amount "$30,000,000" appearing in the third line of such Section and
substituting therefor the amount "$35,000,000".
O. Section 9.3.3(xix) of the Credit Agreement is amended by deleting the
amount "$30,000,000" appearing in the last line of such Section and substituting
therefor the amount "$35,000,000".
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P. Section 9.3.3(xix) of the Credit Agreement is amended by deleting the
phrase "not exceed $30,000,000 at any time" appearing in the last line of such
Section and substituting therefor the phrase "not at any time exceed the sum of
(x) $35,000,000 plus (y) the positive difference, if any, between (1)
Incremental Earnings to the date of determination, if any, and zero if no
Incremental Earnings to such date MINUS (2) Aggregate Distributions and
Investments to and including such time;".
Q. Section 9.3.4 of the Credit Agreement is amended and restated in its
entirety to read as follows:
SECTION 9.3.4 LIENS. Not, and not permit any of its Subsidiaries to,
create or permit to exist any Lien with respect to any Assets (it being
understood that any Asset sold, transferred, conveyed, assigned or
otherwise disposed of to any Person (other than to the Borrower or any of
its Subsidiaries) as permitted by SECTION 9.3.8 (other than Sections
9.3.8(iv) and 9.3.8(xiv))) shall not be subject to the provisions of this
SECTION 9.3.4 upon the consummation of such sale, transfer, conveyance,
assignment or disposition) now owned or hereafter acquired, except
(i) those in favor of the Collateral Agent for the benefit of the
Lenders, the Alternate Facility Provider and other parties to
the Intercreditor Agreement;
(ii) the Liens referred to in CLAUSES (vii), (viii), (xi), and
(xiii) of SECTION 8.6 and the types of Liens referred to in
the other clauses of SECTION 8.6;
(iii) the Lien in favor of Exxon created under the Seller Guaranty
as in effect on September 15, 1993;
(iv) Liens on (A) cash collateral, (B) letters of credit or (C)
Permitted Investments pledged as collateral in favor of
counterparties to Hedging Obligations of the type described in
CLAUSE (B) of the definition of "HEDGING OBLIGATIONS" and
permitted by SECTION 9.3.3(vii);
(v) Liens or encumbrances on Receivables created in connection
with a Receivables Financing permitted pursuant to SECTION
9.3.19 and Liens or encumbrances on the rights of the Borrower
or any of its Subsidiaries related to such Receivables which
are transferred to the purchaser of such Receivables in
connection with
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any such permitted Receivables Financing; PROVIDED that such
Liens secure only, or such encumbrances relate solely to, the
obligations of the Borrower or any of its Subsidiaries in
connection with such Receivables Financing;
(vi) Liens on Assets securing Indebtedness of Capitalized Lease
Obligations provided such Liens attach solely to the assets
subject of the capitalized lease;
(vii) Liens on Assets of SPVHCs;
(viii) Liens granted by Tejas Gas Holding, Inc. (f/k/a Gulf Energy
Holding, Inc.) on the capital stock of TGI, PROVIDED that
under the terms of such Liens no personal judgment or
deficiency and no attachment, execution or other writ of
process shall be sought, issued or levied upon or against
Tejas Gas Holding, Inc. or any assets, properties or funds of
Tejas Gas Holding, Inc. other than such capital stock of TGI;
and
(ix) Liens in favor of the LEDCO Sellers securing the LEDCO Earnout
Obligation.
R. Section 9.3.5 of the Credit Agreement is amended and restated in its
entirety to read as follows:
SECTION 9.3.5 GUARANTIES, LOANS, ADVANCES OR INVESTMENTS. Not, and
not permit any of its Subsidiaries to, become or be a guarantor or surety
of, endorse or otherwise become or be contingently liable upon (by direct
or indirect agreement, contingent or otherwise, or by operation of law, to
provide funds for payment, to supply funds to, or otherwise invest in, a
debtor, or otherwise assure a creditor against loss) the debt, obligation,
undertaking or other liability of any other Person, or otherwise become or
be responsible in any manner (whether by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or advance any
funds, assets, goods or services, or otherwise) with respect to, any
undertaking of any other Person, or make or permit to exist any loans or
advances to or investments in any other Person, except for
(i) (a) the endorsement, in the ordinary course of collection, of
instruments payable to the Borrower or any of its Subsidiaries
or to the order of the Borrower or any of its Subsidiaries and
(b) advances and prepayments to trade creditors
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and employees incurred in the ordinary course of business;
(ii) the Guaranties (including the guaranty by the Borrower of the
Amended TNGC Credit Facility);
(iii) guaranties or similar assurances (other than the Seller
Guaranty as in effect on September 15, 1993) incurred by the
Borrower or its Subsidiaries in respect of obligations of the
Borrower or Subsidiaries of the Borrower or of any SPV
permitted hereunder and incurred in the ordinary course of a
Permitted Business provided that such obligations so
guarantied are not Funded Debt or lease obligations other than
Funded Debt or lease obligations permitted hereunder;
(iv) the guaranty by the Borrower or its Subsidiaries of Hedging
Obligations of the Borrower or Subsidiaries of the Borrower
permitted under SECTION 9.3.3(vii);
(v) the Seller Guaranty as in effect on September 15, 1993;
(vi) the ADP Guaranties and the Purchase Agreement;
(vii) [Intentionally omitted];
(viii) [Intentionally omitted];
(ix) [Intentionally omitted];
(x) [Intentionally omitted];
(xi) the guaranty by Acadian of the EGC Demand Notes, or the
investment by Acadian in, or the loan by Acadian to,
Xxxxxxxxxx Gas Corp. or Xxxxxxxxxx Gulf Coast of up to
$1,000,000, or Acadian's guaranty of Xxxxxxxxxx Gulf Coast's
obligations as account party relative to letters of credit
issued as credit support for the EGC Demand Notes, PROVIDED
that Acadian's guaranties, investments and loans permitted
under this SECTION 9.3.5(xi) shall not exceed $1,000,000 in
the aggregate;
(xii) the guaranty by Acadian of any Indebtedness of Xxxxxxxxxx Gulf
Coast to Xxxxxxxxxx of up to $15,000,000, or the guaranty by
Acadian of the
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Indebtedness of Xxxxxxxxxx Gulf Coast relative to the
EGC-Xxxxxxxxxx Letter of Credit, or the investment by Acadian
in, or the loan by Acadian to, Xxxxxxxxxx Gulf Coast or
Xxxxxxxxxx Gas Corp. of up to $15,000,000, PROVIDED that (a)
Acadian's guaranties, investments and loans permitted under
this SECTION 9.3.5(xii) and under SECTION 9.3.5(xi) PLUS (b)
the Indebtedness of Acadian permitted under SECTION 9.3.3(xx)
PLUS (c) the Indebtedness of Acadian under the Xxxxxxxxxx Debt
Service Reserve Guaranty to the extent such Indebtedness under
such guaranty is not secured by, and reduced by drawings on,
the Acadian-Xxxxxxxxxx Letter of Credit or the EGC-Xxxxxxxxxx
Letter of Credit, shall not exceed $15,000,000 in the
aggregate for all such Indebtedness, guaranties, investments
and loans;
(xiii) the guaranty by Acadian in favor of the Xxxxxxxxxx
Noteholders and the trustee therefor, not to exceed $3,500,000
at any time, of interest and principal payments on the 8.79%
Senior Secured Notes (Series A) and 9.87% Senior Secured Notes
(Series B) of Xxxxxxxxxx to the extent, and only to the
extent, of 50% of the amount by which the balance of the
Xxxxxxxxxx Debt Service Reserve Account falls below
$8,000,000, PROVIDED that the amount of such guaranty, as
determined as of December 31, 1992, shall automatically and
permanently decrease by 50% of any increase in the balance of
the Xxxxxxxxxx Debt Service Reserve Account after December 31,
1992 and such guaranty shall automatically and irrevocably
terminate when the balance of the Xxxxxxxxxx Debt Service
Reserve Account first equals or exceeds $8,000,000;
(xiv) guaranties and indemnities by the Borrower or any of its
Subsidiaries pursuant to a Receivables Financing of the
Borrower or any Subsidiary of the Borrower (other than a
Receivables Financing of an SPVHC) permitted hereunder;
(xv) [Intentionally omitted];
(xvi) [Intentionally omitted];
(xvii) (a) loans from the Borrower to its Material Subsidiaries
pursuant to Indebtedness permitted under SECTION 9.3.3(v); (b)
loans from any Subsidiary of the Borrower to any Material
Subsidiary of the Borrower pursuant to Indebtedness permitted
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under SECTION 9.3.3(xv); loans from any Subsidiary of the
Borrower to the Borrower pursuant to Indebtedness permitted
under SECTION 9.3.3(xvi); (c) loans from any Subsidiary of the
Borrower that is not a Material Subsidiary to any Subsidiary
of the Borrower that is not a Material Subsidiary pursuant to
Indebtedness permitted under SECTION 9.3.3(xxiii); and (d)
loans from the Borrower or from a Material Subsidiary of the
Borrower to any SPV, any SPVHC or any other Subsidiary of the
Borrower that is not a Material Subsidiary not to exceed an
aggregate principal amount equal to the sum of (x) $35,000,000
plus (y) the positive difference, if any, between (1)
Incremental Earnings to the date of such loan, if any, and
zero if no Incremental Earnings to such date MINUS (2)
Aggregate Distributions and Investments to and including the
date of such loan (without giving effect to such loan on such
date) for all such loans;
(xviii) loans from the Borrower to the Parent Company not to exceed
an aggregate principal amount equal to the sum of (a)
$201,000,000 (excluding accrued and unpaid interest), PLUS (b)
so long as no Event of Default or Unmatured Event of Default
has occurred and is continuing or would occur as a result of
any such loan, an amount equal to the positive difference, if
any, of (x) $150,000,000 PLUS Incremental Earnings PLUS
Incremental Losses to the date of such loan MINUS (y)
Aggregate Distributions and Investments to and including the
date of such loan (without giving effect to such loan on such
date); PROVIDED that (i) the Borrower may not make any loan to
the Parent Company after the Closing Date permitted by the
foregoing clause (a) if an Unmatured Event of Default of the
type described in SECTION 12.1.1, 12.1.2, 12.1.4, 12.1.8,
12.1.9, 12.1.15, or 12.1.16, or Event of Default has occurred
and is continuing or would occur as a result of any such loan,
(ii) the obligations of the Parent Company with respect to any
such loan is evidenced by a promissory note of the Parent
Company payable to the order of the Borrower (as from time to
time amended, modified or supplemented, a "PARENT COMPANY
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NOTE"), (iii) such promissory note is endorsed and delivered
by the Borrower to the Collateral Agent as collateral pursuant
to the terms of, and subject to the Liens created under, the
Notes Security Agreement and (iv) the Indebtedness evidenced
by such notes ranks PARI PASSU with all senior unsecured debt
of the Parent Company;
(xix) Equity Investments by the Borrower or any of its Subsidiaries
in any one or more Persons that is not the Borrower or a
Material Subsidiary of the Borrower in an aggregate amount not
to exceed at the time of such Equity Investment the sum of (a)
$40,000,000 PLUS (b) the positive difference, if any, between
(1) Incremental Earnings to such date, if any, and zero if no
Incremental Earnings to such date and (2) all Aggregate
Distributions and Investments to and including such date
(without giving effect to Equity Investments on such date);
PROVIDED that any such Subsidiary, partnership or joint
venture is not engaged in any business activities other than a
Permitted Business and PROVIDED FURTHER that any Equity
Investment permitted to be made pursuant to this CLAUSE (xix)
in excess of $40,000,000 will only be made in cash;
(xx) Equity Investments in Material Subsidiaries;
(xxi) Guaranties by the Borrower and its Subsidiaries of required
equity contributions by any one or more SPVHCs in one or more
SPVs not to exceed in the aggregate for all such guaranties at
any time outstanding the positive difference, if any, of (a)
the positive difference, if any, between (x) Incremental
Earnings to such date, if any, and zero if no Incremental
Earnings to such date and (y) all Aggregate Distributions and
Investments to and including such date (without giving effect
to Equity Investments made on such date and to loans made
pursuant to SECTION 9.3.5(xvii)(d) on such date) PLUS (b)
$75,000,000 MINUS (c) the aggregate outstanding principal
amount of all loans made in accordance with SECTION
9.3.5(xvii)(d) (after giving effect to such loans made on such
date) MINUS (d) the aggregate of all Equity Investments made
in accordance with
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SECTION 9.3.5(xix) (after giving effect to such Equity
Investments made on such date);
(xxii) Equity Investments by SPVHCs in SPVs and loans by SPVHCs to
SPVs;
(xxiii) Permitted Investments;
(xxiv) Equity Investments outstanding as of the Effective Date and
set forth in EXHIBIT 9.3.5 (xxiv);
(xxv) [Intentionally omitted];
(xxvi) [Intentionally omitted];
Further, the Borrower will not, and will not permit any of its Subsidiaries to,
supply or advance any funds to or make additional investments in GEGAP or Gulf
Energy Development Corporation after an Event of Default or Unmatured Event of
Default has occurred or would occur as a result of any such supplying, advance
or investment.
S. Section 9.3.6 of the Credit Agreement is amended and restated in its
entirety to read as follows:
SECTION 9.3.6 RESTRICTIONS ON FUNDAMENTAL CHANGES. Without the prior
written consent of the Required Lenders, not, and not permit any of its
Subsidiaries to, be a party to any merger into or consolidation with, or
purchase or otherwise acquire all or substantially all of the assets of,
any other Person, except that (1) the Borrower or any of its Subsidiaries
may merge into or consolidate with any other Person and the Borrower or
any of its Subsidiaries may purchase or otherwise acquire the assets of
any other Person, IF upon the consummation of any such merger,
consolidation, purchase or acquisition, (A) the Borrower, or if the
Borrower is not a party to such merger, such Subsidiary, is the surviving
corporation and the nature of its business is not materially changed from
its core Hydrocarbons transportation, construction, procurement, sales,
leasing, storage, transmission, gathering, marketing, processing and other
related activities, (B) the Borrower or such Subsidiary has the power and
authority under the pertinent agreement, as applicable, and under
applicable law, to subject the assets of such acquired Person or the
assets so acquired to the provisions of this Agreement, including, without
limitation, SECTION 9.3.4, (C) the Borrower or such Subsidiary does so
subject such assets to the provisions of this Agreement, including without
limitation, SECTION 9.3.4, and (D) no Event of Default or Unmatured Event
of Default shall have occurred,
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exist or be continuing or shall result after giving effect to such merger,
consolidation, purchase or acquisition and (2) the Borrower or any
Subsidiary of the Borrower may merge into, or consolidate with, or
purchase or otherwise acquire the assets of, any other Subsidiary of the
Borrower (other than an SPVHC), if (A) the surviving entity (if either
such Subsidiary is a Guarantor) shall be the Borrower, a Subsidiary that
is liable with all other Guarantors pursuant to a Guaranty for all
obligations of the Borrower under this Agreement and the Notes (and, if
TNGC is a party to such merger, consolidation, purchase or acquisition, a
Subsidiary that is also liable for all obligations of TNGC under the
Amended TNGC Credit Facility, the TNGC Notes and each other Loan Document
to which TNGC is a party), or a Subsidiary that is liable for all
obligations of the Borrower under this Agreement and each other Loan
Document to which the Borrower is a party (and, if TNGC is a party to such
merger, consolidation, purchase or acquisition, a Subsidiary that is also
liable for all obligations of TNGC under the Amended TNGC Credit Facility,
the TNGC Notes and each other Loan Document to which TNGC is a party), (B)
the Collateral Agent shall have received documentation duly executed by
the surviving entity in form and substance satisfactory to the Required
Lenders and the Co-Agents, which documentation shall at a minimum consist
of (x) the execution and delivery of a Guaranty or restated Guaranty (if
the surviving Subsidiary is not a Guarantor prior to the consummation of
such merger or consolidation but is a Material Subsidiary or a Subsidiary
which directly owns an interest in a Guarantor) and supporting
documentation substantially similar to the documentation described in
SECTION 11.1, as applicable (and, if TNGC is a party to such merger,
consolidation, purchase or acquisition, an assumption agreement of the
obligations of TNGC under or in connection with, among others, the Amended
TNGC Credit Facility, the TNGC Notes and the Security Documents to which
TNGC is a party and supporting documentation substantially similar to the
documentation described in SECTION 11.1, as applicable), or (y) the
execution and delivery of an assumption agreement of the obligations of
the Borrower under or in connection with, among others, this Agreement,
the Notes and the Security Documents (if the Borrower merges or
consolidates with a Subsidiary and such Subsidiary is the surviving
entity) and supporting documentation substantially similar to the
documentation described in SECTION 11.1, as applicable (and, if TNGC is a
party to such merger, consolidation, purchase or acquisition, an
assumption agreement of the obligations of TNGC under or in connection
with, among others, the Amended TNGC Credit Facility, the TNGC Notes and
the Security Documents to which TNGC is a party and supporting
documentation substantially similar to the documentation described in
SECTION 11.1, as applicable), and (C) no Event of
13
Default or Unmatured Event of Default shall have occurred and be
continuing or would otherwise be existing after or result from such merger
or consolidation. The Borrower shall not, and shall not permit any of its
Subsidiaries to, sell or dispose of any capital stock of any Subsidiary of
the Borrower except for (i) the Transfer of a Storage Facility Interest as
permitted under SECTION 9.3.8(VII) or to a Guarantor as permitted by
SECTION 9.3.8(IV) and (ii) the Transfer of minority interests in any
Subsidiary of the Borrower pursuant to SECTION 9.3.8(IX).
T. Sections 9.3.8(ii) and 9.3.8(iii) of the Credit Agreement are amended
and restated in their entirety to read as follows:
(ii) the Transfer of any Asset or Assets; PROVIDED that (x) the
Commitment Amount is reduced as a result thereof in accordance with
SECTION 5.5, (y) promptly, and in any event within five (5) Business
Days after the receipt by the Borrower or such Subsidiary of the Net
Proceeds of such Transfer, the Borrower shall provide the
Administrative Agent with written notice of such Transfer, of the
amount of the Fair Market Value and the Net Proceeds thereof, and of
the Borrower's election to make such Transfer pursuant to this
CLAUSE (ii), and (z) in the event of any Transfer of any Asset or
related Assets with a Fair Market Value estimated by the Borrower in
good faith to be in excess of $25,000,000 to any SPVHC, any SPV, the
Parent Company or any Affiliate of the Parent Company (other than to
the Borrower or a Subsidiary of the Borrower), the Lenders shall
have received a written appraisal (dated a date, and using a method
of appraisal and assumptions, reasonably acceptable to the Required
Lenders), from an independent appraiser reasonably acceptable to the
Required Lenders, of the Fair Market Value of such Asset; PROVIDED
that neither a Distribution pursuant to SECTION 9.3.1(i) nor an
Equity Investment in an SPV otherwise permitted by the terms of this
Agreement are Transfers for purposes of this CLAUSE (ii);
(iii) at any time after the Effective Date, (a) the Transfer of any Asset
or Assets having a Fair Market Value at the time of Transfer of
$40,000,000 or less in the aggregate for all such Transfers in any
fiscal year, and (b) the Transfer of any Asset or Assets having a
Fair Market Value at the time of such Transfer equal to or less than
the sum of (1) the lesser of (x) $80,000,000 and (y) the then Unused
Asset Transfer Allowance PLUS (2) the lesser of (x) $50,000,000 and
(y) the sum of Incremental Earnings PLUS Incremental Losses, to the
date of such Transfer MINUS Aggregate Distributions to and including
14
the date of such Transfer (without giving effect to such Transfer on
such date); PROVIDED that (A) promptly, and in any event within
fifteen (15) days after the receipt by the Borrower or such
Subsidiary of the Net Proceeds of such Transfer, the Borrower shall
provide the Administrative Agent with written notice of such
Transfer, of the amount of the Fair Market Value and the Net
Proceeds thereof, and of the Borrower's election to make such
Transfer pursuant to this SECTION 9.3.8(iii) and as to whether such
Transfer is treated as a Transfer pursuant to clause (A), (b)(1) or
(b)(2) of this SECTION 9.3.8(iii), and (B) in the event of any
Transfer of any Asset (or related Assets) with a Fair Market Value
estimated by the Borrower in good faith to be in excess of
$25,000,000 to any SPVHC, any SPV, the Parent Company or any
Affiliate of the Parent Company (other than to the Borrower or a
Subsidiary of the Borrower), the Lenders shall have received a
written appraisal (dated a date, and using a method of appraisal and
assumptions, reasonably acceptable to the Required Lenders), from an
independent appraiser reasonably acceptable to the Required Lenders,
of the Fair Market Value of such Asset; PROVIDED that neither a
Distribution pursuant to SECTION 9.3.1(i) nor an Equity Investment
in an SPV otherwise permitted by the terms of this Agreement are
Transfers for purposes of this SECTION 9.3.8(iii);
U. Section 9.3.11 of the Credit Agreement is amended and restated in its
entirety to read as follows:
SECTION 9.3.11 BUSINESS ACTIVITIES. The Borrower will not
engage in any business other than acting as the holding company of
the Subsidiaries and the Restricted Entities; the Borrower will
not permit any of its Subsidiaries to engage in any business
activities other than Hydrocarbon transportation, construction,
procurement, sales, leasing, storage, transmission, gathering,
marketing, processing and other related business activities
("PERMITTED BUSINESS").
V. Section 9.3.12 of the Credit Agreement is amended by deleting the
phrase "natural gas transmission, construction, gathering, storage, leasing,
marketing, sales, procurement and processing and related activities" and
substituting therefor the phrase "Permitted Businesses".
W. Section 9.3.16 of the Credit Agreement is amended by inserting the
phrase "OR SECTION 9.3.8(ix)" immediately before the word "herein" appearing in
the last line of such Section.
15
X. Section 11.3.2 of the Credit Agreement is amended and restated in its
entirety to read as follows:
SECTION 11.3.2 MATERIAL ADVERSE CHANGE. There shall have
been no material adverse change, in the opinion of the Majority
Lenders, (i) since June 30, 1996, in the consolidated business
condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries (taken as a
whole), (ii) since the Effective Date, affecting the rights and
remedies of the Lenders under the Loan Documents, or (iii) since
the Effective Date, in the ability of the Borrower or the
Guarantors to perform their respective Obligations under the Loan
Documents to which they are a party.
Y. Section 12.1.6 of the Credit Agreement is amended by inserting the
phrase "any Co-Agent or the Administrative Agent at the request of" immediately
before the phrase "any Lender" appearing in the last line of such Section.
Z. Section 12.1.7 of the Credit Agreement is amended by inserting the
phrase "(taken as a whole)" immediately after the word "respect" appearing in
the ninth line of such Section.
AA. Section 12.1.8 of the Credit Agreement is amended (i) by inserting the
phrase "and Liens of the type permitted by SECTIONS 8.6(i), (iii) and (xviii) of
this Agreement" immediately after the word "Borrower" appearing in the fifth
line of such Section, (ii) by inserting the phrase "or membership interests"
immediately after the word "stock" appearing in the sixth line of such Section
and (iii) by inserting the phrase "or as a result of any transactions permitted
by SECTION 9.3.6" immediately after the phrase "SECTION 9.3.8(ix)" appearing in
the last line of such Section.
AB. Section 12.2 of the Credit Agreement is amended (i) by inserting the
phrase "with respect to the Borrower" immediately after the word "occur"
appearing in the second line of such Section and (ii) by deleting the phrase "or
SECTION 12.1.4" appearing immediately after the phrase "SECTION 12.1.1"
appearing in the last sentence of such Section and substituting therefor the
phrase ", or SECTION 12.1.4 with respect to the Borrower,".
AC. Section 13.5 of the Credit Agreement is amended by inserting the
phrase "guaranty or" immediately after the word "any" appearing in clause (ii)
in the seventh line of such Section.
AD. Section 14.6(a) of the Credit Agreement is amended by deleting the
phrase "natural gas" appearing in the third line of such Section and
substituting therefor the word "Hydrocarbons".
16
AE. Section 14.13 of the Credit Agreement is amended by inserting the
following phrase at the end of such Section immediately before the final period:
"; and PROVIDED FURTHER that for purposes of this SECTION 14.13 if
the survivor of such a merger is obligated in respect of all
Obligations of the Borrower hereunder and under all other Loan
Documents, a merger permitted pursuant to SECTION 9.3.6 hereof shall
not be an assignment or transfer of the Borrower's rights or
obligations hereunder."
AF. Schedules I and II and Exhibit 8.5 to the Credit Agreement are amended
and restated to read as set forth in Schedules I and II and Exhibit 8.5,
respectively, hereto. All references in any Loan Document to Schedules I or II
or Exhibit 8.5 to the Credit Agreement shall be deemed to refer to Schedule I or
II or Exhibit 8.5, respectively, hereto.
II. REALLOCATION OF COMMITMENTS. On the Amendment Effective Date
(hereinafter defined), the aggregate principal balance of the obligations
outstanding under the Credit Agreement is $443,800,000 (the "Prior
Indebtedness") as shown on SCHEDULE II hereto. Lenders hereby sell, assign,
transfer and convey, and Lenders (including, without limitation, those Lenders
not previously a party to the Credit Agreement) hereby purchase and accept so
much of the Prior Indebtedness and all of the rights, titles, benefits,
interests, privileges, claims, liens, security interests, and obligations
existing and to exist (collectively the "INTERESTS") such that each Lender's
Percentage of the outstanding Loans and Commitments under the Credit Agreement
as amended by this First Amendment shall be as set forth in SCHEDULE II hereto
as of the Amendment Effective Date. The foregoing assignment, transfer and
conveyance are without recourse to the Lenders and without any warranties
whatsoever as to title, enforceability, collectibility, documentation or freedom
from liens or encumbrances, in whole or in part, other than the warranty by each
Lender that it has not sold, transferred, conveyed or encumbered such Interests.
If as a result thereof, a Lender's Percentage of the outstanding Borrowings
under the Credit Agreement as amended by this First Amendment is less than its
outstanding loans and letter of credit reimbursement obligations under the
Credit Agreement on the Amendment Effective Date, the difference set forth in
the last column of SCHEDULE II shall be remitted to such Lender by the
Administrative Agent upon receipt of funds from the other Lenders shown in the
last column of SCHEDULE II on the Amendment Effective Date. Each Lender so
acquiring a part of such outstanding loans and letter of credit reimbursement
obligations assumes its Percentage of the outstanding Borrowings, Commitments,
rights, titles, interests, privileges, claims, liens, security interests,
benefits and obligations under the Credit Agreement as amended by this First
Amendment and the Security Documents and the
17
Intercreditor Agreement. Lenders are proportionately released from the
obligations assumed by Lenders so acquiring such obligations and, to that
extent, the Lenders so released shall have no further obligation under the
Credit Agreement as amended by this First Amendment and the Intercreditor
Agreement. The Borrower hereby represents and warrants that it has no defenses,
offsets or counterclaims to the Prior Indebtedness or its obligations or rights
under the Credit Agreement, this First Amendment or the Security Documents,
including, without limitation, the Interests being assigned pursuant to this
SECTION II. Each Lender confirms that it has received a copy of the Bank/Exxon
Agreement and represents, warrants and agrees that it has acquired its Interests
subject in all respects to the terms and provisions of the Bank/Exxon Agreement.
Any Loans outstanding under the Credit Agreement on the Amendment Effective Date
bearing interest at a Eurodollar Interest Rate shall be deemed continued as a
Loan under the Credit Agreement as amended by this First Amendment at such
Eurodollar Interest Rate and for the Interest Period with respect thereto under
the Credit Agreement.
III. EFFECTIVENESS. The effectiveness of this First Amendment is
conditioned upon (a) receipt by the Administrative Agent of the following, each
duly executed and each (except for the Notes, of which only one original shall
be signed for each Lender) in sufficient number of signed counterparts to
provide one for each Co-Agent and each Lender:
(i) the opinion of Messrs. Xxxxxxxxx & Xxxxxx, L.L.P., counsel for
the Borrower and certain Subsidiaries of the Borrower, in substantially
the form of EXHIBIT A;
(ii) a consent, acknowledgment and agreement as to each of the
Guaranties duly executed by each Guarantor or the Borrower, as the case
may be, in substantially the form of EXHIBITS B, C, D and E hereto
(collectively the "CONSENTS");
(iii) a certificate, in form and substance satisfactory to the
Co-Agents, of the Secretary or an Assistant Secretary and the President or
a Vice President of the Borrower and each Guarantor together with the
signatures and incumbency of officers of the Borrower and each Guarantor
and a certified copy of the resolutions with respect to the transactions
contemplated herein;
(iv) (for delivery to the Borrower) those existing Notes of the
Borrower in favor of those Lenders whose Original Designated Maximum
Commitments have increased, decreased or terminated as shown on SCHEDULE
II, marked "exchanged" or, in the case of a financial institution that
will no longer be a Lender, marked "cancelled";
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(v) (for delivery to each Lender whose Original Designated Maximum
Commitment has increased or decreased) new Notes, duly executed by the
Borrower, substantially in the form of Exhibit A to the Credit Agreement,
dated the Amendment Effective Date and with other appropriate insertions
as to payee and principal amount, payable to the order of each such
Lender, respectively, in a maximum principal amount equal to such Lender's
Original Designated Maximum Commitment, as amended hereby;
(vi) such other documents as any Co-Agent or any Lender may
reasonably request; and
(b) satisfaction of the conditions precedent that the purchase of and
payment for the A-Notes and the B-Notes so as to reallocate the commitments
under the Participation Agreement of the financial institutions party thereto
shall have been concurrently consummated.
IV. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce the
Lenders, the CoAgents and the Administrative Agent to enter into this First
Amendment, the Borrower hereby reaffirms, as of the date hereof, its
representations and warranties contained in Article VIII of the Credit
Agreement, as amended hereby, and in all other documents executed pursuant
thereto (except to the extent such representations and warranties relate solely
to an earlier date) and additionally represents and warrants as follows:
(i) The execution and delivery of this First Amendment and the
Consents and the performance by the Borrower and the Guarantors of their
respective Obligations under this First Amendment, the Credit Agreement as
amended hereby, and the Consents are within the Borrower's and the
Guarantors' respective corporate, limited liability company or partnership
powers, as the case may be, have been duly authorized by all necessary
corporate, limited liability company or partnership action, as the case
may be, have received all necessary governmental consents, authorizations,
orders and approvals (if any shall be required), and do not and will not
contravene or conflict with any provision (a) of Law, (b) of the charter,
bylaws, certificate of formation, limited liability company agreement or
partnership agreement of the Borrower or any Guarantors or (c) of any
material agreement binding upon the Borrower or any Guarantor or any of
them.
(ii) This First Amendment and the Credit Agreement as amended hereby
are, and the Consents, when duly executed and delivered will be, legal,
valid and binding obligations of the Borrower and each Guarantor party
thereto enforceable against each of the Borrower and such Guarantors in
accordance with their respective terms subject as to enforcement only to
19
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and general
principles of equity.
(iii) No litigation (including, without limitation, derivative
actions and take-or-pay actions), arbitration proceedings or governmental
proceedings are pending or to the best knowledge of the Borrower and its
Subsidiaries threatened against the Borrower, any of its Subsidiaries or
any SPV which would, if adversely determined, materially and adversely
affect the consolidated business condition (financial or otherwise),
operations, performance or properties of the Borrower and its Subsidiaries
(taken as a whole) (excluding any rulemaking or similar proceedings of
general applicability to natural gas pipelines and any appeal or petition
for review related thereto) or continued operations of the Borrower and
its Subsidiaries or which purports to affect the legality, validity or
enforceability of this First Amendment, the Credit Agreement as amended
hereby, the Notes, the Consents or any other Loan Document, except as set
forth in EXHIBIT 8.5 to the Credit Agreement.
(iv) No Event of Default or Unmatured Event of Default has occurred
and is continuing as of the date hereof.
V. RELEASE OF XXXXXXXX TRANSPORTATION COMPANY PLEDGED STOCK. The Lenders
hereby authorize the Collateral Agent to release from the Pledge Agreement from
TGC, and deliver to the Borrower, the certificate evidencing the shares of
Capital Stock of Xxxxxxxx Transportation Company, together with all stock powers
related thereto.
VI. DEFINED TERMS. Except as amended hereby, terms used herein when
defined in the Credit Agreement shall have the same meanings herein unless the
context otherwise requires. "AMENDMENT EFFECTIVE DATE" means the first Business
Day to occur on which all conditions to the effectiveness of this First
Amendment set forth in SECTION III hereof shall have been satisfied or waived by
all Lenders, which will in no event be later than December 31, 1996.
VII. REAFFIRMATION OF CREDIT AGREEMENT. This First Amendment shall be
deemed to be an amendment to the Credit Agreement, and the Credit Agreement, as
amended hereby, is hereby ratified, approved and confirmed in each and every
respect. All references to the Credit Agreement herein and in any other
document, instrument, agreement or writing shall hereafter be deemed to refer to
the Credit Agreement as amended hereby.
VIII. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE GOVERNED BY AND CONSTRUED IN
20
ACCORDANCE WITH THE LAWS OF SAID STATE. All obligations of the Borrower and
rights of the Collateral Agent, the Administrative Agent, the Co-Agents, the
Issuing Bank, the Lenders and any other holders of the Notes expressed herein or
in the Notes shall be in addition to and not in limitation of those provided by
applicable law.
IX. SEVERABILITY. Whenever possible each provision of this First Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this First Amendment shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this First Amendment.
X. EXECUTION IN COUNTERPARTS. This First Amendment may be executed in any
number of counterparts and by the different parties on separate counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same agreement.
XI. SECTION CAPTIONS. Section captions used in this First Amendment are
for convenience of reference only, and shall not affect the construction of this
First Amendment.
XII. SUCCESSORS AND ASSIGNS. This First Amendment shall be binding upon
the Borrower, the Lenders, the Co-Agents and the Administrative Agent and their
respective successors and assigns, and shall inure to the benefit of the
Borrower, the Lenders, the Collateral Agent, the CoAgents, the Issuing Bank and
the Administrative Agent and the respective successors and assigns of the
Lenders, the Collateral Agent, the Co-Agents, the Issuing Bank and the
Administrative Agent; PROVIDED, HOWEVER, that the Borrower may not assign or
transfer its rights or obligations hereunder without the prior written consent
of all Lenders; PROVIDED, FURTHER, HOWEVER, that the successors and assigns of
the parties hereto will take their interests subject to the terms and provisions
of the Bank/Exxon Agreement.
XIII. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS FIRST AMENDMENT OR UNDER
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS FIRST AMENDMENT, AND AGREES THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
21
XIV. NOTICE. THIS WRITTEN FIRST AMENDMENT TOGETHER WITH THE
CREDIT AGREEMENT, THE CONSENTS AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
22
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed as of the day and year first above written.
TEJAS-ACADIAN HOLDING COMPANY
By:
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE,
as Administrative Agent, as a Co-Agent, and
as a Lender
By:
Name:
Title:
BANK OF MONTREAL, HOUSTON AGENCY,
as a Co-Agent and as a Lender
By:
Name:
Title:
CITIBANK, N.A.
as a Co-Agent and as a Lender
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
BANKERS TRUST COMPANY
By:
Name:
Title:
BANQUE PARIBAS
By:
Name:
Title:
By:
Name:
Title:
CHRISTIANIA BANK OG KREDITKASSE
By:
Name:
Title:
By:
Name:
Title:
CREDIT LYONNAIS
By:
Name:
Title:
CREDIT SUISSE
By:
Name:
Title:
By:
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Name:
Title:
THE FUJI BANK, LIMITED
By:
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By:
Name:
Title:
LONG TERM CREDIT BANK OF JAPAN,
LIMITED
By:
Name:
Title:
NATIONAL WESTMINSTER BANK PLC.,
NEW YORK BRANCH
By:
Name:
Title:
NATIONAL WESTMINSTER BANK PLC.,
NASSAU BRANCH
By:
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By:
Name:
Title:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Name:
Title:
UNION BANK OF SWITZERLAND,
HOUSTON AGENCY
By:
Name:
Title:
By:
Name:
Title:
XXXXX FARGO BANK (TEXAS) N.A.
By:
Name:
Title:
BANK OF AMERICA ILLINOIS
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, ATLANTA
AGENCY
By:
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
For purposes of selling, assigning, transferring and conveying its
Interests, the undersigned has caused this First Amendment to be executed by its
officer thereunto duly authorized as of the date and year first above written.
THE FIRST NATIONAL BANK OF BOSTON
By:
Name:
Title:
