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Exhibit 10(iii)
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment") is
made and entered into on November ___, 1998 and effective as of September 30,
1998, by and among KCS MEDALLION RESOURCES, INC., a Delaware corporation
(formerly known as InterCoast Oil and Gas Company) ("KCS Medallion"), KCS
ENERGY, INC., a Delaware corporation ("KCS"), KCS ENERGY SERVICES, INC., a
Delaware corporation ("KCS Energy Services"), and MEDALLION GAS SERVICES, INC.,
an Oklahoma corporation (formerly known as InterCoast Gas Services Company)
("Medallion Gas Services," together with KCS Medallion, KCS, and KCS Energy
Services, each individually a "Borrower" and, collectively, the "Borrowers"),
each lender that is a signatory or becomes a party as provided in the Agreement
(individually, together with its successors and such assigns, a "Lender" and,
collectively, together with their respective successors and such assigns, the
"Lenders"), CANADIAN IMPERIAL BANK OF COMMERCE, a Canadian chartered bank,
acting through its New York Agency (in its individual capacity, "CIBC"), as
agent for the Lenders (in such capacity, together with its successors in such
capacity pursuant to the terms hereof, the "Agent").
W I T N E S S E T H:
WHEREAS, on January 2, 1997, the Borrowers and the Lenders entered into a
Credit Agreement and a First Amendment to Credit Agreement dated March 24, 1998
(as amended, the "Agreement") whereby, upon the terms and conditions therein
stated, the Lenders agreed to make loans to the Borrowers up to the aggregate
amount of $150,000,000.00 to be used by the Borrowers for the purposes set forth
in Section 2.6 of the Agreement; and
WHEREAS, the Borrowers and the Lenders mutually desire to amend certain
aspects of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE 1
GENERAL TERMS
Section 1.1 Terms Defined in Agreement. As used in this Second Amendment,
except as may otherwise be provided in Section 1.2 hereof, all capitalized terms
which are defined in the Agreement shall have the same meaning herein as
therein, all of such terms and definitions being incorporated herein by
reference.
Section 1.2 Amended Definitions. The following terms which are defined in
Section 1.2 of the Agreement are amended to read as follows:
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"Agreement" shall mean this Credit Agreement, as amended by the
First Amendment and Second Amendment to the Credit Agreement, as the same
may from time to time be further amended or supplemented.
"Tangible Net Worth" shall mean (a) total assets, as would be
reflected on a balance sheet of the KCS Medallion Group or KCS and its
Subsidiaries, as the case may be, prepared on a consolidated basis and in
accordance with GAAP, exclusive of Intellectual Property, experimental or
organization expenses, franchises, licenses, permits, and other intangible
assets, treasury stock, and goodwill minus (b) total liabilities, as would
be reflected on a balance sheet of the KCS Medallion Group or KCS and its
Subsidiaries, as the case may be, prepared on a consolidated basis and in
accordance with GAAP plus (c) the after-tax amounts of any ceiling
limitation write downs (such after-tax amounts added by virtue of this
item (c) not to exceed (i) in the case of the KCS Medallion Group,
$25,000,000 and (ii) in the case of KCS and its Subsidiaries, $40,000,000,
in the aggregate on and after September 30, 1998).
Section 1.3 Confirmation and Extent of Changes. All terms which are
defined in Section 1.2 of the Agreement shall remain unchanged except as
specifically provided in Section 1.2 of this Second Amendment.
ARTICLE 2
MODIFICATIONS
Section 2.1 Tangible Net Worth of KCS Medallion. Section 6.16 of the
Agreement shall be deleted in its entirety and substituted with the following:
"6.16 Tangible Net Worth of KCS Medallion. Permit Tangible Net Worth of
KCS Medallion Group as of September 30, 1998, to be less than
$12,000,000 and thereafter at the close of any fiscal quarter to be
less than $12,000,000 plus 50% of positive Net Income of KCS
Medallion Group and 75% of the net proceeds from any offering by KCS
Medallion Group or any of their respective Subsidiaries of capital
stock or rights to acquire capital stock in each such quarter."
Section 2.2 Tangible Net Worth of KCS. Section 6.18 of the Agreement shall
be deleted in its entirety and substituted with the following:
"6.18 Tangible Net Worth of KCS. Permit Tangible Net Worth of KCS and its
Subsidiaries on a consolidated basis as of September 30, 1998 to be
less than $80,000,000 and thereafter at the close of any fiscal
quarter to be less than $80,000,000 plus 50% of positive Net Income
of KCS and its Subsidiaries on a consolidated basis and 75% of the
net proceeds from any offering by KCS
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or any of its Subsidiaries of capital stock or rights (other than
rights in connection with debt convertible into Equity Securities)
to acquire capital stock in each such quarter."
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations Repeated. The representations and warranties
of the Borrowers contained in the Agreement and the other Security Instruments
and otherwise made in writing by or on behalf of the Borrowers pursuant to the
Agreement and the other Security Instruments were true and correct when made,
and are true and correct in all material respects at and as of the time of
delivery of this Second Amendment, except for such changes in the facts
represented and warranted of which the Lenders have been made aware or as are
not in violation of the Agreement, this Second Amendment or the other Security
Instruments.
Section 3.2 Security Instruments. All Security Instruments to which the
Borrowers are parties shall secure the Notes and all of the Obligations of the
Borrowers to the Lenders, whether or not such Security Instruments shall be
expressly amended or supplemented in connection herewith.
Section 3.3 Compliance with Obligations. The Borrowers have performed and
complied in all material respects with all agreements and conditions contained
in the Agreement and the Security Instruments required to be performed or
complied with by the Borrowers prior to or at the time of delivery of this
Second Amendment.
Section 3.4 Defaults. After giving effect to this Second Amendment there
will exist, no default or Event of Default, or any condition, or act which
constitutes, or with notice or lapse of time (or both) would constitute an Event
of Default under any loan agreement, note agreement, or trust indenture to which
the Borrowers are parties.
Section 3.5 No Amendments. Nothing in Article 3 of this Second Amendment
is intended to amend any of the representations or warranties contained in the
Agreement.
ARTICLE 4
MISCELLANEOUS
Section 4.1 Extent of Amendments. Except as otherwise expressly provided
herein, the Agreement, the Note, the Security Instruments and the other
instruments and agreements referred to therein are not amended, modified or
affected by this Second Amendment. Except as expressly set forth herein, all of
the terms, conditions, covenants, representations, warranties and all other
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provisions of the Agreement are herein ratified and confirmed and shall remain
in full force and effect.
Section 4.2 References. On and after the date on which this Second
Amendment becomes effective, the terms, "this Agreement," "hereof," "herein,"
"hereunder" and terms of like import, when used herein or in the Agreement
shall, except where the context otherwise requires, refer to the Agreement, as
amended by this Second Amendment.
Section 4.3 Counterparts. This Second 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; each counterpart
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed on this ____ day of November, 1998; provided that this
Second Amendment shall for all purposes be effective as of the 30th day of
September, 1998, as if originally signed on that date.
BORROWERS:
KCS MEDALLION RESOURCES, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Principal Place of Business
and Chief Executive Office:
0000 Xxxxx Xxxxx Xxx.
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention:
Telecopy:
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KCS ENERGY, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Principal Place of Business
and Chief Executive Office:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
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KCS ENERGY SERVICES, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Principal Place of Business
and Chief Executive Office:
0000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention:
Telecopy:
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MEDALLION GAS SERVICES, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
Principal Place of Business
and Chief Executive Office:
0000 Xxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention:
Telecopy:
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LENDERS:
BANK ONE, TEXAS
NATIONAL ASSOCIATION
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
COMERICA BANK-TEXAS
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
SOCIETE GENERALE, SOUTHWEST AGENCY
By:________________________________________
Name:______________________________________
Title:_____________________________________
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Address for Notices:
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxx
DEN NORSKE BANK ASA
By:________________________________________
Name:______________________________________
Title:_____________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
Three Xxxxx Center
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
BANQUE PARIBAS
By:________________________________________
Name:______________________________________
Title:_____________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Lispman
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CIBC, INC.
By:________________________________________
Xxxxxxxx Xxxx
Authorized Signatory
Address for Notices:
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telecopy: (000) 000-0000
AGENT:
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
By:________________________________________
Xxxxxxxx Xxxx
Authorized Signatory
Address for Notices:
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Syndications Group
Telecopy: (000) 000-0000
with copies to:
CANADIAN IMPERIAL BANK OF COMMERCE
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telecopy: (000) 000-0000
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with copies to:
CIBC INC.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telecopy: (000) 000-0000
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