1
EXHIBIT (4)(iii)
--------------------------------------------------------------------------------
KCS ENERGY, INC.,
SUBSIDIARY GUARANTORS
NAMED HEREIN
AND
FLEET NATIONAL BANK
TRUSTEE
----------
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 2, 1996
----------
SUPPLEMENTING AND AMENDING THE INDENTURE
DATED AS OF
JANUARY 15, 1996
--------------------------------------------------------------------------------
2
THIS FIRST SUPPLEMENTAL INDENTURE dated as of December 2, 1996 is
between KCS ENERGY, INC., a Delaware corporation (the "Company"), the SUBSIDIARY
GUARANTORS (as defined herein) and FLEET NATIONAL BANK (formerly known as Fleet
National Bank of Connecticut), a national banking association (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 11% Senior
Notes due 2003, Series A (the "Series A Securities") and an issue of 11% Senior
Notes due 2003, Series B (the "Series B Securities" and the Series A Securities
and the Series B Securities, as amended or supplemented from time to time in
accordance with the terms of the Indenture (as defined herein), being herein
collectively called the "Securities"), of substantially the tenor and in the
aggregate principal amount set forth in the Indenture; and the Company and the
Subsidiary Guarantors have heretofore made, executed and delivered to the
Trustee its Indenture dated as of January 15, 1996 (such Indenture being
sometimes referred to herein as the "Original Indenture") pursuant to which the
Securities are issuable.
The Securities are guaranteed by the Subsidiary Guarantors (as defined
in the Indenture) on the terms provided in the Indenture.
It is deemed desirable to supplement and amend the Original Indenture
to add a Restricted Subsidiary of the Company as a Subsidiary Guarantor (the
Original Indenture, as so supplemented and amended by this First Supplemental
Indenture, being sometimes referred to herein as the "Indenture").
Article X, Section 10.13 of the Original Indenture provides that
certain Restricted Subsidiaries of the company shall become Subsidiary
Guarantors by executing and delivering a supplemental indenture agreeing to be
bound by the terms of the Original Indenture.
The Series A Securities were issued on January 25, 1996 under the
Original Indenture and the Series B Securities were issued on June 5, 1996, also
under the Original Indenture.
All things necessary to authorize the execution and delivery of this
First Supplemental Indenture to add KCS Energy Services, Inc. as a Subsidiary
Guarantor pursuant to the Original Indenture, as provided for in this First
Supplemental Indenture, and to make the Original Indenture, as supplemented and
amended by this First Supplemental Indenture, a valid agreement of the Company,
in accordance with its terms, have been done.
3
NOW, THEREFORE, in consideration of the premises and the purchase of
the Securities by the Holders, the Company, the Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective Holders from time to time of the Securities as follows:
ARTICLE I
MODIFICATION OF THE ORIGINAL INDENTURE
Section 1.1 Amendment of Article I of the Original Indenture. Section
1.1 of the Original Indenture is amended by changing the definition of
"Subsidiary Guarantor" to read as follows:
"Subsidiary Guarantor" means i) Enercorp Gas Marketing, Inc.,
a Delaware corporation, ii) KCS Resources, Inc., a Delaware
corporation, iii) KCS Michigan Resources, Inc., a Delaware corporation,
iv) KCS Pipeline Systems, Inc., a Delaware corporation, v) KCS Energy
Marketing, Inc., a New Jersey corporation, vi) KCS Power Marketing,
Inc., a Delaware corporation, vii) KCS Energy Risk Management, Inc., a
Delaware corporation, viii) National Enerdrill Corporation, a New
Jersey corporation, ix) Proliq, Inc., a New Jersey corporation, x) KCS
Energy Services, Inc., a Delaware corporation, xi) each of the
Company's other Restricted Subsidiaries, if any, executing a
supplemental indenture in compliance with the provisions of Section
10.13(a) hereof and xii) any Person that becomes a successor guarantor
of the Securities in compliance with the provisions of Section 13.2
hereof.
ARTICLE II
ADDITIONAL SUBSIDIARY GUARANTOR
Section 2.1 Addition of a Subsidiary Guarantor. KCS Energy Services,
Inc., a Delaware corporation and wholly owned subsidiary of the company, by
execution of this First Supplemental Indenture hereby agrees to be bound by the
terms of the Indenture as a Subsidiary Guarantor.
Section 2.2 Subsidiary Guarantee of the Securities. ARTICLE XIII of the
Original Indenture, incorporated herein by reference,
-2-
4
contains the Subsidiary Guarantee, to which KCS Energy Services, Inc. agrees to
be bound by execution and delivery of this First Supplemental Indenture.
ARTICLE III
PARTICULAR REPRESENTATIONS
AND COVENANTS OF THE COMPANY
Section 3.1 Authority of the Company. The Company is duly authorized by
a resolution of the Board of Directors to execute and deliver this First
Supplemental Indenture, and all corporate action on its part required for the
execution and delivery of this First Supplemental Indenture has been duly and
effectively taken.
Section 3.2 Authority of the Subsidiary Guarantors. Each of the
Subsidiary Guarantors is duly authorized by a resolution of its Board of
Directors to execute and deliver this First Supplemental Indenture, and all
corporation action on the part of each required for the execution and delivery
of this First Supplemental Indenture has been duly and effectively taken.
Section 3.3 Truth of Recitals and Statements. The Company warrants that
the recitals of fact and statements contained in this First Supplemental
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished hereunder will be
true and correct.
ARTICLE IV
CONCERNING THE TRUSTEE
Section 4.1 Acceptance of Trusts. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and conditions
set forth in the Original Indenture and in this First Supplemental Indenture, to
all of which the Company, the Subsidiary Guarantors and the respective Holders
of Securities at any time hereafter outstanding agree by their acceptance
thereof.
Section 4.2 Responsibility of Trustee for Recitals, etc. The recitals
and statements contained in this First Supplemental Indenture shall be taken as
the recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this First Supplemental
Inden-
-3-
5
ture, except that the Trustee is duly authorized to execute and deliver this
First Supplemental Indenture.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Relation to the Indenture. The provisions of this First
Supplemental Indenture shall become effective immediately upon the execution and
delivery hereof. This First Supplemental Indenture and all the terms and
provisions herein contained shall form a part of the Indenture as fully and with
the same effect as if all such terms and provisions had been set forth in the
Original Indenture. The Original Indenture is hereby ratified and confirmed and
shall remain and continue in full force and effect in accordance with the terms
and provisions thereof, as supplemented and amended by this First Supplemental
Indenture, and the Original Indenture and this First Supplemental Indenture
shall be read, taken and construed together as one instrument.
Section 5.2 Meaning of Terms. Any capitalized term used in this First
Supplemental Indenture and not defined herein that is defined in the Original
Indenture shall have the meaning specified in the Original Indenture, unless the
context shall otherwise require.
Section 5.3 Counterparts of First Supplemental Indenture. This First
Supplemental Indenture may be executed in several counterparts, each of which
shall be deemed and original, but all of which together shall constitute one
instrument.
Section 5.4 Governing Law. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
Company: KCS ENERGY, INC.
By:
---------------------------------------
Xxxxx X. Xxxxxx, Vice President
and Chief Financial Officer
-4-
6
Subsidiary Guarantors: ENERCORP GAS MARKETING, INC.,
KCS RESOURCES, INC.,
KCS MICHIGAN RESOURCES, INC.,
KCS PIPELINE SYSTEMS,INC.,
KCS ENERGY MARKETING, INC.,
KCS POWER MARKETING,INC.,
KCS ENERGY RISK MANAGEMENT, INC.,
NATIONAL ENERDRILL CORPORATION,
PROLIQ, INC., and
KCS ENERGY SERVICES, INC.
By:
----------------------------------------
Xxxxx X. Xxxxxx, Vice President
Trustee: FLEET NATIONAL BANK,
As Trustee
By:
----------------------------------------
Xxxxx X. Xxxxxx
Assistant Vice President
-5-
7
EXHIBIT (4)(iii)
--------------------------------------------------------------------------------
KCS ENERGY, INC.,
SUBSIDIARY GUARANTORS
Named Herein
and
FLEET NATIONAL BANK
Trustee
----------
SECOND SUPPLEMENTAL INDENTURE
Dated as of January 3, 1997
----------
Supplementing and Amending the Indenture
dated as of
January 15, 1996
--------------------------------------------------------------------------------
8
THIS SECOND SUPPLEMENTAL INDENTURE dated as of January 3, 1997 is
between KCS ENERGY, INC., a Delaware corporation (the "Company"), the SUBSIDIARY
GUARANTORS (as defined herein) and FLEET NATIONAL BANK (formerly known as Fleet
National Bank of Connecticut), a national banking association (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 11% Senior
Notes due 2003, Series A (the "Series A Securities") and an issue of 11% Senior
Notes due 2003, Series B (the "Series B Securities" and the Series A Securities
and the Series B Securities, as amended or supplemented from time to time in
accordance with the terms of the Indenture (as defined herein), being herein
collectively called the "Securities"), of substantially the tenor and in the
aggregate principal amount set forth in the Indenture; and the Company and the
Subsidiary Guarantors have heretofore made, executed and delivered to the
Trustee its Indenture dated as of January 15, 1996 (such Indenture being
sometimes referred to herein as the "Original Indenture") pursuant to which the
Securities are issuable. The Original Indenture was supplemented by a First
Supplemental Indenture dated as of December 2, 1996 (the "First Supplement")
pursuant to which an additional Subsidiary Guarantor became party to the
Original Indenture.
The Securities are guaranteed by the Subsidiary Guarantors (as defined
in the Indenture) on the terms provided in the Indenture.
It is deemed desirable to supplement and amend the Original Indenture
to add four Restricted Subsidiaries of the Company as Subsidiary Guarantors (the
Original Indenture, as supplemented by the First Supplement and as so
supplemented and amended by this Second Supplemental Indenture, being sometimes
referred to herein as the "Indenture").
Article X, Section 10.13 of the Original Indenture provides that
certain Restricted Subsidiaries of the company shall become Subsidiary
Guarantors by executing and delivering a supplemental indenture agreeing to be
bound by the terms of the Original Indenture.
The Series A Securities were issued on January 25, 1996 under the
Original Indenture and the Series B Securities were issued on June 5, 1996, also
under the Original Indenture.
9
All things necessary to authorize the execution and delivery of this
Second Supplemental Indenture to add KCS Medallion Resources, Inc., Medallion
Gas Services, Inc., GED Energy Services, Inc. and Medallion California
Properties Company, as Subsidiary Guarantors pursuant to the Original Indenture
as provided for in this Second Supplemental Indenture, and to make the Original
Indenture, as supplemented and amended by The First Supplement and this Second
Supplemental Indenture, a valid agreement of the Company, in accordance with its
terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of
the Securities by the Holders, the Company, the Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective Holders from time to time of the Securities as follows:
ARTICLE I
MODIFICATION OF THE ORIGINAL INDENTURE
Section 1.1 Amendment of Article I of the Original Indenture. Section
1.1 of the Original Indenture is amended by changing the definition of
"Subsidiary Guarantor" to read as follows:
"Subsidiary Guarantor" means i) Enercorp Gas Marketing, Inc.,
a Delaware corporation, ii) KCS Resources, Inc., a Delaware
corporation, iii) KCS Michigan Resources, Inc., a Delaware corporation,
iv) KCS Pipeline Systems, Inc., a Delaware corporation, v) KCS Energy
Marketing, Inc., a New Jersey corporation, vi) KCS Power Marketing,
Inc., a Delaware corporation, vii) KCS Energy Risk Management, Inc., a
Delaware corporation, viii) National Enerdrill Corporation, a New
Jersey corporation, ix) Proliq, Inc., a New Jersey corporation, x) KCS
Energy Services, Inc., a Delaware corporation, xi) KCS Medallion
Resources, Inc., a Delaware corporation, xii) Medallion Gas Services,
Inc., an Oklahoma corporation, xiii) GED Energy Services, Inc., a
Delaware corporation, xiv) Medallion California Properties Company, a
Texas corporation xv) each of the Company's other Restricted
Subsidiaries, if any, executing a supplemental indenture in compliance
with the provisions of Section 10.13(a) hereof and xvi) any Person that
becomes a successor guarantor of the Securities in compliance with the
provisions of Section 13.2 hereof.
-2-
10
ARTICLE II
ADDITIONAL SUBSIDIARY GUARANTOR
Section 2.1 Addition of Subsidiary Guarantors. Each of KCS Medallion
Resources, Inc., a Delaware corporation, Medallion Gas Services, Inc., an
Oklahoma corporation, GED Energy Services, Inc., a Delaware corporation, and
Medallion California Properties Company, a Texas corporation, each of which is a
wholly owned direct or indirect subsidiary of the company, by execution of this
Second Supplemental Indenture hereby agrees to be bound by the terms of the
Indenture as a Subsidiary Guarantor.
Section 2.2 Subsidiary Guarantee of the Securities. ARTICLE XIII of the
Original Indenture, incorporated herein by reference, contains the Subsidiary
Guarantee, to which KCS Medallion Resources, Inc, Medallion Gas Services, Inc.,
GED Energy Services, Inc. and Medallion California Properties Company agree to
be bound by execution and delivery of this Second Supplemental Indenture.
ARTICLE III
PARTICULAR REPRESENTATIONS
AND COVENANTS OF THE COMPANY
Section 3.1 Authority of the Company. The Company is duly authorized by
a resolution of the Board of Directors to execute and deliver this Second
Supplemental Indenture, and all corporate action on its part required for the
execution and delivery of this Second Supplemental Indenture has been duly and
effectively taken.
Section 3.2 Authority of the Subsidiary Guarantors. Each of the
Subsidiary Guarantors is duly authorized by a resolution of its Board of
Directors to execute and deliver this Second Supplemental Indenture, and all
corporation action on the part of each required for the execution and delivery
of this Second Supplemental Indenture has been duly and effectively taken.
Section 3.3 Truth of Recitals and Statements. The Company warrants that
the recitals of fact and statements contained in this Second Supplemental
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished hereunder will be
true and correct.
-3-
11
ARTICLE IV
CONCERNING THE TRUSTEE
Section 4.1 Acceptance of Trusts. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and conditions
set forth in the Original Indenture, the First Supplement and in this Second
Supplemental Indenture, to all of which the Company, the Subsidiary Guarantors
and the respective Holders of Securities at any time hereafter outstanding agree
by their acceptance thereof.
Section 4.2 Responsibility of Trustee for Recitals, etc. The recitals
and statements contained in this Second Supplemental Indenture shall be taken as
the recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Second Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this Second Supplemental Indenture.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1 Relation to the Indenture. The provisions of this Second
Supplemental Indenture shall become effective immediately upon the execution and
delivery hereof. This Second Supplemental Indenture and all the terms and
provisions herein contained shall form a part of the Indenture as fully and with
the same effect as if all such terms and provisions had been set forth in the
Original Indenture. The Original Indenture is hereby ratified and confirmed and
shall remain and continue in full force and effect in accordance with the terms
and provisions thereof, as supplemented and amended by the First Supplement and
this Second Supplemental Indenture, and the Original Indenture, First Supplement
and this Second Supplemental Indenture shall be read, taken and construed
together as one instrument.
Section 5.2 Meaning of Terms. Any capitalized term used in this Second
Supplemental Indenture and not defined herein that is defined in the Original
Indenture shall have the meaning specified in the Original Indenture, unless the
context shall otherwise require.
Section 5.3 Counterparts of Second Supplemental Indenture. This Second
Supplemental Indenture may be executed in several
-4-
12
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
Section 5.4 Governing Law. This Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
Company: KCS ENERGY, INC.
By:
--------------------------------
Xxxxx X. Xxxxxx, Vice President
and Chief Financial Officer
Subsidiary Guarantors: ENERCORP GAS MARKETING, INC.,
KCS RESOURCES, INC.,
KCS MICHIGAN RESOURCES, INC.,
KCS PIPELINE SYSTEMS,INC.,
KCS ENERGY MARKETING, INC.,
KCS POWER MARKETING,INC.,
KCS ENERGY RISK MANAGEMENT, INC.,
NATIONAL ENERDRILL CORPORATION,
PROLIQ, INC.,
KCS ENERGY SERVICES, INC.,
KCS MEDALLION RESOURCES, INC.,
MEDALLION GAS SERVICES, INC.,
GED ENERGY SERVICES, INC., and
MEDALLION CALIFORNIA PROPERTIES
COMPANY
By:
--------------------------------------------
Xxxxx X. Xxxxxx, Vice President
Trustee: FLEET NATIONAL BANK,
As Trustee
By:
--------------------------------------------
Xxxxx X. Xxxxxx
Assistant Vice President
-5-
13
EXHIBIT (4)(iii)
--------------------------------------------------------------------------------
KCS ENERGY, INC.,
SUBSIDIARY GUARANTORS
NAMED HEREIN
AND
STATE STREET BANK AND TRUST COMPANY
TRUSTEE
----------
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 20, 2001
----------
SUPPLEMENTING AND AMENDING THE INDENTURE
DATED AS OF
JANUARY 15, 1996
--------------------------------------------------------------------------------
14
THIS THIRD SUPPLEMENTAL INDENTURE dated as of February 20, 2001 is
between KCS ENERGY, INC., a Delaware corporation (the "COMPANY"), the SUBSIDIARY
GUARANTORS (as defined herein) and STATE STREET BANK AND TRUST COMPANY, a
national banking association (the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of 11% Senior
Notes due 2003, Series A (the "SERIES A SECURITIES") and an issue of 11% Senior
Notes due 2003, Series B (the "SERIES B SECURITIES") and the Series A Securities
and the Series B Securities, as amended or supplemented from time to time in
accordance with the terms of the Indenture (as defined herein), being herein
collectively called the ("SECURITIES"), of substantially the tenor and in the
aggregate principal amount set forth in the Indenture; and the Company and the
Subsidiary Guarantors have heretofore made, executed and delivered to the
Trustee its Indenture dated as of January 15, 1996 (such Indenture being
sometimes referred to herein as the "ORIGINAL INDENTURE") pursuant to which the
Securities are issuable. $150,000,000 in total aggregate principal amount of
Securities have been issued pursuant to the Original Indenture and are
outstanding. The Original Indenture was supplemented by (a) a First Supplemental
Indenture dated as of December 2, 1996 (the "FIRST SUPPLEMENT") pursuant to
which an additional Subsidiary Guarantor became party to the Original Indenture
and (b) a Second Supplemental Indenture dated as of January 3, 1997 (the "SECOND
SUPPLEMENT") pursuant to which four additional Subsidiary Guarantors became
parties to the Original Indenture.
It is deemed desirable to supplement and amend the Original Indenture
as set forth in this Third Supplemental Indenture (the Original Indenture, as
supplemented by the First Supplement and the Second Supplement and as so
supplemented and amended by this Third Supplemental Indenture, being sometimes
referred to herein as the "INDENTURE").
Provision for the making of this Third Supplemental Indenture is
contained in an order (the "ORDER") dated January 30, 2001 of the United States
Bankruptcy Court for the District of Delaware in In re KCS Energy, Inc., et al.,
Debtors, Case No. 00-0028 (PJW) and Case Nos. 00-0310 (PJW) through 00-0318
(PJW) confirming the KCS Energy, Inc., et al., Debtors, Chapter 11 Plan of
Reorganization (the "PLAN").
Pursuant to the Plan, the Company will distribute to the Holders cash
equal to the sum of (a) $60,000,000, plus the amount of past due accrued and
unpaid interest on the $60,000,000 in aggregate principal amount of Securities
as of the effective date of the Order, compounded semi-annually at 11% per
annum, whereupon $60,000,000 in principal amount of the Securities shall be
deemed paid and shall no longer be outstanding and (b) the amount of past due
accrued and unpaid interest on $90,000,000 in
15
aggregate principal amount of Securities as of January 15, 2001, compounded
semi-annually at 11% per annum. After such payments, the remaining aggregate
principal amount of Securities outstanding will be $90,000,000. In accordance
with the Order, the obligations of the Company under the remaining $90,000,000
in Securities have been renewed and shall constitute the obligations of the
Company, as reorganized pursuant to the Order and the Plan, and the Company, as
so reorganized, is assuming all of the obligations and duties of the Company
under the Indenture. In accordance with the Order, the unconditional guarantees
of such remaining Securities by all of the Subsidiary Guarantors are reinstated
and are the unconditional obligations of the Subsidiary Guarantors, as
reorganized pursuant to the Order and the Plan.
All things necessary to authorize the execution and delivery of this
Third Supplemental Indenture to amend certain provisions of the Original
Indenture as set forth in this Third Supplemental Indenture, and to make the
Original Indenture, as supplemented and amended by the First Supplement, the
Second Supplement and this Third Supplemental Indenture, a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises, the Company, the
Subsidiary Guarantors and the Trustee mutually covenant and agree:
ARTICLE I
MODIFICATION OF THE ORIGINAL INDENTURE
1.1 New Definitions. Section 1.1 of the Original Indenture is
amended to add the following definitions:
(i) "Production Payment 2001 Facility" means the
transactions contemplated by one or more Purchase and
Sale Agreements dated as of February 14 2001, among
KCS Resources, Inc., KCS Energy, Services, Inc., KCS
Michigan Resources, Inc., KCS Medallion Resources,
Inc. and Star VPP, LP as the same may be amended,
modified, supplemented, extended, restated, replaced
or renewed from time to time, including the sale by
certain of the Restricted Subsidiaries of a term
overriding royalty interest and/or production payment
in a specified volume or dollar denominated amount of
hydrocarbons (or the proceeds thereof) in designated
Properties for an aggregate purchase price of
approximately $178,000,000.
(ii) "Production Payment 2001 Obligations" means, as of
any date on which the amount thereof is to be
determined, the obligations of the
-2-
16
Company or any Restricted Subsidiary under the
Production Payment 2001 Facility either recorded as
liabilities in accordance with GAAP or as deferred
revenues in accordance with GAAP.
(iii) "SEC PV-10 Value" means the SEC PV-10 Value of the
Company and its Restricted Subsidiaries described in,
and calculated in accordance with, the provisions of
Sections 10.10(d) and (e) hereof.
(iv) "Senior Debt" means, as of the date on which the
amount thereof is to be determined, the principal
amount outstanding under the Bank Credit Facilities
together with the face amount of all letters of
credit issued and outstanding under the Bank Credit
Facilities and the outstanding principal amount of
the Securities, collectively.
(v) "Senior Subordinated Notes" means the Company's
8.875% Senior Subordinated Notes due January 15, 2006
issued pursuant to the Indenture governing the Senior
Subordinated Notes dated as of January 15, 1998, as
amended.
(vi) "Series A Convertible Preferred Stock" means the
Series A Convertible Preferred Stock of the Company
having a stated value and liquidation preference of
$30,000,000.
1.2. Definition of Bank Credit Facilities. The definition of
"Bank Credit Facilities" in the Original Indenture is amended to read as
follows:
"Bank Credit Facilities" means one or more credit or
loan agreements among the Company, the Restricted
Subsidiaries signatory thereto, the lenders signatory
thereto, and one or more agents signatory thereto
providing for secured loans to the Company and one or
more of its Restricted Subsidiaries together with any
guarantees relating thereto, as the same may be
amended, modified, supplemented, extended, restated,
replaced, renewed or refinanced from time to time in
one or more credit agreements, loan agreements,
instruments or similar agreements, as such may be
further amended, modified, supplemented, extended,
restated, replaced, renewed or refinanced.
1.3. Definition of Permitted Indebtedness. The definition of
"Permitted Indebtedness" in the Original Indenture is amended by amending clause
(i) to read as follows, by striking the word "and" at the end of clause (ix),
changing the period at the end of clause (x) to a semicolon, adding the word
"and" after the semicolon at the end of clause (x) and adding a clause (xi)
reading as follows:
-3-
17
(i) Indebtedness under the Bank Credit Facilities in an
aggregate principal amount at any one time
outstanding not to exceed the greater of $165,000,000
plus an amount to secure hedging obligations or 15%
of Adjusted Consolidated Net Tangible Assets (the
"MAXIMUM CREDIT AMOUNT"), plus all interest and fees
under such facilities and any guarantee of any such
Indebtedness; PROVIDED, HOWEVER, that such
Indebtedness shall not constitute Permitted
Indebtedness unless the total of (x) the aggregate
principal amount outstanding under the Bank Credit
Facilities plus (y) the outstanding amounts, if any,
of the Production Payment 2001 Obligations shall not
exceed (i) $190,000,000 at any time prior to December
31, 2001 and (ii) $155,000,000 at any time after
December 31, 2001; PROVIDED FURTHER, HOWEVER, that if
the Production Payment 2001 Facility is consummated
and if the aggregate principal amount outstanding
under the Bank Credit Facilities exceeds $15,000,000,
then at any time that amounts of principal are
advanced under the Bank Credit Facilities such that
the aggregate principal amount outstanding exceeds
$15,000,000, the principal amount so advanced at any
such time shall not constitute Permitted Indebtedness
to the extent that two (2) times the outstanding
Senior Debt after giving effect to any such advance
shall be greater than the SEC PV-10 value of the
Company and its Restricted Subsidiaries' proved
developed oil and gas reserves, determined (in
accordance with the provisions of Section 10.10(e))
as of the end of the fiscal quarter preceding any
such advance, it being understood that any such
principal which is advanced under the Bank Credit
Facilities shall constitute Permitted Indebtedness if
it satisfies the foregoing provisions of this proviso
when advanced even if it subsequently fails to
satisfy the foregoing;
(xi) Indebtedness, if any, under the Production Payment
2001 Facility; PROVIDED, HOWEVER, that the purchase
price received with respect thereto shall not exceed
$178,000,000.
1.4. Definition of Permitted Liens. The definition of
Permitted Liens in the Original Indenture is amended by adding thereto a last
sentence which shall read as follows:
Notwithstanding anything to the contrary contained in
this Indenture, including without limitation the
provisions of the immediately preceding sentence,
Liens securing any of the obligations (including
without limitation any Indebtedness) of the Company
and any Restricted Subsidiary under or pursuant to
the Production Payment
-4-
18
2001 Facility shall be Permitted Liens if the
purchase price received under the Production Payment
2001 Facility does not exceed $178,000,000.
1.5. Section 10.10(a)(1). Section 10.10(a)(1) of the Original
Indenture is amended to read as follows:
(1) 50% of the Consolidated Net Income of the Company
accrued on a cumulative basis during the period
beginning after December 31, 2000 and ending on the
last day of the Company's last fiscal quarter ending
prior to the date of such proposed Restricted Payment
(or, if such Consolidated Net Income shall be a loss,
minus 100% of such loss), plus
1.6. Section 10.10(a)(6). Section 10.10(a)(6) of the Original
Indenture is deleted.
1.7. Section 10.10. Section 10.10 of the Original Indenture is
amended to add paragraphs 10.10(d), (e), (f) and (g) as follows:
(d) In addition to any restriction contained in any other
provision of this Section 10.10 and notwithstanding
any provision in this Section 10.10 or any other
Section of this Indenture to the contrary, the
Company shall not and shall not permit any Restricted
Subsidiary to, directly or indirectly, purchase or
redeem the Senior Subordinated Notes or the Company's
Common Stock, in whole or in part, for cash or
property other than Capital Stock unless and only to
the extent that (A) such purchase or redemption is
made with the proceeds of the issuance of Capital
Stock (other than to a Subsidiary of the Company)
issued within 120 days of such purchase or redemption
or (B)(i) the SEC PV-10 Value of the Company's and
its Restricted Subsidiaries' proved developed oil and
gas reserves, determined as of the end of the fiscal
quarter preceding any such purchase or redemption,
exceeds two (2) times the total outstanding Senior
Debt as of the date of any such purchase or
redemption, and (ii) the total outstanding Senior
Debt as of the date of any such purchase or
redemption per Mcfe of proved developed oil and gas
reserves, determined as of the end of the fiscal
quarter preceding any such purchase or redemption is
not more than $.75, and (iii) the aggregate principal
amount of (x) the Senior Subordinated Notes being
purchased or redeemed and (y) the Senior Subordinated
Notes purchased or redeemed during the six (6) month
period preceding the date of the proposed purchase or
redemption does not exceed 60% of the amount by which
the SEC PV-10 Value of the Company's and its
-5-
19
Restricted Subsidiaries' proved developed oil and gas
reserves as determined as of the end of the fiscal
quarter preceding any such purchase or redemption
exceeds two (2) times the total outstanding Senior
Debt as of the date of any such purchase or
redemption.
(e) The SEC PV-10 Value to be calculated under paragraph
(d) above, shall be calculated utilizing Securities
and Exchange Commission guidelines and (i) a gas
price not to exceed $3.50 per Mcf and a West Texas
Intermediate oil price not to exceed $20 per barrel
(the "UNHEDGED CEILING PRICES") for reserves not
subject to xxxxxx, and (ii) the floor hedge price for
reserves as to which the Company and its Restricted
Subsidiaries have in effect xxxxxx having floor
prices greater than the unhedged ceiling prices. The
SEC PV-10 Value shall be calculated at the end of
each fiscal quarter of the Company beginning with the
fiscal quarter ending March 31, 2001. The annual
reserve report of the Company and its Restricted
Subsidiaries to be utilized for calculating SEC PV-10
Value for the purposes of paragraphs (d) and (e) of
this Section 10.10 shall be prepared by Netherland,
Xxxxxx & Associates, Inc. or another reservoir
engineering firm of similar reputation and, to the
extent that any mid-year reserve report of the
Company and its Restricted Subsidiaries reflects an
increase in proved oil and gas reserves in excess of
10% from the prior year end report, the Company will
arrange for such reservoir engineering firm to review
the major changes from the preceding year end report.
(f) Notwithstanding any provision in this Section 10.10
or any other Section of this Indenture to the
contrary and in addition to any other restriction
contained in any other provision of this Indenture,
the Company shall not and shall not permit any
Restricted Subsidiary to, directly or indirectly, (1)
purchase or redeem the Series A Convertible Preferred
Stock for cash or property or (2) pay any dividend on
any shares of Capital Stock of the Company in cash
other than dividends on shares of Series A
Convertible Preferred Stock payable in cash in lieu
of fractional shares of Common Stock in those cases
where dividends are declared on shares of Series A
Convertible Preferred Stock in shares of Common
Stock.
(g) Notwithstanding any provision in this Section 10.10
or any other Section of this Indenture to the
contrary and in addition to any other restriction
contained in any other provision of this Indenture,
the Company shall not and shall not permit any
Restricted Subsidiary to make a net Investment of
more than $20,000,000 in the aggregate in
-6-
20
Unrestricted Subsidiaries nor will it permit any
Unrestricted Subsidiary to make any payments of the
type characterized in clauses (i), (ii) and (iii) of
Section 10.10(a) hereof.
1.8. Section 10.17. Section 10.17 of the Original Indenture is
amended to add paragraph (f) as follows:
(f) Notwithstanding any provision in this Section 10.17
or any other Section of this Indenture to the
contrary and in addition to any other restriction
contained in any other provision of this Indenture,
the Company shall not, and shall not permit any
Restricted Subsidiary, to sell any Production Payment
(other than pursuant to the Production Payment 2001
Facility) unless at least 50% of the Net Available
Proceeds from the sale are applied by the Company to
purchase or redeem Securities.
1.9. Section 11.4. Section 11.4 of the Original Indenture is
amended so that the proviso at the end of the first sentence is deleted.
ARTICLE II
PARTICULAR REPRESENTATIONS
AND COVENANTS OF THE COMPANY
2.1 Authority of the Company. The Company is duly authorized
to execute and deliver this Third Supplemental Indenture pursuant to an Order
(the "ORDER") dated January 30, 2001 of the United States Bankruptcy Court for
the District of Delaware in In re KCS Energy, Inc., et al., Debtors, Case No.
00-0028 (PJW) and Case Nos. 00-0310 (PJW) through 00-0318 (PJW) confirming the
KCS Energy, Inc., et. al., Debtors, Chapter 11 Plan of Reorganization, and all
corporate action on its part required for the execution and delivery of this
Third Supplemental Indenture has been duly and effectively taken.
2.2 Authority of the Subsidiary Guarantors. Each of the
Subsidiary Guarantors is duly authorized pursuant to the Order to execute and
deliver this Third Supplemental Indenture, and all corporate action on the part
of each required for the execution and delivery of this Third Supplemental
Indenture has been duly and effectively taken.
2.3 Assumption of Indenture Obligations. The Company and
each of the Subsidiary Guarantors, each as reorganized pursuant to the Order and
the Plan, hereby
-7-
21
assume all of the obligations of the Company and each of the Subsidiary
Guarantors under the Securities and the Indenture.
2.4 Truth of Recitals and Statements. The Company warrants
that the recitals of fact and statements contained in this Third Supplemental
Indenture are true and correct, and that the recitals of fact and statements
contained in all certificates and other documents furnished hereunder will be
true and correct.
ARTICLE III
CONCERNING THE TRUSTEE
3.1 Acceptance of Trusts. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and conditions
set forth in the Original Indenture, the First Supplement, Second Supplement and
in this Third Supplemental Indenture, to all of which the Company, the
Subsidiary Guarantors and the respective Holders of Securities at any time
hereafter outstanding agree by their acceptance thereof.
3.2 Responsibility of Trustee for Recitals, etc. The
recitals and statements contained in this Third Supplemental Indenture shall be
taken as the recitals and statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Third Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this Third Supplemental Indenture.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.1 Relation to the Indenture. The provisions of this Third
Supplemental Indenture shall become effective immediately upon the execution and
delivery hereof. This Third Supplemental Indenture and all the terms and
provisions herein contained shall form a part of the Indenture as fully and with
the same effect as if all such terms and provisions had been set forth in the
Original Indenture. The Original Indenture is hereby ratified and confirmed and
shall remain and continue in full force and effect in accordance with the terms
and provisions thereof, as supplemented and amended by the First Supplement, the
Second Supplement and this Third Supplemental Indenture, and the Original
Indenture, First Supplement, Second Supplement and this Third Supplemental
Indenture shall be read, taken and construed together as one instrument.
-8-
22
4.2 Meaning of Terms. Any capitalized term used in this Third
Supplemental Indenture and not defined herein that is defined in the Original
Indenture shall have the meaning specified in the Original Indenture, unless the
context shall otherwise require.
4.3 Counterparts of Third Supplemental Indenture. This Third
Supplemental Indenture may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
instrument.
4.4 Governing Law. This Third Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
Company: KCS ENERGY, INC.
By:
--------------------------------------
Subsidiary Guarantors: KCS RESOURCES, INC.,
KCS MICHIGAN RESOURCES, INC.,
KCS ENERGY MARKETING, INC.,
NATIONAL ENERDRILL CORPORATION
PROLIQ, INC.,
KCS ENERGY SERVICES, INC.,
KCS MEDALLION RESOURCES, INC.,
MEDALLION GAS SERVICES, INC., and
MEDALLION CALIFORNIA PROPERTIES
COMPANY
By:
--------------------------------------
Trustee: STATE STREET BANK AND
TRUST COMPANY, As Trustee
By:
--------------------------------------
-9-
