EXHIBIT 10.5
FOURTH MODIFICATION OF FIRST AMENDED AND
RESTATED MORTGAGE AND SECURITY AGREEMENT
(And Financing Statement, Fixture Filing, and Assignment
of Accounts)*
THIS FOURTH MODIFICATION OF FIRST AMENDED AND RESTATED MORTGAGE AND SECURITY
AGREEMENT (and Financing Statement, Fixture Filing, and Assignment of Accounts)
is entered into as of February 1, 1999, by:
o KANEB PIPE LINE OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("KPOP," as that term is further defined below), whose
mailing address is 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxx 00000, and whose Federal Tax Identification Number is
00-0000000;
o KANEB PIPE LINE COMPANY, a Delaware corporation that is the sole
General Partner of KPOP ("General Partner," as that term is further
defined below), whose mailing address is 0000 Xxxxx Xxxxxxx Xxxxxxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000, and whose Federal Tax
Identification Number is 00-0000000; and
o CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, formerly known as Texas
Commerce Bank National Association, as Collateral Trustee pursuant to
the Intercreditor Agreement, as defined below, for the Original Banks,
the Purchasers described below, the 1996 Noteholders described below,
SunTrust, and such other creditors as may hereafter become parties to
the Intercreditor Agreement (in that capacity, "Mortgagee," as that
term is further defined below), whose mailing address is 0000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000, and whose Federal Tax
Identification Number is 00-0000000.
RECITALS
1. KPOP and General Partner executed that certain Mortgage and Security
Agreement dated as of March 1, 1993, recorded as set forth in the attached
Schedule 1 (the "Prior Mortgage") covering the property legally described in
Exhibits A, B, and C of the Mortgage (as defined below) in favor of Texas
Commerce Bank National Association (the successor by merger with Texas Commerce
Bank, National Association), as the agent lender for the lenders under that
certain Credit Agreement dated as of March 1, 1993 (as amended, the "1993 Credit
Agreement") between KPOP, that agent, and those lenders.
2. KPOP, StanTrans, Inc. ("STI"), Kaneb Pipe Line Partners, L.P.
("KPP"), Support Terminal Services, Inc. ("STS"), and Support Terminals
Operating Partnership, L.P. ("STOP") have entered into Note Purchase Agreements
each dated as of December 22, 1994 (as from time to time amended, restated,
renewed, or extended, or otherwise modified, and all other agreements given in
substitution, the "Note Agreements") with each of the Purchasers (as defined in
the Mortgage), pursuant to which (a) KPOP issued and sold to the Purchasers
First Mortgage Notes, Series A, due seven years after issuance, in an aggregate
principal amount of $27,000,000 and (b) STI issued and sold to Purchasers 8.05%
First Mortgage Notes, Series B, due December 22, 2001, in an aggregate principal
amount of $33,000,000.
3. KPOP, certain lenders (the "Original Banks"), and Chase Bank of
Texas, National Association (formerly Texas Commerce Bank National Association
and acting as agent lender for the Original Banks) are party to the Restated
Credit Agreement (as from time to time amended, restated, renewed, or extended,
the "1994 Credit Agreement") dated as of December 22, 1994, which entirely
amended, restated, and replaced the 1993 Credit Agreement.
4. KPOP, KPP, STS, STI, STOP, StanTrans Holdings, Inc., StanTrans
Partners, L.P. and each of Metropolitan Life Insurance Company, Provident Life
and Accident Insurance Company, Pacific Mutual Life Insurance Company, AID
Association for Lutherans, and American General Life and Accident Insurance
Company (collectively, the "1996 Noteholders") have entered into Note Purchase
Agreements (as renewed, extended, amended, or restated, the "1996 Note
Agreements") dated as of June 27, 1996, pursuant to which KPOP has issued the
1996 Notes (as defined in the Mortgage).
5. Purchasers, 1996 Noteholders, the Original Banks, and Mortgagee have
entered into, and KPOP, STI, Kaneb Pipe Line Partners, L.P., Support Terminal
Services, Inc. and Support Terminals Operating Partnership, L.P. have consented
to, the Collateral Trust and Intercreditor Agreement dated as of December 22,
1994 (as amended by the Intercreditor Amendment defined below and as further
amended, restated, renewed, or extended from time to time, the "Intercreditor
Agreement").
6. KPOP and General Partner have executed and delivered a First Amended
and Restated Mortgage and Security Agreement (and Financing Statement, Fixture
Filing and Assignment of Accounts) dated as of December 22, 1994, recorded as
set forth in the attached Schedule 2 (as amended, restated, extended or modified
from time to time, the "Mortgage"), granting to the Mortgagee a lien and
security interest, for the benefit of the Purchasers, the 1996 Noteholders, and
the Original Banks, in the property as described in Exhibits A, B, and C of the
Mortgage, which entirely amended and restated the Prior Mortgage.
7. The Mortgage has been modified by the (a) Modification of First
Amended and Restated Mortgage and Security Agreement dated as of December 18,
1995, recorded as set forth on the attached Schedule 3, (b) Second Modification
of First Amended and Restated Mortgage and Security Agreement dated as of June
27, 1996, recorded as set forth on the attached Schedule 4, and (c) Third
Modification of First Amended and Restated Mortgage and Security Agreement dated
as of January 30, 1998, recorded as set forth on the attached Schedule 5.
8. KPOP and Chase Bank of Texas, National Association (in its
individual capacity, "Chase Bank"), have entered into the Revolving Promissory
Note With Agreement (as renewed, extended, amended, or restated, the "Chase
Revolving Note") dated as of February 1, 1999, providing for a revolving line of
credit to KPOP of up to $15,000,000.
9. KPOP, ST Services, Ltd. ("ST"), and SunTrust Bank, Atlanta, a
Georgia banking corporation, as Lender ("SunTrust") have agreed to enter into
the Credit Agreement (as from time to time amended, restated, renewed, or
extended, the "SunTrust Credit Agreement") dated as of January 27, 1999.
10. KPOP, General Partner, and Mortgagee, are entering into this
document in order for the indebtedness under the Chase Revolving Note and the
SunTrust Credit Agreement to be fully secured by -- and for Chase Bank or
SunTrust to be entitled to the benefits of -- the security interests, pledges,
and other rights, benefits, and privileges of the Mortgage on a pari passu basis
with the other indebtedness secured by the Mortgage and with Original Banks,
Purchasers, and 1996 Noteholders.
11. KPOP and General Partner are collectively referred to in this
document as "Grantors".
ACCORDINGLY, for adequate and sufficient consideration, Grantors and
Mortgagee agree as follows:
1. TERMS AND REFERENCES. Unless otherwise stated in this document (A) terms
defined in the Mortgage have the same meanings when used in this document and
(B) references to "Sections" are to the Mortgage's sections.
2. AMENDMENTS. The Mortgage is amended as follows:
(A) Section 1.1 is entirely amended as follows:
1.1 This Mortgage and all Rights, titles, interests, and Liens
created by or arising under it are given to secure payment and
performance of the indebtedness, liabilities, and obligations (the
"Obligation") described below. Certain clauses below are included for
greater certainty and not in limitation of any other such clauses.
(a) All indebtedness and other obligations now or
hereafter incurred or arising evidenced by the Purchased Notes
(each of the Purchased Notes bearing interest and an
"Applicable Premium Amount" as therein provided and containing
a provision for the payment of additional amounts as
attorneys' fees), all indebtedness and other obligations now
or hereafter incurred or arising pursuant to the provisions of
the Note Purchase Agreements, this Mortgage, or any other Note
Purchase Document now or hereafter evidencing, governing,
guaranteeing, or securing the Obligation owing to the
Purchasers;
(b) All indebtedness and other obligations now or
hereafter incurred or arising evidenced by the 1996 Notes
(each of the 1996 Notes bearing interest and an "Applicable
Premium Amount" as therein provided and containing a provision
for the payment of additional amounts as attorneys' fees), all
indebtedness and other obligations now or hereafter incurred
or arising pursuant to the provisions of the 1996 Note
Agreements, this Mortgage, or any other 1996 Note Document now
or hereafter evidencing, governing, guaranteeing or securing
the Obligation owing to the 1996 Noteholders;
(c) All indebtedness and other obligations of
Grantors now or hereafter incurred or arising pursuant to the
provisions of the Credit Agreement or any Promissory Note
executed and delivered pursuant to the Credit Agreement, such
Promissory Notes bearing interest as therein provided and
containing a provision for the payment of additional amounts
as attorneys' fees, this Mortgage, or any other Loan Paper now
or hereafter evidencing, governing, guaranteeing, or securing
the Obligation owing to the Banks;
(d) All indebtedness and other obligations of
Grantors now or hereafter incurred or arising pursuant to the
provisions of the Chase Revolving Note as therein provided and
containing a provision for the payment of additional amounts
as attorneys' fees, this Mortgage, or any other Loan Paper now
or hereafter evidencing, governing, guaranteeing, or securing
the Obligation owing to Chase;
(e) All indebtedness and other obligations of
Grantors now or hereafter incurred or arising pursuant to the
provisions of the SunTrust Credit Agreement or the SunTrust
Promissory Notes executed and delivered pursuant to the
SunTrust Credit Agreement as therein provided and containing a
provision for the payment of additional amounts as attorneys'
fees, this Mortgage, or any other Loan Paper now or hereafter
evidencing, governing, guaranteeing, or securing the
Obligation owing to SunTrust;
(f) All obligations, indebtedness or liabilities of
KPOP under the terms of that certain Guaranty dated as of
December 22, 1994, executed by KPOP in favor of Purchasers;
(g) All sums owing to Mortgagee under this
Mortgage; and
(h) Without limiting the generality of the foregoing,
all post-petition interest, expenses, and other duties and
liabilities with respect to indebtedness or other obligations
described above in this Section 1 which would be owed but for
the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization, or similar
proceeding.
NOTICE: This Mortgage secures credit in an amount not to exceed the sum
of $186,300,000 denominated in United States Dollars and
(pound)16,000,000 denominated United Kingdom Pound Sterling. Loans and
advances up to such total amount, together with interest, are senior to
indebtedness to other creditors under subsequently recorded or filed
mortgages and liens.
NOTICE: NOTWITHSTANDING THE ABOVE--SOLELY IN RESPECT OF MORTGAGED
PROPERTY IN KANSAS--THIS INSTRUMENT ONLY SECURES UP TO $15,000,000 OF
THE OBLIGATION DESCRIBED IN SECTION 1.1(c) ABOVE, AND NONE OF THE
OBLIGATION DESCRIBED IN SECTIONS 1.1(d) AND (e) ABOVE AND THEREFORE,
DOES NOT SECURE PRINCIPAL DEBT IN EXCESS OF $143,000,000.
(B) A new Section 2.5 is added to the Mortgage as follows:
2.5 KPOP, General Partner, and Mortgagee covenant and agree
with each other and for the benefit of all of the beneficiaries of this
Mortgage that promptly upon the request of Chase, SunTrust, or any
Required Holders under the Intercreditor Agreement, they shall execute,
deliver, acknowledge, and effect the proper recordation of an
appropriate modification of this Mortgage in order to increase, by any
amount up to the full amounts secured by this Mortgage, the amount of
indebtedness secured by this Mortgage on properties in the State of
Kansas, notwithstanding the Notices at the end of Section 1.1 of this
Mortgage.
(C) Section 4.18 is amended to add or entirely amend the following
definitions in alphabetical order with the other definitions in that
section:
"Bank" means the Original Banks, Chase, and SunTrust.
"Chase" means Chase Bank of Texas, National Association, in
its individual banking capacity.
"Chase Revolving Note" means -- effective as of the date that
the 30-day notice period under Section 6.02(b)(vi) of the Intercreditor
Agreement has lapsed (or on February 13, 1999) -- the Revolving
Promissory Note With Agreement dated as of February 1, 1999, between
KPOP and Chase, in the stated principal amount of up to $15,000,000, as
from time to time amended, restated, renewed, or extended.
"Loan Paper" means, collectively, the 1994 Credit Agreement,
the Promissory Notes, the Chase Revolving Note, the SunTrust Credit
Agreement, the SunTrust Promissory Notes, the Security Documents, the
Intercreditor Agreement, all other agreements, certificates, documents,
instruments, and writings at any time delivered in connection herewith
or therewith, and any refinancings which extend the maturity thereof,
amendments, modifications, extensions, renewals, or restatements
(exclusive of term sheets, commitment letters, correspondence, and
similar documents used in the negotiation thereof, except to the extent
the same contain information about the Grantors of their Affiliates,
properties, business, or prospects).
"Security Documents" means this Mortgage, the Stock Pledge
Agreement dated as of December 22, 1994 (as amended by the Amendment to
Stock Pledge Agreement dated as of December 18, 1995, and the Second
Amendment to Stock Pledge Agreement dated as of June 27, 1996) executed
by KPOP in favor of Mortgagee, all other security agreements, deeds of
trust, mortgages, chattel mortgages, pledges, guaranties, financing
statements, continuation statements, extension agreements, other
agreements or instruments and all refinancings to extend the maturities
thereof, renewals, modifications, amendments, or restatements thereof,
subject to the Intercreditor Agreement and that are now, heretofore, or
hereafter delivered by any person to Mortgagee, any Purchaser, any 1996
Noteholder, or any Bank in connection with the Note Agreements, the
1996 Note Agreements, the Credit Agreement, the Chase Revolving Note,
SunTrust Credit Agreement, or any transaction contemplated thereby to
secure or guarantee the payment of any part of the Purchased Notes, the
1996 Notes, the Promissory Notes, the Chase Revolving Note, the
SunTrust Promissory Notes, or the performance of any duties and
obligations of KPOP or STI under the Note Purchase Documents, the 1996
Note Documents, or the Loan Papers.
"SunTrust" means SunTrust Bank, Atlanta, a Georgia banking
corporation.
"SunTrust Credit Agreement" means the Credit Agreement
dated as of January 27, 1999, between KPOP, ST Services, Ltd., and
SunTrust, as from time to time amended, restated, renewed, or extended.
"SunTrust Promissory Notes" means -- as each of the same may
from time to time be renewed, extended, amended, modified, restated,
replaced, or substituted -- collectively (a) effective as of February
1, 1999,(i) the two different Term Loan A Notes dated February 1, 1999,
made jointly by KPOP and ST Services, Ltd., to the order of SunTrust,
in the single original principal amount of (pound)16,000,000, and (ii)
Term Loan B Note dated February 1, 1999, made by KPOP to the order of
SunTrust in the original principal amount of $13,300,000, and (b)
effective as of the date that the 30-day notice period under Section
6.02(b)(vi) of the Intercreditor Agreement has lapsed (or on February
13, 1999), Term Loan C Note dated February 1, 1999, made by KPOP to the
order of SunTrust in the original principal amount of $5,000,000.
3. RATIFICATIONS. Grantors (A) ratify and confirm all provisions of the Mortgage
as amended by this document, (B) ratify and confirm that all security interests,
pledges, and other rights, benefits, and privileges granted, conveyed, or
assigned to Mortgagee under the Mortgage are not released, reduced, or otherwise
adversely affected by this document and continue to secure full payment and
performance of the present and future Obligation, as modified by this document,
and (C) agree to perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record such additional documents, and certificates as
Mortgagee may request in order to create, perfect, preserve, and protect those
security interests, pledges, and other rights, benefits, and privileges.
4. LEGAL DESCRIPTION/MASTER AGREEMENT. The property covered by the Mortgage, as
amended by this document, is legally described in the attached Exhibits A, B,
and C. Executed original counterparts of this document to be filed for record in
the records of the jurisdictions where the Mortgaged Property is situated may
have annexed to them as Exhibits A, B, and C only the portions or divisions
containing specific descriptions of the Mortgaged Property located in those
jurisdictions. Whenever a recorded counterpart of this document contains
specific descriptions which are less than all of the descriptions contained in
any full counterparts on file with Mortgagee, the omitted descriptions are
hereby included by reference in that recorded counterpart as if each recorded
counterpart conformed to any full counterpart on file with Mortgagee. A
counterpart of this document containing all specific descriptions of Mortgaged
Property wherever located, shall be recorded with the Register of Deeds in
Sedgwick County, Kansas.
5. REPRESENTATIONS. KPOP represents and warrants to Mortgagee that as of the
date of this document all representations and warranties in the Mortgage
applicable to KPOP or any of the Mortgaged Property are true and correct in all
material respects.
6. MISCELLANEOUS. Unless stated otherwise (A) the singular number includes the
plural and vice versa and words of any gender include each other gender, in each
case, as appropriate, (B) headings and captions may not be construed in
interpreting provisions, (C) this document must be construed -- and its
performance enforced -- as provided in Section 4.9 of the Mortgage, (D) if any
part of this document is for any reason found to be unenforceable, all other
portions of it nevertheless remain enforceable, and (E) this document may be
executed in any number of counterparts with the same effect as if all
signatories had signed the same document, and all of those counterparts must be
construed together to constitute the same document.
7. ENTIRETIES. THE MORTGAGE AS MODIFIED BY THIS DOCUMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THE MORTGAGE AS
MODIFIED BY THIS DOCUMENT 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.
8. PARTIES. This document binds and inures to Grantors, their respective
successors and assigns, Mortgagee and its successors and assigns (on behalf of
the Purchasers, 1996 Noteholders, Original Banks, SunTrust, and their respective
successors and assigns).
9. ACKNOWLEDGMENT. Grantors acknowledge receipt of a copy of this document
signed by Grantors and copies of all documents, instruments and agreements
executed in connection with this document.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS DOCUMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE IN RESPECT OF
ANY MORTGAGED PROPERTY IN IOWA. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED OR
INCORPORATED BY REFERENCE IN THIS WRITTEN INSTRUMENT MAY BE LEGALLY ENFORCED
WITH RESPECT OF ANY MORTGAGED PROPERTY IN IOWA. THE PARTIES MAY CHANGE THE TERMS
OF THE MORTGAGE ONLY BY ANOTHER WRITTEN INSTRUMENT. THIS NOTIFICATION IS
EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN THE
PARTIES.
Signature Page
EXECUTED as of the date first stated in this Fourth Modification of First
Amended and Restated Mortgage and Security Agreement.
ATTEST:
Xxxxxxx X. Xxxxxx, Assistant Secretary
ATTEST:
Xxxxxxx X. Xxxxxx, Assistant Secretary
ATTEST:
Name:
Title:
KANEB PIPE LINE OPERATING PARTNERSHIP, L.P., as KPOP and as a Grantor
By KANEB PIPE LINE COMPANY, General Partner
By Xxxxxx X. Xxxxxxx, Chairman
KANEB PIPE LINE COMPANY, as General Partner and as a Grantor
By Xxxxxx X. Xxxxxxx, Chairman
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, formerly known as Texas Commerce Bank
National Association, as Mortgagee
By
Name:
Title:
