SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT is made and entered into
effective as of the 31st day of December, 1997 (this "Amendment") among XXXXXX
XXXXXX, INC., a corporation formed under the laws of the State of Delaware (the
"Borrower"); each of the lenders that is or becomes a party to the Credit
Agreement (defined below) (individually, together with its successors and
assigns, a "Lender" and, collectively, the "Lenders"); and FIRST UNION NATIONAL
BANK (formerly known as First Union National Bank of North Carolina), a national
banking association (in its individual capacity, "First Union"), as agent for
the Lenders (in such capacity, together with its successors in such capacity,
the "Agent").
R E C I T A L S
A. The Borrower, the Agent and the Lenders previously entered into that
certain Credit Agreement dated as of February 14, 1997 as amended by First
Amendment to Credit Agreement dated as of September 1, 1997 (as amended, the
"Credit Agreement"), pursuant to which the Lenders agreed to make certain loans
to and extensions of credit on behalf of the Borrower upon the terms and
conditions as provided therein.
B. The Borrower and the Lenders now desire to make certain amendments and
supplements to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration and the mutual benefits, covenants and agreements herein
expressed, the parties hereto now agree as follows:
1. All capitalized terms used in this Amendment and not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
2. The definitions of "Agreement" and "Aggregate Facility A Commitments" in
Section 1.02 of the Credit Agreement are hereby amended to read as follows:
"Agreement" shall mean this Credit Agreement, as amended by the First
Amendment and the Second Amendment and as the same may be further amended
or supplemented from time to time.
"Aggregate Facility A Commitments" at any time shall equal $15,000,000
as reduced or terminated as provided in accordance with Section 2.03
hereof.
3. Section 1.02 of the Credit Agreement is hereby supplemented, where
alphabetically appropriate, with the addition of the following definitions:
"Xxxxxx Xxxxxx Operating C" shall mean Xxxxxx Xxxxxx Operating L.P.
"C", a Delaware limited partnership.
"Operating Partnerships" shall mean Xxxxxx Xxxxxx Operating A, Xxxxxx
Xxxxxx Operating B, Xxxxxx Xxxxxx Operating C and any other operating
partnerships (or partnerships created or acquired to own interests in
operating partnerships) hereafter established or acquired by Xxxxxx Xxxxxx
Energy.
"Second Amendment" shall mean that certain Second Amendment to Credit
Agreement dated effective as of December 31, 1997 among the Borrower, the
Agent and the Lenders.
4. Section 7.02 of the Credit Agreement is hereby amended by deleting the
last sentence of the existing subsection (b) and adding the following new
sentence:
"Except as reflected in such balance sheets, as of the Closing Date,
Kinder Xxxxxx X.X. has no material Debt, contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments."
5. Section 7.10 of the Credit Agreement is hereby amended by deleting the
existing subsection (a) and adding the following new subsection (a):
"(a) Except as set out in Schedule 7.10, each of the Borrower and its
Subsidiaries has good and defensible title to its material (individually or
in the aggregate) Properties. Such Properties (other than the Properties of
Xxxxxx Xxxxxx Energy and its Subsidiaries) are free and clear of all Liens
except Liens permitted by Section 9.02."
6. Section 7.14 of the Credit Agreement is hereby amended and restated in
its entirety as follows:
"Section 7.14 Subsidiaries. Except (i) as set forth on Schedule 7.14
and (ii) for Xxxxxx Xxxxxx Energy and its Subsidiaries, the Borrower has no
Subsidiaries."
7. Section 7.15 of the Credit Agreement is hereby amended by deleting the
last sentence of the existing section and adding the following new sentence:
"The principal place of business and chief executive office of each
Subsidiary (other than Xxxxxx Xxxxxx Energy and its Subsidiaries) are
located at the chief executive office of the Borrower."
8. Section 7.19 of the Credit Agreement is amended as follows:
(a) The first sentence is hereby deleted and replaced with the
following new sentence:
"Schedule 7.19 attached hereto contains, as of the Closing Date, an
accurate and complete description of all material policies of fire,
liability, workmen's
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compensation and other forms of insurance owned or held by the Borrower and
each Subsidiary."
(b) The fourth sentence is hereby deleted and replaced with the
following new sentence:
"Schedule 7.19 identifies, as of the Closing Date, all material risks,
if any, which the Borrower and its Subsidiaries and their respective Board
of Directors or officers have designated as being self insured."
9. Section 9.01 of the Credit Agreement is hereby amended by deleting the
existing subsection (g) and adding the following new subsection (g):
"(g) Debt of Kinder Xxxxxx X.X. arising by operation of law as a
result of Kinder Xxxxxx X.X. being the general partner of Xxxxxx Xxxxxx
Energy, any of the Operating Partnerships or any other partnership of which
it is a partner; and "
10. Section 9.03 of the Credit Agreement is hereby amended by deleting the
existing subsection (h) and adding the following new subsection (h):
"(h) Kinder Xxxxxx X.X. may make capital contributions as required by
the partnership agreements of Xxxxxx Xxxxxx Energy, the Operating
Partnerships and any other partnership of which it is a partner; provided
that its direct ownership interest in each such partnership is not greater
than 1.2%."
11. Section 9.17 of the Credit Agreement is hereby amended to read as
follows:
"Section 9.17 Transactions with Affiliates. Neither the Borrower nor
any Subsidiary will enter into any transaction, including, without
limitation, any purchase, sale, lease or exchange of Property or the
rendering of any service, with any Affiliate unless such transactions are
otherwise permitted under this Agreement and are on fair and reasonable
terms to it."
12. Section 9.18 of the Credit Agreement is hereby amended to read as
follows:
"Section 9.18 Subsidiaries. The Borrower shall not, and shall not
permit Kinder Xxxxxx X.X. to, create any additional Subsidiaries except for
Subsidiaries with the following characteristics: (i) the Subsidiaries are
Subsidiaries of Xxxxxx Xxxxxx Energy, (ii) the Borrower is not a partner or
member of such Subsidiary, and (iii) if Kinder Xxxxxx X.X. is a partner or
member of such Subsidiary its direct ownership interest is no greater than
1.2%. The Borrower shall not and shall not permit Kinder Xxxxxx X.X. to
issue any stock or ownership interest of a Subsidiary (excluding Xxxxxx
Xxxxxx Energy and its Subsidiaries) except to the Borrower or Kinder Xxxxxx
X.X."
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13. Section 10.01 of the Credit Agreement is hereby amended by deleting the
existing subsection (h) and adding the following new subsection (h):
"(h) a judgment or judgments for the payment of money in excess of
$150,000 (or $2,500,000 in the case of Xxxxxx Xxxxxx Energy or its
Subsidiaries or Operating Partnerships) in the aggregate not covered by
insurance shall be rendered by a court against the Borrower or any
Subsidiary and the same shall not be discharged (or provision shall not be
made for such discharge), or a stay of execution thereof shall not be
procured, within thirty (30) days from the date of entry thereof and the
Borrower or such Subsidiary shall not, within said period of 30 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefor and cause the execution thereof to be stayed during
such appeal; or"
14. Annex I to the Credit Agreement is hereby replaced by Annex I attached
to this Amendment.
15. On the date of this Amendment the Borrower shall prepay all of the
outstanding principal on the Facility C Notes, together with accrued interest
thereon and any compensation required by Section 5.05 of the Credit Agreement,
and the Facility C Commitment shall be canceled.
16. On the date of this Amendment Facility B shall be cancelled.
17. This Amendment shall become binding on the Lenders when, and only when,
the Agent shall have received each of the following in form and substance
satisfactory to the Agent or its counsel:
(a) counterparts of this Amendment executed by the Borrower, the Agent
and the Lenders;
(b) counterparts of amendments to the Security Instruments executed by
the Borrower and Kinder Xxxxxx X.X.;
(c) a certificate of the Secretary or an Assistant Secretary of each
of the Borrower and Kinder Xxxxxx X.X. setting forth resolutions of its
board of directors with respect to the authorization of the Borrower or
Kinder Xxxxxx X.X. to execute, deliver and perform this Amendment and the
amendments to the Security Instruments to which it is a party; and
(d) such other documents as it or its counsel may reasonably request.
18. The parties hereto hereby acknowledge and agree that, except as
specifically supplemented and amended, changed or modified hereby, the Credit
Agreement shall remain in full force and effect in accordance with its terms.
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19. The Borrower hereby reaffirms that as of the date of this Amendment,
the representations and warranties made by the Borrower in Article VII of the
Credit Agreement as amended hereby are true and correct on the date hereof as
though made on and as of the date of this Amendment.
20. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of Texas.
21. This Amendment may be executed in two or more counterparts, and it
shall not be necessary that the signatures of all parties hereto be contained on
any one counterpart hereof; each counterpart shall be deemed an original, but
all of which together shall constitute one and the same instrument. Delivery of
an executed signature page by facsimile transmission shall be as effective as
delivery of a manually executed counterpart hereof.
22. THE CREDIT AGREEMENT, THIS AMENDMENT, THE NOTES AND THE SECURITY
INSTRUMENTS 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 OR ORAL AGREEMENTS BETWEEN THE PARTIES.
[SIGNATURES BEGIN NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed effective as of the date first above written.
BORROWER: XXXXXX XXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice Chairman
AGENT AND LENDER: FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
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