FIRST AMENDMENT
THIS FIRST AMENDMENT to the Credit Agreement referred to below (this
"First Amendment"), is made and entered into as of this 26th day of August, 1998
by and among XXXXXX XXXXXX, INC., a corporation organized under the laws of
Delaware (the "Borrower"), the Lenders party to the Credit Agreement (as defined
below) and identified on the signature pages hereto, and FIRST UNION NATIONAL
BANK, as Administrative Agent for the Lenders.
Statement of Purpose
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of June 18, 1998
(as further amended, restated, supplemented or otherwise modified, the "Credit
Agreement"), by and among the Borrower, the Lenders and the Administrative
Agent.
The Borrower has requested that the Lenders amend the Credit Agreement to,
among other things, revise certain provisions of the Credit Agreement, and the
Lenders have agreed to do so, but only on the terms and conditions set forth
below in this First Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized undefined terms used in this First
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments.
(a) Section 1.1 is hereby modified to add in appropriate alphabetical
order the following defined term:
""Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is
at the time of such assignment (a) a commercial bank organized under the
laws of the United States or any state thereof, having combined capital
and surplus in excess of $500,000,000, (b) a commercial bank organized
under the laws of any other country that is a member of the Organization
of Economic Cooperation and Development, or a political subdivision of any
such country, having combined capital and surplus in excess of
$500,000,000, (c) a finance company, insurance company or other financial
institution which in the ordinary course of business extends credit of the
type extended hereunder and that has total assets in excess of
$1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the
successor (whether by transfer of assets, merger or otherwise) to all or
substantially all of the commercial lending business of the assigning
Lender, or (f) any other Person that has been approved in writing as an
Eligible Assignee by the Administrative Agent and, so long as no Default
or Event of Default has occurred and is continuing, the Borrower."
(b) Section 1.1 of the Credit Agreement shall be amended by deleting the
definition of "KMI Cash Flow" and inserting the following new definition in lieu
thereof:
""KMI Cash Flow" means (without duplication), with respect to the
Borrower and its Consolidated Subsidiaries for any period, cash
distributions received during such period by Kinder Xxxxxx X.X. from
Xxxxxx Xxxxxx Energy and the KMEP Operating Subsidiaries less all expenses
of the Borrower and its Consolidated Subsidiaries for such period
(excluding Interest Expense, income taxes, depreciation, amortization and
expenses of Kinder Xxxxxx X.X. which are customarily reimbursed by Xxxxxx
Xxxxxx Energy and the KMEP Operating Subsidiaries in accordance with the
terms of the Second Amendment to Amended and Restated Agreement of Limited
Partnership of Xxxxxx Xxxxxx Energy Partners, L.P. dated as of February
14, 1997)."
(c) Section 2.7 of the Credit Agreement shall be amended in its entirety
by inserting the following Section 2.7 in lieu thereof:
"SECTION 2.7. Use of Proceeds. The Borrower shall use the proceeds of
the Revolving Credit Loans solely (a) prior to August 19, 1998, for future
general corporate purposes in an amount not greater than $5,600,000, (b)
prior to December 31, 1998, to finance investments permitted by Section
11.3(d), make dividends and distributions permitted by Section 11.6(e) and
pay income taxes and Interest Expense and (c) on or after December 31,
1998, to finance investments permitted by Section 11.3(d)."
(d) Section 2.3(b) of the Credit Agreement shall be amended in its
entirety by inserting the following in lieu thereof:
"(b) Mandatory Repayments.
(i) If at any time the outstanding principal amount of all
Revolving Credit Loans exceeds the Revolving Credit Commitment of all
the Lenders less the L/C Obligations, the Borrower shall repay
immediately upon notice from the Administrative Agent, by payment to
the Administrative Agent for the account of the Lenders, the
Revolving Credit Loans in an amount equal to such excess. Each such
repayment shall be accompanied by any amount required to be paid
pursuant to Section 5.10 hereof.
(ii) If on January 10, 1999, the outstanding principal
amount of all Revolving Credit Loans exceeds $10,000,000, the
Borrower shall immediately repay such outstanding Revolving Credit
Loans in an amount equal to such excess over $10,000,000; provided,
that such repayment shall not result in a corresponding reduction to
the Aggregate Commitment. Each such repayment shall be accompanied by
any amount required to be paid pursuant to Section 5.10 hereof."
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(e) Section 4.2(c) of the Credit Agreement shall be amended by adding the
following sentence to the end of such Section:
"Any amount borrowed under this Section 4.2 and subsequently
repaid or prepaid may not be reborrowed."
(f) Section 5.12(e) of the Credit Agreement shall be amended in its
entirety by inserting the following in lieu thereof:
"(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall
deliver to the Borrower, with a copy to the Administrative Agent, on the
Closing Date or concurrently with the delivery of the relevant Assignment
and Acceptance, as applicable, (i) two United States Internal Revenue
Service Forms 4224 or Forms 1001, as applicable (or successor forms)
properly completed and certifying in each case that such Lender is
entitled to a complete exemption from withholding or deduction for or on
account of any United States federal income taxes, and (ii) an Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case
may be, to establish an exemption from United States backup withholding
taxes. Each such Lender further agrees to deliver to the Borrower, with a
copy to the Administrative Agent, a Form 1001 or 4224 and Form W-8 or W-9,
or successor applicable forms or manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete
or the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, certifying in the case of a
Form 1001 or 4224 that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States
federal income taxes (unless in any such case an event (including without
limitation any change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be required which
renders such forms inapplicable or the exemption to which such forms
relate unavailable and such Lender gives prompt and timely written
notification to the Borrower and the Administrative Agent that it is not
entitled to receive payments without deduction or withholding of United
States federal income taxes) and, in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax.
Notwithstanding anything in this Section 5.12(e) to the contrary, a
Lender organized under the laws of a jurisdiction other than the United
States or any state thereof shall not be required to deliver Forms 4224 or
Forms 1001 as otherwise required by this Section 5.12(e) if such Lender is
entitled to a complete exemption from withholding or deduction for or on
account of any United States federal income taxes by application of the
"portfolio interest" exception to the payment of such taxes under Section
871(h) or 881(c) of the Code (the "Portfolio Interest Exception") and such
Lender delivers to the Borrower, with a copy to the Administrative Agent,
on the Closing Date or concurrently with the delivery of the relevant
Assignment and Acceptance, as applicable, two United States Internal
Revenue Service Forms W-8 (or successor forms) properly completed and, by
the delivery thereof in lieu of Forms 4224 or Forms 1001, such Lender
hereby certifies that such Lender is eligible for, and is otherwise
entitled to a complete exemption from
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withholding or deduction for or on account of any United States federal
income taxes by application of, the Portfolio Interest Exception; and such
Lender further agrees to deliver to the Borrower, with a copy to the
Administrative Agent, a Form W-8 (or successor form or manner of
certification of Lender's continued eligibility of the Portfolio Interest
Exception) on or before the date that such form expires or becomes
obsolete or the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower (and by the
delivery of such replacement form such Lender hereby certifies that such
Lender remains eligible for the Portfolio Interest Exception), unless in
any such case an event (including without limitation any change in treaty,
law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders such form inapplicable
or the Portfolio Interest Exception unavailable, in which event the Lender
hereby agrees to, and shall otherwise be required to, give prompt and
timely written notification to the Borrower and the Administrative Agent
that it is not entitled to receive payments without deduction or
withholding of United States federal income taxes."
(g) Section 7.1(b) of the Credit Agreement shall be amended by deleting
the first sentence thereof and by inserting the following in lieu thereof:
"Each Subsidiary of the Borrower as of the Closing Date is listed
on Schedule 7.1(b)."
(h) Section 7.1(m) of the Credit Agreement shall be amended by deleting
the first sentence thereof and by inserting the following in lieu thereof:
"As of the Closing Date, each of the Borrower and its Subsidiaries
has a stable work force in place and is not, as of the Closing Date and
except as set forth on Schedule 7.1(m), party to any collective bargaining
agreement nor has any labor union been recognized as the representative of
its employees."
(i) Section 11.6 of the Credit Agreement shall be amended by deleting the
word "and" at the end of paragraph (c) thereof and by deleting the period "."at
the end of paragraph (d) thereof and inserting "; and" at the end of paragraph
(d) thereof and by inserting the following new paragraph (e) immediately
following paragraph (d) as follows:
"(e) prior to December 31, 1998, the Borrower may from time to time
pay cash dividends to its shareholders with the proceeds of the Revolving
Credit Loans so long as an amount equal to the outstanding principal
amount of Revolving Credit Loans in excess of $10,000,000 is deposited in
an investment account with the Administrative Agent."
(j) Section 14.10(b)(i) of the Credit Agreement shall be amended in its
entirety by inserting the following in lieu thereof:
"(i) if less than all of the assigning Lender's Commitment is to
be assigned, the Commitment so assigned shall not be less than (A)
$10,000,000 if such assignment is made by First Union in connection with
the initial syndication of the
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Commitments, except as otherwise agreed to by First Union and the Borrower
and (B) $5,000,000 in connection with any assignment by a Lender
thereafter;"
(k) Section 14.10(d) of the Credit Agreement shall be amended by adding
the following sentence to the end of such Section:
"No assignment pursuant to this Section 14.10 shall be effective
unless and until it has been recorded in the Register as provided in this
Section 14.10."
(l) Exhibit F to the Credit Agreement is hereby amended in its entirety by
inserting Schedule 1 hereto in lieu thereof.
3. Conditions. The effectiveness of this First Amendment shall be
conditioned upon the following:
(a) Execution. Receipt by the Administrative Agent of this First
Amendment duly executed by the Borrower, Administrative Agent and the
Lenders.
(b) Additional Items. Receipt by the Administrative Agent of any
other document or instrument reasonably requested by it in connection with
the execution of this First Amendment.
4. Limited Amendment. Except as expressly amended herein, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This First Amendment shall not be deemed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Documents or (b) to
prejudice any other right or rights which the Administrative Agent or Lenders
may now have or may have in the future under or in connection with the Credit
Agreement or the Loan Documents or any of the instruments or agreements referred
to therein, as the same may be amended, restated or otherwise modified from time
to time.
5. Representations and Warranties. By its execution hereof, the Borrower
hereby certifies on behalf of itself and its Subsidiaries that each of the
representations and warranties set forth in the Credit Agreement and the other
Loan Documents is true and correct as of the date hereof as if fully set forth
herein (except for any such representations and warranties made as of a specific
date which shall be true and correct as of such date) and that as of the date
hereof no Default or Event of Default has occurred and is continuing.
6. Governing Law. This First Amendment shall be governed by and construed
in accordance with the laws of the State of North Carolina.
7. Counterparts. This First Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS HEREOF, the parties hereto have caused this First Amendment to
be duly executed as of the date and year first above written.
XXXXXX XXXXXX, INC.
as Borrower
By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: /s/Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Senior Vice President
