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Exhibit 10(i)
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment") is made
and entered into on November __, 1998 and effective as of September 30, 1998 by
and among KCS RESOURCES, INC., a Delaware corporation ("KRI") for itself and as
successor by merger to KCS PIPELINE SYSTEMS, INC., a Delaware corporation ("KCS
Pipeline"); KCS MICHIGAN RESOURCES, INC., a Delaware corporation ("KCS
Michigan"); and KCS ENERGY MARKETING, INC., a New Jersey corporation ("KCS
Marketing," and together with KRI and KCS Marketing, each individually, a
"Borrower" and collectively, the "Borrowers"), each lender that is a signatory
hereto or becomes a party hereto as provided in Sections 9.1 or 2.24 of the
Agreement (hereinafter defined) (individually, together with its successors and
assigns, a "Lender" and, collectively, together with their respective successors
and assigns, the "Lenders"), and CANADIAN IMPERIAL BANK OF COMMERCE, acting
through its New York agency (in its individual capacity, "CIBC"), and as agent
for the Lenders (in such capacity, together with its successors in such
capacity, the "Agent"),BANK ONE, TEXAS, NATIONAL ASSOCIATION, a national banking
association, as co-agent for the Lenders, and NATIONSBANK OF TEXAS, N.A., a
national banking association, as co-agent for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrowers and the Lenders entered into a Credit Agreement
dated September 25, 1996, a First Amendment to Credit Agreement dated July 1,
1997 and a Second 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 2.5 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 Third 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
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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:
"Agreement" shall mean this Credit Agreement, as amended by the
First Amendment to Credit Agreement, Second Amendment to Credit Agreement,
and Third Amendment to 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 Guarantor and its Subsidiaries
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 Guarantor and its Subsidiaries 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 $40,000,000 in the aggregate on and after
September 30, 1998).
Section 1.3 Additional Definitions. The following terms are hereby added
to Section 1.2 of the Agreement as follows:
"Equity Securities" shall mean any and all certificates, capital
stock, preferred stock, convertible debentures or any other securities
evidencing ownership of equity in the Guarantor or any of its Subsidiaries
issued in any public or private offering.
Section 1.4 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 Third Amendment.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.1 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 Third 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 Third Amendment or the other Security
Instruments.
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Section 2.2 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 2.3 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 Third
Amendment.
Section 2.4 Defaults. After giving effect to this Third 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 2.5 No Amendments. Nothing in Article 2 of this Third Amendment is
intended to amend any of the representations or warranties contained in the
Agreement.
ARTICLE 3
MISCELLANEOUS
Section 3.1 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 Third Amendment. Except as expressly set forth herein, all of
the terms, conditions, covenants, representations, warranties and all other
provisions of the Agreement are herein ratified and confirmed and shall remain
in full force and effect.
Section 3.2 References. On and after the date on which this Third
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 Third Amendment.
Section 3.3 Counterparts. This Third 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.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed on this ____ day of November, 1998; provided that this Third
Amendment shall for all purposes be effective as of the 30th day of September,
1998, as if originally signed on that date.
BORROWERS:
KCS RESOURCES, INC.
By:
Name:
Title:
Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
KCS MICHIGAN RESOURCES, INC.
By:
Name:
Title:
Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
KCS ENERGY MARKETING, INC.
By:
Name:
Title:
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Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
AGENT:
CANADIAN IMPERIAL BANK OF
COMMERCE
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: Xxxxxxx Xxxx
Telecopy: (000) 000-0000
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CO-AGENT AND A LENDER:
BANK ONE, TEXAS, NATIONAL
ASSOCIATION
By:
Name:
Title:
Applicable Lending Office
for Base Rate Loans and
LIBO Rate Loans:
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
Address for Notices:
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
CO-AGENT AND A LENDER:
NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
Applicable Lending Office
for Base Rate Loans and
LIBO Rate Loans:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Corporate Credit Services
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Address for Notices:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
with copies to:
NATIONSBANK OF TEXAS, N.A.
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
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LENDERS:
COMERICA BANK-TEXAS
By:
Name:
Title:
Applicable Lending Office
for Base Rate Loans and
LIBO Rate Loans:
0000 Xxxx Xxxxxxxxxxx
Xxxxxx, Xxxxx 00000
Address for Notices:
0000 Xxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Telecopy: (000) 000-0000
with copies to:
COMERICA BANK-TEXAS
One Shell Plaza
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
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DEN NORSKE BANK ASA
By:
Name:
Title:
By:
Name:
Title:
Applicable Lending Office
for Base Rate Loans and
LIBO Rate Loans:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Address for Notices:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
with copies to:
DEN NORSKE BANK ASA
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
CIBC, INC.
By:
Xxxxxxxx Xxxx
Authorized Signatory
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Address for Notices:
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telecopy: (000) 000-0000
