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Exhibit 10(ii)
SECOND AMENDMENT TO GUARANTY
THIS SECOND AMENDMENT TO GUARANTY (this "Second Amendment")is made and
entered into by KCS Energy, Inc., a Delaware corporation (the "Guarantor") in
favor of the lenders party to the Credit Agreement (as such term is defined
below) from time to time (together with their respective successors and assigns
as permitted pursuant to the Credit Agreement referred to below, the "Lenders"),
and Canadian Imperial Bank of Commerce, a Canadian chartered bank, acting
through its New York Agency, as agent for the Lenders pursuant to the Credit
Agreement (as such term is defined below) (in such capacity, together with its
successors in such capacity pursuant to the terms of the Credit Agreement, the
"Agent").
RECITALS:
WHEREAS, pursuant to the terms and conditions of that certain Credit
Agreement dated September 25, 1996 by and among KCS Resources, Inc., a Delaware
corporation, for itself and as successor by merger to KCS Pipeline Systems,
Inc., a Delaware corporation, KCS Michigan Resources, Inc., a Delaware
corporation, and KCS Energy Marketing, Inc., a New Jersey corporation (each
individually a "Borrower" and collectively, the "Borrowers"), the Agent, CIBC
Inc., as Collateral Agent, and the Lenders (as such agreement may be amended,
restated, or supplemented from time to time, the "Credit Agreement"), the
Lenders agreed to extend credit to or for the benefit of the Borrowers;
WHEREAS, pursuant to the Credit Agreement and as an inducement to the
Lenders to extend credit to the Borrowers pursuant to the Credit Agreement, the
Guarantor entered into that certain Guaranty dated September 25, 1996 (the
"Guaranty") in favor of the Agent for the benefit of the Lenders;
WHEREAS, the Guaranty was amended by that certain First Amendment to
Guaranty dated March 24, 1998; and
WHEREAS, Guarantor and Agent mutually desire to amend certain aspects of
the Guaranty as herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
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ARTICLE 1
GENERAL TERMS
Section 1.1 Terms Defined in Guaranty. As used in this Second Amendment
all capitalized terms which are defined in the Guaranty or the Credit Agreement,
as applicable, shall have the same meaning herein as therein, all of such terms
and definitions being incorporated herein by reference.
ARTICLE 2
MODIFICATIONS
Section 2.1 Tangible Net Worth. Section 5.4 of the Guaranty is hereby
deleted from the Guaranty in its entirety and shall be substituted with the
following:
"Section 5.4 Tangible Net Worth. Permit Tangible Net Worth as of
September 30, 1998 to be less than $80,000,000 and
thereafter at the close of any fiscal quarter to be less
than $80,000,000 plus 50% of positive Net Income and 75%
of the net proceeds from any offering by Guarantor or
any of its Subsidiaries of capital stock or rights
(other than rights in connection with debt convertible
into Equity Securities) to acquire capital stock in each
such quarter."
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations Repeated. The representations and warranties
of the Guarantor contained in the Guaranty and otherwise made in writing by or
on behalf of the Guarantor pursuant to the Guaranty 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 Second 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 Guaranty, this Second Amendment or the other Security
Instruments.
Section 3.2 Compliance with Obligations. The Guarantor has performed and
complied in all material respects with all agreements and conditions contained
in the Guaranty required to be performed or complied with by the Guarantor prior
to or at the time of delivery of this Second Amendment.
Section 3.3 Defaults. After giving effect to this Second 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 Guarantor is a party.
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Section 3.4 No Amendments. Nothing in Article 2 of this Second Amendment
is intended to amend any of the representations or warranties contained in the
Guaranty.
ARTICLE 4
MISCELLANEOUS
Section 4.1 Extent of Amendments. Except as otherwise expressly provided
herein, the Guaranty and the other instruments and agreements referred to
therein are not amended, modified or affected by this Second Amendment. Except
as expressly set forth herein, all of the terms, conditions, covenants,
representations, warranties and all other provisions of the Guaranty are herein
ratified and confirmed and shall remain in full force and effect.
Section 4.2 References. On and after the date on which this Second
Amendment becomes effective, the terms, "this Guaranty," "hereof," "herein,"
"hereunder" and terms of like import, when used herein or in the Guaranty shall,
except where the context otherwise requires, refer to the Guaranty, as amended
by this Second Amendment.
Section 4.3 Counterparts. This Second 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.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed on this ______ day of November, 1998; provided that this
Second Amendment shall for all purposes be effective as of the 30th day of
September, 1998 as if originally signed on that date.
GUARANTOR:
KCS ENERGY, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
Address for Notices:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
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Xxxxxxxxx Xxxxx of Business
and Chief Executive Office:
000 Xxxxxxxx Xx.
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
AGENT:
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
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
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telecopy: (000) 000-0000
with copies to:
CIBC INC.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxx
Telecopy: (000) 000-0000
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LENDERS:
Consented to By: BANK ONE, TEXAS NATIONAL
ASSOCIATION, a national banking
association
By:________________________________________
Name:______________________________________
Title:_____________________________________
Consented to By: NATIONSBANK OF TEXAS, N.A., a
national banking association
By:________________________________________
Name:______________________________________
Title:_____________________________________
Consented to By: COMERICA BANK TEXAS
By:________________________________________
Name:______________________________________
Title:_____________________________________
Consented to By: DEN NORSKE BANK
By:________________________________________
Name:______________________________________
Title:_____________________________________
By:________________________________________
Name:______________________________________
Title:_____________________________________
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