THIS INSTRUMENT PREPARED
BY AND WHEN RECORDED
RETURN TO:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxxx
FIRST AMENDMENT TO MORTGAGE AND
SECURITY AGREEMENT WITH ASSIGNMENT OF RENTS
THIS FIRST AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT WITH ASSIGNMENT OF
RENTS (this "Amendment") is entered into as of the effective time and date
hereinafter stated (the "Effective Date") by and between XXXXXX XXXXXX OPERATING
L.P. "B" (formerly known as Enron Transportation Services, L.P.), a Delaware
limited partnership with an address for notice hereunder of 0000 XxXxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("Mortgagor") and FIRST UNION NATIONAL
BANK OF NORTH CAROLINA, a national banking association with offices and banking
quarters at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
individually (in such capacity, "First Union") and as agent for the lenders
which are or become parties to the Credit Agreement referred to below
(collectively called the "Lenders") (in such capacity as agent, together with
its successors in such capacity, the "Mortgagee").
R E C I T A L S
A. Mortgagor and First Union previously entered into a Credit Agreement
dated as of December 29, 1994, as amended (the "Prior Credit Agreement").
B. The Prior Credit Agreement is secured by, among other things, that
certain Mortgage and Security Agreement With Assignment of Rents dated of even
date therewith from Mortgagor to First Union (the "Mortgage").
C. The Mortgage was duly recorded in the State of Illinois as follows
encumbering the property described on Exhibit A hereto:
County Date Filed Recording Information
Xxxxxxx 1/9/95 Book 862, Page 195,
Mortgage Records,
#233117
Xxxxxxxx 1/9/95 Book 464, Page 846,
Mortgage Records,
#147782
D. Of even date herewith, Mortgagor, Mortgagee and the Lenders are
entering into that certain Credit Agreement, and in connection therewith,
Mortgagor and Mortgagee now desire to amend the Mortgage.
NOW, THEREFORE, in view of the foregoing and for good and valuable
consideration, the receipt of which is hereby acknowledged, Mortgagor and
Mortgagee do hereby agree as follows:
1. All capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Mortgage.
2. All references in the Mortgage to "this Mortgage", as defined in the
opening paragraph of the Mortgage shall mean the Mortgage as amended hereby and
as the same may from time to time be further amended or supplemented.
3. Each Lender has appointed and authorized First Union to act as its
agent under the Mortgage pursuant to Section 11.01 of the Credit Agreement,
therefore, all references in the Mortgage to "Mortgagee", as defined in the
opening paragraph of the Mortgage shall be deemed to be references to First
Union National Bank of North Carolina, as agent for the Lenders.
4. Section 1.4 of the Mortgage is amended to delete the figure
"$29,650,000" and substitute the figure "$31,750,000" therefor.
5. Article II of the Mortgage is amended to read as follows:
"INDEBTEDNESS SECURED
This conveyance is made to secure and enforce the payment of the
following indebtedness, obligations and liabilities:
(a) Payment of and performance of any and all indebtedness,
obligations and liabilities of Mortgagor pursuant to the Credit Agreement
dated as of February 14, 1997 among Mortgagor, Mortgagee and the lenders
party thereto (the "Lenders") (as amended, restated or supplemented from
time to time
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the "Governing Agreement"), including without limitation, those certain
promissory notes which are or may be executed by Mortgagor in the
aggregate principal amount of $15,875,000 with final maturity on or before
February 14, 1999 and all other notes given in substitution therefor or in
modification, renewal or extension thereof, in whole or in part (such
notes, as from time to time supplemented, amended or modified and all
other notes given in substitution therefor or in modification, renewal or
extension thereof, in whole or in part, being hereafter called the
"Revolving Credit Notes");
(b) Replacement Term Note dated of even date herewith executed by
Mortgagor payable to the order of First Union National Bank of North
Carolina in the face amount of $23,700,000, bearing interest and payable
as therein provided with a final maturity of all principal and interest of
February 14, 1999 and all other notes given in substitution therefor or in
modification, renewal or extension thereof, in whole or in part (such
notes, as from time to time supplemented, amended or modified and all
other notes given in substitution therefor or in modification, renewal or
extension thereof, in whole or in part, being hereafter the "Replacement
Term Note"; the Revolving Credit Notes and the Term Note being herein
collectively referred to as the "Notes");
(c) Payment of any sums which may be advanced or paid by Mortgagee
under the terms hereof on account of the failure of Mortgagor to comply
with the covenants of Mortgagor contained herein; and all other
indebtedness of Mortgagor arising pursuant to the provisions of this
Mortgage;
(d) Payment of any additional loans made by the Lenders to Mortgagor.
It is contemplated that the Lenders may lend additional sums to Mortgagor
from time to time, but shall not be obligated to do so, and Mortgagor
agrees that any such additional loans shall be secured by this Mortgage;
(e) Payment of and performance of any and all present or future
obligations of Mortgagor according to the terms of any present or future
interest or currency rate swap, rate cap, rate floor, rate collar,
exchange transaction, forward rate agreement or other exchange or rate
protection agreements or any option with respect to any such transaction
now existing or hereafter entered into between Mortgagor and Mortgagee or
any of the Lenders;
(f) Payment of and performance of any and all present or future
obligations of Mortgagor according to the terms of any present or future
swap agreements, cap, floor, collar, exchange transaction, forward
agreement or other exchange or protection agreements relating to crude
oil, natural gas or other hydrocarbons or any option with respect to any
such transaction now existing or hereafter entered into between Mortgagor
and Mortgagee or any of the Lenders;
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(g) All reimbursement obligations for drawn or undrawn portions under
that certain irrevocable letter of credit in the amount of $24,128,548.00
issued by First Union National Bank of North Carolina (the "Replacement
Letter of Credit") and any letter of credit now outstanding or hereafter
issued under or pursuant to the Governing Agreement in replacement of the
Replacement Letter of Credit; and
(h) Payment of and performance of any and all other indebtedness,
obligations and liabilities of any kind of Mortgagor to the Mortgagee or
any Lender, now or hereafter existing, arising directly between Mortgagor
and the Mortgagee or any Lender or acquired outright, as a participation,
conditionally or as collateral security from another by the Mortgagee or
any Lender, absolute or contingent, joint and/or several, secured or
unsecured, due or not due, arising by operation of law or otherwise, or
direct or indirect, including indebtedness, obligations and liabilities to
the Mortgagee or any Lender of Mortgagor as a member of any partnership,
syndicate, association or other group, and whether incurred by Mortgagor
as principal, surety, endorser, guarantor, accommodation party or
otherwise.
The term "Indebtedness" as used herein shall mean and include said
Notes and all other indebtedness described, referred to or mentioned in
paragraphs (a) through (h), inclusive, of this Article II and all
renewals, extensions and modifications thereof and all substitutions
therefor, in whole or in part. Notwithstanding any other provision of this
Mortgage, the Indebtedness shall not include any reimbursement obligation
under the Support Letter of Credit (as defined in the Governing Agreement)
that may be issued under the Governing Agreement and any principal or
interest outstanding on the Support Term Note (as defined in the Governing
Agreement).
It is expressly understood and agreed that the Indebtedness hereby
secured will in no event exceed two hundred percent (200%) of (i) the
total face amount of the Notes plus (ii) the total interest which may
hereafter accrue under the Notes on such face amount plus (iii) any fees,
costs or expenses which may be payable hereunder or under any Loan
Document."
6. All references to "Default Rate" in the Mortgage shall be deemed to be
references to "Post-Default Rate" as such term is defined in the Credit
Agreement.
7. Mortgagor hereby confirms that it has heretofore granted, bargained,
sold, conveyed, mortgaged, warranted, assigned and pledged, and granted a
security interest in the Mortgaged Property to First Union, and Mortgagor
further grants, bargains, sells, conveys, mortgages, warrants, assigns and
pledges, and grants a security interest in the Mortgaged
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Property to Mortgagee to secure the payment and performance of the Indebtedness
as amended herein.
8. The parties hereto hereby acknowledge and agree that except as
specifically amended, changed or modified hereby, the Mortgage shall remain in
full force and effect in accordance with its terms. None of the rights, titles
and interests existing and to exist under the Mortgage are hereby released,
diminished or impaired, and Mortgagor hereby reaffirms all covenants,
representations and warranties made in the Mortgage.
9. 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. To facilitate recordation, the descriptions of the
Mortgaged Property attached as Exhibits and B to the Mortgage, are attached
hereto.
EXECUTED as of the 14th day of February, 1997 (the "Effective Date").
MORTGAGOR:
XXXXXX XXXXXX OPERATING L.P. "B"
(formerly known as Enron Transportation Services,
L.P.)
By: Kinder Xxxxxx X.X., Inc.
(formerly known as Enron Liquids Pipeline
Company),
its General Partner
By:________________________________
Name: Xxxxxx X. Xxxx
Title: President
MORTGAGEE:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, INDIVIDUALLY AND
AS AGENT
By:__________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
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XXXXX XX XXXXX )
)
COUNTY OF XXXXXX )
I, _____________________________, a Notary Public in and for said County,
in the State aforesaid, do hereby certify that Xxxxxx X. Xxxx, President of
Kinder Xxxxxx X.X., Inc. (formerly known as Enron Liquids Pipeline Company), a
Delaware corporation, General Partner of XXXXXX XXXXXX OPERATING L.P. "B", a
Delaware limited partnership, who is personally known to me to be the same
person whose name is subscribed to the foregoing instrument as such President,
appeared before me this day in person and acknowledged that he signed and
delivered the said instrument as his own free and voluntary act as the free and
voluntary act of said corporation and limited partnership, for the uses and
purposes therein set forth.
Given under my hand and notarial seal, this ___ day of February, 1997.
------------------------------
Notary Public in and for the
State of Texas
Seal:
STATE OF NORTH CAROLINA )
)
COUNTY OF MECKLENBURG )
I, _____________________________, a Notary Public in and for said County,
in the State aforesaid, do hereby certify that Xxxxxxx X. Xxxxxxxxxx, Vice
President of FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a national banking
association, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such Vice President, appeared before
me this day in person and acknowledged that he signed and delivered the said
instrument as his own free and voluntary act as the free and voluntary act of
said association, for the uses and purposes therein set forth.
Given under my hand and notarial seal, this ___ day of February, 1997.
------------------------------
Notary Public in and for the
State of North Carolina
Seal:
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