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 OPERATING L.P. "B" (formerly known as Enron Transportation Services,
L.P.), a limited partnership 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 definition of "Agreement" in Section 1.02 of the Credit Agreement is
hereby amended to read as follows:
"Agreement" shall mean this Credit Agreement, as amended by the First
Amendment and the Second Amendment as the same may be further amended or
supplemented from time to time.
3. Section 1.02 of the Credit Agreement is hereby supplemented, where
alphabetically appropriate, with the addition of the following definition:
"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 2.04(a) of the Credit Agreement is hereby deleted, and the
following is substituted therefor:
"(a) The Borrower shall pay to the Agent for the account of each
Lender:
(i) a commitment fee on the daily average unused amount of the
Aggregate Revolving Credit Commitment for the period from and
including the Closing Date to but excluding the Revolving Credit
Termination Date at the following rate per annum based on the
Indebtedness Ratio:
----------------------------
Indebtedness Commitment
Ratio Fee
----------------------------
>3.50 0.375%
----------------------------
<
-3.50 0.250%
----------------------------
Accrued commitment fees shall be payable quarterly in arrears on each
Quarterly Date and on the earlier of the date the Aggregate Revolving
Credit Commitments are terminated or the Revolving Credit Termination Date.
(ii) a letter of credit fee, computed (on the basis of a year of 360
days and actual days elapsed) for each day from the Closing Date at the
rate of 1.50% per annum of the LC Maximum Amount, payable quarterly in
arrears on each Quarterly Date."
5. Section 9.16 of the Credit Agreement is hereby amended to read as
follows:
"Section 9.16 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 upon fair and reasonable
terms to it."
6. Section 9.19 of the Credit Agreement is hereby amended to read as
follows:
"Section 9.19 Partnership Agreement. The Borrower will not amend or
permit to be amended the Partnership Agreement in a manner materially
adverse to the Lenders without the prior written consent of the Majority
Lenders."
7. This Amendment shall become binding when the Agent shall have received
counterparts of this Amendment executed by the Borrower and the Lenders and such
other documents as the Agent or its counsel may reasonably request.
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8. 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.
9. 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.
10. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of Texas.
11. 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.
12. 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 OPERATING L.P. "B"
(formerly known as Enron Transportation
Services, L.P.)
By: Kinder Xxxxxx X.X., Inc.,
its General Partner
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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