FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT is made and entered into effective
as of the 1st day of September, 1997 (this "Amendment") among XXXXXX XXXXXX,
INC., a corporation 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 (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
are hereby amended to read as follows:
"Agreement" shall mean this Credit Agreement, as amended by the First
Amendment and 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 definitions:
"First Amendment" shall mean that certain First Amendment to Credit
Agreement dated effective as of September 1, 1997 among the Borrower, the
Agent and the Lenders.
4. The last sentence of Section 2.04(j) of the Credit Agreement is hereby
deleted, and the following is substituted therefor:
"The commissions and fronting fees in Sections 2.04(b), (c), (d) and
(e) are payable quarterly in arrears on each Quarterly Date."
5. Section 9.03 of the Credit Agreement is hereby amended by deleting the
existing subsection (g) and adding the following new subsections (g) and (h):
"(g) in addition to the investments permitted by Section 9.03(h),
investments, loans or advances made by the Borrower or Kinder Xxxxxx X.X.
in or to its Subsidiaries, not to exceed at any one time outstanding
$150,000 in the aggregate; and
(h) Kinder Xxxxxx X.X. may make capital contributions as required by
the partnership agreements of Xxxxxx Xxxxxx Energy, Xxxxxx Xxxxxx A, Xxxxxx
Xxxxxx B and Xxxxxx Xxxxxx Operating L.P. "C" and any other partnership of
which it is a partner; provided that its ownership interest in each such
partnership is not greater than 1.2%."
6. Section 9.17 of the Credit Agreement is hereby amended to read as
follows:
"Section 9.17 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, are in the ordinary course of its
business and are upon fair and reasonable terms to it."
7. Section 9.18 of the Credit Agreement is hereby amended to read as
follows:
"Section 9.18 Subsidiaries. The Borrower shall not, and shall not
permit Kinder Xxxxxx X.X. to, create any additional Subsidiaries except for
Subsidiaries with the following characteristics: (i) the Subsidiaries are
Subsidiaries of Xxxxxx Xxxxxx Energy, (ii) the Borrower is not a partner or
member of such Subsidiary, and (iii) if Kinder Xxxxxx X.X. is a partner or
member of such Subsidiary its ownership interest is no greater than 1.2%.
The Borrower shall not and shall not permit Kinder Xxxxxx X.X. to sell or
to issue any stock or ownership interest of a Subsidiary (excluding Xxxxxx
Xxxxxx Energy and its Subsidiaries) except to the Borrower or Kinder Xxxxxx
X.X."
8. Section 9.19 of the Credit Agreement is hereby amended to read as
follows:
"Section 9.19 Negative Pledge Agreements. The Borrower shall not, and
shall not permit Kinder Xxxxxx X.X. to create, incur, assume or suffer to
exist any contract, agreement or understanding (other than this Agreement
and the Security Instruments) which in any way prohibits or restricts the
granting, conveying, creation or imposition of any Lien on any of its
Property or restricts any Subsidiary (excluding Xxxxxx Xxxxxx
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Energy and its Subsidiaries) from paying dividends to the Borrower, or
which requires the consent of or notice to other Persons in connection
therewith.
9. 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.
10. 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.
11. 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.
12. This Amendment shall be governed by, and construed in accordance with,
the laws of the State of Texas.
13. 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.
14. 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.
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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, INC.
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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