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Exhibit (10) xxix
THIRD AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
AMONG
KCS RESOURCES, INC.,
KCS PIPELINE SYSTEMS, INC.
AS BORROWERS;
KCS ENERGY, INC.
AS GUARANTOR;
AND
BANK ONE, TEXAS, NATIONAL ASSOCIATION
AS A BANK, THE AGENT, AND THE ISSUING BANK,
AND
CIBC, INC.
AS A BANK
Effective as of
March 15, 1995
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TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS......................................... 1
1.01 Terms Defined Above........................... 1
1.02 Terms Defined in Agreement.................... 1
1.03 References.................................... 2
1.04 Articles and Sections......................... 2
1.05 Number and Gender............................. 2
ARTICLE II. AMENDMENTS.......................................... 2
2.01 Amendment of Section 1.02..................... 2
2.02 Amendment of Section 2.03..................... 3
2.03 Amendment of Section 2.07..................... 3
2.04 Amendment of Section 3.03..................... 3
2.05 Amendment of Section 3.06..................... 3
ARTICLE III. CONDITIONS.......................................... 3
3.01 Receipt of Documents.......................... 3
3.02 Accuracy of Representations and Warranties.... 4
3.03 Matters Satisfactory to Banks................. 4
ARTICLE IV. REPRESENTATIONS AND WARRANTIES...................... 4
ARTICLE V. RATIFICATION........................................ 4
ARTICLE VI. MISCELLANEOUS....................................... 4
6.01 Scope of Amendment............................ 4
6.02 Agreement as Amended.......................... 4
6.03 Parties in Interest........................... 5
6.04 Rights of Third Parties....................... 5
6.05 ENTIRE AGREEMENT.............................. 5
6.06 GOVERNING LAW................................. 5
6.07 JURISDICTION AND VENUE........................ 5
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THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Third Amendment") is made and entered into effective as of March 15, 1995,
among KCS RESOURCES, INC., a Delaware corporation ("KRI"), KCS PIPELINE
SYSTEMS, INC., a Delaware corporation ("KCS Pipeline," and together with KRI,
collectively the "Borrowers"); KCS ENERGY, INC., a Delaware corporation
("Guarantor") and BANK ONE, TEXAS, NATIONAL ASSOCIATION, a national banking
association ("Bank One") and CIBC, INC., a Canadian Chartered Bank ("CIBC,"
with Bank One, CIBC and each financial institution that becomes a party hereto
or entitled to benefits and subject to obligations hereunder subsequent to the
date hereof, each a "Bank") and collectively, the "Banks"), and Bank One as
agent for the Banks (in such capacity and together with any successors
designated pursuant hereto, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrowers and Bank One did execute and exchange
counterparts of that certain Amended and Restated Credit Agreement dated March
15, 1994, as amended by that certain First Amendment to Amended and Restated
Credit Agreement dated September 29, 1994, and Second Amendment to Amended and
Restated Credit Agreement dated December 22, 1994, among the Borrowers, Bank
One and CIBC (the "Agreement"), to which reference is here made for all
purposes;
WHEREAS, the parties subject to and bound by the Agreement are desirous
of amending the Agreement in the particulars hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties to the Agreement, as set forth therein, and the
mutual covenants and agreements of the parties hereto, as set forth in this
Third Amendment, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.01 Terms Defined Above. As used herein, each of the terms "Agent,"
"Agreement," "Bank," "Banks," "Bank One," "Borrowers," "CIBC," "KCS Pipeline,"
"KRI" and "Third Amendment" shall have the meaning assigned to such term
hereinabove.
1.02 Terms Defined in Agreement. As used herein, each term defined in
the Agreement shall have the meaning assigned thereto in the Agreement, unless
expressly provided herein to the contrary.
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1.03 References. References in this Third Amendment to Article or
Section numbers shall be to Articles and Sections of this Third Amendment,
unless expressly stated herein to the contrary. References in this Third
Amendment to "hereby," "herein," "hereinafter," "hereinabove," "hereinbelow,"
"hereof," and "hereunder" shall be to this Third Amendment in its entirety and
not only to the particular Article or Section in which such reference appears.
1.04 Articles and Sections. This Third Amendment, for convenience only,
has been divided into Articles and Sections and it is understood that the
rights, powers, privileges, duties, and other legal relations of the parties
hereto shall be determined from this Third Amendment as an entirety and without
regard to such division into Articles and Sections and without regard to
headings prefixed to such Articles and Sections.
1.05 Number and Gender. Whenever the context requires, reference herein
made to the single number shall be understood to include the plural and
likewise the plural shall be understood to include the singular. Words denoting
sex shall be construed to include the masculine, feminine, and neuter, when
such construction is appropriate, and specific enumeration shall not exclude
the general, but shall be construed as cumulative. Definitions of terms defined
in the singular and plural shall be equally applicable to the plural or
singular, as the case may be.
ARTICLE II.
AMENDMENTS
The Borrowers and the Banks hereby amend the Agreement in the following
particulars:
2.01 Amendment of Section 1.02. Section 1.02 of the Agreement is
hereby amended as follows:
The following definitions are amended to read as follows:
"Bank One Credit Borrowing Base" shall mean 65.34% of the Credit
Borrowing Base.
"CIBC Credit Borrowing Base" shall mean 34.66% of the Credit Borrowing
Base.
"CIBC Letter of Credit Limit" means 34.66% of Bank One's Letter of
Credit Limit.
"Commitment Percentage" shall mean 65.34%, as to Bank One, and as to
CIBC, 34.66%.
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2.02 Amendment of Section 2.03. The sixth sentence of Section 2.03 is
hereby amended to read as follows:
"Bank One will make Advances equal to 65.34% of the total request available
to the requesting Borrower by depositing or wire transferring, as
applicable, the same in immediately available funds in or to, as
applicable, the account specified by such requesting Borrower."
2.03 Amendment of Section 2.07. There is added to Section 2.07(b) the
following:
"Agent shall also notify CIBC in writing of the amount of such demand for
payment and CIBC shall promptly pay to Bank One CIBC's pro rata share of
such total amount."
There is added to Section 2.07(c) the following:
"Bank One shall remit promptly to CIBC its pro rata share of such fees."
2.04 Amendment of Section 3.03. The sixth sentence of Section 3.03 of the
Agreement is hereby amended to read as follows:
"CIBC will make Advances equal to 34.66% of the total request available to
the requesting Borrower by depositing or wire transferring, as applicable,
the same in immediately available funds in or to, as applicable, the
account specified by such requesting Borrower."
2.05 Amendment of Section 3.06. The last sentence of Section 3.06 of the
Agreement is hereby amended to read as follows:
"During the period from the date hereof to the date of the first
redetermination of the CIBC Credit Borrowing Base hereafter, the CIBC
Credit Borrowing Base shall be $26,000,000."
ARTICLE III.
CONDITIONS
The obligation of the Banks to amend the Agreement as provided herein is
subject to the fulfillment of the following conditions precedent:
3.01 Receipt of Documents. The Banks shall have received, reviewed, and
approved the following documents and other
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items, appropriately executed when necessary and in form and substance
satisfactory to the Banks:
(a) multiple counterparts of this Third Amendment, as requested by the
Banks;
(b) Notice of Final Agreement; and
(c) such other agreements, documents, items, instruments, opinions,
certificates, waivers, consents, and evidence as the Banks may reasonably
request.
3.02 Accuracy of Representations and Warranties. The representations and
warranties contained in Article IV of the Agreement and this Third Amendment
shall be true and correct.
3.03 Matters Satisfactory to Banks. All matters incident to the
consummation of the transactions contemplated hereby shall be satisfactory to
the Banks.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrowers hereby expressly re-make, in favor of the Banks, all of the
representations and warranties set forth in Article IV of the Agreement, and
represent and warrant that all such representations and warranties remain true
and unbreached.
ARTICLE V.
RATIFICATION
Each of the parties hereto does hereby adopt, ratify, and confirm the
Agreement and the other Loan Documents, in all things in accordance with the
terms and provisions thereof, as amended by this Third Amendment.
ARTICLE VI.
MISCELLANEOUS
6.01 Scope of Amendment. The scope of this Third Amendment is expressly
limited to the matters addressed herein and this Third Amendment shall not
operate as a waiver of any past, present, or future breach, Default, or Event of
Default under the Agreement, except to the extent, if any, that any such breach,
Default, or Event of Default is remedied by the effect of this Third Amendment.
6.02 Agreement as Amended. All references to the Agreement in any document
heretofore or hereafter executed in connection with the transactions
contemplated in the Agreement
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shall be deemed to refer to the Agreement as amended by this Third Amendment.
6.03 Parties in Interest. All provisions of this Third Amendment shall
be binding upon and shall inure to the benefit of the Borrowers, the Banks and
their respective successors and assigns.
6.04 Rights of Third Parties. All provisions herein are imposed solely
and exclusively for the benefit of the Banks and the Borrowers, and no other
Person shall have standing to require satisfaction of such provisions in
accordance with their terms and any or all of such provisions may be freely
waived in whole or in part by the Banks at any time if in its sole discretion
it deems it advisable to do so.
6.05 ENTIRE AGREEMENT. THIS THIRD AMENDMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE SUBJECT HEREOF AND
SUPERSEDES ANY PRIOR AGREEMENT, WHETHER WRITTEN OR ORAL, BETWEEN SUCH PARTIES
REGARDING THE SUBJECT HEREOF. FURTHERMORE IN THIS REGARD, THIS THIRD AMENDMENT,
THE AGREEMENT, THE NOTE, THE SECURITY INSTRUMENTS, AND THE OTHER WRITTEN
DOCUMENTS REFERRED TO IN THE AGREEMENT OR EXECUTED IN CONNECTION WITH OR AS
SECURITY FOR THE NOTE REPRESENT, COLLECTIVELY, THE FINAL AGREEMENT AMONG THE
PARTIES THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
6.06 GOVERNING LAW. THIS THIRD AMENDMENT, THE AGREEMENT AND THE NOTE
SHALL BE DEEMED TO BE CONTRACTS MADE UNDER AND SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS. THE PARTIES ACKNOWLEDGE AND
AGREE THAT THIS AGREEMENT AND THE NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY
BEAR A NORMAL, REASONABLE, AND SUBSTANTIAL RELATIONSHIP TO THE STATE OF TEXAS.
6.07 JURISDICTION AND VENUE. ALL ACTIONS OR PROCEEDINGS WITH RESPECT TO,
ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO, OR FROM
THIS THIRD AMENDMENT, THE AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE LITIGATED
IN COURTS HAVING SITUS IN ▇▇▇▇▇▇ COUNTY, TEXAS. EACH OF THE BORROWERS AND THE
BANKS HEREBY SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT
LOCATED IN ▇▇▇▇▇▇ COUNTY, TEXAS, AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO
TRANSFER OR CHANGE THE JURISDICTION OR VENUE OF ANY LITIGATION BROUGHT AGAINST
IT BY THE BORROWERS OR THE BANKS IN ACCORDANCE WITH THIS SECTION.
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IN WITNESS WHEREOF, this Third Amendment to Amended and Restated Credit
Agreement is executed effective the date first hereinabove written.
BORROWERS:
KCS RESOURCES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
KCS PIPELINE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
GUARANTOR:
KCS ENERGY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice-President
BANKS:
BANK ONE, TEXAS, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
CIBC INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Printed Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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NOTICE OF FINAL AGREEMENT
To: KCS Resources, Inc. (collectively "Borrowers")
KCS Pipeline Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
KCS Energy, Inc. ("Guarantor")
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
As of the effective date of this Notice, Borrower and BANK ONE, TEXAS,
NATIONAL ASSOCIATION and CIBC, INC. ("Banks") have consummated a transaction
pursuant to which Banks have agreed to make a loan or loans to Borrower, to
renew and extend an existing loan or loans to Borrower, and/or to otherwise
extend credit or make financial accommodations to or for the benefit of
Borrower, in an aggregate amount up to $100,000,000 (collectively, whether one
or more, the "Loan").
In connection with the Loan, Borrower and Banks have executed and
delivered and may hereafter execute and deliver certain agreements, instruments
and documents (collectively hereinafter referred to as the "Written Loan
Agreement").
It is the intention of Borrower and Banks that this Notice be
incorporated by reference into each of the written agreements, instruments and
documents comprising the Written Loan Agreement. Borrower and Banks each
warrants and represents that the entire agreement made and existing by or among
Borrower, and Banks with respect to the Loan is and shall be contained within
the Written Loan Agreement, as amended and supplemented hereby, and that no
agreements or promises exist or shall exist by or between Borrower and Banks
that are not reflected in the Written Loan Agreement.
THE WRITTEN LOAN AGREEMENT REPRESENTS 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 ORAL AGREEMENTS BETWEEN THE PARTIES.
Effective Date: March 15, ▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇, NATIONAL
ASSOCIATION
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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CIBC, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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ACKNOWLEDGED AND AGREED:
BORROWERS:
KCS RESOURCES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Treasurer
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KCS PIPELINE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Treasurer
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GUARANTOR:
KCS ENERGY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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