Document/Exhibit Description Pages Size
1: 10-K Mitchell Energy 10-K 1994 25 138K
2: EX-4.A To Mitchell 10-K 12 38K
3: EX-10.F To Mitchell 10-K 21 40K
4: EX-10.G To Mitchell 10-K 19 39K
5: EX-10.J To Mitchell 10-K 26 92K
6: EX-12 To Mitchell 10-K 2± 10K
7: EX-13 To Mitchell 10-K 70 350K
8: EX-21 To Mitchell 10-K 2± 9K
9: EX-23 To Mitchell 10-K 1 7K
10: EX-99.A To Mitchell 10-K 1 7K
11: EX-99.B To Mitchell 10-K 1 7K
Exhibit 4(a)
THIRD AMENDMENT
THIRD AMENDMENT, dated as of October 12, 1993 (this "Third Amendment"),
to the Restated Credit Agreement, dated as of October 24, 1989, as amended by
the letter dated September 25, 1990, by the First Amendment thereto dated as of
October 23, 1991 and by the Second Amendment thereto dated as of October 7,
1992 (the "Credit Agreement"), among MND Energy Corporation ("MND"), Mitchell
Energy Corporation ("MEC"), Southwestern Gas Pipeline, Inc. ("SGP"; MND and SGP
collectively, the "Borrowers"), the several banks parties thereto (the
"Existing Banks") and Chemical Bank (successor by merger to Manufacturers
Hanover Trust Company) as agent for the Existing Banks (in such capacity, the
"Agent").
W I T N E S S E T H :
WHEREAS, the Borrowers, MEC, the Existing Banks and the Agent are
parties to the Credit Agreement;
WHEREAS, the Borrowers have requested that the Existing Banks amend the
Credit Agreement in the manner set forth below and that Bank of America NT & SA
("Bank of America") become a party to the Credit Agreement;
WHEREAS, the Existing Banks and Bank of America are willing to accede
to the requests of the Borrowers, upon the terms and subject to the conditions
set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Borrowers, the Existing Banks, the Agent and
Bank of America hereby agree as follows:
SECTION I. DEFINED TERMS
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein are so used as so defined.
SECTION II. AMENDMENTS
The Credit Agreement is hereby amended as follows:
2
1. Defined Terms. Subsection 1.1 of the Credit Agreement is hereby
amended by
(a) deleting clause (d) of the definition of "CD Interest
Period";
(b) deleting the definition of "Certain Other MEC Debt" in its
entirety and substituting, in lieu thereof, the following:
"'Certain Other MEC Debt' means (i) as of January 31,
1989, the obligations listed on Schedule 4 in an
aggregate amount equal to $9,225,000, (ii) $58,666,667, which
represents all Guarantee Obligations of MND in respect of
borrowings made by Belvieu Environmental Fuels, a Texas General
Partnership, pursuant to that certain term sheet delivered to
the Banks on June 24, 1992; provided that such $58,666,667
shall be reduced to zero on the date on which and for so long
as such Guarantee Obligations are reduced to zero, as certified
by MND to the Agent, (iii) all Guarantee Obligations of MND
under the Partners' Undertaking dated as of August 14, 1992
among Conoco, Inc., Liquid Energy Corp., MND, C&L Processors
Partnership and The Chase Manhattan Bank (National
Association), as agent, (iv) $19,000,000, which represents all
Guarantee Obligations of MND under the Mitchell Guarantee dated
as of June 1, 1993 made by MND in favor of Chemical Bank, as
agent, relating to that certain Term Loan Agreement dated as of
June 1, 1993 among Gulf Coast Fractionators, certain lenders
and Chemical Bank, as agent; provided that such $19,000,000
shall be reduced to $3,875,000 on the date on which and for so
long as the Completion Amount (as defined in such Mitchell
Guarantee) is reduced to zero, as certified by MND to the Agent
and provided, further, that such $3,875,000 shall be reduced to
zero on the date on which and for so long as the Clawback
Amount (as defined in such Mitchell Guarantee) is reduced to
zero, as certified by MND to the Agent and (v) such other
obligations as are mutually agreed to by the Determining Banks
on each Determination Date commencing on January 31, 1990.".
(c) deleting clause (d) of the definition of "Eurodollar
Interest Period";
(d) deleting the definition of "Installment Payment Date" in
its entirety;
(e) deleting the definition of "Scheduled Termination Date" in
its entirety and substituting, in lieu thereof, the following:
3
"'Scheduled Termination Date' means July 31, 1998.";
and
(f) adding to said subsection 1.1, in alphabetical order, the
following terms:
"'Third Amendment' means the Third Amendment, dated as
of October 12, 1993, to this Agreement.
'Third Amendment Effective Date' means the date on
which all conditions precedent specified in Section III of the
Third Amendment shall have been satisfied in accordance with
their respective terms.".
2. Revolving Credit Commitments. The chart forming a part of
subsection 2.1 of the Credit Agreement is hereby amended by deleting such chart
in its entirety and substituting, in lieu thereof, the following:
[Download Table]
Amount of SGP Per-
"Bank Commitment Portion centage
---- ---------- ------- -------
Chemical Bank $40,000,000 $10,400,000 16%
NationsBank of 33,000,000 8,580,000 13.2
Texas, N.A.
Citibank, N.A. 30,000,000 7,800,000 12
The Bank of Nova Scotia 27,000,000 7,020,000 10.8
PNC Bank, National 21,000,000 5,460,000 8.4
Association
The First National 18,000,000 4,680,000 7.2
Bank of Boston
Bank One, Texas, N.A. 15,000,000 3,900,000 6
First Interstate 12,000,000 3,120,000 4.8
Bank of Texas, N.A.
Christiania Bank 9,000,000 2,340,000 3.6
New York Branch
Morgan Guaranty Trust 9,000,000 2,340,000 3.6
Company of New York
National Westminster 9,000,000 2,340,000 3.6
Bank Plc
NBD Bank, N.A. 9,000,000 2,340,000 3.6
4
[Download Table]
Amount of SGP Per-
"Bank Commitment Portion centage
---- ---------- ------- -------
The Bank of Tokyo, Ltd. 9,000,000 2,340,000 3.6
Bank of America National
Trust and Savings
Association 9,000,000 2,340,000 3.6
------------ ----------- ----
Total $250,000,000 $65,000,000 100%".
============ =========== =====
3. The Notes. Subsection 2.2 of the Credit Agreement is hereby amended
by deleting clause (b) of the second sentence thereof in its entirety and
substituting, in lieu thereof, the following: "(b) be stated to mature on the
Scheduled Termination Date, and".
4. Conversion to Term Loans. Subsection 2.3 of the Credit Agreement is
hereby amended by deleting such subsection in its entirety and substituting, in
lieu thereof, the following: "[INTENTIONALLY OMITTED]".
5. Reduction of Commitment. Subsection 2.6 of the Credit Agreement is
hereby amended by adding the designation "(a)" at the beginning of the first
sentence thereof and by adding the following new paragraph (b) at the end
thereof:
"(b) On July 31, 1997, the Commitments shall automatically and
permanently be reduced to an amount equal to the lesser of (i)
seventy-five percent (75%) of the Commitments in effect on the Third
Amendment Effective Date and (ii) the amount of the Commitments in
effect on July 31, 1997 before giving effect to this subsection
2.6(b).".
6. Prepayments. Subsection 2.7 of the Credit Agreement is hereby
amended by deleting the penultimate sentence thereof (i.e. the sentence
beginning "Partial prepayments after conversion to term") in its entirety.
7. Interest Rates and Options. Subsection 2.8(a) of the Credit
Agreement is hereby amended by deleting clauses (i), (ii) and (iii) thereof in
their entireties and substituting, in lieu thereof, the following:
"(i) subject to the first proviso clause set forth below,
Reference Rated Loans shall bear interest at a rate per annum (x) prior
to July 31, 1996, equal to the Reference Rate and (y) 1/2 of 1% per
annum above the Reference Rate thereafter;
(ii) subject to the proviso clauses set forth below, Eurodollar
Loans shall bear interest at a rate per annum equal to the Eurodollar
Rate determined by the Agent for the relevant Eurodollar Interest
Period, plus (x) 3/4 of 1% per annum prior to July 31, 1996 and (y) 7/8
of 1% per annum thereafter;
5
(iii) subject to the proviso clauses set forth below, CD Rated
Loans shall bear interest at a rate per annum equal to the Adjusted CD
Rate determined by the Agent for the relevant CD Interest Period, plus
(x) 7/8 of 1% per annum prior to July 31, 1996 and (y) 1% per annum
thereafter;".
8. 1993 Adjustments. Section 2 of the Credit Agreement is hereby
amended by adding a new subsection 2.21 thereto, which new subsection shall be
and read as follows:
"2.21 1993 Adjustments. (a) On and as of the Third Amendment
Effective Date, (i) Bank of America shall become a "Bank" hereunder for
all purposes hereof and shall have the rights and obligations of a Bank
hereunder with a Commitment as set forth herein and (ii) each Bank's
Commitment shall be as set forth in subsection 2.1 as revised by the
Third Amendment.
(b) On the Third Amendment Effective Date, the Borrowers (i)
shall repay the then outstanding Reference Rated Loans in full, together
with accrued interest thereon, (ii) may reborrow such repaid amount (or
such other amount as may then be permitted under the Credit Agreement)
of Reference Rated Loans from the Banks according to each Bank's
Commitment in effect on the Third Amendment Effective Date and (iii)
shall pay all commitment fees accruing through the Third Amendment
Effective Date.
(c) The Borrowers (i) shall, with respect to each Eurodollar
Loan and each CD Rated Loan which is outstanding on the Third Amendment
Effective Date, repay such Loans together with accrued interest thereon
on the last day of the then current Interest Period for each such Loan
and (ii) may reborrow such repaid amount (or such other amount as may
then be permitted under the Credit Agreement) of Loans from the Banks in
accordance with each Bank's Commitment in effect on the Third Amendment
Effective Date.
(d) On the date on which the last Eurodollar Loan or CD Rated
Loan outstanding on the Third Amendment Effective Date shall have been
repaid in full, Texas Commerce Bank, National Association (successor to
the interests of First City, Texas-Houston, N.A.) shall cease to be a
"Bank" hereunder for any purpose and shall surrender its Notes (which
Notes are stated to be payable to the order of First City,
Texas-Houston, N.A.) to the Borrowers for cancellation.".
9. Conditions to Loans. Section 3 of the Credit Agreement is hereby
amended by deleting the parenthetical "(including the term loans)" from the
lead-in thereto.
6
10. Conditions to Loans to SGP. Section 4 of the Credit Agreement is
hereby amended by deleting the parenthetical "(including the term loans)" from
the lead-in thereto.
11. Schedule 1. Schedule 1 to the Credit Agreement is hereby amended
by (a) deleting therefrom the entries for Texas Commerce Bank, National
Association, Provident National Bank and First City, Texas-Houston, N.A. and (b)
adding the following entry thereto:
"BANK OF AMERICA NT & SA
333 Clay Street Suite 4550
Houston, Texas 77002
Attention: Darryl Neider
Vice President".
SECTION III. CONDITIONS PRECEDENT
This Third Amendment shall become effective on and as of the date that
the following conditions precedent are satisfied:
1. Amendment. The Agent shall have received counterparts of
this Third Amendment duly executed by each of the Borrowers and the
Banks.
2. Consent of Guarantors. Each of MEC, SGP and Liquid Energy
Corp. shall have executed this Third Amendment in the appropriate space
below the caption "Consent of Guarantors" on the signature pages hereto.
3. New Notes. The Agent shall have received from each of the
Borrowers (i) Notes payable to the order of Bank of America in amounts
equal to those portions of such Bank's total Commitment then in effect
applicable to such Borrower and (ii) Notes payable to the order of The
First National Bank of Boston in amounts reflecting its increased
Commitment then in effect, in exchange for the Notes previously issued
to such Bank.
4. Legal Opinion. The Agent shall have received the executed
legal opinion of the general counsel of the Borrowers, MEC and Liquid
Energy Corp., in form and substance reasonably satisfactory to the
Agent.
5. Payment of Fees and Loans. All Reference Rated Loans
outstanding in the Third Amendment Effective Date, together with accrued
interest thereon, shall have been paid in full, and the Agent shall have
received payment of all commitment fees accruing through the Third
Amendment Effective Date.
7
6. Other Documents; Additional Matters. The Agent shall have
received such other corporate documents and other instruments and
evidence of corporate proceedings as it may reasonably request.
SECTION IV. REPRESENTATIONS AND WARRANTIES
Each of the Borrowers as of the date hereof and after giving effect to
the amendments contained herein, hereby confirms, reaffirms and restates the
representations and warranties made by it in Sections 5 and 6 of the Assignment
Agreement and in Section 9 of the Subsidiary Guarantee; provided that for the
purposes hereof, the term "Credit Agreement" when used in such Sections 5 and 6
shall be deemed to refer both to this Third Amendment and the Credit Agreement
as modified by this Third Amendment.
SECTION V. MISCELLANEOUS
1. Limited Effect. This Third Amendment is limited precisely as
written and shall not be deemed (a) to be a consent to any modification or
amendment of any other term or condition of the Credit Agreement or of any other
term or condition of the instruments or agreements referred to therein or (b) to
prejudice any other right or rights that the Agent or any Bank may now have or
may have in the future under or in connection with the Credit Agreement or the
agreements referred to therein. Except as expressly amended and modified by
this Third Amendment, all of the provisions and covenants of the Credit
Agreement are and shall continue to remain in full force and effect in
accordance with the terms thereof.
2. Counterparts. This Third Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
3. GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4. Expenses. The Borrowers jointly and severally agree to pay or
reimburse the Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation and execution of this Third
Amendment, including, without limitation, the reasonable fees and disbursements
of counsel to the Agent. The Borrowers expressly acknowledge and further agree
that nothing in the preceding sentence shall be construed to limit in any way
the provisions of subsection 9.7 of the Credit Agreement.
5. New Bank. Bank of America hereby acknowledges that upon the
occurrence of the Third Amendment Effective Date it is a
8
party to the Credit Agreement, as amended by this Third Amendment, as if an
original party thereto and has the rights and obligations of a Bank thereunder.
9
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
MND ENERGY CORPORATION
By /s/ W. BROOKE HAMILTON
__________________________________________________________
Title: Vice President - Finance and Treasurer
SOUTHWESTERN GAS PIPELINE, INC.
By /s/ W. BROOKE HAMILTON
__________________________________________________________
Title: Vice President - Finance and Treasurer
CHEMICAL BANK, as Agent and as a Bank
By /s/ W. DOUG PETNO
__________________________________________________________
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By /s/ KRISTIN B. PALMER
__________________________________________________________
Title: Vice President
CITIBANK, N.A.
By /s/ BARBARA A. COHEN
__________________________________________________________
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ F. C. H. ASHBY
__________________________________________________________
Title: Senior Assistant Agent
10
PNC BANK, NATIONAL ASSOCIATION
By /s/ PHILIP R. CONTI
__________________________________________________________
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF BOSTON
By /s/ L. M. KANE
__________________________________________________________
Title: Managing Director
BANK ONE, TEXAS, N.A.
By /s/ RICHARD SYLVAN
__________________________________________________________
Title: Senior Vice President
FIRST INTERSTATE BANK OF TEXAS,
N.A.
By /s/ COLLIE C. MICHAELS
__________________________________________________________
Title: Vice President
CHRISTIANIA BANK
NEW YORK BRANCH
By /s/ DEBRA DICKEHUSTH
__________________________________________________________
Title: Vice President
By /s/ JAHN O. ROISING
__________________________________________________________
Title: First Vice President
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ PHILIP W. McNEAL
__________________________________________________________
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
By /s/ DAVID L. SMITH
__________________________________________________________
Title: Vice President
11
NBD BANK, N.A.
By /s/ JAMES L. CALDWELL IV
__________________________________________________________
Title: First Vice President
THE BANK OF TOKYO, LTD.
By /s/ JOHN McINTYRE
__________________________________________________________
Title: Vice President
BANK OF AMERICA NT & SA
By /s/ DARRYL NEIDER
__________________________________________________________
Title: Vice President
By /s/ C. PAIGE DiMAGGIO
__________________________________________________________
Title: Assistant Vice President
TEXAS COMMERCE BANK, NATIONAL ASSOCIATION (as successor
to the interests of First City, Texas-Houston, N.A.)
By /s/ SCOTT RICHARDSON
__________________________________________________________
Title: Vice President
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CONSENT OF GUARANTORS
Each of the undersigned, pursuant to the Subsidiary Guarantee, dated as
of October 24, 1989, made by the undersigned in favor of Chemical Bank
(successor by merger to Manufacturers Hanover Trust Company) as Agent for the
Banks, hereby consents as of the Third Amendment Effective Date to the
provisions of the above Third Amendment and agrees that the Subsidiary Guarantee
remains in full force and effect after giving effect to the above Third
Amendment.
MITCHELL ENERGY CORPORATION
By /s/ W. BROOKE HAMILTON
__________________________________________________________
Title: Vice President - Finance and Treasurer
SOUTHWESTERN GAS PIPELINE, INC.
By /s/ W. BROOKE HAMILTON
__________________________________________________________
Title: Vice President - Finance and Treasurer
LIQUID ENERGY CORPORATION
By /s/ W. BROOKE HAMILTON
__________________________________________________________
Title: Vice President - Finance and Treasurer
Dates Referenced Herein and Documents Incorporated by Reference
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