MODIFICATION OF
CREDIT AGREEMENT COMMITMENT
EFFECTIVE AS OF DECEMBER 12, 2002
AMONG
KINDER MORGAN ENERGY PARTNERS, L.P.,
CREDIT SUISSE FIRST BOSTON
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT AND AS A LENDER
MODIFICATION OF
CREDIT AGREEMENT COMMITMENT
THIS MODIFICATION OF CREDIT AGREEMENT COMMITMENT (this "Modification") is
made and entered into effective as of the 12th day of December, 2002 (the
"Modification Effective Date"), among KINDER MORGAN ENERGY PARTNERS, L.P., a
Delaware limited liability company (the "Company"), CREDIT SUISSE FIRST BOSTON
("CSFB"), and WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent (in
such capacity, the "Administrative Agent") for each of the lenders (the
"Lenders") that is a signatory or which becomes a signatory to the hereinafter
defined Credit Agreement, and as a Lender (in such capacity, "Wachovia").
R E C I T A L S:
A. On October 15, 2002, the Company, the Lenders, JPMorgan Chase Bank, as
syndication agent, Citibank, N.A., as documentation agent, and the
Administrative Agent entered into a Credit Agreement (the "Credit Agreement")
whereby, upon the terms and conditions therein stated, the Lenders agreed to
make certain Loans (as defined in the Credit Agreement) and extend certain other
credit to the Company.
B. Pursuant to Section 2.01(b) of the Credit Agreement, the Company has
the right, with the consent of the Administrative Agent, to increase the total
Commitments of the Lenders by adding to the Credit Agreement one or more
additional Lenders or by allowing one or more Lenders to increase its
Commitment; provided (1) no Default or Event of Default shall then exist, (2) no
such increase shall cause (a) the aggregate Commitments under the Credit
Agreement to exceed $600,000,000 or (b) the sum of the aggregate Commitments
under the Credit Agreement plus the aggregate commitments under the Related
Credit Agreement to exceed $1,100,000,000, and (3) no Lender's Commitment shall
be increased without such Lender's consent.
C. Wachovia has agreed with the Company to increase its Commitment from
$60,000,000 to $68,709,091.18 and the Administrative Agent has consented to such
increase.
D. CSFB has agreed with the Company to become an additional Lender under
the Credit Agreement with a Commitment of $27,272,727.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Company, CSFB, Wachovia and the Administrative Agent
hereby agree as follows:
1. Certain Definitions.
1.1 Terms Defined Above. As used in this Modification, the terms
"Administrative Agent", "CSFB", "Company", "Credit Agreement", "Lender",
"Modification", "Modification Effective Date", and "Wachovia", shall have the
meanings indicated above.
1.2 Terms Defined in Agreement. Unless otherwise defined herein,
all capitalized terms which are defined in the Credit Agreement shall have the
same meanings herein as therein unless the context hereof otherwise requires.
2. Modification of Wachovia's Commitment. On the Modification
Effective Date, Wachovia's Commitment shall be $68,709,091.18.
3. CSFB's Commitment. On the Modification Effective Date, CSFB
shall become a Lender under the Credit Agreement with a Commitment of
$27,272,727.
4. Conditions Precedent. The increase of Wachovia's Commitment and
the addition of CSFB's Commitment shall be conditioned upon (a) the receipt by
the Administrative Agent of a counterpart of this Modification, duly completed
and executed by the Company, CSFB and Wachovia and (b) the receipt by each of
Wachovia and CSFB of all fees agreed to be paid to them by the Company.
5. Representations and Warranties. The Company represents and
warrants that:
(a) there exists no Default or Event of Default; and
(b) after giving effect to this Modification, (i) the
aggregate Commitments of the Lenders (including CSFB) is $530,000,000, and (ii)
the sum of the aggregate Commitments hereunder plus the aggregate commitments
under the Related Credit Agreement does not exceed $1,100,000,000.
6. Extent of Modification; Ratification. Except as expressly
modified herein, all of the terms, conditions, defined terms, covenants,
representations, warranties and all other provisions of the Credit Agreement and
the other Loan Documents are herein ratified and confirmed and shall remain in
full force and effect.
7. Counterparts. This Modification 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 same
instrument.
8. References. On and after the Modification Effective Date, (a)
the term "Commitment" when used in the Credit Agreement with respect to Wachovia
shall refer to the Commitment of Wachovia, as modified hereby, and with respect
to CSFB shall refer to the Commitment of CSFB as specified herein, and (b) CSFB
shall be a party to and a Lender under the Credit Agreement with all of the
rights and obligations of a Lender thereunder.
THIS MODIFICATION, THE CREDIT AGREEMENT, AS MODIFIED HEREBY, THE NOTES AND
THE OTHER LOAN DOCUMENTS 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 ORAL AGREEMENTS BETWEEN THE PARTIES.
This Modification shall benefit and bind the parties hereto, as well as
their respective assigns, successors, and legal representatives.
[Signatures Begin on Next Page]
EXECUTED as of the Modification Effective Date.
KINDER MORGAN ENERGY PARTNERS, L.P.
By: Kinder Morgan G.P., Inc.,
its General Partner
By: Kinder Morgan Management, LLC,
its Delegate
By: /s/ Joseph Listengart
Name: Joseph Listengart
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ James P. Moran
Name: James P. Moran
Title: Director
WACHOVIA BANK, NATIONAL
ASSOCIATION, Individually as a Lender and
as Administrative Agent
By: /s/ Russell T. Clingman
Name: Russell T. Clingman
Title: Director