AMENDMENT NO. 1 TO CREDIT AGREEMENT
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This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment") is
entered into as of April 27, 2005 among the following:
(i) CH ENERGY GROUP, INC., a New York corporation (herein,
together with its successors and assigns, the "Parent");
(ii) CENTRAL XXXXXX ENTERPRISES CORPORATION, a New York
corporation ("Central" and together with the Parent, collectively, the
"Borrowers" and, individually, "Borrower");
(iii) the lending institutions signatory hereto (herein,
together with its or their successors and assigns, each a "Lender" and
collectively, the "Lenders"); and
(iv) KEYBANK NATIONAL ASSOCIATION, a national banking
association, the Swing Line Lender, the lead arranger and as the
administrative agent for the Lenders under the Credit Agreement (in
such capacity, the "Administrative Agent").
RECITALS:
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A. The Borrowers, the Swing Line Lender, the Administrative Agent, the
Lenders, JPMorgan Chase Bank, a New York banking corporation, as Syndication
Agent, Fleet National Bank, a national banking association, as Co-Documentation
Agent, and HSBC Bank USA, a national banking association, as Co-Documentation
Agent are parties to the Credit Agreement, dated as of November 21, 2003 (as the
same may from time to time be amended, restated or otherwise modified, the
"Credit Agreement").
B. The Borrowers, the Administrative Agent and the Lenders desire to
amend the Credit Agreement to modify certain provisions thereof.
AGREEMENT:
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In consideration of the premises and mutual covenants herein and for
other valuable consideration, the Borrowers, the Administrative Agent and the
Lenders agree as follows:
Section 1. Definitions. Unless otherwise defined herein, each
capitalized term used in this Amendment and not defined herein shall be defined
in accordance with the Credit Agreement.
Section 2. Amendments.
2.1 New Definitions. Section 1.1 of the Credit Agreement is hereby
amended to add the following new definitions thereto in appropriate
alphabetical order:
"Applicable Utilization Fee Rate" means, on any date of
determination, a rate that is determined based upon the Parent S&P Rating or the
Parent Xxxxx'x Rating, as follows:
Parent S&P Rating Parent Xxxxx'x Rating Applicable Utilization Fee Rate
----------------- --------------------- -------------------------------
A or higher A2 or higher 10.00 basis points
A- or lower A3 or lower 12.50 basis points
If there is a difference of one rating level between the Parent S&P
Rating and the Parent Xxxxx'x Rating, the Applicable Utilization Fee Rate shall
be determined based on the higher rating. If there is a difference of two or
more rating levels between the Parent S&P Rating and the Parent Xxxxx'x Rating,
the Applicable Utilization Fee Rate shall be determined based on the
intermediate rating levels at the midpoint between such Parent S&P Rating and
such Parent Xxxxx'x Rating (or, if there is no midpoint, the higher intermediate
level). If there is no Parent S&P Rating, then the Applicable Utilization Fee
Rate shall be determined based on the Parent Xxxxx'x Rating, or if there is no
Parent Xxxxx'x Rating, then the Applicable Utilization Fee Rate shall be
determined based on the Parent S&P Rating. If (i) there is no Parent S&P Rating
and no Parent Xxxxx'x Rating or (ii) an Event of Default has occurred and is
continuing, the Applicable Utilization Fee Rate shall be the highest rate per
annum indicated therefor in the above table. The Parent S&P Rating and the
Parent Xxxxx'x Rating in effect on any date for purposes of determining the
Applicable Utilization Fee Rate shall be that Parent S&P Rating and Parent
Xxxxx'x Rating in effect at the close of business on such date. Each change in
the Applicable Utilization Fee Rate resulting from a publicly announced change
in the Parent S&P Rating and/or the Parent Xxxxx'x Rating shall be effective
during the period commencing on the date of the public announcement thereof and
ending on the date immediately preceding the effective date of the next change.
2.2 Amendments to Certain Definitions. The definitions of "Applicable
Commitment Fee Rate", "Applicable Margin", and "Maturity Date" are hereby
amended and restated as follows:
"Applicable Commitment Fee Rate" means, on any date of determination, a
rate that is determined based upon the Parent S&P Rating or the Parent Xxxxx'x
Rating, as follows:
Parent S&P Rating Parent Xxxxx'x Rating Applicable Commitment Fee Rate
----------------- --------------------- ------------------------------
A or higher A2 or higher 9.00 basis points
A- A3 10.00 basis points
BBB+ Baa1 12.50 basis points
BBB Baa2 15.00 basis points
BBB- or lower Baa3 or lower 17.50 basis points
If there is a difference of one rating level between the Parent S&P
Rating and the Parent Xxxxx'x Rating, the Applicable Commitment Fee Rate shall
be determined based on the higher rating. If there is a difference of two or
more rating levels between the Parent S&P Rating and the Parent Xxxxx'x Rating,
the Applicable Commitment Fee Rate shall be determined based on the intermediate
rating levels at the midpoint between such Parent S&P Rating and such Parent
Xxxxx'x Rating (or, if there is no midpoint, the higher intermediate level). If
there is no Parent S&P Rating, then the Applicable Commitment Fee Rate shall be
determined based on the Parent Xxxxx'x Rating, or if there is no Parent Xxxxx'x
Rating, then the Applicable Commitment Fee Rate shall be determined based on the
Parent S&P Rating. If (i) there is no Parent S&P Rating and no Parent Xxxxx'x
Rating or (ii) an Event of Default has occurred and is continuing, the
Applicable Commitment Fee Rate shall be the highest rate per annum indicated
therefor in the above table. The Parent S&P Rating and the Parent Xxxxx'x Rating
in effect on any date for purposes of determining the Applicable Commitment Fee
Rate shall be that Parent S&P Rating and Parent Xxxxx'x Rating in effect at the
close of business on such date. Each change in the Applicable Commitment Fee
Rate resulting from a publicly announced change in the Parent S&P Rating and/or
the Parent Xxxxx'x Rating shall be effective during the period commencing on the
date of the public announcement thereof and ending on the date immediately
preceding the effective date of the next change.
"Applicable Margin" means, on any date of determination, a rate that is
determined, based upon the Parent S&P Rating or the Parent Xxxxx'x Rating, as
follows:
Parent S&P Rating Parent Xxxxx'x Rating Applicable Margin for
Eurodollar Loans
----------------- --------------------- ---------------------
A A2 30.00 basis points
A- A3 37.50 basis points
BBB+ Baa1 47.50 basis points
BBB Baa2 57.50 basis points
BBB- or lower Baa3 or lower 75.00 basis points
If there is a difference of one rating level between the Parent S&P
Rating and the Parent Xxxxx'x Rating, the Applicable Margin shall be determined
based on the higher rating. If there is a difference of two or more rating
levels between the Parent S&P Rating and the Parent Xxxxx'x Rating, the
Applicable Margin shall be determined based on the intermediate rating levels at
the midpoint between such Parent S&P Rating and such Parent Xxxxx'x Rating (or,
if there is no midpoint, the higher intermediate level). If there is no Parent
S&P Rating, then the Applicable Margin shall be determined based on the Parent
Xxxxx'x Rating, or if there is no Parent Xxxxx'x Rating, then the Applicable
Margin shall be determined based on the Parent S&P Rating. If (i) there is no
Parent S&P Rating and no Parent Xxxxx'x Rating or (ii) an Event of Default has
occurred and is continuing, the Applicable Margin shall be the highest rate per
annum indicated therefor in the above table. The Parent S&P Rating and the
Parent Xxxxx'x Rating in effect on any date for purposes of determining the
Applicable Margin shall be that Parent S&P Rating and Parent Xxxxx'x Rating in
effect at the close of business on such date. Each change in the Applicable
Margin resulting from a publicly announced change in the Parent S&P Rating
and/or the Parent Xxxxx'x Rating shall be effective during the period commencing
on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next change.
"Maturity Date" means April 27, 2010, or such earlier date on which the
Total Commitment is terminated.
2.3 Deletion of Interest Coverage Ratio Definition. The definition of
"Interest Coverage Ratio" as set forth in Section 1.1 of the Credit Agreement
is hereby deleted in its entirety.
2.4 Amendment to Section 3.1(b). Section 3.1(b) of the Credit Agreement
is hereby amended and restated as follows:
(b) Utilization Fees. The Borrowers agree to pay to the
Administrative Agent utilization fees (the "Utilization Fees") for the account
of each Non-Defaulting Lender that has a Commitment for each day on which the
aggregate principal amount of outstanding Loans made by all Lenders exceeds 50%
of the Total Revolving Commitment, computed for each such day at a rate per
annum equal to the Applicable Utilization Fee Rate in effect for such day on the
aggregate principal amount of Loans made by such Non-Defaulting Lender
outstanding on such day. Utilization Fees, if any, shall be due and payable in
arrears on the last Business Day of each December, March, June and September and
on the Maturity Date.
2.5 Amendment to Section 8.5. Section 8.5 of the Credit Agreement is
hereby amended and restated as follows:
(a) Consolidated Total Debt/Consolidated Total Capitalization
Ratio. The Parent will not at any time permit the ratio of (i)
Consolidated Total Debt to (ii) Consolidated Total Capitalization to
exceed 0.65 to 1.00.
(b) [Intentionally deleted.]
Section 3. Fees. As consideration for the modifications to the Credit Agreement
contemplated in this Amendment, the Borrowers shall pay to the (i)
Administrative Agent, for the benefit of each Lender, an amendment fee in an
amount equal to 15.0 basis points times the amount of such Lender's Commitment
and (ii) Administrative Agent, for its sole account, the fees required to be
paid pursuant to the letter dated as of April 27, 2005 between the
Administrative Agent and the Borrowers (the "Agent Amendment Fee Letter").
Section 4. Effectiveness.
4.1 Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent:
(i) Amendment Executed. This Amendment shall have been executed by the
Borrowers, the Administrative Agent and each of the Lenders, and
counterparts hereof as so executed shall have been delivered to the
Administrative Agent.
(ii) Fees. The Borrowers shall have (i) paid to the Administrative Agent,
for the benefit of the Lenders, the fees required to be paid by it
pursuant to Section 3 above, (ii) paid to the Administrative Agent, for
its sole account, the fees required to be paid pursuant to the Agent
Amendment Fee Letter, and (iii) paid all legal fees and expenses of the
Administrative Agent in connection with the preparation and negotiation
of this Amendment and the other documents being executed or delivered
in connection herewith.
(iii) Other Matters. The Borrowers shall have provided such other items and
shall have satisfied such other conditions as may be reasonably
required by the Administrative Agent.
4.2 Amendment Effective Date. This Amendment shall be effective on the date (the
"Amendment Effective Date") upon which the conditions precedent set forth in
Section 4.1 above are satisfied. The Administrative Agent shall provide the
Borrowers and the Lenders written notice immediately upon the occurrence of the
Amendment Effective Date. Unless otherwise specifically set forth herein, each
of the amendments and other modifications set forth in this Amendment shall be
effective on and after the Amendment Effective Date.
Section 5. Miscellaneous.
5.1 Representations and Warranties. Each Borrower, by signing below,
hereby represents and warrants to the Administrative Agent and the Lenders that:
(i) such Borrower has the legal power and authority to execute and deliver
this Amendment;
(ii) the officers executing this Amendment on behalf of such Borrower have
been duly authorized to execute and deliver the same and bind such
Borrower with respect to the provisions hereof;
(iii) the execution and delivery hereof by such Borrower and the performance
and observance by such Borrower of the provisions hereof do not violate
or conflict with the organizational documents of such Borrower or any
law applicable to such Borrower or result in a breach of any provision
of or constitute a default under any other agreement, instrument or
document binding upon or enforceable against such Borrower;
(iv) no Default or Event of Default exists under the Credit Agreement, nor
will any occur immediately after the execution and delivery of this
Amendment or by the performance or observance of any provision hereof;
(v) no Borrower has any claim or offset against, or defense or counterclaim
to, any obligations or liabilities of such Borrower under the Credit
Agreement or any other Credit Document;
(vi) this Amendment constitutes a valid and binding obligation of such
Borrower in every respect, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity
limiting the availability of equitable remedies; and
(vii) each of the representations and warranties set forth in Article VI of
the Credit Agreement is true and correct in all material respects as of
the date hereof, except to the extent that any thereof expressly relate
to an earlier date.
5.2 Credit Agreement Unaffected. Each reference to the Credit Agreement or in
any other Credit Document shall hereafter be construed as a reference to the
Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby. This Amendment and the Agent Amendment Fee
Letter shall be Credit Documents.
5.3 Waiver. On the date hereof, each Borrower, by signing below, hereby waives
and releases the Administrative Agent and each of the Lenders and their
respective Related Parties from any and all claims, offsets, defenses and
counterclaims of which such Borrower is aware, such waiver and release being
with full knowledge and understanding of the circumstances and effect thereof
and after having consulted legal counsel with respect thereto.
5.4 Entire Agreement. This Amendment, together with the Credit Agreement and the
other Credit Documents integrate all the terms and conditions mentioned herein
or incidental hereto and supersede all oral representations and negotiations and
prior writings with respect to the subject matter hereof.
5.5 Counterparts This Amendment may be executed in any number of counterparts,
by different parties hereto in separate counterparts and by facsimile signature,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
5.6 Governing Law. THIS AMENDMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW). TO THE FULLEST EXTENT PERMITTED BY LAW, EACH BORROWER
HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW
OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK GOVERNS THIS AMENDMENT OR
ANY OF THE OTHER CREDIT DOCUMENTS.
5.7 JURY TRIAL WAIVER. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OF THE OTHER CREDIT
DOCUMENTS (INCLUDING, WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER
MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
[Signature pages follow.]
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
CH ENERGY GROUP, INC.,
as Borrower
By: /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
and Treasurer
CENTRAL XXXXXX ENTERPRISES CORPORATION,
as Borrower
By: /s/ Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
and Treasurer
KEYBANK NATIONAL ASSOCIATION,
as the Administrative Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
HSBC BANK USA, N.A.
By: /s/ Xxxxxxxx XxXxxxxxxx
Name: Xxxxxxxx XxXxxxxxxx
Title: First Vice President