May 31, 2006
Exhibit
10.1.c
May
31,
2006
Strategic
Energy, L.L.C.
Xxx
Xxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000-0000
Attn:
Xxxxx Xxxx
RE:
Consent
Reference
is made to that certain Amended and Restated Credit Agreement, dated as of
July 2, 2004, among Strategic Energy, L.L.C. (“Borrower”),
LaSalle Bank National Association, in its capacity as Administrative Agent
(“Administrative
Agent”),
various other financial institutions (“Lenders”),
and
PNC Bank, National Association, in its capacity as Syndication Agent, as amended
by that certain Amendment No. 1, dated as of December 20, 2005, among the same
parties (as so amended and as the same may be further amended, supplemented
or
otherwise modified from time to time, the “Credit
Agreement”).
Capitalized terms used herein but not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
Consent
Section
7.3(B)
of the
Credit Agreement prohibits the Borrower and its Subsidiaries from selling,
assigning, transferring, leasing, conveying or otherwise disposing of any
property, whether now owned or hereafter acquired, or any income or profits
therefrom, or enter into any agreement to do so, except certain expressly
enumerated dispositions. Section
7.3(C)
of the
Credit Agreement prohibits the Borrower and its Subsidiaries from directly
or
indirectly creating, incurring, assuming or permitting to exist any Lien on
or
with respect to any of their respective property or assets except certain
expressly enumerated Liens.
Borrower
desires to enter into an agreement with Consolidated Edison Company of New
York
(“ConEd”),
pursuant to which Borrower will, in consideration for a payment by ConEd to
Borrower (collectively, the “ConEd
Purchase Payments”),
either (i) assign to ConEd all monthly retail customer accounts receivable
billed by ConEd on behalf of Borrower pursuant to a consolidated utility xxxx
(collectively, the “ESCO
Customer Accounts”)
or
(ii) in the alternative, grant to ConEd a security interest in the ESCO Customer
Accounts (collectively, the “ConEd
A/R Assignment”).
Borrower has provided to Administrative Agent and Lenders a copy of the proposed
Consolidated Utility Billing Service and Assignment Agreement to be entered
into
with ConEd to evidence the ConEd A/R Assignment. Borrower has requested Lenders
to consent to the ConEd A/R Assignment, pursuant to Sections 7.3(B) and 7.3(C)
and any other applicable Section of the Credit Agreement, and in connection
therewith (a) to the extent the ConEd A/R Assignment constitutes a true sale
of
Borrower’s ESCO Customer Accounts, release any Lien Administrative Agent and
Lenders may have in the sold ESCO Customer Accounts or (b) in the alternative,
to the extent that the ConEd A/R Assignment
Strategic
Energy/Consent
May
31, 2006
Page
2
constitutes
a secured financing, subordinate any Lien Administrative Agent and Lenders
may
have in the pledged ESCO Customer Accounts to the Lien granted to
ConEd.
In
reliance on the representations and warranties provided by Borrower and GPE
in
this letter consent and in connection with the request for such consent,
and
subject to the conditions precedent to effectiveness of this letter agreement
set forth below, Administrative Agent and Lenders hereby consent to the proposed
ConEd A/R Assignment, and in connection therewith (a) to the extent the ConEd
A/R Assignment constitutes a true sale of Borrower’s ESCO Customer Accounts,
release any Lien Administrative Agent and Lenders may have in the sold ESCO
Customer Accounts or (b) in the alternative, to the extent that the ConEd
A/R
Assignment constitutes a secured financing, subordinate any Lien Administrative
Agent and Lenders may have in the pledged ESCO Customer Accounts to the Lien
granted to ConEd.
Specific
Conditions Precedent to Effectiveness
1. Borrower
shall have entered into with ConEd a Consolidated Utility Billing Service
and
Assignment Agreement substantially in the form provided to Administrative
Agent
and Lenders prior to the date hereof, and with only such amendments or
modifications thereto from time to time as shall not reasonably be expected
to
have an adverse effect on Administrative Agent or Lenders.
2.
The
outstanding amount of ESCO Customer Accounts assigned or pledged by Borrower
at
any one time (prior to the payment thereof by ConEd as provided in the
Consolidated
Utility Billing Service and Assignment Agreement)
shall
not exceed $5,000,000, and shall only apply to ESCO Customer Accounts with
respect to retail customers acquired by Borrower after the date of its execution
of the Consolidated Utility Billing Service and Assignment
Agreement.
3. Borrower
shall pay all reasonable costs, fees, and expenses paid or incurred by
Administrative Agent incident to this letter consent, including, without
limitation, the reasonable fees and expenses of Administrative Agent’s counsel
in connection with the negotiation, preparation, delivery, and execution
of this
letter consent and any related documents.
Acknowledgement
of Pledge
Borrower
by its execution below hereby expressly acknowledges that the grant and pledge
by Borrower to Administrative Agent, for the benefit of itself and Lenders,
of a
security interest in its property pursuant to the Security Agreement includes
(and Borrower hereby expressly remakes such grant and pledge) all accounts
associated with the ConEd Purchase Payments, including any and all proceeds
thereof, subject to the subordination provisions set forth herein.
Strategic
Energy/Consent
May
31, 2006
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Representations
As
a
material inducement to Administrative Agent and Lenders to execute and deliver
this letter consent, Borrower hereby represents and warrants to Lenders and
Administrative Agent (with the knowledge and intent that such parties are
relying upon the same in entering into this letter consent) the
following:
(a) This
letter consent and the Credit Agreement, as amended hereby, constitute legal,
valid and binding obligations of Borrower and are enforceable against Borrower
in accordance with their respective terms.
(b) Subject
to any exceptions that would be necessitated by the ConEd transaction described
herein, Borrower hereby reaffirms all covenants, representations and warranties
made in the Credit Agreement and other Loan Documents and agree that all
such
covenants, representations and warranties shall be deemed to have been remade
as
of the effective date of this letter consent.
(c) No
Event
of Default or Default has occurred and is continuing or would exist after
giving
effect to this letter consent.
(d) Borrower
has no defense, counterclaim or offset with respect to the Credit Agreement
with
respect to actions or omissions of the Administrative Agent or the Lenders
prior
to the date of this letter consent.
(e) This
letter consent has been duly executed and delivered by a duly authorized
officer
of Borrower.
General
Except
as
expressly provided by this letter consent, the terms and provisions of the
Credit Agreement and the other Loan Documents are hereby ratified and confirmed
and shall continue in full force and effect. Without limiting any condition
to
effectiveness set forth above, the consent provided and agreed to herein
are to
be effective only upon receipt by Administrative Agent of an execution
counterpart of this letter agreement signed by Borrower, GPE (solely for
the
purpose of ratifying and confirming its Amended and Restated Limited Guaranty
dated as of July 2, 2004) and Lenders. The consent contained herein shall
not
constitute a course of dealing between Borrower, GPE, Administrative Agent
and
Lenders, and shall not constitute a waiver or amendment of any Default or
Event
of Default, now or hereafter, arising, or any other provision of the Credit
Agreement or the other Loan Documents. This consent letter shall be governed
by,
construed and enforced in accordance with all provisions of the Credit
Agreement, including as to choice of law, and may be executed in multiple
counterparts. Administrative Agent and Lenders hereby agree, upon reasonable
request from Borrower or GPE, but only as required from Borrower or GPE by
ConEd, to execute such other documents and take such other actions as are
Strategic
Energy/Consent
May
31, 2006
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4
reasonably
required in order to evidence the consent and subordination that is the subject
of this consent letter.
Please
evidence your acknowledgment of and agreement to the foregoing by executing
this
letter agreement in the place indicated below.
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Sincerely,
LASALLE
BANK NATIONAL ASSOCIATION
as
Administrative Agent, as a Lender and
as
an Issuing Bank
|
||
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By:
Name:
Title:
|
/s/Xxxx
X. Xxxxx
Xxxx
X. Xxxxx
Senior
Vice President & Division Head
|
|
Strategic
Energy/Consent
May
31, 2006
Page
5
[Signatures
continued from previous page.]
IN
WITNESS WHEREOF,
the
undersigned has executed this letter consent as of the day and year first
above
set forth.
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PNC
BANK, NATIONAL ASSOCIATION
as
a Syndication Agent and Lender
|
||
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By:
Name:
Title:
|
/s/Xxxxxx
X. Xxxxxxx
Xxxxxx
X. Xxxxxxx
Vice
President
|
|
Strategic
Energy/Consent
May
31, 2006
Page
6
[Signatures continued from previous page.]
IN
WITNESS WHEREOF,
the
undersigned has executed this letter consent as of the day and year first
above
set forth.
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CITIZENS
BANK OF PENNSYLVANIA
as
Lender
|
||
|
By:
Name:
Title:
|
/s/Xxxxxx
X. Xxxxxx
Xxxxxx
X. Xxxxxx
Senior
Vice President
|
|
Strategic
Energy/Consent
May
31, 2006
Page
7
[Signatures
continued from previous page.]
IN
WITNESS WHEREOF,
the
undersigned has executed this letter consent as of the day and year first
above
set forth.
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NATIONAL
CITY BANK OF PENNSYLVANIA
as
Lender
|
||
|
By:
Name:
Title:
|
/s/Xxxxx
X. Xxxxxxx
Xxxxx
X. Xxxxxxx
Vice
President
|
|
Strategic
Energy/Consent
May
31, 2006
Page
8
[Signatures
continued from previous page.]
IN
WITNESS WHEREOF,
the
undersigned has executed this letter consent as of the day and year first
above
set forth.
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FIFTH
THIRD BANK
as
Lender
|
||
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By:
Name
Title:
|
/s/Xxx
Xxxxxxxx
Xxx
Xxxxxxxx
Vice
President
|
|
Strategic
Energy/Consent
May
31, 2006
Page
9
[Signatures
continued from previous page.]
IN
WITNESS WHEREOF,
the
undersigned has executed this letter consent as of the day and year first
above
set forth.
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SKY
BANK
as
Lender
|
||
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By:
Name:
Title:
|
/s/W.
Xxxxxxxxxxx Xxxxxx
W.
Xxxxxxxxxxx Xxxxxx
Vice
President
|
|
Strategic
Energy/Consent
May
31, 2006
Page
10
[Signatures
continued from previous page.]
IN
WITNESS WHEREOF,
the
undersigned has executed this letter consent as of the day and year first
above
set forth.
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FIRST
NATIONAL BANK OF PENNSYLVANIA
as
Lender
|
||
|
By:
Name:
Title:
|
/s/Xxxxxxx
X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Vice
President
|
|
Strategic
Energy/Consent
May
31, 2006
Page
11
[Signatures
continued from previous page.]
IN
WITNESS WHEREOF,
the
undersigned have executed this letter consent as of the day and year first
above
set forth.
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STRATEGIC
ENERGY, L.L.C.,
as Borrower
|
|
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By:
Name:
Title:
|
/s/Xxxxx
X. Xxxx
Xxxxx
X. Xxxx
VP,
Corporate Development & Finance
|
|
GREAT
PLAINS ENERGY INCORPORATED, as Guarantor,
solely
for the purpose of ratifying and confirming its Amended and Restated
Limited Guaranty dated as of July 2, 2004.
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|
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By:
Name:
Title:
|
/s/Xxxxxxx
X. Xxxxx
Xxxxxxx
X. Xxxxx
Senior
Vice President - Corporate Services and Corporate
Secretary
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