1 [REI -- EXHIBIT 4(d)(4)] THIRD AMENDMENT TO CREDIT AGREEMENT THIS THIRD AMENDMENT, dated as of November 9, 1998 (this "Amendment"), to the Credit Agreement dated as of August 6, 1997 (as amended by the First Amendment to the Credit Agreement dated...
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[REI -- EXHIBIT 4(d)(4)]
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT, dated as of November 9, 1998 (this
"Amendment"), to the Credit Agreement dated as of August 6, 1997 (as amended by
the First Amendment to the Credit Agreement dated as of December 23, 1997 and
the Second Amendment to the Credit Agreement dated as of February 27, 1998 (the
"Second Amendment") and as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), is made and entered into
among: (i) HOUSTON INDUSTRIES FINANCECO LP, a Delaware limited partnership (the
"Borrower"); (ii) HOUSTON INDUSTRIES INCORPORATED, a Texas corporation ("HII");
(iii) the several banks and other financial institutions from time to time
parties thereto (collectively, the "Banks," and each individually; a "Bank");
(iv) CHASE SECURITIES INC., as Arranger (in such capacity, the "Arranger"); and
(v) THE CHASE MANHATTAN BANK, as Administrative Agent (in such capacity, the
"Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Banks have
agreed to make certain loans and other extensions of credit to the Borrower; and
WHEREAS, the Borrower has requested that the Credit Agreement
be amended to, among other things, modify the negative covenant relating to the
ratio of HII's Consolidated Indebtedness for Borrowed Money to Consolidated
Capitalization;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements, representations and warranties herein set forth, and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. Unless otherwise defined herein and except
as set forth in this Amendment, terms defined in the Credit Agreement are used
herein as therein defined.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT.
2.1 Amendment to Section 1.1 of the Credit Agreement. Section
1.1 of the Credit Agreement is hereby amended by deleting from the definition of
"Security Documents" the words ", the Pledge and Collateral Agency Agreement"
(the Pledge And Collateral Agency Agreement having been terminated pursuant to
the Second Amendment).
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2.2 Amendment to Section 8.4(b) of the Credit Agreement.
Section 8.4(b) of the Credit Agreement is hereby amended to read in its entirety
as follows:
"(b) Financial Ratios. HII will not permit
the ratio of Consolidated Indebtedness for Borrowed Money to
Consolidated Capitalization to exceed 0.65:1.00."
2.3 Amendment to Section 8.4.(g)(i) of the Credit Agreement.
Section 8.4(g)(i) of the Credit Agreement is hereby amended by reinserting the
phrase "of HII so long as the source of payment therefor is received by such
Subsidiary" in the ninth line thereof immediately following the phrase "advances
or Guarantees made by any Subsidiary" (it being understood that such reinserted
text was inadvertently omitted in the Second Amendment), so that such Section
shall read in its entirety as follows:
"(i) at any time (x) at which no Default or Event of
Default has occurred and is continuing, (y) that Projected Available
Cash exceeds Projected Borrower Debt Service for the fiscal quarter of
HII then in effect and (z) that the long-term senior secured debt
rating in effect for HII is at least BBB by S&P or Baa2 by Xxxxx'x, HII
shall be permitted to make direct or indirect HII Investments in
Subsidiaries of HII, and HII Investments constituting purchases or
acquisitions of assets, securities or Capital Stock that result, upon
consummation thereof, in such assets, securities or Capital Stock being
owned by or becoming Subsidiaries of HII (it being understood that the
foregoing shall not apply to any investments, acquisitions, loans,
advances or Guarantees made by any Subsidiary of HII so long as the
source of payment therefor is received by such Subsidiary in accordance
with this clause (i) and the other applicable provisions of this
Agreement); provided that the requirements set forth in clauses (x) and
(y) above would be satisfied after giving effect to (1) such HII
Investments and (2) any sources of cash available or reasonably
expected by HII at the time of the proposed investment to be available
during the fiscal quarter of HII then in effect;"
SECTION 3. MISCELLANEOUS.
3.1 Effectiveness and References. This Amendment shall become
effective on the date upon which the Agent shall have received counterparts of
this Amendment, duly executed and delivered by the Borrower, HII, the Agent and
the Majority Banks. On and after said effective date, the term "Agreement" as
used in the Credit Agreement, the other loan documents executed in connection
therewith, and any other instrument, document, or writing furnished to the
Banks, the Agent, or the Arranger by the Borrower shall mean the Credit
Agreement, as amended hereby.
3.2 Representations and Warranties. After giving effect to the
amendments contained herein, each of the Borrower and HII hereby confirm,
reaffirm and restate the representations and warranties set forth in Article VII
of the Credit Agreement; provided that each reference in such Article VII to
"this Agreement" shall be deemed to be a reference both to this Amendment and to
the Credit Agreement as previously amended and as amended by this Amendment. On
the date hereof, no Default or Event of Default has occurred or is continuing.
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3.3 Payment of Expenses. The Borrower agrees to pay or
reimburse the Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the Agent.
3.4 Continuing Effect; No Other Amendments. Except as
expressly amended hereby, all of the terms and provisions of the Credit
Agreement and the other Loan Documents (as may have been previously amended) are
and shall remain in full force and effect. The amendments contained herein shall
not constitute an amendment or waiver of any other provision of the Credit
Agreement or the other Loan Documents except as expressly set forth herein.
3.5 Counterparts. This Amendment may be executed in any number
of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all the counterparts shall together
constitute one and the same instrument.
3.6 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
HOUSTON INDUSTRIES
FINANCECO LP
By: HOUSTON INDUSTRIES
FINANCECO GP, LLC,
its General Partner
By:
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Title:
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HOUSTON INDUSTRIES INCORPORATED
By:
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Title:
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THE CHASE MANHATTAN BANK, as
Agent and as a Bank
By:
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Title:
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BANKBOSTON, N.A.
By:
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Title:
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BANK OF MONTREAL
By:
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Title:
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THE BANK OF NEW YORK
By:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Title:
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THE BANK OF TOKYO-MITSUBISHI
LTD., HOUSTON AGENCY
By:
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Title:
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BARCLAYS BANK PLC
By:
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Title:
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CREDIT AGRICOLE INDOSUEZ
By:
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Title:
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By:
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Title:
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CIBC INC.
By:
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Title:
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CITIBANK, N.A.
By:
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Title:
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COMERICA BANK
By:
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Title:
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COMMERZBANK
AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By:
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Title:
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By:
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Title:
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CREDIT LYONNAIS
NEW YORK BRANCH
By:
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Title:
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CREDIT SUISSE FIRST BOSTON
By:
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Title:
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By:
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Title:
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THE DAI-ICHI KANGYO BANK,
LIMITED
By:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Title:
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FLEET NATIONAL BANK
By:
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Title:
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THE FUJI BANK, LIMITED -
HOUSTON AGENCY
By:
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Title:
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
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Title:
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THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By:
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Title:
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MELLON BANK, N.A.
By:
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Title:
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XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:
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Title:
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NATIONSBANK, N.A. (SUCCESSOR BY
MERGER TO NATIONSBANK OF TEXAS, N.A.)
By:
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Title:
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THE NORTHERN TRUST COMPANY
By:
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Title:
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ROYAL BANK OF CANADA
By:
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Title:
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THE SAKURA BANK, LIMITED
By:
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Title:
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SOCIETE GENERALE,
SOUTHWEST AGENCY
By:
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Title:
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THE SUMITOMO BANK, LIMITED
By:
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Title:
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THE TOKAI BANK, LTD.
By:
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Title:
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TORONTO DOMINION (TEXAS), INC.
By:
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Title:
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UBS AG, NEW YORK BRANCH
By:
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Title:
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By:
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Title:
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WACHOVIA BANK OF GEORGIA, N.A.
By:
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Title:
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK
BRANCH
By:
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Title:
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By:
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Title:
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THE YASUDA TRUST AND BANKING
COMPANY LIMITED
NEW YORK BRANCH
By:
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Title:
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