EXHIBIT 10.4
AMENDMENT NO. 1
to
4-YEAR LETTER OF CREDIT REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 1 TO 4-YEAR LETTER OF CREDIT REIMBURSEMENT
AGREEMENT (the "Amendment") is made as of March 18, 2004, by and among NISOURCE
FINANCE CORP. (the "Borrower"), NISOURCE INC. (the "Guarantor") and BARCLAYS
BANK PLC, as lender (in such capacity, the "Lender"), as administrative agent
(in such capacity, the "Administrative Agent") and as issuer of letters of
credit (in such capacity, the "LC Bank") under that certain 4-Year Letter of
Credit Reimbursement Agreement dated as of February 13, 2004, by and among the
Borrower, the Guarantor, the Lender, the LC Bank and the Administrative Agent
(as amended, supplemented or otherwise modified as of the date hereof, the "LC
Reimbursement Agreement"). Defined terms used herein and not otherwise defined
herein shall have the meaning given to them in the LC Reimbursement Agreement.
WITNESSETH
WHEREAS, the Borrower, the Guarantor, the Lender, the LC Bank
and the Administrative Agent are parties to the LC Reimbursement Agreement; and
WHEREAS, the Borrower and the Guarantor have requested that
the Lender, the LC Bank and the Administrative Agent amend the LC Reimbursement
Agreement on the terms and conditions set forth herein;
WHEREAS, the Borrower, the Guarantor, the Administrative
Agent, the LC Bank and the Lender have agreed to amend the LC Reimbursement
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto have agreed to the following amendments to the LC Reimbursement
Agreement:
1. Amendments to the LC Reimbursement Agreement. Effective as of the date
hereof and subject to the satisfaction of the condition precedent set
forth in Section 2 below, the LC Reimbursement Agreement is hereby
amended as follows:
1.1. Section 1.1 of the LC Reimbursement is amended to insert
alphabetically therein the following defined terms:
"FEDERAL BANKRUPTCY CODE" means Title 11 of the
United States Code (11 U.S.C. Section 101 et seq.) as now or
hereafter in effect, or any successor statute.
"364-DAY CREDIT AGREEMENT" means that certain 364-Day
Revolving Credit Agreement, dated as of March 18, 2004, by and
among the Borrower, the Guarantor, the lead arrangers,
co-documentation agents and other lenders from time to time
parties thereto, Credit Suisse First Boston, as syndication
agent, and Barclays, as administrative agent thereunder, as
the same may be amended, restated, supplemented, refinanced,
replaced or otherwise modified from time to time.
"3-YEAR CREDIT AGREEMENT" means that certain 3-Year
Revolving Credit Agreement, dated as of March 18, 2004, by and
among the Borrower, the Guarantor, the lead arrangers,
co-documentation agents and other lenders from time to time
parties thereto, Credit Suisse First Boston, as syndication
agent, and Barclays, as administrative agent thereunder, as
the same may be amended, restated, supplemented, refinanced,
replaced or otherwise modified from time to time.
1.2. The definition of "Bank Credit Agreement" now appearing in
Section 1.1 of the LC Reimbursement Agreement is deleted in
its entirety.
1.3. Clause (f) of the definition of "Change of Control" now
appearing in Section 1.1 of the LC Reimbursement Agreement is
amended to delete the reference therein to "Section 6.01(b)"
and substitute "Section 6.01(b)(iii)" therefor.
1.4. The definition of "Consolidated Debt" now appearing in Section
1.1 of the LC Reimbursement Agreement is amended to delete the
reference therein to "indebtedness" and substitute
"Indebtedness" therefor.
1.5. The definition of "Utility Subsidiary" now appearing in
Section 1.1 of the LC Reimbursement Agreement is amended to
insert the phrase ", and any Wholly-Owned Subsidiary thereof"
immediately before the end thereof.
1.6. Clause (ii) of Section 2.05(b) of the LC Reimbursement
Agreement is amended to delete the reference therein to "the
each Lender" and substitute "each Lender" therefor.
1.7. Clause (ii) of Section 3.01(c) of the LC Reimbursement
Agreement is deleted in its entirety and the following is
substituted therefor:
(ii) stating, in the case of the Borrower, that the Borrower
is authorized to transact business under the laws of the
jurisdiction of its place of incorporation, and, in the case
of the Guarantor, that the Guarantor is duly incorporated and
in good standing under the laws of the jurisdiction of its
place of incorporation.
1.8. Section 4.01(a) of the LC Reimbursement Agreement is deleted
in its entirety and the following is substituted therefor:
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(a) Each of the Borrower and the Guarantor is a
corporation duly organized, validly existing and, in the case
of the Borrower, authorized to transact business under the
laws of the State of its incorporation, and, in the case of
the Guarantor, in good standing under the laws of the State of
its incorporation.
1.9. Section 4.01(g) of the LC Reimbursement Agreement is deleted
in its entirety and the following is substituted therefor:
(g) There is no pending or threatened action,
proceeding or investigation affecting such Credit Party before
any court, governmental agency or other Governmental Authority
or arbitrator that (taking into account the exhaustion of
appeals) would have a Material Adverse Effect, or that (i)
purports to affect the legality, validity or enforceability of
this Agreement, or (ii) seeks to prohibit the ownership or
operation, by any Credit Party or any of their respective
Material Subsidiaries, of all or a material portion of their
respective businesses or assets.
1.10. Section 4.01 of the LC Reimbursement Agreement is amended to
insert the following new subsection (r) at the end thereof:
(r) The information, exhibits and reports furnished
by the Borrower or any of its Subsidiaries to the
Administrative Agent or to any Lender in connection with the
negotiation of, or compliance with, the Credit Documents,
taken as a whole, do not contain any material misstatement of
fact and do not omit to state a material fact or any fact
necessary to make the statements contained therein not
misleading in light of the circumstances made.
1.11. The proviso appearing in Section 5.01(e) of the LC
Reimbursement Agreement is amended to delete the last
reference therein to "such Person" and substitute "any Credit
Party" therefor.
1.12. Section 5.01(g) of the LC Reimbursement Agreement is deleted
in its entirety and the following is substituted therefor:
(g) KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to (i) keep, proper books of record and account,
in which full and correct entries shall be made of all
material financial transactions and the assets and business of
each of the Credit Parties and each of their respective
Subsidiaries, and (ii) maintain a system of accounting
established and administered in accordance with generally
accepted accounting principles consistently applied.
1.13. Section 5.01(h)(i)-(ii) of the LC Reimbursement Agreement is
deleted in its entirety and the following is substituted
therefor:
(i) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Guarantor (or, if earlier, concurrently
with the filing thereof with the Securities and Exchange
Commission
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or any national securities exchange in accordance with
applicable law or regulation), balance sheets of the Guarantor
and its Consolidated Subsidiaries in comparative form as of
the end of such quarter and statements of income and retained
earnings of the Guarantor and its Consolidated Subsidiaries
for the period commencing at the end of the previous fiscal
year of the Guarantor and ending with the end of such quarter,
each prepared in accordance with generally accepted accounting
principles consistently applied, subject to normal year-end
audit adjustments, certified by the chief financial officer of
the Guarantor.
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Guarantor (or,
if earlier, concurrently with the filing thereof with the
Securities and Exchange Commission or any national securities
exchange in accordance with applicable law or regulation), a
copy of the audit report for such year for the Guarantor and
its Consolidated Subsidiaries containing financial statements
for such year prepared in accordance with generally accepted
accounting principles consistently applied as reported on by
independent certified public accountants of recognized
national standing acceptable to the Required Lenders, which
audit was conducted by such accounting firm in accordance with
generally accepted auditing standards;
1.14. Section 5.01(h)(v) of the LC Reimbursement Agreement is
amended to (a) delete the reference therein to "the Public
Utilities Holding Company Act of 1935" and substitute "the
Public Utility Holding Company Act of 1935" therefor and (b)
delete in its entirety the phrase "or any national securities
exchange" appearing at the end thereof.
1.15. Section 5.01(h)(vi) of the LC Reimbursement Agreement is
deleted in its entirety and the following is substituted
therefor:
(vi) [Intentionally omitted.]
1.16. Clause (ii) of Section 6.01(b) of the LC Reimbursement
Agreement is deleted in its entirety and the following is
substituted therefor:
(ii) any Subsidiary of the Guarantor may merge into
the Guarantor or the Borrower or transfer assets to the
Borrower; and
1.17. Clause (iii)(D) of Section 6.01(b) of the LC Reimbursement
Agreement is amended to insert the phrase "and shall be a
Wholly-Owned Subsidiary of the Guarantor" immediately before
the end thereof.
1.18. Clause (i) of the proviso appearing in Section 6.01(e) of the
LC Reimbursement Agreement is deleted in its entirety and the
following is substituted therefor:
(i) imposed under an agreement described on Schedule 6.01(e),
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1.19. Section 8.01(e) of the LC Reimbursement Agreement is amended
to delete the reference immediately before the end thereof to
"the Bank Credit Agreement" and substitute "either the 364-Day
Credit Agreement or the 3-Year Credit Agreement" therefor.
1.20. Section 8.01(g) of the LC Reimbursement Agreement is amended
to delete the reference therein to "theft" and substitute
"their" therefor.
1.21. Clause (ii) of Section 8.01(i) of the LC Reimbursement
Agreement is amended to delete the reference therein to
"clauses (iii) through (vi)" and substitute "clauses (c)
through (f)" therefor.
1.22. The third sentence of Section 9.01(c) of the LC Reimbursement
Agreement is amended to insert the parenthetical "(or, if
applicable, all of the Lenders)" immediately after the
reference therein to "Required Lenders".
1.23. The last sentence of Section 9.01(h) of the LC Reimbursement
Agreement is amended to delete the reference therein to "is
has not relied" and substitute "it has not relied" therefor.
1.24. Section 11.02(b) of the LC Reimbursement Agreement is deleted
in its entirety and the following is substituted therefor:
(b) Neither this Agreement nor any provision hereof
may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the
Borrower, the Guarantor and the Required Lenders or by the
Borrower, the Guarantor and the Administrative Agent with the
consent of the Required Lenders; provided that no such
agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the
principal amount of any Unreimbursed LC Disbursements or
reduce the rate of interest thereon, or reduce any fees or
other amounts payable hereunder, without the written consent
of each Lender affected thereby, (iii) extend the expiry date
of any Letter of Credit to a date after the Termination Date,
postpone the scheduled date of payment of any fees or other
amounts payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.09(b) or
(c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each
Lender, (v) release the Guarantor from its obligations under
the Guaranty without the written consent of each Lender, or
(vi) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to
waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the
written consent of each Lender; provided, further, that no
such agreement shall amend, modify or otherwise affect the
rights or duties of the Administrative Agent or the LC Bank
hereunder without the prior written consent of the
Administrative Agent or the LC Bank, as the case may be.
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1.25. The last sentence of Section 11.04(b) of the LC Reimbursement
Agreement is deleted in its entirety and the following is
substituted therefor:
Upon acceptance and recording pursuant to paragraph (d) of
this Section, from and after the effective date specified in
each Assignment and Acceptance, the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections
2.07, 2.08 and 11.03). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (e)
of this Section.
1.26. Article XI of the LC Reimbursement Agreement is amended to
insert the following new Section 11.13 at the end thereof:
SECTION 11.13. USA PATRIOT ACT. Each Lender hereby
notifies the Credit Parties that pursuant to the requirements
of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the
Credit Parties, which information includes the name and
address of the Credit Parties and other information that will
allow such Lender to identify the Credit Parties in accordance
with the Act.
1.27. Schedule 6.01(e) to the LC Reimbursement Agreement is deleted
in its entirety and a new Schedule 6.01(e) in the form of
Attachment A hereto is substituted therefor.
2. Condition of Effectiveness. The effectiveness of this Amendment is
subject to the condition precedent that the Administrative Agent shall
have received duly executed originals of this Amendment from each of
the Borrower, the Guarantor, the Lender, the LC Bank and the
Administrative Agent.
3. Representations and Warranties of the Borrower and the Guarantor. Each
of the Borrower and the Guarantor hereby represents and warrants as
follows:
(a) Each of the Borrower and the Guarantor hereby represents and
warrants that this Amendment and the LC Reimbursement
Agreement as previously executed and as modified hereby
constitute legal, valid and binding obligations of the
Borrower and the Guarantor and are enforceable against the
Borrower and the Guarantor in accordance with their terms
(except as enforceability may be limited by
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bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally).
(b) Upon the effectiveness of this Amendment and after giving
effect hereto, each of the Borrower and the Guarantor hereby
(i) reaffirms all covenants, representations and warranties
made in the LC Reimbursement Agreement as modified hereby, and
agrees that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date
of this Amendment except that any such covenant,
representation, or warranty that was made as of a specific
date shall be considered reaffirmed only as of such date and
(ii) certifies to the Administrative Agent, the LC Bank and
the Lender that no Default has occurred and is continuing.
4. Reference to the Effect on the LC Reimbursement Agreement.
4.1. Upon the effectiveness of Section 1 hereof, on and after the
date hereof, each reference in the LC Reimbursement Agreement
(including any reference therein to "this LC Reimbursement
Agreement," "hereunder," "hereof," "herein" or words of like
import referring thereto) or in any other Credit Document
shall mean and be a reference to the LC Reimbursement
Agreement as modified hereby.
4.2. Except as specifically modified above, the LC Reimbursement
Agreement and all other documents, instruments and agreements
executed and/or delivered in connection therewith, shall
remain in full force and effect, and are hereby ratified and
confirmed.
4.3. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of
the Administrative Agent, the LC Bank or the Lender, nor
constitute a waiver of any provision of the LC Reimbursement
Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
6. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute
one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
NISOURCE FINANCE CORP., as Borrower
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Voce President and Treasurer
NISOURCE INC., as Guarantor
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Voce President and Treasurer
BARCLAYS BANK PLC, as a Lender, as LC
Bank and as Administrative Agent
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Associate Director
Signature Page to Amendment No. 1 to
4-Year Letter of Credit Reimbursement Agreement
ATTACHMENT A
SCHEDULE 6.01(e)
EXISTING AGREEMENTS
1. Lease Agreement, dated December 14, 1999, between Xxxxxxx Leasing LLC
and Xxxxxxx Clean Energy, Inc. ($261,000,000).
2. 3-Year Revolving Credit Agreement, dated as of March 18, 2004, among
the Borrower, the Guarantor, the lenders parties thereto and Barclays
Bank PLC, as administrative agent.
3. 364-Day Revolving Credit Agreement, dated as of March 18, 2004, among
the Borrower, the Guarantor, the lenders parties thereto and Barclays
Bank PLC, as administrative agent.
4. Various cumulative preferred stocks of NIPSCO.
