Exhibit (10) (i) 74
INSTRUMENT OF APPOINTMENT AND ACCEPTANCE OF AGENT
AND
AMENDED AND RESTATED CREDIT AGREEMENT
Instrument of Appointment and Acceptance of Agent and Amended and Restated
Credit Agreement ("Amendment") dated as of January 3, 2001, among CENTRAL XXXXXX
GAS & ELECTRIC CORPORATION, a New York corporation (the "Borrower"), the banks
party hereto, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as resigning Agent (the
"Resigning Agent") for the Banks (as defined in the Credit Agreement referred to
below), and THE CHASE MANHATTAN BANK, as successor Agent (the "Successor Agent")
for the Banks.
R E C I T A L S:
WHEREAS, the Borrower is a party to a Credit Agreement dated as of October
23, 1996 (the "Credit Agreement") with the banks party thereto and the Resigning
Agent; and
WHEREAS, the Resigning Agent has delivered written notice of its
resignation as Agent under the Credit Agreement to the Banks and the Borrower,
effective as of the Amendment Effective Date (as defined below), and the Banks,
with the Borrower's approval, desire to appoint the Successor Agent as successor
Agent; and
WHEREAS, the parties desire to amend and restate the Credit Agreement
concomitantly with the resignation of the Resigning Agent and the appointment of
the Successor Agent, on the terms and conditions hereinafter set forth; and
WHEREAS, the Xxxxxx Guaranty Trust Company of New York (the "Assignor")
agrees to assign and sell all of its rights under the Credit Agreement to The
Chase Manhattan Bank (the "Assignee"), and the Assignee agrees to accept such
assignment and assume all of the obligations of the Assignor under the Credit
Agreement on the terms and conditions of the Assignment and Assumption Agreement
set forth in Exhibit "A".
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
CAPITALIZED TERMS
SECTION 1.1. Unless otherwise indicated, all capitalized terms used
herein, but not defined herein shall have the meanings ascribed to them in the
Credit Agreement.
SECTION 1.2. The following terms, as used herein, have the following
meanings:
"Contemplated Transactions" means any of the sale of the Borrower's
interest in (i) its fossil fueled generating plants pursuant to the Amended and
Restated Settlement Agreement, dated January 2, 1998, by and among the Borrower,
the Public Service Commission of the State of New York ("PSC"), and certain
other parties thereto as subsequently modified and revised pursuant to an Order
of the PSC dated February 19, 1998, an Agreement dated February 26, 1998 and an
Order of the PSC dated June 30, 1998, copies of which are annexed hereto as
Exhibit "B", including a sale, if elected, to a corporate affiliate for tax
considerations; and (ii) the Nine Mile Point No. 2 nuclear plant if such sale is
approved by the PSC, provided, however, that
2
in the event that the Borrower's senior credit rating is below "A-", the
Borrower shall not distribute the proceeds of such sale without the prior
written consent of the Required Banks.
"Fee Letter" means the letter agreement between the Borrower and the
Successor Agent dated November 9, 2000.
"Successor Agent" means The Chase Manhattan Bank in its capacity as
agent for the Banks under the Credit Agreement, as amended, and its successors
in such capacity.
ARTICLE 2
APPOINTMENT AND ACCEPTANCE OF AGENT
SECTION 2.1. The Resigning Agent confirms that, pursuant to written notice
dated January 3, 2001, it has notified the Banks and the Borrower that it
resigns as Agent pursuant to Section 7.08 of the Credit Agreement, effective on
the Amendment Effective Date.
SECTION 2.2. The Banks, with the Borrower's approval, hereby appoint the
Successor Agent as the successor Agent pursuant to Section 7.08 of the Credit
Agreement.
SECTION 2.3. The Successor Agent hereby accepts the appointment as the
successor Agent under the Credit Agreement, as amended herein, such acceptance
to be effective on the Amendment Effective Date. Upon the effectiveness of this
Amendment, the Successor Agent shall automatically and without any further
action be vested with all the rights, powers, discretion, privileges and duties
of the Resigning Agent, and the Resigning Agent shall automatically and without
any further action be
3
discharged from its duties and obligations under the Credit Agreement. All
references hereafter in this Amendment to the Agent shall, unless otherwise
expressly provided herein, be deemed a reference to the Successor Agent.
ARTICLE 3
AMENDMENTS TO CREDIT AGREEMENT
SECTION 3.1. The Credit Agreement is hereby amended as follows:
a. All references to Xxxxxx Guaranty Trust Company of New York
shall be deemed to be references to The Chase Manhattan Bank.
b. The first sentence of Section 5.10 is amended to read as
follows:
"The Borrower will not (a) consolidate with or merge
into any other Person or (b) sell, lease or otherwise
transfer all or any substantial part of its assets
(other than receivables) to any other Person, except the
sale of assets under any of the Contemplated
Transactions."
ARTICLE 4
CONDITIONS OF EFFECTIVENESS OF THIS AMENDMENT
This Amendment shall become effective on and as of the date (the
"Amendment Effective Date") when and only if the following conditions have been
satisfied, as determined by the Successor Agent:
SECTION 4.1. The Successor Agent shall have received from each party
hereto a counterpart of this Amendment duly executed by such party.
4
SECTION 4.2. The Fee Letter shall have been executed by the Borrower and
delivered to the Successor Agent.
SECTION 4.3. The Assignee shall have received from the Assignor an
executed Assignment and Assumption Agreement dated as of the Amendment Effective
Date in the form of Exhibit "A" annexed hereto.
SECTION 4.4. The Resigning Agent shall have delivered to the Successor
Agent (i) any register or similar documentation which evidences that full status
of any Loans; (ii) any funds held by the Resigning Agent pursuant to the Credit
Agreement and the Notes thereunder, and (iii) such other and further assurances
as the Successor Agent shall have reasonably requested.
SECTION 4.5. The Successor Agent shall have received from the Borrower a
certificate of a duly authorized officer of the Borrower stating that, as of the
Amendment Effective Date, (i) all representations and warranties set forth in
the Credit Agreement are correct and complete as if made on and as of the
Amendment Effective Date and (ii) no event shall have occurred and be
continuing, or shall occur as a result of the occurrence of the Amendment
Effective Date, that constitutes a Default or Event of Default under the Credit
Agreement.
SECTION 4.6. The Successor Agent shall have received the following
documentation:
a. An opinion of Xxxxx & Xxxxxx, LLP, counsel for the Borrower,
substantially in the form of Exhibit "C" hereto and covering
such additional matters relating to the transactions
contemplated hereby
5
and under the Credit Agreement as the Required Banks may
reasonably request;
b. Evidence reasonably satisfactory to the Successor Agent that
the approval of the New York State Public Service Commission
with respect to the execution, delivery and performance by the
Borrower of the Amendment has been obtained and is in full
force and effect or that such approval is not necessary, which
evidence may be in the opinion in the form of Exhibit "C"; and
c. All documents the Successor Agent may reasonably request
relating to any other matters relevant hereto, all in form and
substance satisfactory to the Successor Agent.
ARTICLE 5
BORROWER'S REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants:
SECTION 5.1. The Borrower has the requisite corporate power and authority
to enter into, perform and deliver this Amendment, and this Amendment has been
duly authorized, executed and delivered.
SECTION 5.2. This Amendment constitutes the valid and legally binding
obligation of the Borrower and is enforceable against the Borrower in accordance
with its terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency or other similar laws effecting creditors'
rights generally or by the effect of general principles of equity which may
limit the enforceability of equitable remedies (whether in a proceeding at law
or in equity).
6
ARTICLE 6
MISCELLANEOUS
SECTION 6.1. This Amendment may be executed in any number of counterparts,
all of which taken together shall constitute one and the same instrument, and
any party hereto may execute this Amendment by signing such counterpart.
SECTION 6.2. This Amendment shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
SECTION 6.3. Any notice or other communication provided for herein with
respect to the Successor Agent shall be writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, to The Chase Manhattan Bank, 00 Xxxxxxxxx Xxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx, Xx., (telecopy number
518-436-9811); with a copy to DeGraff, Foy, Xxxx-Xxxxxx & Xxxx, LLP, 00 Xxxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Esq. (telecopy
number 518-436-0210).
SECTION 6.4. Except as specifically amended hereby, the Credit Agreement
and the Note are restated and if set forth at length herein and shall remain in
full force and effect in accordance with their respective terms.
SECTION 6.5. All references to the Credit Agreement in the Credit
Agreement or any of the instruments, agreements or other documents or papers
executed or delivered in connection therewith shall be deemed to refer to the
Credit Agreement as amended by this Amendment.
7
IN WITNESS WHEREOF, the parties have caused this Instrument of Appointment
and Acceptance of Agent and Amendment to Credit Agreement to be duly executed as
of the day and year first above written.
CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
BY: /s/ XXXXXX X. XXXX
------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer and Treasurer
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Individually and as Resigning Agent
BY: /s/ XXXXXX XXXXXXXXX
------------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, Individually and as
Successor Agent
BY: /s/ XXXXX X. XXXXX, XX.
------------------------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
THE BANK OF NEW YORK
BY: /s/ XXXX X. XXXX
------------------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
8
HSBC BANK U.S.A., f/k/a MARINE MIDLAND
BANK, N.A.
BY: /s/ XXXXXXX XXXXXX
------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
9
