Exhibit 10(m)
AMENDMENT NO. 3 AND WAIVER TO THE CREDIT AGREEMENT
Dated as of July 19, 1996
AMENDMENT No. 3 AND WAIVER TO THE CREDIT AGREEMENT among LONG ISLAND
LIGHTING COMPANY, a New York corporation (the "BORROWER"), each of the banks as
set forth on the signature pages hereto (collectively, the "BANKS"), CITIBANK,
N.A. ("CITIBANK") and THE CHASE MANHATTAN BANK, NATIONAL ASSOCIATION ("CHASE")
as co-agents (as hereinafter defined), CHASE as syndication agent (as
hereinafter defined) and Citibank as administrative agent (as hereinafter
defined) for the Banks.
PRELIMINARY STATEMENTS:
1. The Borrower, the Banks and the Co-Agents have entered into a
Revolving Credit Agreement dated as of June 27, 1989, and amendments thereto
dated as of October 13, 1989 and March 5, 1992 (such Credit Agreement, as
amended, supplemented or otherwise modified prior to the date hereof, the
"CREDIT AGREEMENT"). Capitalized terms not otherwise defined in this Amendment
and Waiver have the same meanings as specified in the Credit Agreement.
2. The Borrower intends to (i) reduce the total Commitment
outstanding under the Credit Agreement from $300,000,000 to $250,000,000 by (a)
releasing the interests of Bank of Tokyo-Mitsubishi Trust Company, The Long Term
Credit Bank of Japan and The Tokai Bank, Ltd. which collectively total
$30,000,000 who have chosen not to renew their Commitments and (b) reducing the
Commitment of The Chase Manhattan Bank by $20,000,000; (ii) modify the Transfer
of Assets provision contained in Section 5.02(b); and (iii) appoint Chase as
Syndication Agent (as defined below) and Citibank as Administrative Agent (as
defined below).
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement
is, effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, hereby amended as follows:
(a) Section 1.01 is amended as follows:
(i) The definition of "Co-Agent" is amended in full to
read as follows:
"'CO-AGENT' means Citibank and Chase or such
successor Agent as is provided for in Section
7.05."
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(ii) Section 1.01 is amended by adding the following new definition in the
appropriate alphabetical order:
"'ADMINISTRATIVE AGENT' means Citibank."
"'SYNDICATION AGENT' means Chase."
(b) Section 5.02(b) is amended in its entirety to read as
follows:
"(b) MERGERS, SALE OF ASSETS, ETC.. Merge with or into, or
consolidate with or into, any Person, or sell, assign, transfer or
otherwise dispose of all or any material part of its assets, other
than dispositions of assets no longer required in the ordinary
course of the Borrower's business."
(c) Section 7.01 is amended by adding in the third line thereof,
immediately after the phrase "the Co-Agents," the words "the Syndication Agent
and the Administrative Agent" and adding in the forth line thereof, immediately
after the phrase "the Co- Agents," the words "the Syndication Agent and the
Administrative Agent".
SECTION 2. WAIVER. The Banks hereby waive the requirements of
Section 2.04 which requires the Borrower, in seeking any Commitment reduction,
to ratably reduce all of the Banks Commitments, providing that the reduction is
in an amount of $3,000,000 or an integral multiple thereof. Following this
Amendment and Waiver the Commitments of the Banks under the Credit Agreement
shall be those represented on Schedule 1 attached hereto.
SECTION 3. CONDITIONS OF EFFECTIVENESS. This Amendment and Waiver
shall become effective when, and only when (i) the Administrative Agent shall
have received counterparts of this Amendment and Waiver executed by the Majority
Banks or, as to any of the Banks, advice satisfactory to the Administrative
Agent that such Banks have executed this Amendment and Waiver and (ii) the
Administrative Agent shall have received a certificate, dated the date of
receipt thereof by the Administrative Agent, in form and substance satisfactory
to the Administrative Agent, signed by a duly authorized officer of the
Borrower, stating that:
(A) The representations and warranties contained in the Credit
Agreement and in Section 4 hereof are correct in all material respects on
and as of the date of such certificate as though made on and as of such
date other than any such representations or warranties that, by their
terms, refer to a specific date other than the date of such
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certificate, in which case as of such specific date; and
(B) No event has occurred and is continuing that constitutes a
Default.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants as follows:
(a) The execution, delivery and performance by the Borrower of this
Amendment and Waiver to the Credit Agreement and the consummation of the
transactions contemplated hereby are within the Borrower's corporate
powers and have been duly authorized by all necessary corporate action.
(b) This Amendment and Waiver has been duly executed and delivered
by the Borrower. Assuming that this Amendment and Waiver is duly executed
and delivered by, and is within the power and authority of, the Co-Agents
and the Majority Banks, this Amendment and Waiver is the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting creditors' rights generally and subject to general
principles of equity (regardless of whether considered in a proceeding in
equity or at law).
SECTION 5. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) Upon
the effective date hereof, on and after the date hereof each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement and each reference to "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement is
and shall continue to be in full force and effect and is hereby in all respects
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment and
Waiver shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Bank or the Co-Agents under the Credit
Agreement, nor constitute a waiver of any provision of any of the Credit
Agreement.
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SECTION 6. GOVERNING LAW. This Amendment and Waiver shall be governed by,
and construed in accordance with, the laws of the State of New York.
SECTION 7. EXECUTION IN COUNTERPARTS. This Amendment and Waiver may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, 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. Delivery of an executed counterpart of a signature
page to this Amendment and Waiver by telecopier shall be effective as delivery
of a manually executed counterpart of this Amendment and Waiver.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
and Waiver to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
BORROWER
LONG ISLAND LIGHTING COMPANY
By /S/ XXXXXXXX X. XXXXXXX
----------------------------
Title: Treasurer
Agreed as of the date first above written:
CITIBANK, N.A.
Individually and as Co-Agent
By: /S/ XXXXXX XXX
---------------------
Name: Xxxxxx Xxx, Attorney-in-Fact
Title: Vice President
THE CHASE MANHATTAN BANK
Individually and as Co-Agent
By: /S/ XXXXXX X. XXXXX
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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BANKS
ABN AMRO BANK N.V. NEW YORK BRANCH
By: ABN AMRO NORTH AMERICA, INC.
as Agent
By: /S/ XXXX X. XXXXX
-----------------------
Name: Xxxx X. Xxxxx
Title: Vice President
By: /S/ XXXXX X. XXXXXX
------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /S/ XXXX XXX XXXXXXX
------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /S/ J. XXXX XXXXXXX
-----------------------
Name: J. Xxxx Xxxxxxx
Title: Authorized Signatory
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /S/ XXXXXX X. XXXX
----------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /S/ XXXXX X. X'XXXXX
------------------------
Name: Xxxxx X. X'Xxxxx
Title: Associate Director
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GULF INTERNATIONAL BANK B.S.C.
By:
Name:
Title:
THE LONG TERM CREDIT BANK OF JAPAN LTD.
By: /S/ XXXX' X. XXXXXXX
------------------------
Name: Xxxx' X. XxXxxxx
Title: Deputy General Manager
THE TOKAI BANK LTD.
By: /S/ XXXXXXXX XXXX
---------------------
Name: Xxxxxxxx Xxxx
Title: Deputy General Manager
THE TORONTO-DOMINION BANK
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /S/ XXXXXXX X. XXXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By: /S/ XXXX X. XXXXXXXX
------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
By: /S/ XXXXXX X. XXXXXX
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Treasurer
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SCHEDULE 1
BANK COMMITMENT
ABN AMRO Bank, N.V. $ 5,000,000.00
The Bank of New York $ 20,000,000.00
The Bank of Nova Scotia $ 10,000,000.00
Canadian Imperial Bank of Commerce $ 12,000,000.00
The Chase Manhattan Bank, National Association $ 87,666,666.66
Citibank, N.A. $ 55,333,333.34
Gulf International Bank, B.S.C. $ 14,000,000.00
The Toronto-Dominion Bank $ 26,000,000.00
Union Bank of California, N.A. $ 10,000,000.00
Union Bank of Switzerland, New York Branch $ 10,000,000.00
---------------
TOTAL: $250,000,000.00
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NON-RENEWING BANKS
Bank of Tokyo-Mitsubishi Trust Company $ 10,000,000.00
The Long Term Credit Bank of Japan Ltd. $ 10,000,000.00
The Tokai Bank, Ltd. $ 10,000,000.00
---------------
TOTAL: $ 30,000,000.00
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