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EXHIBIT 4(F)
AMENDMENT NO. 1 TO
CREDIT AGREEMENT
This AMENDMENT NO. 1, dated as of January 30, 1998, is made by and
among CMS ENERGY CORPORATION, a Michigan corporation (the "BORROWER"), the
lenders parties to the Credit Agreement referred to below (the "LENDERS"), THE
CHASE MANHATTAN BANK, as administrative agent (the "ADMINISTRATIVE AGENT"),
documentation agent (the "DOCUMENTATION AGENT"), collateral agent (the
"COLLATERAL AGENT") and syndication agent (the "SYNDICATION AGENT") for the
Lenders, and the Co-Agents (the "CO-AGENTS") and Lead Managers (the "LEAD
MANAGERS") named therein.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Administrative Agent, the
Documentation Agent, the Collateral Agent, the Syndication Agent, the Co-Agents
and the Lead Managers have entered into a Credit Agreement, dated as of July 2,
1997 (the "CREDIT AGREEMENT"). Unless otherwise defined herein, the terms
defined in the Credit Agreement shall be used herein as therein defined.
(2) The Borrower has requested (i) the deletion of the requirement
under Section 8.01(l) of the Credit Agreement to provide to the Collateral
Agent, within 30 days after any Trigger Date, a perfected first priority pledge
of 100% of the issued and outstanding shares of common stock of Enterprises,
(ii) an amendment to the calculation of the cash dividend coverage ratio set
forth in Section 8.01(j)(ii) of the Credit Agreement to exclude interest accrued
on Junior Subordinated Debt, (iii) the exclusion of Project Finance Debt and
related equity from Consolidated Debt and Consolidated Capital and (iv) an
amendment to Section 11.07(a)(i) of the Credit Agreement to permit the Lenders
to assign their Revolving 364-Day Commitments on a non-pro rata basis. The
Lenders have agreed to the Borrower's requests, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO 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 2 hereof, hereby amended as follows:
(a) The defined terms "Collateral Release Date", "Pledged Stock",
"Prepayment Event" and "Trigger Date" contained in Section 1.01 of the Credit
Agreement are deleted in their entirety.
(b) Clause (i) of the proviso to the defined term "Consolidated
Capital" contained in Section 1.01 of the Credit Agreement is amended in full to
read as follows:
"(i) Consolidated Capital shall (A) include Project Finance Equity of
the Borrower and the Consolidated Subsidiaries in any Consolidated
Subsidiary only to the extent of the Borrower's Ownership Interest in
such Consolidated Subsidiary and (B) exclude that portion of
consolidated equity of the stockholders of the Borrower and the
Consolidated Subsidiaries attributable to assets securing Project
Finance Debt of the Borrower or any Consolidated Subsidiary,"
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(c) Subsection (e) of the proviso to the defined term "Consolidated
Debt" contained in Section 1.01 of the Credit Agreement is amended in full to
read as follows:
"(e) Consolidated Debt shall not include any Project
Finance Debt of the Borrower or any Consolidated Subsidiary."
(d) The defined term "Debt" contained in Section 1.01 of the Credit
Agreement is amended by adding the following sentence to the end thereof:
"Notwithstanding the foregoing, solely for purposes of the calculation
required under Section 8.01(j)(ii), Debt shall not include any Junior
Subordinated Debt issued by the Borrower and owned by any Hybrid
Preferred Securities Subsidiary."
(e) The defined term "Index Debt" contained in Section 1.01 of the
Credit Agreement is amended by deleting the phrase "provided, however, that in
the event that all such senior unsecured indebtedness becomes equally and
ratably secured by the Pledged Stock, the Index Debt shall be such senior
secured indebtedness" in its entirety.
(f) The defined term "Percentage" contained in Section 1.01 of the
Credit Agreement is amended by deleting the phrase "provided, that a Lender's
Percentage of the Commitments under any Tranche shall in all cases equal such
Lender's Percentage of the Commitments under any other Tranche" in its entirety
and substituting therefor the new phrase "provided, that a Lender's Percentage
of the Commitments under the Term Tranche shall in all cases equal such Lender's
Percentage of the Commitments under the Revolving Three-Year Tranche".
(g) The defined term "Required Lenders" contained in Section 1.01 of
the Credit Agreement is amended in full to read as follows:
"REQUIRED LENDERS" means, collectively, the Required Term
Lenders, the Required 364-Day Lenders and the Required Three-Year
Lenders; provided, however, that upon (i) the indefeasible payment in
full of all amounts owing under the Term Tranche, the Revolving 364-Day
Tranche or the Revolving Three-Year Tranche and (ii) the termination of
the Lenders' Commitments under such Tranche, the Required Lenders shall
be determined without regard to the Required Term Lenders, the Required
364-Day Lenders or the Required Three-Year Lenders, as the case may be.
Any determination of those Lenders constituting the Required Lenders
shall be made by the Administrative Agent and shall be conclusive and
binding on all parties absent manifest error.
(h) The following new defined terms are added to Section 1.01 of the
Credit Agreement:
"REQUIRED TERM LENDERS" means, on any date of determination,
Lenders that,
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collectively, on such date (i) hold at least 51% of the then aggregate
unpaid principal amount of the Term Loans owing to Lenders and (ii) if
no Term Loans are then outstanding, have Percentages in the aggregate
under the Term Tranche of at least 51%. Any determination of those
Lenders constituting the Required Term Lenders shall be made by the
Administrative Agent and shall be conclusive and binding on all parties
absent manifest error.
"REQUIRED THREE-YEAR LENDERS" means, on any date of
determination, Lenders that, collectively, on such date (i) hold at
least 51% of the then aggregate unpaid principal amount of the
Revolving Three-Year Loans owing to Lenders and (ii) if no Revolving
Three-Year Loans are then outstanding, have Percentages in the
aggregate under the Revolving Three-Year Tranche of at least 51%. Any
determination of those Lenders constituting the Required Three-Year
Lenders shall be made by the Administrative Agent and shall be
conclusive and binding on all parties absent manifest error.
(i) Section 2.02(b) of the Credit Agreement is amended by deleting each
reference therein to "the Required Lenders" and substituting therefor in each
case a reference to "the Required Three-Year Lenders".
(j) Section 3.04(c)(ii) of the Credit Agreement is amended by deleting
the phrase "the Required Lenders shall, at least one Business Day before the
date of any requested Borrowing, notify the Administrative Agent that the
Eurodollar Rate for Eurodollar Rate Loans to be made in connection with such
Borrowing will not adequately reflect the cost to such Required Lenders" in its
entirety and substituting therefor the new phrase "the Required Term Lenders,
the Required 364-Day Lenders or the Required Three-Year Lenders shall, at least
one Business Day before the date of any requested Borrowing, notify the
Administrative Agent that the Eurodollar Rate for Eurodollar Rate Loans to be
made in connection with such Borrowing will not adequately reflect the cost to
such Required Term Lenders, Required 364-Day Lenders or Required Three-Year
Lenders, as the case may be,".
(k) Section 5.03(c) of the Credit Agreement is deleted in its entirety
and the phrase "Intentionally omitted" is substituted therefor.
(l) Section 8.01(i) of the Credit Agreement is amended by deleting the
phrase "provided, however, that in the event that the Collateral Release Date
occurs prior to June 30, 1999, the Borrower shall maintain at all times from the
Collateral Release Date through June 30, 1999 a ratio of Consolidated Debt to
Consolidated Capital of not more than 0.66:1.0" in its entirety.
(m) Section 8.01(l) of the Credit Agreement is deleted in its entirety
and the phrase "Intentionally omitted" is substituted therefor.
(n) Section 8.03(m) of the Credit Agreement is amended by deleting the
phrase "the Required Lenders may" in its entirety and substituting therefor the
new phrase "the Required Term Lenders, the Required 364-Day Lenders or the
Required Three-Year Lenders may".
(o) Section 10.01(c) of the Credit Agreement is amended by deleting the
phrase "with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 11.01)" in its entirety and substituting
therefor the new phrase "with the consent or at the request of the Required
Lenders (or
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such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 11.01 or any other provision of this
Agreement)".
(p) Section 11.01(v) of the Credit Agreement is amended by deleting the
phrase "the definition of "Required Lenders" contained in Section 1.01" in its
entirety and substituting therefor the new phrase "the definition of "Required
Lenders", "Required Term Lenders", "Required 364-Day Lenders" or "Required
Three-Year Lenders" contained in Section 1.01".
(q) Section 11.01(vii) of the Credit Agreement is amended by deleting
the phrase "Section 8.01(l), the definition of "Collateral Release Date" or
"Trigger Date" contained in Section 1.01," in its entirety.
(r) Section 11.07(a)(i) of the Credit Agreement is amended in full to
read as follows:
"(i) each such assignment in respect of the Revolving Three-Year
Tranche or the Term Tranche shall be made by such Lender on a pro rata
basis between such Lender's Revolving Three-Year Commitment and Term
Commitment,"
(s) Exhibit F to the Credit Agreement is deleted in its entirety and
Exhibit F attached hereto is substituted therefor.
SECTION 2. CONDITIONS OF EFFECTIVENESS. (a) The amendments to the
Credit Agreement contained in Section 1 hereof (other than subsections (b), (c),
(d) and (s) thereof) shall become effective when, and only when, the
Administrative Agent shall have received (i) counterparts of this Amendment
executed by the Borrower and all of the Lenders and (ii) evidence, in form and
substance satisfactory to the Administrative Agent, that the Letter of Credit
and Reimbursement Agreement, dated as of September 11, 1997, among the Borrower,
Bank of America National Trust and Savings Association, as Administrative Agent
and Letter of Credit Issuing Bank, and the other financial institutions party
thereto, has been amended to delete the requirement to provide a pledge of the
common stock of Enterprises.
(b) The amendments to the Credit Agreement contained in subsections
(b), (c), (d) and (s) of Section 1 hereof shall become effective when, and only
when, the Administrative Agent shall have received (i) counterparts of this
Amendment executed by the Borrower and the Required Lenders and (ii) evidence,
in form and substance satisfactory to the Administrative Agent, that the Letter
of Credit and Reimbursement Agreement, dated as of September 11, 1997, among the
Borrower, Bank of America National Trust and Savings Association, as
Administrative Agent and Letter of Credit Issuing Bank, and the other financial
institutions party thereto, has been amended in a manner substantially similar
to the amendments contained in subsections (b), (c), (d) and (s) of Section 1
hereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) The execution, delivery and performance by the Borrower of this
Amendment, and the performance by the Borrower of the Credit Agreement, as
amended by this Amendment, (i) are within the Borrower's corporate powers, (ii)
have been duly authorized by all necessary corporate action and (iii) do not and
will not (A) require any consent or approval of the stockholders of the
Borrower, (B) violate any provision of the charter or by-laws of the Borrower or
of law, (C) violate
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any legal restriction binding on or affecting the Borrower, (D) result in a
breach of, or constitute a default under, any indenture or loan or credit
agreement or any other agreement, lease or instrument to which the Borrower is a
party or by which it or its properties may be bound or affected, or (E) result
in or require the creation of any Lien (other than pursuant to the Loan
Documents) upon or with respect to any of its properties.
(b) No Governmental Approval is required for the due execution,
delivery and performance by the Borrower of this Amendment.
(c) This Amendment and the Credit Agreement, as amended by this
Amendment, are the legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms;
subject to the qualification, however, that the enforcement of the rights and
remedies herein and therein is subject to bankruptcy and other similar laws of
general application affecting rights and remedies of creditors and the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law). This Amendment has been duly executed and
delivered on behalf of the Borrower.
(d) The representations and warranties of the Borrower set forth in
Section 7.01 of the Credit Agreement are true and correct on and as of the date
hereof, as though made on and as of such date.
(e) No event has occurred and is continuing that constitutes a Default
or an Event of Default.
SECTION 4. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) Upon the
effectiveness of all or any portion of this Amendment, 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 in the other Loan Documents to "the Credit Agreement", "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 and all
other Loan Documents are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agents under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment 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.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CMS ENERGY CORPORATION
By /s/ Xxxxx X. Xxxxxx
-------------------------------
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent, Collateral Agent,
Documentation Agent and Syndication Agent
By /s/ Xxxxxx X. Xxxxx
-------------------------------
Vice President
LENDERS
THE CHASE MANHATTAN BANK
By /s/ Xxxxxx X. Xxxxx
-----------------------------
Vice President
ABN AMRO BANK N.V.
By /s/ Xxxx X. Xxxxx
-----------------------------
Title: Vice President
By /s/ Xxxxx X. Xxx
-----------------------------
Title: Senior Vice President
BANK OF AMERICA ILLINOIS
By /s/ Xxxxxxx Xxxx Xxxxx
-----------------------------
Title: Managing Director
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BANKBOSTON, N.A.
By /s/ Xxxx X. Xxxxxx
---------------------------
Title: Director
BARCLAYS BANK PLC
By /s/ Xxxxxx X. Xxxxxx
---------------------------
Title: Director
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By /s/ Xxxxxx Xxxx /s/ Xxxxxxx X. Xxxxx
--------------------------- --------------------------
Title: Vice President Assistant Vice President
NATIONAL AUSTRALIA BANK
LIMITED
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------
Title: Vice President
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XXXXXXXXXXX, X,X.
By /s/ Xxxxxxxx X. Xxxxx
------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By /s/ Xxx-Xxxxxx Xxxxxxxxx
------------------------------
Title: Joint General Manager
BANK OF MONTREAL
By /s/ Xxxxxx Xxxxxx
------------------------------
Title: Director
THE BANK OF NEW YORK
By /s/ Xxxx X. Xxxx
------------------------------
Title: Vice President
BANK OF SCOTLAND
By /s/ Xxxxx Xxxx Tat
------------------------------
Title: Vice President
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BANQUE PARIBAS
By /s/ Xxxxxx Xxxxx
----------------------------------
Title: Director
COMERICA BANK
By /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President
CREDIT LYONNAIS CHICAGO
BRANCH
By /s/ Xxxxxx X. Horwartz
----------------------------------
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ Xxxxxxx Xxxxx
----------------------------------
Title: Joint General Manager
MICHIGAN NATIONAL BANK
By /s Xxxx X. Xxxx
----------------------------------
Title: Senior Relationship Manager
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THE MITSUBISHI TRUST AND
BANKING CORPORATION, LOS
ANGELES AGENCY
By /s/ Yasushi Satomi
--------------------------------------
Title: Senior Vice President
SOCIETE GENERALE, CHICAGO
BRANCH
By /s/ Xxxxxx X. Philabin
--------------------------------------
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By /s/ Xxxx Xxxxxxx
--------------------------------------
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxx X. XxXxxxxx
--------------------------------------
Title: Vice President
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By /s/ Xxxxxxxx Pack
--------------------------------------
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. Xxxxx
--------------------------------------
Title: Senior Manager, Loan Operations
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BANQUE NATIONALE DE PARIS
By /s/ Xxxxxx Xxxxxx du Bocage
-----------------------------------
Title: Executive Vice President and
General Manager
BHF-BANK AKTIENGESELLSCHAFT
By /s/ Xxxxxx X. Xxxxx /s/ Xxxx Xxxxx
----------------------------------- -------------------------
Title: Assistant Vice President Assistant Vice President
XXXXX XXX COMMERCIAL BANK,
LTD., NEW YORK BRANCH
By /s/ Wan-Tu Yeh
-----------------------------------
Title: Vice President and
General Manager
CIBC INC.
By /s/ Xxxx Xxxxx
-----------------------------------
Title: Executive Director
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CITIBANK, N.A.
By /s/ J. Xxxxxxxx XxXxx
----------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Xxxx Xxxx
----------------------------
Title: Vice President
MELLON BANK, N.A.
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC NATIONAL WESTMINSTER BANK PLC
New York Branch Nassau Branch
By /s/ Xxxxx Xxxxxx-XxXxxxx /s/ Xxxxx Xxxxxx-XxXxxxx
---------------------------- ----------------------------
Title: Vice President Vice President
THE ROYAL BANK OF SCOTLAND
PLC
By /s/ Xxxxx Xxxxxx
----------------------------
Title: Vice President
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THE SAKURA BANK, LIMITED
By /s/ Xxxxxxxx Xxxxxxxx
----------------------------
Title: Joint General Manager
THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By /s/ Xxxxxxx X. Xxxx
----------------------------
Title: Vice President
THE SUMITOMO TRUST & BANKING
CO., LTD., NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxx
----------------------------
Title: Senior Vice President
UNION BANK OF SWITZERLAND
NEW YORK BRANCH
By /s/ Xxxxxx X. Xxxxx
----------------------------
Title: Director
By /s/ Xxxxx X. Xxxxxx
----------------------------
Title: Officer
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FIRST COMMERCIAL BANK
(INCORPORATED IN TAIWAN,
R.O.C.), LOS ANGELES BRANCH
By /s/ June Shiong Lu
-----------------------------
Title: Vice President and
General Manager
THE FUJI BANK, LIMITED
By /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Title: Joint General Manager
ARAB AMERICAN BANK
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------
Title: Vice President
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COMPUTATIONS USED BY BORROWER
IN DETERMINING COMPLIANCE WITH COVENANTS
CONTAINED IN SECTIONS 8.01(i) AND 8.01(j)
(Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Credit Agreement, dated as of July 2, 1997, among CMS
Energy Corporation, the banks named therein, The Chase Manhattan Bank, as
Administrative Agent, Collateral Agent, Documentation Agent and Syndication
Agent, and the Co-Agents and Lead Managers named therein)
I. SECTION 8.01(i) (Consolidated Leverage Ratio)
(i) Consolidated Debt
-----------------
(a) Debt of the Borrower (See worksheet
set forth on Schedule 1 hereto) $
-----------------------
(b)(1) Aggregate debt (as such term is
construed in accordance with GAAP)
of the Consolidated Subsidiaries $
-----------------------
Total Consolidated Debt $
-----------------------
=======================
(ii) Consolidated Capital
--------------------
(a) Total Consolidated Debt (See (i) above) $
-----------------------
(b)(2) Consolidated equity of the common
stockholders of the Borrower and the
Consolidated Subsidiaries $
-----------------------
(c)(2) Consolidated equity of the preference
stockholders of the Borrower and the
Consolidated Subsidiaries $
-----------------------
(d)(2) Consolidated equity of the preferred
stockholders of the Borrower and the
---------------------------
(1) Project Finance Debt of the Consolidated Subsidiaries should not be
included.
(2) To the extent included in (b), (c) or (d) above, Project Finance Equity
of the Borrower and the Consolidated Subsidiaries in any Consolidated
Subsidiary should be included only to the extent of the Borrower's
Ownership Interest in each such Consolidated Subsidiary. In addition, the
portion of consolidated equity of the stockholders of the Borrower and the
Consolidated Subsidiaries attributable to assets securing Project Finance
Debt of the Borrower or any Consolidated Subsidiary should be excluded.
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Stockholders of the Borrower and
the
Consolidated Subsidiaries $
-----------------------
Total Consolidated Capital(3) $
-----------------------
=======================
(iii) Consolidated Leverage Ratio (i/ii)
-----------------------------------
Maximum Ratio - Section 8.01(i)
=======================
II. SECTION 8.01(j) (Cash Dividend Coverage Ratio)
(i) Cash Dividend Income
(a) Cash Dividend Income $
-----------------------
(b) 25% of Equity Distributions
received by the Borrower
(not to exceed $10,000,000) $
------------------------
(c) All amounts received by the Borrower from its
Subsidiaries and Affiliates constituting
reimbursement of interest expense (including
commitment, guaranty and letter of credit fees)
paid by the Borrower on behalf of any such
Subsidiary or Affiliate $
-----------------------
Total Cash Dividend Income $
-----------------------
=======================
(ii) Interest expense (including commitment, guaranty
and letter of credit fees) accrued by the Borrower in
respect of all Debt (other
--------------------------
(3) The consolidated equity of the stockholders of the Borrower shall include
(i) the aggregate amount of all Hybrid Preferred Securities and (ii) only
such percentage of the Net Proceeds from any issuance of any hybrid
debt/equity securities (other than Junior Subordinated Debt and Hybrid
Preferred Securities) by the Borrower or any Consolidated Subsidiary as
shall be agreed by the Administrative Agent and the Borrower (and consented
to by the Required Lenders) prior to such issuance, which percentage shall
be based on, among other things, the treatment (if any) given to such
hybrid securities by the rating agencies.
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than Junior Subordinated Debt) $
-----------------------
(iii) Cash Dividend Income/Interest
Expense Ratio ((i)/(ii)) -----------------------
Minimum Ratio - Section 8.01(j)
-----------------------
III. Project Finance Debt(4)
IV. Support Obligations(5)
V. Junior Subordinated Debt/Guaranties of Hybrid Preferred Securities(6)
VI. Other Hybrid Debt/Equity Securities(7)
------------------------
(4) Set forth all Project Finance Debt of any Consolidated
Subsidiary and the Borrower's Ownership Interest in such
Consolidated Subsidiary.
(5) Set forth all Support Obligations of the Borrower of the types
described in clauses (iv) and (v) of the definition of Support
Obligations (whether or not each such Support Obligation or
the primary obligation so supported is fixed, conclusively
determined or reasonably quantifiable) unless such Support
Obligation is previously disclosed as "CONSOLIDATED DEBT"
pursuant to Section I or II above.
(6) Set forth all Junior Subordinated Debt owned by any Hybrid
Preferred Securities Subsidiary and all guaranties by the
Borrower of payments with respect to any Hybrid Preferred
Securities.
(7) Set forth any hybrid debt/equity securities (other than Junior
Subordinated Debt and Hybrid Preferred Securities) issued by
the Borrower or any Consolidated Subsidiary and the amount of
the Net Proceeds from each such
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i
SCHEDULE 1
TO EXHIBIT F
COMPUTATION OF AGGREGATE DEBT OF THE BORROWER
---------------------------------------------
Aggregate Debt of the Borrower shall include (without duplication) any and all
indebtedness, liabilities and other monetary obligations of the Borrower
(whether for principal, interest, fees, costs, expenses
or otherwise, and contingent or otherwise)(1)
(i) for borrowed money or evidenced
by bonds, debentures, notes or other
similar instruments $
-------------------
(ii) to pay the deferred purchase price of property
or services (except trade accounts payable arising in the
ordinary course of business which are not overdue) $
-------------------
(iii) as lessee under leases which shall have been or
should be, in accordance with GAAP, recorded as capital
leases $
-------------------
(iv) under reimbursement or similar
agreements with respect to letters of
credit issued thereunder $
-------------------
(v) under any interest rate swap, "cap",
"collar" or other hedging agreements;
provided, however, for purposes of the
calculation of Debt for this clause
only, the actual amount of Debt of the
Borrower shall be determined on a
net basis to the extent such agreements
permit such amounts to be calculated on
a net basis $
-------------------
(vi) to pay rent or other amounts under leases entered
into in connection with sale and leaseback transactions
involving assets of the Borrower being sold in connection $
-------------------
----------------------
(1) See the definition of "Consolidated Debt" contained in the Credit
Agreement for certain exclusions from Debt of the Borrower.
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ii
therewith $
------------------
(vii) arising from any accumulated funding deficiency (as
defined in Section 412(a) of the Internal Revenue Code
of 1986, as amended) for a Plan $
------------------
(viii) direct or indirect guaranties in respect of,
and obligations to purchase or otherwise acquire, or
otherwise to warrant or hold harmless, pursuant to a
legally binding agreement, a creditor against loss in
respect of, Debt of others referred to in clauses
(i) through (vii) above $
------------------
(ix)(2) other guaranty or similar financial
obligations in respect of the performance
of others, including, without limitation,
any financial obligation, contingent or
otherwise, of the Borrower guaranteeing
or otherwise supporting any Debt or other
obligation of any other Person in any
manner, whether directly or indirectly,
and including, without limitation, any
obligation of such Person, direct or indirect $
------------------
(A) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or
to purchase (or to advance or supply funds for the
purchase of) any security for the payment of such
Debt $
------------------
(B) to purchase property, securities or services for
the purpose of assuring the owner of such Debt of
the payment of such Debt $
------------------
(C) to maintain working capital, equity capital,
available cash or other financial statement
condition of the $
------------------
-------------------
(2) Set forth only the net amount of certain Support Obligations provided by
the Borrower in connection with sales of natural gas, natural gas liquids,
electricity, oil, propane or coal by MS&T, as detailed in Annex A to this
Schedule 1.
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primary obligor so as to enable the
primary obligor to pay such Debt $
-----------------------
(D)(3) to provide equity capital under or in
respect of equity subscription arrangements
(to the extent that such obligation to
provide equity capital does not otherwise
constitute Debt) $
-----------------------
(E)(3) to perform, or arrange for the
performance of, any non-monetary
obligations or non-funded debt
payment obligations of the primary
obligor $
-----------------------
(F) Other $
-----------------------
Total of Debt of the Borrower $
-----------------------
=======================
--------------------------
(3) For purposes of this clause do not include Support Obligations if such
Support Obligation or the primary obligation so supported is not fixed or
conclusively determined or is not otherwise reasonably quantifiable as of
the date of determination.
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ANNEX A TO SCHEDULE 1
DETAILS REGARDING MS&T TRANSACTIONS(4)
1. Support Obligations Relating to Payment Obligations
Aggregate amount of Support Obligations provided by the
Borrower in respect of MS&T's payment obligations under any
Covering Transaction
(a) [List each such Support Obligation] $________
(b) $________
(c) $________
(d) $________
Less:
Aggregate amount of any Support Obligations provided by
any Purchasing Party Guarantor or any irrevocable letter
of credit issued for the account of any Purchasing Party or
Purchasing Party Guarantor
(a) [List each such Support Obligation or
letter of credit that relates to the
corresponding subsection above]
$________
(b) $________
(c) $________
(d) $________
----------------------
(4) See subsection (d) of the definition of "Consolidated Debt" contained in
the Credit Agreement for the specific requirements of any offsetting
Support Obligations.
22
v
2. Support Obligations Relating to Performance Obligations
Aggregate amount of Support Obligations provided by the
Borrower in respect of MS&T's performance obligations to
any Purchasing Party
(i) [List each such Support Obligation] $________
(ii) $________
(iii) $________
(iv) $________
Less:
Aggregate amount of any Support Obligations provided by
any Counterparty Guarantor or any performance bond issued
for the account of any counterparty to a Covering
Transaction or any Counterparty Guarantor
(i) [List each such Support Obligation
or performance bond that relates to
the corresponding subsection above] $________
(ii) $________
(iii) $________
(iv) $________
