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Exhibit (10)(b)(i)
AMENDMENT NO. 2 TO
CREDIT AGREEMENT
This AMENDMENT NO. 2, dated as of November 5, 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, as amended by Amendment No. 1, dated as of January 30, 1998 (as so
amended, 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 executed a definitive stock purchase agreement
(the "ACQUISITION AGREEMENT") to acquire Panhandle Eastern Pipe Line Company,
Panhandle Storage Company, and Trunkline LNG Company from PanEnergy Corp. and
Texas Eastern Corporation (the "SELLERS") (such acquisition is referred to
herein as the "PANHANDLE ACQUISITION"). The Borrower will be incurring
additional Debt in order to finance the Panhandle Acquisition. The Borrower has
requested amendments to the consolidated leverage ratio and the cash dividend
coverage ratio set forth in Section 8.01(i) and Section 8.01(j), respectively,
of the Credit Agreement that would take into account the impact of such
additional Debt on the Borrower's financial condition. The Lenders have agreed
to the Borrower's request, 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 (subject to the satisfaction of the conditions
precedent set forth in Section 2(a) hereof and the conditions set forth in
Section 2(b) hereof), hereby amended as follows:
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(a) Section 8.01(i) of the Credit Agreement is amended in full to read
as follows:
(i) Consolidated Leverage Ratio. The Borrower shall maintain at
all times a ratio of Consolidated Debt to Consolidated Capital of not
more than the amount set forth below during each corresponding period
set forth below:
PERIOD AMOUNT
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Closing Date through 0.68:1.0
June 30, 1998
July 1, 1998 through 0.67:1.0
November 30, 1998
December 1, 1998 0.745:1.0
through June 30, 1999
July 1, 1999 through 0.65:1.0
June 30, 2000
July 1, 2000 through 0.63:1.0
June 30, 2001
Thereafter 0.60.1.0
(b) Section 8.01(j) of the Credit Agreement is amended in full to read
as follows:
(j) Cash Dividend Coverage Ratio. The Borrower shall maintain, as
of the last day of each fiscal quarter (in each case, the "MEASUREMENT
QUARTER"), a ratio of (i) the sum of (A) Cash Dividend Income for the
immediately preceding four-fiscal-quarter period ending on the last day
of the fiscal quarter immediately preceding such Measurement Quarter,
plus (B) 25% of the amount of Equity Distributions received by the
Borrower during such period but in no event in excess of $10,000,000,
plus (C) all amounts received by the Borrower from its Subsidiaries and
Affiliates during such period 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 to (ii)
interest expense (including commitment, guaranty and letter of credit
fees) accrued by the Borrower in respect of all Debt during such period
of (1) not less than 2.1 to 1.0 for each such period from the Closing
Date until (and including) the
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fiscal quarter ending June 30, 1999, and (3) not less than 2.0 to 1.0
thereafter; provided, that the Borrower shall be deemed not to be in
breach of the foregoing covenant if, during the Measurement Quarter, it
has (I) permanently reduced the Commitments and the principal amount
outstanding under this Agreement and the Promissory Notes such that the
amount determined pursuant to clause (ii) above, when recalculated on a
pro forma basis assuming that the amount of such reduced Commitments
and principal amount outstanding under this Agreement and the
Promissory Notes were in effect at all times during such
four-fiscal-quarter period, would result in the Borrower being in
compliance with such ratio, and/or (II) increased Cash Dividend Income
during such Measurement Quarter such that the ratio of (x) Cash
Dividend Income for the four-fiscal-quarter period ending on the last
day of the Measurement Quarter to (y) the amount determined pursuant to
clause (ii) above (as recalculated pursuant to clause (I) above),
equals or exceeds (1) 2.1 to 1.0 for each such period from the Closing
Date until (and including) the fiscal quarter ending December 31, 1998,
(2) 1.9 to 1 for each such period from January 1, 1999 until (and
including) the fiscal quarter ending June 30, 1999, and (3) 2.0 to 1.0
thereafter; and provided further, that until the Borrower so reduces
such Commitments and principal amount outstanding under this Agreement
and the Promissory Notes and/or increases Cash Dividend Income during
such Measurement Quarter, the Borrower may not request any additional
Extensions of Credit (other than Conversions).
SECTION 2. CONDITIONS OF EFFECTIVENESS. (a) The amendments to the
Credit Agreement contained in 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 Section 1 hereof.
(b) This Amendment No. 2 shall automatically terminate and be null and
void, and the amendments to the Credit Agreement set forth in Section 1 hereof
shall be of no further force or effect, in the event that (i) the Borrower
determines, or the Borrower and the Sellers agree, not to consummate the
Panhandle Acquisition, (ii) the Acquisition Agreement is otherwise terminated
for any reason, or (iii) the Panhandle Acquisition is not consummated on or
before June 30, 1999. Accordingly, upon the occurrence of any of the foregoing
events, each of Sections 8.01(i) and 8.01(j) of the Credit Agreement shall
continue in full force and effect in the form thereof that existed immediately
prior to the effectiveness of this Amendment No. 2.
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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 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 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.
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(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. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Amendment.
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/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Administrative Agent, Collateral Agent,
Documentation Agent and Syndication Agent
By /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
LENDERS
THE CHASE MANHATTAN BANK
By /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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ABN AMRO BANK N.V.
By /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Group Vice President
By /s/ Xxxxxx X. Xxx XX
--------------------------------
Name: Xxxxxx X. Xxx XX
Title: Assistant Vice President
BANK OF AMERICA ILLINOIS
By /s/ Xxxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
BANKBOSTON, N.A.
By /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X . Xxxxxx
Title: Director
BARCLAYS BANK PLC
By /s/ Sydney X. Xxxxxx
--------------------------------
Name: Sydney X. Xxxxxx
Title: Director
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DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By /s/ Xxxxxx Xxxxxxxxx By /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------- --------------------------------
Name: Xxxxxx Xxxxxxxxx Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President Title: Assistant Treasurer
NATIONAL AUSTRALIA BANK
LIMITED ACN004044937
By /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BANK OF MONTREAL
By /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
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THE BANK OF NEW YORK
By /s/ Xxxx Xxxx
--------------------------------
Name: Xxxx Xxxx
Title: Vice President
BANK OF SCOTLAND
By /s/ Xxxxx Xxxx Tat
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Name: Xxxxx Xxxx Tat
Title: Senior Vice President
BANQUE PARIBAS
By /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
COMERICA BANK
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
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CREDIT LYONNAIS CHICAGO
BRANCH
By /s/ Xxxx Xxx Xxxxx
--------------------------------
Name: Xxxx Xxx Xxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Joint General Manager
MICHIGAN NATIONAL BANK
By /s/ Xxxx X. Xxxx
--------------------------------
Name: Xxxx X. Xxxx
Title: Senior Relationship Manager
THE MITSUBISHI TRUST AND
BANKING CORPORATION, LOS
ANGELES AGENCY
By /s/ Yasushi Satomi
--------------------------------
Name: Yasushi Satomi
Title: Senior Vice President
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SOCIETE GENERALE, CHICAGO
BRANCH
By /s/ Xxxx X.X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxx X.X. Xxxxxxx, Xx.
Title: Director
TORONTO DOMINION (TEXAS), INC.
By /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxx X. XxXxxxxx
--------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Senior Vice President
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XXX XXXX XX XXXX XXXXXX
By /s/ F.C.H. Xxxxx
--------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operations
BANQUE NATIONALE DE PARIS
By /s/ Xxxxxx Xxxxxx du Bocage
--------------------------------
Name: Xx. Xxxxxx Xxxxxx du Xxxxxx
Title: EVP and General Manager
BHF-BANK AKTIENGESELLSCHAFT
By /s/ Xxxx Xxxxx By /s/ Xxxxxx Xxxxx
-------------------------------- --------------------------------
Name: Xxxx Xxxxx Name: Xxxxxx Xxxxx
Title: Vice President Title: Assistant Vice President
XXXXX XXX COMMERCIAL BANK,
LTD., NEW YORK BRANCH
By /s/ Wan-Tu Yeh
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Name: Wan-Tu Yeh
Title: Vice President and General Manager
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CIBC INC.
By /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp., As Agent
CITIBANK, N.A.
By /s/ J. Xxxxxxxx XxXxx
--------------------------------
Name: J. Xxxxxxxx XxXxx
Title: Vice President
Attorney in Fact
THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Xxxx Xxx
--------------------------------
Name: Xxxx Xxx
Title: Vice President
MELLON BANK, N.A.
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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NATIONAL WESTMINSTER BANK PLC
By /s/ Xxxx Xxxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx Xxxxx
Title: Vice President
THE ROYAL BANK OF SCOTLAND
PLC
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Manager
THE SAKURA BANK, LIMITED
By /s/ Masayu Ki Kobayashi
--------------------------------
Name: Masayu Ki Kobayashi
Title: Joint General Manager
THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
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THE SUMITOMO TRUST & BANKING
CO., LTD., NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
UBS AG, NEW YORK BRANCH (as successor to
Union Bank of Switzerland, New York Branch)
By /s/ Xxx X. Xxxxx
--------------------------------
Name: Xxx X. Xxxxx
Title: Director
By /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
FIRST COMMERCIAL BANK
(INCORPORATED IN TAIWAN,
R.O.C.), LOS ANGELES BRANCH
By /s/ June Shiong Lu
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Name: June Shiong Lu
Title: Senior Vice President and General Manager
THE FUJI BANK, LIMITED
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
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ARAB AMERICAN BANK
By /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
By
--------------------------------
Name: Xxxxxxx Xx Feti
Title: Vice President
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NATIONSBANK, N.A.
By /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Vice President
