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EXHIBIT 10-CC
THIS FIRST AMENDMENT AND SUPPLEMENT TO CREDIT AGREEMENT AND ASSIGNMENT
(this "First Amendment") is made and entered into as of the 6th day of
December, 1995 (the "Syndication Effective Date"), with respect to the
US$1,000,000,000 Credit Agreement dated as of November 28, 1995 (the "Credit
Agreement") among The Columbia Gas System, Inc., a Delaware corporation
("Borrower"), Citibank, N.A., individually and as administrative, documentation
and co-syndication agent (in such capacity, the "Agent"), Bank of Montreal,
Bankers Trust Company, Chemical Bank, CIBC, Inc., and Morgan Guaranty Trust
Company of New York, each as a Co-Syndication Agent (collectively, with the
Agent, the "Existing Lenders") and each of the banks and financial institutions
listed on Schedule II hereto under the heading "Assignee" (collectively, the
"New Lenders"). Defined terms used in this First Amendment and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
RECITALS
WHEREAS, the Existing Lenders now desire to effect a general
syndication of the Credit Agreement and the related assignment of the
outstanding Advances and Letters of Credit thereunder, and certain other
changes to the Credit Agreement, by amending certain terms of the Credit
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
Amendments
Section 1.1. All references to "Schedule I" in the Credit
Agreement are hereby amended to refer to Schedule I attached to this First
Amendment.
Section 1.2. The following terms, which are defined in Section
1.01 of the Credit Agreement, are hereby amended as follows:
(a) The definition of "Reference Banks" is amended in its
entirety to read as follows:
"Reference Banks" means Citibank, Canadian Imperial Bank of
Commerce and PNC Bank National Association.
(b) The definition of "Swing Line Banks" is amended in
its entirety to read as follows:
"Swing Line Banks" means Citibank, PNC Bank National
Association and such other Lenders mutually acceptable to the Borrower
and the Agent.
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Section 1.3 Section 1.01 of the Credit Agreement is hereby
further amended and supplemented by adding the following new definitions,
which, respectively, read in their entirety as follows:
"First Amendment" means that certain First Amendment and
Supplement to Credit Agreement and Assignment dated as of December 6,
1995, among the Borrower, the Agent and the lenders party thereto.
"Co-Agents" means Commerzbank A.G. and PNC Bank National
Association.
Section 1.4 Section 7.07 of the Credit Agreement is hereby
amended in its entirety to read as follows:
Managing and Co-Syndication Agents/ Co-Agents as Lenders. No
Managing and Co-Syndication Agent or Co-Agent shall have any rights,
responsibilities or obligations other than as a Lender hereunder.
Section 1.5 Section 5.02(c) of the Credit Agreement is hereby
amended by inserting the following language in the first sentence of such
Section, immediately after the words "(whether in one transaction or a series
of transactions),":
"or permit its Material Subsidiaries to sell, convey, transfer
or otherwise dispose of (whether in one transactions or a series of
transactions;"
Section 1.6 Section 8.04(b)(i) of the Credit Agreement is hereby
amended by inserting the following language in the first sentence of such
Section, immediately after the words "each Managing and Co-syndication Agent,":
"each Co-Agent,".
Section 1.7 Section 8.04(b)(ii) of the Credit Agreement is hereby
amended by adding the following sentence to the end of Section 8.04(b)(ii):
"In the event that any Letter of Credit, at the request or
direction of the Borrower, shall expressly choose a state or country
law other than New York, U.S.A., the Borrower shall be obligated to
reimburse the Issuing Lender for payments made under such Letter of
Credit if such payment is justified under either New York law or the
law governing such Letter of Credit."
Section 1.8 Section 8.07(a) of the Credit Agreement is hereby
amended by adding the following language to such Section, immediately following
subsection (ii) of the first proviso thereof:
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"subject to the right of the Agent and each Managing and
Co-Syndication Agent and each Co-Agent, from the date hereof until
March 31, 1996, to make assignments of their respective Revolving
Credit Commitment in accordance with this Section 8.07 in an amount
equal to or greater than $1,000,000, provided that the assignee of any
such assignment, after giving effect to all assignments being made to
such assignee, shall have Revolving Credit Commitments of at least
#$5,000,000,".
Section 1.9 Section 8.07(a) of the Credit Agreement is hereby
further amended by amending, in its entirety, the second proviso thereof as
follows:
"provided further that (A) in the case of an assignment by any
Lender to an Affiliate of such Lender, or an assignment by any Lender
to any other Lender, the Borrower must be given written notice
thereof, but the consent of the Lender shall not be required and (B)
to the extent that more than one Lender makes an assignment to the
same assignee on the same date prior to March 31, 1996, only one
processing and recordation fee shall be required to be paid in
connection with all of such assignments.
ARTICLE 11
Sales and Assignments; Funding
Section 2.1 Effective on and as of the Syndication Effective
Date, each Existing Lender hereby sells, assigns and transfers to the
applicable New Lenders, and each New Lender hereby purchases and assumes from
the applicable Existing Lenders and undivided interest in and to such Existing
Lender's Commitment in the amounts set forth on Schedule II hereto, together
with a corresponding undivided interest in and to such Existing Lender's rights
and obligations under the Credit Agreement, as amended and supplemented hereby,
resulting in the New Lenders and the Existing Lenders constituting the Lenders
under the Credit Agreement. The result of the assignments contained in this
Section 2.1 is that the respective Revolving Credit Commitment and Swing Line
Commitment of each Existing Lender and each New Lender shall be in the amounts
set forth opposite such Lender's name on the signature pages hereto, with each
such Lender holding a promissory note from the Borrower in the amount reflected
on such signature pages under the heading "Revolving Credit Commitment". Each
New Lender (i) agrees that upon the effectiveness of this First Amendment it
will perform, in accordance with their terms, all of the obligations required
to be performed by such New Lender under the terms of the Credit Agreement and
(ii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto. Each New Lender has attached
hereto any United States Internal Revenue Service forms required under Section
2.15 of the Credit Agreement.
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Section 2.2 Subject to the prior effectiveness of this First
Amendment, and in order to give effect to the reallocation of the Commitments
and the outstanding Advances among the Existing Lenders and the New Lenders
provided for by Section 2.1 of this First Amendment, before 11:00 a.m (New York
City time) on the Syndication Effective Date:
(i) Each New Lender shall make available to the Agent's
Account, for the respective accounts of the Existing Lenders,
an amount equal to such New Lender's Pro Rata Share of the
outstanding Advances under the Credit Agreement and the
outstanding Letters of Credit issued under the Credit
Agreement (as such amounts are reflected on Schedule III
hereto); and
(ii) Promptly thereafter (but in any event on the same
day), the Agent shall cause to be distributed in like funds to
each Existing Lender, for the account of its Applicable
Lending Office, such Existing Lender's Pro Rata Share (without
giving effect to the reallocation of Commitments under this
First Amendment) of the amount paid by the New Lenders
pursuant to clause (i) of this Section 2.2.
Section 2.3 Subject to the prior effectiveness of this First
Amendment, and in order to give effect to the reallocation of the commitments
among the Existing Lenders and the New Lenders provided for by Section 2.1 of
this First Amendment and the participation fees required to be paid under the
Credit Agreement, before 11:00 a.m. (New York City time) on the Syndication
Effective Date:
(i) Each Existing Lender shall make available to the
Agent's Account, for the respective accounts of the New
Lenders, $69,916.67 (the total amount being the "Syndicate
Participation Fees"); and
(ii) Promptly thereafter (but in any event on the same
day), the Agent shall cause to be distributed in like funds to
each New Lender, for the account of its Applicable Lending
Office, the amount of the Syndicate Participation Fees as set
forth on Schedule IV hereto.
Section 2.4 Upon receipt of the monies by the Agent, as provided
in Section 2.2(i) and 2.3(i) of this First Amendment and payment of the monies
by the Agent, as provided in Section 2.2(ii) and 2.3(ii) of this First
Amendment, the Agent shall make appropriate entries in its books pursuant to
Section 8.07 of the Credit Agreement to reflect the reallocation of
Commitments, Advances and Letters of Credit effected by this First Amendment.
ARTICLE III
Effectiveness
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Section 3.1 This First Amendment shall become effective as of the
date first above written when, and only when, the Agent shall have received
counterparts of this First Amendment executed by the Borrower, the Existing
Lenders and the New Lenders or, as to any of the Lenders, advice satisfactory
to the Agent that such Lender has executed this First Amendment. The Agent
shall promptly notify the Borrower when all such counterparts have been
received. This First Amendment is subject to the provisions of Section 8.01 of
the Credit Agreement.
ARTICLE IV
Waivers to Credit Agreement
Section 4.1 The Borrower, Agent and each Existing Lender agrees
to waive the requirements of Section 8.07 of the Credit Agreement solely for
the purpose of and to the extent required to permit the reallocation of
Commitments, Advances and Letters of Credit pursuant to the provisions of this
First Amendment.
ARTICLE V
Miscellaneous
Section 5.1 The Credit Agreement, as specifically amended by this
First Amendment, is and shall continue to be in full force and effect and is
hereby in all respects ratified and confirmed. The execution, delivery and
effectiveness of this First Amendment shall not, except as expressly provided
herein, operate as a waiver of any right, power or remedy of the Borrower or
any Lender or the Agent under the Credit Agreement, nor constitute a waiver of
any provision of the Credit Agreement.
Section 5.2 This First Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto were upon the same instrument. Delivery of an executed
counterpart of a signature page of this First Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this First
Amendment.
Section 5.3 This First Amendment shall benefit and bind the
parties hereto, as well as their respective assigns, successors, heirs and
legal representatives.
Section 5.4 This First Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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If you agree to the terms and provisions hereof, please
evidence such agreement by executing and returning a counterpart of this First
Amendment to Shearman & Sterling, 599 Lexington Avenue, New York, New York,
10022, Attention: Michael Bowman, fax number (212) 848-7179.
Very truly yours,
THE COLUMBIA GAS SYSTEM, INC.
By /s/ L. J. Bainter
----------------------------------
Title: Treasurer
CITIBANK, N.A.,
as Agent
By /s/ Arezoo Jafari
----------------------------------
Title: Arezoo Jafari
Assistant Vice President
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Agreed as of the date first above written:
Revolving Credit Swing Line
Commitment Commitment
- ---------- ----------
$78,900,000 $15,000,000 CITIBANK, N.A.,
By /s/ Arezoo Jafari
----------------------------------
Title: Arezoo Jafari
Assistant Vice President
$78,900,000 $0 BANK OF MONTREAL,
CHICAGO BRANCH
By /s/ Bernard Silgardo
----------------------------------
Title: Director
$78,900,000 $0 BANKERS TRUST COMPANY
By /s/ Mary Jo Jolly
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Title: Mary Jo Jolly
Assistant Vice President
$78,900,000 $0 CIBC, INC.
By /s/ R. E. Long
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Title: Vice President
$78,900,000 $0 CHEMICAL BANK
By /s/ James H. Ramage
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Title: James H. Ramage
Vice President
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Revolving Credit Swing Line
Commitment Commitment
- ---------- ----------
$78,900,000 $0 MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ J. S. Finch
----------------------------------
Title: Vice President
$65,800,000 $0 COMMERZBANK, A.G.,
NEW YORK BRANCH
By /s/ Dempsey Gable
----------------------------------
Title: Senior Vice President
$65,800,000 $15,000,000 PNC BANK NATIONAL ASSOCIATION
By /s/ L. E. Susack
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Title: Vice President
$60,000,000 $0 SOCIETE GENERALE, NEW YORK
BRANCH
By /s/ Gordon Eadon
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Title: Gordon Eadon
Vice President
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Revolving Credit Swing Line
Commitment Commitment
- ---------- ----------
$50,000,000 $0 CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By /s/ Xavier Ratouis
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Title: Xavier Ratouis
Authorized Signature
$50,000,000 $0 THE SANWA BANK. LIMITED
By /s/ Dorn Sorreso
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Title: Vice President
$35,000,000 $0 CAISSE NATIONALE DE CREDIT
AGRICOLE
By /s/ Dean Balice
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Title: Dean Balice
Senior Vice President
Branch Manager
25,000,000 $0 THE BANK OF NOVA SCOTIA
By /s/ F. C. H. Ashby
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Title: F. C. H. Ashby
Senior Manager Loan Operations
$25,000,000 $0 DAI-ICHI KANGYO BANK, LTD.
By /s/ Takeshi Kurita
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Title: Vice President
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Revolving Credit Swing Line
Commitment Commitment
- ---------- ----------
$25,000,000 $0 THE FIRST NATIONAL BANK OF
CHICAGO
By /s/ Kenneth Bauer
-----------------------------------------
Title: Corporate Banking Officer
$25,000,000 $0 KREDIETBANK N.V.
By /s/ Armen Karozichian Robert Snauffer
----------------------------------------
Title:Armen Karozichian Robert Snauffer
Vice President Vice President
$25,000,000 $0 THE MITSUBISHI BANK, LIMITED,
NEW YORK BRANCH
By /s/ Robert J. Dilloff
-----------------------------------------
Title: Robert J. Dilloff
Vice President
$25,000,000 $0 NATIONAL CITY BANK, COLUMBUS
By /s/ Jeffrey Hawthorne
-----------------------------------------
Title: Vice President
$25,000,000 $0 ROYAL BANK OF CANADA
By /s/ J. D. Frost
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Title: J. D. Frost
Senior Manager
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Revolving Credit Swing Line
Commitment Commitment
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$25,000,000 $0 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By /s/ James P. Kelleher
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Title: James P. Kelleher
Assistant Vice President
By /s/ Peter B. Yearley
----------------------------------------------------
Title: Peter B. Yearley
Vice President
$1,000,000,000 $30,000,000 Total of the Commitments
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SCHEDULE I
THE COLUMBIA GAS SYSTEM, INC.
$1,000,000,000 CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- ---------------------- ----------------------- -------------------------
Bank of Montreal Bank of Montreal, Chicago Branch Bank of Montreal, Chicago
115 S. LaSalle Street Branch
Chicago, IL 60603 115 S. LaSalle Street
Attn: Loan Accounting Chicago, IL 60603
Attn: Loan Accounting
CIBC, Inc. CIBC, Inc. CIBC, Inc.
2727 Paces Ferry Road 2727 Paces Ferry Road
Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Attn: Suzanne Miles Attn: Suzanne Miles
Morgan Guaranty Trust Company Morgan Guaranty Trust Company Morgan Guaranty Trust Company
of New York of New York of New York
60 Wall Street Nassau Bahamas Office
New York, NY 10260 c/o J.P. Morgan Services, Inc.
Attn: Loan Operations Loan Operations, 3rd Floor
500 Stanton Christiana Road
Newark, DE 19713
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
1 Financial Square 1 Financial Square
24th Floor 24th Floor
New York, NY 10005 New York, NY 10005
Attn: Attn:
National City Bank, Columbus National City Bank, Columbus National City Bank, Columbus
155 East Broad Street 155 East Broad Street
Columbus, OH 43251 Columbus, OH 43251
Attn: Jeffrey L. Hawthorne, V.P. Attn: Jeffrey L. Hawthorne, V.P.
The Dai-Ichi Kangyo Bank, The Dai-Ichi Kangyo Bank, The Dai-Ichi Kangyo Bank,
Limited Limited, New York Branch Limited, New York Branch
One World Trade Center, One World Trade Center,
Suite 4911 Suite 4911
New York, NY 10048 New York, NY 10048
Attn: Attn:
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SCHEDULE I
THE COLUMBIA GAS SYSTEM, INC.
$1,000,000,000 CREDIT AGREEMENT
APPLICABLE LENDING OFFICES (Continued)
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
- ---------------------- ----------------------- -------------------------
The Mitsubishi Bank, Limited - The Mitsubishi Bank, Limited - The Mitsubishi Bank, Limited -
New York Branch New York Branch New York Branch
225 Liberty Street 225 Liberty Street
Two World Financial Center Two World Financial Center
New York, NY 10281 New York, NY 10281
Attn: James Fuell Attn: James Fuell
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SCHEDULE II
================================================================================================================
AMOUNT OF
ASSIGNOR ASSIGNEE COMMITMENT ASSIGNED
- ----------------------------------------------------------------------------------------------------------------
Citibank, N.A. Union Bank of Switzerland $25,000,000
- ----------------------------------------------------------------------------------------------------------------
Citibank, N.A. Royal Bank of Canada $25,000,000
- ----------------------------------------------------------------------------------------------------------------
Citibank, N.A. National City Bank, Columbus $25,000,000
- ----------------------------------------------------------------------------------------------------------------
Citibank, N.A. Mitsubishi Bank, Limited $12,766,667
- ----------------------------------------------------------------------------------------------------------------
Bank of Montreal Mitsubishi Bank, Limited $12,233,333
- ----------------------------------------------------------------------------------------------------------------
Bank of Montreal Kredietbank N.V. $25,000,000
- ----------------------------------------------------------------------------------------------------------------
Bank of Montreal The First National Bank of Chicago $25,000,000
- ----------------------------------------------------------------------------------------------------------------
Bank of Montreal Dai-Ichi Kangyo Bank, Ltd. $25,000,000
- ----------------------------------------------------------------------------------------------------------------
Bank of Montreal The Bank of Nova Scotia $533,334
- ----------------------------------------------------------------------------------------------------------------
Bankers Trust The Bank of Nova Scotia $24,466,666
- ----------------------------------------------------------------------------------------------------------------
Bankers Trust Caisse Nationale de Credit Agricole $35,000,000
- ----------------------------------------------------------------------------------------------------------------
Bankers Trust Sanwa Bank, Limited $28,300,001
- ----------------------------------------------------------------------------------------------------------------
CIBC, Inc. Sanwa Bank, Limited $21,699,999
- ----------------------------------------------------------------------------------------------------------------
CIBC, Inc. Credit Lyonnais $50,000,000
- ----------------------------------------------------------------------------------------------------------------
CIBC, Inc. Societe Generale $16,066,668
- ----------------------------------------------------------------------------------------------------------------
Chemical Bank Societe Generale $43,933,332
- ----------------------------------------------------------------------------------------------------------------
Chemical Bank PNC Bank National Association (Co-Agent) $43,833,335
- ----------------------------------------------------------------------------------------------------------------
Morgan Guaranty Trust Company of
New York PNC Bank National Association (Co-Agent) $21,966,665
- ----------------------------------------------------------------------------------------------------------------
Morgan Guaranty Trust Company of
New York Commerzbank, A.G. (Co-Agent) $65,800,000
- ----------------------------------------------------------------------------------------------------------------
Total
================================================================================================================
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SCHEDULE III
PRO RATA SHARE OF OUTSTANDING ADVANCES AND LETTERS OF CREDIT
Outstanding Advances as of the Syndication Effective Date: $330,000,000
Issued Letters of Credit as of the Syndication Effective Date: $58,822,523.15
PRO RATA SHARE PRO RATA SHARE
OF OUTSTANDING OF OUTSTANDING
NEW BANK ADVANCES LETTERS OF CREDIT
- -------- ---------------------- -----------------
CITIBANK, N.A. $26,037,000 $4,641,097.10
BANK OF MONTREAL $26,037,000 $4,641,097.10
BANKERS TRUST COMPANY $26,037,000 $4,641.097.10
CIBC, INC. $26,037,000 $4,641,097.10
CHEMICAL BANK $26,037,000 $4,641,097.10
MORGAN GUARANTY TRUST $26,037,000 $4,641,097.10
OF NEW YORK
COMMERZBANK, A.G. $21,714,000 $3,870,522.00
PNC BANK NATIONAL $21,714,000 $3,870,522.00
ASSOCIATION
SOCIETE GENERALE $19,800,000 $3,529,351.30
CREDIT LYONNAIS $16,500,000 $2,941,126.15
THE SANWA BANK LIMITED $16,500,000 $2,941,126.15
CAISSE NATIONALE DE $11,550,000 $2,058,788.15
CREDIT AGRICOLE
THE BANK OF NOVA SCOTIA $ 8,250,000 $1,470,563.10
DAI-ICHI KANGYO BANK, LTD. $ 8,250,000 $1,470,563.10
THE FIRST NATIONAL $ 8,250,000 $1,470,563.10
BANK OF CHICAGO
KREDIETBANK N.V. $ 8,250,000 $1,470,563.10
THE MITSUBISHI BANK, LIMITED $ 8,250,000 $1,470,563.10
NATIONAL CITY BANK, COLUMBUS $ 8,250,000 $1,470,563.10
ROYAL BANK OF CANADA $ 8,250,000 $1,470,563.10
UNION BANK OF SWITZERLAND $ 8,250,000 $1,470,563.10
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SCHEDULE IV
EACH NEW LENDERS PARTICIPATION FEE
NEW BANK PARTICIPATION FEE
- -------- -----------------
COMMERZBANK, A.G. $82,250
PNC BANK NATIONAL $82,250
ASSOCIATION
SOCIETE GENERALE $54,000
CREDIT LYONNAIS $40,000
THE SANWA BANK LIMITED $40,000
CAISSE NATIONALE DE $21,000
CREDIT AGRICOLE
THE BANK OF NOVA SCOTIA $12,500
DAI-ICHI KANGYO BANK, LTD. $12,500
THE FIRST NATIONAL $12,500
BANK OF CHICAGO
KREDIETBANK N.V. $12,500
THE MITSUBISHI BANK, LIMITED $12,500
NATIONAL CITY BANK, COLUMBUS $12,500
ROYAL BANK OF CANADA $12,500
UNION BANK OF SWITZERLAND $12,500