Exhibit 10(d) 58
AGREEMENT
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT, dated as of
September 8, 1993 (this "Agreement") among GULF STATES UTILITIES
COMPANY, a Texas corporation (the "Company"), CANADIAN IMPERIAL
BANK OF COMMERCE, NEW YORK AGENCY ("CIBC") and WESTPAC BANKING
CORPORATION, CHICAGO BRANCH ("Westpac").
W I T N E S S E T H:
WHEREAS, the Company and Westpac are parties to that certain
Letter of Credit and Reimbursement Agreement dated December 27,
1985, as amended as of October 20, 1992 (the "Reimbursement
Agreement") which provides for, among other things, the issuance
by Westpac of a letter of credit in favor of The Bank of New
York, as Trustee (the "Trustee"), in connection with the Parish
of West Feliciana, State of Louisiana Variable Rate Demand
Pollution Control Revenue Bonds (Gulf States Utilities Company
Project) Series 1985-D in the aggregate principal amount of
$28,400,000 (the "Bonds");
WHEREAS, subject to the terms and conditions hereof, Westpac
wishes to assign and transfer to CIBC, and CIBC wishes to accept
and assume, in each case as hereinafter provided, the rights and
obligations of Westpac under the Reimbursement Agreement;
WHEREAS, subject to the terms and conditions hereof, the
Company and CIBC wish to amend the terms of the Reimbursement
Agreement in accordance with the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual agreements herein contained, the parties hereto agree as
follows:
SECTION I
DEFINITIONS
SECTION 1.1 Terms Defined in Reimbursement Agreement. As
used herein, unless otherwise defined herein, capitalized terms
defined in the Reimbursement Agreement shall have the respective
meaning set forth therein.
SECTION 1.2 Other Defined Terms. As used herein:
(a) Terms defined in the preamble and the recitals
hereto have the meanings set forth therein; and
(b) The following terms have the following meanings:
"Effective Date" shall be the day on which all the
conditions precedent listed in Section V shall be satisfied.
"New Letter of Credit" has meaning set forth in Section 2.2.
"Original Letter of Credit" means Irrevocable Letter of
Credit No. CH468680 dated December 27, 1985, as amended, and
issued by Westpac to the Trustee pursuant to the Reimbursement
Agreement.
SECTION II
ASSIGNMENT AND ASSUMPTION
SECTION 2.1 Assignment and Assumption. On the Effective
Date, subject to the terms and conditions of this Agreement,
including, without limitation, Section V,
(a) Except as provided in Section 2.4, Westpac hereby
sells, assigns, conveys and transfers to CIBC, without recourse,
warranty or (except as expressly provided in Section 4.3)
representation, all of its right, title and interest in, to and
under the Reimbursement Agreement and transfers to CIBC all of
Westpac's obligations under the Reimbursement Agreement;
(b) CIBC hereby purchases and accepts Westpac's rights
under the Reimbursement Agreement and accepts and assumes its
obligations thereunder and agrees to be bound by and perform the
terms of the Reimbursement Agreement, as amended, substituted or
otherwise modified pursuant to this Agreement, as if it were the
Bank originally party thereto.
SECTION 2.2 Delivery of Letter of Credit. On the Effective
Date, subject to the applicable conditions precedent set forth in
Section V,
(a) CIBC will execute and deliver to the Trustee a
replacement Letter of Credit, dated the Effective Date, in the
stated maximum amount equal to $28,978,894 substantially in the
form of Annex I (the "New Letter of Credit"); and
(b) simultaneously therewith, the Trustee will
surrender for cancellation to Westpac the Original Letter of
Credit.
SECTION 2.3 Consent to Assignment and Assumption; Release
of Westpac. Subject to the terms and conditions hereof,
including, without limitation, Section 2.2 and Section V, the
Company hereby
(a) consents to and approves the transactions
contemplated by Sections 2.1, 2.2 and 2.4; and
(b) agrees that, upon the Effective Date, Westpac
shall be released from all its obligations under the
Reimbursement Agreement other than those arising thereunder prior
to the Effective Date; and
(c) agrees that upon the Effective Date, Westpac shall
be released from all its obligations under the Original Letter of
Credit and that the Company shall cause the Trustee to surrender
the Original Letter of Credit to Westpac on such date.
SECTION 2.4 Reservation of Certain Rights. Notwithstanding
Section 2.1 and Section 2.3, (a) Westpac does not sell, assign,
convey or transfer to CIBC and reserves to itself any right of
indemnification which runs to Westpac pursuant to the terms of
the Reimbursement Agreement and (b) CIBC does not accept or
assume, and shall not be bound by or liable in respect of, any
claim, loss or liability of any person to the extent arising from
any failure by Westpac to perform any of its obligations arising
under the Reimbursement Agreement prior to the Effective Date or
the Original Letter of Credit prior to its surrender by the
Trustee pursuant to Section 2.3(c).
SECTION III
AMENDMENTS TO REIMBURSEMENT AGREEMENT
SECTION 3.1 Amendments. Effective on and as of the
Effective Date, the Reimbursement Agreement is hereby amended as
follows:
(a) Section 1.01 of the Reimbursement Agreement is
amended as follows:
(i) A definition of "Bank" is added in the appropriate
alphabetical position reading as follows:
"Bank" means Canadian Imperial Bank of Commerce
acting through its New York Agency.
(ii) The definition of "Disclosure Documents" is
amended to read in its entirety as follows:
"Disclosure Documents" means the following
documents, each in the form distributed to the
Bank prior to September 8, 1993:
(a) The Company's Annual Report on Form 10-K
for the year ended December 31, 1992.
(b) The Company's Quarterly Reports on Form
10-Q for the quarters ended March 31, 1993 and
June 30, 1993.
(c) The Company's Current Reports on Form 8-
K dated March 22, 1993, April 27, 1993, June 21,
1993, July 22, 1993 and August 23, 1993.
(d) The Company's definitive Proxy Statement
for its Annual Meeting of Shareholders Held May 6,
1993.
(e) The Prospectus dated March 23, 1993
relating to the offering of $50,000,000 of the
Company's First Mortgage Bonds, 6.75% Series A due
2003.
(f) The Prospectus Supplement dated May 27,
1993 relating to the offering of 6,000,000 shares
of the Company's $1.75 Dividend Preference Stock.
(g) The Prospectus Supplement dated July 28,
1993 relating to the offering of $290,000,000 of
the Company's First Mortgage Bonds, Medium Term
Note Series, consisting of $170,000,000 6.41% Sub-
series A due 2001 and $120,000,000 6.77% Sub-
series B due 2005.
(iii) The definitions of "Domestic Lending Office" and
"Euro-Dollar Lending Office" are amended to read in their
entirety as follows:
"Domestic Lending Office" means the office of the
Bank located at Two Paces West, 2727 Paces Ferry
Road, Atlanta, Georgia 30339, or such other branch
(or affiliate) as the Bank may hereafter designate
as its Domestic Lending Office.
"Euro-Dollar Lending Office" means the office of
the Bank located at Two Paces West, 2727 Paces
Ferry Road, Atlanta, Georgia 30339, or such other
branch (or affiliate) as the Bank may hereafter
designate as its Euro-Dollar Lending Office.
(iv) The definition of "Fee Agreement" is deleted.
(v) The definition of "Prime Rate" is amended to read
in its entirety as follows:
"Prime Rate" for any day shall mean the United
States "Prime Rate" of the Bank as announced by
the Bank from time to time (said rate to change on
the date of each change of such prime rate). The
Prime Rate is not necessarily intended to be the
lowest rate of interest charged by the Bank in
connection with extensions of credit.
(b) Section 2.02 of the Reimbursement Agreement is
deleted and the following is substituted in its place:
SECTION 2.02 [Intentionally deleted.]
(c) Section 2.03 of the Reimbursement Agreement is
amended to read in its entirety as follows:
SECTION 2.03 Commission. (a) The Company hereby
agrees to pay to the Bank a letter of credit commission
on the Commission Amount in effect from time to time
from the date of issuance of the Letter of Credit to
and including the Credit Termination Date, payable
quarterly in arrears on the first day of October, 1993
and on the first day of each July, October, January and
April thereafter until the Credit Termination Date, and
on the Credit Termination Date, at the rate of 0.65%
per annum (computed for actual days elapsed on the
basis of a 360-day year).
(b) The Company hereby agrees to pay to the Bank,
upon each transfer of the Letter of Credit in
accordance with its terms, the Banks then customary
transfer fees.
(c) The Company hereby agrees to pay to the Bank
on the date of each draw under the Letter of Credit, a
drawing fee in the amount of $100.
(d) Section 2.05(d) of the Reimbursement Agreement is
amended by deleting the phrase "to the Continental Illinois
National Bank and Trust Company of Chicago, Illinois, for credit
to the account of the Bank, Account No. 6012795" and substituting
in its place the following "to the Domestic Lending Office of the
Bank".
(e) Section 4.01(e) and (o) of the Reimbursement
Agreement are amended by replacing the date "December 31, 1984"
with the date "December 31, 1992" wherever it occurs therein and
by deleting from Section 4.01(o) of the Reimbursement Agreement
the phrase "the parity obligation contained in Section 6.02 of
the Debenture Indenture".
(f) Section 4.01(i) of the Reimbursement Agreement is
amended by substituting "1992 annual report" for "1984 annual
report".
(g) Section 4.01(k) of the Reimbursement Agreement is
amended by replacing "and Gulf States Overseas Finance N.V." with
"GSG & T Inc., and Southern Gulf Railway Company".
(h) Section 7.02 of the Reimbursement Agreement is
amended by deleting the address for the Bank therein and
substituting the following therefor: "Two Paces West, 2727 Paces
Ferry Road, Atlanta, Georgia 30339, telephone no. (404) 319-4836,
facsimile no. (404) 319-4950, telex no. 54-2413 (Answerback:
CANBANK ATL), Attention: Claire C. Coyne, Credit Operations,
with a copy to: CIBC Inc., 200 West Madison Street, Suite 2300,
Chicago, Illinois 60606, telephone no. (312) 855-3123, facsimile
no. (312) 750-0927, Attention: Utilities Group".
(i) The Reimbursement Agreement is further amended by
deleting Exhibit A thereto in its entirety and substituting
therefor a new Exhibit A in the form of Annex I to this
Agreement.
SECTION IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of the Company.
The Company hereby represents and warrants that the execution,
delivery and performance by the Company of this Agreement are
within the Company's corporate powers, have been duly authorized
by all necessary corporate action and do not contravene or
conflict with any law, rule or regulation applicable to the
Company or require any action by or any filing with any
governmental or public body or authority or result in a breach of
or constitute a default under its charter or by-laws or any
agreement, indenture or instrument binding upon it including,
without limitation, the Related Documents; this Agreement and the
Reimbursement Agreement as amended hereby constitute the legal,
valid and binding obligation of the Company enforceable against
the Company in accordance with their respective terms except as
enforceability may be limited by applicable reorganization,
insolvency, liquidation, readjustment of debt, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity; the
representations and warranties set forth in Article IV of the
Reimbursement Agreement as amended hereby are true and correct in
all material respects as of the Effective Date; and no Event of
Default or event which with the giving of notice or passage of
time or both would become an Event of Default has occurred and is
continuing. The Company further represents and warrants that,
except as provided in the Reimbursement Agreement, the Company
has not granted any collateral to CIBC to secure the Company's
obligations under the Reimbursement Agreement and no other person
has provided a guaranty or collateral with respect thereto.
SECTION 4.2 Representations and Warranties of CIBC. (a)
CIBC hereby represents and warrants that the execution and
delivery by CIBC of this Agreement, the acceptance and assumption
of the rights and obligations assigned hereunder, the issuance
pursuant hereto of the New Letter of Credit and the performance
by CIBC of its obligations under the Reimbursement Agreement are
within its powers, have been duly authorized by all necessary
action, if any, do not contravene or conflict with any law, rule
or regulation applicable to CIBC or require any action by or
filing with any governmental or public body or authority or
result in a breach of or constitute a default under its charter
or by-laws or any agreement, indenture or instrument binding upon
it; this Agreement constitutes, and on the Effective Date, the
Reimbursement Agreement, as amended hereby and the New Letter of
Credit will constitute, the legal, valid and binding obligations
of CIBC, enforceable against CIBC in accordance with their
respective terms except as enforceability may be limited by
applicable reorganization, insolvency, liquidation, readjustment
of debt, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general
principles of equity.
(b) CIBC hereby represents and warrants that, except
to the extent it has rights under the Reimbursement Agreement, it
has not received any collateral from the Company to secure the
Company's obligations under the Reimbursement Agreement and that
no other person has guaranteed the obligations of the Company
under the Reimbursement Agreement or provided collateral with
respect thereto.
(c) CIBC hereby confirms to Westpac that it has
entered into this Agreement and the Reimbursement Agreement, as
amended hereby, on the basis of its own credit evaluation of the
Company and that Westpac has not made any representations or
warranties to CIBC (other than as set forth in Section 4.3).
SECTION 4.3 Representations and Warranties of Westpac. (a)
Westpac hereby represents and warrants on and as of the date
hereof and on as of the Effective Date that the execution,
delivery and performance by Westpac of this Agreement are within
its powers, have been duly authorized by all necessary action, if
any, do not contravene or conflict with any law, rule or
regulation applicable to Westpac or require any action by or
filing with any governmental or public body or authority or
result in a breach of or constitute a default under its charter
or by-laws; this Agreement constitutes, and on the Effective Date
will constitute, the legal, valid and binding obligation of
Westpac, enforceable against Westpac in accordance with its terms
except as enforceability may be limited by applicable
reorganization, insolvency, liquidation, readjustment of debt,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(b) Westpac represents and warrants that it owns all
of the right, title and interest of the Bank under the
Reimbursement Agreement free and clear of any adverse claims and
that to the best of its knowledge, having made no independent
investigation, no Event of Default or event which with the
passage of time or giving of notice or both would become an Event
of Default has occurred and is continuing.
SECTION V
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent. The effectiveness of the
transactions contemplated by Section II and the amendments
provided in Section III of this Agreement shall be subject to the
fulfillment of the following conditions precedent:
(a) The Company, CIBC and Westpac as the case may be,
shall have received counterparts of this Agreement executed by
each of the other parties hereto.
(b) CIBC shall have received:
(i) the original executed Reimbursement
Agreement, including, without limitation, all amendments
thereto, certified as complete by the Company and Westpac;
(ii) copies of all of the Related Documents
(other than the Original Letter of Credit, the Bonds, the
Fee Agreement and the Reimbursement Agreement), including,
without limitation, all amendments thereto, certified as
complete by the Company;
(iii) a certificate of the Secretary or an
Assistant Secretary of the Company as to authorizing
resolutions of the Company's board of directors, the
incumbency and signatures of officers and such other matters
as the Bank may reasonably request; and
(iv) an opinion of Orgain, Bell & Tucker, L.L.P.,
counsel for the Company, in substantially the form of
Exhibit A hereto and as to such other matters as the Bank
may reasonably request.
(c) Westpac shall have received:
(i) the Original Letter of Credit; and
(ii) payment in full of all fees payable by the
Company pursuant to Section 2.03 of the Reimbursement
Agreement accrued through the Effective Date.
(d) The Trustee shall have received:
(i) an opinion of Mayer, Brown & Platt, counsel
to CIBC, and an opinion of Canadian counsel to CIBC, as to
the enforceability of the New Letter of Credit;
(ii) an opinion of Foley & Judell, Bond Counsel,
stating that the delivery of the New Letter of Credit to the
Trustee is authorized under the Indenture and complies with
the terms thereof;
(iii) an opinion of Morgan, Lewis & Bockius as to
certain bankruptcy law matters;
(iv) written evidence from each of Moody's
Investors Service Inc. and Standard & Poor's Corporation to
the effect that such rating agency has reviewed the proposed
New Letter of Credit and that the substitution of the
proposed New Letter of Credit will not, by itself, result in
either a withdrawal of its rating of the Bonds or the then
current rating of the Bonds being reduced; and
(v) the New Letter of Credit.
SECTION VI
MISCELLANEOUS
SECTION 6.1 Effective Amendment; Ratification. Except as
expressly amended and modified by this Agreement, the
Reimbursement Agreement is and shall continue to be in full force
and effect in accordance with the terms thereof and are hereby
ratified and confirmed by the parties thereto. From and after
the Effective Date (i) each reference to the Reimbursement
Agreement in any other instrument or document shall be deemed to
be a reference to the Reimbursement Agreement as amended hereby,
(ii) the Reimbursement Agreement, as amended hereby shall be
deemed to be the "Reimbursement Agreement" for purposes of the
Indenture and (iii) CIBC shall be the "Bank" for purposes of the
Indenture.
SECTION 6.2 Change of Address for Notices. Each party
hereto agrees that this Agreement shall constitute a change of
address for purposes of notice to the Bank and/or the "Bank" (as
defined in the Indenture) and that from and after the Effective
Date notices to the Bank and/or the "Bank" shall be sent to the
addresses set forth in Section 3.1(a), provided, however, that
drawings under the New Letter of Credit shall be sent in
accordance with the terms thereof.
SECTION 6.3 Further Assurances. Each party hereto agrees
that, from time to time, it will promptly execute and deliver all
further instruments and documents, and take all further action,
that may be necessary or desirable, as requested by any other
party hereto, in order to implement the transactions contemplated
hereby.
SECTION 6.4 Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and
the respective successors and assigns.
SECTION 6.5 Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
SECTION 6.6 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the internal laws
of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by the respective officers thereunto duly
authorized as of the day first above written.
GULF STATES UTILITIES COMPANY
By:
Its:
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
By:
Its:
WESTPAC BANKING CORPORATION
By:
Its: