Exhibit 10.4
FIRST AMENDMENT TO 3-YEAR AND 364-DAY REVOLVING CREDIT AGREEMENTS
This FIRST AMENDMENT TO 3-YEAR AND 364-DAY REVOLVING CREDIT AGREEMENTS
(this "Amendment") is dated as of June 13, 2002, and is entered into by and
among Black Hills Corporation, a South Dakota corporation (the "Borrower"), ABN
AMRO Bank N.V. in its capacity as administrative agent for the Banks party to
each of the Credit Agreements described below (in such capacity, the
"Administrative Agent"), and the Required Banks.
WHEREAS, the Administrative Agent, the Banks and the Borrower have
entered into that certain 364-Day Credit Agreement (as the same has been
amended, extended, modified or restated, the "364-Day Credit Agreement") and
that certain 3-Year Credit Agreement (as the same has been amended, extended,
modified or restated, the "3-Year Credit Agreement") each dated as of August 28,
2001 and each among the Borrower, the financial institutions from time to time
party thereto (each a "Bank," and collectively the "Banks"), U.S. Bank, National
Association and The Bank of Nova Scotia, in their capacity as documentation
agents for the Banks thereunder (in such capacity, "Documentation Agents"),
Union Bank of California, N.A. and Bank of Montreal, in their capacity as
syndication agents for the Banks thereunder (in such capacity, "Syndication
Agents") and ABN AMRO Bank N.V. in its capacity as Administrative Agent for the
Banks thereunder (the 364-Day Credit Agreement and the 3-Year Credit Agreement
are each referred to individually as a "Credit Agreement" and collectively as
the "Credit Agreements");
WHEREAS, the Borrower has requested that the Credit Agreement be
amended to, among other things, eliminate a downgrade of its S&P Rating or
Moody's Rating below investment grade as an Event of Default and the Banks are,
subject to the terms hereof, willing to so amend the Credit Agreement.
NOW THEREFORE, in consideration of the mutual conditions and agreements
set forth in the Credit Agreements and this Amendment, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the meaning ascribed to such terms in the Credit
Agreements.
2. Amendments. Subject to the conditions set forth below, each Credit
Agreement is amended as follows:
(a) Section 1.1 of each Credit Agreement is hereby amended by amending
and restating the following definition in its entirety:
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"Material Adverse Effect" means a material adverse
effect on (i) the business, financial position or results of
operations of Borrower or Borrower and its Subsidiaries taken
as a whole, (ii) the ability of Borrower to perform its
material obligations under the Credit Documents, (iii) the
validity or enforceability of the material obligations of
Borrower under any Credit Document, (iv) the rights and
remedies of the Banks or the Administrative Agent against
Borrower; or (v) the timely payment of the principal of and
interest on the Loans or other amounts payable by Borrower
hereunder, provided, that a downgrade of Borrower's S&P Rating
and/or Moody's Rating shall not, in and of itself, be deemed a
"Material Adverse Effect" for purposes of this Agreement.
(b) Section 1.1 of each Credit Agreement is hereby amended by amending
and restating clause (v) of the definition of "Indebtedness" to be and to
read as follows:
(v) all Guarantees issued by such Person, provided
that Long-Term Guaranties shall not be deemed "Indebtedness"
for purposes of calculating Borrower's compliance with the
financial covenants set forth in Sections 7.16, 7.17 and 7.18
hereof;
(c) Section 8.1 of each Credit Agreement is hereby amended by (i)
inserting the word "or" at the end of subsection (k) thereof, (ii) deleting
the "; or" appearing at the end of subsection (l) thereof and replacing it
with ".", and (iii) deleting subsection (m) thereof in its entirety.
(d) Schedule 1 to the 364-Day Credit Agreement is hereby deleted in
its entirety and a new Schedule 1 in the form of Schedule 1 (364-Day Credit
Agreement) attached to this Amendment is hereby substituted therefor.
(e) Schedule 1 to the 3-Year Credit Agreement is hereby deleted in its
entirety and a new Schedule 1 in the form of Schedule 1 (3-Year Credit
Agreement) attached to this Amendment is hereby substituted therefor.
(f) Schedule 1 to Exhibit B of each Credit Agreement is hereby amended
by changing the words "must not be less than" appearing in Section G(7) of
each such schedule to "not to exceed".
3. Ratification. The Borrower hereby ratifies, acknowledges, affirms and
reconfirms its rights, interests and obligations under each Credit Document and
agrees to perform each of its obligations thereunder as and when required. By
executing this Amendment, the Borrower hereby further ratifies, acknowledges,
affirms and reconfirms that each Credit Document, as amended hereby, constitutes
a legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, and that each such Credit Document, as
amended hereby, is in full force and effect.
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4. Conditions. The effectiveness of this Amendment is subject to the
following conditions precedent (unless specifically waived in writing by the
Administrative Agent):
(a) The Borrower and the Required Banks shall have executed and
delivered this Amendment, and the Borrower shall have executed and/or
delivered such other documents and instruments as Administrative Agent may
require.
(b) The representations and warranties set forth in Section 5 of this
Amendment shall be true and correct.
(c) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other
legal matters incident thereto shall be reasonably satisfactory to
Administrative Agent and its legal counsel.
5. Representations and Warranties. To induce the Administrative Agent and
the Banks to enter into this Amendment, the Borrower represents and warrants to
the Administrative Agent and the Banks that (i) the execution, delivery and
performance of this Amendment has been duly authorized by all requisite
corporate action on the part of the Borrower and that this Amendment has been
duly executed and delivered by the Borrower and this Amendment and the Credit
Agreements, as amended hereby, constitute valid and binding obligations of the
Borrower enforceable in accordance with their respective terms, (ii) no Default
or Event of Default (after giving effect to this Amendment) has occurred and is
continuing under the Credit Agreements or would result from the execution and
delivery of this Amendment, and (iii) each of the representations and warranties
set forth in Section 5 of the Credit Agreements, as amended hereby, is true and
correct in all material respects as of the date hereof, except that if any such
representation or warranty relates solely to an earlier date it need only remain
true as of such date.
6. Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
7. References. Any reference to the Credit Agreements contained in any
document, instrument or agreement executed in connection with the Credit
Agreements shall be deemed to be a reference to the Credit Agreements as
modified by this Amendment.
8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument. This Amendment may also be
executed by facsimile and each facsimile signature hereto shall be deemed for
all purposes to be an original signatory page.
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9. Costs. The Borrower agrees to pay on demand all reasonable costs and
expenses incurred by the Administrative Agent (including fees and expenses of
counsel) incurred in connection with the negotiation and preparation of this
Amendment.
10. Governing Law. The validity and interpretation of this Amendment and
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflict of laws other than section 5-1401 of the New
York General Obligations Laws.
11. Miscellaneous. This Amendment shall be deemed to be a Credit Document.
[- Remainder of Page Left Blank - Signature Pages Follow -]
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In Witness Whereof, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their duly authorized
officers as of the day and year first above written.
BLACK HILLS CORPORATION, a
South Dakota corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
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ABN AMRO BANK N.V., in its individual
capacity as a Bank and as Administrative
Agent
By: _____________________________
Name: David B. Bryant
Title: Senior Vice President &
Managing Director
By: _____________________________
Name: _____________________________
Title: _____________________________
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UNION BANK OF CALIFORNIA, N.A.
By: _____________________________
Name: Robert J. Cole
Title: Vice President
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U.S. BANK, NATIONAL
ASSOCIATION, in its individual capacity
as a Bank and as Documentation Agent
By: _____________________________
Name: Sandra Vollmer
Title: Senior Lender
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BANK OF MONTREAL
By: _____________________________
Name: Ian M. Plester
Title: Director
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THE BANK OF NOVA SCOTIA
By: _____________________________
Name: F.C.H. Ashby
Title: Senior Manager Loan Operations
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CIBC INC., as a Lender
By: _____________________________
Name: M. Sanjeeva Senanayake
Title: Executive Director
CIBC World Markets Corp. As Agent
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COBANK, ACB
By: _____________________________
Name: Cathleen Reed
Title: Assistant Vice President
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WELLS FARGO BANK, N.A.
By: _____________________________
Name: Thomas M. Foncannon
Title: Senior Vice President
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MIZUHO CORPORATE BANK, LTD.
By: _____________________________
Name: Nobuyasu Fukatsu
Title: Senior Vice President
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NATIONAL CITY BANK OF
MICHIGAN/ILLINOIS
By: _____________________________
Name: Mark R. Long
Title: Senior Vice President
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NORDEUTSCHE LANDESBANK
GIROZENTRALE NEW YORK/
CAYMAN ISLANDS BRANCH
By: _____________________________
Name: Stephanie Finnen
Title: Vice President
By: _____________________________
Name: Joseph Haas
Title: Vice President
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CHANG HWA BANK, LOS ANGELES BRANCH
By: _____________________________
Name: James Lin
Title: Senior Vice President and General Manager
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SCHEDULE 1 (364-Day Credit Agreement)
PRICING GRID
- ------------------ ------------------- ------------ ------------------- -------------------
If the Level Subject to the The Subject to the Subject to the
Status Is proviso below Utilization proviso below proviso below
this grid, the Fee Rate this grid, the this grid, the
Facility Fee Rate is: Eurodollar Margin Base Rate Margin
is: is: is:
- ------------------ ------------------- ------------ ------------------- -------------------
- ------------------ ------------------- ------------ ------------------- -------------------
Level I Status 0.080% 0.100% 0.420% 0.000%
- ------------------ ------------------- ------------ ------------------- -------------------
- ------------------ ------------------- ------------ ------------------- -------------------
Level II Status 0.100% 0.125% 0.500% 0.000%
- ------------------ ------------------- ------------ ------------------- -------------------
- ------------------ ------------------- ------------ ------------------- -------------------
Level III Status 0.125% 0.125% 0.625% 0.000%
- ------------------ ------------------- ------------ ------------------- -------------------
Level IV Status 0.150% 0.125% 0.725% 0.000%
- ------------------ ------------------- ------------ ------------------- -------------------
- ------------------ ------------------- ------------ ------------------- -------------------
Level V Status 0.200% 0.250% 0.800% 0.000%
- ------------------ ------------------- ------------ ------------------- -------------------
- ------------------ ------------------- ------------ ------------------- -------------------
Level VI Status 0.600% 0.500% 1.400% 0.475%
- ------------------ ------------------- ------------ ------------------- -------------------
Each change in a rating shall be effective as of the date it is
announced by the applicable rating agency. Until the Borrower receives an S&P
Rating, the applicable Level shall be determined based upon the Borrower's
Moody's Rating.
In the event that the Moody's Rating and the S&P Rating fall in
consecutive Levels, the rating falling in the lower Level (with Level I being
the highest Level and Level VI being the lowest Level) shall govern for purposes
of determining the applicable pricing pursuant to the above pricing grid. In the
event that the Moody's Rating and the S&P Rating fall in non-consecutive Levels,
the Level immediately above the Level in which the lower rating falls (with
Level I being the highest Level and Level VI being the lowest Level) shall
govern for purposes of determining the applicable pricing pursuant to the above
pricing grid.
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SCHEDULE 1 (3-Year Credit Agreement)
PRICING GRID
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
If the Level Subject to the The Subject to the Subject to the Subject to the
Status Is proviso below Utilization proviso below proviso below proviso below this
this grid, the Fee Rate this grid, the this grid, the grid, the Base
Facility Fee Rate is: L/C Fee Rate is: Eurodollar Rate Margin is:
is: Margin is:
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
Level I Status 0.100% 0.100% 0.400% 0.400% 0.000%
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
Level II Status 0.125% 0.125% 0.475% 0.475% 0.000%
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
Level III Status 0.150% 0.125% 0.600% 0.600% 0.000%
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
Level IV Status 0.175% 0.125% 0700% 0.700% 0.000%
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
Level V Status 0.250% 0.250% 0.750% 0.750% 0.000%
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
Level VI Status 0.500% 0.500% 1.500% 1.500% 0.500%
- ------------------ ------------------- ------------ ------------------- ------------------ --------------------
Each change in a rating shall be effective as of the date it is
announced by the applicable rating agency. Until the Borrower receives an S&P
Rating, the applicable Level shall be determined based upon the Borrower's
Moody's Rating.
In the event that the Moody's Rating and the S&P Rating fall in
consecutive Levels, the rating falling in the lower Level (with Level I being
the highest Level and Level VI being the lowest Level) shall govern for purposes
of determining the applicable pricing pursuant to the above pricing grid. In the
event that the Moody's Rating and the S&P Rating fall in non-consecutive Levels,
the Level immediately above the Level in which the lower rating falls (with
Level I being the highest Level and Level VI being the lowest Level) shall
govern for purposes of determining the applicable pricing pursuant to the above
pricing grid.