EXHIBIT 10.24-01
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El Paso Electric Company
Chase Bank of Texas, National Association
not in its individual capacity,
but solely in its capacity as trustee of the
Rio Grande Resources Trust II
Amendment Agreement
dated as of
February 8, 1999,
to the
$100,000,000 Credit Agreement
dated as of
February 12, 1996,
as amended and restated as of
February 8, 1999,
The Chase Manhattan Bank
as Administrative Agent,
Collateral Agent
and Issuing Bank
Union Bank of California, N.A.
as Documentation Agent
Barclays Bank PLC, New York Branch
as Syndication Agent
______________
Chase Securities Inc.
as Book Manager and Lead Arranger
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CHASE
CONFORMED COPY
AMENDMENT AGREEMENT dated as of February 8, 1999 (this
"Amendment Agreement"), among EL PASO ELECTRIC COMPANY, a Texas
corporation ("El Paso"), CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, a national banking association, not in its
individual capacity, but solely in its capacity as trustee of the
Rio Grande Resources Trust II (the "Trustee"; each of El Paso and
the Trustee are referred to individually herein as a "Borrower"
and collectively as the "Borrowers"), the lenders listed on the
signature pages hereof under the captions "Departing Lenders"
(the "Departing Lenders"), "Continuing Lenders" (the "Continuing
Lenders") and "Additional Lenders" (the "Additional Lenders",
and, together with the Continuing Lenders, the "Lenders"), THE
CHASE MANHATTAN BANK, a New York banking corporation ("Chase"),
as issuing bank (in such capacity, the "Issuing Bank"), as
administrative agent (in such capacity, the "Administrative
Agent") and as collateral agent (in such capacity, the
"Collateral Agent") for the Lenders, UNION BANK OF CALIFORNIA,
N.A., as documentation agent (the "Documentation Agent"), and
BARCLAYS BANK PLC, NEW YORK BRANCH, as syndication agent (the
"Syndication Agent").
A. The Borrowers, the Departing Lenders, the Continuing Lenders, the
Administrative Agent, the Collateral Agent and the Issuing Bank are parties to a
Credit Agreement dated as of February 12, 1996, as amended as of February 12,
1996 and July 31, 1997 (the "Original Credit Agreement").
B. The Departing Lenders and certain Continuing Lenders wish to assign all
or a portion of their interests in (i) the outstanding Loans and (ii) the
outstanding Letters of Credit under the Original Credit Agreement to the
Additional Lenders and certain other Continuing Lenders, and the Additional
Lenders and such Continuing Lenders are willing to accept such assignments.
C. The Borrowers have requested, and the other parties hereto have agreed,
upon the terms and subject to the conditions set forth or referred to herein,
that the Original Credit Agreement be amended and restated upon the
effectiveness of the assignments referred to in paragraph B above in the form of
the Amended and Restated Credit Agreement set forth as Exhibit A hereto (the
"Restated Credit Agreement").
D. Accordingly, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Restated Credit Agreement.
SECTION 2. Assignments. (a) On and as of the Restatement Closing Date,
subject to the conditions set forth in Section 7 hereof, each of the Departing
Lenders, Continuing Lenders and Additional Lenders shall sell, assign and
transfer, or purchase and assume, as the case may be, such interests in (i) the
Commitments (as defined in the Original Credit Agreement), (ii) the outstanding
Loans (as defined in the Original Credit Agreement), and (iii) the
participations in the Letters of Credit outstanding as of the Restatement
Closing Date (the "Existing Letters of Credit"), in each case as shall be
necessary in order that, after giving effect to all such assignments and
purchases, the Commitments, the Loans and the participations in the Existing
Letters of Credit will be held by the Continuing Lenders and Additional Lenders
ratably in accordance with their Commitments as set forth in Schedule 2.01 to
the Restated Credit
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Agreement. Each Lender purchasing interests of any type under this Section 2
shall be deemed to have purchased such interests from each Departing Lender and
Continuing Lender selling interests of such type ratably in accordance with the
amounts of such interests sold by them. The assignments and purchases provided
for in this Section 2 shall be without recourse, warranty or representation,
except that each assigning Lender shall be deemed to have represented that it is
the legal and beneficial owner of the interests assigned by it and that such
interests are free and clear of any adverse claim, and the purchase price for
each such assignment and purchase shall equal the principal amount of the Loans
purchased. Concurrently with the effectiveness of the assignments and purchases
provided for above, the Departing Lenders shall cease to be parties to the
Original Credit Agreement and shall be released from all further obligations
thereunder and shall have no further rights to or interest in any of the
Collateral (as defined in the Original Credit Agreement); provided, however,
that the Departing Lenders shall continue to be entitled to the benefits of
Sections 2.12, 2.14, 2.18 and 11.05 of the Original Credit Agreement as in
effect immediately prior to the Restatement Closing Date.
(b) On the Restatement Closing Date, (i) each Additional Lender and each
Continuing Lender that is purchasing interests in the Commitments and the
outstanding Loans pursuant to paragraph (a) above shall pay the purchase price
for the interests purchased by it pursuant to such paragraph (a) by wire
transfer of immediately available funds to the Administrative Agent in New York,
New York, not later than 12:00 (noon), New York City time, and (ii) the
Administrative Agent shall pay to each Departing Lender and each Continuing
Lender that is assigning interests in outstanding Loans pursuant to paragraph
(a) above, out of the amounts received by the Administrative Agent from each
Additional Lender and Continuing Lender pursuant to clause (i) of this paragraph
(b), the purchase price for the interests assigned by it pursuant to such
paragraph (a) by wire transfer of immediately available funds not later than
3:00 p.m., New York City time.
(c) Each of the parties hereto hereby consents to the assignments and
purchases provided for in paragraphs (a) and (b) above and agrees that (i) each
Additional Lender and each Continuing Lender that is purchasing interests in the
Commitments and the outstanding Loans pursuant to paragraph (a) above are
assignees of the Departing Lenders and certain Continuing Lenders permitted
under Section 11.04 of the Original Credit Agreement and (ii) each Additional
Lender and each Continuing Lender shall have all the rights and obligations of a
Lender under the Restated Credit Agreement with respect to the interests
purchased by it pursuant to such paragraphs. The Borrowers further agree that if
any Lender shall default in the payment of any amount due from it under
paragraph (b) above, the Borrowers shall promptly pay the defaulted amount to
the Administrative Agent by wire transfer of immediately available funds,
together with interest on such amount at the Alternate Base Rate from the
Restatement Closing Date to the date of payment. Upon any such payment by the
Borrowers, (i) the Borrowers shall be subrogated to all rights of the assigning
Lender against the defaulting Lender and (ii) the Borrowers shall have the
right, at the defaulting Lender's expense, upon notice to the defaulting Lender
and to the Administrative Agent, to require such defaulting Lender to transfer
and assign without recourse all its interests, rights and obligations under the
Restated Credit Agreement to another financial institution which shall assume
such interests, rights and obligations; provided that (A) no such assignment
shall conflict with any law, rule or regulation or order of any Governmental
Authority, (B) the assignee shall pay to the defaulting Lender, in immediately
available funds on the date of such assignment, the outstanding principal of and
interest accrued to the date of payment on the Loans made or deemed made by such
defaulting Lender under the Restated Credit Agreement, if any, and all other
amounts accrued for such defaulting Lender's account or owed to it under the
Restated Credit Agreement and (C) if the defaulting Lender shall not have
reimbursed the Borrowers for the defaulted amount paid by the Borrowers pursuant
to paragraph (b) above, the assignee shall pay to the Borrowers, in immediately
available funds on the date of such assignment, the amount of and interest
accrued to the date of payment on, such defaulted amount.
SECTION 3. Amendment and Restatement of the Original Credit Agreement. (a)
The Borrowers, the Additional Lenders, the Continuing Lenders, the Issuing Bank,
the Administrative Agent, the Collateral
3
Agent, the Documentation Agent and the Syndication Agent agree that the Original
Credit Agreement (including all Exhibits and Schedules thereto) is hereby
amended and restated, effective as of the Restatement Closing Date, to read in
its entirety as set forth in Exhibit A hereto. As used in the Restated Credit
Agreement, the terms "Agreement", "this Agreement", "herein", "hereinafter",
"hereto", "hereof" and words of similar import shall, unless the context
otherwise requires and except as provided above, mean the Original Credit
Agreement as amended and restated by this Amendment Agreement.
(b) On the Restatement Closing Date, upon the effectiveness of the Restated
Credit Agreement, (i) each Loan outstanding under the Original Credit Agreement
shall be deemed to be a Loan under the Restated Credit Agreement and (ii) each
Existing Letter of Credit shall be deemed to be a Letter of Credit issued under
the Restated Credit Agreement, and the amount of the unused Commitments shall be
adjusted accordingly.
(c) Schedule I hereto sets forth the principal amount and type of each Loan
held by each Lender on the Restatement Closing Date, after giving effect to the
transactions contemplated by Section 2 above and this Section 3. The Borrowers
shall cause all Borrowings outstanding immediately prior to the Restatement
Closing Date to be ABR Borrowings.
SECTION 4. Amendment of the Purchase Contract. The Additional Lenders and
the Continuing Lenders hereby consent to the amendment of the Purchase Contract
as set forth in Exhibit B hereto.
SECTION 5. Representations and Warranties. The Borrowers hereby make to
each of the other parties hereto, on the date hereof and on the Restatement
Closing Date, each of the representations and warranties contained in Article
III of the Restated Credit Agreement, and each of such representations and
warranties is hereby incorporated by reference herein.
SECTION 6. Fees; Interest. (a) On the Restatement Closing Date,
simultaneously with the making of the assignments provided for in Section 2, the
Borrowers shall pay (i) to the Administrative Agent, for the accounts of the
Departing Lenders and Continuing Lenders, the fees payable pursuant to Section
2.05 of the Original Credit Agreement which have accrued for the period from the
last date such fees were paid to but excluding the Restatement Closing Date and
(ii) for the account of the Administrative Agent and the Lenders entitled
thereto, the fees and expenses referred to in Section 4.02(d) of the Restated
Credit Agreement. The fees and expenses described in this Section 6 shall be
payable in immediately available funds. Once paid, such fees shall not be
refundable under any circumstances.
(b) On the Restatement Closing Date, simultaneously with the making of the
assignments provided for in Section 2, the Borrowers shall pay to the
Administrative Agent, for the accounts of the Departing Lenders and the
Continuing Lenders, all unpaid interest accrued to but excluding the Restatement
Closing Date on the Loans (as defined in the Original Credit Agreement) of each
such Lender.
SECTION 7. Conditions Precedent. The obligation of each Continuing Lender
and each Additional Lender to purchase the assignments provided for in Section 2
hereof, the amendment and restatement of the Original Credit Agreement provided
for in Section 3 hereof and the consent to the amendment of the Purchase
Agreement provided for in Section 4 hereof on the Restatement Closing Date shall
be subject to the satisfaction of all of the conditions precedent contained in
Article IV of the Restated Credit Agreement, and each of such conditions
precedent is hereby incorporated by reference herein.
SECTION 8. Applicable Law. THIS AMENDMENT AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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SECTION 9. No Novation. Neither this Amendment Agreement nor the execution,
delivery or effectiveness of the Restated Credit Agreement shall extinguish the
obligations for the payment of money outstanding under the Original Credit
Agreement or discharge or release the Lien or priority of any security
agreement, any pledge agreement or any other security therefor. Nothing herein
contained shall be construed as a substitution or novation of the Obligations
outstanding under the Original Credit Agreement or instruments securing the
same, which shall remain in full force and effect, except as modified hereby or
by instruments executed concurrently herewith. Nothing expressed or implied in
this Amendment Agreement, the Restated Credit Agreement or any other document
contemplated hereby or thereby shall be construed as a release or other
discharge of either of the Borrowers under the Original Credit Agreement or any
Guarantor under any Loan Document (as defined in the Original Credit Agreement)
from any of its obligations and liabilities thereunder. Each of the Original
Credit Agreement and the other Loan Documents (as defined in the Original Credit
Agreement) shall remain in full force and effect, until and except as modified
hereby or thereby in connection herewith or therewith. This Amendment Agreement
shall constitute a Loan Document for all purposes of the Original Credit
Agreement and the Restated Credit Agreement.
SECTION 10. Notices. All notices hereunder shall be given in accordance
with the provisions of Section 11.01 of the Restated Credit Agreement and in the
case of the Departing Lenders to the addresses referred to in Section 11.01 of
the Original Credit Agreement.
SECTION 11. Counterparts. This Amendment Agreement may be executed in two
or more counterparts, each of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 13 hereof. Delivery
of an executed signature page to this Amendment Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
hereof.
SECTION 12. Headings. The headings of this Amendment Agreement are for
convenience of reference only, are not part of this Amendment Agreement and are
not to be taken into consideration in interpreting this Amendment Agreement.
SECTION 13. Effectiveness; Amendment. Subject to the conditions of Section
7 hereof, this Amendment Agreement shall become effective on the Restatement
Closing Date if (a) it shall have been executed by each Borrower and the
Administrative Agent and (b) the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the parties hereto. This Amendment Agreement may not be amended nor may any
provision hereof be waived except pursuant to a writing signed by each of the
parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed by their duly authorized officers, all as of the date and
year first above written.
El PASO ELECTRIC COMPANY,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Treasurer,
and Chief Financial Officer
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, not in
its individual capacity, but solely in its
capacity as Trustee,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent, Collateral Agent and Issuing
Bank,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., individually and
as Documentation Agent,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
BARCLAYS BANK PLC, NEW YORK BRANCH, individually
and as Syndication Agent,
by
/s/ Sydney ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: Sydney ▇. ▇▇▇▇▇▇
Title: Director
6
Continuing Lenders
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CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
GUARANTY BANK, F.S.B.,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Additional Lenders
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ABN AMRO BANK N.V.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Director
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Director
BANKBOSTON, N.A.,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
Departing Lenders
-----------------
COMMERCIAL LOAN FUNDING TRUST I, by ▇▇▇▇▇▇
Commercial Paper Inc., not in its individual
capacity but solely as administrative agent,
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
7
OCTAGON LOAN TRUST,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
SPS SWAPS,
by
/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Schedule I
Loans
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Lender Type of Loan Principal Amount
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The Chase Manhattan Bank ABR Loan $7,223,520.00
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Barclays Bank PLC, New York Branch ABR Loan $7,223,520.00
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Union Bank of California, N.A. ABR Loan $7,223,520.00
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ABN AMRO Bank ABR Loan $7,223,520.00
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Credit Lyonnais, New York Branch ABR Loan $5,417,640.00
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Guaranty Federal Bank, F.S.B ABR Loan $5,417,640.00
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BankBoston, N.A. ABR Loan $5,417,640.00
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