ex10_1.htm


Exhibit 10.1







JOINDER AGREEMENT





THIS JOINDER AGREEMENT dated as of May 28, 2010 (this “Joinder Agreement”) is made by and among ENSERCO ENERGY INC., a South Dakota corporation (“Borrower”), BNP PARIBAS in its capacity
as administrative agent under the Credit Agreement (as defined below) (in such capacity, the “Administrative Agent”), and CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK (“New Bank”).  Reference is made to that certain Third Amended and Restated Credit Agreement dated as of May 8, 2009 among the Borrower, the banks party thereto from time to time (the
“Banks”), the Banks authorized to issue letters of credit thereunder from time to time (the “Issuing Banks”), and the Administrative Agent (as the same may be amended, supplemented or otherwise modified from time to time, the “Credit Agreement”).  Capitalized terms used herein
but not defined herein shall have the meanings specified by the Credit Agreement.

 

PRELIMINARY STATEMENTS:

 

A.           Pursuant to Section 2.01B of the Credit Agreement, and subject to the terms and conditions thereof, financial institutions may become Banks with Committed Line Portions in the event the Borrower requests an increase in the subscribed amounts of the Committed Line Portions
and certain other conditions are met and satisfied.

 

B.           The Borrower has requested an increase in the subscribed amounts of the Committed Line Portions provided certain conditions are met and satisfied, as applicable.

 

C.           The Borrower, the Administrative Agent, the Issuing Banks and the New Bank now wish to enter into this Joinder Agreement to add New Bank as a Bank under the Credit Agreement and to establish a subscribed Committed Line Portion of $23,500,000.00 for New Bank in accordance
with the terms and conditions of the Credit Agreement.

 

AGREEMENT:

 

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and confessed, the parties hereto agree as follows:

 

1.           Addition of New Bank.  Pursuant to Section 2.01B of the Credit Agreement, New Bank is hereby added to the Credit Agreement as a Bank with a subscribed Committed Line Portion of $23,500,000.00.  New
Bank agrees that it will perform all of its obligations which by the terms of the Credit Agreement and the other Loan Documents are required to be performed by it as a Bank.  New Bank specifies as its Lending Office the following:

 






Credit Agricole Joinder Agreement [Enserco]

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Credit Agricole Corporate and Investment Bank

1301 Avenue of the Americas

New York, NY  10019

Attention:  Mark Lvoff

Telephone:  (212) 261-4135

Facsimile:  (212) 261-3445





2.           Delivery of Note.  The Borrower shall promptly execute and deliver to the New Bank a Note, dated as of the effective date of this Joinder Agreement, in the principal amount of the New Bank’s
subscribed Committed Line Portion set forth in Section 1 above.

 

3.           Governing Law.  This Joinder Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York.

 

4.           Waiver of Notice.  The Agent and each Issuing Bank hereby waive the five (5) Business Day notice requirement set forth in Section 2.01B of
the Credit Agreement.

 

5.           Bank Credit Decision.  The New Bank acknowledges that it has, independently and without reliance upon the Administrative Agent, the Issuing Banks, or any other Bank, and based on the Financial Statements
referred to in Section 6.11 of the Credit Agreement and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Joinder Agreement and to agree to the various matters set forth herein.  The New Bank also acknowledges that (a) it will, independently and without reliance upon the Administrative Agent, the Issuing Banks, or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the Credit Agreement, and (b) no representation or warranty, express or implied, has or will be made by the Administrative Agent, the Issuing Banks, or any other Bank or by any of their representatives, directors, officers, employees, agents or advisors as to the financial condition of the Borrower or any documents or information which have been furnished to the New Bank in connection with this Joinder Agreement, the Credit Agreement and any
other Loan Documents.

 

6.           Representations and Warranties of the Borrower.  The Borrower represents and warrants as follows:

 

(a)           The representations and warranties contained in the Credit Agreement, the Security Agreements, and each of the other Loan Documents are correct in all material respects on and as of the date of the addition of the New Bank as a Bank under the Credit Agreement and the
establishment of the New Bank’s subscribed Committed Line Portion pursuant to this Joinder Agreement, before and after giving effect to such events as though such representations and warranties were made on the date of such addition, except to the extent any such representations and warranties are expressly limited to an earlier date; and

 

(b)           No Default has occurred and is continuing, or would result from the increase in the subscribed amounts of the Committed Line Portions described in this Joinder Agreement.

 






Credit Agricole Joinder Agreement [Enserco]


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7.           Appointment of Administrative Agent.  The New Bank hereby appoints and authorizes the Administrative Agent to take such action as Administrative Agent on its behalf and to exercise such powers
and discretion under the Loan Documents as are delegated to the Administrative Agent thereby, together with such powers and discretion as are reasonably incidental thereto.

 

8.           Default.  Without limiting any other event that may constitute an Event of Default, the Borrower acknowledges and agrees that any representation or warranty made by the Borrower set forth in this
Joinder Agreement that proves to have been incorrect or incomplete in any material respect when made or deemed made shall constitute an “Event of Default” under the Credit Agreement.  This Joinder Agreement is a “Loan Document” for all purposes.

 

9.           Expenses.  The Borrower agrees to pay within thirty (30) days of receipt of written demand therefore all costs and expenses of the Administrative Agent required to be paid by the Borrower pursuant
to Section 11.04 of the Credit Agreement in connection with the preparation, execution and delivery of this Joinder Agreement and the Notes.

 

10.           Counterparts; Facsimile Signature.  The parties may execute this Joinder Agreement in counterparts, each of which constitutes an original, and all of which, collectively, constitute only one agreement.  Delivery
of an executed counterpart signature page by facsimile transmission or electronic photocopy (e.g., a “pdf”) is as effective as executing and delivering this Joinder Agreement in the presence of the other parties to this Joinder Agreement.  This Joinder Agreement is effective upon delivery of one fully executed counterpart to the Administrative Agent.

 

11.           Effectiveness of Joinder.  The parties agree that the effectiveness of the Fourth Amendment to the Credit Agreement, dated as of the date hereof, shall be deemed to precede the effectiveness of
this Joinder Agreement.

 





 

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Credit Agricole Joinder Agreement [Enserco]

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IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.

 





BORROWER:





ENSERCO ENERGY INC.









By:   Garner M. Anderson

Name:  /s/ Garner M. Anderson

Title:   VP Treasurer and CRO

 



 

 




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NEW BANK:





CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK









By:       Zali Win

Name:  /s/ Zali Win

Title:    Managing Director

 

 

By:       Louis Prieur

Name:  /s/ Louis Prieur

Title:   Vice President

 

 



 




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ADMINISTRATIVE AGENT:





BNP PARIBAS









By:       Keith Cox

Name:  /s/ Keith Cox

Title:    Managing Director









By:       Andrew Stratos

Name:  /s/ Andrew Stratos

Title:   Vice President 

 



 

 




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ISSUING BANKS:





BNP PARIBAS









By:       Keith Cox

Name:  /s/ Keith Cox

Title:    Managing Director









By:       Andrew Stratos

Name:  /s/ Andrew Stratos

Title:    Vice President

 

 





SOCIETE GENERALE









By:       Barbara Paulsen

Name:  /s/ Barbara Paulsen           

Title:    Managing Director       









By:       Chung-Taek Oh    

Name:  /s/ Chung-Taek Oh          

Title:    Director       





 



 




Credit Agricole Joinder Agreement [Enserco]

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