Exhibit 4.1.10
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT, dated as of May 19, 1995, by and among (a) Boston
Edison Company (the "Borrower"), a Massachusetts corporation, (b) each of the
Banks named on the signature pages hereof (collectively, the "Banks"), (c) The
First National Bank of Boston and Citibank, N.A., as co-agents (collectively,
the "Agents") and (d) The First National Bank of Boston as administrative
agent (the "Administrative Agent").
WHEREAS, the Borrower, the Banks, the Agents and the Co-Agents are
parties to that certain Revolving Credit Agreement dated as of February 12,
1993, as in effect on the date hereof (the "Credit Agreement"); and
WHEREAS, the Borrower has requested and the Banks have agreed, subject to
the terms and conditions set forth herein, to modify certain provisions of the
Credit Agreement:
NOW, THEREFORE, the Borrower, the Banks, the Agents and the
Administrative Agent hereby covenant and agree as follows:
1. Defined Terms. Capitalized terms which are used herein without
-------------
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
2. Amendment to Section 1 - Definitions. Section 1 of the Credit
------------------------------------
Agreement is hereby amended as follows:
(a) The definition of "Balance Sheet Date" is hereby amended by
substituting "December 31, 1994" for "September 20, 1992" therein.
(b) The definition of "Commitment Fee Rate" is hereby deleted;
(c) The definition of "DPU Approval" is hereby amended and restated in
its entirety as follows:
DPU Approval. An appropriate order of the DPU authorizing the
------------
incurrence of indebtedness (i) after December 31, 1996 (for purposes
of satisfying the Extension Conditions) or (ii) after the DPU Final
Incurrence Date, in each case payable more than one year after the
date of incurrence, such order to contain no condition inconsistent
with the provisions hereof or reasonably unacceptable to the
Majority Banks.
(d) The definition of "Extension Conditions" is hereby amended by
substituting the date "December 31, 1996" for the date "December 31, 1994"
therein;
(e) The definition of "Extension Date" is hereby amended by substituting
the date "December 31, 1996" for the date "December 31, 1994" therein;
(f) The definition of "FERC Approval" is hereby amended and restated in
its entirety to read as follows:
FERC Approval. The order of the FERC dated June 27, 1994
-------------
authorizing the Borrower to incur, on or before December 31, 1996,
short-term indebtedness with a final maturity date not later than
December 31, 1997.
(g) The definition of "Interest Period" is hereby amended by deleting
the second sentence thereof in its entirety and inserting the following
sentence therefor:
The Interest Period for each Loan, as so determined, shall be (a)
with respect to Alternate Base Rate Loans any period ending on or
prior to the Termination Date, (b) with respect to Eurodollar Rate
Loans, one, two, three or six months and (c) up to 270 days with
respect to Competitive Bid Rate Loans.
(h) The definition of "Termination Date" is hereby amended and restated
in its entirety to read as follows:
Termination Date. May 15, 1999; provided that if all of the
---------------- --------
Extension Conditions have not been complied with on or prior to
December 31, 1996, the Termination Date shall be December 30, 1997;
provided, further, that if the Extension Conditions have been
-------- -------
complied with but the DPU Approval delivered to satisfy the
Extension Conditions provides for a DPU Final Incurrence Date prior
to May 15, 1999, the Termination Date shall be the earlier to occur
of the date which is 364 days following the DPU Final Incurrence
Date specified in such DPU Approval or May 15, 1999; provided,
--------
further, that if the Second Extension Conditions have been complied
-------
with but the DPU Approval delivered to satisfy the Second Extension
Conditions provides for a Second DPU Final Incurrence Date prior to
May 15, 1999, the Termination Date shall be the earlier to occur of
the date which is 364 days following the Second DPU Final Incurrence
Date specified in such DPU Approval or May 15, 1999.
Notwithstanding the foregoing, the Termination Date shall be May 15,
1999 with respect to any outstanding Loans incurred pursuant to a
DPU Approval authorizing such Loans.
(i) Section 1 of the Credit Agreement is hereby amended by inserting the
following new definitions in appropriate alphabetical order:
DPU Final Incurrence Date. The date specified in the DPU Approval
--- ----- ---------- ----
delivered for purposes of satisfying the Extension Conditions as the
last date upon which the Borrower may incur indebtedness pursuant to
such order.
Facility Fee Rate. For each day that the First Mortgage Bonds have
-------- --- ----
a rating equal to or higher than BBB by Standard & Poor's
Corporation and Baa2 by Moody's Investors Service, Inc. the Facility
Fee Rate shall equal 0.1875% per annum provided, that in the event
--------
there are no First Mortgage Bonds outstanding, the condition
specified herein shall be deemed to be met if the Borrower has
outstanding debentures or other unsecured debt having a rating equal
to or higher than BBB- by Standard & Poor's Corporation and Baa3 by
Moody's Investor Service, Inc. For each day that the condition
specified in the preceding sentence is not satisfied, the Facility
Fee Rate shall equal 0.2875% per annum. In the event that the First
Mortgage Bonds or unsecured debt of the Borrower, as applicable, is
not rated by one of Standard & Poor's Corporation or Moody's
Investor Service, Inc., the condition specified herein shall be
deemed to be met if the applicable rating from the other such
rating company is achieved and the First Mortgage Bonds have a
rating of BBB or higher from Duff & Phelps Corporation, or, if the
First Mortgage Bonds are not then outstanding, the Borrower's
unsecured debt has a rating of BBB- or higher from Duff & Phelps
Corporation.
Second DPU Final Incurrence Date. The date specified in the DPU
------ --- ----- ---------- ----
Approval delivered for purposes for satisfying the Second Extension
Conditions as the last date upon which the Borrower may incur
indebtedness pursuant to such order.
Second Extension Conditions. (1) The Banks shall have received on
------ --------- ----------
or prior to the Second Extension Date, copies of the DPU Approval
authorizing the Borrower to incur long-term indebtedness after the
DPU Final Incurrence Date, which approval or order shall not have
been rescinded or stayed or materially adversely modified, or the
right of the Borrower to incur indebtedness thereunder restrained
by the DPU or by any court of competent jurisdiction or other
regulatory agency with appropriate jurisdiction and all applicable
appeal periods with respect to such approval or order shall have
expired and (2) Ropes & Gray, Borrower's counsel shall have
delivered to the Administrative Agent a legal opinion dated the
Second Extension Date, addressed to the Banks and reasonably
satisfactory to the Majority Banks to the effect that the incurrence
by, or existence of, indebtedness of the Borrower under this
Agreement after the DPU Final Incurrence Date has been duly approved
to the extent required by law and all applicable regulations by such
approval or order which remains in full force and effect and no
further authorization, order or approval or other action by, and no
notice to or filing with any governmental authority or regulatory
body is required for the incurrence of such indebtedness pursuant
hereto; and (3) the representations and warranties of the Borrower
contained in Section 4 are true and complete in all material
respects on and as of the Second Extension Date.
Second Extension Date. A date selected by the Borrower on or prior
------ --------- ----
to the DPU Final Incurrence Date on which the Second Extension
Conditions shall have been satisfied.
3. Amendment to Section 2.3 - Commitment Fee. Section 2.3 of the
--------- -- ------- ---
Credit Agreement is hereby amended by (i) substituting in the heading thereof
the phrase "Facility Fee" for the phrase "Commitment Fee" and (ii) deleting
the text thereof in its entirety and substituting the following text therefor:
The Borrower agrees to pay to the Administrative Agent for the
accounts of the Banks in accordance with their respective Commitment
Percentages a facility fee calculated daily at the Facility Fee Rate
on the amount of the Total Commitment in effect on such day. The
facility fee shall accrue from April 1, 1995 through the Termination
Date and be payable quarterly in arrears on the last day of each
March, June, September and December for the fiscal quarter (or
portion thereof) then ended, with the first such payment on June 30,
1995 and with a final payment on the Termination Date (or the date
of termination in full of the Commitments, if earlier).
4. Amendment to Section 2.4 - Extension of Commitment. Section 2.4 of
--------- -- ------- --- --------- -- ----------
the Credit Agreement is hereby amended by (i) substituting the phrase
"facility fee" for the phrase "commitment fee" in the penultimate sentence of
paragraph (a) thereof and (ii) deleting paragraph (c) thereof in its entirety.
5. Amendment to Section 2.6 - Interest Period. Section 2.6 of the
--------- -- ------- --- -------- ------
Credit is hereby amended as follows:
(a) Section 2.6(a) is amended by deleting clause (ii) thereof in
its entirety and substituting the following therefor:
(ii) on or prior to May 15, 1998 for the Eurodollar Loans,
at a rate per annum equal to the sum of (A) the Euro Rate plus (B)
----
0.4125%; and
(iii) after May 15, 1998 for Eurodollar Loans, at a rate per
annum equal to the sum of (A) the Euro Rate plus (B) 0.600%; and
----
(b) Section 2.6(b) is hereby amended by deleting clause (ii)
thereof in its entirety and substituting the following therefor:
(ii) on or prior to May 15, 1998 for Eurodollar Loans, at a
rate per annum equal to the sum of (A) the Euro Rate plus (B)
----
0.5375%; and
(iii) after May 15, 1998 for Eurodollar Loans, at a rate per
annum equal to the sum of (A) the Euro Rate plus (B) 0.725%; and
----
6. Amendment to Section 3.1 - Funds for Payments. Section 3.1 of the
--------- -- ------- --- ----- --- --------
Credit Agreement is hereby amended by substituting the phrase "facility fee"
for the phrase "commitment fee" in the first sentence thereof.
7. Amendment to Section 3.2 - Computations. Section 3.2 of the Credit
--------- -- ------- --- ------------
Agreement is hereby amended by substituting the phrase "facility fee" for the
phrase "commitment fee" in the first sentence thereof.
8. Amendment to Section 4.2 - Government Approvals. Section 4.2 of the
--------- -- ------- --- ---------- ---------
Credit Agreement is hereby amended and restated in its entirety as follows:
Except for (i) obtaining DPU approval authorizing the incurring of
indebtedness after December 31, 1996 (or such later date as shall be
specified therefor in the DPU Approval) pursuant to this Agreement
payable more than one year after the date of incurrence thereof and
(ii) obtaining approval of the Federal Energy Regulatory Commission
("FERC") authorizing the incurring of short-term indebtedness
pursuant to this Agreement after December 31, 1996 (or such later
date as shall be specified therefor in any extension of the FERC
Approval), the execution, delivery and performance by the Borrower
of this Agreement and the notes and the transactions contemplated
hereby and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other than those
already obtained or made and in full force and effect.
9. Amendment to Section 4.3 - Financial Statements. Section 4.3 of the
--------- -- ------- --- --------- ----------
Credit Agreement is hereby amended by substituting the date "December 31,
1994" for the date "December 31, 1991" therein and by deleting the second
sentence thereof.
10. Amendment to Section 4.6 - Litigation. Section 4.6 of the Credit
--------- -- ------- --- ----------
Agreement is hereby amended by substituting the date "December 31, 1994" for
the date "December 31, 1991" therein.
11. Amendment to Section 4.7 - Compliance with Other Instruments, Laws,
--------- -- ------- --- ---------- ---- ----- ------------ -----
Etc. Section 4.7 of the Credit Agreement is hereby amended by substituting
- ----
the date "December 31, 1994" for the date "December 31, 1991" therein.
12. Amendment to Section 5.1 - Punctual Payment. Section 5.1 of the
--------- -- ------- --- -------- -------
Credit Agreement is hereby amended by substituting the phrase "facility fee"
for the phrase "commitment fee" in the second sentence thereof.
13. Amendment to Section 5.8 - Compliance with Laws, Contracts,
--------- -- ------- --- ---------- ---- ----- ----------
Licenses, and Permits. Section 5.8 of the Credit Agreement is hereby
- --------- --- -------
amended by substituting the date December 31, 1994" for the date "December 31,
1991" therein.
14. Amendment to Section 7.2 - All Borrowings. Section 7.2 of the
--------- -- ------- --- --- ----------
Credit Agreement is hereby amended by inserting the following paragraph (d)
at the end thereof:
(d) Certificate of Capacity. The Borrower shall have delivered to
----------- -- --------
the Administrative Agent an Officers' Certificate certifying that
the Borrower has capacity to incur additional indebtedness in the
amount of the Loan then being requested pursuant to the terms of (i)
if the earliest possible Termination Date applicable to such Loan is
365 days or more after the Drawdown Date for such Loan, the then
applicable order of the DPU authorizing the Borrower to incur long-
term indebtedness and (ii) if earliest possible Termination Date
applicable to such Loan is less than 365 days after the Drawdown
Date for such Loan, the then applicable order of FERC authorizing
the Borrower to incur short-term indebtedness.
15. Amendment to Section 7.3 - Borrowings After December 31, 1996.
--------- -- ------- --- ---------- ----- -------- --- ----
Section 7.3 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
7.3 Borrowings After December 31, 1996. (i) In the case of each
---------- ----- -------- --- ----
Loan made after December 31, 1996 and prior to the Extension Date,
the Borrower shall have received an extension of the FERC Approval
authorizing the Borrower to incur indebtedness on the Drawdown Date
for such Loan, (ii) if the Extension Conditions shall have been
satisfied, in the case of each Loan made after the DPU Final
Incurrence Date but prior the Second Extension Date, the Borrower
shall have received an extension of the FERC Approval authorizing
the Borrower to incur indebtedness on the Drawdown Date for such
Loan, (iii) if the Second Extension Conditions shall have been
satisfied, in the case of each Loan made after the Second DPU Final
Incurrence Date, the Borrower shall have received an extension of
the FERC Approval authorizing the Borrower to incur indebtedness on
the Drawdown Date for such Loan, and (iv) notwithstanding the
foregoing , in the case of each Loan made after May 15, 1998, the
Borrower shall have received an extension of the FERC Approval
authorizing the Borrower to incur short-term indebtedness on the
Drawdown Date for such Loan, and, in the case of each clause (i),
(ii), (iii) and (iv), the Borrower shall have delivered a copy of
the applicable FERC Approval to the Administrative Agent, or shall
have delivered to the Administrative Agent an opinion of Ropes &
Gray, Borrower's counsel, that such approval is not required.
16. Amendment to Section 8 - Events of Default. Section 8(b) of the
--------- -- ------- - ------ -- -------
Credit Agreement is hereby amended by substituting the phrase "facility fee"
for the phrase "commitment fee" therein.
17. Amendment to Section 18 - Consents, Amendments, Waivers, Etc.
--------- -- ------- -- --------- ----------- -------- ----
Section 18 of the Credit Agreement is hereby amended by substituting the
phrase "facility fee" for the phrase "commitment fee" in the second sentence
thereof.
18. Amendment to Notices. Notwithstanding anything to the contrary set
--------- -- -------
forth in 15(d) of the Credit Agreement, the address for notices to each of
State Street Bank & Trust Company and Shawmut Bank, N.A., shall be that
address set forth for each such Bank in the signature pages hereof, or such
other address for notice as such Bank shall have last furnished in writing to
the Person giving such notice.
19. Conditions to Effectiveness. This Amendment shall become effective
---------- -- -------------
upon satisfaction of the following conditions:
(a) the execution of this Amendment by the Company, the Agents and
the Banks; and
(b) the delivery to the Banks from Messrs. Ropes & Gray, counsel to
the Borrower, a favorable legal opinion, dated as of the date hereof,
addressed to the Banks and substantially in the form of Exhibit A hereto.
------- -
20. No Other Amendments. Except as expressly provided in this
-- ----- ----------
Amendment, all of the terms and conditions of the Credit Agreement remain
unchanged, and the terms and conditions of the Credit Agreement as amended
hereby remain in full force and effect.
21. Execution in Counterparts. This Amendment may be executed in any
--------- -- ------------
number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
22. Miscellaneous. This Amendment shall be deemed to be a contract
-------------
under seal under the laws of The Commonwealth of Massachusetts and shall for
all purposes be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts. The captions in this Amendment are for
convenience of reference only and shall not define or limit the provisions
hereof.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
BOSTON EDISON COMPANY
By: /s/ Marc S. Alpert
-------------------------------------
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK OF BOSTON
as Co-Agent and Administrative Agent
By: /s/ Michael Kane
-------------------------------------
Title: Managing Director
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Michael Kane
-------------------------------------
Title: Managing Director
CITIBANK, N.A.
as Co-Agent
By: /s/ Paul J. Addison
-------------------------------------
Title: Attorney In Fact
CITIBANK, N.A.
By: /s/ Paul J. Addison
-------------------------------------
Title: Attorney In Fact
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Ronald L. Coleman
-------------------------------------
Title: Vice President
FLEET BANK OF MASSACHUSETTS, N.A.
By: /s/ Michael W. Borsey
-------------------------------------
Title: Vice President
BANK OF MONTREAL
By: /s/ John L. Smith
-------------------------------------
Title: Director
THE BANK OF NOVA SCOTIA
By: /s/ Michael R. Bradley
-------------------------------------
Title: Authorized Signatory
SWISS BANK CORPORATION
By: /s/ Darryl M. Monasebian
-------------------------------------
Title: Associate Director
Merchant Banking
By: /s/ John A. McCall
-------------------------------------
Title: Associate Director
THE BANK OF NEW YORK
By: /s/ John W. Hall
-------------------------------------
Title: Vice President
SHAWMUT BANK, N.A.
By: /s/ John P. Rafferty
-------------------------------------
Title: Director
One Federal Street, OF-0308
Boston, Massachusetts 02211
Attention: John P. Rafferty, Director
STATE STREET BANK & TRUST COMPANY
By: /s/ Lise Anne Boutiette
-------------------------------------
Title: Vice President
225 Federal Street
Boston, Massachusetts 02110
Attention: Lise Boutiette, Vice President