[Exhibit 4a to Colonial Gas Company Form 10-Q for the period
ended June 30, 1994]
BOS-BUS:65557
FIFTH AMENDMENT
Amendment Agreement dated as of June 16, 1994 by and among (a) COLONIAL
GAS COMPANY, a Massachusetts Corporation (the "Company"), (b) THE BANK OF
NOVA SCOTIA (the "New Bank"), (c) THE BANK OF NEW YORK and MELLON
BANK, N.A. (collectively, the "Departing Banks"), (d) ABN AMRO BANK N.V.,
BOSTON BRANCH (the successor to Algemene Bank Nederland N.V., Cayman Islands
Branch), THE FIRST NATIONAL BANK OF BOSTON, and SHAWMUT BANK, N.A.
(collectively, the "Existing Banks" and together with the New Bank and the
Departing Banks, the "Banks") and (e) THE FIRST NATIONAL BANK OF BOSTON, as
agent for the Banks (the "Agent"). This Amendment Agreement is to amend
certain of the provisions of the Revolving Credit Agreement dated as of June
27, 1990 (as amended, the "Agreement") by and among the Company, the Departing
Banks, the Existing Banks and the Agent. Terms used but not specifically
defined herein shall bear the same meanings herein as in the Agreement. This
Amendment Agreement is the fifth amendment to the Agreement.
Pursuant to a letter dated March 14, 1994, the Company reduced the
aggregate Commitments of the Banks from $60,000,000 to $40,000,000 on March
21, 1994. The Company, the Banks and the Agent agree now to amend the
Agreement to reflect the reduction in the Commitments effectuated by such
letter. The Company has advised the Banks and the Agent that the Company may
make a thirty (30) day borrowing under the Agreement and desires to extend the
Termination Date thereunder in order to accommodate that borrowing. Further,
the Company has notified the Departing Banks and the other Banks that it
wishes to repay the Departing Banks and to have each of the Departing Banks
terminate its Commitment, and each of the Departing Banks has consented to the
foregoing, and the New Bank has advised the Company and the other Banks that
it wishes to become a party to the Agreement, as amended hereby, and to
advance loans and to provide other financial accommodations to the Company
thereunder. Finally, each of the Existing Banks agrees to increase its
respective Commitments under the Agreement to compensate for the change in the
number of banks in the bank group from five to four.
To accomplish the foregoing, the Company, the Banks and the Agent agree as
follows:
1. Amendments. The Agreement is amended in the following respects:
(a) Preamble. The preamble is hereby amended by deleting the
references therein to "THE BANK OF NEW YORK" and "MELLON BANK, N.A." and by
inserting in place thereof a reference to "THE BANK OF NOVA SCOTIA".
(b) Section 1: Defined Term "Maximum Commitment". The defined
term "Maximum Commitment" appearing in Section 1 of the Agreement is
amended by deleting the dollar amount "$60,000,000" appearing in clause (a)
thereof and by substituting the dollar amount "$40,000,000" in place thereof.
(c) Section 1: Defined Term "Reference Banks". The defined term
"Reference Banks" appearing in Section 1 of the Agreement is amended by
deleting the reference therein to "Mellon Bank, N.A.".
(d) Section 1: Defined Term "Termination Date". The defined term
"Termination Date" appearing in Section 1 of the Agreement is amended by
substituting for the reference therein to the date "June 16, 1994" a reference
to "July 15, 1994".
(e) Section 2.1. The dollar amount "$60,000,000" appearing in two
places in Section 2.1 of the Agreement is hereby deleted from both such places
and the dollar amount "$40,000,000" is substituted in place thereof.
(f) Section 2.2(h). The parties hereto hereby acknowledge and agree
that the definition of "Revolving Credit Notes" shall be deemed to include the
Revolving Credit Notes delivered to the Existing Banks and the New Bank
pursuant to this Amendment Agreement.
(g) Section 5.1. The text of Section 5.1 of the Agreement is deleted
from the Agreement and the following is substituted in place thereof:
Section 5.1. Amount of Commitment. The respective amount of each
Bank's Commitment on the date hereof and its respective Commitment
Percentage shall be as follows:
Amount of Commitment
Lender Commitment Percentage
ABN AMRO Bank N.V., Boston Branch $8,000,000 20%
The Bank of Nova Scotia $10,000,000 25%
The First National Bank of Boston $12,000,000 30%
Shawmut Bank, N.A. $10,000,000 25%
(h) Exhibit A. Exhibit A to the Agreement is deleted in its entirety
and the form of Exhibit A attached hereto is substituted therefor. The
parties hereto hereby agree that each reference in the Agreement to the form
of Exhibit A shall henceforth be to the form of Exhibit A attached to this
Amendment Agreement.
2. Conditions to Effectiveness. The effectiveness of this Amendment
Agreement, and, specifically, the joinder of the New Bank hereto, the
termination of the Commitments of each of the Departing Banks and the
obligations of the Existing Banks and the New Bank to provide the financing
accommodations contemplated hereby, shall be subject to the satisfaction of
each of the following conditions precedent (the date on which all of the
following conditions precedent shall have been met hereinafter referred to
as, the "Effective Date"):
(a) Representations and Warranties. Each of the representations and
warranties made by or on behalf of the Company to the Existing Banks and the
Departing Banks in Section 8 of the Agreement shall be true and correct in all
material respects.
(b) Performance, etc. The Company shall have duly and properly
performed, complied with and observed each of its covenants, agreements and
obligations contained in the Agreement. No events shall have occurred or be
continuing, and no condition shall exist, that constitutes an Event of Default
or that would, with notice or the lapse of time, or both, constitute an Event
of Default.
(c) Officer's Certificate. The Company shall have provided such
certificates and other assurances in respect to its obligations and duties
hereunder as shall be satisfactory to the Existing Banks and the New Bank.
(d) Receipt of Revolving Credit Notes. Each Existing Bank and the
New Bank shall have received an executed promissory note in form and substance
satisfactory to each such Bank and substantially in the form of Exhibit A
hereto.
(e) Amendment to Trust Credit Agreement. Each Bank shall have
received an executed Fourth Amendment to the Trust Credit Agreement and all
of the conditions precedent to the effectiveness thereof shall have been fully
satisfied.
(f) Payment in Full to Departing Banks. The Company shall have paid
in full all of its Obligations owing to each of the Departing Banks and in
connection therewith each of the Departing Banks shall have executed and
delivered to the Company a release substantially in the form of Exhibit B
attached hereto.
3. Ratification and Joinder By New Bank. The Company and the Banks
hereby agree that from and after the Effective Date (a) the New Bank shall be
a party to the Agreement with all of the rights and obligations of a "Bank"
thereunder and with a Commitment in the amount set forth opposite such Bank's
name in the table set forth in Section 5.1 of the Agreement, as amended
hereby, (b) the New Bank agrees to be bound by all of the terms of the Loan
Documents as though such New Bank had originally been a party thereto, (c) the
Company agrees that the collateral granted by it to the Agent for the benefit
of the Banks pursuant to the Security Documents shall be deemed to be held
for the benefit of the New Bank as well as the Existing Banks, and (d) the
Agent agrees to hold such collateral for the benefit of the New Bank and the
Existing Banks and to act in its capacity as agent on behalf of the New Bank
as well as the Existing Banks.
4. Release by Departing Banks. Each of the Departing Banks hereby
agrees that, upon payment in full of the Obligations owing to it under the
Agreement and the Trust Credit Agreement, its Commitment shall terminate and
it shall execute and deliver to the Company a release substantially in the
form of Exhibit B hereto. As soon as practicable thereafter each of the
Departing Banks shall return to the Company the Revolving Credit Note
currently in its possession marked "Cancelled". The Company, the Banks and
the Agent agree that from and after the Effective Date, each of the Departing
Banks shall cease for all purposes to be a "Bank" under and as defined in the
Agreement and any collateral granted by the Company to the Agent for the
benefit of the Banks pursuant to the Security Documents shall cease to run for
the benefit of the Departing Banks.
5. Effect on Agreement. Except as, and to the extent, specifically
amended by this Amendment Agreement, the Agreement shall remain in full force
and effect and is hereby expressly ratified and confirmed in each and every
respect.
6. Provisions of General Applications.
(a) Governing Law. This Amendment Agreement is intended to take
effect as a sealed instrument. This Amendment Agreement and the respective
rights and obligations hereunder of the parties hereto shall be governed by
and interpreted in accordance with the laws of the Commonwealth of
Massachusetts.
(b) Headings. The headings of the sections and paragraphs of this
Amendment Agreement have been inserted for convenience of reference only and
shall not be deemed to be a part of this Amendment Agreement.
(c) Counterparts. This Amendment Agreement may be executed in any
number of counterparts but all of such counterparts shall together constitute
but one agreement. In making proof of this Amendment Agreement, it shall not
be necessary to produce or account for more than one counterpart signed by
each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be entered into as of this 16th day of June, 1994.
THE COMPANY:
COLONIAL GAS COMPANY
[Corporate Seal] By: Dennis W. Carroll
Title: Vice President & Treasurer
Attest:
THE NEW BANK:
THE BANK OF NOVA SCOTIA
By: Authorized Signatory
Title:
The Bank of Nova Scotia
101 Federal Street, 16th Floor
Boston, Massachusetts 02110
Attention: Michael Bradley
THE DEPARTING BANKS:
THE BANK OF NEW YORK
By:...........................
Title:
The Bank of New York
1 Wall Street, 19th Floor
New York, New York 10286
Attention: Dean Stephan
MELLON BANK, N.A.
By: Mary Ellen Usher
Title: Vice President
Mellon Bank, N.A.
1 Mellon Bank Center, Room 4425
Pittsburgh, Pennsylvania 15258-0001
Attention: Mary Ellen Usher
THE EXISTING BANKS:
ABN AMRO BANK N.V.,
BOSTON BRANCH
By: Lisa C. Sheehan
Title: A.V.P.
By: Authorized Signatory
Title: E.V.P.
ABN AMRO Bank N.V.
One Exchange Place
53 State Street
Boston, Massachusetts 02109
Attention: R.E. James Hunter
THE FIRST NATIONAL BANK
OF BOSTON
By: Daniel G. Head Jr.
Title: Vice President
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Attention: Daniel G. Head
SHAWMUT BANK, N.A.
By: Philip Messina
Title: Vice President
Shawmut Bank, N.A.
One Federal Street
Boston, Massachusetts 02211
Attention: Philip A. Messina
THE AGENT:
THE FIRST NATIONAL BANK
OF BOSTON, As Agent
By: Daniel G. Head Jr.
Title: Vice President
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Attention: Daniel G. Head
EXHIBIT A
REVOLVING CREDIT NOTE
$_________ June 16, 1994
FOR VALUE RECEIVED, the undersigned Colonial Gas Company, a Massachusetts
corporation (the "Company"), hereby absolutely and unconditionally promises to
pay to the order of [_________________________________] (the "Bank") at the
head office of The First National Bank of Boston, as Agent (the "Agent"), at
100 Federal Street, Boston, Massachusetts 02110:
(a) on July 15, 1994, the principal amount of ______________ Dollars
($__________) or, if less, the aggregate unpaid principal amount of Advances
made by the Bank to the Company pursuant to the Credit Agreement (as
hereinafter defined); and
(b) interest on the principal from time to time
outstanding from the date hereof through and including the date on which such
principal amount is paid in full, at the times and at the rates provided in
the Revolving Credit Agreement dated as of June 27, 1990, as amended or
supplemented from time to time (the "Credit Agreement"), by and among the
Company, the Bank and such other banks or financial institutions that are or
may become parties to the Credit Agreement from time to time in accordance
with the provisions thereof (the Bank and such other banks being collectively
referred to as the "Banks") and the Agent, as agent for the Banks.
This Note evidences borrowings under, is subject to the terms and
conditions of, and has been issued by the Company in accordance with the terms
of the Credit Agreement, and is one of the Revolving Credit Notes referred to
therein. The Bank and any holder hereof is entitled to the benefits of the
Credit Agreement and may enforce the agreements of the Company contained
therein, and any holder hereof may exercise the respective remedies provided
for thereby or otherwise available in respect thereof, all in accordance with
the respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Bank is hereby irrevocably authorized by the Company to endorse on
the schedule attached to this Note or a continuation of such schedule attached
hereto and made a part hereof, an appropriate notation evidencing advances and
repayments of principal of this Note, provided that failure by the Bank to
make any such notations shall not affect any of the Company's obligations or
the validity of any repayments made by the Company in respect of this Note.
The Company has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
The Company and every endorser and guarantor of this Note or the
obligation represented hereby waive presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, assent to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or
release of any other party or person primarily or secondarily liable.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IN WITNESS WHEREOF, Colonial Gas Company has caused this Note to be
signed by its duly authorized officer as of the day and year first above
written.
COLONIAL GAS COMPANY
[Corporate Seal]
By:...........................
Title:
Amount of Paid or Amount of Balance of Notation
Date Loan Prepaid Principal Principal Unpaid Made By
EXHIBIT B
[LETTERHEAD OF DEPARTING BANK]
as of June 16, 1994
Colonial Gas Company
40 Market Street
Lowell, Massachusetts 01853
Attention: Dennis W. Carroll, Vice President and Treasurer
Gentlemen:
This is to evidence and confirm that, in consideration of payments on
account of indebtedness made to us this date, you are hereby released and
discharged by the undersigned from your Obligations (as defined in the
Agreement as hereinafter defined) owing to the undersigned under (a) the
Revolving Credit Agreement dated as of June 27, 1990 (as amended, the
"Agreement") by and among Colonial Gas Company (the "Company"), ABN AMRO Bank
N.V., Boston Branch (the successor to Algemene Bank Nederland N.V., Cayman
Islands Branch), The Bank of New York, The First National Bank of Boston,
Mellon Bank, N.A. and Shawmut Bank, N.A. (collectively, the "Banks") and The
First National Bank of Boston, as agent for the Banks, (b) that certain
Revolving Credit Note dated as of July 27, 1993 issued by the Company to the
undersigned in the original principal amount of $12,000,000.00 (the "Revolving
Credit Note") and (c) the other Loan Documents (as defined in the Agreement).
The undersigned acknowledges full payment of all sums due by you to us under
the Agreement, the Revolving Credit Note and such other Loan Documents. The
undersigned also agrees to execute any further evidence of such discharge and
release as you may reasonably request from time to time.
Very truly yours,
[DEPARTING BANK]
By:...........................
Title:
[End of Exhibit 4A to Colonial Gas Company Form 10-Q for the
period ended June 30, 1994]