AMENDMENT NO.2
TO CREDIT AGREEMENT
AND OTHER LOAN DOCUMENTS
AMENDMENT NO. 2 dated as of December 31, 1996 ("Amendment No. 2") to the
CREDIT AGREEMENT dated as of December 31, 1994 (as amended and in effect
immediately prior to the date hereof, the "Credit Agreement"), by and among (a)
EASTERN ENTERPRISES, a Massachusetts voluntary association, BOSTON GAS COMPANY,
a Massachusetts corporation, MIDLAND ENTERPRISES INC., a Delaware corporation
(collectively the "Borrowers"), (b) FIFTH THIRD BANK, MELLON BANK, N.A., MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, NATIONAL WESTMINSTER BANK PLC ("NATWEST"),
FLEET NATIONAL BANK, THE BANK OF NOVA SCOTIA, and THE FIRST NATIONAL BANK OF
BOSTON (collectively, the "Banks"), and (c) THE FIRST NATIONAL BANK OF BOSTON,
as agent (in such capacity, the "Agent") for the Banks, AND OTHER LOAN
DOCUMENTS.
WHEREAS, the Borrowers, the Agent and the Banks have agreed to modify
certain terms and conditions of the Credit Agreement and the other Loan
Documents, as more fully set forth herein; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Borrowers, the Agent and the
Banks hereby agree as follows:
ss.1. DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein have the meanings given to such terms in the Credit Agreement, as
amended hereby.
ss.2. TERMINATION OF NATWEST AS PARTY TO CREDIT AGREEMENT. Upon the
effectiveness hereof, NatWest shall cease to be a party to the Credit Agreement
and the other Loan Documents.
ss.3. SUBSTITUTION OF NEW EXHIBIT A TO THE CREDIT AGREEMENT. The Credit
Agreement is hereby amended by deleting Exhibit A thereto in its entirety and
substituting in place thereof the form of Exhibit A attached hereto.
ss.4. REFERENCES TO SHAWMUT BANK, N.A. OR FLEET NATIONAL BANK OF
MASSACHUSETTS. Each reference in the Credit
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Agreement and the other Loan Documents to Shawmut Bank, N.A. or Fleet National
Bank of Massachusetts shall be deemed to be a reference to Fleet National Bank.
ss.5. EXTENSION OF TERMINATION DATE. Each of the Banks (other than
NatWest) hereby consents to the extension of its Commitment for an additional
one-year period expiring on December 31, 2001.
ss.6. CONDITIONS TO EFFECTIVENESS. This Amendment No. 2 shall be
effective as of the date hereof upon the satisfaction of each of the following
conditions:
(a) The Amendment. This Amendment No. 2 shall have been duly and
properly authorized, executed and delivered to the Agent by the Borrowers, the
Agent and the Banks, and shall be in full force and effect.
(b) Representations and Warranties; Absence of Default. Each of the
representations and warranties made by or on behalf of the Borrowers to the
Banks or the Agent in the Credit Agreement, as amended hereby, and the other
Loan Documents shall be true and correct in all material respects when made,
shall be repeated on and as of the date hereof, and shall be true and correct in
all material respects on and as of such date except, in each case, as affected
by the consummation of the transactions contemplated hereby or by the Loan
Documents and to the extent that such representation or warranty may relate by
its terms solely to a prior date, and no Default or Event of Default shall have
occurred and be continuing on the date hereof.
ss.7. RATIFICATION, ETC. Except as otherwise expressly set forth
herein, all terms and conditions of the Credit Agreement and the other Loan
Documents are hereby ratified and confirmed and shall remain in full force and
effect. Without limiting the generality of the foregoing, each of the Borrowers
expressly affirms all of its obligations under each of the Loan Documents to
which it is a party, including, without limitation, the Credit Agreement, as
amended hereby. Nothing herein shall be construed to be an amendment or a waiver
of any requirements of the Credit Agreement or of any of the other Loan
Documents except as expressly set forth herein.
ss.8. COUNTERPARTS. This Amendment No. 2 may be executed in any number
of counterparts, which together shall constitute one instrument.
ss.9. GOVERNING LAW. THIS AMENDMENT NO. 2 SHALL BE A CONTRACT UNDER
THE LAWS OF THE COMMONWEATLH OF MASSACHUSETTS, SHALL FOR ALL PURPOSES BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF
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SAID COMMONWEALTH, WITHOUT REFERENCE TO CONFLICTS OF LAW, AND IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 2 as an instrument under seal to be effective as of the date first above
written.
EASTERN ENTERPRISES
By: /s/Jean A. Scholtens
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Title: V.P. and Treasurer
BOSTON GAS COMPANY
By: /s/Jean A. Scholtens
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Title: Assistant Treasurer
MIDLAND ENTERPRISES INC.
By: /s/Robert L. Doettling
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Title: Senior Vice President Finance
THE FIRST NATIONAL BANK
OF BOSTON, Individually and as Agent
By: /s/George W. Passella
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Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/Michael R. Bradley
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Title: Senior Relationship Manager
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FIFTH THIRD BANK
By: /s/Kevin C.M. Jones
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Title: National Accounts Officer
MELLON BANK, N.A.
By: /s/Mary Ellen Usher
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Title: Vice President
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/Robert Bottamedi
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Title: Vice President
NATIONAL WESTMINSTER BANK PLC
By: /s/Stephan L. Cowan
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Title: Vice President
NATIONAL WESTMINSTER BANK PLC,
NASSAU BRANCH
By: /s/Stephan L. Cowan
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Title: Vice President
FLEET NATIONAL BANK
By: /s/Robert D. Lanigan
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Title: Director