Exhibit 10.37c
SECOND AMENDING AGREEMENT TO THE
KEYSPAN ENERGY DEVELOPMENT CO.
CREDIT AGREEMENT DATED AS OF JULY 29, 1999
AMONG:
KEYSPAN ENERGY DEVELOPMENT CO.
as Borrower
- and -
ROYAL BANK OF CANADA,
THE CHASE MANHATTAN BANK OF CANADA,
BANK OF MONTREAL,
BANK ONE CANADA
AND ALBERTA TREASURY BRANCHES
as Lenders
- and -
ROYAL BANK OF CANADA
as Administrative Agent
December 15, 2000
THIS SECOND AMENDING AGREEMENT dated as of the 15th day of December, 2000
AMONG:
KEYSPAN ENERGY DEVELOPMENT CO., a Nova Scotia unlimited liability
company (hereinafter referred to as the "Borrower")
OF THE FIRST PART
- and -
ROYAL BANK OF CANADA, THE CHASE MANHATTAN BANK OF CANADA, BANK OF
MONTREAL, BANK ONE CANADA AND ALBERTA TREASURY BRANCHES
(hereinafter sometimes collectively referred to as the "Lenders")
OF THE SECOND PART
- and -
ROYAL BANK OF CANADA, a Canadian chartered bank, as agent of the
Lenders hereunder (hereinafter referred to as the "Administrative
Agent")
OF THE THIRD PART
WHEREAS Keyspan Energy Development Co. as Borrower, Royal Bank of
Canada, The Chase Manhattan Bank of Canada, The Toronto-Dominion Bank, Bank of
Montreal, Bank One Canada (formerly known as First Chicago NBD Bank Canada),
Alberta Treasury Branches and National Bank of Canada as Lenders and Royal Bank
of Canada as Administrative Agent entered into a credit agreement dated as of
July 29, 1999;
AND WHEREAS the Borrower, the Lenders and the Administrative Agent
entered into a first amending agreement dated as of October 13, 2000 in
connection with the Borrower incurring indebtedness of up to Cdn. $125,000,000
for purposes of financing the purchase of Gulf Canada Resources Limited's
remaining interest in the Gulf Midstream assets and financing the acquisition,
constitution and expansion of gas processing and gathering assets;
AND WHEREAS the Borrower has requested that the Lenders consent to the
Borrower having incurred indebtedness of up to Cdn. $100,000,000 and acquiring
certain Subsidiaries in connection with certain reorganizational transactions
involving the Borrower and its Subsidiaries;
AND WHEREAS the Lenders have required that the Borrower, the Lenders
and the Administrative Agent enter into this Second Amending Agreement as one of
the conditions to the Lenders providing their consent to the Borrower incurring
that indebtedness and acquiring those additional Subsidiaries;
AND WHEREAS the Borrower, the Administrative Agent and the Lenders wish
to enter into this Second Amending Agreement to set forth the changes to the
Credit Agreement, and to otherwise confirm the provisions of Amended Credit
Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby conclusively
acknowledged by each of the parties hereto, the parties hereto covenant and
agree as follows:
1. Definitions
All capitalized terms used in this Second Amending Agreement shall,
unless otherwise defined herein, have the meanings herein given to them in the
Credit Agreement, and:
"Amended Credit Agreement" means the Credit Agreement, as amended by
this Second Amending Agreement, and as it may hereafter be further
amended from time to time.
"Credit Agreement" means the credit agreement dated as of July 29, 1999
among Keyspan Energy Development Co. as Borrower, Royal Bank of Canada
and the other financial institutions named therein from time to time as
Lenders and Royal Bank of Canada as Administrative Agent, as such
agreement was amended by the First Amending Agreement.
"First Amending Agreement" means the amending agreement dated as of
October 13, 2000 among Keyspan Energy Development Co. as Borrower,
Royal Bank of Canada, The Chase Manhattan Bank of Canada, Bank of
Montreal, Bank One Canada and Alberta Treasury Branches as Lenders and
Royal Bank of Canada as Administrative Agent.
"Nicodama" means Nicodama Beheer V B.V., a body corporate existing
under the laws of the Netherlands.
"Novation Agreement" means the novation agreement to be entered into
among the Borrower, KS Finance, Nicodama and the Administrative Agent
on behalf of the Lenders and pursuant to which Nicodama is to replace
KS Finance as the Subordinated Lender under the Subordination
Agreement.
"Second Amending Agreement" means the second amending agreement.
2. Amendments to Credit Agreement
Effective as of the date of this Second Amending Agreement, the Credit
Agreement is amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended as follows:
(i) The definition of "Documents" is hereby amended by replacing
the words "the Subordination Agreement" with the words "the
Keyspan Luxembourg Subordination Agreement, the Nicodama
Subordination Agreement".
(ii) The following definitions are hereby added immediately
following the definition of "Investment":
"Keyspan Luxembourg" means Keyspan Luxembourg S.A.R.L., a
body corporate existing under the laws of Luxembourg.
"Keyspan Luxembourg Subordination Agreement" means the
subordination and postponement agreement to be entered into
among the Borrower, the Administrative Agent on behalf of
the Lenders and Keyspan Luxembourg, substantially in the
form annexed hereto as Schedule K, mutatis mutandis.
(iii)The definition of "KS Finance Loan" is hereby amended by
replacing all of the text that follows the words "(the "Term
Loan Agreement")," with the following:
"which Term Loan Agreement:
(a) was assigned and transferred by Royal Bank of Canada to
KS Finance by way of an Assignment and Assumption
Agreement entered into among Royal Bank of Canada as
assignor, the Borrower and KS Finance as assignee,
dated April 27, 1999;
(b) was assigned and transferred by KS Finance to Lonfine
Properties Limited ("Lonfine") by way of an Assignment
and Assumption Agreement entered into among KS Finance
as assignor, the Borrower and Lonfine as assignee;
(c) was distributed to Keyspan Luxembourg as a result of
the liquidation of Lonfine effective December 23, 1999;
(d) was assigned and transferred by Keyspan Luxembourg to
KS Finance Co. by way of an Assignment and Assumption
Agreement entered into among Keyspan Luxembourg as
assignor, the Borrower and KS Finance Co. as assignee;
(e) was assigned and sold by KS Finance Co. to Keyspan
Luxembourg by way of an Assignment and Assumption
Agreement entered into between KS Finance Co. as
assignor and Keyspan Luxembourg as assignee;
(f) was amended and restated by Keyspan Luxembourg and the
Borrower effective as of March 15, 2000; and
(g) as so amended and restated, was assigned and sold by
Keyspan Luxembourg to Nicodama with all of Keyspan
Luxembourg's right, title and interest in and to the
Term Loan Agreement, as so amended and restated,
pursuant to an Assignment and Assumption Agreement
dated as of March 15, 2000 entered into among Keyspan
Luxembourg as assignor, the Borrower and Nicodama as
assignee."
(iv) The following definitions are hereby added immediately
following the definition of "Moody's":
"Nicodama" means Nicodama Beheer V B.V., a body corporate
existing under the laws of the Netherlands.
"Nicodama Subordination Agreement" means the subordination
and postponement agreement dated as of July 29, 1999 among
the Borrower, the Administrative Agent on behalf of the
Lenders and KS Finance, and in respect of which: (i) the
Subordinated Indebtedness (as defined therein) has been
assigned, transferred and sold, ultimately to Nicodama,
through a series of transactions described in the definition
of "KS Finance Loan"; and (ii) Nicodama will replace KS
Finance as the Subordinated Lender thereunder pursuant to a
novation agreement to be entered into among the Borrower, KS
Finance, Nicodama and the Administrative Agent on behalf of
the Lenders.
(v) The definition of "Partnership" is hereby amended by
deleting that definition in its entirety and replacing it
with the following:
"Partnership" means the general partnership: (i) known as at
July 29, 1999 as the Gulf Midstream Services Partnership;
(ii) formed December 1, 1998; (iii) the partners of which
were then GCRL, the Borrower and GMSL; (iv) now known as the
Keyspan Energy Canada Partnership by virtue of a name change
made on October 16, 2000; and (v) the partners of which are,
as of the date hereof, the Borrower, GMSL (which is now
known as Keyspan Energy Canada Inc. as a result of articles
of amendment filed on October 16, 2000) and Solex.
(vi) The definition of "Partnership Agreement" is hereby amended
by deleting the period at the end of the definition and
adding the words ", as may be amended from time to time.".
(vii)The definition of "Partnership Parties" is hereby amended
by replacing the words "and GMSL" with the words ", GMSL and
Solex".
(viii) The definition of "Permitted Indebtedness" is hereby
amended by adding the following paragraph immediately
following paragraph (a):
(a.1)Debt in the principal amount of up to Cdn.
$100,000,000, and all interest thereon, owing to
Keyspan Luxembourg and which is fully subordinated to
the Obligations pursuant to the Keyspan Luxembourg
Subordination Agreement;
(ix) The following definition is hereby added immediately
following the definition of "Security Interest":
"Solex" means Solex Production Ltd., a corporation existing
under the laws of Alberta.
(x) The definition of "Subordination Agreement" is hereby
deleted in its entirety.
(xi) The definition of "Subsidiary" is hereby amended by
replacing the words "and GMSL" in the last line thereof with
the words ", GMSL, Solex and TNG Liquids".
(xii)The following definition is hereby added immediately
following the definition of "Termination Event":
"TNG Liquids" means TNG Liquids Ltd., a corporation existing
under the laws of Alberta.
(b) Section 8.1(n) of the Credit Agreement is hereby amended by
replacing the reference in the third line thereof to "KS Finance"
with "Nicodama", and by replacing the words "and (iii)" in the
second last line thereof with the following:
"(iii) indebtedness in the principal amount of up to Cdn.
$100,000,000, and interest thereon, pursuant to a
promissory note dated December 1, 2000 granted by the
Borrower to Keyspan Luxembourg, and (iv)"
(c) Section 9.1(j) of the Credit Agreement is hereby amended by
replacing the words "(other than the KS Finance Loan)" with the
words "(other than the KS Finance Loan and the Debt of the
Borrower that is subordinated to the Obligations pursuant to the
Keyspan Luxembourg Subordination Agreement)".
(d) Section 10.1(n) of the Credit Agreement is hereby amended by
replacing the words "or the Guarantee or the Subordination
Agreement" with the words ", the Guarantee, the Nicodama
Subordination Agreement or the Keyspan Luxembourg Subordination
Agreement,".
3. Conditions Precedent
The amendments to the Credit Agreement set forth in Section 2 of this
Second Amending Agreement shall not be effective unless the following conditions
have been fulfilled to the satisfaction of the Administrative Agent:
(a) each of the Borrower, KS Finance and Nicodama shall have duly
executed and delivered to the Administrative Agent the Novation
Agreement, in form and substance satisfactory to the
Administrative Agent;
(b) each of the Borrower and Keyspan Luxembourg shall have duly
executed and delivered to the Administrative Agent the Keyspan
Luxembourg Subordination Agreement;
(c) the Administrative Agent shall have received favourable opinions
of counsel to the Borrower, Nicodama and Keyspan Luxembourg in
form and substance satisfactory to the Administrative Agent or,
in the alternative, an undertaking of the Borrower to use its
best efforts to cause the delivery of such opinions to the
Administrative Agent within 40 days of the date of this Second
Amending Agreement;
(d) the Administrative Agent shall have received from the Guarantor a
confirmation of the Guarantee in form and substance satisfactory
to the Administrative Agent regarding the amendments to the
Credit Agreement set forth in this Second Amending Agreement;
(e) the Administrative Agent shall have received from the Borrower a
certified copy of the Keyspan Luxembourg Credit Agreement (as
that term is defined in the Keyspan Luxembourg Subordination
Agreement) and the Nicodama Credit Agreement (as that term is
defined in the Novation Agreement); and
(f) no Default or Event of Default shall have occurred and be
continuing, and the Administrative Agent shall have received a
certificate of an officer of the Borrower to that effect.
The Administrative Agent shall forthwith advise the Borrower when all
of the foregoing conditions in this Section 3 have been satisfied.
4. Representations and Warranties
The Borrower hereby represents and warrants to the Lenders that the
applicable representations and warranties contained in Section 8.1 of the Credit
Agreement, as amended by this Second Amending Agreement, are true and accurate
in all material respects as if made on the date of this Second Amending
Agreement.
5. Confirmation
Each of the parties hereto acknowledges and agrees that the Credit
Agreement, as amended by this Second Amending Agreement, and all other Documents
are and will continue to be in full force and effect, and are hereby ratified
and confirmed, and the rights and obligations of all parties thereunder will not
be affected in any manner by the provisions of this Second Amending Agreement,
except as expressly provided in Section 2 of this Second Amending Agreement.
6. Further Assurances
The Borrower will from time to time forthwith, and at the Borrower's
own cost and expense, do, make, execute and deliver, or cause to be done, made,
executed and delivered, all such further documents, financing statements,
assignments, acts, manners and things which may be reasonably required by the
Administrative Agent and are consistent with the intention of the parties hereto
as evidenced herein, with respect to all matters arising under this Second
Amending Agreement or the Amended Credit Agreement.
7. Expenses
Without in any way limiting the provisions of Section 12.1 of the
Credit Agreement, the Borrower will be liable for all reasonable expenses of the
Administrative Agent and the Lenders, including legal fees, the fees and
expenses of the Administrative Agent and other out-of-pocket expenses, in
connection with the negotiation, preparation, execution and delivery of this
Second Amending Agreement.
8. Counterparts
This Second Amending Agreement may be executed in any number of
counterparts, each of which when executed and delivered will be deemed to be an
original, and all of which when taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF the parties hereto have caused this Second Amending
Agreement to be duly executed by their respective authorized officers as of the
date and year first above written.
KEYSPAN ENERGY DEVELOPMENT CO., as Borrower
Per:
-------------------------------------------
Name:
Title:
Per:
-------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA, in its capacity as
Administrative Agent
Per:
--------------------------------------------
Name:
Title:
Per:
-------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA, as a Lender
Per:
--------------------------------------------------
Name:
Title:
Per:
--------------------------------------------------
Name:
Title:
This page is attached to and forms part of a Second Amending Agreement dated as
of December __, 2000 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, The Chase Manhattan Bank of Canada, Bank of Montreal, Bank One
Canada and Alberta Treasury Branches as Lenders and Royal Bank of Canada as
Administrative Agent.
THE CHASE MANHATTAN BANK OF CANADA, as a Lender
Per:
----------------------------------------------
Name:
Title:
Per:
----------------------------------------------
Name:
Title:
This page is attached to and forms part of a Second Amending Agreement dated as
of December __, 2000 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, The Chase Manhattan Bank of Canada, Bank of Montreal, Bank One
Canada and Alberta Treasury Branches as Lenders and Royal Bank of Canada as
Administrative Agent.
BANK OF MONTREAL, as a Lender
Per:
--------------------------------------------
Name:
Title:
Per:
--------------------------------------------
Name:
Title:
This page is attached to and forms part of a Second Amending Agreement dated as
of December __, 2000 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, The Chase Manhattan Bank of Canada, Bank of Montreal, Bank One
Canada and Alberta Treasury Branches as Lenders and Royal Bank of Canada as
Administrative Agent.
BANK ONE CANADA, as a Lender
Per:
------------------------------------------
Name:
Title:
Per:
------------------------------------------
Name:
Title:
This page is attached to and forms part of a Second Amending Agreement dated as
of December __, 2000 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, The Chase Manhattan Bank of Canada, Bank of Montreal, Bank One
Canada and Alberta Treasury Branches as Lenders and Royal Bank of Canada as
Administrative Agent.
ALBERTA TREASURY BRANCHES, as a
Lender
Per:
---------------------------------------------
Name:
Title:
Per:
--------------------------------------------
Name:
Title:
This page is attached to and forms part of a Second Amending Agreement dated as
of December __, 2000 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, The Chase Manhattan Bank of Canada, Bank of Montreal, Bank One
Canada and Alberta Treasury Branches as Lenders and Royal Bank of Canada as
Administrative Agent.