SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
X For the quarterly period ended June 30, 1994
OR
Transition Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the transition period from to
COMMISSION FILE NUMBER 0-10007
COLONIAL GAS COMPANY
(Exact name of registrant as specified in its charter)
Massachusetts
(State or other jurisdiction of incorporation or organization)
04-1558100
(I.R.S. Employer Identification Number)
40 Market Street, Lowell, Massachusetts 01852
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (508) 458-3171
Former name, former address and former fiscal year, if
changed since last report: Not applicable
Indicate by check mark whether the registrant (1) has
filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes No
X
The number of shares of the registrant's common stock,
$3.33 par value, outstanding as of August 1, 1994 was 8,135,618.
COLONIAL GAS COMPANY
INDEX
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Condensed Statements of Income -
Three Months Ended June 30, 1994 and 1993
Six Months Ended June 30, 1994 and 1993
Twelve Months Ended June 30, 1994 and 1993
Consolidated Condensed Balance Sheets -
June 30, 1994, December 31, 1993 and June 30, 1993
Consolidated Condensed Statements of Cash Flows -
Six Months Ended June 30, 1994 and 1993
Twelve Months Ended June 30, 1994 and 1993
Notes to Consolidated Condensed Financial Statements
Item 2. Management's Discussion and Analysis of Results of
Operations and Financial Condition
PART II - OTHER INFORMATION
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
COLONIAL GAS COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(UNAUDITED)
Three Months Ended
June 30,
1994 1993
(In Thousands Except
Per Share Amounts)
Operating Revenues $19,073 $20,587
Cost of gas sold 10,328 11,689
Operating Margin 8,745 8,898
Operating Expenses:
Operations 8,152 8,293
Maintenance 1,477 1,353
Depreciation and Amortization 2,283 1,634
Taxes, other than income 1,145 981
Total Operating Expenses 13,057 12,261
Income Taxes (2,463) (1,946)
Utility Operating Loss (1,849) (1,417)
Other Operating Income (Loss):
Truck transportation revenues 3,430 982
Truck transportation expenses,
including income taxes and interest (2,925) (1,017)
Truck transportation net income 505 (35)
Other, net of income taxes (45) (61)
Total Other Operating Income (Loss) 460 (96)
Non-Operating Income, Net 155 351
Loss Before Interest and Debt Expense (1,234) (1,162)
Interest and Debt Expense 2,104 2,073
Net Loss $(3,338) $(3,235)
Average Common Shares Outstanding 8,104 7,908
Loss per Average Common Share $ (0.41) $ (0.41)
Dividends Paid per Common Share $ .315 $ .310
(See accompanying notes to consolidated condensed financial statements)
COLONIAL GAS COMPANY AND SUBSIDIAIRIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(UNAUDITED)
Six Months Ended
June 30,
1994 1993
(In Thousands Except
Per Share Amounts)
Operating Revenues $105,156 $98,713
Cost of gas sold 56,537 54,700
Operating Margin 48,619 44,013
Operating Expenses:
Operations 18,016 17,255
Maintenance 3,072 2,683
Depreciation and Amortization 4,567 3,267
Taxes, other than income 2,235 2,084
Total Operating Expenses 27,890 25,289
Income Taxes 6,821 5,876
Utility Operating Income 13,908 12,848
Other Operating Income (Loss):
Truck transportation revenues 7,278 2,448
Truck transportation expenses,
including income taxes and interest (6,115) (2,787)
Truck transportation net income (loss) 1,163 (339)
Other, net of income taxes (91) (90)
Total Other Operating Income (Loss) 1,072 (429)
Non-Operating Income, Net 177 386
Income Before Interest and Debt Expense 15,157 12,805
Interest and Debt Expense 4,096 4,006
Net Income $11,061 $ 8,799
Average Common Shares Outstanding 8,069 7,886
Income per Average Common Share $ 1.37 $ 1.12
Dividends Paid per Common Share $ 0.625 $ 0.615
(See accompanying notes to consolidated condensed financial statements)
COLONIAL GAS COMPANY AND SUBSIDIAIRIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(UNAUDITED)
Twelve Months Ended
June 30,
1994 1993
(In Thousands Except
Per Share Amounts)
Operating Revenues $172,704 $161,432
Cost of gas sold 92,752 88,651
Operating Margin 79,952 72,781
Operating Expenses:
Operations 33,546 33,095
Maintenance 6,020 5,420
Depreciation and Amortization 8,093 6,214
Taxes, other than income 4,007 3,790
Total Operating Expenses 51,666 48,519
Income Taxes 8,336 6,582
Utility Operating Income 19,950 17,680
Other Operating Income (Loss):
Truck transportation revenues 12,388 8,391
Truck transportation expenses,
including income taxes and interest (10,491) (8,367)
Truck transportation net income 1,897 24
Other, net of income taxes (188) (162)
Total Other Operating Income (Loss) 1,709 (138)
Non-Operating Income, Net 856 1,077
Income Before Interest and Debt Expense 22,515 18,619
Interest and Debt Expense 8,231 8,174
Net Income $14,284 $10,445
Average Common Shares Outstanding 8,022 7,835
Income per Average Common Share $ 1.78 $ 1.33
Dividends Paid per Common Share $ 1.245 $ 1.218
(See accompanying notes to consolidated condensed financial statements)
COLONIAL GAS COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
ASSETS
June 30, December 31, June 30,
1994 1993 1993
(Unaudited) (Unaudited)
(In Thousands)
Utility Property:
At original cost $269,511 $260,570 $246,070
Accumulated depreciation (62,590) (57,857) (56,037)
Net utility property 206,921 202,713 190,033
Non-Utility Property - Net 3,007 3,235 3,207
Net property 209,928 205,948 193,240
Capital Leases - Net 3,276 3,914 3,976
Current Assets:
Cash and cash equivalents 8,487 5,482 4,801
Accounts receivable 12,346 16,156 13,323
Allowance for
doubtful accounts (3,159) (1,682) (2,727)
Accrued utility revenues 619 7,170 492
Unbilled gas costs 4,159 16,759 7,587
Fuel and other inventories 13,877 17,529 13,571
Prepayments and other
current assets 6,458 6,254 6,002
Total current assets 42,787 67,668 43,049
Deferred Charges and Other Assets:
Unrecovered deferred
income taxes 12,301 12,689 12,369
Unrecovered environmental
expenses - incurred 4,028 4,062 3,003
Unrecovered environmental
expenses - accrued 5,300 5,300 13,800
Unrecovered transition
costs - accrued 2,000 2,000 -
Other 11,921 10,537 9,640
Total deferred charges
and other assets 35,550 34,588 38,812
Total Assets $291,541 $312,118 $279,077
(See accompanying notes to consolidated condensed financial statements)
COLONIAL GAS COMPANY AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
LIABILITIES AND CAPITALIZATION
June 30, December 31, June 30,
1994 1993 1993
(Unaudited) (Unaudited)
(In Thousands)
Capitalization:
Common equity:
Common Stock - par value $3.33 per share
Authorized - 15,000 shares
Issued and outstanding - 8,118,
8,030 and 7,938 shares $27,032 $26,739 $26,432
Premium on common stock 47,369 45,799 43,948
Retained earnings 27,763 21,745 23,466
Total Common equity 102,164 94,283 93,846
Long-term debt 82,364 87,432 87,432
Total capitalization 184,528 181,715 181,278
Capital Lease Obligations 2,538 3,149 3,165
Current Liabilities:
Current maturities of
long-term debt 3,318 3,318 3,318
Current capital lease
obligations 738 765 811
Notes payable 18,000 32,600 6,700
Gas inventory purchase
obligations 7,723 15,233 6,990
Accounts payable 8,453 12,161 7,030
Accrued pipeline charges - 305 483
Other 11,520 9,031 12,355
Total current liabilities 49,752 73,413 37,687
Deferred Credits and Reserves:
Deferred income taxes-funded 24,726 23,395 20,343
Deferred income taxes-unfunded 12,301 12,689 12,369
Accrued environmental expenses 5,300 5,300 13,800
Accrued transition costs 2,000 2,000 -
Other 10,396 10,457 10,435
Total deferred credits
and reserves 54,723 53,841 56,947
Total Capitalization
and Liabilities $291,541 $312,118 $279,077
(See accompanying notes to consolidated condensed financial statements)
COLONIAL GAS COMPANY AND SUBSIDIAIRIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
Six Months Ended
June 30,
1994 1993
(In Thousands)
Cash Flows From Operating Activities:
Net income $11,061 $ 8,799
Adjustments to reconcile net income to net cash 8,160 29,637
Changes in current assets and liabilities 24,290 (640)
Net cash provided by operating activities 43,511 37,796
Cash Flows From Investing Activities:
Capital expenditures (9,091) (9,057)
Change in deferred accounts (1,057) 1,404
Net cash used in investing activities (10,148) (7,653)
Cash Flows From Financing Activities:
Dividends paid on Common Stock (5,043) (4,849)
Issuance of Common Stock 1,863 2,125
Issuance of long-term debt - -
Retirement of long-term debt (5,068) (1,500)
Change in notes payable (14,600) (17,800)
Change in gas inventory purchase obligations (7,510) (7,751)
Net cash used in financing activities (30,358) (29,775)
Net increase in cash and cash equivalents 3,005 368
Cash and cash equivalents at beginning of period 5,482 4,433
Cash and cash equivalents at end of period $ 8,487 $ 4,801
Supplemental Disclosures of Cash Flow Information:
Cash paid during the period for:
Interest - net of amount capitalized $ 4,580 $ 4,497
Income and franchise taxes $ 4,287 $ 2,472
(See accompanying notes to consolidated condensed financial statements)
COLONIAL GAS COMPANY AND SUBSIDIAIRIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
Twelve Months Ended
June 30,
1994 1993
(In Thousands)
Cash Flows From Operating Activities:
Net income $14,284 $10,445
Adjustments to reconcile net income to net cash 11,899 11,107
Changes in current assets and liabilities 1,890 3,042
Net cash provided by operating activities 28,073 24,594
Cash Flows From Investing Activities:
Capital expenditures (25,566) (25,798)
Change in deferred accounts 179 3,590
Net cash used in investing activities (25,387) (22,208)
Cash Flows From Financing Activities:
Dividends paid on Common Stock (9,987) (9,599)
Issuance of Common Stock 4,021 4,341
Issuance of long-term debt - -
Retirement of long-term debt (5,068) (4,500)
Change in notes payable 11,300 6,700
Change in gas inventory purchase obligations 734 (638)
Net cash provided by (used in)
financing activities 1,000 (3,696)
Net increase in cash and cash equivalents 3,686 (1,310)
Cash and cash equivalents at beginning of period 4,801 6,111
Cash and cash equivalents at end of period $ 8,487 $ 4,801
Supplemental Disclosures of Cash Flow Information:
Cash paid during the period for:
Interest - net of amount capitalized $ 9,064 $ 8,918
Income and franchise taxes $ 6,753 $ 3,655
(See accompanying notes to consolidated condensed financial statements)
COLONIAL GAS COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
1. In the opinion of the Company, the accompanying
unaudited consolidated condensed financial statements
contain all adjustments (consisting of only normal
recurring accruals) necessary to present fairly the
financial position as of June 30, 1994 and 1993 and
results of operations for the three, six and twelve month
periods ended June 30, 1994 and 1993 and cash flows for
the six and twelve month periods ended June 30, 1994 and 1993.
2. Due to the significant impact of gas used for space
heating during the heating season (November-April) and
the Company's seasonal rate structure, the results of
operations for the three month and six month periods
ending June 30, 1994 and 1993 are not necessarily
indicative of the results to be expected for the full year.
3. During the six months ended June 30, 1994, the Company
issued 87,752 shares of Common Stock, $3.33 par value,
under a Dividend Reinvestment and Common Stock Purchase
Plan and under Employee Savings Plans. As a result,
Common Stock, $3.33 par value, increased $293,000 and
Premium on Common Stock increased $1,570,000.
4. By Order dated June 24, 1994, the DPU opened an
investigation "for the purpose of setting standards for the
recovery by Massachusetts gas utilities of FERC Order 636 -
related transition costs billed by interstate gas pipeline
companies." Order 636 of the Federal Energy Regulatory Commission
(FERC) required interstate pipelines to unbundle their
supply and transportation services. In the unbundling
process, the interstate pipelines have incurred
substantial costs -- the "transition costs" referenced in
the DPU's June 24, 1994 Order. FERC has allowed the
pipelines to recover prudently incurred transition costs
from customers such as the Company. The Company has, in
turn, sought and to-date received DPU approval to recover
these costs from its customers through its cost of gas
adjustment clause (CGAC). Although the DPU in its June 24,
1994 Order indicated it would examine, among other issues,
"whether utility shareholders should bear any portion of the
transition costs," the Company believes that there is strong
legal precedent to support the position that the transition
costs should continue to be borne entirely by customers.
Accordingly, the Company continues to record on its balance
sheet a long term liability of $2,000,000 ("Accrued Transition
Costs") and a matching regulatory asset of $2,000,000
("Unrecovered Transition Costs Accrued").
5. Contingencies
Reference is made to Note J/Contingencies of the Notes to
Consolidated Financial Statements contained within the
Company's 1993 Annual Report to Stockholders.
Item 2. Management's Discussion and Analysis of Results of Operations
and Financial Condition
Results of Operations
Three Months Ended June 30, 1994 and June 30, 1993
The Company's net loss for the three months ended June 30,
1994 was $3,338,000, which is 3.2% or $103,000 more than the
$3,235,000 loss reported for the same period last year. The
principal reasons for this change are described below. The
Company typically incurs losses for the second and third
quarters while reporting profits for the first and fourth
quarters. This is due to significantly higher natural gas
sales throughout the colder months to meet customers'
heating needs. Approximately 90% of the Company's customers
are residential accounts.
The Company's operating margin declined 1.7% or $153,000
during the second quarter due to lower firm gas sales
resulting from weather which was 4.6% warmer than the
comparable period last year and 2.8% warmer than normal.
Total operating expenses increased by 6.5% or $796,000
primarily due to a $649,000 increase in depreciation and
amortization expense based on the higher depreciation rates
approved with the Company's 1993 rate increase.
Income taxes credit increased $517,000 or 27% due to an
increase in operating loss.
Other operating income rose $556,000 due to a $540,000
increase in the net income of Transgas Inc., the Company's
energy trucking subsidiary. The extremely cold winter of
1993-94 continued to heighten demand for Transgas' liquefied
natural gas (LNG) services during the second quarter of
1994. Following the busiest period in Transgas' history
during the first three months of the year, the subsidiary
maintained its strong momentum throughout the second quarter
as local distribution companies refilled their LNG
inventories to pre-winter conditions. Transgas delivered
4,860 loads of LNG during the second quarter of 1994
compared to 1,780 loads during the same period last year.
The subsidiary's activity level is expected to remain high
over the next quarter.
Six Months Ended June 30, 1994 and 1993
Net income for the six months ended June 30, 1994 was
$11,061,000, compared to $8,799,000 for the comparable 1993
period. This $2,262,000 or 26% increase is due to factors
described below.
The 11% or $4,606,000 improvement in the Company's
operating margin during the period was due to higher firm
gas sales (resulting from annualized customer growth of 2.8% and
weather which was 2.4% colder than the comparable period last year
and 11% colder than normal) and a 4.9% rate increase
effective November 1, 1993.
Total operating expenses increased by 10% or $2,601,000,
of which depreciation and amortization expense increased
$1,300,000, due to higher depreciation rates approved with
the Company's 1993 rate increase. Operations expense
increased by $761,000; including an increase of $277,000 in
wages and $277,000 in direct labor fringe benefit costs.
Income taxes increased $945,000 or 16% due to a higher
level of income subject to tax.
Other operating income increased $1,501,000 due to
improved results for Transgas. This increase in earnings is
attributable to the extreme cold weather, which saw Transgas
LNG and propane loads increase 236% over last year. Also,
portable pipeline revenue increased $898,000 or 295% over
last year.
Twelve Months Ended June 30, 1994 and 1993
Net income for the twelve-month period ending June 30,
1994 was $14,284,000 compared to $10,445,000 for the same
period in 1993. This 37% or $3,839,000 increase is due to
factors described below.
The 9.9% or $7,171,000 improvement in the Company's
operating margin during the period was due to higher firm
gas sales resulting from continued customer growth (which
in the current year was 2.8%) and an increase in rates
effective November 1, 1993. Weather was 1.1% colder than
the comparable twelve-month period and 9.1% colder than normal.
Total operating expenses increased by 6.5% or $3,147,000,
of which depreciation and amortization expense increased
$1,879,000, due to higher depreciation rates approved with
the Company's 1993 rate increase.
Income taxes increased $1,754,000 or 27% due to a higher
level of income subject to tax.
Other operating income increased $1,847,000 due to the
significant increase in LNG delivery and vaporization
services provided by Transgas resulting from the heightened
demand for LNG as a result of the extremely cold 1993-94
winter.
Liquidity and Capital Resources
In July 1994, the Company established a bank
line of credit of $75,000,000 with a consortium of four
banks to replace its expiring $60,000,000 bank line of
credit. The $75,000,000 bank line of credit expires on June
15, 1997. The bank line of credit allows the Company to borrow
from time to time up to $75,000,000, less whatever amount
has been borrowed through the Company's gas inventory trust
(described below). The line of credit allows the Company the
option to borrow under four alternative rates: prime rate,
certificate of deposit rate, eurodollar rate (LIBOR), and a
competitive bid option.
The Company has an agreement with a single-purpose
Massachusetts trust, the Company's gas inventory trust,
under which the Company sells supplemental gas inventory to
the trust at the Company's cost. The Company's agreement
with the trust requires it to repurchase such inventory at
cost when needed and to reimburse the trust for expenses
incurred to finance the gas inventory. The trust finances
such purchases of inventory by borrowing under a bank line
of credit with a maximum borrowing commitment of $30,000,000
that is complementary to and on similar terms as the
Company's bank line of credit described above.
On May 31, 1994, the Company received approval from the
Massachusetts Department of Public Utilities (DPU) for authority
to issue and sell up to 400,000 additional shares of Common
Stock, $3.33 par value, pursuant to its Dividend
Reinvestment and Common Stock Purchase Plan and 75,000
additional shares of Common Stock, $3.33 par value, pursuant
to its Cape Cod Division Savings Plan for Local 13507 United
Steelworkers of America AFL-CIO-CLC.
PART II - OTHER INFORMATION
Item 5. Other Information
Effective May 1, 1994 F.L. Putnam III, formerly Executive
Vice President and General Manager, replaced C.O. Swanson as
President upon Mr. Swanson's retirement.
On August 3, 1994, the DPU issued its Order in its
investigation on the establishment of guidelines and standards
for mergers and acquisitions of Massachusetts utilities. In its
Order, the DPU stated that a merger or acquisition constitutes
one of several measures utilities in Massachusetts should be
considering in order to achieve savings, efficiencies, increased
reliability and better quality of service. Accordingly, the
DPU discarded its previous position that the recovery of
acquisition premiums by an acquiring utility was per se
impermissible. Instead, the DPU will consider utility merger
or acquisition proposals that seek recovery of an
acquisition premium on a case-by-case basis and in light of
the demonstrated benefits and costs of each particular
proposal.
In addition, this Order sets forth the DPU's intention of
opening next month a separate investigation into performance-
based regulation of utilities. The DPU indicated that it
recognizes the potential value of regulatory mechanisms different
than the current cost of service/rate of recovery system.
According to the Order, alternative regulatory mechanisms are
yet another measure for utilities to consider as a means to
improve performance, and proposals for such mechanisms will be
encouraged.
Item 6. Exhibits and Reports on Form 8-K
a. List of Exhibits
Exhibit No. Exhibit
4a Fifth Amendment to the Revolving Credit
Agreement with Colonial Gas Company,
dated as of June 16, 1994.
4b Sixth Amendment to the Revolving Credit
Agreement with Colonial Gas Company,
dated as of July 13, 1994.
4c Fourth Amendment to the Revolving Credit
Agreement with Massachusetts Fuel Inventory
Trust, dated as of June 16, 1994.
4d Fifth Amendment to the Revolving Credit
Agreement with Massachusetts Fuel Inventory
Trust, dated as of July 13, 1994.
b. Reports on Form 8-K
There were no reports filed on Form 8-K for the quarter
ended June 30, 1994.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly authorized.
COLONIAL GAS COMPANY
(Registrant)
Date: August 12, 1994 F.L. Putnam III
President
Date: August 12, 1994 Nickolas Stavropoulos
Vice President - Finance and
Chief Financial Officer
[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]
[Exhibit 4B to Colonial Gas Company Form 10-Q for the period ended
June 30, 1994]
BOS-BUS:63918
SIXTH AMENDMENT
Amendment Agreement dated as of July 13, 1994 by and among (a) COLONIAL
GAS COMPANY, a Massachusetts Corporation (the "Company"), (b) THE BANK OF
NOVA SCOTIA, 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 "Banks"), (c)
SHAWMUT BANK, N.A., in its capacity as co-agent for the Banks (the
"Co-Agent"), and (d) 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 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 sixth amendment to the
Agreement.
The Company has advised the Banks, the Co-Agent and the Agent that the
Company desires to increase the Maximum Commitment under the Agreement from
$40,000,000 to $75,000,000, to extend the Termination Date thereunder and to
make certain other changes in the Agreement. The Banks, the Co-Agent and the
Agent are prepared to agree to the requested increase in the Maximum
Commitment, the extension of the Termination Date upon the terms and
conditions set forth in this Amendment Agreement and to make certain other
changes in the Agreement.
To accomplish the foregoing, the Company, the Banks, the Co-Agent and the
Agent agree as follows:
1. Amendments. The Agreement is amended in the following respects:
(a) Preamble. The preamble is hereby amended by inserting after the
parenthetical "(collectively the "Banks")" appearing therein a comma and the
following reference: "SHAWMUT BANK, N.A., as co-agent for the Banks (the
"Co-Agent")".
(b) Section 1: Defined Term "Applicable C/D Rate Margin". The
defined term "Applicable C/D Rate Margin" appearing in Section 1 of the
Agreement is amended by substituting for the table appearing therein, the
following table:
Standard & Poor's Applicable C/D
Rating Rate Margin
A 0.325%
A- 0.350%
BBB+ 0.375%
BBB 0.475%
less than BBB 0.575%
(c) Section 1: Defined Term "Applicable Eurodollar Rate Margin". The
defined term "Applicable Eurodollar Rate Margin" appearing in Section 1 of the
Agreement is amended by substituting for the table appearing therein, the
following table:
Standard & Poor's Applicable Eurodollar
Rating Rate Margin
A 0.200%
A- 0.225%
BBB+ 0.250%
BBB 0.350%
less than BBB 0.450%
(d) Section 1: Defined Term "Applicable Facility Fee Rate". The
defined term "Applicable Facility Fee Rate" appearing in Section 1 of the
Agreement is amended by substituting for the table appearing therein, the
following table:
Standard & Poor's Applicable Facility
Rating Fee Rate
A 0.070%
A- 0.090%
BBB+ 0.100%
BBB 0.120%
less than BBB 0.220%
(e) Section 1: Defined Term "Co-Agent". Section 1 of the Agreement is
hereby amended by inserting therein immediately after the definition of
"Closing Date" the following new definition:
Co-Agent - has the meaning specified in the preamble.
(f) Section 1: Defined Term "Domestic C/D Rate". The defined term
"Domestic C/D Rate" appearing in Section 1 of the Agreement is deleted in its
entirety and the following new definition is substituted therefor:
Domestic C/D Rate - with respect to any interest period for any
C/D Rate Advance, the annual rate of interest determined by the Agent to
be the average (rounded upwards, if necessary to the nearest 1/100 of 1%)
of the rates offered by the Agent in the secondary market at approximately
10:00 A.M. Boston time (or as soon thereafter as practicable) on the first
day of the applicable Interest Period for the purchase at face value from
the Agent of dollar certificates of deposit issued by them in an aggregate
amount approximately equal or comparable to the amount of the C/D Rate
Advance relating to such Interest Period and having a maturity equal to
the applicable Interest Period.
(g) Section 1: Defined Term "Extension Date". The defined term
"Extension Date" appearing in Section 1 of the Agreement is deleted in its
entirety.
(h) Section 1: Defined Term "Interest Charges". The defined term
"Interest Charges" appearing in Section 1 of the Agreement is amended by
inserting prior to the period at the end thereof, the following phrase: ", and
net of regulatory interest".
(i) 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 "$40,000,000" appearing in clause (a)
thereof and by substituting the dollar amount "$75,000,000" in place thereof.
(j) 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 "July 15, 1994" a reference
to "June 15, 1997".
(k) Section 2.1. The dollar amount "$40,000,000" appearing in two
places in Section 2.1 of the Agreement is hereby deleted from both such places
and the dollar amount "$75,000,000" is substituted in place thereof.
(l) 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 Banks pursuant to this Amendment
Agreement and any promissory notes delivered pursuant to Section 5.2 of the
Agreement as amended hereby.
(m) Section 3.1. Section 3.1 of the Agreement is amended by
substituting for the references to the dollar amount "$250,000" appearing in
Section 3.1(d)(ii)(B), 3.1(f)(ii) and 3.1(h) thereof a reference to the dollar
amount "$1,000".
(n) Section 4.10. Section 4.10 of the Agreement is amended by
inserting the following after the second sentence of paragraph (a) thereof:
All payments by the Company hereunder and under any of the other Loan
Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or other authority
therein unless the Company is compelled by law to make such deduction
or withholding. If any such obligation is imposed hereafter upon the
Company with respect to any amount payable by it hereunder or under
any of the other Loan Documents, the Company will pay to the Agent, for
the account of the Banks or (as the case may be) the Agent, on the date
on which such amount is due and payable hereunder or under such other
Loan Document, such additional amount in dollars as shall be necessary
to enable the Banks or the Agent to receive the same net amount which
the Banks or the Agent would have received on such due date had no such
obligation been imposed upon the Company, provided that the foregoing
obligation to pay such additional amounts shall not apply:
(i) to any payment to a Bank if such Bank is not, on
the date hereof (or on the date it becomes a Bank under this
Agreement) and on the date of any change in the lending office of
such Bank identified after its execution, entitled by virtue of its
status as a non-resident alien to submit either a Form 1001
(relating to such Bank and entitling it to a complete exemption
from withholding on all interest to be received by it hereunder in
respect of the Advances) or Form 4224 (relating to all interest to
be received by such Bank hereunder in respect of Advances) of the
U.S. Department of Treasury, or
(ii) to any item referred to in the preceding sentence that
would not have been imposed but for the failure by such Bank to
comply with applicable certification, information, documentation
or other reporting requirements concerning the nationality,
residence, identity or connections of such Bank with the United
States if such compliance is required by statute or regulation of the
United States as a precondition to relief or exemption from such item.
The Company will deliver promptly to the Agent certificates or
other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Company hereunder or under such
other Loan Document.
(o) 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 10.67%
The Bank of Nova Scotia $17,000,000 22.67%
The First National Bank of Boston $25,000,000 33.33%
Shawmut Bank, N.A. $25,000,000 33.33%
(p) Section 5.2. The text of Section 5.2 of the Agreement is deleted
from the Agreement and the following is substituted in place thereof:
Section 5.2. Extension of Commitments. The Company may, by written
notice to the Banks and the Agent not less than sixty (60) days and not
more than ninety (90) days prior to the Termination Date then in effect,
request that the Termination Date be extended to a later date specified in
such notice. The Agent shall notify the Company as to whether all of the
Banks have agreed to the extension of the Termination Date to such later
date not later than thirty (30) days prior to the Termination Date then in
effect. An extension to which all of the Banks have agreed shall become
effective upon the receipt by the Banks not less than five (5) Business
Days prior to the Termination Date then in effect of (a) executed
promissory notes substantially in the form of Exhibit A hereto, and (b) an
opinion of counsel to the Company, satisfactory to the Banks and their
counsel, as to the due authorization, execution and delivery by the
Company of such notice of extension and such promissory notes, the
validity and binding effect as regards the Company of this Agreement and
the promissory notes so delivered, and there being no necessity for any
authorization or approval by, or any filing or registration with, any public
regulatory body (including, but without limitation, approval of the
Department of Public Utilities of the Commonwealth of Massachusetts) for
such extension and for the performance of this Agreement and the
promissory notes so delivered (or, if any such action is necessary or
required, stating that the same has been duly obtained or effected, and is
valid and sufficient for the purpose and a true copy thereof is attached to
such opinion).
(q) Section 5.3. Section 5.3 of the Agreement is amended by
substituting for the reference appearing in paragraph (c) thereof to "a letter
agreement dated as of June 3, 1993, between the Company and the Agent" a
reference to "a letter agreement dated as of May 31, 1994, between the Company
and the Agent".
(r) Section 7. Section 7 of the Agreement is amended by inserting
after Section 7.2 thereof the following new Section 7.3:
Section 7.3. Notes in Full Force and Effect. The Notes shall be in full
force and effect, and the Company shall have delivered to the Banks
contemporaneously with its delivery of such Notes an opinion of counsel,
satisfactory to the Banks, regarding the due authorization, execution and
delivery of such Notes, the validity and binding effect of such Notes, and
there being no necessity for any authorization or approval by, or any filing
or registration with, any public regulatory body (including, but without
limitation, approval of the Department of Public Utilities of the
Commonwealth of Massachusetts) for the delivery of such Notes or the
performance of such Notes.
(s) Section 8. Section 8 of the Agreement is hereby amended by
inserting at the end thereof the following new Section 8.17:
Section 8.17. Environmental Matters. The Company is in compliance in
all material respects with all applicable state and federal environmental
statutes and regulations, including, without limitation, the Clean Water
Act of 1977, as amended, 33 U.S.C. Section 1251 et seq., the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.
("RCRA"), the Massachusetts Hazardous Waste Management Act,
Massachusetts General Laws Annotated ch. 21C (West 1992) (the
"Massachusetts Hazardous Waste Act"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C. Section 9601 et seq. ("CERCLA"), and the Massachusetts Oil and
Hazardous Material Release Prevention Act, Massachusetts General Laws
Annotated ch. 21E (West 1992) (the "Massachusetts Oil and Hazardous
Material Act"), except for such noncompliance which, in the judgment of
the Company, would not materially and adversely affect the business,
prospects, earnings, properties or condition (financial or otherwise) of the
Company and, to its knowledge, has not acquired, incurred or assumed,
directly or indirectly, any contingent liability in connection with the
release of any toxic or hazardous waste or substance into the environment
which, in the judgment of the Company, would have a material adverse
effect on the business, prospects, earnings, properties or condition
(financial or otherwise) of the Company. The Company is not the subject
of any evaluation, administrative proceedings, administrative consent
orders, judicial proceedings or demand orders under CERCLA, or under
the Massachusetts Oil and Hazardous Material Act which, in the judgment
of the Company, would have a material adverse effect on the business,
prospects, earnings, properties or condition (financial or otherwise) of the
Company.
(t) Section 10.3. Section 10.3 of the Agreement is hereby amended
by substituting for the title of paragraph (e) thereof the following: "Notice
of Default, Litigation, ERISA Matters and Environmental Matters" and by
inserting at the end of such paragraph the following:
The Company will promptly give notice to the Agent and each of the
Banks (i) of any violation of any federal, state or local statute, regulation,
ordinance, order or decree relating to health, safety or the environment
that the Company reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any oral report
is made) to any federal, state or local environmental agency and that, in
the judgment of the Company, would materially and adversely affect the
business, prospects, earnings, properties or condition (financial or
otherwise) of the Company, and (ii) upon becoming aware thereof, of any
inquiry, proceeding, investigation or other action, including a notice from
any agency of potential environmental liability, or any federal, state or
local environmental agency or board that, in the judgment of the
Company, would materially and adversely affect the business, prospects,
earnings, properties or condition (financial or otherwise) of the Company.
(u) Section 10.12. Section 10.12 of the Agreement is amended by
deleting the following sentence: "All policies of insurance shall provide for
thirty (30) days prior written minimum cancellation notice to the Agent." and
by substituting in place therefor the following sentence:
At least five (5) days before the expiration of any such policy, the
Company will (except as aforesaid) obtain a renewal of any policy about
to expire or a new policy or policies operating as a renewal thereof, to the
satisfaction of the Banks; provided, however, that the Company will notify
the Banks that a policy is being canceled by an insurer not later than ten
(10) days prior to the effective date of such cancellation.
(v) Section 11.2. Section 11.2 of the Agreement is hereby deleted in
its entirety and the phrase "INTENTIONALLY OMITTED" is hereby substituted
therefor.
(w) Section 11.6. Section 11.6 of the Agreement is hereby deleted in
its entirety and the following new Section 11.6 is hereby substituted
therefor:
Section 11.6. Subsidiaries. The Company will not, directly or
indirectly, enter into any transaction with any subsidiary except on terms
which are fair and reasonable to the Company and which, taken as a whole, are
at least as favorable to the Company as it would obtain in a comparable
transaction with an unrelated person. The Company will not sell the stock
of any subsidiary, or permit a subsidiary to sell or otherwise dispose of
its property, other than at a fair value, unless such sale or disposition is
not detrimental to the interests of the Banks hereunder and the difference
between the fair value and the proceeds of such sale or disposition is
either less than $25,000 or, in the aggregate with the differences from all
other such sales or dispositions during the preceding 24 consecutive
months, less than 3/4 of 1% of tangible net worth as shown in the most
recent report of the Company.
(x) Section 11.9. Section 11.9 of the Agreement is hereby deleted in
its entirety and the phrase "INTENTIONALLY OMITTED" is hereby substituted
therefor.
(y) Section 11.11. Section 11.11 of the Agreement is hereby deleted
in its entirety and the following new Section 11.11 is hereby substituted
therefor:
Section 11.11. Interest Charge Coverage Ratio. Permit the ratio of
Consolidated Net Earnings Available for Interest Charges for any 4
consecutive fiscal quarters to Interest Charges for such period to be less
than 1.75 to 1.00.
(z) Section 11.14. Section 11.14 of the Agreement is hereby deleted
in its entirety and the following new Section 11.14 is hereby substituted
therefor:
Section 11.14. Indenture. The Company shall not amend, modify or
supplement the Indenture as in effect on the date of this Agreement in any
way that would directly or indirectly (i) subject the lien of the Indenture
to the gas inventory or accounts receivable of the Company or the Trust,
(ii) cause the scheduled date of payments of principal, interest and
expenses of Mortgage Debt to occur at dates earlier than the allowed dates
in effect on the Closing Date, (iii) amend in any material way the
definitions of "additional property" or "net amount of additional property"
or "permitted liens" in the definitional section of the Indenture, or (iv)
amend in any material way Section 3.02 of the Indenture.
(aa) Section 11.16. Section 11.16 of the Agreement is hereby deleted
in its entirety and the following new Section 11.16 is hereby substituted
therefor:
Section 11.16. Debt Payments. The Company shall not, directly or
indirectly, make any payments in reduction of any Debt of the Company
(other than Debt in respect of the Advances) prior to the final maturity
thereof, other than payments required by the terms of any sinking fund,
serial maturity or mandatory prepayment provision contained in any
instrument evidencing Debt permitted by Section 11.1 and other than payments
made pursuant to the Fuel Purchase Contract, unless (i) such payment is
made out of the proceeds of a concurrent (and in any event within six (6)
months of such payment) refunding operation involving the incurring by
the Company of additional Debt which is at least equal in aggregate
principal amount to, and which has a weighted average life to maturity (as
determined in accordance with any accepted financial practice) no shorter
than the remaining life of this Agreement and (ii) after giving effect to
such payment, the aggregate amount of all such Debt prepaid by the
Company since the Closing Date shall not exceed $20,000,000.
(bb) Section 15A. The Agreement is hereby amended by inserting
immediately after Section 15 appearing therein the following new Section 15A:
Section 15A. THE CO-AGENT. Notwithstanding anything to the
contrary set forth herein, the Co-Agent shall be deemed to be the agent
of the Banks in name only, and the Co-Agent shall not have any right,
power, obligation, liability, responsibility or duty under this Agreement
other than (a) those applicable to all Banks as such or (b) those otherwise
applicable to Shawmut Bank, N.A. in its individual capacity. Each Bank
acknowledges that it has not relied, and will not rely, on the Co-Agent in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
(cc) Section 17. Section 17 is hereby amended by inserting at the end
thereof the following:
Notwithstanding anything in this Section 17 to the contrary, each Bank
shall be permitted to assign any or all of its rights hereunder to any of its
"bank" affiliates or to any of the twelve (12) Federal Reserve Banks organized
under Section 4 of the Federal Reserve Act 12 U.S.C. Section 341, without the
prior written consent of the Company or the Agent, provided that such "bank"
affiliate shall have total capital of not less than $100,000,000. If any
assignee Bank is not incorporated under the laws of the United States of
America or any state thereof, it shall, prior to the date on which any
interest or fees are payable hereunder or under any of the other Loan
Documents for its account, deliver to the Company and the Agent a
certification as to its exemption from deduction or withholding of any
United States Federal income taxes.
(dd) Section 28. The Agreement is hereby amended by inserting at the
end thereof the following new Section 28:
Section 28. WAIVER OF JURY TRIAL. The Company hereby waives
its right to a jury trial with respect to any action or claim arising out of
any dispute in connection with this Agreement, the Notes or any of the
other Loan Documents, any rights or obligations hereunder or thereunder
or the performance of which rights and obligations. Except as prohibited
by law and except in the case of gross negligence or willful misconduct,
the Company hereby waives any right it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in
addition to, actual damages. The Company (a) certifies that no
representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would
not, in the event of litigation, seek to enforce the foregoing waivers and
(b) acknowledges that the Agent and the Banks have entered into this
Agreement, the other Loan Documents to which the Company is a party
in reliance on, among other things, the waivers and certifications
contained herein.
(ee) 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 the obligations of the Banks 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 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) Proof of Corporate Action. The Agent shall have received from
the Company, copies, certified by a duly authorized officer to be true and
complete on or as of the date of effectiveness of this Amendment Agreement, of
the records of all corporate action taken by the Company to authorize (i) its
execution and delivery of this Amendment Agreement and the Revolving Credit
Notes to be delivered in connection herewith, (ii) the performance on the part
of the Company of all of its agreements and obligations under the Agreement as
amended by this Amendment Agreement and (iii) its incurring the obligations
contemplated by this Amendment Agreement.
(d) Incumbency Certificate. The Agent shall have received from the
Company an incumbency certificate dated as of the date of the effectiveness of
this Amendment Agreement, signed by a authorized officer of the Company, and
giving the name and bearing the specimen signature of each individual who
shall be authorized to execute and deliver, in the name and on behalf of the
Company, this Amendment Agreement and the Revolving Credit Notes to be
delivered in connection herewith.
(e) Agent's Fee. The Company shall have paid to the Agent the
Agent's Fee required to be paid at closing by the letter agreement between the
Company and the Agent dated May 31, 1994.
(f) Legal Opinions. The Agent shall have received a written legal
opinion, addressed to the Banks, dated the date of the effectiveness of this
Amendment Agreement, of Palmer & Dodge, as counsel to the Company. Such
legal opinion shall be in form and substance satisfactory to the Banks.
(g) 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 Banks.
(h) Receipt of Revolving Credit Notes. Each Bank shall have received
an executed promissory note in form and substance satisfactory to such Bank
and substantially in the form of Exhibit A hereto.
(i) Amendment to Trust Credit Agreement. Each Bank shall have
received an executed Fifth Amendment to the Trust Credit Agreement and all of
the conditions precedent to the effectiveness thereof shall have been fully
satisfied.
3. Transitional Arrangements. All fees owing or accruing under or in
respect of the Agreement prior to the effectiveness of this Amendment
Agreement shall be paid in accordance with the method, and on the date,
specified in the Agreement as in effect immediately prior to the effectiveness
hereof. Any C/D Rate Advance or Eurodollar Rate Advance outstanding on the
date on which this Amendment Agreement becomes effective shall continue to
bear interest at the Applicable C/D Rate Margin or the Applicable Eurodollar
Rate Margin (as the case may be) as such terms were defined prior to the
effectiveness of this Amendment Agreement for the remainder of the current
Interest Period relating thereto.
4. 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.
5. 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 13th day of July, 1994.
THE COMPANY:
COLONIAL GAS COMPANY
[Corporate Seal] By: Dennis W. Carroll
Title: Vice President & Treasurer
Attest:
THE BANKS:
THE BANK OF NOVA SCOTIA
By: M.R. Bradley
Title:
The Bank of Nova Scotia
101 Federal Street, 16th Floor
Boston, Massachusetts 02110
Attention: Michael Bradley
ABN AMRO BANK N.V.,
BOSTON BRANCH
By: R.E. James Hunter
Title: V.P.
By: Authorized Signatory
Title: Vice President
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 A. Messina
Title: Vice President
Shawmut Bank, N.A.
One Federal Street
Boston, Massachusetts 02211
Attention: Philip A. Messina
THE CO-AGENT:
SHAWMUT BANK, N.A., As Co-Agent
By: Philip A. 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
$___________ _______, 199[_]
FOR VALUE RECEIVED, the undersigned Colonial Gas Company, a Massachusetts
corporation (the "Company"), hereby absolutely and unconditionally promises to
pay to the order of[_________________________________] (the "Bank") at the
head office of The First National Bank of Boston, as Agent (the "Agent"), at
100 Federal Street, Boston, Massachusetts 02110:
(a) on [June 16, 1995 or, with respect to subsequent notes, the date
which is 364 days from the date of such note], the principal amount of
_______________________ Dollars ($__________) 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"),
Shawmut Bank, N.A., in its capacity as co-agent for the Banks, and the Agent.
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
[End of Exhibit 4B to Colonial Gas Company Form 10-Q for the period
ended June 30, 1994]
[Exhibit 4C to Colonial Gas Company Form 10-Q for the period ended
June 30, 1994]
BOS-BUS:65541
FOURTH AMENDMENT
Amendment Agreement dated as of June 16, 1994 by and among (a)
MASSACHUSETTS FUEL INVENTORY TRUST, a trust organized under the Laws of
the Commonwealth of Massachusetts (the "Trust"), (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 Trust, 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 fourth amendment to the Agreement.
The Company has advised the Banks and the Agent that the Company or the
Trust may make a thirty (30) day borrowing under the Company Credit Agreement
or the Agreement (as applicable) prior to its termination and that the Company
and the Trust desire to extend the Termination Date under and as defined in
both the Agreement and the Company Credit Agreement in order to accommodate
that borrowing. Further, the Trust and the Company have notified the
Departing Banks and the other Banks that they wish to repay the Departing
Banks and to have each of the Departing Banks terminate its Commitment (as
defined in both the Agreement and the Company Credit Agreement), and each of
the Departing Banks has consented to the foregoing, and the New Bank has
advised the Trust and the other Banks that it wishes to become a party to the
Agreement, as amended hereby, and the Company Credit Agreement, as amended by
an amendment agreement of even date herewith, and to advance loans and to
provide other financial accommodations to the Trust and 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 Trust, 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 "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.".
(c) 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".
(d) 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.
(e) 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:
Lender Amount of Commitment
Commitment Percentage
ABN AMRO Bank N.V., Boston Branch $6,000,000 20%
The Bank of Nova Scotia $7,500,000 25%
The First National Bank of Boston $9,000,000 30%
Shawmut Bank, N.A. $7,500,000 25%
(f) 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 Trust to the Existing Banks and the
Departing Banks in Section 9 of the Agreement shall be true and correct in all
material respects.
(b) Performance, etc. The Trust 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) Trustee's Certificate. The Trust 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 Company Credit Agreement. Each Bank shall have
received an executed Fifth Amendment to the Company 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 Trust 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 Trust a release substantially in the form of Exhibit B
attached hereto.
3. Ratification and Joinder By New Bank. The Trust 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
Trust 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 Company Credit Agreement, its Commitment shall terminate and
it shall execute and deliver to the Trust a release substantially in the form
of Exhibit B hereto. As soon as practicable thereafter each of the Departing
Banks shall return to the Trust the Revolving Credit Note currently in its
possession marked "Cancelled". The Trust, 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 Trust 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 TRUST:
MASSACHUSETTS FUEL INVENTORY
TRUST
By Shawmut Bank, N.A., not in its
individual capacity but solely as
Trustee of the Massachusetts Fuel
Inventory Trust under the Trust
Agreement dated as of June 22, 1990
as amended and in effect on the
date hereof, between it and the
Trustor and the Beneficiary named
therein
[Seal] By: Charles Dooley
Title: Vice President
Attest: Jill Olson
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
$_________ June 16, 1994
FOR VALUE RECEIVED, the undersigned Massachusetts Fuel Inventory Trust,
a trust formed under the laws of Commonwealth of Massachusetts (the "Trust"),
hereby absolutely and unconditionally promises to pay to the order of
[_________________________________] (the "Bank") at the head office of The
First National Bank of Boston, as Agent (the "Agent"), at 100 Federal Street,
Boston, Massachusetts 02110:
(a) on July 15, 1994, the principal amount of __________________
Dollars ($_________) or, if less, the aggregate unpaid principal amount of
Advances made by the Bank to the Trust 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 Trust, 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 Trust 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 Trust 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. This Note is secured by the Security
Documents described in Section 6 of the Credit Agreement. 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 Trust 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 Trust's obligations or the
validity of any repayments made by the Trust in respect of this Note.
The Trust 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 Trust 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, Massachusetts Fuel Inventory Trust has caused this
Note to be signed by its duly authorized Trustee as of the day and year first
above written.
MASSACHUSETTS FUEL INVENTORY
TRUST
By Shawmut Bank, N.A., not in its
individual capacity but solely as
Trustee of the Massachusetts Fuel
Inventory Trust under the Trust
Agreement dated as of June 22, 1990
as amended and in effect on the
date hereof, between it and the
Trustor and the Beneficiary named
therein
[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
Massachusetts Fuel Inventory Trust
c/o Shawmut Bank, N.A., Trustee
One Federal Street
Boston, Massachusetts 02211
Attention: Officer in Charge-Corporate Trust Department
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 Massachusetts Fuel Inventory Trust (the "Trust"),
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 Trust to
the undersigned in the original principal amount of $6,000,000.00 (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 4C to Colonial Gas Company Form 10-Q for the period
ended June 30, 1994]
[Exhibit 4D to Colonial Gas Company Form 10-Q for the period ended
June 30, 1994]
BOS-BUS:64015
FIFTH AMENDMENT
Amendment Agreement dated as of July 13, 1994 by and among (a)
MASSACHUSETTS FUEL INVENTORY TRUST, a trust organized under the Laws of
the Commonwealth of Massachusetts (the "Trust"), (b) THE BANK OF NOVA
SCOTIA, 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 "Banks"), (c) SHAWMUT
BANK, N.A., in its capacity as co-agent for the Banks (the "Co-Agent"), and
(d) 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 Trust, the 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.
The Trust has advised the Banks, the Co-Agent and the Agent that the
Trust desires to increase the "Maximum Commitment" under the Company Credit
Agreement from $40,000,000 to $75,000,000, to extend the Termination Date
under and as defined in both the Agreement and the Company Credit Agreement
and to make certain other changes in such agreements. The Banks, the Co-Agent
and the Agent are prepared to agree to the requested increase in the Maximum
Commitment to the Company Credit Agreement, the requested extension to the
Termination Date (as such terms are defined in both the Agreement and the
Company Credit Agreement) upon the terms and conditions set forth in this
Amendment Agreement and to make certain other changes in such agreements.
To accomplish the foregoing, the Trust, the Banks, the Co-Agent and the
Agent agree as follows:
1. Amendments. The Agreement is amended in the following respects:
(a) Preamble. The preamble is hereby amended by inserting after the
parenthetical "(collectively the "Banks")" appearing therein a comma and the
following reference: "SHAWMUT BANK, N.A., as co-agent for the Banks (the
"Co-Agent")".
(b) Section 1: Defined Term "Applicable C/D Rate Margin". The
defined term "Applicable C/D Rate Margin" appearing in Section 1 of the
Agreement is amended by substituting for the table appearing therein, the
following table:
Standard & Poor's Applicable C/D
Rating Rate Margin
A 0.325%
A- 0.350%
BBB+ 0.375%
BBB 0.475%
less than BBB 0.575%
(c) Section 1: Defined Term "Applicable Eurodollar Rate Margin". The
defined term "Applicable Eurodollar Rate Margin" appearing in Section 1 of the
Agreement is amended by substituting for the table appearing therein, the
following table:
Standard & Poor's Applicable Eurodollar
Rating Rate Margin
A 0.200%
A- 0.225%
BBB+ 0.250%
BBB 0.350%
less than BBB 0.450%
(d) Section 1: Defined Term "Applicable Facility Fee Rate". The
defined term "Applicable Facility Fee Rate" appearing in Section 1 of the
Agreement is amended by substituting for the table appearing therein, the
following table:
Standard & Poor's Applicable Facility
Rating Fee Rate
A 0.070%
A- 0.090%
BBB+ 0.100%
BBB 0.120%
less than BBB 0.220%
(e) Section 1: Defined Term "Co-Agent". Section 1 of the Agreement is
hereby amended by inserting therein immediately after the definition of
"Closing Date" the following new definition:
Co-Agent - has the meaning specified in the preamble.
(f) Section 1: Defined Term "Domestic C/D Rate". The defined term
"Domestic C/D Rate" appearing in Section 1 of the Agreement is deleted in its
entirety and the following new definition is substituted therefor:
Domestic C/D Rate - with respect to any interest period for any
C/D Rate Advance, the annual rate of interest determined by the Agent to
be the average (rounded upwards, if necessary to the nearest 1/100 of 1%)
of the rates offered by the Agent in the secondary market at approximately
10:00 A.M. Boston time (or as soon thereafter as practicable) on the first
day of the applicable Interest Period for the purchase at face value from
the Agent of dollar certificates of deposit issued by it in an aggregate
amount approximately equal or comparable to the amount of the C/D Rate
Advance relating to such Interest Period and having a maturity equal to
the applicable Interest Period.
(g) Section 1: Defined Term "Extension Date". The defined term
"Extension Date" appearing in Section 1 of the Agreement is deleted in its
entirety.
(h) 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 "July 15, 1994" a
reference to "June 15, 1997".
(i) 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 Banks pursuant to this Amendment
Agreement and any promissory notes delivered pursuant to Section 5.2 of the
Agreement as amended hereby.
(j) Section 3.1. Section 3.1 of the Agreement is amended by
substituting for the references to the dollar amount "$250,000" appearing in
Section 3.1(d)(ii)(B), 3.1(f)(ii) and 3.1(h) thereof a reference to the dollar
amount "$1,000".
(k) Section 4.10. Section 4.10 of the Agreement is amended by
inserting the following after the second sentence of paragraph (a) thereof:
All payments by the Trust hereunder and under any of the other Loan
Documents shall be made without setoff or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or other authority
therein unless the Trust is compelled by law to make such deduction or
withholding. If any such obligation is imposed hereafter upon the Trust
with respect to any amount payable by it hereunder or under any of the
other Loan Documents, the Trust will pay to the Agent, for the account
of the Banks or (as the case may be) the Agent, on the date on which such
amount is due and payable hereunder or under such other Loan Document,
such additional amount in dollars as shall be necessary to enable the Banks
or the Agent to receive the same net amount which the Banks or the Agent
would have received on such due date had no such obligation been
imposed upon the Trust, provided that the foregoing obligation to pay
such additional amounts shall not apply:
(i) to any payment to a Bank if such Bank is not, on the
date hereof (or on the date it becomes a Bank under this
Agreement) and on the date of any change in the lending office of
such Bank identified after its execution, entitled by virtue of its
status as a non-resident alien to submit either a Form 1001
(relating to such Bank and entitling it to a complete exemption
from withholding on all interest to be received by it hereunder in
respect of the Advances) or Form 4224 (relating to all interest to
be received by such Bank hereunder in respect of Advances) of
the U.S. Department of Treasury, or
(ii) to any item referred to in the preceding sentence that
would not have been imposed but for the failure by such Bank to
comply with applicable certification, information, documentation
or other reporting requirements concerning the nationality,
residence, identity or connections of such Bank with the United
States if such compliance is required by statute or regulation of the
United States as a precondition to relief or exemption from such
item.
The Trust will deliver promptly to the Agent certificates or other
valid vouchers for all taxes or other charges deducted from or paid with
respect to payments made by the Trust hereunder or under such other
Loan Document.
(l) 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:
Lender Amount of Commitment
Commitment Percentage
ABN AMRO Bank N.V., Boston Branch $3,200,000 10.67%
The Bank of Nova Scotia $6,800,000 22.67%
The First National Bank of Boston $10,000,000 33.33%
Shawmut Bank, N.A. $10,000,000 33.33%
(m) Section 5.2. The text of Section 5.2 of the Agreement is deleted
from the Agreement and the following is substituted in place thereof:
Section 5.2. Extension of Commitments. The Trust may, by written
notice to the Banks and the Agent not less than sixty (60) days and not
more than ninety (90) days prior to the Termination Date then in effect,
request that the Termination Date be extended to a later date specified in
such notice. The Agent shall notify the Trust as to whether all of the
Banks have agreed to the extension of the Termination Date to such later
date not later than thirty (30) days prior to the Termination Date then in
effect. An extension to which all of the Banks have agreed shall become
effective upon the receipt by the Banks not less than five (5) Business
Days prior to the Termination Date then in effect of (a) executed
promissory notes substantially in the form of Exhibit A hereto, and (b) an
opinion of counsel to the Trust, satisfactory to the Banks and their
counsel, as to the due authorization, execution and delivery by the Trust
of such notice of extension and such promissory notes, the validity and
binding effect as regards the Trust of this Agreement and the promissory
notes so delivered, and there being no necessity for any authorization or
approval by, or any filing or registration with, any public regulatory body
(including, but without limitation, approval of the Department of Public
Utilities of the Commonwealth of Massachusetts) for such extension and
for the performance of this Agreement and the promissory notes so
delivered (or, if any such action is necessary or required, stating that the
same has been duly obtained or effected, and is valid and sufficient for the
purpose and a true copy thereof is attached to such opinion).
(n) Section 5.3. Section 5.3 of the Agreement is amended by
substituting for the reference appearing in paragraph (c) thereof to "a letter
agreement dated as of June 3, 1993, between the Company and the Agent" a
reference to "a letter agreement dated as of May 31, 1994, between the Company
and the Agent".
(o) Section 8. Section 8 of the Agreement is amended by inserting
after Section 8.2 thereof the following new Section 8.3:
Section 8.3. Notes in Full Force and Effect. The Notes shall be in full
force and effect, and the Trust shall have delivered to the Banks
contemporaneously with its delivery of such Notes an opinion of counsel,
satisfactory to the Banks, regarding the due authorization, execution and
delivery of such Notes, the validity and binding effect of such Notes, and
there being no necessity for any authorization or approval by, or any filing
or registration with, any public regulatory body (including, but without
limitation, approval of the Department of Public Utilities of the
Commonwealth of Massachusetts) for the delivery of such Notes or the
performance of such Notes.
(p) Section 9. Section 9 of the Agreement is hereby amended by
inserting at the end thereof the following new Section 9.16:
Section 9.16. Environmental Matters. The Trust is in compliance in all
material respects with all applicable state and federal environmental
statutes and regulations, including, without limitation, the Clean Water
Act of 1977, as amended, 33 U.S.C. Section 1251 et seq., the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.
("RCRA"), the Massachusetts Hazardous Waste Management Act,
Massachusetts General Laws Annotated ch. 21C (West 1992) (the
"Massachusetts Hazardous Waste Act"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of 1986,
42 U.S.C. Section 9601 et seq. ("CERCLA"), and the Massachusetts Oil and
Hazardous Material Release Prevention Act, Massachusetts General Laws
Annotated ch. 21E (West 1992) (the "Massachusetts Oil and Hazardous
Material Act"), except for such noncompliance which, in the judgment of
the Trust, would not materially and adversely affect the business,
prospects, earnings, properties or condition (financial or otherwise) of the
Trust and, to its knowledge, has not acquired, incurred or assumed,
directly or indirectly, any contingent liability in connection with the
release of any toxic or hazardous waste or substance into the environment
which, in the judgment of the Trust, would have a material adverse effect
on the business, prospects, earnings, properties or condition (financial or
otherwise) of the Trust. The Trust is not the subject of any evaluation,
administrative proceedings, administrative consent orders, judicial
proceedings or demand orders under CERCLA, or under the
Massachusetts Oil and Hazardous Material Act which, in the judgment of
the Trust, would have a material adverse effect on the business, prospects,
earnings, properties or condition (financial or otherwise) of the Trust.
(q) Section 11.3. Section 11.3 of the Agreement is hereby amended
by substituting for the title of paragraph (d) thereof the following:
"Notice of Default, Litigation and Environmental Matters" and by inserting at
the end of such paragraph the following:
The Trust will promptly give notice to the Agent and each of the Banks
(i) of any violation of any federal, state or local statute, regulation,
ordinance, order or decree relating to health, safety or the environment
that the Trust reports in writing or is reportable by such Person in writing
(or for which any written report supplemental to any oral report is made)
to any federal, state or local environmental agency and that, in the
judgment of the Trust, would materially and adversely affect the business,
prospects, earnings, properties or condition (financial or otherwise) of the
Trust, and (ii) upon becoming aware thereof, of any inquiry, proceeding,
investigation or other action, including a notice from any agency of
potential environmental liability, or any federal, state or local
environmental agency or board that, in the judgment of the Trust, would
materially and adversely affect the business, prospects, earnings,
properties or condition (financial or otherwise) of the Trust.
(r) Section 11.9. Section 11.9 of the Agreement is amended by
deleting the following sentence: "All policies of insurance shall provide for
thirty (30) days prior written minimum cancellation notice to the Agent." and
by substituting in place therefor the following sentence:
At least five (5) days before the expiration of any such policy, the
Trust will (except as aforesaid) obtain a renewal of any policy about to
expire or a new policy or policies operating as a renewal thereof, to the
satisfaction of the Banks; provided, however, that the Trust will notify the
Banks that a policy is being canceled by an insurer not later than ten (10)
days prior to the effective date of such cancellation.
(s) Section 16A. The Agreement is hereby amended by inserting
immediately after Section 16 appearing therein the following new Section 16A:
Section 16A. THE CO-AGENT. Notwithstanding anything to the
contrary set forth herein, the Co-Agent shall be deemed to be the agent
of the Banks in name only, and the Co-Agent shall not have any right,
power, obligation, liability, responsibility or duty under this Agreement
other than (a) those applicable to all Banks as such or (b) those otherwise
applicable to Shawmut Bank, N.A. in its individual capacity. Each Bank
acknowledges that it has not relied, and will not rely, on the Co-Agent in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
(t) Section 18. Section 18 is hereby amended by inserting at the end
thereof the following:
Notwithstanding anything in this Section 18 to the contrary, each Bank
shall be permitted to assign any or all of its rights hereunder to any of its
"bank" affiliates or to any of the twelve (12) Federal Reserve Banks organized
under Section 4 of the Federal Reserve Act 12 U.S.C. Section 341, without the
prior written consent of the Trust or the Agent, provided that such "bank"
affiliate shall have total capital of not less than $100,000,000. If any
assignee Bank is not incorporated under the laws of the United States of
America or any state thereof, it shall, prior to the date on which any
interest or fees are payable hereunder or under any of the other Loan
Documents for its account, deliver to the Trust and the Agent a
certification as to its exemption from deduction or withholding of any
United States Federal income taxes.
(u) Section 25. Section 25 of the Agreement is hereby amended as
follows: (i) by inserting immediately after each reference therein to "this
Agreement" the following "or any of the other Loan Documents", (ii) by
deleting the conjunctive "and" at the end of paragraph (iv) thereof and by
renumbering paragraph (v) as paragraph (vi), and (iii) by inserting the
following new paragraph (v) after paragraph (iv) thereof:
(v) no release of any of the Collateral granted by the Trust
pursuant to the Security Documents shall be made; and
(v) Section 30. The Agreement is hereby amended by inserting at the
end thereof the following new Section 30:
Section 30. WAIVER OF JURY TRIAL. The Trust hereby waives its
right to a jury trial with respect to any action or claim arising out of any
dispute in connection with this Agreement, the Notes or any of the other
Loan Documents, any rights or obligations hereunder or thereunder or the
performance of which rights and obligations. Except as prohibited by law
and except in the case of gross negligence or willful misconduct, the Trust
hereby waives any right it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages. The Trust (a) certifies that no representative, agent or attorney
of any Bank or the Agent has represented, expressly or otherwise, that
such Bank or the Agent would not, in the event of litigation, seek to
enforce the foregoing waivers and (b) acknowledges that the Agent and the
Banks have entered into this Agreement, the other Loan Documents to
which the Trust is a party in reliance on, among other things, the waivers
and certifications contained herein.
(w) 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 the obligations of the Banks 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 Trust to the Banks in Section 9 of the
Agreement shall be true and correct in all material respects.
(b) Performance, etc. The Trust 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) Proof of Authorization. The Agent shall have received from the
Company (i) a copy, certified by the clerk of the Company to be true and
complete on or as of the date of effectiveness of this Amendment Agreement, of
the resolutions of the directors of the Company approving this Amendment
Agreement and the Revolving Credit Notes to be delivered in connection
herewith, and (ii) a copy of the letter from the Company to the Trustee of the
Trust authorizing the Trustee to execute this Amendment Agreement.
(d) Regulatory Approval. The Agent shall have received from the
Trust a copy of any authorization or approval of any public regulatory body
(including without limitation the DPU) required for the execution by the Trust
of this Amendment Agreement and the Revolving Credit Notes or a copy of any
letter from such regulatory body stating that no such approval shall be
required.
(e) Legal Opinions. The Agent shall have received a written legal
opinion, addressed to the Banks, dated the date of the effectiveness of this
Amendment Agreement, of counsel to the Trust. Such legal opinion shall be in
form and substance satisfactory to the Banks.
(f) Trustee's Certificate. The Trust shall have provided such
certificates and other assurances in respect to its obligations and duties
hereunder as shall be satisfactory to the Banks.
(g) Receipt of Revolving Credit Notes. Each Bank shall have received
an executed promissory note in form and substance satisfactory to such Bank
and substantially in the form of Exhibit A hereto.
(h) Amendment to Company Credit Agreement. Each Bank shall have
received an executed Sixth Amendment to the Company Credit Agreement and
all of the conditions precedent to the effectiveness thereof shall have been
fully satisfied.
3. Transitional Arrangements. All fees owing or accruing under or in
respect of the Agreement prior to the effectiveness of this Amendment
Agreement shall be paid in accordance with the method, and on the date,
specified in the Agreement as in effect immediately prior to the effectiveness
hereof. Any C/D Rate Advance or Eurodollar Rate Advance outstanding on the
date on which this Amendment Agreement becomes effective shall continue to
bear interest at the Applicable C/D Rate Margin or the Applicable Eurodollar
Rate Margin (as the case may be) as such terms were defined prior to the
effectiveness of this Amendment Agreement for the remainder of the current
Interest Period relating thereto.
4. 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.
5. 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 13th day of July, 1994.
THE TRUST:
MASSACHUSETTS FUEL INVENTORY
TRUST
By Shawmut Bank, N.A., not in its
individual capacity but solely as
Trustee of the Massachusetts Fuel
Inventory Trust under the Trust
Agreement dated as of June 22, 1990
as amended and in effect on the
date hereof, between it and the
Trustor and the Beneficiary named
therein
[Seal] By: Charles Dooley
Title: Vice President
Attest: Jill Olson
THE BANKS:
THE BANK OF NOVA SCOTIA
By: M.R. Bradley
Title:
The Bank of Nova Scotia
101 Federal Street, 16th Floor
Boston, Massachusetts 02110
Attention: Michael Bradley
ABN AMRO BANK N.V.,
BOSTON BRANCH
By: R.E. James Hunter
Title: Vice President
By: Authorized Signatory
Title: Vice President
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 A. Messina
Title: Vice President
Shawmut Bank, N.A.
One Federal Street
Boston, Massachusetts 02211
Attention: Philip A. Messina
THE CO-AGENT:
SHAWMUT BANK, N.A., As Co-Agent
By: Philip A. 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
$____________ ______, 199[_]
FOR VALUE RECEIVED, the undersigned Massachusetts Fuel Inventory Trust, a
trust formed under the laws of Commonwealth of Massachusetts (the "Trust"),
hereby absolutely and unconditionally promises to pay to the order of
[_________________________________] (the "Bank") at the head office of The
First National Bank of Boston, as Agent (the "Agent"), at 100 Federal Street,
Boston, Massachusetts 02110:
(a) on [June 16, 1995 or, with respect to subsequent notes, the date
which is 364 days from the date of such note], the principal amount of
_______________________ Dollars ($_________) or, if less, the aggregate unpaid
principal amount of Advances made by the Bank to the Trust 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 Trust, 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"),
Shawmut Bank, N.A., in its capacity as co-agent for the Banks, and the Agent.
This Note evidences borrowings under, is subject to the terms and
conditions of, and has been issued by the Trust 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 Trust 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. This Note is secured by the Security Documents
described in Section 6 of the Credit Agreement. 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 Trust 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 Trust's obligations or the
validity of any repayments made by the Trust in respect of this Note.
The Trust 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 Trust 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, Massachusetts Fuel Inventory Trust has caused this
Note to be signed by its duly authorized Trustee as of the day and year first
above written.
MASSACHUSETTS FUEL INVENTORY
TRUST
By Shawmut Bank, N.A., not in its
individual capacity but solely as
Trustee of the Massachusetts Fuel
Inventory Trust under the Trust
Agreement dated as of June 22, 1990
as amended and in effect on the
date hereof, between it and the
Trustor and the Beneficiary named
therein
[Seal]
By:................................
Title:
Amount of Paid or Amount of Balance of Notation
Date Loan Prepaid Principal Principal Unpaid Made By
[End of Exhibit 4D to Colonial Gas Company Form 10-Q for the period
ended June 30, 1994]
