Exhibit 4.2
EXECUTION VERSION
FIRST AMENDMENT
FIRST AMENDMENT, dated as of June 30, 2004 (this "Amendment"), to the
Credit Agreement (the "Credit Agreement"), dated as of June 27, 2003, among
KEYSPAN CORPORATION, a New York corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), CITIBANK N.A., as syndication agent, THE BANK OF NEW
YORK and THE ROYAL BANK OF SCOTLAND PLC, as co-documentation agents, and
JPMORGAN CHASE BANK, as administrative agent.
W I T N E S S E T H
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make
certain loans and other extensions of credit to the Borrower; and
WHEREAS, the Borrower has requested and, upon this Amendment becoming
effective, the Lenders have agreed, to amend certain provisions of the Credit
Agreement upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises contained herein, the
parties hereto agree as follows:
Section 1 DEFINITIONS
1.01. Defined Terms. Unless otherwise defined herein, capitalized terms
which are defined in the Credit Agreement are used herein as defined therein.
Section 2 AMENDMENTS TO CREDIT AGREEMENT
2.01. Amendment to Section 1.1. Section 1.1 of the Credit Agreement is
hereby amended by inserting, in proper alphabetical order the following defined
terms and related definitions:
""Act": as defined in Section 9.16."
""Non-Core Assets": Any assets of the Borrower or any of its Subsidiaries
that are not material to the ongoing operations of any of the Borrower's or its
Subsidiaries' primary gas distribution or electric services businesses as
determined by the Borrower in its reasonable business judgment"
""PUHCA": as defined in Section 3.14."
2.02. Amendment to Section 3.1. Section 3.1 of the Credit Agreement is
hereby amended by deleting the fourth and fifth sentences thereof it in their
entirety and replacing them with the following:
"The Borrower and its Subsidiaries do not have any material
Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases (other than the Facility Lease
Agreement, dated as of March 25, 2004, between SE Ravenswood
Trust and KeySpan Ravenswood LLC) or unusual forward or long-term
commitments, including any interest rate or foreign currency swap
or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial
statements referred to in this paragraph, except Guarantee
Obligations of Indebtedness of the Borrower and/or any of its
Subsidiaries so long as the Indebtedness in respect of which such
Guarantee Obligations arise is reflected in such financial
statements. During the period from April 1, 2004 to and including
the date hereof there has been no Disposition by the Borrower of
any material part of its business or property, except the
disposition of an approximately 39% interest in KeySpan Energy
Canada Partnership and the disposition of an approximately 32%
interest in The Houston Exploration Company."
2.03. Amendment to Section 3.14. Section 3.14 of the Credit Agreement is
hereby amended by deleting it in its entirety and inserting the following:
"Investment Company Act; Other Regulations. Neither the Borrower
nor any of its Subsidiaries is (i) an "investment company", or a
company "controlled" by an "investment company", within the meaning of
the Investment Company Act of 1940. The Borrower is a registered
"holding company" under the Public Utility Holding Company Act of
1935, as amended ("PUHCA"), and is subject to regulation by the
Securities and Exchange Commission. Neither the Borrower nor any of
its Subsidiaries is subject to regulation under any Requirement of Law
(other than Regulation X of the Board and PUHCA) that limits its
ability to incur Indebtedness."
2.04. Amendment to Section 3.15. Section 3.15 of the Credit Agreement is
hereby amended by deleting it in its entirety and inserting the following:
"Subsidiaries. Except as disclosed to the Administrative Agent by the
Borrower in writing from time to time after the Closing Date, (a) Schedule 3.15
sets forth the name and jurisdiction of incorporation of each Significant
Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by the Borrower and (b) there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and
directors' qualifying shares and the Borrower's MEDS Equity Units issuance
priced on April 30, 2002) of any nature relating to any Capital Stock of the
Borrower or any Significant Subsidiary, except as created by the Loan
Documents."
2.05. Amendment to Section 4.2(a). Section 4.2(a) of the Credit Agreement
is hereby amended by deleting it in its entirety and inserting the following:
"(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to this Agreement (other
than the representations and warranties contained in Sections 3.2, 3.6 and
3.17) shall be true and correct on and as of such date as if made on and as
of such date."
2.06. Amendment to Section 6.4. Section 6.4 of the Credit Agreement is
hereby amended by deleting it in its entirety and inserting the following:
"(a) Dispose of any of the Borrower's or any Significant Subsidiaries'
property, whether now owned or hereafter acquired, or, in the case of any
Significant Subsidiary, issue or sell any shares of such Significant
Subsidiary's Capital Stock to any Person, except:
(i) the Disposition of obsolete or worn out property in the ordinary
course of business;
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(ii) the sale of inventory in the ordinary course of business;
(iii) Dispositions permitted by Section 6.3(b);
(iv) the sale or issuance of any Significant Subsidiary's Capital
Stock to the Borrower or any other Significant Subsidiary; and
(v) Dispositions of Non-Core Assets; and
(b) Permit any Asset Sale, other than any permitted under clause 6.4(a)
above, provided that the Borrower may permit any Asset Sale to the extent that
that if the ratio of Consolidated Indebtedness to Consolidated Capitalization
(calculated on a pro forma basis to give effect to such Asset Sale) exceeds 0.55
to 1.00, then the Net Cash Proceeds thereof received by the Borrower or any of
its Subsidiaries shall be applied on the date of receipt thereof (or as soon as
reasonably possible) to reduce Consolidated Indebtedness by an amount equal to
the lesser of (i) such Net Cash Proceeds and (ii) the amount required to make
the ratio of Consolidated Indebtedness to Consolidated Capitalization less than
or equal to 0.55 to 1.00. Notwithstanding the foregoing, except as provided in
Section 6.3(b) above, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, in one transaction or in a series of
transactions, dispose of all or substantially all of its assets."
2.07. Amendment to Section 9.6(c). Section 9.6(c) of the Credit Agreement
is hereby amended by inserting after the phrase "Any Lender (an "Assignor") may,
in accordance with applicable law, at any time and from time to time" in the
first sentence of such Section the phrase "with the consent of the
Administrative Agent (which shall not be unreasonably withheld or delayed)".
2.08. New Section 9.16. Section 9 of the Credit Agreement is hereby amended
by adding at the end of such Section the following new Section 9.16:
"USA PATRIOT Act. Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is
required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify
the Borrower in accordance with the Act."
Section 3 MISCELLANEOUS
3.01. Effectiveness. This Amendment shall become effective as of [June 29],
2004 upon receipt by the Administrative Agent of duly executed counterparts of
this Amendment by each of the Borrower and the Required Lenders.
3.02. Representations and Warranties. On and as the date hereof and after
giving effect to this Amendment the Borrower hereby confirms, reaffirms and
restates the representations and warranties set forth in the Credit Agreement
mutatis mutandis, except to the extent that such representations and warranties
expressly relate to a specific earlier date in which case the Borrower hereby
confirms, reaffirms and restates such representations and warranties as of such
earlier date.
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3.03. Continuing Effect; No Other Amendments. Except as expressly amended
hereby, all of the terms and provisions of the Credit Agreement are and shall
remain in full force and effect. The amendment provided for herein is limited to
the specific Section of the Credit Agreement specified herein and narrowly
construed and shall not constitute an amendment of, or an indication of the
Administrative Agent's or the Lenders' willingness to amend, any other
provisions of the Credit Agreement.
3.04. Expenses. The Borrower agrees to pay and reimburse the Administrative
Agent for all its reasonable costs and expenses incurred in connection with the
preparation and delivery of this Amendment, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent.
3.05. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Amendment
signed by the parties hereto shall be delivered to the Borrower and the
Administrative Agent.
3.06. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
KEYSPAN CORPORATION
By: /s/
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, as Administrative
Agent and as a Lender
By:
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Name:
Title:
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