Exhibit 10.31-d
THIRD AMENDING AGREEMENT TO THE
KEYSPAN ENERGY DEVELOPMENT CO.
CREDIT AGREEMENT DATED AS OF JULY 29, 1999
AMONG:
KEYSPAN ENERGY DEVELOPMENT CO.
as Borrower
- and -
ROYAL BANK OF CANADA,
JPMORGAN CHASE BANK, TORONTO BRANCH,
BANK OF MONTREAL,
BANK ONE, NATIONAL ASSOCIATION, CANADA BRANCH
AND ALBERTA TREASURY BRANCHES
as Lenders
- and -
ROYAL BANK OF CANADA
as Administrative Agent
December 20, 2002
THIS THIRD AMENDING AGREEMENT dated as of the 20th day of December, 2002
AMONG:
KEYSPAN ENERGY DEVELOPMENT CO., a Nova Scotia unlimited liability
company (hereinafter referred to as the "Borrower")
OF THE FIRST PART
- and -
ROYAL BANK OF CANADA, JPMORGAN CHASE BANK, TORONTO BRANCH, BANK OF
MONTREAL, BANK ONE, NATIONAL ASSOCIATION, CANADA BRANCH AND ALBERTA
TREASURY BRANCHES (hereinafter sometimes collectively referred to as
the "Lenders")
OF THE SECOND PART
- and -
ROYAL BANK OF CANADA, a Canadian chartered bank, as agent of the
Lenders hereunder (hereinafter referred to as the "Administrative
Agent")
OF THE THIRD PART
WHEREAS Keyspan Energy Development Co. as Borrower, Royal Bank of Canada,
JPMorgan Chase Bank, Toronto Branch (formerly known as The Chase Manhattan Bank
of Canada), The Toronto-Dominion Bank, Bank of Montreal, Bank One, National
Association, Canada Branch (formerly known as First Chicago NBD Bank, Canada),
Alberta Treasury Branches and National Bank of Canada as Lenders and Royal Bank
of Canada as Administrative Agent entered into a credit agreement (referred to
herein as the "Credit Agreement") dated as of July 29, 1999;
AND WHEREAS the Borrower, the Lenders and the Administrative Agent entered
into a first amending agreement dated as of October 13, 2000 in connection with
the Borrower incurring indebtedness of up to Cdn. $125,000,000 for purposes of
financing the purchase of Gulf Canada Resources Limited's then remaining
interest in certain midstream assets and financing the acquisition, operation,
maintenance, construction and expansion of gas processing and gathering assets;
AND WHEREAS the Borrower , the Lenders and the Administrative Agent entered
into a second amending agreement dated as of December 22, 2000 in connection
with the Borrower incurring indebtedness of up to Cdn. $100,000,000 and
acquiring certain Subsidiaries in connection with certain reorganizational
transactions involving the Borrower and its Subsidiaries;
AND WHEREAS the Borrower has requested that the Lenders consent to an
amendment to certain provisions set forth in the Credit Agreement;
AND WHEREAS the Borrower has requested that the Lenders consent to certain
intercorporate debt transactions involving the Borrower and its Affiliates;
AND WHEREAS the Lenders have required that the Borrower, the Lenders and
the Administrative Agent enter into this Third Amending Agreement as one of the
conditions to the Lenders providing their consent to the amendment of those
provisions and to those intercorporate debt transactions;
AND WHEREAS the Borrower, the Administrative Agent and the Lenders wish to
enter into this Third Amending Agreement to set forth the changes to the Credit
Agreement, and to otherwise confirm the provisions of Amended Credit Agreement
(as that term is defined below);
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which is hereby conclusively
acknowledged by each of the parties hereto, the parties hereto covenant and
agree as follows:
1. Definitions
All capitalized terms used in this Third Amending Agreement shall, unless
otherwise defined herein, have the meanings herein given to them in the Credit
Agreement, and:
"Amended Credit Agreement" means the Credit Agreement, as amended by this
Third Amending Agreement, and as it may hereafter be further amended from
time to time.
"Credit Agreement" means the credit agreement dated as of July 29, 1999
among Keyspan Energy Development Co. as Borrower, Royal Bank of Canada and
the other financial institutions named therein from time to time as Lenders
and Royal Bank of Canada as Administrative Agent, as such agreement was
amended by the First Amending Agreement and the Second Amending Agreement.
"First Amending Agreement" means the amending agreement dated as of October
13, 2000 among Keyspan Energy Development Co. as Borrower, Royal Bank of
Canada, JPMorgan Chase Bank, Toronto Branch, Bank of Montreal, Bank One,
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National Association, Canada Branch and Alberta Treasury Branches as
Lenders and Royal Bank of Canada as Administrative Agent.
"Intercorporate Debt Transactions" means the transactions summarized in
Exhibit "A" hereto, and all actions and matters incidental thereto.
"Second Amending Agreement" means the amending agreement dated as of
December 22, 2000 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, JPMorgan Chase Bank, Toronto Branch, Bank of Montreal, Bank
One, National Association, Canada Branch and Alberta Treasury Branches as
Lenders and Royal Bank of Canada as Administrative Agent.
"Third Amending Agreement" means this third amending agreement.
2. Amendments to Section 1.1 of the Credit Agreement
Effective as of December 31, 2002, Section 1.1 of the Credit Agreement is
amended by:
(a) deleting the chart in the definition of "Applicable BA Fee Rate" and
replacing same with the following chart:
---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
Xxxxx'x/S&P A1/A+ and A2 and X0/X Xxx0/ Xxx0 and Baa3/ Lower than
higher and A- BBB+ BBB and BBB- Baa3/ BBB- or
not rated
---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
Applicable BA Fee Rate 50 bps 60 bps 75 bps 100 bps 125 bps
---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
(b) deleting the chart in the definition of "Applicable Commitment Fee
Rate" and replacing same with the following chart:
---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
Xxxxx'x/S&P A1/A+ and A2 and X0/X Xxx0/ Xxx0 and Baa3/ Lower than
higher and A- BBB+ BBB and BBB- Baa3/ BBB- or
not rated
---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
Applicable Commitment Fee 11 bps 13.5 bps 15 bps 17.5 bps 20 bps
Rate
---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
(c) deleting the chart in the definition of "Applicable LIBOR Margin" and
replacing same with the following chart:
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---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5
Xxxxx'x/S&P A1/A+ and A2 and X0/X Xxx0/ Xxx0 and Baa3/ Lower than
higher and A- BBB+ BBB and BBB- Baa3/ BBB- or
not rated
---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
Applicable LIBOR Margin 50 bps 60 bps 75 bps 100 bps 125 bps
---------------------------- ------------------ -------------------- ----------- --------------------- -----------------------
(d) adding the following definitions immediately after the definition of
"Canadian Prime Rate Loan":
""Capital Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases
on a balance sheet of such Person under generally accepted
accounting principles (as approved from time to time by the
American Institute of Chartered Accountants, or any successor
institute) and, for the purposes of this Agreement, the amount of
such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with generally
accepted accounting principles (as approved from time to time by
the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants, or any successor
institute).
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and any and all
warrants, rights or options to purchase any of the foregoing.";
(e) deleting the definition of "Consolidated Capitalization" in its
entirety and replacing same with the following definition:
""Consolidated Capitalization" means, at any date, the sum of
Consolidated Net Worth and Consolidated Debt.";
(f) deleting the definition of "Consolidated Debt" in its entirety and
replacing same with the following definition:
""Consolidated Debt" means, at any date, all Debt of the
Guarantor and its Subsidiaries at such date, determined on a
consolidated basis in accordance with generally accepted
accounting principles (as approved from time to time by the
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Financial Accounting Standards Board of the American Institute of
Certified Public Accountants, or any successor institute), as
reflected on the balance sheet of the Guarantor as at the
relevant date.";
(g) adding the following definition immediately after the definition of
"Consolidated Net Income":
""Consolidated Net Worth" at any date, means all amounts that
would, in conformity with generally accepted accounting
principles (as approved from time to time by the Financial
Accounting Standards Board of the American Institute of Certified
Public Accountants, or any successor institute), be included on a
consolidated balance sheet of the Guarantor and its Subsidiaries
under stockholders' equity at such date.";
(h) deleting the definition of "Debt" in its entirety and replacing same
with the following definition:
""Debt" of any Person at any date, means, without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of
property or services (other than current trade payables incurred
in the ordinary course of such Person's business), (c) all
obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or
sale of such property), (e) all Capital Lease Obligations of such
Person, (f) all obligations of such Person, contingent or
otherwise, as an account party under acceptances, letters of
credit, surety bonds or similar arrangements, (g) the liquidation
value of all preferred Capital Stock of such Person that is
redeemable at the option of the holder thereof or that has any
mandatory dividend, redemption or other required payment that
could be required thereunder prior to the date that is one year
after the Maturity Date of the last Commitment outstanding
hereunder, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a)
through (g) above and, in the case of the Borrower, the Guarantor
and their Subsidiaries, in addition, clause (k) below), (i) all
obligations of the kind referred to in clauses (a) through (h)
above secured by (or for which the holder of such obligation has
an existing right, contingent or otherwise, to be secured by) any
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Security Interest on property (including accounts and contract
rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation, (j)
for the purposes of sections 10.1(g), (h) and (i) only, all
obligations of such Person in respect of Hedge Agreements, and
(k) in the case of the Borrower , the Guarantor and their
Subsidiaries, (A) Synthetic Lease Obligations relating to the
2,200 megawatt Ravenswood facility located in New York City, and
(B) any other Synthetic Lease Obligations of the Guarantor, the
Borrower or any of their Subsidiaries individually in excess of
U.S. $25,000,000; provided that, for the purposes of this
Agreement, (y) prior to the conversion to equity of the
Guarantor's MEDS Equity Units, 20% of the gross proceeds of such
securities shall be considered Debt of the Guarantor and the
remaining 80% of such proceeds shall be considered equity, and
(z) from and after the conversion to equity of the Guarantor's
MEDS Equity Units, all of the gross proceeds of such securities
shall be considered equity. The Debt of any Person shall include
the Debt of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is
liable therefor as a result of such Person's ownership interest
in or other relationship with such entity, except to the extent
the terms of such Debt expressly provide that such Person is not
liable therefor.";
(i) adding the following definition immediately after the definition of
"Guarantee":
""Guarantee Obligation" means, as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing
person, or (b) another Person (including any bank under any
letter of credit) to induce the creation in respect of which the
guaranteeing person has issued a reimbursement, counterindemnity
or similar obligation, in either case guaranteeing or in effect
guaranteeing any Debt, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly,
including any obligation of the guaranteeing person, whether or
not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment
of any such primary obligation, or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii)
to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of
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the ability of the primary obligor to make payment of such
primary obligation, or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which
such Guarantee Obligation is made, and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or
determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the
Borrower or the Guarantor in good faith.";
(j) adding the following definition immediately after the definition of
"Hazardous Materials":
""Hedge Agreements" means all interest rate swaps, caps or collar
agreements dealing with interest rates or currency exchange rates
or the exchange of nominal interest obligations, either generally
or under specific contingencies.";
(k) deleting the definition of "Keyspan Luxembourg Subordination
Agreement" in its entirety and replacing same with the following
definition:
""Keyspan Luxembourg Subordination Agreement" means the
subordination agreement dated as of December 22, 2000 among the
Borrower, the Administrative Agent on behalf of the Lenders and
Keyspan Luxembourg, as such agreement will be amended pursuant to
an Amending Agreement to be effective December 31, 2002 and to be
entered into among the Borrower, the Administrative Agent on
behalf of the Lenders and Keyspan Luxembourg pursuant to which
the KS Luxembourg Credit Agreement (as defined therein) is
amended to reflect the consolidation of certain debts owing by
the Borrower to Keyspan Luxembourg.";
(l) amending the definition of "KS Finance Loan" by adding the following
immediately after paragraph (g) thereof:
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"The parties hereto acknowledge and agree that the KS Finance
Loan will be the subject of a Consolidated Loan Agreement and a
Consolidated Promissory Note both to be effective December 31,
2002 whereby the amounts owing under the Term Loan Agreement will
be consolidated with all amounts owing under the Term Loan
Agreement dated June 1, 2000 between the Borrower and Nicodama
and the Promissory Note ($5,308,677) dated June 1, 2000 issued by
the Borrower to Nicodama, and that the KS Finance Loan will be
transferred to Keyspan Luxembourg pursuant to an Assignment and
Assumption Agreement between Nicodama and Keyspan Luxembourg to
be effective December 31, 2002.";
(m) deleting the definition of "Maturity Date" in its entirety and
replacing same with the following definition:
""Maturity Date" means, with respect to a Commitment, the date
that is the first anniversary of the Term Date in respect of such
Commitment; provided that, notwithstanding the foregoing, the
Maturity Date for the Commitment of Bank One, National
Association, Canada Branch shall be July 25, 2004.";
(n) deleting the definition of "Nicodama Subordination Agreement" in its
entirety and replacing same with the following definition:
""Nicodama Subordination Agreement" means the subordination and
postponement agreement dated as of July 29, 1999 among the
Borrower, the Administrative Agent on behalf of the Lenders and
KS Finance, as amended by a Novation Agreement dated December 22,
2000 among the Borrower, the Administrative Agent on behalf of
the Lenders, KS Finance and Nicodama, and as such agreement will
be further amended pursuant to an Amending and Novation Agreement
to be effective December 31, 2002 and to be entered into among
the Borrower, the Administrative Agent on behalf of the Lenders,
Nicodama and Keyspan Luxembourg pursuant to which: (i) the Term
Loan Agreement (as defined therein) is amended to reflect the
consolidation of certain debts owing by the Borrower to Nicodama;
and (ii) the transfer of the Subordinated Indebtedness (as
defined therein) by Nicodama to Keyspan Luxembourg is reflected,
in each case through a series of transactions described in the
last paragraph of the definition of "KS Finance Loan.";
(o) replacing the reference to "Cdn.$100,000,000" in paragraph (a.1) of
the definition of "Permitted Indebtedness" with "Cdn.$106,679,064.21";
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(p) adding the following definition immediately after the definition of
"Subsidiary":
""Synthetic Lease Obligations" means, as to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, so long as (i)
such obligations are not Capital Lease Obligations, and (ii) the
asset subject to such lease is a depreciable asset of such Person
for U.S. federal income tax purposes; for purposes of this
Agreement, the amount of such obligations at any time shall be
determined by calculating the purchase price that would be
required to be paid by such Person if such Person were to
exercise its option to purchase such asset under such lease.";
and
(q) adding the following definition immediately after the definition of
"Termination Event":
""Termout Premium" means, at any time, a rate per annum equal to
15 bps.".
3. Other Amendments to the Credit Agreement
Effective as of December 31, 2002:
(a) Section 1.4 of the Credit Agreement is amended by deleting the
word "Wherever" from the first line thereof and replacing that
word with the words "Except as otherwise set forth in this
Agreement, wherever";
(b) Sections 5.1 to 5.3, inclusive, of the Credit Agreement are
deleted in their entirety and replaced with the following:
"5.1 Interest on Canadian Prime Rate Loans
The Borrower shall pay interest on each Canadian Prime Rate Loan
during each Interest Period applicable thereto in Canadian
Dollars at a rate per annum, calculated on the basis of a 365 day
year, equal to the Canadian Prime Rate in effect from time to
time during such Interest Period plus the Applicable Prime Rate
Margin and (in respect of Canadian Prime Rate Loans which are
outstanding on and after the date (in this Section 5.1, the
"Termout Premium Effective Date") that is the later of (i) the
Term Date in respect of the Commitments pursuant to which those
Canadian Prime Rate Loans were made, and (ii) December 31, 2002)
the Termout Premium. Such interest shall accrue daily and shall
be payable in arrears on each Interest Payment Date for such Loan
for the period from and including (i) in the case of the Canadian
9
Prime Rate and the Applicable Prime Rate Margin, the Drawdown
Date or the preceding Conversion Date or Interest Payment Date,
as the case may be, for such Loan, and (ii) in the case of the
Termout Premium, the date that is the later of the Termout
Premium Effective Date and the Drawdown Date or the preceding
Conversion Date or Interest Payment Date, as the case may be, for
such Loan; in all cases to and including the day preceding such
Interest Payment Date and shall be calculated on the principal
amount of the Canadian Prime Rate Loan outstanding during such
period and on the basis of the actual number of days elapsed in a
year of 365 days. Changes in the Canadian Prime Rate or the
Applicable Prime Rate Margin, or the commencement of the
application of the Termout Premium, shall cause an immediate
adjustment of the interest rate applicable to such Loan without
the necessity of any notice to the Borrower.
5.2 Interest on U.S. Base Rate Loans
The Borrower shall pay interest on each U.S. Base Rate Loan
during each Interest Period applicable thereto in United States
Dollars at a rate per annum, calculated on the basis of a 365 day
year, equal to the U.S. Base Rate in effect from time to time
during such Interest Period plus the Applicable USBR Margin and
(in respect of U.S. Base Rate Loans which are outstanding on and
after the date (in this Section 5.2, the "Termout Premium
Effective Date") that is the later of (i) the Term Date in
respect of the Commitments pursuant to which those U.S. Base Rate
Loans were made, and (ii) December 31, 2002) the Termout Premium.
Such interest shall accrue daily and shall be payable in arrears
on each Interest Payment Date for such Loan for the period from
and including (i) in the case of the U.S. Base Rate and the
Applicable USBR Margin, the Drawdown Date or the preceding
Conversion Date or Interest Payment Date, as the case may be, for
such Loan, and (ii) in the case of the Termout Premium, the date
that is the later of the Termout Premium Effective Date and the
Drawdown Date or the preceding Conversion Date or Interest
Payment Date, as the case may be, for such Loan; in all cases to
and including the day preceding such Interest Payment Date and
shall be calculated on the principal amount of the U.S. Base Rate
Loan outstanding during such period and on the basis of the
actual number of days elapsed in a year of 365 days. Changes in
the U.S. Base Rate or the Applicable USBR Margin, or the
commencement of the application of the Termout Premium, shall
cause an immediate adjustment of the interest rate applicable to
such Loan without the necessity of any notice to the Borrower.
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5.3 Interest on LIBOR Loans
The Borrower shall pay interest on each LIBOR Loan during each
Interest Period applicable thereto in United States Dollars at a
rate per annum, calculated on the basis of a 360 day year, equal
to the LIBOR Rate with respect to such Interest Period plus the
Applicable LIBOR Margin and (in respect of LIBOR Loans which are
outstanding on and after the date (in this Section 5.3, the
"Termout Premium Effective Date") that is the later of (i) the
Term Date in respect of the Commitments pursuant to which those
LIBOR Loans were made, and (ii) December 31, 2002) the Termout
Premium. Such interest shall accrue daily and shall be payable in
arrears on each Interest Payment Date for such Loan for the
period from and including (i) in the case of the LIBOR Rate and
the Applicable LIBOR Margin, the Drawdown Date or the preceding
Rollover Date, Conversion Date or Interest Payment Date, as the
case may be, for such Loan, and (ii) in the case of the Termout
Premium, the date that is the later of the Termout Premium
Effective Date and the Drawdown Date or the preceding Conversion
Date or Interest Payment Date, as the case may be, for such Loan;
in all cases to and including the day preceding such Interest
Payment Date and shall be calculated on the principal amount of
the LIBOR Loan outstanding during such period and on the basis of
the actual number of days elapsed in a year of 360 days. Changes
in the LIBOR Rate or the Applicable LIBOR Margin, or the
commencement of the application of the Termout Premium, shall
cause an immediate adjustment of the interest rate applicable to
such Loan without the necessity of any notice to the Borrower.";
(c) Section 5.11 of the Credit Agreement is amended by adding the words
and figures ", the Termout Premium" immediately after the words
"Applicable BA Fee Rate" in the third line thereof;
(d) Section 6.2 of the Credit Agreement is deleted in its entirety and
replaced with the following:
"6.2 Fees
Upon the acceptance by a Lender of a Bankers' Acceptance, the
Borrower shall pay to the Administrative Agent for the account of
such Lender a fee in Canadian Dollars equal to the sum of the
Applicable BA Fee Rate and (in respect of Bankers' Acceptances
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which are outstanding on and after the date (in this Section 6.2,
the "Termout Premium Effective Date") that is the later of (i)
the Term Date in respect of the Commitments pursuant to which
those Bankers' Acceptances were accepted, and (ii) December 31,
2002) the Termout Premium, calculated on the principal amount at
maturity of such Bankers' Acceptance and for the period of time
from and including (i) in the case of the Applicable BA Fee Rate,
the date of acceptance, and (ii) in the case of the Termout
Premium, the date that is the later of the Termout Premium
Effective Date and the date of acceptance; in all cases to but
excluding the maturity date of such Bankers' Acceptance and
calculated on the basis of the actual number of days elapsed in a
year of 365 days.";
(e) Section 8.1(n) of the Credit Agreement is deleted in its entirety and
replaced with the following:
"Debt - The Borrower has no indebtedness for borrowed money
except (i) the amount of up to $105,058,379.58 plus interest
accrued thereon since January 1, 2001 owing to Nicodama or (once
the transactions referred to in the last paragraph of the
definition of "KS Finance Loan" have been completed) Keyspan
Luxembourg pursuant to the KS Finance Loan, (ii) indebtedness of
up to Cdn.$125,000,000 pursuant to the credit agreement dated as
of October 13, 2000 among the Borrower as Borrower, Bank of
Montreal and the other financial institutions named therein from
time to time as lenders and Bank of Montreal as agent for those
lenders, (iii) indebtedness in the principal amount of up to
Cdn.$106,679,064.21 and interest thereon since January 1, 2001,
pursuant to the KS Luxembourg Credit Agreement (as that term is
defined in the Keyspan Luxembourg Subordination Agreement), as
such credit agreement is to be replaced by a Consolidated Loan
Agreement between the Borrower and Keyspan Luxembourg and a
Consolidated Promissory Note granted by the Borrower to Keyspan
Luxembourg both to be effective December 31, 2002, and (iv) other
indebtedness permitted hereunder or consented to in writing by
the Administrative Agent.";
(f) Section 10.1(r)(i) of the Credit Agreement is amended by replacing the
numbers and figures "0.65:1" with "0.66:1";
(g) Section 14.10(a)(ii) of the Credit Agreement is amended by adding the
words and figures ", the Termout Premium" immediately after the words
"Applicable Margin" in the first line thereof; and
(h) the end of the current Revolving Period is hereby deemed to be July
23, 2003.
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4. Consent
To the extent their consent is required, the Administrative Agent and the
Lenders hereby consent to the Intercorporate Debt Transactions for all purposes
under the Amended Credit Agreement, and all documents and agreements incidental
thereto, including without limitation the Nicodama Subordination Agreement and
the Keyspan Luxembourg Subordination Agreement.
5. Conditions Precedent
The amendments to the Credit Agreement set forth in paragraphs 2(a), (b),
(c), (m) and (q) and 3(b), (c), (d) and (h) of this Third Amending Agreement are
unconditional and shall be effective as of December 31, 2002. The other
amendments to the Credit Agreement set forth in Section 2 and Section 3 of this
Third Amending Agreement, and the consent set forth in Section 4 of this Third
Amending Agreement, shall not be effective unless the following conditions have
been fulfilled to the satisfaction of the Administrative Agent:
(a) the Administrative Agent shall have received from the Guarantor a
confirmation of the Guarantee in form and substance satisfactory to
the Administrative Agent regarding the amendments to the Credit
Agreement set forth in this Third Amending Agreement;
(b) no Default or Event of Default shall have occurred and be continuing,
and the Administrative Agent shall have received a certificate of an
officer of the Borrower to that effect; and
(c) the Borrower shall have paid to the Agent for the rateable benefit of
the Lenders an amount equal to 10 bps on the aggregate Commitments of
all of the Lenders.
The Administrative Agent shall forthwith advise the Borrower when all of
the foregoing conditions in this Section 5 have been satisfied.
6. Provisions Regarding Intercorporate Debt Transactions
(a) The Borrower represents and warrants that it expects the transactions
referred to in paragraphs 1 through 6 of Exhibit A hereto to have been
completed on or before December 31, 2002.
(b) The Borrower covenants and agrees to execute and deliver, and to cause
Keyspan Luxembourg to execute and deliver, to the Administrative Agent
on behalf of the Lenders, an amending agreement (the "Amending
Agreement") substantially in the form attached hereto as Exhibit B, in
respect of the Keyspan Luxembourg Subordination Agreement which amends
the definition of "KS Luxembourg Credit Agreement" therein so as to
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accommodate certain changes to the KS Luxembourg Credit Agreement as
set forth in the Amending Agreement. The Borrower acknowledges and
agrees that:
(i) it will execute and deliver, and cause Keyspan Luxembourg to
execute and deliver, the Amending Agreement to the Administrative
Agent on behalf of the Lenders forthwith upon completion of the
transactions referred to in paragraph 7 of Exhibit A hereto; and
(ii) if the Borrower fails to comply with its obligations in paragraph
(i) above, then such failure shall be deemed to be an Event of
Default under the Amended Credit Agreement.
(c) The Borrower covenants and agrees to execute and deliver, and to cause
Nicodama to execute and deliver, to the Administrative Agent on behalf
of the Lenders an amending and novation agreement (the "Amending and
Novation Agreement") substantially in the form attached hereto as
Exhibit C, in respect of the Nicodama Subordination Agreement which
amends the definition of "Term Loan Agreement" therein so as to
accommodate certain changes to the Term Loan Agreement and to novate
Keyspan Luxembourg into the Nicodama Subordination Agreement, all as
set forth in the Amending and Novation Agreement. The Borrower
acknowledges and agrees that:
(i) it will execute and deliver, and cause Nicodama and Keyspan
Luxembourg to execute and deliver, such Amending and Novation
Agreement to the Administrative Agent on behalf of the Lenders
forthwith upon completion of all of the transactions referred to
in paragraphs 8 and 9 of Exhibit A hereto; and
(ii) if the Borrower fails to comply with its obligations in paragraph
(i) above, then such failure shall be deemed to be an Event of
Default under the Amended Credit Agreement.
7. Representations and Warranties
The Borrower hereby represents and warrants to the Lenders that the
applicable representations and warranties contained in Section 8.1 of the Credit
Agreement are true and accurate in all material respects as if made on the date
of this Third Amending Agreement.
8. Confirmation
Each of the parties hereto acknowledges and agrees that the Credit
Agreement, as amended by this Third Amending Agreement, and all other Documents
14
are and will continue to be in full force and effect, and are hereby ratified
and confirmed, and the rights and obligations of all parties thereunder will not
be affected in any manner by the provisions of this Third Amending Agreement,
except as expressly provided in Section 2 and Section 3 of this Third Amending
Agreement.
9. Further Assurances
The Borrower will from time to time forthwith, and at the Borrower's own
cost and expense, do, make, execute and deliver, or cause to be done, made,
executed and delivered, all such further documents, financing statements,
assignments, acts, manners and things which may be reasonably required by the
Administrative Agent and are consistent with the intention of the parties hereto
as evidenced herein, with respect to all matters arising under this Third
Amending Agreement or the Amended Credit Agreement.
10. Expenses
Without in any way limiting the provisions of Section 12.1 of the Credit
Agreement, the Borrower will be liable for all reasonable expenses of the
Administrative Agent and the Lenders, including legal fees, the fees and
expenses of the Administrative Agent and other out-of-pocket expenses, in
connection with the negotiation, preparation, execution and delivery of this
Third Amending Agreement.
15
11. Counterparts
This Third Amending Agreement may be executed in any number of
counterparts, each of which when executed and delivered will be deemed to be an
original, and all of which when taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF the parties hereto have caused this Third Amending
Agreement to be duly executed by their respective authorized officers as of the
date and year first above written.
KEYSPAN ENERGY DEVELOPMENT CO.,
as Borrower
Per:
-------------------------------------------
Name:
Title:
Per:
-------------------------------------------
Name:
Title:
ROYAL BANK OF CANADA, in its capacity
as Administrative Agent
Per:
-------------------------------------------
Name:
Title:
Per:
-------------------------------------------
Name:
Title:
16
ROYAL BANK OF CANADA, as a Lender
Per:
--------------------------------------
Name:
Title:
Per:
--------------------------------------
Name:
Title:
This page is attached to and forms part of a Third Amending Agreement dated as
of December 20, 2002 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, JPMorgan Chase Bank, Toronto Branch, Bank of Montreal, Bank One,
National Association, Canada Branch and Alberta Treasury Branches as Lenders and
Royal Bank of Canada as Administrative Agent.
00
XXXXXXXX XXXXX XXXX, XXXXXXX
BRANCH, as a Lender
Per:
---------------------------------
Name:
Title:
Per:
---------------------------------
Name:
Title:
This page is attached to and forms part of a Third Amending Agreement dated as
of December 20, 2002 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, JPMorgan Chase Bank, Toronto Branch, Bank of Montreal, Bank One,
National Association, Canada Branch and Alberta Treasury Branches as Lenders and
Royal Bank of Canada as Administrative Agent.
18
BANK OF MONTREAL, as a Lender
Per:
------------------------------
Name:
Title:
Per:
------------------------------
Name:
Title:
This page is attached to and forms part of a Third Amending Agreement dated as
of December 20, 2002 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, JPMorgan Chase Bank, Toronto Branch, Bank of Montreal, Bank One,
National Association, Canada Branch and Alberta Treasury Branches as Lenders and
Royal Bank of Canada as Administrative Agent.
19
BANK ONE, NATIONAL
ASSOCIATION, CANADA BRANCH, as
a Lender
Per:
--------------------------------
Name:
Title:
Per:
--------------------------------
Name:
Title:
This page is attached to and forms part of a Third Amending Agreement dated as
of December 20, 2002 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, JPMorgan Chase Bank, Toronto Branch, Bank of Montreal, Bank One,
National Association, Canada Branch and Alberta Treasury Branches as Lenders and
Royal Bank of Canada as Administrative Agent.
20
ALBERTA TREASURY BRANCHES, as a
Lender
Per:
-------------------------------
Name:
Title:
Per:
-------------------------------
Name:
Title:
This page is attached to and forms part of a Third Amending Agreement dated as
of December 20, 2002 among Keyspan Energy Development Co. as Borrower, Royal
Bank of Canada, JPMorgan Chase Bank, Toronto Branch, Bank of Montreal, Bank One,
National Association, Canada Branch and Alberta Treasury Branches as Lenders and
Royal Bank of Canada as Administrative Agent.
21
EXHIBIT A to the Third Amending Agreement dated as of December 20, 2002 among
Keyspan Energy Development Co., as Borrower, Royal Bank of Canada, JPMorgan
Chase Bank, Toronto Branch, Bank Of Montreal, Bank One, National Association,
Canada Branch and Alberta Treasury Branches, as Lenders, and Royal Bank of
Canada, as Administrative Agent
Intercorporate Debt Transactions (1)
1. Nicodama loaned $5,308,677.44 to the Borrower on June 1, 2000 ("Nicodama
Loan #2").
2. The Borrower pays interest of $709,357.92 to Keyspan Luxembourg on the KS
Luxembourg Loan, as that term is defined in the Keyspan Luxembourg
Subordination Agreement, deducting 10 percent of the interest payment for
remittance to the Canada Customs and Revenue Agency ("CCRA").
3. The Borrower makes a repayment of principal in the amount of $70,935.79 on
the KS Luxembourg Loan (leaving a principal amount remaining on the KS
Luxembourg Loan of $99,929,064.21).
4. The Borrower pays interest of $7,621,378.56 to Nicodama on the KS Finance
Loan and Nicodama Loan #2, deducting 10 percent of the interest payment for
remittance to the CCRA.
5. The Borrower makes a repayment of principal in the amount of $762,137.86 on
the KS Finance Loan (leaving a principal amount remaining on the KS Finance
Loan of $99,749,702.14).
6. Keyspan Luxembourg loans the Borrower $6,750,000.00 ("KS Luxembourg Loan
#2") on terms identical to the KS Luxembourg Loan.
7. Keyspan Luxembourg and the Borrower consolidate the KS Luxembourg Loan (of
which $99,929,064.21 is outstanding) and the KS Luxembourg Loan #2, issuing
a Consolidated Promissory Note and entering into a Consolidated Loan
Agreement which requires Keyspan Luxembourg to loan future payments of
accrued interest back to the Borrower and allows the Borrower to re-pay
principal before accrued interest.
8. Nicodama and the Borrower consolidate the KS Finance Loan (of which
$99,749,702.14 is outstanding) and Nicodama Loan #2, issuing a Promissory
Note and a Consolidated Loan Agreement which restates the loan principal,
provides for interest calculation and allows the Borrower to re-pay
principal before accrued interest.
9. Nicodama transfers the Nicodama Promissory Note and the Nicodama
Consolidated Loan Agreement to Keyspan Luxembourg as payment of certain
amounts owing by Nicodama to Keyspan Luxembourg.
--------
(1) Amounts referenced herein are stated in Canadian dollars.
EXHIBIT B to the Third Amending Agreement dated as of December 20, 2002 among
Keyspan Energy Development Co., as Borrower, Royal Bank of Canada, JPMorgan
Chase Bank, Toronto Branch, Bank of Montreal, Bank One, National Association,
Canada Branch and Alberta Treasury Branches, as Lenders, and Royal Bank of
Canada, as Administrative Agent
Amending Agreement
EXHIBIT C to the Third Amending Agreement dated as of December 20, 2002 among
Keyspan Energy Development Co., as Borrower, Royal Bank of Canada, JPMorgan
Chase Bank, Toronto Branch, Bank of Montreal, Bank One, National Association,
Canada Branch and Alberta Treasury Branches, as Lenders, and Royal Bank of
Canada, as Administrative Agent
Amending and Novation Agreement