EXECUTION COPY
FOURTH AMENDMENT
dated as of November 17, 2000
to the
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of February 2, 1995
THIS FOURTH AMENDMENT, dated as of November 17, 2000 (this "Fourth
Amendment"), to and under the Credit Agreement (as defined below), is entered
into among YANKEE GAS SERVICES COMPANY (the "Borrower"), the BANKS listed on
the signature pages hereof, THE BANK OF NEW YORK (in its capacity as Agent,
the "Agent") and FLEET NATIONAL BANK, as Co-Agent.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agent are parties to the
Amended and Restated Credit Agreement, dated as of February 2, 1995, among
the Borrower, the Banks party thereto and the Agent, as amended by the First
Amendment thereto dated as of September 26, 1997, the Second Amendment
thereto dated as of January 29, 1999 and the Third Amendment thereto dated as
of January 28, 2000 (as so amended, the "Credit Agreement"); and WHEREAS, the
Borrower, the Banks and the Agent have agreed to extend the Credit Agreement
to November 16, 2001; and
WHEREAS, such amendments will be of benefit, either directly or
indirectly, to the Borrower;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments. Upon and after the Amendment Effective Date (as
defined in Section 3 hereof), the Credit Agreement is hereby amended as
follows:
(a) Section 3.11 of the Credit Agreement shall be amended and restated in
its entirety to read as follows:
"Section 3.11. Investment Company Act; Public Utility Holding Company Act.
The Borrower is a subsidiary of a "registered holding company" within the
meaning of that term under the Public Utility Holding Company Act of 1935
(the "Act"). The Borrower is not an "investment company" within the meaning
of the Investment Company Act of 1940."
(b) The definition of "Termination Date" contained in Section 10.01 of
Credit Agreement shall be amended and restated in its entirety to read as
follows:
"`Termination Date' shall mean November 16, 2001."
Section 2. Up-front Fee. In consideration of the Banks agreeing to
this Fourth Amendment, the Borrower agrees to pay to the Agent for the pro
rata account of each Bank an up-front fee in an amount equal to .05% of the
aggregate Commitments, payable on the Amendment Effective Date.
Section 3. Effectiveness. This Fourth Amendment shall become effective
as of the date first above written on the date (the "Amendment Effective
Date") on which (a) the Agent shall have received (i) this Fourth Amendment,
duly executed and delivered by the Borrower, each Bank and the Agent, (ii) an
opinion of counsel to the Borrower, dated the Amendment Effective Date, in
form and substance satisfactory to the Agent, and (iii) such other documents,
certificates and other materials as the Agent shall reasonably require and
(b) the Borrower shall have paid (i) to the Agent, for the pro rata account
of each Bank, the up-front fee as set forth in Section 2 of this Fourth
Amendment and (ii) to BNY Capital Markets, Inc. ("BNYCMI"), for its own
account, the fees as set forth in that certain Administration Fee Letter
dated November 17, 2000 among the Borrower, the Agent and BNYCMI.
Section 4. Representations and Warranties. In order to induce the
Banks and the Agent to agree to amend the Credit Agreement as set forth in
this Fourth Amendment, the Borrower hereby represents and warrants as
follows:
(a) The Borrower has the corporate power and authority to execute, deliver
and perform this Fourth Amendment and the Credit Agreement as amended hereby,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Fourth Amendment and the Credit Agreement as
amended hereby, the borrowings under the Credit Agreement as amended hereby
and the use of the proceeds thereof.
(b) This Fourth Amendment and the Credit Agreement have been duly executed
and delivered on behalf of the Borrower, and this Fourth Amendment and the
Credit Agreement as amended hereby constitute legal, valid and binding
obligations of the Borrower, enforceable against it in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally and by general principles of equity.
(c) The execution, delivery and performance of this Fourth Amendment and the
Credit Agreement as amended hereby, and the borrowings under the Credit
Agreement as amended hereby and the use of the proceeds thereof, do not and
will not (i) violate any Applicable Law or any Contract to which the Borrower
or any of its Subsidiaries is a party or by which the Borrower or any of its
Subsidiaries or any of their respective properties may be bound, (ii) require
any license, consent, authorization, approval or any other action by, or any
notice to or filing or registration with, any governmental authority or other
Person, except for routine filings required under the Act or (iii) result in
the creation or imposition of any Lien on any asset of the Borrower.
(d) The Borrower hereby confirms, reaffirms and restates the Representations
and Warranties set forth in Article 3 of the Credit Agreement; provided,
however, the Borrower hereby represents that as a result of the merger of
Yankee Energy Systems, Inc. with Northeast Utilities, the Borrower is a
Subsidiary of a registered holding company under the Act and must comply with
various provisions of the Act.
(e) Each of the Representations and Warranties made in this Section 4 shall
be deemed made on and as of the Amendment Effective Date (or, if any such
Representation or Warranty is expressly stated to have been made as of a
specific date, as of such specific date).
Section 5. Continuing Effect. The Credit Agreement, as amended by this
Fourth Amendment, is and shall continue to be in full force and effect and is
hereby in all respects confirmed, approved and ratified. This Fourth
Amendment shall be effective only in the specific instance and for the
specific purpose for which given. By entering into this Fourth Amendment,
the Banks shall not be deemed to have, or intended to have, waived any rights
that they, or any of them, now or hereafter may have under any other
provisions of the Loan Documents.
Section 6. Defined Terms. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Credit Agreement.
Section 7. Governing Law. The rights and duties of the Borrower, the Banks
and the Agent under this Fourth Amendment shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the State of New
York.
Section 8. Counterparts. This Fourth Amendment may be executed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto were upon the same instrument.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to be executed by their duly authorized officers all as of the date first
above written.
YANKEE GAS SERVICES COMPANY,
as Borrower
By:
Name:
Title:
THE BANK OF NEW YORK, as a Bank
and as Agent
By:
Name:
Title:
FLEET NATIONAL BANK, as a Bank and
as Co-Agent
By:
Name:
Title:
CITIZENS BANK OF CONNECTICUT,
as a Bank
By:
Name:
Title:
FOURTH AMENDMENT
dated as of November 17, 2000
to
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of February 2, 1995
among
YANKEE GAS SERVICES COMPANY, as Borrower,
THE BANKS LISTED ON THE
SIGNATURE PAGES THEREOF,
THE BANK OF NEW YORK, as Agent
and
FLEET NATIONAL BANK, as Co-Agent
