EXECUTION COPY
CREDIT AGREEMENT
Dated as of
June 30, 1995
among
Bangor Hydro-Electric Company,
The Banks Named Herein,
Chemical Bank,
as Administrative Agent,
and
Fleet Bank of Maine and The First National Bank of Boston,
as Co-Agents
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . 1
SECTION 1.1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS. . . . . . . . . . . . . . 14
ARTICLE II
THE COMMITMENTS . . . . . . . . . . . . . . 14
SECTION 2.1 REVOLVING CREDIT LOANS . . . . . . . . . . . . . . . . . 14
SECTION 2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING . . . . . . . . 15
SECTION 2.3 REVOLVING CREDIT NOTES . . . . . . . . . . . . . . . . . 15
SECTION 2.4 SWING LINE COMMITMENT. . . . . . . . . . . . . . . . . . 16
SECTION 2.5 COMMITMENT FEE . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.6 OPTIONAL TERMINATION OR REDUCTION OF REVOLVING CREDIT
COMMITMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.7 TERM LOANS.. . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.8 TERM NOTES . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 2.9 PROCEDURE FOR TERM LOAN BORROWING. . . . . . . . . . . . 19
SECTION 2.10 OPTIONAL PREPAYMENTS. . . . . . . . . . . . . . . . . . 19
SECTION 2.11 MANDATORY REPAYMENTS AND COMMITMENT REDUCTIONS . . . . 20
SECTION 2.12 COMPUTATION OF INTEREST AND FEES. . . . . . . . . . . . 21
SECTION 2.13 INTEREST RATE AND PAYMENT DATES . . . . . . . . . . . . 21
SECTION 2.14 CONVERSION OPTIONS. . . . . . . . . . . . . . . . . . . 21
SECTION 2.15 INABILITY TO DETERMINE INTEREST RATE. . . . . . . . . . 22
SECTION 2.16 PRO RATA TREATMENT AND PAYMENTS.. . . . . . . . . . . . 23
SECTION 2.17 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.18 REQUIREMENTS OF LAW.. . . . . . . . . . . . . . . . . . 24
SECTION 2.19 INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III
LETTERS OF CREDIT. . . . . . . . . . . . . . 26
SECTION 3.1 L/C COMMITMENT.. . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. . . . . . . 26
SECTION 3.3 COMMISSIONS AND OTHER CHARGES. . . . . . . . . . . . . . 27
SECTION 3.4 L/C PARTICIPATIONS.. . . . . . . . . . . . . . . . . . . 27
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE COMPANY. . . . . . . . . 28
SECTION 3.6 OBLIGATIONS ABSOLUTE.. . . . . . . . . . . . . . . . . . 29
SECTION 3.7 LETTER OF CREDIT PAYMENTS. . . . . . . . . . . . . . . . 29
SECTION 3.8 APPLICATION. . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IV
CONDITIONS TO EXTENSIONS OF CREDIT. . . . . . . . . . 30
SECTION 4.1 EACH EXTENSION OF CREDIT . . . . . . . . . . . . . . . . 30
SECTION 4.2 FIRST LOAN . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 4.3 SPECIFIED LETTER OF CREDIT . . . . . . . . . . . . . . . 32
ARTICLE V
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . 32
SECTION 5.1 CORPORATE EXISTENCE AND POWER. . . . . . . . . . . . . . 32
SECTION 5.2 CORPORATE AUTHORIZATION; NON-CONTRAVENTION. . . . . . . 33
SECTION 5.3 BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.4 FINANCIAL INFORMATION. . . . . . . . . . . . . . . . . . 33
SECTION 5.5 LEGAL AND REGULATORY PROCEEDINGS . . . . . . . . . . . . 33
SECTION 5.6 GOVERNMENTAL AUTHORIZATION . . . . . . . . . . . . . . . 33
SECTION 5.7 TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.8 SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.9 COMPLIANCE WITH ERISA. . . . . . . . . . . . . . . . . . 34
SECTION 5.10 USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.11 PROPERTIES. . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.12 NO DEFAULTS, VIOLATIONS, ETC. . . . . . . . . . . . . . 35
SECTION 5.13 RESTRICTIONS ON COMPANY . . . . . . . . . . . . . . . . 35
SECTION 5.14 PUBLIC UTILITY HOLDING COMPANY ACT. . . . . . . . . . . 35
ARTICLE VI
COVENANTS. . . . . . . . . . . . . . . . 35
SECTION 6.1 INFORMATION. . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 6.2 PAYMENT OF TAXES; PRESERVATION OF CORPORATE EXISTENCE
AND FRANCHISES; MAINTENANCE OF PROPERTIES; COMPLIANCE WITH
LAWS; MAINTENANCE OF INSURANCE . . . . . . . . . . . . . . . . . 37
SECTION 6.3 LIMITATION ON DEBT . . . . . . . . . . . . . . . . . . . 38
SECTION 6.4 INVESTMENTS. . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.5 NEGATIVE PLEDGE. . . . . . . . . . . . . . . . . . . . . 39
SECTION 6.6 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. . . . . . . 41
SECTION 6.7 CONSOLIDATED TOTAL DEBT RATIO. . . . . . . . . . . . . . 41
SECTION 6.8 CONSOLIDATED FIXED CHARGE RATIO. . . . . . . . . . . . . 41
SECTION 6.9 MAINTENANCE OF NET WORTH . . . . . . . . . . . . . . . . 42
SECTION 6.10 LIMITATION ON DIVIDENDS, ETC. . . . . . . . . . . . . . 42
SECTION 6.11 STATUS. . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 6.12 AMENDMENTS TO SECOND MORTGAGE BONDS, ETC. . . . . . . . 42
SECTION 6.13 INTEREST RATE PROTECTION. . . . . . . . . . . . . . . . 43
SECTION 6.14 LIMITATION ON OPTIONAL PREPAYMENTS OF CERTAIN DEBT. . . 43
SECTION 6.15 RIGHTS OF INSPECTION. . . . . . . . . . . . . . . . . . 43
SECTION 6.16 MATTERS OF ENVIRONMENTAL CONCERN. . . . . . . . . . . . 43
ARTICLE VII
DEFAULTS . . . . . . . . . . . . . . . . 44
SECTION 7.1 EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . 44
SECTION 7.2 NOTICE OF EVENT OF DEFAULT . . . . . . . . . . . . . . . 46
ARTICLE VIII
THE ADMINISTRATIVE AGENT . . . . . . . . . . . . 46
SECTION 8.1 APPOINTMENT. . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 8.2 DELEGATION OF DUTIES . . . . . . . . . . . . . . . . . . 47
SECTION 8.3 EXCULPATORY PROVISIONS . . . . . . . . . . . . . . . . . 47
SECTION 8.4 RELIANCE BY ADMINISTRATIVE AGENT . . . . . . . . . . . . 47
SECTION 8.5 NOTICE OF EVENT OF DEFAULT . . . . . . . . . . . . . . . 48
SECTION 8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS . . 48
SECTION 8.7 INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 48
SECTION 8.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. . . . . 49
SECTION 8.9 SUCCESSOR ADMINISTRATIVE AGENT . . . . . . . . . . . . . 49
SECTION 8.10 CO-AGENTS . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE IX
MISCELLANEOUS. . . . . . . . . . . . . . . 50
SECTION 9.1 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 9.2 NO WAIVERS; CUMULATIVE REMEDIES. . . . . . . . . . . . . 50
SECTION 9.3 EXPENSES; DOCUMENTARY TAXES. . . . . . . . . . . . . . . 50
SECTION 9.4 ADJUSTMENTS. . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 9.5 AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . 51
SECTION 9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING
BANKS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE X. . . . . . . . . . . . . . . . 54
SECTION 10.1 COUNTERPARTS; EFFECTIVENESS . . . . . . . . . . . . . . 55
ARTICLE XI. . . . . . . . . . . . . . . . 55
SECTION 11.1 SECTION HEADINGS. . . . . . . . . . . . . . . . . . . . 55
ARTICLE XII . . . . . . . . . . . . . . . 55
SECTION 12.1 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE XIII . . . . . . . . . . . . . . . 55
SECTION 13.1 SUBMISSION TO JURISDICTION; WAIVERS . . . . . . . . . . 55
SCHEDULE I Commitment Schedule
SCHEDULE II Address Schedule
EXHIBIT A-1 Form of Revolving Credit Note
EXHIBIT A-2 Form of Swing Line Note
EXHIBIT B Form of Term Note
EXHIBIT C Closing Certificate
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E-1 Opinion to be Delivered by General Counsel
of Company
EXHIBIT E-2 Opinion of Winthrop, Stimson
EXHIBIT E-3 Opinion of Eaton, Peabody
EXHIBIT F Form of Pledge Agreement
EXHIBIT G List of Subsidiaries of Company
EXHIBIT H List of Guarantees
EXHIBIT I 1994 Audited Financial Statement of the Company
(from the Company's 1994 Annual Report on
Form 10-K)
CREDIT AGREEMENT dated as of June 30, 1995 among Bangor
Hydro-Electric Company, a Maine corporation (the "COMPANY"), the several
banks from time to time parties to this Agreement (individually, a "BANK" and
collectively, the "BANKS"), Chemical Bank, as administrative agent for the
Banks, and Fleet Bank of Maine and The First National Bank of Boston, as co-
agents (in such capacity, the "CO-AGENTS").
The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 (A) DEFINITIONS. The following
terms, as used herein, have the following meanings:
"ADMINISTRATIVE AGENT": Chemical Bank, together with its
affiliates, as the arranger of the Commitments and as the agent for the
Banks under this Agreement and the other Loan Documents.
"AGGREGATE OUTSTANDING REVOLVING EXTENSIONS OF CREDIT": as to
any Revolving Credit Bank at any time, an amount equal to the sum of (a)
the aggregate principal amount of all Revolving Credit Loans made by
such Bank then outstanding, (b) such Bank's Revolving Credit Commitment
Percentage of the L/C Obligations then outstanding, and (c) such Bank's
Revolving Credit Commitment Percentage of the aggregate principal amount
of all Swing Line Loans then outstanding.
"AGREEMENT": this Credit Agreement, as amended, supplemented
or modified from time to time.
"APPLICABLE BASE RATE MARGIN": with respect to each Base Rate
Loan at any date, the applicable percentage per annum set forth below
based upon the Status on such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
------- -------- --------- -------- -------
0.00% 0.25% 0.75% 1.00% 1.50%
"APPLICABLE EURODOLLAR MARGIN": with respect to each
Eurodollar Loan at any date, the applicable percentage per annum set
forth below based upon the Status on such date:
Level I Level II Level III Level IV Level V
Status Status Status Status Status
------- -------- --------- -------- -------
0.75% 1.25% 1.75% 2.00% 2.50%
"APPLICATION": an application, in such form as the Issuing
Bank may specify from time to time, requesting the Issuing Bank to open
a Letter of Credit.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT": an Assignment and
Acceptance Agreement, substantially in the form of Exhibit D.
"AVAILABLE REVOLVING CREDIT COMMITMENT": as to any Revolving
Credit Bank, at a particular time, an amount equal to the excess, if
any, of (a) the amount of such Bank's Revolving Credit Commitment at
such time over (b) such Bank's Aggregate Outstanding Revolving
Extensions of Credit at such time; PROVIDED, that in calculating any
Bank's Aggregate Outstanding Revolving Extensions of Credit for the
purpose of determining such Bank's Available Revolving Credit Commitment
pursuant to Section 2.5, the aggregate unpaid principal amount of Swing
Line Loans then outstanding shall be deemed to be zero.
"BASE RATE": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof: "PRIME RATE" shall mean the
rate of interest per annum publicly announced from time to time by
Chemical Bank as its prime rate in effect at its principal office in New
York City (the Prime Rate not being intended to be the lowest rate of
interest charged by Chemical Bank in connection with extensions of
credit to debtors); "BASE CD RATE" shall mean the sum of (a) the product
of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the
numerator of which is one and the denominator of which is one minus the
CD Reserve Percentage and (b) the CD Assessment Rate; "THREE-MONTH
SECONDARY CD RATE" shall mean, for any day, the secondary market rate
for three-month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the next
preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will,
under the current practices of the Board, be published in Federal
Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in
New York City received at approximately 10:00 A.M., New York City time,
on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; "CD ASSESSMENT RATE" shall mean, for any day, the annual
assessment rate in effect on such day which is payable by a member of
the Bank Insurance Fund maintained by the FDIC classified as
well-capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.3(d) (or any successor provision) to the FDIC for the
FDIC's insuring time deposits at offices of such institution in the
United States; "CD RESERVE PERCENTAGE" shall mean, for any day, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement
for a Depositary Institution (as defined in Regulation D of the Board)
in respect of new non-personal time deposits in Dollars having a
maturity of 30 days or more; and "FEDERAL FUNDS EFFECTIVE RATE" shall
mean, for any day, the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate, or both, for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Base Rate shall be
determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD
Rate, the CD Reserve Percentage, the CD Assessment Rate or the Federal
Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate, the Three-Month
Secondary CD Rate, the CD Reserve Percentage, the CD Assessment Rate or
the Federal Funds Effective Rate, respectively.
"BASE RATE LOANS": loans hereunder at such time as they are
being made and/or being maintained at a rate of interest based upon the
Base Rate (including Swing Line Loans).
"BOARD": the Board of Governors of the Federal Reserve System
(or any successor).
"BORROWING DATE": any Business Day specified in a notice
pursuant to Section 2.2, 2.4 or 2.9 as a date on which the Company
requests the relevant Banks to make Revolving Credit Loans, Swing Line
Loans or Term Loans, as the case may be, hereunder.
"BUSINESS DAY": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"CAPITAL STOCK": 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 or options
to purchase any of the foregoing.
"CASH": with respect to the Company, the sum of (i) cash on
hand and all money in demand deposit or similar accounts; and (ii)
Temporary Cash Investments.
"CODE": the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL BONDS": as defined in Section 4.2(b).
"COMMISSION": the Public Utilities Commission of the State of
Maine.
"Commitment": as to each Bank, the sum of the Term Loan
Commitment and the Revolving Credit Commitment of such Bank.
"COMMITMENT FEE RATE": for any day, the rate per annum set
forth below opposite the Status in effect on such day:
Commitment Fee
Status Rate
---------------- --------------
Level I Status 0.250%
Level II Status 0.375%
Level III Status 0.500%
Level IV Status 0.500%
Level V Status 0.625%
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 414(b) or (c) of the Code.
"COMPANY'S 1994 FORM 10-K": the Company's annual report on Form
10-K for 1994, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended.
"COMPANY'S FORM 10-Q": the Company's quarterly reports on Form
10-Q, as filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934, as amended.
"CONSOLIDATED ADJUSTED EBIT": for any period, Consolidated Net
Income for such period (a) PLUS, without duplication and to the extent
reflected as a charge in the statement of such Consolidated Net Income
for such period, the sum of (i) total income tax expense and (ii)
interest expense, amortization or writeoff of debt discount and debt
issuance costs and commissions, discounts and other fees and charges
associated with Debt (including the Loans) and (b) MINUS, to the extent
included in Consolidated Net Income for such period, the amount which
would appear in accordance with GAAP on a statement of income of the
Company and its consolidated Subsidiaries opposite the heading
"Allowance for equity funds used during construction" (or any similar
item).
"CONSOLIDATED FIXED CHARGES": for any period, (a) total cash
interest expense (including that attributable to capital lease
obligations) of the Company and its Subsidiaries for such period with
respect to all outstanding Debt of the Company and its Subsidiaries,
including, without limitation, all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers'
acceptance financing, determined on a consolidated basis in accordance
with GAAP PLUS (b) to the extent subtracted in arriving at the amount
described in clause (a) above, the amount which would appear in
accordance with GAAP on a statement of income of the Company and its
consolidated Subsidiaries for such period opposite the heading
"Allowance for borrowed funds used during construction" (or any similar
item).
"CONSOLIDATED FIXED CHARGE RATIO": for any period, the ratio of
(a) Consolidated Adjusted EBIT for such period to (b) Consolidated Fixed
Charges for such period.
"CONSOLIDATED NET INCOME": for any period, the net income (or
loss) of the Company and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP; PROVIDED that there shall be excluded (a)
the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with the Company
or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary) in which the Company or any of its
Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by the Company or such Subsidiary in
the form of dividends or similar distributions and (c) the undistributed
earnings of any Subsidiary to the extent that the declaration or payment
of dividends or similar distributions by such Subsidiary is not at the
time permitted by the terms of any contractual obligation or any law,
rule, regulation or order applicable to such Subsidiary.
"CONSOLIDATED NET WORTH": at any date of determination, with
respect to any Person, (a) the stated capital of the common stock of
such Person PLUS (b) additional paid-in capital in respect of such
common stock PLUS (c) retained earnings (or minus accumulated deficit)
of such Person, determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED TOTAL CAPITALIZATION": at any date of determination,
the sum of (a) Consolidated Total Debt at such date and (b) the
aggregate of all amounts which would appear in accordance with GAAP on a
balance sheet of the Company and its consolidated Subsidiaries at such
date opposite the headings "Common stock investment," "Preferred stock"
and "Preferred stock subject to mandatory redemption" (or any similar
items).
"CONSOLIDATED TOTAL DEBT": at any date of determination, the
aggregate principal amount of all Debt which would appear in accordance
with GAAP on a balance sheet of the Company and its consolidated
Subsidiaries at such date.
"CONSOLIDATED TOTAL DEBT RATIO": at any date of determination, the
ratio of (a) Consolidated Total Debt at such date to (b) Consolidated
Total Capitalization at such date.
"DEBT": at any date, as to any Person, (a) all indebtedness or
other obligations of such Person for borrowed money, for letters of
credit opened for the account of such Person, or for the deferred
purchase price of property or services, or with respect to obligations
pursuant to capitalized leases, (b) all indebtedness or other
obligations of any other Person for borrowed money or for the deferred
purchase price of property or services, the payment or collection of
which such Person has guaranteed (except by reason of endorsement for
collection and endorsements in the ordinary course of business) or in
respect of which such Person is liable, contingently or otherwise,
including, without limitation, liability by way of agreement to
purchase, to provide funds for payment, to supply funds to or otherwise
to invest in such other Person, or otherwise to assure a creditor
against loss, and (c) all indebtedness or other obligations of any other
Person for borrowed money or for the deferred purchase price of property
or services secured by (or for which the holder of such indebtedness has
an existing right, contingent or otherwise, to be secured by) any
mortgage, deed of trust, pledge, lien, security interest or other charge
or encumbrance upon or in property (including, without limitation,
accounts and contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such indebtedness
or obligations. It is understood that Interest Rate Protection
Agreements and commodities hedge agreements shall not constitute Debt
for the purposes of this Agreement.
"DEFAULT": any of the events specified in Section 7.1, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"DISCLOSURE DOCUMENTS": as defined in Section 5.4(a).
"DOLLARS" and "$": dollars in lawful currency of the United States
of America.
"DOMESTIC LENDING OFFICE": initially, the office of each Bank
designated as such in Schedule II hereto; thereafter, such other office
of such Bank, if any, located within the United States which shall be
making or maintaining Base Rate Loans.
"EFFECTIVE DATE": June 30, 1995.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended.
"EURODOLLAR LENDING OFFICE": initially, the office of each Bank
designated as such in Schedule II hereto; thereafter, such other office
of such Bank, if any, which shall be making or maintaining Eurodollar
Loans.
"EURODOLLAR LOANS": loans hereunder at such time as they are made
and/or being maintained at a rate of interest based on the LIBO Rate.
"EURODOLLAR TRANCHE": the collective reference to Eurodollar Loans
made by the Revolving Credit Banks or the Term Loan Banks, as the case
may be, the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not
such Loans shall originally have been made on the same day).
"EVENT OF DEFAULT": as defined in Section 7.1.
"EXCHANGE ACT": the Securities Exchange Act of 1934, as amended,
including the regulations promulgated thereunder, from time to time.
"EXISTING CREDIT AGREEMENT": as defined in Section 4.2(d).
"FAME LOAN AGREEMENT": the Loan Agreement dated as of June 1,
1995 between the Company and the Finance Authority of Maine.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time; provided, that all
computations determining compliance with Section 6, including
definitions used therein, shall utilize generally accepted accounting
principles in effect at the time of the preparation of, and in
conformity with those used to prepare, the financial statements of the
Company in respect of the fiscal year ended December 31, 1994 delivered
pursuant to Section 5.4(a).
"GENERAL AND REFUNDING MORTGAGE INDENTURE": The General and
Refunding Mortgage Indenture and Deed of Trust dated as of June 1, 1995
between the Company and Chemical Bank, as trustee.
"GUARANTEE": as to any Person, any obligations, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
or lease payments of any other Person or otherwise in any manner
assuring the holder of any Debt or lease of any other Person against
loss (whether by agreement to keep-well, to purchase assets, goods or
services, or to take-or-pay or otherwise). The term "guarantee" used as
a verb has a correlative meaning.
"INTEREST PAYMENT DATE": (a) as to any Base Rate Loan, the last
day of each March, June, September and December, commencing on the first
of such days to occur after a Base Rate Loan is made or Eurodollar Loans
are converted to Base Rate Loans, (b) as to any Eurodollar Loan, in
respect of which the Company has selected an Interest Period of one, two
or three months, the last day of such Interest Period and (c) as to any
Eurodollar Loan in respect of which the Company has selected a longer
Interest Period than the periods described in clause (b), each day which
is three months, or a whole multiple thereof, after the first day of
such Interest Period and the last day of such Interest Period.
"INTEREST PERIOD": (a) initially, the period commencing on the
Borrowing Date or the conversion date, as the case may be, with respect
to each Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Company in its notice of borrowing as
provided in Section 2.2 or 2.9 or its notice of conversion as provided
in Section 2.14; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to each Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Company by
irrevocable notice to the Administrative Agent not less than three
Working Days prior to the last day of the then current Interest Period
with respect to such Eurodollar Loan;
PROVIDED THAT, the foregoing provisions relating to Interest Periods are
subject to the following:
(A) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day which is not a Working Day, that Interest Period
shall be extended to the next succeeding Working Day unless the result
of such extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end on the
immediately preceding Working Day;
(B) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date;
(C) if the Company shall fail to give notice as provided above,
the Company shall be deemed to have selected a Base Rate Loan to replace
the affected Eurodollar Loan;
(D) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Working Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Working Day of a
calendar month; and
(E) the Company shall select Interest Periods so as not to require
a payment or prepayment of any Eurodollar Loan during an Interest Period
for such Loan.
"INTEREST RATE PROTECTION AGREEMENT": any interest rate protection
agreement, interest rate swap, interest rate cap or other interest rate
hedge arrangement.
"INVESTMENT": any investment in any Person, whether by means of
share purchase, loan, capital contribution or otherwise.
"ISSUING BANK": Chemical Bank, in its capacity as issuer of any
Letter of Credit.
"L/C COMMITMENT": $5,000,000.
"L/C FEE PAYMENT DATE": the last day of each March, June,
September and December.
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters
of Credit which have not then been reimbursed pursuant to Section
3.5(a).
"L/C PARTICIPANTS": the collective reference to all Revolving
Credit Banks other than the Issuing Bank.
"LETTERS OF CREDIT": as defined in Section 3.1(a).
"LEVEL I STATUS": exists at any date if, at such date, the Company
has a long-term senior secured debt rating (whether or not published) of
BBB or better by S&P AND, unless the Company is then unrated by Moody's,
Baa2 or better by Moody's.
"LEVEL II STATUS": exists at any date if, at such date, Level I
Status does not exist and the Company has a long-term senior secured
debt rating (whether or not published) of BBB- or better by S&P AND,
unless the Company is then unrated by Moody's, Baa1 or better by
Moody's.
"LEVEL III STATUS": exists at any date if, at such date, neither
Level I Status nor Level II Status exists and the Company has a long-
term senior secured debt rating (whether or not published) of BB+ or
better by S&P AND, unless the Company is then unrated by Moody's, Ba1 or
better by Moody's.
"LEVEL IV STATUS": exists at any date if, at such date, neither
Level I Status, Level II Status nor Level III Status exists and the
Company has a long-term senior secured debt rating (whether or not
published) of BB or better by S&P AND, unless the Company is then
unrated by Moody's, Ba2 or better by Moody's.
"LEVEL V STATUS": exists at any date if, at such date, none of
Level I Status, Level II Status, Level III Status or Level IV Status
exists.
"LIBO RATE": with respect to each Interest Period pertaining to
Eurodollar Loans, the rate per annum at which the Administrative Agent's
Eurodollar Lending Office is offered Dollar deposits two Working Days
prior to the beginning of such Interest Period in the interbank
eurodollar market where the foreign currency and exchange operations of
such Eurodollar Lending Office are customarily conducted at 10:00 a.m.,
New York time, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount equal to the
amount of the Eurodollar Loan of the Administrative Agent to be
outstanding during such Interest Period, divided by (b) a number equal
to 1.00 minus the aggregate of the rates (expressed as a decimal
fraction) of reserve requirements current on the date two Working Days
prior to the beginning of such Interest Period (including, without
limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other governmental authority having
jurisdiction with respect thereto), as now and from time to time
hereafter in effect, dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Board) maintained by a member bank
of such System (the "EUROCURRENCY RESERVE REQUIREMENTS") (such LIBO Rate
to be adjusted to the nearest or next higher 1/100 of one percent).
"LIEN": with respect to any asset, (i) any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset or (ii) the interest of a vendor or lessor under any conditional
sale agreement, financing lease or other title retention agreement
relating to such asset.
"LOANS": any loan made by any Bank hereunder.
"LOAN AGREEMENT": the Loan Agreement dated as of December 1, 1983
between the Company and the Industrial Development Authority of the
State of New Hampshire, as such agreement may be amended from time to
time.
"LOAN DOCUMENTS": the collective reference to this Agreement, the
Notes, the Letters of Credit, the Applications, the Pledge Agreement,
the Mortgage, the Supplemental Indenture and the Collateral Bonds.
"MAINE YANKEE/MEPCO GUARANTEES": the obligations of the Company
with respect to its status as a stockholder and sponsor of Maine Yankee
Atomic Power Company ("MAINE YANKEE") and Maine Electric Power Company,
Inc. ("MEPCO"), as more particularly set forth in Exhibit H.
"MAJORITY BANKS": at a particular time, the holders of at least
51% of the sum of (a) the aggregate unpaid principal amount of the Term
Loans and (b) the aggregate Revolving Credit Commitments (or if the
Revolving Credit Commitments have been terminated, the Aggregate
Outstanding Revolving Extensions of Credit).
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries, taken as a whole, or (b)
the validity or enforceability of (i) this Agreement or any of the other
Loan Documents or (ii) the rights or remedies of the Administrative
Agent or the Banks hereunder or thereunder.
"MOODY'S": Moody's Investors Service, Inc. and its successors.
"MORTGAGE": the Mortgage and Deed of Trust of the Company to City
Bank Farmers Trust Company (of which Citibank, N.A., a national banking
association, is the successor), as trustee, dated as of July 1, 1936, as
heretofore and hereafter supplemented and amended.
"NOTES": the collective reference to the Revolving Credit Notes,
the Swing Line Note and the Term Notes.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PERSON": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
"PLAN": at any time, any employee benefit plan which is covered by
ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENT": the Pledge Agreement to be executed and
delivered by the Company, substantially in the form of Exhibit F, as the
same may be amended, supplemented or otherwise modified from time to
time.
"PREFERRED STOCK": as defined in Section 6.10(b).
"PURCHASING BANKS": as defined in Section 9.6(c).
"REGISTER": as defined in Section 9.6(d).
"REIMBURSEMENT OBLIGATIONS": the obligation of the Company to
reimburse the Issuing Bank pursuant to Section 3.5(a) for amounts drawn
under Letters of Credit.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder.
"REQUIRED BANKS": at a particular time, the holders of at least
60% of the sum of (a) the aggregate unpaid principal amount of the Term
Loans and (b) the aggregate Revolving Credit Commitments (or, if the
Revolving Credit Commitments have been terminated, the Aggregate
Outstanding Revolving Extensions of Credit).
"REVOLVING CREDIT BANKS": each Bank which has a Revolving Credit
Commitment or which has made a Revolving Credit Loan.
"REVOLVING CREDIT COMMITMENT": as to any Bank, its obligation, if
any to make Revolving Credit Loans to, and/or issue or participate in
Letters of Credit issued on behalf of, the Company in an aggregate
amount not to exceed at any one time outstanding the amount set forth
opposite such Revolving Credit Bank's name in Schedule I under the
heading "Revolving Credit Commitment" or, in the case of any Bank that
is a Purchasing Bank, the amount of the assigning Bank's Revolving
Credit Commitment assigned to such Purchasing Bank pursuant to Section
9.6(c) (in each case as such amount may be adjusted from time to time as
provided herein).
"REVOLVING CREDIT COMMITMENT PERCENTAGE": as to any Revolving
Credit Bank, the percentage of the aggregate Revolving Credit
Commitments constituted by its Revolving Credit Commitment (or, if the
Revolving Credit Commitments have terminated, the percentage of the
aggregate amount of the Aggregate Outstanding Revolving Extensions of
Credit of all Revolving Credit Banks then constituted by such Bank's
Aggregate Outstanding Revolving Extensions of Credit (in each case
determined, in the case of clauses (b) and (c) of the definition
thereof, on the basis of the Revolving Credit Commitment Percentages in
effect immediately prior to such termination)).
"REVOLVING CREDIT COMMITMENT PERIOD": the period from and
including the date hereof to but not including the Termination Date or
such earlier date as the Revolving Credit Commitments shall terminate as
provided herein.
"REVOLVING CREDIT NOTE": a note of the Company substantially in
the form of Exhibit A-1 hereto.
"SECOND MORTGAGE BONDS": the bonds issued pursuant to the General
and Refunding Mortgage Indenture.
"S&P": Standard & Poor's Ratings Group and its successors.
"SPECIFIED LETTER OF CREDIT" : any Letter of Credit issued for
the benefit of the trustee under the Loan Agreement.
"STATUS": the existence of Level I Status, Level II Status, Level
III Status, Level IV Status or Level V Status, as the case may be.
"SUBSIDIARY": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"SUBSTANTIAL PART": with respect to any Person, refers to assets
sold, leased or otherwise transferred pursuant to any one or more
transactions (whether or not related) which, in the aggregate, represent
more than 10% of the total assets of such Person as of December 31,
1994.
"SUPPLEMENTAL INDENTURE": as defined in Section 4.2(b).
"SWING LINE COMMITMENT": the Swing Line Bank's obligation to make
Swing Line Loans pursuant to Section 2.4.
"SWING LINE BANK": as defined in Section 2.4(a).
"SWING LINE LOANS": as defined in Section 2.4(a).
"SWING LINE NOTE": as defined in Section 2.4(h).
"TEMPORARY CASH INVESTMENT": any Investment in (i) direct
obligations of the United States or any agency thereof, or obligations
guaranteed by the United States or any agency thereof, (ii) commercial
paper rated in the highest grade by a nationally recognized credit
rating agency or (iii) time deposits with, including certificates of
deposit issued by, any bank or trust company organized under the laws of
the United States or any state thereof and having capital, surplus and
undivided profits aggregating at least $500,000,000, PROVIDED in each
case that such Investment matures within one year from the date of
acquisition thereof by the Company or a Subsidiary.
"TERMINATION DATE": June 30, 2000.
"TERM LOAN BANK": each Bank which has a Term Loan Commitment or
which has made a Term Loan.
"TERM LOAN COMMITMENT": as to any Bank, the obligation of such
Bank, if any, to make Term Loans to the Company hereunder in an
aggregate principal amount not to exceed the amount set forth under the
heading "Term Loan Commitment" opposite such Bank's name on Schedule I,
or in the case of any Bank that is a Purchasing Bank, the amount of the
assigning Bank's Term Loan Commitment assigned to such Purchasing Bank
pursuant to Section 9.6(c) (in each case as such amount may be adjusted
from time to time as provided herein). The Term Loan Commitment of each
Term Loan Bank will automatically be terminated on the Effective Date
immediately after the making of any Term Loan by such Bank on such date.
"TERM LOAN PERCENTAGE": as to any Term Loan Bank at any time, the
percentage which (a) such Bank's Term Loan Commitment the outstanding
constitutes of (b) the aggregate Term Loan Commitments then outstanding.
"TERM NOTE": a note of the Company substantially in the form of
Exhibit B.
"TRANSFER EFFECTIVE DATE": as defined in each Assignment and
Acceptance Agreement.
"TRANSFEREE": as defined in Section 9.6(f).
"UNFUNDED VESTED LIABILITIES": with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits, all determined as
of the then most recent valuation date for such Plan, but only to the
extent that such excess represents a potential liability of the Company
or any Subsidiary to the PBGC or the Plan under Title IV of ERISA.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for
Documentary Credits (1993 Revisions), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"WORKING DAY": any day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England, and in New
York, New York.
SECTION 0.2 OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared in accordance
with GAAP.
(b) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in the other Loan
Documents or any certificate or other document made or delivered pursuant
hereto or thereto.
ARTICLE II
THE COMMITMENTS
SECTION 2.1 REVOLVING CREDIT LOANS. (a) Subject to the terms and
conditions hereof, each Revolving Credit Bank severally agrees to make
revolving credit loans ("REVOLVING CREDIT LOANS") to the Company from time to
time during the Revolving Credit Commitment Period, so long as the Aggregate
Outstanding Revolving Extensions of Credit of such Bank shall at no time
exceed such Bank's Revolving Credit Commitment. During the Revolving Credit
Commitment Period, the Company may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Revolving Credit Loans may be (i) Eurodollar Loans, (ii)
Base Rate Loans or (iii) a combination thereof, as determined by the Company
and notified to the Administrative Agent in accordance with Sections 2.2 and
2.14; PROVIDED that no revolving credit Eurodollar Loan shall be made after
the day that is one month prior to the Termination Date.
SECTION 2.2 PROCEDURE FOR REVOLVING CREDIT BORROWING. The Company
may borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Working Day if the borrowing is a Eurodollar Loan or
on any Business Day if the borrowing is a Base Rate Loan; PROVIDED that the
Company shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to (a) 12:00 Noon (New
York City time) three Working Days prior to the requested Borrowing Date, in
the case of Eurodollar Loans and (b) 10:00 a.m. (New York City time) on the
requested Borrowing Date, in the case of Base Rate Loans, specifying (i) the
amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be a Eurodollar Loan or a Base Rate Loan or a combination
thereof, and (iv) if the borrowing is to be entirely or partly a Eurodollar
Loan, the length of the Interest Period for such Eurodollar Loan. Each
borrowing pursuant to the Revolving Credit Commitments shall be in an
aggregate principal amount of the lesser of (a) $3,000,000 or any larger
multiple of $1,000,000 and (b) the sum of the Available Revolving Credit
Commitments. Upon receipt of such notice from the Company the Administrative
Agent shall, on the Business Day on which such notice is received, notify
each Bank thereof. Each Revolving Credit Bank will make the amount of its
PRO RATA share of each borrowing available to the Administrative Agent for
the account of the Company at the office of the Administrative Agent set
forth in Schedule II hereto at 12:00 noon (in the case of the Eurodollar
Loans) or 2:00 p.m. (in the case of Base Rate Loans), New York City time, on
the Borrowing Date requested by the Company in funds immediately available to
the Administrative Agent as the Administrative Agent may direct. The
proceeds of all such Loans will then be made available to the Company by the
Administrative Agent by crediting the account of the Company specified by the
Company to the Administrative Agent.
SECTION 2.3 REVOLVING CREDIT NOTES. The Revolving Credit Loans
made by each Revolving Credit Bank pursuant hereto shall be evidenced by a
promissory note of the Company, substantially in the form of Exhibit A-1 with
appropriate insertions (a "REVOLVING CREDIT NOTE"), payable to the order of
such Bank, representing the obligation of the Company to pay the lesser of
(a) the amount of the Revolving Credit Commitment of such Bank and (b) the
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Bank, with interest thereon as prescribed in Section 2.13. Each Revolving
Credit Bank is hereby authorized to record the date and amount of each
Revolving Credit Loan (or conversion) made by such Bank, and the date and
amount of each payment or prepayment of principal thereof, and, in the case
of Eurodollar Loans, the Interest Period and interest rate with respect
thereto, on the schedule annexed to and constituting a part of such Bank's
Revolving Credit Note, which recordation shall constitute PRIMA FACIE
evidence of the accuracy of the information so recorded, PROVIDED, HOWEVER,
that the failure of the holder of such Note to make any recordation, or any
error in such recordations, shall not affect the obligations of the Company
under such Note. Each Revolving Credit Note shall (a) be dated the Effective
Date, (b) be stated to mature on the Termination Date and (c) bear interest
for the period from the date thereof to the Termination Date on the unpaid
principal amount thereof from time to time outstanding at the applicable
interest rate per annum determined as provided in Section 2.13.
SECTION 2.4 SWING LINE COMMITMENT. (a) Subject to the terms and
conditions hereof, Chemical Bank (in such capacity, the "SWING LINE BANK")
agrees to make available to the Company a portion of the credit otherwise
available under the Revolving Credit Commitments from time to time during the
Revolving Credit Commitment Period by making swing line loans ("SWING LINE
LOANS") to the Company in an aggregate principal amount not to exceed
$5,000,000 (notwithstanding that the Swing Line Loans outstanding at any
time, when aggregated with the Swing Line Bank's other outstanding revolving
extensions of credit hereunder, may exceed such Bank's Revolving Credit
Commitment then in effect). During the Commitment Period, the Company may
use the Swing Line Commitment by borrowing, repaying and reborrowing, all in
accordance with the terms and conditions hereof. All Swing Line Loans shall
at all times be Base Rate Loans.
(b) Whenever the Company desires that the Swing Line Bank make
Swing Line Loans under Section 2.4(a), it shall give the Swing Line Bank
irrevocable telephonic notice confirmed promptly in writing (which telephonic
notice must be received by the Swing Line Bank not later than 2:00 P.M., New
York City time, on the proposed Borrowing Date), specifying (a) the amount to
be borrowed and (b) the requested Borrowing Date. Each borrowing under the
Swing Line Commitment shall be in an amount equal to $100,000 or a whole
multiple of $100,000 in excess thereof. Not later than 4:00 P.M., New York
City time, on the Borrowing Date specified in a notice in respect of Swing
Line Loans, the Swing Line Bank shall make available to the Administrative
Agent for the account of the Company at the office of the Administrative
Agent specified in Schedule II hereto an amount in immediately available
funds equal to the amount of the Swing Line Loan to be made by the Swing Line
Bank. The proceeds of such Swing Line Loan will then be made available to
the Company on such Borrowing Date by the Administrative Agent crediting the
account of the Company on the books of such office with the aggregate of the
amounts made available to the Administrative Agent by the Swing Line Bank and
in like funds as received by the Administrative Agent.
(c) The Swing Line Bank, at any time and from time to time in its
sole and absolute discretion may, and, at any time at which there shall be a
Swing Line Loan outstanding for more than five Business Days, the Swing Line
Bank shall, on behalf of the Company (which hereby irrevocably directs the
Swing Line Bank to act on its behalf), upon notice given by the Swing Line
Bank no later than 10:00 A.M., New York City time, on the relevant refunding
date, request each Revolving Credit Bank to make, and each Revolving Credit
Bank hereby agrees to make, a Revolving Credit Loan (which shall be a Base
Rate Loan), in an amount equal to such Revolving Credit Bank's Revolving
Credit Commitment Percentage of the aggregate amount of the Swing Line Loans
(the "REFUNDED SWING LINE LOANS") outstanding on the date of such notice, to
refund such Swing Line Loans. Each Revolving Credit Bank shall make the
amount of such Revolving Credit Loan available to the Administrative Agent at
its office set forth in Schedule II hereto in immediately available funds, no
later than 1:00 P.M., New York City time, on the date of such notice. The
proceeds of such Revolving Credit Loans shall be distributed by the
Administrative Agent to the Swing Line Bank and immediately applied by the
Swing Line Bank to repay the Refunded Swing Line Loans. Effective on the day
such Revolving Credit Loans are made, the portion of the Swing Line Loans so
paid shall no longer be outstanding as Swing Line Loans.
(d) The making of any Swing Line Loan hereunder shall be subject
to the agreement of the Swing Line Bank in its discretion to make such Swing
Line Loan, and, in any event, the satisfaction of the applicable conditions
precedent thereto set forth in Section 4. The Swing Line Bank shall notify
the Company of its election not to make Swing Line Loans hereunder.
(e) If, for any reason, Revolving Credit Loans may not be (as
determined by the Administrative Agent in its sole discretion), or are not,
made pursuant to Section 2.4(c) to repay Swing Line Loans as required by said
Section, then, effective on the date such Revolving Credit Loans would
otherwise have been made, each Revolving Credit Bank severally,
unconditionally and irrevocably agrees that it shall purchase a participating
interest in such Swing Line Loans ("UNREFUNDED SWING LINE LOANS") in an
amount equal to the amount of Revolving Credit Loans which would otherwise
have been made by such Bank pursuant to Section 2.4(c). Each Revolving
Credit Bank will immediately transfer to the Administrative Agent, in
immediately available funds, the amount of its participation (the "SWING LINE
PARTICIPATION AMOUNT"), and the proceeds of such participation shall be
distributed by the Administrative Agent to the Swing Line Bank in such amount
as will reduce the amount of the participating interest retained by the Swing
Line Bank in its Swing Line Loans to the amount of the Revolving Credit Loans
which were to have been made by it pursuant to Section 2.4(c).
(f) Whenever, at any time after the Swing Line Bank has received
from any Revolving Credit Bank such Bank's Swing Line Participation Amount,
the Swing Line Bank receives any payment on account of the Swing Line Loans,
the Swing Line Bank will distribute to such Bank its Swing Line Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Bank's participating interest was
outstanding and funded and, in the case of principal and interest payments,
to reflect such Bank's PRO RATA portion of such payment if such payment is
not sufficient to pay the principal of and interest on all Swing Line Loans
then due); PROVIDED, HOWEVER, that in the event that such payment received by
the Swing Line Bank is required to be returned, such Bank will return to the
Swing Line Bank any portion thereof previously distributed to it by the Swing
Line Bank.
(g) Each Revolving Credit Bank's obligation to make the Loans
referred to in Section 2.4(c) and to purchase participating interests
pursuant to Section 2.4(e) shall be absolute and unconditional and shall not
be affected by any circumstance, including, without limitation, (i) any
setoff, counterclaim, recoupment, defense or other right which such Bank or
the Company may have against the Swing Line Bank, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 4; (iii) any adverse change in the condition
(financial or otherwise) of the Company; (iv) any breach of this Agreement or
any other Loan Document by the Company or any Bank; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(h) The Swing Line Loans made by the Swing Line Bank pursuant
hereto shall be evidenced by a promissory note of the Company, substantially
in the form of Exhibit A-2 with appropriate insertions (the "SWING LINE
NOTE"), payable to the order of the Swing Line Bank, representing the
obligation of the Company to pay the amount of the Swing Line Commitment or,
if less, the unpaid principal amount of the Swing Line Loans. The Swing Line
Bank is authorized to record the date and amount of each Swing Line Loan made
by such Bank, and the date and amount of each payment or prepayment of
principal thereof, on the schedule annexed to and constituting a part of the
Swing Line Note, which recordation shall constitute PRIMA FACIE evidence of
the accuracy of the information so recorded, PROVIDED, HOWEVER, that the
failure of the holder of such Note to make any recordation, or any error in
such recordations, shall not affect the obligations of the Company under such
Note. The Swing Line Note shall (a) be dated the Effective Date, (b) be
stated to mature on the Termination Date, and (c) bear interest for the
period from the date thereof to the Termination Date on the unpaid principal
amount thereof from time to time outstanding at the applicable interest rate
per annum determined as provided in Section 2.13.
SECTION 2.5 COMMITMENT FEE. The Company will pay to the
Administrative Agent for the account of the Revolving Credit Banks a
commitment fee from and including the date hereof to the Termination Date,
computed at a per annum rate equal to the Commitment Fee Rate on the average
daily amount of the Available Revolving Credit Commitments during the period
for which payment is made. Such commitment fee shall be payable quarterly on
the last day of each March, June, September and December and on the
Termination Date or such earlier date as the Revolving Credit Commitments
shall terminate as provided herein, commencing on the first of such dates to
occur after the date hereof.
SECTION 2.6 OPTIONAL TERMINATION OR REDUCTION OF REVOLVING CREDIT
COMMITMENTS. The Company shall have the right, upon not less than five
Business Days' irrevocable notice to the Administrative Agent, to terminate
the Revolving Credit Commitments or, from time to time, reduce the amount of
the Revolving Credit Commitments, PROVIDED that (i) after giving effect to
any such reduction (together with any prepayment of Revolving Credit Loans
and Swing Line Loans made on the date of such reduction), the sum of the
Aggregate Outstanding Revolving Extensions of Credit of all Revolving Credit
Banks then outstanding shall not exceed the aggregate amount of the Revolving
Credit Commitments as then reduced and (ii) any such termination of the
Revolving Credit Commitments shall be accompanied by prepayment in full of
the Revolving Credit Loans and Swing Line Loans then outstanding hereunder,
together with accrued interest thereon to the date of such prepayment, the
termination of any Letter of Credit then outstanding, and the payment of any
unpaid commitment fee then accrued hereunder. Any such reduction shall be in
an amount of $5,000,000 or any larger multiple of $1,000,000 and shall reduce
permanently the amount of the Revolving Credit Commitments then in effect.
SECTION 2.7 TERM LOANS. Subject to the terms and conditions
hereof, each Term Loan Bank severally agrees to make a Term Loan to the
Company on the Effective Date in an amount not to exceed the amount of the
Term Loan Commitment of such Bank. The Term Loans may be (a) Eurodollar
Loans, (b) Base Rate Loans, (c) or a combination thereof, as determined by
the Company and notified to the Administrative Agent in accordance with
Sections 2.9 and 2.14; PROVIDED, that no term Eurodollar Loan shall be made
after the day that is one month prior to the Termination Date.
SECTION 2.8 TERM NOTES. The Term Loan made by each Term Loan Bank
pursuant hereto shall be evidenced by a promissory note of the Company,
substantially in the form of Exhibit B, with appropriate insertions therein
as to date and principal amount, payable to the order of such Bank and
representing the obligation of the Company to pay the lesser of (a) the
initial amount of the Term Loan of such Bank and (b) the unpaid principal
amount from time to time of such Bank's Term Loan, with interest thereon as
prescribed in Section 2.13. Each Term Loan Bank is hereby authorized to
record the date and amount of each Term Loan (or conversion) made by such
Bank, and the date and amount of each payment or prepayment of principal of
such Bank's Term Loan, and, in the case of Eurodollar Loans, the Interest
Period and interest rate with respect thereto, on the schedule annexed to and
constituting a part of its Term Note, and any such recordation shall
constitute PRIMA FACIE evidence of the accuracy of the information so
recorded; provided, however, that the failure of the holder of such Note to
make any recordation or any error in such recordations shall not effect the
obligations of the Company under such Note. Each Term Note shall (a) be
dated the Effective Date, (b) be stated to mature as provided in Section
2.11, and (c) bear interest for the period from the date thereof on the
unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 2.13.
SECTION 2.9 PROCEDURE FOR TERM LOAN BORROWING. The Company shall
give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to (a) 12:00 Noon (New York City
time) three Working Days prior to the Effective Date if the Term Loans are to
be initially Eurodollar Loans, or (b) 10:00 a.m. (New York City time) one
Business Day prior to the Effective Date if the Term Loans are to be
initially Base Rate Loans, requesting that the Term Loan Banks make the Term
Loans on the Effective Date and specifying (i) the amount of the borrowing,
not to exceed the aggregate amount of the Term Loan Commitments, and (ii)
whether the Term Loans are to be initially Eurodollar Loans or Base Rate
Loans or a combination thereof. Not later than 12:00 noon, New York City
time, on the Effective Date, each Term Loan Bank shall make available to the
Administrative Agent at its office specified in Schedule II hereto the amount
of such Bank's PRO RATA share of the borrowing in immediately available
funds. The proceeds of all such Term Loans will be made available to the
Company by the Administrative Agent at the office of the Administrative Agent
specified in Schedule II hereto by crediting the account of the Company on
the books of such office of the Administrative Agent with the aggregate of
the amount made available to the Administrative Agent by the Term Loan Banks
and in like funds as received by the Administrative Agent.
SECTION 2.10 OPTIONAL PREPAYMENTS. The Company may on the last
day of the relevant Interest Period if the Loans to be prepaid are in whole
or in part Eurodollar Loans, or at any time and from time to time if the
Loans to be prepaid are Base Rate Loans prepay such Loans, in whole or in
part, without premium or penalty, upon at least three Business Days'
irrevocable notice to the Administrative Agent, specifying (i) the date and
amount of prepayment; (ii) whether the prepayment is of Eurodollar Loans or
Base Rate Loans or a combination thereof; and (iii) if of a combination
thereof the amount of prepayment allocable to each. Upon receipt of such
notice the Administrative Agent shall, within one Business Day of the date
such notice is received, notify each Bank thereof. If such notice is given,
the Company shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein, together
with accrued interest to such date on the amount prepaid. Partial
prepayments of the Term Loans shall be applied to the installments of
principal thereof in the inverse order of maturity. Amounts prepaid on
account of the Term Loans may not be reborrowed. Partial prepayments shall
be in an aggregate principal amount of $1,000,000, or any multiple thereof
(or, in the case of Swing Line Loans, any whole multiple of $100,000);
PROVIDED, that at no time may any Eurodollar Tranche be outstanding after
such prepayment in an amount less than $3,000,000.
SECTION 2.11 MANDATORY REPAYMENTS AND COMMITMENT REDUCTIONS . (a)
The Term Loans shall be repaid by the Company in annual installments on the
dates listed below and in the aggregate amount for each such installment
listed opposite such dates below:
INSTALLMENT DATE AGGREGATE INSTALLMENT AMOUNT
---------------- ----------------------------
June 30, 1996 $12,000,000
June 30, 1997 $12,000,000
June 30, 1998 $12,000,000
June 30, 1999 $12,000,000
June 30, 2000 $12,000,000
(b) The Revolving Credit Commitments shall be automatically and
permanently reduced on the dates listed below and in the aggregate amount for
each such reduction listed opposite such dates below:
DATE AGGREGATE COMMITMENT REDUCTION
---------------- ------------------------------
December 31, 1995 $1,000,000
June 30, 1996 $2,000,000
December 31, 1996 $3,000,000
If, after giving effect to any reduction of the Revolving Credit Commitments
pursuant to this paragraph, the sum of the Aggregate Outstanding Revolving
Extensions of Credit of all Revolving Credit Banks exceeds the aggregate
Revolving Credit Commitments after giving effect to such reduction, the
Company shall, without notice or demand, immediately repay the Revolving
Credit Loans and the Swing Line Loans in an aggregate principal amount equal
to such excess, together with interest accrued to the date of such prepayment
and any amounts payable under Section 2.19. To the extent that, after giving
effect to any prepayment of the Loans required by the preceding sentence, the
sum of the Aggregate Outstanding Revolving Extensions of Credit of all
Revolving Credit Banks exceeds the aggregate Revolving Credit Commitments
then in effect, the Company shall, without notice or demand, immediately cash
collateralize the then outstanding L/C Obligations in an amount equal to such
excess upon terms reasonably satisfactory to the Administrative Agent.
SECTION 2.12 COMPUTATION OF INTEREST AND FEES. (a) Interest (other
than interest based on the Prime Rate) and commitment fees shall be
calculated on the basis of a 360-day year for the actual days elapsed; and
interest based on the Prime Rate shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Company and the
Banks of each determination of a LIBO Rate. Any change in the interest rate
on a Loan resulting from a change in the Base Rate or the Eurocurrency
Reserve Requirements shall become effective as of the opening of business on
the day on which such change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective. The Administrative Agent shall as soon
as practicable notify the Company and the Banks of the effective date and the
amount of each such change.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Banks in the absence of manifest error.
SECTION 2.13 INTEREST RATE AND PAYMENT DATES. (a) The Eurodollar
Loans shall bear interest for each Interest Period with respect thereto on
the unpaid principal amount thereof at a rate per annum equal to the LIBO
Rate determined for each such Interest Period in accordance with the terms
hereof plus the Applicable Eurodollar Margin.
(b) The Base Rate Loans shall bear interest on the unpaid
principal amount thereof at a rate per annum equal to the Base Rate plus the
Applicable Base Rate Margin.
(c) If all or a portion of the principal amount of any Eurodollar
Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such Loan shall be converted to a Base Rate Loan
on the last day of the Interest Period then in effect with respect thereto.
Any overdue principal amount of any Eurodollar Loan or Base Rate Loan or
overdue commitment fee pursuant to Section 2.5 shall bear interest at a rate
per annum which is 2% above the rate which would otherwise be applicable
pursuant to Section 2.13(a) or (b) (or, in the case of overdue commitment
fees, 2% above the rate specified in Section 2.13(b)) from the date of such
non-payment until paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date.
SECTION 2.14 CONVERSION OPTIONS. (a) The Company may elect from
time to time to convert Eurodollar Loans to Base Rate Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, PROVIDED that any such conversion of Eurodollar Loans shall be
made only on the last day of an Interest Period with respect thereto. The
Company may elect from time to time to convert Base Rate Loans to Eurodollar
Loans by giving the Administrative Agent at least three Working Days' prior
irrevocable notice of such election. Upon receipt of such notice, the
Administrative Agent shall within one Business Day of the date such notice is
received, notify each Bank thereof. All or any part of outstanding
Eurodollar Loans or Base Rate Loans may be converted as provided herein,
PROVIDED that (i) partial conversions shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof, and (ii) no Loan may be
converted into a Eurodollar Loan when any Default or Event of Default has
occurred and is continuing; PROVIDED, FURTHER, that at no time may any
Eurodollar Tranche be outstanding after such conversion in an amount less
than $3,000,000.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Company with the applicable notice provisions contained in Section 2.14(a);
PROVIDED, that no Eurodollar Loan may be continued as such when any Default
or Event of Default has occurred and is continuing, but such Loans shall be
automatically converted to a Base Rate Loan on the last day of the Interest
Period then in effect with respect thereto; the Administrative Agent shall
notify the Banks promptly that such automatic conversion will occur.
(c) Each continuation of or conversion into a Eurodollar Loan
shall constitute a representation and warranty by the Company as of the date
of such continuation or conversion, as the case may be, that no Default or
Event of Default has occurred and is continuing.
SECTION 2.15 INABILITY TO DETERMINE INTEREST RATE. In the event
that:
(i) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that by
reason of circumstances affecting the interbank eurodollar market,
adequate and reasonable means do not exist for ascertaining the LIBO
Rate applicable pursuant to Section 2.13(a) for any Interest Period; or
(ii) the Administrative Agent shall have received notice prior to
the first day of such Interest Period from Banks constituting the
Majority Banks that the interest rate determined pursuant to Section
2.13(a) for such Interest Period does not accurately reflect the cost to
such Banks (as conclusively certified by such Banks) of making or
maintaining their affected Loans during such Interest Period,
with respect to (a) a proposed Loan that the Company has requested be made as
a Eurodollar Loan, (b) a Eurodollar Loan that will result from the requested
conversion of a Base Rate Loan into a Eurodollar Loan or (c) the continuation
of Eurodollar Loans beyond the expiration of the then current Interest Period
with respect thereto, the Administrative Agent shall forthwith give notice of
such determination, confirmed in writing, to the Company and the Banks at
least one day prior to, as the case may be, the requested Borrowing Date for
such Eurodollar Loan, the conversion date of such Base Rate Loan or the last
day of such Interest Period. If such notice is given (x) any requested
Eurodollar Loan shall be made as a Base Rate Loan, (y) any Base Rate Loan
that was to have been converted to a Eurodollar Loan shall be continued as a
Base Rate Loan, and (z) any outstanding Eurodollar Loan shall be converted,
on the last day of the then current Interest Period with respect thereto, to
a Base Rate Loan. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loan shall be made nor shall the Company have
the right to convert a Base Rate Loan to a Eurodollar Loan.
SECTION 2.16 PRO RATA TREATMENT AND PAYMENTS. (a) Each borrowing
of Loans (other than Swing Line Loans) by the Company hereunder shall be
made, each payment by the Company on account of any commitment fee hereunder
shall be allocated by the Administrative Agent, and any reduction of the
Commitments shall be allocated by the Administrative Agent, PRO RATA
according to the respective Term Loan Percentages or Revolving Credit
Commitment Percentages, as the case may be, of the relevant Banks. Each
payment (including each prepayment) by the Company on account of principal of
and interest on the Term Loans shall be allocated by the Administrative Agent
PRO RATA according to the respective outstanding principal amounts of such
Term Loans then held by the Term Loan Banks. Each payment (including each
prepayment) by the Company on account of principal of and interest on any
Revolving Credit Loans shall be allocated by the Administrative Agent PRO
RATA according to the respective outstanding principal amounts of such
Revolving Credit Loans then held by the Revolving Credit Banks.
(b) All payments (including prepayments) to be made by the Company
on account of principal, interest and fees shall be made without set off or
counterclaim and shall be made to the Administrative Agent on behalf of the
Banks at the Administrative Agent's office located at 270 Park Avenue, New
York, New York 10017, in lawful money of the United States of America and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Banks promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on the Eurodollar Loans) becomes
due and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Working Day, the maturity thereof shall be
extended to the next succeeding Working Day (and interest thereon shall be
payable at the then applicable rate during such extension) unless the result
of such extension would be to extend such payment into another calendar month
in which event such payment shall be made on the immediately preceding
Working Day.
(c) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing Date that such Bank will not make
the amount which would constitute its PRO RATA share of the borrowing on such
date available to the Administrative Agent, the Administrative Agent may
assume that such Bank has made such amount available on such Borrowing Date
and the Administrative Agent may, in reliance upon such assumption, make
available to the Company a corresponding amount. If such amount is made
available to the Administrative Agent on a date after such Borrowing Date,
such Bank shall pay to the Administrative Agent upon the demand of the
Administrative Agent, an amount equal to the product of (i) the Federal Funds
Effective Rate, TIMES (ii) the amount of such Bank's PRO RATA share of such
borrowing, TIMES (iii) a fraction the numerator of which is the number of
days that elapse from and including such Borrowing Date to the date on which
such Bank's PRO RATA share of such borrowing shall have become immediately
available to the Administrative Agent and the denominator of which is 365. A
certificate of the Administrative Agent submitted to any Bank with respect to
any amounts owing under this Section 2.16(c) shall be conclusive, absent
manifest error. If such Bank's PRO RATA share is not in fact made available
to the Administrative Agent by such Bank within three Business Days of such
Borrowing Date, the Administrative Agent shall be entitled to recover such
amount with interest thereon at the rate per annum applicable to Base Rate
Loans hereunder, on demand, from the Company.
SECTION 2.17 TAXES. All payments made by the Company under this
Agreement shall be made free and clear of, and without reduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any governmental authority, agency or instrumentality excluding,
in the case of the Administrative Agent and each Bank, net income and
franchise taxes imposed on the Administrative Agent or such Bank by the
jurisdiction under the laws of which such agent or such Bank is organized or
any political subdivision or taxing authority thereof or therein, or by any
jurisdiction in which such Bank's Domestic Lending Office or Eurodollar
Lending Office, as the case may be, is located or any political subdivision
or taxing authority thereof or therein (all such non-excluded taxes, levies,
imposts, deductions, charges or withholdings being hereinafter called
"TAXES"). If any Taxes are required to be withheld from any amounts payable
to the Administrative Agent or any Bank hereunder or under the Notes, the
amounts so payable to the Administrative Agent or such Bank shall be
increased to the extent necessary to yield to the Administrative Agent or
such Bank (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement
and the Notes. If the Company fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent
the required receipts or other required documentary evidence, the Company
shall indemnify the Administrative Agent and the Banks for any incremental
taxes, interest or penalties that may become payable by any of them as a
result of any such failure. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
SECTION 2.18 REQUIREMENTS OF LAW. (a) In the event that any law,
regulation, treaty or directive or any change therein or in the
interpretation or application thereof or compliance by any Bank with any
request or directive (whether or not having the force of law) from any
central bank or other governmental authority, agency or instrumentality:
(i) does or shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note, and Letter of
Credit, any Application or any Loans made hereunder, or change the basis
of taxation of payments to such Bank of principal, commitment fee,
interest or any other amount payable hereunder (except for changes in
the rate of tax on the overall net income of such Bank);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Bank which are not otherwise
included in the determination of the LIBO Rate hereunder;
(iii) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank
of making, renewing or maintaining advances or extensions of credit or
issuing or participating in Letters of Credit or to reduce any amount
receivable hereunder then, in any such case, the Company shall promptly pay
such Bank, upon its demand, any additional amounts necessary to compensate
such Bank for such additional cost or reduced amount receivable which such
Bank deems to be material as determined by such Bank with respect to this
Agreement, the Note or the Loans made hereunder. If a Bank becomes entitled
to claim any additional amounts pursuant to this Section, it shall promptly
notify the Company, through the Administrative Agent, of the event by reason
of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to the foregoing sentence submitted by a Bank,
through the Administrative Agent, to the Company shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of
this Agreement and payment of the Loans.
(b) In the event that any Bank shall have determined that the
adoption of any law, rule or regulation regarding capital adequacy, or any
change therein, or in the interpretation or application thereof or compliance
by any Bank with any request or directive regarding capital adequacy (whether
or not having the force of law) from any central bank or other governmental
authority, agency or instrumentality, in any case, made subsequent to the
date hereof, does or shall have the effect of reducing the rate of return on
such Bank's capital as a consequence of its obligation hereunder or under any
Letter of Credit to a level below that which such Bank could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount deemed by such
Bank to be material, then from time to time, after submission by such Bank to
the Company (with a copy to the Administrative Agent) of a written request
therefor, the Company shall pay to such Bank such additional amount or
amounts as will compensate such Bank for such reduction.
SECTION 2.19 INDEMNITY. The Company agrees to indemnify each Bank
and to hold such Bank harmless from any loss or expense which such Bank may
sustain or incur as a consequence of (a) default by the Company in payment of
the principal amount of or interest on the Eurodollar Loans of such Bank,
including, but not limited to, any such loss or expense arising from interest
or fees payable by such Bank to lenders of funds obtained by it in order to
maintain its Eurodollar Loans hereunder, (b) default by the Company in making
a borrowing, conversion or continuation after the Company has given a notice
in accordance with Section 2.2, 2.9 or 2.14 hereof, (c) default by the
Company in making any prepayment after the Company has given a notice in
accordance with Section 2.10 hereof or (d) the making of a prepayment of a
Eurodollar Loan on a day which is not the last day of an Interest Period with
respect thereto, including, but not limited to, any such loss or expense
arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its Eurodollar Loans hereunder. This
covenant shall survive termination of this Agreement and payment of the
Loans.
ARTICLE III
LETTERS OF CREDIT
SECTION 3.1 L/C COMMITMENT.
(a) Subject to the terms and conditions hereof, the Issuing Bank,
in reliance on the agreements of the other Banks set forth in Section 3.4(a),
agrees to issue letters of credit ("LETTERS OF CREDIT") for the account of
the Company on any Business Day during the Revolving Credit Commitment Period
in such form as may be approved from time to time by the Issuing Bank;
PROVIDED that the Issuing Bank shall not issue any Letter of Credit if, after
giving effect to such issuance, (1) the L/C Obligations would exceed the L/C
Commitment or (2) the Available Revolving Credit Commitment of any Revolving
Credit Bank would be less than zero.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars and shall be a standby letter of
credit issued to support obligations of the Company, contingent or
otherwise, acceptable to the Issuing Bank and
(ii) expire no later than the earlier of (x) one year after the
date of issuance thereof and (y) the Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(d) The Issuing Bank shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Bank or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
SECTION 3.2 PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
The Company may from time to time request that the Issuing Bank
issue a Letter of Credit by delivering to the Issuing Bank at its address for
notices specified herein an Application therefor, completed to the
satisfaction of the Issuing Bank, and such other certificates, documents and
other papers and information as the Issuing Bank may request. Upon receipt of
any Application, the Issuing Bank will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
the Issuing Bank be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such
other certificates, documents and other papers and information relating
thereto) by issuing the original of such Letter of Credit to the beneficiary
thereof or as otherwise may be agreed by the Issuing Bank and the Company.
The Issuing Bank shall furnish a copy of such Letter of Credit to the Company
promptly following the issuance thereof.
SECTION 3.3 COMMISSIONS AND OTHER CHARGES.
(a) The Company shall pay to the Administrative Agent, for the
account of the Revolving Credit Banks, a letter of credit commission with
respect to each Letter of Credit, computed for the period from the date of
issuance of such Letter of Credit to the expiration date of such Letter of
Credit at a rate per annum, calculated on the basis of a 360-day year, equal
to the Applicable Eurodollar Margin from time to time in effect on the
average daily aggregate amount available to be drawn under such Letter of
Credit during the period for which payment is made, and payable to the
Revolving Credit Banks (including the Issuing Bank in its capacity as a
Revolving Credit Bank) to be shared ratably among them in accordance with
their respective Revolving Credit Commitment Percentages. In addition to the
foregoing, the Company shall pay to the Issuing Bank, for its own account, a
fronting commission with respect to each Letter of Credit, computed for the
period from the date of issuance of such Letter of Credit to the expiration
date of such Letter of Credit at a rate per annum, calculated on the basis of
a 360-day year, equal to one-half of 1% on the average daily aggregate amount
available to be drawn under such Letter of Credit during the period for which
payment is made. Such commissions shall be payable in arrears on each L/C
Fee Payment Date to occur after the date of issuance of each Letter of Credit
and shall be nonrefundable.
(b) In addition to the foregoing commissions, the Company shall
pay or reimburse the Issuing Bank for such normal and customary costs and
expenses as are incurred or charged by the Issuing Bank in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Bank and the L/C Participants all
commissions received by the Administrative Agent for their respective
accounts pursuant to this Section.
SECTION 3.4 L/C PARTICIPATIONS.
(a) The Issuing Bank irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Bank to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Bank, on the terms
and conditions hereinafter stated, for such L/C Participant's own account and
risk an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage in the Issuing Bank's obligations and rights under each
Letter of Credit issued hereunder and the amount of each draft paid by the
Issuing Bank thereunder. Each L/C Participant unconditionally and irrevocably
agrees with the Issuing Bank that, if a draft is paid under any Letter of
Credit for which the Issuing Bank is not reimbursed in full by the Company in
accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Bank upon demand at the Issuing Bank's address for notices
specified herein an amount equal to such L/C Participant's Revolving Credit
Commitment Percentage of the amount of such draft, or any part thereof, which
is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Bank pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by the Issuing Bank under any Letter of Credit is
paid to the Issuing Bank within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Bank on demand
an amount equal to the product of (1) such amount, times (2) the daily
average Federal Funds Effective Rate, as quoted by the Issuing Bank, during
the period from and including the date such payment is required to the date
on which such payment is immediately available to the Issuing Bank, times (3)
a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. If any such amount required
to be paid by any L/C Participant pursuant to Section 3.4(a) is not in fact
made available to the Issuing Bank by such L/C Participant within three
Business Days after the date such payment is due, the Issuing Bank shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum
applicable to Base Rate Loans hereunder. A certificate of the Issuing Bank
submitted to any L/C Participant with respect to any amounts owing under this
Section shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with Section 3.4(a), the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the Company or otherwise, including proceeds of collateral applied
thereto by the Issuing Bank), or any payment of interest on account thereof,
the Issuing Bank will distribute to such L/C Participant its pro rata share
thereof; PROVIDED, HOWEVER, that in the event that any such payment received
by the Issuing Bank shall be required to be returned by the Issuing Bank,
such L/C Participant shall return to the Issuing Bank the portion thereof
previously distributed by the Issuing Bank to it.
SECTION 3.5 REIMBURSEMENT OBLIGATION OF THE COMPANY.
(a) The Company agrees to reimburse the Issuing Bank on each date
on which the Issuing Bank notifies the Company of the date and amount of a
draft presented under any Letter of Credit and paid by the Issuing Bank for
the amount of (1) such draft so paid and (2) any taxes, fees, charges or
other costs or expenses incurred by the Issuing Bank in connection with such
payment. Each such payment shall be made to the Issuing Bank at its address
for notices specified herein in lawful money of the United States of America
and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Company under this Section (i) from the date the draft
presented under the affected Letter of Credit is paid to the date on which
the Company is required to pay such amounts pursuant to paragraph (a) above
at the rate which would then be payable on any outstanding Base Rate Loans
and (ii) thereafter until payment in full at the rate which would be payable
on any outstanding Base Rate Loans which were then overdue.
(c) Each drawing under any Letter of Credit shall constitute a
request by the Company to the Administrative Agent for a borrowing pursuant
to Section 2.2 of Base Rate Loans in the amount of such drawing. The
Borrowing Date with respect to such borrowing shall be the date of such
drawing.
SECTION 3.6 OBLIGATIONS ABSOLUTE.
(a) The Company's obligations under this Section 3 shall be
absolute and unconditional under any and all circumstances and irrespective
of any set-off, counterclaim or defense to payment which the Company may have
or have had against the Issuing Bank or any beneficiary of a Letter of
Credit.
(b) The Company also agrees with the Issuing Bank that the Issuing
Bank shall not be responsible for, and the Company's Reimbursement
Obligations under Section 3.5(a) shall not be affected by, among other
things, (1) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (2) any dispute between or among the Company and any
beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or (3) any claims whatsoever of the Company
against any beneficiary of such Letter of Credit or any such transferee.
(c) The Issuing Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions caused by the Issuing Bank's gross negligence or
willful misconduct.
(d) The Company agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence of willful
misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Company and shall not result in any liability of the Issuing Bank to the
Company.
SECTION 3.7 LETTER OF CREDIT PAYMENTS.
If any draft shall be presented for payment under any Letter of
Credit, the Issuing Bank shall promptly notify the Company of the date and
amount thereof. The responsibility of the Issuing Bank to the Company in
connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents (including
each draft) delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit. If an Event of
Default shall have occurred and be continuing, the Issuing Bank shall be
entitled to give notice to the trustee under the Loan Agreement that it has
terminated its obligations to honor "C Drawings" and "D Drawings" under the
Specified Letter of Credit.
SECTION 3.8 APPLICATION.
To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Section 3, the
provisions of this Section 3 shall apply.
ARTICLE IV
CONDITIONS TO EXTENSIONS OF CREDIT
The obligations of each Bank to make each extension of credit
hereunder are subject to the satisfaction of the following conditions
precedent:
SECTION 4.1 EACH EXTENSION OF CREDIT.
In the case of the making of each Loan and the issuance of each
Letter of Credit (including the initial extensions of credit hereunder):
(a) the Administrative Agent (or in the case of any Letter of
Credit, the Issuing Bank) shall have received notice of such extension
of credit as required by Section 2.2, 2.4, 2.9 or 3.2;
(b) immediately prior to and after such extension of credit no
Default or Event of Default shall have occurred and be continuing; and
(c) each of the representations and warranties contained in this
Agreement shall be true and correct on and as of the date of such
extension of credit with the same effect as if made on and as of such
date.
Each borrowing by and issuance of a Letter of Credit on behalf of
the Company hereunder shall constitute a representation and warranty by the
Company as of the date of such extension of credit that (i) the conditions
set forth in this Section 4.1 have been satisfied and (ii) in the case of
each Loan, no more than $8,000,000 in Cash (excluding (x) Temporary Cash
Investments in an aggregate amount not to exceed $22,000,000 maintained
pursuant to the documentation governing the FAME Loan Agreement and (y) Cash
securing the letter of credit issued by Shawmut Bank referred to in Section
4.3) will be retained by the Company after three Business Days from the
relevant Borrowing Date.
SECTION 4.2 FIRST LOAN. In the case of the first Loan hereunder
(in addition to the conditions set forth in Section 4.1 hereof):
(a) the Administrative Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the
Company and each Bank, (ii) the Pledge Agreement, executed and delivered
by the Company, and (iii) for the account of each relevant Bank, a duly
executed Revolving Credit Note, Swing Line Note or Term Note complying
with the provisions of Section 2.3, 2.4(h) or 2.8;
(b) (i) the Administrative Agent and each of the Banks shall have
received a Supplemental Indenture (the "Supplemental Indenture") to the
Mortgage in form and substance satisfactory to it providing for the
issuance of First Mortgage Bonds (the "COLLATERAL BONDS") having an
aggregate principal amount of at least $115,000,000 and (ii) the
Administrative Agent shall have received a certificate evidencing each
Collateral Bond registered in the name of the Administrative Agent;
(c) the Administrative Agent shall have received, with a photocopy
for each Bank, an opinion each of (i) Frederick Samp, General Counsel of
the Company, dated the Effective Date, substantially in the form of
Exhibit E-1 hereto, (ii) Winthrop, Stimson, Putnam & Roberts, New York
counsel to the Company, dated the Effective Date, substantially in the
form of Exhibit E-2 hereto and (iii) Eaton, Peabody, Bradford & Veague,
special Maine counsel to the Administrative Agent, dated the Effective
Date, substantially in the form of Exhibit E-3 hereto, and covering such
additional matters relating to the transactions contemplated hereby as
any Bank may reasonably request;
(d) the Administrative Agent shall have received evidence in form
and substance satisfactory to it (i) of the termination and cancellation
of the commitment to lend thereunder of the banks that are parties to
the Credit Agreement, dated as of May 26, 1992, as amended from time to
time, among the Company, the banks named therein and Chemical Bank, as
administrative agent (the "EXISTING CREDIT AGREEMENT"), and (ii) that
all amounts of principal, interest and fees due and payable to such
banks thereunder shall have been paid in full (it being understood that,
without affecting any terms of the Existing Credit Agreement which
expressly survive the termination thereof, each Bank party to the
Existing Credit Agreement hereby waives any requirement of advance
notice of such termination contained therein and hereby agrees that the
Existing Credit Agreement and the commitments thereunder shall terminate
simultaneously with the satisfaction of the conditions set forth in this
Section 4.2);
(e) the Administrative Agent shall have received, with a photocopy
for each Bank, true and complete copies of the certificate of
incorporation and by-laws of the Company, certified as of the date of
the first borrowing, as complete and correct copies thereof by the
Secretary or an Assistant Secretary of the Company;
(f) the Administrative Agent shall have received, with a photocopy
for each Bank, a copy of the resolutions, in form and substance
satisfactory to the Banks, of the Board of Directors of the Company
authorizing (i) the execution, delivery and performance of the Loan
Documents and (ii) the extensions of credit contemplated hereunder,
certified by the Secretary or an Assistant Secretary of the Company,
which certificate shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded and are in full
force and effect;
(g) the Administrative Agent shall have received, with a photocopy
for each Bank, a certificate of the Secretary or an Assistant Secretary
of the Company, substantially in the form of Exhibit C, as to the
incumbency and signature of the officers signing any Loan Document, any
of the certificates required hereunder and any other document or
certificate delivered pursuant to the provisions of this Agreement,
together with evidence of the incumbency of such Secretary or Assistant
Secretary;
(h) the Administrative Agent shall have received, with a photocopy
for each Bank, a certified copy of the order from the Commission
referred to in Section 5.6;
(i) the Administrative Agent shall have received evidence
satisfactory to it that the Company has received gross proceeds of at
least $105,000,000 from the issuance of Debt secured by Second Mortgage
Bonds, on terms and conditions satisfactory to the Administrative Agent
and the Banks; and
(j) (i) concurrently with the making of the initial Loans, the
Company shall have paid in full all of its obligations under the
Purchase Agreements between the Company and each of Babcock-Ultrapower
Jonesboro ("Jonesboro") and Babcock-Ultrapower West Enfield ("West
Enfield"), each dated March 31, 1995 (the "Purchase Agreements") and the
aggregate amount so paid, together with transaction costs relating to
such Purchase Agreements, shall not exceed $180,000,000 and (ii) the
Administrative Agent shall have received satisfactory evidence of the
termination of the power purchase contracts between the Company and each
of Jonesboro and West Enfield and the Loan Agreement referred to in the
Purchase Agreements.
SECTION 4.3 SPECIFIED LETTER OF CREDIT. In the case of the
issuance of any Specified Letter of Credit, the Administrative Agent shall
have received evidence satisfactory to it of the termination of the Letter of
Credit issued by Shawmut Bank for the benefit of the trustee under the Loan
Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Banks to enter
into this Agreement and make the extensions of credit provided for herein,
the Company represents and warrants to the Administrative Agent and each Bank
that:
SECTION 5.1 CORPORATE EXISTENCE AND POWER. The Company is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Maine and has all corporate power and all material
governmental licenses, permits, authorizations, consents, approvals and
franchises required to own and operate its properties and to carry on its
business as now conducted.
SECTION 5.2 CORPORATE AUTHORIZATION; NON-CONTRAVENTION. The
execution, delivery and performance by the Company of each Loan Document are
within the Company's corporate powers, have been duly authorized by all
necessary corporate action and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate of
organization, as amended, or by-laws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Company or result in the creation or imposition of any Lien on any asset of
the Company or any of its Subsidiaries (except as contemplated by the
Mortgage and the Pledge Agreement).
SECTION 5.3 BINDING EFFECT. Each Loan Document constitutes a
valid and binding obligation of the Company, enforceable in accordance with
its terms.
SECTION 5.4 FINANCIAL INFORMATION. (a) The balance sheet of the
Company as of December 31, 1994 and the related statements of income,
retained earnings and statement of cash flows for plant additions for the
fiscal year then ended (reported on by Coopers & Lybrand), copies of which
have been delivered to each of the Banks and are attached hereto as Exhibit
I, fairly present, in conformity with GAAP applied on a consistent basis, the
financial position of the Company as of such date and its results of
operations and statement of cash flows, for plant additions for such fiscal
year. The Company does not have any material liability, contingent or other,
not provided for or described in (i) the financial statements referred to in
this Section 5.4(a), (ii) the Company's 1994 Form 10-K or (iii) the Company's
report to stockholders for the first quarter of 1995 (collectively, the
"DISCLOSURE DOCUMENTS"). Copies of each of the Disclosure Documents have
been provided to each of the Banks.
(b) Except as set forth in the Disclosure Documents, since
December 31, 1994, there has been no development or event nor any prospective
development or event, which has had or could have a Material Adverse Effect.
SECTION 5.5 LEGAL AND REGULATORY PROCEEDINGS. Except as set forth
in the Disclosure Documents, there is no action, suit, proceeding or
investigation pending, or to the knowledge of the Company threatened, against
or affecting the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official, an adverse decision
which might materially and adversely affect the business, financial position
or results of operations of the Company or which in any manner questions the
validity of any Loan Document. Except as set forth in the Disclosure
Documents, since December 31, 1994, there has been no materially adverse
development or determination (interim or final) in any such action, suit,
proceeding or investigation.
SECTION 5.6 GOVERNMENTAL AUTHORIZATION. Except for the order of
the Commission authorizing the entering into, execution, delivery and
performance of the Loan Documents, no approval, consent or authorization of
or filing with any governmental or public regulatory body or authority is
required in connection with the execution, delivery and performance of any
Loan Document. On or prior to the first borrowing hereunder, the order of
the Commission authorizing the entering into, execution, delivery and
performance of the Loan Documents as aforesaid will have been obtained and a
true copy thereof will have been furnished to each of the Banks. On the date
of each subsequent extension of credit hereunder, such order will be in full
force and effect.
SECTION 5.7 TAXES. United States federal income tax returns of
the Company have been examined and closed through the fiscal year ended
December 31, 1988. The Company has filed all United States federal income
tax returns and all other material tax returns which are required to be filed
by it and has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company. The charges, accruals and reserves on
the books of the Company in respect of taxes or other governmental charges
are adequate in the opinion of the Company.
SECTION 5.8 SUBSIDIARIES. Annexed hereto as Exhibit G is a
statement showing the names of all the Subsidiaries of the Company as of the
date of this Agreement, the amount of the capital stock of each and the
amount thereof owned by the Company, and the business of each. Each such
Subsidiary is a corporation duly organized and validly existing under the
laws of the State of Maine, and each has all requisite corporate power and
all material governmental licenses, permits, authorizations, consents,
approvals and franchises to conduct the business in which it is engaged and
to own and operate the properties used by it in such business. All shares of
each such Subsidiary owned by the Company have been duly and validly issued
and are fully paid and nonassessable, are free and clear of all Liens and
there are no outstanding options, warrants or other rights to purchase or
securities convertible into or exchangeable for shares of capital stock of
any such Subsidiary.
SECTION 5.9 COMPLIANCE WITH ERISA. The Company has satisfied the
minimum funding standards under ERISA with respect to its Plans and is in
compliance in all material respects with the presently applicable provisions
of ERISA.
SECTION 5.10 USE OF PROCEEDS. The proceeds of the Loans made
under this Agreement will be used by the Company for general corporate
purposes. None of such proceeds will be used, directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any "margin stock" within the meaning of Regulation U of the Board
of Governors of the Federal Reserve System. The Company is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any such margin
stock within the meaning of such Regulation U.
SECTION 5.11 PROPERTIES. The Company and its Subsidiaries each
has good and sufficient title to all real property and all machinery and
equipment owned by it and owns or possesses adequate rights to use all real
property and all machinery and equipment necessary to the conduct of its
business, all free and clear of Liens other than Liens permitted by Section
6.5. The Company enjoys peaceful and undisturbed possession under all of its
leases with respect to materially important properties held under lease, and
all of such leases are in full force and effect.
SECTION 5.12 NO DEFAULTS, VIOLATIONS, ETC. The Company is not in
violation of its certificate of organization, as amended, or by-laws or in
violation of any law, ordinance, rule or regulation to which it is subject
which violations, individually or in the aggregate, would materially and
adversely affect the business, properties, operations, prospects or condition
(financial or other) of the Company, or in default in any material respect in
the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
indenture or loan agreement of the Company.
SECTION 5.13 RESTRICTIONS ON COMPANY. Except as set forth in the
Disclosure Documents, the Company is not a party or subject to any contract
or agreement, or any charter, by-law or other corporate restriction, or any
law, ordinance, rule or regulation or order, decree, judgment or license
which, individually or when aggregated, materially and adversely affects or
in the future may (so far as the Company can now reasonably foresee)
materially and adversely affect the business of the Company.
SECTION 5.14 PUBLIC UTILITY HOLDING COMPANY ACT. The Company is
exempt from the provisions of the Public Utility Holding Company Act of 1935
and the rules promulgated thereunder other than Section 9(a)(2) thereof, and
is not a "subsidiary" or an "affiliate" of any "holding company" as such
terms are defined in said act. The Company is not subject to any other law,
rule or regulation which in any way restricts its ability to incur Debt
pursuant to this Agreement.
ARTICLE VI
COVENANTS
The Company agrees that, so long as any Bank has any Commitment
hereunder, any Letter of Credit is outstanding, or any Loan or other amount
owing hereunder remains unpaid:
SECTION 6.1 INFORMATION. The Company will deliver to each of the
Banks:
(a) as soon as available and in any event within 100 days after
the end of each fiscal year, a balance sheet of the Company as of the
end of such fiscal year and the related statements of income, retained
earnings and statement of cash flows for such fiscal year, setting forth
in each case in comparative form the figures for the previous fiscal
year, all reported on in a manner acceptable to the Securities and
Exchange Commission by Coopers & Lybrand or other independent public
accountants of nationally recognized standing; PROVIDED that if the
Company has any consolidated Subsidiaries, such financial statements
shall be prepared on a consolidated basis; and PROVIDED, FURTHER, that
such financial statements shall in any event include all figures
necessary to enable the Banks to determine whether the Company shall
have been in compliance with the requirements of Sections 6.7, 6.8, 6.9
and 6.10 as at the end of the fiscal period covered thereby;
(b) as soon as available and in any event within 50 days after the
end of each of the first three quarters of each fiscal year, a balance
sheet of the Company as of the end of such quarter and the related
statements of income, retained earnings and statement of cash flows for
such quarter and for the portion of the Company's fiscal year ended at
the end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion
of the Company's previous fiscal year, all certified as to fairness of
presentation, generally accepted accounting principles and consistency
by the chief financial officer or the chief accounting officer of the
Company; PROVIDED that if the Company has any consolidated Subsidiaries,
such financial statements shall be prepared on a consolidated basis; and
PROVIDED, FURTHER, that such financial statements shall in any event
include all figures necessary to enable the Banks to determine whether
the Company shall have been in compliance with the requirements of
Sections 6.7, 6.8 and 6.9 as at the end of the fiscal period covered
thereby;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of
the chief financial officer or the chief accounting officer of the
Company (i) setting forth calculations in reasonable detail
demonstrating whether the Company was in compliance with the
requirements of Sections 6.3, 6.4, 6.5, 6.7, 6.8, 6.9, and 6.10 on the
date of such financial statements and (ii) stating whether there exists
on the date of such certificate any Default or Event of Default and, if
any Default or Event of Default then exists, setting forth the details
thereof and the action which the Company is taking with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements to the
effect that nothing has come to their attention to cause them to believe
that there existed on the date of such statements any Default or Event
of Default;
(e) forthwith upon the occurrence of any Default or Event of
Default, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth the details thereof and
the action which the Company is taking with respect thereto;
(f) promptly upon the mailing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and annual, quarterly or
monthly reports which the Company shall have filed with the Securities
and Exchange Commission;
(g) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(h) if and when the Company or any Subsidiary gives or is required
to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA or knows
that the plan administrator of any Plan-has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC;
(i) promptly on every December 31, a projected balance sheet as of
the end of the next fiscal year and a projected statement of income,
retained earnings and cash flows for such fiscal year;
(j) forthwith upon the entering into of any commitment for
additional capacity for the generation or transmission of electric
energy in connection with a transaction requiring the approval of the
Commission (or which would require such approval but for specific
exception therefrom with respect to transactions with any "co-generator"
or "small power producer", as such terms are defined in Chapter 172 of
Title 35 of the Maine Revised Statutes), notice of such commitment,
together with a brief description of the nature thereof, the amount
thereof and the approximate dates on which expenditures under such
commitment are to be made and any changes in any of the foregoing upon
the effectiveness thereof;
(k) promptly upon the Company's knowledge thereof, notice of (1)
any material amendment of the terms of any joint ownership agreement,
joint venture, partnership, plant construction or similar agreement or
arrangement for the ownership, construction or operation of electric
generating facilities to which the Company is a party, and (2) any
material default by any party to such agreement or arrangement;
(l) (i) on or about June 30 and December 31 of each year, a letter
from S&P setting forth the Company's long-term senior secured debt
rating then in effect and (ii) within two Business Days after the
occurrence thereof, written notice of any change in Status; PROVIDED
that the failure to provide such notice shall not delay or otherwise
affect any change in the Applicable Base Rate Margin, the Applicable
Eurodollar Margin or the Commitment Fee Rate which is to occur upon a
change in Status pursuant to the terms of this Agreement; and
(m) from time to time such additional information regarding the
financial position or business of the Company as the Administrative
Agent, at the request of any Bank, may reasonably request.
SECTION 6.2 PAYMENT OF TAXES; PRESERVATION OF CORPORATE EXISTENCE
AND FRANCHISES; MAINTENANCE OF PROPERTIES; COMPLIANCE WITH LAWS; MAINTENANCE
OF INSURANCE. The Company will, and cause each Subsidiary to:
(a) pay and discharge promptly or cause to be paid and discharged
promptly all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or upon any of its
properties, as well as all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon any of its
properties; PROVIDED, that the payment of any such tax, assessment,
charge, levy or claim shall not be required so long as the amount,
applicability or validity thereof shall be contested in good faith by
appropriate proceedings (or, in the case of any tax, assessment, charge
or levy, payment may be made without penalty) and the Company or such
Subsidiary, as the case may be, shall have set aside on its books such
reserves, if any, in respect thereof (segregated to the extent required
by generally accepted accounting principles) as shall be deemed to be
necessary and adequate in the judgment of (i) the Company or such
Subsidiary, as the case may be, and (ii) its independent public
accountants;
(b) subject to Section 6.6, do or cause to be done all things
necessary on its part to preserve and keep in full force and effect its
corporate existence and rights and its corporate and public utility
franchises, rights, licenses and permits necessary for the conduct of
its business; PROVIDED that the Company may terminate the corporate
existence of any Subsidiary or may terminate or abandon, or permit the
termination or abandonment of, any right, franchise, license or permit
if the termination or abandonment thereof is in the best interests of
the Company or the affected Subsidiary, in the opinion of the Company's
Board of Directors, and such termination or abandonment does not result
in a Default or Event of Default under this Agreement;
(c) maintain and keep, or cause to be maintained and kept, its
properties in good repair, working order and condition, and from time to
time make or cause to be made all necessary and proper repairs,
renewals, replacements and improvements so that the business carried on
in connection therewith may be properly and advantageously conducted at
all times;
(d) comply in all material respects with all applicable laws,
rules and regulations and orders of any governmental authority,
noncompliance with which would have a Material Adverse Effect, except
laws, rules, regulations or orders being contested in good faith; and
(e) maintain insurance with responsible and reputable insurers
covering all such properties and risks, and in such amounts as is
usually carried by companies engaged in similar businesses, similarly
situated and owning similar properties (including without limitation,
the ownership or operation of nuclear generating facilities).
SECTION 6.3 LIMITATION ON DEBT. The Company will not, nor will it
permit any Subsidiary to, incur, assume, guarantee or otherwise become or
remain liable for any Debt other than:
(a) Debt outstanding on the date hereof and described in the
Disclosure Documents and any refinancing thereof, having covenants and
maturities no less favorable to the Company than the Debt being
refinanced, which does not increase the principal amount of the Debt
being refinanced;
(b) Debt described in Section 4.2(i) in an aggregate principal
amount not to exceed $126,000,000;
(c) Debt outstanding on the Effective Date incurred pursuant to
the Loan Agreement;
(d) Guarantees of the Company of the indebtedness of others, as
set forth in Exhibit H, but only to the extent and upon the terms
indicated;
(e) (i) Debt outstanding under this Agreement, the Notes or the
Collateral Bonds and (ii) L/C Obligations; or
(f) Any unsecured Debt not otherwise permitted by this Section 6.3
in an aggregate principal amount not to exceed at any one time the sum
of (i) $5,000,000 plus (ii) an amount equal to 50% of the aggregate
amount of any reductions in the Revolving Credit Commitments made
pursuant to Section 2.6 or 2.11.
SECTION 6.4 INVESTMENTS. Neither the Company nor any Subsidiary
will make or acquire any Investment in any Person other than:
(a) Temporary Cash Investments;
(b) Investments in Persons who are principally engaged, or who
propose principally to engage, in the generation or transmission of
electricity or in water storage development, PROVIDED that the aggregate
amount expended pursuant to this paragraph (b) shall not exceed
$20,000,000 during the term of this Agreement;
(c) Investments in Persons for the purpose of promoting the sale,
installation and maintenance of products that consume electricity,
PROVIDED that the aggregate amount expended pursuant to this paragraph
(c) shall not exceed $5,000,000 during the term of this Agreement; and
(d) Investments in Persons participating in the implementation of
demand side measures pursuant to the rules and regulations now or
hereafter promulgated by the Commission, provided that any such
Investments shall not in the aggregate exceed $2,000,000 principal
amount at any time outstanding to all such Persons or in the aggregate
exceed $1,000,000 principal amount at any time outstanding to any
Person.
SECTION 6.5 NEGATIVE PLEDGE. Neither the Company nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and reflected in
the Disclosure Documents and not otherwise permitted by this Section
6.5, PROVIDED that the aggregate of all Debt or other obligations
secured by all such Liens does not at any time exceed $500,000;
(b) Liens existing on any property at the time of acquisition
thereof by the Company or any Subsidiary or Liens on property of a
corporation existing at the time such corporation becomes a Subsidiary
and in each case not created in connection with or in contemplation of
such acquisition or event, as the case may be, whether or not assumed;
PROVIDED that in each case such Lien shall apply and attach only to the
property originally subject thereto and improvements constructed
thereon;
(c) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the purchase price of such
asset, PROVIDED that such Lien attaches to such asset concurrently with
or within 90 days after the acquisition thereof, PROVIDED FURTHER that
the aggregate amount of all Debt or other obligations secured by all
such Liens permitted by this clause (c) shall not at any time exceed
$2,000,000;
(d) Liens for the sole purpose of extending, renewing or replacing
(or successively extending, renewing or replacing) in whole or in part
the Debt secured by any Lien permitted by clauses (a), (b) and (c) of
this Section 6.5; PROVIDED that the principal amount of Debt secured
thereby shall not exceed the principal amount of Debt so secured at the
time of such extension, renewal or replacement, and that such extension,
renewal or replacement Lien shall be limited to all or a part of the
property which secured the Debt so extended, renewed or replaced (plus
improvements on such property);
(e) Liens for taxes, fees, assessments or governmental charges not
yet due and delinquent or being contested in good faith by appropriate
proceedings and Liens resulting from or incurred with respect to legal
proceedings being contested in good faith by appropriate proceedings;
(f) Liens securing the claims of mechanics, laborers, workmen,
repairmen, materialmen, suppliers, carriers, warehousemen, landlords or
vendors not yet due and delinquent, or being contested in good faith by
appropriate proceedings;
(g) deposits to secure the performance of obligations (other than
obligations for the payment of borrowed money) incurred in the ordinary
course of business;
(h) banker's Liens arising by operation of law and other banker's
possessory Liens arising in the ordinary course of business otherwise
than for the purpose of securing obligations for the payment of borrowed
money (including, without limitation, obligations arising from drafts
accepted representing extensions of credit to or for the benefit of the
Company);
(i) Liens created by the Mortgage securing bonds issued under and
in accordance with the requirements of the Mortgage as such Mortgage may
be amended from time to time, PROVIDED, HOWEVER, no such amendment or
supplement thereof shall without the consent of all of the Banks amend
or supplement the Mortgage (1) to include categories of property or
property interests of the Company not already included pursuant to the
terms of such Mortgage as in effect on the date hereof, or (2) to permit
the Company to withdraw "Deposited Cash" or execute "Bonds" in excess of
75% of the amount by which the actual cost or fair value (whichever is
lower) of "property additions" shall exceed "property retirements", as
set forth in Section 27 of the Mortgage as in effect on the date hereof.
For purposes of this Section 6.5(i) only, "Deposited Cash", "Bonds",
"property additions" and "property retirements" shall have the
respective definition of such terms as defined in the Mortgage on the
date hereof;
(j) Liens incurred in connection with equipment or vehicle
financing leases having an aggregate purchase cost to the lessors not to
exceed $5,000,000;
(k) minor defects and irregularities in the title (including
easements, rights of way, restrictions or other similar nonmonetary
charges) to any real property of the Company or any Subsidiary which
have no material adverse effect on the use or disposition thereof by the
Company or such Subsidiary;
(l) Liens created pursuant to the General and Refunding Mortgage
Indenture;
(m) Liens created by the Pledge Agreement; and
(n) Liens in respect of the Cash collateral referred to in Section
4.1.
SECTION 6.6 CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The
Company will not, other than as described below, (i) consolidate with or
merge with or into any other Person or (ii) sell, lease or otherwise transfer
all or a Substantial Part of its assets during the term of this Agreement.
The Company will not permit any Subsidiary to consolidate with, merge with or
into or transfer all or a Substantial Part of its assets to any Person other
than the Company or a wholly owned Subsidiary, PROVIDED that assets having an
aggregate book value of up to $500,000 may be so transferred during the term
of this Agreement.
SECTION 6.7 CONSOLIDATED TOTAL DEBT RATIO. The Company shall not
permit the Consolidated Total Debt Ratio at any time during any period set
forth below to be higher than the ratio set forth opposite such period below:
PERIOD RATIO
---------------------------------- -----------
Effective Date to and
including - 12/31/95 0.77 to 1.0
1/1/96 to and including - 12/31/96 0.75 to 1.0
1/1/97 to and including - 12/31/97 0.72 to 1.0
1/1/98 to and including - 12/31/98 0.68 to 1.0
1/1/99 and thereafter 0.65 to 1.0
SECTION 6.8 CONSOLIDATED FIXED CHARGE RATIO. The Company shall
not permit the Consolidated Fixed Charge Ratio for any period of four
consecutive fiscal quarters of the Company ending during any period set forth
below to be less than the ratio set forth opposite such period below:
PERIOD RATIO
------------------------ -----------
Effective Date to and 1.25 to 1.0
including 9/30/96
Thereafter 1.5 to 1.0
SECTION 6.9 MAINTENANCE OF NET WORTH. The Company shall not
permit Consolidated Net Worth of the Company at any time during any period
set forth below to be less than the amount set forth opposite such period
below:
PERIOD AMOUNT
---------------------------------------- ------------
Effective Date to and including 6/30/96 $ 95,000,000
7/1/96 to and including 6/30/97 $100,000,000
7/1/97 to and including 6/30/98 $105,000,000
7/1/98 and thereafter $110,000,000
SECTION 6.10 LIMITATION ON DIVIDENDS, ETC. (a) During any
fiscal year of the Company commencing after December 31, 1995, the Company
shall not declare or pay any dividend (other than dividends payable solely in
common stock of the Company) on, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares of any
class of common stock of the Company or any warrants or options to purchase
any such common stock, whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or indirectly, whether
in cash or property or in obligations of the Company or any Subsidiary.
Notwithstanding the foregoing, the Company may pay dividends in respect of
its common stock in any fiscal year in an aggregate amount not to exceed 70%
of earnings applicable to common stock for such fiscal year.
(b) The Company shall not issue any Capital Stock (other than
common stock) ("PREFERRED STOCK") after the Effective Date except for
Preferred Stock the proceeds of which are used to refinance other Preferred
Stock or Debt having covenants and maturities no less favorable to the
Company than the Preferred Stock or Debt being refinanced.
SECTION 6.11 STATUS. Promptly upon request by the Administrative
Agent or any Bank, the Company shall obtain from S&P in writing the Company's
long-term senior secured debt rating and disclose such rating to the
Administrative Agent or such Bank, as the case may be.
SECTION 6.12 AMENDMENTS TO SECOND MORTGAGE BONDS, ETC. The
Company shall not amend, supplement or otherwise modify, or consent to any
amendment, supplement or other modification to, (a) the General and Refunding
Mortgage Indenture, the Second Mortgage Bonds, the FAME Loan Agreement or any
agreement entered into by the Company in connection therewith (provided that
the foregoing shall not prohibit (i) the issuance of any supplemental
indenture in respect of the General and Refunding Mortgage Indenture for the
sole purpose of providing for the issuance of refinancing Debt expressly
permitted by Section 6.3 or (ii) modifications to the General and Refunding
Mortgage Indenture made for the sole purpose of perfecting under applicable
law the Liens contemplated thereby) or (b) the terms of any Preferred Stock.
SECTION 6.13 INTEREST RATE PROTECTION. Within 120 days after the
Effective Date, the Company shall enter into an Interest Rate Protection
Agreement in respect of the entire principal amount of the Term Loans
effective through June 30, 2000 which Interest Rate Protection Agreement
shall have terms and conditions reasonably satisfactory to the Administrative
Agent (and in any event, in the case of a cap, shall protect the Company
against any increase in the eurodollar rate by more than 1-1/2% above the
eurodollar rate in effect on the Effective Date).
SECTION 6.14 LIMITATION ON OPTIONAL PREPAYMENTS OF CERTAIN DEBT.
The Company shall not make any optional payment or prepayment on or
redemption, purchase or defeasance of (a) any Second Mortgage Bond, (b) any
Debt under the FAME Loan Agreement or (c) any Preferred Stock.
SECTION 6.15 RIGHTS OF INSPECTION. The Company shall permit the
Administrative Agent at all reasonable times and upon reasonable notice, to
examine the books and records of the Company with respect the Company's
business generally, and the Company shall furnish the Administrative Agent
with such information, statements and certificates as may reasonably be
required from time to time.
SECTION 6.16 MATTERS OF ENVIRONMENTAL CONCERN. The Company
covenants that (a) except in compliance with applicable environmental laws,
or, if known or if it becomes known to the Company, as disclosed pursuant to
the Exchange Act, it has not discharged, dumped, installed, stored, used,
treated, transported, disposed or maintained, and shall neither discharge,
dump, install, store, use, treat, transport, dispose or maintain toxic,
hazardous, or radioactive substances, materials or wastes, including, without
limitation, all of the following; (i) asbestos in any form; (ii) urea
formaldehyde foam insulation, (iii) transformers or other equipment which
contain dielectric fluid containing any level or polychlorinated biphenyls or
(iv) any other chemical, material or substance which is prohibited, limited
or regulated by any federal, state, county, regional, local or other
governmental authority or which, even if not so regulated, to the knowledge
of the Company poses substantial hazard to health and safety (all of which
are referred to collectively herein as ("HAZARDOUS SUBSTANCES"), except such
non-compliance as would not have a material adverse effect on the Company or
its financial condition, and (b) the Company is not the subject of any
existing, pending or threatened investigation or inquiry by, or any remedial
order or obligation issued by or at the behest of, any governmental authority
under any law, rule or regulation pertaining to health or the environment
which would have a material adverse effect on the Company or its financial
condition except (i) during any period during
which the Company at its own expense and in its name shall be in good faith
contesting its obligation to company therewith or (ii) as described in
filings made pursuant to the Exchange Act.
ARTICLE VII
DEFAULTS
SECTION 7.1 EVENTS OF DEFAULT. If one or more of the following
events ("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) the Company shall fail to pay when due any principal of or
interest on any Loan, any commitment fee or any Reimbursement Obligation;
(b) the Company shall fail to observe or perform any covenant
contained in Section 6.1(e), any of Sections 6.3 through 6.12,
inclusive, Section 6.14 or Section 3 or 4 of the Pledge Agreement;
(c) the Company shall fail to observe or perform any covenant or
agreement contained in this Agreement or any other Loan Document (other
than those covered by clauses (a) or (b) above) for 10 days after
written notice thereof has been given to the Company by the
Administrative Agent or the Majority Banks;
(d) any representation, warranty, certification or statement made
by the Company in this Agreement or in the Pledge Agreement or in any
certificate, financial statement or other document delivered pursuant to
this Agreement shall prove to have been materially incorrect when made;
(e) the Company or any Subsidiary shall fail to make any payment
in respect of any Debt (other than the Loans) when due or within any
applicable grace period;
(f) the Company or any Subsidiary shall fail to observe or perform
any covenant or agreement contained in any agreement or instrument
relating to any of its Debt within any applicable grace period if the
effect of such failure is to accelerate, or to permit the holder of such
Debt or any other Person to accelerate, the maturity of such Debt;
(g) an involuntary case or other proceeding shall be commenced
against the Company or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property,
and such involuntary case or other proceeding shall remain undismissed
and unstayed for a period of 60 days; or an order for relief shall be
entered against the Company or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(h) the Company or any Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take
any corporate action to authorize any of the foregoing;
(i) there shall be commenced against the Company or any of its
Subsidiaries any case or other proceeding seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or
any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal for a period of 60 days;
(j) the Company or any Subsidiary or a Commonly Controlled Entity
shall fail to pay when due an amount or amounts aggregating in excess of
$100,000 which it shall have become liable to pay to the PBGC or to a
Plan under Title IV of ERISA; or notice of intent to terminate a Plan or
Plans having aggregate Unfunded Vested Liabilities in excess of $500,000
shall be filed under Title IV of ERISA by the Company, any Subsidiary, a
Commonly Controlled Entity, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate or to cause a trustee to be appointed to administer
any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 of ERISA and
such proceeding shall not have been dismissed within 30 days thereafter;
or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(k) a final judgment or order (from which all appeals have been
taken and determined or as to which all time for the taking of appeals
has lapsed) for the payment of money in excess of $500,000 shall be
rendered against the Company or any Subsidiary and such judgment or
order shall continue unsatisfied and in effect for a period of 60 days;
or
(l) (i) a judgment creditor shall obtain possession of any
material portion of the mortgaged property (the "Mortgaged Property")
referred to in the Mortgage by any means, including, without limitation,
levy, distraint, replevin or self-help, (ii) any foreclosure or other
remedial action in respect of or affecting the Mortgaged Property shall
be commenced by or on behalf of the holders of the Second Mortgage Bonds
or the trustee under the General and Refunding Mortgage Indenture, (iii)
any material portion of the Mortgaged Property shall be taken by eminent
domain or condemnation, (iv) the Mortgage shall cease to be in full
force and effect or the Company shall disavow its obligations thereunder
or shall contest the validity or enforceability thereof, (v) the trustee
under the Mortgage (the "First Mortgage Trustee") shall cease, in
respect of any material portion of the Mortgaged Property, to have a
valid and perfected first priority security interest therein, (vi) the
security interest of the First Mortgage Trustee in any material portion
of the Mortgaged Property shall otherwise become impaired or
unenforceable, or (vii) any provision of the Mortgage, the Supplemental
Indenture or the Collateral Bonds shall be amended, supplemented, waived
or otherwise modified in any respect except to the extent expressly
permitted by the Pledge Agreement;
then, and in every such event and at any time thereafter during the
continuance of any such event, the Administrative Agent shall, if requested
by the Majority Banks, by notice to the Company terminate the Commitments and
they shall thereupon be terminated, and the Administrative Agent shall, if
requested by the Majority Banks, by notice to the Company declare the Loans
(together with accrued interest thereon) and all other amounts outstanding
under this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder), and the
Loans and such amounts shall thereupon become, due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Company; PROVIDED that in the case of the occurrence of
any event described in the foregoing clauses (g) and (h) with respect to the
Company, the Loans and all amounts outstanding hereunder (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries
of the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall become due and payable forthwith without the
requirement of any such notice, and without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Company.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Company shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit. Amounts held in
such cash collateral account shall be applied by the Administrative Agent to
the payment of drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been
fully drawn upon, if any, shall be applied to repay other obligations of the
Company owing to the Administrative Agent and the Banks hereunder and under
the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have
been satisfied and all other obligations of the Company owing to the
Administrative Agent and the Banks hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Company (or such other Person as
may be lawfully entitled thereto).
SECTION 7.2 NOTICE OF EVENT OF DEFAULT. The Administrative Agent
shall give notice to the Company under Section 7.1(c) promptly upon being
requested to do so by the Majority Banks and shall thereupon notify all
holders of Notes thereof.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.1 APPOINTMENT. Each Bank who may, from time
to time, be party to this Agreement, hereby irrevocably designates and
appoints the Administrative Agent as agent of such Bank under this Agreement
and the other Loan Documents, and each such Bank hereby irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement or any other Loan Document, the
Administrative Agent shall have not any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Loan Document or otherwise exist against the Administrative Agent.
SECTION 8.2 DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or attorneys-in-fact selected by it with reasonable care.
SECTION 8.3 EXCULPATORY PROVISIONS. Neither the Administrative
Agent, nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates, shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except for its or such Person's
own gross negligence or willful misconduct), or (ii) responsible in any
manner to any of the Banks for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Documents or for any failure of the Company
to perform its obligations hereunder or thereunder. Neither the
Administrative Agent nor any Co-Agent shall be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of the Company.
SECTION 8.4 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying,
upon any Note, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including without
limitation, counsel to the Company), independent accountants and other
experts selected by them. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed
with them. The Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority
Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or
in refraining from acting, under the Loan Documents in accordance with a
request of the Majority Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Banks and all
future holders of the Notes.
SECTION 8.5 NOTICE OF EVENT OF DEFAULT. The Administrative Agent
shall not be deemed to have knowledge or notice of the occurrence of any
Event of Default hereunder unless it receives notice from a Bank or the
Company referring to this Agreement, describing such Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, it shall give notice thereof to
the Banks. The Administrative Agent shall take such action with respect to
such Event of Default as shall be reasonably directed by the Majority Banks.
SECTION 8.6 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS.
Each Bank expressly acknowledges that neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any review of the
affairs of the Company, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Bank. Each Bank represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Company and made its own decision to
make its loans hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports
and other documents expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, financial and
other condition or creditworthiness of the Company which may come into the
possession of such Administrative Agent or any of its respective officers,
directors, employees, agents, attorneys-in-fact or affiliates.
SECTION 8.7 INDEMNIFICATION. The Banks agree to indemnify the
Administrative Agent, in its capacity as administrative agent (to the extent
not reimbursed by the Company and without limiting the obligation of the
Company to do so), ratably according to the respective amounts of their
Revolving Credit Commitments (or, if the Revolving Credit Commitments have
been terminated, their Aggregate Outstanding Revolving Extensions of Credit)
and Term Loans outstanding on the date on which indemnification is sought
(or, if indemnification is sought after the date on which the Loans shall
have been paid in full, ratably in accordance with the foregoing amounts
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, or any
documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Administrative
Agent under or in connection with any of the foregoing; PROVIDED that no Bank
shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Administrative Agent's
gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.
SECTION 8.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Company as though
such Administrative Agent were not the Administrative Agent hereunder. With
respect to its loans made or renewed by it and any Note issued to it and with
respect to any Letter of Credit issued or participated in by it, the
Administrative Agent shall have the same rights and powers under this
Agreement as any Bank and may exercise the same as though it were not the
Administrative Agent, and the terms "Bank" and "Banks" shall include the
Administrative Agent in its individual capacity.
SECTION 8.9 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign upon 10 days' notice to the Banks. If the Administrative
Agent shall resign, then the Majority Banks shall appoint from among the
Banks a successor administrative agent for the Banks which successor agent or
administrative agent shall be approved by the Company (which approval shall
not be unreasonably withheld), whereupon such successor administrative agent
shall succeed to the rights, powers and duties of the Administrative Agent
and the term "Administrative Agent" shall mean such successor administrative
agent effective upon the appointment and approval of such successor
administrative agent, whereupon the former Administrative Agent's rights,
powers and duties hereunder shall be terminated, without any other or further
act or deed on the part of such former Administrative Agent or any of the
parties to this Agreement, or any holders of the Notes. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, as the
case may be, the provisions of this Article VIII shall inure to the successor
administrative agent's benefit as to any actions taken or omitted to be taken
by it while under this Agreement.
SECTION 8.10 CO-AGENTS. No Co-Agent in its capacity as such shall
have any rights, duties or responsibilities hereunder, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against any Co-Agent in its capacity as such.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 NOTICES. All notices, requests and other
communications provided for herein shall be in writing (including bank wire,
telex, telegram, telecopy or similar writing) and shall be given:
(a) if to any party hereto, to it at its address or telex or
telecopy number set forth on Schedule II hereof; and
(b) if to any holder of a Note, other than a Bank, to it at the
address or telex or telecopy number of the original payee thereof or at
the address or telex or telecopy number or any subsequent holder if
notice of the transfer of such Note and the name and the address or
telex or telecopy number of such subsequent holder shall have been given
to the Administrative Agent and the Company;
or in any of the foregoing cases at such other address or telex or telecopy
number as such party or subsequent holder may hereafter specify for the
purpose by notice to the Administrative Agent and the Company. Each such
notice, request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by mail, 72
hours after such letter, is deposited in the mails with first class postage
prepaid, addressed as aforesaid, (iii) if given by telecopy, when such
telecopy is received or (iv) if given by any other means, when delivered at
the address specified in this Section; PROVIDED that notices to the
Administrative Agent or any Bank under Article II or III shall not be
effective until received.
SECTION 9.2 NO WAIVERS; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of the Administrative Agent
or any Bank, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
SECTION 9.3 EXPENSES; DOCUMENTARY TAXES. The Company agrees (a)
to pay or reimburse the Administrative Agent for all of its out-of-pocket
costs and expenses incurred in connection with the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in
connection herewith, and the consummation of the transactions contemplated
hereby and thereby, including, without limitation, the fees and disbursements
of counsel to the Administrative Agent, (b) to pay or reimburse each Bank and
the Administrative Agent for all their costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, fees and disbursements of counsel to the Administrative
Agent and to the several Banks, (c) to pay, indemnify, and to hold each Bank
and the Administrative Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect
of, this Agreement, the other Loan Documents and any such other documents,
and (d) to pay, indemnify, and hold each Bank and the Administrative Agent
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents and any such other documents (all the foregoing in this
clause (d), collectively, the "indemnified liabilities"), PROVIDED, that the
Company shall have no obligation hereunder to the Administrative Agent or any
Bank with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of the Administrative Agent or such Bank, as
the case may be. The agreements in this Section shall survive the payment of
the Loans and all other amounts payable hereunder.
SECTION 9.4 ADJUSTMENTS. Except to the extent that this Agreement
specifies that optional or mandatory prepayments or repayments are to be
allocated to the Revolving Credit Loans, Swing Line Loans or Term Loans, as
the case may be, if any Bank (a "BENEFITTED BANK") shall at any time receive
any payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-
off, pursuant to events or proceedings of the nature referred to in clause
(g) or (h) of Section 7.1, or otherwise) in a greater proportion than any
such payment to and collateral received by any other Bank, if any, in respect
of such other Bank's Loans, or interest thereon, such benefitted Bank shall
purchase for cash from the other Banks such portion of each such other Bank's
Loan, or shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; PROVIDED, HOWEVER, that if all or
any portion of such excess payment or benefits is thereafter recovered from
such benefitted Bank, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. The Company agrees that each Bank so purchasing a portion of
another Bank's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if
such Bank were the direct holder of such portion.
SECTION 9.5 AMENDMENTS AND WAIVERS. Any provision of this
Agreement, the Pledge Agreement or the Notes may be amended or waived if, but
only if, such amendment or waiver is in writing and is signed by the Company
and the Majority Banks (and, if the rights or duties of the Administrative
Agent are affected thereby, by the Administrative Agent); PROVIDED that no
such amendment or waiver shall, unless signed by all the Banks, (a)(i)
increase or extend the Commitment of any Bank, (ii) reduce the principal of
or rate of interest on the Loans or reduce any commitment fees or Letter of
Credit commissions hereunder or (iii) postpone the date fixed for any payment
of principal of or interest on the Loans or any commitment fees or Letter of
Credit commissions hereunder (it being understood that amendments or waivers
of the provisions of Section 2.11(b) shall not be subject to the requirements
of this proviso), (b) change the percentage of the Commitments and the
extensions of credit which shall be required for the Banks to take any action
hereunder, (c) amend or modify the provisions of this Section or (d) release
any substantial portion of the Collateral (as defined in the Pledge
Agreement) except (i) to the extent expressly contemplated by the
Supplemental Indenture and the Pledge Agreement and (ii) any release of
Collateral Bonds to the extent the aggregate principal amount thereof exceeds
the sum of the aggregate Revolving Credit Commitments and the outstanding
principal amount of the Term Loans.
SECTION 9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING
BANKS. (a) This Agreement shall be binding upon and inure to the benefit of
the Company, the Banks, the Administrative Agent, all future holders of the
Notes, and their respective successors and assigns, except that the Company
may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Bank.
(b) Any Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or
other entities ("PARTICIPANTS") participating interests in any loan made
hereunder owing to such Bank, any Note held by such Bank, any Commitment of
such Bank or any other interest of such Bank hereunder. In the event of any
such sale by a Bank of participating interests to a Participant, such Bank's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any such Note for
all purposes under this Agreement and the Company and the Administrative
Agent shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement. The Company
agrees that if amount outstanding under this Agreement and the Notes are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed
to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to the same extent as if the
amount of its participating interest were owing directly to it as a Bank
under this Agreement or any Note; PROVIDED, that such right of setoff shall
be subject to the obligation of such Participant to share with the Banks, and
the Banks agree to share with such Participant, as provided in Section 9.4.
The Company also agrees that each Participant shall be entitled to the
benefits of Sections 2.17, 2.18, 2.19 and 9.3 with respect to its
participation in the Commitments and the Loans outstanding hereunder from
time to time; PROVIDED that no Participant shall be entitled to receive any
greater amount pursuant to such Sections than the transferor Bank would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant had no such transfer
occurred.
(c) Any Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to any Bank or any affiliate
thereof, and, with the consent of the Company and the Administrative Agent
(which in each case shall not be unreasonably withheld) to one or more
additional banks or financial institutions ("PURCHASING BANKS") all or any
part of its rights and obligations under this Agreement and the Notes,
pursuant to an Assignment and Acceptance Agreement, executed by such
Purchasing Bank, such transferor Bank (and, in the case of a Purchasing Bank
that is not then a Bank or an affiliate thereof, by the Company and the
Administrative Agent), and delivered to the Administrative Agent for its
acceptance and recording in the Register; PROVIDED that, except in the case
of an assignment of all of a Bank's interest under this Agreement and the
Notes, after giving effect to any such assignment, each of the assigning Bank
and the Purchasing Bank (together with any Bank which is an affiliate of such
assigning Bank or such Purchasing Bank, as the case may be) shall have Loans
and/or Commitments aggregating not less than $5,000,000. Any such assignment
need not be ratable as between the Revolving Credit Commitments and/or
Revolving Credit Loans and the Term Loan Commitments and/or Term Loans of the
assigning Bank. Upon such execution, delivery, acceptance and recording,
from and after the Transfer Effective Date determined pursuant to such
Assignment and Acceptance Agreement, (x) the Purchasing Bank thereunder shall
be a party hereto and, to the extent provided in such Assignment and
Acceptance Agreement, have the rights and obligations of a Bank hereunder
with a Commitment and/or Loans as set forth therein, and (y) the transferor
Bank thereunder shall, to the extent provided in such Assignment and
Acceptance Agreement, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance Agreement covering all or
the remaining portion of a transferor Bank's rights and obligations under
this Agreement, such transferor Bank shall cease to be a party hereto). Such
an Assignment and Acceptance Agreement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Bank and the resulting adjustments arising from
the purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the Notes. On
or prior to the Transfer Effective Date determined pursuant to such
Assignment and Acceptance Agreement, the Company, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the
surrendered Revolving Credit Note and/or Term Note a new Revolving Credit
Note and/or Term Note, as the case may be, to the order of such Purchasing
Bank in an amount equal to the Revolving Credit Commitment and/or Term Loans
assumed by it pursuant to such an Assignment and Acceptance Agreement and, if
the transferor Bank has retained a Revolving Credit Commitment and/or Term
Loans hereunder, a new Note or Notes to the order of the Purchasing Bank in
an amount equal to the Revolving Credit Commitment and/or Term Loans retained
by it hereunder. Such new Notes shall be in the form of the Notes replaced
thereby. The Notes surrendered by the transferor Bank shall be returned by
the Administrative Agent to the Company marked "cancelled."
(d) The Administrative Agent shall maintain at its address
referred to in Schedule II hereto a copy of each Assignment and Acceptance
Agreement delivered to it and a register (the "REGISTER") for the recordation
of the names and addresses of the Banks and the Commitment of, and principal
amount of the Loans owing to, each Bank from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Company, the Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register as the owner of the Loan recorded therein
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment Acceptance Agreement
executed by a transferor Bank and a Purchasing Bank (and, in the case of a
Purchasing Bank that is not then a Bank or an affiliate thereof, by the
Company and the Administrative Agent) together with payment by or on behalf
of the transferor Bank or the Purchasing Bank (as agreed between them) to the
Administrative Agent of a registration and processing fee of $2,500, the
Administrative Agent shall (i) promptly accept such an Assignment and
Acceptance Agreement (ii) on the Transfer Effective Date determined pursuant
thereto record the information contained therein in the Register and give
notice of such acceptance and recordation to the Banks and the Company.
(f) The Company authorizes each Bank to disclose to any
Participant or Purchasing Bank (each, a "TRANSFEREE") and any prospective
Transferee any and all financial information in such Bank's possession
concerning the Company and its affiliates which has been delivered to such
Bank by or on behalf of the Company pursuant to this Agreement or which has
been delivered to such Bank by or on behalf of the Company in connection with
such Bank's credit evaluation of the Company and its affiliates prior to
becoming a party to this Agreement.
(g) If, pursuant to this Section, any interest in this Agreement
or any Note is transferred to any Transferee which is organized under the
laws of any jurisdiction other than the United States or any State thereof,
the transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for
the benefit of the transferor Bank, the Administrative Agent and the Company)
that under applicable law and treaties no taxes will be required to be
withheld by the Administrative Agent, the Company or the transferor Bank with
respect to any payments to be made to such Transferee in respect of the
Loans, (ii) to furnish to the transferor Bank (and, in the case of any
Purchasing Bank registered in the Register, the Administrative Agent and the
Company) either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein such Transferee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder) and (iii) to agree (for the benefit of the transferor Bank, the
Administrative Agent and the Company) to provide the transferor Bank (and, in
the case of any Purchasing Bank registered in the Register, the
Administrative Agent and the Company) a new Form 4224 or Form 1001 upon the
expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Transferee, and to comply from
time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions
do not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Bank of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
ARTICLE X
SECTION 10.1 COUNTERPARTS; EFFECTIVENESS. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement shall be effective when signed by the
Administrative Agent and the Company and the Administrative Agent has
received telecopy or telephonic confirmation of the signing of this Agreement
from each of the Banks. A set of the copies of this Agreement signed by all
the parties hereto shall be lodged with the Company and the Administrative
Agent.
ARTICLE XI
SECTION 11.1 SECTION HEADINGS. The Section headings in this
Agreement are inserted for convenience only and shall not be part of this
instrument.
ARTICLE XII
SECTION 12.1 GOVERNING LAW. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New
York.
ARTICLE XIII
SECTION 13.1 SUBMISSION TO JURISDICTION; WAIVERS. (a) The Company
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any other Loan Document, or for
recognition and enforcement of any judgment in respect thereof, to the
nonexclusive general jurisdiction of the Courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts, and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in Schedule II or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
(b) The Company, the Administrative Agent and each Bank hereby
irrevocably and unconditionally waive trial by jury in any legal action or
proceeding relating to this Agreement or any other Loan Document and for any
counterclaim therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
BANGOR HYDRO-ELECTRIC COMPANY
By:________________________________
Title:
CHEMICAL BANK, as Administrative Agent and as a
Bank
By:________________________________
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:________________________________
Title:
THE BANK OF NEW YORK
By:________________________________
Title:
FLEET BANK OF MAINE
By:________________________________
Title:
KEY BANK
By:________________________________
Title:
SHAWMUT BANK, N.A.
By:________________________________
Title:
TORONTO-DOMINION BANK
By:________________________________
Title:
Total
Banks Allocation Revolver 47.83% Term Loan 52.17%
- ---------------- ------------ ------------- -------------
Chemical Bank $21,000,000 10,043,478.27 10,956,521.73
Bank of Boston 18,000,000 8,608,695.65 9,391,304.35
Fleet Bank 18,000,000 8,608,695.65 9,391,304.35
Toronto-Dominion 18,000,000 8,608,695.65 9,391,304.35
Shawmut Bank 15,000,000 7,173,913.04 7,826,086.96
Bank of New York 15,000,000 7,173,913.04 7,826,086.96
Key Bank 10,000,000 4,782,608.70 5,217,391.30
------------ ------------ ------------
$115,000,000 55,000,000 $60,000,000
SCHEDULE II
ADDRESS SCHEDULE
Bangor Hydro-Electric Company
33 State Street
Bangor, Maine 04401
Attention: Robert Weiser
Telecopy: (207) 990-6990
Chemical Bank, as Administrative Agent
and as a Bank
Domestic and Eurodollar
Lending Office:
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Utilities Group
Telecopy: (212) 270-2555
The Bank of New York
Domestic and Eurodollar
Lending Office:
One Wall Street, 19th Floor
New York, New York 10286
Attention: John Hall
Telecopy: (212) 635-7923
The First National Bank of Boston
Domestic and Eurodollar
Lending Office:
Energy & Utilities Division
100 Federal Street - 15th Floor
Boston, MA 02110
Attention: Michael Kane
Telecopy: (617) 434-3652
Fleet Bank of Maine
Domestic and Eurodollar
Lending Office:
80 Exchange Street
Bangor, Maine 04401
Attention: Chuck Osgood
Telecopy: (207) 941-6023
Key Bank
Domestic and Eurodollar
Lending Office:
One Monument Square, 4th Floor
Portland, Maine 04104
Attention: Richard McNaughton
Telecopy: (207) 776-7624
Shawmut Bank, N.A.
Domestic and Eurodollar
Lending Office:
One Federal Street
Boston, Massachusetts 02211
Attention: John Rafferty
Telecopy: (617) 292-2619
The Toronto-Dominion Bank
Domestic and Eurodollar
Lending Office:
909 Fannin Street, Suite 1700
Houston, Texas 77010
Attention: Neva Nesbitt
Telecopy: (713) 951-9921
` Exhibit A-1 to the
Credit Agreement
------------------
FORM OF REVOLVING CREDIT NOTE
$______________ New York, New York
June ___, 1995
FOR VALUE RECEIVED, the undersigned, Bangor Hydro-Electric Company, a
Maine corporation (the "COMPANY"), hereby unconditionally promises to pay to
the order of _______________ (the "BANK") at the office of Chemical Bank,
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, on the
Termination Date the principal amount of (a) ____________ DOLLARS ($_______),
or, if less, (b) the aggregate unpaid principal amount of all Revolving
Credit Loans made by the Bank to the Company pursuant to Section 2.1 of the
Credit Agreement, as hereinafter defined. The Company further agrees to pay
interest in like money at such office on the unpaid principal amount hereof
from time to time outstanding at the rates and on the dates specified in
Section 2.13 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof the date and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each conversion of
all or a portion thereof and, in the case of Eurodollar Loans, the length of
each Interest Period with respect thereto. Each such endorsement shall
constitute PRIMA FACIE evidence of the accuracy of the information endorsed.
The failure to make any such endorsement or any error in any such endorsement
shall not affect the obligations of the Company in respect of the Revolving
Credit Loans.
This Note (a) is one of the Revolving Credit Notes referred to in the
Credit Agreement dated as of June ___, 1995 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among the
Company, the Bank, the other banks and financial institutions from time to
time parties thereto and Chemical Bank, as administrative agent, (b) is
subject to the provisions of the Credit Agreement and (c) is subject to
prepayment in whole or in part as provided in the Credit Agreement. This
Note is secured as provided in the Loan Documents. Reference is hereby made
to the Loan Documents for a description of the properties and assets in which
a security interest has been granted, the nature and extent of the security,
the terms and conditions upon which the security interests were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BANGOR HYDRO-ELECTRIC COMPANY
By:_______________________________
Name:
Title:
Schedule A
To Revolving Credit Note
------------------------
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
|---------------------------------------------------------------------------|
| |AMOUNT OF| AMOUNT | AMOUNT OF | AMOUNT OF | UNPAID | |
|DATE|BASE RATE| CONVERTED | PRINCIPAL | BASE RATE | PRINCIPAL | NOTATION|
| | LOANS | TO BASE |OF BASE RATE| LOANS CON- | BALANCE OF| MADE BY |
| | | RATE LOANS |LOANS REPAID| VERTED TO | BASE RATE | |
| | | | | EURODOLLAR | LOANS | |
| | | | | LOANS | | |
|----|---------|------------|------------|------------|-----------|---------|
| | | | | | | |
|____|_________|____________|____________|____________|___________|_________|
| | | | | | | |
| | | | | | | |
|____|_________|____________|____________|____________|___________|_________|
| | | | | | | |
| | | | | | | |
|____|_________|____________|____________|____________|___________|_________|
Schedule B
To Revolving Credit Note
------------------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
|---------------------------------------------------------------------------|
| |AMOUNT OF |AMOUNT |INTEREST |AMOUNT OF|AMOUNT OF |UNPAID |NOTATION|
|DATE|EURODOLLAR|CONVERTED| PERIOD |PRINCIPAL|EURODOLLAR|PRINCIPAL|MADE BY |
| | LOANS |TO EURO- |AND LIBO |OF EURO- |LOANS CON-|BALANCE | |
| | | DOLLAR |RATE WITH| DOLLAR |VERTED TO |OF EURO- | |
| | | LOANS |RESPECT | LOANS |BASE RATE |DOLLAR | |
| | | | THERETO | REPAID | LOANS | LOANS | |
|----|----------|---------|---------|---------|----------|---------|--------|
| | | | | | | | |
|____|__________|_________|_________|_________|__________|_________|________|
| | | | | | | | |
| | | | | | | | |
|____|__________|_________|_________|_________|__________|_________|________|
| | | | | | | | |
| | | | | | | | |
|____|__________|_________|_________|_________|__________|_________|________|
Exhibit A-2 to the
CREDIT AGREEMENT
------------------
FORM OF SWING LINE NOTE
$_____________ New York, New York
June ___, 1995
FOR VALUE RECEIVED, the undersigned, Bangor Hydro-Electric Company, a
Maine corporation (the "COMPANY"), hereby unconditionally promises to pay to
the order of _____________ (the "BANK") at the office of Chemical Bank,
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, on the
Termination Date the principal amount of (a) ____________ DOLLARS
($________), or, if less, (b) the aggregate unpaid principal amount of all
Swing Line Loans made by the Bank to the Company pursuant to Section 2.4 of
the Credit Agreement, as hereinafter defined. The Company further agrees to
pay interest in like money at such office on the unpaid principal amount
hereof from time to time outstanding at the rates and on the dates specified
in Section 2.13 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof the date and amount of each
Swing Line Loan made pursuant to the Credit Agreement and the date and amount
of each payment or prepayment of principal thereof. Each such endorsement
shall constitute PRIMA FACIE evidence of the accuracy of the information
endorsed. The failure to make any such endorsement or any error in any such
endorsement shall not affect the obligations of the Company in respect of the
Swing Line Loans.
This Note (a) is the Swing Line Note referred to in the Credit Agreement
dated as of June ___, 1995 (as amended, supplemented or otherwise modified
from time to time, the "CREDIT AGREEMENT"), among the Company, the Bank, the
other banks and financial institutions from time to time parties thereto and
Chemical Bank, as administrative agent, (b) is subject to the provisions of
the Credit Agreement and (c) is subject to prepayment in whole or in part as
provided in the Credit Agreement. This Note is secured as provided in the
Loan Documents. Reference is hereby made to the Loan Documents for a
description of the properties and assets in which a security interest has
been granted, the nature and extent of the security, the terms and conditions
upon which the security interests were granted and the rights of the holder
of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BANGOR HYDRO-ELECTRIC COMPANY
By: _________________________________
Name:
Title:
Schedule A
To Swing Line Note
------------------
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
|---------------------------------------------------------------------------|
| |AMOUNT OF BASE| AMOUNT OF | UNPAID PRINCIPAL | NOTATION MADE BY |
| DATE | RATE LOANS | PRINCIPAL | BALANCE OF BASE | |
| | | OF BASE RATE | RATE LOANS | |
| | | LOANS REPAID | | |
|-------|--------------|--------------|------------------|------------------|
| | | | | |
|_______|______________|______________|__________________|__________________|
| | | | | |
| | | | | |
|_______|______________|______________|__________________|__________________|
| | | | | |
| | | | | |
|_______|______________|______________|__________________|__________________|
Exhibit B to the
Credit Agreement
----------------
FORM OF TERM NOTE
$_________ New York, New York
June ___, 1995
FOR VALUE RECEIVED, the undersigned, Bangor Hydro-Electric Company, a
Maine corporation (the "COMPANY"), hereby unconditionally promises to pay to
the order of _____________ (the "BANK") at the office of Chemical Bank,
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, the principal
amount of _______________ DOLLARS ($_________), or, if less, the unpaid
principal amount of the Term Loan made by the Bank pursuant to Section 2.7 of
the Credit Agreement, as hereinafter defined. The principal amount hereof
shall be paid in the amounts and on the dates specified in Section 2.11 of
such Credit Agreement. The Company further agrees to pay interest in like
money at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in Section 2.13 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which
shall be attached hereto and made a part hereof the date and amount of the
Term Loan and the date and amount of each payment or prepayment of principal
with respect thereto, each conversion of all or a portion thereof, and in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute PRIMA FACIE evidence of the
accuracy of the information endorsed. The failure to make any such
endorsement or any error in any such endorsement shall not affect the
obligations of the Company in respect of such Term Loan.
This Note (a) is one of the Term Notes referred to in the Credit
Agreement dated as of June ___, 1995 (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Company, the
Bank, the other banks and financial institutions from time to time parties
thereto and Chemical Bank, as administrative agent, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to prepayment in whole
or in part as provided in the Credit Agreement. This Note is secured as
provided in the Loan Documents. Reference is hereby made to the Loan
Documents for a description of the properties and assets in which a security
interest has been granted, the nature and extent of the security the terms
and conditions upon which the security interests were granted and the rights
of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
BANGOR HYDRO-ELECTRIC COMPANY
By:
__________________________________
Name:
Title:
Schedule A
To Term Loan Note
------------------
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
|---------------------------------------------------------------------------|
| |AMOUNT OF| AMOUNT | AMOUNT OF | AMOUNT OF | UNPAID | |
|DATE|BASE RATE| CONVERTED | PRINCIPAL | BASE RATE | PRINCIPAL | NOTATION|
| | LOANS | TO BASE |OF BASE RATE| LOANS CON- | BALANCE OF| MADE BY |
| | | RATE LOANS |LOANS REPAID| VERTED TO | BASE RATE | |
| | | | | EURODOLLAR | LOANS | |
| | | | | LOANS | | |
|----|---------|------------|------------|------------|-----------|---------|
| | | | | | | |
|____|_________|____________|____________|____________|___________|_________|
| | | | | | | |
| | | | | | | |
|____|_________|____________|____________|____________|___________|_________|
| | | | | | | |
| | | | | | | |
|____|_________|____________|____________|____________|___________|_________|
Schedule B
To Term Loan Note
------------------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
|---------------------------------------------------------------------------|
| |AMOUNT OF |AMOUNT |INTEREST |AMOUNT OF|AMOUNT OF |UNPAID |NOTATION|
|DATE|EURODOLLAR|CONVERTED| PERIOD |PRINCIPAL|EURODOLLAR|PRINCIPAL|MADE BY |
| | LOANS |TO EURO- |AND LIBO |OF EURO- |LOANS CON-|BALANCE | |
| | | DOLLAR |RATE WITH| DOLLAR |VERTED TO |OF EURO- | |
| | | LOANS |RESPECT | LOANS |BASE RATE |DOLLAR | |
| | | | THERETO | REPAID | LOANS | LOANS | |
|----|----------|---------|---------|---------|----------|---------|--------|
| | | | | | | | |
|____|__________|_________|_________|_________|__________|_________|________|
| | | | | | | | |
| | | | | | | | |
|____|__________|_________|_________|_________|__________|_________|________|
| | | | | | | | |
| | | | | | | | |
|____|__________|_________|_________|_________|__________|_________|________|
Exhibit C to the
Credit Agreement
----------------
FORM OF CLOSING CERTIFICATE
Pursuant to Sections 4.2(e), (f), (g) and (h) of the Credit
Agreement, dated as of June 30, 1995 (the "CREDIT AGREEMENT") (unless
otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement), among
Bangor-Hydro-Electric Company, a Maine corporation (the "COMPANY"), the
several Banks from time to time parties thereto, Chemical Bank, as
Administrative Agent, and Fleet Bank of Maine and The First National Bank of
Boston, as Co-Agents, the undersigned ____________ of the Company hereby
certifies as follows:
1. The representations and warranties of the Company
contained in any Loan Document or in any certificate, document or
financial or other statement furnished by or on behalf of the Company
pursuant to or in connection with any Loan Document are true and correct
on and as of the date hereof with the same effect as if made on the date
hereof;
2. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to any
extensions of credit to occur on the date hereof;
3. No more than $8,000,000 in Cash (excluding (i) Temporary
Cash Investments in an aggregate amount not to exceed $22,000,000
maintained pursuant to the documentation governing the FAME Loan
Agreement and (ii) cash securing the letter of credit issued by Shawmut
Bank, N.A. referred to in Section 4.3 of the Credit Agreement) will be
retained by the Company after three Business Days from the Borrowing
Date;
4. Frederick Samp is and at all times since
_____________________ 19__, has been the duly elected and qualified
Clerk of the Company and the signature set forth on the signature line
for such officer below is such officer's true and genuine signature;
and the undersigned Clerk of the Company hereby certifies as follows:
5. There are no liquidation or dissolution proceedings
pending or to my knowledge threatened against the Company, nor to my
knowledge has any other event occurred affecting or threatening the
corporate existence of the Company;
6. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maine;
7. Attached hereto as Exhibit A is a complete and correct
copy of resolutions duly adopted by the Board of Directors (or a duly
authorized committee thereof) of the Company on _________, 19__; such
resolutions have not in any way been amended, modified, revoked or
rescinded and have been in full force and effect since their adoption to
and including the date hereof and are now in full force and effect; such
resolutions are the only corporate proceedings of the Company now in
force relating to or affecting the matters referred to therein;
8. Attached hereto as Exhibit B is a complete and correct
copy of the by-laws of the Company as in effect at all times since
_________________, 19__ to and including the date hereof; and attached
hereto as Exhibit C is a true and complete copy of the certificate of
incorporation of the Company as in effect at all times since
___________________, 19__ to and including the date hereof;
8. Attached hereto as Exhibit D is a complete and correct
copy of the order of the Commission described in Section 5.6 of the
Credit Agreement; and
9. The following persons are now duly elected and qualified
officers of the Company holding the offices indicated next to their
respective names below, and such officers have held such offices with
the Company at all times since ________________, 19__ to and including
the date hereof, and the signatures appearing opposite their respective
names below are the true and genuine signatures of such officers, and
each of such officers is duly authorized to execute and deliver on
behalf of the Company each Loan Document to which it is a party and any
certificate or other document to be delivered by the Company pursuant to
such Loan Documents:
Name Office Signature
________________ ______________ _____________________
________________ ______________ _____________________
IN WITNESS WHEREOF, the undersigned have hereto set our names.
----------------------- --------------------------
Title: _____________
Title: Clerk
Date: June , 1995
Exhibit D to the
Credit Agreement
----------------
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of June ___, 1995
(as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among Bangor Hydro-Electric Company (the "COMPANY"), the
Banks named therein and Chemical Bank, as administrative agent for the Banks
(in such capacity, the "ADMINISTRATIVE AGENT"). Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
(the "ASSIGNOR") and (the
"ASSIGNEE") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as
of the Transfer Effective Date (as defined below), an interest (the "ASSIGNED
INTEREST") specified on Schedule 1 in and to the Assignor's rights and
obligations under the Credit Agreement with respect to those credit
facilities contained in the Credit Agreement as are set forth on Schedule 1
(individually, an "ASSIGNED FACILITY"; collectively, the "ASSIGNED
FACILITIES"), in a principal amount for each Assigned Facility as set forth
on Schedule 1.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document
or with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto,
other than that the Assignor has not created any adverse claim upon the
interest being assigned by it hereunder and that such interest is free and
clear of any such adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Company, any of its Subsidiaries or any other obligor or the performance or
observance by the Company, any of its Subsidiaries or any other obligor of
any of their respective obligations under the Credit Agreement or any other
Loan Document or any other instrument or document furnished pursuant hereto
or thereto; and (c) attaches any Note or Notes held by it evidencing the
Assigned Facilities and (i) requests that the Administrative Agent, upon
request by the Assignee, exchange the attached Note or Notes for a new Note
or Notes payable to the Assignee and (ii) if the Assignor has retained any
interest in the Assigned Facility, requests that the Administrative Agent
exchange the attached Note or Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Transfer Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 5.4(a) thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the
Assignor, the Administrative Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the
Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and authorizes
the Administrative Agent to take such action as Administrative Agent on its
behalf and to exercise such powers and discretion under the Credit Agreement,
the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Administrative Agent by
the terms thereof, together with such powers as are incidental thereto; and
(e) agrees that it will be bound by the provisions of the Credit Agreement
and will perform in accordance with its terms all the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Bank including, if it is organized under the laws of a jurisdiction outside
the United States, its obligation pursuant to Section 2.17 of the Credit
Agreement.
4. The effective date of this Assignment and Acceptance shall be
, 19 (the "TRANSFER EFFECTIVE DATE"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent
for acceptance by it and recording by the Administrative Agent pursuant to
the Credit Agreement, effective as of the Transfer Effective Date (which
shall not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance and recording by
the Administrative Agent).
5. Upon such acceptance and recording, from and after the Transfer
Effective Date, the Administrative Agent shall make all payments in respect
of the Assigned Interest (including payments of principal, interest, fees and
other amounts) to the Assignee whether such amounts have accrued prior to the
Transfer Effective Date or accrue subsequent to the Transfer Effective Date.
The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agent for periods prior to the Transfer
Effective Date or with respect to the making of this assignment directly
between themselves.
6. From and after the Transfer Effective Date, (a) the Assignee shall be
a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT, DATED AS OF JUNE __, 1995,
AMONG
BANGOR HYDRO-ELECTRIC COMPANY,
THE BANKS NAMED THEREIN
AND
CHEMICAL BANK, AS ADMINISTRATIVE AGENT FOR THE BANKS (IN SUCH CAPACITY, THE
"ADMINISTRATIVE AGENT")
- -----------------------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Transfer Effective Date of Assignment:
Credit
Facility Assigned
- -----------------
Principal
Amount Assigned
- ---------------
Commitment Percentage
Assigned*
- ----------------------------
$______________
___._______________%
[Name of Assignee]
By____________________________
Name:
Title:
[Name of Assignor]
By____________________________
Name:
Title:
Accepted for Recordation in the
Register:
Chemical Bank, as
Administrative Agent
By
_____________________________
Name:
Title:
Consented To:
Bangor Hydro-Electric Company
By
______________________________
Name:
Title:
Chemical Bank, as
Administrative Agent
By____________________________
Name:
Title:
[Consents required only to the
extent specified in Section
9.6(c) of the Credit
Agreement]
* Footnote: Calculate the Commitment Percentage that is assigned to at least
15 decimal places and show as a percentage of the aggregate commitments of
all Lenders.
Exhibit E-1 to the
Credit Agreement
------------------
BANGOR HYDRO-ELECTRIC COMPANY LETTERHEAD
June 30, 1995
Chemical Bank, as Administrative Agent
270 Park Avenue
New York New York 10017
And each of the Banks parties to the Credit Agreement
referred to below
Ladies and Gentlemen:
I am General Counsel and Clerk of Bangor Hydro-Electric Company, a Maine
corporation (the "COMPANY"), and I have acted as counsel for the Company in
connection with (a) the Credit Agreement, dated as of June 30, 1995 (the
"CREDIT AGREEMENT"), among the Company, the banks parties thereto (the
"BANKS") and Chemical Bank, as administrative agent for the Banks (in such
capacity, the "ADMINISTRATIVE AGENT"), and (b) the other Loan Documents
referred to in the Credit Agreement which have been executed by the Company
on or prior to the date hereof.
This opinion is furnished to you pursuant to Section 4.2(c) of the
Credit Agreement. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
In arriving at this opinion,
(a) I have examined and relied on the originals, or copies certified or
otherwise identified to my satisfaction, of each of (1) the Credit Agreement,
(2) the Pledge Agreement, (3) the Supplemental Indenture dated as of June 29,
1995 (the "SUPPLEMENTAL INDENTURE") to the Mortgage and Deed of Trust dated
as of July 1, 1936, from the Company to City Bank Farmers Trust Company
(Citibank, N.A., successor), as trustee, as amended and supplemented (the
"1936 MORTGAGE"), (4) the Bonds of the Collateral Series due 2000 (the
"COLLATERAL BONDS") issued pursuant to the Supplemental Indenture and the
1936 Mortgage, and (5) the Notes executed and delivered by the Company on the
date hereof (the "NOTES", and together with the Credit Agreement, the Pledge
Agreement, the Supplemental Indenture, and the Collateral Bonds being
hereinafter referred to collectively as the "TRANSACTION DOCUMENTS"); and
(b) I have examined such corporate documents and records of the Company
and such other instruments and certificates of public officials, officers and
representatives of the Company and other Persons as I have deemed necessary
or appropriate for the purposes of this opinion.
In rendering this opinion, I have assumed, with your permission, without
independent investigation or inquiry, (a) the authenticity of all documents
submitted to me as originals, (b) the genuineness of all signatures on all
documents that I have examined (other than those of officers of the Company),
(c) the due execution and delivery of the Supplemental Indenture, and the due
authentication of the Collateral Bonds, by the trustee under the 1936
Mortgage and (d) the conformity to authentic originals of documents submitted
to me as certified, conformed or photostatic copies.
When my opinion with respect to the existence or absence of facts is
stated "to the best of my knowledge," I have made reasonable and diligent
investigation of the subject matters of such opinion and have no reason to
believe that there exist any facts or other information that would render
such opinion incomplete or incorrect.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Company (a) is duly organized, validly existing and in
good standing under the laws of the State of Maine, (b) has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged and (c) is duly qualified as a
foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except to the
extent that the failure to be so qualified could not reasonably be
expected to have a Material Adverse Effect.
2. The Company has the corporate power and authority, and the
legal right, to make, deliver and perform its obligations under the
Credit Agreement and each of the other Transaction Documents, to borrow
under the Credit Agreement and to issue, deliver and pledge to the
Administrative Agent the Collateral Bonds. The Company has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of the Credit Agreement, to grant the security interests
contemplated by the Pledge Agreement, to authorize the issuance,
delivery and pledge to the Administrative Agent of the Collateral Bonds
pursuant to the Supplemental Indenture and the Pledge Agreement and to
authorize the execution, delivery and performance of the Credit
Agreement and the other Transaction Documents. Except for consents,
authorizations, approvals, notices and filings as have been obtained or
made, as the case may be, and are now in full force and effect, no
consent or authorization of, approval by, notice to, filing with or
other act by or in respect of, any governmental authority or any other
Person is required in connection with the borrowings under the Credit
Agreement or with the execution, delivery, performance, validity or
enforceability of the Credit Agreement and the other Transaction
Documents or the perfection of the security interests created by the
Pledge Agreement or the issuance, delivery and pledge of the Collateral
Bonds pursuant to the Supplemental Indenture and the Pledge Agreement.
3. Each of the Credit Agreement and the other Transaction
Documents has been duly executed and delivered on behalf of the Company
and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting
creditors' rights generally and by general equitable principles.
4. The Collateral Bonds (a) are outstanding for all purposes of
the 1936 Mortgage, (b) do not constitute Company-owned Bonds for any
purposes of the 1936 Mortgage and (c) are entitled, subject to the terms
of the Pledge Agreement, to the benefits of the security afforded by the
1936 Mortgage.
5. The execution and delivery of the Credit Agreement and the
other Transaction Documents, the performance by the Company of its
obligations thereunder, the consummation of the transactions
contemplated thereby, the compliance by the Company with any of the
provisions thereof, the borrowings under the Credit Agreement and the
use of proceeds thereof, all as provided therein, (a) will not violate,
or constitute a default under, (i) any law, rule or regulation, (ii) the
Certificate of Organization or By-laws of the Company or (iii) to the
best of my knowledge, any contractual obligation of the Company or of
any of its Subsidiaries and (b) will not result in, or require, the
creation or imposition of any Lien on any of its or their respective
properties or revenues, except the security interests created pursuant
to the Pledge Agreement and the 1936 Mortgage.
6. To the best of my knowledge, no litigation, investigation or
proceeding of or before any arbitrator or governmental authority is
pending or threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Credit Agreement or any of the other
Transaction Documents, or (b) which could reasonably be expected to have
a Material Adverse Effect.
7. The Company is exempt from the provisions of the Public
Utility Holding Company Act of 1935 and the rules promulgated thereunder
except for Section 9 (a)(2) thereof. The Company is not subject to any
other law, rule or regulation under any federal or state statute or
regulation which limits its ability to incur Debt under the Credit
Agreement.
I am a member of the bar of the State of Maine and I express no
opinion as to the laws of any jurisdiction other than the laws of the
State of Maine and the federal laws of the United States of America.
Insofar as my opinion expressed in paragraphs (2) and (3) above involve
the laws of the State of New York, I have relied on the opinion, dated
the date hereof, of Winthrop, Stimson, Putnam & Roberts, a copy of which
you have been furnished concurrently herewith, and with your permission
I have not made any independent investigation of such laws. I have no
responsibility to advise you of changes in any of the foregoing which
may hereafter come to my attention.
I express no opinion with respect to the effect on the Transaction
Documents of Section 552 of the United States Bankruptcy Code (relating to
property acquired by the Company or any of its subsidiaries after the
commencement of a case under the United States Bankruptcy Code with respect
to such party) and Section 547 of the United States Bankruptcy Code (relating
to a security interest in such after-acquired property which serves to secure
antecedent debt).
This opinion is being furnished only to the addressees and is solely for
their benefit and the benefit of their participants and assigns in connection
with the above transaction. This opinion may not be relied upon for any
other purpose, or relied upon by any other person, firm or corporation for
any purpose, without my prior written consent.
Very truly yours,
Exhibit E-2 to the
Credit Agreement
------------------
WINTRHOP, STIMSON, PUTNAM & ROBERTS LETTERHEAD
June 30, 1995
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
And each of the Banks parties to the Credit Agreement
referred to below
Ladies and Gentlemen:
We have acted as special New York counsel to Bangor Hydro-
Electric Company, a Maine corporation (the "COMPANY"), in connection with (a)
the Credit Agreement, dated as of June 30, 1995 (the "CREDIT AGREEMENT"),
among the Company, the banks parties thereto (the "BANKS") and Chemical Bank,
as administrative agent for the Banks (in such capacity, the "ADMINISTRATIVE
AGENT"), and (b) the other Loan Documents referred to in the Credit Agreement
which have been executed by the Company on or prior to the date hereof.
This opinion is furnished to you pursuant to Section 4.2(c) of
the Credit Agreement. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
In arriving at this opinion,
(a) we have examined and relied on the originals, or copies
certified or otherwise identified to our satisfaction, of each of (1) the
Credit Agreement, (2) the Pledge Agreement, (3) the Supplemental Indenture
dated as of June 29, 1995 (the "SUPPLEMENTAL INDENTURE") to the Mortgage and
Deed of Trust, dated as of July 1, 1936, from the Company to City Bank
Farmers Trust Company (Citibank, N.A., successor), as trustee, as amended and
supplemented (the "1936 MORTGAGE") (4) the Bonds of the Collateral Series due
2000 (the "COLLATERAL BONDS") issued pursuant to the Supplemental Indenture
and the 1936 Mortgage, and (5) the Notes executed and delivered by the
Company on the date hereof (the "NOTES", and together with the Credit
Agreement, the Pledge Agreement, the Supplemental Indenture and the
Collateral Bonds, being hereinafter referred to collectively as the
"TRANSACTION DOCUMENTS"); and
(b) we have examined such corporate documents and records of
the Company and such other instruments and certificates of public officials,
officers and representatives of the Company and other Persons as we have
deemed necessary or appropriate for the purposes of this opinion.
In rendering this opinion, we have assumed, with your
permission, without independent investigation or inquiry, (a) the
authenticity of all documents submitted to us as originals, (b) the
genuineness of all signatures on all documents that we have examined and (c)
the conformity to authentic originals of documents submitted to us as
certified, conformed or photostatic copies.
We have also assumed for purposes of this opinion, that the
Transaction Documents are within the capacity and power of and have been
validly authorized, executed and delivered by each party to them (other than
the Company) and constitute legal, valid, binding and enforceable obligations
of all parties (other than the Company) under all applicable laws.
Based upon and subject to the foregoing, and to the exceptions
and qualifications hereinafter expressed, we are of the opinion that:
1. No consent or authorization of,
approval by, notice to, filing with or other act by or in
respect of, any New York or Federal governmental authority is
required to be obtained by the Company in connection with the
borrowings under the Credit Agreement or with the execution,
delivery, performance, validity or enforceability of the
Credit Agreement and the other Transaction Documents or the
issuance, delivery and pledge of the Collateral Bonds pursuant
to the Supplemental Indenture and the Pledge Agreement. The
execution and delivery of the Credit Agreement and the other
Transaction Documents, the performance by the Company of its
obligations thereunder, the consummation of the transactions
contemplated thereby, the compliance by the Company with any
of the provisions thereof, the borrowings under the Credit
Agreement and the use of proceeds thereof, all as provided
therein, will not violate any New York or Federal statute or
regulation.
2. Assuming due authorization, execution
and delivery thereof by the Company and the Banks, each of the
Credit Agreement, the Pledge Agreement and the Notes
constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with
its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws affecting creditors' rights generally
and by general equitable principles.
3. The Company is not an "investment
company," or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of
1940, as amended. The Company is exempt from the provisions
of the Public Utility Holding Company Act of 1935 and the
rules promulgated thereunder except for Section 9(a)(2)
thereof. The Company is not subject to any other law, rule or
regulation under any Federal or New York statute or regulation
which limits its ability to incur Debt under the Credit
Agreement.
4. After giving effect to the delivery
to the Administrative Agent of the certificates for the
Collateral Bonds, and assuming the continuous possession by
the Administrative Agent of the Collateral Bonds in the State
of New York, the security interest created in favor of the
Administrative Agent under the Pledge Agreement to secure the
obligations of the Company under the Credit Agreement
constitutes a valid, enforceable and perfected first priority
security interest in such Collateral Bonds and the proceeds
thereof subject to no other security interest. The opinion
contained in this paragraph (4) is subject to the following
qualifications:
(i) our opinion as to priority assumes that the Administrative
Agent and the Banks have taken the Collateral Bonds in good faith prior
to the date of delivery to the Collateral Agent of notice of any adverse
claim relating to such Collateral Bonds (all within the meaning of the
Uniform Commercial Code as in effect in the State of New York (the
"NYUCC"));
(ii) the priority of a security interest may be subject to
claims or liens in favor of the United States or any state or
any agency or instrumentality of any thereof which are given
priority by operation of law, including, without limitation, to
the extent they would be given priority by operation of law,
liens for the payment of federal, state and/or local taxes, liens
incurred in connection with unemployment insurance, social
security and similar insurance schemes and claims under the
federal priority statute (31 U.S.C. Section 3713);
(iii) the priority of a security interest may be subject to
a prior lien created under Section 364 of the Federal Bankruptcy Code; and
(iv) our opinion as to the priority of the security
interests in the Collateral Bonds as against any person who is a lien
creditor (as such term is defined in Article 9 of the NYUCC) is limited
(a) to the extent that Section 9-301(4) of the NYUCC is applicable, or
(b) to the extent that such person became a lien creditor before the
security interest of the Administrative Agent in the Collateral Bonds is
perfected.
This opinion is subject to the following further
qualifications:
(a) We are members of the Bar of the
State of New York and we do not hold ourselves out as being conversant
with, and express no opinion as to, the laws of the State of Maine or
any other jurisdiction other than the United States of America and the
State of New York. This opinion is limited to the laws, regulations,
documents and other agreements, contracts and instruments within the
scope of this opinion in effect on the date of this opinion, and we
express no opinion as to the possible application of laws of other
jurisdictions, unless they are specifically referred to herein, and we
have no responsibility to advise you of changes in any of the foregoing
which may hereafter come to our attention.
(b) We express no opinion with respect to
the rights of the Company in or title to or legal or beneficial
ownership of any of the mortgaged property that is subject to the lien
of the 1936 Mortgage.
(c) We express no opinion with respect to
the effect on the Transaction Documents of Section 552 of the United
States Bankruptcy Code (relating to property acquired by the Company or
any of its subsidiaries after the commencement of a case under the
United States Bankruptcy Code with respect to such party) and
Section 547 of the United States Bankruptcy Code (relating to a security
interest in such after-acquired property which serves to secure
antecedent debt).
(d) The continuation of a security
interest in proceeds is limited to the degree set forth in Sections 9-
306(2) and 9-306(4) of the NYUCC and the perfection of a security
interest in proceeds continues only upon compliance with the provisions
of Section 8-313 or 9-306(3) of the NYUCC, as applicable.
This opinion is being furnished only to the addressees and is
solely for their benefit and the benefit of their participants and assigns in
connection with the above transaction. This opinion may not be relied upon
for any other purpose, or relied upon by any other person, firm or
corporation for any purpose, without our prior written consent.
Very truly yours,
EATON, PEABODY, BRADFORD & VEAGUE, P.A. LETTERHEAD
June 30, 1995
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
Each of the Banks Party to the Credit Agreement
Referred to Below
Ladies and Gentlemen:
We have been asked to render this limited opinion to Chemical Bank, as
Administrative Agent, in connection with the Credit Agreement dated as of
June 30, 1995 (the "Credit Agreement") among Bangor Hydro-Electric Company
(the "Company"), the banks which are parties thereto (the "Banks") and
Chemical Bank, as administrative agent for the Banks (in such capacity, the
"Administrative Agent").
The opinions expressed below are furnished to you pursuant to Section
4.2(c)(iii) of the Credit Agreement. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings
ascribed to them in the Credit Agreement.
In arriving at the opinions expressed below, we have examined
(a) unexecuted copies in the form furnished to us of each of (1)
the Credit Agreement, (2) the Pledge Agreement, (3) the Supplemental
Indenture dated as of June 29, 1995 (the "Supplemental Indenture") with
respect to the Mortgage, (4) the Bonds of the Collateral Series due 2000 (the
"Collateral Bonds") referred to in the Supplemental Indenture, and (5) the
Notes executed and delivered by the Company on the date hereof (the Credit
Agreement and such other documents being hereinafter referred to collectively
as the "Transaction Documents"); and
(b) such corporate documents and records of the Company and such other
instruments and certificates of public officials, officers and
representatives of the Company and other Persons as we have deemed necessary
or appropriate for the purposes of this opinion.
In rendering the opinions expressed below, we have assumed, with your
permission without independent investigation or inquiry, (a) the authenticity
of all documents submitted to us as originals, (b) the genuineness of all
signatures on all documents that we have examined, (c) the conformity to
authentic originals of documents submitted to us in the form of unexecuted
photostatic copies or telecopies, (d) that all Transaction Documents have
been duly executed, delivered and authenticated in substantively the form
furnished to us for review, and (e) that the liens created by the Mortgage
and the Pledge Agreement have been and remain duly perfected and that there
is no contractual arrangement altering their priority.
Based upon and subject to the foregoing, we are of the opinion that:
1. Except for (i) such consents, authorizations, approvals, notices
and filings as may be required in connection with orders or proceedings of
the Maine Public Utilities Commission and related statutes and regulations,
with respect to which we express no opinion, and (ii) such filings as may be
required to duly perfect the security interest created by the Pledge
Agreement in Collateral other than the Pledged Bonds, no consent or
authorization of, approval by, notice to, filing with or other act by or in
respect of, any governmental authority of the State of Maine is required in
connection with the borrowings under the Credit Agreement or with the
execution, delivery, performance, validity or enforceability of the Credit
Agreement and the other Transaction Documents or the perfection of the
security interests created by the Pledge Agreement or the issuance, delivery
and pledge of the Collateral Bonds pursuant to the Supplemental Indenture and
the Pledge Agreement.
2. Each of the Transaction Documents which is governed by the laws of
the State of Maine constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights generally and to
general principles of equity, whether considered in a proceeding in equity or
at law. Notwithstanding the foregoing, we express no opinion as to the
enforceability of provisions of the Transaction Documents pursuant to which
(i) any party purports to waive the benefit of statutory and common law
rights, (ii) any party is purportedly granted the right to exercise remedies
without notice to the party with respect to whom the rights are to be
exercised or without benefit of legal process, or (iii) a party is
purportedly indemnified with respect to its own negligence or willful
misconduct. The enforceability of any provision purporting to entitle a
party to be reimbursed for attorneys fees and other costs may be subject to
judicial discretion.
3. The courts of the State of Maine will enforce those provisions in
the Transaction Documents which provide that the validity, construction and
enforceability of such documents will be governed by the laws of the State of
New York.
4. The Collateral Bonds (a) are outstanding for all purposes of the
Mortgage, (b) do not constitute Company-owned Bonds for any purposes of the
Mortgage, and (c) are entitled, subject to the terms of the Pledge Agreement,
to the substantive benefits of the security afforded by the Mortgage.
5. The execution and delivery of the Credit Agreement and the other
Transaction Documents, the performance by the Company of its obligations
thereunder, the consummation of the transactions contemplated thereby, the
compliance by the Company with any of the provisions thereof, the borrowings
under the Credit Agreement and the use of proceeds thereof, all as provided
therein, will not violate any law, rule or regulation of the State of Maine
or of any Maine governmental authority.
6. Under the laws of the State of Maine (a) the mortgage interest in
real estate and the security interest in personalty of the First Mortgage
Trustee in the Collateral created by the Mortgage has priority over the
mortgage interest in real estate and the security interest in personalty of
the Second Mortgage Trustee in the Collateral created by the General and
Refunding Mortgage Indenture; and (b) the exercise by the Second Mortgage
Trustee or holders of the Second Mortgage Bonds of rights in respect of the
Collateral pursuant to the General and Refunding Mortgage Indenture will not
extinguish or affect the priority of the mortgage interest and security
interest created by the Mortgage. As used in this paragraph, (i) "First
Mortgage Trustee" means the Trustee referred to in the Mortgage, (ii) "Second
Mortgage Trustee" means the Trustee referred to in the General and Refunding
Mortgage Indenture, and (iii) "Collateral" means the Mortgaged Property
referred to in the General and Refunding Mortgage Indenture (except to the
extent that such Mortgaged Property does not constitute mortgaged and pledged
property for the purposes of the Mortgage).
The opinions expressed in paragraphs 1 and 5 above are based solely upon
a review by us of those Maine statutes and regulations that a lawyer
exercising customary professional diligence would reasonably recognize as
being directly applicable to the transactions contemplated by the Transaction
Documents. Without limiting the generality of the foregoing, we express no
opinion with respect to orders or proceedings of the Maine Public Utilities
Commission or other statutes and regulations relating specifically to the
regulation of electric utilities. To the extent that we have opined as to
future conduct, such opinion is subject to future changes in applicable law
and regulation.
We have addressed only the laws of the State of Maine, and our opinion
is limited accordingly. We express no opinion as to the enforceability of
documents to the extent governed by the laws of jurisdictions other than the
State of Maine.
We do not undertake to advise you of any changes to the opinions
expressed herein resulting from matters which may hereafter be brought to our
attention.
We advise you that we have been separately engaged by Fleet Bank to
review on its behalf certain of the Transaction Documents. We also advise
that we perform legal services unrelated to the transactions contemplated by
the Transaction Documents on behalf of Fleet Bank, Key Bank and the Company.
This opinion is being furnished to the Banks party to the Credit
Agreement solely in connection with the transactions contemplated by the
Transaction Documents. It may not be relied upon by any other person or for
any other purpose without our expressed written consent.
Very truly yours,
EXHIBIT F
---------
BOND PLEDGE AND SECURITY AGREEMENT
BOND PLEDGE AND SECURITY AGREEMENT, dated as of June 30, 1995, made
by BANGOR HYDRO-ELECTRIC COMPANY, a Maine corporation (the "PLEDGOR"), to
CHEMICAL BANK, as Administrative Agent (in such capacity, the "ADMINISTRATIVE
AGENT") for the banks (the "BANKS") parties to the Credit Agreement dated as
of June 30, 1995 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT") among the Pledgor, the Banks and the
Administrative Agent.
W I T N E S S E T H :
WHEREAS, the Pledgor has on the date hereof issued $115,000,000
principal amount of its First Mortgage Bonds (the "PLEDGED BONDS") pursuant
to a Supplemental Indenture, dated as of the date hereof, to the Mortgage and
Deed of Trust, dated as of July 1, 1936 (as amended, supplemented or
otherwise modified from time to time, the "MORTGAGE"), between the Pledgor
and Citibank, N.A. (as successor to City Bank Farmers Trust Company), as
trustee thereunder (the "FIRST MORTGAGE TRUSTEE"); and
WHEREAS, it is a condition precedent to the obligations of the
Banks to make the extensions of credit under the Credit Agreement that the
Pledgor shall have executed and delivered this Agreement, and delivered in
pledge the Pledged Bonds, to the Administrative Agent, on behalf of and for
the ratable benefit of the Banks;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Banks to enter into and make the extensions of credit provided for
under the Credit Agreement and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Pledgor hereby
agrees with the Administrative Agent on behalf of and for the ratable benefit
of the Banks as follows:
Section 1. DEFINED TERMS. Unless otherwise defined herein, terms
defined in the Credit Agreement shall have such defined meanings when used
herein. As used herein:
"COLLATERAL" shall mean the Pledged Bonds and all other property at
any time pledged to the Administrative Agent hereunder (whether
described herein or not) and all income therefrom and proceeds thereof.
"FIRST MORTGAGE BONDS" shall mean any Bonds (including the Pledged
Bonds) issued pursuant to the Mortgage.
"OBLIGATIONS" shall mean the collective reference to the unpaid
principal of and interest on the Loans and all other obligations and
liabilities of the Pledgor to the Administrative Agent and the Banks
(including, without limitation, interest accruing at the then applicable
rate provided in the Credit Agreement after the maturity of the Loans
and interest accruing at the then applicable rate provided in the Credit
Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Pledgor, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing
or hereafter incurred, which may arise under, out of, or in connection
with, the Credit Agreement, this Agreement, the Letters of Credit, the
other Loan Documents or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
or otherwise (including, without limitation, all fees and disbursements
of counsel to the Administrative Agent or to the Banks that are required
to be paid by the Pledgor pursuant to the terms of the Credit Agreement
or this Agreement or any other Loan Document).
"SECOND MORTGAGE TRUSTEE" shall mean the Trustee referred to in the
General and Refunding Mortgage Indenture.
"SPECIFIED MORTGAGE COLLATERAL" shall mean the Mortgaged Property
referred to in the General and Refunding Mortgage Indenture (except to
the extent that such Mortgaged Property does not constitute mortgaged
and pledged property for the purposes of the Mortgage).
Section 2. PLEDGE. The Pledgor hereby pledges, assigns,
hypothecates, transfers, and delivers to the Administrative Agent on behalf
of and for the ratable benefit of the Banks, and grants a security interest
to the Administrative Agent on behalf of and for the ratable benefit of the
Banks in, all the Pledged Bonds, fully registered in the name of the
Administrative Agent, together with all income and profits thereof, all
distributions thereon, all collateral security therefor, all other proceeds
thereof and all other rights and privileges pertaining thereto, all as
collateral security for the prompt and complete payment when due (whether at
the stated maturity, by acceleration or otherwise) of the Obligations.
Section 3. NO RIGHT TO MODIFY, ETC. The Pledgor shall not amend,
supplement or otherwise modify, or consent to any amendment, supplement or
other modification to, the terms of the Pledged Bonds or the other First
Mortgage Bonds (or any supplemental indenture issued in connection therewith)
or the Mortgage (provided that the foregoing shall not prohibit the issuance
of any supplemental indenture in respect of the Mortgage solely to the extent
necessary to provide for the issuance of refinancing Debt expressly permitted
by Section 6.3 of the Credit Agreement). The Pledgor shall not have the
right to optionally redeem the Pledged Bonds without the consent of the
Administrative Agent.
Section 4. NO DISPOSITION. Without the prior written consent of
the Administrative Agent, the Pledgor agrees that it will not sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Collateral, nor will it create, incur or permit to exist any pledge,
lien, mortgage, hypothecation, security interest, charge, option or any other
encumbrance with respect to any of the Collateral, or any interest therein,
or any proceeds thereof, except for the lien and security interest provided
for by this Agreement.
Section 5. AMENDMENTS, MODIFICATIONS AND WAIVERS WITH RESPECT TO
OBLIGATIONS. The Pledgor hereby consents that, without the necessity of any
reservation of rights against the Pledgor, and without notice to or further
assent by the Pledgor, any demand for payment of any of the Obligations made
by the Administrative Agent or the Banks may be rescinded by the
Administrative Agent or the Banks and any of the Obligations continued, and
the Obligations, or the liability of the Pledgor or any other party upon or
for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, refunded, extended, amended, modified, accelerated,
compromised, waived, surrendered, or released by the Administrative Agent or
any Bank and the Credit Agreement and any Loan Document or any other
documents delivered in connection therewith may be amended, modified,
supplemented or terminated in whole or in part, as the Banks may deem
advisable from time to time, and any collateral security at any time held by
the Banks for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released, all without the necessity of any reservation of
rights against the Pledgor and without notice to or further assent by the
Pledgor, which will remain bound hereunder, notwithstanding any such renewal,
extension, modification, acceleration, compromise, amendment, supplement,
termination, sale, exchange, waiver, surrender or release. Neither the
Administrative Agent nor the Banks shall have any obligation to protect,
secure, perfect or insure any other collateral security document or property
subject thereto at any time held as security for the Obligations. The
Pledgor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Bank upon this Agreement, and the Obligations,
and any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this Agreement, and all dealings
between the Pledgor and the Administrative Agent and the Banks shall likewise
be conclusively presumed to have been had or consummated in reliance upon
this Agreement. The Pledgor waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Pledgor with
respect to the Obligations.
Section 6. RIGHTS OF THE BANKS AND THE ADMINISTRATIVE AGENT. (a)
ADMINISTRATIVE AGENT TO EXERCISE RIGHTS OF BONDHOLDER. The Administrative
Agent may, at all times, exercise all of the rights of a holder of First
Mortgage Bonds including, without limitation, (i) the right to demand and
receive payments of principal of and interest on the Pledged Bonds in
accordance with the terms thereof and of the Mortgage, (ii) the right to
attend or be represented by proxy at any meeting of bondholders under the
Mortgage, (iii) the right to vote the Pledged Bonds in accordance with the
terms of the Mortgage, (iv) the right to issue consents and waivers with
respect to the Pledged Bonds, as a holder of First Mortgage Bonds, under or
in connection with the Mortgage, (v) the right to issue any and all
instructions and requests for action to the First Mortgage Trustee under the
Mortgage which are permitted to a bondholder under the Mortgage and (vi) the
right to exercise all of the remedies provided in the Mortgage for holders of
bonds issued thereunder.
(b) OTHER REMEDIES. If an Event of Default shall have occurred
and be continuing, in addition to the rights granted to the Administrative
Agent under Section 6(a) hereof, the Administrative Agent, without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or
upon the Pledgor or any other Person (all and each of which demands,
advertisements and/or notices are hereby expressly waived), may forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, assign, give option or options to
purchase, contract to sell or otherwise dispose of and deliver said
Collateral, or any part thereof, in one or more parcels at public or private
sale or sales, at any exchange, broker's board or at any of the
Administrative Agent's offices or elsewhere upon such terms and conditions as
it may deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk, with the
right to the Administrative Agent or any Bank upon any such sale or sales,
public or private, to purchase the whole or any part of said Collateral so
sold, free of any right or equity of redemption in the Pledgor, which right
or equity is hereby expressly waived or released. The Administrative Agent
shall pay over the net proceeds received on the Pledged Bonds, after
deducting all reasonable costs and expenses of every kind incurred therein or
incidental to the care, safekeeping or otherwise of any and all of the
Collateral or in any way relating to the rights of the Administrative Agent
hereunder, including reasonable attorneys' fees and legal expenses, ratably
to the Banks for application by them to the payment in whole or in part of
the Obligations in such order as each of the Banks may elect, the Pledgor
remaining liable for any deficiency remaining unpaid after such application,
and only after so paying over such net proceeds and after the payment by the
Administrative Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(l)(c) of the Uniform Commercial
Code, need the Administrative Agent account for the surplus, if any, to the
Pledgor. In addition to the rights and remedies granted to it in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to any of the Obligations, the Administrative Agent shall have all
the rights and remedies of a secured party under the Uniform Commercial Code
of the State of New York. The Pledgor further agrees to waive and agrees not
to assert any rights or privileges which it may acquire under Section 9-112
of the Uniform Commercial Code and the Pledgor shall be liable for the
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay all amounts to which the Banks are entitled, and the
fees of any attorneys employed by the Administrative Agent to collect such
deficiency.
(c) LIMITED LIABILITY. Neither the Administrative Agent nor any
Bank shall be liable for failure to collect or realize upon the Obligations
or any collateral security or guarantee therefor, or any part thereof, or for
any delay in so doing nor shall any of them be under any obligation to take
any action whatsoever with regard thereto. Although the Administrative Agent
or its nominee may without notice exercise any and all rights, privileges or
options pertaining to any of the Pledged Bonds as if it were the absolute
owner thereof, the Administrative Agent shall have no duty to exercise any of
the aforesaid rights, privileges or options, shall not be responsible for any
failure to do so or delay in so doing and, in any event, may do so without
liability.
Section 7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGOR. The Pledgor represents and warrants that:
(a) the Pledged Bonds are subject to no pledge, lien, mortgage,
hypothecation, security interest, charge, option or other encumbrance or
any ownership interest whatsoever, except the lien and security interest
created by this Agreement;
(b) the pledge, assignment and delivery of the Pledged Bonds
pursuant to this Agreement, together with possession by the
Administrative Agent of the Pledged Bonds, creates a valid first lien on
and a perfected first priority security interest in such Pledged Bonds,
and the proceeds thereof, subject to no other pledge, lien, mortgage,
hypothecation, security interest, charge, option or encumbrance or to
any agreement purporting to grant to any third party a security interest
in the Pledged Bonds;
(c) the Pledged Bonds have been duly and validly issued and
authenticated, are in full force and effect and are entitled to all the
benefits provided by the Mortgage;
(d) the Pledged Bonds (i) are outstanding for all purposes of the
Mortgage and (ii) do not constitute "Company-owned" Bonds for any
purposes of the Mortgage;
(e) (i) the mortgage interest in real estate and security interest
in personalty of the First Mortgage Trustee in the Specified Mortgage
Collateral created by the Mortgage has priority over the mortgage
interest in real estate and the security interest in personalty of the
Second Mortgage Trustee in the Specified Mortgage Collateral created by
the General and Refunding Mortgage Indenture; and (ii) the exercise by
holders of Second Mortgage Bonds of rights in respect of the Specified
Mortgage Collateral pursuant to the General and Refunding Mortgage
Indenture will not extinguish or affect the priority of the mortgage
interest and security interest created by the Mortgage;
(f) the Mortgage has been duly recorded in all places where
required by law to preserve the lien thereof, and all filings required
under the Uniform Commercial Code as in effect in the State of Maine and
any other applicable jurisdiction to perfect and continue the perfection
of the lien thereof have been made and are in full force and effect;
(g) the Mortgage constitutes a valid and perfected first priority
security interest and lien upon the franchises held by the Pledgor and
substantially all of the Pledgor's utility plant as security for the
First Mortgage Bonds and the other obligations purported to be secured
by the Mortgage, subject, however, to the exceptions set forth in the
description of mortgaged properties in the Mortgage and in the deeds
referred to in such descriptions; and
(h) the Pledgor covenants and agrees that it will defend the
Administrative Agent's and the Banks' right, title and security interest
in and to the Pledged Bonds and the proceeds thereof against the claims
and demands of all Persons whomsoever.
Section 8. FURTHER ASSURANCES. The Pledgor agrees that at any
time and from time to time upon the written request of the Administrative
Agent, the Pledgor will execute and deliver such documents and do such
further acts and things as the Administrative Agent may reasonably request in
order to effect the purposes of this Agreement including, without limitation,
with respect to the filing or recordation hereof or any financing statements
with respect hereto. The Pledgor hereby authorizes the Administrative Agent,
to the extent permitted by applicable law, to make any such filings or
recordations without the signature of the Pledgor. All costs and expenses in
connection with any such actions and filings shall be payable by the Pledgor
on demand.
Section 9. THE ADMINISTRATIVE AGENT'S APPOINTMENT AS ATTORNEY-IN-
FACT. The Pledgor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer thereof with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Pledgor and in the name of the
Pledgor or in its own name, to file any claims or take any action (in law or
equity or as otherwise deemed appropriate by the Administrative Agent) which
the Administrative Agent may deem necessary or desirable to accomplish the
purposes of this Agreement.
Section 10. INDEMNITY. The Pledgor shall pay, and save the
Administrative Agent and the Banks harmless from, any and all liabilities
with respect to, or resulting from any delay in paying, any and all stamp,
excise, sales or other taxes and any and all recording and filing fees which
may be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated by this
Agreement.
Section 11. REDELIVERY OF PLEDGED BONDS UPON PAYMENT OF THE
OBLIGATIONS. (a) If (i) the Pledgor makes a scheduled installment payment
in respect of the Term Loans and (ii) the Administrative Agent shall have
received the financial statements and certificates referred to in Sections
6.1(b) and (c) of the Credit Agreement in respect of the fiscal quarter of
the Company ending on the scheduled date of such installment, then, unless a
Default or Event of Default shall have occurred and be continuing, the
Administrative Agent shall forthwith assign and deliver to the Second
Mortgage Trustee, without recourse, representation or warranty, Pledged Bonds
having an aggregate principal amount equal to the amount of the Term Loan
installment so paid.
(b) No later than ninety-one days after final payment in full of
the Obligations and the termination of the Commitments, the Administrative
Agent shall return to the Pledgor any Pledged Bonds not previously assigned
pursuant to paragraph (a) above, without recourse, representation or
warranty.
Section 12. REINSTATEMENT. This Agreement and the pledge created
hereby and the obligations of the Pledgor with respect to the Pledged Bonds
shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Obligations is rescinded
or must otherwise be restored or returned by the Administrative Agent or any
Bank upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Pledgor or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee, custodian or similar
officer for, the Pledgor or any substantial part of its property, or
otherwise, all as though such payments had not been made.
Section 13. SEVERABILITY. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
Section 14. NO WAIVER; CUMULATIVE REMEDIES. Neither the
Administrative Agent nor the Banks shall by any act, delay, omission or
otherwise be deemed to have waived any of its or their rights or remedies
hereunder or under the Pledged Bonds and no waiver shall be valid unless in
writing, signed by the Administrative Agent on behalf of the Banks, and then
only to the extent therein set forth. A waiver by the Administrative Agent
of any right or remedy hereunder or under the Pledged Bonds on any one
occasion shall not be construed as a bar to any right or remedy which the
Administrative Agent or the Banks would otherwise have on any future
occasion. No failure to exercise nor any delay in exercising on the part of
the Administrative Agent or the Banks, any right, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under the Pledged
Bonds preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided or
under the Pledged Bonds are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights or remedies provided by
law.
Section 15. AUTHORITY OF AGENT. The Pledgor acknowledges that the
rights and responsibilities of the Administrative Agent under this Agreement
with respect to any action taken by the Administrative Agent or the exercise
or non-exercise by the Administrative Agent of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting
or arising out of this Agreement shall, as between the Administrative Agent
and the Banks, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them,
but, as between the Administrative Agent and the Pledgor, the Administrative
Agent shall be conclusively presumed to be acting as agent for the Banks with
full and valid authority so to act or refrain from acting, and the Pledgor
shall not be under any obligation, or entitlement, to make any inquiry
respecting such authority.
Section 16. SECTION HEADINGS. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
Section 17. WAIVERS, AMENDMENTS; APPLICABLE LAW. None of the
terms or provisions of this Agreement may be waived, altered, modified or
amended except by an instrument in writing, duly executed by the
Administrative Agent on behalf of the Banks. This Agreement and all
obligations of the Pledgor hereunder shall be binding upon the successors and
assigns of the Pledgor, and shall, together with the rights and remedies of
the Administrative Agent hereunder, inure to the benefit of the
Administrative Agent, the Banks and their respective successors and assigns.
This Agreement shall be governed by, and be construed and interpreted in
accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be
duly executed and delivered as of the day and year first above written.
BANGOR HYDRO-ELECTRIC COMPANY
By:___________________________
Title:
EXHIBIT G
LIST OF SUBSIDIARIES OF
BANGOR HYDRO-ELECTRIC COMPANY
Voting Percentages
of Securities owned
State of directly or through
Incorporation Subsidiary
------------- -------------------
East Branch Improvement
Company Maine 60%
Godfrey's Falls Dam
Company Maine 100%
The Sawtelle Brook
Dam and Improvement
Company Maine 100%
Sebois Dam Company Maine 100%
Pleasant River Gulf
Improvement Company Maine 100%
Northeastern Company Maine 100%
Eastern Development
Company Maine 100%
Penobscot Hydro Co., Inc. Maine 100%
Bangor Var Company, Inc. Maine 100%
East Branch Improvement Company is a water storage subsidiary,
operating on the East Branch of the Penobscot River. The capital stock of
this subsidiary consists of 3,029 25/100 shares of the par value of $100
each, of which the Company owns 1,817 55/100 shares, the balance being owned
by Great Northern Paper Company.
Godfrey's Falls Dam Company has a capital stock consisting of 114
shares of $50 par value each, all of which are owned by East Branch
Improvement Company. Ownership has been acquired to permit future water
storage development in the East Branch Basin.
The Sawtelle Brook Dam and Improvement Company has 42 shares of
its capital stock outstanding. Each of these shares is of the par value of
$100, and all are owned by East Branch Improvement Company. This subsidiary
controls certain dams and water rights in the basin of the East Branch of the
Penobscot River and was acquired to permit future water storage development
in the East Branch Basin.
Sebois Dam Company is a Maine corporation organized to improve the
navigation of certain of the Sebois waters which enter the Piscataquis River.
It has the right to maintain dams for the driving of logs and lumber. It is
presently an inactive corporation and has no income.
Pleasant River Gulf Improvement Company is a corporation organized
under Maine law. It is a water improvement company authorized by its charter
to erect and maintain dams and to improve the flow of water in the West
Branch of the Piscataquis River in Maine for the purpose of making the West
Branch floatable and facilitating the driving of logs and lumber upon the
same. It is presently an inactive corporation and has no income.
Northeastern Company is an inactive corporation organized under
Maine law. It was acquired to hold certain real and personal properties
useful at the time of the acquisition thereof in the conduct of the business
of Bangor Hydro-Electric Company. Its holdings have since been disposed of,
and at the present time it has outstanding three shares of capital stock of
the par value of $100 each, all of which are owned by Bangor Hydro-Electric
Company.
Eastern Development Company is an inactive corporation organized
under Maine law. It was organized to acquire and hold certain properties for
ultimate transfer to Bangor Hydro-Electric Company. All holdings have been
disposed of and the corporation has no present assets or liabilities.
Penobscot Hydro Co., Inc. is a 50% joint venturer in the ownership
and operation of a hydro-electric project in West Enfield, Maine.
Bangor Var Co., Inc. is a 50% joint venturer in the ownership and
operation of a static var compensator in Chester, Maine. A static var
compensator is electrical equipment constructed in connection with the
Hydro-Quebec Phase 2 Project, and all its capital and operating costs are
supported by the participants in that Project.
EXHIBIT H
TRANSACTIONS POSSIBLY
CONSTRUED AS "GUARANTEES"
1. Contractual obligations of the Company with respect to its
status as a stockholder and sponsor of Maine Yankee Atomic Power Company
("MAINE YANKEE") and as a stockholder of Maine Electric Power Company, Inc.
("MEPCO") and a participant in MEPCO's transmission support agreements.
2. Obligations of the Company in connection with the
decommissioning of Maine Yankee, including contractual obligations with
respect to the payment of the Company's share of the costs of
decommissioning, contractual obligations with respect to contribution among
sponsors in the event of the imposition of joint and several liability for
the safe and proper decommissioning of Maine Yankee, and obligations imposed
by law or regulation.
3. Contractual obligations of the Company with respect to its
participation in the Hydro-Quebec Phase 1 interconnection as set forth in a
letter of the Company dated April 11, 1983, previously furnished to the Bank.
4. Contractual obligations of the Company with respect to its
participation in the Hydro-Quebec Phase 2 project as set forth in a letter of
the Company dated January 16, 1986, previously furnished to the Bank.
5. Contractual obligations of the Company under a Capital Support
Agreement dated January 29, 1987 with lenders in connection with the
financing of the hydro-electric project in West Enfield, Maine.
EXHIBIT I HAS BEEN PROVIDED SEPARATELY