EXHIBIT 10(d)
AMENDED AND RESTATED
REVOLVING CREDIT
AND
TERM LOAN AGREEMENT
-------------------
DATED as of June 29, 1998
between
BANGOR HYDRO-ELECTRIC COMPANY
and
BANKBOSTON, N.A.,
as Administrative Agent for the Banks
and
FLEET NATIONAL BANK,
as Documentation Agent for the Banks
TABLE OF CONTENTS
Section 1. DEFINITIONS AND RULES OF INTERPRETATION. .
Section 1.1. Definitions.
Section 1.2. Rules of Interpretation.
Section 2. THE REVOLVING CREDIT FACILITY. . . . . . .
Section 2.1. Commitment to Lend.
Section 2.2. Commitment Fee.
Section 2.3. Reduction of Total Commitment.
Section 2.4. The Revolving Credit Notes.
Section 2.5. Interest on Revolving Credit
Loans.
Section 2.6. Requests for Revolving Credit
Loans.
Section 2.7. Conversion Options.
Section 2.7.1. Conversion to Different Type
of Revolving Credit Loan.
Section 2.7.2. Continuation of Type of
Revolving Credit Loan.
Section 2.7.3. LIBOR Rate Loans.
Section 2.8. Funds for Revolving Credit Loan.
Section 2.8.1. Funding Procedures.
Section 2.8.2. Advances by Administrative
Agent.
Section 2.9. Settlements.
Section 2.9.1. General.
Section 2.9.2. Failure to Make Funds
Available.
Section 2.9.3. No Effect on Other Banks.
Section 3. REPAYMENT OF THE REVOLVING CREDIT LOANS. .
Section 3.1. Maturity.
Section 3.2. Mandatory Repayments of Revolving
Credit Loans.
Section 3.3. Optional Repayments of Revolving
Credit Loans.
Section 4. THE TERM LOAN. . . . . . . . . . . . . . .
Section 4.1. Commitment to Lend.
Section 4.2. The Term Notes.
Section 4.3. Schedule of Installment Payments of
Principal of Term Loan.
Section 4.4. Optional Prepayment of Term Loan.
Section 4.5. Mandatory Prepayment of Term
Loan.
Section 4.6. Interest on Term Loan.
Section 4.6.1. Interest Rates.
Section 4.6.2. Notification by Borrower.
Section 4.6.3. Amounts, etc.
Section 5. LETTERS OF CREDIT. . . . . . . . . . . . .
Section 5.1. Letter of Credit Commitments.
Section 5.1.1. Commitment to Issue Letters
of Credit.
Section 5.1.2. Letter of Credit
Applications.
Section 5.1.3. Terms of Letters of
Credit.
Section 5.1.4. Reimbursement Obligations of
Banks.
Section 5.1.5. Participations of Banks.
Section 5.2. Reimbursement Obligation of the
Borrower.
Section 5.3. Letter of Credit Payments.
Section 5.4. Obligations Absolute.
Section 5.5. Reliance by Issuer.
Section 5.6. Letter of Credit Fee.
Section 6. CERTAIN GENERAL PROVISIONS. . . . . . . . .
Section 6.1. Fees.
Section 6.2. Funds for Payments.
Section 6.2.1. Payments to Administrative
Agent.
Section 6.2.2. No Offset, etc.
Section 6.3. Computations.
Section 6.4. Inability to Determine LIBOR
Rate.
Section 6.5. Illegality.
Section 6.6. Additional Costs, etc.
Section 6.7. Capital Adequacy.
Section 6.8. Certificate.
Section 6.9. Indemnity.
Section 6.10. Interest After Default.
Section 6.10.1. Overdue Amounts.
Section 6.10.2. Replacement Banks;
Mitigation.
Section 7. COLLATERAL SECURITY. . . . . . . . . . . .
Section 7.1. Security of Borrower.
Section 8. REPRESENTATIONS AND WARRANTIES. . . . . . .
Section 8.1. Corporate Authority.
Section 8.1.1. Incorporation; Good
Standing.
Section 8.1.2. Authorization.
Section 8.1.3. Enforceability.
Section 8.2. Governmental Approvals.
Section 8.3. Title to Properties; Leases.
Section 8.4. Financial Statements and
Projections.
Section 8.4.1. Fiscal Year.
Section 8.4.2. Financial Statements.
Section 8.4.3. Projections.
Section 8.5. No Material Changes, etc.
Section 8.6. Franchises, Patents, Copyrights,
etc.
Section 8.7. Litigation.
Section 8.8. No Materially Adverse Contracts,
etc.
Section 8.9. Compliance with Other Instruments,
Laws, etc.
Section 8.10. Tax Status.
Section 8.11. No Event of Default.
Section 8.12. Holding Company and Investment
Company Acts.
Section 8.13. Absence of Financing Statements,
etc.
Section 8.14. Perfection of Security Interest.
Section 8.15. Certain Transactions.
Section 8.16. Compliance with ERISA.
Section 8.17. Regulations U and X.
Section 8.18. Subsidiaries, etc.
Section 8.19. Year 2000 Problem.
Section 8.20. Disclosure.
Section 8.21. Collateral Bonds; Mortgages.
Section 9. AFFIRMATIVE COVENANTS OF THE BORROWER. . .
Section 9.1. Punctual Payment.
Section 9.2. Maintenance of Office.
Section 9.3. Records and Accounts.
Section 9.4. Financial Statements, Certificates
and Information.
Section 9.5. Notices.
Section 9.5.1. Defaults.
Section 9.5.2. Environmental Events.
Section 9.5.3. Notification of Claim against
Collateral Bonds.
Section 9.5.4. Notice of Litigation and
Judgments.
Section 9.6. Corporate Existence; Maintenance of
Properties.
Section 9.7. Insurance.
Section 9.8. Taxes.
Section 9.9. Inspection of Properties and Books,
etc.
Section 9.9.1. General.
Section 9.9.2. Communications with
Accountants.
Section 9.10. Compliance with Laws, Contracts,
Licenses, and Permits.
Section 9.11. Employee Benefit Plans.
Section 9.12. Use of Proceeds.
Section 9.13. Bank Accounts.
Section 9.14. Further Assurances.
Section 9.15. Sale of Generating Assets.
Section 9.16. Status.
Section 10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
Section 10.1. Restrictions on Indebtedness.
Section 10.2. Restrictions on Liens.
Section 10.3. Restrictions on Investments.
Section 10.4. Merger, Consolidation and
Disposition of Assets.
Section 10.4.1. Mergers and Acquisitions.
Section 10.4.2. Disposition of Assets.
Section 10.5. Sale and Leaseback.
Section 10.6. Employee Benefit Plans.
Section 10.7. Business Activities.
Section 10.8. Fiscal Year.
Section 10.9. Transactions with Affiliates.
Section 10.10. Negative Pledges.
Section 10.11. Nuclear Acquisitions.
Section 10.12. Amendments to Bonds, Etc..
Section 11. FINANCIAL COVENANTS OF THE BORROWER. . . .
Section 11.1. Consolidated Net Worth.
Section 11.2. Consolidated Fixed Charge Ratio.
Section 11.3. Consolidated Total Debt Ratio.
Section 11.4. Dividends.
Section 12. CLOSING CONDITIONS. . . . . . . . . . . .
Section 12.1. Loan Documents.
Section 12.2. Certified Copies of Charter
Documents.
Section 12.3. Corporate Action.
Section 12.4. Incumbency Certificate.
Section 12.5. Validity of Liens.
Section 12.6. Registration and Amendment of
Collateral Bonds.
Section 12.7. Supplemental Indenture.
Section 12.8. Certificates of Insurance.
Section 12.9. Opinions of Counsel.
Section 12.10. Payment of Fees.
Section 12.11. Chase Assignment.
Section 12.12. Certified Approvals.
Section 12.13. Asset Sale.
Section 12.14. Financial Statements and
Projections.
Section 13. CONDITIONS TO ALL BORROWINGS. . . . . . .
Section 13.1. Representations True; No Event of
Default.
Section 13.2. No Legal Impediment.
Section 13.3. Governmental Regulation.
Section 13.4. Proceedings and Documents.
Section 14. EVENTS OF DEFAULT; ACCELERATION; ETC. . .
Section 14.1. Events of Default and
Acceleration.
Section 14.2. Termination of Commitments.
Section 14.3. Remedies.
Section 14.4. Distribution of Collateral Bonds
Proceeds.
Section 15. SETOFF. . . . . . . . . . . . . . . . . .
Section 16. THE AGENTS. . . . . . . . . . . . . . . .
Section 16.1. Authorization.
Section 16.2. Employees and Administrative
Agents.
Section 16.3. No Liability.
Section 16.4. No Representations.
Section 16.5. Payments.
Section 16.5.1. Payments to Administrative
Agent.
Section 16.5.2. Distribution by
Administrative Agent.
Section 16.5.3. Delinquent Banks.
Section 16.6. Holders of Notes.
Section 16.7. Indemnity.
Section 16.8. Administrative Agent as Bank.
Section 16.9. Resignation.
Section 16.10. Notification of Defaults and
Events of Default.
Section 16.11. Duties in the Case of
Enforcement.
Section 17. EXPENSES AND INDEMNIFICATION. . . . . . .
Section 17.1. Expenses.
Section 17.2. Indemnification.
Section 17.3. Survival.
Section 18. SURVIVAL OF COVENANTS, ETC. . . . . . . .
Section 19. ASSIGNMENT AND PARTICIPATION. . . . . . .
Section 19.1. Conditions to Assignment by
Banks.
Section 19.2. Certain Representations and
Warranties; Limitations; Covenants.
Section 19.3. Register.
Section 19.4. New Notes.
Section 19.5. Participations.
Section 19.6. Disclosure.
Section 19.7. Assignee or Participant Affiliated
with the Borrower.
Section 19.8. Miscellaneous Assignment
Provisions.
Section 19.9. Assignment by Borrower.
Section 20. NOTICES, ETC. . . . . . . . . . . . . . .
Section 21. GOVERNING LAW. . . . . . . . . . . . . . .
Section 22. HEADINGS. . . . . . . . . . . . . . . . .
Section 23. COUNTERPARTS. . . . . . . . . . . . . . .
Section 24. ENTIRE AGREEMENT, ETC. . . . . . . . . . .
Section 25. WAIVER OF JURY TRIAL. . . . . . . . . . .
Section 26. CONSENTS, AMENDMENTS, WAIVERS, ETC. . . .
Section 27. SEVERABILITY. . . . . . . . . . . . . . .
SCHEDULES AND EXHIBITS
Exhibit A -- Form of Revolving Credit Note
Exhibit B -- Form of Loan Request
Exhibit C -- Form of Term Note
Exhibit D -- Form of Compliance Certificate
Exhibit E -- Form of Assignment & Acceptance
Exhibit F -- Forms of Opinions
Exhibit G -- Guarantees of the Borrower
Exhibit H Bangor Energy Intercreditor
Agreement
Schedule 1 -- Banks
Schedule 8.2 -- Governmental Approvals
Schedule 8.7 -- Litigation
Schedule 8.18 -- Subsidiaries
Schedule 10.1 -- Existing Indebtedness
Schedule 10.2 -- Existing Liens
Schedule 10.3 -- Existing Investments
AMENDED AND RESTATED
REVOLVING CREDIT
AND
TERM LOAN AGREEMENT
-------------------
This AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT is made as of June 29 1998, by and among
BANGOR HYDRO-ELECTRIC COMPANY (the "Borrower"), a Maine
corporation having its principal place of business at 33
State Street, Bangor, Maine 04402, and BANKBOSTON, N.A., a
national banking association, and the other lending
institutions listed on SCHEDULE 1 and BANKBOSTON, N.A. as
administrative agent for itself and such other lending
institutions (the "Administrative Agent") and FLEET NATIONAL
BANK, a national banking association, as documentation agent
(the "Documentation Agent" and collectively with the
Administrative Agent, the "Agents".
WHEREAS, pursuant to a certain Credit Agreement dated
as of June 30, 1995 (the "Chase Credit Agreement"), among
the Borrower, the banks named therein (such banks
collectively referred to as the "Prior Lenders"), and Chase
Manhattan Bank as the administrative agent thereof (the
"Prior Administrative Agent"), the Prior Lenders have made
revolving credit and term loans to the Borrower (the
"Original Loans");
WHEREAS, the Prior Lenders have assigned all of their
rights, interests and obligations under the Chase Credit
Agreement to the Banks pursuant the Assignment and
Acceptance dated as of June 29, 1998 between the Prior
Lenders and the Banks;
WHEREAS, the Borrower, the Agents and the Banks wish to
amend and restate the Chase Credit Agreement as set forth
below;
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged
(these recitals being an integral part of this Credit
Agreement), the Borrower, the Banks and the Agents hereby
agree that, as of the date hereof, the Chase Credit
Agreement shall be hereby amended and restated in its
entirety; the Commitments and Commitment Percentages of the
Banks shall be as set forth on Schedule 1 hereto; and BKB
shall become the new Administrative Agent under the amended
and restated Credit Agreement.
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1. Definitions.
The following terms shall have the meanings set forth
in this Section 1 or elsewhere in the provisions of this
Credit Agreement referred to below:
ACQUISITION DOCUMENTS. Collectively, the Rate Schedule
Agreement dated March 31, 1998, the Unitil Contract
Assignment dated March 31, 1998, the Service Agreement dated
March 31, 1998 and all agreements and documents delivered
pursuant thereto under the Bangor Energy Loan Agreement.
AFFILIATE. Any Person that would be considered to be
an affiliate of the Borrower under Rule 144(a) of the Rules
and Regulations of the Securities and Exchange Commission,
as in effect on the date hereof, if the Borrower were
issuing securities.
ADMINISTRATIVE AGENT. BankBoston, N.A. acting as
administrative agent for the Banks.
ADMINISTRATIVE AGENT'S HEAD OFFICE. The Administrative
Agent's head office located at 100 Federal Street, Boston,
Massachusetts 02110, or at such other location as the
Administrative Agent may designate by notice to the Borrower
from time to time.
ADMINISTRATIVE AGENT'S SPECIAL COUNSEL. Bingham
Dana LLP or such other counsel as may be approved by the
Administrative Agent.
APPLICABLE L/C RATE. With respect to each Letter of
Credit on any date, the applicable letter of credit rate as
set forth in the Pricing Table based upon the Status on such
date.
APPLICABLE MARGIN. With respect to each Loan on any
date, the applicable interest rate margin as set forth in
the Pricing Table based upon the Status on such date.
ASSIGNMENT AND ACCEPTANCE. See Section 19.1.
BALANCE SHEET DATE. December 31, 1997.
BANGOR ENERGY GUARANTY. The Guaranty dated as of March
31, 1998, by the Borrower in favor of BKB, as agent for
itself and the other banks party to the Bangor Energy Loan
Agreement.
BANGOR ENERGY INTERCREDITOR AGREEMENT. The
Intercreditor Agreement dated as of March 31, 1998, between
BKB, as agent for the Bangor Energy Banks, and the
Administrative Agent as successor to the Prior
Administrative Agent, as agent for the Banks, and attached
hereto as EXHIBIT H.
BANGOR ENERGY LIENS. The liens of Bangor Energy
Resale, Inc. permitted under the Bangor Energy Loan
Agreement.
BANGOR ENERGY LOAN AGREEMENT. The Term Loan Agreement
dated as of March 31, 1998, as amended from time to time,
among Bangor Energy Resale, Inc., the banks named therein
(the "Bangor Energy Banks") and BKB, as agent for the Bangor
Energy Banks.
BANGOR ENERGY STOCK PLEDGE. The Amended and Restated
Stock Pledge Agreement dated as of the date hereof, between
the Borrower and the Administrative Agent on behalf of the
Banks.
Banks. BKB and the other lending institutions listed
on Schedule 1 hereto and any other Person who becomes an
assignee of any rights and obligations of a Bank pursuant to
Section 19.
Base Rate. The higher of (i) the annual rate of
interest announced from time to time by BKB at its head
office in Boston, Massachusetts, as its "base rate" and (ii)
one-half of one percent (1/2%) above the Federal Funds
Effective Rate. For the purposes of this definition,
"Federal Funds Effective Rate" shall mean for any day, the
rate per annum equal to 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 for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by
the Administrative Agent from three funds brokers of
recognized standing selected by the Administrative Agent.
Base Rate Loans. Revolving Credit Loans and all or any
portion of the Term Loan bearing interest calculated by
reference to the Base Rate plus the Applicable Margin.
BKB. BankBoston, N.A., a national banking association,
in its individual capacity.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions in
Boston, Massachusetts, are open for the transaction of
banking business and, in the case of LIBOR Rate Loans, also
a day which is a LIBOR Business Day.
Capitalized Leases. Leases under which the Borrower or
any of its Subsidiaries is the lessee or obligor, the
discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of the
lessee or obligor in accordance with GAAP.
Chase Assignment. The Assignment and Acceptance dated
as of June 29, 1998 among the Prior Lenders and the Banks.
Chase L/C. The Irrevocable Letter of Credit Number T-
247520 granted by Chase Manhattan Bank (as successor to
Chemical Bank) on August 2, 1995, in favor of State Street
Bank and Trust Company, as trustee.
Chase Revolver: The revolving credit loans made to the
Borrower pursuant to the Credit Agreement dated as of June
30, 1995, among the Borrower, the banks named therein, Chase
Manhattan Bank as administrative agent, and Fleet Bank of
Maine and BKB, as co-agents.
Chase Term Loan: The term loan made to the Borrower
pursuant to the Credit Agreement dated as of June 30, 1995,
among the Borrower, the banks named therein, Chase Manhattan
Bank as administrative agent, and Fleet Bank of Maine and
BKB, as co-agents.
Closing Date. The first date on which the conditions
set forth in Section 12 have been satisfied and any
Revolving Credit Loans and the Term Loan are to be made or
any Letter of Credit is to be issued hereunder.
Co-Arrangers. BancBoston Securities Inc. and Fleet
National Bank.
Code. The Internal Revenue Code of 1986.
Collateral Bonds. The amended non-interest bearing
First Mortgage Bonds, Collateral Series due 2001, of the
Borrower in the original principal amount of $82,500,000,
pledged to the Administrative Agent for the benefit of the
Banks.
Commission. The Public Utilities Commission of the
State of Maine.
Commitment. With respect to each Bank, the amount set
forth on Schedule 1 hereto as the amount of such Bank's
commitment to make Revolving Credit Loans to, and to
participate in the issuance, extension and renewal of
Letters of Credit for the account of, the Borrower, as the
same may be reduced from time to time; or if such commitment
is terminated pursuant to the provisions hereof, zero.
Commitment Fee Rate. The applicable commitment fee
rate as set forth in the Pricing Table based upon the Status
on the date the commitment fee is due.
Commitment Percentage. With respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's
percentage of the aggregate Commitments of all of the Banks.
Company Balance Sheet Date. March 31, 1998.
Consolidated or consolidated. With reference to any
term defined herein, shall mean that term as applied to the
accounts of the Borrower and its Subsidiaries, consolidated
in accordance with GAAP.
Consolidated Adjusted EBIT. For any period,
Consolidated Net Income (or deficit) for such period (a)
plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income (or
deficit) for such period, the sum of (i) total income tax
expense and (ii) interest expense, amortization or write-off
of debt discount and debt issuance costs and commissions,
discounts and other fees and charges associated with
Indebtedness (including the Loans) and (b) minus, to the
extent included in Consolidated Net Income (or deficit) for
such period, the amount which would appear in accordance
with GAAP on a statement of income of the Borrower 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 Borrower and its
Subsidiaries for such period with respect to all outstanding
Indebtedness of the Borrower 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
Borrower 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 (or deficit). For any period,
the net income (or loss) of the Borrower 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 Borrower or any of its Subsidiaries,
(b) the income (or deficit) of any Person (other than a
Subsidiary) in which the Borrower or any of its Subsidiaries
has an ownership interest, except to the extent that any
such income is actually received by the Borrower 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
Borrower 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 Indebtedness which
would appear in accordance with GAAP on a balance sheet of
the Borrower 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.
Conversion Request. A notice given by the Borrower to
the Administrative Agent of the Borrower's election to
convert or continue a Loan in accordance with Section 2.7.
Credit Agreement. This Amended and Restated Revolving
Credit and Term Loan Agreement, including the Schedules and
Exhibits hereto, as amended from time to time.
Default. See Section 14.1.
Delinquent Bank. See Section 16.5.3.
Disclosure Documents. The Borrower s financial
statements referred to in Section 8.4.2, 1997 Form 10-K and
report to stockholders for the first quarter of 1998.
Distribution. The declaration or payment of any
dividend on or in respect of any shares of any class of
capital stock of the Borrower, other than dividends payable
solely in shares of common stock of the Borrower; the
purchase, redemption, or other retirement of any shares of
any class of capital stock of the Borrower, directly or
indirectly through a Subsidiary of the Borrower or
otherwise; the return of capital by the Borrower to its
shareholders as such; or any other distribution on or in
respect of any shares of any class of capital stock of the
Borrower.
Documentation Agent. Fleet National Bank, acting as
documentation agent for the Banks.
Dollars or $. Dollars in lawful currency of the United
States of America.
Domestic Lending Office. Initially, the office of each
Bank designated as such in Schedule 1 hereto; and, after
such Bank has provided the Borrower and the Administrative
Agent with written notice of a change in the office, such
other office of such Bank, if any, located within the United
States that will be making or maintaining Base Rate Loans.
Drawdown Date. The date on which any Revolving Credit
Loan or the Term Loan is made or is to be made, and the date
on which any Revolving Credit Loan is converted or continued
in accordance with Section 2.7 or all or any portion of the
Term Loan is converted or continued in accordance with
Section 4.6.
Eligible Assignee. Any of (i) a commercial bank
organized under the laws of the United States, or any State
thereof or the District of Columbia, and having total assets
in excess of $1,000,000,000; (ii) a savings and loan
association or savings bank organized under the laws of the
United States, or any State thereof or the District of
Columbia, and having a net worth of at least $100,000,000,
calculated in accordance with GAAP; (iii) a commercial bank
organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any
such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is
organized or another country which is also a member of the
OECD; (iv) the central bank of any country which is a member
of the OECD; and (v) if, but only if, any Event of Default
has occurred and is continuing, any other bank, insurance
company, commercial finance company or other financial
institution or Person (not being an individual), in each
case approved by the Administrative Agent, such approval not
to be unreasonably withheld.
Employee Benefit Plan. Any employee benefit plan
within the meaning of Section 3(3) of ERISA maintained of
contributed to by the Borrower or any ERISA Affiliate, other
than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. Any judgment, decree, order, law,
license, rule or regulation pertaining to environmental
matters, including those arising under the Resource
Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, the Federal Water Pollution
Control Act, the Federal Clean Air Act, the Toxic Substances
Control Act or any United States, state or local or any
other statute, regulation, ordinance, order or decree
relating to health, safety or the environment.
ERISA. The Employee Retirement Income Security Act of
1974.
ERISA Affiliate. Any Person which is treated as a
single employer with the Borrower under Section 414 of the
Code.
ERISA Reportable Event. A reportable event with
respect to a Guaranteed Pension Plan within the meaning of
Section 4043 of ERISA and the regulations promulgated
thereunder.
Event of Default. See Section 14.1.
FAME Loan Agreement. The Loan Agreement dated as of
June 1, 1995, between the Borrower and the Finance Authority
of Maine.
First Mortgage Bonds. The bonds issued pursuant to the
Mortgage.
General and Refunding Mortgage Indenture. The General
and Refunding Mortgage Indenture and Deed of Trust dated
June 1, 1995, as amended and supplemented as of the Closing
Date, between the Company and Chase Manhattan Bank, as
trustee.
GAAP. (i) When used in Section 11, whether directly or
indirectly through reference to a capitalized term used
therein, means (A) principles that are consistent with the
principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, in effect
for the fiscal year ended on the Balance Sheet Date, and (B)
to the extent consistent with such principles, the
accounting practice of the Borrower reflected in its
financial statements for the year ended on the Balance Sheet
Date, and (ii) when used in general, other than as provided
above, means principles that are (A) consistent with the
principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with
past financial statements of the Borrower adopting the same
principles, provided that in each case referred to in this
definition of "GAAP" a certified public accountant would,
insofar as the use of such accounting principles is
pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in
GAAP) as to financial statements in which such principles
have been properly applied.
Generating Asset Transaction(s). The sale of any
generating, transmission or power marketing resources assets
owned by the Borrower or any of its Subsidiaries or
Affiliates resulting in net cash sale proceeds to the
Borrower of $500,000 or more on an after tax basis.
Guaranteed Pension Plan. Any employee pension benefit
plan within the meaning of Section 3(2) of ERISA maintained
or contributed to by the Borrower or any ERISA Affiliate the
benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Hazardous Substances. Any hazardous waste, as defined
by 42 U.S.C. Section 6903(5), any hazardous substances as
defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) or any
toxic substance, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws.
Indebtedness. 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 lease obligations
that are required to be capitalized on the balance sheet of
such Person in accordance with GAAP, (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 provided 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 agreement shall not constitute
Indebtedness for the purposes of this Credit Agreement.
Interest Payment Date. (i) As to any Base Rate Loan,
the last day of the calendar month with respect to interest
accrued during such calendar month, including, without
limitation, the calendar month which includes the Drawdown
Date of such Base Rate Loan; and (ii) as to any LIBOR Rate
Loan in respect of which the Interest Period is (A) 3 months
or less, the last day of such Interest Period and (B) more
than 3 months, the date that is 3 months from the first day
of such Interest Period and, in addition, the last day of
such Interest Period.
Interest Period. With respect to each Revolving Credit
Loan or all or any relevant portion of the Term Loan, (i)
initially, the period commencing on the Drawdown Date of
such Loan and ending on the last day of one of the periods
set forth below, as selected by the Borrower in a Loan
Request or as otherwise required by the terms of this Credit
Agreement (A) for any Base Rate Loan, the last day of the
calendar month; and (B) for any LIBOR Rate Loan, 1, 2, 3, or
6 months; and (ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Revolving Credit Loan or all or such portion of the
Term Loan and ending on the last day of one of the periods
set forth above, as selected by the Borrower in a Conversion
Request; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a
LIBOR Rate Loan would otherwise end on a day that is
not a LIBOR Business Day, that Interest Period shall be
extended to the next succeeding LIBOR Business 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 LIBOR Business Day;
(b) if any Interest Period with respect to a Base
Rate Loan would end on a day that is not a Business
Day, that Interest Period shall end on the next
succeeding Business Day;
(c) if the Borrower shall fail to give notice as
provided in Section 2.7, the Borrower shall be deemed
to have requested a conversion of the affected LIBOR
Rate Loan to a Base Rate Loan and the continuance of
all Base Rate Loans as Base Rate Loans on the last day
of the then current Interest Period with respect
thereto;
(d) any Interest Period relating to any LIBOR
Rate Loan that begins on the last LIBOR Business 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
LIBOR Business Day of a calendar month; and
(e) no Interest Period shall extend beyond the
Revolving Credit Loan Maturity Date (if comprising a
Revolving Credit Loan) or the Term Loan Maturity Date
(if comprising the Term Loan or a portion thereof).
Interest Rate Protection Agreements. Any interest rate
protection agreement, interest rate swap, interest rate cap
or other interest rate hedge arrangement entered into with
one of the Banks.
Investments. All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of
stock or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of
any guaranties (or other obligations as described under
Indebtedness), or obligations of, any Person. In
determining the aggregate amount of Investments outstanding
at any particular time: (i) the amount of any Investment
represented by a guaranty shall be taken at not less than
the principal amount of the obligations guaranteed and still
outstanding; (ii) there shall be included as an Investment
all interest accrued with respect to Indebtedness
constituting an Investment unless and until such interest is
paid; (iii) there shall be deducted in respect of each such
Investment any amount received as a return of capital (but
only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); (iv)
there shall not be deducted in respect of any Investment any
amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued
interest included as provided in the foregoing clause (ii)
may be deducted when paid; and (v) there shall not be
deducted from the aggregate amount of Investments any
decrease in the value thereof.
Letter of Credit. See Section 5.1.1.
Letter of Credit Application. See Section 5.6.
Letter of Credit Fee. See Section 5.1.1.
Letter of Credit Participation. See Section 5.1.4.
Level I Status. With respect to (i) the Revolving
Credit Loans, the Status that exists on any date if on such
date the Borrower has a long-term senior secured debt or
corporate credit rating (whether or not published) of BBB or
better by S&P and, unless the Borrower is then unrated by
Moody s, Baa1 or better by Moody's, and (ii) the Term Loan,
the Status that exists on any date if on such date the
Borrower has a long-term senior secured debt or corporate
credit rating (whether or not published) of BBB- or better
by S&P and, unless the Borrower is then unrated by Moody's,
Baa2 or better by Moody's.
Level II Status. With respect to (i) the Revolving
Credit Loans, the Status that exists on any date if on such
date Level I Status does not exist, and the Borrower has a
long-term senior secured debt or corporate credit rating
(whether or not published) of BBB- or better by S&P and,
unless the Borrower is then unrated by Moody's, Baa2 or
better by Moody's, and (ii) the Term Loan, the Status that
exists on any date if on such date Level I Status does not
exist, and the Borrower has a long-term senior secured debt
or corporate credit rating (whether or not published) of BB-
or better by S&P and, unless the Borrower is then unrated by
Moody's, Baa3 or better by Moody's.
Level III Status. With respect to (i) the Revolving
Credit Loans, the Status that exists on any date if on such
date neither Level I nor Level II Status exists, and the
Borrower has a long-term senior secured debt or corporate
credit rating (whether or not published) of BB+ or better by
S&P and, unless the Borrower is then unrated by Moody's, Ba1
or better by Moody's, and (ii) the Term Loan, the Status
that exists on any date if on such date neither Level I nor
Level II Status exists, or if the Status is lower than Level
II.
Level IV Status. With respect to the Revolving Credit
Loans, the Status that exists on any date if on such date
neither Level I nor Level II Status nor Level III Status
exists, and the Borrower has a long-term senior secured debt
or corporate credit rating (whether or not published) of BB
or better by S&P and, unless the Borrower is then unrated by
Moody's, Ba2 or better by Moody's.
Level V Status. With respect to the Revolving Credit
Loans, the Status that exists on any date if on such date
neither Level I nor Level II Status nor Level III Status not
Level IV Status exists, and the Borrower has a long-term
senior secured debt or corporate credit rating (whether or
not published) of BB- or better by S&P and, unless the
Borrower is then unrated by Moody's, Ba3 or better by
Moody's.
Level VI Status. With respect to the Revolving Credit
Loans, the Status that exists on any date if on such date
neither Level I nor Level II Status nor Level III Status nor
Level IV nor Level V Status exists.
LIBOR Business Day. Any day on which commercial banks
are open for international business (including dealings in
Dollar deposits) in Boston and London or such other
eurodollar interbank market as may be selected by the
Administrative Agent in its sole discretion acting in good
faith.
LIBOR Lending Office. Initially, the office of each
Bank designated as such in Schedule 1 hereto; thereafter,
and, after such Bank has provided the Borrower and the Agent
with written notice of a change in the office, such other
office of such Bank, that shall be making or maintaining
LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a
LIBOR Rate Loan, the rate of interest equal to (a) the rate
determined by the Agent at which Dollar deposits for such
Interest Period are offered based on information presented
on Telerate Page 3750 as of 11:00 a.m. London time on the
second LIBOR Business Day prior to the first day of such
Interest Period, divided by (b) a number equal to 1.00 minus
the LIBOR Reserve Rate, if applicable.
LIBOR Rate Loans. Revolving Credit Loans and all or
any portion of the Term Loan bearing interest calculated by
reference to the LIBOR Rate plus the Applicable Margin.
LIBOR Reserve Rate. For any day with respect to a
LIBOR Rate Loan, the maximum rate (expressed as a decimal)
at which any Bank subject thereto would be required to
maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or
similar regulations relating to such reserve requirements)
against "Eurocurrency Liabilities" (as that term is used in
Regulation D), if such liabilities were outstanding. The
LIBOR Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in the LIBOR Reserve
Rate.
Loan Documents. This Credit Agreement, the Notes, the
Letter of Credit Applications, the Letters of Credit, the
Security Documents, the Chase Assignment and the Bangor
Energy Intercreditor Agreement.
Loan Request. See Section 2.6.
Loans. The Revolving Credit Loans and the Term Loan.
Majority Banks. As of any date, the Banks holding at
least sixty-six and two-thirds percent (66 2/3%) of the
outstanding principal amount of the Notes on such date; and
if no such principal is outstanding, the Banks whose
aggregate Commitments constitutes at least sixty-six and
two-thirds percent (66 2/3%) of the Total Commitment.
Maximum Drawing Amount. The maximum aggregate amount
that the beneficiaries may at any time draw under
outstanding Letters of Credit, as such aggregate amount may
be reduced from time to time pursuant to the terms of the
Letters of Credit.
Moody's. Moody's Investors Service, Inc. and its
successors.
Mortgage. The Mortgage and Deed of Trust of the
Borrower 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 amended
and supplemented as of the Closing Date.
Multiemployer Plan. Any multiemployer plan within the
meaning of Section 3(37) of ERISA maintained or contributed
to by the Borrower or any ERISA Affiliate.
Notes. The Term Notes and the Revolving Credit Notes.
Obligations. All indebtedness, obligations and
liabilities of the Borrower to any of the Banks and the
Administrative Agent, individually or collectively, existing
on the date of this Credit Agreement or arising thereafter,
direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, in each case arising or
incurred under this Credit Agreement or any of the other
Loan Documents or in respect of any of the Loans made or
Reimbursement Obligations incurred or any of the Notes,
Letter of Credit Application, Letter of Credit or other
instruments at any time evidencing any thereof, or Interest
Rate Protection Agreements.
outstanding. With respect to the Loans, the aggregate
unpaid principal thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created
by Section 4002 of ERISA and any successor entity or
entities having similar responsibilities.
PERC. Penobscot Energy Recovery Company Limited
Partnership, a Maine limited partnership.
PERC Closing Date. The date on which the principal
agreements relating to the PERC Restructuring shall have
been executed by each of the parties thereto.
PERC Contract. The power purchase agreement dated as
of June 21, 1984, as amended, between the Borrower and PERC.
PERC Restructuring. The restructuring of the power
purchase agreement between the Borrower and PERC in
connection with the refinancing by PERC of its waste-to-
energy facility in Orrington, Maine through a series of
agreements among the Borrower, PERC and certain other
parties thereto, pursuant to the terms of which the Borrower
will become obligated to make an initial payment to PERC of
$6,000,000 on the PERC Closing Date.
Permitted Liens. Liens, security interests and other
encumbrances permitted by Section 10.2.
Person. Any individual, corporation, partnership,
trust, unincorporated association, business, or other legal
entity, and any government or any governmental agency or
political subdivision thereof.
Pledge Agreement. The Amended and Restated Bond Pledge
and Security Agreement dated as of the date hereof, executed
by the Borrower in favor of the Administrative Agent for the
benefit of the Banks.
Pollution Control Bonds. The revenue bonds designated
The Industrial Development Authority of the State of New
Hampshire Variable Rate Demand Pollution Control Revenue
Bonds (Bangor Hydro-Electric Company Project) Series 1983.
Preferred Stock. Any and all shares, interest,
participations or other equivalents (however designated) of
capital stock of a corporation, excluding common stock, 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.
Pricing Table:
Revolving Credit Loans Term Loan
| |
| |
Status Applicable Applicable| Applicable Applicable| Applicable Commitment
LIBOR Base Rate LIBOR Base Rate L/C Rate Fee Rate
Margin Margin Margin Margin (per (per annum)
(per (per (per (per annum)
annum) annum) annum) annum)
Level I 0.75% 0.00% 2.00% 1.00 0.75% 0.25%
Level
II 1.25% 0.25% 2.50% 1.50% 1.25% 0.375%
Level
III 1.75% 0.75% 3.50% 1.50% 1.75% 0.50%
Level
IV 2.00% 1.00% 2.00% 0.50%
Level
V 2.50% 1.50% 2.50% 0.625%
Level
VI 3.50% 1.50% 3.50% 0.625%
Rate Schedule Agreement. That certain agreement dated
October 30, 1997 by and between the Borrower and Bangor
Energy Resale, Inc. pursuant to which the Borrower has
agreed to provide energy to Bangor Energy Resale, Inc. in
connection with the servicing of the Unitil Contract.
Record. The grid attached to a Note, or the
continuation of such grid, or any other similar record,
including computer records, maintained by any Bank with
respect to any Loan referred to in such Note.
Register. See Section 19.3.
Reimbursement Obligation. The Borrower's obligation to
reimburse the Administrative Agent and the Banks on account
of any drawing under any Letter of Credit as provided in
Section 5.2.
Related Fund. With respect to any Bank which is a fund
that invests in loans, any other fund that invests in loans
and is managed by the same investment advisor as such Bank
or by an Affiliate of such Bank.
Release. Shall have the meaning specified in the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section Section 9601 et
seq. ("CERCLA") and the term "Disposal" (or "Disposed")
shall have the meaning specified in the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section
Section 6901 et seq. ("RCRA") and regulations promulgated
thereunder; provided, that in the event that either CERCLA
or RCRA is amended so as to broaden the meaning of any term
defined thereby, such broader meaning shall apply as of the
effective date of such amendment and provided further, that
to the extent that the laws of the State of Maine establish
a meaning for "Release" or "Disposal" which is broader than
specified in either CERCLA or RCRA, such broader meaning
shall apply.
Revolving Credit Loan Maturity Date. June 29, 2001.
Revolving Credit Loans. Revolving credit loans made or
to be made by the Banks to the Borrower pursuant to Section
2.
Revolving Credit Note Record. A Record with respect to
a Revolving Credit Note.
Revolving Credit Notes. See Section 2.4.
S & P. Standard & Poor s Ratings Group and its
successors.
Second Mortgage Bonds. The bonds issued pursuant to
the General and Refunding Mortgage Indenture.
Security Documents. The Pledge Agreement, the
Mortgage, the Supplemental Indenture, the Collateral Bonds
and the Bangor Energy Stock Pledge and all other instruments
and documents, required to be executed or delivered pursuant
to any Security Document.
Service Agreement. The Service Agreement dated as of
March 31, 1998 between the Borrower and Bangor Energy
Resale, Inc., as amended.
Settlement. The making or receiving of payments, in
immediately available funds, by the Banks, to the extent
necessary to cause each Bank's actual share of the
outstanding amount of Revolving Credit Loans (after giving
effect to any Loan Request) to be equal to such Bank's
Commitment Percentage of the outstanding amount of such
Revolving Credit Loans (after giving effect to any Loan
Request), in any case where, prior to such event or action,
the actual share is not so equal.
Settlement Amount. See Section 2.9.1.
Settlement Date. (a) The Drawdown Date relating to any
Loan Request, (b) Friday of each week, or if a Friday is not
a Business Day, the Business Day immediately following such
Friday, (c) at the option of the Administrative Agent, on
any Business Day following a day on which the account
officers of the Administrative Agent active upon the
Borrower's account become aware of the existence of an Event
of Default, (d) any Business Day on which the amount of
Revolving Credit Loans outstanding from BKB plus BKB's
Commitment Percentage of the sum of the Maximum Drawing
Amount and any Unpaid Reimbursement Obligations is equal to
or greater than BKB's Commitment Percentage of the Total
Commitment, (e) the Business Day immediately following any
Business Day on which the amount of Revolving Credit Loans
outstanding increases or decreases by more than $500,000 as
compared to the previous Settlement Date, (f) any day on
which any conversion of a Base Rate Loan to a LIBOR Rate
Loan occurs, or (g) any Business Day on which (i) the amount
of outstanding Revolving Credit Loans decreases and (ii) the
amount of the Administrative Agent's Revolving Credit Loans
outstanding equals zero Dollars ($0).
Settling Bank. See Section 2.9.1.
Status. The existence of Level I Status, Level II
Status, Level III Status, Level IV Status, Level V Status or
Level VI Status, as the case may be.
Subsidiary. Any corporation, association, trust, or
other business entity of which the designated parent shall
at any time own directly or indirectly through a Subsidiary
or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
Substantial Part. With respect to any Person, refers
to assets sold, leased or otherwise transferred at any time
on or after January 1, 1997 pursuant to any one or more
transactions (whether or not related) which, in the
aggregate (including any assets sold, leased or otherwise
transferred by any Subsidiary of such Person during such
period), have a fair market value, or yield gross proceeds,
in excess of $5,000,000 in any a calendar year, excluding
any such transaction in the ordinary course of business
pursuant to which equipment is sold and replaced with
equipment having an equivalent or higher value within 30
days after such sale. It is understood that (i) the
transfer of the Unitil Contract pursuant to the Unitil
Contract Assignment shall be disregarded for the purposes of
this definition, but that contract rights and receivables
shall otherwise constitute "assets" for the purposes of this
definition, and (ii) the Generating Asset Transactions shall
be disregarded for the purposes of this definition.
Supplemental Indenture. See Section 12.7.
Telerate Page 3750. The display of interest settlement
rates (commonly known as LIBOR) for Dollar deposits in
London designated as Page 3750 (British Bankers Association
(BBA) LIBOR rates) of the Dow Jones Markets Services (or any
other page that replaces Page 3750 and displays BBA London
interbank settlement rates for Dollar deposits).
Term Loan. The term loan made or to be made by the
Banks to the Borrower on the Closing Date in the aggregate
principal amount of $45,000,000 subject to the conditions
stated in Section 4.1.
Term Loan Exposure. With respect to each Bank, the
amount set forth on Schedule 1 hereto as the amount of such
Bank's commitment to make Term Loans to the Borrower, as the
same may be reduced from time to time; or if such commitment
is terminated pursuant to the provisions hereof, zero.
Term Loan Percentage. With respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's
percentage of the aggregate Term Loan Exposure of all of the
Banks.
Term Loan Maturity Date. June 29, 2000.
Term Notes. See Section 4.2.
Term Note Record. A Record with respect to a Term
Note.
Total Commitment. The sum of the Commitments of the
Banks, as in effect from time to time.
Type. As to any Revolving Credit Loan or all or any
portion of the Term Loan, its nature as a Base Rate Loan or
a LIBOR Rate Loan.
Uniform Customs. With respect to any Letter of Credit,
the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce
Publication No. 500 or any successor version thereto adopted
by the Administrative Agent in the ordinary course of its
business as a letter of credit issuer and in effect at the
time of issuance of such Letter of Credit.
Unitil Contract. The Power Sales Agreement between
Unitil Power Corp. and the Borrower, dated March 26, 1986
and amended by the Amendment to March 26, 1986 Power Sales
Agreement dated April 29, 1993 and the Second Amendment to
Power Sales Agreement dated March 1, 1995, which Unitil
Contract has been assigned by the Borrower to Bangor Energy
Resale, Inc. on or prior to March 31, 1998 pursuant to the
Unitil Contract Assignment.
Unitil Contract Assignment. The Assignment and
Assumption Agreement between the Borrower and Bangor Energy
Resale, Inc., dated as of March 31, 1998, pursuant to which
the Borrower assigned all of its right, title and
obligations under the Unitil Contract to Bangor Energy
Resale, Inc.
Unpaid Reimbursement Obligation. Any Reimbursement
Obligation for which the Borrower does not reimburse the
Administrative Agent and the Banks on the date specified in,
and in accordance with, Section 5.2.
Voting Stock. Stock or similar interests, of any class
or classes (however designated), the holders of which are at
the time entitled, as such holders, to vote for the election
of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or
other business entity involved, whether or not the right so
to vote exists by reason of the happening of a contingency.
Section 1.2. Rules of Interpretation.
(a) A reference to any document or agreement
shall include such document or agreement as amended,
modified or supplemented from time to time in
accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the
plural includes the singular.
(c) A reference to any law includes any amendment
or modification to such law.
(d) A reference to any Person includes its
permitted successors and permitted assigns.
(e) Accounting terms not otherwise defined herein
have the meanings assigned to them by GAAP applied on a
consistent basis by the accounting entity to which they
refer.
(f) The words "include", "includes" and
"including" are not limiting.
(g) All terms not specifically defined herein or
by GAAP, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York,
have the meanings assigned to them therein, with the
term "instrument" being that defined under Article 9 of
the Uniform Commercial Code.
(h) Reference to a particular "Section " refers
to that Section of this Credit Agreement unless
otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and
words of like import shall refer to this Credit
Agreement as a whole and not to any particular Section
or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the
computation of periods of time from a specified date to
a later specified date, the word "from" means "from and
including," the words "to" and "until" each mean "to
but excluding," and the word "through" means "to and
including."
(k) This Credit Agreement and the other Loan
Documents may use several different limitations, tests
or measurements to regulate the same or similar
matters. All such limitations, tests and measurements
are, however, cumulative and are to be performed in
accordance with the terms thereof.
(l) This Credit Agreement and the other Loan
Documents are the result of negotiation among, and have
been reviewed by counsel to, among others, the
Administrative Agent and the Borrower and are the
product of discussions and negotiations among all
parties. Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed
against the Administrative Agent or any of the Banks
merely on account of the Administrative Agent's or any
Bank's involvement in the preparation of such
documents.
Section 2. THE REVOLVING CREDIT FACILITY.
Section 2.1. Commitment to Lend.
Subject to the terms and conditions set forth in this
Credit Agreement, each of the Banks severally agrees to lend
to the Borrower and the Borrower may borrow, repay, and
reborrow from time to time from the Closing Date up to but
not including the Revolving Credit Loan Maturity Date upon
notice by the Borrower to the Administrative Agent given in
accordance with Section 2.6, such sums as are requested by
the Borrower up to a maximum aggregate amount outstanding
(after giving effect to all amounts requested) at any one
time equal to such Bank's Commitment minus such Bank's
Commitment Percentage of the sum of the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations, provided
that the sum of the outstanding amount of the Revolving
Credit Loans (after giving effect to all amounts requested)
plus the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not at any time exceed the Total
Commitment. The Revolving Credit Loans shall be made pro
rata in accordance with each Bank's Commitment Percentage.
Each request for a Revolving Credit Loan hereunder shall
constitute a representation and warranty by the Borrower
that the conditions set forth in Section 12 and Section 13,
in the case of the initial Revolving Credit Loans to be made
on the Closing Date, and Section 13, in the case of all
other Revolving Credit Loans, have been satisfied on the
date of such request.
Section 2.2. Commitment Fee.
The Borrower agrees to pay to the Administrative Agent
for the accounts of the Banks in accordance with their
respective Commitment Percentages a commitment fee
calculated at the Commitment Fee Rate on the average daily
amount during each calendar quarter or portion thereof from
the date hereof to the Revolving Credit Loan Maturity Date
by which the Total Commitment minus the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations
exceeds the outstanding amount of Revolving Credit Loans
during such calendar quarter. The commitment fee shall be
payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the date
hereof, with a final payment on the Revolving Credit
Maturity Date or any earlier date on which the Commitments
shall terminate.
Section 2.3. Reduction of Total Commitment.
The Borrower shall have the right at any time and from
time to time upon five (5) Business Days prior written
notice to the Administrative Agent to reduce by $5,000,000
or in integral multiples of $1,000,000 in excess of
$5,000,000 or terminate entirely the Total Commitment,
whereupon the Commitments of the Banks shall be reduced pro
rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as
the case may be, terminated. Promptly after receiving any
notice of the Borrower delivered pursuant to this Section
2.3, the Administrative Agent will notify the Banks of the
substance thereof. Upon the effective date of any such
reduction or termination, the Borrower shall pay to the
Administrative Agent for the respective accounts of the
Banks the full amount of any commitment fee then accrued on
the amount of the reduction. No reduction or termination of
the Commitments may be reinstated.
Section 2.4. The Revolving Credit Notes.
(a) The Revolving Credit Loans shall be evidenced
by separate amended and restated promissory notes of
the Borrower in substantially the form of Exhibit A
hereto (each a "Revolving Credit Note"), dated as of
the Closing Date or the effective date of any future
assignment made pursuant to Section 19 hereof and
completed with appropriate insertions. One Revolving
Credit Note shall be payable to the order of each Bank
in a principal amount equal to such Bank's Commitment
and representing the obligation of the Borrower to pay
to such Bank such principal amount or, if less, the
outstanding amount of all Revolving Credit Loans made
by such Bank, plus interest accrued thereon, as set
forth below. The Borrower irrevocably authorizes each
Bank to make or cause to be made, at or about the time
of the Drawdown Date of any Revolving Credit Loan or at
the time of receipt of any payment of principal on such
Bank's Revolving Credit Note, an appropriate notation
on such Bank's Revolving Credit Note Record reflecting
the making of such Revolving Credit Loan or (as the
case may be) the receipt of such payment. The
outstanding amount of the Revolving Credit Loans set
forth on such Bank's Revolving Credit Note Record
shall, absent manifest error, be prima facie evidence
of the principal amount thereof owing and unpaid to
such Bank, but the failure to record, or any error in
so recording, any such amount on such Bank's Revolving
Credit Note Record shall not limit or otherwise affect
the obligations of the Borrower hereunder or under any
Revolving Credit Note to make payments of principal of
or interest on any Revolving Credit Note when due.
(b) Upon receipt of an affidavit of an officer of
any Bank as to the loss, theft, destruction or
mutilation of such Bank s Revolving Credit Note, and,
in the case of any such loss, theft, destruction or
mutilation, upon surrender and cancellation of such
Revolving Credit Note, the Borrower will issue, in lieu
thereof, a replacement Revolving Credit Note for such
Bank in the same principal amount thereof and otherwise
of like tenor.
Section 2.5. Interest on Revolving Credit Loans.
Except as otherwise provided in Section 6.10,
(a) Each Base Rate Loan shall bear interest for
the period commencing with the Drawdown Date thereof
and ending on the last day of the Interest Period with
respect thereto at the Base Rate plus the Applicable
Margin.
(b) Each LIBOR Rate Loan shall bear interest for
the period commencing with the Drawdown Date thereof
and ending on the last day of the Interest Period with
respect thereto at the LIBOR Rate plus the Applicable
Margin determined for such Interest Period.
(c) The Borrower promises to pay interest on each
Revolving Credit Loan in arrears on each Interest
Payment Date with respect thereto.
Section 2.6. Requests for Revolving Credit Loans. The
Borrower shall give to the Administrative Agent written
notice in the form of Exhibit B hereto (or telephonic notice
confirmed in a writing in the form of Exhibit B hereto) of
each Revolving Credit Loan requested hereunder (a "Loan
Request") no later than (i) 10:00 a.m.(Boston time) on the
Business Day of the proposed Drawdown Date of any Base Rate
Loan and (ii) 12:00 noon (Boston time) three (3) LIBOR
Business Days prior to the proposed Drawdown Date of any
LIBOR Rate Loan. Each such notice shall specify (A) the
principal amount of the Revolving Credit Loan requested, (B)
the proposed Drawdown Date of such Revolving Credit Loan,
(C) in the case of LIBOR Rate Loans the Interest Period for
such Revolving Credit Loan and (D) the Type of such
Revolving Credit Loan. Promptly upon receipt of any such
notice, the Administrative Agent shall notify each of the
Banks thereof. Each Loan Request shall be irrevocable and
binding on the Borrower and shall obligate the Borrower to
accept the Revolving Credit Loan requested from the Banks on
the proposed Drawdown Date. Each Loan Request shall be in a
minimum aggregate amount of $500,000 or an integral multiple
thereof.
Section 2.7. Conversion Options.
Section 2.7.1. Conversion to Different Type of
Revolving Credit Loan.
The Borrower may elect from time to time to convert any
outstanding Revolving Credit Loan to a Revolving Credit Loan
of another Type, provided that (i) with respect to any such
conversion of a Revolving Credit Loan to a Base Rate Loan,
the Borrower shall give the Administrative Agent at least
two (2) Business Days prior written notice of such election;
(ii) with respect to any such conversion of a Base Rate Loan
to a LIBOR Rate Loan, the Borrower shall give the
Administrative Agent at least three (3) LIBOR Business Days
prior written notice of such election; (iii) with respect to
any such conversion of a LIBOR Rate Loan into a Revolving
Credit Loan of another Type, such conversion shall only be
made on the last day of the Interest Period with respect
thereto and (iv) no Loan may be converted into a LIBOR Rate
Loan when any Default or Event of Default has occurred and
is continuing or if such conversion is not permitted by
Section 2.7.3. On the date on which such conversion is
being made each Bank shall take such action as is necessary
to transfer its Commitment Percentage of such Revolving
Credit Loans to its Domestic Lending Office or its LIBOR
Lending Office, as the case may be. All or any part of
outstanding Revolving Credit Loans of any Type may be
converted into a Revolving Credit Loan of another Type as
provided herein, provided that any partial conversion shall
be in an aggregate principal amount of $500,000 or an
integral multiple thereof. Each Conversion Request relating
to the conversion of a Revolving Credit Loan to a LIBOR Rate
Loan shall be irrevocable by the Borrower.
Section 2.7.2. Continuation of Type of Revolving
Credit Loan.
Any Revolving Credit Loan of any Type may be continued as a
Revolving Credit Loan of the same Type upon the expiration
of an Interest Period with respect thereto by compliance by
the Borrower with the notice provisions contained in Section
2.7.1; provided that no LIBOR Rate Loan may be continued as
such when any Event of Default has occurred and is
continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period
relating thereto ending during the continuance of any Event
of Default of which officers of the Administrative Agent
active upon the Borrower's account have actual knowledge.
In the event that the Borrower fails to provide any such
notice with respect to the continuation of any LIBOR Rate
Loan as such, then such LIBOR Rate Loan shall be
automatically converted to a Base Rate Loan on the last day
of such Interest Period. The Administrative Agent shall
notify the Banks promptly when any such automatic conversion
contemplated by this Section 2.7 is scheduled to occur.
Section 2.7.3. LIBOR Rate Loans.
Any conversion to or from LIBOR Rate Loans shall
be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the
aggregate principal amount of all LIBOR Rate Loans
having the same Interest Period shall not be less than
$500,000 or an integral multiple thereof.
Section 2.8. Funds for Revolving Credit Loan.
Section 2.8.1. Funding Procedures.
Not later than 11:00 a.m. (Boston time) on the
proposed Drawdown Date of any Revolving Credit Loans,
each of the Banks will make available to the
Administrative Agent, at the Administrative Agent's
Head Office, in immediately available funds, the amount
of such Bank's Commitment Percentage of the amount of
the requested Revolving Credit Loans. Upon receipt
from each Bank of such amount, and upon receipt of the
documents required by Section Section 12 and 13 and the
satisfaction of the other conditions set forth therein,
to the extent applicable, the Administrative Agent will
make available to the Borrower the aggregate amount of
such Revolving Credit Loans made available to the
Administrative Agent by the Banks. The failure or
refusal of any Bank to make available to the
Administrative Agent at the aforesaid time and place on
any Drawdown Date the amount of its Commitment
Percentage of the requested Revolving Credit Loans
shall not relieve any other Bank from its several
obligation hereunder to make available to the
Administrative Agent the amount of such other Bank's
Commitment Percentage of any requested Revolving Credit
Loans.
Section 2.8.2. Advances by Administrative
Agent.
The Administrative Agent may, unless notified to
the contrary by any Bank prior to a Drawdown Date,
assume that such Bank has made available to the
Administrative Agent on such Drawdown Date the amount
of such Bank's Commitment Percentage of the Revolving
Credit Loans to be made on such Drawdown Date, and the
Administrative Agent may (but it shall not be required
to), in reliance upon such assumption, make available
to the Borrower a corresponding amount. If any Bank
makes available to the Administrative Agent such amount
on a date after such Drawdown Date, such Bank shall pay
to the Administrative Agent on demand an amount equal
to the product of (i) the average computed for the
period referred to in clause (iii) below, of the
weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the
Administrative Agent during each day included in such
period, times (ii) the amount of such Bank's Commitment
Percentage of such Revolving Credit Loans, times (iii)
a fraction, the numerator of which is the number of
days that elapse from and including such Drawdown Date
to the date on which the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans
shall become immediately available to the
Administrative Agent, and the denominator of which is
365. A statement of the Administrative Agent submitted
to such Bank with respect to any amounts owing under
this paragraph shall be prima facie evidence of the
amount due and owing to the Administrative Agent by
such Bank. If the amount of such Bank's Commitment
Percentage of such Revolving Credit Loans is not made
available to the Administrative Agent by such Bank
within three (3) Business Days following such Drawdown
Date, the Administrative Agent shall be entitled to
recover such amount from the Borrower on demand, with
interest thereon at the rate per annum applicable to
the Revolving Credit Loans made on such Drawdown Date.
Section 2.9. Settlements.
Section 2.9.1. General.
On each Settlement Date, the Administrative Agent
shall, not later than 11:00 a.m. (Boston time), give
telephonic or facsimile notice (i) to the Banks and the
Borrower of the respective outstanding amount of
Revolving Credit Loans made by the Administrative Agent
on behalf of the Banks from the immediately preceding
Settlement Date through the close of business on the
prior day and the amount of any LIBOR Rate Loans to be
made (following the giving of notice pursuant to
Section 2.6.1(ii)) on such date pursuant to a Loan
Request and (ii) to the Banks of the amount (a
"Settlement Amount") that each Bank (a "Settling Bank")
shall pay to effect a Settlement of any Revolving
Credit Loan. A statement of the Administrative Agent
submitted to the Banks and the Borrower or to the Banks
with respect to any amounts owing under this Section
2.9 shall be prima facie evidence of the amount due and
owing. Each Settling Bank shall, not later than 3:00
p.m. (Boston time) on such Settlement Date, effect a
wire transfer of immediately available funds to the
Administrative Agent in the amount of the Settlement
Amount for such Settling Bank. All funds advanced by
any Bank as a Settling Bank pursuant to this Section
2.9 shall for all purposes be treated as a Revolving
Credit Loan made by such Settling Bank to the Borrower
and all funds received by any Bank pursuant to this
Section 2.9 shall for all purposes be treated as
repayment of amounts owed with respect to Revolving
Credit Loans made by such Bank. In the event that any
bankruptcy, reorganization, liquidation, receivership
or similar cases or proceedings in which the Borrower
is a debtor prevent a Settling Bank from making any
Revolving Credit Loan to effect a Settlement as
contemplated hereby, such Settling Bank will make such
dispositions and arrangements with the other Banks with
respect to such Revolving Credit Loans, either by way
of purchase of participations, distribution, pro tanto
assignment of claims, subrogation or otherwise as shall
result in each Bank's share of the outstanding
Revolving Credit Loans being equal, as nearly as may
be, to such Bank's Commitment Percentage of the
outstanding amount of the Revolving Credit Loans.
Section 2.9.2. Failure to Make Funds Available.
The Administrative Agent may, unless notified to
the contrary by any Settling Bank prior to a Settlement
Date, assume that such Settling Bank has made or will
make available to the Administrative Agent on such
Settlement Date the amount of such Settling Bank's
Settlement Amount, and the Administrative Agent may
(but it shall not be required to), in reliance upon
such assumption, make available to the Borrower a
corresponding amount. If any Settling Bank makes
available to the Administrative Agent such amount on a
date after such Settlement Date, such Settling Bank
shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the average computed
for the period referred to in clause (iii) below, of
the weighted average interest rate paid by the
Administrative Agent for federal funds acquired by the
Administrative Agent during each day included in such
period, times (ii) the amount of such Settlement
Amount, times (iii) a fraction, the numerator of which
is the number of days that elapse from and including
such Settlement Date to the date on which the amount of
such Settlement Amount shall become immediately
available to the Administrative Agent, and the
denominator of which is 360. A statement of the
Administrative Agent submitted to such Settling Bank
with respect to any amounts owing under this Section
2.9.2 shall be prima facie evidence of the amount due
and owing to the Administrative Agent by such Settling
Bank. If such Settling Bank's Settlement Amount is not
made available to the Administrative Agent by such
Settling Bank within three (3) Business Days following
such Settlement Date, the Administrative Agent shall be
entitled to recover such amount from the Borrower on
demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans as of such
Settlement Date.
Section 2.9.3. No Effect on Other Banks.
The failure or refusal of any Settling Bank to
make available to the Administrative Agent at the
aforesaid time and place on any Settlement Date the
amount of such Settling Bank's Settlement Amount shall
not (i) relieve any other Settling Bank from its
several obligations hereunder to make available to the
Administrative Agent the amount of such other Settling
Bank's Settlement Amount or (ii) impose upon any Bank,
other than the Settling Bank so failing or refusing,
any liability with respect to such failure or refusal
or otherwise increase the Commitment of such other
Bank.
Section 3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
Section 3.1. Maturity.
The Borrower promises to pay on the Revolving Credit
Loan Maturity Date, and there shall become absolutely due
and payable on the Revolving Credit Loan Maturity Date, all
of the Revolving Credit Loans outstanding on such date,
together with any and all accrued and unpaid interest
thereon.
Section 3.2. Mandatory Repayments of Revolving Credit Loans.
If at any time the sum of the outstanding amount of the
Revolving Credit Loans, the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations exceeds the Total
Commitment, then the Borrower shall immediately pay the
amount of such excess to the Administrative Agent for the
respective accounts of the Banks for application: first, to
any Unpaid Reimbursement Obligations; second, to the
Revolving Credit Loans; and third, to provide to the
Administrative Agent cash collateral for Reimbursement
Obligations as contemplated by Section 5.2(b) and (c). Each
payment of any Unpaid Reimbursement Obligations or
prepayment of Revolving Credit Loans shall be allocated
among the Banks, in proportion, as nearly as practicable, to
each Reimbursement Obligation or (as the case may be) the
respective unpaid principal amount of each Bank's Revolving
Credit Note, with adjustments to the extent practicable to
equalize any prior payments or repayments not exactly in
proportion.
Section 3.3. Optional Repayments of Revolving Credit
Loans.
The Borrower shall have the right, at its election, to repay
the outstanding amount of the Revolving Credit Loans, as a
whole or in part, without premium or penalty (but subject to
Section 6.9), provided that the Borrower shall give the
Administrative Agent, no later than 10:00 a.m., Boston time,
at least five (5) Business Days prior written notice of any
proposed prepayment pursuant to this Section 3.3 of Base
Rate Loans, and five (5) LIBOR Business Days notice of any
proposed prepayment pursuant to this Section 3.3 of LIBOR
Rate Loans, in each case specifying the proposed date of
prepayment of Revolving Credit Loans and the principal
amount to be prepaid. Each such partial prepayment of the
Revolving Credit Loans shall be in an integral multiple of
$500,000, shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of prepayment
and shall be applied, in the absence of instruction by the
Borrower, first to the principal of Base Rate Loans and then
to the principal of LIBOR Rate Loans, at the Administrative
Agent's option. Each partial prepayment shall be allocated
among the Banks, in proportion, as nearly as practicable, to
the respective unpaid principal amount of each Bank's
Revolving Credit Note, with adjustments to the extent
practicable to equalize any prior repayments not exactly in
proportion.
Section 4. THE TERM LOAN.
Section 4.1. Commitment to Lend.
Subject to the terms and conditions set forth in this
Credit Agreement, each Bank agrees to lend to the Borrower
on the Closing Date the amount listed on Schedule 1 hereto
of the principal amount of $45,000,000, provided that if the
PERC Closing Date shall not have occurred on or prior to the
Closing Date, $6,000,000 of such amount will be withheld and
will be provided to the Borrower on the PERC Closing Date,
provided that the Administrative Agent receives evidence
that the PERC Restructuring will be on terms substantially
the same as those set forth in the Borrower s 1997 annual
report, and provided further that the PERC Closing Date will
occur no later than December 31, 1998. If the PERC
Restructuring has not occurred on such terms by December 31,
1998, the principal amount stated above will be
automatically reduced to $39,000,000.
Section 4.2. The Term Notes.
(a) The Term Loan shall be evidenced by separate
amended and restated promissory notes of the Borrower
in substantially the form of Exhibit C hereto (each a
"Term Note"), dated the Closing Date or the effective
date of any future assignment made pursuant to Section
19 hereof and completed with appropriate insertions.
One Term Note shall be payable to the order of each
Bank in a principal amount equal to such Bank's Term
Loan Exposure set forth on Schedule 1 and representing
the obligation of the Borrower to pay to such Bank such
principal amount. The Borrower irrevocably authorizes
each Bank to make or cause to be made a notation on
such Bank's Term Note Record reflecting the original
principal amount of such Bank's Term Loan Exposure and,
at or about the time of such Bank's receipt of any
principal payment on such Bank's Term Note, an
appropriate notation on such Bank's Term Note Record
reflecting such payment. The aggregate unpaid amount
set forth on such Bank's Term Note Record shall, absent
manifest error, be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank,
but the failure to record, or any error in so
recording, any such amount on such Bank's Term Note
Record shall not affect the obligations of the Borrower
hereunder or under any Term Note to make payments of
principal of and interest on any Term Note when due.
Notwithstanding the foregoing, the final principal
payment shall be adjusted to reflect any amount not
advanced to the Borrower.
(b) Upon receipt of an affidavit of an officer of
any Bank as to the loss, theft, destruction or
mutilation of such Bank's Term Note, and, in the case
of any such loss, theft, destruction or mutilation,
upon surrender and cancellation of such Term Note, the
Borrower will issue, in lieu thereof, a replacement
Term Note for such Bank in the same principal amount
thereof and otherwise of like tenor.
Section 4.3. Schedule of Installment Payments of
Principal of Term Loan.
The Borrower promises to pay to the Administrative Agent for
the account of the Banks the principal amount of the Term
Loan in three (3) consecutive payments of $3,000,000, such
installments to be due and payable on September 30, 1999,
December 31, 1999, and March 31, 2000, with a final payment
on the Term Loan Maturity Date in an amount equal to the
unpaid balance of the Term Loan.
Section 4.4. Optional Prepayment of Term Loan.
The Borrower shall have the right at any time to prepay
the Term Notes on or before the Term Loan Maturity Date, as
a whole, or in part, upon not less than three (3) Business
Days prior written notice to the Administrative Agent,
without premium or penalty, provided that (i) each partial
prepayment shall be in the principal amount of $5,000,000 or
in integral multiples of $1,000,000 in excess thereof, and
(ii) each partial prepayment shall be allocated among the
Banks, in proportion, as nearly as practicable, to the
respective outstanding amount of each Bank's Term Note, with
adjustments to the extent practicable to equalize any prior
prepayments not exactly in proportion. Any prepayment of
principal of the Term Loan shall include all interest
accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the
Term Loan in the inverse order of maturity. No amount
repaid with respect to the Term Loan may be reborrowed.
Section 4.5. Mandatory Prepayments of Term Loan. Upon
the closing of a Generating Asset Transaction, the net cash
proceeds thereof received by the Borrower or any of its
Subsidiaries shall be used to prepay the Term Loan.
Any prepayment of principal of the Term Loan shall include
all interest accrued to the date of prepayment and shall be
applied against the scheduled installments of principal due
on the Term Loan in the inverse order of maturity.
Section 4.6. Interest on Term Loan.
Section 4.6.1. Interest Rates.
Except as otherwise provided in Section 6.10, the
Term Loan shall bear interest during each Interest
Period relating to all or any portion of the Term Loan
at the following rates, provided that no interest shall
accrue on the $6,000,000 holdback until the Banks have
advanced such amount:
(a) To the extent that all or any portion of
the Term Loan bears interest during such Interest
Period at the Base Rate, the Term Loan or such
portion shall bear interest during such Interest
Period at the Base Rate plus the Applicable
Margin.
(b) To the extent that all or any portion of
the Term Loan bears interest during such Interest
Period at the LIBOR Rate, the Term Loan or such
portion shall bear interest during such Interest
Period at the LIBOR Rate plus the Applicable
Margin.
The Borrower promises to pay interest on the Term Loan
or any portion thereof outstanding during each Interest
Period in arrears on each Interest Payment Date
applicable to such Interest Period.
Section 4.6.2. Notification by Borrower.
The Borrower shall notify the Administrative
Agent, such notice to be irrevocable, at least three
(3) LIBOR Business Days prior to the Drawdown Date of
the Term Loan if all or any portion of the Term Loan is
to bear interest at the LIBOR Rate. After the Term
Loan has been made, the provisions of Section 2.7 shall
apply mutatis mutandis with respect to all or any
portion of the Term Loan so that the Borrower may have
the same interest rate options with respect to all or
any portion of the Term Loan as it would be entitled to
with respect to the Revolving Credit Loans.
Section 4.6.3. Amounts, etc.
Any portion of the Term Loan bearing interest at
the LIBOR Rate relating to any Interest Period shall be
in the amount of $500,000 or an integral multiple
thereof. No Interest Period relating to the Term Loan
or any portion thereof bearing interest at the LIBOR
Rate shall extend beyond the date on which a regularly
scheduled installment payment of the principal of the
Term Loan is to be made unless a portion of the Term
Loan at least equal to the amount of such installment
payment has an Interest Period ending on such date or
is then bearing interest at the Base Rate.
Section 5. LETTERS OF CREDIT.
Section 5.1. Letter of Credit Commitments.
Section 5.1.1. Commitment to Issue Letters of
Credit.
Subject to the terms and conditions hereof and the
execution and delivery by the Borrower of a letter of credit
application on the Administrative Agent's customary form (a
"Letter of Credit Application"), the Administrative Agent on
behalf of the Banks and in reliance upon the agreement of
the Banks set forth in Section 5.1.4 and upon the
representations and warranties of the Borrower contained
herein, agrees, in its individual capacity, to issue, extend
and renew for the account of the Borrower one or more
standby or documentary letters of credit (individually, a
"Letter of Credit"), in such form as may be requested from
time to time by the Borrower and agreed to by the
Administrative Agent; provided, however, that, after giving
effect to such request, (a) the sum of the aggregate Maximum
Drawing Amount and all Unpaid Reimbursement Obligations
shall not exceed $15,000,000 at any one time and (b) the sum
of (i) the Maximum Drawing Amount on all Letters of Credit,
(ii) all Unpaid Reimbursement Obligations, and (iii) the
amount of all Revolving Credit Loans outstanding shall not
exceed the Total Commitment. Any Letter of Credit requested
by the Borrower hereunder shall not be required to be issued
by the Administrative Agent earlier than (x) three Business
Days after its receipt of a Letter of Credit Application
therefor in the case of Letters of Credit issued in support
of the Pollution Control Revenue Bonds or (y) one Business
Day after its receipt of a Letter of Credit Application
therefor in the case of Letters of Credit issued in
connection with fuel hedge contracts, and all such other
certificates, documents and other papers and information
relating thereto.
Section 5.1.2. Letter of Credit Applications.
Each Letter of Credit Application shall be
completed to the satisfaction of the Administrative
Agent. In the event that any provision of any Letter
of Credit Application shall be inconsistent with any
provision of this Credit Agreement, then the provisions
of this Credit Agreement shall, to the extent of any
such inconsistency, govern.
Section 5.1.3. Terms of Letters of Credit.
Each Letter of Credit issued, extended or renewed
hereunder shall, among other things, (i) provide for
the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when
accompanied by the documents described therein, and
(ii) have an expiry date no later than the Revolving
Credit Loan Maturity Date. Each Letter of Credit so
issued, extended or renewed shall be subject to the
Uniform Customs.
Section 5.1.4. Reimbursement Obligations of
Banks.
Each Bank severally agrees that it shall be
absolutely liable, without regard to the occurrence of
any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Bank's
Commitment Percentage, to reimburse the Administrative
Agent on demand for the amount of each draft paid by
the Administrative Agent under each Letter of Credit to
the extent that such amount is not reimbursed by the
Borrower pursuant to Section 5.2 (such agreement for a
Bank being called herein the "Letter of Credit
Participation" of such Bank).
Section 5.1.5. Participations of Banks.
Each such payment made by a Bank shall be treated
as the purchase by such Bank of a participating
interest in the Borrower's Reimbursement Obligation
under Section 5.2 in an amount equal to such payment.
Each Bank shall share in accordance with its
participating interest in any interest which accrues
pursuant to Section 5.2.
Section 5.2. Reimbursement Obligation of the
Borrower.
In order to induce the Administrative Agent to issue,
extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse
or pay to the Administrative Agent, for the account of the
Administrative Agent or (as the case may be) the Banks, with
respect to each Letter of Credit issued, extended or renewed
by the Administrative Agent hereunder,
(a) except as otherwise expressly provided in
Section 5.2(b) and (c), and upon notice thereof from
the Administrative Agent, on each date that any draft
presented under such Letter of Credit is honored by the
Administrative Agent, or the Administrative Agent
otherwise makes a payment with respect thereto, (i) the
amount paid by the Administrative Agent under or with
respect to such Letter of Credit, and (ii) the amount
of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Administrative Agent or any
Bank in connection with any payment made by the
Administrative Agent or any Bank under, or with respect
to, such Letter of Credit,
(b) upon the reduction (but not termination) of
the Total Commitment to an amount less than the Maximum
Drawing Amount, an amount equal to such difference,
which amount shall be held by the Administrative Agent
for the benefit of the Banks and the Administrative
Agent as cash collateral for all Reimbursement
Obligations, and
(c) upon the termination of the Total Commitment,
or the acceleration of the Reimbursement Obligations
with respect to all Letters of Credit in accordance
with Section 14, an amount equal to the then Maximum
Drawing Amount on all Letters of Credit, which amount
shall be held by the Administrative Agent for the
benefit of the Banks and the Administrative Agent as
cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Administrative Agent
at the Administrative Agent's Head Office in immediately
available funds. Interest on any and all amounts remaining
unpaid by the Borrower under this Section 5.2 at any time
from the date such amounts become due and payable (whether
as stated in this Section 5.2, by acceleration or otherwise)
until payment in full (whether before or after judgment)
shall be payable to the Administrative Agent on demand at
the rate specified in Section 6.10 for overdue principal on
the Revolving Credit Loans.
Section 5.3. Letter of Credit Payments.
If any draft shall be presented or other demand for payment
shall be made under any Letter of Credit, the Administrative
Agent shall promptly notify the Borrower of the date and
amount of the draft presented or demand for payment and of
the date and time when it expects to pay such draft or honor
such demand for payment. If the Borrower fails to reimburse
the Administrative Agent as provided in Section 5.2 on or
before the date that such draft is paid or other payment is
made by the Administrative Agent, the Administrative Agent
may at any time thereafter notify the Banks of the amount of
any such Unpaid Reimbursement Obligation. No later than
3:00 p.m. (Boston time) on the Business Day next following
the receipt of such notice, each Bank shall make available
to the Administrative Agent, at the Administrative Agent's
Head Office, in immediately available funds, such Bank's
Commitment Percentage of such Unpaid Reimbursement
Obligation, together with an amount equal to the product of
(i) the average, computed for the period referred to in
clause (iii) below, of the weighted average interest rate
paid by the Administrative Agent for federal funds acquired
by the Administrative Agent during each day included in such
period, times (ii) the amount equal to such Bank's
Commitment Percentage of such Unpaid Reimbursement
Obligation, times (iii) a fraction, the numerator of which
is the number of days that elapse from and including the
date the Administrative Agent paid the draft presented for
honor or otherwise made payment to the date on which such
Bank's Commitment Percentage of such Unpaid Reimbursement
obligation shall become immediately available to the
Administrative Agent, and the denominator of which is 360.
The responsibility of the Administrative Agent to the
Borrower and the Banks shall be only to determine that the
documents (including each draft) delivered under each Letter
of Credit in connection with such presentment shall be in
conformity in all material respects with such Letter of
Credit.
Section 5.4. Obligations Absolute.
The Borrower's obligations under this Section 5 shall be
absolute and unconditional under any and all circumstances
and irrespective of the occurrence of any Default or Event
of Default or any condition precedent whatsoever or any
setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Administrative
Agent, any Bank or any beneficiary of a Letter of Credit.
The Borrower further agrees with the Administrative Agent
and the Banks that the Administrative Agent and the Banks
shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 5.2 shall not be
affected by, among other things, the validity or genuineness
of documents or of any endorsements thereon, even if such
documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or
among the Borrower, the beneficiary of any Letter of Credit
or any financing institution or other party to which any
Letter of Credit may be transferred or any claims or
defenses whatsoever of the Borrower against the beneficiary
of any Letter of Credit or any such transferee. The
Administrative Agent and the Banks 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
to the extent resulting from the gross negligence or willful
misconduct on the part of the Administrative Agent or any of
the Banks. The Borrower agrees that any action taken or
omitted by the Administrative Agent or any Bank under or in
connection with each Letter of Credit and the related drafts
and documents, if done in good faith, shall be binding upon
the Borrower and shall not result in any liability on the
part of the Administrative Agent or any Bank to the
Borrower, except to the extent resulting from the gross
negligence or willful misconduct on the part of the
Administrative Agent or any of the Banks.
Section 5.5. Reliance by Issuer.
To the extent not inconsistent with Section 5.4, the
Administrative Agent shall be entitled to rely, and shall be
fully protected in relying upon, any Letter of Credit,
draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document
believed by it in good faith 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,
independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action
under this Credit Agreement unless it shall first have
received such advice or concurrence of the Majority Banks as
it reasonably deems appropriate or it shall first be
indemnified to its reasonable 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 this Credit Agreement 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 the
Banks and all future holders of the Revolving Credit Notes
or of a Letter of Credit Participation.
Section 5.6. Letter of Credit Fee.
The Borrower shall, on the date of issuance or any extension
or renewal of any Letter of Credit pay a fee (in each case,
a "Letter of Credit Fee") to the Administrative Agent (i) in
respect of each standby Letter of Credit an amount equal to
the Applicable L/C Rate of the face amount of such standby
Letter of Credit, plus an amount equal to one-eighth percent
(1/8%) per annum of the face amount of such standby Letter
of Credit which shall be for the account of the
Administrative Agent, as a fronting fee, and the balance of
which Letter of Credit Fee shall be for the accounts of the
Banks in accordance with their respective Commitment
Percentages. In respect of each Letter of Credit, the
Borrower shall also pay to the Administrative Agent for the
Administrative Agent's own account, at such other time or
times as such charges are customarily made by the
Administrative Agent, the Administrative Agent's customary
issuance, amendment, negotiation or document examination and
other administrative fees as in effect from time to time.
Section 5.7. Letter of Credit Standard of Care. The
Borrower agrees that any action taken or omitted by the
Administrative Agent under or in connection with any Letter
of Credit or the related drafts or documents, if done in the
absence of gross negligence or 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 Borrower and shall not result in any
liability of the Administrative Agent to the Borrower.
Section 6. CERTAIN GENERAL PROVISIONS.
Section 6.1. Fees.
The Borrower agrees to pay to the Administrative Agent, for
the account of the Administrative Agent and the
Documentation Agent, all fees at the times and in the
amounts set forth the fee letter dated June 1, 1998 among
the Borrower, the Administrative Agent, the Documentation
Agent and BancBoston Securities Inc. (the "Fee Letter").
Section 6.2. Funds for Payments.
Section 6.2.1. Payments to Administrative
Agent.
All payments of principal, interest, Reimbursement
Obligations, commitment fees, Letter of Credit Fees and
any other amounts due hereunder or under any of the
other Loan Documents shall be made to the
Administrative Agent, for the respective accounts of
the Banks and the Administrative Agent, at the
Administrative Agent's Head Office or at such other
location in the Boston, Massachusetts, area that the
Administrative Agent may from time to time designate in
a notice to the Borrower, in each case in immediately
available funds.
Section 6.2.2. No Offset, etc.
All payments by the Borrower hereunder and under
any of the other Loan Documents shall be made without
recoupment, setoff or counterclaim and free and clear
of and without deduction for any income, stamp or other
taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, now or hereafter imposed,
levied or 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
Administrative Agent or such Bank is organized or any
political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by
law to make such deduction or withholding. If any such
obligation is imposed upon the Borrower with respect to
any amount payable by it hereunder or under any of the
other Loan Documents, the Borrower will pay to the
Administrative Agent, for the account of the Banks or
(as the case may be) the Administrative Agent, on the
date on which such amount is due and payable hereunder
or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the
Banks or the Administrative Agent to receive the same
net amount which the Banks or the Administrative Agent
would have received on such due date had no such
obligation been imposed upon the Borrower. The
Borrower will deliver promptly to the Administrative
Agent, to the extent available, certificates or other
valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by the
Borrower hereunder or under such other Loan Document,
provided however that the foregoing obligation to pay
such additional amounts shall not apply:
(i) to any payment to a Bank if such Bank is
not, on the date hereof (or on the date it becomes
a Bank under this Agreement) and on the date of
any change in the lending office of such Bank
identified after its execution, entitled by virtue
of its status as a non-resident alien to submit
either a Form 1001 (relating to such Bank and
entitling it to a complete exemption from
withholding on all interest to be received by it
hereunder in respect of the Loans) or Form 4224
(relating to all interest to be received by such
Bank hereunder in respect of Loans) of the U.S.
Department of Treasury, or
(ii) to any item referred to in the preceding
sentence that would not have been imposed but for
the failure by such Bank to comply with applicable
certification, information, documentation or other
reporting requirements concerning the nationality,
residence, identity or connections of such Bank
with the United States if such compliance is
required by statute or regulation of the United
States as a precondition to relief or exemption
from such item.
Section 6.3. Computations.
All computations of interest on the Loans and of commitment
fees, Letter of Credit Fees or other fees shall, unless
otherwise expressly provided herein, be calculated on the
basis of a 360-day year for the actual days elapsed, and all
computations of interest on any Base Rate Loan shall be
calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed. Except as
otherwise provided in the definition of the term "Interest
Period" with respect to LIBOR Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for
such payment shall be extended to the next succeeding
Business Day, and interest shall accrue during such
extension. The outstanding amount of the Loans as reflected
on the Revolving Credit Note Records and the Term Note
Records from time to time shall, absent manifest error, be
considered correct and binding on the Borrower unless within
five (5) Business Days after receipt of any notice by the
Administrative Agent or any of the Banks of such outstanding
amount, the Administrative Agent or such Bank shall notify
the Borrower to the contrary.
Section 6.4. Inability to Determine LIBOR
Rate.
In the event, prior to the commencement of any Interest
Period relating to any LIBOR Rate Loan, the Administrative
Agent shall determine or be notified by the Majority Banks
that adequate and reasonable methods do not exist for
ascertaining the LIBOR Rate that would otherwise determine
the rate of interest to be applicable to any LIBOR Rate Loan
during any Interest Period, the Administrative Agent shall
forthwith give notice of such determination (which shall be
conclusive and binding on the Borrower and the Banks) to the
Borrower and the Banks. In such event (i) any Loan Request
or Conversion Request with respect to LIBOR Rate Loans shall
be automatically withdrawn and shall be deemed a request for
Base Rate Loans, (ii) each LIBOR Rate Loan will
automatically, on the last day of the then current Interest
Period relating thereto, become a Base Rate Loan, and (iii)
the obligations of the Banks to make LIBOR Rate Loans shall
be suspended until the Administrative Agent determines that
the circumstances giving rise to such suspension no longer
exist, whereupon the Administrative Agent shall so notify
the Borrower and the Banks.
Section 6.5. Illegality.
Notwithstanding any other provisions herein, if subsequent
to the Closing Date, the adoption of or change in any
present or future law, regulation, treaty or directive or in
the interpretation or application thereof shall make it
unlawful for any Bank to make or maintain LIBOR Rate Loans,
such Bank shall forthwith give notice of such circumstances
to the Borrower and the other Banks and thereupon (i) the
commitment of such Bank to make LIBOR Rate Loans or convert
Loans of another Type to LIBOR Rate Loans shall forthwith be
suspended and (ii) such Bank's Revolving Credit Loans then
outstanding as LIBOR Rate Loans, if any, shall be converted
automatically to Base Rate Loans on the last day of each
Interest Period applicable to such LIBOR Rate Loans or
within such earlier period as may be required by law. The
Borrower hereby agrees promptly to pay the Administrative
Agent for the account of such Bank, upon demand by such
Bank, any additional amounts as may be required pursuant to
Section 6.9.
Section 6.6. Additional Costs, etc.
If subsequent to the Closing Date, the adoption of or change
in any present or future applicable law, which expression,
as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or
official charged with the administration or the
interpretation thereof and requests, directives,
instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Bank or the
Administrative Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force
of law), shall:
(a) subject any Bank or the Administrative Agent
to any tax, levy, impost, duty, charge, fee, deduction
or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, any Letters
of Credit, such Bank's Revolving Credit Note or Term
Note, such Bank s Commitment or the Loans (other than
taxes based upon or measured by the income or profits
of such Bank or the Administrative Agent or any
franchise tax imposed by such Bank s or the
Administrative Agent s jurisdiction of incorporation or
organization, or the location of its lending office,
hereinafter referred to as "Income Taxes"), or
(b) materially change the basis of taxation
(except for changes in Income Taxes) of payments to any
Bank of the principal of or the interest on its Notes
or any other amounts payable to any Bank or the
Administrative Agent under this Credit Agreement or any
of the other Loan Documents, or
(c) impose or increase or render applicable
(other than to the extent specifically provided for
elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital
adequacy or other similar requirements (whether or not
having the force of law) against assets held by, or
deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an
office of any Bank, or
(d) impose on any Bank or the Administrative
Agent any other conditions or requirements with respect
to this Credit Agreement, the other Loan Documents, any
Letters of Credit, or such Bank's Notes, and the result
of any of the foregoing is
(i) to increase the cost to any Bank of
making, funding, issuing, renewing, extending or
maintaining such Bank's Notes or any Letter of
Credit, or
(ii) to reduce the amount of principal,
interest, Reimbursement Obligation or other amount
payable to such Bank or the Administrative Agent
hereunder on account of such Bank's Notes or any
Letter of Credit, or
(iii) to require such Bank or the
Administrative Agent to make any payment or to
forego any interest or Reimbursement Obligation or
other sum payable hereunder, the amount of which
payment or foregone interest or Reimbursement
Obligation or other sum is calculated by reference
to the gross amount of any sum receivable or
deemed received by such Bank or the Administrative
Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand
made by such Bank or (as the case may be) the Administrative
Agent at any time and from time to time and as often as the
occasion therefor may arise, pay to such Bank or the
Administrative Agent such additional amounts as will be
sufficient to compensate such Bank or the Administrative
Agent for such additional cost, reduction, payment or
foregone interest or Reimbursement Obligation or other sum.
Section 6.7. Capital Adequacy.
If after the date hereof any Bank determines that (i) the
adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for
banks or bank holding companies or any change in the
interpretation or application thereof by a court or
governmental authority with appropriate jurisdiction, in
each case subsequent to the Closing Date, or (ii) compliance
by such Bank or any corporation controlling such Bank with
any such adoption of or change in, law, governmental rule,
regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding
capital adequacy, has the effect of reducing the return on
such Bank's Notes to a level below that which such Bank
could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's then
existing policies with respect to capital adequacy and
assuming full utilization of such entity's capital) by any
amount deemed by such Bank to be material, then such Bank
may notify the Borrower of such fact. To the extent that
the amount of such reduction in the return on capital is not
reflected in the Base Rate, the Borrower and such Bank shall
thereafter attempt to negotiate in good faith, within thirty
(30) days of the day on which the Borrower receives such
notice, an adjustment payable hereunder that will adequately
compensate such Bank in light of these circumstances. If
the Borrower and such Bank are unable to agree to such
adjustment within thirty (30) days of the date on which the
Borrower receives such notice, then commencing on the date
of such notice (but not earlier than the effective date of
any such increased capital requirement), the fees payable
hereunder shall increase by an amount that will, in such
Bank's reasonable determination, provide adequate
compensation. Each Bank shall allocate such cost increases
among its customers in good faith and on an equitable basis.
Section 6.8. Certificate.
Each Bank shall notify the Borrower of any event entitling
such Bank to compensation under Section 6.6 or 6.7 as
promptly as practicable, but in any event within 60 days,
after such Bank obtains actual knowledge thereof; provided
that (i) if any Bank fails to give such notice within
60 days after it obtains actual knowledge of such an event,
such Bank shall, with respect to compensation payable
pursuant to Section 6.6 or 6.7 in respect of any costs
resulting form such event, only be entitled to payment under
such Section 6.6 or 6.7, as applicable, for costs incurred
from and after the date 60 days prior to the date that such
Bank does give such notice and (ii) each Bank will designate
a different lending office for the Loans of such Bank if
such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole
opinion of such Bank, be disadvantageous to such Bank. A
certificate setting forth any additional amounts payable
pursuant to Section 6.6 or 6.7 and a brief explanation of
such amounts which are due, submitted by any Bank or the
Agent to the Borrower, shall be conclusive, absent manifest
error, that such amounts are due and owing.
Section 6.9. Reasonable Efforts to Mitigate.
Each Bank agrees that as promptly as practicable after it
becomes aware of the occurrence of an event or the existence
of a condition that would cause it to be affected under
Section Section 6.4, 6.5, 6.6 or 6.7, such Bank will give
notice thereof to the Borrower, with a copy to the
Administrative Agent, and, to the extent so requested by the
Borrower and not inconsistent with such Bank's internal
policies, such Bank shall use reasonable efforts and take
such actions as are reasonably appropriate if as a result
thereof the additional moneys which would otherwise be
required to be paid to such Bank pursuant to such subSection
s would be materially reduced, or the illegality or other
adverse circumstances which would otherwise require a
conversion of such Loans or result in the inability to make
such Loans pursuant to such Section s would cease to exist,
and in each case if, as determined by such Bank in its sole
discretion, the taking such actions would not adversely
affect such Loans or such Bank or otherwise be
disadvantageous to such Bank. To the extent practicable and
applicable, each Bank shall allocate such cost increases
among its customers in good faith and on an equitable basis.
Section 6.10. Indemnity.
The Borrower agrees to indemnify each Bank and to hold each
Bank harmless from and against any loss, cost or expense
(including, such loss or expense associated with terminating
any interest rate protection arrangements entered into
between the Borrower and any Bank) that such Bank may
sustain or incur as a consequence of (i) default by the
Borrower in payment of the principal amount of or any
interest on any LIBOR Rate Loans as and when due and
payable, including 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 LIBOR Rate Loans,
(ii) default by the Borrower in making a borrowing or
conversion after the Borrower has given (or is deemed to
have given) a Loan Request, notice (in the case of all or
any portion of the Term Loan pursuant to Section 4.6.2) or a
Conversion Request relating thereto in accordance with
Section 2.6 or Section 2.7 (other than as a result of the
operation of Section 6.4) or (iii) the making of any payment
of a LIBOR Rate Loan or the making of any conversion of any
such Loan to a Base Rate Loan on a day that is not the last
day of the applicable Interest Period with respect thereto,
including interest or fees payable by such Bank to lenders
of funds obtained by it in order to maintain any such Loans.
Such loss or reasonable expense shall exclude any loss of
profits or margin applicable to such LIBOR Rate Loan but
shall include an amount equal to the excess, if any, as
reasonably determined by each Bank of (i) its cost of
obtaining the funds for the LIBOR Rate Loan being paid,
prepaid, converted, not converted, or not borrowed, as the
case may be (based on the LIBOR Rate) for the period from
the date of such payment, prepayment, conversion, or failure
to borrow or convert, as the case may be, to the last day of
the Interest Period for such portion of the Term Loan (or,
in the case of a failure to borrow, the Interest Period for
such portion of the Term Loan which would have commenced on
the date of such failure to borrow) over (ii) the amount of
interest (as reasonably determined by such Bank) that would
be realized by such Bank in re-employing the funds so paid,
prepaid, converted, or not borrowed, converted, or prepaid
for such period or Interest Period, as the case may be,
which determinations shall be prima facie correct and
binding, absent manifest error.
Section 6.11. Interest After Default.
Section 6.11.1. Overdue Amounts.
Overdue principal and (to the extent permitted by
applicable law) interest on the Loans or fees payable
hereunder or under any of the other Loan Documents
shall, following the expiration of the applicable grace
period, if any, bear interest compounded monthly and
payable on demand at a rate per annum equal to two
percent (2.00%) above the Base Rate plus the Applicable
Margin until such amount shall be paid in full (after
as well as before judgment).
Section 6.11.2. Replacement Banks; Mitigation.
(a) Within thirty (30) days after (i) any
Bank has demanded compensation from the Borrower
pursuant to Section Section 6.2.2, 6.6 or 6.7
hereof, or (ii) there shall have occurred a change
in law with respect to any Bank as a consequence
of which it shall become unlawful for such Bank to
make a LIBOR Rate Loan on any Drawdown Date, as
described in the previous Section 6.5 (any such
Bank described in the foregoing clauses (i) or
(ii) is hereinafter defined as an "Affected
Bank"), the Borrower may request that the other
Banks (the "Non-Affected Banks") acquire all, but
not less than all, of the Affected Bank s Notes
and assume all, but not less than all, of the
Affected Bank s Notes. If the Borrower so
requests, the Non-Affected Banks may elect to
acquire all of the Affected Bank s Notes and
assume all of the Affected Bank s Notes. If the
Non-Affected Banks do not elect to acquire and
assume all of the Affected Bank s Notes, the
Borrower may designate a replacement bank or banks
(which must be an Eligible Assignee), which must
be reasonably satisfactory to the Agent, to
acquire and assume that portion of the Notes of
the Affected Bank not being acquired and assumed
by the Non-Affected Banks. The provisions of
Section 19 hereof shall apply to all reallocations
pursuant to this Section 6.10.2, and the Affected
Bank and the Non-Affected Banks and/or replacement
banks which are to acquire the Notes of the
Affected Bank shall execute and deliver to the
Agent, in accordance with the provisions of
Section 19 hereof, such Assignments and
Acceptances and other instruments, as are required
pursuant to Section 19 hereof to give effect to
such reallocations; provided, however, the
Borrower shall, or shall cause the assignee Bank
to pay, the registration fee set forth in Section
19.3. On the effective date of the applicable
Assignment and Acceptances, the Borrower shall pay
to the Affected Bank all interest accrued on its
Notes up to but excluding such date, along with
any fees payable to such Affected Bank hereunder
up to but excluding such date, including, without
limitation, any amounts that would have been
payable pursuant to Section 6.9 hereof in
connection with prepayment.
(b) If (i) any Bank shall request
compensation under Section 6.6 or Section 6.7
hereof, (ii) any Bank deliver a notice described
in Section 6.5 hereof or (iii) the Borrower is
required to pay any additional amount to any Bank
or any governmental authority on account of the
Bank pursuant to Section 6.2.2 or Section 6.6,
such Bank agrees to use reasonable efforts
(consistent with legal policy and regulatory
restrictions) to change its Domestic Lending
Office or LIBOR Lending Office, as the case may
be, to avoid or minimize any amounts otherwise
payable under Section Section 6.2.2, 6.6 or 6.7 or
enable it to withdraw a notice given pursuant to
Section 6.5, in each case solely if such change
can be made in a manner so that such Bank, in its
sole determination, suffers no legal, economic or
regulatory disadvantage deemed by such Bank in its
sole discretion to be significant.
Section 7. COLLATERAL SECURITY.
Section 7.1. Security of Borrower.
The Obligations shall be secured by a perfected first
priority security interest (subject only to Permitted Liens)
in the Collateral Bonds of the Borrower and the stock of
Bangor Energy Resale, Inc. (subject to the provisions of the
Bangor Energy Intercreditor Agreement), pursuant to the
terms of the Security Documents to which the Borrower is a
party.
Section 8. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks and
the Administrative Agent as follows:
Section 8.1. Corporate Authority.
Section 8.1.1. Incorporation; Good Standing.
Each of the Borrower and its Subsidiaries (i) is a
corporation duly organized, validly existing and in
good standing under the laws of its state of
incorporation, (ii) has all requisite corporate power
to own its property and conduct its business as now
conducted and as presently contemplated, and (iii) is
in good standing as a foreign corporation and is duly
authorized to do business in each jurisdiction where
such qualification is necessary except where a failure
to be so qualified would not have a materially adverse
effect on the business, assets or financial condition
of the Borrower and its Subsidiaries, taken as a whole.
Section 8.1.2. Authorization.
The execution, delivery and performance of this
Credit Agreement and the other Loan Documents to which
the Borrower is or is to become a party and
transactions in connection with the Loan Documents (i)
are within the corporate authority of such Person, (ii)
have been duly authorized by all necessary corporate
proceedings, (iii) do not conflict with or result in
any material breach or contravention of any provision
of law, statute, rule or regulation to which the
Borrower is subject or any judgment, order, writ,
injunction, license or permit applicable to the
Borrower and (iv) do not conflict with any provision of
the corporate charter or bylaws of, or any agreement or
other instrument binding upon, the Borrower.
Section 8.1.3. Enforceability.
The execution and delivery of this Credit Agreement and the
other Loan Documents to which the Borrower is or is to
become a party will result in valid and legally binding
obligations of such Person enforceable against it in
accordance with the respective terms and provisions hereof
and thereof, except as limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to
creditors' rights and except to the extent that availability
of the remedy of specific performance or injunctive relief
is subject to the discretion of the court before which any
proceeding therefor may be brought.
Section 8.2. Governmental Approvals.
Except for the approvals identified in Schedule 8.2,
(which approvals either have been obtained or cannot be
obtained prior to the Closing Date in each case as noted on
such schedule), no action by, and no notice to or filing
with, any federal, state or local governmental authority or
regulatory body is or will be required for the due
execution, delivery and performance by the Borrower of this
Credit Agreement or the Loan Documents or any of the
transactions in connection with the Credit Agreement and the
other Loan Documents. The Borrower shall take all necessary
action to maintain and keep in effect all of the approvals
identified in Schedule 8.2.
Section 8.3. Title to Properties; Leases.
The Borrower 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 tot he conduct of its business, all free and clear
of liens other than Permitted Liens. The Borrower 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 8.4. Financial Statements and Projections.
Section 8.4.1. Fiscal Year.
The Borrower and each of its Subsidiaries has a fiscal
year which is the twelve months ending on December 31 of
each calendar year.
Section 8.4.2. Financial Statements.
There has been furnished to the Administrative
Agent a consolidated balance sheet of the Borrower and
its Subsidiaries as at the Company Balance Sheet Date,
and a consolidated statement of income of the Borrower
and its Subsidiaries for the fiscal year then ended,
certified by Coopers & Lybrand. Such balance sheet and
statement of income have been prepared in accordance
with GAAP and fairly present in all material respects
the financial condition of the Borrower as at the close
of business on the date thereof and the results of
operations for the fiscal year then ended. There are
no contingent liabilities of the Borrower or any of its
Subsidiaries as of such date involving material
amounts, known to the officers of the Borrower, which
were not disclosed in such balance sheet and the notes
related thereto or in the Disclosure Documents.
Section 8.4.3. Projections.
The projections of the annual operating budgets of
the Borrower, balance sheets and cash flow statements
for the fiscal years 1998 to 2001, copies of which have
been delivered to the Administrative Agent, disclose
all material assumptions made with respect to general
economic, financial and market conditions used in
formulating such projections. To the knowledge of the
Borrower, no facts exist that (individually or in the
aggregate) would result in any material change in any
of such projections. The projections are based upon
reasonable estimates and assumptions, have been
prepared on the basis of the assumptions stated therein
and reflect the reasonable estimates of the Borrower of
the results of operations and other information
projected therein. Notwithstanding the foregoing, the
Administrative Agent and the Banks recognize that such
projections as to future events are not to be viewed as
facts and that actual results during the period covered
may differ from the projected results.
Section 8.5. No Material Changes, etc.
Since the Company Balance Sheet Date there has occurred no
materially adverse change in the financial condition or
business of the Borrower and its Subsidiaries as shown on or
reflected in the consolidated balance sheet of the Borrower
and its Subsidiaries as at the Company Balance Sheet Date,
or the consolidated statement of income for the fiscal year
then ended, other than changes in the ordinary course of
business that have not had any materially adverse effect on
the business or financial condition of the Borrower or any
of its Subsidiaries. Since the Company Balance Sheet Date,
the Borrower has not made any Distribution other than (a) as
permitted pursuant to Section 11.4 and disclosed to the
Banks, or (b) Distributions with respect to preferred stock.
Section 8.6. Franchises, Patents, Copyrights,
etc.
Each of the Borrower and its Subsidiaries possesses all
franchises, patents, copyrights, trademarks, trade names,
licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of its business
substantially as now conducted without known conflict with
any rights of others.
Section 8.7. Litigation. As of the Closing Date,
except as set forth in Schedule 8.7 hereto, there are no
actions, suits, proceedings or investigations of any kind
pending or threatened in writing against the Borrower or any
of its Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely
determined, might, either in any case or in the aggregate,
materially adversely affect the properties, assets,
financial condition or business of the Borrower and its
Subsidiaries as a whole, or result in any substantial
liability not adequately covered by insurance, or for which
adequate reserves are not maintained on the consolidated
balance sheet of the Borrower and its Subsidiaries, or which
question the validity of this Credit Agreement or any of the
other Loan Documents, or any action taken or to be taken
pursuant hereto or thereto.
Section 8.8. No Materially Adverse Contracts,
etc. Except as disclosed in the Disclosure Documents,
n
either the Borrower nor any of its Subsidiaries is subject
to any charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is
expected, in the judgement of the Borrower s officers to
have a materially adverse effect on the business, assets or
financial condition of the Borrower and its Subsidiaries
taken as a whole. Neither the Borrower nor any of its
Subsidiaries is a party to any contract or agreement that
has or is expected, in the judgment of the Borrower's
officers, to have any materially adverse effect on the
business of the Borrower and its Subsidiaries, taken as a
whole.
Section 8.9. Compliance with Other Instruments, Laws,
etc.
Neither the Borrower nor any of its Subsidiaries is in
violation of any provision of its charter documents, bylaws,
or any agreement or instrument to which it is subject or by
which it or any of its properties is bound or any decree,
order, judgment, statute, license, rule or regulation, in
any of the foregoing cases in a manner that would materially
and adversely affect the financial condition, properties or
business of the Borrower and its Subsidiaries, taken as a
whole.
Section 8.10. Tax Status.
The Borrower has made or filed all federal and state income
and all other material tax returns, reports and declarations
required by any jurisdiction to which it is subject; has
paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns,
reports and declarations, except those being contested in
good faith and by appropriate proceedings; and has set aside
on its books provisions reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which
such returns, reports or declarations apply in accordance
with GAAP. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Borrower know of no
basis for any such claim.
Section 8.11. No Event of Default.
No Default or Event of Default has occurred and is
continuing.
Section 8.12. Holding Company Act. The Borrower 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 the act. The Borrower is not
subject to any other law, rule or regulation which in any
way restricts its ability to incur Indebtedness pursuant to
this Credit Agreement.
Section 8.13. Absence of Financing Statements, etc.
Except with respect to Permitted Liens, there is no
financing statement, security agreement, chattel mortgage,
real estate mortgage or other document filed or recorded
with any filing records, registry or other public office,
that purports to cover, affect or give notice of any present
or possible future lien on, or security interest in, any
assets or property of the Borrower or any of its
Subsidiaries or any rights relating thereto.
Section 8.14. Perfection of Security Interest.
All filings, assignments, pledges and deposits of documents
or instruments have been made and all other actions have
been taken that are necessary, under applicable law, to
establish and perfect the Administrative Agent's security
interest in the Collateral Bonds. The Collateral Bonds and
the Administrative Agent's rights with respect to the
Collateral Bonds are not subject to any setoff, claims,
withholdings or other defenses. The Collateral Bonds are
free from any lien, security interest, encumbrance and any
other claim or demand, except for Permitted Liens.
Section 8.15. Certain Transactions.
Except for the transactions expressly contemplated by the
Acquisition Documents and except for arm's length
transactions pursuant to which the Borrower or any of its
Subsidiaries makes payments in the ordinary course of
business upon terms no less favorable than the Borrower or
such Subsidiary, as applicable, could obtain from third
parties, none of the officers, directors, or employees of
the Borrower or any of its Subsidiaries is presently a party
to any transaction with the Borrower or any of its
Subsidiaries (other than for services as employees, officers
and directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of
the Borrower, any corporation, partnership, trust or other
entity, in which any officer, director, or any such employee
has a substantial interest or is an officer, director,
trustee or partner.
Section 8.16. Compliance with ERISA. The Borrower
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 8.17. Regulations U and X.
No portion of any Loan is to be used, and no portion of
any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R.
Parts 221 and 224.
Section 8.18. Subsidiaries, etc.
Attached hereto as Schedule 8.18 is a statement showing the
names of all the Subsidiaries of the Borrower as of the
Closing Date, the amount of the capital stock of each and
the amount thereof owned by the Borrower, and the business
of each. All shares of each such Subsidiary owned by the
Borrower have been duly and validly issued and are fully
paid and nonassessable, are free and clear of all liens
other than Permitted 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 8.19. Year 2000 Problem.
The Borrower and its Subsidiaries have reviewed the areas
within their businesses and operations which could be
adversely affected by, and have developed or are developing
a program to address on a timely basis, the "Year 2000
Problem" (i.e. the risk that computer applications used by
the Borrower or any of its Subsidiaries may be unable to
recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December
31, 1999). Based upon such review, the Borrower reasonably
believes that the "Year 2000 Problem" will not have any
materially adverse effect on the business or financial
condition of the Borrower and its Subsidiaries, taken as a
whole.
Section 8.20. Disclosure.
The written information provided by the Borrower to the
Administrative Agent or the Banks pursuant to the Loan
Documents does not contain any untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements herein or therein, in light of
the circumstances under which they were made, not
misleading. There is no fact known to the Borrower which
materially adversely affects, or which is reasonably likely
in the future to materially adversely affect, the business,
assets or financial condition of the Borrower and its
Subsidiaries taken as a whole, exclusive of effects
resulting from changes in general economic conditions, legal
standards or regulatory conditions.
Section 8.21. Collateral Bonds; Mortgages.
(a) The Collateral Bonds pledged to the
Administrative Agent on behalf of the Banks are the
valid and binding legal obligations of the Borrower,
entitled in all respects to the security of the
Mortgage.
(b) The transfer and registration requirements
for assigning all security interest in the Collateral
Bonds to the Administrative Agent have been met.
(c) There is currently no default under either
the Mortgage or the General and Refunding Mortgage
Indenture, and no default under, or conflict with, such
agreements will be caused by execution of the Loan
Documents.
(d) True and correct copies of the Mortgage and
the General and Refunding Mortgage Indenture, each as
amended and supplemented as of the Closing Date, have
been provided to the Banks.
(e) No further action is necessary for the
Administrative Agent s lien on the Collateral Bonds to
be effective, and no further action is either necessary
or desirable in order for such lien to inure to the
benefit of the Administrative Agent on behalf of the
Banks.
(f) On or before each December 1, the Borrower
shall deliver to the Administrative Agent a copy of the
legal opinion required under the Mortgage.
(g) The Collateral Bonds have been properly
endorsed and certificated by the trustee and reissued
in the name of the Administrative Agent.
(h) All parties entitled to notice under the
Mortgage or the General and Refunding Mortgage
Indenture of the pledge of the Collateral Bonds, the
execution and delivery of the Supplemental Indenture
and the amendment of the Collateral Bonds have received
proper notice (as defined in such mortgage), or have
validly waived such notice.
(i) No consents of third parties other than those
obtained are necessary to grant the Administrative
Agent the rights contemplated under the Pledge
Agreement or to pledge the Collateral Bonds, execute
and deliver the Supplemental Indenture or amend the
Collateral Bonds.
Section 9. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any
Loan, Unpaid Reimbursement Obligation, Letter of Credit or
Note is outstanding or any Bank has any obligation to make
any Loans or the Administrative Agent has any obligation to
issue, extend or renew any Letters of Credit:
Section 9.1. Punctual Payment.
The Borrower will duly and punctually pay or cause to be paid the principal
and interest on the Loans, all Reimbursement Obligations,
the Letter of Credit Fees, the commitment fees, the
Administrative Agent's fee and all other amounts provided
for in this Credit Agreement and the other Loan Documents to
which the Borrower is a party, all in accordance with the
terms of this Credit Agreement and such other Loan
Documents.
Section 9.2. Maintenance of Office.
The Borrower will maintain its chief executive office at 33
State Street, Bangor, Maine 04401, or at such other place in
the United States of America as the Borrower shall designate
upon written notice to the Administrative Agent, where
notices, presentations and demands to or upon the Borrower
in respect of the Loan Documents to which the Borrower is a
party may be given or made.
Section 9.3. Records and Accounts.
The Borrower will (i) keep, and cause each of its
Subsidiaries to keep, true and accurate records and books of
account in which full, true and correct entries will be made
in accordance with GAAP, (ii) maintain adequate accounts and
reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of
its properties and the properties of its Subsidiaries, and
all other proper reserves, and (iii) at all times engage
Coopers & Lybrand or other independent certified public
accountants of nationally recognized standing reasonably
satisfactory to the Administrative Agent as the independent
certified public accountants of the Borrower and its
Subsidiaries and will not permit more than thirty (30) days
to elapse between the cessation of such firm's (or any
successor firm's) engagement as the independent certified
public accountants of the Borrower and its Subsidiaries and
the appointment in such capacity of a successor firm as
shall be satisfactory to the Administrative Agent.
Section 9.4. Financial Statements, Certificates and
Information.
The Borrower will deliver to each of the Banks:
(a) as soon as practicable, but in any event not
later than one-hundred (100) days after the end of each
fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and its Subsidiaries as at the
end of such year, and the related consolidated
statements of cash flows, operations and retained
earnings for such year, each setting forth in
comparative form the figures for the previous fiscal
year and all such consolidated statements to be in
reasonable detail, prepared in accordance with GAAP,
and certified without qualification by Coopers &
Lybrand or by other independent certified public
accountants of nationally recognized standing
reasonably satisfactory to the Administrative Agent,
together with a written statement from such accountants
to the effect that, in making the examination necessary
to said certification, they have obtained no knowledge
of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then
existing Default or Event of Default they shall
disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be
liable to the Banks for failure to obtain knowledge of
any Default or Event of Default;
(b) as soon as practicable, but in any event not
later than fifty (50) days after the end of each of the
first three fiscal quarters of the Borrower, copies of
the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such
quarter, and the related consolidated statement of
income and consolidated statement of cash flow for the
portion of the Borrower's fiscal year then elapsed, all
in reasonable detail and prepared in accordance with
GAAP, together with a certification by the principal
financial or accounting officer of the Borrower that
the information contained in such financial statements
fairly presents, in all material respects, the
financial position of the Borrower and its Subsidiaries
on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the
financial statements referred to in subSection s (a)
and (b) above, a statement certified by the principal
financial or accounting officer of the Borrower in
substantially the form of Exhibit D hereto and setting
forth in reasonable detail computations evidencing
compliance with the covenants contained in Section 11
and (if applicable) reconciliations to reflect changes
in GAAP since the Company Balance Sheet Date;
(d) contemporaneously with the filing or mailing
thereof, copies of all material of a financial nature
filed with the Securities and Exchange Commission or
sent to the stockholders of the Borrower;
(e) from time to time upon the reasonable request
of the Administrative Agent, projections of the
Borrower updating those projections delivered to the
Banks and referred to in Section 8.4.3 or, if
applicable, updating any later such projections
delivered in response to a request pursuant to this
Section 9.4(f);
(f) promptly upon entering into any material
long-term commitment for additional capacity for, or
sale agreement concerning, 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 a
specific exception 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;
(g) promptly upon the Borrower 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;
(h) (1) on or about June 30 and December 31 of
each year, a letter from S&P setting forth the
Borrower s long-term senior secured debt or corporate
credit rating then in effect and (2) 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 Margin or
the Commitment Fee Rate which is to occur upon a change
in Status pursuant to the terms of this Credit
Agreement; and
(i) from time to time such other financial data
and information (including accountants, management
letters) as the Administrative Agent may reasonably
request.
Section 9.5. Notices.
Section 9.5.1. Defaults.
The Borrower will promptly notify the
Administrative Agent in writing of the occurrence of
any Default or Event of Default.
Section 9.5.2. Environmental Events.
The Borrower will promptly give notice to the
Administrative Agent (i) of any violation of any
Environmental Law that the Borrower or any of its
Subsidiaries reports in writing or is reportable by
such Person in writing (or for which any written report
supplemental to any oral report is made) to any
federal, state or local environmental agency and (ii)
upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a
notice from any agency of potential environmental
liability, of any federal, state or local environmental
agency or board, that is reasonably expected to
materially adverse affect the assets, liabilities,
financial conditions or operations of the Borrower and
its Subsidiaries taken as a whole, or the
Administrative Agent's security interests pursuant to
the Security Documents.
Section 9.5.3. Notification of Claim against
Collateral Bonds.
The Borrower will, immediately upon becoming aware
thereof, notify the Administrative Agent in writing of
any setoff, claims (including environmental claims),
withholdings or other defenses to which any of the
Collateral Bonds, or the Administrative Agent's rights
with respect to the Collateral Bonds, are subject,
other than Permitted Liens.
Section 9.5.4. Notice of Litigation and
Judgments.
The Borrower will, and will cause each of its Subsidiaries
to, give notice to the Administrative Agent in writing
within fifteen (15) days of becoming aware of any litigation
or proceedings threatened in writing or any pending
litigation and proceedings affecting the Borrower or any of
its Subsidiaries or to which the Borrower or any of its
Subsidiaries is or becomes a party involving an uninsured
claim against the Borrower or any of its Subsidiaries that
could reasonably be expected to have a materially adverse
effect on the Borrower and its Subsidiaries taken as a whole
and stating the nature and status of such litigation or
proceedings. The Borrower will, and will cause each of its
Subsidiaries to, give notice to the Administrative Agent and
each of the Banks, in writing, in form and detail reasonably
satisfactory to the Administrative Agent, within ten (10)
days of any unpaid judgment not covered by insurance, final
or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $200,000.
Section 9.6. Corporate Existence; Maintenance of
Properties.
The Borrower will do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence, rights and its corporate and public
utility franchises, rights, licenses and permits necessary
for the conduct of its business and those of its
Subsidiaries and will not convert to a limited liability
company or a limited liability partnership. It (i) will
cause all of its properties and those of its Subsidiaries
used or useful in the conduct of its business or the
business of its Subsidiaries to be maintained and kept in
good condition, repair and working order and supplied with
all necessary equipment, and (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Borrower
may be necessary so that the business carried on in
connection therewith may be properly and advantageously
conducted at all times; provided that nothing in this
Section 9.6 shall prevent (i) the Borrower from
discontinuing the operation and maintenance of any of its
properties or any of those of its Subsidiaries if such
discontinuance is, in the judgment of the Borrower,
desirable in the conduct of its or their business and that
do not in the aggregate materially adversely affect the
business of the Borrower and its Subsidiaries on a
consolidated basis, or (ii) the Generating Asset
Transaction(s), provided that non-cash sales shall be on
terms reasonably acceptable to the Agents, or, if such terms
are not reasonably acceptable to the Agents, the Borrower
shall make a principal payment in respect of the Term Loan
in the amount of the fair market value of such non-cash
consideration.
Section 9.7. Insurance. The Borrower will, and will
cause each of its Subsidiaries to, maintain with financially
sound and reputable insurers insurance with respect to its
properties and business against such casualties and
contingencies in such amounts as shall be in accordance with
the general practices of businesses engaged in similar
activities in similar geographic areas and in amounts.
Section 9.8. Taxes.
The Borrower will, and will cause each of its
Subsidiaries to, duly pay and discharge, or cause to be paid
and discharged, before the same shall become overdue, all
taxes, assessments and other governmental charges imposed
upon it and its real properties, sale and activities, or any
part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies, which
if unpaid might by law become a lien or charge upon any of
its property, except any such taxes, assessments, charges or
claims which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in
accordance with GAAP shall be maintained; provided, however,
that any such tax, assessment, charge, levy or claim need
not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate
proceedings and if the Borrower or such Subsidiary shall
have set aside on its books adequate reserves with respect
thereto; and provided, further, that the Borrower and each
Subsidiary shall pay all such taxes, assessments, charges,
levies or claims forthwith upon the commencement of
proceedings to foreclose any lien which may have attached as
security therefor.
Section 9.9. Inspection of Properties and Books,
etc.
The Borrower shall permit the Banks, through the
Administrative Agent or any of its other designated
representatives, to visit and inspect any of the properties
of the Borrower or any of its Subsidiaries, to examine the
books of account of the Borrower and its Subsidiaries (and
to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of the Borrower
and its Subsidiaries with, and to be advised as to the same
by, its and their officers, all at such reasonable times and
intervals as the Administrative Agent or any Bank may
reasonably request.
Section 9.10. Compliance with Laws, Contracts,
Licenses, and Permits.
The Borrower will comply with (a) the provisions of its
charter documents and by-laws and (b)(i) all agreements and
instruments by which it or any of its properties may be
bound, and (ii) all applicable laws and regulations
(including Environmental Laws), decrees, orders and
judgments ("Applicable Laws"), except, where failure to so
comply is not reasonably expected to have a materially
adverse effect on the Borrower and its Subsidiaries, taken
as a whole. If at any time while any Note or the Loans are
outstanding, any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any
government shall become necessary or required in order that
the Borrower may fulfill any of its obligations hereunder or
under any of the Loan Documents, the Borrower will
immediately take or cause to be taken all reasonable steps
to obtain such authorization, consent, approval, permit or
license and furnish the Agent with evidence thereof.
Section 9.11. Employee Benefit Plans.
If and when the Borrower 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 ground 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.
Section 9.12. Use of Proceeds. The proceeds of (a)
the Revolving Credit Loans shall be used for working
capital, for purposes associated with the Chase Assignment
and general corporate purposes, and (b) the Term Loan shall
be used for working capital, and for purposes associated
with the Chase Assignment and to refinance the PERC
Contract.
Section 9.13. Further Assurances.
The Borrower will, and will cause each of its Subsidiaries
to, cooperate with the Administrative Agent and execute such
further instruments and documents as the Administrative
Agent shall reasonably request to carry out to its
satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
Section 9.14. Sale of Generating Assets. The Borrower
will actively pursue the sale of substantially all of its
generating assets, provided that non-cash sales shall be on
terms reasonably acceptable to the Agents, or, if such terms
are not reasonably acceptable to the Agents, the Borrower
shall make a principal payment in respect of the Term Loan
in the amount of the fair market value of such non-cash
consideration.
Section 9.15. Status. The Borrower will maintain a
private senior secured debt or corporate credit rating with
either S&P or Moody s, or both. In addition, upon the
reasonable request by the Administrative Agent, the Borrower
shall obtain in writing from either S&P or Moody s such
senior secured debt or corporate credit rating and disclose
such rating to the Administrative Agent.
Section 10. CERTAIN NEGATIVE COVENANTS OF THE
BORROWER.
The Borrower covenants and agrees that, so long as any
Loan, Unpaid Reimbursement Obligation, Letter of Credit or
Note is outstanding or any Bank has any obligation to make
any Loans or the Administrative Agent has any obligations to
issue, extend or renew any Letters of Credit:
Section 10.1. Restrictions on Indebtedness.
The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to
any Indebtedness other than the following:
(a) Indebtedness to the Banks and the
Administrative Agent arising under any of the Loan
Documents;
(b) endorsements for collection, deposit or
negotiation and warranties of products or services, in
each case incurred in the ordinary course of business;
(c) Indebtedness incurred in connection with the
acquisition after the date hereof of any real or
personal property by the Borrower or such Subsidiary or
under any Capitalized Lease, provided that the
aggregate principal amount of such Indebtedness of the
Borrower shall not exceed the aggregate amount of
$5,000,000 at any one time;
(d) Indebtedness existing on the date hereof and
listed and described on Schedule 10.1 hereto, or
described in the Disclosure Documents, and any
refinancing thereof, having covenants and maturities no
less favorable to the Borrower than the Indebtedness
being refinanced, and which does not increase the
principal amount of the Indebtedness being refinanced;
(e) Indebtedness of a Subsidiary of the Borrower
existing on the date hereof to the Borrower;
(f) the Bangor Energy Guaranty;
(g) non-recourse Indebtedness of any Subsidiary
participating in the planned joint venture with SEMPRA
Energy Solutions;
(h) guarantees of the Borrower of scheduled
payments of principal ad interest (not to exceed
$4,200,000 in the aggregate in any fiscal year of the
Borrower) in respect of Indebtedness of PERC, but only
on the scheduled dates, and at the rates, as originally
in effect (it being understood that the making of such
guarantee shall be subject to prior review by the
Administrative Agent of the documentation in respect
thereof for the purpose of establishing compliance with
the requirements of this paragraph);
(i) guarantees of the Borrower of the
indebtedness of others, as set forth in Exhibit G, but
only to the extent and upon the terms indicated;
(j) Indebtedness with respect to the Chase L/C
until replacement by a Letter of Credit hereunder; and
(k) any unsecured Indebtedness not otherwise
permitted by this Section 10.1 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
Commitments made pursuant to Section 2.3.
Section 10.2. Restrictions on Liens.
The Borrower will not, and will not permit any of its
Subsidiaries to, (i) create or incur or suffer to be created
or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of
any kind upon any of its property or assets of any character
whether now owned or hereafter acquired, or upon the income
or profits therefrom; or (ii) create, assume or suffer to
exist any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of the interest of a
vendor or a lessor under any conditional sale agreement,
financing lease or other title retention agreement relating
to any asset; provided that the Borrower or any of its
Subsidiaries may create or incur or suffer to be created or
incurred or to exist, any of the following (the "Permitted
Liens"):
(a) liens in favor of the Borrower on all or part
of the assets of Subsidiaries of the Borrower securing
Indebtedness owing by Subsidiaries of the Borrower to
the Borrower;
(b) liens to secure taxes, assessments and other
government charges in respect of obligations not
overdue or liens on properties to secure claims for
labor, material or supplies in respect of obligations
not overdue, or which are being contested in good faith
by appropriate proceedings diligently conducted an with
respect to which adequate reserves are being maintained
in accordance with GAAP so long as such liens are not
being foreclosed;
(c) deposits or pledges made in connection with,
or to secure payment of, workmen's compensation,
unemployment insurance, old age pensions or other
social security obligations;
(d) liens on properties in respect of judgments
or awards that have been in force for less than the
applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of
which the Borrower or such Subsidiary shall at the time
in good faith be prosecuting an appeal or proceedings
for review and in respect of which a stay of execution
shall have been obtained pending such appeal or review;
(e) liens of carriers, warehousemen, mechanics
and materialmen, and other like liens on properties, in
existence less than 120 days from the date of creation
thereof in respect of obligations not overdue, or which
are being contested in good faith by appropriate
proceedings diligently conducted an with respect to
which adequate reserves are being maintained in
accordance with GAAP so long as such liens are not
being foreclosed;
(f) liens existing on the date hereof and listed
on Schedule 10.2 hereto or in the Disclosure Documents;
(g) purchase money security interests in or
purchase money mortgages on real or personal property
acquired after the date hereof to secure purchase money
Indebtedness of the type and amount permitted by
Section 10.1(c), incurred in connection with the
acquisition of such property, which security interests
or mortgages cover only the real or personal property
so acquired, not to exceed $5,000,000 in the aggregate;
(h) liens in favor of the Administrative Agent
for the benefit of the Banks and the Administrative
Agent under the Loan Documents, other than the
Mortgage;
(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 Borrower not already included pursuant to the terms
of such Mortgage as in effect on the date hereof, or
(2) to permit the Borrower to withdraw "Deposited Cash"
or execute "Bonds" in excess of seventy-five percent
(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 10.2(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) second liens created pursuant to the General
and Refunding Mortgage Indenture;
(k) Bangor Energy Liens;
(m) liens existing on any property at the time of
acquisition thereof by the Borrower 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;
(n) liens for the sole purpose of extending,
renewing or replacing (or successively extending,
renewing or replacing) in whole or in part the
Indebtedness secured by any lien permitted by
paragraphs (f) and (m) of this Section 10.2, provided
that the principal amount of Indebtedness secured
thereby shall not exceed the principal amount of
Indebtedness 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 Indebtedness
so extended, renewed or replaced (plus improvements on
such property);
(o) deposits to secure the performance of
obligations (other than obligations for the payment of
borrowed money) incurred in the ordinary course of
business;
(p) banker's liens arising by operation of law
and other banker's possessory liens arising in the
ordinary course of business other 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 Borrower);
(q) liens incurred in connection with equipment
or vehicle financing leases having an aggregate
purchase cost to the lessors not to exceed $5,000,000;
(r) minor defects and irregularities in the title
(including easements, rights of way, restrictions or
other similar nonmonetary charges) to any real property
of the Borrower or any Subsidiary which have no
material adverse effect on the use or disposition
thereof by the Borrower or such Subsidiary; and
(s) liens with respect to cash collateral pledged
to back the Chase L/C until replacement by a Letter of
Credit hereunder.
Section 10.3. Restrictions on Investments.
The Borrower will not, and will not permit any of its
Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations
of the United States of America that mature within one
(1) year from the date of purchase by the Borrower;
(b) demand deposits, certificates of deposit,
time deposits or repurchase agreements which are fully
insured or are issued by commercial banks organized
under the laws of the United States of America or any
state thereof and having total assets in excess of
$1,000,000,000;
(c) securities commonly known as "commercial
paper" issued by a corporation organized and existing
under the laws of the United States of America or any
state thereof that at the time of purchase have been
rated and the ratings for which are not less than "P 1"
if rated by Moody's Investors Service, Inc., and not
less than "A 1" if rated by S&P's Rating Group;
(d) Investments existing on the date hereof and
listed on Schedule 10.3 hereto or described in the
Disclosure Documents;
(e) Investments with respect to Indebtedness
permitted by Section 10.1(f);
(f) Investments by the Borrower in Subsidiaries
of the Borrower not to exceed $500,000 during the term
of this Credit Agreement;
(g) 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 (g) shall not
exceed $500,000 during the term of this Credit
Agreement;
(h) 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
(h) shall not exceed $500,000 during the term of this
Credit Agreement;
(i) Investments in Persons participating in the
implementation of non-regulated energy-related
business, including the Home Security business,
provided that any such Investments shall not in the
aggregate principal amount exceed $500,000 during the
term of this Credit Agreement;
(j) services pursuant to the Service Agreement
with Bangor Energy Resale, Inc.;
(k) Investments by any Subsidiary participating
in the planned joint venture with SEMPRA Energy
Solutions, provided that the aggregate amount expended
pursuant to this paragraph (k) shall not exceed
$700,000 during 1998; and
(l) other Investments by any Subsidiary
participating in the planned joint venture with SEMPRA
Energy Solutions on terms acceptable to the Agents.
Section 10.4. Merger, Consolidation and Disposition of
Assets.
Section 10.4.1. Mergers and Acquisitions.
The Borrower will not, and will not permit any of
its Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset
acquisition or stock acquisition (other than the
acquisition of assets in the ordinary course of
business consistent with past practices or as otherwise
expressly permitted hereunder) except the merger or
consolidation of one or more of the Subsidiaries of the
Borrower with and into the Borrower, or the merger or
consolidation of two or more Subsidiaries of the
Borrower, or as permitted in Section 10.3.
Section 10.4.2. Disposition of Assets.
The Borrower will not (i) sell, lease or otherwise
transfer all or a Substantial Part of its assets during
the term of this Credit Agreement, and (ii) permit any
Subsidiary to transfer all or a Substantial Part of its
assets to any person other than the Borrower or a
wholly owned Subsidiary, provided that the Generating
Asset Transaction(s) shall be permitted under this
Section 10.4.2.
Section 10.5. Sale and Leaseback.
The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby the Borrower or any Subsidiary of the
Borrower shall sell or transfer any property owned by it in
order then or thereafter to lease such property or lease
other property that the Borrower or any Subsidiary of the
Borrower intends to use for substantially the same purpose
as the property being sold or transferred.
Section 10.6. Business Activities.
The Borrower will not, and will not permit any of its
Subsidiaries to, engage directly or indirectly (whether
through Subsidiaries or otherwise) in any type of business
other than the businesses conducted by them on the Closing
Date and in related businesses, provided that the proposed
sale of the Borrower s generating assets and the planned
joint venture with SEMPRA Energy Solutions to invest in the
gas distribution business, each on terms reasonably
acceptable to the Administrative Agent and the Documentation
Agent, will not constitute a change in business.
Section 10.7. Fiscal Year.
The Borrower will not, and will not permit any of it
Subsidiaries to, change the date of the end of its fiscal
year from that set forth in Section 8.4.1.
Section 10.8. Transactions with Affiliates.
Except as expressly permitted by the Acquisition
Documents, the Borrower will not engage in any transaction
with any Affiliate (other than with its Subsidiaries or for
services as employees, officers and directors), including
any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring
payments to or from any such Affiliate or, to the knowledge
of the Borrower, any corporation, partnership, trust or
other entity in which any such Affiliate has a substantial
interest or is an officer, director, trustee or partner, on
terms more favorable to such Person than would have been
obtainable on an arm's-length basis in the ordinary course
of business.
Section 10.9. Nuclear Acquisitions. The Borrower will
not, and will not permit any of its Subsidiaries to,
purchase or otherwise acquire direct or indirect ownership
of any nuclear plant.
Section 10.10. Amendments to Bonds, etc. Except as
contemplated hereby, the Borrower will not amend,
supplement, or otherwise modify, or consent to any
amendment, supplement or other modification to (a) the
General and Refunding Mortgage Indenture (including Section
7.05(b) therein), the Second Mortgage Bonds, or First
Mortgage Bonds (other than those held by the Administrative
Agent), or any agreement entered into by the Borrower in
connection therewith (provided that the foregoing will 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 Indebtedness expressly permitted by Section 10.1
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. The Borrower will not make
any optional payment or prepayment on or optional
redemption, purchase or defeasance of (a) any Second
Mortgage Bond, (b) any Indebtedness under the FAME Loan
Agreement, (c) any Preferred Stock, or (d) the First
Mortgage Bonds (other than those held by the Administrative
Agent).
Section 11. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any
Loan, Unpaid Reimbursement Obligation, Letter of Credit or
Note is outstanding or any Bank has any obligation to make
any Loans or the Administrative Agent has any obligation to
issue, extend or renew any Letters of Credit:
Section 11.1. Consolidated Net Worth.
The Borrower will not permit Consolidated Net Worth to
be less than the amounts set forth opposite the periods set
forth below:
Period Amount
Closing Date through $103,000,000
12/31/98
1/1/99 through 12/31/99 $110,000,000
Thereafter $120,000,000
Section 11.2. Consolidated Fixed Charge Ratio. The
Borrower will not permit the Consolidated Fixed Charge Ratio
for any period of four consecutive fiscal quarters ending on
any date set forth below to be less than the ratio set forth
opposite such date:
Date Ratio
6/30/98 - 9/30/98 1.00
12/31/98 1.25
Thereafter 1.50
Section 11.3. Consolidated Total Debt Ratio. The
Borrower will not permit the Consolidated Total Debt Ratio
for the periods set forth below to exceed the ratio set
forth opposite such period:
Period Ratio
Closing Date through 0.74
12/31/98
1/1/99 through 12/31/99 0.68
Thereafter 0.65
Section 11.4. Dividends. During any fiscal year of
the Borrower commencing after December 31, 1997, the
Borrower shall not declare or pay any dividend (other than
dividends payable solely in common stock of the Borrower)
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 Borrower 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 Borrower or any Subsidiary. Notwithstanding the
foregoing, the Borrower may declare or otherwise become
obligated to make dividend payments not to exceed (a) sixty
percent (60%) of earnings applicable to common stock for
each fiscal year until the Term Loan is paid in full, and
(b) after the Term Loan is paid in full, dividend payments
shall not exceed seventy percent (70%) of earnings
applicable to common stock for each fiscal year. This
Section 11.4 shall not prohibit the payment of a dividend
that would otherwise be prohibited hereunder if (i) such
dividend is made within 45 days of the declaration thereof
and (ii) this Section 11.4 would not have prohibited the
payment of such dividend at the time of its declaration.
Section 12. CLOSING CONDITIONS.
The obligations of the Banks to make the initial
Revolving Credit Loans and the Term Loan and of the
Administrative Agent to issue any initial Letters of Credit
shall be subject to the satisfaction of the following
conditions precedent:
Section 12.1. Loan Documents. Each of the Loan
Documents shall have been duly executed and delivered by the
respective parties thereto, shall be in full force and
effect and shall be in form and substance satisfactory to
the Administrative Agent.
Section 12.2. Certified Copies of Charter Documents.
The Administrative Agent shall have received from the
Borrower a copy, certified by a duly authorized officer of
such Person to be true and complete on the Closing Date, of
each of (i) its charter or other incorporation documents as
in effect on such date of certification, and (ii) its by-
laws as in effect on such date.
Section 12.3. Corporate Action.
All corporate action necessary for the valid execution,
delivery and performance by the Borrower of this Credit
Agreement and the other Loan Documents to which it is or is
to become a party shall have been duly and effectively
taken, and evidence thereof satisfactory to the
Administrative Agent shall have been provided to the
Administrative Agent.
Section 12.4. Incumbency Certificate.
The Administrative Agent shall have received from the
Borrower an incumbency certificate, dated as of the Closing
Date, signed by a duly authorized officer of the Borrower,
and giving the name and bearing a specimen signature of each
individual who shall be authorized in the name and on behalf
of the Borrower: (i) to sign each of the Loan Documents to
which the Borrower is or is to become a party; (ii) to make
Loan Requests and Conversion Requests and to apply for
Letters of Credit; and (iii) to give notices and to take
other action on its behalf under the Loan Documents.
Section 12.5. Validity of Liens.
The Security Documents shall be effective to create in
favor of the Administrative Agent a legal, valid and
enforceable first security interest in and lien upon the
Collateral Bonds. All filings, recordings, deliveries of
instruments and other actions necessary or desirable in the
opinion of the Administrative Agent to protect and preserve
such security interests shall have been duly effected. The
Administrative Agent shall have received evidence thereof in
form and substance satisfactory to the Administrative Agent.
Section 12.6. Registration and Amendment of Collateral
Bonds. The Administrative Agent shall have received a
certificate evidencing the registration of the Collateral
Bonds, which shall have a maturity date of June 30, 2001, in
the name of the Administrative Agent along with all
necessary consents from third parties.
Section 12.7. Supplemental Indenture. Each of the
Banks and the Administrative Agent shall have received an
amended Supplemental Indenture (the "Supplemental
Indenture") to the Mortgage in form and substance
satisfactory to the Banks and the Administrative Agent,
providing for the amendment of the Collateral Bonds, along
with any necessary consents.
Section 12.8. Opinions of Counsel.
Each of the Banks and the Administrative Agent shall
have received a favorable legal opinion(s) addressed to the
Banks and the Administrative Agent, dated as of the Closing
Date, in form and substance satisfactory to the Banks and
the Administrative Agent, from:
(a) Andrew Landry, general counsel of the
Borrower substantially in the form of Exhibit F-1
attached hereto;
(b) Winthrop, Stimson, Putnam & Roberts, New York
counsel to the Borrower substantially in the form of
Exhibit F-2 attached hereto; and
(c) Eaton, Peabody, Bradford & Veague, special
Maine counsel to the Administrative Agent substantially
in the form of Exhibit F-3 attached hereto.
Section 12.9. Payment of Fees.
The Borrower shall have paid to the Administrative Agent the
remainder of the closing fee pursuant to Section 6.1.
Section 12.10. Chase Assignment.
The Administrative Agent shall have received the Chase
Assignment from the Prior Lenders, indicating the amount of
the loan obligations of the Borrower under the Chase
Revolver and the Chase Term Loan to be assigned on the
Closing Date, and assigning all Collateral Bonds, other
collateral, mortgages, deeds of trust and security interests
granted by the Borrower in favor of The Chase Manhattan
Bank.
Section 12.11. Certified Approvals. The
Administrative Agent shall have received a certified copy of
the order from the Commission authorizing the entering into,
execution, delivery and performance of the Loan Documents,
and all other approvals of third parties necessary to
authorize the same.
Section 12.12. Asset Sale. The Administrative Agent
shall have received a report from Reed Consulting Group
indicating that the proposed asset sale is likely to provide
an amount acceptable to the Agents.
Section 12.13. Financial Statements and Projections.
The Administrative Agent shall have received copies of (a)
the consolidated audited financial statements for the
Borrower and its Subsidiaries for the period ended December
31, 1997 and unaudited financial statements for the March
31, 1998 quarter, and (b) the financial projections referred
to in Section 8.4.3.
Section 13. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan,
including the Revolving Credit Loan and the Term Loan, and
of the Administrative Agent to issue, extend or renew any
Letter of Credit, in each case whether on or after the
Closing Date, shall also be subject to the satisfaction of
the following conditions precedent:
Section 13.1. Representations True; No Event of
Default.
Each of the representations and warranties of the
Borrower contained in this Credit Agreement, the other Loan
Documents or in any document or instrument delivered
pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and
shall also be true at and as of the time of the making of
such Loan or the issuance, extension or renewal of such
Letter of Credit, with the same effect as if made at and as
of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit
Agreement and the other Loan Documents and changes occurring
in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly to an
earlier date) and no Default or Event of Default shall have
occurred and be continuing.
Section 13.2. No Legal Impediment.
No change shall have occurred after the Closing Date in
any law or regulations thereunder or interpretations thereof
that in the reasonable opinion of any Bank would make it
illegal for such Bank to make such Loan or to participate in
the issuance, extension or renewal of such Letter of Credit
or in the reasonable opinion of the Administrative Agent
would make it illegal for the Administrative Agent to issue,
extend or renew such Letter of Credit.
Section 13.3. Governmental Regulation.
Each Bank shall have received such statements in substance
and form reasonably satisfactory to such Bank as such Bank
shall require for the purpose of compliance with any
applicable regulations of the Comptroller of the Currency or
the Board of Governors of the Federal Reserve System.
Section 13.4. Proceedings and Documents.
The Administrative Agent and the Administrative Agent's
Special Counsel shall have received all information and such
counterpart originals or certified or other copies of such
documents as the Administrative Agent may have reasonably
requested in accordance with the terms hereof.
Section 14. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 14.1. Events of Default and Acceleration.
If any of the following events ("Events of Default" or,
if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
(a) the Borrower shall fail to pay any principal
of the Loans or any Reimbursement Obligation when the
same shall become due and payable, whether at the
stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment;
(b) the Borrower shall fail to pay any interest
on the Loans, any Letter of Credit Fee, the commitment
fee, or the Agent's fee due hereunder or under any of
the other Loan Documents, when the same shall become
due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other
date fixed for payment within three (3) days after the
same shall become due and payable;
(c) the Borrower shall fail to comply with any of
its covenants contained in Section 9.6, 10 or 11;
(d) the Borrower shall fail to perform any term,
covenant or agreement contained herein or in any of the
other Loan Documents (other than those specified
elsewhere in this Section 14.1) for fifteen (15) days
after written notice of such failure has been given to
the Borrower by the Administrative Agent;
(e) any representation or warranty of the
Borrower in this Credit Agreement or any of the other
Loan Documents or in any other document or instrument
delivered pursuant to or in connection with this Credit
Agreement shall prove to have been false in any
material respect upon the date when made or deemed to
have been made or repeated;
(f) the Borrower or any of its Subsidiaries shall
fail to pay at maturity, or within any applicable
period of grace, any obligation for borrowed money or
credit received or in respect of any Capitalized Leases
in excess of $500,000 (other than the Loan Documents),
or fail to observe or perform any material term,
covenant or agreement contained in any agreement by
which it is bound, evidencing or securing borrowed
money or credit received or in respect of any
Capitalized Leases in excess of $500,000 for such
period of time as would permit (assuming the giving of
appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to
accelerate the maturity thereof;
(g) the Borrower or any of its Subsidiaries shall
make an assignment for the benefit of creditors, or
admit in writing its inability to pay or generally fail
to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver of the Borrower
or any of its Subsidiaries or of any substantial part
of the assets of the Borrower or any of its
Subsidiaries or shall commence any case or other
proceeding relating to the Borrower or any of its
Subsidiaries under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or shall take
any action to authorize or in furtherance of any of the
foregoing, or if any such petition or application shall
be filed or any such case or other proceeding shall be
commenced against the Borrower or any of its
Subsidiaries and the Borrower or any of its
Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such
petition or application shall not have been dismissed
within sixty (60) days following the filing thereof;
(h) a decree or order is entered appointing any
such trustee, custodian, liquidator or receiver or
adjudicating the Borrower or any of its Subsidiaries
bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for
relief is entered in respect of the Borrower or any
Subsidiary of the Borrower in an involuntary case under
federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged,
unsatisfied and unstayed for more than sixty (60) days,
any final unpaid judgment (from which all appeals have
been taken and determined or as to which all time for
appeals has lapsed) against the Borrower or any of its
Subsidiaries which, with other outstanding final
judgments shall continue unsatisfied and in effect,
(net of uncontested insurance coverage) against the
Borrower or any of its Subsidiaries exceeding in the
aggregate $500,000;
(j) the holders of First Mortgage Bonds shall
accelerate the maturity of all or any part of the First
Mortgage Bonds, or the First Mortgage Bonds (other than
the Collateral Bonds) shall be prepaid, redeemed or
repurchased in whole or in part;
(k) if any of the Loan Documents shall be
cancelled, terminated, revoked or rescinded or the
Administrative Agent's security interests, mortgages or
liens in a substantial portion of the Collateral Bonds
shall cease to be perfected, or shall cease to have the
priority contemplated by the Security Documents, in
each case otherwise than in accordance with the terms
thereof, or any action at law, suit or in equity or
other legal proceeding to cancel, revoke or rescind any
of the Loan Documents shall be commenced by or on
behalf of the Borrower as a party thereto or any of its
stockholders, or any court or any other governmental or
regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue
a judgment, order, decree or ruling to the effect that,
any one or more of the Loan Documents is illegal,
invalid or unenforceable in accordance with the terms
thereof;
(l) the Borrower or any ERISA Affiliate 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 an Employee Benefit Plan under
Title IV of ERISA; or notice of intent to terminate an
Employee Benefit Plan or Employee Benefit Plans having
an aggregate Unfunded Vested Liability in excess of
$500,000 shall be filed pursuant to Title IV of ERISA
by the Borrower; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or
cause a trustee to be appointed to administer any such
Employee Benefit Plan or Employee Benefit Plans or a
proceeding shall be instituted by a fiduciary of any
such Employee Benefit Plan or Employee Benefit 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 such
Employee Benefit Plan or Employee Benefit Plans must be
terminated;
(m) the Borrower or any of its Subsidiaries shall
be enjoined, restrained or in any way prevented by the
order of any court or any administrative or regulatory
agency from conducting any material part of its
business and such order shall continue in effect for
more than sixty (60) days; or
(n) (i) a judgement 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
Mortgage Property shall be taken by eminent domain or
condemnation, (iv) the Mortgage shall cease to be in
full force and effect or the Borrower 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 any such event, so long as the same may be
continuing, the Administrative Agent may, and upon the
request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this
Credit Agreement, the Notes and the other Loan Documents and
all Reimbursement Obligations to be, and they shall
thereupon forthwith become, immediately due and payable
without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the
Borrower; provided that in the event of any Event of Default
specified in Section Section 14.1(g), 14.1(h) or 14.1(j),
all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the
Administrative Agent or any Bank.
Section 14.2. Termination of Commitments.
If any one or more of the Events of Default specified
in Section 14.1(g), Section 14.1(h) or Section 14.1(j) shall
occur, any unused portion of the credit hereunder shall
forthwith terminate and each of the Banks shall be relieved
of all further obligations to make Loans to the Borrower and
the Administrative Agent shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. If
any other Event of Default shall have occurred and be
continuing, the Administrative Agent may and, upon the
request of the Majority Banks, shall, by notice to the
Borrower, terminate the unused portion of the credit
hereunder, and upon such notice being given such unused
portion of the credit hereunder shall terminate immediately
and each of the Banks shall be relieved of all further
obligations to make Loans and the Administrative Agent shall
be relieved of all further obligations to issue, extend or
renew Letters of Credit. No termination of the credit
hereunder shall relieve the Borrower of any of the
Obligations.
Section 14.3. Remedies.
In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the
Banks shall have accelerated the maturity of the Loans
pursuant to Section 14.1, each Bank, if owed any amount with
respect to the Loans or the Reimbursement Obligations, may,
with the consent of the Majority Banks but not otherwise,
proceed to protect and enforce its rights by suit in equity,
action at law or other appropriate proceeding, whether for
the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan
Documents or any instrument pursuant to which the
Obligations to such Bank are evidenced, including as
permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have
become due, by declaration or otherwise, proceed to enforce
the payment thereof or any other legal or equitable right of
such Bank. No remedy herein conferred upon any Bank or the
Administrative Agent or the holder of any Note or purchaser
of any Letter of Credit Participation is intended to be
exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law
or in equity or by statute or any other provision of law.
Section 14.4. Distribution of Collateral Bonds
Proceeds.
In the event that, following the occurrence or during the
continuance of any Event of Default, the Administrative
Agent or any Bank, as the case may be, receives any monies
in connection with the enforcement of any the Security
Documents, or otherwise with respect to the realization upon
any of the Collateral Bonds, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case may
be) the reimbursement of the Administrative Agent for
or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred
or sustained by the Administrative Agent in connection
with the collection of such monies by the
Administrative Agent, for the exercise, protection or
enforcement by the Administrative Agent of all or any
of the rights, remedies, powers and privileges of the
Administrative Agent and the Banks under this Credit
Agreement or any of the other Loan Documents or in
respect of the Collateral Bonds or in support of any
provision of adequate indemnity to the Administrative
Agent against any taxes or liens which by law shall
have, or may have, priority over the rights of the
Administrative Agent to such monies;
(b) Second, to all other Obligations then due and
payable to be shared pro rata among the Banks in
accordance with their respective Commitment Percentages
and Term Loan Percentages; provided, however, that
distributions shall be made (A) pari passu among
Obligations with respect to the Agent's fee payable
pursuant to Section 6.1 and all other Obligations and
(B) with respect to each type of Obligation owing to
the Banks, such as interest, principal, fees and
expenses, among the Banks pro rata;
(c) Third, upon payment and satisfaction in full
or other provisions for payment in full satisfactory to
the Banks and the Administrative Agent of all of the
Obligations, to the payment of any obligations required
to be paid pursuant to Section 9-504(1)(c) of the
Uniform Commercial Code of the State of New York; and
(d) Fourth, the excess, if any, shall be returned
to the Borrower or to such other Persons as are
entitled thereto.
Section 15. SETOFF.
Regardless of the adequacy of any collateral, during
the continuance of any Event of Default, any deposits or
other sums credited by or due from any of the Banks to the
Borrower and any securities or other property of the
Borrower in the possession of such Bank may be applied to or
set off by such Bank against the payment of Obligations then
due and payable of the Borrower to such Bank. Each of the
Banks agrees with each other Bank that if such Bank shall
receive from the Borrower, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by, or
constituting Reimbursement Obligations owed to, such Bank by
proceedings against the Borrower at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and shall
retain and apply to the payment of the Note or Notes held
by, or Reimbursement Obligations owed to, such Bank any
amount in excess of its ratable portion of the payments
received by all of the Banks with respect to the Notes held
by, and Reimbursement Obligations owed to, all of the Banks,
such Bank will make such disposition and arrangements with
the other Banks with respect to such excess, either by way
of distribution, pro tanto assignment of claims, subrogation
or otherwise as shall result in each Bank receiving in
respect of the Notes held by it or Reimbursement Obligations
owed it, its proportionate payment as contemplated by this
Credit Agreement; provided that if all or any part of such
excess payment is thereafter recovered from such Bank, such
disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but without
interest. Such Bank shall notify the Borrower and the Agent
and the other Banks promptly after exercising any right of
setoff.
Section 16. THE AGENTS.
Section 16.1. Authorization.
(a) The Administrative Agent is authorized to
take such action on behalf of each of the Banks and to
exercise all such powers as are hereunder and under any
of the other Loan Documents and any related documents
delegated to the Administrative Agent, together with
such powers as are reasonably incident thereto,
provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to
have been assumed by the Administrative Agent.
(b) The relationship between the Administrative
Agent and each of the Banks is that of an independent
contractor. The use of the term "Administrative Agent"
is for convenience only and is used to describe, as a
form of convention, the independent contractual
relationship between the Administrative Agent and each
of the Banks. Nothing contained in this Credit
Agreement nor the other Loan Documents shall be
construed to create an agency, trust or other fiduciary
relationship between the Administrative Agent and any
of the Banks.
(c) As an independent contractor empowered by the
Banks to exercise certain rights and perform certain
duties and responsibilities hereunder and under the
other Loan Documents, the Administrative Agent is
nevertheless a "representative" of the Banks, as that
term is defined in Article 1 of the Uniform Commercial
Code, for purposes of actions for the benefit of the
Banks and the Administrative Agent with respect to all
collateral security and guaranties contemplated by the
Loan Documents. Such actions include the designation
of the Administrative Agent as "secured party",
"mortgagee" or the like on all financing statements and
other documents and instruments, whether recorded or
otherwise, relating to the attachment, perfection,
priority or enforcement of any security interests,
mortgages or deeds of trust in collateral security
intended to secure the payment or performance of any of
the Obligations, all for the benefit of the Banks and
the Administrative Agent.
(d) The Documentation Agent shall not have any
right, power, obligation, liability, responsibility or
duty under this Credit Agreement in such capacity,
other than those applicable to all Banks as Banks.
Section 16.2. Employees and Agents.
The Administrative Agent may exercise its powers and execute
its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties
under this Credit Agreement and the other Loan Documents.
Section 16.3. No Liability.
Neither the Administrative Agent nor any of its
shareholders, directors, officers or employees nor any other
Person assisting them in their duties nor any Administrative
Agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to
be taken, in good faith by it or them hereunder or under any
of the other Loan Documents, or in connection herewith or
therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the
Administrative Agent or such other Person, as the case may
be, may be liable for losses due to its willful misconduct
or gross negligence.
Section 16.4. No Representations. The Administrative
Agent shall not be responsible for the execution or validity
or enforceability of this Credit Agreement, the Notes, the
Letters of Credit, any of the other Loan Documents or any
instrument at any time constituting, or intended to
constitute, collateral security for the Notes, or for the
value of any such collateral security or for the validity,
enforceability or collectability of any such amounts owing
with respect to the Notes, or for any recitals or
statements, warranties or representations made herein or in
any of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf of the
Borrower, or be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions,
covenants or agreements herein or in any instrument at any
time constituting, or intended to constitute, collateral
security for the Notes or to inspect any of the properties,
books or records of the Borrower or any of its Subsidiaries.
The Administrative Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to
it by the Borrower or any holder of any of the Notes shall
have been duly authorized or is true, accurate and complete.
The Administrative Agent has not made nor does it now make
any representations or warranties, express or implied, nor
does it assume any liability to the Banks, with respect to
the credit worthiness or financial conditions of the
Borrower or any of its Subsidiaries. Each Bank acknowledges
that it has, independently and without reliance upon the
Administrative Agent or any other Bank, and based upon such
information and documents as it has deemed appropriate, made
its own credit analysis and decision to enter into this
Credit Agreement.
Section 16.5. Payments.
Section 16.5.1. Payments to Administrative
Agent.
A payment by the Borrower to the Administrative
Agent hereunder or any of the other Loan Documents for
the account of any Bank shall constitute a payment to
such Bank. The Administrative Agent agrees promptly to
distribute to each Bank such Bank's pro rata share of
payments received by the Administrative Agent for the
account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
Section 16.5.2. Distribution by Administrative
Agent.
If in the opinion of the Administrative Agent the
distribution of any amount received by it in such capacity
hereunder, under the Notes or under any of the other Loan
Documents might involve it in liability, it may refrain from
making distribution until its right to make distribution
shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the
Administrative Agent is to be repaid, each Person to whom
any such distribution shall have been made shall either
repay to the Administrative Agent its proportionate share of
the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be
determined by such court.
Section 16.5.3. Delinquent Banks.
Notwithstanding anything to the contrary contained
in this Credit Agreement or any of the other Loan
Documents, any Bank that fails (i) to make available to
the Administrative Agent its pro rata share of any Loan
or to purchase any Letter of Credit Participation or
(ii) to comply with the provisions of Section 15 with
respect to making dispositions and arrangements with
the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess
of its pro rata share of such payments due and payable
to all of the Banks, in each case as, when and to the
full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "Delinquent
Bank") and shall be deemed a Delinquent Bank until such
time as such delinquency is satisfied. A Delinquent
Bank shall be deemed to have assigned any and all
payments due to it from the Borrower, whether on
account of outstanding Loans, interest, fees or
otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective pro
rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. The Delinquent Bank hereby
authorizes the Administrative Agent to distribute such
payments to the nondelinquent Banks in proportion to
their respective pro rata shares of all outstanding
Loans and Unpaid Reimbursement Obligations. A
Delinquent Bank shall be deemed to have satisfied in
full a delinquency when and if, as a result of
application of the assigned payments to all outstanding
Loans and Unpaid Reimbursement Obligations of the
nondelinquent Banks, the Banks' respective pro rata
shares of all outstanding Loans and Unpaid
Reimbursement Obligations and have returned to those in
effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such
delinquency.
Section 16.6. Holders of Notes.
The Administrative Agent may deem and treat the payee of any
Note or the purchaser of any Letter of Credit Participation
as the absolute owner or purchaser thereof for all purposes
hereof until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder,
assignee or transferee.
Section 16.7. Indemnity.
The Banks ratably agree hereby to indemnify and hold
harmless the Administrative Agent and its affiliates from
and against any and all claims, actions and suits (whether
groundless or otherwise), losses, damages, costs, expenses
(including any expenses for which the Administrative Agent
or such affiliate has not been reimbursed by the Borrower as
required by Section 17), and liabilities of every nature and
character arising out of or related to this Credit
Agreement, the Notes, or any of the other Loan Documents or
the transactions contemplated or evidenced hereby or
thereby, or the Administrative Agent's actions taken
hereunder or thereunder, except to the extent that any of
the same shall be directly caused by the Administrative
Agent's willful misconduct or gross negligence.
Section 16.8. Administrative Agent as Bank.
In its individual capacity, BKB shall have the same
obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as
the holder of any of the Notes and as the purchaser of any
Letter of Credit Participations, as it would have were it
not also the Administrative Agent.
Section 16.9. Resignation.
The Administrative Agent may resign at any time by
giving sixty (60) days prior written notice thereof to the
Banks and the Borrower. Upon any such resignation, the
Majority Banks shall have the right to appoint a successor
Administrative Agent. Unless an Event of Default shall have
occurred and be continuing, such successor Administrative
Agent shall be reasonably acceptable to the Borrower. If no
successor Administrative Agent shall have been so appointed
by the Majority Banks and approved by the Borrower and shall
have accepted such appointment within thirty (30) days after
the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative
Agent, which shall be a financial institution having a
rating of not less than A or its equivalent by S&P. Upon
the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. After any retiring
Administrative Agent's resignation, the provisions of this
Credit Agreement and the other Loan Documents shall continue
in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as
Administrative Agent.
Section 16.10. Notification of Defaults and Events of
Default.
Each Bank hereby agrees that, upon learning of the existence
of a Default or an Event of Default, it shall promptly
notify the Administrative Agent thereof. The Administrative
Agent hereby agrees that upon receipt of any notice under
this Section 16.10 it shall promptly notify the other Banks
of the existence of such Default or Event of Default.
Section 16.11. Duties in the Case of
Enforcement.
In case one of more Events of Default have occurred and
shall be continuing, and whether or not acceleration of the
Obligations shall have occurred, the Administrative Agent
shall, if (i) so requested by the Majority Banks and (ii)
the Banks have provided to the Administrative Agent such
additional indemnities and assurances against expenses and
liabilities as the Administrative Agent may reasonably
request, proceed to enforce the provisions of the Security
Documents authorizing the sale or other disposition of all
or any part of the Collateral Bonds and exercise all or any
such other legal and equitable and other rights or remedies
as it may have in respect of such Collateral Bonds. The
Majority Banks may direct the Administrative Agent in
writing as to the method and the extent of any such sale or
other disposition, the Banks hereby agreeing to indemnify
and hold the Administrative Agent, harmless from all
liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that
the Administrative Agent need not comply with any such
direction to the extent that the Administrative Agent
reasonably believes the Administrative Agent's compliance
with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
Section 17. EXPENSES AND INDEMNIFICATION.
Section 17.1. Expenses.
The Borrower agrees to pay (i) the reasonable costs of
producing and reproducing this Credit Agreement, the other
Loan Documents and the other agreements and instruments
mentioned herein, (ii) any taxes payable by the
Administrative Agent or any of the Banks on or with respect
to the transactions contemplated by this Credit Agreement in
accordance with Section 6.2.2 (the Borrower hereby agreeing
to indemnify the Administrative Agent and each Bank with
respect thereto), (iii) the reasonable fees, expenses and
disbursements of the Administrative Agent's Special Counsel
or any local counsel to the Administrative Agent incurred in
connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other
instruments mentioned herein, each closing hereunder, any
amendments, modifications, approvals, consents or waivers
hereto or hereunder, or the cancellation of any Loan
Document upon payment in full in cash of all of the
Obligations or pursuant to any terms of such Loan Document
for providing for such cancellation, (iv) the reasonable
out-of-pocket fees, expenses and disbursements of the
Administrative Agent or any of its affiliates incurred by
the Administrative Agent or such affiliate in connection
with the preparation, syndication, administration or
interpretation of the Loan Documents and other instruments
mentioned herein, (v) any reasonable out-of-pocket fees,
costs, expenses and bank charges, including bank charges for
returned checks, incurred by the Administrative Agent in
establishing, maintaining or handling agency accounts, lock
box accounts and other accounts for the collection of any of
the Collateral Bonds or the stock of Bangor Energy Resale,
Inc.; and (vi) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and
costs, and reasonable consulting, accounting, appraisal,
investment banking and similar professional fees and
charges) incurred by any Bank or the Administrative Agent in
connection with (A) the enforcement of or preservation of
rights under any of the Loan Documents against the Borrower
or the administration thereof after the occurrence of a
Default or Event of Default and (B) any litigation,
proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or the
Administrative Agent's relationship with the Borrower
hereunder. Notwithstanding the foregoing, the Borrower
shall have no obligation hereunder to the Administrative
Agent or any Bank with respect to any costs or expenses
arising from the gross negligence or willful misconduct of
the Administrative Agent or such Bank, as the case may be.
Section 17.2. Indemnification.
The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Documentation Agent, the Co-
Arrangers, their affiliates and the Banks from and against
any and all liabilities, losses, damages and expense of
every nature and character resulting from any and all
claims, actions and suits whether groundless or otherwise,
arising out of this Credit Agreement or any of the other
Loan Documents or the transactions contemplated hereby
including, without limitation, (i) any actual or proposed
use by the Borrower of the proceeds of any of the Loans or
Letters of Credit, (ii) the Borrower entering into or
performing this Credit Agreement or any of the other Loan
Documents or (iii) with respect to the Borrower and its
Subsidiaries and their respective properties and assets, the
violation of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission,
release or threatened release of any Hazardous Substances or
any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances
(including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in
each case including, without limitation, the reasonable fees
and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding except
for the gross negligence or willful misconduct of the party
indemnified. In litigation, or the preparation therefor,
the Banks and the Administrative Agent and its affiliates
shall be entitled to select their own counsel and, in
addition to the foregoing indemnity, the Borrower agrees to
pay promptly the reasonable fees and expenses of such
counsel. Notwithstanding anything to the contrary herein,
the Borrower shall not be responsible for (i) the cost of
more than one counsel for the Administrative Agent and its
affiliates, and any Bank (that is not the Administrative
Agent) and its affiliates, respectively, or (ii)
settlements, waivers or releases made without Borrower s
consent. If, and to the extent that the obligations of the
Borrower under this Section 17.2 are unenforceable for any
reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such
obligations which is permissible under applicable law.
Section 17.3. Survival.
The covenants contained in this Section 17 shall survive
payment or satisfaction in full of all other Obligations.
Section 18. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and
warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers delivered
by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by
the Banks and the Administrative Agent, notwithstanding any
investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of any of the
Loans and the issuance, extension or renewal of any Letters
of Credit, as herein contemplated, and shall continue in
full force and effect so long as any Letter of Credit or any
amount due under this Credit Agreement or the Notes or any
of the other Loan Documents remains outstanding or any Bank
has any obligation to make any Loans or the Administrative
Agent has any obligation to issue, extend or renew any
Letter of Credit, and for such further time as may be
otherwise expressly specified in this Credit Agreement. All
statements contained in any certificate or other paper
delivered to any Bank or the Administrative Agent at any
time by or on behalf of the Borrower or any of its
Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall constitute
representations and warranties by the Borrower hereunder.
Section 19. ASSIGNMENT AND PARTICIPATION.
Section 19.1. Conditions to Assignment by Banks.
Except as provided herein, each Bank may assign to one
or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit
Agreement (including all or a portion of its Commitment
Percentage and Commitment and/or its Term Loan Percentage
and Term Loan Exposure, and the same portion of the Loans at
the time owing to it and the Notes held by it and, if
applicable, its participating interest in the risk relating
to any Letters of Credit); provided that (i) each of the
Administrative Agent and, unless an Event of Default shall
have occurred and be continuing, the Borrower shall have
given its prior written consent to such assignment, which
consent will not be unreasonably withheld, (ii) each such
assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and
obligations under this Credit Agreement, (iii) each
assignment shall be in a minimum amount of $5,000,000 or, if
a Bank s total Commitment and/or Term Loan Exposure is less
than $5,000,000, in a minimum amount equal to such Bank s
total Commitment and/or Term Loan Exposure, (iv) the parties
to such assignment shall execute and deliver to the
Administrative Agent, for recording in the Register (as
hereinafter defined), an Assignment and Acceptance,
substantially in the form of Exhibit E hereto (an
"Assignment and Acceptance"), together with any Notes
subject to such assignment, (v) so long as no Event of
Default exists, the Administrative Agent and the
Documentation Agent (or their affiliates) shall retain, free
of any such assignment, an amount of not less than
$5,000,000, and (vi) any Bank may at any time, and from time
to time, assign to any branch, lending office, affiliate of
such Bank or Related Fund all or any part of its rights and
obligations under the Loan Documents by notice to the
Administrative Agent and the Borrower. Upon such execution,
delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance,
which effective date shall be at least five (5) Business
Days after the execution thereof, (i) the assignee
thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder, and (ii) the assigning
Bank shall, to the extent provided in such assignment and
upon payment to the Administrative Agent of the registration
fee referred to in Section 19.3, be released from its
obligations under this Credit Agreement.
Section 19.2. Certain Representations and Warranties;
Limitations; Covenants.
By executing and delivering an Assignment and Acceptance,
the parties to the assignment thereunder confirm to and
agree with each other and the other parties hereto as
follows:
(a) other than the representation and warranty
that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any
adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and
assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Credit Agreement or the execution,
legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the
other Loan Documents or any other instrument or
document furnished pursuant hereto or the attachment,
perfection or priority of any security interest or
mortgage,
(b) the assigning Bank makes no representation or
warranty and assumes no responsibility with respect to
the financial condition of the Borrower and its
Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the
Obligations, or the performance or observance by the
Borrower or any other Person primarily or secondarily
liable in respect of any of the Obligations of any of
their obligations under this Credit Agreement or any of
the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a
copy of this Credit Agreement, together with copies of
the most recent financial statements referred to in
Section 8.4 and Section 9.4 and such other documents
and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such
Assignment and Acceptance;
(d) such assignee will, independently and without
reliance upon the assigning Bank, 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 this Credit Agreement;
(e) such assignee represents and warrants that it
is an Eligible Assignee;
(f) such assignee appoints and authorizes the
Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such
powers under this Credit Agreement and the other Loan
Documents as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in
accordance with their terms all of the obligations that
by the terms of this Credit Agreement are required to
be performed by it as a Bank;
(h) such assignee represents and warrants that it
is legally authorized to enter into such Assignment and
Acceptance;
(i) if applicable, such assignee acknowledges
that it has made arrangements with the assigning Bank
satisfactory to such assignee with respect to its pro
rata share of Letter of Credit Fees in respect of
outstanding Letters of Credit; and
(j) if such assignee is not incorporated or
organized under the laws of the United States of
America or a state thereof or the District of Columbia
(a "Non-U.S. Bank"), such assignee agrees that it will
deliver to the Borrower and the Administrative Agent
two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor
applicable form, as the case may be, certifying in each
case that such Non-U.S. Bank is entitled to receive
payments under this Agreement and the Notes payable to
it, without deduction or withholding of any United
States federal income taxes. Each Non-U.S. Bank that
so delivers a Form 1001 or 4224 pursuant to the
preceding sentence further undertakes to deliver to
each of the Borrower and the Administrative Agent two
further copies of Form 1001 or 4224 or successor
applicable form, or other manner of certification, as
the case may be, on or before the date that any such
letter or form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower,
and such extensions or renewals thereof as may
reasonably be requested by the Borrower, certifying in
the case of a Form 1001 or 4224 that such Non-U.S. Bank
is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any
United States federal income taxes, unless in any such
case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise
be required which renders all such forms inapplicable
or which would prevent such Non-U.S. Bank from duly
completing and delivering any such form with respect to
it and such Non-U.S. Bank advises the Borrower that it
is not capable of receiving payments without any
deduction or withholding of United States federal
income tax.
Section 19.3. Register.
The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or
similar list (the "Register") for the recordation of the
names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Term Loan and the
Revolving Credit Loans owing to and Letter of Credit
Participations purchased by, the Banks from time to time.
The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the
Administrative Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder
for all purposes of this Credit Agreement. The Register
shall be available for inspection by the Borrower and the
Banks at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the
assigning Bank agrees to pay to the Administrative Agent a
registration fee in the sum of $3,500, provided that such
registration fee shall not be required for assignments
pursuant to Section 19.1(vi).
Section 19.4. New Notes.
Upon its receipt of an Assignment and Acceptance executed by
the parties to such assignment, together with each Note
subject to such assignment, the Administrative Agent shall
(i) record the information contained therein in the
Register, and (ii) give prompt notice thereof to the
Borrower and the Banks (other than the assigning Bank).
Within five (5) Business Days after receipt of such notice,
the Borrower, at its own expense, shall execute and deliver
to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible
Assignee in an amount equal to the amount assumed by such
Eligible Assignee pursuant to such Assignment and Acceptance
and, if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of the
assigning Bank in an amount equal to the amount retained by
it hereunder. Such new Notes shall provide that they are
replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal
amount of the surrendered Notes, shall be dated the
effective date of such in Assignment and Acceptance and
shall otherwise be substantially the form of the assigned
Notes. The surrendered Notes shall be cancelled and returned
to the Borrower.
Section 19.5. Participations.
Each Bank may sell participations to one or more banks or
other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan
Documents; provided that (i) each such participation shall
be in an amount of not less than $2,500,000, (ii) any such
sale or participation shall not affect the rights and duties
of the selling Bank hereunder to the Borrower, (iii) the
only rights granted to the participant pursuant to such
participation arrangements with respect to waivers,
amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications
that would reduce the principal of or the interest rate on
any Loans, extend the term or increase the amount of the
Commitment and/or Term Loan Exposure of such Bank as it
relates to such participant, reduce the amount of any
commitment fees or Letter of Credit Fees to which such
participant is entitled or extend any regularly scheduled
payment date for principal or interest, and (iv) the
Borrower shall not be obligated to pay any such Bank any
greater amount pursuant to Section 6.2.2, Section 6.6,
Section 6.7 or Section 6.9 in respect of the amount of the
participation transferred by such transferor Bank to such
participant than had no such transfer occurred.
Section 19.6. Disclosure.
The Borrower agrees that in addition to disclosures made in
accordance with standard and customary banking practices any
Bank may disclose information obtained by such Bank pursuant
to this Credit Agreement to assignees or participants and
potential assignees or participants hereunder; provided that
such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such
information unless such information otherwise becomes public
knowledge, (ii) not to disclose such information to a third
party, except as required by law or legal process and (iii)
not to make use of such information for purposes of
transactions unrelated to such contemplated assignment or
participation.
Section 19.7. Assignee or Participant Affiliated with
the Borrower.
If any assignee Bank is an Affiliate of the Borrower,
then any such assignee Bank shall have no right to vote as a
Bank hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the
Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to Section 14.1 or Section
14.2, and the determination of the Majority Banks shall for
all purposes of this Credit Agreement and the other Loan
Documents be made without regard to such assignee Bank's
interest in any of the Loans or Reimbursement Obligations.
If any Bank sells a participating interest in any of the
Loans or Reimbursement Obligations to a participant, and
such participant is the Borrower or an Affiliate of the
Borrower, then such transferor Bank shall promptly notify
the Administrative Agent of the sale of such participation.
A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes of
agreeing to amendments or modifications to any of the Loan
Documents or for purposes of making requests to the
Administrative Agent pursuant to Section 14.1 or Section
14.2 to the extent that such participation is beneficially
owned by the Borrower or any Affiliate of the Borrower, and
the determination of the Majority Banks shall for all
purposes of this Credit Agreement and the other Loan
Documents be made without regard to the interest of such
transferor Bank in the Loans or Reimbursement Obligations to
the extent of such participation.
Section 19.8. Miscellaneous Assignment
Provisions.
Any assigning Bank shall retain its rights to be indemnified
pursuant to Section 17 with respect to any claims or actions
arising prior to the date of such assignment. If any
assignee Bank is not incorporated under the laws of the
United States of America or any state thereof, it shall,
prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its
account, deliver to the Borrower and the Administrative
Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes.
Anything contained in this Section 19 to the contrary
notwithstanding, any Bank may at any time pledge all or any
portion of its interest and rights under this Credit
Agreement (including all or any portion of its Notes) to any
of the twelve Federal Reserve Banks organized under Section
4 of the Federal Reserve Act, 12 U.S.C. Section 341. No
such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of
the other Loan Documents.
Section 19.9. Assignment by Borrower.
The Borrower shall not assign or transfer any of its rights
or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
Section 19.10. Confidentiality. Each of the Banks and
the Administrative Agent agrees, on behalf of itself and
each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep
confidential, in accordance with their customary procedures
for handling confidential information of the same nature and
in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower
pursuant to this Agreement that is identified by such Person
as being "confidential" or "for internal use only" at the
time the same is delivered to the Banks or the Agent,
provided that nothing herein shall limit the disclosure of
any such information (a) after such information shall have
become public other than through a violation of this Section
19.10, (b) to the extent required by statute, rule,
regulation or judicial process, (c) to counsel for any of
the Banks or the Agent, (d) to bank examiners or any other
regulatory authority having jurisdiction over any Bank or
the Agent, or to auditors or accountants, (e) to the Agent
or any Bank, (f) if required pursuant to legal process in
connection with any litigation to which any one or more of
the Banks or the Agent is a party, or in connection with the
enforcement of rights or remedies hereunder or under any
other Loan Document, or (g) to any assignee or participant
(or prospective assignee or participant) so long as such
assignee or participant agrees to be bound by the provisions
of Section 19.6.
Section 20. NOTICES, ETC.
Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or
required to be given pursuant to this Credit Agreement or
the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United
States registered or certified first class mail, postage
prepaid, sent by overnight courier, or sent by telegraph,
telecopy or facsimile and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to the Borrower, at 33 State Street,
Bangor, Maine 04401, Attention: Frederick S. Samp,
Telecopy: 207-990-6963, or at such other address for
notice as the Borrower shall last have furnished in
writing to the Person giving the notice;
(b) if to the Administrative Agent, at 100
Federal Street, Boston, Massachusetts 02110, Attention:
Mr. Michael M. Parker, Managing Director, Telecopy:
617-434-3652, or such other address for notice as the
Administrative Agent shall last have furnished in
writing to the Person giving the notice; and
(c) if to any Bank, at such Bank's address set
forth on Schedule 1 hereto, or such other address for
notice as such Bank shall have last furnished in
writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been
duly given or made and to have become effective (i) if
delivered by hand, overnight courier or facsimile to a
responsible officer of the party to which it is directed, at
the time of the receipt thereof by such officer or the
sending of such facsimile along with receipt of confirmation
and (ii) if sent by registered or certified first-class
mail, postage prepaid, on the third Business Day following
the mailing thereof.
Section 21. GOVERNING LAW.
THIS AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL, PURSUANT TO
NEW YORK GENERAL OBLIGATIONS LAW Section 5-1401, BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF SAID STATE OF NEW
YORK. THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE BORROWER IN ACCORDANCE WITH LAW AT THE
ADDRESS SPECIFIED IN Section 20. THE BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
Section 22. HEADINGS.
The captions in this Credit Agreement are for
convenience of reference only and shall not define or limit
the provisions hereof.
Section 23. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a
separate counterpart, each of which when executed and
delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit
Agreement it shall not be necessary to produce or account
for more than one such counterpart signed by the party
against whom enforcement is sought.
Section 24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in
connection herewith or therewith express the entire
understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit
Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in Section 26.
Section 25. WAIVER OF JURY TRIAL.
Each of the Administrative Agent, the Banks and the
Borrower hereby waive its right to a jury trial with respect
to any action or claim arising out of any dispute in
connection with this Credit Agreement, the Notes or any of
the other Loan Documents, any rights or obligations
hereunder or thereunder or the performance of which rights
and obligations. Except as prohibited by law, all parties
to this Credit Agreement hereby waive any right they may
have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in
addition to, actual damages. The Borrower (a) certifies
that no representative, agent or attorney of any Bank or the
Administrative Agent has represented, expressly or
otherwise, that such Bank or the Administrative Agent would
not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledges that the
Administrative Agent and the Banks have been induced to
enter into this Agreement, the other Loan Documents to which
it is a party by, among other things, the waivers and
certifications contained herein.
Section 26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this
Credit Agreement to be given by the Banks may be given, and
any term of this Credit Agreement, the other Loan Documents
or any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by the
Borrower of any terms of this Credit Agreement, the other
Loan Documents or such other instrument or the continuance
of any Default or Event of Default may be waived (either
generally or in a particular instance and either
retroactively or prospectively) with, but only with, the
written consent of the Borrower and the written consent of
the Majority Banks. Notwithstanding the foregoing, the rate
of interest on the Notes (other than interest accruing
pursuant to Section 6.10.2 following the effective date of
any waiver by the Majority Banks of the Default or Event of
Default relating thereto) hereunder, and the amount of the
Commitments of the Banks and the amount of commitment fee or
Letter of Credit Fees and the amount and time and any other
term or condition or application of any mandatory prepayment
under Section 4.5, may not be changed without the written
consent of the Borrower and the written consent all of the
Banks; the Revolving Credit Loan Maturity Date and the Term
Loan Maturity Date may not be postponed without the written
consent of all of the Banks; any substantial portion of the
Collateral (as defined in the Pledge Agreement) may not be
released without the written consent of all of the Banks
except (a) to the extent expressly contemplated by the
Supplemental Indenture and the Pledge Agreement and (b) to
the extent the aggregate principal amount of the Collateral
Bonds exceeds one-hundred and ten percent (110%) of the sum
of the aggregate Revolving Credit Commitments and the
outstanding principal amount of the Term Loans; this Section
26 and the definition of Majority Banks may not be amended,
without the written consent of all of the Banks; and the
amount of the Agent's Fee or any Letter of Credit Fees
payable for the Administrative Agent's account and Section
16 may not be amended without the written consent of the
Administrative Agent. No waiver shall extend to or affect
any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or
omission on the part of the Administrative Agent or any Bank
in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand
upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.
Section 27. SEVERABILITY.
The provisions of this Credit Agreement are severable
and if any one clause or provision hereof shall be held
invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other
clause or provision of this Credit Agreement in any
jurisdiction.
Section 28. TRANSITIONAL ARRANGEMENTS.
Section 28.1. Chase Credit Agreement Superseded.
This Credit Agreement shall supersede the Chase Credit
Agreement in its entirety, except as provided in this
Section 28. On the Closing Date, the rights and obligations
of the parties under the Chase Credit Agreement and the
"Revolving Credit Notes" and the "Term Notes" as defined
therein shall be subsumed within and be governed by this
Credit Agreement and the Revolving Credit Notes and Term
Notes, respectively.
Section 28.2. Return and Cancellation of
Notes.
Upon its receipt of the Notes to be delivered hereunder on
the Closing Date, each Bank will promptly return to the
Borrower, marked "Canceled", the "Revolving Credit Notes"
and the "Term Notes" of the Borrower held by such Bank as a
Prior Lender pursuant to, and as defined in, the Chase
Credit Agreement, if any.
Section 28.3. Interest and Fees Under Superseded
Agreement.
All interest and all commitment, facility and other
fees and expenses owing or accruing under or in respect of
the Chase Credit Agreement shall be calculated as of the
Closing Date in accordance with the Transitional
Arrangements Letter and the Borrower shall be responsible
for such fees, including any breakage fees.
Section 28.4. No Claims Under Chase Credit
Agreement.
Each Bank wishes (and the Borrower agrees) to eliminate any
possibility that any past conditions, acts, omissions,
events, circumstances or matters would impair or otherwise
adversely affect such Bank's rights, interests, contracts,
collateral security or remedies. Therefore, the Borrower
unconditionally releases, waives and forever discharges (i)
any and all liabilities, obligations, duties, promises or
indebtedness of any kind of such Bank or Prior Lender to the
Borrower regarding the execution, delivery or performance of
the Chase Credit Agreement or any of the other Loan
Documents (as defined in the Chase Credit Agreement), except
the obligations to be performed by such Bank for the
Borrower as expressly stated in this Credit Agreement and
the other Loan Documents (as defined in this Credit
Agreement), and (ii) all claims, offsets, causes of action,
suits or defenses of any kind whatsoever (if any), whether
known or unknown, which the Borrower might otherwise have
against such Bank or Prior Lender or any of their directors,
offices, employees or agents, in either case (i) or (ii), on
account of any condition, act, omission, event, contract,
liability, obligation, indebtedness, claim cause of action,
defense, circumstance or matter of any kind whatsoever which
existed, arose or occurred at any time prior to the date
hereof regarding the execution, delivery or performance of
the Chase Credit Agreement or any of the Loan Documents (as
defined in the Chase Credit Agreement).
Section 28.5. Interbank Settlements.
On the Closing Date, each of the Banks shall pay to
each of the Prior Lenders such amounts as may be necessary
so as to result in the outstanding amount of Loans made by
each Bank being equal to such Bank's Commitment Percentage
and/or Term Loan Percentage of the aggregate amount of Loans
outstanding as of the Closing Date. The Borrower and the
Banks hereby agree that all amounts paid to any Bank or
Prior Lender by any other Bank in connection with interbank
settlements with respect to Loans outstanding immediately
prior to the date hereof shall be deemed to constitute Loans
under the Credit Agreement.
Section 28.6. Intercreditor Agreement with Bangor
Energy Banks. The Banks hereby agree to, ratify and confirm the Bangor
Energy Intercreditor Agreement on the terms set forth
therein, and further confirm that any matters concerning
such agreement or the intercreditor arrangements set forth
therein shall be governed by the provisions of the Bangor
Energy Intercreditor Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the undersigned have duly executed
this Credit Agreement as of the date first set forth above.
BANGOR HYDRO-ELECTRIC COMPANY
By:
Name:
Title:
BANKBOSTON, N.A., individually
and as Administrative Agent
By:
Name:
Title:
FLEET NATIONAL BANK,
individually and as
Documentation Agent
By:
Name:
Title:
PEOPLES HERITAGE BANK
By:
Name:
Title:
BANK OF SCOTLAND
By:
Name:
Title:
DEEPROCK & COMPANY
By: Eaton Vance Management,
as Investment Advisor
By:
Name:
Title:
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.
As: Attorney-in-Fact and on
behalf of First Allmerica
Financial Life Insurance
Company as Portfolio
Manager
By:
Name:
Title:
KZH-CYPRESSTREE-1 CORPORATION
By:
Name:
Title:
CYPRESSTREE BOSTON PARTNERS
By:
Name:
Title: