CREDIT AGREEMENT
by and among
EASTERN ENTERPRISES,
BOSTON GAS COMPANY,
MIDLAND ENTERPRISES INC.,
FIFTH THIRD BANK,
MELLON BANK, N.A.,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONAL WESTMINSTER BANK PLC,
SHAWMUT BANK, N.A.,
THE BANK OF NOVA SCOTIA,
and
THE FIRST NATIONAL BANK OF BOSTON,
INDIVIDUALLY AND AS AGENT
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$100,000,000
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Dated as of December 31, 1994
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TABLE OF CONTENTS
Paragraph Heading Page
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1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional provisions 16
PRELIMINARY MATTERS 16
2. AMOUNT AND TERMS OF LOANS 17
2.1 A Loans 17
2.2 Procedure for A Borrowings 17
2.3 B Loans and Procedure for B Borrowings 19
2.4 Notes 23
2.5 Voluntary Reductions of the Aggregate
Commitments; Termination 23
(a) Voluntary Reductions 23
(b) General 23
2.6 Prepayments and Payment of Loans 24
(a) Voluntary Prepayments 24
(b) Mandatory Repayments of Short Term Loans 24
(c) Mandatory Repayment 24
2.7 Conversion Options 25
(a) Conversion 25
(b) Continuation 25
2.8 Interest Rate and Payment Dates for Loans 25
(a) Interest Rates for Loans Prior to Maturity 25
(b) Interest on Overdue Principal 26
(c) General 26
2.9 Substituted Interest Rate 26
2.10 Illegality 27
2.11 Increased Costs 27
2.12 Indemnity 28
2.13 Capital Adequacy 29
2.14 Extension to Termination Date 30
2.15 Notice of Costs; Substitution of Banks 31
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3. FEES; PAYMENTS 32
3.1 Facility Fee 32
3.2 Fees of the Agent 32
3.3 Computation of Interest and Fees 32
3.4 Pro Rata Treatment and Application
of Principal Payments 33
4. REPRESENTATIONS AND WARRANTIES 33
4.1 Subsidiary 33
4.2 Existence and Power 33
4.3 Authority 34
4.4 Binding Agreement 34
4.5 Litigation 34
4.6 No Conflicting Agreements 35
4.7 Taxes 35
4.8 Financial Statements 36
4.9 Compliance with Applicable Laws 36
4.10 Governmental Regulations 37
4.11 Property 37
4.12 Federal Reserve Regulations 37
4.13 No Misrepresentation 37
4.14 Pension Plans 37
4.15 Public Utility Holding Company Act 38
4.16 Approvals 38
4.17 Net Plant Surplus 38
5. CONDITIONS OF BORROWING - FIRST BORROWING 38
5.1 Notes 38
5.2 Guaranty 38
5.3 Accession Agreement, etc. 39
5.4 Financial Statements 39
5.5 Evidence of Corporate or Trust Action
of Borrower 39
5.6 Evidence of Corporate or Trust Action
of Guarantor 39
5.7 Opinions of General Counsel 40
5.8 Existing Credit Facility 42
5.9 Fees 42
5.10 Approval of Special Counsel 42
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6. CONDITIONS OF BORROWING - ALL BORROWINGS 42
6.1 Compliance 42
6.2 Loan Closings 42
6.3 DPU Approval 42
6.4 Opinion of General Counsel of Boston Gas 43
6.5 Approval of Counsel 43
6.6 Borrowing Request 43
6.7 Legality of Transactions 43
6.8 Borrowers other than Eastern 43
6.9 Other Documents 43
7. AFFIRMATIVE COVENANTS 43
7.1 Existence 44
7.2 Taxes 44
7.3 Insurance 44
7.4 Payment of Indebtedness and Performance of
Obligations 44
7.5 Observance of Legal Requirements; ERISA 45
7.6 Financial Statements and Other Information 45
7.7 Inspection 47
8. NEGATIVE COVENANTS 47
8.1 Indebtedness 47
8.2 Liens 47
8.3 Minimum Fixed Charge Coverage 48
8.4 Minimum Consolidated Adjusted Tangible
Net Worth 48
8.5 Maximum Funded Debt to Total
Capitalization Ratio 48
8.6 Mergers, Consolidations and Disposition
of Assets, Etc. - Boston Gas and Midland 48
8.6A Merger or Consolidation - Eastern 50
8.6B Merger, Consolidation, Disposition of
Assets, Etc. - Other Borrowers 51
8.7 Restrictive or Inconsistent Agreements 51
8.8 Federal Reserve Regulations 52
9. EVENTS OF DEFAULT 52
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10. THE AGENT 56
10.1 Appointment 56
10.2 Delegation of Duties, Etc. 56
10.3 Indemnification 56
10.4 Exculpatory Provisions 57
10.5 Agent in its Individual Capacity 57
10.6 Knowledge of Default 58
10.7 Resignation of Agent 58
10.8 Requests to the Agent 58
11. NOTICES 59
11.1 Manner of Delivery 59
11.2 Distribution of Copies 61
11.3 Notices by the Agent or a Bank 61
12. RIGHT OF SET-OFF 61
13. AMENDMENTS, WAIVERS, AND CONSENTS 62
14. OTHER PROVISIONS 63
14.1 No Waiver of Rights by the Banks 63
14.2 Headings, Plurals 63
14.3 Counterparts 63
14.4 Severability 64
14.5 Integration 64
14.6 Sales and Participations in Loans and Notes;
Successors and Assigns;
Survival of Representations and Warranties 64
14.7 Applicable Law 66
14.8 WAIVER OF TRIAL BY JURY 66
14.9 CONSENT TO JURISDICTION 67
14.10 SERVICE OF PROCESS 67
14.11 NO LIMITATION ON SERVICE OR SUIT 67
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15. OTHER OBLIGATIONS OF THE BORROWERS 68
15.1 Taxes and Fees 68
15.2 Expenses 68
15.3 Indemnification 68
16. IMMUNITY OF INDIVIDUALS 69
17. EFFECTIVE DATE 69
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EXHIBITS
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EXHIBIT A Commitments
EXHIBIT B Applicable Margins/Percentages for Facility Fee
EXHIBIT C Form of A Borrowing Request
EXHIBIT D Form of B Borrowing Request
EXHIBIT E Form of Revolving Credit Note
EXHIBIT F Form of Eastern Enterprises Guaranty
EXHIBIT G Form of Commitment Extension Request
EXHIBIT H List of Subsidiaries
EXHIBIT I Form of Opinion of Special Counsel
EXHIBIT J Compliance Certificate
EXHIBIT K Form of Accession Agreement
CREDIT AGREEMENT, dated as of December 31, 1994, among (a) EASTERN
ENTERPRISES, a Massachusetts voluntary association, BOSTON GAS COMPANY, a
Massachusetts corporation, MIDLAND ENTERPRISES INC., a Delaware corporation, the
other Subsidiaries of Eastern which from time to time become parties hereto in
accordance with paragraph 5.3, and any successor entities which may from time to
time become parties hereto in accordance with paragraphs 8.6 and 8.6A
(collectively, the "Borrowers"), (b) the Signatory Banks hereto (each, a
"Bank" and, collectively, the "Banks"), and (c) THE FIRST NATIONAL BANK OF
BOSTON ("FNBB"), as agent for the Banks hereunder (in such capacity, the
"Agent").
1. DEFINITIONS.
1.1 Defined Terms. As used in this Agreement, the following terms have
the following meanings:
"A Borrowing": a Borrowing of additional principal amounts pursuant to
paragraph 2.2 consisting of simultaneous A Loans of the same Type made by each
Bank.
"A Borrowing Request": as defined in paragraph 2.2.
"A Loan": a Loan made pursuant to paragraph 2.1.
"Accession Agreement": as defined in paragraph 5.3.
Accountants": Arthur Andersen & Co., or such other firm of certified
public accountants of recognized national standing selected by the Borrowers.
"Affected Loan": as defined in paragraph 2.9.
"Affected Principal Amount": (a) in the event that any Borrower shall
fail for any reason to borrow a Eurodollar Rate Loan or a B Loan to be made at
other than a floating rate after it shall have delivered an A Borrowing Request
therefor to the Agent or accepted one or more offers therefor under paragraph
2.3(a)(iii)(B), an amount equal to the principal amount of such Eurodollar Rate
Loan or B Loan; (b) in the event that the right of any Borrower to have a
Eurodollar Rate Loan outstanding hereunder shall be suspended or shall terminate
for any reason prior to the last day of the Interest Period applicable thereto,
an amount equal to the principal amount of such Eurodollar Rate Loan; and (c) in
the event that any
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Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Rate Loan or a B Loan made at other than a floating rate prior to the
last day of the Interest Period applicable thereto, an amount equal to the
principal amount so prepaid or repaid.
"Affiliate": a Person that directly or indirectly, or through one or
more intermediaries, controls or is controlled by or is under common control
with another Person. The term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agent": as defined in the introductory paragraph hereto.
"Agent's Fees": as defined in paragraph 3.2.
"Aggegate Commitments": the sum of the Commitments set forth in Exhibit
A as the same may be reduced pursuant to paragraph 2.5.
"Agreement": this Credit Agreement, as same may be amended, supplemented
or otherwise modified from time to time.
"Alternate Base Rate": the higher of (a) the annual rate of interest
announced from time to time by FNBB at its head office in Boston, Massachusetts,
as its "base rate" and (b)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 Agent from three
funds brokers of recognized standing selected by the Agent.
"Alternate Base Rate Loans": A Loans (or any portion thereof) at such
time as they (or such portions) are made or are being maintained at a rate of
interest based upon the Alternate Base Rate.
"Applicable Lending Office": as to any Bank, such Bank's Domestic
Lending Office or Eurodollar Lending Office, as the case may be.
"Applicable Margin": the additional rate per annum to be added to the
interest rate at which each Eurodollar Rate Loan is made determined by reference
to Exhibit B hereto based upon the Funded Debt to Total Capitalization Ratio.
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"Authorized Signatory": the president, any vice president, the
treasurer, the secretary, or any other duly authorized officer of any Borrower
acceptable to the Agent.
"B Borrowing": a Borrowing of additional principal amounts pursuant to
paragraph 2.3 consisting of simultaneous B Loans from each of the Banks whose
offer to make a B Loan as part of such Borrowing has been accepted by the
applicable Borrower under the auction bidding procedure set forth in paragraph
2.3.
"B Borrowing Request": as defined in paragraph 2.3.
"B Loan": a Loan made pursuant to paragraph 2.3.
"B Reduction": as to any Bank on any date, an amount equal to such
Bank's Commitment Percentage of the aggregate principal amount of all B Loans
outstanding on such date (after giving effect to the payment of any B Loans to
be paid on such date).
"Banks": as defined in the introductory paragraph hereto.
"Borrowers": as defined in the introductory paragraph hereto.
"Borrowing": an A Borrowing or a B Borrowing, as the case may be.
"Borrowing Request": an A Borrowing Request or a B Borrowing Request, as
the case may be.
"Borrowing Date": any date specified in a Borrowing Request delivered
pursuant to paragraph 2.2 or paragraph 2.3 as a date on which any Borrower
requests the Banks to make Loans comprising an A Borrowing or a B Borrowing
hereunder.
"Boston Gas": Boston Gas Company, a Massachusetts corporation, or any
successor thereto by merger, consolidation or acquisition of assets or stock
permitted under paragraph 8.6 which assumes all of the obligations of the prior
Boston Gas hereunder as provided in paragraph 8.6.
"Business Day": for all purposes other than as set forth in clause (b)
below, (a) any day other than a Saturday, Sunday or other day on which
commercial banks located in New York City or Boston are authorized or required
by law or other governmental actions to close and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on Eurodollar Loans, any day which is a Business Day described in
clause (a) above and which is also a day on which dealings in foreign currency
and exchange and Eurodollar funding between banks may be carried on in London,
New York City and Boston.
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"Capitalized Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real and/or personal property which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP and, for purposes of this Agreement, the amount
of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
"Code": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued hereunder, as from time to time in effect.
"Commitment": in respect of any Bank, such Bank's undertaking to make A
Loans to the Borrowers, subject to the terms and conditions hereof, in an
aggregate outstanding principal amount equal to but not exceeding the amount set
forth next to the name of such Bank on Exhibit A under the heading "Commitment",
as the same may be reduced pursuant to paragraph 2.5, less the amount of such
Bank's B Reduction, if any.
"Commitment Extension Request": a request duly executed by an Authorized
Signatory substantially in the form of Exhibit G.
"Commitment Percentage": as to any Bank, the percentage set forth
opposite the name of such Bank on Exhibit A under the heading "Commitment
Percentage".
"Commonly Controlled Entity": with respect to any Person, any other
Person which is under common control with such Person within the meaning of
Section 414(b) or 414(c) of the Code.
"Consolidated": (a) with respect to any term defined herein, shall mean
that term as applied to the accounts of Eastern and its Subsidiaries,
consolidated in accordance with GAAP, and (b) with respect to any Person, such
Person and its Subsidiaries taken as a whole.
"Consolidated Adjusted Tangible Net Worth": the excess of Consolidated
Total Assets over Consolidated Total Liabilities, less the total book value of
all assets of Eastern and its Subsidiaries properly classified as goodwill under
GAAP.
"Consolidated EBITDA": for any period, the sum of (a) Consolidated Net
Income for such period, (b) Consolidated Total Interest Expense for such
period, (c) the aggregate amount of all federal, state and local income taxes
accrued by Eastern and its Subsidiaries for such period and (d) the aggregate
amount of
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depreciation and amortization expense of Eastern and its Subsidiaries for such
period, in each case determined on a consolidated basis in accordance with GAAP.
"Consolidated Funded Debt": all Funded Debt of Eastern and its
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income": means, with respect to Eastern and its
Subsidiaries for any period, the aggregate net income (or loss) of Eastern and
its Subsidiaries for such period, before discontinued operations, extraordinary
items and the cumulative effect of a change in accounting principles of Eastern
and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP, provided that there shall also be excluded from Consolidated Net Income
(a) any net gains or losses in respect of dispositions of assets other than in
the ordinary course of business; (b) any gains or losses realized upon the
refinancing of any Indebtedness of Eastern or any of its Subsidiaries; (c) any
gains or losses arising from the destruction of assets due to fire or other
casualty; (d) any gains or losses from the revaluation of assets; (e) the net
income (or loss) of any Person other than Eastern and its Subsidiaries except to
the extent of cash dividends or distributions paid to Eastern or its
Subsidiaries by such Person in such period; and (f) the net income (or loss) of
any Subsidiary of Eastern that is subject to any restriction or limitation on
the payment of dividends and other distributions (including loans or advances)
by operation of the terms of its Charter or By-Laws or other organizational
documents or by any contractual obligation or applicable law, to the extent of
such restriction or limitation in such period.
"Consolidated Total Assets": all assets of Eastern and its Subsidiaries
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Interest Expense": for any period, without
duplication, the sum of (a) the interest expense of Eastern and its Subsidiaries
for such period and (b) the interest component of Capitalized Lease Obligations
of Eastern and its Subsidiaries for such period; in each case, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Liabilities": all liabilities of Eastern and its
Subsidiaries determined on a consolidated basis in accordance with GAAP,
including minority interests held by other Persons in Boston Gas or Midland or
any of their Subsidiaries determined in accordance with GAAP.
"Conversion Date": the date on which an A Loan of one Type is converted
to an A Loan of another Type or continued as an A Loan of the same Type.
"DPU": the Massachusetts Department of Public Utilities.
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"Designated Documents": Eastern's, Boston Gas' and Midland's 1993 Form
10-K's and Eastern's, Boston Gas' and Midland's quarterly reports on Form 10-Q's
for the fiscal quarters of such Borrowers ended March 31, 1994, June 30, 1994
and September 30, 1994.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Lending Office": as to any Bank, initially the office of such
Bank designated as such on the signature page hereof, and thereafter such other
office, as reported by such Bank to the Agent, that shall be making or
maintaining Alternate Base Rate Loans.
"Eastern": Eastern Enterprises, a Massachusetts voluntary association,
or any successor thereto by merger permitted under paragraph 8.6A which assumes
all of the obligations of the prior Eastern hereunder as provided in paragraph
8.6A.
"Effective Date": as defined in paragraph 17.
"Environmental Law": any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment, including, without limitation, ambient air, surface water, ground
water or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or hazardous substances
or wastes.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the rules and regulations issued thereunder, as from time
to time in effect.
"Eurocurrency Reserve Rate": for any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any lender 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 Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in such reserve rate for
"Eurocurrency Liabilities."
"Eurodollar Lending Office": as to any Bank, initially the office of
such Bank designated as such on the signature page hereof, and thereafter such
other office, as
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reported by such Bank to the Agent, that shall be making or maintaining
Eurodollar Rate Loans.
"Eurodollar Rate": for any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (i) the arithmetic average of the rates
per annum for each Reference Bank (rounded upwards to the nearest 1/100 of one
percent) of the rate at which such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such Eurodollar Lending Office are
customarily conducted at or about 10:00 a.m., Boston time, for delivery on the
first day of such Interest Period for the number of days comprised therein and
in an amount comparable to the amount of the Eurodollar Rate Loan of such
Reference Bank to which such Interest Period applies, divided by (ii) a number
equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable. Each
determination by the Agent of the Eurodollar Rate shall be presumed to be
correct in the absence of manifest error.
"Eurodollar Rate Loans": A Loans (or any portions thereof) at such time
as they (or such portions) are made or being maintained at a rate of interest
based upon the Eurodollar Rate.
"Event of Default": any of the events specified in paragraph 9, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Existing Credit Facility": (a) the Amended and Restated Credit
Agreement dated as of December 1, 1984 among Eastern, the financial institutions
from time to time party thereto and FNBB, as agent for such financial
institutions, and (b) the other documents, instruments and agreements executed
and/or delivered in connection with such Credit Agreement, in each case, as
amended, supplemented or otherwise modified prior to the Effective Date.
"FNBB": The First National Bank of Boston, a national banking
association.
"Facility Fee": as defined in paragraph 3.1.
"Funded Debt": with respect to any Person and as at any date of
determination thereof, without duplication, (a) all Indebtedness of such Person
under the Loan Documents as at such date, (b) all other Indebtedness of such
Person for money borrowed (whether recourse or non-recourse) which by its terms
matures at, or is extendable or renewable at the option of such Person to, a
date more than twelve (12) months after such date and (c) the principal
component of all Capitalized Lease Obligations of such Person maturing more than
twelve (12) months after such date.
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"FNBB": as defined in the introductory paragraph hereto.
"Funded Debt to Total Capitalization Ratio": as defined in paragraph
8.5.
"GAAP": generally accepted accounting principles from time to time
followed by companies engaged in businesses similar to that of Eastern and its
Subsidiaries, except as otherwise required by any applicable rules, regulations
or orders of the DPU, or other public regulatory authority having jurisdiction
over the accounts of Eastern or any of its Subsidiaries; provided that Eastern
or any of its Subsidiaries may at any time contest or controvert in good faith
the validity or applicability to Eastern or any of its Subsidiaries of any such
rule, regulation or order.
"Governmental Body": any nation or government, any state or other
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions, of, or pertaining to,
government, and any court or arbitrator.
"Guarantor": Eastern, in its capacity as executor of one or more
Guaranties.
"Guaranty": as defined in paragraph 5.2.
"Indebtedness": with respect to any Person, all obligations and
liabilities, contingent or otherwise, of such Person in respect of (a)
indebtedness for borrowed money, whether secured or unsecured, and whether
recourse or non-recourse, properly classified and accounted for as debt on a
balance sheet of such Person in accordance with GAAP; (b) letters of credit and
bankers' acceptances; and (c) guarantees and surety obligations with respect to
indebtedness described in clause (a) above of another Person.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the
last day of each March, June, September and December commencing on the first
such day to occur after such Loan is made or any Eurodollar Rate Loan is
converted to an Alternate Base Rate Loan, and the date each Alternate Base Rate
Loan is paid in full, (b) as to any Eurodollar Rate Loan in respect of which
any Borrower has selected an Interest Period of one, two or three months, the
last day of such Interest Period, (c) as to any Eurodollar Rate Loan having an
Interest Period of six months, the last day and, in addition, the numerically
corresponding day (or, if there is no numerically corresponding day, the last
day) in the calendar month that is three months after the first day, of such
Interest Period and (d) with respect to any B Loan, the maturity date for such B
Loan established pursuant to the B Borrowing Request with respect thereto
delivered under paragraph 2.3(a)(i) and if the Interest Period with respect
thereto exceeds ninety (90) days, the 90th day of such Interest Period and each
90th day thereafter.
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"Interest Period": (a) with respect to any Eurodollar Rate Loan
comprising the same A Borrowing:
(i) initially, the period commencing on, as the case may be, the
Borrowing Date or a Conversion Date with respect to such Eurodollar Rate
Loan, and ending one, two, three or six months thereafter, as selected
by the applicable Borrower in its irrevocable A Borrowing Request as
provided in paragraph 2.2 or its irrevocable notice of conversion as
provided in paragraph 2.7; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Rate Loan and
ending one, two, three or six months thereafter, as selected by the
applicable Borrower in its irrevocable notice of continuation as
provided in paragraph 2.7; and
(b) with respect to any B Loan comprising the same B Borrowing,
initially, the period commencing on the Borrowing Date with respect to such B
Loan and ending on the maturity date therefor specified in the B Borrowing
Request with respect thereto delivered as provided in paragraph 2.3(a)(i);
provided, however, that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Rate Loan
would otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding 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 Business Day;
(ii) if, with respect to the conversion of any A Loan, the
applicable Borrower shall fail to give due notice as provided in
paragraph 2.7 for such A Loan, such A Loan shall be automatically
converted to an Alternate Base Rate Loan upon the expiration of the
Interest Period with respect thereto;
(iii) any Interest Period pertaining to a Eurodollar Rate Loan that
begins on the last 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 Business Day of a
calendar month;
(iv) the applicable Borrower shall select Interest Periods
relating to Eurodollar Rate Loans so as not to have more than twelve
different Interest Periods relating to Eurodollar Rate Loans
outstanding at any one time; and
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(v) the applicable Borrower shall select Interest Periods
pertaining to Eurodollar Rate Loans such that, on the date the mandatory
repayment is required to be made under paragraph 2.6(b), the outstanding
principal amount of all Alternate Base Rate Loans and Eurodollar Rate
Loans and B Loans with Interest Periods ending on the date of such
payment shall equal the aggregate principal amount of the Loans required
to be repaid on such date.
"Lien": any mortgage, pledge, hypothecation, assignment for security,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or security interest of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any jurisdiction).
"Loan Documents": collectively, this Agreement, the Notes, the Accession
Agreements, if any, and the Guaranties, if any.
"Loan": an A Loan or a B Loan, as the case may be, including, without
limitation, any A Loans or B Loans which constitute Short Term Loans.
"Majority Banks": (a) at any time when no Loans are outstanding, Banks
having at least 66 2/3% of the Aggregate Commitments; (b) at any time when Loans
are outstanding, Banks holding at least 66 2/3% of the outstanding A Loans; and
(c) at any time when only B Loans are outstanding, Banks having at least 66 2/3%
of the Aggregate Commitments (whether used or unused) except for purposes of the
first unlettered paragraph of paragraph 9 in which case "Majority Banks" shall
mean Banks holding at least 66 2/3% of the outstanding B Loans.
"Midland": Midland Enterprises Inc., a Delaware corporation, or any
successor thereto by merger, consolidation or acquisition of assets or stock
permitted under paragraph 8.6 which assumes all of the obligations of the prior
Midland hereunder as provided in paragraph 8.6.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Securities Proceeds": means, with respect to the issuance by any
Borrower of any shares of capital stock or any warrants, options or other rights
with respect thereto, the gross amount of cash consideration payable to or
receivable by such Borrower in respect of such issuance, less (to the extent
applicable and without duplication) sales and underwriting commissions, legal,
investment banking and accounting fees and disbursements, printing expenses, any
governmental fees and
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other reasonable expenses incurred in connection with such issuance and payable
by such Borrower. If such Borrower receives any property or other assets (other
than cash) as part of the consideration for any such issuance, Net Security
Proceeds shall be deemed to include the fair market value of such property or
other assets.
"Non-Consenting Bank": as defined in paragraph 2.14.
"Notes": as defined in paragraph 2.4.
"Participating Bank": as defined in paragraph 2.3.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA, or any Governmental Body succeeding to the
functions thereof.
"Permitted Liens": with respect to the assets of the Borrowers, any of
the following Liens:
(a) Liens to secure Taxes imposed upon any Borrower for sums not
overdue or which are being contested in accordance with the provisions
of paragraph 7.2;
(b) Liens made by any Borrower in the ordinary course of its
business (i) to secure payment of workers' compensation, unemployment
insurance, or other forms of governmental insurance or benefits, (ii) to
secure performance of bids, tenders, statutory obligations, leases and
contracts (other than contracts relating to borrowed money), or (iii) to
secure surety, appeal, indemnity or performance bonds, in each case in
the ordinary course of business of such Person, and in each case, for
sums not overdue or which are being contested in accordance with the
provisions of paragraph 7.4;
(c) Liens of carriers, warehousemen, mechanics, landlords or
materialmen or other like liens incurred in the ordinary course of the
business of any Borrower, in each case, for sums not overdue or which
are being contested in good faith by appropriate proceedings, and for
which appropriate reserves with respect thereto have been established
and maintained on the consolidated books of the Borrower and its
Subsidiaries in accordance with GAAP to the extent required under such
principles;
(d) Liens with respect to judgments covered by insurance, or upon
appeal and covered by supersedeas bond, or if not so covered, not
exceeding at any one time $1,000,000 in the aggregate with respect to
any Borrower;
(e) any Lien, money sufficient for the discharge of which has been
deposited in trust with the trustee or mortgagee under the instrument
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evidencing such Lien, with irrevocable authority to the trustee or
mortgagee to apply such money to the discharge of such Lien to the
extent required for such purpose;
(f) in the case of Boston Gas, Liens securing obligations neither
assumed by Boston Gas nor on account of which it customarily pays
interest directly or indirectly, existing upon real estate or rights in
or relating to real estate acquired by Boston Gas for substation or
compressor station purposes, or transmission, distribution or other
right-of-way purposes;
(g) any right which any municipal or governmental body or agency
may have by virtue of any franchise, license, contract or statute to
purchase, or designate a purchaser of or order the sale of, any property
of any Borrower upon payment of reasonable compensation therefor, or to
terminate any franchise, license or other rights, or to regulate the
property or business of any Borrower;
(h) easements or reservations in respect of any property of any
Borrower for the purpose of roads, pipelines, gas transmission and
distribution lines, or other rights-of-way, zoning ordinances,
regulations, reservations, restrictions, covenants, party wall
agreements, conditions or record and other encumbrances (other than
securing the payment of money), none of which are such as to interfere
with the proper operation and development of the property affected
thereby in the business of such Borrower for the use intended;
(i) any defects of title and any terms, conditions, agreements,
covenants, exceptions and reservations expressed or provided in the
deeds or other instruments under and by virtue of which any Borrower has
acquired any property or shall hereafter acquire any property, none of
which materially adversely affects the operation of the property of such
Borrower and its Subsidiaries taken as a whole;
(j) Liens and charges incidental to construction or current
operations which have not at the time been filed or asserted or the
payment of which has been adequately secured or which are insignificant
in amount;
(k) the pledge of any cash or marketable securities for the purpose
of obtaining any indemnity, performance or other similar bonds in the
ordinary course of business, or as security for the payment of taxes or
other assessments being contested in accordance with the provisions of
paragraph 7.2, or for the purpose of obtaining a stay or discharge in
the course of any legal proceedings;
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(1) the pledge or assignment in the ordinary course of business of
accounts receivable, or customers' installment paper, representing part
or all of the purchase price of appliances or equipment;
(m) Liens incident to transactions under securities repurchase
agreements providing for the transfer of securities against the transfer
of funds with a simultaneous agreement to transfer back such securities
against the transfer of funds at a certain date or on demand;
(n) Liens in respect of the Indenture of First Mortgage from Boston
Gas to The National Shawmut Bank of Boston, as Trustee, dated as of May
1, 1965, securing Boston Gas' First Mortgage Bonds heretofore issued, or
any indenture supplemental thereto subjecting any property or assets of
Boston Gas to the Lien thereof or confirming the Lien thereof upon any
property or assets of Boston Gas, whether now owned or hereafter
acquired; provided that the aggregate principal amount of the
Indebtedness secured by any such Liens shall not at any time exceed the
aggregate principal amount of the Indebtedness secured by any such Liens
on the Effective Date;
(o) Liens on barges, boats and other vessels now owned or hereafter
acquired by Midland or any of its Subsidiaries and on related items, and
hire, freight, earnings, revenues, profits and/or income from any such
barges, boats or other vessels, including, without limitation, such
Liens in respect of (i) the Indenture of First Preferred Ship Mortgage
from Midland to Shawmut Bank, N.A., as Trustee, dated as of April 1,
1988, (ii) the Indenture of First Preferred Ship Mortgage from Midland
to The First National Bank of Boston, as Trustee, dated as of April 2,
1990, and (iii) similar ship mortgage indentures hereafter entered into
by Midland and its Subsidiaries;
(p) Liens on any property or assets of any Borrower existing at
the time of acquisition of such property or assets by such Borrower,
whether by purchase, merger or otherwise, and not created in
contemplation of such acquisition; or Liens on any property or assets of
any Borrower securing the payment of all or any part of the purchase
price or the cost of construction, renovation or expansion thereof,
including the extension of any such Lien to repairs, replacements,
substitutions, betterments, additions and improvements then or
thereafter made on the property or assets subject to such Lien; provided
that, in each case, no such Lien shall extend to any other properties or
assets of any Borrower except as expressly set forth above; or
(q) any Liens securing extensions, renewals or refinancings (or
successive extensions, renewals or refinancings), in whole or in part,
of any Indebtedness secured by Liens permitted by the foregoing clauses
(k) and (1); provided that no such extension, renewal or refinancing
shall increase the
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principal amount of any such Indebtedness or extend any such Lien to
any other properties or assets of any Borrower.
"Person": an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Body or any other entity of whatever nature.
"Plan": any pension plan which is covered by Title IV of ERISA and in
respect of which any Borrower or a Commonly Controlled Entity is an "employer"
as defined in Section 3(5) of ERISA.
"Primary Business" means (i) a business consisting primarily of the
distribution, transportation, storage, or marketing of natural gas and related
activities, or (ii) a business consisting primarily of the transportation of
freight by barge on inland waterways, including, without limitation, the
intracoastal waterways of the gulf coast and the Atlantic coast, and related
activities.
"Primary Business Acquisitions" means, with respect to Boston Gas or
Midland, the acquisition of (a) property or assets to be used by such Borrower
in connection with one or more aspects of a Primary Business and/or (b) shares
of capital stock of a Person engaged primarily in one or more aspects of a
Primary Business, so long as, in each case, no Event of Default is continuing
immediately prior to such acquisition, and no Event of Default would result
therefrom.
"Property": all types of real, personal, tangible, intangible or mixed
property.
"Reference Bank(s)": FNBB and Morgan Guaranty Trust Company of New York.
"Regulation D": Regulation D of the Board of Governors of the Federal
Reserve System, as amended from time to time.
"Remaining Interest Period": (a) in the event that any Borrower shall
fail for any reason to effect an A Borrowing consisting, in whole or in part, of
a Eurodollar Rate Loan, or a B Borrowing, after such Borrower shall have
delivered an A Borrowing Request to the Agent or accepted one or more offers
under paragraph 2.3(a)(iii)(B) relating to B Loans not based on a floating rate,
a period equal to the Interest Period that such Borrower elected in respect of
such Eurodollar Rate Loan or B Loan; or (b) in the event that the right of any
Borrower to have a Eurodollar Rate Loan outstanding hereunder shall terminate
for any reason prior to the last day of the Interest Period applicable thereto,
a period equal to the remaining portion of such Interest Period as if such
Interest Period had not been so terminated; or (c) in the event that any
Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Rate Loan or a B Loan prior to the last day of the Interest Period
applicable thereto, a period equal to the period from and
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including the date of such prepayment or repayment to but excluding the last day
of such Interest Period.
"Replacement Bank": as defined in paragraph 2.14.
"Reportable Event": any event described in Section 4043(b) of ERISA,
other than an event with respect to which the 30-day notice requirement has been
waived.
"Sale" means any sale, conveyance, exchange, transfer, assignment or
other disposition of any property or assets.
"Short Term Loan": any Loan made to Boston Gas with respect to which DPU
approval is not required under applicable laws, regulations and rules (including
but not limited to M.G.L. ch. 164, section 14, as amended from time to time) and
designated by Boston Gas as a Short Term Loan in the Borrowing Request therefor.
"Short Term Repayment Date" with respect to each Short Term Loan made to
Boston Gas, the earlier to occur of (a) the Termination Date and (b) the date
specified by Boston Gas as the Short Term Repayment Date for such Short Term
Loan in the Borrowing Request therefor, which specified date shall not be later
than the date by which such Loan must be payable in order for Boston Gas to
borrow such Loan without DPU approval in accordance with applicable laws,
regulation and rules (including but not limited to M.G.L. ch. 164, section 14,
as amended from time to time).
"Special Counsel": Bingham, Dana & Gould, or such other firm selected by
the Agent.
"Subsidiary": with respect to any Person, any corporation, partnership
or joint venture whether now existing or hereafter organized or acquired: (a) in
the case of a corporation or a business trust, of which a majority of the
securities having ordinary voting power for the election of directors or
trustees (other than securities having such power only by reason of the
happening of a contingency) are at the time owned by such Person and/or one or
more Subsidiaries of such Person, or (b) in the case of a partnership or joint
venture in which such Person is a general partner or joint venturer or of which
a majority of the partnership or other ownership interests are at the time owned
by such Person and/or one or more of its Subsidiaries.
"Taxes": any present or future income, stamp or other taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings, or other like
charges, now or hereafter imposed, levied, collected, withheld, or assessed by
any Governmental Body.
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"Termination Date": December 31, 1999 or such later date to which the
then scheduled Termination Date may be extended in accordance with the terms and
conditions of paragraph 2.14.
"Total Capitalization": at any time of determination thereof, the sum of
(a) the principal amount of Consolidated Funded Debt plus (b) shareholders'
equity in Eastern.
"Type": A Loans made hereunder as Alternate Base Rate Loans or
Eurodollar Rate Loans, as the case may be.
"Voting Stock" means capital stock or similar interests, of any class or
classes (however designated), the holders of which are entitled, as such
holders, to ordinary voting power with respect to the election of the directors
(or persons performing similar functions) of the corporation, association, trust
or other business entity involved, not including the right to vote for the
election of directors or such persons only by reason of the happening of a
contingency.
"WaterPro": WaterPro Supplies Corporation.
1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the meanings given to
such terms herein when used in any certificate, opinion or other document made
or delivered pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in paragraph
1.1, and accounting terms partly defined in paragraph 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and paragraph,
schedule and exhibit references contained herein shall refer to paragraphs
hereof or schedules or exhibits hereto unless otherwise expressly provided
herein. The word "or" shall not be exclusive. The words "include", "includes"
and "including" are not limiting. The singular includes the plural and the
plural includes the singular.
PRELIMINARY MATTERS
The Borrowers desire to request that, subject to the terms and
conditions hereinafter set forth, Loans be made during the period commencing on
the Effective Date and ending on the Termination Date in an aggregate amount at
any time
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outstanding not in excess of the Aggregate Commitments. Loans which are
outstanding shall automatically become due and payable in full on the
Termination Date as set forth in paragraph 2.6. The Termination Date is subject
to being extended for additional one-year periods on the first and second
anniversaries of the Effective Date pursuant to paragraph 2.14. For the purpose
of computing interest on the Loans, Loans may be made as A Loans or B Loans as
requested by the Borrowers. A Loans may be requested by the Borrowers as
Alternate Base Rate Loans or Eurodollar Rate Loans and shall bear interest at
the Alternate Base Rate or at the Eurodollar Rate plus the Applicable Margin
with respect to Eurodollar Rate Loans, in each case as provided in paragraph
2.8. In addition, the Borrowers may request that B Loans be made in accordance
with the auction bidding procedure set forth in paragraph 2.3.
2. AMOUNT AND TERMS OF LOANS.
2.1 A Loans. Subject to the terms and conditions of this Agreement, each
Bank severally agrees to make A Loans to the Borrowers from time to time on and
after the Effective Date to, but excluding, the Termination Date, provided, that
the aggregate unpaid principal amount of all A Loans due to each Bank at any one
time shall not exceed an amount equal to such Bank's Commitment, provided
further, that the aggregate unpaid principal amount of all A Loans at any one
time outstanding shall not exceed the Aggregate Commitments less the aggregate
unpaid principal amount of all B Loans, if any, then outstanding and, provided
further, that (i) the aggregate unpaid principal amount of all Loans to Boston
Gas at any one time outstanding shall not exceed $75,000,000, (ii) the aggregate
unpaid principal amount of all Loans to Midland at any one time outstanding
shall not exceed $50,000,000, and (iii) the aggregate unpaid principal amount of
all Loans to Boston Gas and Midland outstanding at any one time shall not exceed
$75,000,000. During the period from the Effective Date to the Termination Date
(but excluding the Termination Date in the case of Borrowings and conversions),
the Borrowers may borrow, repay and reborrow hereunder, and may convert all or
any part of the A Loans from one Type to another Type or continue all or any
part of the A Loans as the same Type in accordance with and subject to the terms
and provisions hereof.
2.2 Procedure for A Borrowings. Any Borrower may effect an A Borrowing
on any Business Day occurring on or after the Effective Date by giving the Agent
an irrevocable telephonic (to be promptly confirmed in writing) or written
notice of borrowing (each, an "A Borrowing Request" in the form of Exhibit C)
(which A Borrowing Request must be received by the Agent (a) prior to 10:00
A.M., Boston time, two Business Days prior to the requested Borrowing Date, if
the applicable Borrower is requesting that Eurodollar Rate Loans be made as part
of such A Borrowing, and (b) prior to 10:00 A.M., Boston time, one Business Day
prior to the requested Borrowing Date, if such Borrower is requesting that
Alternate
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Base Rate Loans be made as part of such A Borrowing), specifying (i) the amount
to be borrowed, (ii) the requested Borrowing Date, (iii) whether such A
Borrowing is to consist of Eurodollar Rate Loans, Alternate Base Rate Loans, or
a combination thereof, (iv) if the A Loans are to be Eurodollar Rate Loans, the
length of the initial Interest Period for each thereof, and (v) in the case of
Boston Gas, whether such A Borrowing is to be a Short Term Loan and, if such A
Borrowing is to be a Short Term Loan, the Short Term Repayment Date thereof.
Each A Borrowing shall be in an aggregate principal amount equal to or greater
than $1,000,000 or, if less, the undrawn balance of the Aggregate Commitments.
The principal amount of each Bank's A Loan made on a Borrowing Date shall be in
an amount equal to such Bank's Commitment Percentage of the A Loans made on such
Borrowing Date. Subject to the provisions of paragraphs 2.7 and 2.8, A Loans may
be Alternate Base Rate Loans or Eurodollar Rate Loans, or any combination
thereof. Upon receipt of any A Borrowing Request from a Borrower, the Agent
shall promptly notify each Bank thereof (such notice to be promptly confirmed in
writing). Each Bank will make the amount of its Commitment Percentage of each A
Borrowing available to the Agent for the account of the applicable Borrower at
the office of the Agent set forth in paragraph 11.1, in the case of Eurodollar
Rate Loans, not later than 12:00 noon, Boston time, and in the case of Alternate
Base Rate Loans, not later than 11:00 A.M., Boston time, on the Borrowing Date
requested by such Borrower, in funds immediately available to the Agent at such
office. Amounts so made available to the Agent on a Borrowing Date will, subject
to the satisfaction of the terms and conditions of this Agreement as determined
by the Agent, be made available on such date to such Borrower by the Agent at
the office of the Agent specified in paragraph 11.1 by crediting the account of
such Borrower on the books of such office with the aggregate of said amounts, in
like funds as received by the Agent. Unless the Agent shall have received prior
notice from a Bank (by telephone or otherwise, such notice to be promptly
confirmed by telex, telecopy or other writing) that such Bank will not make
available to the Agent such Bank's pro rata share of the A Loans requested by
such Borrower, the Agent may assume that such Bank has made such share available
to the Agent on such Borrowing Date in accordance with this paragraph, provided
that such Bank received notice of the proposed A Borrowing from the Agent, and
the Agent may, in reliance upon such assumption, make available to such Borrower
on such Borrowing Date a corresponding amount. If and to the extent such Bank
shall not have so made such pro rata share available to the Agent on such
Borrowing Date, such Bank shall pay to the 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 Agent for federal
funds acquired by the Agent during each day included in such period, times (ii)
the amount of such Bank's Commitment Percentage of such A Loans, times (iii) a
fraction, the numerator of which is the number of days that elapse from and
including such Borrowing Date to the date on which the amount of such Bank's
Commitment Percentage of such A Loans shall become immediately available to the
Agent, and the denominator of which is 365. If such Bank shall pay to the Agent
such amount, such amount so paid shall constitute
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such Bank's A Loan as part of such A Loans for purposes of this Agreement, which
A Loan shall be deemed to have been made by such Bank on the date such amount is
so paid, but without prejudice to the applicable Borrower's rights against such
Bank. If and to the extent such Bank shall not have so made such pro rata share
available to the Agent within three days following such Borrowing Date, such
Borrower shall pay to the Agent forthwith on demand (but without duplication)
an amount equal to such Bank's Commitment Percentage of such A Loans, together
with interest thereon for each day from the date such amount is made available
to such Borrower until the date such amount is paid to the Agent, at the
applicable interest rate for such A Loans as set forth in paragraph 2.8. Such
payment by such Borrower, however, shall be without prejudice to its rights
against such Bank.
2.3 B Loans and Procedure for B Borrowings.
(a) Subject to the terms and conditions of this Agreement, each Bank
agrees that the Borrowers may effect B Borrowings under this paragraph 2.3 from
time to time on and after the Effective Date to the date occurring thirty (30)
days prior to the Termination Date in the manner set forth below, provided, that
the aggregate unpaid principal amount of all B Loans outstanding hereunder at
any time shall not exceed the Aggregate Commitments less the aggregate unpaid
principal amount of all A Loans, if any, then outstanding, provided further,
that (i) the aggregate unpaid principal amount of all Loans to Boston Gas at any
one time outstanding shall not exceed $75,000,000, (ii) the aggregate unpaid
principal amount of all Loans to Midland at any one time outstanding shall not
exceed $50,000,000, and (iii) the aggregate unpaid principal amount of all Loans
to Boston Gas and Midland outstanding at any one time shall not exceed
$75,000,000.
(i) Any Borrower may request a B Borrowing under this paragraph 2.3
by giving to the Agent, not later than 10:00 A.M., Boston time, at least
four (4) Business Days prior to the date of the proposed B Borrowing, a
notice (each, a "B Borrowing Request"), substantially in the form of
Exhibit D, specifying the proposed date and aggregate amount (which
shall not be less than $5,000,000 or such amount plus a whole multiple
of $500,000) of the proposed B Borrowing, the proposed Interest Period
for each B Loan to be made as part of such B Borrowing (which Interest
Period shall not be less than seven (7) days and shall terminate on or
prior to the Termination Date and shall otherwise comply with the
applicable provisions of the definition of "Interest Period"), the
Interest Payment Date or Dates relating thereto, and in the case of
Boston Gas, whether such B Borrowing is to be a Short Term Loan and, if
such B Borrowing is to be a Short Term Loan, the Short Term Repayment
Date thereof, and such other terms to be applicable to such B Borrowing
(including, without limitation, the basis to be used by the Banks in
determining the rate or rates of interest to be offered by them as
provided in clause (ii) below) as such Borrower may specify. The Agent
shall promptly
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notify (by telex, cable or telecopy) each Bank of each B Borrowing Request
received by it and the terms contained in such B Borrowing Request.
(ii) Each Bank shall, if, in its sole discretion, it elects so to do,
irrevocably offer to make one or more B Loans to such Borrower as part
of such proposed B Borrowing at a rate or rates of interest specified by
such Bank in its sole discretion, by notifying (by telephone or telecopy
(in the case of telephone, immediately confirmed by telecopy) the Agent,
before 10:00 A.M., Boston time, three (3) Business Days before the
Borrowing Date of such proposed B Borrowing of the minimum amount and
maximum amount of each B Loan which such Bank would be willing to make
as part of such proposed B Borrowing (which amounts may, subject to the
provisos to the first sentence of this paragraph 2.3, exceed such Bank's
Commitment), the rate or rates of interest therefor and such Bank's
Applicable Lending Office with respect to such B Loan. The Agent shall
notify the applicable Borrower of all such offers before 10:30 A.M.,
Boston time, three (3) Business Days before such proposed Borrowing
Date; provided that if FNBB, in its capacity as a Bank, shall in its
sole discretion elect to make any such offer, it shall notify the
applicable Borrower of such offer before 9:30 A.M., Boston time, three
(3) Business Days before such Borrowing Date. If any Bank other than
FNBB shall fail to notify the Agent before 10:00 A.M., Boston time, and
if FNBB, in its capacity as a Bank, shall fail to notify the applicable
Borrower before 9:30 A.M., Boston time, three (3) Business Days before
the proposed Borrowing Date, that it elects to make such an offer, such
Bank shall be deemed to have elected not to make such an offer and such
Bank shall not be obligated to, and shall not, make any B Loan as part
of such B Borrowing. Any offer submitted after the time required above
shall be disregarded by the Agent unless such offer is submitted to
correct a manifest error in a prior offer.
(iii) The applicable Borrower shall, before 12:00 noon, Boston time,
three (3) Business Days before the date of such proposed B Borrowing,
either
(A) cancel such B Borrowing by notice to the Agent to that effect, or
(B) irrevocably accept one or more of the offers made by any Bank or
Banks pursuant to clause (ii) above, in ascending order of the
rates offered therefor, by giving notice to the Agent of the amount
of each B Loan (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount,
specified to such Borrower by the Agent on behalf of such Bank for
such B Loan pursuant to clause (ii) above) to be made by each Bank
as part of such B Borrowing, and reject any remaining offers made
by the Banks pursuant to clause (ii) above, by giving the Agent
notice to that effect, provided, however, that the aggregate amount
of such offers accepted
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by the applicable Borrower shall be equal at least to $5,000,000 or
such amount plus a whole multiple of $500,000. If offers for B Loans
at the same interest rate are made by two or more Banks for a greater
aggregate minimum principal amount than the amount in respect of
which offers for B Loans are accepted by such Borrower at such
interest rate, the principal amount of B Loans accepted at such
interest rate shall be allocated by such Borrower among such Banks as
nearly as possible in proportion to the respective minimum principal
amounts offered by such Banks. No such Bank shall be obligated to
make such B Loan in a principal amount less than the minimum amount
offered by such Bank without such Bank's consent to such lesser
amount. If any Bank declines to make a B Loan at such lesser amount,
the applicable Borrower shall be entitled in its sole discretion to
determine which of such offers at the same interest rate it shall
accept.
(iv) If the applicable Borrower notifies the Agent that such B
Borrowing is canceled pursuant to clause (iii)(A) above, the Agent shall
give prompt notice (by telex, cable or telecopy) thereof to the Banks
and such B Borrowing shall not be made.
(v) If the applicable Borrower accepts one or more of the offers
made by any Bank or Banks pursuant to clause (iii)(B) above, the Agent
shall, as promptly as practicable on the third (3) Business Day before
such proposed Borrowing Date, notify (A) each Bank that has made an
offer as described in clause (ii) above, of the date and aggregate
amount of such B Borrowing and whether or not any offer or offers made
by such Bank pursuant to clause (ii) above have been accepted by such
Borrower and (B) each Bank that is to make a B Loan as part of such B
Borrowing (as to such B Borrowing, a "Participating Bank" with respect
to such B Borrowing), of the amount of each B Loan to be made by such
Bank as part of such B Borrowing, together with a specification of the
interest rate and Interest Payment Date or Dates in respect of each such
B Loan. Each such Participating Bank shall, before 12:00 noon, Boston
time, on the date of such B Borrowing make available to the Agent for
the account of the applicable Borrower at the office of the Agent set
forth in paragraph 11.1 such Bank's portion of such B Borrowing, in same
day funds. Upon satisfaction of the applicable terms and conditions of
this Agreement and after receipt by the Agent of such amount from each
such Participating Bank, the Agent will make such amount available on
such date to the applicable Borrower at the office of the Agent
specified in paragraph 11.1 by crediting the account of such Borrower on
the books of such office with the aggregate of such amount, in like
funds as received by the Agent, and the Agent will notify each Bank of
the amount of such B Borrowing, such Bank's B Reduction resulting
therefrom and the date upon which such B Reduction commenced and is
anticipated to terminate.
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After each B Borrowing, if requested by any Bank, the Agent shall within a
reasonable time furnish to such Bank such information in respect of such B
Borrowing as such Bank shall reasonably request. Unless the Agent shall
have received prior notice from a Participating Bank (by telephone or
otherwise, such notice to be promptly confirmed by telex, telecopy or other
writing) that such Participating Bank will not make available such
participating Bank's B Loan, the Agent may assume that such Participating
Bank has made such Participating Bank's portion of such B Borrowing
available to the Agent on such Borrowing Date in accordance with this
clause (v), and the Agent may, in reliance upon such assumption, make
available to the applicable Borrower on such Borrowing Date a corresponding
amount. If and to the extent such Participating Bank shall not have made
such portion of such B Borrowing available to the Agent, such Participating
Bank and such Borrower severally agree to pay to the Agent forthwith on
demand (but without duplication) such corresponding amount with interest
thereon for each day from the date such amount is made available to such
Borrower until the date such amount is paid to the Agent at the rate of
interest for such B Loan accepted by such Borrower in its notice to the
Agent under paragraph 2.3(a)(iii)(B). Such payment by such Borrower,
however, shall be without prejudice to its rights against such
Participating Bank. If such Participating Bank shall pay to the Agent such
corresponding amount, such amount so paid shall constitute such Bank's B
Loan as a part of such B Loans for purposes of this Agreement, which B Loan
shall be deemed to have been made by such Participating Bank on the
Borrowing Date applicable thereto, but without prejudice to such Borrower's
rights against such Participating Bank.
(b) Within the limits and subject to the conditions set forth in this
paragraph 2.3, the Borrowers may from time to time borrow under this paragraph
2.3, repay pursuant to (c) below, and reborrow under this paragraph 2.3.
(c) The applicable Borrower shall repay to the Agent for the account of
each Participating Bank which has made a B Loan on the maturity date of such B
Loan (such maturity date being that specified by such Borrower for repayment of
such B Loan in the related B Borrowing Request delivered pursuant to clause
(a)(i), above) the then unpaid principal amount of such B Loan.
(d) The applicable Borrower shall pay interest on the unpaid principal
amount of each B Loan from the date of such B Loan to the date the principal
amount of such B Loan is repaid in full, at the rate of interest for such B Loan
specified by the Participating Bank making such B Loan in its notice with
respect thereto delivered pursuant to clause (a)(ii) above payable on the
Interest Payment Date or Dates specified by such Borrower for such B Loan in the
related B Borrowing Request delivered pursuant to clause (a)(i), above.
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2.4 Notes. The Loans made by each Bank to each Borrower shall be
evidenced by a promissory note of such Borrower, substantially in the form of
Exhibit E, with appropriate insertions therein (as endorsed and as amended or
otherwise modified from time to time, a "Note" and, collectively, the "Notes"),
payable to the order of such Bank and representing the obligation of such
Borrower to pay the aggregate unpaid principal amount of all Loans made by such
Bank, with interest thereon as prescribed or determined herein. Each Bank is
hereby authorized to record the date and amount of each Loan made by such Bank
and the other information applicable thereto, and each payment or prepayment of
principal of, such Loan, on the applicable grid (and any continuations thereof)
annexed to and constituting a part of its Notes. No failure to so record or any
error in so recording shall affect the obligation of such Borrower to repay such
Loans, with interest thereon, as herein provided. Each Note shall (a) be dated
the date the initial Loans to such Borrower are made, (b) be stated to mature on
the Termination Date or, in the case of Short Term Loans, the Short Term
Repayment Date thereof, and (c) bear interest for the period from and including
the date thereof on the unpaid principal amount thereof from time to time
outstanding at the applicable interest rate per annum determined as provided
herein.
2.5 Voluntary Reductions of the Aggregate Commitments; Termination.
(a) Voluntary Reductions. During the period from the Effective Date to
the Termination Date, the Borrower shall have the right, upon at least two (2)
Business Days' prior written notice to the Agent, to reduce permanently the
Aggregate Commitments in whole at any time, or in part from time to time,
without premium or penalty, provided that (i) each partial reduction of the
Aggregate Commitments shall be in an amount equal to at least $1,000,000, or
such amount plus a whole multiple of $500,000 and (ii) the Aggregate Commitments
shall not be reduced to an amount less than the aggregate principal balance of
all A Loans outstanding on the date of such reduction (after giving effect to
reductions in such principal balance made on such date). Upon the Aggregate
Commitments being permanently reduced to zero prior to the Termination Date and
upon payment in full of the Loans and all other sums due hereunder, under the
Notes and under the other Loan Documents, this Agreement shall be deemed
terminated, except to the extent that any provisions hereof expressly survive
such payment or such termination.
(b) General. Reductions of the Aggregate Commitments under clause (a)
above shall reduce each Bank's Commitment pro rata according to the Commitment
Percentage of such Bank. The Agent shall promptly notify each Bank of each
reduction in the Aggregate Commitments under clause (a) above upon its receipt
of notice thereof, and remit to each Bank its pro rata share of any accompanying
prepayments of the A Loans. Simultaneously with each reduction of the Aggregate
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Commitments under this paragraph 2.5, the Borrowers shall prepay A Loans in the
amount, if any, by which the aggregate unpaid principal balance of all A Loans
then outstanding exceeds the amount of the Aggregate Commitments as so reduced.
If any prepayment is made under this paragraph 2.5 with respect to any
Eurodollar Rate Loans, in whole or in part, prior to the last day of the
applicable Interest Period with respect thereto, the applicable Borrower agrees
that it shall indemnify the Banks in accordance with paragraph 2.11. After
giving effect to any prepayment by any Borrower with respect to Eurodollar Rate
Loans, no Eurodollar Rate Loans made to such Borrower (whether as a result of a
Borrowing or a conversion) on the same date and having the same Interest Period
shall be outstanding in an aggregate principal amount of less than $1,000,000.
2.6 Prepayments and Payment of Loans.
(a) Voluntary Prepayments. Any Borrower may, at its option, prepay Loans
in whole or in part, without premium or penalty, subject to its obligation to
indemnify provided in paragraph 2.11 (in the case of Eurodollar Rate Loans and
B Loans), at any time and from time to time upon at least one Business Day's
prior irrevocable written notice to the Agent, specifying the amount to be
prepaid, and the date and amount of prepayment. Upon receipt of such notice, the
Agent shall promptly notify each Bank thereof. Any such notice shall be
irrevocable and the amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest to the date of such
payment on the amount being prepaid. Prepayments shall be in an aggregate
principal amount of at least $1,000,000 or, if less, the aggregate outstanding
principal balance of the A Notes or B Notes of such Borrower, provided, however,
that after giving effect to any such prepayment, no Eurodollar Rate Loans or B
Loans made to such Borrower (whether as the result of a Borrowing or, in the
case of Eurodollar Rate Loans, a conversion) on the same date and having the
same Interest Period shall be outstanding in an aggregate principal amount of
less than $1,000,000.
(b) Mandatory Repayment of Short Term Loans. Boston Gas shall repay in
full the aggregate principal balance of each Short Term Loan on the Short Term
Repayment Date applicable thereto, together with accrued interest on such amount
to such date.
(c) Mandatory Repayment. On the Termination Date, as such date may be
extended in accordance with the terms of paragraph 2.14 hereof, each of the
Borrowers shall repay in full the aggregate principal balance of all Loans to
such Borrower outstanding on such date, together with accrued interest on such
amount to such date and the Borrowers shall pay in full any Facility Fees,
Agent's Fees or other amounts owing hereunder or under the other Loan Documents.
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2.7 Conversion Options.
(a) Conversion. The Borrowers may elect from time to time to convert
Eurodollar Rate Loans to Alternate Base Rate Loans by giving the Agent at least
one Business Day's prior irrevocable notice of such election, specifying the
amount to be so converted, provided, that any such conversion of Eurodollar Rate
Loans shall only be made on the last day of the Interest Period applicable
thereto. In addition, in the absence of an Event of Default, the Borrowers may
elect from time to time to convert Alternate Base Rate Loans to Eurodollar Rate
Loans, by giving the Agent at least two (2) Business Days' prior irrevocable
notice of such election, specifying the amount to be so converted and the
Interest Period selected, provided that any such conversion of Alternate Base
Rate Loans to Eurodollar Rate Loans shall only be made on a Business Day. The
Agent shall promptly provide the Banks with notice of any such election. Loans
may be converted pursuant to this paragraph 2.7, in whole or in part, provided
that conversions of Alternate Base Rate Loans to Eurodollar Rate Loans or
Eurodollar Rate Loans to Alternate Base Rate Loans shall be in an aggregate
principal amount of at least $1,000,000. After giving effect to any such
conversion, no Eurodollar Rate Loans made to any Borrower (whether as the result
of a Borrowing or a conversion) on the same date and having the same Interest
Period shall be outstanding in an aggregate principal amount of less than
$1,000,000. A conversion of an A Loan in accordance with this paragraph 2.7
shall not require the Borrowers to comply with the conditions to Borrowing set
forth in paragraph 6.
(b) Continuation. Any Eurodollar Rate Loans may be continued as such
upon the expiration of any Interest Period with respect thereto by the
applicable Borrower's giving irrevocable written notice to the Agent of its
intention to do so two (2) Business Days prior to the last day of such Interest
Period, specifying the new Interest Period therefor, provided that (i) if such
Borrower shall fail to give notice as provided above, the relevant Eurodollar
Rate Loan shall convert to an Alternate Base Rate Loan immediately upon the
expiration of the then current Interest Period with respect thereto, (ii) any
Eurodollar Rate Loans that are being continued as such shall be in an aggregate
principal amount of at least $1,000,000 and (iii) no Eurodollar Rate Loans may
be continued as such when any Event of Default has occurred and is continuing,
but shall be automatically converted to an Alternate Base Rate Loan on the last
day of the Interest Period with respect thereto during which the Agent obtained
knowledge of such Event of Default. The Agent shall notify the Banks promptly
upon obtaining knowledge that an automatic conversion will occur pursuant to
clause (iii) hereof.
2.8 Interest Rate and Payment Dates for Loans.
(a) Interest Rates for Loans Prior to Maturity. During each period set
forth on Exhibit B hereto, (i) A Loans made as Alternate Base Rate Loans shall
bear interest for the period from and including the date thereof, or, in the
case of an A
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Loan that has been converted from a Eurodollar Rate Loan, from the Conversion
Date thereof, until maturity or until converted into Eurodollar Rate Loans, on
the unpaid principal amount thereof at the Alternate Base Rate, and (ii) A Loans
made as Eurodollar Rate Loans shall bear interest for each Interest Period with
respect thereto on the unpaid principal amount thereof at the applicable rate of
interest per annum based on the Eurodollar Rate for each such Interest Period
plus the Applicable Margin for such period based on the Funded Debt to Total
Capitalization Ratio. Any change in the Applicable Margin with respect to any
Eurodollar Rate Loan resulting from a change in the Funded Debt to Total
Capitalization Ratio shall be effective as of the opening of business on the day
of the change in the Funded Debt to Total Capitalization Ratio.
(b) Interest on Overdue Principal. If any principal of any Loans shall
not be paid when due (whether at the stated maturity thereof, by acceleration,
notice of intention to prepay or otherwise), such overdue principal shall bear
interest payable on demand at a rate per annum equal to one percent (1%) above
the rate otherwise applicable to such principal from the date of such nonpayment
until paid in full, and whether before or after the entry of any judgment
thereon.
(c) General. Interest on the Loans shall be payable in arrears on each
Interest Payment Date and upon payment (including prepayment) in full of such
Loans; provided, however, that after an Event of Default has occurred and is
continuing, interest on all Loans shall be payable on demand made from time to
time. At no time shall the interest rate payable on the Loans, together with the
Agent's Fees, the Facility Fee and all other fees and amounts payable hereunder,
under the Notes and under the other Loan Documents, to the extent that any of
the same are construed to constitute interest, exceed the maximum rate of
interest permitted by law. The Borrowers acknowledge that to the extent interest
payable on the A Loans is based upon the Alternate Base Rate, such rate is only
one of the bases for computing interest on loans made by the Banks, and by
basing interest payable upon the A Loans upon the Alternate Base Rate, the Banks
have not committed to charge, and the Borrowers have not in any way bargained
for, interest based on a lower or the lowest rate at which the Banks may now or
in the future make loans to other borrowers.
2.9 Substituted Interest Rate. In the event that (i) the Agent shall
have reasonably determined in good faith (which determination shall be
conclusive and binding upon the Borrowers) that by reason of circumstances
affecting the London interbank eurodollar market, adequate and reasonable means
do not exist for ascertaining a Eurodollar Rate applicable pursuant to paragraph
2.8(a), or (ii) any Bank shall have notified the Agent that it has reasonably
determined in good faith (which determination shall be conclusive and binding on
the Borrowers) that the Eurodollar Rate will not adequately and fairly reflect
the cost to such Bank of making or maintaining its funding of a Eurodollar Rate
Loan with respect to (a) a
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proposed A Loan that a Borrower has requested be made as a Eurodollar Rate Loan,
or (b) a Eurodollar Rate Loan that will result from the requested conversion of
any A Loan into a Eurodollar Rate Loan (any such A Loan being herein called an
"Affected Loan"), the Agent shall promptly notify the applicable Borrower (and
the other Borrowers) and the Banks (by telephone or otherwise) of such
determination no later than 10:00 A.M. (Boston time) one Business Day prior to
the requested Borrowing Date for such Affected Loan, or the requested Conversion
Date of such Loan, as the case may be. If the Agent shall give such notice, such
Borrowers may by no later than 11:00 A.M. (Boston time) on the same Business
Day, (i) cancel the A Borrowing Request with respect to such Affected Loan or
request that such Affected Loan be made as an Alternate Base Rate Loan or (ii)
cancel its request to convert to an Affected Loan or request that any A Loan
that was to have been converted to an Affected Loan be converted to an Alternate
Base Rate Loan. Until such notice has been withdrawn by the Agent (by notice to
the Borrowers promptly upon the Agent having been notified by such Bank that
circumstances would no longer render any A Loan an Affected Loan) no further
Affected Loans shall be made and no Borrower shall have the right to convert any
A Loan to an Affected Loan.
2.10 Illegality. Notwithstanding any provision hereof to the contrary,
if any change in any law, regulation, treaty or directive, or in the
interpretation or application thereof, shall make it unlawful for any Bank to
make or maintain Eurodollar Rate Loans as contemplated by this Agreement, (a)
the commitment of such Bank hereunder to make Eurodollar Rate Loans or to
convert Alternate Base Rate Loans to Eurodollar Rate Loans or to continue
Eurodollar Rate Loans as such shall forthwith be suspended and (b) such Bank's
A Loans then outstanding as Eurodollar Rate Loans shall be converted to
Alternate Base Rate Loans on the last day of the then current Interest Period
applicable thereto, or within such earlier period as required by law. If the
commitment of any Bank with respect to Eurodollar Rate Loans is suspended
pursuant to this paragraph 2.10 and it shall once again become legal for such
Bank to make or maintain its funding of Eurodollar Rate Loans, such Bank's
commitment to make or maintain such Eurodollar Rate Loans shall be reinstated.
Each Bank agrees to promptly notify the Borrowers and the Agent upon learning
of any change referred to above, as well as of any reinstatement of its ability
to make and maintain Eurodollar Rate Loans as contemplated by this Agreement.
2.11 Increased Costs. In the event that any change in any law,
regulation, treaty or directive or in the interpretation or application thereof
by any Governmental Body charged with the administration thereof or compliance
by any Bank with any request or directive from any central bank or other
Governmental Body:
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(i) subjects any Bank to any tax of any kind whatsoever with respect
to any Eurodollar Rate Loan or its obligations under this Agreement to
make Eurodollar Rate Loans, or changes the basis of taxation of payments
to such Bank of principal, interest or any other amount payable
hereunder in respect of its Eurodollar Rate Loans (except for imposition
of, or change in the rate of, tax on the overall net income of such
Bank);
(ii) imposes, modifies or makes applicable any reserve, special
deposit, compulsory loan, assessment or similar requirement against
assets held by, or deposits of, or advances or loans by, or other credit
committed or extended by, or any other acquisition of funds by, any
office of such Bank in respect of its Eurodollar Rate Loans which is not
otherwise included in the determination of a Eurodollar Rate; or
(iii) imposes on such Bank any other condition with respect to
Loans hereunder or the Commitments;
and the result of any of the foregoing is to increase the cost to such Bank of
making, renewing, converting or maintaining its Eurodollar Rate Loans, or to
reduce any amount receivable in respect of its Eurodollar Rate Loans, then, in
any such case, the applicable Borrower shall promptly pay to such Bank, upon its
demand, any additional amounts necessary to compensate such Bank for such
additional cost or reduction in such amount receivable. A statement setting
forth the calculations of any additional amounts payable pursuant to the
foregoing sentence submitted by a Bank to the applicable Borrower shall be
presumed to be correct absent manifest error.
2.12 Indemnity. Notwithstanding anything contained herein to the
contrary, if any Borrower shall fail to borrow on a Borrowing Date after it
shall have given a Borrowing Request, to the extent only that such Borrowing
Request includes Eurodollar Rate Loans or B Loans to be made at other than a
floating rate, or if the right of any Borrower to have Eurodollar Rate Loans
outstanding hereunder shall be suspended or terminated in accordance with the
provisions of this Agreement prior to the last day of the Interest Period
applicable thereto, or if, while a Eurodollar Rate Loan or B Loan made at other
than a floating rate is outstanding, any repayment or prepayment of the
principal amount of such Eurodollar Rate Loan or a B Loan is made for any reason
(including, without limitation, as a result of acceleration or illegality) on a
date which is prior to the last day of the Interest Period applicable thereto,
the applicable Borrower agrees to indemnify each Bank against, and to pay on
demand directly to such Bank, an amount, if greater than zero, equal to (i):
A x(B-C)x D
---
360
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where
"A" equals the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to
such Eurodollar Rate Loan or the rate per annum (expressed as a
decimal) applicable to such B Loan, as the case may be;
"C" equals the applicable Eurodollar Rate (expressed as a decimal)
or the rate per annum (expressed as a decimal) applicable to such B
Loan, as the case may be, in effect on the date of such failure to
borrow, termination, prepayment or repayment, based on the applicable
rates offered or bid, as the case may be, on such date (or, if no
such rate is determinable on such date, the rate or rates offered or
bid, as the case may be, determinable on the date closest thereto),
for deposits in an amount equal approximately to the Affected
Principal Amount with an Interest Period equal approximately to the
period commencing on the first day of such Remaining Interest Period
and ending on the last day of such Remaining Interest Period or
ending on the last day of the applicable Interest Payment Period, as
the case may be, as determined by the Bank;
"D" equals the number of days from and including the first day of the
Remaining Interest Period to but excluding the last day of such
Remaining Interest Payment Period;
and (ii) any other out-of-pocket loss or expense (including any internal
processing charge customarily charged by such Bank) suffered by such Bank in
liquidating deposits prior to maturity in amounts which correspond to the
proposed borrowing, prepayment or repayment. The determination by each Bank of
the amount of any such loss or expense shall be presumed to be correct absent
manifest error.
2.13 Capital Adequacy. If either (i) the introduction of, or any change
or phasing in of any law or regulation or in the interpretation thereof by any
Governmental Body charged with the administration thereof or (ii) compliance
with any directive, guideline or request from any central bank or Governmental
Body (whether or not having the force of law) promulgated or made after the date
hereof (but including, in any event, any law, rule, regulation, interpretation,
directive, guideline or request contemplated by the report dated July 1988
entitled
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"International Convergence of Capital Measurement and Capital Standards" issued
by the Basle Committee on Banking Regulations and Supervisory Practices) affects
or would affect the amount of capital required or expected to be maintained by a
Bank (or any lending office of such Bank) or any corporation directly or
indirectly owning or controlling such Bank (or any lending office of such Bank)
and such Bank shall have determined that such introduction, change or compliance
has or would have the effect of reducing the rate of return on such Bank's
capital or the asset value to such Bank of any Loan made by such Bank as a
consequence, directly or indirectly, of its obligations to make and maintain the
funding of Loans hereunder to a level below that which such Bank could have
achieved but for such introduction, change or compliance (after taking into
account such Bank's policies regarding capital adequacy) by an amount deemed by
such Bank to be material, then, upon demand by such Bank, the applicable
Borrower shall promptly pay to such Bank such additional amount or amounts as
shall be sufficient to compensate such Bank for such reduction on the rate of
return. Each Bank shall calculate such amount or amounts payable to it under
this paragraph 2.13 in a manner consistent with the manner in which it shall
calculate similar amounts payable to it by other borrowers having provisions in
their credit agreements comparable to this paragraph 2.13. Each Bank agrees to
provide the applicable Borrower with a certificate setting forth a description
of any such amount in respect of which it seeks payment under this paragraph
2.13. Each Bank's determination of such amount or amounts that will compensate
such Bank for such reductions shall be presumed correct absent manifest error.
2.14 Extension of Termination Date. The Borrowers may, pursuant to a
Commitment Extension Request delivered to the Agent and each Bank not more than
sixty (60) days or less then (30) days prior to each of the first and second
anniversaries of the Effective Date, request each Bank to extend its Commitment
for an additional one-year period expiring on, in the case of a Commitment
Extension Request delivered in connection with the first anniversary of the
Effective Date, December 29, 2000 and, in the case of a Commitment Extension
Request delivered in connection with the second anniversary of the Effective
Date, December 31, 2001. Each of the Banks shall, promptly upon receipt of a
Commitment Extension Request from the Borrowers, notify the Borrowers whether
such Bank consents to such extension of such Bank's Commitment. If all Banks
consent to the extension of their respective Commitments prior to the first
anniversary or the second anniversary, as the case may be, of the Effective
Date, the Termination Date shall be so extended. In the event that less than all
of the Banks consent to an extension of their respective Commitments prior to
the first anniversary or the second anniversary, as the case may be, of the
Effective Date, the Termination Date shall not be extended, unless the Borrowers
designate another bank reasonably satisfactory to the Banks willing so to extend
the Termination Date, or one or more of the Banks elect to increase its or their
Commitments to the amount of the Commitment of the nonconsenting Bank (any
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such other bank, including any Bank, to the extent of, and with respect to such
an increase in its Commitment, being herein called a "Replacement Bank"), to
assume the Commitment and obligations of such nonconsenting Bank or Banks (each,
a "Nonconsenting Bank") with respect to its Loans, and to purchase the
outstanding Notes of such nonconsenting Bank and such Nonconsenting Bank's
rights with respect to its Loans, without recourse or warranty, for a purchase
price equal to the aggregate outstanding principal balance of the Notes of such
Nonconsenting Bank, plus all interest accrued thereon and all other amounts
owing to such Nonconsenting Bank hereunder. Upon such assumption and purchase by
a Replacement Bank, and provided that the Banks (excluding the Nonconsenting
Banks and each Replacement Bank) have consented to the Commitment Extension
Request, (i) the Termination Date shall be so extended, (ii) each such
Replacement Bank shall be deemed to be a "Bank" for all purposes of this
Agreement, and (iii) each Nonconsenting Bank shall cease to be a "Bank" for all
purposes of this Agreement (except with respect to its rights hereunder to be
reimbursed for costs and expenses, and to indemnification with respect to,
matters attributable to events, acts or conditions occurring prior to such
assumption and purchase) and shall no longer have any obligations hereunder.
Upon each extension of the Termination Date, the Borrowers shall promptly
deliver to each Bank replacement Notes stated to mature on the new Termination
Date.
Each Bank will use its best efforts to respond promptly to any
Commitment Extension Request, provided that no Bank's failure to so respond
shall create any claim against it or have the effect of extending the
Termination Date.
2.15 Notice of Costs; Substitution of Banks. Each Bank will notify the
applicable Borrower of any event that will entitle such Bank to compensation
under paragraphs 2.11 and 2.13 as promptly as practicable, but in any event
within forty-five (45) days after an officer of the Bank responsible for matters
concerning this Agreement has knowledge of such event. If such Bank fails to
give such notice, such Bank shall only be entitled to such compensation for the
period commencing on the date of the giving of such notice. Each Bank shall use
its best efforts to avoid the need to give a notice under paragraph 2.11 or 2.13
by designating a different Applicable Lending Office outside of the United
States if such designation would avoid the need to give such notice and will
not, in the sole opinion of such Bank, be disadvantageous to such Bank. In the
event any Borrower receives such notice or is otherwise required under the
provisions of paragraphs 2.11 or 2.13 to make payments in a material amount to
any Bank, the Borrowers may, so long as no Event of Default shall have occurred
and be continuing, elect to substitute such Bank as a party to this Agreement;
provided that, concurrently with such substitution, (i) the Borrowers shall pay
such Bank all principal, interest and fees and other amounts (including without
limitation, amounts, if any, owed under paragraph 2.11, 2.12 or 2.13) owed to
such Bank through such date of termination, (ii) another commercial bank
satisfactory to the Borrowers and the Agent (or if the
-32-
Agent is also the Bank to be substituted, the successor Agent) shall agree, as
of such date, to become a Bank (whether by assignment or amendment) for all
purposes under this Agreement and to assume all obligations of the Bank to be
substituted as of such date, and (iii) all documents, supporting materials and
fees necessary, in the judgment of the Agent (or if the Agent is also the Bank
to be substituted, the successor Agent) to evidence the substitution of such
Bank shall have been received and approved by the Agent as of such date.
3. FEES; PAYMENTS.
3.1 Facility Fee. The Borrowers jointly and severally agree to pay to
the Agent for the account of the Banks a fee (the "Facility Fee") equal to the
rate per annum determined by reference to Exhibit B hereto based upon the Funded
Debt to Total Capitalization Ratio, multiplied by the Aggregate Commitments,
which Facility Fee shall be payable in arrears on the last day of each March,
June, September and December of each year, commencing on the first such date
following the Effective Date and continuing until the later of the Termination
Date or the date the Commitments are terminated and all sums due hereunder,
under the Notes and under the other Loan Documents are paid in full.
3.2 Fees of the Agent. The Borrowers jointly and severally agree to pay
to the Agent for its own account, such fees (the "Agent's Fees") for its
services hereunder in such amounts and at such times as previously agreed upon
by Eastern, Boston Gas, Midland and the Agent.
3.3 Computation of Interest and Fees.
(a) Interest in respect of Alternate Base Rate Loans, the Facility Fee
and all other fees payable by the Borrowers hereunder shall be calculated on the
basis of a 365/366-day year for the actual number of days elapsed. Interest in
respect of Eurodollar Rate Loans shall be calculated on the basis of a 360-day
year for the actual number of days elapsed. Any change in the interest rate on a
Loan resulting from a change in the Alternate Base Rate or Eurodollar Rate shall
become effective as of the opening of business on the day on which such change
shall become effective. The Agent shall, as soon as practicable, notify the
Borrowers and the Banks of the effective date and the amount of each such change
but failure of the Agent to do so shall not in any manner affect the obligations
of the Borrowers to pay interest on the Loans in the amounts and on the dates
required.
(b) Each determination of the Alternate Base Rate or the Eurodollar Rate
by the Agent pursuant to any provision of this Agreement shall be presumed to be
correct absent manifest error.
-33-
3.4 Pro Rata Treatment and Application of Principal Payments. Each A
Borrowing by the Borrowers from the Banks, each conversion of A Loans from one
Type to the same or another Type, and each reduction of the Aggregate
Commitments of the Banks, shall be made pro rata according to the Commitment
Percentage of each Bank. All payments (including prepayments) to be made by the
Borrowers on account of principal and interest on A Loans comprising the same
Borrowing shall be made pro rata according to the outstanding principal amount
of each Bank's A Loans and all payments to be made by the Borrowers on account
of principal and interest on B Loans comprising the same B Borrowing shall be
made as specified in paragraphs 2.3(c) and (d). All payments by the Borrowers on
all Loans shall be made without set-off or counterclaim and shall be made prior
to 12:00 noon, Boston time, on the date such payment is due, to the Agent for
the account of the Banks at the Agent's office specified in paragraph 11.1, in
each case in lawful money of the United States of America and in immediately
available funds, and, as between the Borrowers and the Banks, any payment by any
Borrower to the Agent for the account of the Banks shall be deemed to be payment
by such Borrower to the Banks; provided, however, that any payment received by
the Agent on any Business Day after 12:00 noon, Boston time, shall be deemed to
have been received on the immediately succeeding Business Day. The Agent shall
distribute such payments to the Banks promptly upon receipt in like funds as
received. If any payment hereunder or on any Note becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day (unless, in the case of Eurodollar Loans, the
result of such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately preceding
Business Day) and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension.
4 REPRESENTATIONS AND WARRANTIES. In order to induce the Agent and the
Banks to enter into this Agreement and the other Loan Documents and to make
Loans hereunder, the Borrowers hereby represent and warrant to the Agent and to
each Bank that:
4.1 Subsidiary. The Borrowers have the Subsidiaries set forth on Exhibit
H and own the number of shares of capital stock of each such Subsidiary as set
forth in Exhibit H. The shares of each corporate Subsidiary owned by each
Borrower are duly authorized, validly issued, fully paid and non-assessable and
are owned free and clear of any Liens prohibited by paragraph 8.2.
4.2 Existence and Power. Eastern is an unincorporated voluntary
association duly established in conformity with the laws of the Commonwealth of
Massachusetts under a Declaration of Trust dated July 18, 1929, and amendments
thereof, copies of which have been duly filed with the Secretary of State of the
Commonwealth of Massachusetts and elsewhere as required by law. Eastern is
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validly existing and in good standing under the laws of the Commonwealth of
Massachusetts. Boston Gas is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts. Midland is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. Each of the Borrowers and each Subsidiary of the
Borrowers is a corporation or other organization duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization. Each of the Borrowers and the Guarantor and each
Subsidiary of the Borrowers has all requisite power and authority to own its
Property and to carry on its business as now conducted. Each of the Borrowers
and the Guarantor and each Subsidiary of the Borrowers is in good standing and
duly qualified to do business in each jurisdiction in which the failure to so
qualify would have a material adverse effect on the financial condition,
Property, prospects or operations of such Borrower and its Subsidiaries on a
Consolidated basis or the Guarantor and its Subsidiaries on a Consolidated
basis.
4.3 Authority. Each of the Borrowers and the Guarantor has full power
and authority to enter into, execute, deliver and carry out the terms of the
Loan Documents to which it is or is to become a party, to perform its
obligations hereunder and thereunder, and, in the case of the Borrowers, to make
the borrowings contemplated hereby, all of which have been duly authorized by
all necessary action on its part and each such Person is in full compliance with
its Charter and By-Laws or other organizational documents. No consent or
approval of, or exemption by, shareholders or any Governmental Body is required
to authorize, or is required in connection with the execution, delivery and
performance of the Loan Documents or is required as a condition to the validity
or enforceability of the Loan Documents, except, with respect to Boston Gas, for
any approval of the DPU referred to in paragraph 6.3 as may be required.
4.4 Binding Agreement. This Agreement constitutes and the other Loan
Documents, when executed and delivered pursuant hereto for value received, will
constitute, the valid and legally binding obligations of the Borrowers party
thereto and the Guarantor, as applicable, enforceable against the Borrowers
party thereto and the Guarantor, as applicable, in accordance with their
respective terms, except as such enforceability may be limited by equitable
principles and by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally.
4.5 Litigation. Except for the matters set forth in the Designated
Documents, there are no actions, suits or arbitration proceedings (whether or
not purportedly on behalf of the Borrowers or the Guarantor or any Subsidiary of
the Borrowers) pending or to the knowledge of the management of the Borrowers
threatened against any of the Borrowers or the Guarantor or any Subsidiary of
the Borrowers, or maintained by any of the Borrowers or the Guarantor or any
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Subsidiary of the Borrowers, in law or in equity before any Governmental Body
which, if decided adversely to such Borrower or the Guarantor or such
Subsidiary, would result in a material adverse change in the financial
condition, Property or operations of such Borrower and its Subsidiaries on a
Consolidated basis or the Guarantor and its Subsidiaries on a Consolidated
basis, after giving effect to reserves reflected in the financial statements
referred to in paragraph 4.8 or the footnotes thereto. There are no proceedings
pending or threatened against any of the Borrowers or the Guarantor or any
Subsidiary of the Borrowers which call into question the validity and
enforceability of any Loan Document.
4.6 No Conflicting Agreements. Except for the matters set forth in
Designated Documents, none of the Borrowers nor the Guarantor nor any Subsidiary
of the Borrowers is in default under any agreement to which it is a party or by
which it or any of its Property is bound the effect of which would have a
material adverse effect on the financial condition, Property, prospects or
operations of such Borrower and its Subsidiaries on a Consolidated basis or the
Guarantor and its Subsidiaries on a Consolidated basis. No provision of the
Charter or By-Laws or other organizational documents of any Borrower or the
Guarantor, and no provision of any existing mortgage, indenture, contract,
agreement, statute (including, without limitation, any applicable usury or
similar law), rule, regulation, judgment, decree or order binding on any
Borrower or the Guarantor or any Subsidiary of any Borrower would in any way
prevent the execution, delivery or carrying out of the terms of the Loan
Documents and the taking of any such action will not constitute a default under,
or result in the creation or imposition of, or obligation to create, any Lien
not permitted by paragraph 8.2 upon the Property of any Borrower or the
Guarantor or any Subsidiary of any Borrower pursuant to the terms of any such
mortgage, indenture, contract or agreement.
4.7 Taxes. Each of the Borrowers and each Subsidiary of the Borrowers
has filed or caused to be filed all tax returns material to such Borrower and
such Subsidiary required by law to be filed, and has paid, or has made adequate
provision for the payment of, all taxes shown to be due and payable on said
returns or in any assessments made against it. No tax liens have been filed and
no claims are being asserted with respect to such taxes which are required by
GAAP to be reflected in the financial statements referred to in paragraph 4.8
and are not so reflected therein. The Internal Revenue Service has audited and
settled upon, or the applicable statutes of limitation have run upon, all
Federal income tax returns of the Borrowers and their Subsidiaries through the
tax year ended December 31, 1988, and, to the extent required by GAAP, the
results of all such audits are reflected in the financial statements referred to
in paragraph 4.8. The charges, accruals and reserves on the books of the
Borrowers and the Subsidiaries of the Borrowers with respect to all taxes are
considered by the management of the Borrowers to be adequate, and the Borrowers
know of no unpaid assessment which is due and payable against the Borrowers or
any of the Subsidiaries of the
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Borrowers which would have a material adverse effect on the financial condition,
Property, prospects or operations of such Borrower and its Subsidiaries on a
Consolidated basis, except such thereof as are being contested in good faith and
by appropriate proceedings diligently conducted and for which adequate reserves
have been set aside in accordance with GAAP.
4.8 Financial Statements. Eastern, Boston Gas and Midland have
heretofore delivered to each Bank (a) copies of each of their Consolidated
Balance Sheets at December 31, 1992 and 1993, and the related Consolidated
Statements of Income, Cash Flows and Shareholders' Equity for the years then
ended and (b) copies of their Consolidated quarterly reports as of March 31,
1994, June 30, 1994 and September 30, 1994, each containing a Consolidated
balance sheet and Consolidated statements of income and cash flows. The
financial statements set forth in clause (a) above were audited and reported on
by the Accountants on February 4, 1994 and the financial statements set forth in
clause (b) above were prepared by Eastern, Boston Gas and Midland, as the case
may be. Such financial statements fairly present the Consolidated financial
condition and the Consolidated results of operations of Eastern, Boston Gas and
Midland, as the case may be, and their Subsidiaries as of the dates and for the
periods indicated therein, and have been prepared in conformity with GAAP.
Except (x) as reflected in the financial statements specified in clause (a)
above or in the footnotes thereto, or (y) as otherwise disclosed to the Banks
prior to the Effective Date in a writing specifically referring to this
paragraph 4.8, none of Eastern, Boston Gas or Midland nor any of their
Subsidiaries has any obligation or liability of any kind (whether fixed,
accrued, contingent, unmatured or otherwise) which is material to any such
Borrower and its Subsidiaries on a Consolidated basis and which, in accordance
with GAAP, should have been shown on such financial statements and were not,
other than those incurred in the ordinary course of their respective businesses
since December 31, 1993. Since December 31, 1993, each of Eastern, Boston Gas
and Midland has conducted its business only in the ordinary course. As of the
Effective Date, there has been no adverse change in the financial condition,
Property, operations or prospects of any such Borrower and its Subsidiaries
since December 31, 1993 which is material to any such Borrower and its
Subsidiaries on a Consolidated basis.
4.9 Compliance with Applicable Laws. Except as set forth in the
Designated Documents, none of the Borrowers nor any of their Subsidiaries is in
default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Body applicable to such Borrower or such Subsidiary
which default would have a material adverse effect on the financial condition,
Property, prospects or operations of such Borrower and its Subsidiaries on a
Consolidated basis. Except as set forth in the Designated Documents, each of the
Borrowers and each Subsidiary of the Borrowers is complying in all material
respects with all applicable material statutes and regulations of all
Governmental Bodies, including
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ERISA and all Environmental Laws, a violation of which would have a material
adverse effect on the financial condition, Property, prospects or operations of
such Borrower and its Subsidiaries on a Consolidated basis.
4.10 Governmental Regulations. None of the Borrowers is an "Investment
Company" as such term is defined in the Investment Company Act of 1940, as
amended.
4.11 Property. Each of the Borrowers and each of the Subsidiaries of
the Borrowers have good and marketable title (except for Liens not prohibited by
paragraph 8.2) to all of their Property, title to which is material to such
Persons and their Subsidiaries on a Consolidated basis, subject to no Lien that
is prohibited by paragraph 8.2.
4.12 Federal Reserve Regulations. No Borrower is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, as
amended. No part of the proceeds of the Loans are to be used (i) for a purpose
which violates the provisions of Regulations G, U or X of the Board of Governors
of the Federal Reserve System, as amended, or (ii) for a purpose which violates
any other applicable law, rule or regulation of any Governmental Body. Not more
than twenty-five (25%) percent of the value of the aggregate of the assets of
any Borrower is represented by margin stock within the meaning of said
Regulation U.
4.13 No Misrepresentation. No representation or warranty contained
herein and no certificate or report furnished or to be furnished by any Borrower
in connection with the transactions contemplated hereby, contains or will
contain a misstatement of material fact, or omits or will omit to state a
material fact required to be stated in order to make the statements herein or
therein contained not misleading in the light of the circumstances under which
made.
4.14 Pension Plans. Each Plan, and to the best of the Borrowers'
knowledge each Multiemployer Plan, established or maintained by the Borrowers
and their Subsidiaries, is in material compliance with the applicable provisions
of ERISA and the Code, and the Borrowers and their Subsidiaries have filed all
material reports required to be filed with respect to each such Plan by ERISA
and the Code. The Borrowers and their Subsidiaries have met all requirements
with respect to funding the Plans imposed by ERISA or the Code. Since the
effective date of ERISA, there have not been, nor are there now existing, any
events or conditions which would permit any Plan and to the best of the
Borrowers' knowledge any Multiemployer Plan to be terminated under circumstances
which would cause the lien provided under Section 4068 of ERISA to attach to the
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Property of any Borrower or any of their Subsidiaries. Since the effective date
of ERISA, no reportable event as defined in Title IV of ERISA, which constitutes
grounds for the termination of any Plan and to the best of the Borrowers'
knowledge any Multiemployer Plan, has occurred and no Plan or any related trust
has been terminated in whole or in part which would have a material adverse
effect on the financial condition, Property or operations of any Borrower and
its Subsidiaries on a Consolidated basis.
4.15 Public Utility Holding Company Act. Eastern is a "holding company"
and the other Borrowers are "subsidiaries" of a "holding company" as defined in
the Public Utility Holding Company Act of 1935, as amended, but the Securities
and Exchange Commission has exempted Eastern as a holding company and its
Subsidiaries as such from the provisions of said Act and such exemption is in
full force and effect. Eastern is not, and since April 10, 1940, has not been,
controlled by any national of any foreign country designated in Presidential
Executive Orders 8389 or 9193, as amended, or any regulations issued thereunder.
4.16 Approvals. The Borrowers have obtained all authorizations,
approvals or consents of and made all filings or registrations with all
Governmental Bodies as are necessary to be obtained or made by the Borrowers for
the execution, delivery or performance by the Borrowers of this Agreement or the
Notes and all such authorizations, approvals and consents are in full force and
effect, except, with respect to Boston Gas, for any approval of the DPU referred
to in paragraph 6.3 as may be required.
4.17 Net Plant Surplus. On each Borrowing Date on which the outstanding
principal balance of Loans to Boston Gas hereunder would increase, Boston Gas
will have sufficient net plant surplus as may be required by any applicable DPU
Order to effect the Borrowing on such date.
5. CONDITIONS OF BORROWING - FIRST BORROWING. In addition to the
requirements set forth in paragraph 6, the obligations of the Banks to make the
initial Loans to any Borrower on the initial Borrowing Date for such Borrower
are subject to the fulfillment of the following conditions precedent:
5.1 Notes. Such Borrower shall have duly executed and delivered to the
Agent a Note in favor of each of the Banks making such Loans.
5.2 Guaranty. In the case of any Borrower other than Eastern, Boston Gas
or Midland, Eastern shall have duly executed and delivered to the Agent a
Guaranty (each, a "Guaranty") of the obligations of such Borrower hereunder and
under the other Loan Documents to which such Borrower is or is to become a
party, such Guaranty to be substantially in the form of Exhibit F hereto.
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5.3 Accession Agreement, etc. In the case of any Borrower other than
Eastern, Boston Gas or Midland, the Borrower shall (a) have duly executed and
delivered to the Agent an Accession Agreement, in or substantially in the form
attached hereto as Exhibit K, pursuant to which such Borrower shall become a
party to this Agreement as a Borrower and shall agree to perform all of the
obligations and covenants of a Borrower hereunder (each, an "Accession
Agreement") and (b) be at such time a Subsidiary of Eastern.
5.4 Financial Statements. The Agent shall have received financial
statements for such Borrower, as described in ss.7.6 hereof, for the two
immediately preceding fiscal years of such Borrower and for any quarterly
period(s) since the end of the last fiscal year of such Borrower, in each case,
to the extent such financial statements are available.
5.5 Evidence of Corporate or Trust Action of Borrower. The Agent shall
have received a certificate, dated the initial Borrowing Date for such Borrower,
from the Secretary or an Assistant Secretary of such Borrower (a) attaching a
true and complete copy of the resolutions of its Board of Trustees or Directors
and of all documents evidencing any other necessary action (in form and
substance satisfactory to the Agent and to Special Counsel) taken by such
Borrower to authorize the Borrower's execution, delivery and performance of the
Loan Documents to which such Borrower is or is to become a party, including,
without limitation, such Borrower's authority to make the borrowings
contemplated hereunder, (ii) attaching a true and complete copy of the Charter
and By-Laws or other organizational documents of such Borrower, and (iii)
setting forth the incumbency of the officer or officers of such Borrower who
sign the Loan Documents to which such Borrower is a party, including therein a
signature specimen of such officer or officers, together with a certificate of
the Secretary of State of the jurisdiction of incorporation or organization as
to the Charter or other organizational document filed with the Secretary of
State of such Borrower and the good standing and legal existence of, and the
payment of franchise taxes therein by, such Borrower, together with such other
documents as the Agent or Special Counsel shall reasonably require.
5.6 Evidence of Corporate or Trust Action of Guarantor. In the case
of any Borrower other than Eastern, Boston Gas or Midland, the Agent shall have
received a certificate, dated the initial Borrowing Date for such Borrower, of
the Secretary or an Assistant Secretary of Eastern (a) attaching a true and
complete copy of the resolutions of its Board of Trustees or Directors and of
all documents evidencing other necessary action (in form and substance
satisfactory to the Agent and to Special Counsel) taken by Eastern to authorize
the execution, delivery and performance of the Guaranty of Eastern with respect
to such Borrower's obligations under the Loan Documents to which such Borrower
is or is to become a party, (b)
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attaching a true and complete copy of the organizational documents of Eastern
(or certifying as to the absence of any changes to the organizational documents
of Eastern previously delivered to the Agent, if any), and (c) setting forth the
incumbency of the officer or officers of Eastern who sign such Guaranty,
including therein a signature specimen of such officer or officers, together
with a certificate of the Secretary of State of the Commonwealth of
Massachusetts as to the Declaration of Trust of Eastern and the good standing
and legal existence of, and the payment of franchise taxes therein by, Eastern,
together with such other documents as the Agent or Special Counsel shall
reasonably require.
5.7 Opinions of General Counsel.
(a) In the case of the initial Borrowing by any of Eastern, Boston Gas
or Midland, the Agent shall have received from the general counsel of such
Borrower, seven signed copies of a favorable opinion addressed to the Agent and
the Banks, dated such Borrowing Date and reasonably satisfactory in scope, form
and substance to the Agent, as to (i) the due organization, existence, good
standing and sufficiency of the power and authority of such Borrower; (ii) the
due authorization, execution, delivery, validity, binding effect and
enforceability, as to such Borrower, of this Agreement and any Notes issued by
such Borrower; (iii) the absence of necessity for any authorization, approval or
consent by any governmental or public regulatory authority which has not been
obtained for the authorization, execution, delivery and performance of the terms
of this Agreement and any Notes issued by such Borrower; (iv) each of (A) the
execution and delivery by such Borrower of this Agreement and its Notes, (B) the
consummation by such Borrower of the transactions contemplated hereby and (C)
the performance by such Borrower of the terms hereof and of the Notes not
conflicting with or resulting in the violation of any provision of the Charter
or By-Laws or other organizational documents of such Borrower, or of any
indenture, contract or agreement to which such Borrower is a party or to which
it is subject, or any constitutional provision, statute, rule, regulation, order
or decree binding upon such Borrower; (v) the absence (to the knowledge of such
counsel after due diligence) of litigation or proceedings by or before any
public agency or authority pending or threatened against such Borrower the
outcome of which might materially and adversely affect the financial condition,
business or operations of such Borrower, except as disclosed therein or in the
Designated Documents, and (vi) such other legal matters incident to the
transactions contemplated hereby as the Agent may reasonably request.
(b) In the case of the initial Borrowing by any Borrower other than
Eastern, Boston Gas or Midland, the Agent shall have received from the general
counsel of such Borrower, or if such Borrower has no general counsel, from
general counsel to Eastern, seven signed copies of a favorable opinion addressed
to the Agent and the Banks, dated such Borrowing Date and reasonably
satisfactory in scope, form and substance to the Agent, as to (i) the due
organization, existence, good standing and sufficiency of the power and
authority of such Borrower; (ii) the
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due authorization, execution, delivery, validity, binding effect and
enforceability, as to such Borrower, of this Agreement and any Notes issued by
such Borrower; (iii) the absence of necessity for any authorization, approval or
consent by any governmental or public regulatory authority which has not been
obtained for the authorization, execution, delivery and performance of the terms
of this Agreement and any Notes issued by such Borrower; (iv) each of (A) the
execution and delivery by such Borrower of this Agreement and its Notes, (B) the
consummation by such Borrower of the transactions contemplated hereby and (C)
the performance by such Borrower of the terms hereof and of the Notes not
conflicting with or resulting in the violation of any provision of the Charter
or By-Laws or other organizational documents of such Borrower, or of any
indenture, contract or agreement to which such Borrower is a party or to which
it is subject, or any constitutional provision, statute, rule, regulation, order
or decree binding upon such Borrower; (v) the absence (to the knowledge of such
counsel after due diligence) of litigation or proceedings by or before any
public agency or authority pending or threatened against such Borrower the
outcome of which might materially and adversely affect the financial condition,
business or operations of such Borrower, except as disclosed therein or in the
Designated Documents, and (vi) such other legal matters incident to the
transactions contemplated hereby as the Agent may reasonably request.
(c) In the case of the initial Borrowing by any Borrower other than
Eastern, Boston Gas or Midland, the Agent shall have received from the general
counsel of Eastern, seven signed copies of a favorable opinion addressed to the
Agent and the Banks, dated such Borrowing Date and reasonably satisfactory in
scope, form and substance to the Agent, as to (i) the due organization,
existence, good standing and sufficiency of the power and authority of Eastern;
(ii) the due authorization, execution, delivery, validity, binding effect and
enforceability, as to Eastern, of the Guaranty executed by Eastern; (iii) the
absence of necessity for any authorization, approval or consent by any
governmental or public regulatory authority which has not been obtained for the
authorization, execution, delivery and performance of the terms of such
Guaranty; (iv) each of (A) the execution and delivery by Eastern of such
Guaranty, (B) the consummation by Eastern of the transactions contemplated
thereby and (C) the performance by Eastern of the terms thereof not conflicting
with or resulting in the violation of any provision of the Charter or By-Laws or
other organizational documents of Eastern, or of any indenture, contract or
agreement to which Eastern is a party or to which it is subject, or any
constitutional provision, statute, rule, regulation, order or decree binding
upon Eastern; (v) the absence (to the knowledge of such counsel after due
diligence) of litigation or proceedings by or before any public agency or
authority pending or threatened against Eastern the outcome of which might
materially and adversely affect the financial condition, business or operations
of Eastern except as disclosed therein or in the Designated Documents, and (vi)
such other legal matters incident to the transactions contemplated hereby as the
Agent may reasonably request.
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5.8 Existing Credit Facility. All amounts owing from any of the
Borrowers or any of their Subsidiaries in respect of the Existing Credit
Facility shall have been paid in full and all commitments of the lenders
thereunder shall have been terminated.
5.9 Fees. The fees of Special Counsel shall have been paid.
5.10 Approval of Special Counsel. All legal matters incident to the
making of the first Loans to any Borrower on the initial Borrowing Date for such
Borrower shall be satisfactory to Special Counsel, and the Agent shall have
received from Special Counsel an opinion addressed to the Banks and to the
Agent, dated such Borrowing Date, substantially in the form of Exhibit I.
6. CONDITIONS OF BORROWING - ALL BORROWINGS. The obligations of the
Banks to make any Loans hereunder on any Borrowing Date are subject to the
fulfillment of the following conditions precedent:
6.1 Compliance. On each Borrowing Date, and after giving effect to the
Loans to be made on such date (a) each of the Borrowers and the Guarantor shall
be in compliance with all of the terms, covenants and conditions of this
Agreement and the other Loan Documents applicable to it, (b) there shall exist
no Event of Default, and (c) the representations and warranties contained in
this Agreement or in any other Loan Document, or otherwise in writing made by
any Borrower or the Guarantor in connection herewith or therewith shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on such Borrowing Date (except such
thereof as specifically refer to an earlier date and except for changes
resulting from mergers, consolidations or Sales of assets or stock not
prohibited by paragraphs 8.6, 8.6A or 8.6B) and the Agent shall have received a
certificate, dated the Borrowing Date, and signed on behalf of each of the
Borrowers by a duly authorized officer of each such Borrower, to the same effect
as all of the foregoing matters.
6.2 Loan Closings. All documents required by paragraphs 5 and 6 of this
Agreement to be executed and/or delivered to the Agent on or before the
applicable Borrowing Date shall have been executed and delivered to the Agent at
the office of the Agent set forth in paragraph 11 on or before such Borrowing
Date.
6.3 DPU Approval. In the case of any Borrowing by Boston Gas, the Agent
shall have received true copies for each Bank of any required order or orders of
the DPU approving such Borrowing. Such approval shall be final and shall no
longer be subject to appeal, shall be in full force and effect and shall be in
form and substance reasonably satisfactory to the Agent and Special Counsel. In
addition,
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the Agent shall have received a certificate of the Secretary of Boston Gas to
the effect that there are no consents, approvals or licenses of any governmental
or public regulatory authority required in connection with such Borrowing by
Boston Gas that have not been obtained.
6.4. Opinion of General Counsel of Boston Gas. In the case of any
Borrowing by Boston Gas, the Agent shall have received from the general counsel
of Boston Gas seven signed copies of a favorable opinion addressed to the Agent
and the Banks, dated such Borrowing Date and satisfactory in scope, form and
substance to the Agent, to the effect that Boston Gas has obtained all necessary
approvals of the DPU for such Borrowing and that such approvals are then in full
force and effect or that no such approval of the DPU is required.
6.5 Approval of Counsel. All legal matters in connection with the making
of each Loan on such Borrowing Date shall be reasonably satisfactory to such
counsel with whom the Agent may deem it necessary to consult.
6.6 Borrowing Request. The Agent shall have received a Borrowing
Request.
6.7 Legality of Transactions. It shall not be unlawful for the Agent,
any Bank, any Borrower or the Guarantor to perform any of its obligations under
any of the Loan Documents.
6.8 Borrowers other than Eastern. In the case of any Borrower other than
Eastern, such Borrower shall be a Subsidiary of Eastern on such Borrowing Date.
In the case of any Borrower other than Eastern, Boston Gas or Midland, the
Guaranty with respect to such Borrower shall be in full force and effect on such
Borrowing Date.
6.9 Other Documents. The Agent shall have received documents as the
Agent shall reasonably require.
7. AFFIRMATIVE COVENANTS.
The Borrowers covenant and agree that on and after the Effective Date
until the later of the termination of all of the Commitments or the payment in
full of all of the Notes and the performance by the Borrowers of all of their
other obligations hereunder and under the other Loan Documents, unless the Agent
shall otherwise consent in writing as provided in paragraph 13, each Borrower
will:
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7.1 Existence. Maintain, and cause each of its Subsidiaries to maintain,
its existence in good standing in the jurisdiction of its incorporation or
organization and in each other jurisdiction in which the character of the
Property owned or leased by it or the transaction of its business makes such
qualification necessary, except in the case of any Subsidiary where the failure
so to maintain or qualify would not have a material adverse effect on the
financial condition, Property or operations of such Borrower and its
Subsidiaries on a Consolidated basis, and except as a result of a merger,
consolidation or Sale of assets or stock not prohibited by paragraphs 8.6, 8.6A
or 8.6B.
7.2 Taxes. Pay and discharge when due, and cause each of its
Subsidiaries to pay and discharge when due, all taxes, assessments and
governmental charges and levies upon such Borrower and such Subsidiaries, and
upon the income, profits and Property of such Borrower and such Subsidiaries,
which if unpaid would have a material adverse effect on the financial condition,
Property or operations of such Borrower and such Subsidiaries on a Consolidated
basis or would become a Lien prohibited by paragraph 8.2, unless and to the
extent only that such taxes, assessments, charges and levies, (a) shall be
contested in good faith and by appropriate proceedings diligently conducted by
such Borrower or such Subsidiary, provided that such reserve or other
appropriate provision, if any, as shall be required in accordance with GAAP
shall have been made therefor, or (b) are not in the aggregate material to the
financial condition, Property or operations of such Borrower and such
Subsidiaries on a Consolidated basis.
7.3 Insurance. Maintain, and cause each of its Subsidiaries to maintain,
insurance with financially sound insurance carriers on such of its Property in
such amounts, subject to such deductibles and self-insured amounts and against
such risks as is customarily maintained by similar businesses, including,
without limitation, public liability, workers' compensation and employee
fidelity insurance.
7.4 Payment of Indebtedness and Performance of Obligations. Pay and
discharge promptly, and cause each of its Subsidiaries to pay and discharge
promptly, all lawful indebtedness, obligations and claims for labor, materials
and supplies or otherwise which, if unpaid, would (a) have a material adverse
effect on the financial condition, Property or operations of such Borrower and
its Subsidiaries on a Consolidated basis, or (b) become a Lien not permitted by
paragraph 8.2, provided that neither such Borrower nor any such Subsidiary
shall be required to pay and discharge or cause to be paid and discharged any
such indebtedness, obligation or claim so long as the validity thereof shall be
contested in good faith and by appropriate proceedings diligently conducted by
such Borrower or such Subsidiary, and provided further, that such reserve or
other appropriate provision as shall be required in accordance with GAAP shall
have been made therefor.
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7.5 Observance of Legal Requirements; ERISA. Observe and comply, and
cause each of its Subsidiaries to observe and comply, in all material respects
with all laws (including ERISA and all Environmental Laws), ordinances, orders,
judgments, rules, regulations, certifications, franchises, permits, licenses,
directions and requirements of all Governmental Bodies, which now or at any time
hereafter may be applicable to such Borrower or such Subsidiary, a violation of
which would have a material adverse effect on the financial condition, Property
or operations of such Borrower and its Subsidiaries on a Consolidated basis,
except such thereof as shall be contested in good faith and by appropriate
proceedings diligently conducted by such Borrower or such Subsidiary, provided
that such reserve or other appropriate provision as shall be required in
accordance with GAAP shall have been made therefor.
7.6 Financial Statements and Other Information. Furnish to the Agent and
the Banks:
(a) as soon as available, but in no event more than one hundred twenty
(120) days after the close of each fiscal year of such Borrower, copies of its
audited (in the case of Eastern, Boston Gas and Midland) or unaudited (in the
case of any other Borrower) Consolidated Balance Sheet and the related audited
(in the case of Eastern, Boston Gas and Midland) or unaudited (in the case of
any other Borrower) Consolidated Statements of Income, Cash Flows and
Shareholders' Equity for such fiscal year setting forth in comparative form the
corresponding figures for the preceding fiscal year. In the case of Eastern,
Boston Gas and Midland, such financial statements shall be accompanied by a
report of the Accountants which report shall state that said financial
statements fairly present the financial position and results of operations of
such Borrower as at the end of and for such fiscal year except as specifically
stated therein. In the case of all Borrowers, such financial statements shall be
accompanied by a certificate signed on behalf of such Borrower by the principal
financial officer thereof to the effect that having read this Agreement, and
based upon an examination which in the opinion of such officer was sufficient to
enable such officer to make an informed statement, (i) such statements fairly
present the financial position and results of the operations of such Borrower
and its Subsidiaries on a Consolidated basis to the best of such officer's
knowledge, (ii) nothing came to such officer's attention which caused such
officer to believe that an Event of Default has occurred, or if an Event of
Default has occurred, stating the facts with respect thereto and whether the
same has been cured prior to the date of such certificate, and, if not, what
action is proposed to be taken with respect thereto and (iii) nothing came to
such officer's attention which caused such officer to believe that the Borrowers
and the Guarantor are not in compliance with all of the terms, covenants and
conditions of this Agreement and the other Loan Documents;
(b) as soon as available, but in no event more than sixty (60) days
after the close of each quarter (except the last quarter) of each fiscal year of
such Borrower, copies of its Consolidated Balance Sheet and Consolidated
Statements of
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Income and Cash Flows as of and through the end of such quarter, together with
a certificate signed on behalf of such Borrower by the principal financial
officer thereof to the effect that having read this Agreement, and based upon an
examination which in the opinion of such officer was sufficient to enable such
officer to make an informed statement, (i) such statements fairly present the
financial position and results of the operations of such Borrower and its
Subsidiaries on a Consolidated basis to the best of such officer's knowledge,
(ii) nothing came to such officer's attention which caused such officer to
believe that an Event of Default has occurred, or if an Event of Default has
occurred, stating the facts with respect thereto and whether the same has been
cured prior to the date of such certificate, and, if not, what action is
proposed to be taken with respect thereto and (iii) nothing came to such
officer's attention which caused such officer to believe that the Borrowers and
the Guarantor are not in compliance with all of the terms, covenants and
conditions of this Agreement and the other Loan Documents;
(c) simultaneously with the delivery of the financial statements
referred to in paragraphs (a) and (b) above, a statement certified by the
principal financial or accounting officer of Eastern in substantially the form
of Exhibit J hereto and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in ss 8 and (if applicable) a
statement explaining the effect of any changes in GAAP since December 31, 1993;
(d) promptly after any Authorized Signatory has knowledge thereof,
notice of: (i) failure of any Borrower or the Guarantor to comply with the
terms, covenants and conditions of this Agreement and the other Loan Documents
applicable to it or (ii) the existence of any Event of Default;
(e) prompt written notice in the event that (i) such Borrower or any of
its Subsidiaries shall fail to make any payments when due and payable under any
Plan or Multiemployer Plan, or (ii) such Borrower or such Subsidiary shall
receive notice from the Internal Revenue Service or the Department of Labor that
such Borrower or such Subsidiary shall have failed to meet the minimum funding
requirements of any Plan or Multiemployer Plan, including therewith a copy of
such notice; and
(f) promptly upon becoming available, copies of all regular, periodic or
special reports or other material which may be filed with or delivered by such
Borrower to the Securities and Exchange Commission, or any other Governmental
Body succeeding to the functions thereof; and
(g) such other information and reports relating to the affairs of such
Borrower and its Subsidiaries, as the Agent or any Bank at any time or from time
to time may reasonably request.
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7.7 Inspection. Permit representatives of the Agent or any Bank to visit
the offices of such Borrower or any of its Subsidiaries, to examine the books
and records thereof and to make copies or extracts therefrom, and to discuss the
affairs of such Borrower and such Subsidiaries with the officers, including the
financial officers, thereof, at reasonable times, at reasonable intervals and
with reasonable prior notice.
8. NEGATIVE COVENANTS. The Borrowers covenant and agree that from the
Effective Date until the later of the termination of all of the Commitments or
the payment in full of all of the Notes and the performance by the Borrowers of
all of their other obligations hereunder and under the other Loan Documents,
unless the Agent shall otherwise consent in writing as provided in paragraph 13,
no Borrower will:
8.1 Indebtedness. Create, incur, assume, guarantee or suffer to exist
any Indebtedness of Eastern other than:
(a) Indebtedness incurred under the Loan Documents; and
(b) other Indebtedness not in excess of Sixty Million Dollars
($60,000,000) in the aggregate outstanding at any time.
8.2 Liens. Create, incur, assume or suffer to exist:
(a) Liens on more than twenty percent (20%) of the outstanding
shares of any class of Voting Stock of (i) Boston Gas or Midland, or
(ii) any other Borrower (other than Eastern) at a time when such
Borrower has outstanding any Loan or Borrowing Request; in each case,
except for Permitted Liens; or
(b) Liens on any current assets (as such term is defined in
accordance with GAAP) of (i) Boston Gas or Midland or their Subsidiaries
or (ii) any other Borrower (other than Eastern) at a time when such
Borrower has outstanding any Loan or Borrowing Request, securing
Indebtedness in excess of Five Million Dollars ($5,000,000) in the
aggregate outstanding at any time; in each case, except for Permitted
Liens; or
(c) Liens on any other properties or assets of Eastern, Boston
Gas, Midland or any other Borrower (if such other Borrower has any Loan
or Borrowing Request outstanding), other than:
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(i) Liens on any other properties or assets now owned or
hereafter acquired by Eastern securing Indebtedness of Eastern
permitted by paragraph 8.1(b);
(ii) Liens on any other properties or assets now owned or
hereafter acquired by Eastern securing any other Indebtedness of
Eastern, so long as Eastern shall have made effective provision
whereby any and all of the Loans shall be equally and ratably
secured with any and all such Indebtedness and with any and all
other Indebtedness similarly entitled to be equally and ratably
secured;
(iii) Liens on any other properties or assets now owned or
hereafter acquired by Boston Gas securing any Indebtedness of
Boston Gas, so long as Boston Gas shall have made effective
provision whereby any and all of the Loans shall be equally and
ratably secured with any and all such Indebtedness and with any
and all other Indebtedness similarly entitled to be equally and
ratably secured;
(iv) Permitted Liens.
8.3 Minimum Fixed Charge Coverage. Permit the ratio of Consolidated
EBITDA to Consolidated Total Interest Expense to be less than 3.00:1.00 during
any period of four consecutive Fiscal Quarters of Eastern ending after the date
hereof.
8.4 Minimum Consolidated Adjusted Tangible Net Worth. Permit
Consolidated Adjusted Tangible Net Worth at any time to be less than Three
Hundred Million Dollars ($300,000,000), plus fifty percent (50%) of any Net
Securities Proceeds received by Eastern from the issuance of shares of its
capital stock after the date hereof, less the aggregate of all amounts (up to a
maximum of Fifty Million Dollars ($50,000,000)) paid by Eastern to its
shareholders to repurchase shares of its capital stock.
8.5 Maximum Funded Debt to Total Capitalization Ratio. Permit
the ratio of Consolidated Funded Debt to Total Capitalization (the "Funded Debt
to Total Capitalization Ratio") to be greater than 0.65:1.00 at any time after
the date hereof.
8.6 Merger, Consolidation, Disposition of Assets, Etc. - Boston Gas and
Midland.
(a) Effect any merger or consolidation with respect to which
Boston Gas or Midland is a constituent entity, other than a merger or
consolidation of one or more of the Subsidiaries of Boston Gas or
Midland
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with and into Boston Gas or Midland, with Boston Gas or Midland being
the surviving entity; or
(b) Effect any Sale of any assets of Boston Gas or Midland
(including shares of capital stock held by Boston Gas or Midland) if
such Sale would result in Boston Gas and Midland, on a combined basis,
having effected Sales of assets having an aggregate fair market value
(i) in excess of Fifty Million Dollars ($50,000,000) during any calendar
year or (ii) in excess of One Hundred Fifty Million Dollars
($150,000,000) during the period commencing on the Effective Date and
ending on the Termination Date, other than Sales of assets in the
ordinary course of business of Boston Gas or Midland and Sales of assets
which are excess, obsolete, worn out or no longer used or useful in the
ordinary course of business of Boston Gas or Midland or which have been
replaced by other assets of a similar type; or
(c) Effect any Sale of any shares of any class of Voting Stock of
Boston Gas or Midland, or issue any shares of any class of Voting Stock
of Boston Gas or Midland, or issue any warrants, options or other rights
with respect to such shares, if such Sale or issuance would result in
Persons other than Eastern holding or having the right to purchase more
than twenty percent (20%) in the aggregate of the shares of any class of
Voting Stock of either of Boston Gas or Midland;
provided, that, so long as each of the following conditions are satisfied the
Borrowers may enter into the transactions otherwise prohibited by clauses (a),
(b) and (c) above:
(i) no Event of Default is continuing immediately prior to
such merger, consolidation, Sale or issuance or would result
therefrom;
(ii) immediately after giving effect to any such merger,
consolidation, Sale or issuance, Boston Gas and Midland
(including any successor to either of them referred to in clause
(v) below) would continue to be Subsidiaries of Eastern
(including any successor to it referred to in paragraph 8.6A);
(iii) in the event that any Borrower receives any shares
of capital stock of any Person in connection with such a merger,
consolidation, Sale or issuance, the issuer of such shares is
engaged primarily in one or more aspects of a Primary Business;
(iv) all or substantially all after-tax proceeds received
by any Borrower in connection with such merger, consolidation,
Sale or issuance (other than shares of capital stock referred to
in clause (iii)
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above), net of all expenses incurred by such Borrower in
connection therewith, shall be used or invested in one or more
aspects of a Primary Business or used to make a Primary Business
Acquisition;
(v) in the case of any such merger or consolidation, or
any Sale of all or substantially all of the assets of Boston Gas
or Midland, the surviving entity of such merger or consolidation,
or the purchaser of all or substantially all of the assets of
Boston Gas or Midland shall have executed and delivered to the
Agent an Accession Agreement pursuant to which such surviving
entity or such purchaser shall have agreed to become a party to
the Loan Documents for all purposes, to assume all Loans of
Boston Gas or Midland, as the case may be, and all other
obligations of Boston Gas or Midland, as the case may be, under
the Loan Documents to which Boston Gas or Midland, as the case
may be, is party, and to duly and punctually perform and observe
of all the terms, covenants and conditions of the Loan Documents
to be kept or performed by Boston Gas or Midland, as the case may
be;
(vi) any successor to Boston Gas or Midland referred to in
clause (v) above shall be a business corporation incorporated or
organized under the laws of a State of the United States of
America and, immediately after giving effect to any merger,
consolidation or Sale referred to in clause (v) above, shall be a
Subsidiary of Eastern and be engaged primarily in one or more
aspects of a Primary Business; and
(vii) if Boston Gas or Midland, as applicable, shall have
made its initial Borrowing hereunder prior to such transaction,
the Agent shall, at the time of such transaction, receive the
documents described in paragraphs 5.5 and 5.7(a) (with conforming
changes to reflect such transaction) with respect to any
successor to Boston Gas or Midland, as applicable.
8.6A Merger or Consolidation - Eastern.
Effect any merger or consolidation with respect to which Eastern is a
constituent entity, other than (a) a merger or consolidation of one or more
Subsidiaries of Eastern with and into Eastern with Eastern being the surviving
entity or (b) a merger solely for the purpose of accomplishing a change in form
or place of organization or incorporation of Eastern, provided that (1) the
entity surviving such merger shall be a business corporation organized or
incorporated under the laws of a State of the United States of America or a
business trust organized under the laws of the State of Delaware or the
Commonwealth of Massachusetts, (2) such entity shall have executed and delivered
to the Agent
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an Accession Agreement in the form described in clause (v) of paragraph 8.6, (3)
if Eastern shall have made its initial Borrowing hereunder prior to such
transaction, the Agent shall, at the time of such transaction, receive the
documents described in paragraphs 5.5 and 5.7(a) (with conforming changes to
reflect such transaction) with respect to such successor entity, and (4) if
Eastern shall have executed any Guaranties prior to such transaction, the Agent
shall, at the time of such transaction, receive the documents described in
paragraphs 5.5 and 5.7(c) (with conforming changes to reflect such transaction)
with respect to such successor entity.
8.6B Merger, Consolidation, Disposition of Assets, Etc. - Other
Borrowers.
Effect (a) any merger or consolidation with respect to which any
Borrower (other than Eastern, Boston Gas or Midland) is a constituent entity,
(b) any Sale of any assets (including any shares of capital stock held by such
Borrower) of any Borrower (other than Eastern, Boston Gas or Midland) other than
sales in the ordinary course of business and sales of assets which are excess,
obsolete, worn out or no longer used or useful in the ordinary course of
business of such Borrower or which have been replaced by other assets of a
similar type or (c) any Sale or issuance to any Person other than Eastern of
shares of capital stock of any Borrower (other than Eastern, Boston Gas or
Midland), if on the date of such merger, consolidation, Sale or issuance there
exists (i) any unpaid balance with respect to any Loan made to such Borrower or
(ii) any outstanding Borrowing Request made by such Borrower; provided that in
the event any Borrower (other than Eastern, Boston Gas or Midland) shall merge
or consolidate with any other entity in accordance with the terms of this
paragraph 8.6B and such Borrower shall not be the entity surviving such merger
or consolidation, then such Borrower shall cease to be a Borrower for all
purposes hereunder.
8.7 Restrictive or Inconsistent Agreements. Enter into or become bound
by or permit to exist any document, instrument or agreement:
(a) which would, directly or indirectly, prohibit or impose any
condition more restrictive than the conditions in effect on the
Effective Date (after giving effect to this Agreement) upon the
declaration or payment of dividends or distributions, the incurrence of,
or refinancing of, Indebtedness under the Loan Documents (as the Loan
Documents may be amended or otherwise modified from time to time), or
the amendment or modification of any of the Loan Documents; or
(b) containing any provision that would be violated or breached
by any Loan or by the performance by any of the Borrowers of their
obligations hereunder or under any Loan Document.
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8.8 Federal Reserve Regulations. (a) Engage principally, or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System, as amended, or (b) use
any part of the proceeds of the Loans (i) for a purpose which violates the
provisions of Regulations G, U or X of the Board of Governors of the Federal
Reserve System, as amended, or (ii) for a purpose which violates any other
applicable law, rule or regulation of any Governmental Body, or (c) permit more
than twenty-five (25%) percent of the value of the aggregate of its assets to be
represented by margin stock within the meaning of said Regulation U.
9. EVENTS OF DEFAULT. The following shall each constitute an Event of
Default hereunder:
(a) the failure of any Borrower to pay the principal of any Loan when
due; or
(b) the failure of any Borrower to make any payment of interest on any
of the Loans when due and such failure shall continue unremedied for a period
of five (5) Business Days after the same shall become due; or
(c) the failure of the Borrowers to make payment of the Facility Fee,
the Agent's Fees or, except as otherwise specifically provided herein, any other
amount payable hereunder within ten (10) days after receipt by the Borrowers of
written notice from the Agent that such payment is due; or
(d) the failure of any Borrower to observe or perform any covenant or
agreement contained in paragraph 8 to be observed or performed by such Borrower
at any time when any Loan or Borrowing Request is outstanding and such failure
shall continue unremedied for a period of five (5) Business Days after receipt
by the Borrower of written notice of such failure from the Agent; or
(e) the failure of any Borrower, at any time when there is no Loan or
Borrowing Request outstanding, to observe or perform any covenant or agreement
contained in paragraph 8 to be observed or performed by such Borrower and such
failure shall continue unremedied for a period of ten (10) Business Days after
receipt by the Borrower of written notice of such failure from the Agent; or
(f) the failure of any Borrower or the Guarantor to observe or perform
any other term, covenant, or agreement contained in this Agreement or in any
other Loan Document to be observed or performed by such Borrower or the
Guarantor and such failure shall have continued unremedied for a period of
thirty (30) days after written notice, specifying such failure and requiring it
to be remedied, shall have been given to such Borrower or the Guarantor by the
Agent; or
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(g) any material representation or warranty made herein or in any other
Loan Document or in any certificate, report, or notice delivered or to be
delivered by any Borrower or the Guarantor pursuant hereto or thereto, shall
prove to have been incorrect in any material respect when made, unless, within
ten (10) Business Days after notice thereof is given to such Borrower or the
Guarantor (as the case may be) by the Agent, such Borrower or the Guarantor (as
the case may be) reissues such certificate, report or notice making the same
representation or warranty, which shall be true in all material respects as of
the date such reissued certificate, report or notice is made; or
(h) the failure of any Borrower or the Guarantor or any Subsidiary of
any Borrower to (i) observe or perform any term, covenant or agreement with
respect to Funded Debt in excess of Three Million Dollars ($3,000,000), whether
as principal, guarantor, surety or otherwise, and such failure shall permit the
holder or holders thereof (or their representative) to accelerate or require any
repayment, redemption or repurchase thereof prior to the scheduled maturity
thereof or (ii) pay when due or within any applicable grace period any
principal, interest or other amount in respect of Funded Debt in excess of Three
Million Dollars ($3,000,000), whether as a principal, guarantor, surety or other
obligor; or
(i) any Borrower or the Guarantor or any Subsidiary of any Borrower
shall (i) make an assignment for the benefit of creditors, (ii) admit in writing
its inability to pay its debts as they become due or generally fail to pay its
debts as they become due, (iii) file a voluntary petition in bankruptcy, (iv)
become insolvent (however such insolvency shall be evidenced), (v) file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, or similar relief under any present or future
statute, law or regulation of any jurisdiction, (vi) petition or apply to any
tribunal for any trustee, receiver, custodian, liquidator or fiscal agent for
any substantial part of its Property, (vii) be the subject of any proceeding
referred to in clause (vi) above or an involuntary bankruptcy petition filed
against it which remains undismissed for a period of ninety (90) days, (viii)
file any answer admitting or not contesting the material allegations of any such
petition filed against it, or of any order, judgment or decree approving such
petition in any such proceeding, (ix) seek, approve, consent to, or acquiesce in
any such proceeding, or in the appointment of any trustee, receiver, custodian,
liquidator, or fiscal agent for it, or any substantial part of its Property, or
an order is entered appointing any such trustee, receiver, custodian, liquidator
or fiscal agent and such order remains in effect for ninety (90) days, (x) take
any formal action for the purpose of effecting any of the foregoing, (xi) take
any formal action looking to the liquidation or dissolution of any Borrower or
the Guarantor (except as a result of a merger, consolidation or Sale of assets
or stock not prohibited by paragraphs 8.6, 8.6A or 8.6B), or (xii) liquidate,
dissolve, suspend or discontinue its business (except as a result of a merger,
consolidation or Sale of assets or stock not prohibited by paragraphs 8.6, 8.6A
or 8.6B); or
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(j) an order for relief is entered under the United States bankruptcy
laws or any other decree or order is entered by a court having jurisdiction (i)
adjudging any Borrower or the Guarantor or any Subsidiary of any Borrower a
bankrupt or insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of any Borrower or the Guarantor or any Subsidiary of any Borrower under
the United States bankruptcy laws or any other applicable Federal or state law,
or (iii) appointing a trustee, receiver, custodian, liquidator, or fiscal agent
(or other similar official) of any Borrower or the Guarantor or any Subsidiary
of any Borrower or of any substantial part of the Property of any thereof, or
(iv) ordering the winding up or liquidation of the affairs of any Borrower or
the Guarantor or any Subsidiary of any Borrower; or
(k) judgments or decrees against the Borrowers and the Subsidiaries of
the Borrowers and the Guarantor for an aggregate amount in excess of Five
Million Dollars ($5,000,000) shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of sixty (60) days; or
(l) any fact or circumstance, including any Reportable Event as defined
in Title IV of ERISA, at a time when there exists an underfunding of the Plan in
an amount in excess of Five Hundred Thousand Dollars ($500,000), which
constitutes grounds for the termination of any Plan by the PBGC or for the
appointment of a trustee to administer any Plan, shall have occurred and be
continuing for a period of thirty (30) days; or
(m) Boston Gas or Midland (or any other Borrower (other than Eastern) at
a time when there is outstanding any Loan made to it or a Borrowing Request made
by it) shall cease to be a Subsidiary of Eastern; or
(n) any Guaranty with respect to a Borrower (other than Eastern, Boston
Gas or Midland) that has any outstanding Loans shall be held by a court of
competent jurisdiction to be invalid or unenforceable, and all of such
outstanding Loans shall not be paid in full within ten (10) days thereafter; or
(o) any "person", as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended, other than Eastern, shall
become a direct or indirect beneficial owner, determined in accordance with Rule
13d-3 under such Act, of shares of Voting Stock representing more than thirty
percent (30%) of the combined voting power of the then outstanding shares of
Voting Stock of Eastern, other than as a result of the issuance of shares of
Voting Stock of Eastern in connection with a Primary Business Acquisition; or
during any period of two (2) consecutive years, (i) individuals who at the
beginning of the period were members of the Board of Trustees or Board of
Directors of Eastern and (ii) individuals who were appointed or elected trustees
or directors during such period and whose
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election or appointment by Eastern's trustees or directors (or whose nomination
for election by Eastern's stockholders) was approved by two-thirds (2/3) of that
portion of Eastern's trustees or directors comprised of individuals then still
in office who were trustees or directors at the beginning of such period and
individuals who were approved in accordance with this clause (ii), shall
together cease to constitute a majority of the Board of Trustees or Board of
Directors of Eastern then in office.
Upon the occurrence and during the continuance of an Event of Default
under this paragraph 9, the Agent, upon the request of the Majority Banks, shall
notify the Borrowers that the Commitments have been terminated and that the
Notes, all accrued interest thereon and all other amounts owing under this
Agreement and the other Loan Documents are immediately due and payable, provided
that upon the occurrence of an event specified in paragraphs 9(i) or 9(j), the
Commitments shall automatically terminate and the Notes (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents shall become immediately due and payable without notice to any
Borrower. Except for any notice expressly provided for in this paragraph 9, the
Borrowers hereby expressly waive any presentment, demand, protest, notice or
action of protest or other notice of any kind. The Borrowers hereby further
expressly waive and covenant not to assert any appeasement, valuation, stay,
extension, redemption or similar laws, now or at any time hereafter in force,
which might delay, prevent or otherwise impede the performance or enforcement of
this Agreement, the Notes or other Loan Documents.
In the event that the unpaid principal balance of the Notes, all accrued
interest thereon and all other amounts owing under this Agreement shall have
been declared due and payable pursuant to the provisions of this paragraph 9,
the Agent may, and upon (i) the request of the Majority Banks and (ii) the
providing by all of the Banks to the Agent of an indemnity in form and substance
satisfactory to the Agent in accordance with paragraph 10.3 against all expenses
and liabilities shall, proceed to enforce the rights of the holders of the Notes
by suit in equity, action at law and/or other appropriate proceedings, whether
for payment or the specific performance of any covenant or agreement contained
in this Agreement, the Notes or the other Loan Documents. The Agent shall be
justified in failing or refusing to take any action hereunder, under the Notes
and under the other Loan Documents unless it shall be indemnified to its
satisfaction by the Banks pro rata according to the aggregate outstanding
principal balance of the Notes against any and all liabilities and expenses
which may be incurred by it by reason of taking or continuing to take any such
action. In the event that the Agent, having been so indemnified, or not being
indemnified to its satisfaction, shall fail or refuse so to proceed, any Bank
shall be entitled to take such action as it shall deem appropriate to enforce
its rights hereunder, under its Notes and under the other Loan Documents, with
the consent of the Banks, it being understood and intended that no one or more
of the holders of the Notes shall have any right to enforce payment thereof
except as provided in this paragraph 9 and in paragraph 12.
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If an Event of Default shall have occurred and shall be continuing, the
Agent may, and at the request of the Majority Banks shall, notify the Borrowers
(by telephone or otherwise) that all or such lesser amount as the Majority
Banks shall designate of the outstanding Eurodollar Rate Loans and B Loans
automatically shall be converted to Alternate Base Rate Loans, in which event
such Eurodollar Rate Loans and B Loans automatically shall be converted to
Alternate Base Rate Loans on the date such notice is given. If such notice is
given, notwithstanding anything in paragraph 2.7 to the contrary, no Alternate
Base Rate Loan may be converted to a Eurodollar Rate Loan if an Event of Default
has occurred and is continuing at the time the applicable Borrower shall notify
the Agent of its election to so convert.
10. THE AGENT. The Banks and the Agent agree by and among themselves that:
10.1 Appointment. FNBB is hereby irrevocably designated the Agent by
each of the other Banks to perform such duties on behalf of the other Banks and
itself, and to have such powers, as are set forth herein and as are reasonably
incidental thereto.
10.2 Delegation of Duties; Etc. The Agent may execute any duties and
perform any powers hereunder by or through agents or employees, and shall be
entitled to consult with legal counsel and any accountant or other professional
selected by it. Any action taken or omitted to be taken or suffered in good
faith by the Agent in accordance with the opinion of such counsel or accountant
or other professional shall be full justification and protection to the Agent.
10.3 Indemnification. The Banks agree to indemnify the Agent in its
capacity as such, to the extent not reimbursed by the Borrowers, pro rata
according to their respective Commitments as of the Effective Date, from and
against any and all claims, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement, the
Notes or the other Loan Documents or any action taken or omitted to be taken or
suffered in good faith by the Agent hereunder or thereunder, provided that no
Bank shall be liable for any portion of any of the foregoing items resulting
from the gross negligence or willful misconduct of the Agent. Without limitation
of the foregoing, each Bank agrees to reimburse the Agent promptly for its pro
rata share of any reasonable out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution,
administration or enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement, the Notes and the other Loan Documents,
to the extent that the Agent, having sought reimbursement for such expenses from
the
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Borrowers, is not promptly reimbursed by the Borrowers. Any reference herein and
in any document executed in connection herewith, to the Banks providing an
indemnity in form and substance satisfactory to the Agent prior to the Agent
taking any action hereunder shall be satisfied by the Banks executing an
agreement confirming their agreement to promptly indemnify the Agent in
accordance with this paragraph 10.3.
10.4 Exculpatory Provisions. Neither Agent, nor any of its officers,
directors, employees or agents, shall be liable for any action taken or omitted
to be taken or suffered by it or them hereunder, under the Notes, under any
other Loan Document, or in connection herewith or therewith, except that the
Agent shall be liable for its own gross negligence or willful misconduct. The
Agent shall not be liable in any manner for the effectiveness, enforceability,
collectibility, genuineness, validity or the due execution of this Agreement,
the Notes or any other Loan Document, or for the due authorization, authenticity
or accuracy of the representations and warranties contained herein or in any
other certificate, report, notice, consent, opinion, statement, or other
document furnished or to be furnished hereunder or therewith, and the Agent
shall be entitled to rely upon any of the foregoing believed by it to be genuine
and correct and to have been signed and sent or made by the proper Person. The
Agent shall not be under any duty or responsibility to any Bank to ascertain or
to inquire into the performance or observance by any Borrower or any Subsidiary
of any Borrower of any of the provisions hereof, of the Notes, of any other Loan
Documents or of any document executed and delivered in connection herewith or
therewith. Each other Bank expressly acknowledges that the Agent has not made
any representations or warranties to it and that no act taken by the Agent shall
be deemed to constitute any representation or warranty by the Agent to any other
Bank. Each Bank acknowledges that it has taken and will continue to take such
action and has made and will continue to make such investigation as it deems
necessary to inform itself of the affairs of the Borrowers and each Subsidiary
of the Borrowers, and each Bank acknowledges that it has made and will continue
to make its own independent investigation of the creditworthiness and the
business and operations of the Borrowers and each Subsidiary of the Borrowers,
and that, in entering into this Agreement, and in agreeing to make its Loans, it
has not relied and will not rely upon any information or representations
furnished or given by the Agent or any other Bank.
10.5 Agent in its Individual Capacity. With respect to its Loans and any
renewals, extensions or deferrals of the payment thereof and any Note issued to
or held by it, the Agent shall have the same rights and powers hereunder as any
Bank, and may exercise the same as though it were not the Agent, and the term
"Bank" or "Banks" shall, unless the context otherwise requires, include the
Agent in its individual capacity. FNBB and its affiliates may accept deposits
from, lend money to, act as trustee or other fiduciary in connection with
transactions
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involving, and otherwise engage in any business with the Borrowers and their
affiliates and any Person who may do business with or own securities of the
Borrowers or any affiliates of the Borrowers, all as if FNBB were not the Agent
hereunder and without any obligation to account or report therefor to any Bank.
10.6 Knowledge of Default. It is expressly understood and agreed that
the Agent shall be entitled to assume that no Event of Default has occurred and
is continuing, unless the officers of the Agent who are responsible for matters
concerning this Agreement shall have actual knowledge of such occurrence or
shall have been notified in writing by a Bank that such Bank considers that an
Event of Default has occurred and is continuing and specifying the nature
thereof.
In the event the Agent shall have acquired actual knowledge of any Event
of Default, it shall promptly give notice thereof to the Banks.
10.7 Resignation of Agent. If at any time the Agent deems it advisable,
in its sole discretion, it may submit to each of the Banks a written
notification of its resignation as Agent under this Agreement, such resignation
to be effective on the thirtieth day after the date of such notice. If the Agent
resigns hereunder, the Borrowers shall have the right to appoint, with the prior
written approval of the Banks, which approval shall not be unreasonably
withheld, a successor Agent hereunder, provided, however that upon the
occurrence and during the continuance of an Event of Default, the Banks shall
have the right to appoint such successor Agent hereunder. The successor Agent
shall be a commercial bank organized under the laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the Agent
hereunder, and the retiring Agent shall be discharged from any further duties
and obligations under this Agreement. The Borrowers and the Banks agree to
execute such documents as shall be necessary to effect such appointment. After
the retiring Agent's resignation or removal hereunder, the provisions of this
paragraph 10 shall inure to its benefit as to any actions taken or omitted to be
taken by it while the Agent under this Agreement. If at any time hereunder there
shall not be a duly appointed and acting Agent, each of the Borrowers agrees to
make each payment due hereunder and under the Notes directly to the Banks
entitled thereto.
10.8 Requests to the Agent. Whenever the Agent is authorized and
empowered hereunder on behalf of the Banks to give any approval or consent, or
to make any request, or to take any other action on behalf of the Banks, the
Agent shall be required to give such approval or consent, or to make such
request or to
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take such other action only when so requested in writing by the Majority Banks
subject, however, to the provisions of paragraph 13.
11. NOTICES.
11.1 Manner of Delivery. Except as otherwise specifically provided
herein, all notices and demands shall be in writing and shall be mailed by
certified mail return receipt requested or sent by telegram, telecopy or telex
or delivered in person, and all statements, reports, documents, consents,
waivers, certificates and other papers required to be delivered hereunder shall
be mailed by first-class mail or delivered in person, in each case to the
respective parties to this Agreement as follows:
the Borrowers:
c/o Eastern Enterprises
9 Riverside Road
Weston, Massachusetts 02193
Attention: Treasurer
Telephone: (617) 647-2300
Telecopy: (617) 647-2350
with a copy to
Eastern Enterprises
9 Riverside Road
Weston, Massachusetts 02193
Attention: Legal Department
Telephone: (617) 647-2300
Telecopy: (617) 647-2398
the Agent:
The First National Bank of Boston
100 Federal Street, 01-08-02
Boston, Massachusetts 02193
Attention: George W. Passela, Managing Director
Telephone: (617) 434-7160
Telecopy: (617) 434-3652
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the Banks:
The First National Bank of Boston
100 Federal Street, 01-08-02
Boston, Massachusetts 02110
Attention: George W. Passela, Managing Director
Telephone: (617) 434-7160
Telecopy: (617) 434-3652
The Bank of Nova Scotia
101 Federal Street
16th Floor
Boston, Massachusetts 02110
Attention: Mr. Michael Bradley
Telephone: (617) 737-6312
Telecopy: (617) 951-2177
Fifth Third Bank
Fifth Third Center
Cincinnati, Ohio 45263
Attention: Mr. Richard A. Tiberi
Telephone: (513) 579-4110
Telecopy: (513) 579-5226
Mellon Bank, N.A.
Room 151-4425
One Mellon Bank Center
Pittsburgh, Pennsylvania 15258-0001
Attention: Ms. Mary Ellen Usher
Telephone: (412) 236-1203
Telecopy: (412) 234-8888
Morgan Guaranty Trust
Company of New York
60 Wall Street
New York, New York 10260
Attention: Ms. Debra Brodheim
Telephone: (212) 648-8063
Telecopy: (212) 648-5018
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National Westminster Bank Plc
175 Water Street
29th Floor
New York, New York 10038-4924
Attention: Mr. David E. Apps
Telephone: (212) 602-4221
Telecopy: (212) 602-4500
Shawmut Bank, N.A.
One Federal Street
Boston, Massachusetts 02211
Attention: Mr. Robert D. Lanigan
Telephone: (617) 292-3715
Telecopy: (617) 292-2619
or to such other Person or address as a party hereto shall designate to the
other parties hereto from time to time in writing forwarded in like manner. Any
notice or demand given in accordance with the provisions of this paragraph 11.1
shall be effective when received and any consent, waiver or other communication
given in accordance with the provisions of this paragraph 11.1 shall be
conclusively deemed to have been received by a party hereto and to be effective
on the day on which delivered to such party at its address specified above or,
if sent by first class mail, on the third Business Day after the day when
deposited in the mail, postage prepaid, and addressed to such party at such
address, provided that a notice of change of address shall be deemed to be
effective when actually received.
11.2 Distribution of Copies. Whenever any Borrower is required to
deliver any statement, report, document, certificate or other paper (other than
Borrowing Request or a notice to convert or continue under paragraph 2.7) to the
Agent, such Borrower shall simultaneously deliver a copy thereof to each Bank.
11.3 Notices by the Agent or a Bank. In the event that the Agent or any
Bank takes any action or gives any consent or notice provided for by this
Agreement, notice of such action, consent or notice shall be given forthwith to
all the Banks by the Agent or the Bank taking such action or giving such consent
or notice, provided that the failure to give any such notice shall not
invalidate any such action, consent or notice in respect of any Borrower.
12. RIGHT OF SET-OFF. Regardless of the adequacy of any collateral, upon the
occurrence and during the continuance of any Event of Default, each Bank is
hereby expressly and irrevocably authorized by each of the Borrowers at any time
and from time to time, without notice to such Borrower, to set-off, appropriate,
and apply all moneys, securities and other Property and the proceeds thereof now
or hereafter held or received by or in transit to such Bank from or for the
account of
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such Borrower, whether for safekeeping, pledge, transmission, collection or
otherwise, and also upon any and all deposits (general and special), account
balances and credits of such Borrower with such Bank at any time existing
against any and all obligations of such Borrower to the Banks and to each of
them arising under this Agreement the Notes and the other Loan Documents, and
such Borrower shall continue to be liable to each Bank for any deficiency with
interest at the rate or rates set forth in subparagraph 2.7(b). Each of the
Banks agrees with each other Bank that (a) if an amount to be set off is to be
applied to any obligations of any Borrower to such Bank, other than obligations
evidenced by the Notes of such Borrower held by such Bank, such amount shall be
applied ratably to such other obligations and to the obligations evidenced by
all such Notes held by such Bank and (b)if such Bank shall receive from any
Borrower or the Guarantor, whether by voluntary payment, exercise of the right
of setoff, counterclaim, cross action, enforcement of the claim evidenced by the
Notes of such Borrower held by such Bank, enforcement of any claim against the
Guarantor, proceedings against such Borrower or the Guarantor at law or in
equity, 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 of such Borrower held by such Bank any amount in excess of
its ratable portion of the payments received by all of the Banks with respect to
the Notes of such Borrower held by 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 of such
Borrower held by each Bank, its proportionate payment as contemplated by this
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.
13. AMENDMENTS, WAIVERS AND CONSENTS. Except as otherwise expressly set forth
herein, with the written consent of the Majority Banks, the Agent shall, subject
to the provisions of this paragraph 13, from time to time enter into agreements
amendatory or supplemental hereto with the Borrowers for the purpose of changing
any provisions of this Agreement, the Notes or the other Loan Documents, or
changing in any manner the rights of the Banks, the Agent or the Borrowers
hereunder and thereunder, or waiving compliance with any provision of this
Agreement or consenting to the non-compliance thereof. Notwithstanding the
foregoing, the consent of all of the Banks shall be required with respect to (a)
any amendment, waiver or consent changing (i) the Aggregate Commitments, (ii)
the Commitment of any Bank, (iii) the maturity of, rate of interest on, time or
manner of payment of interest on or principal of, or the principal amount of,
any Loan, or (iv) the amount, time or manner of payment of any fees hereunder
(other than Agent's Fees); (b) the termination or release of any Guaranty with
respect to a Borrower (other than Eastern, Boston Gas or Midland) that has any
outstanding Loans; or (c) any amendment, waiver or consent which modifies the
provisions of
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this paragraph 13. Any such amendatory or supplemental agreement, waiver or
consent shall apply equally to each of the Banks and shall be binding on the
Borrowers and all of the Banks and the Agent. Any waiver or consent shall be for
such period and subject to such conditions or limitations as shall be specified
therein, but no waiver or consent shall extend to any subsequent or other Event
of Default, or impair any right or remedy consequent thereupon. In the case of
any waiver or consent, the rights of the Borrowers, the Banks and the Agent
under this Agreement, the Notes and the other Loan Documents shall be otherwise
unaffected. Nothing contained herein shall be deemed to require the Agent to
obtain the consent of any Bank with respect to any change in the amount or terms
of payment of the Agent's Fees. The Borrowers shall be entitled to rely upon the
provisions of any such amendatory or supplemental agreement, waiver or consent
if it shall have obtained any of the same in writing from the Agent who therein
shall have represented that such agreement, waiver or consent has been
authorized in accordance with the provisions of this paragraph 13.
14. OTHER PROVISIONS.
14.1 No Waiver of Rights by the Banks. No failure on the part of the
Agent or of any Bank to exercise, and no delay in exercising, any right or
remedy hereunder or under the Notes shall operate as a waiver thereof, except as
provided in paragraph 13, nor shall any single or partial exercise by the Agent
or any Bank of any right, remedy or power hereunder, under the Notes or under
any other Loan Document preclude any other or future exercise thereof, or the
exercise of any other right, remedy or power. The rights, remedies and powers
provided herein, in the Notes and in the Loan Documents are cumulative and not
exclusive of any other rights, remedies or powers which the Agent or the Banks
or any holder of a Note would otherwise have. Notice to or demand on any
Borrower in any circumstance in which the terms of this Agreement, the Notes or
the other Loan Documents do not require notice or demand to be given shall not
entitle any Borrower to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Agent or any
Bank or the holder of any Note to take any other or further action in any
circumstances without notice or demand.
14.2 Headings; Plurals. Paragraph and subparagraph headings have been
inserted herein for convenience only and shall not be construed to be a part of
this Agreement. Unless the context otherwise requires, words in the singular
number include the plural, and words in the plural include the singular.
14.3 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Agreement or of any
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document required to be executed and delivered in connection herewith or
therewith to produce or account for more than one counterpart.
14.4 Severability. Every provision of this Agreement, the Notes and the
other Loan Documents is intended to be severable, and if any term or provision
hereof or thereof shall be invalid, illegal or unenforceable for any reason, the
validity, legality and enforceability of the remaining provisions hereof or
thereof shall not be affected or impaired thereby, and any invalidity,
illegality or unenforceability in any jurisdiction shall not affect the
validity, legality or enforceability of any such term or provision in any other
jurisdiction.
14.5 Integration. All exhibits to this Agreement shall be deemed to be a
part of this Agreement. This Agreement, the exhibits hereto, the Notes and the
other Loan Documents embody the entire agreement and understanding between the
Borrowers, the Agent and the Banks with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
Borrowers, the Agent and the Banks with respect to the subject matter hereof and
thereof.
14.6 Sales and Participations in Loans and Notes; Successors and
Assigns; Survival of Representations and Warranties.
(a) Each Bank shall have the right with the prior written consent of the
Borrowers (which consent of the Borrowers may be withheld for any reason or for
no reason) and the Agent (which consent of the Agent shall not be unreasonably
withheld), upon written notice to the Agent and the Borrowers, to sell, assign,
transfer or negotiate all or any part (but not less than $10,000,000) of its
Loans, its Notes, its Commitment and any other interest of such Bank hereunder
and under the other Loan Documents to one or more Banks. In addition, each Bank
shall have the right with the prior written consent of the Borrowers (which
consent of the Borrowers may be withheld for any reason or for no reason) and
the Agent (which consent of the Agent shall not be unreasonably withheld) upon
written notice to the Agent and the Borrowers to sell, assign, transfer or
negotiate all or any part (but not less than $10,000,000) of its Loans, its
Notes, its Commitment and any other interest of such Bank hereunder and under
the other Loan Documents to one or more commercial banks or other financial
institutions. In the case of any sale, assignment, transfer or negotiation of
all or any such part of the Loans and the Notes authorized under this paragraph
14.6(a), the assignee or transferee shall have, to the extent of such sale,
assignment, transfer or negotiation, the same rights, benefits and obligations
as it would if it were a Bank hereunder and a holder of such Note, including,
without limitation, (x) the right to approve or disapprove of actions which in
accordance with the terms hereof, require the approval of the
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Majority Banks and (y) the obligation to fund A Loans directly to the Agent
pursuant to paragraph 2.2.
(b) Notwithstanding paragraph 14.6(a), each Bank shall have the right
with the prior written consent of the Borrowers (which consent of the Borrowers
may be withheld for any reason or for no reason) and the Agent (which consent of
the Agent shall not be unreasonably withheld) to grant participations in all or
any part (but not less than $10,000,000) of its Loans, its Notes and any other
interest of such Bank hereunder and under the other Loan Documents to one or
more commercial banks, insurance companies or other financial institutions,
pension funds or mutual funds; provided that (i) any such disposition shall not,
without the prior written consent of the Borrowers, require the Borrowers to
file a registration statement with the Securities and Exchange Commission or
apply to qualify the Loans and the Notes under the blue sky laws of any state,
(ii) the granting of such participation shall not release such Bank from any of
its obligations hereunder, and (iii) the holder of any such participation shall
not have any rights or obligations hereunder. Nothing in the prior sentence or
elsewhere in this paragraph 14.6 shall prohibit a Bank from agreeing with any
such participant that such Bank will not take any action that would require
approval of all of the Banks hereunder without the consent of such participant.
Each Bank hereby agrees that it will not agree with any such participant that
such Bank will not take any action without such participant's consent unless
such action would require approval of all Banks hereunder.
Notwithstanding the foregoing provisions of this paragraph 14.6, each
Bank may at any time with the prior written consent of the Borrowers (which
consent shall not be unreasonably withheld) sell, assign, transfer, or negotiate
all or any part of the Loans to any Affiliate of such Bank; provided that an
Affiliate to whom such disposition has been made shall not be considered a
"Bank", and the assigning Bank shall be considered not to have disposed of any
Loans so assigned, for purposes of determining the Majority Banks under any
provision hereof, but such Affiliate shall otherwise be considered a "Bank", and
the assigning Bank shall otherwise be considered to have disposed of any Loans
so assigned, for purposes hereof, including, without limitation, paragraphs 3.1
and 12 hereof, and provided further, that the Borrowers shall not incur any
additional expenses solely as a result of such sale, assignment, transfer or
negotiation.
In addition, notwithstanding anything to the contrary contained in this
paragraph 14.6, any Bank may at any time or from time to time assign all or any
portion of its rights under this Agreement with respect to its Loans, its
Commitments, its Notes to a Federal Reserve Bank. No such assignment shall
release the assignor Bank from its obligations hereunder.
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No Bank shall, as between the Borrowers and such Bank, be relieved of
any of its obligations hereunder as a result of granting participations in all
or any part of the Loans and the Notes of such Bank or other obligations owed to
such Bank.
This Agreement shall be binding upon and inure to the benefit of the
Banks, the Agent and the Borrowers and their respective successors and assigns.
Notwithstanding anything herein to the contrary, no Borrower may assign or
transfer any of its rights or obligations hereunder without the prior written
consent of all Banks, except to a successor entity pursuant to a merger,
consolidation or Sale of assets or stock permitted by paragraphs 8.6 or 8.6A
which assumes all of the obligations of such Borrower hereunder as provided in
such paragraphs. All covenants, agreements, warranties and representations made
herein, and in all certificates or other documents delivered in connection with
this Agreement by or on behalf of the Borrowers shall survive the execution and
delivery hereof and thereof, and all such covenants, agreements, representations
and warranties shall inure to the respective successors and assigns of the Banks
and the Agent whether or not so expressed.
The Agent shall maintain a copy of each assignment delivered to it and a
register or similar list for the recordation of the names and addresses of the
Banks and the Commitment Percentages of the Banks and the principal amount of
the Loans and the Notes assigned from time to time. The entries in such register
shall be conclusive, in the absence of manifest error and provided that any
required consent of the Borrowers has been obtained, and the Borrowers, the
Agent and the Banks may treat each Person whose name is recorded in such
register as a Bank hereunder for all purposes of this Agreement. Upon each such
recordation, the assigning Bank agrees to pay to the Agent a registration fee in
the sum of One Thousand Five Hundred Dollars ($1,500).
14.7 Applicable Law. This Agreement and the Notes are being delivered in
and are intended to be performed in the Commonwealth of Massachusetts and shall
be construed and enforceable in accordance with, and be governed by, the
internal laws of the Commonwealth of Massachusetts without regard to principles
of conflict of laws.
14.8 WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE FULLEST EXTENT PERMITTED
OR NOT PROHIBITED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, EACH OF THE PARTIES
HERETO ACKNOWLEDGES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HERETO OR COUNSEL
TO ANY OTHER PARTY HERETO
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HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY HERETO WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE SUCH WAIVER. EACH OF THE
PARTIES HERETO ACKNOWLEDGES THAT THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THE LOAN DOCUMENTS BY, INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH.
14.9 CONSENT TO JURISDICTION. EACH OF THE BORROWERS HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY COURT OF THE COMMONWEALTH OF MASSACHUSETTS OR
ANY FEDERAL COURT SITTING IN THE COMMONWEALTH OF MASSACHUSETTS OVER ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS. EACH OF
THE BORROWERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED OR NOT
PROHIBITED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE BORROWERS
HEREBY AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH A COURT, AFTER ALL APPROPRIATE APPEALS, SHALL BE CONCLUSIVE
AND BINDING UPON IT.
14.10 SERVICE OF PROCESS. PROCESS MAY BE SERVED IN ANY SUIT, ACTION,
COUNTERCLAIM OR PROCEEDING OF THE NATURE REFERRED TO IN PARAGRAPH 14.9 BY
MAILING COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN
RECEIPT REQUESTED, TO THE ADDRESS OF THE BORROWERS SET FORTH IN PARAGRAPH 11.1
OR TO ANY OTHER ADDRESS OF WHICH ANY BORROWER SHALL HAVE GIVEN WRITTEN NOTICE TO
THE AGENT. EACH OF THE BORROWERS HEREBY AGREES THAT SUCH SERVICE (I) SHALL BE
DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON IT IN ANY SUCH SUIT,
ACTION, COUNTERCLAIM OR PROCEEDING, AND (II) SHALL TO THE FULLEST EXTENT
PERMITTED OR NOT PROHIBITED BY APPLICABLE LAW, BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT.
14.11 NO LIMITATION ON SERVICE OR SUIT. NOTHING IN THE LOAN DOCUMENTS,
OR ANY MODIFICATION, WAIVER, OR
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AMENDMENT THERETO, SHALL AFFECT THE RIGHT OF THE AGENT OR ANY BANK TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR LIMIT THE RIGHT OF THE AGENT OR
ANY BANK TO BRING PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION OR JURISDICTIONS.
15. OTHER OBLIGATIONS OF THE BORROWERS.
15.1 Taxes and Fees. Should any tax (other than a tax based upon the net
income of any Bank), recording or filing fee become payable in respect of this
Agreement, the Notes or the other Loan Documents or any amendment, modification
or supplement hereof or thereof, the Borrowers jointly and severally agree to
pay the same together with any interest or penalties thereon and agree to hold
the Agent and the Banks harmless with respect thereto, and in the event that any
Borrower is obligated to withhold any such taxes or fees from any payment to the
Agent or the Banks hereunder or under any of the other Loan Documents, then such
Borrower will pay to the Agent or the Banks (as the case may be) the same amount
as the Agent or the Banks (as the case may be) would have received had no such
obligation been imposed on such Borrower.
15.2 Expenses. Whether or not the transactions contemplated by this
Agreement shall be consummated, the Borrowers jointly and severally agree to pay
the reasonable out-of-pocket expenses of the Agent (including the reasonable
fees and expenses of counsel to the Agent and, without limitation, Special
Counsel) in connection with the preparation, reproduction, execution and
delivery of this Agreement, the Notes, the other Loan Documents and the exhibits
annexed hereto and thereto and any modifications, waivers, consents or
amendments hereto and thereto, and the Borrowers further jointly and severally
agree to pay the reasonable out-of-pocket expenses of the Agent and the Banks
(including the reasonable fees and expenses of their respective counsel)
incurred in connection with the interpretation and enforcement of any provision
of this Agreement or collection under the Notes, whether or not suit is
instituted.
15.3 Indemnification. Each Borrower agrees to indemnify and hold
harmless the Agent and the Banks and their respective shareholders, officers,
directors, employees, agents, Subsidiaries and Affiliates from and against any
and all claims, actions and suits whether groundless or otherwise, and from and
against any and all liabilities, losses, damages and expenses of every nature
and character arising out of (a) any actual or proposed use by such Borrower or
any of its Subsidiaries (in the case of Eastern, other than Boston Gas or
Midland) of the proceeds of any of the Loans, (b) such Borrower or any of its
Subsidiaries (in the case of Eastern, other than Boston Gas or Midland) entering
into or performing this Agreement or any of the other Loan Documents or (c) with
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respect to such Borrower and its Subsidiaries (in the case of Eastern, other
than Boston Gas or Midland) 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 and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding; except
in each case, for any portion of any such liability, loss, damage or expense
which a court of competent jurisdiction has found in a final non-appealable
order resulted solely from the gross negligence or willful misconduct of the
indemnified party. In any such litigation, or the preparation therefor, the
indemnified party shall be entitled to select its counsel and, in addition to
the foregoing indemnity, the indemnifying Borrower agrees to pay promptly the
reasonable fees and expenses of such counsel. If, and to the extent that the
obligations of any Borrower under this paragraph are unenforceable for any
reason, such Borrower hereby agrees to make the maximum contribution to the
payment in satisfaction of such obligations which is permissible under
applicable law. The covenants contained in this paragraph shall survive payment
of satisfaction in full of all other obligations.
16. IMMUNITY OF INDIVIDUALS. Reference is hereby made to the Declaration of
Trust establishing Eastern Enterprises, dated July 18, 1929, a copy of which has
been filed with the Secretary of the Commonwealth of Massachusetts and elsewhere
as required by law, and to any and all amendments thereto so filed or hereafter
filed. The name "Eastern Enterprises" refers to the trustees under said
Declaration of Trust, as trustees and not personally, and no trustee,
shareholder, officer or agent of Eastern shall be held to any personal liability
hereunder or in connection with the affairs of Eastern, but only the trust
estate under said Declaration of Trust is liable under this Agreement, any
Guaranty, the Notes or any other Loan Document. Without limiting the generality
of the foregoing, neither the Agent nor any Bank nor any other holder of any of
the Notes shall under any circumstances have recourse or cause or willingly
permit recourse to be had directly or indirectly to any personal, statutory, or
other liability of any shareholder, stockholder, trustee, director, officer,
agent or promoter of Eastern or of any successor of Eastern, whether such
liability now exists or is hereafter incurred, but the Agent, each Bank and each
such holder shall look for payment solely to the said trust estate, or the
assets of such successor of Eastern.
17. EFFECTIVE DATE. This Agreement shall be effective as of December 31, 1994
(the "Effective Date"); provided that, on or prior to such date, the Agent shall
have received an original counterpart hereof, duly executed by each party
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
EASTERN ENTERPRISES
By: /s/Walter J. Flaherty
-----------------------------------
Title: Sr. Vice President & CFO
BOSTON GAS COMPANY
By: /s/Joseph F. Bodanza
-----------------------------------
Title: Senior Vice President and
Treasurer
MIDLAND ENTERPRISES INC.
By: Robert L. Doettling
-----------------------------------
Title: Senior Vice President Finance
and Administration
Domestic Lending Office: THE FIRST NATIONAL BANK
OF BOSTON, Individually and as Agent
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/George W. Passela
-----------------------------------
Title: Managing Director
Office listed in paragraph 11.1
Domestic Lending Office THE BANK OF NOVA SCOTIA
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/Terry Pitcher
-----------------------------------
Title: Vice President
Office listed in paragraph 11.1
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Domestic Lending Office: FIFTH THIRD BANK
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/ Richard A. Tiberi
----------------------------
Title: Assistant Vice President
Office listed in paragraph 11.1
Domestic Lending Office: MELLON BANK, N.A.
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/ Mary Ellen Usher
------------------------------
Title: Vice President
Office listed in paragraph 11.1
Domestic Lending Office: MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/ Deborah A. Brodheim
-------------------------------
Title: Vice President
Office listed in paragraph 11.1
Domestic Lending Office: NATIONAL WESTMINSTER BANK PLC
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/Maria Amaral-LeBlanc
-------------------------------
Title: Vice President
Office listed in paragraph 11.1
Domestic Lending Office: SHAWMUT BANK, N.A.
Office listed in paragraph 11.1
Eurodollar Lending Office: By: /s/Robert D. Lanigan
-------------------------------
Title: Managing Director
Office listed in paragraph 11.1