AMENDMENT NO. 4 TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDMENT NO. 4 TO AMENDED AND RESTATED REVOLVING CREDIT AND
TERM LOAN AGREEMENT (this "Amendment No. 4") is made and entered into as
of March 29, 2002, by and among BANGOR HYDRO-ELECTRIC COMPANY, a Maine
corporation having its chief executive office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ (the "Borrower"), FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), a national banking association having a place of business at
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Fleet"), and the other lending
institutions listed on Schedule 1 to the Credit Agreement (as defined
below) and Fleet as administrative agent and documentation agent for
itself and such other lending institutions (the "Agent"). Capitalized
terms used herein without definition shall have the meanings assigned to
such terms in the Credit Agreement.
WHEREAS, the Borrower, the Banks, and the Agent entered into an
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
June 29, 1998 (as amended by Amendment No. 1 to Amended and Restated
Revolving Credit and Term Loan Agreement, dated as of June 29, 2001,
Amendment No. 2 to Amended and Restated Revolving Credit and Term Loan
Agreement, dated as of October 1, 2001, and Amendment No. 3 to Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of December
31, 2001, as the same may be further amended and in effect from time to
time, the "Credit Agreement"), pursuant to which the Banks extended credit
to the Borrower on the terms set forth therein; and
WHEREAS, the Borrower has requested an extension of the Revolving Credit
Loan Maturity Date, and the parties hereto have agreed to extend the Revolving
Credit Loan Maturity Date on the terms set forth herein; and
WHEREAS, Fleet has approved, among the other amendments set forth
herein, an increase in the Total Commitment to $60,000,000;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree to amend the provisions of the
Credit Agreement as follows:
1. Amendments to Section 1 of the Credit Agreement.
(a) Section 1 of the Credit Agreement is hereby amended by deleting
the following definition of "Consolidated Adjusted EBIT" in its entirety
and replacing it with the following new definition, inserted in proper
alphabetical order:
"Consolidated Adjusted EBIT. For any period, Consolidated Net
Income (or deficit) for such period (a) plus, without duplication
and to the extent reflected as a charge in the statement of such
Consolidated Net Income (or deficit) for such period, the sum of (i)
total income tax expense, (ii) interest expense, amortization or
write-off of debt discount and debt issuance costs and commissions,
discounts and other fees and charges associated with Indebtedness
(including the Loans) and (iii) solely for the purposes of
determining compliance with Section 11.2 hereof, (A) the non-cash
non-recurring charge related to the early retirement plan and
severance arrangements implemented in connection with the corporate
reorganization of the Borrower to be taken in the fiscal year ending
December 31, 2002, and (B) any non-cash charges attributable to the
impairment of goodwill of the Borrower to be taken in the fiscal
year ending December 31, 2002; and (b) minus, to the extent included
in Consolidated Net Income (or deficit) for such period, the amount
which would appear in accordance with GAAP on a statement of income
of the Borrower and its consolidated Subsidiaries opposite the
heading "Allowance for equity funds used during construction" (or
any similar item)."
(b) Section 1 of the Credit Agreement is hereby amended by deleting
the following definitions of "Level I Status", "Level II Status", "Level
III Status", "Level IV Status", "Level V Status" and "Level VI Status" in
their entirety and replacing them with the following new definitions,
inserted in proper alphabetical order:
"Level I Status. With respect to the Revolving Credit Loans,
the Status that exists on any date if on such date the Borrower has
a long-term senior secured debt or corporate credit rating (whether
or not published) of BBB+ or better by S&P and, unless the Borrower
is then unrated by ▇▇▇▇▇'▇, Baa1 or better by ▇▇▇▇▇'▇."
"Level II Status. With respect to the Revolving Credit Loans,
the Status that exists on any date if on such date Level I Status
does not exist, and the Borrower has a long-term senior secured debt
or corporate credit rating (whether or not published) of BBB or
better by S&P and, unless the Borrower is then unrated by ▇▇▇▇▇'▇,
Baa1 or better by ▇▇▇▇▇'▇."
"Level III Status. With respect to the Revolving Credit Loans,
the Status that exists on any date if on such date neither Level I
Status nor Level II Status exists, and the Borrower has a long-term
senior secured debt or corporate credit rating (whether or not
published) of BBB- or better by S&P and, unless the Borrower is then
unrated by ▇▇▇▇▇'▇, Baa2 or better by ▇▇▇▇▇'▇."
"Level IV Status. With respect to the Revolving Credit Loans,
the Status that exists on any date if on such date neither Level I
Status nor Level II Status nor Level III Status exists, and the
Borrower has a long-term senior secured debt or corporate credit
rating (whether or not published) of BB+ or better by S&P and,
unless the Borrower is then unrated by ▇▇▇▇▇'▇, ▇▇▇ or better by
▇▇▇▇▇'▇."
"Level V Status. With respect to the Revolving Credit Loans,
the Status that exists on any date if on such date neither Level I
Status nor Level II Status nor Level III Status nor Level IV Status
exists, and the Borrower has a long-term senior secured debt or
corporate credit rating (whether or not published) of BB or better
by S&P and, unless the Borrower is then unrated by ▇▇▇▇▇'▇, ▇▇▇ or
better by ▇▇▇▇▇'▇."
"Level VI Status. With respect to the Revolving Credit Loans,
the Status that exists on any date if on such date neither Level I
Status nor Level II Status nor Level III Status nor Level IV Status
nor Level V Status exists."
(c) Section 1 of the Credit Agreement is hereby amended by deleting
the following "Pricing Table" in its entirety and replacing it with the
following new Pricing Table, inserted in proper alphabetical order:
Status Applicable Applicable Applicable L/C Commitment
LIBOR Margin Base Rate Rate Fee Rate
(per annum) Margin (per annum) (per annum)
(per annum)
Level I 0.60% 0.00% 0.60% 0.20%
Level II 0.75% 0.00% 0.75% 0.25%
Level III 1.25% 0.25% 1.25% 0.375%
Level IV 1.75% 0.75% 1.75% 0.50%
Level V 2.00% 1.00% 2.00% 0.50%
Level VI 2.50% 1.50% 2.50% 0.625%
(d) Section 1 of the Credit Agreement is further amended by
deleting the following definition of "Revolving Credit Loan Maturity
Date" in its entirety and replacing it with the following new definition,
inserted in proper alphabetical order:
"Revolving Credit Loan Maturity Date. June 30, 2003."
(e) Section 1 is further amended by deleting the following
definition of "Status" in its entirety and replacing it with the
following new definition, inserted in proper alphabetical order:
"Status. The existence of Level I Status, Level II Status,
Level III Status, Level IV Status, Level V Status or Level VI
Status, as the case may be."
2. Amendment to Section 2.4 of the Credit Agreement. Section 2.4(a) of
the Credit Agreement is hereby amended by adding the following phrase
immediately after the words "Closing Date":
", the effective date of any amendment and restatement of such
note".
3. Amendments to Section 9.4 of the Credit Agreement.
(a) Section 9.4(a) of the Credit Agreement is hereby amended by
deleting Section 9.4(a) in its entirety and restating it as follows:
"(a) as soon as practicable, but in any event not later than
one-hundred twenty (120) days after the end of each fiscal year (i)
of the Borrower, the consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such year, and the related
consolidated statements of cash flows, operations and retained
earnings for such year, each setting forth in comparative form the
figures for the previous fiscal year and all such consolidated
statements to be in reasonable detail, prepared in accordance with
GAAP, and certified without qualification by Coopers & ▇▇▇▇▇▇▇ or by
other independent certified public accountants of nationally
recognized standing reasonably satisfactory to the Administrative
Agent, together with a written statement from such accountants to the
effect that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or
Event of Default, or, if such accountants shall have obtained
knowledge of any then existing Default or Event of Default they shall
disclose in such statement any such Default or Event of Default and
(ii) of Emera, Inc., the consolidated balance sheet of Emera, Inc.
and its Subsidiaries as at the end of such year, and the related
consolidated statements of cash flows, operations and retained
earnings for such year, each setting forth in comparative form the
figures for the previous fiscal year and all such consolidated
statements to be in reasonable detail, prepared in accordance with
GAAP, and certified without qualification by Ernst & Young LLP or by
other independent certified public accountants of nationally
recognized standing reasonably satisfactory to the Administrative
Agent, together with a written statement from such accountants to the
effect that, in making the examination necessary to said
certification, they have obtained no knowledge of any Default or
Event of Default, or, if such accountants shall have obtained
knowledge of any then existing Default or Event of Default they shall
disclose in such statement any such Default or Event of Default;
provided that such accountants shall not be liable to the Banks for
failure to obtain knowledge of any Default or Event of Default;"
(b) Section 9.4(b) of the Credit Agreement is hereby amended by
deleting the phrase "fifty (50) days" and replacing it with the phrase
"forty-five (45) days".
(c) Section 9.4(h) is hereby amended by deleting the phrase "(1)
on or about June 30 and December 31 of each year, a letter from S&P
setting forth the Borrower's long-term senior secured debt or
corporate credit rating then in effect and" and replacing it with the
phrase "(1) once each year, a letter from S&P setting forth the
Borrower's and Emera Inc.'s long-term senior secured debt or
corporate credit rating then in effect and".
4. Amendment to Section 10 of the Credit Agreement. Section 10 of the
Credit Agreement is hereby amended by adding the following Section 10.11
immediately after Section 10.10:
"Section 10.11. Assignment of Service Agreement. The Borrower will
not, and will not permit any of its Subsidiaries to, assign the Service
Agreement."
5. Amendment to Section 11.1 of the Credit Agreement. Section 11.1 of
the Credit Agreement is hereby amended by deleting Section 11.1 in its
entirety and restating it as follows:
"Section 11.1. Consolidated Net Worth. The Borrower will not
permit Consolidated Net Worth to be less than $150,000,000."
6. Amendment to Section 11.4 of the Credit Agreement. Section 11.4
of the Credit Agreement is hereby amended by deleting all of the second
sentence of Section 11.4 and replacing it with: "Notwithstanding the
foregoing, so long as no Default or Event of Default has occurred or is
continuing, the Borrower may declare or otherwise become obligated to make
dividend payments not to exceed one hundred percent (100%) of earnings
applicable to common stock for each fiscal year; provided that the
Borrower has a long term senior secured debt rating (whether or not
published) of BBB or better by S&P. If the Borrower's long term senior
secured debt rating is less than BBB by S&P at any time, then dividend
payments shall not exceed seventy percent (70%) of earnings applicable to
common stock for such fiscal year and each fiscal year thereafter."
7. Amendment to Schedule 1 to the Credit Agreement. Schedule 1 to
the Credit Agreement is hereby amended by deleting Schedule 1 in its
entirety and substituting in lieu thereof Schedule 1 attached hereto.
8. Conditions to Effectiveness. This Amendment No. 4 shall become
effective as of the date hereof, subject to the satisfaction of each of the
following conditions:
(a) receipt by the Agent of this Amendment No. 4 duly and properly
authorized, executed and delivered by each of the respective parties
hereto;
(b) the Borrower shall have delivered to the Agent certified copies
of corporate resolutions of the Borrower satisfactory to the Agent
authorizing this Amendment No. 4;
(c) receipt by the Agent of the Borrower's audited financial
statements pursuant to Section 9.4(a) in form and substance satisfactory
to the Agent;
(d) receipt by the Agent of an opinion of Borrower's counsel issued
to the Agent and the Banks, in form and substance satisfactory to the
Agent and the Banks; and
(e) receipt by ▇▇▇▇▇▇▇ ▇▇▇▇ LLP of payment of all fees and
expenses incurred in the connection with the preparation of this
Amendment No. 4.
9. Representations and Warranties. The Borrower represents and
warrants to the Agent and the Banks as follows:
(a) The execution, delivery and performance of each of this
Amendment No. 4 and the transactions contemplated hereby are within the
corporate power and authority of the Borrower and have been or will be
authorized by proper corporate proceedings, and do not (i) require any
consent or approval of the stockholders of the Borrower, (ii) contravene
any provision of the charter documents or by-laws of the Borrower or any
law, rule or regulation applicable to the Borrower, or (iii) contravene
any provision of, or constitute an event of default or event which, but
for the requirement that time elapse or notice be given, or both, would
constitute an event of default under, any other material agreement,
instrument or undertaking binding on the Borrower.
(b) This Amendment No. 4 and the Credit Agreement, as amended as of
the date hereof, and all of the terms and provisions hereof and thereof
are the legal, valid and binding obligations of the Borrower, enforceable
in accordance with their respective terms except as limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors' rights generally, and except as
the remedy of specific performance or of injunctive relief is subject to
the discretion of the court before which any proceeding therefor may be
brought.
(c) The execution, delivery and performance of this Amendment No. 4
and the transactions contemplated hereby do not require any approval or
consent of, or filing or registration with, any governmental or other
agency or authority, or any other party.
(d) The representations and warranties contained in Section 8 of
the Credit Agreement are true and correct in all material respects as of
the date hereof as though made on and as of the date hereof.
(e) After giving effect to this Amendment No. 4, no Default or
Event of Default under the Credit Agreement has occurred and is
continuing.
10. Ratification, etc. Except as expressly amended hereby, the
Credit Agreement, the other Loan Documents and all documents, instruments
and agreements related thereto are hereby ratified and confirmed in all
respects and shall continue in full force and effect. This Amendment No.
4 and the Credit Agreement shall hereafter be read and construed together
as a single document, and all references in the Credit Agreement, any
other Loan Document or any agreement or instrument related to the Credit
Agreement shall hereafter refer to the Credit Agreement as amended by this
Amendment No. 4.
11. GOVERNING LAW. THIS AMENDMENT NO. 4 SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
12. Counterparts. This Amendment No. 4 may be executed in any
number of counterparts and by different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which counterparts taken together shall be deemed to
constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Amendment No. 4 as of the date first set forth above.
THE BORROWER:
BANGOR HYDRO-ELECTRIC COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
THE BANKS:
FLEET NATIONAL BANK (f/k/a BankBoston, N.A.),
individually and as Administrative Agent and
Documentation Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANKNORTH, N.A. (F/K/A
PEOPLES HERITAGE BANK)
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Schedule 1
BANKS
-----
Commitment Commitment
Banks Address Amount Percentage
----- ------- ---------- ----------
Fleet National Bank ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $52,000,000 86.6667%
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
BankNorth, N.A. One Portland Square $8,000,000 13.3333%
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------- ---------
Total $60,000,000 100%