Exhibit 10-98.2
CENTRAL MAINE POWER COMPANY
CREDIT AGREEMENT
Dated as of December 15, 1998
BANKBOSTON, N.A., Managing Agent
THE BANK OF NEW YORK, Managing Agent
TABLE OF CONTENTS
Page
1. Definitions; Certain Rules of Construction...............................................................1
2. The Credits.............................................................................................18
2.1. [Reserved].....................................................................................18
2.2. 364-Day Revolving Credit.......................................................................18
2.2.1. 364-Day Revolving Loan.................................................................18
2.2.2. Maximum Amount of 364-Day Revolving Credit............................................19
2.2.3. Borrowing Requests....................................................................19
2.2.4. 364-Day Revolving Notes...............................................................19
2.3. Competitive Auction Facility Credit............................................................19
2.3.1. Request by the Company................................................................20
2.3.2. Dissemination of Requests for Bids for Competitive Auction Facility
Loans................................................................................20
2.3.3. Bids for Competitive Auction Facility Loans...........................................21
2.3.4. Acceptance of Bids by the Borrower....................................................21
2.3.5. Funding by the New York Managing Agent; Competitive Auction
Facility Loan Account, etc...........................................................22
2.3.6. Prepayments in Respect of Competitive Auction Facility Loans..........................23
2.4. Application of Proceeds........................................................................23
2.4.1. [Reserved].............................................................................24
2.4.2. 364-Day Revolving Loan................................................................24
2.4.3. Competitive Auction Facility Loan.....................................................24
2.4.4. Specifically Prohibited Applications..................................................24
2.5. Nature of Obligations of Lenders to Make Extensions of Credit..................................24
2.5.1. Revolving Loans.......................................................................24
2.5.2. Competitive Auction Facility Loans....................................................24
2.6. Extension of Final Maturity Date of the Revolving Loan.........................................24
2.6.1. [Reserved].............................................................................24
2.6.2. 364-Day Final Maturity Date...........................................................25
3. Interest; Eurodollar Pricing Options; Fees..............................................................25
3.1. Interest on Revolving Loan.....................................................................25
3.2. Interest on Competitive Auction Facility Loans.................................................25
3.3. Eurodollar Pricing Options.....................................................................25
3.3.1. Election of Eurodollar Pricing Options................................................25
3.3.2. Notice to Lenders and Company.........................................................26
3.3.3. Selection of Eurodollar Interest Periods..............................................26
3.3.4. Additional Interest...................................................................27
3.3.5. Violation of Legal Requirements.......................................................27
3.3.6. Funding Procedure.....................................................................27
3.4. Facility Fees..................................................................................28
3.5. Changes in Circumstances; Yield Protection.....................................................28
3.5.1. Reserve Requirements, etc.............................................................28
3.5.2. Taxes.................................................................................28
3.5.3. Capital Adequacy......................................................................29
3.5.4. Regulatory Changes....................................................................29
3.5.5. Compensation Claims...................................................................29
3.5.6. Mitigation............................................................................30
3.6. Computations of Interest and Fees..............................................................30
4. Payment.................................................................................................30
4.1. Payment at Maturity............................................................................30
4.2. Contingent Required Prepayments for Excess Credit Exposure.....................................31
4.3. Voluntary Prepayments..........................................................................31
4.4. Reborrowing; Application of Payments, etc......................................................31
4.4.1. Reborrowing...........................................................................31
4.4.2. Order of Application..................................................................31
4.4.3. Payments for Lenders..................................................................31
5. Conditions to Extending Credit..........................................................................31
5.1. Conditions on Initial Closing Date.............................................................32
5.1.1. Officer's Certificate..................................................................32
5.1.2. Revolving Notes........................................................................32
5.1.3. Commitment Fee.........................................................................32
5.1.4. Legal Opinions.........................................................................32
5.1.5. [Reserved].............................................................................32
5.1.6. Maine Public Utilities Commission......................................................32
5.1.7. Proper Proceedings.....................................................................33
5.1.8. General................................................................................33
5.2. Conditions to Each Extension of Credit.........................................................33
5.2.1. Bring-Down of Representations and Warranties...........................................33
5.2.2. Material Adverse Change................................................................33
5.2.3. Legality, etc..........................................................................34
6. General Covenants.......................................................................................34
6.1. Taxes and Other Charges; Accounts Payable......................................................34
6.1.1. Taxes and Other Charges................................................................34
6.1.2. Accounts Payable.......................................................................34
6.2. Conduct of Business, etc.......................................................................35
6.2.1. Types of Business......................................................................35
6.2.2. Maintenance of Properties..............................................................35
6.2.3. Statutory Compliance...................................................................35
6.2.4. General and Refunding Mortgage Indenture...............................................36
6.2.5. More Favorable Provisions..............................................................36
6.3. Insurance......................................................................................36
6.4. Financial Statements and Reports...............................................................37
6.4.1. Annual Reports........................................................................37
6.4.2. Quarterly Reports.....................................................................38
6.4.3. Other Reports.........................................................................38
6.4.4. Notice of Litigation, Defaults, etc...................................................39
6.4.5. ERISA Reports.........................................................................39
6.4.6. Other Information; Audit..............................................................40
6.5. Certain Financial Tests........................................................................40
6.5.1. Consolidated Net Worth................................................................40
6.5.2. Common Stock Investment to Total Capitalization.......................................41
6.5.3. Consolidated EBIT to Consolidated Interest Expense....................................41
6.6. Indebtedness...................................................................................41
6.7. Guarantees.....................................................................................42
6.8. Liens..........................................................................................43
6.9. Certain Investments............................................................................46
6.10. Asset Dispositions and Mergers.................................................................46
6.11. Negative Pledge Clauses........................................................................46
6.12. ERISA..........................................................................................47
6.13. Environmental Laws.............................................................................47
6.13.1. Compliance with Law and Permits......................................................47
6.13.2. Notice of Claims, etc................................................................47
6.14. Distributions..................................................................................47
7. Representations and Warranties..........................................................................47
7.1. Organization and Business......................................................................48
7.1.1. The Company...........................................................................48
7.1.2. Subsidiaries..........................................................................48
7.1.3. Qualification.........................................................................48
7.1.4. Capitalization........................................................................48
7.2. Financial Statements and Other Information; Material Agreements................................48
7.2.1. Financial Statements and Other Information............................................48
7.2.2. Material Agreements...................................................................49
7.3. Agreements Relating to Financing Debt..........................................................49
7.4. Changes in Condition...........................................................................50
7.5. Title to Assets................................................................................50
7.6. Operations in Conformity With Law, etc.........................................................50
7.7. Litigation.....................................................................................50
7.8. Authorization and Enforceability...............................................................50
7.9. No Legal Obstacle to Agreements................................................................51
7.10. Defaults.......................................................................................51
7.11. Licenses, etc..................................................................................52
7.12. Tax Returns....................................................................................52
7.13. Certain Business Representations...............................................................52
7.13.1. Labor Relations......................................................................52
7.13.2. Burdensome Obligations...............................................................52
7.14. Environmental Regulations......................................................................52
7.14.1. Environmental Compliance.............................................................52
7.14.2. Environmental Litigation.............................................................53
7.14.3. Hazardous Material...................................................................53
7.15. Pension Plans..................................................................................54
7.16. Foreign Trade Regulations; Government Regulation; Margin Stock.................................54
7.16.1. Foreign Trade Regulations............................................................54
7.16.2. Government Regulation................................................................54
7.17. Disclosure.....................................................................................54
8. Defaults................................................................................................54
8.1. Events of Default..............................................................................54
8.1.1. Payment...............................................................................54
8.1.2. Specified Covenants...................................................................55
8.1.3. Other Covenants.......................................................................55
8.1.4. Representations and Warranties........................................................55
8.1.5. Cross Default, etc....................................................................55
8.1.6. Enforceability, etc...................................................................56
8.1.7. Judgments.............................................................................56
8.1.8. ERISA.................................................................................56
8.1.9. Bankruptcy, etc.......................................................................56
8.2. Certain Actions Following an Event of Default..................................................57
8.2.1. Terminate Obligation to Extend Credit.................................................57
8.2.2. Specific Performance; Exercise of Rights..............................................57
8.2.3. Acceleration..........................................................................58
8.2.4. Enforcement of Payment; Credit Security; Setoff.......................................58
8.2.5. Cumulative Remedies...................................................................58
8.3. Annulment of Defaults..........................................................................58
8.4. Waivers........................................................................................58
9. Expenses; Indemnity.....................................................................................59
9.1. Expenses.......................................................................................59
9.2. General Indemnity..............................................................................59
10. Operations; Managing Agents.............................................................................60
10.1. Interests in Credits...........................................................................60
10.2. Roles of Managing Agents.......................................................................60
10.3. Managing Agents' Authority to Act, etc.........................................................60
10.4. Company to Pay New York Managing Agent, etc....................................................60
10.5. Lender Operations for Advances, etc............................................................61
10.5.1. Advances.............................................................................61
10.5.2. New York Managing Agent to Allocate Payments, etc....................................61
10.5.3. Delinquent Lenders; Nonperforming Lenders............................................62
10.6. Sharing of Payments, etc.......................................................................62
10.7. Amendments, Consents, Waivers, etc.............................................................63
10.8. Managing Agent's Resignation...................................................................64
10.9. Concerning the Managing Agents.................................................................65
10.9.1. Action in Good Faith, etc............................................................65
10.9.2. No Implied Duties, etc...............................................................65
10.9.3. Validity, etc........................................................................65
10.9.4. Compliance...........................................................................65
10.9.5. Employment of Agents and Counsel.....................................................66
10.9.6. Reliance on Documents and Counsel....................................................66
10.9.7. Managing Agents' Reimbursement.......................................................66
10.10. Rights as a Lender.............................................................................66
10.11. Independent Credit Decision....................................................................67
10.12. Indemnification................................................................................67
11. Successors and Assigns; Lender Assignments and Participations...........................................67
11.1. Assignments by Lenders.........................................................................68
11.1.1. Assignees and Assignment Procedures..................................................68
11.1.2. Terms of Assignment and Acceptance...................................................69
11.1.3. Register.............................................................................70
11.1.4. Acceptance of Assignment and Assumption..............................................70
11.1.5. Federal Reserve Bank.................................................................70
11.1.6. Further Assurances...................................................................70
11.2. Credit Participants............................................................................70
11.3. Replacement of Lender..........................................................................71
12. Confidentiality.........................................................................................72
13. Foreign Lenders.........................................................................................73
14. Notices.................................................................................................74
15. Course of Dealing; Amendments and Waivers...............................................................74
16. No Strict Construction..................................................................................75
17. Defeasance..............................................................................................75
18. Venue; Service of Process...............................................................................75
19. WAIVER OF JURY TRIAL....................................................................................76
20. General.................................................................................................76
EXHIBITS
2.2.4 - Form of 364-Day Revolving Note
2.3.1 - Form of Competitive Auction Facility Loan Bid Request
2.3.2 - Form of Invitation to Bid on Competitive Auction Facility Loan
2.3.3A - Form of Competitive Auction Facility Loan Bid
2.3.3B - Form of List of Competitive Auction Facility Loan Bids
2.3.4A - Form of List of Acceptances and Non-Acceptances of Competitive
Auction Facility Loan Bids
2.3.4B - Form of Acceptance of Competitive Auction Facility Loan Bid
2.3.4C - Form of Non-Acceptance of Competitive Auction Facility Loan Bid
2.3.4D - Form of Notice of Competitive Auction Facility Loan
2.3.5 - Form of Competitive Auction Facility Note
5.1.1 - Form of Officer's Certificate
7.2.2 - Material Agreements
7.3 - Financing Debt
10.1 - Percentage Interests
11.1.1 - Form of Assignment and Acceptance
CENTRAL MAINE POWER COMPANY
CREDIT AGREEMENT
This Agreement, dated as of December 15, 1998, is among Central Maine
Power Company, a Maine corporation, the Lenders from time to time party hereto,
BankBoston, N.A., both in its capacity as a Lender and in its capacity as agent
for itself and the other Lenders, and The Bank of New York, both in its capacity
as a Lender and in its capacity as agent for itself and the other Lenders. The
parties agree as follows:
. Certain capitalized terms are used in this Agreement and in the other Credit
Documents with the specific meanings defined below in this Section 1. Except as
otherwise explicitly specified to the contrary or unless the context clearly
requires otherwise, (a) the capitalized term "Section" refers to sections of
this Agreement, (b) the capitalized term "Exhibit" refers to exhibits to this
Agreement, (c) references to a particular Section include all subsections
thereof, (d) the word "including" shall be construed as "including without
limitation", (e) accounting terms not otherwise defined herein have the meaning
provided under GAAP, (f) references to a particular statute or regulation
include all rules and regulations thereunder and any successor statute,
regulation or rules, in each case as from time to time in effect and (g)
references to a particular Person include such Person's successors and assigns
to the extent not prohibited by this Agreement and the other Credit Documents.
References to "the date hereof" mean the date first set forth above.
1.1. "Affected Lender" is defined in Section 11.3.
1.2. "Affiliate" means, with respect to the Company (or any other
specified Person), any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with the Company (or
such specified Person), and shall include (a) any officer or director or general
partner of the Company (or such specified Person) and (b) any Person of which
the Company (or such specified Person) or any Affiliate (as defined in clause
(a) above) of the Company (or such specified Person) shall, directly or
indirectly, beneficially own either (i) at least 10% of the outstanding equity
securities having the general power to vote or (ii) at least 10% of all equity
interests.
1.3. "Agreement" means this Credit Agreement as from time to time amended,
modified and in effect.
1.4. "Applicable Margin" means on each day three-quarters of one percent
(.75%) per annum.
1.5. "Applicable Rate" means, at any date, the sum of:
(a) (i) with respect to each portion of the Revolving Loan subject to
a Eurodollar Pricing Option, the sum of the Applicable Margin plus the
Eurodollar Rate with respect to such Eurodollar Pricing Option;
(ii) with respect to each other portion of the Revolving Loan, the
Base Rate;
plus (b) an additional 2% effective on the day the New York
Managing Agent notifies the Company that the interest rates
hereunder are increasing as a result of the occurrence and
continuance of an Event of Default under Section 8.1.1 until
the earlier of such time as (i) such Event of Default is no
longer continuing or (ii) such Event of Default is deemed no
longer to exist, in each case pursuant to Section 8.3.
1.6. "Assignee" is defined in Section 11.1.1.
1.7. "Assignment and Acceptance" is defined in Section 11.1.1.
1.8. "BankBoston" means BankBoston, N.A.
1.9. "Bank of New York" means The Bank of New York.
1.10. "Banking Day" means any day other than Saturday, Sunday or a day
on which banks in Portland, Maine, New York, New York and Boston, Massachusetts
are authorized or required by law or other governmental action to close and, if
such term is used with reference to a Eurodollar Pricing Option, any day on
which dealings are effected in the Eurodollars in question by first-class banks
in the inter-bank Eurodollar markets in London, England.
1.11. "Bankruptcy Code" means Title 11 of the United States Code.
1.12. "Bankruptcy Default" means an Event of Default referred to in
Section 8.1.9.
1.13. "Base Rate" means, on any date, the greater of (a) the rate of
interest announced by Bank of New York at the New York Office as its Base Rate
or (b) the sum of 1/2% plus the Federal Funds Rate.
1.14. "Base Rate Advances" means advances under a Revolving Loan on
which the applicable rate of interest is the Base Rate.
1.15. "Boston Managing Agent" means BankBoston in its capacity as a
Managing Agent hereunder.
1.16. "By-laws" means all written by-laws and all other similar
constituent documents relating to the management, governance or internal
regulation of any Person other than an individual, or interpretive of the
Charter of such Person, all as from time to time in effect.
1.17. "Capitalized Lease" means any lease which is required to be
capitalized on the balance sheet of the lessee in accordance with GAAP,
including to the extent applicable Statement Nos. 13 and 98 of the Financial
Accounting Standards Board.
1.18. "Capitalized Lease Obligations" means the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP, including to the extent
applicable Statement Nos. 13 and 98 of the Financial Accounting Standards Board.
1.19. "Cash Equivalents" means:
(a) negotiable certificates of deposit, time deposits
(including sweep accounts), demand deposits and bankers' acceptances
having a maturity of nine months or less and issued by any United
States financial institution having capital and surplus and undivided
profits aggregating at least $100,000,000 and rated at least Prime-1 by
▇▇▇▇▇'▇ or A-1 by S&P or issued by any Lender or Affiliate thereof;
(b) corporate obligations having a maturity of nine months
or less and rated at least Prime-1 by ▇▇▇▇▇'▇ or A-1 by S&P or issued
by any Lender;
(c) any direct obligation of the United States of America or
any agency or instrumentality thereof, or of any state or municipality
thereof, (i) which has a remaining maturity at the time of purchase of
not more than one year or which is subject to a repurchase agreement
with any Lender or Affiliate thereof (or any other financial
institution referred to in clause (a) above) exercisable within one
year from the time of purchase and (ii) which, in the case of
obligations of any state or municipality, is rated at least Aa by
▇▇▇▇▇'▇ or AA by S&P;
(d) any mutual fund or other pooled investment vehicle rated
at least Aa by ▇▇▇▇▇'▇ or AA by S&P which invests principally in
obligations described above; and
(e) any Investment by a Foreign Subsidiary in its local
jurisdiction comparable to the items described above.
1.20. "CERCLA" means the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
1.21. "CERCLIS" means the federal Comprehensive Environmental Response
Compensation Liability Information System List (or any successor document)
issued under CERCLA.
1.22. "Charter" means the articles of organization, certificate of
incorporation, statute, constitution, joint venture agreement, partnership
agreement, trust indenture, limited liability company agreement or other charter
document of any Person other than an individual, each as from time to time in
effect.
1.23. "Closing Date" means the Initial Closing Date and each other date
on which any extension of credit is made pursuant to Section 2.2 and the
Competitive Auction Facility Loan Closing Dates.
1.24. "Code" means the federal Internal Revenue Code of 1986, as
amended.
1.25. "Commitment" means, with respect to any Lender, such Lender's
obligations to extend the credits contemplated by Section 2. The original
Commitments are set forth in Exhibit 10.1 and the current Commitments are
recorded from time to time in the Register.
1.26."Company" means Central Maine Power Company, a Maine corporation.
1.27. "Competitive Auction Facility Loan" is defined in Section 2.3.
1.28. "Competitive Auction Facility Loan Accounts" is defined in Section
2.3.5.
1.29. "Competitive Auction Facility Loan Closing Date" is defined in
Section 2.3.1.
1.30. "Competitive Auction Facility Loan Interest Payment Date" is defined
in Section 2.3.1.
1.31. "Competitive Auction Facility Loan Maturity Date" is defined in
Section 2.3.1.
1.32. "Competitive Auction Facility Note" is defined in Section 2.3.5.
1.33. "Competitive Auction Facility Rates" is defined in Section 2.3.3.
1.34. "Consolidated" and "Consolidating", when used with reference to any
term, mean that term as applied to the accounts of the Company (or other
specified Person) and all of its Subsidiaries (or other specified group of
Persons), or such of its Subsidiaries as may be specified, consolidated (or
combined) or consolidating (or combining), as the case may be, in accordance
with GAAP and with appropriate deductions for minority interests in
Subsidiaries.
1.35. "Consolidated Current Assets" means, at any date, all amounts
carried as current assets on the balance sheet of the Company and its
Subsidiaries determined in accordance with GAAP on a Consolidated basis.
1.35A. "Consolidated EBIT" means, for any period, the total of:
(a) Consolidated Net Income;
plus (b) all amounts deducted in computing such Consolidated Net
Income in respect of:
(i) interest on, and commitment fees with respect to,
Indebtedness (including payments in the nature of interest
under Capitalized Leases and Interest Rate Protection
Agreements),
(ii) taxes based upon or measured by net income, and
(iii) dividends on preferred stock.
1.36. "Consolidated Interest Expense" means, for any period, the
aggregate amount of interest, including commitment fees, payments in the nature
of interest under Capitalized Leases and net payments under Interest Rate
Protection Agreements, accrued by the Company and its Subsidiaries (whether such
interest is reflected as an item of expense or capitalized) in accordance with
GAAP on a Consolidated basis.
1.37. "Consolidated Net Income" means, for any period, the net income
(or loss) applicable to common stock of the Company and its Subsidiaries,
determined in accordance with GAAP on a Consolidated basis; provided, however,
that Consolidated Net Income shall not include:
(a) all amounts included in computing such net income (or
loss) in respect of (i) the write-up of any asset after December 31,
1995 or (ii) the retirement of any Indebtedness or equity at less than
face value after December 31, 1995;
(b) extraordinary and nonrecurring gains; and
(c) any after-tax gains or losses attributable to returned
surplus assets of any Plan.
1.38. "Consolidated Net Worth" means, at any date, the total of
stockholders' equity of the Company and its Subsidiaries determined in
accordance with GAAP on a Consolidated basis; provided, however, that
Consolidated Net Worth shall not include all amounts included in computing such
Consolidated Net Worth in respect of (i) the write-up of any asset after
December 31, 1995 or (ii) the retirement of any Indebtedness or equity at less
than face value after December 31, 1995.
1.39. [Reserved].
1.40. "Credit Documents" means:
(a) this Agreement, the Notes and each Interest Rate
Protection Agreement provided by a Lender (or an Affiliate of a Lender)
in connection with this Agreement and the Notes to the Company or any
of its Subsidiaries, each as from time to time in effect;
(b) all financial statements, reports, notices, mortgages,
assignments, UCC financing statements and certificates delivered to
either of the Managing Agents or any of the Lenders by the Company or
any of its Subsidiaries in connection herewith or therewith; and
(c) any other present or future agreement or instrument from
time to time entered into among the Company or any of its Subsidiaries,
on one hand, and the Managing Agents or all the Lenders, on the other
hand, relating to, amending or modifying this Agreement or any other
Credit Document referred to above or which is stated to be a Credit
Document, each as from time to time in effect.
1.41. "Credit Obligations" means all present and future liabilities,
obligations and Indebtedness of the Company owing to either of the Managing
Agents or any Lender (or any Affiliate of a Lender) under or in connection with
this Agreement or any other Credit Document, including obligations in respect of
principal, interest, reimbursement obligations under Interest Rate Protection
Agreements provided by a Lender (or an Affiliate of a Lender) in connection with
this Agreement and the Notes, Facility Fees, amounts provided for in Sections
3.3.4, 3.5 and 9 and other fees, charges, indemnities and expenses from time to
time owing hereunder or under any other Credit Document (whether accruing before
or after a Bankruptcy Default).
1.42. "Credit Participant" is defined in Section 11.2.
1.43. "Default" means any Event of Default and any event or condition
which with the passage of time or giving of notice, or both, would become an
Event of Default and the filing against the Company or any of its Subsidiaries
of a petition commencing an involuntary case under the Bankruptcy Code.
1.44. "Delinquency Period" is defined in Section 10.5.3.
1.45. "Delinquent Lender" is defined in Section 10.5.3.
1.46. "Delinquent Payment" is defined in Section 10.5.3.
1.46A. "Distribution" means, with respect to the Company:
(a) the declaration or payment of any dividend or
distribution on or in respect of any shares of any class of capital
stock of or other equity interests in the Company;
(b) the purchase, redemption or other retirement of any
shares of any class of capital stock of or other equity interest in the
Company or of options, warrants or other rights for the purchase of
such shares, directly, indirectly through a Subsidiary or otherwise;
(c) any other distribution on or in respect of any shares of
any class of capital stock of or equity or other beneficial interest in
the Company;
(d) any payment of principal or interest with respect to, or
any purchase, redemption or defeasance of any Indebtedness of the
Company which by its terms or the terms of any agreement is
subordinated to the payment of the Credit Obligations; and
(e) any payment, loan or advance by the Company to, or any
other Investment by the Company in, the holder of any shares of any
class of capital stock of or equity interest in the Company, or any
Affiliate of such holder (including the payment of management and
transaction fees and expenses);
provided, however, that the term "Distribution" shall not include (i) dividends
payable in perpetual common stock of or other similar equity interests in the
Company or (ii) payments in the ordinary course of business in respect of (A)
reasonable compensation paid to employees, officers and directors, (B) advances
and reimbursements to employees for travel expenses, drawing accounts and
similar expenditures, or (C) rent paid to, or accounts payable for services
rendered or goods sold by, non-Affiliates that own capital stock of or other
equity interests in the Company.
1.46B. "Distribution Plant" means, with respect to the Company, the
distribution assets of the Company as reported from time to time by the Company
to the Federal Energy Regulatory Commission on F.E.R.C. Form 1.
1.47. "Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
1.48. "Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment, including OSHA.
1.49. "Equity Transaction" means any issuance by the Company or any of
its Subsidiaries to any Person (other than the Company's or a Subsidiary's
officers, employees and directors) of any shares of its capital stock, other
equity interests or options, warrants or other purchase rights to acquire such
capital stock or other equity interests.
1.50. "ERISA" means the federal Employee Retirement Income Security Act of
1974.
1.51. "ERISA Group Person" means the Company and any Person which is a
member of the controlled group or under common control with the Company within
the meaning of section 414 of the Code or section 4001(a)(14) of ERISA.
1.52. "Eurodollars" means, with respect to any Lender, deposits of
United States Funds in a non-United States office or an international banking
facility of such Lender.
1.53. "Eurodollar Basic Reference Rate" means, for any Eurodollar
Interest Period, the rate of interest at which Eurodollar deposits in an amount
comparable to the Percentage Interest of the Reference Lender in the portion of
the Revolving Loan as to which a Eurodollar Pricing Option has been elected and
which have a term corresponding to the Eurodollar Interest Period are offered to
the Reference Lender by first-class banks in the London inter-bank market for
deposits in United States dollars for delivery in immediately available funds at
the Eurodollar Office on the first day of such Eurodollar Interest Period as
determined by the Reference Lender at approximately 10:00 a.m. (New York time)
two Banking Days prior to the date upon which such Eurodollar Interest Period is
to commence (which determination by the Reference Lender shall, in the absence
of manifest error, be conclusive).
1.54. "Eurodollar Interest Period" means any period, selected as
provided in Section 3.3.1, of one, two, three or six months, commencing on any
Banking Day and ending on the corresponding date in the subsequent calendar
month so indicated (or, if such subsequent calendar month has no corresponding
date, on the last day of such subsequent calendar month); provided, however,
that subject to Section 3.3.3, if any Eurodollar Interest Period so selected
would otherwise begin or end on a date which is not a Banking Day, such
Eurodollar Interest Period shall instead begin or end, as the case may be, on
the immediately preceding or succeeding Banking Day as determined by the New
York Managing Agent in accordance with the then current banking practice in the
inter-bank Eurodollar market with respect to deposits at the Eurodollar Office,
which determination by the New York Managing Agent shall, in the absence of
manifest error, be conclusive.
1.55. "Eurodollar Office" means a non-United States office or international
banking facility of Bank of New York.
1.56. "Eurodollar Pricing Options" means the options granted pursuant
to Section 3.3.1 to have the interest on any portion of the Revolving Loan
computed on the basis of a Eurodollar Rate.
1.57. "Eurodollar Rate" for any Eurodollar Interest Period means the
rate, rounded upward to the nearest 1/100%, obtained by dividing (a) the
Eurodollar Basic Reference Rate for such Eurodollar Interest Period by (b) an
amount equal to 1 minus the Eurodollar Reserve Rate; provided, however, that if
at any time during such Eurodollar Interest Period the Eurodollar Reserve Rate
applicable to any outstanding Eurodollar Pricing Option changes, the Eurodollar
Rate for such Eurodollar Interest Period shall automatically be adjusted to
reflect such change, effective as of the date of such change to the extent
required by the Legal Requirement implementing such change.
1.58. "Eurodollar Reserve Rate" means the stated maximum rate
(expressed as a decimal) of all reserves (including any basic, supplemental,
marginal or emergency reserve or any reserve asset), if any, as from time to
time in effect, required by any Legal Requirement to be maintained by any Lender
against (a) "Eurocurrency liabilities" as specified in Regulation D of the Board
of Governors of the Federal Reserve System applicable to Eurodollar Pricing
Options, (b) any other category of liabilities that includes Eurodollar deposits
by reference to which the interest rate on portions of the Revolving Loan
subject to Eurodollar Pricing Options is determined, (c) the principal amount of
or interest on any portion of the Revolving Loan subject to a Eurodollar Pricing
Option, to the extent that such reserves arise by reason of Eurodollar funding,
or (d) any other category of extensions of credit, or other assets, that
includes loans subject to a Eurodollar Pricing Option by a non-United States
office of any of the Lenders to United States residents, in each case without
the benefits of credits for prorations, exceptions or offsets that may be
available to a Lender.
1.59. "Event of Default" is defined in Section 8.1.
1.60. "Exchange Act" means the federal Securities Exchange Act of 1934, as
amended.
1.61. "Facility Fee" means .25% per annum multiplied by the Maximum Amount
of 364-Day Revolving Credit.
1.62. "FAME Loan Agreement" means the Loan Agreement dated as of October
19, 1994 between Finance Authority of Maine and the Company relating to the
$79,300,000 Finance Authority of Maine Taxable Electric Rate Stabilization
Revenue Notes, Series 1994A (Central Maine Power Company).
1.63. "Federal Funds Rate" means, for any day, the rate equal to the
weighted average (rounded upward to the nearest 1/8%) of (a) the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, (a) as such weighted average is published for
such day (or, if such day is not a Banking Day, for the immediately preceding
Banking Day) by the Federal Reserve Bank of New York or (b) if such rate is not
so published for such Banking Day, quotations received by the New York Managing
Agent from three federal funds brokers of recognized standing selected by the
New York Managing Agent. Each determination by the New York Managing Agent of
the Federal Funds Rate shall, in the absence of manifest error, be conclusive.
1.64. [Reserved]
1.65. "Final Maturity Date" means the 364-Day Final Maturity Date.
1.66. "Financial Officer" of the Company (or other specified Person) means
its chief executive officer, chief financial officer, chief operating officer,
chairman, president or treasurer, or any of its vice presidents whose primary
responsibility is for its financial affairs, all of whose incumbency and
signatures have been certified to the Managing Agents by the secretary or other
appropriate attesting officer of the Company (or such specified Person).
1.67. "Financing Debt" means each of the items described in clauses (a)
through (f) of the definition of the term "Indebtedness" and, without
duplication, any Guarantees of such items.
1.68. "Foreign Subsidiary" means each Subsidiary that is organized under
the laws of, and conducting its business primarily in a jurisdiction outside of,
the United States of America.
1.69. "Foreign Trade Regulations" means (a) any act that prohibits or
restricts, or empowers the President or any executive agency of the United
States of America to prohibit or restrict, exports to or financial transactions
with any foreign country or foreign national, (b) the regulations with respect
to certain prohibited foreign trade transactions set forth at 22 C.F.R. Parts
120-130 and 31 C.F.R. Part 500 and (c) any order, regulation or ruling relating
to any of the foregoing.
1.70. "Funding Liability" means, without duplication, (a) any Eurodollar
deposit which was used (or deemed by Section 3.3.6 to have been used) to fund
any portion of the Revolving Loan subject to a Eurodollar Pricing Option, and
(b) any portion of the Revolving Loan subject to a Eurodollar Pricing Option
funded (or deemed by Section 3.3.6 to have been funded) with the proceeds of any
such Eurodollar deposit.
1.71. "GAAP" means generally accepted accounting principles as from time to
time in effect, including the statements and interpretations of the United
States Financial Accounting Standards Board.
1.72. "General and Refunding Mortgage Indenture" means the General and
Refunding Mortgage Indenture dated as of April 15, 1976 between the Company and
The First National Bank of Boston, as trustee (State Street Bank and Trust
Company, successor trustee), as currently in effect and as hereafter
supplemented and amended in a manner permitted under Section 6.2.4 and any
additional or substitute mortgage indenture permitted under Section 6.2.4.
1.72A. "Generating Assets Sale Date" means the date on which the
non-nuclear generating assets of the Company are sold as permitted by Section
6.10.4.
1.73. "Guarantee" means, with respect to the Company (or other specified
Person):
(a) any guarantee by the Company (or such specified Person)
of the payment or performance of, or any contingent obligation by the
Company (or such specified Person) in respect of the complete or
partial payment of, any Indebtedness of any primary obligor;
(b) any other arrangement whereby credit is extended to a
primary obligor on the basis of any promise or undertaking of the
Company (or such specified Person) in writing, including any binding
"comfort letter" or "keep well agreement" written by the Company (or
such specified Person), to a creditor or prospective creditor of such
primary obligor, to (i) pay the Indebtedness of such primary obligor,
(ii) purchase an obligation owed by such primary obligor, (iii) pay for
the purchase or lease of assets or services regardless of the actual
delivery thereof or (iv) maintain the capital, working capital,
solvency or general financial condition of such primary obligor; and
(c) payment obligations, whether contingent or matured, of
the Company (or such specified Person) with respect to letters of
credit, bankers acceptances, surety bonds, other financial guarantees
and Interest Rate Protection Agreements,
in each case whether or not any of the foregoing are reflected on the balance
sheet of the Company (or such specified Person) or in a footnote thereto;
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Guarantee and the amount of Indebtedness resulting from such Guarantee shall be
the maximum amount that the guarantor may become obligated to pay in respect of
the obligations (whether or not such obligations are outstanding at the time of
computation).
1.74. "Hazardous Material" means any pollutant, toxic or hazardous material
or waste, including any "hazardous substance" or "pollutant" or "contaminant" as
defined in section 101(14) of CERCLA or any other Environmental Law or regulated
as toxic or hazardous under RCRA or any other Environmental Law.
1.75. "Indebtedness" means all obligations, contingent or otherwise, of the
Company (or other specified Person) for:
(a) borrowed money;
(b) indebtedness evidenced by notes, debentures or similar
instruments;
(c) Capitalized Lease Obligations;
(d) liabilities classified upon the balance sheet in
accordance with GAAP representing the deferred purchase price of assets
(other than ordinary trade accounts payable within six months after the
incurrence thereof in the ordinary course of business);
(e) payment obligations, whether contingent or matured, with
respect to standby letters of credit, bankers acceptances, surety
bonds, other financial guarantees and Interest Rate Protection
Agreements, in each case supporting Indebtedness under clauses (a)
through (d) above (without duplication of other Indebtedness supported
or guaranteed thereby); and
(f) all Guarantees in respect of Indebtedness of others.
1.76. "Indemnified Party" is defined in Section 9.2.
1.77. "Initial Closing Date" means December 15, 1998 or such other date
agreed to by the Company and the Managing Agents.
1.78. "Interest Rate Protection Agreement" means any interest rate swap,
interest rate cap, interest rate hedge or other contractual arrangement that
converts variable interest rates into fixed interest rates, fixed interest rates
into variable interest rates or other similar arrangements with respect to
interest obligations.
1.79. "Investment" means, with respect to the Company (or other specified
Person):
(a) any share of capital stock, partnership or other equity
interest, evidence of Indebtedness or other security issued by any
other Person;
(b) any loan, advance or extension of credit to, or
contribution to the capital of, any other Person;
(c) any Guarantee of the Indebtedness of any other Person;
(d) any acquisition of all, or any division or similar
operating unit of, the business of any other Person or the assets
comprising such business, division or unit; and
(e) any other similar investment.
The investments described in the foregoing clauses (a) through (e)
shall be included in the term "Investment" whether they are made or acquired by
purchase, exchange, issuance of stock or other securities, merger,
reorganization or any other method; provided, however, that the term
"Investment" shall not include (i) current trade and customer accounts
receivable for property leased, goods furnished or services rendered in the
ordinary course of business and payable in accordance with customary trade
terms, (ii) deposits, advances or prepayments to suppliers for property leased
or licensed, goods furnished and services rendered in the ordinary course of
business, (iii) advances to employees for relocation and travel expenses,
drawing accounts and similar expenditures, (iv) stock or other securities
acquired in connection with the satisfaction or enforcement of Indebtedness or
claims due to the Company (or such specified Person) or as security for any such
Indebtedness or claim or (v) demand deposits in banks or similar financial
institutions.
In determining the amount of outstanding Investments:
(A) the amount of any Investment shall be the cost thereof
minus any returns of capital in cash on such Investment (determined in
accordance with GAAP without regard to amounts realized as income on
such Investment);
(B) the amount of any Investment in respect of a purchase
described in clause (d) above shall include the amount of any Financing
Debt assumed in connection with such purchase or secured by any asset
acquired in such purchase (whether or not any Financing Debt is
assumed) or for which any Person that becomes a Subsidiary is liable on
the date on which the securities of such Person are acquired; and
(C) no Investment shall be increased as the result of an
increase in the undistributed retained earnings of the Person in which
the Investment was made or decreased as a result of an equity interest
in the losses of such Person.
1.80. "Legal Requirement" means any present or future requirement imposed
upon any of the Lenders or the Company and its Subsidiaries by any law, statute,
rule, regulation, directive, order or decree (or any interpretation thereof by
courts or of administrative bodies) of the United States of America, or each
jurisdiction in which the Eurodollar Office is located or any state or political
subdivision of any of the foregoing, or by any board, governmental or
administrative agency, central bank or monetary authority of the United States
of America, each jurisdiction in which the Eurodollar Office is located, or any
political subdivision of any of the foregoing. Any such law, statute, rule,
regulation, directive, order, decree or interpretation imposed on any of the
Lenders not having the force of law shall be deemed to be a Legal Requirement
for purposes of Section 3 if such Lender reasonably believes that compliance
therewith is customary commercial practice.
1.81. "Lender" means each of the Persons listed as lenders on the signature
page hereto, including BankBoston and Bank of New York, each in its capacity as
a Lender, and such other Persons who may from time to time own a Percentage
Interest in the Credit Obligations, but the term "Lender" shall not include any
Credit Participant.
1.82. "Lien" means, with respect to the Company (or any other specified
Person):
(a) any lien, encumbrance, mortgage, pledge, charge or
security interest of any kind upon any property or assets of the
Company (or such specified Person), whether now owned or hereafter
acquired, or upon the income or profits therefrom;
(b) the acquisition of, or the agreement to acquire, any
property or asset upon conditional sale or subject to any other title
retention agreement, device or arrangement (including a Capitalized
Lease); and
(c) the transfer of any tangible property or assets, other
than in the ordinary course of business, for the purpose of creating
collateral for the payment of previously outstanding Indebtedness in
priority to payment of the general creditors of the Company (or such
specified Person).
1.83. "Loan" means, collectively, the Revolving Loan and the Competitive
Auction Facility Loans.
1.84. "Managing Agents" means BankBoston and Bank of New York in their
capacity as managing agents for the Lenders hereunder, as well as their
successors and assigns in such capacity pursuant to Section 10.8.
1.85. "Margin Stock" means "margin stock" within the meaning of Regulations
G, T, U or X of the Board of Governors of the Federal Reserve System.
1.86. "Material Adverse Change" means, since any specified date or from the
circumstances existing immediately prior to the happening of any specified
event, a material adverse change in (a) the financial condition, operations,
properties or financial or business prospects of the Company (on an individual
basis) or the Company and its Subsidiaries (on a Consolidated basis), whether as
a result of (i) general economic conditions affecting the electric power
industry, (ii) difficulties in obtaining supplies and raw materials, (iii) fire,
flood or other natural calamities, (iv) environmental pollution, (v) regulatory
changes, judicial decisions, war or other governmental action or (vi) any other
event or development, whether or not related to those enumerated above or (b)
the ability of the Company to perform its obligations under the Credit Documents
or (c) the rights and remedies of the Managing Agents and the Lenders under the
Credit Documents.
1.87. "Material Agreements" means the General and Refunding Mortgage
Indenture, the FAME Loan Agreement and other financing documents evidencing
Indebtedness permitted under Section 6.6.
1.88. "Maximum Amount of 364-Day Revolving Credit" is defined in Section
2.2.2.
1.89. [Reserved]
1.90. "Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
1.91. "More Favorable Provision" is defined in Section 6.2.4.
1.92. "Multiemployer Plan" means, at any date, a "multiemployer plan" as
defined in section 4001(a)(3) of ERISA, to which contributions have been made or
are or were required to be made, by any ERISA Group Person within six years
prior to such date.
1.93. "New York Managing Agent" means Bank of New York, in its capacity as
a Managing Agent hereunder.
1.94. "New York Office" means the principal banking office of Bank of New
York in New York, New York.
1.95. "1997 10-K" is defined in Section 7.2.1.
1.96. "Nonperforming Lender" is defined in Section 10.5.3.
1.97. "Notes" means collectively, the Revolving Notes and the Competitive
Auction Facility Notes.
1.98. "OSHA" means the federal Occupational Safety and Health Act.
1.99. "Overdue Reimbursement Rate" means, at any date, the highest
Applicable Rate then in effect.
1.100. "Payment Date" means (a) the last Banking Day of each March, June,
September and December occurring after the Initial Closing Date and (b) the
Final Maturity Date.
1.101. "PBGC" means the Pension Benefit Guaranty Corporation or any
successor entity.
1.102. "Percentage Interest" means (a) at all times when no Event of
Default under Section 8.1.1 and no Bankruptcy Default exists, the ratio that the
respective Commitments of the Lenders bear to the total Commitments of all
Lenders as from time to time in effect and reflected in the Register, and (b) at
all other times, the ratio that the respective amounts of the outstanding Credit
Obligations owing to the Lenders in respect of extensions of credit under
Section 2 bear to the total outstanding Credit Obligations owing to all Lenders.
1.103. "Performing Lender" is defined in Section 10.5.3.
1.104. "Person" means any present or future natural person or any
corporation, association, partnership, joint venture, limited liability, joint
stock or other company, business trust, trust, organization, business or
government or any governmental agency or political subdivision thereof.
1.105. "Plan" means, at any date, any pension benefit plan subject to Title
IV of ERISA, other than a Multiemployer Plan, maintained, or to which
contributions have been made or are required to be made, by any ERISA Group
Person within six years prior to such date.
1.106. "Pre-Closing 1934 Act Reports" means the 1997 10-K, the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and
September 30, 1998 and its Reports on Form 8-K dated January 6, January 14,
January 30, September 1 and November 17, 1998, each as furnished to the Lenders
prior to the date hereof.
1.107. [Reserved]
1.108. [Reserved]
1.109. [Reserved]
1.110. "RCRA" means the federal Resource Conservation and Recovery Act, 42
U.S.C. ss. 6901, et seq.
1.111. "Reference Lender" means Bank of New York.
1.112. "Register" is defined in Section 11.1.3.
1.113. "Reorganization Date" means September 1, 1998.
1.114. "Replacement Lender" is defined in Section 11.3.
1.115. "Request Date" is defined in Section 2.3.1.
1.116. "Required Lenders" means, with respect to any approval, consent,
modification, waiver or other action to be taken by the Managing Agents or the
Lenders under the Credit Documents which requires action by the Required
Lenders, such Lenders as own at least a majority of the Percentage Interests;
provided, however, that with respect to any matters referred to in the proviso
to Section 10.7, Required Lenders means such Lenders as own at least the
respective portions of the Percentage Interests required by Section 10.7.
1.117. "Revolving Loan" means the 364-Day Revolving Loan.
1.118. "Revolving Notes" means the 364-Day Revolving Notes.
1.119. "S&P" means Standard & Poor's Ratings Group, a division of McGraw
Hill Corporation.
1.120. "Securities Act" means the federal Securities Act of 1933, as
amended.
1.121. "Significant Subsidiary" means, at the time any determination
thereof is to be made, any Subsidiary which (i) as of the end of the next
preceding fiscal quarter had assets which comprised not less than 5% of the
aggregate book value of the Consolidated assets of the Company and its
Subsidiaries, determined in accordance with GAAP, as of the end of such quarter
or (ii) for the period of four consecutive fiscal quarters most recently ended
had operating income which comprised not less than 5% of the Consolidated
Operating Income of the Company and its Subsidiaries for such period.
1.122. "Subsidiary" means any corporation of which the Company (or other
specified Person) shall at the time, directly or indirectly through one or more
of its Subsidiaries, own more than 50% of the outstanding capital stock (or
other shares of beneficial interest) entitled to vote generally and any other
Person whose financial statements are required to be included in the
Consolidated financial statements of the Company in accordance with GAAP.
1.123. "Tax" means any present or future tax, levy, duty, impost,
deduction, withholding or other charges of whatever nature at any time required
by any Legal Requirement (a) to be paid by any Lender or (b) to be withheld or
deducted from any payment otherwise required hereby to be made to any Lender, in
each case on or with respect to its obligations hereunder, the Loan, any payment
in respect of the Credit Obligations or any Funding Liability not included in
the foregoing; provided, however, that the term "Tax" shall not include taxes
imposed upon or measured by the net income of such Lender (other than
withholding taxes) or franchise taxes.
1.124. "$10,000,000 Financing Debt" is defined in Section 8.1.5.
1.125. "364-Day Competitive Auction Facility Loan" means a Competitive
Auction Facility Loan, the amount of which is to be applied against the Maximum
Amount of 364-Day Revolving Credit.
1.126. "364-Day Final Maturity Date" means October 23, 1999 or such date to
which this date is extended pursuant to Section 2.6.2.
1.127. "364-Day Revolving Loan" is defined in Section 2.2.4.
1.128. "364-Day Revolving Notes" is defined in Section 2.2.4.
1.129. "Three-Year Revolving Credit Agreement" means the Credit Agreement
dated as of October 23, 1996, as from time to time amended, among the Company,
BankBoston and Bank of New York, as managing agents, and the lenders party
thereto.
1.130. [Reserved]
1.131. [Reserved]
1.132. [Reserved]
1.133. "United States Funds" means such coin or currency of the United
States of America as at the time shall be legal tender therein for the payment
of public and private debts.
1.134. "Unsecured Medium Term Notes" means unsecured Indebtedness of the
Company denominated "Medium Term Notes" and issued or to be issued pursuant to
the Company's Indenture, dated as of August 1, 1989, as amended.
1.135. "Wholly Owned Subsidiary" means any Subsidiary of which all of the
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally (other than directors' qualifying shares and, in the case of
Foreign Subsidiaries, shares required by Legal Requirements to be held by
foreign nationals) is owned by the Company (or other specified Person) directly,
or indirectly through one or more Wholly Owned Subsidiaries.
.. The Credits
[Reserved]
..2. 364-Day Revolving Credit
. Subject to all the terms and conditions of this Agreement
and so long as no Default exists, from time to time on and after the
Initial Closing Date and prior to the 364-Day Final Maturity Date the
Lenders will, severally in accordance with their respective Commitments
in the 364-Day Revolving Loan, make loans to the Company in such
amounts as may be requested by the Company in accordance with Section
2.2.3. The sum of the aggregate principal amount of loans made under
this Section 2.2.1 at any one time outstanding plus the 364-Day
Competitive Auction Facility Loans shall in no event exceed the Maximum
Amount of 364-Day Revolving Credit. In no event will the principal
amount of loans at any one time outstanding made by any Lender pursuant
to this Section 2.2 exceed such Lender's Commitment with respect to the
364-Day Revolving Loan.
. The term "Maximum Amount of 364-Day Revolving Credit"
means $25,000,000 minus the amount (in a minimum of $2,500,000 and in
an integral multiple of $1,000,000 that is in excess of $2,500,000) by
which $25,000,000 shall have been irrevocably reduced from time to time
upon three business days' prior notice from the Company to the New York
Managing Agent. Upon termination or reduction of the Maximum Amount of
364-Day Revolving Credit, the Company shall pay to the New York
Managing Agent, for the account of the Lenders according to each's
Percentage Interest, accrued Facility Fees (to the date of termination
or reduction) on the terminated or reduced portion of the Maximum
Amount of 364-Day Revolving Credit.
. The Company may from time to time request a loan under
Section 2.2.1 by providing to the New York Managing Agent a notice
(which may be given by a telephone call if promptly confirmed in
writing). Such notice must be not later than 10:30 a.m. (New York time)
on the same Banking Day as the requested Closing Date for such loan (or
on the third Banking Day prior to the requested Closing Date if any
portion of such loan will be subject to a Eurodollar Pricing Option on
the requested Closing Date). The notice must specify (a) the amount of
the requested loan (which shall be not less than $1,000,000 and shall
otherwise be an integral multiple of $500,000) and (b) the requested
Closing Date therefor (which shall be a Banking Day). Upon receipt of
such notice, the New York Managing Agent will promptly inform each
other Lender (by telephone or otherwise). Each such loan will be made
at the New York Office by depositing the amount thereof to the general
account of the Company with the New York Managing Agent.
. The aggregate principal amount of the loans outstanding
from time to time under this Section 2.2 is referred to as the "364-Day
Revolving Loan". The 364-Day Revolving Loan shall be deemed owed to
each Lender having a Commitment therein severally in accordance with
such Lender's Percentage Interest therein, and all payments thereon
shall be for the account of each Lender in accordance with its
Percentage Interest therein. The Company's obligations to pay each
Lender's Percentage Interest in the 364-Day Revolving Loan shall be
evidenced by a separate note of the Company in substantially the form
of Exhibit 2.2.4 (the "364-Day Revolving Notes"), payable to each
Lender in accordance with such Lender's Percentage Interest in the
364-Day Revolving Loan.
. As provided in this Section 2.3, the Company may request, and
one or more Lenders, each acting in its sole and absolute discretion,
may offer to make, loans on a competitive auction facility basis (each
such loan made by any of the Lenders pursuant to this Section 2.3
being referred to as a "Competitive Auction Facility Loan"), which the
Company may, in its sole and absolute discretion, agree to accept;
provided, however, that in no event shall the sum of the aggregate
364-Day Competitive Auction Facility Loans at any one time outstanding
plus the 364-Day Revolving Loan exceed the Maximum Amount of 364-Day
Revolving Credit.
. Subject to all the terms and conditions of this Agreement
and so long as no Default exists, the Company may, at any time prior to
the Final Maturity Date, by telex or telecopy notice to the New York
Managing Agent substantially in the form of Exhibit 2.3.1 received not
later than 10:00 a.m. (New York time) on any Banking Day (the "Request
Date"), request bids for loans pursuant to this Section 2.3 to be made
on the following Banking Day (the "Competitive Auction Facility Loan
Closing Date"), such request to specify:
(a) the aggregate amount of the proposed loans, which shall
not be less than $1,000,000 and which shall otherwise be in integral
multiples of $500,000,
(b) the proposed maturity dates (each such date a
"Competitive Auction Facility Loan Maturity Date") for such proposed
loans (which maturity dates shall be not earlier than seven days
following the applicable Competitive Auction Facility Loan Closing Date
and not later than the earlier of (i) the 180th day following the
applicable Competitive Auction Facility Loan Closing Date and (ii) the
applicable Final Maturity Date) and,
(c) the proposed dates (each such date a "Competitive
Auction Facility Loan Interest Payment Date"), if any, prior to the
applicable Competitive Auction Facility Loan Maturity Date on which
accrued but unpaid interest shall be due and payable on the principal
amount of such proposed loans; provided, however, that in the event the
proposed Competitive Auction Facility Loan Maturity Date is more than
90 days after the proposed Competitive Auction Facility Loan Closing
Date, the Company shall also pay accrued and unpaid interest on the
proposed loans on the 90th day after the proposed Competitive Auction
Facility Loan Closing Date. No more than six Eurodollar Pricing Options
and Competitive Auction Facility Loans in the aggregate may be
outstanding at any one time.
. Promptly upon receipt of each request submitted by the
Company pursuant to Section 2.3.1, and in any event not later than 2:00
p.m. (New York time) on the applicable Request Date, the New York
Managing Agent shall, by telex or telecopy notice (or by telephonic
notice on a reasonable efforts basis, promptly confirmed by telex or
telecopy) to each Lender in substantially the form of Exhibit 2.3.2,
notify each Lender of such request, which notice shall constitute an
invitation on behalf of the Company for each Lender to submit bids
pertaining to the proposed Competitive Auction Facility Loans in
accordance with Section 2.3.3.
. Each Lender may, in its sole and absolute discretion,
respond to such invitation by submitting a bid by telex or telecopy
notice to the New York Managing Agent no later than 10:00 a.m. (New
York time) on the proposed Competitive Auction Facility Loan Closing
Date. Such notice shall be in substantially the form of Exhibit 2.3.3A,
which notice shall constitute an offer by such Lender to the Company to
make Competitive Auction Facility Loans on the proposed Competitive
Auction Facility Loan Closing Date in the principal amounts specified
in the notice from such Lender, which principal amounts (a) may be for
all or any portion of the proposed Competitive Auction Facility Loans,
notwithstanding the Percentage Interest of such Lender in the Revolving
Loan, (b) may be different principal amounts for different Competitive
Auction Facility Loan Maturity Dates (subject to an over-all maximum)
and (c) shall be an integral multiple of $500,000 maturing on the
Competitive Auction Facility Loan Maturity Dates requested by the
Company, with accrued and unpaid interest on the principal amount
thereof to be due and payable on the Competitive Auction Facility Loan
Interest Payment Dates, if any, requested by the Company, and on such
Competitive Auction Facility Loan Maturity Dates, such interest to
accrue at the rates per annum (which shall be in integral multiples of
1/100%) specified in such notice (the "Competitive Auction Facility
Rates"). The New York Managing Agent shall disregard any bid (i) not
submitted by 10:00 a.m. (New York time) on the proposed Competitive
Auction Facility Loan Closing Date or (ii) not substantially in the
form of Exhibit 2.3.3A, or not complete, or containing qualifying,
conditional or similar language, or terms different from or in addition
to those set forth in the pertinent request, and any late or
non-conforming bid shall be deemed not to have been given for any
purpose of this Agreement. The New York Managing Agent shall promptly,
and in any event not later than 11:00 a.m. (New York time) on the
proposed Competitive Auction Facility Loan Closing Date, by telephonic
notice to the Company, confirmed in writing, forward to the Company in
substantially the form of Exhibit 2.3.3B, all bids submitted in
compliance with this Section 2.3.3. Notwithstanding the foregoing
provisions of this Section 2.3.3, each of the Lenders constituting the
Managing Agents shall submit its own bid, if any, to the Company by
telex or telecopy not later than 9:45 a.m. (New York time) on the
proposed Competitive Auction Facility Loan Closing Date.
. Not later than Noon (New York time) on the applicable
Competitive Auction Facility Loan Closing Date, the Company shall by
telex or telecopy notice to the New York Managing Agent in
substantially the form of Exhibit 2.3.4A, indicate its acceptance or
non-acceptance of each offer submitted pursuant to Section 2.3.3. In
the case of acceptance, such notice shall be irrevocable and shall
specify the aggregate principal amount of each offered Competitive
Auction Facility Loan that is accepted. Such notice shall be deemed to
constitute the certification of the Company that the closing conditions
for such Competitive Auction Facility Loans contained in Section 5.2
(other than the delivery of an officer's certificate) have been
satisfied. The Company may accept each such offer in whole or in part;
provided, however, that (a) the aggregate principal amount of all
Competitive Auction Facility Loans accepted and made on any Competitive
Auction Facility Loan Closing Date may not exceed the applicable amount
set forth in the applicable request, (b) the principal amount of each
Competitive Auction Facility Loan shall be an integral multiple of
$500,000, and (c) acceptance of offers for Competitive Auction Facility
Loans with the same Competitive Auction Facility Loan Maturity Date may
be made only on the basis of ascending quoted Competitive Auction
Facility Rates; and provided, further, that if offers are made by two
or more Lenders having the same Competitive Auction Facility Rate for a
greater aggregate principal amount than the amount in respect of which
offers at such rate are accepted, the principal amount of such
Competitive Auction Facility Loans in respect of which such offers are
accepted at such rate shall be allocated by the New York Managing Agent
among such Lenders as nearly as possible (in integral multiples of
$500,000) in proportion to the aggregate principal amount of such
offers. Determinations by the New York Managing Agent of the amounts of
Competitive Auction Facility Loans pursuant to the immediately
preceding sentence shall be conclusive in the absence of manifest
error. The New York Managing Agent shall, not later than 1:00 p.m. (New
York time) on the Competitive Auction Facility Loan Closing Date,
notify each Lender who submitted an offer for the particular loans
requested pursuant to Section 2.3.1 whether any offer has been accepted
(substantially in the form of Exhibit 2.3.4B) or rejected
(substantially in the form of Exhibit 2.3.4C) and, if accepted, in what
principal amount and maturity. In the event the Company fails to
provide such notice to the New York Managing Agent by Noon (New York
time) on the Competitive Auction Facility Loan Closing Date, the New
York Managing Agent may conclusively presume that all such offers have
been rejected by the Company and, in such event, the New York Managing
Agent shall, not later than 1:00 p.m. (New York time), so notify each
Lender which submitted an offer. Each time a Competitive Auction
Facility Loan is made, the New York Managing Agent shall send a notice
to the Company and each Lender in substantially the form of Exhibit
2.3.4D specifying the principal amount and maturity date of such
Competitive Auction Facility Loan.
2.3.5. Funding by the New York Managing Agent; Competitive
Auction Facility Loan Account, etc . Each Competitive Auction Facility
Loan by any Lender will be made on the terms offered by such Lender and
accepted by the Company in accordance with this Section 2.3 at the New
York Office on the applicable Competitive Auction Facility Loan Closing
Date by adding the amount thereof to the applicable Competitive Auction
Facility Loan Accounts and either (a) by crediting the amount thereof
to the 364-Day Revolving Loan of the Company, as the Company specifies
in its request under Section 2.3.1, for the account of the Lenders in
accordance with their respective Percentage Interests therein or (b) if
the Company shall have specified by written notice to the New York
Managing Agent, by crediting the amount thereof to the general account
of the Company with the New York Managing Agent at the New York Office.
(a) Competitive Auction Facility Loan Account. The New York
Managing Agent will establish on its books separate loan accounts (the
"Competitive Auction Facility Loan Accounts") for each Lender extending
a Competitive Auction Facility Loan to the Company which the New York
Managing Agent shall administer as follows: (i) the New York Managing
Agent shall debit to the pertinent Competitive Auction Facility Loan
Account the principal amount of all Competitive Auction Facility Loans
from time to time made by such Lender to the Company and (ii) the New
York Managing Agent shall credit to the pertinent Competitive Auction
Facility Loan Account of the Lender for whose benefit payment is made,
all payments made on account of the principal amount of Indebtedness
evidenced by the pertinent Competitive Auction Facility Loan Account.
Upon the request of any Lender, the Company shall issue a note in
substantially the form of Exhibit 2.3.5 (a "Competitive Auction
Facility Note") evidencing the Indebtedness evidenced by such Lender's
Competitive Auction Facility Loan Account.
(b) Maturity Date; Interest; Repayment. The stated maturity
date of each Competitive Auction Facility Loan shall be the applicable
Competitive Auction Facility Loan Maturity Date for such Competitive
Auction Facility Loan. The Company will pay interest on the principal
amount of each Competitive Auction Facility Loan at the applicable
Competitive Auction Facility Rate (plus an additional 2% per annum
effective on the day either Managing Agent notifies the Company that
the interest rates hereunder are increasing as a result of the
occurrence and continuation of an Event of Default under Section 8.1.1
until the earlier of such time as (x) such Event of Default is no
longer continuing or (y) such Event of Default is deemed pursuant to
Section 8.3 no longer to exist) for such Competitive Auction Facility
Loan on each applicable Competitive Auction Facility Loan Interest
Payment Date, if any, and on the applicable Competitive Auction
Facility Loan Maturity Date for such Competitive Auction Facility Loan.
Upon the maturity of any Competitive Auction Facility Loan, so long as
either (i) no Event of Default then exists or (ii) the New York
Managing Agent shall have received the consent of all the Lenders if an
Event of Default then exists, the New York Managing Agent shall debit
the 364-Day Revolving Loan of the Company in the principal amount of
such Competitive Auction Facility Loan for the account of the Lenders
in accordance with their respective Percentage Interests and shall
credit the same amount to the pertinent Competitive Auction Facility
Loan Account.
. No Competitive Auction Facility Loan may be prepaid by the
Company.
..4. Application of Proceeds
2.4.1. [Reserved]
. Subject to Section 2.4.4, the Company will apply the
proceeds of the 364-Day Revolving Loan for working capital and other
lawful corporate purposes of the Company and its Subsidiaries.
. Subject to Section 2.4.4, the Company will apply the
proceeds of the Competitive Auction Facility Loan for working capital
and other lawful corporate purposes of the Company and its
Subsidiaries.
. The Company will not, directly or indirectly, apply any
part of the proceeds of any extension of credit made pursuant to the
Credit Documents to purchase or to carry Margin Stock, or to any
transaction prohibited by the Foreign Trade Regulations or by the
Credit Documents or to any transaction prohibited by other Legal
Requirements applicable to the Lenders of which notice has been given
by any Lender to the Company.
2.5. Nature of Obligations of Lenders to Make Extensions of Credit
The Lenders' obligations to make Revolving Loans under
this Agreement are several and are not joint or joint and several. If
on any Closing Date any Lender shall fail to perform its obligations
under this Agreement, the aggregate amount of Commitments to make the
extensions of credit under this Agreement shall be reduced by the
amount of unborrowed Commitment of the Lender so failing to perform and
the Percentage Interests shall be appropriately adjusted. Lenders that
have not failed to perform their obligations to make the extensions of
credit contemplated by Section 2 may, if any such Lender so desires,
assume, in such proportions as such Lenders may agree, the obligations
of any Lender who has so failed and the Percentage Interests shall be
appropriately adjusted. The provisions of this Section 2.5 shall not
affect the rights of the Company against any Lender failing to perform
its obligations hereunder.
. The obligation to make a Competitive Auction Facility Loan
shall be an obligation solely of the Lenders which offered to make such
loan in accordance with Section 2.3 and whose offers were accepted
thereunder.
..6. Extension of Final Maturity Date of the Revolving Loan
2.6.1. [Reserved]
. At the request of the Company and with the approval of all
the Lenders, the 364-Day Final Maturity Date may be extended, each such
succeeding 364-Day Final Maturity Date to be no later than the date
which is 364 days after the preceding 364-Day Final Maturity Date.
.. Interest; Eurodollar Pricing Options; Fees
. The Revolving Loan shall accrue and bear interest at a rate per annum
which shall at all times equal the Applicable Rate. Prior to any stated or
accelerated maturity of the Revolving Loan, the Company will, on each Payment
Date, pay the accrued and unpaid interest on the portion of the Revolving Loan
which was not subject to a Eurodollar Pricing Option. On the last day of each
Eurodollar Interest Period or on any earlier termination of any Eurodollar
Pricing Option, the Company will pay the accrued and unpaid interest on the
portion of the Revolving Loan which was subject to the Eurodollar Pricing Option
which expired or terminated on such date. In the case of any Eurodollar Interest
Period longer than three months, the Company will also pay the accrued and
unpaid interest on the portion of the Revolving Loan subject to the Eurodollar
Pricing Option having such Eurodollar Interest Period at three-month intervals,
the first such payment to be made on the last Banking Day of the three-month
period which begins on the first day of such Eurodollar Interest Period. On the
stated or any accelerated maturity of the Revolving Loan, the Company will pay
all accrued and unpaid interest on the Revolving Loan, including any accrued and
unpaid interest on any portion of the Revolving Loan which is subject to a
Eurodollar Pricing Option. Upon the occurrence and during the continuance of an
Event of Default, the Lenders may require accrued interest to be payable on
demand or at regular intervals more frequent than each Payment Date. All
payments of interest with respect to the Revolving Loan shall be made to the New
York Managing Agent for the account of each Lender in accordance with such
Lender's Percentage Interest.
. The Company will pay interest on each Competitive Auction Facility
Loan to the New York Managing Agent for the benefit of the applicable Lender at
the rate and on the dates specified in Section 2.3.5(b).
..3. Eurodollar Pricing Options
. Subject to all of the terms and conditions hereof and so
long as no Default exists, the Company may from time to time, by
irrevocable notice to the New York Managing Agent actually received not
less than three Banking Days prior to the commencement of the
Eurodollar Interest Period selected in such notice, elect to have such
portion of the Revolving Loan as the Company may specify in such notice
accrue and bear interest during the Eurodollar Interest Period so
selected at the Applicable Rate computed on the basis of the Eurodollar
Rate. In the event the Company at any time fails to elect a Eurodollar
Pricing Option under this Section 3.3.1 for any portion of the
Revolving Loan, then such portion of the Revolving Loan will accrue and
bear interest at the Applicable Rate based on the Base Rate. No
election of a Eurodollar Pricing Option shall become effective:
(a) if, prior to the commencement of any such Eurodollar
Interest Period, the New York Managing Agent determines that (i) the
electing or granting of the Eurodollar Pricing Option in question would
violate a Legal Requirement, (ii) Eurodollar deposits in an amount
comparable to the principal amount of the Revolving Loan as to which
such Eurodollar Pricing Option has been elected and which have a term
corresponding to the proposed Eurodollar Interest Period are not
readily available in the inter-bank Eurodollar market, or (iii) by
reason of circumstances affecting the inter-bank Eurodollar market,
adequate and reasonable methods do not exist for ascertaining the
interest rate applicable to such deposits for the proposed Eurodollar
Interest Period; or
(b) if any Lender shall have advised the New York Managing
Agent by telephone or otherwise at or prior to noon (New York time) on
the second Banking Day prior to the commencement of such proposed
Eurodollar Interest Period (and shall have subsequently confirmed in
writing) that, after reasonable efforts to determine the availability
of such deposits, such Lender reasonably anticipates that deposits in
an amount equal to the Percentage Interest of such Lender in the
portion of the Revolving Loan as to which such Eurodollar Pricing
Option has been elected and which have a term corresponding to the
Eurodollar Interest Period in question will not be offered in the
inter-bank Eurodollar market to such Lender.
. The New York Managing Agent will promptly inform each
Lender (by telephone or otherwise) of each notice received by it from
the Company pursuant to Section 3.3.1 and of the Eurodollar Interest
Period specified in such notice. Upon determination by the New York
Managing Agent of the Eurodollar Rate for such Eurodollar Interest
Period or in the event such election shall not become effective, the
New York Managing Agent will promptly notify the Company and each
Lender (by telephone or otherwise) of the Eurodollar Rate so determined
or why such election did not become effective, as the case may be.
. Eurodollar Interest Periods shall be selected so that:
(a) the portion of the Revolving Loan subject to any Eurodollar
Pricing Option shall be at least $2,500,000 and otherwise an integral
multiple of $500,000;
(b) no more than ten Eurodollar Pricing Options shall be
outstanding at any one time; and
(c) no Eurodollar Interest Period with respect to any part of the
Revolving Loan subject to a Eurodollar Pricing Option shall expire
later than the Final Maturity Date.
. If any portion of the Revolving Loan subject to a
Eurodollar Pricing Option is repaid, or any Eurodollar Pricing Option
is terminated for any reason (including acceleration of maturity), on a
date which is prior to the last Banking Day of the Eurodollar Interest
Period applicable to such Eurodollar Pricing Option, the Company will
pay to the New York Managing Agent for the account of each Lender in
accordance with such Lender's Percentage Interest, in addition to any
amounts of interest otherwise payable hereunder, an amount equal to the
present value (calculated in accordance with this Section 3.3.4) of
interest for the unexpired portion of such Eurodollar Interest Period
on the portion of the Revolving Loan so repaid, or as to which a
Eurodollar Pricing Option was so terminated, at a per annum rate equal
to the excess, if any, of (a) the rate applicable to such Eurodollar
Pricing Option minus (b) the rate of interest obtainable by the New
York Managing Agent upon the purchase of debt securities customarily
issued by the Treasury of the United States of America which have a
maturity date approximating the last Banking Day of such Eurodollar
Interest Period. The present value of such additional interest shall be
calculated by discounting the amount of such interest for each day in
the unexpired portion of such Eurodollar Interest Period from such day
to the date of such repayment or termination at a per annum interest
rate equal to the interest rate determined pursuant to clause (b) of
the preceding sentence, and by adding all such amounts for all such
days during such period. The determination by the New York Managing
Agent of such amount of interest shall, in the absence of manifest
error, be conclusive. For purposes of this Section 3.3.4, if any
portion of the Revolving Loan which was to have been subject to a
Eurodollar Pricing Option is not outstanding on the first day of the
Eurodollar Interest Period applicable to such Eurodollar Pricing Option
other than for reasons described in Section 3.3.1, the Company shall be
deemed to have terminated such Eurodollar Pricing Option.
. If any Legal Requirement shall prevent any Lender from
funding or maintaining through the purchase of deposits in the
inter-bank Eurodollar market any portion of the Revolving Loan subject
to a Eurodollar Pricing Option or otherwise from giving effect to such
Lender's obligations as contemplated by Section 3.3, (a) the New York
Managing Agent may by notice to the Company terminate all of the
affected Eurodollar Pricing Options, (b) the portion of the Revolving
Loan subject to such terminated Eurodollar Pricing Options shall
immediately bear interest thereafter at the Applicable Rate computed on
the basis of the Base Rate and (c) the Company shall make any payment
required by Section 3.3.4.
. The Lenders may fund any portion of the Revolving Loan
subject to a Eurodollar Pricing Option out of any funds available to
the Lenders. Regardless of the source of the funds actually used by any
of the Lenders to fund any portion of the Revolving Loan subject to a
Eurodollar Pricing Option, however, all amounts payable hereunder,
including the interest rate applicable to any such portion of the
Revolving Loan and the amounts payable under Section 3.3.4 and 3.5,
shall be computed as if each Lender had actually funded such Lender's
Percentage Interest in such portion of the Revolving Loan through the
purchase of deposits in such amount of the type by which the Eurodollar
Basic Reference Rate was determined with a maturity the same as the
applicable Eurodollar Interest Period relating thereto and through the
transfer of such deposits from an office of the Lender having the same
location as the Eurodollar Office to one of such Lender's offices in
the United States of America.
. In consideration of the Lenders' commitments to make the extensions
of credit provided for in Section 2.2, the Company will pay to the New York
Managing Agent for the account of the Lenders in accordance with the Lenders'
respective commitments in the 364-Day Revolving Loan, on each Payment Date and
on the 364-Day Final Maturity Date, the applicable Facility Fees.
..5. Changes in Circumstances; Yield Protection
. If any Legal Requirement shall (a) impose, modify,
increase or deem applicable any insurance assessment, reserve, special
deposit or similar requirement against any Funding Liability, (b)
impose, modify, increase or deem applicable any other requirement or
condition with respect to any Funding Liability, or (c) change the
basis of taxation of Funding Liabilities (other than changes in the
rate of taxes measured by the overall net income of such Lender) and
the effect of any of the foregoing shall be to increase the cost to any
Lender of issuing, making, funding or maintaining its respective
Percentage Interest in any portion of the Revolving Loan subject to a
Eurodollar Pricing Option, to reduce the amounts received or receivable
by such Lender under this Agreement or to require such Lender to make
any payment or forego any amounts otherwise payable to such Lender
under this Agreement (other than any Tax or any reserves that are
included in computing the Eurodollar Reserve Rate), then such Lender
may claim compensation from the Company under Section 3.5.5.
. All payments of the Credit Obligations shall be made
without set-off or counterclaim and free and clear of any deductions,
including deductions for Taxes, unless the Company is required by law
to make such deductions. If (a) any Lender shall be subject to any Tax
with respect to any payment of the Credit Obligations or its
obligations hereunder or (b) the Company shall be required to withhold
or deduct any Tax on any payment on the Credit Obligations, then such
Lender may claim compensation from the Company under Section 3.5.5.
Whenever Taxes must be withheld by the Company with respect to any
payments of the Credit Obligations, the Company shall promptly furnish
to the New York Managing Agent for the account of the applicable Lender
official receipts (to the extent that the relevant governmental
authority delivers such receipts) evidencing payment of any such Taxes
so withheld. If the Company fails to pay any such Taxes when due or
fails to remit to the New York Managing Agent for the account of the
applicable Lender the required receipts evidencing payment of any such
Taxes so withheld or deducted, the Company shall indemnify the affected
Lender for any incremental Taxes and interest or penalties that may
become payable by such Lender as a result of any such failure. In the
event any Lender receives a refund of any Taxes for which it has
received payment from the Company under this Section 3.5.2, such Lender
shall promptly pay the amount of such refund to the Company, together
with any interest thereon actually earned by such Lender.
. If any Lender shall determine that compliance by such
Lender with any Legal Requirement regarding capital adequacy of banks
or bank holding companies has or would have the effect of reducing the
rate of return on the capital of such Lender and its Affiliates as a
consequence of such Lender's Commitment to make the extensions of
credit contemplated hereby, or such Lender's maintenance of the
extensions of credit contemplated hereby, to a level below that which
such Lender could have achieved but for such compliance (taking into
consideration the policies of such Lender and its Affiliates with
respect to capital adequacy immediately before such compliance and
assuming that the capital of such Lender and its Affiliates was fully
utilized prior to such compliance) by an amount deemed by such Lender
to be material, then such Lender may claim compensation from the
Company under Section 3.5.5.
. If any Lender shall determine that (a) any change in any
Legal Requirement (including any new Legal Requirement) after the date
hereof shall directly or indirectly (i) reduce the amount of any sum
received or receivable by such Lender with respect to the Revolving
Loan or the return to be earned by such Lender on the Revolving Loan,
(ii) impose a cost on such Lender or any Affiliate of such Lender that
is attributable to the making or maintaining of, or such Lender's
Commitment to make, its portion of the Revolving Loan, or (iii) require
such Lender or any Affiliate of such Lender to make any payment on, or
calculated by reference to, the gross amount of any amount received by
such Lender under any Credit Document (other than Taxes or income or
franchise taxes), and (b) such reduction, increased cost or payment
shall not be fully compensated for by an adjustment in the Applicable
Rate, then such Lender may claim compensation from the Company under
Section 3.5.5.
. Within 15 days after the receipt by the Company of a
certificate from any Lender setting forth why it is claiming
compensation under this Section 3.5 and computations (in reasonable
detail) of the amount thereof, the Company shall pay to such Lender
such additional amounts as such Lender sets forth in such certificate
as sufficient fully to compensate it on account of the foregoing
provisions of this Section 3.5, together with interest on such amount
from the 15th day after receipt of such certificate until payment in
full thereof at the Overdue Reimbursement Rate. The determination by
such Lender of the amount to be paid to it and the basis for
computation thereof hereunder shall, in the absence of manifest error,
be conclusive. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. The Company shall be
entitled to replace any such Lender in accordance with Section 11.3.
. Each Lender shall take such commercially reasonable steps
as it may determine are not disadvantageous to it, including changing
lending offices to the extent feasible, in order to reduce amounts
otherwise payable by the Company to such Lender pursuant to Sections
3.3.4 and 3.5 or to make Eurodollar Pricing Options available under
Sections 3.3.1 and 3.3.5. In addition, the Company shall not be
responsible for costs (a) under Section 3.5 arising more than 90 days
prior to receipt by the Company of the certificate from the affected
Lender pursuant to such Section 3.5 or (b) under Section 3.3.4 arising
from the termination of Eurodollar Pricing Options more than 90 days
prior to the demand by the New York Managing Agent for payment under
Section 3.3.4.
. For purposes of this Agreement, interest and Facility Fees (and any
other amount expressed as interest or such fees) shall be computed on the basis
of a 360-day year for actual days elapsed, except for interest on Base Rate
Advances for so long as the Base Rate is applicable, which shall be computed on
the basis of a 365- or 366-day year for actual days elapsed. If any payment
required by this Agreement becomes due on any day that is not a Banking Day,
such payment shall, except as otherwise provided in the Eurodollar Interest
Period, be made on the next succeeding Banking Day. If the due date for any
payment of principal is extended as a result of the immediately preceding
sentence, interest shall be payable for the time during which payment is
extended at the Applicable Rate.
.. Payment
. Except as set forth in Section 2.3.5, on each Competitive Auction
Facility Loan Maturity Date, the Company will pay to the New York Managing Agent
for credit to the applicable Competitive Auction Facility Loan Account the
outstanding principal amount of its Competitive Auction Facility Loan maturing
on such date, together with all accrued and unpaid interest with respect
thereto. On the 364-Day Final Maturity Date or any accelerated maturity of the
364-Day Revolving Loan, the Company will pay to the New York Managing Agent for
the account of the Lenders an amount equal to the 364-Day Revolving Loan then
due, together with all accrued and unpaid interest and fees with respect
thereto.
. If at any time the 364-Day Revolving Loan exceeds the limits set
forth in Section 2.2, the Company shall within one Banking Day pay the amount of
such excess to the New York Managing Agent for the account of the Lenders.
. In addition to the prepayments required by Section 4.2, the Company
may from time to time prepay all or any portion of the 364-Day Revolving Loan
(in an amount of at least $2,500,000 and otherwise any integral multiple of
$1,000,000 that is in excess of $2,000,000, or such lesser amount as is then
outstanding), without premium or penalty of any type (except as provided in
Section 3.3.4 with respect to the early termination of Eurodollar Pricing
Options). The Company shall give each Managing Agent in the case of prepayments
of portions of the Revolving Loan bearing interest at the Base Rate, notice on
or prior to 11:00 a.m., New York City time, on the Banking Day of such
prepayment, and in the case of prepayments of portions of the Revolving Loan
bearing interest at a rate determined by reference to the Eurodollar Rate, at
least three Banking Days prior notice of its intention to prepay, specifying the
date of prepayment, the total amount of the 364-Day Revolving Loan to be prepaid
on such date and the amount of interest to be paid with such prepayment, which
interest shall be all accrued interest on the amount prepaid up to the date of
prepayment and shall include any payments required by Section 3.3.4. Competitive
Auction Facility Loans may not be prepaid under this Section 4.3.
4.4. Reborrowing; Application of Payments, etc.
. The amounts of the 364-Day Revolving Loan prepaid pursuant
to Section 4.2 or 4.3 may be reborrowed from time to time prior to the
364-Day Final Maturity Date in accordance with Section 2.2, subject to
the limits and conditions set forth therein.
. Any prepayment of the 364-Day Revolving Loan pursuant to
Section 4.2 or 4.3 shall be applied first to the portion of the 364-Day
Revolving Loan not then subject to Eurodollar Pricing Options, then the
balance of any such prepayment shall be applied to the portion of the
364-Day Revolving Loan then subject to Eurodollar Pricing Options, in
the chronological order of the respective maturities thereof (or as the
Company may otherwise specify in writing), together with any payments
required by Section 3.3.4.
. All payments of principal under the Revolving Loan shall
be made to the New York Managing Agent for the account of the Lenders
in accordance with the Lenders' respective Percentage Interests.
.. Conditions to Extending Credit
. The obligations of the Lenders to make any extension of credit
pursuant to Section 2 shall be subject to the satisfaction, on or before the
Initial Closing Date, of the conditions set forth in this Section 5.1 as well as
the further conditions in Section 5.2. If the conditions set forth in this
Section 5.1 are not met on or prior to the Initial Closing Date, the Lenders
shall have no obligation to make any extensions of credit hereunder.
. The representations and warranties contained in Section 7
shall be true and correct on and as of the Initial Closing Date with
the same force and effect as though made on and as of such date (except
as to any representation or warranty which is limited to a specific
earlier date); no Default shall exist on the Initial Closing Date; and
the Company shall have furnished to the Managing Agents a certificate
to these effects in substantially the form of Exhibit 5.1.1, signed by
a Financial Officer.
. The Company shall have duly executed and delivered to the
New York Managing Agent a 364-Day Revolving Note for each Lender.
. The Company shall have paid to the New York Managing Agent
for the accounts of the Lenders in accordance with their respective
Percentage Interest the sum of $12,500.
. On the Initial Closing Date, the Lenders shall have
received from the following counsel their respective opinions with
respect to the transactions contemplated by the Credit Documents, which
opinions shall be in form and substance satisfactory to the Required
Lenders:
(a) Corporate counsel of the Company, as to matters the
Lenders may reasonably request.
(b) Ropes & ▇▇▇▇, special counsel for the Managing Agents,
as to matters the Managing Agents may reasonably request.
The Company consents to the furnishing by its counsel of the
foregoing opinions.
5.1.5. [Reserved]
. The Boston Managing Agent shall have received certified or
attested copies of the Orders of the State of Maine Public Utilities
Commission and any other regulatory authorities having jurisdiction,
authorizing all borrowings hereunder (but only to the extent that such
Orders are required by law), which shall be in full force and effect
and not subject to appeal or rehearing.
. This Agreement, each other Credit Document and the
transactions contemplated hereby and thereby shall have been authorized
by all necessary corporate or other proceedings. All necessary
consents, approvals and authorizations of any governmental or
administrative agency or any other Person of any of the transactions
contemplated hereby or by any other Credit Document shall have been
obtained and shall be in full force and effect; provided, however, that
a waiver of jurisdiction by the Connecticut Department of Public
Utility Control need not have been obtained on or prior to the Initial
Closing Date.
. All legal and corporate proceedings in connection with the
transactions contemplated by this Agreement shall be satisfactory in
form and substance to the Managing Agents and the Managing Agents shall
have received copies of all documents, including certified copies of
the Charter (Capital Stock Provisions) and By-Laws of the Company,
records of corporate proceedings (including certified copies of the
resolutions of the Board of Directors, or the Executive and Finance
Committee thereof, authorizing the execution, delivery and performance
of this Agreement and the Notes), certificates as to signatures and
incumbency of officers and opinions of counsel, which either Managing
Agent may have reasonably requested in connection therewith, such
documents where appropriate to be certified by proper corporate or
governmental authorities.
. In addition to the conditions set forth in Section 5.1 being met on
the Initial Closing Date, the obligations of the Lenders to make any extension
of credit pursuant to Section 2 shall be subject to the satisfaction, on or
before the Closing Date for such extension of credit, of the following
conditions:
. The representations and warranties contained in Section 7
(excluding Sections 7.4(a) and 7.7) shall be true and correct on and as
of such Closing Date with the same force and effect as though made on
and as of such date (except as to any representation or warranty which
is limited to a specific earlier date); no Default shall exist on such
Closing Date prior to or immediately after giving effect to the
requested extension of credit; and the Company's making of a borrowing
request shall be deemed to constitute a representation on which the
Managing Agents and the Lenders may rely that no Default exists on such
Closing Date and that such representations and warranties are true and
correct on and as of such Closing Date.
. On any Closing Date on which the aggregate principal
amount outstanding under either Revolving Loan is to be increased, no
Material Adverse Change shall have occurred since the Initial Closing
Date and the representations and warranties contained in Section 7.7
shall be true and correct on and as of such Closing Date; and the
Company's making of a borrowing request shall be deemed to constitute a
representation on which the Managing Agents and the Lenders may rely
that no Material Adverse Change shall have occurred since the Initial
Closing Date and that the representations and warranties contained in
Section 7.7 are true and correct on as of such Closing Date.
. The making of the requested extension of credit shall not
(a) subject any Lender to any penalty or special tax (other than a Tax
for which the Company is required to reimburse the Lenders under
Section 3.5), (b) be prohibited by any Legal Requirement or (c) violate
any credit restraint program of the executive branch of the government
of the United States of America, the Board of Governors of the Federal
Reserve System or any other governmental or administrative agency so
long as any Lender reasonably believes that compliance therewith is in
the best interests of such Lender.
. The Company covenants that, until all of the Credit Obligations (other than
indemnities, expense and similar obligations that survive the termination of
this Agreement) shall have been paid in full and until the Lenders' commitments
to extend credit under this Agreement and any other Credit Document shall have
been irrevocably terminated, the Company and its Subsidiaries will comply with
the following provisions:
..1. Taxes and Other Charges; Accounts Payable
. Each of the Company and its Significant Subsidiaries shall
duly pay and discharge, or cause to be paid and discharged, before the
same become in arrears, all taxes, assessments and other governmental
charges imposed upon such Person and its properties, sales or
activities, or upon the income or profits therefrom, as well as all
claims for labor, materials or supplies which if unpaid might by law
become a Lien upon any of its property; provided, however, that any
such tax, assessment, charge or claim need not be paid if (a) the
validity or amount thereof shall at the time be contested in good faith
by appropriate proceedings or actions and if such Person shall, if
required by GAAP, have set aside on its books adequate reserves with
respect thereto, it being understood that each of the Company and its
Subsidiaries shall pay or bond, or cause to be paid or bonded, all such
taxes, assessments, charges or other governmental claims promptly upon
the commencement of proceedings to foreclose any Lien which may have
attached as security therefor (except to the extent such proceedings
have been dismissed or stayed) or (b) failure to comply has not
resulted, and is not likely to result, in any Material Adverse Change.
. Each of the Company and its Significant Subsidiaries shall
promptly pay when due, or in conformity with customary trade terms, all
accounts payable incident to the operations of such Person not referred
to in Section 6.1.1; provided, however, that any such accounts payable
need not be paid if (a) the validity or amount thereof shall at the
time be contested in good faith and if such Person shall, if required
by GAAP, have set aside on its books adequate reserves with respect
thereto or (b) failure to comply has not resulted, and is not likely to
result, in any Material Adverse Change.
6.2. Conduct of Business, etc.
. The Company shall engage only in the businesses of (a)
electric power generation, transmission and/or distribution and (b)
other businesses related to those set forth in the foregoing clause (a)
that are immaterial in relation to the foregoing businesses. The
Subsidiaries of the Company shall engage only in the businesses
described in the preceding sentence, other energy-related activities
and other businesses that are immaterial in relation to the foregoing
businesses.
Each of the Company and its Significant Subsidiaries:
(a) shall keep its properties in such repair, working order
and condition, and shall from time to time make such repairs,
replacements, additions and improvements thereto, as are necessary for
the efficient operation of its businesses and shall comply at all times
in all material respects with all material franchises, licenses and
leases to which it is party so as to prevent any loss or forfeiture
thereof or thereunder, except where (i) compliance is at the time being
contested in good faith by appropriate proceedings or actions or (ii)
failure to comply has not resulted, and is not likely to result, in the
aggregate in any Material Adverse Change; and
(b) shall do all things necessary to preserve, renew and
keep in full force and effect its legal existence; provided, however,
that this Section 6.2.2(b) shall not prevent the merger, consolidation
or liquidation of Significant Subsidiaries permitted by Section 6.10.
. Each of the Company and its Significant Subsidiaries shall
comply in all material respects with all valid and applicable statutes,
laws, ordinances, zoning and building codes and other rules and
regulations of the United States of America, of the states and
territories thereof and their counties, municipalities and other
subdivisions and of any foreign country or other jurisdictions
applicable to such Person, except where (a) compliance therewith shall
at the time be contested in good faith by appropriate proceedings or
actions or (b) failure so to comply has not resulted, and is not likely
to result, in the aggregate in any Material Adverse Change.
. The General and Refunding Mortgage Indenture shall not be
amended so as to increase the aggregate principal amount of bonds which
may be outstanding thereunder at any one time or so as to include
financial covenants or events of default that are more restrictive than
those included in the Credit Documents. In addition, the Company may
enter into a new mortgage indenture in addition to or in substitution
for the General and Refunding Mortgage Indenture in effect on September
1, 1998 so long as (1) the aggregate principal amount of Indebtedness
which may be outstanding at any one time under the General and
Refunding Mortgage Indenture and such additional or substitute mortgage
indenture shall not exceed 70% of the aggregate book value for the
Distribution Plant of the Company (including additions thereto), (2)
the security for the Indebtedness issued under such additional or
substitute mortgage indenture shall be limited to the Distribution
Plant of the Company (including additions thereto), (3) the financial
covenants and events of default included in such additional or
substitute mortgage indenture shall not be more restrictive than those
included in the Credit Documents and (4) no Default shall have occurred
and be continuing or shall exist immediately upon the effectiveness of
such additional or substitute mortgage indenture.
. In any transaction providing for Indebtedness in excess of
$1,000,000, the Company shall not enter into or become bound by any
credit agreement or other document or instrument which (i) contains
financial covenants or events of default that are more restrictive or
onerous on the Company than those covenants or events of default
contained in this Agreement or (ii) provides for, or permits the
exercise of, remedies upon the occurrence of an event of default
thereunder which are not provided for in, or permitted to be exercised
under or in respect of, this Agreement (each such covenant, event of
default and provision described in the preceding clauses (i) and (ii)
being herein called a "More Favorable Provision"), unless, prior to or
simultaneously with the Company entering into or becoming bound by such
credit agreement or other document or instrument, (x) the Company
executes and delivers to the Lenders an amendment to this Agreement and
such other documents and instruments as the Managing Agents shall
reasonably request, in each case reasonably satisfactory in form and
substance to the Managing Agents, which modify the provisions of this
Agreement and the terms of the transactions contemplated hereby and by
the Credit Documents so as to give the Lenders the benefit of each More
Favorable Provision, and (y) the Company furnishes to the Lenders a
copy of such credit agreement, or other document or instrument.
. Each of the Company and its Significant Subsidiaries shall maintain
with financially sound and reputable insurance companies insurance on its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business; and furnish to each Lender, upon written request, full
information as to the insurance carried.
. Each of the Company and its Subsidiaries shall maintain a system of
accounting in which correct entries shall be made of all transactions in
relation to their business and affairs in accordance with generally accepted
accounting practice. The fiscal year of the Company and its Subsidiaries shall
end on December 31 in each year and the fiscal quarters of the Company and its
Subsidiaries shall end on March 31, June 30, September 30 and December 31 in
each year.
. The Company shall furnish to the Lenders as soon as
available, and in any event within 100 days after the end of each
fiscal year, the Consolidated balance sheets of the Company and its
Subsidiaries as at the end of such fiscal year, the Consolidated
statements of income and Consolidated statements of changes in
shareholders' equity and of cash flows of the Company and its
Subsidiaries for such fiscal year (all in reasonable detail) and
together, in the case of Consolidated financial statements, with
comparative figures for the immediately preceding fiscal year, all
accompanied by:
(a) Reports of Pricewaterhouse Coopers LLP (or, if they
cease to be auditors of the Company and its Subsidiaries, other
independent certified public accountants of recognized national
standing selected by the Company), containing no material
qualification, to the effect that they have audited the foregoing
Consolidated financial statements in accordance with generally accepted
auditing standards and that such Consolidated financial statements
present fairly, in all material respects, the financial position of the
Company and its Subsidiaries covered thereby at the dates thereof and
the results of their operations for the periods covered thereby in
conformity with GAAP.
(b) The statement of such accountants that they have caused
this Agreement to be reviewed and that in the course of their audit of
the Company and its Subsidiaries no facts have come to their attention
that cause them to believe that any Default exists and in particular
that they have no knowledge of any Default under Sections 6.5 through
6.13 or, if such is not the case, specifying such Default and the
nature thereof. This statement is furnished by such accountants with
the understanding that the examination of such accountants cannot be
relied upon to give such accountants knowledge of any such Default
except as it relates to accounting or auditing matters within the scope
of their audit.
(c) A certificate of the Company signed by a Financial
Officer to the effect that such officer has caused this Agreement to be
reviewed and has no knowledge of any Default, or if such officer has
such knowledge, specifying such Default and the nature thereof, and
what action the Company has taken, is taking or proposes to take with
respect thereto and including computations showing compliance by the
Company for and as of the end of such year with the requirements of
Section 6.5.
(d) Supplements to Exhibit 7.3 showing any material changes
in the information set forth in such exhibit not previously furnished
to the Lenders in writing, as well as any material changes in the
Charter, Bylaws or incumbency of officers of the Company from those
previously certified to the Managing Agents.
. The Company shall furnish to the Lenders as soon as
available and, in any event, within 55 days after the end of each of
the first three fiscal quarters of the Company, the internally prepared
Consolidated balance sheets of the Company and its Subsidiaries as of
the end of such fiscal quarter, the Consolidated statements of income
and Consolidated statements of cash flows of the Company and its
Subsidiaries for such fiscal quarter and for the portion of the fiscal
year then ended (all in reasonable detail) and together, in the case of
Consolidated statements, with comparative figures for the same period
in the preceding fiscal year, all accompanied by:
(a) A certificate of the Company signed by a Financial
Officer to the effect that such financial statements have been prepared
in accordance with GAAP and present fairly, in all material respects,
the financial position of the Company and its Subsidiaries covered
thereby at the dates thereof and the results of their operations for
the periods covered thereby, subject only to normal year-end audit
adjustments and the addition of footnotes.
(b) A certificate of the Company signed by a Financial
Officer to the effect that such officer has caused this Agreement to be
reviewed and has no knowledge of any Default, or if such officer has
such knowledge, specifying such Default and the nature thereof and what
action the Company has taken, is taking or proposes to take with
respect thereto and including computations showing compliance by the
Company for and as of the end of such quarter with the requirements of
Section 6.5.
(c) Supplements to Exhibit 7.3 showing any material changes
in the information set forth in such exhibit not previously furnished
to the Lenders in writing, as well as any material changes in the
Charter, Bylaws or incumbency of officers of the Company from those
previously certified to the Managing Agents.
. The Company shall promptly furnish to the Lenders:
(a) As soon as prepared and released, the Company's "Financial
Perspective".
(b) All reports furnished generally to the shareholders of the
Company.
(c) From and after the Reorganization Date, such effective
registration statements, definitive proxy statements and regular or
periodic reports, including Forms ▇-▇, ▇-▇, ▇-▇, ▇-▇, 10-K, 10-Q and
8-K, as may be filed by the parent corporation of the Company or by
the Company or any of its Subsidiaries with the Securities and
Exchange Commission (other than filings and reports with respect to
dividend reinvestment, employee benefits or other similar plans, and
filings and reports pertaining to sales of or other transactions in
securities of such parent or the Company or any Subsidiary by Persons
other than such parent or the Company or such Subsidiary).
(d) Any 90-day letter or 30-day letter from the federal Internal
Revenue Service (or the equivalent notice received from state or other
taxing authorities) asserting material tax deficiencies against the
Company or any of its Subsidiaries.
. The Company shall promptly furnish to the Lenders notice
(which may be in the form of information in a document provided by the
Company under Section 6.4.3 or other provisions hereof) of any
litigation or any administrative or arbitration proceeding (a) which
creates a material risk of resulting, after giving effect to any
applicable insurance, in the payment by the Company and its
Subsidiaries of more than $10,000,000 or (b) which results, or is
likely to result, in a Material Adverse Change. Promptly upon acquiring
knowledge thereof, the Company shall notify the Lenders of the
existence of any Default, specifying the nature thereof and what action
the Company or any Subsidiary has taken, is taking or proposes to take
with respect thereto. Promptly upon acquiring knowledge thereof, the
Company shall notify the Lenders of the existence of any Material
Adverse Change, specifying the nature thereof and what action the
Company or any Subsidiary has taken, is taking or proposes to take with
respect thereto.
. The Company shall furnish to the Managing Agents within 30
days of the Company's preparation of, or receipt of, as applicable, the
following items with respect to any Plan:
(a) any request for a waiver of the minimum funding standards or
an extension of an amortization period, in each case under section 412
of the Code or section 302 of ERISA,
(b) any notice to the PBGC of a reportable event (as defined in
section 4043 of ERISA), unless the notice requirement with respect
thereto has been waived by regulation,
(c) any notice received by any ERISA Group Person that the PBGC
has instituted or intends to institute proceedings to terminate any
Plan pursuant to section 4042 of ERISA, or that any Multiemployer Plan
is insolvent or in reorganization and, in either or both cases, in
connection therewith, an ERISA Group Person has incurred or could
reasonably be expected to incur material liability,
(d) notice of the intent to terminate any Plan other than
pursuant to section 4041(b) of ERISA, and
(e) notice of the intention of any ERISA Group Person to
withdraw, in whole or in part, from any Multiemployer Plan and, in
connection therewith, that such ERISA Group Person could reasonably be
expected to incur material liability.
. From time to time at reasonable intervals upon request of
any authorized officer of any Lender, each of the Company and its
Subsidiaries shall furnish to the Lenders such other information
regarding the business, assets, financial condition, income or
prospects of the Company and its Subsidiaries as such officer may
reasonably request, including copies of requested tax returns,
licenses, agreements, leases and instruments to which any of the
Company or its Subsidiaries is party. The Lenders' authorized officers
and representatives shall have the right during normal business hours
upon reasonable notice and at reasonable intervals to examine the books
and records of the Company and its Subsidiaries, to make copies and
notes therefrom for the purpose of ascertaining compliance with or
obtaining enforcement of this Agreement or any other Credit Document.
..5. Certain Financial Tests
. Consolidated Net Worth shall at all times prior to the
Generating Assets Sale Date equal or exceed the sum of (a) $450,000,000
plus (b) the amount by which (i) 100% of the proceeds to the Company
(net of issuance costs) realized after October 23, 1996 resulting from
any Equity Transaction of the Company and its Subsidiaries as
determined in accordance with GAAP by PricewaterhouseCoopers LLP (or,
if they cease to be auditors of the Company and its Subsidiaries, other
independent certified public accountants of recognized national
standing selected by the Company) exceeds (ii) $5,000,000 plus (c) the
amount by which (i) 100% of the Consolidated after-tax gain on sales of
assets by the Company and its Subsidiaries after October 23, 1996 as
determined quarterly in accordance with GAAP by PricewaterhouseCoopers
LLP (or, if they cease to be auditors of the Company and its
Subsidiaries, other independent certified public accountants of
recognized national standing selected by the Company) exceeds (ii)
$5,000,000.
6.5.1A. Consolidated Net Worth. Consolidated Net Worth shall
at all times on and after the Generating Assets Sale Date equal or
exceed the sum of (a) $275,000,000 plus (b) the amount by which (i)
100% of the proceeds to the Company (net of issuance costs) realized
after the Generating Assets Sale Date resulting from any Equity
Transaction of the Company and its Subsidiaries as determined in
accordance with GAAP by PricewaterhouseCoopers LLP (or, if they cease
to be auditors of the Company and its Subsidiaries, other independent
certified public accountants of recognized national standing selected
by the Company) exceeds (ii) $5,000,000 plus (c) the amount by which
(i) 100% of the Consolidated after-tax gain on sale of assets by the
Company and its Subsidiaries which take place after the Generating
Assets Sale Date as determined quarterly in accordance with GAAP by
PricewaterhouseCoopers LLP (or, if they cease to be auditors of the
Company and its Subsidiaries, other independent certified public
accountants of recognized national standing selected by the Company)
exceeds (ii) $5,000,000.
. The "Common Stock Investment" of the Company and its
Subsidiaries determined on a Consolidated basis in accordance with
GAAP, and as shown on the Company's Consolidated balance sheet, shall
at all times equal or exceed 35% of "Total Capitalization" of the
Company and its Subsidiaries determined on a Consolidated basis in
accordance with GAAP, as shown on the same balance sheet.
. Consolidated EBIT for each period of four consecutive
fiscal quarters of the Company shall equal or exceed 175% of
Consolidated Interest Expense for such period.
. Neither the Company nor any of its Significant Subsidiaries shall
create, incur, assume or otherwise become or remain liable with respect to any
Indebtedness (or become contractually committed do so), except the following:
6.6.1. Indebtedness in respect of the Credit Obligations.
6.6.2. Guarantees permitted by Section 6.7.
6.6.3. Indebtedness secured by purchase money mortgages
permitted by Section 6.8.8.
6.6.4. Indebtedness in respect of Capitalized Lease
Obligations or secured by purchase money security interests permitted
by Section 6.8.9; provided, however, that the aggregate principal
amount of all Indebtedness permitted by this Section 6.6.4 at any one
time outstanding shall not exceed $40,000,000.
6.6.5. Indebtedness of the Company consisting of debt
subordinated to the prior payment of the Credit Obligations on terms
approved by the holders of 66 _% of the principal amount of the
Revolving Loan at the time outstanding.
6.6.6. Indebtedness outstanding on the date hereof and
described in Exhibit 7.3 and all renewals and extensions thereof in an
aggregate principal amount not in excess of the aggregate principal
amount thereof outstanding immediately prior to such renewal or
extension.
6.6.7. Indebtedness of the Company evidenced by General and
Refunding Mortgage Bonds of the Company issued under the General and
Refunding Mortgage Indenture, but only so long as the Company is in
compliance with Section 6.2.4.
6.6.8. Indebtedness of the Company in respect of its
Unsecured Medium Term Notes, provided that the aggregate principal
amount of all Indebtedness permitted by this Section 6.6.8 at any one
time outstanding shall not exceed $500,000,000.
6.6.9. Indebtedness in respect of unsecured debt to banks
other than the Credit Obligations and the Indebtedness permitted by
Section 6.6.12; provided that the aggregate principal amount of all
Indebtedness permitted by this Section 6.6.9 at any one time
outstanding shall not exceed $10,000,000.
6.6.10. Indebtedness of the Company in respect of commercial
paper, provided that the sum of the aggregate principal amount of all
Indebtedness permitted by this Section 6.6.10 and by Sections 6.6.9 and
6.6.12 and the principal amount of the Credit Obligations at any one
time outstanding shall not exceed $85,000,000.
6.6.11. Unsecured long-term Indebtedness issued for the sole
purpose of refunding permitted Indebtedness, provided that such
long-term Indebtedness shall be supported by financial covenants no
more restrictive than those contained in the General and Refunding
Mortgage Indenture and shall not begin to amortize prior to 91 days
following the latest Final Maturity Date in effect at the time of the
issuance of such Indebtedness.
6.6.12. Unsecured Indebtedness of the Company outstanding
under the Three-Year Revolving Credit Agreement.
. Neither the Company nor any of its Significant Subsidiaries shall
become or remain liable with respect to any Guarantee, including reimbursement
obligations, whether contingent or matured, under letters of credit or other
financial guarantees by third parties (or become contractually committed do to
so), except the following:
6.7.1. Guarantees of the Credit Obligations.
6.7.2. Guarantees of Indebtedness permitted by Section 6.6.
6.7.3. Any Guarantee that is given, entered into or created
in connection with or as an inducement to (i) the purchase or sale of
capacity or energy (including support arrangements with respect to
generating plants and transmission and distribution facilities, and
contracts for the purchase of capacity and/or energy) or of fuel, (ii)
the installation of energy-saving devices and taking of other
energy-saving measures, and (iii) other operational matters in the
ordinary course of business; provided, however, that no individual
Guarantee permitted under this clause (iii) may present a liability or
exposure to the Company or a Significant Subsidiary in an amount
greater than $10,000,000; and provided, further, that this Section
6.7.3 shall not permit the giving, entering into or creation, after the
date hereof, of any Guarantee (other than as required under contracts
existing on the date hereof) providing support for the acquisition by
the Company or a Significant Subsidiary of generating capacity or a
generating plant (other than in connection with buyouts by the Company
of non-utility generating operations, in connection with power
purchases required by law or in connection with exchanges of capacity
or plant entitlements within the ordinary course of ensuring an
adequate power supply to mitigate the Company's risk, provided that no
such exchange shall exceed three years in duration) which individually
presents a liability or exposure to the Company or a Significant
Subsidiary in an amount greater than $10,000,000.
. Neither the Company nor any of its Significant Subsidiaries shall
create, incur or enter into, or suffer to be created or incurred or to exist,
any Lien (or become contractually committed to do so), except the following:
6.8.1. Liens to secure taxes, assessments and other governmental charges, to
the extent that payment thereof shall not at the time be required by
Section 6.1.
6.8.2. Liens made (a) in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old age
pensions or other social security, (b) in connection with casualty
insurance maintained in accordance with Section 6.3, (c) to secure the
performance of bids, tenders, contracts (other than contracts relating
to Financing Debt) or leases, (d) to secure public or statutory
obligations or surety or appeal bonds, (e) to secure indemnity,
performance or other similar bonds in the ordinary course of business
or (f) in connection with contested amounts to the extent that payment
thereof shall not at that time be required by Section 6.1.
6.8.3. Liens in respect of judgments or awards, to the
extent that such judgments or awards (a) have been in force for less
than the applicable appeal period or (b) in respect of which the
Company or any Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review and, in the case of
each of clauses (a) and (b), the Company or each Subsidiary shall have
taken appropriate reserves therefor in accordance with GAAP and
execution of such judgment or award shall not be levied.
6.8.4. Liens of carriers, warehouses, mechanics and similar
Liens, which, in the case of any Lien material to the Company or a
Significant Subsidiary, (a) are in existence fewer than 90 days from
the date of creation thereof or (b) if in existence for 90 days or
longer either (i) are not delinquent or (ii) are being contested in
good faith by the Company or any Subsidiary in appropriate proceedings
or actions (so long as, in the case of this clause (ii), the Company or
such Significant Subsidiary shall, if required by GAAP, have set aside
on its books adequate reserves with respect thereto); and deposits to
obtain the release of such Liens.
6.8.5. Encumbrances consisting of or in the nature of (a)
zoning restrictions, (b) easements, (c) reservations or restrictions on
the use of tangible property, (d) landlords' and lessors' Liens on
rented premises, (e) leases (other than Capitalized Leases) and
restrictions on transfers or assignment of leases and (f) defects or
irregularities (including any terms, conditions, agreements, covenants,
exceptions and reservations expressed or provided in deeds or other
agreements) in title thereto, which in each case do not materially
impair the conduct of the business of the Company or any Significant
Subsidiary.
6.8.6. Restrictions under federal and state securities laws
on the transfer of securities.
6.8.7. Restrictions under Foreign Trade Regulations on the
transfer or licensing of certain assets of the Company and its
Significant Subsidiaries.
6.8.8. Liens constituting (a) purchase money Liens on
electric property acquired in the ordinary course of business after the
October 23, 1996, and (b) the renewal, extension or refunding of any
purchase money Lien referred to in the foregoing clause (a) in a
principal amount not to exceed the principal amount thereof remaining
unpaid immediately prior to such renewal, extension or refunding;
provided, however, that each such purchase money Lien shall attach
solely to the particular item of property so acquired (and any
improvements thereon and, in case such item is affixed to land, such
Lien may attach to such land and other land necessary for access to
such property), and the principal amount of Indebtedness secured
thereby shall not exceed the cost (including all such Indebtedness
secured thereby, whether or not assumed) of such item of property to
the Company or a Significant Subsidiary.
6.8.9. Liens constituting (a) purchase money Liens
(including mortgages, conditional sales, Capitalized Leases and any
other title retention or deferred purchase devices) in real property,
interests in leases or tangible personal property (other than
inventory) existing or created on or within 60 days after the date on
which such property is acquired, and (b) the renewal, extension or
refunding of any security interest referred to in the foregoing clause
(a) in a principal amount not to exceed the principal amount thereof
remaining unpaid immediately prior to such renewal, extension or
refunding; provided, however, that (i) each such security interest
shall attach solely to the particular item of property so acquired (and
any improvements thereon and, in case such item is affixed to land,
such Lien may attach to such land and other land necessary for access
to such property), and the principal amount of Indebtedness (including
Indebtedness in respect of Capitalized Lease Obligations) secured
thereby shall not exceed the cost (including all such Indebtedness
secured thereby, whether or not assumed) of such item of property to
the Company or a Significant Subsidiary; and (ii) the aggregate
principal amount of all Indebtedness secured by Liens permitted by this
Section 6.8.9 shall not exceed the amount permitted by Section 6.6.4.
6.8.10. Liens securing obligations neither assumed by the
Company or any Significant Subsidiary nor on account of which any of
them customarily pays interest directly or indirectly, existing, either
at the date hereof, or, as to property hereafter acquired, constructed
or improved, at the time of acquisition, construction or improvement by
the Company or a Significant Subsidiary.
6.8.11. 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 the Company or any Significant Subsidiary upon payment
of reasonable compensation therefor, or to terminate any franchise,
license or other rights or to regulate the property and business of the
Company or any Significant Subsidiary.
6.8.12. The Lien of judgments covered by insurance, or upon
appeal and covered, if necessary, by the filing of an appeal bond, or
if not so covered, not exceeding at any one time $10,000,000 in
aggregate amount.
6.8.13. Any Lien, moneys sufficient for the discharge of
which have been deposited in trust with the trustee or mortgagee under
the instrument evidencing such Lien, with irrevocable authority to such
trustee or mortgagee to apply such moneys to the discharge of such Lien
to the extent required for such purpose.
6.8.14. Rights reserved to or vested in others to take or
receive any part of the gas, by-products of gas or steam or electricity
generated or produced by or from any properties of the Company or any
Significant Subsidiary or with respect to any other rights concerning
supply, transportation or storage of a commodity which is used in the
ordinary course of business.
6.8.15. The Lien of the General and Refunding Mortgage
Indenture, Liens in effect on the date hereof imposed by the Finance
Authority of Maine, and other Liens in effect on the date hereof, all
as described on Exhibit 7.3.
. Neither the Company nor any of its Subsidiaries shall (a) at any
time, permit the aggregate book value of the assets of the Subsidiaries of the
Company to exceed 10% of the aggregate book value of the Consolidated assets
determined in accordance with GAAP or (b) acquire any ownership interest in any
nuclear energy generating plants other than Investments in such plants
outstanding, or required under contracts existing, on the date hereof.
. The Company shall not merge with or enter into a consolidation with
another Person, except that CMP Merger Co., a Maine corporation, may merge into
the Company on terms substantially identical to those provided in the form of
Agreement and Plan of Merger set forth in Appendix B to the Proxy Statement of
the Company dated April 15, 1998. The Company shall not sell, transfer or
otherwise dispose of (or pledge or assign) any accounts receivable (except for
collection or enforcement in the ordinary course of business). The Company shall
not sell, transfer, sell and lease back or otherwise dispose of other assets for
an aggregate cumulative consideration in excess of $200,000,000 (or become
contractually committed to do so), except the following:
6.10.1. The Company may sell, transfer or otherwise dispose
of (a) inventory and Cash Equivalents in the ordinary course of
business and (b) tangible assets no longer used or useful which are to
be replaced in the ordinary course of business to the extent necessary
by other tangible assets of equal or greater value.
6.10.2. Licensing of products and intangible assets for fair
value in the ordinary course of business.
6.10.3. The Company may grant easements and other similar
rights to use its real estate and properties.
6.10.4. Upon obtaining final approvals of such sale from the
Maine Public Utilities Commission and the Federal Energy Regulatory
Commission, the Company may sell to an affiliate of FPL Group pursuant
to the bid submitted by such buyer on December 10, 1997 all of the
Company's hydro, fossil and biomass generating assets, including its
interest in certain Subsidiaries which operate or participate in such
assets, with a combined generating capacity of 1,185 megawatts.
. Neither the Company nor any of its Significant Subsidiaries shall
enter into any agreement, instrument, deed or lease which prohibits or limits
the ability of the Company or any of its Significant Subsidiaries to create,
incur, assume or suffer to exist any Lien upon any of their respective
properties, assets or revenues, whether now owned or hereafter acquired, or
which requires the grant of any collateral for such obligation if collateral is
granted for another obligation, except the following:
(a) This Agreement, the other Credit Documents, the General
and Refunding Mortgage Indenture and the FAME Loan Agreement.
(b) Covenants in documents creating Liens permitted by
Sections 6.8.8 and 6.8.9 prohibiting further Liens on the assets
encumbered thereby.
(c) Immaterial agreements, instruments, deeds and leases.
(d) The Three-Year Revolving Credit Agreement.
Except to the extent that a failure to do so does not result, and is
not likely to result, in the Company or an ERISA Group Person incurring material
liability, the Company and its Subsidiaries shall, and the Company shall use its
best efforts to cause all ERISA Group Persons to, (a) comply, in all material
respects, with the provisions of ERISA and the Code applicable to each Plan, and
(b) meet all minimum funding requirements applicable to them with respect to any
Plan pursuant to section 302 of ERISA or section 412 of the Code.
..13. Environmental Laws
. Each of the Company and its Significant Subsidiaries shall
use and operate all of its facilities and properties in material
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance
with all applicable Environmental Laws, except where (a) compliance
shall at the time be contested in good faith by appropriate proceedings
or actions or (b) failure so to comply has not resulted, or is not
likely to result, in any Material Adverse Change.
Each of the Company and its Significant Subsidiaries shall
as promptly as practicable notify each Managing Agent, and provide
copies upon receipt, of all written claims, complaints, notices or
inquiries from governmental authorities relating to the condition of
its material facilities and properties or compliance with Environmental
Laws with respect to such material facilities and properties.
. The Company shall make no Distribution (or become contractually
committed to do so) if after giving effect to such Distribution any Default
shall exist under Section 6.5.1, 6.5.1A or 6.5.2.
. In order to induce the Lenders to extend credit to the Company hereunder,
the Company represents and warrants as follows:
..1. Organization and Business
. The Company is a duly organized and validly existing
corporation, in good standing under the laws of Maine, with all power
and authority, corporate or otherwise, necessary to (a) enter into and
perform this Agreement and each other Credit Document to which it is
party and (b) own its properties and carry on the business in all
material respects as now conducted by it. Certified copies of the
Charter (Capital Stock Provisions) and By-laws of the Company have been
previously delivered to the Managing Agents and are correct and
complete.
. Each Significant Subsidiary of the Company is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized, with all power and authority,
corporate or otherwise, necessary to own its properties and carry on
the business in all material respects as now conducted by it. Certified
copies of the Charter and By-laws of each Significant Subsidiary of the
Company have been previously delivered to the Managing Agents and are
correct and complete.
. Each of the Company and its Significant Subsidiaries is
duly and legally qualified to do business as a foreign corporation or
other entity and is in good standing in each state or jurisdiction in
which such qualification is required and is duly authorized, qualified
and licensed under all laws, regulations, ordinances or orders of
public authorities, or otherwise, to carry on its business in the
places and in the manner in which it is conducted, except for failures
to be so qualified, in good standing, authorized or licensed which
would not in the aggregate result, or be likely to result, in any
Material Adverse Change.
. No options, warrants, conversion rights, preemptive rights
or other statutory or contractual rights to purchase shares of common
stock of any Significant Subsidiary now exist, nor has any Subsidiary
authorized any such right, nor is any Significant Subsidiary obligated
in any other manner to issue shares of its common stock.
..2. Financial Statements and Other Information; Material Agreements
. The Company has previously furnished to the Lenders copies of
the following:
(a) The audited Consolidated balance sheets of the Company
and its Subsidiaries as at December 31 in each of 1997, 1996 and 1995
and the audited Consolidated statements of income and the audited
Consolidated statements of changes in shareholders' equity and of cash
flows of the Company and its Subsidiaries for the fiscal years of the
Company then ended.
(b) The unaudited Consolidated balance sheet of the Company
and its Subsidiaries as at June 30, 1998 and the unaudited Consolidated
statements of income and of cash flows of the Company and its
Subsidiaries for the portion of the fiscal year then ended.
(c) The Company's report on 10-K for its fiscal year ended
December 31, 1997, as filed with the Securities and Exchange Commission
("1997 10-K").
(d) [Reserved]
The audited Consolidated financial statements (including the
notes thereto) referred to in clause (a) above were prepared in
accordance with GAAP and fairly present in all material respects the
financial position of the Company and its Subsidiaries on a
Consolidated basis at the respective dates thereof and the results of
their operations for the periods covered thereby. The unaudited
Consolidated financial statements referred to in clause (b) above were
prepared in accordance with GAAP and fairly present in all material
respects the financial position of the Company and its Subsidiaries at
the respective dates thereof and the results of their operations for
the periods covered thereby, subject to normal year-end audit
adjustment and the addition of footnotes in the case of interim
financial statements. Neither the Company nor any of its Subsidiaries
has any known contingent liability material to the Company and its
Subsidiaries on a Consolidated basis which is required to be, but is
not, reflected in the balance sheets referred to in clauses (a) or (b)
above (or delivered pursuant to Section 6.4.1 or 6.4.2) or in the notes
thereto.
The 1997 10-K contained all information required to be
contained therein and otherwise complied in all material respects with
the Exchange Act and the rules and regulations thereunder. Such 1997
10-K did not contain any untrue statement of material fact or omit to
state a material fact necessary in order to make the statements
contained therein not misleading in the light of the circumstances
under which they were made.
The Company has previously furnished to the Lenders
correct and complete copies, including all exhibits, schedules and
amendments thereto, of the Material Agreements, each as in effect on
the date hereof, listed in Exhibit 7.2.2.
Exhibit 7.3, as from time to time hereafter supplemented in
accordance with Sections 6.4.1 and 6.4.2, sets forth (a) the amounts (as of the
dates indicated in Exhibit 7.3, as so supplemented) of all Financing Debt of the
Company and its Significant Subsidiaries and (b) all Liens and Guarantees with
respect to such Financing Debt. The Company has furnished the Lenders with
correct and complete copies of any agreements described in clauses (a) and (b)
above requested by the Required Lenders.
. Since December 31, 1997, (a) no Material Adverse Change not disclosed
in the Pre-Closing 1934 Act Reports has occurred and (b) neither the Company nor
any Significant Subsidiary has entered into any material transaction outside the
ordinary course of business that is not disclosed in the Pre-Closing 1934 Act
Reports or otherwise disclosed to the Lenders.
. The Company and its Significant Subsidiaries have such title to, or
interest in, all assets as is necessary for the operations of their business as
now conducted by them, subject to no Liens except for Liens permitted by Section
6.8.
. The operations of the Company and its Subsidiaries as now conducted
are not in violation of, nor is the Company or its Subsidiaries in default
under, any Legal Requirement presently in effect, except for such violations and
defaults as do not and will not, in the aggregate, result, or be likely to
result, in any Material Adverse Change. The Company has received no notice of
any such violation or default and has no knowledge of any basis on which the
operations of the Company or its Subsidiaries, as now conducted, would be held
so as to violate or to give rise to any such violation or default.
. No litigation, at law or in equity, or any proceeding before any
court, board or other governmental or administrative agency or any arbitrator is
pending or overtly threatened which would affect the Credit Obligations, and,
except as disclosed in the Pre-Closing 1934 Act Reports, no litigation, at law
or in equity, or any proceeding before any court, board or other governmental or
administrative agency or any arbitrator is pending, or overtly threatened which,
after giving effect to any applicable insurance, has resulted or is likely to
result in a material adverse effect on the financial condition, operations or
properties or financial or business prospects of the Company and its
Subsidiaries or which seeks to enjoin the consummation, or which questions the
validity, of any of the transactions contemplated by this Agreement or any other
Credit Document. Except as disclosed in the Pre-Closing 1934 Act Reports, no
judgment, decree or order of any court, board or other governmental or
administrative agency or any arbitrator has been issued against or binds the
Company or any of its Subsidiaries which has resulted, or is likely to result,
in any Material Adverse Change.
. The Company has taken all corporate action required to execute,
deliver and perform this Agreement and each other Credit Document to which it is
party. No consent of stockholders of the Company is necessary in order to
authorize the execution, delivery or performance of this Agreement or any other
Credit Document to which the Company is party. Each of this Agreement and each
other Credit Document constitutes the legal, valid and binding obligation of the
Company and is enforceable against the Company in accordance with its terms.
. Neither the execution and delivery of this Agreement or any other
Credit Document, nor the making of any borrowings hereunder, nor the
consummation of any transaction referred to in or contemplated by this Agreement
or any other Credit Document, nor the fulfillment of the terms hereof or
thereof, has constituted or resulted in or will constitute or result in (it
being understood that the Prior Credit Agreements will be concurrently
terminated pursuant to Section 5.1.5):
(a) any breach or termination of the provisions of any
agreement, instrument, deed or lease to which the Company or any of its
Subsidiaries is a party or by which it is bound, or of the Charter or
By-laws of the Company or any of its Subsidiaries (including without
limitation any provision of the Charter of the Company restricting the
issuance of unsecured debt securities);
(b) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to the Company or any
of its Subsidiaries;
(c) the creation under any agreement, instrument, deed or
lease of any Lien upon any of the assets of the Company or any of its
Subsidiaries; or
(d) any redemption, retirement or other repurchase
obligation of the Company or any of its Subsidiaries under any Charter,
By-law, agreement, instrument, deed or lease.
All approvals, authorizations or other actions by, or declarations to or filings
with, any governmental or administrative authority or any other Person, required
to be obtained or made by the Company or any of its Subsidiaries as a condition
to the execution, delivery and performance of this Agreement, the Notes or any
other Credit Document, the transactions contemplated hereby or thereby or the
making of any borrowing hereunder, have been obtained or made.
. Neither the Company nor any of its Significant Subsidiaries is in
default under any provision of its Charter or By-laws or of this Agreement or
any other Credit Document. Neither the Company nor any of its Subsidiaries is in
default under any provision of any agreement, instrument, deed or lease to which
it is party or by which it or its property is bound so as to result, or be
likely to result, in any Material Adverse Change. Neither the Company nor any of
its Subsidiaries has violated any law, judgment, decree or governmental order,
rule or regulation, in each case so as to result, or be likely to result, in any
Material Adverse Change.
The Company and its Significant Subsidiaries have all patents, patent
applications, patent licenses, patent rights, trademarks, trademark rights,
trade names, trade name rights, copyrights, licenses, franchises, permits,
authorizations and other rights as are necessary for the conduct in all material
respects of the business of the Company and its Significant Subsidiaries as now
conducted by them. All of the foregoing are in full force and effect in all
material respects, and each of the Company and its Significant Subsidiaries is
in substantial compliance with the foregoing without any known conflict with the
valid rights of others which has resulted, or is likely to result, in any
Material Adverse Change. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
license, franchise or other right or which affects the rights of any of the
Company and its Significant Subsidiaries thereunder so as to result, or be
likely to result, in any Material Adverse Change.
. Each of the Company and its Significant Subsidiaries has filed all
material tax and information returns which are required to be filed by it and
has paid, or made adequate provision for the payment of, all taxes which have or
may become due pursuant to such returns or to any assessment received by it,
other than taxes and assessments being contested by the Company and its
Significant Subsidiaries in good faith by appropriate proceedings or actions and
for which adequate reserves have been taken if required by GAAP. Neither the
Company nor any of its Significant Subsidiaries knows of any material additional
assessments or any basis therefor. The Company reasonably believes that the
charges, accruals and reserves on the books of the Company and its Significant
Subsidiaries in respect of taxes or other governmental charges are adequate.
..13. Certain Business Representations
. No dispute or controversy between the Company or any of
its Subsidiaries and any of their respective employees has resulted, or
is likely to result, in any Material Adverse Change.
. Except as disclosed in the Pre-Closing 1934 Act Reports,
neither the Company nor any of its Subsidiaries is party to or bound by
any agreement, instrument, deed or lease or is subject to any Charter,
By-law or other restriction, commitment or requirement which, in the
opinion of the management of such Person, is so unusual or burdensome
as in the foreseeable future to result, or be likely to result, in a
Material Adverse Change.
..14. Environmental Regulations
. Except as disclosed in the Pre-Closing 1934 Act Reports,
each of the Company and its Subsidiaries is in compliance in all
material respects with the Clean Air Act, the Federal Water Pollution
Control Act, the Marine Protection Research and Sanctuaries Act, RCRA,
CERCLA and any other Environmental Law in effect in any jurisdiction in
which any properties of the Company or any of its Subsidiaries are
located or where any of them conducts its business, and with all
applicable published rules and regulations of the federal Environmental
Protection Agency and of any similar agencies in states or foreign
countries in which the Company or its Subsidiaries conducts its
business, except instances of non-compliance which in the aggregate
have not resulted, and are not likely to result, in a Material Adverse
Change.
. Except as disclosed in the Pre-Closing 1934 Act Reports,
no suit, claim, action or proceeding of which the Company or any of its
Subsidiaries has been given notice or otherwise has knowledge is now
pending before any court, governmental agency or board or other forum,
or to the Company's or any of its Subsidiaries knowledge, threatened by
any Person (nor to the Company's or any of its Subsidiaries' knowledge,
does any factual basis exist therefor) for, and neither the Company nor
any of its Subsidiaries have received written correspondence from any
federal, state or local governmental authority with respect to:
(a) noncompliance by the Company or any of its Subsidiaries
with any Environmental Law;
(b) personal injury, wrongful death or other tortious
conduct relating to materials, commodities or products used, generated,
sold, transferred or manufactured by the Company or any of its
Subsidiaries (including products made of, containing or incorporating
asbestos, lead or other hazardous materials, commodities or toxic
substances); or
(c) the release into the environment by the Company or any
of its Subsidiaries of any Hazardous Material generated by the Company
or any of its Subsidiaries whether or not occurring at or on a site
owned, leased or operated by the Company or any of its Subsidiaries;
and which in the aggregate for clauses (a) and (b) and this clause (c)
have not resulted, and are not likely to result, in a Material Adverse
Change.
. Except as disclosed in the Pre-Closing 1934 Act Reports,
any waste disposal or dump sites at which Hazardous Material generated
by either the Company or any of its Subsidiaries has been disposed of
directly by the Company or any of its Subsidiaries and all independent
contractors to whom the Company or any of its Subsidiaries have
delivered Hazardous Material, or to the Company's or any of its
Subsidiaries' knowledge, where Hazardous Material finally came to be
located, have not resulted, and are not likely to result, in a Material
Adverse Change.
. Each Plan and, without special inquiry to the knowledge of the
Company, each Multiemployer Plan, is in material compliance with the applicable
provisions of ERISA and the Code. Except to the extent that a failure to do so
has resulted or could reasonably be expected to result in material liability of
the Company, the minimum funding standards of section 412 of the Code and
section 302 of ERISA have been met in connection with all Plans and, to the
knowledge of the Company, no condition exists with respect to which the
institution of proceedings to terminate any Plan under section 4042 of ERISA
could reasonably be expected. To the knowledge of the Company without special
inquiry, no Multiemployer Plan is currently insolvent or in reorganization or
has been terminated within the meaning of ERISA, pursuant to which the Company
has incurred or could reasonably be expected to incur material liability.
..16. Foreign Trade Regulations; Government Regulation; Margin Stock
. Neither the execution and delivery of this Agreement or
any other Credit Document, nor the making by the Company of any
borrowings hereunder has constituted or resulted in or will constitute
or result in the violation of any Foreign Trade Regulation.
. The Company is not subject to regulation as a registered
holding company under the Public Utility Holding Company Act of 1935,
the Federal Power Act, the Investment Company Act of 1940, as amended,
the Interstate Commerce Act or any statute or regulation which
regulates the incurring by the Company of the Credit Obligations except
for regulation by the State of Maine Public Utilities Commission and
the Federal Energy Regulatory Commission, which on or before the
Initial Closing Date shall have authorized the execution and delivery
of this Agreement and the Notes and shall, together with any necessary
renewals, have authorized all borrowing hereunder.
. Neither this Agreement nor any other Credit Document to be furnished
to the Lenders by or on behalf of the Company or any of its Subsidiaries in
connection with the transactions contemplated hereby or by such Credit Document
contains any untrue statement of material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made.
.. Defaults
. The following events are referred to as "Events of Default":
. The Company shall fail to make any payment in respect of:
(a) interest or any fee on or in respect of any of the
Credit Obligations owed by it as the same shall become due and payable,
and such failure shall continue for a period of two Banking Days; or
(b) principal of any of the Credit Obligations owed by it as
the same shall become due, whether at maturity or by acceleration or
otherwise.
. The Company or any of its Subsidiaries shall fail to
perform or observe any of the provisions of Section 6.2.2(b), the
second sentence of Section 6.4.4 or Sections 6.5 through 6.11.
. The Company or any of its Subsidiaries shall fail to
perform or observe any other covenant, agreement or provision to be
performed or observed by it under this Agreement or any other Credit
Document, and such failure shall not be cured to the written
satisfaction of the Required Lenders within 30 days after notice
thereof by either Managing Agent or any Lender to the Company.
. Any representation or warranty of or with respect to the
Company or any of its Subsidiaries made to the Lenders or either
Managing Agent in, pursuant to or in connection with this Agreement or
any other Credit Document shall be materially false on the date as of
which it was made.
8.1.5. Cross Default, etc.
(a) The Company or any of its Subsidiaries shall fail to
make any payment when due (after giving effect to any applicable grace
periods) in respect of any Financing Debt (other than the Credit
Obligations) outstanding in an aggregate amount of principal (whether
or not due) exceeding $10,000,000 ("$10,000,000 Financing Debt");
(b) the Company or any of its Subsidiaries shall fail to
perform or observe the terms of any agreement or instrument relating to
such Financing Debt, and such failure shall continue, without having
been duly cured, waived or consented to, beyond the period of grace, if
any, specified in such agreement or instrument, and such failure shall
permit the acceleration of $10,000,000 Financing Debt;
(c) $10,000,000 Financing Debt of the Company or any of its
Subsidiaries shall be accelerated prior to its stated maturity; or
(d) any Lien on any property of the Company or any of its
Subsidiaries securing $10,000,000 Financing Debt shall be enforced by
foreclosure or similar action.
Any material provision of any Credit Document shall cease
for any reason (other than the scheduled termination thereof in
accordance with its terms) to be enforceable in accordance with its
terms or in full force and effect, and such event shall not be
rectified or cured to the written satisfaction of the Required Lenders
within 30 days after notice thereof by either Managing Agent or any
Lender to the Company.
. A final judgment (a) which, with other outstanding final
judgments against the Company and its Subsidiaries, exceeds an
aggregate of $10,000,000 in excess of applicable insurance coverage
shall be rendered against the Company or any of its Subsidiaries, or
(b) which grants injunctive relief that results, or is likely to
result, in a Material Adverse Change and in either case if, (i) within
30 days after entry thereof, such judgment shall not have been
discharged or execution thereof stayed pending appeal or (ii) within 30
days after the expiration of any such stay, such judgment shall not
have been discharged.
. 1.8. ERISA
(a) (i) a "reportable event" (as defined in section 4043 of
ERISA) shall have occurred that reasonably could be expected to result
in termination of a Plan or the appointment by the appropriate United
States District Court of a trustee to administer any Plan or the
imposition of a Lien in favor of a Plan; (ii) any ERISA Group Person
shall fail to pay when due any amounts which it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; (iii) a
notice of intent to terminate a Plan shall be filed under Title IV of
ERISA by any ERISA Group Person or administrator other than pursuant to
section 4041(b) of ERISA; or (iv) the PBGC shall institute proceedings
under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any Plan or a proceeding shall be instituted by
a fiduciary of any Plan against the Company to enforce section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within 30 days thereafter; and
(b) any one or more of the events or conditions specified in
clauses (i) through (iv) of paragraph (a) of this Section 8.1.8 shall
occur and result in, or be likely to result in, a Material Adverse
Change.
The Company or any of its Significant Subsidiaries shall:
(a) commence a voluntary case under the Bankruptcy Code or
authorize, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(b) (i) have filed against it a petition commencing an
involuntary case under the Bankruptcy Code that shall not have been
dismissed within 60 days after the date on which such petition is
filed, or (ii) file an answer or other pleading within such 60-day
period admitting or failing to deny the material allegations of such a
petition or seeking, consenting to or acquiescing in the relief therein
provided, or (iii) have entered against it an order for relief in any
involuntary case commenced under the Bankruptcy Code;
(c) seek relief as a debtor under any applicable law, other
than the Bankruptcy Code, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in
such relief;
(d) have entered against it under any law referred to in
clause (c) above an order by a court of competent jurisdiction (i)
finding it to be bankrupt or insolvent, (ii) ordering or approving its
liquidation or reorganization as a debtor or any modification or
alteration of the rights of its creditors or (iii) assuming custody of,
or appointing a receiver or other custodian for, all or a substantial
portion of its property; or
(e) under any law referred to in clause (c) above, make an
assignment for the benefit of, or enter into a composition with, its
creditors, or appoint, or consent to the appointment of, or suffer to
exist a receiver or other custodian for, all or a substantial portion
of its property.
. If any one or more Events of Default shall occur and be
continuing, then in each and every such case:
. The Managing Agents on behalf of the Lenders may (and upon
written request of the Required Lenders the Managing Agents shall)
terminate the obligations of the Lenders to make any further extensions
of credit under the Credit Documents by furnishing notice of such
termination to the Company.
. The Managing Agents on behalf of the Lenders may (and upon
written request of the Required Lenders the Managing Agents shall)
proceed to protect and enforce the Lenders' rights by suit in equity,
action at law and/or other appropriate proceeding, either for specific
performance of any covenant or condition contained in this Agreement or
any other Credit Document or in any instrument or assignment delivered
to the Lenders pursuant to this Agreement or any other Credit Document,
or in aid of the exercise of any power granted in this Agreement or any
other Credit Document or any such instrument or assignment.
. The Managing Agents on behalf of the Lenders may (and upon
written request of the Required Lenders the Managing Agents shall) by
notice in writing to the Company declare all or any part of the unpaid
balance of the Credit Obligations then outstanding to be immediately
due and payable, and thereupon such unpaid balance or part thereof
shall become so due and payable without presentation, protest or
further demand or notice of any kind, all of which are hereby expressly
waived; provided, however, that if a Bankruptcy Default shall have
occurred, the unpaid balance of the Credit Obligations shall
automatically become immediately due and payable.
. The Managing Agents on behalf of the Lenders may (and upon
written request of the Required Lenders the Managing Agents shall)
proceed to enforce payment of the Credit Obligations in such manner as
they may elect. The Lenders may offset and apply toward the payment of
the Credit Obligations (and/or toward the curing of any Event of
Default) any Indebtedness from the Lenders to the Company, including
any Indebtedness represented by deposits in any account maintained with
the Lenders.
. To the extent not prohibited by applicable law which
cannot be waived, all of the Lenders' rights hereunder and under each
other Credit Document shall be cumulative.
. Once an Event of Default has occurred, such Event of Default shall be
deemed to exist and be continuing for all purposes of the Credit Documents until
the Required Lenders or the Managing Agents (with the consent of the Required
Lenders) shall have waived such Event of Default in writing, stated in writing
that the same has been cured to such Lenders' reasonable satisfaction or entered
into an amendment to this Agreement which by its express terms cures such Event
of Default, at which time such Event of Default shall no longer be deemed to
exist or to have continued. No such action by the Lenders or the Managing Agents
shall extend to or affect any subsequent Event of Default or impair any rights
of the Lenders upon the occurrence thereof. The making of any extension of
credit during the existence of any Default or Event of Default shall not
constitute a waiver thereof.
. To the extent that such waiver is not prohibited by the provisions of
applicable law that cannot be waived, the Company waives:
(a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by this Agreement or any
other Credit Document), protests, notices of protest and notices of
dishonor;
(b) any requirement of diligence or promptness on the part
of any Lender in the enforcement of its rights under this Agreement,
the Notes or any other Credit Document;
(c) any and all notices of every kind and description which
may be required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in full)
which it may now or hereafter have with respect to its liability under
this Agreement, the Notes or any other Credit Document or with respect
to the Credit Obligations.
.. Expenses; Indemnity
. Whether or not the transactions contemplated hereby shall be consummated,
the Company will pay:
(a) all reasonable expenses of the Managing Agents
(including the out-of-pocket expenses related to forming the group of
Lenders and reasonable fees and disbursements of the counsel to the
Managing Agents) in connection with the preparation and duplication of
this Agreement and each other Credit Document, the transactions
contemplated hereby and thereby and amendments, waivers, consents and
other operations hereunder and thereunder;
(b) all recording and filing fees and transfer and
documentary stamp and similar taxes at any time payable in respect of
this Agreement, any other Credit Document or the incurrence of the
Credit Obligations; and
(c) all other reasonable expenses incurred by the Lenders or
the holder of any Credit Obligation in connection with the enforcement
of any rights hereunder or under any other Credit Document, including
costs of collection and reasonable attorneys' fees (including a
reasonable allowance for the hourly cost of attorneys employed by the
Lenders on a salaried basis) and expenses.
. The Company shall indemnify the Lenders and the Managing Agents and
hold them harmless from any liability, loss or damage resulting from the
violation by the Company of Section 2.4. In addition, the Company shall
indemnify each Lender, each Managing Agent, each of the Lenders' or the Managing
Agents' directors, officers and employees, and each Person, if any, who controls
any Lender or either Managing Agent (each Lender, each Managing Agent and each
of such directors, officers, employees and control Persons is referred to as an
"Indemnified Party") and hold each of them harmless from and against any and all
claims, damages, liabilities and reasonable expenses (including reasonable fees
and disbursements of counsel with whom any Indemnified Party may consult in
connection therewith and all reasonable expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party in connection with the Indemnified Party's compliance with
or contest of any subpoena or other process issued against it or any litigation
or investigation, in each case involving this Agreement (but including any
subpoenas or other process demanding disclosure of information provided to the
Lenders in connection with this Agreement, even if such subpoena or other
process arises in a context unrelated to this Agreement), any other Credit
Document or any transaction contemplated hereby or thereby; provided, however,
that the foregoing indemnity shall not apply to litigation commenced by the
Company against the Lenders or the Managing Agents which seeks enforcement of
any of the rights of the Company hereunder or under any other Credit Document
and is determined adversely to the Lenders or the Managing Agents in a final
nonappealable judgment or to the extent such claims, damages, liabilities and
expenses result from a Lender's or either Managing Agent's gross negligence or
willful misconduct.
.0. Operations; Managing Agents
. The Percentage Interest of each Lender in the Revolving Loan and the
related Commitments shall be computed based on the maximum principal amount for
each Lender as set forth in the Register, as from time to time in effect. The
current Percentage Interests are set forth in Exhibit 10.1, which may be updated
by the Boston Managing Agent from time to time to conform to the Register.
. The Boston Managing Agent shall be responsible for documentation of
the Loans and any amendments, waivers or modifications to this Agreement or the
Notes and any documents and instruments in connection therewith. The New York
Managing Agent shall be responsible for all disbursements and payments (subject
to the obligations of the other Lenders hereunder), including arranging, pricing
and making Loans, receiving payments of principal, interest, fees and other
amounts payable from the Company. Except as expressly otherwise provided herein,
both Managing Agents shall be entitled to receive all notices required to be
provided hereunder by the Company and the Lenders.
. Each of the Lenders appoints and authorizes BankBoston and Bank of
New York to act for the Lenders as the Lenders' Managing Agents in connection
with the transactions contemplated by this Agreement and the other Credit
Documents on the terms set forth herein. In acting hereunder, the Boston
Managing Agent is acting for the account of BankBoston to the extent of its
Percentage Interest and for the account of each other Lender to the extent of
the Lenders' respective Percentage Interests, the New York Managing Agent is
acting for the account of Bank of New York to the extent of its Percentage
Interest and for the account of each other Lender to the extent of the Lenders'
respective Percentage Interests, and all action in connection with the
enforcement of, or the exercise of any remedies (other than the Lenders' rights
of set-off as provided in Section 8.2.4 or in any Credit Document) in respect of
the Credit Obligations and Credit Documents shall be taken by the Managing
Agents.
. The Company shall be fully protected in making all payments in
respect of the Credit Obligations to the New York Managing Agent, in relying
upon consents, modifications and amendments executed by the Managing Agents
purportedly on the Lenders' behalf, and in dealing with the Managing Agents as
herein provided. The New York Managing Agent may charge the accounts of the
Company, on the dates when the amounts thereof become due and payable, with the
amounts of the principal of and interest on the Loan, Facility Fees and all
other fees and amounts owing under any Credit Document.
.0.5. Lender Operations for Advances, etc
. Prior to 12:00 noon (New York time) on each Closing Date,
each Lender shall advance to the New York Managing Agent in immediately
available funds such Lender's Percentage Interest in the portion of the
Revolving Loan advanced on such Closing Date (and in the case of
Competitive Auction Facility Loans, each Lender making a Competitive
Auction Facility Loan shall advance to the New York Managing Agent in
immediately available funds the amount of such Competitive Auction
Facility Loan advanced on such Closing Date). If such funds are not
received at such time, but all applicable conditions set forth in
Section 5 have been satisfied, each Lender authorizes and requests the
New York Managing Agent to advance for the Lender's account, pursuant
to the terms hereof, the Lender's respective Percentage Interest in
such portion of the Revolving Loan (or, in the case of a Competitive
Auction Facility Loan, the amount of such Competitive Auction Facility
Loan) and agrees to reimburse the New York Managing Agent in
immediately available funds for the amount thereof prior to 2:00 p.m.
(New York time) on the day any portion of the Revolving Loan (or a
Competitive Auction Facility Loan) is advanced hereunder; provided,
however, that the New York Managing Agent is not authorized to make any
such advance for the account of any Lender who has previously notified
the New York Managing Agent in writing that such Lender will not be
performing its obligations to make further advances hereunder; and
provided, further, that the New York Managing Agent shall be under no
obligation to make any such advance.
All payments of principal and interest in respect of the
extensions of credit made pursuant to this Agreement, Facility Fees and
other fees under this Agreement shall, as a matter of convenience, be
made by the Company to the New York Managing Agent in immediately
available funds. The share of each Lender shall be credited to such
Lender by the New York Managing Agent in immediately available funds in
such manner that the principal amount of the Credit Obligations to be
paid shall be paid proportionately in accordance with the Lenders'
respective Percentage Interests in such Credit Obligations, except as
otherwise provided in this Agreement (including with respect to
Competitive Auction Facility Loans). Under no circumstances shall any
Lender be required to produce or present its Notes as evidence of its
interests in the Credit Obligations in any action or proceeding
relating to the Credit Obligations.
. In the event that any Lender fails to reimburse the New
York Managing Agent pursuant to Section 10.5.1 for the Percentage
Interest (or Competitive Auction Facility Loan) of such Lender (a
"Delinquent Lender") in any credit advanced by the New York Managing
Agent pursuant hereto, overdue amounts (the "Delinquent Payment") due
from the Delinquent Lender to the New York Managing Agent shall bear
interest, payable by the Delinquent Lender on demand, at a per annum
rate equal to (a) the Federal Funds Rate for the first three days
overdue and (b) the sum of 2% plus the Federal Funds Rate for any
longer period. Such interest shall be payable to the New York Managing
Agent for its own account for the period commencing on the date of the
Delinquent Payment and ending on the date the Delinquent Lender
reimburses the New York Managing Agent on account of the Delinquent
Payment and the accrued interest thereon (the "Delinquency Period"),
whether pursuant to the assignments referred to below or otherwise.
Upon notice by the New York Managing Agent, the Company will pay to the
New York Managing Agent the principal (but not the interest) portion of
the Delinquent Payment. During the Delinquency Period, in order to make
reimbursements for the Delinquent Payment and accrued interest thereon,
the Delinquent Lender shall be deemed to have assigned to the New York
Managing Agent all interest, Facility Fees and other payments made by
the Company under Section 3 that would have thereafter otherwise been
payable under the Credit Documents to the Delinquent Lender. During any
other period in which any Lender is not performing its obligations to
extend credit under Section 2 (a "Nonperforming Lender"), the
Nonperforming Lender shall be deemed to have assigned to each Lender
that is not a Nonperforming Lender (a "Performing Lender") all
principal and other payments made by the Company under Section 4 that
would have thereafter otherwise been payable under the Credit Documents
to the Nonperforming Lender. The New York Managing Agent shall credit a
portion of such payments to each Performing Lender in an amount equal
to the Percentage Interest of such Performing Lender divided by one
minus the Percentage Interest of the Nonperforming Lender until the
respective portions of the Revolving Loan owed to all the Lenders are
the same as the Percentage Interests of the Lenders immediately prior
to the failure of the Nonperforming Lender to perform its obligations
under Section 2. The foregoing provisions shall be in addition to any
other remedies the New York Managing Agent, the Performing Lenders or
the Company may have under law or equity against the Delinquent Lender
as a result of the Delinquent Payment or against the Nonperforming
Lender as a result of its failure to perform its obligations under
Section 2.
Each Lender agrees that (a) if by exercising any right of set-off or
counterclaim or otherwise, it shall receive payment of (i) a proportion of the
aggregate amount due with respect to its Percentage Interest in the Revolving
Loan which is greater than (ii) the proportion received by any other Lender in
respect of the aggregate amount due with respect to such other Lender's
Percentage Interest in the Revolving Loan and (b) if such inequality shall
continue for more than 10 days, the Lender receiving such proportionately
greater payment shall purchase participations in the Percentage Interests in the
Revolving Loan held by the other Lenders, and such other adjustments shall be
made from time to time (including rescission of such purchases of participations
in the event the unequal payment originally received is recovered from such
Lender through bankruptcy proceedings or otherwise), as may be required so that
all such payments of principal and interest with respect to the Revolving Loan
held by the Lenders shall be shared by the Lenders pro rata in accordance with
their respective Percentage Interests; provided, however, that this Section 10.6
shall not impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of Indebtedness of the Company other than the Company's Indebtedness
with respect to the Revolving Loan. Each Lender that grants a participation in
the Credit Obligations to a Credit Participant shall require as a condition to
the granting of such participation that such Credit Participant agree to share
payments received in respect of the Credit Obligations as provided in this
Section 10.6. The provisions of this Section 10.6 are for the sole and exclusive
benefit of the Lenders and no failure of any Lender to comply with the terms
hereof shall be available to the Company as a defense to the payment of the
Credit Obligations.
. Except as otherwise set forth herein, the Managing Agents may (and
upon the written request of the Required Lenders the Managing Agents shall) take
or refrain from taking any action under this Agreement or any other Credit
Document, including giving their written consent to any modification of or
amendment to and waiving in writing compliance with any covenant or condition in
this Agreement or any other Credit Document (other than an Interest Rate
Protection Agreement) or any Default or Event of Default, all of which actions
shall be binding upon all of the Lenders; provided, however, that:
(a) Except as provided below, without the written consent of
the Lenders owning at least a majority of the Percentage Interests
(other than Delinquent Lenders during the existence of a Delinquency
Period so long as such Delinquent Lender is treated the same as the
other Lenders with respect to any actions enumerated below), no written
modification of, amendment to, consent with respect to, waiver of
compliance with or waiver of a Default under, any of the Credit
Documents (other than an Interest Rate Protection Agreement) shall be
made.
(b) Without the written consent of the Managing Agents, no
written modification of or amendment to any of the Credit Documents
shall be made which changes the duties of or the benefits to the
Managing Agents or any other provision affecting the Managing Agents in
such capacities.
(c) Without the written consent of such Lenders as own 100%
of the Percentage Interests (other than Delinquent Lenders during the
existence of a Delinquency Period so long as such Delinquent Lender is
treated the same as the other Lenders with respect to any actions
enumerated below):
(i) No reduction shall be made in (A) the amount of
principal of the Loan or (B) the interest rate on the Loan.
(ii) No change shall be made in the stated, scheduled
time of payment of all or any portion of the Loan or
interest thereon or fees relating to any of the foregoing
payable to all of the Lenders and no waiver shall be made of
any Default under Section 8.1.1.
(iii) No increase shall be made in the amount, or
extension of the term, of the stated Commitments beyond that
provided for under Section 2.
(iv) No alteration shall be made of the Lenders'
rights of set-off contained in Section 8.2.4.
(v) No change shall be made in the definition of
"Required Lenders" in this Agreement.
(vi) No amendment to or modification of this Section
10.7(c) shall be made.
. Either Managing Agent may resign at any time by giving at least 60
days' prior written notice of its intention to do so to each other of the
Lenders and the Company. Upon any such resignation, the remaining Managing Agent
shall automatically become agent with all the rights and responsibilities
formerly held by both Managing Agents; provided, that if at such time there
shall be only one Managing Agent or both Managing Agents shall be resigning
simultaneously, the Required Lenders shall appoint a successor Managing Agent
satisfactory to the Company and the resignation of the retiring Managing Agent
shall take effect upon such appointment. If in a case to which the proviso to
the preceding sentence shall apply, no successor Managing Agent shall have been
so appointed and shall have accepted such appointment within 30 days after the
retiring Managing Agent's notice of resignation, then the retiring Managing
Agent may with the consent of the Company, which shall not unreasonably be
withheld, appoint a successor Managing Agent which shall be a bank or trust
company organized under the laws of the United States of America or any state
thereof and having a combined capital surplus and undivided profit of not less
than $100,000,000; provided, that any successor Managing Agent appointed under
this sentence may be removed upon the written request of the Required Lenders,
which request shall also appoint a successor Managing Agent satisfactory to the
Company. Upon the acceptance of any appointment as agent hereunder by a
remaining Managing Agent, such successor agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Managing Agent, and the retiring Managing Agent shall be discharged from all
further duties and obligations under this Agreement. After any retiring Managing
Agent's resignation hereunder as Managing Agent, the provisions of this
Agreement shall continue to inure to the benefit of such Managing Agent as to
any actions taken or omitted to be taken by it while it was Managing Agent under
this Agreement.
.0.9. Concerning the Managing Agents
. The Managing Agents and their officers, directors,
employees and agents shall be under no liability to any of the Lenders
or to any future holder of any interest in the Credit Obligations for
any action or failure to act taken or suffered in good faith, and any
action or failure to act in accordance with an opinion of its counsel
shall conclusively be deemed to be in good faith. The Managing Agents
shall in all cases be entitled to rely, and shall be fully protected in
relying, on instructions given to the Managing Agents by the required
holders of Credit Obligations as provided in this Agreement.
The Managing Agents shall have and may exercise such
powers as are specifically delegated to the Managing Agents under this
Agreement or any other Credit Document together with all other powers
incidental thereto. The Managing Agents shall have no implied duties to
any Person or any obligation to take any action under this Agreement or
any other Credit Document except for action specifically provided for
in this Agreement or any other Credit Document to be taken by the
Managing Agents. Before taking any action under this Agreement or any
other Credit Document, each Managing Agent may request an appropriate
specific indemnity satisfactory to it from each Lender in addition to
the general indemnity provided for in Section 10.12. Until such
Managing Agent has received such specific indemnity, such Managing
Agent shall not be obligated to take (although it may in its sole
discretion take) any such action under this Agreement or any other
Credit Document. Each Lender confirms that the Managing Agents do not
have a fiduciary relationship to it under the Credit Documents. Each of
the Company and its Subsidiaries party hereto confirms that neither the
Managing Agents nor any other Lender has a fiduciary relationship to it
under the Credit Documents.
Neither Managing Agent shall be responsible to any Lender
or any future holder of any interest in the Credit Obligations (a) for
the legality, validity, enforceability or effectiveness of this
Agreement or any other Credit Document, (b) for any recitals, reports,
representations, warranties or statements contained in or made in
connection with this Agreement or any other Credit Document, (c) for
the existence or value of any assets included in any security for the
Credit Obligations, or (d) unless such Managing Agent shall have failed
to comply with Section 10.9.1, for the perfection of any security for
the Credit Obligations.
. Neither Managing Agent shall be obligated to ascertain or
inquire as to the performance or observance of any of the terms of this
Agreement or any other Credit Document; and in connection with any
extension of credit under this Agreement or any other Credit Document,
the Managing Agents shall be fully protected in relying on a
certificate of the Company as to the fulfillment by the Company of any
conditions to such extension of credit.
. Each Managing Agent may execute any of its duties as
Managing Agent under this Agreement or any other Credit Document by or
through employees, agents and attorneys-in-fact and shall not be
responsible to any of the Lenders or the Company for the default or
misconduct of any such agents or attorneys-in-fact selected by such
Managing Agent acting in good faith. Such Managing Agent shall be
entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder or under any other
Credit Document.
. Each Managing Agent shall be entitled to rely, and shall
be fully protected in relying, upon any affidavit, certificate,
cablegram, consent, instrument, letter, notice, order, document,
statement, telecopy, telegram, telex or teletype message or writing
reasonably believed in good faith by such Managing Agent to be genuine
and correct and to have been signed, sent or made by the Person in
question, including any telephonic or oral statement made by such
Person, and, with respect to legal matters, upon an opinion or the
advice of counsel selected by such Managing Agent.
. Each of the Lenders severally agrees to reimburse the
Managing Agents, in the amount of such Lender's Percentage Interest,
for any reasonable expenses not reimbursed by the Company (without
limiting the obligation of the Company to make such reimbursement): (a)
for which the Managing Agents are entitled to reimbursement by the
Company under this Agreement or any other Credit Document, and (b)
after the occurrence of a Default, for any other reasonable expenses
incurred by the Managing Agents on the Lenders' behalf in connection
with the enforcement of the Lenders' rights under this Agreement or any
other Credit Document; provided, however, that a Managing Agent shall
not be reimbursed for any such expenses arising as a result of its
gross negligence or willful misconduct.
. With respect to any credit extended by them hereunder, BankBoston and
Bank of New York each shall have the same rights, obligations and powers
hereunder as any other Lender and may exercise such rights and powers as though
each were not a Managing Agent, and unless the context otherwise specifies,
BankBoston and Bank of New York shall each be treated in its individual capacity
as though it were not a Managing Agent hereunder. Without limiting the
generality of the foregoing, the Percentage Interests of BankBoston and Bank of
New York shall be included in any computations of Percentage Interests.
BankBoston and Bank of New York and their Affiliates may accept deposits from,
lend money to, act as trustee for and generally engage in any kind of banking or
trust business with the Company, any of its Subsidiaries or any Affiliate of any
of them and any Person who may do business with or own an equity interest in the
Company, any of its Subsidiaries or any Affiliate of any of them, all as if
BankBoston and Bank of New York were not the Managing Agents and without any
duty to account therefor to the other Lenders.
. Each of the Lenders acknowledges that it has independently and
without reliance upon the Managing Agents, based on the financial statements and
other documents referred to in Section 7.2, on the other representations and
warranties contained herein and on such other information with respect to the
Company and its Subsidiaries as such Lender deemed appropriate, made such
Lender's own credit analysis and decision to enter into this Agreement and to
make the extensions of credit provided for hereunder. Each Lender represents to
the Managing Agents that such Lender will continue to make its own independent
credit and other decisions in taking or not taking action under this Agreement
or any other Credit Document. Each Lender expressly acknowledges that neither
the Managing Agents nor any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
such Lender, and no act by any Managing Agent taken under this Agreement or any
other Credit Document, including any review of the affairs of the Company and
its Subsidiaries, shall be deemed to constitute any representation or warranty
by the Managing Agents. Except for notices, reports and other documents
expressly required to be furnished to each Lender by the Managing Agents under
this Agreement or any other Credit Document, the Managing Agents shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition, financial
or otherwise, or creditworthiness of the Company or any Subsidiary which may
come into the possession of the Managing Agents or any of their officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
. The holders of the Credit Obligations shall indemnify each Managing
Agent and its officers, directors, employees and agents (to the extent not
reimbursed by the Company and without limiting the obligation of the Company to
do so), pro rata in accordance with their respective Percentage Interests, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted against
either Managing Agent or such Persons relating to or arising out of this
Agreement, any other Credit Document, the transactions contemplated hereby or
thereby, or any action taken or omitted by either Managing Agent in connection
with any of the foregoing; provided, however, that the foregoing shall not
extend to actions or omissions which are taken by either Managing Agent with
gross negligence or willful misconduct.
. Any reference in this Agreement or any other Credit Document to any of the
parties hereto shall be deemed to include the successors and assigns of such
party, and all covenants and agreements by or on behalf of the Company, the
Managing Agents or the Lenders that are contained in this Agreement or any other
Credit Document shall bind and inure to the benefit of their respective
successors and assigns; provided, however, that (a) the Company and its
Subsidiaries may not assign their rights or obligations under this Agreement or
any other Credit Document except for mergers or liquidations permitted by
Section 6.10, and (b) the Lenders shall be not entitled to assign their
respective Percentage Interests in the credits extended hereunder or their
Commitments except as set forth below in this Section 11.
.1.1. Assignments by Lenders
. Each Lender may (a) without the consent of the Managing
Agents or the Company if the proposed assignee is a Federal Reserve
Bank or is an Affiliate of any Lender or (b) otherwise with the
consents of the Managing Agents and (so long as no Event of Default
exists) the Company (which consents will not be unreasonably withheld),
in compliance with applicable laws in connection with such assignment,
assign to one or more commercial banks or other financial institutions
(each, an "Assignee") all or a portion of its interests, rights and
obligations under this Agreement and the other Credit Documents,
including all or a portion of its Commitment, the portion of the Loan
at the time owing to it and the Notes held by it ; provided, however,
that:
(i) the aggregate amount of the portion of the Loan
owing to the assigning Lender subject to each such
assignment to any Assignee other than another Lender
(determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the New York
Managing Agent) shall be not less than $5,000,000 and in
integral multiples of $1,000,000 in excess thereof; and
(ii) the parties to each such assignment shall
execute and deliver to the New York Managing Agent an
Assignment and Acceptance (the "Assignment and Acceptance")
substantially in the form of Exhibit 11.1.1, together with
the Note subject to such assignment and a processing and
recordation fee of $2,500 payable on a pro rata basis to the
Managing Agents by the assigning Lender and the Assignee.
Upon acceptance and recording pursuant to Section 11.1.4, from and
after the effective date specified in each Assignment and Acceptance
(which effective date shall be at least five Banking Days after the
execution thereof unless waived by the Managing Agents):
(A) the Assignee shall be a party hereto and, to the
extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender under
this Agreement and
(B) the assigning Lender shall, to the extent provided in
such assignment, be released from its obligations
under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 3.3.4, 3.5 and
9, as well as to any fees accrued for its account
hereunder and not yet paid).
. By executing and delivering an Assignment and Acceptance,
the assigning Lender and Assignee shall be deemed to confirm to and
agree with each other and the other parties hereto as follows:
(a) other than the representation and warranty that it is
the legal and beneficial owner of the interest being assigned thereby
free and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
any other Credit Document or any other instrument or document furnished
pursuant hereto;
(b) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Company and its Subsidiaries or the performance or
observance by the Company or any of its Subsidiaries of any of its
obligations under this Agreement, any other Credit Document or any
other instrument or document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy of
this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 7.2 or Section 6.4 and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such Assignee will independently and without reliance
upon the Managing Agents, such assigning Lender or any other Lender,
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement;
(e) such Assignee appoints and authorizes the Managing
Agents to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Managing Agents by
the terms hereof, together with such powers as are reasonably
incidental thereto; and
(f) such Assignee agrees that it will perform in accordance
with the terms of this Agreement all the obligations which are required
to be performed by it as a Lender.
. The New York Managing Agent shall maintain at the New York
Office a register (the "Register") for the recordation of (a) the names
and addresses of the Lenders and the Assignees which assume rights and
obligations pursuant to an assignment under Section 11.1.1, (b) the
Percentage Interest of each such Lender as set forth in Exhibit 10.1
and (c) the amount of the Loan owing to each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Managing Agents and the Lenders
may treat each Person whose name is registered therein for all purposes
as a party to this Agreement. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
. Upon its receipt of a completed Assignment and Acceptance
executed by an assigning Lender and an Assignee together with the Note
subject to such assignment, the processing and recordation fee referred
to in Section 11.1.1 and (if required under clause (b) of Section
11.1.1) the written consent of the Company, the New York Managing Agent
shall (a) accept such Assignment and Acceptance, (b) record the
information contained therein in the Register and (c) give prompt
notice thereof to the Company. Within five Banking Days after receipt
of notice, the Company, at its own expense, shall execute and deliver
to the New York Managing Agent, in exchange for the surrendered Note, a
new Note to the order of such Assignee in a principal amount equal to
the applicable Commitment and Loan assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a
Commitment and Loan, a new Note to the order of such assigning Lender
in a principal amount equal to the applicable Commitment and Loan
retained by it. Such new Note shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note, and
shall be dated the date of the surrendered Note which it replaces.
. Notwithstanding the foregoing provisions of this Section
11, any Lender may at any time pledge or assign all or any portion of
such Lender's rights under this Agreement and the other Credit
Documents to a Federal Reserve Bank; provided, however, that no such
pledge or assignment shall release such Lender from such Lender's
obligations hereunder or under any other Credit Document.
. The Company and its Subsidiaries shall sign such documents
and take such other actions from time to time reasonably requested by
an Assignee to enable it to share in the benefits of the rights created
by the Credit Documents.
. Each Lender may, without the consent of the Company or the Managing
Agents, in compliance with applicable laws in connection with such
participation, sell to one or more commercial banks or other financial
institutions (each a "Credit Participant") participations in all or a portion of
its interests, rights and obligations under this Agreement and the other Credit
Documents (including all or a portion of its Commitment, the Loan and the Notes
held by it); provided, however, that:
(a) such Lender's obligations under this Agreement shall
remain unchanged;
(b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the Credit Participant shall be entitled to the benefit
of the cost protection provisions contained in Sections 3.3.4, 3.5 and
9, but shall not be entitled to receive any greater payment thereunder
than the selling Lender would have been entitled to receive with
respect to the interest so sold if such interest had not been sold; and
(d) the Company, the Managing Agents and the other Lenders
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right as one of the
Lenders to vote with respect to the enforcement of the obligations of
the Company relating to the Loan and the approval of any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications, consents or waivers described in clause (c)
of the proviso to Section 10.7).
The Company agrees, to the fullest extent permitted by applicable law, that any
Credit Participant and any Lender purchasing a participation from another Lender
pursuant to Section 11.2 may exercise all rights of payment (including the right
of set-off), with respect to its participation as fully as if such Credit
Participant or such Lender were the direct creditor of the Company and a Lender
hereunder in the amount of such participation.
. In the event that any Lender or to the extent applicable, any Credit
Participant (in each case, an "Affected Lender"):
(a) fails to perform its obligations to fund any portion of
the Revolving Loan on any Closing Date when required to do so by the
terms of the Credit Documents, or fails to provide its portion of any
Eurodollar Pricing Option pursuant to Section 3.3.1 or on account of a
Legal Requirement as contemplated by Section 3.3.5;
(b) demands payment under the provisions of Section 3.5 in
an amount the Company deems materially in excess of the amounts with
respect thereto demanded by the other Lenders;
(c) is required to but fails to deliver on a timely basis to
the Company and the New York Managing Agent the forms required of
foreign Lenders under Section 13 hereof;
(d) refuses to consent to a proposed extension of a Final
Maturity Date or a Competitive Auction Facility Loan Maturity Date that
is consented to by the other Lenders; or
(e) refuses to consent to a proposed amendment,
modification, waiver or other action requiring consent of the holders
of 100% of the Percentage Interests under Section 10.7(b) that is
consented to by the other Lenders;
then, so long as no Event of Default exists, the Company shall have the right to
seek a replacement lender which is reasonably satisfactory to the Managing
Agents (the "Replacement Lender"). The Replacement Lender shall purchase the
interests of the Affected Lender in the Loan and its Commitment and shall assume
the obligations of the Affected Lender hereunder and under the other Credit
Documents upon execution by the Replacement Lender of an Assignment and
Acceptance and the tender by it to the Affected Lender of a purchase price
agreed between it and the Affected Lender (or, if they are unable to agree, a
purchase price in the amount of the Affected Lender's Percentage Interest in the
Revolving Loan or appropriate credit support for contingent amounts included
therein, and all other outstanding Credit Obligations then owed to the Affected
Lender). No assignment fee pursuant to Section 11.1.1(ii) shall be required in
connection with such assignment. Such assignment by the Affected Lender shall be
deemed an early termination of any Eurodollar Pricing Option to the extent of
the Affected Lender's portion thereof, and the Company will pay to the Affected
Lender any resulting amounts due under Section 3.3.4. Upon consummation of such
assignment, the Replacement Lender shall become party to this Agreement as a
signatory hereto and shall have all the rights and obligations of the Affected
Lender under this Agreement and the other Credit Documents with a Percentage
Interest equal to the Percentage Interest of the Affected Lender, the Affected
Lender shall be released from its obligations hereunder and under the other
Credit Documents, and no further consent or action by any party shall be
required. Upon the consummation of such assignment, the Company, the Managing
Agents and the Affected Lender shall make appropriate arrangements so that a new
Revolving Note is issued to the Replacement Lender if it has acquired a portion
of the Revolving Loan and, if the Replacement Lender so requests, a new
Competitive Auction Facility Note is issued to the Replacement Lender if it has
acquired a portion of the Competitive Auction Facility Loan. The Company shall
sign such documents and take such other actions reasonably requested by the
Replacement Lender to enable it to share in the benefits of the rights created
by the Credit Documents. Until the consummation of an assignment in accordance
with the foregoing provisions of this Section 11.3, the Company shall continue
to pay to the Affected Lender any Credit Obligations as they become due and
payable.
. Each Lender will make no disclosure of confidential information furnished to
it by the Company or any of its Subsidiaries unless such information shall have
become public through no breach of such Lender's confidentiality obligation
under this Section 12, except:
(a) in connection with operations under or the enforcement
of this Agreement or any other Credit Document to Persons who have a
reasonable need to be furnished such confidential information and who
agree to comply with the restrictions contained in this Section 12 with
respect to such information;
(b) pursuant to any statutory or regulatory requirement or
any mandatory court order, subpoena or other legal process;
(c) to any parent or corporate Affiliate of such Lender or
to any Credit Participant, proposed Credit Participant or proposed
Assignee; provided, however, that any such Person shall agree to comply
with the restrictions set forth in this Section 12 with respect to such
information;
(d) to its independent counsel, auditors and other
professional advisors with an instruction to such Person to keep such
information confidential; and
(e) with the prior written consent of the Company, to any
other Person.
. If any Lender is not incorporated or organized under the laws of the United
States of America or a state thereof, such Lender shall deliver to the Company
and the New York Managing Agent the following:
(a) Two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor form, as the case may
be, certifying in each case that such Person is entitled to receive
payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes; and
(b) A duly completed Internal Revenue Service Form W-8 or
W-9 or successor form, as the case may be, to establish an exemption
from United States backup withholding tax.
Each such Lender that delivers to the Company and the New York Managing
Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant to this Section 13
further undertakes to deliver to the Company and the New York Managing Agent two
further copies of Form 1001 or 4224 and Form W-8 or W-9, or successor applicable
form, or other manner of certification, as the case may be, on or before the
date that any such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form previously delivered by it
to the Company and the New York Managing Agent. Such Forms 1001 or 4224 shall
certify that such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes. The
foregoing documents need not be delivered in the event any change in treaty, law
or regulation or official interpretation thereof has occurred which renders all
such forms inapplicable or which would prevent such Lender from delivering any
such form with respect to it, or such Lender advises the Company that it is not
capable of receiving payments without any deduction or withholding of United
States federal income tax and, in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax. Until such time as the
Company and the New York Managing Agent have received such forms indicating that
payments hereunder are not subject to United States withholding tax or are
subject to such tax at a rate reduced by an applicable tax treaty, the Company
shall withhold taxes from such payments at the applicable statutory rate without
regard to Section 3.5.
. Except as otherwise specified in this Agreement or any other Credit Document,
any notice required to be given pursuant to this Agreement or any other Credit
Document shall be given in writing. Any notice, consent, approval, demand or
other communication in connection with this Agreement or any other Credit
Document shall be deemed to be given if given in writing (including telex,
telecopy or similar teletransmission) addressed as provided below (or to the
addressee at such other address as the addressee shall have specified by notice
actually received by the addressor), and if either (a) actually delivered in
fully legible form to such address (evidenced in the case of a telex by receipt
of the correct answer back) or (b) in the case of a letter, unless actual
receipt of the notice is required by any Credit Document five days shall have
elapsed after the same shall have been deposited in the United States mails,
with first-class postage prepaid and registered or certified.
If to the Company or any of its Subsidiaries, to it at its address set
forth on the signature page of this Agreement, to the attention of the chief
financial officer.
If to any Lender or either Managing Agent, to it at its address set
forth on the signature pages of this Agreement or in the Register, with a copy
to each Managing Agent.
. No course of dealing between any Lender or either Managing Agent, on one hand,
and the Company, on the other hand, shall operate as a waiver of any of the
Lenders' or Managing Agents' rights under this Agreement or any other Credit
Document or with respect to the Credit Obligations. The Company acknowledges
that if the Lenders or the Managing Agents, without being required to do so by
this Agreement or any other Credit Document, give any notice or information to,
or obtain any consent from the Company, the Lenders and the Managing Agents
shall not by implication have amended, waived or modified any provision of this
Agreement or any other Credit Document, or created any duty to give any such
notice or information or to obtain any such consent on any future occasion. No
delay or omission on the part of any Lender or any Managing Agent in exercising
any right under this Agreement or any other Credit Document or with respect to
the Credit Obligations shall operate as a waiver of such right or any other
right hereunder or thereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future occasion.
No waiver, consent or amendment with respect to this Agreement or any other
Credit Document shall be binding unless it is in writing and signed by the
Managing Agents or the Required Lenders.
. The parties have participated jointly in the negotiation and in the
determination of the wording of this Agreement and the other Credit Documents
with counsel sophisticated in financing transactions. In the event an ambiguity
or question of intent or interpretation arises, this Agreement and the other
Credit Documents shall be construed as if drafted jointly by the parties and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement and the other
Credit Documents.
. When all Credit Obligations have been paid, performed and reasonably
determined by the Lenders to have been indefeasibly paid in full, and if at that
time no Lender continues to be committed to extend any credit to the Company
hereunder or under any other Credit Document, this Agreement and the other
Credit Documents shall terminate. Thereupon, on the Company's demand and at its
cost and expense, the Managing Agents shall execute proper instruments,
acknowledging satisfaction of and discharging this Agreement and the other
Credit Documents; provided, however, that Sections 3.3.4, 3.5, 9, 10.9.7, 10.12,
12, 18 and 19 shall survive the termination of this Agreement.
. The Company: Service of Process
(a) Irrevocably submits to the nonexclusive jurisdiction of
the state courts of The Commonwealth of Massachusetts and to the
nonexclusive jurisdiction of the United States District Court for the
District of Massachusetts (to the extent such District Court has
subject-matter jurisdiction) for the purpose of any suit, action or
other proceeding arising out of or based upon this Agreement or any
other Credit Document or the subject matter hereof or thereof.
(b) Waives to the extent not prohibited by applicable law
that cannot be waived, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such proceeding brought in any of the
above-named courts, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of such proceeding is improper, or
that this Agreement or any other Credit Document, or the subject matter
hereof or thereof, may not be enforced in or by such court.
The Company consents to service of process in any such proceeding in any manner
at the time permitted by Chapter 223A of the General Laws of The Commonwealth of
Massachusetts and agrees that service of process by registered or certified
mail, return receipt requested, at its address specified in or pursuant to
Section 14 is reasonably calculated to give actual notice.
. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH OF
THE COMPANY, THE MANAGING AGENTS AND THE LENDERS WAIVES, AND COVENANTS THAT IT
WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING
OUT OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE SUBJECT MATTER HEREOF
OR THEREOF OR ANY CREDIT OBLIGATION OR IN ANY WAY CONNECTED WITH THE DEALINGS OF
THE LENDERS, THE MANAGING AGENTS, OR THE COMPANY IN CONNECTION WITH ANY OF THE
ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN
CONTRACT, TORT OR OTHERWISE. The Company acknowledges that it has been informed
by the Managing Agents that the provisions of this Section 19 constitute a
material inducement upon which each of the Lenders has relied and will rely in
entering into this Agreement and any other Credit Document, and that it has
reviewed the provisions of this Section 19 with its counsel. Any Lender, any
Managing Agent, or the Company may file an original counterpart or a copy of
this Section 19 with any court as written evidence of the consent of the
Company, the Managing Agents and the Lenders to the waiver of their rights to
trial by jury.
. All covenants, agreements, representations and warranties made in this
Agreement or any other Credit Document or in certificates delivered pursuant
hereto or thereto shall be deemed to have been relied on by each Lender,
notwithstanding any investigation made by any Lender on its behalf, and shall
survive the execution and delivery to the Lenders hereof and thereof. The
invalidity or unenforceability of any provision hereof shall not affect the
validity or enforceability of any other provision hereof. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof. This Agreement and the other Credit Documents
(including any related fee agreements with the Managing Agents or the Lenders)
constitute the entire understanding of the parties with respect to the subject
matter hereof and thereof and with respect to such subject matter supersede all
prior and contemporaneous understandings and agreements, whether written or
oral. This Agreement may be executed in any number of counterparts which
together shall constitute one instrument. This Agreement shall be governed by
and construed in accordance with the laws of The Commonwealth of Massachusetts
applicable to contracts made and to be performed entirely within The
Commonwealth of Massachusetts.
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
CENTRAL MAINE POWER COMPANY
By ______________________________________
Title:
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BANKBOSTON, N.A.,
By ______________________________________
Authorized Officer
BankBoston, N.A.
Energy & Utilities Division
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Telex: 940581
THE BANK OF NEW YORK
By _____________________________________
Authorized Officer
The Bank of New York
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FLEET BANK OF MAINE
By _____________________________________
Authorized Officer
Fleet Bank of ▇▇▇▇▇
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UNION BANK OF CALIFORNIA, N.A.,
By ______________________________________
Authorized Officer
Union Bank of California, N.A.,
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EXHIBIT 2.2.4
FORM OF 364-DAY REVOLVING NOTE
$_________________ __________________, 1998
FOR VALUE RECEIVED, the undersigned Central Maine Power Company, a
Maine corporation (the "Company"), hereby promises to pay to
___________________________ (the "Lender") or order, in accordance with the
terms of the Credit Agreement hereinafter referred to, to the extent not sooner
paid, on the 364-Day Final Maturity Date, ____________________________ DOLLARS
($_____________) or such amount as may be advanced by the payee hereof under the
364-Day Revolving Loan with daily interest from the date hereof, computed as
provided in such Credit Agreement, on the aggregate principal amount of such
advances from time to time unpaid at the per annum rate applicable to such
unpaid principal amount as provided in such Credit Agreement and to pay interest
on overdue principal and, to the extent not prohibited by applicable law, on
overdue installments of interest, fees and any other overdue amounts at the rate
specified in such Credit Agreement, all such interest being payable at the times
specified in such Credit Agreement, except that all accrued interest shall be
paid at the stated or accelerated maturity hereof or upon the prepayment in full
hereof.
Payments hereunder shall be made to The Bank of New York, as New York
Managing Agent for the payee hereof, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
This Note evidences borrowings under and is entitled to the benefits of
and is subject to the provisions of the Credit Agreement dated as of December
15, 1998, as from time to time in effect, among the Company, The Bank of New
York, for itself and as New York Managing Agent, BankBoston, N.A., for itself
and as Boston Managing Agent, and certain other Lenders from time to time party
thereto (the "Credit Agreement"). The principal of this Note is prepayable in
the amounts and under the circumstances set forth in the Credit Agreement, and
may be prepaid in whole or from time to time in part, all as set forth in the
Credit Agreement. Terms defined in the Credit Agreement and not otherwise
defined herein are used herein with the meanings so defined.
In case an Event of Default (as defined in the Credit Agreement) shall
occur, the entire principal amount of this Note may become or be declared due
and payable in the manner and with the effect provided in the Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the The Commonwealth of Massachusetts applicable to contracts made and
to be performed entirely within The Commonwealth of Massachusetts.
The parties hereto, including the Company and all guarantors and
endorsers, hereby waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance and
enforcement of this Note, except as specifically otherwise provided in the
Credit Agreement, and assent to extensions of time of payment, or forbearance or
other indulgence without notice.
CENTRAL MAINE POWER COMPANY
By__________________________________
Title:
EXHIBIT 2.3.1
COMPETITIVE AUCTION FACILITY LOAN BID REQUEST
Date:
To: The Bank of New York, as New York Managing Agent under the Credit Agreement
(as defined below)
Re: Credit Agreement dated as of December 15, 1998, as from time to time in
effect (the "Credit Agreement"), among Central Maine Power Company and
certain Lenders for which The Bank of New York and BankBoston, N.A., are
acting as Managing Agents.
The undersigned hereby gives notice pursuant to Section 2.3.1 of the
Credit Agreement that the undersigned requests bids from the Lenders with
respect to the following Competitive Auction Facility Loan(s):
Competitive Auction Facility Loan Closing
Date1 (Date of Borrowing): ____________________
Designation of Competitive Auction Facility Loan(s)
(either Three-Year or 364-Day): __________________
Principal Amount(s)2 Competitive Auction3 Competitive Auction4
of Requested Competitive Facility Loan Interest Facility Loan
Auction Facility Loan(s) Payment Dates (if any) Maturity Date(s)
Such Competitive Auction Facility Loan bids should offer a Competitive Auction
Facility Rate.
The sum of the aggregate principal amount of Three-Year Competitive
Auction Facility Loans outstanding, after giving effect to the Three-Year
Competitive Auction Facility Loans requested hereby, plus the Three-Year
Revolving Loan will be $________.5
The sum of the aggregate principal amount of 364-Day Competitive
Auction Facility Loans outstanding, after giving effect to the 364-Day
Competitive Auction Facility Loans requested hereby, plus the 364-Day Revolving
Loan will be $________.6
Aggregate number of Eurodollar Pricing Options and Competitive Auction
Facility Loans outstanding, after giving effect to the Competitive Auction
Facility Loans requested hereby.7 __________
Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings so defined.
Very truly yours,
CENTRAL MAINE POWER COMPANY
By_________________________________
Title:
EXHIBIT 2.3.2
INVITATION TO BID ON COMPETITIVE AUCTION FACILITY LOAN
Date:
To: Lenders Participating in the Competitive Auction Facility Loan Bid Auction
under the Credit Agreement
Re: Invitation to Bid on Competitive Auction Facility Loan
Pursuant to Section 2.3.2 of the Credit Agreement dated as of December
15, 1998, as from time to time in effect (the "Credit Agreement"), among Central
Maine Power Company and certain Lenders for which The Bank of New York and
BankBoston, N.A., are acting as Managing Agents, we are pleased on behalf of
Central Maine Power Company to invite you to submit bids with respect to the
following Competitive Auction Facility Loan(s):
Competitive Auction Facility Loan Closing
Date (Date of Borrowing): ____________________
Designation of Competitive Auction Facility Loan(s)
(either Three-Year or 364-Day): __________________
Principal Amount(s) Competitive Auction Competitive Auction
of Requested Competitive Facility Loan Interest Facility Loan
Auction Facility Loan(s) Payment Dates (if any) Maturity Date(s)
Such Competitive Auction Facility Loan bids should offer a Competitive Auction
Facility Rate.
Please respond to this invitation by no later than 10:00 a.m. (New York
time) on the Competitive Auction Facility Loan Closing Date.
Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings so defined.
Very truly yours,
THE BANK OF NEW YORK,
as New York Managing Agent
under the Credit Agreement
By____________________________________
Title:
EXHIBIT 2.3.3A
COMPETITIVE AUCTION FACILITY LOAN BID
Date:
The Bank of New York,
as New York Managing Agent
under the Credit Agreement
(as defined below)
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Attention: [insert]
Re: Central Maine Power Company
In response to your invitation on behalf of Central Maine Power Company
(the "Borrower") dated ____________________, the undersigned (the "Bidding
Lender") hereby submits the following Competitive Auction Facility Loan bid(s)
with respect to the following Competitive Auction Facility Loan(s):
1. Bidding Lender: ____________________
2. Person to contact at Bidding Lender: ____________________
3. Competitive Auction Facility Loan Closing
Date (Date of Borrowing): ____________________
4. Designation of Competitive Auction Facility Loan(s)
(either Three-Year or 364-Day): ____________________
5. The undersigned hereby offers to make to the Borrower, on the
Competitive Auction Facility Loan Closing Date specified above, the
following Competitive Auction Facility Loan(s):
Competitive Auction
Principal Amount(s)1 Facility Loan Competitive Auction
of Offered Competitive Interest Payment Facility Loan Competitive Auction2
Auction Facility Loan(s) Dates (if any) Maturity Date(s) Facility Rate(s)
The undersigned understands and agrees that the offer(s) set
forth above, subject to the satisfaction of the applicable conditions set
forth in the Credit Agreement dated as of December 15, 1998 as from time
to time in effect (the "Credit Agreement"), among Central Maine Power
Company and certain Lenders for which The Bank of New York and BankBoston,
N.A., are acting as Managing Agents, obligates the undersigned to make the
Competitive Auction Facility Loan(s) for which any offer(s) are accepted
in whole or in part by the Borrower.
Terms defined in the Credit Agreement and not otherwise defined
herein are used herein with the meanings so defined.
Very truly yours,
[NAME OF LENDER]
By_________________________________
Title:
EXHIBIT 2.3.3B
LIST OF COMPETITIVE AUCTION FACILITY LOAN BIDS
Date:
Central Maine Power Company
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Attention: Manager of Treasury Operations
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of December 15,
1998, as from time to time in effect (the "Credit Agreement"), among Central
Maine Power Company and certain Lenders for which The Bank of New York and
BankBoston, N.A., are acting as Managing Agents. Terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings so
defined.
Notice is hereby given that pursuant to Section 2.3.3 of the Credit
Agreement, the following Lenders have offered to make to Central Maine Power
Company on ____________________, the following Competitive Auction Facility
Loan(s) in the amount(s) and at the rate(s) specified below:
Lender(s): ____________________
Designation of Competitive Auction
Facility Loan(s) ____________________
Principal Amount(s) of Offered
Competitive Auction Facility Loan(s): $___________________
Competitive Auction Facility Loan
Interest Payment Dates (if any) ____________________
Competitive Auction Facility Loan
Maturity Date(s): ____________________
Competitive Auction Facility Rate(s): ____________________%
Very truly yours,
THE BANK OF NEW YORK,
as New York Managing Agent
under the Credit Agreement
By________________________________
Title:
EXHIBIT 2.3.4A
LIST OF ACCEPTANCES AND NON-ACCEPTANCES
OF COMPETITIVE AUCTION FACILITY LOAN BIDS
The Bank of New York,
as New York Managing Agent
under the Credit Agreement
(as defined below)
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Attention: [insert]
Ladies and Gentlemen:
Reference is made to (a) the Credit Agreement dated as of December 15,
1998, as from time to time in effect (the "Credit Agreement"), among Central
Maine Power Company (the "Company") and certain Lenders for which you are acting
as New York Managing Agent and (b) the bid notices (the "Bid Notices") received
from you on [insert applicable Competitive Auction Facility Loan Closing Date].
Terms defined in the Credit Agreement and not otherwise defined herein are used
herein with the meanings so defined.
[Pursuant to Section 2.3.4 of the Credit Agreement, the Company hereby
irrevocably accepts the offer(s) of the Lender(s) specified below to make the
following Competitive Auction Facility Loans:
Lender(s): ____________________
Competitive Auction Facility Loan
Closing Date: ____________________
Designation of Competitive Auction
Facility Loan(s) (either Three-Year
or 364-Day) ____________________
Principal Amount(s) of Offered
Competitive Auction Facility Loan(s): $____________________
Competitive Auction Facility Rate(s): ____________________%
Competitive Auction Facility Loan
Maturity Date(s): ____________________
Competitive Auction Facility Loan
Interest Payment Dates (if any): ____________________]
[repeat for each accepted bid]
[Except as provided above,] all offers to make Competitive Auction
Facility Loans described in the Bid Notices are hereby rejected.
Very truly yours,
CENTRAL MAINE POWER COMPANY
By_________________________________
Title:
EXHIBIT 2.3.4B
ACCEPTANCE OF COMPETITIVE AUCTION FACILITY LOAN BIDS
Date:
To: Lenders Participating in the Competitive Auction Facility Loan Bid Auction
under the Credit Agreement
Reference is made to the Credit Agreement dated as of December 15,
1998, as from time to time in effect (the "Credit Agreement"), among Central
Maine Power Company and certain Lenders for which The Bank of New York and
BankBoston, N.A., are acting as Managing Agents.
Pursuant to Section 2.3.4 of the Credit Agreement, notification has
been received from Central Maine Power Company that it has accepted the
following bids:
Lender(s): ____________________
Designation of Competitive Auction
Facility Loan(s) ____________________
Principal Amount(s) of Offered
Competitive Auction Facility Loan(s): $____________________
Competitive Auction Facility Loan
Interest Payment Dates (if any): ____________________
Competitive Auction Facility Loan
Maturity Date(s): ____________________
Competitive Auction Facility Rate(s): ____________________%
If your quote has been accepted, funds should be transferred to The
Bank of New York [insert transfer instructions] and should be immediately
available as of 2:30 p.m. (New York time) on _________________.
Following are the Competitive Auction Facility Loan bids which were submitted by
the Lenders in today's auction:
Lender(s): ____________________
Designation of Competitive Auction
Facility Loan(s) ____________________
Principal Amount(s) of Offered
Competitive Auction Facility Loan(s): $____________________
Competitive Auction Facility Loan
Interest Payment Dates (if any): ____________________
Competitive Auction Facility Loan
Maturity Date(s): ____________________
Competitive Auction Facility Rate(s): ____________________%
Very truly yours,
THE BANK OF NEW YORK,
as New York Managing Agent
under the Credit Agreement
By________________________________
Title:
EXHIBIT 2.3.4C
NON-ACCEPTANCE OF COMPETITIVE AUCTION FACILITY LOAN BIDS
Date:
To: Lenders Participating in the Competitive Auction Facility Loan Bid Auction
under the Credit Agreement
Reference is made to the Credit Agreement dated as of December 15,
1998, as from time to time in effect (the "Credit Agreement"), among Central
Maine Power Company and certain Lenders for which The Bank of New York and
BankBoston, N.A., are acting as Managing Agents.
Pursuant to Section 2.3.4 of the Credit Agreement, notification has
been received from the Company that it has not accepted any of the following
bids:
Lender(s): ____________________
Designation of Competitive Auction
Facility Loan(s) ____________________
Principal Amount(s) of Offered
Competitive Auction Facility Loan(s): $____________________
Competitive Auction Facility Loan
Interest Payment Dates (if any): ____________________
Competitive Auction Facility Loan
Maturity Date(s): ____________________
Competitive Auction Facility Rate(s): ____________________%
Following are the Competitive Auction Facility Loan bids which were
submitted by the Lenders in today's auction:
Lender(s): ____________________
Designation of Competitive Auction
Facility Loan(s) ____________________
Principal Amount(s) of Offered
Competitive Auction Facility Loan(s): $____________________
Competitive Auction Facility Loan
Interest Payment Dates (if any): ____________________
Competitive Auction Facility Loan
Maturity Date(s): ____________________
Competitive Auction Facility Rate(s): ____________________%
Very truly yours,
THE BANK OF NEW YORK,
as New York Managing Agent
under the Credit Agreement
By___________________________________
Title:
EXHIBIT 2.3.4D
NOTICE OF COMPETITIVE AUCTION FACILITY LOAN
Date:
Central Maine Power Company
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Manager of Treasury Operations
[Each Lender]
[Address]
Attention:
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of December 15,
1998, as from time to time in effect (the "Credit Agreement"), among Central
Maine Power Company and certain Lenders for which the undersigned is acting as
New York Managing Agent. Terms defined in the Credit Agreement and not otherwise
defined herein are used herein with the meanings so defined.
Pursuant to Section 2.3.4 of the Credit Agreement, the undersigned
hereby notifies you that the following Competitive Auction Facility Loan(s)
became effective on the date hereof:
Designation of Principal Amount of Competitive Auction
Competitive Auction Competitive Auction Facility Loan
Facility Loans Facility Loan(s) Maturity Date(s)
Very truly yours,
THE BANK OF NEW YORK,
as New York Managing Agent
under the Credit Agreement
By__________________________________
Title:
EXHIBIT 2.3.5
COMPETITIVE AUCTION FACILITY NOTE
No. ___ _______________, 199_
$_______________ New York, New York
FOR VALUE RECEIVED, the undersigned Central Maine Power Company, a
Maine corporation (the "Borrower"), hereby promises to pay to
______________________ (the "Holder") or order, on [insert Competitive Auction
Facility Loan Maturity Date], ___________________________________ DOLLARS
($_______________) or, if less, the aggregate unpaid Competitive Auction
Facility Loan made to the Borrower by the Holder, with daily interest from the
date hereof, computed as provided in the Credit Agreement referred to below, on
the principal amount of such Competitive Auction Facility Loan from time to time
unpaid at a rate per annum of [insert Competitive Auction Facility Rate] plus an
additional rate per annum on the occurrence and continuation of an Event of
Default, as provided for in the Credit Agreement. Accrued interest shall be
payable on [insert Competitive Auction Facility Loan Interest Payment Date, if
any] [and on] [insert Competitive Auction Facility Loan Maturity Date] except
that all accrued interest shall be paid at the accelerated maturity hereof or
upon the prepayment in full hereof.
Payments hereunder shall be made to The Bank of New York, as New York
Managing Agent for the payee hereof, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
This Note evidences a Competitive Auction Facility Loan under and is
entitled to the benefits and subject to the provisions of the Credit Agreement
dated as of December 15, 1998, as from time to time in effect (the "Credit
Agreement"), among Central Maine Power Company and certain Lenders for which The
Bank of New York and BankBoston, N.A., are acting as Managing Agents. The
principal of this Note may be due and payable in whole or in part prior to the
maturity date stated above and is subject to required prepayment in the amounts
and under the circumstances set forth in the Credit Agreement. Other than in
circumstances under which the Company is required under the Credit Agreement to
prepay, the Company may not prepay any principal amount outstanding under this
Note. This Note may not be assigned or otherwise transferred except in
accordance with the Credit Agreement.
In case an Event of Default (as defined in the Credit Agreement) shall
occur, the entire principal amount of this Note may become or be declared due
and payable in the manner and with the effect provided in the Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the The Commonwealth of Massachusetts applicable to contracts made and
to be performed entirely within The Commonwealth of Massachusetts.
The undersigned maker, and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance and enforcement of this
Note, except as specifically otherwise provided in the Credit Agreement, and
assent to extensions of time of payment or forbearance or other indulgence
without notice.
CENTRAL MAINE POWER COMPANY
By__________________________________
Title:
EXHIBIT 5.1.1
OFFICER'S CERTIFICATE
Pursuant to Section 5.1.1 of the Credit Agreement dated as of December
15, 1998 among Central Maine Power Company, a Maine corporation (the "Company"),
BankBoston, N.A., for itself and as Boston Managing Agent, The Bank of New York,
for itself and as New York Managing Agent, and certain other Lenders from time
to time party thereto (the "Credit Agreement"), the Company certifies that (i)
the representations and warranties contained in Section 7 of the Credit
Agreement are true and correct on and as of the date hereof with the same force
and effect as though originally made on and as of the date hereof (except as to
any representation or warranty which is limited to a specific earlier date) and
(ii) no Default exists on the date hereof.
Terms defined in the Credit Agreement and not otherwise defined herein
are used herein with the meanings so defined.
This certificate has been executed by a duly authorized Financial
Officer this ______ day of _______________, 199__.
CENTRAL MAINE POWER COMPANY
By__________________________________
Title:
EXHIBIT 7.2.2
Agreements pertaining to or evidencing Indebtedness outstanding on
December 15, 1998 which is disclosed in the Pre-Closing 1934 Act Reports.
EXHIBIT 7.3
(a) Liens.
Liens in effect on December 15, 1998, either disclosed in the
Pre-Closing 1934 Act Reports or immaterial to the Company.
(b) Financing Debt and Guarantees.
Financing Debt and Guarantees in effect on December 15, 1998, disclosed
in the Pre-Closing 1934 Act Reports.
(c) Indebtedness under Section 6.6.6.
Indebtedness outstanding on December 15, 1998, which is not otherwise
described in Section 6.6 of the Agreement, but which is disclosed in the
Pre-Closing 1934 Act Reports.
EXHIBIT 10.1
REVOLVING LOAN PERCENTAGE INTERESTS
The Percentage Interest of each Lender in the 364-Day Revolving Loan,
and the related Commitments, shall be computed based on the maximum principal
amounts for each Lender as follows:
Maximum Principal
Amount in 364-Day Percentage
Lender Revolving Loan Interest
The Bank of New York $7,000,000 28%
BankBoston, N.A. $7,000,000 28%
Fleet Bank of Maine $6,000,000 24%
Union Bank of California, N.A. $5,000,000 20%
TOTAL $25,000,000 100%
EXHIBIT 11.1.1
ASSIGNMENT AND ACCEPTANCE
This Agreement, dated as of ____________, 199_, is between
_______________, a Lender under the Credit Agreement referred to below (the
"Assignor"), and _______________ (the "Assignee").
For valuable consideration, the receipt of which is hereby
acknowledged, the Assignor agrees with the Assignee as follows:
1. Reference to Credit Agreement and Definitions. Reference is made to
the Credit Agreement dated as of December 15, 1998, as from time to time in
effect, among Central Maine Power Company, a Maine corporation (the "Company"),
BankBoston, N.A., for itself and as Boston Managing Agent, The Bank of New York,
for itself and as New York Managing Agent, and certain other Lenders from time
to time party thereto (the "Credit Agreement"). Terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings so
defined.
2. Assignment and Assumption. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor, a
__% interest in and to all the Assignor's interests, rights and obligations
under the Credit Agreement and the other Credit Documents as of the Assignment
Date (as defined below), including without limitation such percentage interest
in the Commitment of the Assignor on the Assignment Date and such percentage
interest in the Revolving Loan outstanding on the Assignment Date, together with
such percentage interest in all unpaid interest with respect to the Revolving
Loan and all fees arising pursuant to the Credit Agreement accrued to the
Assignment Date (but excluding any Competitive Auction Facility Loan currently
outstanding advanced by the Assignor). [If an assignment of a Competitive
Auction Facility Loan or portion thereof is to be made, add appropriate
language.]
3. Representations, Warranties, etc.
3.1. Assignor's Representations and Warranties. The Assignor:
(a) represents that as of the date hereof, its Commitment is
$____________ and the outstanding principal balance of its portion of
the Revolving Loan is $___________ with respect to the 364-Day
Revolving Loan and $___________ with respect to the Three-Year
Revolving Loan;
(b) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
the other Credit Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or
document furnished pursuant thereto, other than that it is the legal
and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; and
(c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company
and its Subsidiaries or the performance of any of the obligations of
the Company under the Credit Agreement, any of the Credit Documents or
any other instrument or document furnished pursuant hereto or thereto.
3.2. Assignee's Representations, Warranties and Agreements. The
Assignee:
(a) represents and warrants that it is legally authorized to
enter into this Agreement;
(b) confirms that it has received a copy of the Credit
Agreement and certain other Credit Documents it has requested, together
with copies of the most recent financial statements delivered pursuant
to Section 6.4 or 7.2 of the Credit Agreement and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Agreement;
(c) agrees that it will, independently and without reliance
upon the Managing Agents, Assignor or any other Person which has become
a Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement and the other
Credit Documents;
(d) agrees that it will be bound by the provisions of the
Credit Agreement and the other Credit Documents and will perform in
accordance with their terms all the obligations which are required to
be performed by it as a Lender; and
(e) agrees to appoint and authorize the Managing Agents to
take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Managing Agents by
the terms thereof, together with such powers as are reasonably
incidental thereto.
4. Assignment Date. The effective date of this Agreement shall be
____________, 199_ (the "Assignment Date").
5. Assignee Party to Credit Agreement; Assignor Release of Obligations.
From and after the Assignment Date, (a) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Agreement, have the rights
and obligations of a Lender thereunder and under the Credit Documents and (b)
the Assignor shall, to the extent provided in this Agreement, relinquish its
rights and be released from its obligations under the Credit Agreement and the
other Credit Documents.
6. Notices. All notices and other communications required to be given
or made to the Assignee under this Agreement, the Credit Agreement or any other
Credit Documents shall be given or made at the address of the Assignee set forth
on the signature page hereof or at such other address as the Assignee shall have
specified to the Assignor, the Managing Agents and the Company in writing.
7. Further Assurances. The parties hereto agree to execute and deliver
such other instruments and documents and to take such other actions as any party
hereto may reasonably request in connection with the transactions contemplated
by this Agreement.
8. General. This Agreement, the Credit Agreement and the other Credit
Documents constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and supersede all current and prior agreements and
understandings, whether written or oral. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term or
provision hereof. This Agreement may be executed in any number of counterparts,
which together shall constitute one instrument, and shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns,
including as such successors and assigns all holders of any Credit Obligation.
This Agreement shall be governed by and construed in accordance with the laws
(other than the conflict of laws rules) of the jurisdiction in which the
principal office of the Assignor is located.
Each of the Assignor and the Assignee has caused this Agreement to be
executed and delivered by its duly authorized officer under seal as of the date
first written above.
[ASSIGNOR]
By___________________________
Title:
[ASSIGNEE]
By_____________________________
Title:
[Street Address
City, State Zip Code]
Telecopy:
Telex:
The foregoing is hereby consented to:
BANKBOSTON, N.A., as Boston Managing Agent
By____________________________________
Title:
THE BANK OF NEW YORK, as New York Managing Agent
By____________________________________
Title:
CENTRAL MAINE POWER COMPANY
By____________________________________
Title:
--------
1 Must be the Banking Day following the applicable Request Date.
2 Aggregate amount must be a minimum of $1,000,000, and if larger, in
integral multiples of $500,000.
3 Must pay accrued and unpaid interest on the 90th day after the
Competitive Auction Facility Loan Closing Date if the Competitive Auction
Facility Loan Maturity Date is more than 90 days after the Competitive Auction
Facility Loan Closing Date.
4 Not earlier than seven days following the applicable Competitive Auction
Facility Loan Closing Date and not later than the earlier of (i) the 180th day
following the applicable Competitive Auction Facility Loan Closing Date and (ii)
the applicable Final Maturity Date.
5 Must not exceed the Maximum Amount of Three-Year Revolving Credit as
determined by Section 2.1.2 of the Credit Agreement.
6 Must not exceed the Maximum Amount of 364-Day Revolving Credit as
determined by Section 2.2.2 of the Credit Agreement.
7 Must not exceed 10.
1 Principal amount of bids may not exceed principal amount requested.
Bids must be for a minimum of $1,000,000, and if larger, in integral
multiples of $500,000.
2 Specify rate of interest per annum (each rounded to the nearest
1/100%).