Execution Copy
REVOLVING CREDIT AGREEMENT
by and among
COLONIAL GAS COMPANY
(the "Company"),
FLEET NATIONAL BANK, as Agent
(the "Agent"),
THE BANK OF NEW YORK, as co-agent
(the "Co-Agent")
and
THE BANK OF NEW YORK,
UNION BANK OF CALIFORNIA, N.A.,
CORESTATES BANK, N.A.,
FIRST UNION NATIONAL BANK
and
FLEET NATIONAL BANK
(collectively, the "Banks"),
$75,000,000
September 12, 1997
TABLE OF CONTENTS
Section Page
1. DEFINITIONS
2. THE REVOLVING CREDIT ADVANCES
2.1. The Revolving Credit Advances
2.2. Making the Advances
3. COMPETITIVE BID ADVANCES
3.1. Competitive Bid Borrowings
3.2. Interest on Competitive Bid Advances
3.3. Competitive Bid Notes
4. CONVERSION, INTEREST, PAYMENTS AND COSTS
4.1. Conversion of Advances
4.2. Interest
4.3. Overdue Principal and Interest
4.4. Limitation on Interest
4.5. Interest Period and Rate Determination and
Protection
4.6. Increased Costs, Etc.
4.7. Illegality or Impossibility
4.8. Payment on Any Day Other Than The Last Day of an
Interest Period
4.9. Prepayments
4.10. Payments and Computations
4.11. Payment on Non-Business Days
4.12. Sharing of Payments, Etc.
5. COMMITMENTS
5.1. Amount of Commitment
5.2. Extension of Commitments
5.3. Commitment Fees
5.4. Reduction and Termination by the Company
6. CONDITIONS OF FIRST LENDING
6.1. Documentation
6.2. Financial Statements
6.3. Representations and Warranties
6.4. Performance; No Default
6.5. Trust Credit Agreement
6.6. Proceedings and Documents
6.7. Notice of Borrowing
7. CONDITIONS OF SUBSEQUENT BORROWINGS
7.1. Representations and Warranties
7.2. Performance; No Default
7.3. Notes in Full Force and Effect
8. REPRESENTATIONS AND WARRANTIES
8.1. Corporate Existence and Good Standing, Etc.
8.2. Corporate Power; Consents; Absence of Conflict
with Other Agreements, Etc.
8.3. Title to Properties; Leases
8.4. Financial Statements
8.5. No Material Changes, Etc.
8.6. Franchises, Patents, Copyrights, Etc.
8.7. Litigation
8.8. No Material Adverse Contracts, Etc.
8.9. Compliance with Other Instruments,
Laws, Etc.
8.10. Tax Status
8.11. Absence of Security Interests, Etc.
8.12. Use of Proceeds
8.13. Pension Plan
8.14. Subsidiaries
8.15. Disclosure
8.16. Investment Company; Public Utility Holding
Company
8.17. Environmental Matters
9. EXEMPT CHARACTER OF TRANSACTION
10. AFFIRMATIVE COVENANTS
10.1. Punctual Payment
10.2. Maintenance of Office
10.3. Reports, Certificates and Other Information
10.4. Existence and Franchises
10.5. Payments of Taxes
10.6. Maintenance of Property
10.7. Books, Records and Inspections
10.8. Employee Benefit Plans
10.9. Copies of Employee Benefit Plan Reports
10.10. Further Assurances
10.11. Securities Law, Etc. Compliance
10.12. Insurance
10.13. Payment of Indebtedness and Performance of Obligations
10.14. Change of Corporate Name
11. CERTAIN NEGATIVE COVENANTS
11.1. Debt
11.2. Liens
11.3. Guaranties, Loans or Advances
11.4. Investments
11.5. Subsidiaries
11.6. Other Agreements
11.7. Merger, Consolidation, or Sale of Assets
11.8. Debt to Capitalization Ratio
11.9. Interest Coverage Ratio
11.10. Terminate Pension Plan
11.11. Pension Plan Distribution
11.12. Indenture
11.13. Leases
11.14. Debt Payments
11.15. Dividends; Distributions
11.16. Alterations to Fuel Purchase Contract
12. EVENTS OF DEFAULT; ACCELERATION
13. NOTICE AND WAIVERS OF DEFAULT
13.1. Notice of Default
13.2. Waivers of Default
14. REMEDIES ON DEFAULT, ETC.
14.1. Rights of Banks
14.2. Setoff
15. THE AGENT
15A. THE CO-AGENT
16. CONSENT TO JURISDICTION
17. BINDING EFFECT AND ASSIGNMENT
18. EXECUTION IN COUNTERPARTS
19. SURVIVAL OF COVENANTS, ETC.
20. NOTICE, ETC.
21. GOVERNING LAW
22. MISCELLANEOUS
23. ENTIRE AGREEMENT, ETC.
24. CONSENTS, AMENDMENTS, WAIVERS, ETC.
25. PARTICIPATIONS
26. EXPENSES; INDEMNIFICATION
27. HEADINGS
28. WAIVER OF JURY TRIAL
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated as of September 12,
1997, by and among COLONIAL GAS COMPANY, a Massachusetts
corporation (the "Company"), THE BANK OF NEW YORK, UNION
BANK OF CALIFORNIA, N.A., CORESTATES BANK, N.A., FIRST UNION
NATIONAL BANK and FLEET NATIONAL BANK (collectively the
"Banks"), THE BANK OF NEW YORK, as co-agent for the Banks
(the "Co-Agent"), and FLEET NATIONAL BANK, as agent of the
Banks (the "Agent").
1. DEFINITIONS. The following terms shall have the
meanings assigned to them below in this 1 or in the
provisions of this Agreement and the Exhibits hereto
referred to below:
Absolute Rate - a fixed rate of interest per annum
(computed on the basis of a 360-day year for the actual
number of days elapsed and expressed in decimals to 1/10,000
of 1%).
Acquisition - any transaction consummated after the
date of this Agreement by which the Company (i) acquires any
going business or all or substantially all of the assets of
any firm, corporation or division thereof which is in the
gas distribution, gas pipeline, cogeneration, alternate
energy or trucking businesses, whether through purchase of
assets, merger, consolidation or otherwise, or (ii) acquires
(in one transaction or as the most recent transaction in a
series of transactions) at least a majority of the
securities (having ordinary voting power for the election of
directors) of a corporation which is in one of the
businesses described in clause (i) above.
Advance - an advance by a Bank to the Company (i)
pursuant to 2, whether a Base Rate Advance or Eurodollar
Rate Advance or (ii) pursuant to 3, a Competitive Bid
Advance (each of which shall be a Type of Advance).
Agent - has the meaning specified in the preamble.
Agent's Fee - has the meaning specified in 5.3(b).
Agent's Special Counsel - Xxxxxx & Hannah LLP of
Boston, Massachusetts, or such other counsel as may be
approved by the Agent.
Alternate Base Rate - for any day, will be the greater
of (i) the Base Rate announced from time to time by Fleet
National Bank at its head office in Boston as its base rate
or (ii) 1/2% per annum above the Federal Funds Effective
Rate in effect from time to time.
Applicable Eurodollar Rate Margin - on any date of
determination, the percentage per annum set forth below
opposite the Company's Standard & Poors Rating on such date;
provided, that if no Standard & Poors Rating is in effect on
any such date, the Applicable Eurodollar Rate Margin shall
be the highest Applicable Eurodollar Rate Margin set forth
below (and in the event the Company wishes to designate
another nationally recognized rating service in addition to
or other than Standard & Poors Rating Group, the Company and
the Banks will negotiate in good faith to amend the schedule
set forth below to take account of such new or additional
rating; provided, that until agreement on such amendment is
reached, the last effective rating of Standard & Poors shall
be deemed to continue in effect for purposes of determining
the Applicable Eurodollar Rate Margin):
Standard & Poors Applicable Eurodollar
Rating Rate Margin
A 0.180%
A- 0.200%
BBB+ 0.250%
BBB 0.335%
less than BBB 0.425%
Applicable Facility Fee Rate - on any date of
determination, the percentage per annum set forth below
opposite the Company's Standard & Poors Rating on such date;
provided, that if no Standard & Poors Rating is in effect on
any such date, the Applicable Facility Fee Rate shall be the
highest Applicable Facility Fee Rate set forth below (and in
the event the Company wishes to designate another nationally
recognized rating service in addition to or other than
Standard & Poors, the Company and the Banks will negotiate
in good faith to amend the schedule set forth below to take
account of such new or additional rating; provided, that
until agreement on such amendment is reached, the last
effective rating of Standard & Poors shall be deemed to
continue in effect for purposes of determining the
Applicable Facility Fee Rate):
Standard & Poors Applicable Facility
Rating Fee Rate
A 0.075%
A- 0.080%
BBB+ 0.950%
BBB 0.120%
less than BBB 0.200%
Applicable Lending Office - with respect to each Bank,
such Bank's Domestic Lending office in the case of a Base
Rate Advance or Competitive Bid Advance, and such Bank's
Eurodollar Lending Office(s) in the case of a Eurodollar
Advance.
Assessment Rate - for any Interest Period, the net
annual assessment rate (rounded upwards, if necessary, to
the next higher 1/100 of 1%) applicable to the Agent on its
insured deposits under the Federal Deposit Insurance Act,
determined by annualizing the most recent assessment levied
on the Agent by the Federal Deposit Insurance Corporation
(the "FDIC") with respect to such deposits.
Assignee - has the meaning set forth in 17.
Available Commitment - as of any date of determination,
the excess of (a) the Maximum Commitment over (b) the
aggregate principal amount of Advances outstanding to the
Trust under the Trust Credit Agreement.
Banks - has the meaning specified in the preamble.
Base Rate Advance - an Advance which bears interest at
the Alternate Base Rate.
Borrowing - simultaneous Advances made hereunder to the
Company by the Banks.
Boston - the City of Boston in The Commonwealth of
Massachusetts in the United States of America.
Business Day - (i) in the case of a Business Day which
relates to a Eurodollar Advance, any day of the year on
which banks are open for business in Boston, London, and New
York and on which dealings are carried on in the interbank
market and in the country where payment is to be made in the
currency of such Advances and (ii) in the case of a Business
Day which relates to a Base Rate Advance or Competitive Bid
Advance, any day of the year on which banks are open for
business in New York and Boston.
Capitalized Leases - leases in which the Company or a
Subsidiary is the lessee and the future rental obligations
of which are reflected as a liability on the Company's
consolidated balance sheet in accordance with GAAP.
Closing Date - the date of the First Lending.
Co-Agent - has the meaning specified in the preamble.
Collateral - has the meaning set forth in 29.
Commitment - as to each Bank on any date of
determination, the Maximum Commitment then in effect times
the Commitment Percentage.
Commitment Percentage - as to each Bank on any date of
determination, the percentage figure set opposite such
Bank's name in 5.1.
Company - has the meaning specified in the preamble.
Competitive Bid Advance - an Advance made pursuant to
3 hereof by a Bank pursuant to a Competitive Bid Auction.
Competitive Bid Auction - a solicitation of Competitive
Bids setting forth Competitive Bid Rates pursuant to 3.
Competitive Bid Notes - has the meaning set forth in
3.3.
Competitive Bid Quote - an offer by a Bank to make a
Competitive Bid Advance in accordance with 3.1(d)
Competitive Bid Rate - has the meaning set forth in
3.1(d)(ii)(C).
Compliance Certificate - has the meaning specified in
10.3(c).
Consent and Agreement - has the meaning specified for
such term in the Security Agreement.
Consolidated Capitalization - an amount determined on a
consolidated basis in accordance with GAAP equal to the sum
of Consolidated Common Equity plus preferred stock of the
Company plus Debt.
Consolidated Common Equity - an amount determined on a
consolidated basis in accordance with GAAP, equal to the sum
of (a) the capital accounts, excluding preferred stock, of
the Company and its Subsidiaries plus (b) the earned surplus
(or deficit) and capital surplus of the Company and its
Subsidiaries, after eliminating intercompany items.
Consolidated Net Income - for any period, the
consolidated net income (or net loss) of the Company and its
Subsidiaries, after deduction of all expenses, taxes and
other proper charges and after eliminating therefrom all
extraordinary items of income and expenses, all determined
in accordance with GAAP.
Convert, Conversion, and Converted - refers to
Conversion of Base Rate Advances or Eurodollar Rate Advances
into any other Type of Advance pursuant to 4.1.
Debt - means at any time obligations under Capitalized
Leases and all obligations of the Company evidenced by
bonds, debentures, letters of credit, notes or other similar
instruments and all other evidences of indebtedness of the
Company (including, without limitation, indebtedness with
maturities of less than one year and the Mortgage Debt),
created, issued, guaranteed, incurred or assumed for money
borrowed or for the deferred (for a period materially in
excess of the Company's present customary practices in
similar transactions) purchase price of property or services
purchased, and any other instrument or arrangement which
would be treated as indebtedness under GAAP, excluding,
however, accounts payable (other than for borrowed money)
and accrued costs and expenses incurred in the ordinary
course of business, provided that the same are not overdue
for 90 days or more in a material amount or, if overdue for
90 days or more in a material amount, are being contested in
good faith and by appropriate proceedings and reserves,
which are adequate in accordance with GAAP, have been set
aside therefor.
Default(s) - has the meaning specified in 12.
Domestic Lending Office - with respect to any Bank, the
office of such Bank specified as its "Domestic Lending
Office" below its name on the signature pages hereof or such
other office or affiliate of such Bank as such Bank may from
time to time specify to the Borrowers and the Agent.
DPU - means the Department or Public Utilities of The
Commonwealth of Massachusetts.
EBIT - means for any period an amount equal to the
Consolidated Net Income plus, to the extent deducted in
computing Consolidated Net Income, (a) interest, (b) Federal
and state income taxes and (c) extraordinary items.
Environmental Law - any federal, state, or local
statutory or common law, ordinance, rule or regulation, in
existence on the applicable date, relating to Hazardous
Materials (as defined herein), pollution or protection of
public health, safety or the environment, including without
limitation, any common law of nuisance or trespass; any law,
rule or regulation relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants
or chemicals, or industrial, toxic or hazardous substances
or waste into the environment (including without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the presence,
generation, manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants or chemicals or industrial, toxic
or hazardous substances or wastes; and any law, rule or
regulation relating to solid waste, water quality, air
quality, wetlands protection, sanitary waste disposal, or
environmental impact review.
Environmental Notice - any summons, citation,
directive, information request, notice of potential
responsibility, notice of violation or deficiency, order,
claim, complaint, investigation, proceeding, judgment,
letter or other communication, written or oral, actual or
threatened, from the United States Environmental Protection
Agency or other federal, state or local agency or authority,
or any other entity or individual, public or private,
concerning any intentional or unintentional act or omission
which involves Management of Hazardous Substances on or off
any property owned or leased by the Company, any affiliate
of the Company or any guarantor of the Obligations; the
imposition of any lien on such property, including but not
limited to liens asserted by government entities in
connection with Responses to the presence or Release of
Hazardous Substances; and any alleged violation of or
responsibility under Environmental Laws;
ERISA - means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
Eurodollar Advance - shall mean any Advance which bears
interest at a rate determined by reference to the Eurodollar
Rate (Reserve Adjusted).
Eurodollar Lending Office - shall mean with respect to
any Bank the office of such Bank designated as such below
its name on the signature pages hereof or such other office
or offices of such Bank (as designated from time to time by
notice from such Bank to the Company and the Agent) which
shall be making or maintaining the Eurodollar Advances of
such Bank hereunder or such other office or offices through
which such Bank determines its Eurodollar Rate. A
Eurodollar Office of any Bank may be, at the option of such
Bank, either a domestic office or foreign office located
within Europe, the Caribbean or the Bahamas.
Eurodollar Rate - with respect to any Eurodollar
Advance for any Interest Period, the rate per annum equal to
the average of the respective rates notified to the Agent by
the Reference Bank as the rate at which United States
dollars in immediately available funds are offered to the
Eurodollar Lending Office of the Reference Bank two Business
Days prior to the beginning of such Interest Period by prime
banks in any interbank market selected by the Reference Bank
at or about the relevant local time of such Eurodollar
Lending Office, for delivery on the first day of such
Interest Period, for the number of days comprised therein
and in an amount equal or comparable to the amount of the
Eurodollar Advance of the Reference Bank for such Interest
Period. As used herein, "relevant local time" as to any
Eurodollar Office shall mean 11:00 A.M., London time, when
such Eurodollar Lending Office is located in Europe, or
10:00 A.M., Boston time, when such Eurodollar Lending Office
is located in North America, the Caribbean or the Bahamas.
Eurodollar Rate (Reserve Adjusted) - with respect to
any Eurodollar Advance for any Interest Period, a rate per
annum equal to the sum of (i) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Eurodollar Rate* = Eurodollar Rate + Applicable Eurodollar
(Reserve Adjusted) Rate Margin
_________________________________________
1 - Eurodollar Reserve Percentage
*To be rounded upwards, if necessary, to the next
higher 1/16 of 1%.
Eurodollar Reserve Percentage - shall mean, with
respect to each Interest Period, the percentage (expressed
as a decimal) equal to the daily average during such
Interest Period of the percentages in effect on each day of
such Interest Period as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for
determining reserve requirements applicable to "Eurodollar
Liabilities" pursuant to Regulation D or any other then
applicable regulation of the Board of Governors which
prescribes reserve requirements applicable to "Eurodollar
Liabilities" as presently defined in Regulation D.
Event(s) of Default - has the meaning specified in 12.
Facility Fee - has the meaning specified in 5.3(a).
Federal Funds Effective Rate - the weighted average of
the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal
funds brokers on such day, as published for the prior day by
the Federal Reserve Bank of Boston.
First Lending - the first Advance made to the Company
hereunder.
Fuel Purchase Contract - the Purchase Contract, dated
as of June 27, 1990, between the Trust and the Company, as
amended and in effect on the Closing Date.
GAAP - in general, principles which are (a) consistent
with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors (or
successor organizations), in effect for the fiscal year of
the Company ended December 31, 1996 and (b) such that
certified public accountants would, insofar as the use of
accounting principles is pertinent, be in a position to
deliver an unqualified opinion as to financial statements in
which such principles have been properly applied; provided,
however, that for purposes of the financial statements to be
delivered by the Company pursuant to 11 hereof, GAAP shall
mean such principles as in effect for the periods covered by
such financial statements.
Guaranteed Pension Plan - means any pension plan
maintained by the Company or any Subsidiary or to which any
of them contributes, the benefits under which are guaranteed
in whole or in part by the Pension Benefit Guaranty
Corporation.
Hazardous Substance - any substance or material (i)
identified in Section 101(14) of CERCLA, 42 USC 9601(14)
and as set forth in Title 40, Code of Federal Regulations,
Part 302, as the same may be amended from time to time, or
(ii) determined to be or identified as toxic, a pollutant or
contaminant, or regulated as such under federal, state or
local statute, law, ordinance, rule, or regulation or
judicial or administrative order or decision, as same may be
amended from time to time. The term "Hazardous Substance"
as used herein shall also include any substance or material
presently or hereafter identified defined or treated as
toxic or hazardous in any manner according to any
Environmental Law or, including, without limitation, any
oil, lead paint, herbicides, pesticides, asbestos,
polychlorinated biphenyls, radon, radioactive substance,
methane, volatile hydrocarbons, acids, pesticides, paints,
petroleum-based products, liquefied natural gas, gas in
vapor form, propane, lead, cyanide, DDT, printing inks, and
industrial solvents.
Indemnified Party - has the meaning specified in 26.
Indenture - the Second Amended and Restated First
Mortgage Indenture, dated as of June 15, 1992, between the
Company and State Street Bank and Trust Company, as
successor trustee, as supplemented by the First and Second
Supplemental Indentures, the Amendment to Second
Supplemental Indenture and the Third Supplemental Indenture
and as amended from time to time in accordance with its
terms.
Independent Accountant - a firm of independent public
accountants selected by the Board of Directors of the
Company, which is "independent" as that term is defined in
Rule 2-01 of Regulation S-X promulgated by the Securities
and Exchange Commission and is reasonably acceptable to the
Agent.
Interest Charges - for any period, the expenses of the
Company and its Subsidiaries for such period for interest on
Debt (including the current portion thereof), determined in
accordance with GAAP, including Facility Fees, Agent's Fee
and similar expenses in connection with the borrowing of
money but excluding the interest component of the Company's
obligations under the Fuel Purchase Contract, and net of
regulatory interest.
Interest Coverage Ratio - means the ratio of EBIT to
Interest Charges calculated quarterly based on the
immediately preceding four quarters.
Interest Payment Date - (a) for any Eurodollar Advance,
the last day of each Interest Period for such Advance, (b)
for any Base Rate Advance any date when interest is due and
payable as provided in 4.2(a) hereof, and (c) for
Competitive Bid Advances, any date when interest is due and
payable as provided under 3.2 hereof.
Interest Period -
(a) with respect to each Eurodollar Advance
comprising the same Borrowing:
(i) initially, the period (A) commencing on the
date of such Borrowing or, in the case of a Conversion
into Eurodollar Advances pursuant to 4.1, commencing
on the date of such Conversion and (B) ending one (1),
two (2), three (3), or six (6), months thereafter as
determined in accordance with the provisions of this
Agreement; and
(ii) thereafter, each subsequent Interest Period
for Eurodollar Advances shall begin on the last day of
the immediately preceding Interest Period for such
Advances and shall end one (1), two (2), three (3), or
six (6), months thereafter as the Company may select
pursuant to 4.5; provided that (A) any such Interest
Period which would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding
Business Day unless such Business Day occurs in a new
calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (B)
any such Interest Period which begins on a day for
which there is no numerically corresponding day in the
calendar month during which such Interest Period is to
end shall end on the last Business Day of such calendar
month.
(b) With respect to each Base Rate Advance, the
period commencing on the date of such Advance and expiring
on the date when the Base Rate Advance is repaid or, as the
case may be, Converted to another Type of Advance.
(c) With respect to each Competitive Bid Advance,
the period commencing on the date of such Advance and ending
not less than 7 days and not more than 180 days thereafter,
as the Company may elect in accordance with 3 hereof.
No Interest Period may be selected in respect to all or
any portion of any Advance (other than a Competitive Bid
Advance) which would expire on a date which occurs after the
Maturity Date for the then Outstanding Revolving Credit
Notes of the Company and no Interest Period may be selected
in respect of all or any portion of any Advance which would
expire after the Termination Date or on a date which is not
a Business Day.
Loan Documents - collectively, this Agreement, the
Notes, the Security Documents and any other documents or
instruments required to be delivered by the Company pursuant
hereto or thereto.
London - the City of London in England.
Majority Banks - at any time, the Bank or Banks holding
at least 66 2/3% of the aggregate unpaid principal amount of
the Advances (excluding Competitive Bid Advances), or, if no
Advances (excluding Competitive Bid Advances) are at the
time outstanding, having at least 66 2/3% of the aggregate
amount of the Commitments then in effect.
Manage or Management - to generate, handle,
manufacture, process, treat, store, use, re-use, refine,
recycle, reclaim, blend or burn for energy recovery,
incinerate, accumulate speculatively, transport, transfer,
dispose of, Release, threaten to Release or abandon
Hazardous Substances;
"Material Adverse Change" - a material adverse change
in the business, assets, liabilities, condition (financial
or otherwise), results of operations or business prospects
of (a) the Trust, (b) the Company or (c) the Company and its
Subsidiaries "taken as a whole" which would reasonably be
expected to render the Company unable to perform its
obligations under the Loan Documents. The term "Material
Adverse Change" shall include, without limitation, any
change in any law, regulation, treaty or directive or in the
interpretation or application thereof by any Governmental
Body charged with the administration thereof or compliance
by the Borrowers with any request or directive from any
Governmental Body the result of which would have a Material
Adverse Effect.
"Material Adverse Effect" - (a) with respect to any
Person (including, without limitation, the Borrowers and the
Subsidiaries), any materially adverse effect on such
Person's business, assets, liabilities, condition (financial
or otherwise), results of operations or business prospects,
(b) with respect to a group of Persons "taken as a whole"
(including, without limitation, the Borrowers and the
Subsidiaries), any materially adverse effect on such
Persons' business, assets, liabilities, financial
conditions, results of operations or business prospects
taken as a whole on, where appropriate, a consolidated basis
in accordance with GAAP and (c) with respect to any of this
Agreement, the Notes or the Security Documents, any adverse
effect, WHETHER OR NOT MATERIAL, on the binding nature,
validity or enforceability thereof as an obligation of the
Borrowers.
Maturity Date - has the meaning specified in 2.2(h).
Maximum Commitment - as of any date of determination,
the lesser of (a) $75,000,000 or (b) the amount to which the
Maximum Commitment may have been reduced pursuant to 5.4;
provided, that if the obligations of the Banks to make
further advances are terminated pursuant to 12, the Maximum
Commitment as of any date of determination thereafter shall
be deemed to be zero.
Mortgage Debt - all bonds now outstanding under the
Indenture as shown on the financial statements delivered to
the Banks as contemplated by 6.2 and any additional bonds
which may from time to time be issued in accordance with the
terms of the Indenture.
Notes - collectively, the Revolving Credit Notes and
the Competitive Bid Notes.
Notice of Borrowing - has the meaning specified in
2.2(a).
Obligations - all indebtedness, obligations and
liabilities to the Banks, individually or collectively,
existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise of the Company arising or
incurred under this Agreement or in respect of Advances made
or instruments at any time evidencing any of the foregoing.
Officer's Certificate - a certificate signed by the
President, Executive Vice President, any Senior Vice
President, the Vice President-Finance or Treasurer of the
corporation on whose behalf the certificate is executed.
Outstanding - when used with reference to the aggregate
balance of Advances, means and includes, as at any date of
determination, the unpaid principal amount of the Advances.
Pension Benefit Guaranty Corporation - the Pension
Benefit Guaranty Corporation created by 4002 of ERISA and
any successor entities having similar responsibilities.
Person - any individual, corporation (including a
business trust), partnership, trust, unincorporated
association, joint stock company, limited liability company,
limited liability partnership or other legal entity or
organization and any governmental agency or political
subdivision thereof.
Reference Bank - Fleet National Bank.
Release - any actual or threatened spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injection, escaping, leaching, dumping or disposing of
Hazardous Substances into the environment, as that
"environment" is defined in CERCLA; and
Reserve Requirement - with respect to each Interest
Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the aggregate
reserve requirement (including all basic, supplemental,
marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in
reserve requirements during such Interest Period) specified
under Regulation D of the Board of Governors of the Federal
Reserve System, or any other regulation of the Board of
Governors which prescribes reserve requirements applicable
to nonpersonal time deposits as presently defined in
Regulation D, as then in effect, as applicable to the class
of banks of which Fleet National Bank is a member, on
deposits having a maturity approximately equal to such
Interest Period.
Respond or Response - any action taken pursuant to
Environmental Laws to correct, remove, remediate, clean up,
prevent, mitigate, monitor, evaluate, investigate or assess
the Release of a Hazardous Substance.
Revolving Credit Notes - has the meaning specified in
2.2(h).
Security Agreement - the Security Agreement and
Assignment of Contracts of even date herewith, between the
Trust and the Agent in substantially the form of Exhibit H
hereto.
Security Documents - the Security Agreement, the
Consent and Agreement (as defined therein) and any documents
or instruments delivered pursuant thereto to perfect the
security interest of the Agent created thereby.
Standard & Poors Rating - the rating announced from
time to time by Standard & Poors for the Company's bonds
issued under the Indenture.
Subsidiary - any corporation, association or other
business entity, a majority (by number of votes) of the
outstanding Voting Stock of which is at the time owned or
controlled by the Company or by one or more Subsidiaries of
the Company or by the Company and one or more Subsidiaries
of the Company or in any event which is included in the
Company's consolidated balance sheet.
Termination Date - the earlier of (a) September 11,
2000, or such later date to which the date of termination of
the Banks' obligations to make Advances hereunder shall be
extended in accordance with 5.2 hereof and (b) the date of
termination of this Agreement pursuant to 12.
Trust - Massachusetts Fuel Inventory Trust, a trust
established under the Trust Agreement.
Trust Agreement - the Trust Agreement, dated as of
June 22, 1990, between the Company, as Trustor, and State
Street Bank and Trust Company (as successor trustee to
Shawmut Bank, N.A.), as Trustee, as amended in accordance
with its terms and in effect from time to time.
Trust Credit Agreement - the Revolving Credit Agreement
of even date herewith, among the Trust, the Banks and the
Agent, as amended and in effect from time to time.
Trustee - State Street Bank and Trust Company, the
successor trustee under the Trust Agreement.
Type of Advances - any one of the types of Advances
under this Agreement.
Voting Stock - capital stock or similar interests of
any class or classes (however designated), the holders of
which are at the time entitled, as such holders, to vote for
the election of the directors (or persons performing similar
functions) of the corporation, association or other business
entity involved, whether or not the right so to vote exists
by reason of the happening of a contingency.
Wholly Owned Subsidiary - any Subsidiary all of the
outstanding capital stock or other interest of which, other
than directors' qualifying shares and shares issued solely
for the purpose of satisfying local requirements concerning
the minimum number of shareholders, is owned by the Company,
directly or indirectly through a Wholly Owned Subsidiary.
All terms of an accounting character not specifically
defined herein shall have the meanings assigned thereto by
GAAP.
2. THE REVOLVING CREDIT ADVANCES.
2.1. The Revolving Credit Advances. Each Bank
severally agrees, on the terms and conditions hereinafter
set forth, to make Advances to the Company from time to time
on any Business Day during the period from the date hereof
to the Termination Date in an aggregate amount (i) in the
case of each Bank, not to exceed at any time the Outstanding
amount of such Bank's Commitment and (ii) in the case of all
of the Banks, not to exceed at any time the Outstanding
amount of the Available Commitment, in each case, as such
amount may be reduced pursuant to 5.4. In no event shall
the aggregate outstanding principal balance of (i) all
Advances to the Company exceed $75,000,000 or (ii) the sum
of all Advances to the Company hereunder and all "Advances"
(as defined in the Trust Credit Agreement) to the Trust
under the Trust Credit Agreement exceed at any one time
$75,000,000. In no event shall any Bank be obligated to
fund or maintain Advances in excess of such Bank's
Commitment. Anything to the contrary herein
notwithstanding, at no time shall the aggregate number of
Outstanding Advances to the Company hereunder and to the
Trust under the Trust Credit Agreement exceed the number six
(6).
Each Borrowing made by the Company shall: (i) be in an
aggregate amount of not less than $500,000 (unless otherwise
specified herein) and (ii) consist of Advances of the same
Type made to the Company on the same day by the Banks
ratably according to their respective Commitments. There is
no limit on the number of Borrowings that may be made on any
Business Day. Within the limits of the provisions of this
2.1, the Company may borrow, prepay pursuant to 4.9 and
reborrow under this 2.1.
2.2. Making the Advances.
(a) Each Advance (other than Competitive Bid
Advances) shall be made on notice given not later than
10:00 A.M. (Boston time), (i) in the case of a Base Rate
Advance on the date of the proposed Borrowing or (ii) in the
case of a Eurodollar Rate Advance on the third Business Day
prior to the date of the proposed Borrowing, given to the
Agent from the Company (a "Notice of Borrowing"). The Agent
shall give the Banks prompt notice of each Notice of
Borrowing and of each other notice received from the Company
hereunder. Each such Notice of Borrowing shall be by
telephone, telecopy, telex or cable, in each case confirmed
immediately in writing by the Company in substantially the
form of Exhibit B hereto, specifying therein (A) the
requested date of such Borrowing, (B) the requested Type of
Advances comprising such Borrowing, (C) in the case of a
Borrowing comprised of Eurodollar Rate Advances, the initial
Interest Period for such Advances, and (D) the amount of
such Borrowing (which must be a minimum of $1,000,000 in the
case of a Notice of Borrowing requesting Eurodollar
Advances).
(b) Each Bank shall, before 12:00 Noon (Boston
time) on the date of such Borrowing, subject to the terms
and conditions of this Agreement, make available for the
account of its Applicable Lending Office to the Agent at the
Agent's address referred to in 20 and in immediately
available funds such Bank's ratable portion of such
Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in 6 or
7, as the case may be, the Agent will credit such funds to
the Company at such address or office.
(c) A Notice of Borrowing with respect to a
Eurodollar Advance shall be irrevocable and binding on the
Company and, in respect of any Borrowing comprised of
Eurodollar Advances, the Company shall indemnify each Bank
against any loss or expense incurred by such Bank as a
result of any failure of the Company to borrow the amounts
requested on the date requested, including without
limitation, any loss, including lost profits, or expense
incurred by reason of the liquidation or re-employment of
deposits or other funds acquired by any Bank to fund or
maintain a Eurodollar Advance to be made by such Bank.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's
ratable portion of such Borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on
the date of such Borrowing in accordance with and as
provided in this 2.2 and the Agent may, in reliance upon
such assumption, make available on such date a corresponding
amount to the Company. If and to the extent such Bank shall
not have so made such ratable portion available to the Agent
and the Agent shall have made available such corresponding
amount to the Company, such Bank agrees to pay to the Agent
forthwith on demand, and the Company agree to repay to the
Agent within two Business Days after demand (but only after
demand for payment has first been made to such Bank and such
Bank has failed to make such payment), an amount equal to
such corresponding amount together with interest thereon for
each day from the date the Agent shall make such amount
available to the Company until the date such amount is paid
or repaid to the Agent, at an interest rate for the first
day of such period equal to the interest rate applicable at
the time to Advances comprising such Borrowing and for all
subsequent days of such period equal to the Alternate Base
Rate. If such Bank shall pay to the Agent such
corresponding amount, such amount so paid shall constitute
such Bank's Advance as part of such Borrowing for purposes
of this Agreement. If the Company make a repayment required
by the foregoing provisions of this 2.2(d) and thereafter
the applicable Bank or Banks make the payments to the Agent
required by this 2.2(d), the Agent shall promptly refund
the amount of the Borrowers' payment.
(e) The failure of any Bank to make the Advance
to be made by it as part of any Borrowing shall not relieve
any other Bank of its obligation, if any, hereunder to make
its Advance on the date of such Borrowing, but no Bank shall
be responsible for the failure of any other Bank to make the
Advance to be made by such other Bank on the date of any
Borrowing.
(f) In the case of Eurodollar Advances requested
in a Notice of Borrowing, the Agent shall notify the Company
and each Bank of the Eurodollar Rate applicable to such
Eurodollar Advances not later than 11:00 A.M. (Boston time)
on the Business Day of the proposed Borrowing specified in
the applicable Notice of Borrowing.
(g) The Company hereby absolutely and
unconditionally promises to pay to the Agent for the account
of each of the Banks on the Termination Date all Outstanding
Advances.
(h) Revolving Credit Notes. The Indebtedness of
the Company resulting from the Advances made and to be made
to the Company under this 2 shall be evidenced by Revolving
Credit Notes executed and delivered by the Company to each
Bank in substantially the form of Exhibit A-1 hereto on (i)
the date of the First Lending and (ii) on the date of each
Borrowing made by the Company hereunder on or after the
Maturity Date of any previously delivered Revolving Credit
Note. Each such Revolving Credit Note and the Advances
evidenced thereby will be due and payable on the date (the
"Maturity Date") which is the earlier of (A) 364 days after
the date thereof or (B) the Termination Date. (The
revolving credit notes of the Company are collectively
referred to herein as the "Revolving Credit Notes").
All Advances made to the Company by a Bank shall be
recorded by the Bank and all payments made on account of
principal thereof shall be similarly recorded. Any failure
of a Bank to record a transaction in a timely fashion shall
not affect or impair the validity of any Obligation.
3. COMPETITIVE BID ADVANCES.
3.1. Competitive Bid Borrowings.
(a) Competitive Bid Advance Option. In addition
to the Advances permitted pursuant to 2 hereof, the Company
may, pursuant to the terms of this 3, cause the Agent to
request that the Banks make offers to fund Advances to the
Company from time to time prior to the Termination Date.
The Banks may, but shall have no obligation to, make such
offers and the Company may, but shall have no obligation to,
accept such offers in the manner set forth in this 3.
(b) Competitive Bid Request. When the Company
wishes to request offers to make Competitive Bid Advances
under this 3, it shall transmit to the Agent by telex or
telecopier a bid request substantially in the form of
Exhibit C hereto to be received no later than 10:00 A.M. on
the first Business Day prior to the requested Borrowing date
with respect to Absolute Rate Advances specifying (A) the
requested Borrowing date (which must be a Business Day) and
the amount of such Competitive Bid Advance (which must be a
minimum of $2,500,000) and may not, together with the
aggregate amount of all other Advances then Outstanding to
the Borrowers, exceed the Available Commitment and (B) the
Interest Period for such Advance. The Company may request
offers to make Advances for more than one Interest Period in
a single bid request. The Company may submit a request for
offers to make Competitive Bid Advances no more than that
number of times in any period of 12 consecutive months which
does not exceed the difference between forty (40) and the
number of times the Trust requests "Competitive Bid
Advances" under and as defined in the Trust Credit Agreement
during the same 12 month period.
(c) Invitation for Competitive Bids. Subsequent
to receipt of a bid request, the Agent shall send to the
Banks by telex or telecopier an invitation for bids not
later than 4:00 P.M. (Boston time) on the Business Day on
which the Company delivers its request in accordance with
3.1(b), substantially in the form of Exhibit D hereto,
which shall constitute an invitation by the Company
requesting each Bank to submit bids offering to make
Competitive Bid Advances in accordance with this 3.
(d) Submission and Contents of Competitive Bids.
(i) Each Bank may submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid
Advances in response to any invitation for bids. Each
Competitive Bid Quote must comply with the requirements
of this subsection (d) and, except in the case of
Competitive Bid Quotes by Fleet National Bank, must be
submitted to the Agent by telex or telecopier not later
than 9:15 A.M. (Boston time) on the requested Borrowing
Date. Competitive Bid Quotes submitted by Fleet
National Bank must be submitted directly to the Company
by telex or telecopier not later than 9:00 A.M. (Boston
time) on the requested Borrowing Date. Any Competitive
Bid Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions
of the Company.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit E hereto and shall in
any case specify:
(A) the proposed Borrowing Date,
(B) the principal amount of the Advance for
which each offer is made, which principal amount
(x) may be greater than the Commitment of the
quoting Bank but may not exceed the Maximum
Commitment, (y) must be $2,500,000 or a larger
multiple of $1,000 and (z) may not exceed the
principal amount of Competitive Bid Advances for
which offers were requested,
(C) the rate of interest per annum (rounded
to the nearest 1/10,000th of 1%) (the "Competitive
Bid Rate") offered for each such Competitive Bid
Advance,
(D) the proposed maturity date of the
proposed Advance (which date must be no less than
7 days and no longer than 180 days from the
Borrowing Date specified in subsection (A) above),
and
(E) the identity of the quoting Bank.
(iii) Any Competitive Bid Quote for a
Competitive Bid Advance shall be disregarded if it:
(A) is not substantially in the form of
Exhibit E hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable invitation
for Competitive Bids; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Company. Not later than 10:00 A.M.
(Boston time) on the requested Borrowing Date, the Agent
shall notify the Company of the terms of any Competitive Bid
Quote submitted by a Bank that is in accordance with the
preceding subsection (d). The Agent's notice to the
Borrower shall specify (i) the aggregate principal amount of
Advances for which offers have been received for each
Interest Period specified in the related Competitive Bid
Request and (ii) the respective principal amounts and
Competitive Bid Rates, as the case may be, so offered, as
well as the terms of the Competitive Bid Quotes which were
received but disregarded by the Agent.
(f) Acceptance and Notice By Company. Not later
than 10:30 A.M. (Boston time) on the requested Borrowing
Date, the Company shall notify, by telephone, confirmed by
telecopy, the Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to the preceding
subsection 3.1(e). In the case of an acceptance, such
notice (a "Notice of Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are
accepted. The Company may accept any Competitive Bid Quote
in whole or in part; provided that:
(i) the aggregate principal amount of each
Borrowing may not exceed the applicable amount set
forth in the related Competitive Bid Request,
(ii) subject to the provisions of 3.1(h) hereof,
the principal amount of each Advance must be $2,500,000
or a larger multiple of $1,000,
(iii) offers quoting lower Competitive Bid
Rates must be accepted prior to offers quoting higher
Competitive Bid Rates, and
(iv) the Company shall not accept any offer that
is described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
(g) Notice by the Agent to the Banks. After the
Company notifies the Agent of its acceptance or
non-acceptance of the offers pursuant to subsection (f), the
Agent shall notify, by telephone and confirm by telecopy,
such Banks that made such offers pursuant to subsection (d)
of the Company's acceptance or non-acceptance of such offers
not later than 11:00 A.M. (Boston time) on the requested
Borrowing Date.
(h) Allocation by Agent; Usage of Commitments.
If offers are made by two or more Banks with the same
Competitive Bid Rates for a greater aggregate principal
amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal
amount of Advances in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as
nearly as possible (in such multiples, not smaller than
$1,000, as the Agent may deem appropriate) in proportion to
the aggregate principal amount of such offers.
Determinations by the Agent of the amounts of Competitive
Bid Advances shall be conclusive in the absence of manifest
error.
Upon each occasion that a Competitive Bid Advance is
made, and during the period for which such Competitive Bid
Advance is outstanding, each Bank's Commitment shall be
deemed automatically utilized by an amount equal to the
amount of such Competitive Bid Advance multiplied by such
Bank's Commitment Percentage, regardless of the extent to
which such Bank makes such Competitive Bid Advance.
3.2. Interest on Competitive Bid Advances. Each
Competitive Bid Advance shall bear interest on the
outstanding principal amount thereof for the Interest Period
applicable thereto, at a rate per annum equal to the
Competitive Bid Rate quoted by the Bank making such Advance
in accordance with 3.1(d). Such interest shall be payable
for each Interest Period on the last day thereof or, if such
Interest Period is longer than three months, every three
months after the first day thereof and on the last day
thereof.
Notwithstanding any other provision herein to the
contrary, at no time shall the sum of the aggregate
principal amount of Competitive Bid Advances Outstanding to
the Company plus the aggregate principal amount of all
other Advances Outstanding to the Company exceed the
Available Commitment.
3.3. Competitive Bid Notes. The Indebtedness of the
Company resulting from the Competitive Bid Advances made and
to be made to the Company hereunder shall be evidenced by
promissory notes executed and delivered by the Company to
the Banks making such Competitive Bid Advances on the date
each such Competitive Bid Advance is made, substantially in
the form of Exhibit A-2 hereto.
4. CONVERSION, INTEREST, PAYMENTS AND COSTS.
4.1. Conversion of Advances. The Company may, upon
notice given to the Agent not later than 10:00 A.M. (Boston
time) on the Business Day of the proposed Conversion in the
case of Conversion into Base Rate Advances and on the third
Business Day prior to the proposed Conversion in the case of
Conversion into Eurodollar Advances, Convert, on any
Business Day, all Base Rate Advances or Eurodollar Rate
Advances comprising the same Borrowing made to such Borrower
into Advances of one or more Types, provided, however, that
any Conversion of Eurodollar Advances may be made on, and
only on, the last day of an Interest Period for such
Advances and any Conversion into Eurodollar Advances shall
be in a minimum amount of $1,000,000. Each such notice of
Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances
to be Converted, and (iii) if such Conversion is into
Eurodollar Advances, the duration of the initial Interest
Period for such Advances.
4.2. Interest. Except as otherwise provided in 4.3,
the Company shall pay interest on the unpaid principal
amount of each Advance made by each Bank from the date of
such Advance until such principal amount is paid in full, at
such interest rates, and payable at such times as follows:
(a) during such periods as such Advance shall be
a Base Rate Advance, at the Alternate Base Rate, payable
quarterly in arrears on the last day of each March, June,
September and December during such periods and on the date
such Base Rate Advance shall be paid in full; and
(b) during such periods as such Advance shall be
a Eurodollar Advance, at the Eurodollar Rate (Reserve
Adjusted), payable (i) with respect to each Eurodollar
Advance for which the Interest Period is either one (1), two
(2) or three (3) months on the Interest Payment Date and
(ii) with respect to each Eurodollar Advance for which the
Interest Period is six (6) months, the amount of interest
accrued shall be payable on the last day of the third month
of such Interest Period and the remaining portion of such
interest shall be payable on the Interest Payment Date.
4.3. Overdue Principal and Interest. Any amount of
principal of any and all Advances which is not paid when due
(whether at stated maturity, by acceleration or otherwise)
and, to the extent permitted by law, any amount of interest
on any such Advances which is not paid when due, shall bear
interest, from the date on which such amount shall have
become due and payable by the Company to the date on which
such amount shall be paid (whether before or after
judgment), payable on demand, at a rate equal to 2% per
annum above the rate of interest otherwise applicable to the
relevant Advances.
4.4. Limitation on Interest. No provision of this
Agreement or any Note shall require the payment or permit
the collection of interest in excess of the rate then
permitted by applicable law.
4.5. Interest Period and Rate Determination and
Protection.
(a) The Company shall have the option to elect a
duration of one (1) month, two (2) months, three (3) months
or six (6) months in the case of Eurodollar Advances, made
to it, for each Interest Period. Such option shall be
exercised as provided in 2.2 with respect to the initial
Interest Period for any Eurodollar Advances and shall be
exercised as provided in 4.1 with respect to the initial
Interest Period for any Eurodollar Advances commencing on
the date of a Conversion into such Advances, and in each
such case, may be exercised as to each subsequent Interest
Period applicable to such Advances by giving notice to the
Agent three Business Days in the case of Eurodollar Advances
prior to the first day of such subsequent Interest Period.
Each such notice shall be by telephone, telex, telecopy or
cable, in each case confirmed immediately in writing by the
Company. If no such notice is received with respect to the
Advances, the Company shall be deemed to have elected the
same Interest Period duration as the immediately preceding
Interest Period applicable to such Advances.
(b) In the event the Agent shall determine that
adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate which would otherwise be
applicable during any Interest Period, the Agent shall
forthwith give telex or telecopy notice of such
determination (which shall be conclusive and binding on the
Company), to the Company at least two Business Days before
the first day of such Interest Period. In such event: (i)
any Notice of Borrowing or Notice of Conversion pursuant to
4.1 requesting a Eurodollar Advance shall be deemed a
request for a Base Rate Advance; (ii) each Eurodollar
Advance will automatically, on the last day of the then
current Interest Period thereof, Convert into a Base Rate
Advance; and (iii) the obligations of the Banks to make
Eurodollar Advances shall be suspended until the Agent
determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall so
notify the Company and the Banks.
4.6. Increased Costs, Etc.
(a) Anything herein to the contrary
notwithstanding, if any changes in present or future
applicable law (which term "applicable law", as used in this
Agreement, includes statutes and rules and regulations
thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or
official charged with the administration or the
interpretation thereof and requests, directives,
instructions and notices at any time or from time to time
heretofore or hereafter made upon or otherwise issued to the
Agent or any Bank by any central bank or other fiscal,
monetary or other authority, whether or not having the force
of law) shall (i) subject the Agent or any Bank to any tax,
levy, impost, duty, charge, fee, deduction or withholding of
any nature with respect to this Agreement, the amount of the
Commitments or the payment to the Agent or any Bank of any
amounts due to it hereunder, or (ii) materially change the
basis of taxation of payments to the Agent or any Bank of
the principal of or the interest on the Advances or any
other amounts payable to the Agent or any Bank hereunder, or
(iii) impose or increase or render applicable any special or
supplemental deposit or reserve or similar requirements or
assessment against assets held by, or deposits in or for the
account of, or any liabilities of, or loans by an office of
the Agent or any Bank in respect of the transactions
contemplated herein, or (iv) impose on the Agent or any Bank
any other condition or requirement with respect to this
Agreement, the Commitments or any Advance, and the result of
any of the foregoing is (A) to increase the cost to any Bank
of making, funding or maintaining all or any part of the
Advances, or (B) to reduce the amount of principal, interest
or other amount payable to any Bank hereunder, or (C) to
require the Agent or any Bank to make any payment or to
forego any interest or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by the Agent or any Bank from
the Company hereunder, then, and in each such case not
otherwise provided for hereunder, the Company will, upon
demand made by the Agent promptly following the Agent's
receipt of notification of such event (or made by any Bank
with respect to any of the matters described in clause (iii)
above promptly following the Bank's receipt of notice
pertaining to such matters) accompanied by calculations
thereof in reasonable detail, pay to the Agent for its
account or for the account of such Bank, as the case may be,
such additional amounts as will be sufficient to compensate
them for such additional cost, reduction, payment or
foregone interest or other sum, provided that the foregoing
provisions of this sentence shall not apply in the case of
any additional cost, reduction, payment or foregone interest
or other sum resulting from any taxes charged upon or by
reference to the overall net income, profits or gains of the
Agent or any Bank.
(b) If any Bank shall have determined that any
present or future applicable law, rule, regulation,
guideline, directive or request (whether or not having force
of law) regarding capital requirements for banks or bank
holding companies, or any change therein or in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by such Bank with any of the foregoing, either imposes a
requirement upon such Bank to allocate additional capital
resources or increases such Bank's requirement to allocate
capital resources to such Bank's commitment to make, or to
such Bank's maintenance of, Advances hereunder, which has or
would have the effect of reducing the return on such Bank's
capital to a level below that which such Bank could have
achieved (taking into consideration such Bank's then
existing policies with respect to capital adequacy and
assuming full utilization of such Bank's capital) but for
such applicability, change, interpretation, administration
or compliance, by any amount deemed by such Bank to be
material, such Bank shall promptly after its determination
of such occurrence give notice thereof to the Company. The
Company and such Bank shall thereafter attempt to negotiate
in good faith an adjustment to the compensation payable
hereunder which will adequately compensate the Bank for such
reduction. If the Company and any such Bank are unable to
agree to such adjustment within thirty days after the day on
which the Company received such notice, then commencing on
the date of such notice (but not earlier than the effective
date of any such applicability, change, interpretation,
administration or compliance), the fees payable hereunder
shall increase by an amount which will, in such Bank's
reasonable determination, evidenced by calculations in
reasonable detail furnished to the Company, compensate such
Bank for such reduction, such Bank's determination of such
amount to be conclusive and binding upon the Company, absent
manifest error. In determining such amount, a Bank may use
any reasonable methods of averaging, allocating or
attributing such reduction among its customers.
4.7. Illegality or Impossibility. Notwithstanding
any other provision of this Agreement, if the introduction
of or any change in or in the interpretation of any law or
regulation applicable to any Bank or its Eurodollar Lending
Office shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over such Bank or
its Eurodollar Lending Office shall assert that it is
unlawful, for such Bank or Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar
Advances to the Company or to continue to fund or maintain
Eurodollar Advances to the Company hereunder, or if any Bank
determines after making reasonable efforts, including
consultations with the Agent, that deposits of the relevant
amount for the relevant Interest Period for Eurodollar
Advances to the Company, are not available to such Bank
after making reasonable attempts to obtain such deposits,
then, on notice thereof and demand therefor by such Bank to
the Company and the Agent, (i) the obligation of such Bank
to the Company to make Eurodollar Advances and to Convert
Base Rate Advances and into Eurodollar Advances in such
currency shall be suspended and (ii) the Company shall
forthwith prepay in full all Eurodollar Advances to such
Bank with interest accrued thereon. If the Company so
notifies the Agent within five Business Days after any Bank
notifies the Company pursuant to the foregoing provisions of
this 4.7, the Company may, instead of prepaying, Convert
all Eurodollar Advances of all Banks then outstanding into
Base Rate Advances.
4.8. Payment on Any Day Other Than The Last Day of an
Interest Period. If, due to payments or Conversions made by
the Company pursuant to this Agreement or due to
acceleration of the maturity of any Advances pursuant to 12
or due to any other reason, any Bank receives payments of
principal or is subject to a Conversion to another Type of
Advance of a Eurodollar Advance other than on the last day
of an Interest Period relating to the applicable Eurodollar
Advance the Company shall, upon demand by such Bank (with a
copy of such demand to the Agent), pay to the Agent for the
account of such Bank any amounts required to compensate such
Bank for any additional losses, costs or expenses which it
may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss,
including lost profits, costs or expenses incurred by reason
of the liquidation, reutilization or reemployment of
deposits or other funds acquired by such Bank to fund or
maintain such Advances. Such compensation may include,
without limitation, an amount equal to (a) the amount of
interest which would have accrued on the amount so paid,
prepaid or Converted or not borrowed, Converted or prepaid
for the period from the date of such payment, prepayment or
Conversion or failure to borrow, Convert or prepay to the
last day of the then current Interest Period for such
Advance (or, in the case of a failure to borrow, Convert or
prepay, to the last day of the Interest Period for such
Advance which would have commenced on the date of such
failure to borrow, Convert or prepay) at the applicable rate
of interest for such Advances provided for herein minus (b)
the amount of interest (as reasonably determined by the
Agent in consultation with such Bank), which would accrue
and become payable to such Bank during such period on the
principal repaid, prepaid or not borrowed if such Bank,
following such repayment, prepayment or failure to borrow,
were to reinvest such principal in U. S. Treasury securities
selected by such Bank in an amount equal (as nearly as may
be) to the principal so repaid, prepaid or not borrowed and
having a term equal (as near as may be) to such period.
4.9. Prepayments. The Company may not prepay
Competitive Bid Advances prior to the last day of the
Interest Period relating thereto. The Company may, upon at
least five Business Days notice to the Agent stating the
proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Company shall,
prepay the outstanding aggregate principal amount of all
other types of Advances made to the Company as part of the
same Borrowing, in whole at any time, or ratably in part
from time to time, with accrued interest to the date of such
prepayment on the principal amount prepaid; provided,
however, that: (i) each partial prepayment shall be in an
aggregate principal amount of not less than $1,000,000 and
(ii) all such prepayments shall be made to the Agent for the
account of the Banks ratably according to the then
outstanding principal amount of the Notes; and provided,
that if any such prepayment of Eurodollar Advances shall be
made on any day other than the last day of the Interest
Period applicable to such Advance, such Borrower shall
indemnify the Banks (i) as provided in 4.8 and (ii) for
amounts required to compensate each Bank for any additional
losses, including lost profits, costs or expenses which it
may reasonably incur as a result of such prepayment,
including without limitation any loss, costs or expenses
incurred by reason of the liquidation reutilization, or
reemployment of deposits or other funds.
4.10. Payments and Computations.
(a) The Company shall make each payment to be
made by it hereunder not later than 12:00 noon (Boston time)
on the day when due in lawful money of the United States to
the Agent at its address set forth in 20 in immediately
available funds. The Agent will, promptly after its receipt
thereof, distribute like funds relating to the payment of
principal or interest or Commitment Fees or other amounts
payable hereunder ratably to the Banks for the account of
their respective Advances and their Applicable Lending
Offices in like funds. All payments by the Company
hereunder and under any of the other Loan Documents shall be
made without setoff or counterclaim and free and clear of
and without deduction for any taxes, levies, imposts,
duties, charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority
therein unless the Company is compelled by law to make such
deduction or withholding. If any such obligation is imposed
hereafter upon the Company with respect to any amount
payable by it hereunder or under any of the other Loan
Documents, the Company will pay to the Agent, for the
account of the Banks or (as the case may be) the Agent, on
the date on which such amount is due and payable hereunder
or under such other Loan Document, such additional amount in
dollars as shall be necessary to enable the Banks or the
Agent to receive the same net amount which the Banks or the
Agent would have received on such due date had no such
obligation been imposed upon the Company, provided that the
foregoing obligation to pay such additional amounts shall
not apply:
(i) to any payment to a Bank if such Bank is not,
on the date hereof (or on the date it becomes a Bank
under this Agreement) and on the date of any change in
the lending office of such Bank identified after its
execution, entitled by virtue of its status as a
non-resident alien to submit either a Form 1001
(relating to such Bank and entitling it to a complete
exemption from withholding on all interest to be
received by it hereunder in respect of the Advances) or
Form 4224 (relating to all interest to be received by
such Bank hereunder in respect of Advances) of the U.S.
Department of Treasury, or
(ii) to any item referred to in the preceding
sentence that would not have been imposed but for the
failure by such Bank to comply with applicable
certification, information, documentation or other
reporting requirements concerning the nationality,
residence, identity or connections of such Bank with
the United States if such compliance is required by
statute or regulation of the United States as a
precondition to relief or exemption from such item.
The Company will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other
charges deducted from or paid with respect to payments made
by the Company hereunder or under such other Loan Document.
Promptly after receipt of all payments with respect to
Competitive Bid Advances, the Agent shall pay the proper
portion of such payment to each Bank which made such
Competitive Bid Advance.
(b) All computations of interest, Commitment Fees
and Facility Fees hereunder shall be made by the Agent on
the basis of a year of 360 days for the actual number of
days (including the first day but excluding the last day)
elapsed. The outstanding amount of the Advances as
reflected on the Agent's records from time to time shall be
considered correct and binding on the Company and the Banks
unless within thirty (30) days after receipt of any notice
by the Agent of such outstanding amount, the Company or any
of the Banks, as the case may be, notify the Agent to the
contrary.
(c) Any change in the rate of interest payable on
any Advance resulting from a change in the Alternate Base
Rate shall become effective as of the opening of business on
the day on which such change in the Alternate Base Rate
becomes effective.
4.11. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on
the next succeeding Business Day, (except as provided in the
definition of Interest Period in 1) and such extension of
time shall in such case be included in the computation of
payment of interest or Commitment Fees, or Facility Fees, as
the case may be.
4.12. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on
account of the Advances made by it in excess of its ratable
share (according to the then outstanding principal amount of
the Advances) of payments on account of the Advances
obtained by all the Banks, such Bank shall purchase from the
other Banks such participations in the Advances held by such
other Banks as shall cause such purchasing Bank to share
such payment ratably according to the then outstanding
principal amount of the Advances with each of such other
Banks; provided, however, that if all or any portion of such
payment is thereafter recovered from such purchasing Bank,
the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, with interest at an
interest rate per annum equal to the Alternate Base Rate.
The Company agree that any Bank so purchasing a
participation in the Company's Advance from another Bank
pursuant to this 4.12 may, to the fullest extent permitted
by law, exercise all its rights of payment with respect to
such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation.
5. COMMITMENTS.
5.1. Amount of Commitment. The respective amount of
each Bank's Commitment on the date hereof and its respective
Commitment Percentage shall be as follows (except as may be
modified pursuant to Section 17):
Amount of Commitment
Lender Commitment Percentage
The Bank of New York $20,000,000 26.67%
Union Bank of $10,000,000 13.33%
California, N.A.
CoreStates Bank, $10,000,000 13.33%
N.A.
First Union National $10,000,000 13.33%
Bank
Fleet National Bank $25,000,000 33.33%
5.2. Extension of Commitments. The Company may, by
written notice to the Banks and the Agent not less than
sixty (60) days and not more than ninety (90) days prior to
the Termination Date then in effect, request that the
Termination Date be extended to a later date specified in
such notice. The Agent shall notify the Company as to
whether all of the Banks have agreed to the extension of the
Termination Date to such later date not later than thirty
(30) days prior to the Termination Date then in effect. An
extension to which all of the Banks have agreed shall become
effective upon the receipt by the Banks not less than five
(5) Business Days prior to the Termination Date then in
effect of (a) executed promissory notes substantially in the
form of Exhibit A hereto, and (b) an opinion of counsel to
the Company, satisfactory to the Banks and their counsel, as
to the due authorization, execution and delivery by the
Company of such notice of extension and such promissory
notes, the validity and binding effect as regards the
Company of this Agreement and the promissory notes so
delivered, and there being no necessity for any
authorization or approval by, or any filing or registration
with, any public regulatory body (including, but without
limitation, approval of the DPU) for such extension and for
the performance of this Agreement and the promissory notes
so delivered (or, if any such action is necessary or
required, stating that the same has been duly obtained or
effected, and is valid and sufficient for the purpose and a
true copy thereof is attached to such opinion).
5.3. Commitment Fees.
(a) Facility Fee. The Company agree to pay to
the Agent for the account of each Bank, pro rata in
accordance with its Commitment, a Facility Fee (the
"Facility Fee") calculated at the Applicable Facility Fee
Rate on the amount equal to the excess of (i) such Bank's
Commitment over (ii) such Bank's "Commitment" under and as
defined in the Trust Credit Agreement. The Facility Fee
shall be payable quarterly in arrears on the last day of
each calendar quarter and on the Termination Date.
(b) Agent's Fees. The Company has agreed to pay
to the Agent a fee for arranging the Advances hereunder and
an agent's administration fee (the "Agent's Fee") in
accordance with a letter agreement dated as of the date
hereof, between the Company and the Agent.
5.4. Reduction and Termination by the Company. The
Company at its option may, at any time and from time to
time, reduce ratably in part (in integral multiples of
$5,000,000) or terminate in whole the unused portion of the
Commitments of the Banks provided for in 5.1 on not less
than five Business Days' notice in writing, telegraphic or
telephonic notice confirmed in writing to the Agent.
Promptly after receiving any notice of the Company delivered
pursuant to this 5.4, the Agent will notify the Banks of
the substance thereof. After any such termination, the
Company may not reinstate the portion terminated.
Notwithstanding the foregoing, the Company may not reduce
the Commitments of the Banks provided for in 5.1 to amounts
that are less than the "Commitments" of the Banks from time
to time provided for in 5.1 of the Trust Credit Agreement.
6. CONDITIONS OF FIRST LENDING. The obligation of
each Bank to make its Advance on the occasion of the First
Lending is subject to the following conditions precedent:
6.1. Documentation. The Agent shall have received
before the day of the First Lending, in form and substance
satisfactory to the Agent and in sufficient copies for each
Bank:
(a) Certified copies of the resolutions of the
Board of Directors of the Company approving this
Agreement and the other Loan Documents;
(b) Signed copies of a certificate of the Clerk
or an Assistant Clerk of the Company certifying the
names and true signatures of the officers of the
Company authorized to sign this Agreement and the other
Loan Documents and any other documents delivered or to
be delivered by the Company hereunder;
(c) A certificate from the Secretary of State of
The Commonwealth of Massachusetts as to the Company's
corporate existence and good standing;
(d) A certificate from the Massachusetts
Department of Revenue as to the Company's tax good
standing or, if such certificate cannot be obtained
prior to the First Lending, a certificate of the
Treasurer of the Company certifying as to the Company's
tax compliance; and
(e) A favorable opinion of counsel to the
Borrowers in substantially the form of Exhibit F hereto
and as to such other matters as any Bank through the
Agent may reasonably request; and
(f) Certified copies of the charter and by-laws
of the Company as in effect on the Closing Date; and
(g) Copies of any authorization or approval of
any public regulatory body (including, without
limitation, the DPU) required for the execution,
delivery and performance by the Company of this
Agreement and the other documents to be delivered by
the Company hereunder.
6.2. Financial Statements. The Banks shall have
received not less than five (5) days prior to the Closing
Date audited consolidated and consolidating balance sheets
of the Company and its Subsidiaries as at December 31, 1996,
and related consolidated and consolidating statements of
income and retained earnings of the Company and its
Subsidiaries for the twelve months then ended, in each case
prepared in accordance with GAAP and certified by Xxxxx
Xxxxxxxx or other Independent Accountant.
6.3. Representations and Warranties. The
representations and warranties contained in 8 shall have
been correct as of the date on which made and shall also be
correct at and as of the date of the First Lending with the
same effect as if made at and as of such time, except to the
extent that the facts upon which such representations and
warranties are based may in the ordinary course be changed
by the transactions permitted or contemplated hereby, and
the Company shall deliver a certificate to the Agent to such
effect.
6.4. Performance; No Default. The Company shall have
performed and complied with all terms and conditions herein
required to be performed or complied with by it prior to or
at the time of the First Lending and at the time of the
First Lending there shall exist no Default or Event of
Default or condition which would, with either or both the
giving of notice or the lapse of time, result in a Default
or Event of Default upon consummation of the First Lending.
6.5. Security Documents Trust Credit Agreement. The
Trust Credit Agreement shall have been duly executed and
delivered by the parties thereto and all of the conditions
to the "First Lending" thereunder shall have been satisfied.
6.6. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this
Agreement and all documents incident thereto shall be
reasonably satisfactory in substance and in form to the
Agent and to the Agent's Special Counsel, and the Agent and
such counsel shall have received all information and such
counterpart originals or certified or other copies of such
documents and such other approvals, opinions or documents as
the Agent or such counsel may reasonably request.
6.7. Notice of Borrowing. The Agent shall have
received a Notice of Borrowing from the Company as required
by 2.2.
7. CONDITIONS OF SUBSEQUENT BORROWINGS. The
obligation of the Banks to make any Advances subsequent to
the Closing Date is subject to the following conditions
precedent:
7.1. Representations and Warranties. The
representations and warranties contained in 8 (other than
those representations and warranties contained in 8.1,
8.3, 8.4, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, and 8.13 to the
extent that such representations and warranties pertain to a
Subsidiary as of a date after the date of the First Lending
and other than the representations and warranties contained
in 8.5 to the extent that such representations and
warranties pertain to Advances employed solely to repay
outstanding Advances as of the end of the Interest Period
pertaining to such Advances) and otherwise made by the
Company in connection with the transactions contemplated by
this Agreement subsequent to the date hereof shall have been
correct as of the date on which made and shall also be
correct at and as of the date of the Advances, with the same
effect as if made at and as of such time, except to the
extent that the facts upon which such representations and
warranties are based may be changed by the actions or
transactions permitted or contemplated hereby.
7.2. Performance; No Default. The Company shall have
performed and complied with all terms and conditions herein
required to be performed or complied with by it prior to or
at the time of the Advances, and there shall exist no
Default or Event of Default or condition which would, with
either or both the giving of notice or the lapse of time,
result in a Default or Event of Default upon consummation of
the Advance.
In the case of any Advance, the giving of each Notice
of Borrowing made subsequent to the Closing Date, as the
case may be, by the Company shall be deemed to be a
representation and warranty by the Company on the dates of
such Notice of Borrowing and of such Borrowing that the
statements in 8 are correct in all material respects.
7.3. Notes in Full Force and Effect. The Notes shall
be in full force and effect, and the Company shall have
delivered to the Banks contemporaneously with its delivery
of such Notes an opinion of counsel, satisfactory to the
Banks, regarding the due authorization, execution and
delivery of such Notes, the validity and binding effect of
such Notes, and there being no necessity for any
authorization or approval by, or any filing or registration
with, any public regulatory body (including, but without
limitation, approval of the DPU) for the delivery of such
Notes or the performance of such Notes.
8. REPRESENTATIONS AND WARRANTIES. The Company
represent and warrant to the Agent and the Banks that:
8.1. Corporate Existence and Good Standing, Etc.
(a) The Company and each of its Subsidiaries (i)
are corporations duly organized, validly existing and in
good standing under the laws of the respective jurisdictions
in which they are incorporated, (ii) have corporate power to
own their property and conduct their respective businesses
as now and as presently contemplated, and (iii) are duly
qualified to do business and in good standing as foreign
corporations in each jurisdiction where the conduct of their
business or the nature of their assets require such
qualification except where failure to so qualify would have
no material adverse effect. The Company has no Subsidiaries
except for Transgas Inc. and CGI Transport Ltd.
(b) The Company has its chief executive offices
at 00 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 at which place its
principal books and records are kept.
8.2. Corporate Power; Consents; Absence of Conflict
with Other Agreements, Etc. The execution, delivery and
performance of this Agreement and the other Loan Documents
by the Company and the Borrowings and transactions
contemplated hereby and thereby:
(a) are within the corporate powers of the
Company, have been duly authorized by all necessary
corporate action and do not and will not contravene any
provision of law or any contractual restriction binding on
or affecting it;
(b) do not require any approval or consent of, or
filing with, any governmental agency or authority bearing on
the validity of such instruments and Borrowings which is
required by law or the regulation of any such agency or
authority which have not been obtained and delivered to the
Agent prior to the Closing Date and are not in contravention
of the terms of the Company's Certificate of Incorporation
or by-laws, or any amendment thereof;
(c) will not conflict with or result in any
breach or contravention of or the creation of any lien
under, any indenture, agreement, lease, instrument or
undertaking to which the Company is a party or by which it
is bound; and
(d) in all material respects are and will be
valid and legally binding obligations of the Company and are
and will be enforceable in accordance with their respective
terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting generally the enforcement of creditors' rights.
8.3. Title to Properties; Leases. Except as
indicated on Schedule 8.3 hereto, the Company and its
Subsidiaries own all of their respective assets reflected in
the balance sheet as at December 31, 1996 described in 6.2,
or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business
since that date), subject to no mortgages, leases, liens or
other encumbrances except for (i) current taxes or taxes
being contested in good faith by appropriate proceedings and
then only to the extent that adequate reserves have been set
aside therefor or its books in accordance with GAAP, (ii)
liens arising in the ordinary course of business or sums
being contested in good faith by appropriate proceedings and
then only to the extent that adequate reserves have been set
aside therefor or its books in accordance with GAAP, but not
involving Debt, (iii) liens existing on the date hereof to
the extent shown on Schedule 8.3 or (iv) hereafter incurred
and permitted under 11.2.
8.4. Financial Statements. The financial statements
delivered to the Banks pursuant to 6.2 fairly present the
financial condition of the Company and its Subsidiaries as
at the close of business on the date thereof. There are no
contingent liabilities of the Company and its Subsidiaries
as of such date involving material amounts, which are not
disclosed in said balance sheets and the related notes
thereto.
8.5. No Material Changes, Etc. Since December 31,
1996, there have occurred no Material Adverse Changes as
shown on or reflected in the financial statements delivered
to the Bank pursuant to 6.2 hereof.
8.6. Franchises, Patents, Copyrights, Etc. Each of
the Company and its Subsidiaries possesses franchises,
patents, copyrights, trademarks, tradenames, licenses and
permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now
conducted and without any conflict with any rights of others
(other than for conflicts that would not either individually
or collectively have a Material Adverse Effect).
8.7. Litigation. Except as set forth on
Schedule 8.7, there are no actions, suits, proceedings or
investigations of any kind pending or threatened against the
Company or any Subsidiary before any court, tribunal or
administrative agency or board which, if adversely
determined, might, either in any case or in the aggregate,
have a Material Adverse Effect or materially impair the
right of the Company and its Subsidiaries taken as a whole,
to carry on business substantially as now conducted, or
result in any substantial liability not adequately covered
by insurance, or which question the validity of this
Agreement or the Notes, or any action taken or to be taken
pursuant hereto or thereto.
8.8. No Materially Adverse Contracts, Etc. Neither
the Company nor any of its Subsidiaries is subject to any
indenture, agreement or charter, corporate or other legal
restriction, or any judgment, decree, order, rule or
regulation which has or is expected in the future to have a
Material Adverse Effect. Neither the Company nor any of its
Subsidiaries is a party to any contract or agreement which
has or is expected to have any Material Adverse Effect.
8.9. Compliance with Other Instruments, Laws, Etc.
Neither the Company nor any of its Subsidiaries is in
violation of any provision of its charter documents or
by-laws or any other agreement or instrument by which it or
any of its properties may be bound or any decree, order,
judgment, any statute, license, rule or regulation, in a
manner which could result in the imposition of substantial
penalties or have a Material Adverse Effect.
8.10. Tax Status. Each of the Company and its
Subsidiaries has made or filed all federal and state income
all other tax returns, reports and declarations required by
any jurisdiction to which it is subject; and has paid all
taxes and other governmental assessments and charges shown
or determined to be due on such returns, reports and
declarations, except those being contested in good faith by
appropriate proceedings and then only to the extent that
adequate reserves have been set aside therefor or its books
in accordance with GAAP, but not involving any Debt; and has
set aside on its books provisions reasonably adequate for
the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and the Company knows of no basis for any such
claim.
8.11. Absence of Security Interests, Etc. Except (i)
for current taxes or taxes being contested in good faith by
appropriate proceedings and for which any adequate reserves
required by GAAP have been established, (ii) liens arising
in the ordinary course of business or sums being contested
in good faith, but not involving any Debt, (iii) liens
existing on the date hereof to the extent shown in the
financial statements referred to in 6.2 or Schedule 8.3 or
(iv) liens hereafter incurred and permitted under 11.2,
there is no significant financing statement, security
agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records,
registry, or other public office of any jurisdiction, which
purports to cover, affect or give notice of any present or
possible future lien on, or security interest in, any assets
or property of the Company, any of its Subsidiaries or any
rights thereunder.
8.12. Use of Proceeds. The proceeds of the Advances
shall be used for general corporate purposes, which may
include the financing of gas inventory purchases. No
portion of any Advance is to be used for the purpose of
purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations G and U of the
Board of Governors of the Federal Reserve System, 12 C.F.R.
207 and 221.
8.13. Pension Plan. The funding of any Guaranteed
Pension Plan of the Company and its Subsidiaries, or any of
them, complies with the minimum funding standards of 412 of
the Internal Revenue Code of 1986, as amended.
8.14. Subsidiaries. The Company owns directly or
beneficially through one or more of its Subsidiaries, free
and clear of all material liens and encumbrances, at least
one hundred percent (100%) of the issued and outstanding
Voting Stock of each of its Subsidiaries. The Company has
no Subsidiaries other than those Subsidiaries named in
8.1(a) hereof. All shares of such stock have been validly
issued and are fully paid and non-assessable, and no rights
to subscribe to additional shares have been granted.
8.15. Disclosure. Neither this Agreement nor any
document delivered to the Agent or any Bank by or on behalf
of the Company to induce such Bank to enter into this
Agreement contains any untrue statement of a material fact
or omits to state a material fact which omission would make
the statements herein or therein misleading.
8.16. Investment Company; Public Utility Holding
Company. Neither the Company nor any Subsidiary is an
"investment company" or a "company controlled" by an
"investment company" or an "affiliate" of an "investment
company" within the meaning of the Investment Company Act of
1940, as amended. Neither the Company nor any Subsidiary is
a "holding company", or a "subsidiary company" of a "holding
company", or an affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms
are defined in the Public Utility Holding Company Act of
1935, as amended.
8.17. Environmental Matters. The Company is in
compliance in all material respects with all applicable
Environmental Laws (as defined herein), including, without
limitation, the Clean Water Act of 1977, as amended, 33
U.S.C. 1251 et seq., the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. 6901 et seq. ("RCRA"), the
Massachusetts Hazardous Waste Management Act, Massachusetts
General Laws Annotated ch. 21C (West 1992) (the
"Massachusetts Hazardous Waste Act"), the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. 9601 et seq.
("CERCLA"), and the Massachusetts Oil and Hazardous Material
Release Prevention Act, Massachusetts General Laws Annotated
ch. 21E (West 1992) (the "Massachusetts Oil and Hazardous
Material Act"), except for such noncompliance which, in the
judgment of the Company, would not have a Material Adverse
Effect and, to its knowledge, has not acquired, incurred or
assumed, directly or indirectly, any contingent liability in
connection with the release of any Hazardous Substance (as
defined herein) into the environment which, in the judgment
of the Company, would have a Material Adverse Effect. To
the best of the Company's knowledge, the Company is not the
subject of any evaluation, administrative proceedings,
administrative consent orders, judicial proceedings or
demand orders under CERCLA, or under the Massachusetts Oil
and Hazardous Material Act, or any similar statute in any
other jurisdiction which, in the judgment of the Company,
would have a Material Adverse Effect.
9. EXEMPT CHARACTER OF TRANSACTION. This Agreement
is made with the Banks in reliance upon their several
representations to the Company, which by their execution of
this Agreement they hereby confirm, that each Bank for
itself and not for any other Bank has no present intention
of selling or otherwise disposing of any interest in the
Advances other than for participations contemplated by 25
and assignments contemplated by 17 hereof. The Company
represents to the Banks that it has not, either directly or
through any agent, offered any interest in the Advances for
sale to, or solicited any offers to buy any interest therein
from, or otherwise approached or negotiated in respect of
any interest therein with, any Person or Persons other than
the Banks. Each Bank agrees that it will not, directly or
indirectly, sell or offer, or attempt to offer to dispose
of, any interest in the Advances or solicit any offers to
buy any interest therein from, or otherwise approach or
negotiate with respect thereto with, any Person whatsoever
so as to bring the execution and delivery of this Agreement
within the provisions of 5 of the Securities Act of 1933,
as now in effect or as later amended.
10. AFFIRMATIVE COVENANTS. Until expiration or
termination of the Commitments and thereafter until all
obligations of the Company hereunder and under the Notes are
paid in full, the Company agrees that it will:
10.1. Punctual Payment. Duly and punctually pay or
cause to be paid the principal and interest on the Advances,
and the Commitment Fees, the Facility Fees, the Agent's Fees
and all other fees and expenses payable as provided herein
or in the other Loan Documents as the same shall become due,
whether at maturity or at any date fixed for payment or
prepayment or by declaration or otherwise, all in accordance
with the terms of this Agreement.
10.2. Maintenance of Office. Maintain an office at
00 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx or at such other
place in Massachusetts as the Company shall designate within
30 days of any change of such office by written notice,
addressed as provided in 20 where notices, presentations
and demands to or upon the Company in respect of the
Advances may be given or made.
10.3. Reports, Certificates and Other Information.
Furnish to the Agent (in sufficient number of copies to
provide one to each Bank):
(a) Annual Report. As soon as practicable and,
in any event, within 90 days after the end of each fiscal
year of the Company a consolidated and consolidating balance
sheet of each of the Company and its Subsidiaries as at the
end of such fiscal year and consolidated and consolidating
statements of earnings and cash flow of the Company and its
Subsidiaries for the fiscal year then ended, each setting
forth in comparative form the figures for the previous
fiscal year, all in reasonable detail prepared in accordance
with GAAP, such consolidated financial statements to be
accompanied by a report and opinion of Xxxxx Xxxxxxxx or
other Independent Accountants, to the effect that such
consolidated financial statements have been prepared in
accordance with GAAP applied on a basis consistent with
prior years (except as to changes with which such
accountants concur) and present fairly, in all material
respects, the consolidated financial position of the Company
and its Subsidiaries as of the date thereof, and the
consolidated results of their operations and their
consolidated cash flows for each of the three years in the
period ended at the date thereof.
(b) Interim Reports. Within forty-five (45) days
after each quarter (except the last quarter) of each fiscal
year of the Company, a copy of the report on Form 10-Q of
the Securities and Exchange Commission filed by the Company
and its Subsidiaries with respect to such quarter or, if no
such report has been timely filed, unaudited financial
statements of the Company and its Subsidiaries prepared in
the same manner as the annual report referred to in
10.3(a), signed by a proper officer of the Company and
consisting of at least a balance sheet as at the close of
such quarter and statements of earnings and cash flows for
such quarter and for the period from the beginning of such
fiscal year to the close of such quarter.
(c) Certificates. Contemporaneously with the
furnishing of a copy of each annual report provided for in
subsection (a) and of each set of quarterly statements
provided for in subsection (b), a Compliance Certificate
from the Company substantially in the form of Exhibit G
hereto (the "Compliance Certificate") dated the date of such
annual report or such quarterly statements and signed on
behalf of the Company, by the President, the chief financial
officer, the chief accounting officer or the Treasurer of
the Company to the effect that no Default or Event of
Default has occurred and is continuing, or, if there is any
such event, describing it and the steps, if any, being taken
to cure it and containing a computation of, and showing
compliance with, each of the financial ratios and
restrictions contained in 11.8 and 11.9 of this Agreement.
(d) Reports to SEC and to Shareholders. Copies
of each material filing and report made by the Company or
any Subsidiary with or to the Securities and Exchange
Commission, and of each material communication from the
Company or any Subsidiary to shareholders generally,
promptly upon the filing or making thereof.
(e) Notice of Default, Litigation, ERISA Matters
and Environmental Matters. Forthwith upon learning of the
occurrence of any of the following, written notice thereof,
describing the same and the steps being taken by the Company
with respect thereto: (i) the occurrence of a Default or
Event of Default or any event which, but for the waiver of
such event, would be a Default or Event of Default, or (ii)
the institution of, or any adverse determination in, any
litigation, arbitration proceeding or governmental
proceeding which is, or could have a Material Adverse
Effect, or (iii) the occurrence of a Reportable Event under
ERISA for which the 30-day notice requirement under ERISA
Regulation 2615.3(a) is not waived, or the institution of
steps by the Company or any Subsidiary to withdraw from, or
the institution of any steps to terminate, any employee
benefit plan as to which the Company or any of its
Subsidiaries may have any material unfunded liability. The
Company will promptly give notice to the Agent and each of
the Banks (i) of any violation of any federal, state or
local statute, regulation, ordinance, order or decree
relating to health, safety or the environment that the
Company report in writing or is reportable by such Person in
writing (or for which any written report supplemental to any
oral report is made) to any federal, state or local
environmental agency and that, in the judgment of the
Company, would have a Material Adverse Effect, and (ii) upon
becoming aware thereof, of any inquiry, proceeding,
investigation or other action, including a notice from any
agency of potential environmental liability, or any federal,
state or local environmental agency or board that, in the
judgment of the Company, would have a Material Adverse
Effect.
(f) Financial Forecast. Prior to the end of each
fiscal year, beginning with the fiscal year ending
December 31, 1997, the Company's annual financial forecast,
on a quarterly basis, for the next following fiscal year, in
such form and with such detail as the Banks may request.
(g) Other Information. From time to time such
other information concerning the Company and its
Subsidiaries as any Bank or the Agent may reasonably
request.
10.4. Existence and Franchises. Except as otherwise
expressly permitted in this Agreement, maintain, and cause
each of its Subsidiaries to maintain in full force and
effect, its separate existence and all rights, licenses,
leases and franchises reasonably necessary to the conduct of
its business and comply with (i) the applicable laws and
regulations wherever its business is conducted, (ii) the
provisions of its charter documents or by-laws and (iii) all
agreements and instruments by which it or any of its
properties may be bound and all applicable decrees, orders
and judgments.
10.5. Payments of Taxes. Promptly pay when due, and
cause each of its Subsidiaries to do the same, all material
taxes, assessments or other governmental charges owing,
unless the same shall be diligently contested in good faith
and reserves, which are adequate in accordance with GAAP,
have been set aside therefor.
10.6. Maintenance of Property. Maintain all material
assets or property in good repair and working order and
condition, normal wear and tear excepted, and cause each of
the Subsidiaries to do the same, and make all needful
repairs, replacements, additions and improvements thereto.
10.7. Books, Records and Inspections. Maintain, and
cause each of its Subsidiaries to maintain, complete and
accurate books and records; permit reasonable access during
normal business hours by any Bank or the Agent to the books
and records of the Company and of any Subsidiary; and permit
any Bank or the Agent to inspect the properties and
operations of the Company and of any Subsidiary and promptly
respond to all reasonable requests for information by any
Bank or the Agent.
10.8. Employee Benefit Plans. Maintain, and cause
each of its Subsidiaries to maintain, each employee benefit
plan as to which it may have any material liability, in
material compliance with all applicable requirements of law
and regulations.
10.9. Copies of Employee Benefit Plan Reports. If
requested by any Bank, send to each of the Banks copies of
all Forms 5500 and/or Forms 5500C relating to a Guaranteed
Pension Plan together with all attachments thereto,
including any actuarial statement required to be made under
103(d) of ERISA, promptly following the date on which any
such form is filed with the Department of Labor, except, in
the case of any multi-employer plans, the Company will cause
such Forms and all such attachments thereto to be sent to
the Banks within a reasonable time after such Forms are
filed with the Department of Labor.
10.10. Further Assurances. Cooperate with the Banks
and execute, acknowledge (if appropriate) and deliver such
further instruments and documents, and take such other
action as the Banks shall reasonably request to carry out to
their satisfaction the transactions contemplated by this
Agreement.
10.11. Securities Law, Etc. Compliance. Comply in
all material respects with all valid applicable laws and any
rules and regulations thereunder in connection with all
transactions contemplated by this Agreement, including
(without limitation) takeover, disclosure and other Federal
and State securities laws and Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System.
10.12. Insurance. Maintain, and cause each of its
Subsidiaries to maintain, with financially sound and
reputable insurers insurance with respect to its properties
and business against such casualties and contingencies in
amounts, containing such terms, in such forms and for such
periods as shall be in accordance with the general practices
of businesses engaged in similar activities in similar
geographic areas (which may include reasonable self
insurance) and as may be reasonably satisfactory to the
Banks. Without limiting the foregoing, the Company will,
and will cause each of its Subsidiaries to (i) keep all of
its physical property insured against fire, flood and
extended coverage risks in amounts and with deductibles
equal to those generally maintained by businesses engaged in
similar activities in similar geographic areas, which may
include reasonable self insurance (ii) maintain all such
workers' compensation or similar insurance as may be
required by law, and (iii) maintain, in amounts and with
deductibles equal to those generally maintained by
businesses engaged in similar activities in similar
geographic areas (which may include reasonable self
insurance), general public liability insurance against
claims for bodily injury, death or property damage occurring
on, in or about its properties, business interruption
insurance and product liability insurance. At least five
(5) days before the expiration of any such policy, the
Company will (except as aforesaid) obtain a renewal of any
policy about to expire or a new policy or policies operating
as a renewal thereof, to the satisfaction of the Banks;
provided, however, that the Company will notify the Banks
that a policy is being canceled by an insurer not later than
ten (10) days prior to the effective date of such
cancellation. In the event of failure to provide and
maintain insurance as herein provided, the Banks may, at
their option, after giving notice to and consulting with the
Company, provide such insurance and charge the amount
thereof to the Company and the Company hereby promises to
pay to the Banks on demand the amount of any disbursements
made by the Banks for such purpose. The Company shall
furnish to the Banks certificates or other evidence
satisfactory to the Banks of compliance with the foregoing
insurance provision.
10.13. Payment of Indebtedness and Performance of
Obligations. Pay and discharge promptly as and when due all
lawful indebtedness, obligations and claims for labor,
materials and supplies or otherwise (including, without
limitation, Debt) which, if unpaid, would (a) have a
Material Adverse Effect, or (b) become a lien not permitted
by paragraph 11.2, provided that the Company shall not be
required to pay and discharge or cause to be paid and
discharged any such indebtedness, obligation or claim so
long as the validity thereof shall be contested in good
faith and by appropriate proceedings diligently conducted by
the Company, and further provided that such reserve or other
appropriate provision as shall be required in accordance
with GAAP shall have been made therefor.
10.14. Change of Corporate Name. Notify the Agent
within ten (10) days of any change in its corporate name and
duly execute and deliver appropriate financing statements
and other documents necessary to enable the Agent to
maintain continuously perfected the security interests
granted under the Security Documents.
11. CERTAIN NEGATIVE COVENANTS. The Company agrees
that, so long as any portion of the Commitments remain
outstanding or until such date as the Advances and all other
Obligations have been paid and satisfied in full, whichever
shall later occur, it will not:
11.1. Debt. Incur or permit to exist, with respect
to it or any of its Subsidiaries, any Debt except (i) the
Advances, (ii) in the case of the Company, purchase money
debt incurred in connection with the acquisition of real or
personal property after the date hereof not to exceed in the
aggregate $500,000, (iii) the Mortgage Debt, (iv) other Debt
reflected on the audited balance sheets delivered to the
Bank pursuant to 6.2 hereof and extensions, renewals or
refinancings of such Debt; provided that the aggregate
principal amount of such Debt is not increased, (v) Debt
arising under the Fuel Purchase Contract, (vi) additional
Debt, provided that all Debt incurred pursuant to this
clause (vi) shall be unsecured and shall either require no
amortization of principal on or prior to the Termination
Date or shall be subordinated to the obligations of the
Company hereunder on terms and conditions satisfactory to
the Banks, and (vii) any Company Subsidiaries may incur Debt
so long as such debt is non-recourse to both the Company and
the Trust and the aggregate amount of such debt does not
exceed $10,000,000 at any time.
11.2. Liens. Create or permit to exist any mortgage,
pledge, title retention lien, or other lien, encumbrance or
security interest with respect to any assets now owned or
hereafter acquired, except
(i) liens existing on the date of this Agreement
and described on Schedule 8.3 hereto;
(ii) liens securing Debt permitted under clause
(ii) of 11.1 and attached only to the property
acquired;
(iii) mechanic's, materialmen's, suppliers',
tax and other like liens arising in the ordinary course
of business securing obligations which are not overdue
or, if overdue, are being contested in good faith by
appropriate proceedings; liens arising in connection
with workmen's compensation, unemployment insurance and
appeal and release bonds; and other liens incident to
the conduct of business or the operation of property
and assets and not incurred in connection with the
obtaining of any advance or credit;
(iv) Liens arising under the Indenture as from
time to time amended or supplemented;
(v) Liens securing the Advances or arising under
the Fuel Purchase Contract;
(vi) Liens which constitute "permitted liens," as
defined in the Indenture;
(vii) Liens arising out of judgments or awards
against the Company with respect to which at the time
an appeal or proceeding for review is being prosecuted
in good faith and with respect to which there shall
have been secured a stay of execution pending such
appeal or proceedings for review; and
(viii) Liens on appliances and gas utilization
equipment held for resale, securing the purchase price
of such appliances and gas utilization equipment,
provided that the aggregate amount of Debt secured by
such Liens shall not exceed at any time $500,000.
Notwithstanding the foregoing, the Company will not in
any event pledge or assign as security to any Person other
than the Agent (A) the gas inventory or accounts receivable
of the Trust or (B) the gas inventory or accounts receivable
of the Company relating to such gas inventory.
11.3. Guaranties, Loans or Advances. With respect to
it or any of its Subsidiaries, become or be a guarantor or
surety of, or otherwise become or be responsible in any
manner (whether by agreement to purchase any obligations,
stock, assets, goods or services, or to supply or advance
any funds, assets, goods or services, or otherwise) with
respect to, any undertaking of any other person or entity,
or make or permit to exist any loans or advances to any
other person or entity, except for (i) the endorsement, in
the ordinary course of collection, of instruments payable to
it or to its order, (ii) in the case of the Company, its
monetary obligations under the Fuel Purchase Contract, and
(iii) in the case of the Company, guaranties made in the
ordinary course of business in an amount not to exceed
$2,500,000 and not guaranteeing obligations for borrowed
money.
11.4. Investments. With respect to the Company,
purchase or otherwise acquire any security or Debt of any
Person, whether directly or indirectly, except (i)
marketable unconditional obligations of or guaranteed by the
government of the United States of America maturing not more
than five (5) years after original issue, or participations
in such obligations acquired from any Bank or other domestic
bank having total assets in excess of $1,000,000,000, (ii)
certificates of deposit and eligible bankers' acceptances
for the Banks or such other domestic banks and demand and
time deposits in any bank, (iii) commercial paper rated at
the time of acquisition thereof not less than "P-1" by
Xxxxx'x Investors Service Inc. or "A-1" by Standard & Poors
Corporation, and (iv) the Company's investments in
Acquisitions or existing Subsidiaries.
11.5. Subsidiaries. (i) Directly or indirectly,
enter into any transaction with any Subsidiary except on
terms which are fair and reasonable to the Company and
which, taken as a whole, are at least as favorable to the
Company as it would obtain in a comparable transaction with
an unrelated person, or (ii) sell the stock of any
Subsidiary, or permit a Subsidiary to sell or otherwise
dispose of its property, other than at a fair value, unless
such sale or disposition is not detrimental to the interests
of the Banks hereunder and the difference between the fair
value and the proceeds of such sale or disposition is either
less than $25,000 or, in the aggregate with the differences
from all other such sales or dispositions during the
preceding 24 consecutive months, less than 3/4 of 1% of
tangible net worth as shown in the most recent report of the
Company.
11.6. Other Agreements. With respect to it or any of
its Subsidiaries, enter into any agreement containing any
provision which would be violated or breached by the
performance of its obligations hereunder or under any
instrument or document delivered or to be delivered by it
hereunder or in connection herewith.
11.7. Merger, Consolidation, or Sale of Assets. With
respect to it or any of its Subsidiaries, become a party to
any merger, consolidation, or disposition of any substantial
assets, except mergers of a Subsidiary into another
Subsidiary, or the merger of the Trust into the Company so
long as the Company is the survivor of such merger.
11.8. Debt to Capitalization Ratio. Permit the
total amount of Debt to exceed sixty-five percent (65%) of
Consolidated Capitalization.
11.9. Interest Coverage Ratio. Permit the Interest
Coverage Ratio to be less than 1.75 to 1.00.
11.10. Terminate Pension Plan. With respect to it or
any of its Subsidiaries, terminate, withdraw from, or permit
termination of any Guaranteed Pension Plan unless the asset
value of such Plan is then at least equal to the value of
the benefits guaranteed by the Pension Benefit Guaranty
Corporation or unless such termination will not result in
any significant liability to the Company or any
Subsidiaries.
11.11. Pension Plan Distribution. With respect to it
or any of its Subsidiaries, permit any distribution
described in 4043(b)(7) of ERISA to be made from any
Guaranteed Pension Plan.
11.12. Indenture. Amend, modify or supplement the
Indenture as in effect on the date of this Agreement in any
way that would directly or indirectly (i) subject the lien
of the Indenture to the gas inventory or accounts receivable
of the Company or the Trust, (ii) cause the scheduled date
of payments of principal, interest and expenses of Mortgage
Debt to occur at dates earlier than the allowed dates in
effect on the Closing Date, (iii) amend in any material way
the definitions of "additional property" or "net amount of
additional property" or "permitted liens" in the
definitional section of the Indenture, or (iv) amend in any
material way Section 3.02 of the Indenture.
11.13. Leases. Acquire any real or personal property
by lease or similar agreement (whether or not the respective
property shall have theretofore been owned and sold by the
Company) if, by reason of such transaction, the aggregate
amount of rentals or similar payments (excluding payments in
respect of Capitalized Lease Obligations) payable by the
Company during the then current or any subsequent fiscal
year of the Company in respect of all leases at the time in
effect (excluding any thereof to the extent cancelable at
the option of the Company but including for the purpose any
renewal terms of any thereof to the extent renewable at the
option of the lessors) would exceed 3% of Consolidated
Capitalization as at the date of determination.
11.14. Debt Payments. Directly or indirectly, make
any payments in reduction of any Debt of the Company (other
than Debt in respect of the Advances) prior to the final
maturity thereof, other than payments required by the terms
of any sinking fund, serial maturity or mandatory prepayment
provision contained in any instrument evidencing Debt
permitted by 11.1 and other than payments made pursuant to
the Fuel Purchase Contract, unless (i) such payment is made
out of the proceeds of a concurrent (and in any event within
twelve (12) months of such payment) refunding operation
involving the incurring by the Company of additional Debt
which is at least equal in aggregate principal amount to,
and which has a weighted average life to maturity (as
determined in accordance with any accepted financial
practice) no shorter than the remaining life of this
Agreement and (ii) after giving effect to such payment, the
aggregate amount of all such Debt prepaid by the Company and
not refinanced on a long-term basis with funds other than
Company funds or the funds provided hereunder since the
Closing Date shall not exceed $25,000,000.
11.15. Dividends; Distributions. Declare or pay
any dividends (other than dividends payable in shares of
common stock of the Company) on, or make any other
distribution in respect of, any shares of any class of
capital stock of the Company, or apply any of its property
or assets to, or set aside any sum for, the payment,
purchase, redemption or other acquisition or retirement of,
any shares of any class of capital stock of the Company, if,
after giving effect to such dividend or other distribution,
the result of such dividend or other distribution would
cause a violation of 11.8 or any other provision contained
herein.
11.16. Alterations to Fuel Purchase Contract. Until
expiration or termination of the Commitments under the Trust
Credit Agreement and thereafter until all obligations of the
Trust thereunder and under the Notes issued pursuant thereto
are paid in full, amend, alter, modify or waive any of the
provisions of the Fuel Purchase Contract in any manner that
would materially affect the absolute and unconditional
obligations of the Company to take and pay for any and all
Fuel pursuant to the terms of the Fuel Purchase Contract or
otherwise adversely affect or impair the security of the
Banks therein without the prior written consent of such
Banks as hold 100% of the aggregate principal amount of the
Maximum Commitment.
12. EVENTS OF DEFAULT; ACCELERATION. If any of the
following events ("Events of Default" or, if notice or lapse
of time or notice and lapse of time is required, then, prior
to such notice and/or lapse of time, "Defaults") shall
occur:
(a) if the Company shall default in the payment
of principal on any of the Advances when the same shall
become due and payable, whether at maturity or at any date
fixed for payment or prepayment or by declaration;
(b) if the Company shall default in the payment
of any interest on the Advances, or the Facility Fee,
Agent's Fee or any other fee or expense payable hereunder or
under the other Loan Documents, and such Default shall
continue for more than one Business Day, when the same shall
become due and payable;
(c) if the Company shall default in the
performance of or compliance with any term contained in any
of 10.3(e), 11.1, 11.2, 11.3, 11.4, 11.5, 11.7, 11.8,
11.9, 11.10, 11.11, 11.12, 11.13, 11.14, 11.15 or 11.16
hereof;
(d) if the Company shall default in the
performance of or compliance with any term contained in this
Agreement other than those referred to above in this 12,
and such default shall not have been remedied within 30 days
after written notice thereof shall have been given to the
Company by the Agent;
(e) if any representation or warranty made or
deemed made by the Company herein or in connection with any
of the transactions contemplated hereby shall prove to have
been false or incorrect in any material respect on the date
as of which made;
(f) if the Company or any Subsidiary shall
default (as principal or guarantor or other surety) in the
payment of any principal of, or premium, if any, or interest
on any indebtedness (other than the Obligations to the Banks
hereunder), or with respect to any of the terms of any
evidence of such indebtedness or of any agreement relating
thereto, and such default shall entitle the holder of such
indebtedness to accelerate the maturity thereof and the
unpaid balance of any such defaulted indebtedness is equal
to or exceeds $1,000,000 unless, in the case of any default,
such default has been affirmatively waived by or on behalf
of the holder of such indebtedness;
(g) if the Company or any Subsidiary makes an
assignment for the benefit of creditors, or petitions or
applies for the appointment of a liquidator or receiver or
custodian (or similar official) of the Company or any
Subsidiary, or of any substantial part of the assets of the
Company or any Subsidiary or commences any proceeding or
case relating to the Company or any Subsidiary under any
bankruptcy, reorganization, arrangements, insolvency,
readjustment of debt, dissolution or liquidation or similar
law of any jurisdiction, now or hereafter in effect;
(h) if any such petition or application is filed
or any such proceeding or case is commenced against the
Company or any Subsidiary and the Company or such Subsidiary
indicates its approval thereof, consent thereto or
acquiescence therein or an order is entered appointing any
such liquidator or receiver or custodian (or similar
official), or adjudicating the Company or any Subsidiary
bankrupt or insolvent, or approving a petition in any such
proceeding or a decree or order for relief is entered in
respect of the Company or any Subsidiary in an involuntary
case under any bankruptcy or reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation
or similar laws of any jurisdiction as now or hereafter
constituted;
(i) if any order is entered in any proceeding by
or against the Company, any Subsidiary decreeing or
permitting the dissolution or split-up of the Company or any
Subsidiary or the winding up of its affairs;
(j) if there shall remain in force, undischarged,
unsatisfied and unstayed, for more than 30 days, whether or
not consecutive, any final judgment or judgments which
exceed, either individually or in the aggregate, more than
$1,000,000 against the Company or any Subsidiary;
(k) if any governmental authority or any person
purporting to act under governmental authority shall have
taken any action to condemn, seize or appropriate or to
assume custody or control of, all or any substantial part of
the property of the Company and its Subsidiaries taken as a
whole;
(l) if an Event of Default under and as defined
in the Trust Credit Agreement shall occur and be continuing;
(m) if the Company shall fail to obtain, renew,
maintain or comply with all such government approvals as
shall now or hereafter be necessary or, in the opinion of
special counsel to the Banks, desirable (i) for the
execution, delivery or performance by the Company of its, or
the exercise by the Banks of their, rights under the Loan
Documents or (ii) for the grant by the Trust of the
assignments and security interests granted by the Security
Documents or for the validity and enforceability or for the
perfection of or the exercise by the Agent of its rights and
remedies thereunder; or any such government approval shall
be revoked, terminated, withdrawn, suspended, modified or
withheld or shall cease to be in full force and effect, and
such revocation, termination, withdrawal, suspension,
modification, withholding or cessation may adversely affect
the Banks or the security provided to the Banks under the
Loan Documents, or any proceeding shall be commenced by or
before any governmental authority for the purpose of so
revoking, terminating, withdrawing, suspending, modifying or
withholding any such government approval and such proceeding
is not dismissed within 30 days;
(n) if, without the consent of the Majority
Banks, the Fuel Purchase Contract or any Loan Document shall
be amended, supplemented, terminated or otherwise modified
or become of no force or effect or the obligations of any
party thereto shall be modified, suspended, discharged or
terminated (in any such case, whether by the voluntary
action of any party to such Loan Document, by operation of
law, or otherwise and other than by the expiration thereof
in accordance with its terms), or the Company shall give any
consent, waiver or approval thereunder (other than any
consent, waiver or approval which cannot adversely affect
the Banks or the security provided to the Banks under the
Loan Documents);
(o) if any judicial decision, law or regulation
or interpretation of any judicial decision, law or
regulation shall be adopted or enforced by any court or
governmental or regulatory authority (including, without
limitation, the DPU or similar agency of any other state,
the SEC, the Department of Energy and FERC), and as a result
of such adoption or enforcement any Loan Document or any
transaction contemplated thereby shall be or become, or with
the passage of a specific period of time would become,
unlawful or the performance of any Loan Document or any
material term thereof shall be rendered unlawful or
unenforceable unless within 10 days thereof the Company
shall have obtained a stay of such action, and such stay
shall remain in full force and effect, or taken other action
which eliminates the adverse consequence of such action; or
(p) if the Company's franchise or license to
distribute gas is revoked or suspended;
then and in any such event (unless all Defaults and Events
of Default shall theretofore have been remedied) the Agent
may and, upon the written, telecopied or telephonic
(confirmed in writing) request of the Majority Banks shall
by notice to the Company declare: (i) the obligation of
each Bank to make Advances to the Company to be terminated,
whereupon the same shall terminate, and/or (ii) the Advances
to the Company, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and
payable, whereupon such Advances, all such interest and all
such amounts shall become and be forthwith due and payable
without presentment, demand, protest or notice, all of which
are hereby expressly waived by the Company. Notwithstanding
the foregoing, upon any Event of Default contemplated by
subsections (g), (h), or (i) above, all amounts specified in
clause (ii) above shall become immediately due and payable
automatically without any requirement of notice from the
Agent or any Bank.
13. NOTICE AND WAIVERS OF DEFAULT.
13.1. Notice of Default. If any Person shall give
any notice or take any other action in respect of a claimed
Default (whether or not constituting an Event of Default)
under this Agreement or any other note, evidence of
indebtedness, indenture or other obligation as to which the
Company, any of its Subsidiaries or the Trust is a party, or
obligor, whether as principal or surety, the Company shall
forthwith give written notice thereof to each of the Banks,
describing the notice or action and the nature of the
claimed Default.
13.2. Waivers of Default. Any Default or Event of
Default may be waived as provided in 24 hereof. Any
Default or Event of Default so waived shall be deemed to
have been cured and to be not continuing; but no such waiver
shall extend to or affect any subsequent like default or
impair any rights arising therefrom.
14. REMEDIES ON DEFAULT, ETC.
14.1. Rights of Banks. In case any one or more of
the Events of Default specified in 12 shall have occurred
and be continuing, and whether or not all amounts owing with
respect to the Advances have been declared due and payable
pursuant to 12, (i) each Bank, if owed any amount with
respect to such Advances, may proceed to protect and enforce
its rights by suit in equity, action at law and/or other
appropriate proceeding, whether for the specific performance
of any covenant or agreement contained in this Agreement,
including the obtaining of the ex parte appointment of a
receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the Bank;
and (ii) to the extent any Bank holds Advances (excluding
Competitive Bid Advances) exceeding in the aggregate
principal amount such Bank's Commitment Percentage of the
then outstanding aggregate principal amount of all such
Advances held by all the Banks, the other Banks shall
purchase such participations in such Bank's Advances so as
to result in the outstanding aggregate principal amount of
such Advances held by each Bank to equal each such Bank's
Commitment Percentage of the then outstanding aggregate
principal amount of all such Advances. The Company hereby
agrees that any Bank so purchasing a participation from
another Bank pursuant to this 14.1 may, to the fullest
extent permitted by law, exercise all its right of payment
(including the right of set-off) with respect to such
participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation.
14.2. Setoff. Upon the occurrence and during the
continuance of any Event of Default, each Bank is hereby
authorized at any time and from time to time, without notice
(any such notice being expressly waived hereby) and to the
fullest extent permitted by law, to set off and apply any
and all deposits (general or specific, time or demand,
provisional or final, and in whatever currency denominated)
at any time held or other sums credited by or due from any
of the Banks to the Company against any and all liabilities,
direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising of the Company to the
Banks. Each of the Banks agrees with the other Banks that
(i) if an amount to be set off is to be applied to
Indebtedness of the Company to a Bank, other than the
Advances held by all of the Banks, such amount shall be
applied ratably to such other Indebtedness and to the
Advances and (ii) if a Bank shall receive from the Company
any payment whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of
the Advances held by a Bank by proceedings against the
Company at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, such payment received
under this 14.2 shall be shared in proportion to each
Bank's Commitment Percentage.
15. THE AGENT. (a) Each Bank by its own execution of
this Agreement does hereby appoint, and consent to the
appointment of, the Agent as agent for the ratable benefit
of the Banks hereunder. The Agent is authorized to take
such action on behalf of each of the Banks and to exercise
all such powers as are hereunder and in related documents
delegated to the Agent, together with such powers as are
reasonably incidental thereto.
(b) The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties
under this Agreement. The Agent may utilize the services of
such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses
of any such Persons shall be paid by the Company.
(c) Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other
Person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder, or in connection
herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment
whatsoever, except that the Agent or such other Person, as
the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
(d) The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement,
or any instrument at any time constituting, or intended to
constitute, collateral security for the Advances, or for the
value of any such collateral security or for the validity,
enforceability or collectability of any such amounts owing
with respect to the Advances, or for any recitals or
statements, warranties or representations herein or made in
any certificate or instrument hereafter furnished to it by
or on behalf of the Company or be bound to ascertain or
inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any
instrument at any time constituting, or intended to
constitute, collateral security for the Advances. The Agent
shall not be bound to ascertain whether any notice, consent,
waiver or request delivered to it by the Company or any
holder of any of the Advances shall have been duly
authorized or is true, accurate and complete. The Agent has
not made nor does it now make any representations or
warranties, express or implied, nor does it assume any
liability to the Banks with respect to the creditworthiness
or financial condition of the Company or any of its
Subsidiaries and each Bank represents and warrants to the
Agent that it has made its own independent evaluation of the
creditworthiness of the Company and its Subsidiaries and has
not relied upon the Agent or any material or information
furnished by the Agent in making such evaluation.
(e) If in the opinion of the Agent the
distribution of any amount received by it in such capacity
hereunder might involve it in liability, it may refrain from
making distribution until its right to make distribution
shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the
Agent its proportionate share of the amount so adjudged to
be repaid or shall pay over the same in such manner and to
such Persons as shall be determined by such court. With
respect to obligations of the Company hereunder, a payment
to the Agent shall be deemed to be a payment to the Banks.
(f) The Agent may deem and treat the payee of any
Note as the absolute owner thereof for all purposes hereof
until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder.
(g) In its individual capacity, Fleet National
Bank shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the
Advances made by it hereunder, as it would have were it not
also the Agent.
15A. THE CO-AGENT. Notwithstanding anything to
the contrary set forth herein, the Co-Agent shall be deemed
to be the agent of the Banks in name only, and the Co-Agent
shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than (a)
those applicable to all Banks as such or (b) those otherwise
applicable to The Bank of New York in its individual
capacity. Each Bank acknowledges that it has not relied,
and will not rely, on the Co-Agent in deciding to enter into
this Agreement or in taking or not taking action hereunder.
16. CONSENT TO JURISDICTION.
(a) The Company hereby irrevocably submits to the
jurisdiction of any Massachusetts State or Federal court
sitting in Boston over any action or proceeding arising out
of or relating to this Agreement or any Note issued by the
Company, and the Company hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard
and determined in such Massachusetts State or Federal Court.
Service of process may be made to the Company by mailing or
delivering a copy of such process to the Company at the
Company's address as specified in 20 hereof. The Company
agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Nothing in this 16 shall affect the right of
any Bank to serve legal process in any other manner
permitted by law or affect the right of any Bank to bring
any action or proceeding against the Company or its property
in the courts of any other jurisdictions.
17. BINDING EFFECT AND ASSIGNMENT. This Agreement
shall become effective when it shall have been executed by
the Company, the Agent and each Bank and shall be binding
upon and inure to the benefit of the Company, the Agent and
each Bank and their respective successors and assigns,
except that the Company shall have no right to assign its
rights hereunder or any interest herein without the prior
written consent of the Banks. Any Bank or subsequent
assignee of any Bank may with the written consent of the
Company (which consent shall not be unreasonably withheld so
long as the assignment, if the Company so request, has first
been offered to one or more of the other Banks) and the
Agent assign, pursuant to documentation satisfactory to the
Agent and its counsel, to any financial institution (an
"Assignee") all or any part of, such Bank's or Assignee's
obligations, rights and benefits hereunder and to the extent
of such assignment any such Assignee shall have the same
obligations, rights and benefits with respect to Company as
it would have had if it were one of the original Banks
hereunder; provided, that each such assignment shall be in a
minimum amount of $5,000,000 and, provided further, that no
such assignment shall become effective unless the assigning
bank shall have paid a $3,500 assignment fee to the Agent in
consideration of the Agent's recordation of such assignment.
Notwithstanding anything in this 17 to the contrary, each
Bank shall be permitted to assign any or all of its rights
hereunder to any of its "bank" affiliates or to any of the
twelve (12) Federal Reserve Banks organized under 4 of the
Federal Reserve Act 12 U.S.C. 341, without the prior
written consent of the Company or the Agent, provided that
such "bank" affiliate shall have total capital of not less
than $100,000,000. If any assignee Bank is not incorporated
under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest
or fees are payable hereunder or under any of the other Loan
Documents for its account, deliver to the Company and the
Agent a certification as to its exemption from deduction or
withholding of any United States Federal income taxes.
18. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same
agreement.
19. SURVIVAL OF COVENANTS, ETC. All covenants,
agreements, representations and warranties made herein and
in any certificates or other papers delivered by or on
behalf of the Company pursuant hereto are material and shall
be deemed to have been relied upon by the Banks,
notwithstanding any investigation heretofore or hereafter
made by it, and shall survive the making by the Banks of the
Advances, as herein contemplated and shall continue in full
force and effect so long as any Commitment remains
outstanding or as long as any Advances or other amount due
under this Agreement or the Notes remain outstanding and
unpaid. All statements contained in any certificate or
other paper delivered to the Banks at any time by or on
behalf of the Company pursuant hereto or in connection with
the transaction contemplated hereby shall constitute
representations and warranties by the Company hereunder.
20. NOTICE, ETC. Except as otherwise specified
herein, all notices and other communications made or
required to be given pursuant to this Agreement shall be in
writing and shall be either delivered by hand or mailed by
United States of America first-class mail, postage prepaid,
or sent by telecopier confirmed by letter, addressed as
follows:
(a) If to the Company, at: Colonial Gas Company,
00 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Attn: Xxxxxxxx
Xxxxxxxxxxxxx, Vice President-Finance, Telecopy:
(000) 000-0000, or at such other address for notice as the
Company shall last have furnished in writing to the Person
giving the notice with a copy to:
Xxxxxxx Xxxxxx, Esq.
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
(b) if to the Agent, at Fleet National Bank, Xxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxxx X.
Xxxx, Vice President, National Utilities Group, Telecopy:
(000) 000-0000, or such other address for notice as the
Agent shall last have furnished in writing to the Person
giving the notice; with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx & Hannah LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
(c) if to any Bank, at the address set forth for
such Bank on the signature page hereof, or such other
address for notice as the Bank shall last have furnished in
writing to the Person giving the notice.
All such notices and communication shall, when mailed,
telexed, telecopied or cabled, be effective when deposited
in the mails or delivered to the telex, telecopy or cable
system, respectively.
21. GOVERNING LAW. This Agreement shall be deemed to
be contracts under the laws of The Commonwealth of
Massachusetts and shall for all purposes be construed in
accordance with and governed by the laws of said
Commonwealth, without regard to principles of conflicts of
law.
22. MISCELLANEOUS. The rights and remedies herein
expressed are cumulative and not exclusive of any other
rights which any Bank would otherwise have. Any instruments
required by any of the provisions hereof to be in the form
annexed hereto as an exhibit shall be substantially in such
form with such changes therefrom, if any, as may be approved
by the Banks and the Company. The captions in this
Agreement are for convenience of reference only and shall
not define or limit the provisions hereof. This Agreement
or any amendment may be executed in separate counterparts,
each of which when so executed and delivered shall be an
original, but all of which together shall constitute one
instrument. In proving this Agreement, it shall not be
necessary to produce or account for more than one such
counterpart.
23. ENTIRE AGREEMENT, ETC. This Agreement and any
other documents executed in connection herewith or therewith
express the entire understanding of the parties with respect
to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, except as
provided in 24.
24. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as
otherwise expressly set forth in any particular provision of
this Agreement, any consent or approval required or
permitted by this Agreement to be given by the Banks may be
given, and any term of this Agreement or of any other
instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Company of
any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of
the Company and the Majority Banks, provided, however, that:
(a) Without the written consent of such Banks as
hold 100% of the aggregate principal amount of the Maximum
Commitment,
(i) no reduction in the principal amount of,
interest rate on, or Facility Fee or any other fee
relating to the Commitments or the Advances shall be
made;
(ii) no extension or postponement of the stated
time of payment of the principal amount of, interest
on, or Facility Fee or any other fee relating to the
Commitments or the Advances shall be made;
(iii) no increase in the amount, or extension
of the term, of the Commitment beyond those provided
for hereunder shall be made;
(iv) no change in the definition of the term
"Majority Banks" shall be made; and
(v) no change in the language of this 24 shall
be made.
No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of any
Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to
or demand upon the Company shall entitle the Company to
other or further notice or demand in similar or other
circumstances.
25. PARTICIPATIONS. Any Bank may, without the consent
of any other party, sell participations to one or more banks
or other entities (each a "Participant") in all or a portion
of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and its Advances); provided that (i) such Bank's
obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the Company, the Agent, and the Banks shall continue
to deal solely and directly with such Bank, as the case may
be, in connection with such Bank's rights and obligations
under this Agreement and (iv) each participation shall be in
a minimum amount of $5,000,000. No Bank shall grant any
Participant the right to vote or otherwise act in respect to
any matter related to this Agreement except that such rights
may be granted with respect to amendments or waivers related
to the reduction of principal or the reduction of the rate
of interest or a change in Facility Fees or the
postponement of the date fixed for any payment of principal
or interest, if such right to vote or otherwise act with
respect to such amendments or waivers is provided for by the
terms of the agreement governing such participation
interest; provided, however, that the Company shall not be
obligated to communicate directly or indirectly with any
Participant with respect to this Agreement or the
transactions contemplated hereby.
26. EXPENSES; INDEMNIFICATION. Whether or not the
transactions contemplated hereby shall be consummated, the
Company will pay (a) the reasonable cost of (i) reproducing
this Agreement and other instruments mentioned herein and
(ii) any taxes payable by any Bank (including any interest
and penalties in respect thereof but other than taxes based
upon such Bank's net income or profits) and any filing fees
payable by the Agent, on or with respect to the transactions
contemplated by this Agreement (the Company hereby agreeing
to indemnify each Bank with respect thereto); (b) the
reasonable fees, expenses and disbursements of the Agent's
special counsel (Xxxxxx & Hannah LLP incurred in connection
with the preparation of this Agreement and other instruments
mentioned herein, each closing hereunder, amendments,
modifications, approvals, consents or waivers hereto or
hereunder; (c) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and costs) incurred by
Fleet National Bank in connection with the syndication of
the loan and by the Banks in connection with (i) the
enforcement of this Agreement, the Notes and the other Loan
Documents against the Company or the administration thereof
after the occurrence of an Event of Default and (ii) in
connection with any litigation, proceeding or dispute
whether arising hereunder or otherwise, in any way related
to any Bank's relationship with the Company hereunder. The
Company further agree to indemnify and hold harmless any
Bank as well as each Bank's shareholders, directors, agents,
officers, subsidiaries and affiliates ("Indemnified
Parties"), from and against all claims, actions or causes of
action ("Claims") (including without limitation all damages,
losses, settlement payments, liabilities, reasonable costs
and expenses related to such Claims), incurred, suffered,
sustained or required to be paid by an Indemnified Party by
reason of or resulting from the transactions contemplated
hereby, except any of the foregoing which result from gross
negligence or willful misconduct of the indemnified party;
provided, that each Bank agrees not to settle any litigation
in connection with any claim or liability with respect to
which such Bank may seek indemnification hereunder without
the prior written consent of the Company, which consent
shall not be unreasonably withheld or delayed. In any
investigation, proceeding or litigation, or the preparation
therefor, the Banks shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the
Company agrees to pay promptly the reasonable fees and
expenses of such counsel, provided, however, that the
Company shall be required to bear the expense of only one
counsel for all of the Banks unless (i) in the written
opinion of counsel to the Agent, use of only one counsel
could reasonably be expected to give rise to a conflict of
interest or (ii) the Company authorize any Bank to employ
separate counsel (including the in-house counsel of the
applicable Bank) at the Company's expense. The covenants of
this 26 shall survive payment or satisfaction of payment of
amounts owing with respect to the Notes.
27. HEADINGS; CONSTRUCTION. Headings of the sections
have been inserted as a matter of convenience only and shall
not control or affect the meaning or construction of any of
the terms and provisions hereof.
28. WAIVER OF JURY TRIAL. THE COMPANY HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF WHICH RIGHTS AND OBLIGATIONS. EXCEPT AS
PROHIBITED BY LAW AND EXCEPT IN THE CASE OF GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, THE COMPANY HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED
TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. THE COMPANY (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
BANK OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE BANKS HAVE ENTERED INTO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS TO WHICH THE
COMPANY IS A PARTY IN RELIANCE ON, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
[remainder of page intentionally left blank]
Signed, sealed and delivered, as of the date set forth
at the beginning of this Agreement, by the Company and each
of the Banks.
THE COMPANY:
COLONIAL GAS COMPANY
[Corporate Seal] By: s/Xxxxxx X. Xxxxxxx
Vice President and Treasurer
Attest:
THE BANKS:
THE BANK OF NEW YORK
By: s/Xxxx X. Xxxx
Title: Vice President
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
UNION BANK OF CALIFORNIA, N.A.
By: s/Xxxxxxx X. Xxxxxxx
Title: Vice President
Union Bank of California, N.A.
000 X. Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
CORESTATES BANK, N.A.
By: s/Xxxx Xxxxxxx
Title: Vice President
CoreStates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
FIRST UNION NATIONAL BANK
By: s/Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
First Union National Bank
000 X. Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxx, XX 00000
Attention: Legal Division
FLEET NATIONAL BANK
By: s/Xxxxxx X. Xxxx
Title: Vice President
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx,
Vice President
THE CO-AGENT:
THE BANK OF NEW YORK
By: s/Xxxx X. Xxxx
Title: Vice President
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
THE AGENT:
FLEET NATIONAL BANK, as Agent
By: s/Xxxxxx X. Xxxx
Title: Vice President
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx,
Vice President
EXHIBIT A-1
REVOLVING CREDIT NOTE
[$________] September ___, 1997
FOR VALUE RECEIVED, the undersigned Colonial Gas
Company, a Massachusetts corporation (the "Company"), hereby
absolutely and unconditionally promises to pay to the order
of [ ] (the "Bank") at the head
office of Fleet National Bank, as Agent (the "Agent"), at
Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000:
(a) on September___, 1998, the principal amount
of [____________ ($_________)] or, if less, the
aggregate unpaid principal amount of Advances made by
the Bank to the Company pursuant to the Credit
Agreement (as hereinafter defined); and
(b) interest on the principal from time to time
outstanding from the date hereof through and including
the date on which such principal amount is paid in
full, at the times and at the rates provided in the
Revolving Credit Agreement dated as of September___,
1997, as amended or supplemented from time to time (the
"Credit Agreement"), by and among the Company, the Bank
and such other banks or financial institutions that are
or may become parties to the Credit Agreement from time
to time in accordance with the provisions thereof (the
Bank and such other banks being collectively referred
to as the "Banks") and the Agent, as agent for the
Banks.
This Note evidences borrowings under, is subject to the
terms and conditions of, and has been issued by the Company
in accordance with the terms of the Credit Agreement, and is
one of the Revolving Credit Notes referred to therein. The
Bank and any holder hereof is entitled to the benefits of
the Credit Agreement and may enforce the agreements of the
Company contained therein, and any holder hereof may
exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance
with the respective terms thereof. All capitalized terms
used in this Note and not otherwise defined herein shall
have the same meanings herein as in the Credit Agreement.
The Bank shall, and is hereby irrevocably authorized by
the Company to, endorse on the schedule attached to this
Note or a continuation of such schedule attached hereto and
made a part hereof, an appropriate notation evidencing
advances and repayments of principal of this Note, provided
that failure by the Bank to make any such notations shall
not affect any of the Company's obligations or the validity
of any repayments made by the Company in respect of this
Note.
The Company has the right in certain circumstances and
the obligation under certain other circumstances to prepay
the whole or part of the principal of this Note on the terms
and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall
occur, the entire unpaid principal amount of this Note and
all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect
provided in the Credit Agreement.
The Company and every endorser and guarantor of this
Note or the obligation represented hereby waive presentment,
demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension
or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of
collateral and to the addition or release of any other party
or person primarily or secondarily liable.
This Note shall be deemed to take effect as a sealed
instrument under the laws of the Commonwealth of
Massachusetts and for all purposes shall be construed in
accordance with such laws.
IN WITNESS WHEREOF, Colonial Gas Company has caused
this Note to be signed by its duly authorized officer as of
the day and year first above written.
COLONIAL GAS COMPANY
[Corporate Seal]
By:
Title:
Amount of
Principal Balance of
Amount of Paid or Principal Notation
Date Loan Prepaid Unpaid Made By
EXHIBIT A-2
COMPETITIVE BID NOTE
[$ ] [ , 199 ]
FOR VALUE RECEIVED, the undersigned, Colonial Gas
Company, a Massachusetts corporation (the "Company"), hereby
promises to pay to the order of [_______________] (the
"Bank"), at the office of Fleet National Bank, as Agent (the
"Agent") at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
on [ , 199 ], pursuant to 3 of the Credit Agreement
dated as of September __, 1997, as amended, among the
Company, the Banks named therein and the Agent (the "Credit
Agreement"), the principal sum of Dollars
($ ) and to pay interest on the unpaid principal
amount outstanding from time to time at the rate of % per
annum, payable on the last day of and on the Maturity
Date, at said office, in lawful money of the United States
of America in immediately available funds.
The Company promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law,
overdue interest at a rate or rates determined as set forth
in the Credit Agreement.
This Competitive Bid Note evidences borrowings under,
is subject to the terms and conditions of, and has been
issued by the Company in accordance with the terms of the
Credit Agreement, and is one of the Competitive Bid Notes
referred to therein. The Bank and any holder hereof is
entitled to the benefits of the Credit Agreement and may
enforce the agreements of the Company contained therein, and
any holder hereof may exercise the respective remedies
provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Competitive Bid
Note and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.
The Company has the right in certain circumstances and
the obligation under certain other circumstances to prepay
the whole or part of the principal of this Competitive Bid
Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall
occur, the entire unpaid principal amount of this
Competitive Bid Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the
manner and with the effect provided in the Credit Agreement.
The Company and every endorser and guarantor of this
Competitive Bid Note or the obligation represented hereby
waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this
Competitive Bid Note, assent to any extension or
postponement of the time of payment or any other indulgence,
to any substitution, exchange or release of collateral and
to the addition or release of any other party or person
primarily or secondarily liable.
This Competitive Bid Note shall be deemed to take
effect as a sealed instrument under the laws of the
Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IN WITNESS WHEREOF, Colonial Gas Company has caused
this Competitive Bid Note to be signed by its duly
authorized officer as of the day and year first above
written.
COLONIAL GAS COMPANY
[Corporate Seal]
By:
Title:
EXHIBIT B
NOTICE OF BORROWING
FLEET NATIONAL BANK
As Agent for the Banks which are parties
to the Revolving Credit Agreement
referred to below
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Vice President, National Utilities Group
Ladies and Gentlemen:
The undersigned Colonial Gas Company (the "Company")
refers to the Revolving Credit Agreement, dated as of
September __, 1997 (the "Credit Agreement", the terms
defined therein being used herein as therein defined), among
the Company, certain Banks parties thereto, and FLEET
NATIONAL BANK, as Agent for said Banks, and hereby gives you
notice pursuant to 2.2 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed
Borrowing") as required by 2.2 of the Credit Agreement:
(i) The requested Business Day of the Proposed
Borrowing is , 19 ;
(ii) The requested Type of Advances comprising the
Proposed Borrowing is [Base Rate Advances] [Eurodollar
Advances];
(iii) [In the case of Eurodollar Advances:] such
Advances shall have a [one (1) month], [two (2) months],
[three (3) months], [six (6) months], initial Interest
Period therefor;] and
(iv) The aggregate amount of the Proposed Borrowing is
[$ ].
Very truly yours,
COLONIAL GAS COMPANY
By
Title:
EXHIBIT C
FORM OF COMPETITIVE BID QUOTE REQUEST
[Date]
To: Fleet National Bank, as Agent (the "Agent")
From: Colonial Gas Company (the "Borrower")
Re: Revolving Credit Agreement (the "Credit Agreement")
dated as of September __, 1997 among Colonial Gas
Company, the Banks party thereto and the Agent.
We hereby give notice pursuant to 3.1(b) of the Credit
Agreement that we request Competitive Bid Quotes for the
following proposed Competitive Bid Borrowing(s):
Date of Borrowing:
Principal Amount* Interest Period** Maturity Date
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Terms used herein have the meanings assigned to them in
the Credit Agreement.
COLONIAL GAS COMPANY
By
Title:
* Amount must be a minimum of $2,500,000 or any larger
multiple of $500,000.
** 7 to 180 days, subject to the provisions of the
definition of Interest Period.
EXHIBIT D
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
Colonial Gas Company (the "Borrower")
Pursuant to 3.1(c) of the Revolving Credit Agreement
(the "Credit Agreement") dated as of September __, 1997
among Colonial Gas Company, the Banks parties thereto and
Fleet National Bank, as Agent, we are pleased on behalf of
the Borrower to invite you to submit Competitive Bid Quotes
to the Borrower for the following proposed Competitive Bid
Borrowing(s):
Date of Borrowing:
Principal Amount Interest Period Maturity Date
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Please respond to this invitation by no later than
* a.m. (Boston time) on [date].
FLEET NATIONAL BANK, as
Agent
By:
Authorized Officer
* The time specified in Section 3.1(d)(i) of the Credit
Agreement.
EXHIBIT E
FORM OF COMPETITIVE BID QUOTE
FLEET NATIONAL BANK, as Agent
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Re: Competitive Bid Quote to Colonial Gas Company (the
"Borrower")
In response to your invitation on behalf of the
Borrower dated , 19 , we hereby make
the following Competitive Bid Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing: *
4. We hereby offer to make Competitive Bid Advance(s) in
the following principal amounts, for the following
Interest Periods and at the following rates:
Principal Interest Competitive Bid Maturity
Amount** Period*** Rate**** Date
$
$
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable
conditions set forth in the Revolving Credit Agreement dated
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Bids must be made
for $2,500,000 or any larger multiple of $1,000.
*** 7 to 180 days, as specified in the related Invitation.
**** Specify rate of interest per annum (each rounded to the
nearest 1/10,000th of 1%).
as of September __, 1997 among Colonial Gas Company, the
Banks, the parties thereto, and Fleet National Bank, as
Agent, irrevocably obligates us to make the Competitive Bid
Advance(s) for which any offer(s) are accepted in whole or
in part by the Borrower.
Very truly yours,
[NAME OF BANK]
Dated: By:
Authorized Officer
EXHIBIT F
[BORROWERS' COUNSEL LETTERHEAD]
September __, 1997
To: The Banks party to the credit agreements
referred to below (the "Credit Agreements")
and Fleet National Bank, as Agent for such Banks
Ladies & Gentlemen:
We have acted as counsel to Colonial Gas Company (the
"Utility"), a corporation organized under the laws of The
Commonwealth of Massachusetts, and Massachusetts Fuel
Inventory Trust (the "Trust"), a trust organized under the
laws of The Commonwealth of Massachusetts, in connection
with the preparation, execution and delivery of the
following documents and the transactions contemplated
thereby:
(i) The Trust Agreement dated as of June 26, 1990
(the "Trust Agreement") between State Street Bank and
Trust Company, as successor trustee, and the Utility.
(ii) The Revolving Credit Agreement dated as of
September __, 1997 (the "Credit Agreement"), by and
among the Utility, The Bank of New York, Union Bank of
California, N.A., CoreStates Bank, N.A., First Union
National Bank and Fleet National Bank (the "Banks") and
Fleet National Bank as Agent for the Banks (the
"Agent") and The Bank of New York as Co-Agent for the
Banks.
(iii) The Revolving Credit Agreement dated as
of June 26, 1990 (the "Trust Credit Agreement") by and
among Massachusetts Fuel Inventory Trust acting by and
through its trustee Shawmut Bank, N.A. (the "Trustee"),
the Banks and the Agent.
(iv) The Security Agreement and Assignment of
Contracts dated as of September __, 1997 (the "Security
Agreement"), between the Trustee and the Agent.
(v) The Purchase Contract dated as of June 26,
1990 (the "Purchase Contract") between the Trust and
the Utility.
(vi) The Consent and Agreement dated as of
September __, 1997 (the "Consent"), by the Utility.
(vii) The Notes dated the date hereof (the
"Notes"), executed by the Utility under the Colonial
Credit Agreement or the Trust under the Trust Credit
Agreement and each payable to the order of one of the
Banks.
This opinion is given pursuant to 6.1(c) of the
Colonial Credit Agreement and 7.1(c) of the Trust Credit
Agreement. Except as otherwise defined herein, all terms
defined in the Credit Agreement shall have the respective
meanings ascribed to them therein.
In connection with our preparation of this opinion, we
have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of
the Loan Documents, the charter documents and by-laws of the
Utility, resolutions of the Board of Directors of the
Utility (certified copies of which have been furnished to
you), the Trust Agreement and such other documents as we
have deemed necessary in connection with the opinions
hereinafter set forth. We have relied as to various
questions of fact upon the representations and warranties of
the Utility contained in the above-mentioned documents and
the certificates of public officials and officers of the
Utility delivered thereunder.
We have assumed due authorization and execution of all
agreements referred to herein by the parties thereto other
than the Utility and the Trust. We have also assumed the
genuineness of all signatures (other than those on behalf of
the Utility and the Trust), the conformity to the originals
of all documents reviewed by us as copies, and the
authenticity and completeness of all original documents
reviewed by us in original or copy form.
Our opinions expressed in paragraphs 5 and 11 hereof
are qualified by the fact that if the Agent or one or more
of the Banks should acquire gas which is part of the
Collateral (as defined in the Security Agreement) by
foreclosure or otherwise and intends to dispose of such gas
in The Commonwealth of Massachusetts, any contract or
contracts for the sale of such gas might have to be filed
and might be subject to action by the DPU relative to the
rates, prices, charges and practices covered by such
contract. Additionally, if such Collateral should be
purchased by a Massachusetts gas company under a contract
covering a period in excess of more than one year, either
DPU approval or a provision in the contract subjecting the
price of the Collateral to future DPU review will be
required.
Based upon the foregoing, and subject to the
limitations and qualifications set forth below, we are of
the opinion that:
1. The Utility is a corporation duly organized,
validly existing and in good standing under the laws of The
Commonwealth of Massachusetts; has not failed to qualify to
transact business in any jurisdiction where failure to
qualify would materially adversely affect its ability to
perform its obligations under any of the Loan Documents to
which it is a party; and has corporate power to execute and
deliver each of the Loan Documents to which it is a party
and to incur and perform its obligations thereunder.
2. The making and performance by the Utility of each
of the Loan Documents to which it is a party have been duly
authorized by all necessary corporate action and do not and
will not violate any provision of law or of its charter or
by-laws or result in the breach of or constitute a default
under or require any consent under any indenture or other
agreement or instrument of which we are aware (after having
made a reasonable investigation with respect thereto) to
which the Utility is a party or by which the Utility or its
properties and assets may be bound or affected.
3. Except for matters described or referred to in
Schedule 8.7 of the Colonial Credit Agreement or Schedule
9.7 of the Trust Credit Agreement, there are no actions,
suits or proceedings at law or in equity by or before any
governmental agency or authority or arbitrator now pending
or, to the best of our knowledge (after having made a
reasonable investigation with respect thereto), threatened
against or affecting the Utility or the Trust which, if
adversely determined, could materially adversely affect the
obligations of the Utility or the Trust to carry out the
transactions contemplated by the Loan Documents. In
rendering the opinion expressed in this paragraph 3, with
your permission we have made no independent review of any
court's docket.
4. Each Loan Document to which the Utility is a party
constitutes a legal, valid and binding obligation of the
Utility, enforceable against the Utility in accordance with
its terms subject, as to enforceability, to applicable
bankruptcy, insolvency, moratorium and other similar laws
affecting creditors rights generally and to general
principals of equity.
5. No government approval is required for the due
execution, delivery and performance by the Utility and the
Trust of their respective obligations, and the exercise of
their respective rights, under the Loan Documents or for the
grant by the Utility and the Trust of the security interests
and assignments granted by the Loan Documents or for the
validity and enforceability thereof or for the perfection or
the exercise by the Agent of its rights and remedies
thereunder except the order of the DPU dated June , 1990,
which order has been duly obtained. There is no proceeding
pending, or to the best of our knowledge (after having made
a reasonable investigation with respect thereto) threatened,
which seeks, or may reasonably be expected, to rescind,
terminate, modify or suspend the aforesaid order.
6. The security interest granted to you under the
Security Agreement in the Collateral, as defined therein,
has been duly created with respect to those items and types
of Collateral in which a security interest may be created
under Article 9 of the Uniform Commercial Code of those
jurisdictions in which the Collateral is located (in each
case, the "UCC"), and financing statements relating to such
security interest have been duly filed pursuant to the UCC
with the Massachusetts Secretary of State and the Boston
City Clerk; the New York Department of State and the
Allegheny County Registry of Deeds; the Pennsylvania
Secretary of State and the Potter County Prothonotary; and
the West Virginia Secretary of State and the ________ County
Clerk, which are the only actions necessary to perfect such
security interest in the right, title and interest of the
Trust in those items and types of Collateral in which a
security interest may be perfected by filing a financing
statement under the UCC. We call your attention, however,
to the necessity of filing continuation statements or
amendments from time to time or under certain circumstances
under the applicable provisions of the UCC in order to
maintain such perfection. At the time of a search made
within ( ) days of the date hereof in the
offices of [recite locations searched], the Collateral was
subject to no liens or security interests properly recorded
or filed in such filing offices showing the Trust or the
Utility as debtor, except . Capitalized terms used in this
paragraph 6 have the meanings ascribed to them in the
Security Agreement.
7. The Trust is a trust validly existing under the
laws of The Commonwealth of Massachusetts and has the legal
capacity to enter into, and to perform its obligations
under, each of the Loan Documents to which it is or is
intended to be a party and all other instruments and
agreements to be executed and delivered by it thereunder.
8. Each of the Trust Credit Agreement, the Security
Agreement and the Trust Agreement constitutes, and each of
the other Loan Documents to which the Trust is a party or to
which the Trust is contemplated to become a party from time
to time pursuant to the Trust Credit Agreement, when
executed and delivered, will constitute the legal, valid and
binding obligation of the Trust, enforceable against the
Trust in accordance with its respective terms, subject, as
to enforceability, to applicable bankruptcy, insolvency,
moratorium and other similar laws affecting creditors'
rights generally and to general principals of equity.
9. All capitalized terms in this paragraph 9 have the
meanings ascribed to them in the Security Agreement. The
Storage Facility Agreements pursuant to which Fuel is or is
to be stored in facilities under the control of Persons
(other than the Utility) which have agreed with the Utility
to store such Fuel constitute legal, valid and binding
obligations of the Utility, and such Storage Facility
Agreements do not restrict the performance by the Trust or
the Utility of each Loan Document to which they are parties
or prohibit the authorization by the Utility of the Trust or
its designee to give instructions, and take other action
pursuant to such agreements, contained in 3(d) of the
Purchase Contract.
10. By reason of the transactions contemplated by the
Loan Documents, neither the Trust, the Trustee, the Agent
nor any Bank will become, or will be declared by the SEC to
be, or with the passage of a specific period of time will
become, a "public utility company" as defined in the Public
Utility Holding Company Act of 1935, as amended, or any
successor provision thereto, and neither the Trust, the
Trustee, the Agent nor any Bank or the shareholders of any
of the Trust, the Agent or any Bank, or any partner, officer
or employee of any of them, will become, or with the passage
of a specific period of time will become, subject to
regulation under said Act.
11. Under existing law neither the Trust, the Trustee,
the Agent nor any Bank will become, by reason of the
transaction contemplated by the Loan Documents, a "gas
company" as defined in section 1 of Chapter 164 of the
Massachusetts General Laws as now in effect, nor will any of
them or the shareholders of any of them become subject to
regulation under the laws of the Commonwealth of
Massachusetts governing public utilities or public service
companies.
We do not herein express any opinion as to matters
governed by any laws other than the laws of The Commonwealth
of Massachusetts and the Federal Law of the United States.
To the extent the laws of the State of New York, the
Commonwealth of Pennsylvania and the State of Rhode Island
are relevant to our opinions herein expressed, we have
relied on the following opinions rendered to us of even date
herewith, a copy of which has been furnished to you: [LIST]
With respect to the Natural Gas Act and the Federal
Power Act, we have relied on the opinion of even date
herewith of ________________
Very truly yours,
EXHIBIT G
COLONIAL GAS COMPANY
Compliance Certificate Under
Revolving Credit Agreement
Dated September __, 1997
On behalf of Colonial Gas Company, a Massachusetts
corporation (the "Company"), the undersigned [Insert Name],
the duly elected and qualified [Insert appropriate title:
any one of the (a) President (b) Chief Financial Officer (c)
Chief Accounting Officer (d) Treasurer] of the Company
hereby certifies as of the date hereof the following:
1. No Defaults. I have read a copy of the Revolving
Credit Agreement dated September __, 1997 (the "Agreement")
among the Company and the Banks named therein and, to the
best of my knowledge and belief, the Company is not in
default in the performance or observance of any of the
covenants, terms or provisions of the Agreement or the
covenants, terms or provisions of the Notes issued pursuant
thereto. [If the Company shall be in default, the signer of
this certificate shall specify all such Defaults and the
nature thereof, of which he or she may have knowledge.]
Attached hereto is Schedule A, on which are set forth all
relevant calculations needed to determine whether the
Company is in compliance with 11.8 and 11.9 of the
Agreement, which calculations are based on the financial
statements of the Company's most recent fiscal quarter
required to be supplied under the Agreement. I have no
knowledge of the occurrence of any event since the date of
such financial statements which would render this
Certificate incorrect as of the date hereof.
2. No Material Changes, Etc. Since [December 31,
1996] [or insert the date of the last certificate issued
pursuant to 10.3(c) of the Agreement], there have occurred
no Material Adverse Changes in the financial condition or
business of the Company and its Subsidiaries as shown on or
reflected in the consolidated balance sheet of the Company
and its Subsidiaries as of [December 31, 1996] [or insert
the date of the most recent audited financials of the
Company], other than changes disclosed in writing and shown
on Schedule B hereto, and changes in the ordinary course of
business which have not had any material adverse effect on
the business or financial condition of the Company and its
Subsidiaries taken as a whole.
3. Litigation. Except as set forth on Schedule C
hereto, there are no actions, suits, proceedings or
investigations of any kind pending against the Company or
any Subsidiary before any court, tribunal or administrative
agency or board which, if adversely determined, might,
either in any case or in the aggregate, materially adversely
affect the properties, assets, financial condition or
business of the Company and its Subsidiaries considered as a
whole or materially impair the right of the Company and its
Subsidiaries considered as a whole to carry on business
substantially as now conducted, or result in any substantial
liability not adequately covered by insurance, or which
question the validity of the Agreement or the Notes, or any
action taken or to be taken pursuant hereto or thereto.
4. No Materially Adverse Contracts, Etc. Except as
set forth on Schedule D hereto, neither the Company nor any
of its Subsidiaries is (i) subject to any charter, corporate
or other legal restriction or any judgment, decree, order,
rule or regulation which in the judgment of the Company has
or is expected in the future to have a materially adverse
effect on the business, assets or financial condition of the
Company and its Subsidiaries as a whole, or (ii) a party to
any contract or agreement which in the judgment of the
Company has or is expected to have any materially adverse
effect on the business of the Company and its Subsidiaries
as a whole, except as otherwise reflected in adequate
reserves.
5. Tax Status. The Company and its Subsidiaries have
made or filed all federal and state income and, to the best
of my knowledge, all other tax returns, reports and
declarations required by any jurisdiction to which any of
them are subject; and have paid all taxes and other
governmental assessments and charges that are material in
amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in
good faith; and have set aside on their books provisions
reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes, except those
being contested in good faith, in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and I know of no basis for any such claim.
COLONIAL GAS COMPANY
By
Title
