EXHIBIT 10-98.3
CREDIT AGREEMENT
dated as of December 23, 1999
among
CENTRAL MAINE POWER COMPANY,
as Borrower
The Lenders Party Hereto
FLEET NATIONAL BANK,
as Syndication Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
---------------------------
BNY CAPITAL MARKETS, INC.
as Lead Arranger and Book Runner
CREDIT AGREEMENT, dated as of December 23, 1999, among CENTRAL MAINE POWER
COMPANY, the LENDERS party hereto, FLEET NATIONAL BANK, as Syndication Agent,
and THE BANK OF NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.1 Defined Terms
As used in this Credit Agreement, the following terms have the meanings
specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means BNY, in its capacity as administrative agent
for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin": means, at all times during which the applicable
Pricing Level set forth below is in effect, (i) with respect to Eurodollar
Borrowings, the percentage set forth below under the heading "Eurodollar
Margin", (ii) with respect to facility fees payable under Section 3.3(a), the
percentage set forth below under the heading "Facility Fee Margin", and (iii)
with respect to utilization fees payable under Section 3.3(b), the percentage
set forth below under the heading "Utilization Fee Margin":
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Pricing Level Eurodollar Margin Facility Fee Margin Utilization Fee Margin
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I 0.300% 0.100% 0.050%
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II 0.375% 0.125% 0.100%
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III 0.500% 0.150% 0.100%
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IV 0.575% 0.175% 0.125%
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V 0.650% 0.225% 0.125%
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VI 0.750% 0.250% 0.250%
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Pricing Level I will be applicable for so long as the Borrower's senior
unsecured long-term debt ratings (the "Senior Debt Rating") from either S&P or
Xxxxx'x is A+ or higher by S&P or A1 or higher by Moody's.
Pricing Level II will be applicable for so long as the Senior Debt Rating
is A- or higher by S&P or A3 or higher by Moody's and Pricing Level I is not
applicable.
Pricing Level III will be applicable for so long as the Senior Debt Rating
is BBB+ or higher by S&P or Baa1 or higher by Moody's and neither Pricing Level
I nor II is applicable.
Pricing Level IV will be applicable for so long as the Senior Debt Rating
is BBB or higher by S&P or Baa2 or higher by Moody's and Pricing Levels I, II
and III are not applicable.
Pricing Level V will be applicable for so long as the Senior Debt Rating is
BBB- or higher by S&P or Baa3 or higher by Moody's and Pricing Levels I, II, III
and IV are not applicable.
Pricing Level VI will be applicable for so long as the Senior Debt Rating
is less than or equal to BB+ by S&P or less than or equal to Ba1 by Moody's and
Pricing Levels I, II, III, IV and V are not applicable.
Changes in the Applicable Margin resulting from a change in the Pricing
Level shall become effective on the effective date of any change in the Senior
Debt Rating of the Borrower by S&P or Moody's. Notwithstanding anything herein
to the contrary, in the event of a split in the Senior Debt Rating of the
Borrower from S&P and Moody's that would otherwise result in the application of
more than one Pricing Level (had the provisions regarding the applicability of
other Pricing Levels contained in the definitions thereof not been given
effect), then the Applicable Margin shall be determined using, in the case of a
split by one rating category, the higher Pricing Level, and in the case of a
split by more than one rating category, the Pricing Level that is one level
lower than the Pricing Level within which the higher of the two rating
categories would otherwise fall.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.4), and accepted by the Administrative Agent,
substantially in the form of Exhibit A or any other form approved by the
Administrative Agent.
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"BNY" means The Bank of New York and its successors.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means Central Maine Power Company, a Maine corporation.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.3.
"Borrowing" means Loans of the same Type made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
remain closed, provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capitalization Ratio" means, as of any date, the quotient of (i)
Consolidated Total Debt as of such date divided by (ii) the sum as of such date
of Consolidated Total Debt plus the total of stockholders' equity of the
Borrower and the Subsidiaries determined in accordance with GAAP on a
consolidated basis.
"Capitalized Lease" means any lease which is required to be capitalized on
the balance sheet of the lessee in accordance with GAAP, including to the extent
applicable Statement Nos. 13 and 98 of the Financial Accounting Standards Board.
"Capitalized Lease Obligations" means the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP, including to the extent
applicable Statement Nos. 13 and 98 of the Financial Accounting Standards Board.
"CERCLA" means the federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"Change in Control" means (i) the ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof), of shares representing
20% or more of the aggregate ordinary voting power or economic interests
represented by the issued and outstanding equity securities of the Borrower or
the Parent on a fully diluted basis, (ii) the occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Borrower or the
Parent by Persons who were neither (x) nominated by the board of directors of
the Borrower or the Parent, as applicable, nor (y) appointed by directors so
nominated, or (iii) the failure of the Parent to own directly, beneficially and
of record, 100% of the aggregate ordinary voting power represented by the issued
and outstanding equity securities other than the 6% preferred stock of the
Borrower on a fully diluted basis. Notwithstanding the foregoing, the
consummation of the Merger shall not constitute a Change in Control.
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Credit Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Credit Agreement or (c) compliance by any Credit Party
(or, for purposes of Section 3.5(b), by any lending office of such Credit Party
or by such Credit Party's holding company, if any) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Credit Agreement.
"CMP Group" means CMP Group, Inc., a Maine corporation.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means any and all "Collateral", as defined in Security
Agreement.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Credit Exposure hereunder, as such commitment
may be reduced from time to time pursuant to Section 2.5 or reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.4. The initial amount of each Lender's Commitment is set forth on
Schedule 2.1, or in the Assignment and Acceptance pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the total Commitments is $75,000,000.
"Consolidated EBIT" means, for any period, Consolidated Net Income for such
period, plus, without duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) Consolidated Interest Expense for such
period, plus (ii) taxes based upon or measured by net income for such period,
plus (iii) dividends paid during such period on preferred stock.
"Consolidated Interest Expense" means, for any period, the aggregate amount
of interest, including commitment fees, facility fees, utilization fees,
payments in the nature of interest under Capitalized Leases and net payments
under Hedging Agreements, accrued by the Borrower and the Subsidiaries (whether
such interest is reflected as an item of expense or capitalized) in accordance
with GAAP on a consolidated basis.
"Consolidated Net Income" means, for any period, the net income (or loss)
applicable to common stock of the Borrower and the Subsidiaries, determined in
accordance with GAAP on a consolidated basis. provided, however, that
Consolidated Net Income shall not include (i) extraordinary and non-recurring
gains or losses, and (ii) any after-tax gains or losses attributable to returned
surplus assets of any Plan or Multiemployer Plan.
"Consolidated Operating Income" means, for any period, the Consolidated Net
Income for such period plus, without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) depreciation and
amortization, plus (ii) interest on, and commitment fees, facility fees and
utilization fees, with respect to, Indebtedness (including payments in the
nature of interest under Capitalized Leases and Hedging Agreements), plus (iii)
taxes based upon or measured by net income, plus (iv) dividends on preferred
stock.
"Consolidated Total Debt" means, as of any date, the sum of (i) the
aggregate principal amount of all Indebtedness of the Borrower and the
Subsidiaries that would be reflected as liabilities on a consolidated balance
sheet of the Borrower and the Subsidiaries as of such date prepared in
accordance with GAAP plus (ii) all obligations (contingent or otherwise) of the
Borrower or any Subsidiary in respect of Disqualified Stock valued at the
maximum fixed repurchase price plus accrued and unpaid dividends.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the sum of
the aggregate outstanding principal amount of such Lender's Loans at such time.
"Credit Parties" means the Administrative Agent and the Lenders.
"Default" means any event or condition which constitutes an Event of
Default or that upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 4.6 or in the Pre-Closing 1934 Act
Reports.
"Disqualified Stock" means any capital stock of any Person that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable at the option of the holder thereof), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part.
"Distribution Plant" means, with respect to the Borrower, the distribution
assets of the Borrower as reported from time to time by the Borrower to the
Federal Energy Regulatory Commission on F.E.R.C. Form 1.
"dollars" or "$" refers to lawful money of the United States of America.
"Energy East" means Energy East Corporation, a New York corporation.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, directives, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereafter, "Claims"), including, without
limitation, (i) any and all Claims by Governmental Authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and (ii) any and all Claims by any third party
seeking damages, contribution, indemnification, cost recovery, compensation or
injunctive relief in connection with alleged injury or threat of injury to
health, safety or the environment due to the presence of Hazardous Materials.
"Environmental Law" means any Federal, state, foreign or local statute,
law, rule, regulation, ordinance, code, guideline, written policy and rule of
common law now or hereafter in effect, and any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent
decree or judgment, relating to the environment, employee health and safety or
Hazardous Materials, including, without limitation, CERCLA; RCRA; the Federal
Water Pollution Control Act, 33 X.X.X.xx. 1251 et seq.; the Toxic Substances
Control Act, 15 X.X.X.xx. 2601 et seq.; the Clean Air Act, 42 X.X.X.xx. 7401 et
seq.; the Safe Drinking Water Act, 42 X.X.X.xx. 3803 et seq.; the Oil Pollution
Act of 1990, 33 X.X.X.xx. 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 X.X.X.xx. 11001 et seq.; the Hazardous Material
Transportation Act, 49 X.X.X.xx. 1801 et seq. and the Occupational Safety and
Health Act, 29 X.X.X.xx. 651 et seq.; and any state and local counterparts or
equivalents.
"Effective Date" has the meaning assigned to such term in Section 10.13.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (i) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived); (ii) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (iii)
the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (iv) the incurrence by the Borrower or any ERISA Affiliate of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(v) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (vi) the incurrence by the
Borrower or any ERISA Affiliate of any liability with respect to the withdrawal
or partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt
by the Borrower or any ERISA Affiliate of any notice concerning the imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article 8.
"Exchange Act" means the Securities and Exchange Act of 1934.
"Existing Credit Agreement" means the Credit Agreement, dated as of October
23, 1996, by and among the Borrower, the lenders party thereto, BankBoston, N.A.
(formerly, The First National Bank of Boston) and BNY, as Managing Agents.
"Excluded Taxes" means, with respect to any Credit Party or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower under any Loan Document, (i) income or franchise taxes imposed on (or
measured by) its net income by the United States of America, or by any other
jurisdiction, (ii) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Borrower is located and (iii) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 3.8(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Credit Agreement (or designates
a new lending office) or is attributable to such Foreign Lender's failure to
comply with Section 3.7(e), except to the extent that such Foreign Lender (or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 3.7(a).
"FAME Loan Agreement" means the Loan Agreement dated as of October 19, 1994
between Finance Authority of Maine and the Borrower relating to the $79,300,000
Finance Authority of Maine Taxable Electric Rate Stabilization Revenue Notes,
Series 1994A (Central Maine Power Company).
"Federal Funds Effective Rate" means, for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100
of 1%) equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Effective
Rate for such day shall be the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal accounting
officer, treasurer or controller of the Borrower or any vice president of the
Borrower whose primary responsibility is for financial matters.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means a Subsidiary that is organized under the laws
of, and conducting its business primarily in a jurisdiction outside of, the
United States of America.
"GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (i) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (ii) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (iii) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor as to enable the primary obligor to pay such
Indebtedness or other obligation or (iv) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation, provided that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"Guaranteed" has a meaning correlative thereto.
"Hazardous Materials" means (i) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is friable, urea formaldehyde
foam insulation, transformers or other equipment that contain dielectric fluid
containing levels of polychlorinated biphenyls, and radon gas; (ii) any
chemicals, materials or substances defined as or included in the definition of
"hazardous substances," "hazardous waste," "hazardous materials," "extremely
hazardous substances," "restricted hazardous waste," "toxic substances," "toxic
pollutants," "contaminants," or "pollutants," or words of similar import, under
any applicable Environmental Law; and (ii) any other chemical, material or
substance, the Release of which is prohibited or regulated by any Governmental
Authority as toxic or hazardous.
"Hedging Agreement" means any interest rate protection agreement, or other
interest swap, cap, collar, hedging or other like arrangement.
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (iii) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (iv) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable within six months after the incurrence thereof in the ordinary course of
business), (v) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (vi) all Guarantees by such
Person of Indebtedness of others, (vii) all Capital Lease Obligations of such
Person, (viii) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty, (ix) the
principal balance outstanding under any synthetic lease, tax retention operating
lease, off-balance sheet Loan or similar off-balance sheet financing product of
the Borrower or any Subsidiary where such transaction is considered borrowed
money indebtedness for tax purposes but is classified as an operating lease
under GAAP, (x) all obligations of such Person to pay a specified purchase price
for goods or services whether or not delivered or accepted (e.g., take-or-pay
obligations) or similar obligations and (xi) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning assigned to such term in Section 10.3(b).
"Interest Coverage Ratio" means, as of the end of any fiscal quarter, the
quotient of (i) Consolidated EBIT for the period of four consecutive fiscal
quarters ending thereon divided by (ii) Consolidated Interest Expense for such
period.
"Interest Election Request" means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 3.2.
"Interest Payment Date" means (i) with respect to any ABR Loan, the last
day of each March, June, September and December, (ii) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Loan with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period, and (iii) as to all Loans, the
Maturity Date.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect, provided that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day, unless, such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, and (ii) any Interest
Period that commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be the effective date of the most recent conversion or continuation of such
Borrowing.
"Investments" has the meaning assigned to such term in Section 7.4.
"Lenders" means the Persons listed on Schedule 2.1 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate does
not appear on such Page 3750 (or on any such successor or substitute page, or
any successor to or substitute for such Service) at such time for any reason,
then the "LIBO Rate" with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate at which dollar deposits of $5,000,000 and for a
maturity comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, (i) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (ii) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement relating to such
asset and (iii) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loan" means a Loan referred to in Section 2.1(a) and made pursuant to
Section 2.4.
"Loan Documents" means this Credit Agreement, the Notes and the Security
Agreement.
"Margin Stock" has the meaning assigned to such term in Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition, operations or properties of the Borrower (on an individual
basis) or the Borrower and the Subsidiaries, taken as a whole, whether as a
result of (i) general economic conditions affecting the electric power industry,
(ii) difficulties in obtaining supplies and raw materials, (iii) fire, flood or
other natural calamities, (iv) environment pollution, (v) regulatory changes,
judicial decisions, war or other governmental action or (vi) any other event or
development, whether or not related to those enumerated above, (b) the ability
of the Borrower to perform any of its obligations under any Loan Document or
(iii) the rights of or benefits available to any Credit Party under any Loan
Document.
"Material Agreements" means, collectively, (i) the FAME Loan Agreement,
(ii) the Unsecured Medium Term Note Indenture and (iii) all other financing
documents evidencing Material Indebtedness.
"Material Indebtedness" means Indebtedness (other than Indebtedness under
the Loan Documents) or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and the Subsidiaries in an aggregate
principal amount exceeding $10,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary, as applicable, would be required to pay if such Hedging
Agreement were terminated at such time.
"Maturity Date" means December 23, 2002.
"Merger" means the merger of EE Merger Corp., a wholly-owned subsidiary of
Energy East with and into CMP Group, with CMP Group as the survivor.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of June
14, 1999, among CMP Group, EE Merger Corp. and Energy East.
"Merger Corp." means EE Merger Corp., a Maine corporation and a
wholly-owned subsidiary of Energy East.
"Moody's" means Xxxxx'x Investors Service, Inc., or any successor thereto.
"More Favorable Provision" has the meaning set forth in Section 7.1(b).
"Multiemployer Plan" means, at any time, a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Borrower or an ERISA Affiliate
contributed or was required to contribute within the six years prior to any date
of determination.
"Notes" means, with respect to each Lender, a promissory note evidencing
such Lender's Loans payable to the order of such Lender (or, if required by such
Lender, to such Lender and its registered assigns) substantially in the form of
Exhibit C.
"Obligations" means (a) the due and punctual payment of (i) principal of
and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, and (ii) all other monetary
obligations, including fees, commissions, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Borrower to the Credit Parties, or that
are otherwise payable to any Credit Party, under this Credit Agreement and the
other Loan Documents, and (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Borrower under or pursuant to the
Credit Agreement and the other Loan Documents.
"Other Taxes" means any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, the Loan Documents, provided that in no event
shall "Other Taxes" include Excluded Taxes.
"Parent" means (i) prior to the Merger, CMP Group, and (ii) on and after
the Merger, Energy East.
"Participant" has the meaning assigned to such term in Section 10.4(e).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Annex 1 to the
Security Agreement or any other form approved by the Administrative Agent.
"Permitted Encumbrances" means:
(a) Liens for taxes or other governmental assessments, charges or
levies if payment shall not at the time be required to be made or if the
Borrower, at its expense and in its name, shall be in good faith contesting
its obligations to comply therewith;
(b) Liens incurred in the ordinary course of business in respect of
pledges or deposits (i) under xxxxxxx'x compensation laws or similar
legislation, and (ii) in connection with surety, appeal and similar bonds
incidental to the conduct of litigation; mechanics', laborers' or
materialmen's and similar Liens which in the case of any Lien material to
the Borrower or a Significant Subsidiary, as the case may be, is not then
delinquent; and Liens incidental to the conduct of the business of the
Borrower which were not incurred in connection the borrowing of money or
the obtaining of advances or credit;
(c) minor defects and irregularities in title (including easements,
rights of way, restrictions and other similar non-monetary charges) to any
real property of the Borrower or any Significant Subsidiary which have no
material adverse effect on the use or disposition thereof by the Borrower
or such Significant Subsidiary;
(d) leases by the Borrower or a Significant Subsidiary, as lessor, of
any property of the Borrower or such Significant Subsidiary to another
Person as lessee;
(e) Liens securing obligations neither assumed by the Borrower nor on
account of which it customarily pays interest, existing at the date hereof,
or, as to property hereafter acquired, at the time of acquisition by the
Borrower, upon real property or rights in or relating to real property
acquired by the Borrower for right of way purposes;
(f) party-wall agreements, agreements for and obligations relating to
the joint or common use of property owned solely by the Borrower or of
property owned by the Borrower in common or Jointly with one or more
persons;
(g) attachment, judgment and other similar Liens arising in connection
with court proceedings, provided, however, that the execution or other
enforcement thereof is effectively stayed and the claims secured thereby
are being contested at the time in good faith;
(h) the burdens of any law or governmental regulation or permit
requiring the Borrower to maintain certain facilities or perform certain
acts as a condition of the construction, occupancy or use of any of its
property, or its interference with any public or private lands or highways
or any river or stream or other waters;
(i) any right which any municipal or governmental authority may have
by virtue of any franchise, grant, license, permit, contract or statute to
purchase, or designate a purchaser of or order the sale of, any property of
the Borrower or to terminate any franchise, grant, license or other rights
or to regulate the property and business of the Borrower;
(j) zoning laws and ordinances;
(k) any duties or obligations affecting any property of the Borrower
to any municipal or governmental authority with respect to any franchise,
grant, license or permit; and
(l) restrictions under federal and state securities laws on the
transfer of securities.
"Permitted Investments" means the types of Investments listed on Schedule
7.4(a)(i).
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pre-Closing 1934 Act Reports" means, collectively, the Borrower's report
on Form 10-K for the fiscal year 1998, its Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1999, June 30, 1999 and September 30,1999 and its
Reports on Form 8-K dated January 19, 1999, April 7, 1999 and June 14, 1999,
each as furnished to the Lenders prior to the date hereof.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by BNY as its prime commercial lending rate; each change in the
Prime Rate being effective from and including the date such change is publicly
announced as being effective. The Prime Rate is not intended to be lowest rate
of interest charged by BNY in connection with extensions of credit to borrowers.
"RCRA" means the federal Resource Conservation and Act, 42 U.S.C.ss.6901 et
seq.
"Register" has the meaning assigned to such term in Section 10.4(c).
"Regulation T" means Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means the disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, pouring or migrating,
into or upon any land or water or air, or otherwise entering into the
environment.
"Required Lenders" means, at any time, Lenders having Credit Exposures and
unused Commitments representing more than 51% of the sum of the total Credit
Exposures and unused Commitments at such time.
"Restricted Payment" means, as to any Person:
(a) the declaration or payment (in cash, securities or other property)
of any dividend or distribution on or in respect of any class of capital
stock of or other equity interests in such Person;
(b) the purchase, redemption or other retirement of any shares of any
class of capital stock of, or other equity interest in, such Person, or of
options, warrants or other rights for the purchase of such shares,
directly, indirectly through a Subsidiary or otherwise;
(c) any other distribution on or in respect of any shares of any class
of capital stock of or equity or other beneficial interest in such Person;
(d) any payment of principal or interest with respect to, or any
purchase, redemption or defeasance of any Indebtedness of such Person which
by its terms or the terms of any agreement is subordinated to the payment
of the Obligations; and
(e) any payment, loan or advance by such Person to, or any other
Investment by such Person in, the holder of any shares of any class of
capital stock of or equity interest in such Person, or any Affiliate of
such holder (including the payment of management and transaction fees and
expenses);
provided, that the term "Restricted Payment" shall not include (i) dividends
payable in perpetual common stock of, or other similar equity interests in, such
Person or (ii) payments in the ordinary course of business in respect of (A)
reasonable compensation paid to employees, officers and directors, (B) advances
and reimbursements to employees for travel expenses, drawing accounts and
similar expenditures, (C) rent paid to, or accounts payable for services
rendered or goods sold by, non-Affiliates that own capital stock of or other
equity interests in such Person or (D) payments of principal, interest and other
amounts required under the FAME Loan Agreement.
"Sale and Leaseback Transaction" means any arrangement, directly or
indirectly, with any Person whereby the Borrower or any Subsidiary shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same purpose or
purposes as the property being sold or transferred.
"SEC" means the Securities and Exchange Commission and any successor entity
performing similar functions.
"S&P" means Standard & Poor's Rating Group, a division of The XxXxxx-Xxxx
Companies, or any successor thereto.
"Secured Parties" means the "Secured Parties" as defined in the Security
Agreement.
"Security Agreement" has the meaning assigned to such term in Section
5.1(g).
"Significant Subsidiary" means, at the time any determination thereof is to
be made, any Subsidiary which (i) as of the end of the next preceding quarter
had assets which comprised not less than 10% of the aggregate book value of the
consolidated assets of the Borrower and the Subsidiaries, determined in
accordance with GAAP, as of the end of such quarter or (ii) for the period of
four consecutive fiscal quarters most recently ended had operating income which
comprised not less than 10% of the Consolidated Operating Income of the Borrower
and the Subsidiaries for such period.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held by the parent or one or more subsidiaries of the
parent.
"Subsidiary" means any subsidiary of the Borrower.
"Super Majority Lenders" means, at any time, Lenders having Credit
Exposures and unused Commitments representing more than 66-2/3% of the sum of
the total Credit Exposures and unused Commitments at such time.
"Syndication Agent" means Fleet National Bank, in its capacity as
syndication agent hereunder.
"Taxes" means any and all current or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Transactions" means (i) the execution, delivery and performance by the
Borrower of each Loan Document, (ii) the borrowing of the Loans, and (iii) the
use of the proceeds of the Loans and such Indebtedness.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference in the case of a Borrowing, the Adjusted LIBO Rate or
the Alternate Base Rate.
"Unsecured Medium Term Note Indenture" means the Indenture, dated as of
August 1, 1989, between the Borrower and BNY, as Trustee.
"Unsecured Medium Term Notes" means unsecured Indebtedness of the Borrower
denominated "Medium Term Notes" and issued or to be issued pursuant to the
Unsecured Medium Term Note Indenture.
"Wholly Owned Subsidiary" means any Subsidiary of which all of the
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally (other than directors' qualifying shares and, in the case of
Foreign Subsidiaries, shares required by applicable law to be held by foreign
nationals) is owned by the Borrower (or other specified Person) directly, or
indirectly through one or more Wholly Owned Subsidiaries.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
"Year 2000 Issue" means the failure of computer software, hardware and
firmware systems and equipment containing embedded computer chips to properly
receive, transmit, process, manipulate, store, retrieve, re-transmit or in any
other way utilize data and information due to the occurrence of the year 2000 or
the inclusion of dates on or after January 1, 2000.
Section 1.2 Classification of Loans and Borrowings
For purposes of this Credit Agreement, Loans and Borrowings may be
classified and referred to by Type (e.g., a "Eurodollar Loan" or "Eurodollar
Borrowing").
Section 1.3 Terms Generally
The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise,
(i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (ii) any definition of or reference to any law shall be
construed as referring to such law as from time to time amended and any
successor thereto and the rules and regulations promulgated from time to time
thereunder, (iii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iv) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Credit Agreement in its entirety and not to any particular provision
hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Credit Agreement and (vi) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 1.4 Accounting Terms; GAAP
Except as otherwise expressly provided herein, all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect
from time to time, provided that, if the Borrower notifies the Administrative
Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date hereof in GAAP or in
the application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith. Unless the context otherwise requires, any reference to a
fiscal period shall refer to the relevant fiscal period of the Borrower.
ARTICLE 2. THE CREDITS
Section 2.1 Commitments
Subject to the terms and conditions set forth herein, each
Lender agrees to make Loans to the Borrower in dollars from time to time during
the Availability Period in an aggregate principal amount that will not result in
such Lender's Credit Exposure exceeding such Lender's Commitment. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Loans.
Section 2.2 Loans and Borrowings
(a) Each Loan shall be made as part of a Borrowing consisting of Loans made
by the Lenders ratably in accordance with their respective Commitments. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder, provided that the
Commitments of the Lenders are several, and no Lender shall be responsible for
any other Lender's failure to make Loans as required.
(b) Subject to Section 3.4, each Borrowing shall be comprised entirely of
(i) Loans and (ii) ABR Loans or Eurodollar Loans, as applicable, in each case as
the Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan, provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Credit Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $1,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000, provided that an ABR
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments. Borrowings of more than one Type may be
outstanding at the same time, provided that there shall not at any time be more
than a total of ten Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Credit Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
Section 2.3 Requests for Borrowings
(a) To request a Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (i) in the case of a Eurodollar Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not
later than 10:30 a.m., New York City time, on the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
signed by the Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.2:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.4.
(b) If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with respect to any requested Eurodollar Borrowing, then the Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
Section 2.4 Funding of Borrowings
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:30
p.m., New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. Subject to
Section 5.2, the Administrative Agent will make such Loans available to the
Borrower by promptly crediting or otherwise transferring the amounts so
received, in like funds, to an account of the Borrower designated by the
Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section,
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then such
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
that would be otherwise applicable to such Borrowing. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
(c) If a Lender makes a new Loan to the Borrower on a borrowing date on
which the Borrower is to repay a Loan of such Lender, such Lender shall apply
the proceeds of such new Loan to make such repayment, and only the excess of the
proceeds of such new Loan over the Loan being repaid need be made available to
the Administrative Agent.
Section 2.5 Termination and Reduction of Commitments
(a) Unless previously terminated, the Commitments shall terminate on the
earlier of (i) the occurrence of a Change in Control or (ii) the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time reduce,
the Commitments, provided that the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.7, the sum of the Credit Exposures would exceed the
total Commitments, and (ii) each such reduction shall be in an amount that is an
integral multiple of $1,000,000 and not less than $2,000,000.
(c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (c) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable, provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments hereunder shall be
permanent. Each reduction of the Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective Commitments.
Section 2.6 Repayment of Loans; Evidence of Debt
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the debt of the Borrower to such Lender resulting
from each Loan made by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (d)
or (e) of this Section shall, to the extent not inconsistent with any entries
made in any promissory note, be prima facie evidence of the existence and
amounts of the obligations recorded therein, provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Credit Agreement.
(e) Any Lender may request that the Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender, (i) a promissory note payable to the order of such Lender, each
substantially in the form of Exhibit C. In addition, if requested by a Lender,
its promissory note or notes may be made payable to such Lender and its
registered assigns in which case all Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to
Section 10.4) be represented by one or more promissory notes in like form
payable to the order of the payee named therein and its registered assigns.
Section 2.7 Prepayment of Borrowings
(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part, subject to the requirements of this
Section.
(b) In the event of any partial reduction or termination of the
Commitments, then (i) at or prior to the date of such reduction or termination,
the Administrative Agent shall notify the Borrower and the Lenders of the sum of
the Credit Exposures after giving effect thereto and (ii) if such sum would
exceed the total Commitments after giving effect to such reduction or
termination, then the Borrower shall, on the date of such reduction or
termination, prepay Borrowings in an amount sufficient to eliminate such excess.
Without limiting the foregoing, on the occurrence of a Change of Control the
Borrower shall repay the outstanding principal balance of all Borrowings
together with all accrued and unpaid interest, fees and other amounts due under
the Loan Documents.
(c) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 10:30 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 10:30 a.m., New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid, provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the Commitments as
contemplated by Section 2.5, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.5. Promptly
following receipt of any such notice relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Borrowing under Section 2.7(a) shall, when added to the amount of each
concurrent reduction of the Commitments and prepayment of Borrowings under such
Sections, be in an integral multiple of $500,000 and not less than $1,000,000.
Prepayments shall be accompanied by accrued interest to the extent required by
Section 3.1.
Section 2.8 Payments Generally; Pro Rata Treatment; Sharing of Setoffs
(a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal of Loans,
interest or fees, or of amounts payable under Sections 3.5, 3.6, 3.7 or 10.3, or
otherwise) prior to 3:00 p.m., New York City time, on the date when due, in
immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its office at One Wall Street, New
York, New York, or such other domestic office as to which the Administrative
Agent may notify the other parties hereto, and except that payments pursuant to
Sections 3.5, 3.6, 3.7 and 10.3 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal of Loans, interest,
fees and commissions then due hereunder, such funds shall be applied (i) first,
towards payment of interest, fees and commissions then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest,
fees and commissions then due to such parties and (ii) second, towards payment
of principal of Loans then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal of Loans then due to such
parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim
or otherwise, obtain payment in respect of any principal of, or interest on, any
of its Loans resulting in such Lender receiving payment of a greater proportion
of the aggregate amount of its Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans
of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of, and accrued interest on, their respective Loans,
provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations
shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Credit Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the applicable Credit Parties hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to such Credit Parties the amount
due. In such event, if the Borrower has not in fact made such payment, then each
such Credit Party severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Credit Party with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Credit Party shall fail to make any payment required to be made
by it pursuant to Section 2.4(b) then the Administrative Agent may, in its
discretion (notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such Credit
Party to satisfy such Credit Party's obligations under such Sections until all
such unsatisfied obligations are fully paid.
ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC.
Section 3.1 Interest
(a) The Loans comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at
the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the Alternate
Base Rate plus the Applicable Margin.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan, provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than the prepayment of an ABR
Loan prior to the end of the Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment, and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). The applicable Alternate Base Rate, Adjusted
LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent clearly demonstrable error.
Section 3.2 Interest Elections
(a) Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section. The Borrower
may elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders, and the Loans comprising each such portion shall be considered a
separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify
the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.3 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.2:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) of this paragraph shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such
Interest Period, such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event
of Default is continuing, (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto.
Section 3.3 Fees
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender, a facility fee, which shall accrue at a rate per
annum equal to the Applicable Margin on the daily amount of the Commitment
of such Lender (regardless of usage) during the period from and including
the Effective Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Credit
Exposure after its Commitment terminates, then such facility fee shall
continue to accrue on the daily amount of such Lender's Credit Exposure
from and including the date on which such Lender's Commitment terminates to
but excluding the date on which such Lender ceases to have any Credit
Exposure. Accrued facility fees shall be payable in arrears on the last day
of March, June, September and December of each year, each date on which the
Commitments are permanently reduced and on the date on which the
Commitments terminate, commencing on the first such date to occur after the
date hereof, provided that all unpaid facility fees shall be payable on the
date on which the Commitments terminate. All commitment fees shall be
computed on the basis of a year of 365 days (or 366 days in a leap year)
and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent, for the
pro rata account of the Lenders in accordance with their Applicable
Percentages, a utilization fee at a rate per annum equal to the Applicable
Margin on the total Credit Exposures for each day during the Availability
Period on which such Credit Exposure exceeds 25% of the total Commitments
of all Lenders. The utilization fees shall be payable in arrears on the
fifteenth day of March, June, September and December of each year and on
the date on which the Commitments terminate, commencing on the first such
date to occur after the date hereof, provided that all unpaid utilization
fees shall be payable on the date on which the Commitments terminate. All
utilization fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, the administrative agency fee and other amounts payable in the
amounts and at the times separately agreed upon between the Borrower and
the Administrative Agent.
(d) All fees and other amounts payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent for
distribution, in the case of facility and utilization fees, to the Lenders.
Section 3.4 Alternate Rate of Interest
If prior to the commencement of any Interest Period for a
Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by any Lender that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lender
of making or maintaining its Loan included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective,
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
Section 3.5 Increased Costs; Illegality
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, any Credit Party
(except any such reserve requirement reflected in the Adjusted
LIBO Rate);
(ii) impose on any Credit Party or the London interbank
market any other condition affecting this Credit Agreement, any
Eurodollar Loans made by such Credit Party or any participation
therein,
and the result of any of the foregoing shall be to increase the cost to such
Credit Party of making or maintaining any Eurodollar Loan hereunder or to
increase the cost to such Credit Party or to reduce the amount of any sum
received or receivable by such Credit Party hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Credit Party such
additional amount or amounts as will compensate such Credit Party for such
additional costs incurred or reduction suffered.
(b) If any Credit Party determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Credit Party's capital or on the capital of such Credit Party's holding company,
if any, as a consequence of this Credit Agreement or the Loans made by such
Credit Party to a level below that which such Credit Party or such Credit
Party's holding company could have achieved but for such Change in Law (taking
into consideration such Credit Party's policies and the policies of such Credit
Party's holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Credit Party such additional amount or
amounts as will compensate such Credit Party or such Credit Party's holding
company for any such reduction suffered.
(c) A certificate of a Credit Party setting forth the amount or amounts
necessary to compensate such Credit Party or its holding company, as applicable,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Credit Party the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Credit Party to demand compensation
pursuant to this Section shall not constitute a waiver of such Credit Party's
right to demand such compensation; provided that the Borrower shall not be
required to compensate a Credit Party pursuant to this Section for any increased
costs or reductions incurred more than 90 days prior to the date that such
Credit Party notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Credit Party's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 90-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) Notwithstanding any other provision of this Credit Agreement, if, after
the date of this Credit Agreement, any Change in Law shall make it unlawful for
any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter
(for the duration of such unlawfulness) be made by such Lender hereunder
(or be continued for additional Interest Periods and ABR Loans will not
thereafter (for such duration) be converted into Eurodollar Loans),
whereupon any request for a Eurodollar Borrowing or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing,
as applicable, for an additional Interest Period shall, as to such Lender
only, be deemed a request for an ABR Loan (or a request to continue an ABR
Loan as such for an additional Interest Period or to convert a Eurodollar
Loan into an ABR Loan, as applicable), unless such declaration shall be
subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar
Loans shall be automatically converted to ABR Loans, as of the effective
date of such notice as provided in the last sentence of this paragraph.
In the event any Lender shall exercise its rights under (i) or (ii) of this
paragraph, all payments and prepayments of principal that would otherwise have
been applied to repay the Eurodollar Loans that would have been made by such
Lender or the converted Eurodollar Loans of such Lender shall instead be applied
to repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurodollar Loans, as applicable. For purposes of this
paragraph, a notice to the Borrower by any Lender shall be effective as to each
Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest
Period currently applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
Section 3.6 Break Funding Payments
In the event of (a) the payment or prepayment (voluntary or otherwise)
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may
be revoked under Section 2.7(d) and is revoked in accordance therewith), or
(d) the assignment of any Eurodollar Loan other than on the last day of the
Interest Period or maturity date applicable thereto as a result of a
request by any Borrower pursuant to Section 3.8(b), then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest that would have accrued on the principal amount of such Loan had
such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest that
would accrue on such principal amount for such period at the interest rate
that such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
Section 3.7 Taxes
(a) Any and all payments by or on account of any obligation of the Borrower
hereunder and under any other Loan Document shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes, provided that, if
the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that, after making all required deductions (including deductions applicable to
additional sums payable under this Section), the applicable Credit Party
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify each Credit Party, within ten days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by such Credit Party on or with respect to any payment by or on
account of any obligation of the Borrower under the Loan Documents (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Credit Party, or by the
Administrative Agent on its own behalf or on behalf of a Credit Party, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under the Loan Documents shall deliver to the Borrower (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
Section 3.8 Mitigation Obligations
(a) If any Lender requests compensation under Section 3.5, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.7,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans (or any participation therein) hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.5
or 3.7, as applicable, in the future and (ii) would not subject such Lender to
any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 3.5, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.7, in
an aggregate amount in excess of $25,000, then the Borrower may, at its sole
option and expense (including the fees referred to in Section 10.4(b)) and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 10.4), all its interests, rights and
obligations under the Loan Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section 3.5
or payments required to be made pursuant to Section 3.7, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Credit Parties that:
Section 4.1 Organization; Powers
Each of the Borrower and the Significant Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
Section 4.2 Authorization; Enforceability
The Transactions are within the corporate powers of the Borrower and have
been duly authorized by all necessary corporate and, if required, equityholder
action. Each Loan Document has been duly executed and delivered by the Borrower
and constitutes a legal, valid and binding obligation thereof, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally.
Section 4.3 Governmental Approvals; No Conflicts
(a) On or prior to the date on which the Lenders are obligated to make the
initial Loans hereunder in accordance with Section 5.1, (i) the State of Maine
Public Utilities Commission and the Federal Energy Regulatory Commission have
each taken all action necessary to authorize the Borrower to enter into the Loan
Documents, to incur the Indebtedness hereunder, and to take all actions
contemplated thereby or in connection therewith and (ii) the State of
Connecticut Department of Public Utility Control shall have waived jurisdiction
over the foregoing, and such authorizations and waiver shall remain in full
force and effect in the form issued. No other consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
is required for the due execution, delivery and performance by the Borrower of
the Loan Documents.
(b) The execution and delivery of this Credit Agreement (i) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any order of any Governmental
Authority, (ii) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of the
Significant Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of the Significant
Subsidiaries and (iii) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of the Significant Subsidiaries (other than
Liens permitted by Section 7.2).
(c) On and after the receipt of the authorizations, waiver and consents
referred to in Sections 5.1(j) and (m), the performance by the Borrower of each
Loan Document, the borrowing of the Loans, and the use of the proceeds of the
Loans (i) will not violate any applicable law or regulation or the charter,
by-laws or other organizational documents of the Borrower or any order of any
Governmental Authority, (ii) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of the
Significant Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of the Significant
Subsidiaries and (iii) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of the Significant Subsidiaries (other than
Liens permitted by Section 7.2).
Section 4.4 Financial Condition; No Material Adverse Change
(a) The Borrower has heretofore furnished to the Credit Parties (i) the
combined Form 10-K for the fiscal year ended December 31, 1998 of CMP Group and
the Borrower as filed with the SEC, containing the consolidated balance sheet of
the Borrower and the consolidated Subsidiaries as of and for the fiscal years
ended December 31, 1998 and December 31, 1997, the related consolidated
statement of earnings, capitalization and interim financing, changes in
stockholders' equity and cash flows as of and for the fiscal years ended
December 31, 1998, December 31, 1997 and December 31, 1996, reported on by
PriceWaterhouseCoopers LLP independent public accountants, and (ii) the combined
Form 10-Q of CMP Group and the Borrower as filed with the SEC, for the fiscal
year quarter ended September 30, 1999, containing the consolidated balance sheet
of the Borrower and the consolidated Subsidiaries and statements of earnings,
stockholders' equity and liabilities and cash flows as of and for such fiscal
quarter and for the portion of the fiscal year then, certified by its chief
financial officer. The consolidated financial statements referred to in clauses
(i) and (ii) above present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and the
Subsidiaries as of such dates and for the indicated periods in accordance with
GAAP and are consistent with the books and records of the Borrower (which books
and records are correct and complete), subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Except as disclosed in the Pre-Closing 1934 Act Reports, since December
31, 1998, there has been no material adverse change in the financial condition,
operations or properties of the Borrower (on an individual basis) or the
Borrower and the Subsidiaries, taken as a whole.
Section 4.5 Properties
(a) Each of the Borrower and the Significant Subsidiaries has good title
to, or valid leasehold interests in, all its real and personal property material
to its business, except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and the Significant Subsidiaries owns, or is
entitled to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and the Significant Subsidiaries does not infringe upon the rights of
any other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 4.6 Litigation and Environmental Matters
(a) There are no actions, suits or proceedings by or before any arbitrator
or Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of the Significant
Subsidiaries (i) that could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any Loan Document or the Transactions.
(b) The Borrower and each of its Significant Subsidiaries have complied
with and are in compliance with, all applicable Environmental Laws and the
requirements of any permits issued under such Environmental Laws except for such
non-compliance as could not reasonably be expected to result in a Material
Adverse Effect. Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect:
(i) there are no pending or, to the Borrower's knowledge, threatened
Environmental Claims against the Borrower or any of its Significant
Subsidiaries (including any such claim arising out of the ownership, lease
or operation by the Borrower or any of its Significant Subsidiaries of any
real property no longer owned, leased or operated by the Borrower or any of
its Significant Subsidiaries) or any real property owned, leased or
operated by the Borrower or any of its Significant Subsidiaries, and
(ii) there are no facts, circumstances, conditions or occurrences
known to the Borrower with respect to the business or operations of the
Borrower or any of its Significant Subsidiaries, or any real property
owned, leased or operated by the Borrower or any of its Significant
Subsidiaries (including any real property formerly owned, leased or
operated by the Borrower or any of its Significant Subsidiaries but no
longer owned, leased or operated by the Borrower or any of its Significant
Subsidiaries) or any property adjoining or adjacent to any such real
property that could be expected (A) to form the basis of an Environmental
Claim against the Borrower or any of its Significant Subsidiaries or any
real property owned, leased or operated by the Borrower or any of its
Significant Subsidiaries or (B) to cause any real property owned, leased or
operated by the Borrower or any of its Significant Subsidiaries to be
subject to any restrictions on the ownership, occupancy or transferability
of such real property by the Borrower or any of its Significant
Subsidiaries under any applicable Environmental Law; and
(c) Hazardous Materials have not at any time been generated, used, treated
or stored on, or transported to or from, any real property owned, leased or
operated by the Borrower or any of its Subsidiaries where such generation, use,
treatment or storage has violated any applicable Environmental Law and Hazardous
Materials have not at any time been Released on or from any real property owned,
leased or operated by Borrower or any of its Subsidiaries where such Release has
violated any applicable Environmental Law, except for such violations as could
not reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(d) Since the date of this Credit Agreement, there has been no change in
the status of the Disclosed Matters or the Pre-Closing 1934 Act Reports that,
individually or in the aggregate, has resulted in, or materially increased the
likelihood of, a Material Adverse Effect.
Section 4.7 Compliance with Laws and Agreements
Each of the Borrower and the Significant Subsidiaries is in compliance with
all laws, regulations and orders of any Governmental Authority applicable to it
or its property and all indentures, agreements and other instruments binding
upon it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
Section 4.8 Investment and Holding Company Status
Neither the Borrower nor any of the Significant Subsidiaries is an
investment company as defined in, or subject to regulation under, the Investment
Company Act of 1940. The Borrower is a "holding company" for the purposes of the
Public Utility Holding Company Act of 1935 by reason of its ownership of the
stock of certain corporations, but is exempt pursuant to an order of the SEC
under the Public Utility Holding Company Act of 1935 from all of the provisions
thereof except Section 9(a)(2) relating to the acquisition of securities of
public utility affiliates. Neither the Borrower nor any of the Significant
Subsidiaries is subject to any statute or regulation which regulates the
incurring by the Borrower of the Obligations, except for (i) regulation by the
State of Maine Public Utilities Commission and the Federal Energy Regulatory
Commission, which on or before the date the Lenders are obligated to make Loans
to the Borrower pursuant to Article 5 hereunder shall have taken all actions
necessary for the Borrower to incur the Obligations, and (ii) regulation by the
State of Connecticut Department of Public Utility Control, which on or before
the date the Lenders are obligated to make Loans to the Borrower pursuant to
Article 5 hereunder shall have waived jurisdiction over the Transactions.
Section 4.9 Taxes
Each of the Borrower and the Significant Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it, except
(a) Taxes that are being contested in good faith by appropriate proceedings and
for which the Borrower or such Subsidiary, as applicable, has set aside on its
books adequate reserves to the extent such reserves are required by GAAP or (b)
to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
Section 4.10 ERISA
Each Plan and, to the knowledge of the Borrower without special inquiry,
each Multiemployer Plan, is in material compliance with the applicable
provisions of ERISA and the Code. Except to the extent that a failure to do so
has resulted or could reasonably be expected to result in a Material Adverse
Effect, the minimum funding standards of Section 412 of the Code and Section 302
of ERISA have been met in connection with all Plans and, to the knowledge of the
Borrower, no condition exists with respect to which the institution of
proceedings to terminate any Plan under Section 4042 of ERISA could reasonably
be expected. To the knowledge of the Borrower without special inquiry, no
Multiemployer Plan is currently insolvent or in reorganization or has been
terminated within the meaning of ERISA, pursuant to which the Borrower has
incurred or could reasonably be expected to incur material liability.
Section 4.11 Disclosure
The Borrower has disclosed to the Credit Parties all agreements,
instruments and corporate or other restrictions to which it or any of the
Significant Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower or any
Significant Subsidiary to any Credit Party in connection with the negotiation of
the Loan Documents or delivered thereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
Section 4.12 Significant Subsidiaries
Schedule 4.12 sets forth the name of, and the direct or indirect ownership
interest of the Borrower in, each Subsidiary and identifies each Subsidiary that
is a Significant Subsidiary, in each case as of the Effective Date.
Section 4.13 Labor Matters
As of the Effective Date, there are no strikes, lockouts or slowdowns
against the Borrower or any Significant Subsidiary pending or, to the knowledge
of the Borrower, threatened. The consummation of the Transactions will not give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which the Borrower or any
Significant Subsidiary is bound.
Section 4.14 Security Agreement
The Security Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and when (i) the financing statements in appropriate form
are filed in the offices specified on Schedule 6 to the Perfection Certificate
and (ii) all other applicable filings under the Uniform Commercial Code or
otherwise that are required under the Loan Documents are made, in each case as
permitted by the Security Agreement, the Security Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the grantors thereunder in such Collateral, in each case prior and superior
in right to any other Person, other than with respect to Liens expressly
permitted by Section 7.2.
Section 4.15 Federal Reserve Regulations
(a) Neither the Borrower nor any of the Subsidiaries are engaged
principally, or as one of their important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase,
acquire or carry any Margin Stock or for any purpose that entails a violation
of, or that is inconsistent with, the provisions of the regulations of the
Board, including Regulation T, U or X.
Section 4.16 Year 2000 Issue
Each of the Borrower and each of the Significant Subsidiaries has reviewed
the effect of the Year 2000 Issue on the computer software, hardware and
firmware systems and equipment containing embedded microchips owned or operated
by or for the Borrower and each Subsidiary or used or relied upon in the conduct
of their business (including systems and equipment supplied by others or with
which such computer systems of the Borrower and the Significant Subsidiaries
interface). The costs to the Borrower and the Significant Subsidiaries of any
reprogramming required as a result of the Year 2000 Issue to permit the proper
functioning of such systems and equipment and the proper processing of data, and
the testing of such reprogramming, and of the reasonably foreseeable
consequences of the Year 2000 Issue to the Borrower or any of the Significant
Subsidiaries (including reprogramming errors and the failure of systems or
equipment supplied by others) are not reasonably expected to result in a Default
or Event of Default or to have a Material Adverse Effect.
ARTICLE 5. CONDITIONS
Section 5.1 First Loans
In addition to the conditions precedent set forth in Section 5.2, the
obligation of each Lender to make Loans on the first borrowing date shall be
subject to the fulfillment of the following conditions (or the waiver thereof in
accordance with Section 10.2):
(a) This Credit Agreement shall have become effective in accordance with
Section 10.13.
(b) The Administrative Agent shall have received a Note for each Lender
signed on behalf of the Borrower.
(c) The Administrative Agent shall have received a favorable written
opinion (addressed to the Credit Parties and dated the earlier of the first
borrowing date and date on which the conditions set forth in this Section 5.1
are satisfied) from (i) LeBoeuf, Lamb, Xxxxxx & XxxXxx, LLP, special counsel to
the Borrower, and (ii) Xxxxxxx X. Xxxx, Corporate Counsel of the Borrower, each
in form and substance satisfactory to the Administrative Agent. The Borrower
hereby requests such counsel to deliver such opinion.
(d) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower, the
authorization of the Transactions and any other legal matters relating to the
Borrower, the Loan Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received evidence that the Existing
Credit Agreement has been terminated, all amounts due thereunder have been paid,
all guarantees, if any, thereof have been terminated and all security interests,
if any, securing the obligations thereunder have been released.
(f) The Administrative Agent shall have received a certificate, dated the
earlier of the first borrowing date and date on which the conditions set forth
in this Section 5.1 are satisfied and signed by the President, a Vice President
or a Financial Officer of the Borrower, (i) confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 5.2 and (ii)
certifying that except as disclosed in the Pre-Closing 1934 Act Reports, since
December 31, 1998, there has been no material adverse change in the financial
condition, operations or properties of the of the Borrower (on an individual
basis) or the Borrower and the Subsidiaries, taken as a whole.
(g) The Administrative Agent shall have received counterparts of a security
agreement, in form and substance satisfactory to the Administrative Agent (the
"Security Agreement") signed on behalf of the Borrower, together with the
following:
(i) all instruments and other documents, including Uniform Commercial
Code financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create or
perfect the Liens intended to be created under the Security Agreement; and
(ii) a completed Perfection Certificate, dated the earlier of the
first borrowing date and date on which the conditions set forth in this
Section 5.1 are satisfied and signed by the President, a Vice President or
a Financial Officer and the chief legal officer of the Borrower, together
with all attachments contemplated thereby, including the results of a
search of the Uniform Commercial Code (or equivalent) filings made with
respect to the Borrower in the jurisdictions contemplated by the Perfection
Certificate and copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements
(or similar documents) are permitted by Section 7.2 or have been released.
(h) The performance by the Borrower of its obligations under each Loan
Document shall not (i) violate any applicable law, statute, rule or regulation
or (ii) conflict with, or result in a default or event of default under, any
Material Agreement, and the Administrative Agent shall have received a legal
opinion and/or officer's certificate to such effect, satisfactory to the
Administrative Agent.
(i) The Administrative Agent shall have received an officer's certificate
of the Borrower attaching a true and complete copy of each Material Agreement.
(j) The Administrative Agent shall have received, with copies and executed
counterparts for each Lender, true and correct copies (in each case certified as
to authenticity on such date on behalf of the Borrower) of the order entered by
the State of Maine Public Utilities Commission, the waiver of jurisdiction by
the State of Connecticut Department of Public Utility Control, and the
authorization of the Federal Energy Regulatory Commission as referred to in
Section 4.3, and the foregoing shall be satisfactory in form and substance to
the Administrative Agent and shall be in full force and effect.
(k) After giving effect to the Transactions occurring on the earlier of the
first borrowing date and date on which the conditions set forth in this Section
5.1 are satisfied, none of the Borrower or any of the Significant Subsidiaries
shall have outstanding any Indebtedness, other than (i) Indebtedness incurred
under the Loan Documents and (ii) Indebtedness set forth on Schedule 7.1.
(l) The Administrative Agent shall have received a certificate, dated the
earlier of the first borrowing date and date on which the conditions set forth
in this Section 5.1 are satisfied and signed by a Financial Officer of the
Borrower, setting forth reasonably detailed calculations demonstrating
compliance with Sections 7.11 and 7.12 on a pro forma basis immediately after
giving effect to the Transactions occurring on such date.
(m) The Administrative Agent shall have received a consent of Energy East
and Merger Corp. to the extent required by the Merger Agreement and of the
Finance Authority of Maine to the extent required by the Fame Loan Agreement to
the execution, delivery and performance of the Loan Documents by the Borrower,
including the incurrence of the Indebtedness and the granting of the security
interest in the Collateral thereunder.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless except as provided below, each of
the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or
prior to 3:00 p.m., New York City time, on January 31, 2000 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate
at such time), provided, however, that so long as the Borrower is diligently
seeking the authorization of the Federal Energy Regulatory Commission as
referred to in Section 4.3 in good faith, the Borrower need not satisfy the
conditions set forth in Section 5.1(j) to the extent related to such
authorization until February 29, 2000.
Section 5.2 Each Credit Event
The obligation of each Lender to make a Loan on the occasion of any
Borrowing is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Borrower set forth in this
Credit Agreement shall be true and correct on and as of the date of such
Borrowing with the same effect as though such representations and warranties had
been made on such date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such earlier date.
(b) At the time of and immediately after giving effect to such Borrowing,
no Default shall have occurred and be continuing.
(c) The Administrative Agent shall have received such other documentation
and assurances as shall be reasonably required by it in connection therewith.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE 6. AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees and other amounts payable under the Loan
Documents shall have been paid in full, the Borrower covenants and agrees with
the Lenders that:
Section 6.1 Financial Statements and Other Information
The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 100 days after the end of each fiscal year, a copy of its
audited consolidated balance sheet and related statements of income,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by PriceWaterhouseCoopers or other independent public
accountants of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, provided that the Borrower
may satisfy the requirements of this subsection (a) by the delivery of its Form
10-K filed with the SEC;
(b) within 55 days after the end of each of the first three fiscal quarters
of each fiscal year, a copy of its consolidated balance sheet and related
statements of earnings, stockholders' equity and cash flows as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding period
or periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Borrower and the consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes, provided that
the Borrower may satisfy the requirements of this subsection (b) by the delivery
of its Form 10-Q filed with the SEC;
(c) concurrently with any delivery of financial statements under clause (a)
or (b) above, a certificate of a Financial Officer (i) certifying as to whether
a Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, (ii)
setting forth reasonably detailed calculations demonstrating compliance with
Sections 7.11 and 7.12, (iii) setting forth the name of each Subsidiary which is
a Significant Subsidiary (including reasonably detailed calculations
demonstrating that other Subsidiaries are not Significant Subsidiaries), and
(iv) stating whether any material change in GAAP or in the application thereof
in any material respect has occurred since the date of the audited financial
statements referred to in Section 4.4 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) promptly upon request after the same become publicly available, copies
of all periodic and other reports, proxy statements, registration statements and
other materials filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or with any national securities exchange, or distributed by
the Borrower to its public shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Significant Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may reasonably request.
Section 6.2 Notices of Material Events
The Borrower will furnish to the Administrative Agent and each Lender
prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that could in the good faith opinion of the
Borrower reasonably be expected to result in a Material Adverse Effect; and
(c) any other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section 6.3 Existence; Conduct of Business
The Borrower will, and will cause each of the Significant Subsidiaries to,
do or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges and franchises material to the conduct of its business, provided that
the foregoing shall not prohibit any merger, consolidation, liquidation,
dissolution, sale or disposition permitted under Section 7.3 and 7.5.
Section 6.4 Payment of Obligations
The Borrower will, and will cause each of the Significant Subsidiaries to,
pay its obligations, including Tax liabilities, that, if not paid, could result
in a Material Adverse Effect before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Significant
Subsidiary has set aside on its books adequate reserves with respect thereto to
the extent required by GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
Section 6.5 Maintenance of Properties
The Borrower will, and will cause each of the Significant Subsidiaries to,
keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, provided, however,
that the foregoing shall not prohibit any sale, disposition, merger,
consolidation, liquidation or dissolution permitted by Section 7.3 or 7.5.
Section 6.6 Books and Records; Inspection Rights
The Borrower will, and will cause each of the Significant Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of the Significant
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
Section 6.7 Compliance with Laws
The Borrower will, and will cause each of the Significant Subsidiaries to,
comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
Section 6.8 Use of Proceeds
The proceeds of the Loans will be used only for general corporate purposes
not inconsistent with the terms hereof, including commercial paper backup. No
part of the proceeds of any Loan will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase, acquire or
carry any Margin Stock or for any purpose that entails a violation of any of the
regulations of the Board, including Regulations T, U and X.
Section 6.9 Information Regarding Collateral
(a) The Borrower will furnish to the Administrative Agent prompt written
notice of any change in (i) the legal name of the Borrower or in any trade name
used to identify it in the conduct of its business or in the ownership of its
properties, (ii) the location of the chief executive office of the Borrower, its
principal place of business, any office in which it maintains books or records
relating to Collateral, (iii) the identity or organizational structure of the
Borrower such that a filed financing statement becomes misleading or (iv) the
Federal Taxpayer Identification Number of the Borrower. On and after the date on
which the Administrative Agent elects to perfect its security interest pursuant
to the Security Agreement, the Borrower agrees not to effect or permit any
change referred to in the preceding sentence unless all filings have been made
under the Uniform Commercial Code or otherwise that are required in order for
the Administrative Agent to continue at all times following such change to have
a valid, legal and on perfected security interest in all the Collateral.
(b) Each year, at the time of delivery of annual financial statements with
respect to the preceding fiscal year pursuant to paragraphs (a) and (b) of
Section 6.1, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the Borrower,
(i) setting forth the information required pursuant to Sections 1 and 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate or the date of the most
recent certificate delivered pursuant to this Section and (ii) on and after the
date on which the Administrative Agent elects to perfect its security interest
pursuant to the Security Agreement, certifying that all Uniform Commercial Code
financing statements or other appropriate filings, including all refilings,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above, and all other actions have been taken,
to the extent necessary to protect and perfect the security interests under the
Security Agreement for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period).
Section 6.10 Insurance
The Borrower will, and will cause each of the Significant Subsidiaries to,
maintain, with financially sound and reputable insurance companies, adequate
insurance for its insurable properties, all to such extent and against such
risks, including fire, casualty, business interruption and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses operating in the same or similar locations.
Section 6.11 Further Assurances
The Borrower will execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements and other
documents), that may be required under any applicable law, or which the
Administrative Agent or the Required Lenders may reasonably request, to
effectuate the transactions contemplated by the Loan Documents or to grant,
preserve, protect or, on and after the date on which the Administrative Agent
elects to perfect its security interest pursuant to the Security Agreement,
perfect the Liens created or intended to be created by the Security Agreement or
the validity or priority of any such Lien, all at the expense of the Borrower.
The Borrower also agrees to provide to the Administrative Agent, from time to
time upon request, evidence reasonably satisfactory to the Administrative Agent
as to the perfection and priority of the Liens created or intended to be created
by the Security Agreement.
Section 6.12 Environmental Compliance
The Borrower shall, and shall cause each of its Significant Subsidiaries
to, use and operate all of its facilities and property in compliance with all
Environmental Laws, keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental matters in effect
and remain in compliance therewith, and handle all Hazardous Materials in
compliance with all applicable Environmental Laws, except where noncompliance
with any of the foregoing could not reasonably be expected to have a Material
Adverse Effect.
ARTICLE 7. NEGATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees and other amounts payable under the Loan
Documents shall have been paid in full, the Borrower covenants and agrees with
the Lenders that:
Section 7.1 Indebtedness
(a) The Borrower will not, and will not permit any Significant Subsidiary
to, create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Indebtedness existing on the date hereof and set forth in
Schedule 7.1 and all renewals and extensions thereof (except with respect
to Indebtedness in respect of the Existing Credit Agreement which is being
terminated on or prior to the Effective Date) in an aggregate principal
amount not in excess of the aggregate principal amount thereof outstanding
immediately prior to such renewal or extension;
(iii) Indebtedness incurred to finance the acquisition, construction
or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof,
provided that (A) such Indebtedness is incurred prior to or within 120 days
after such acquisition or the completion of such construction or
improvement and (B) the aggregate principal amount of Indebtedness
permitted by this clause (iii) shall not exceed $40,000,000 at any time
outstanding;
(iv) Indebtedness, provided that (A) no Default shall exist
immediately before and after giving effect thereto and all of the
representations and warranties contained in Article 4 shall be true and
correct as if then made, (B) such Indebtedness shall be unsecured except to
the extent permitted by Section 7.2(j) and (C) in the case of Indebtedness
of (1) the Borrower, such Indebtedness is subordinated to the Indebtedness
under the Loan Documents on terms approved in writing by Super Majority
Lenders and (2) a Significant Subsidiary, the aggregate principal amount of
such Indebtedness outstanding at any time shall not exceed $10,000,000;
(v) other unsecured Indebtedness of the Borrower, including the
Indebtedness of the Borrower in respect of the Unsecured Medium Term Notes
and commercial paper, provided that at no time shall the sum of the
aggregate outstanding principal amount of all Indebtedness permitted by
this clause (v) plus the total Credit Exposure exceed $575,000,000; and
(vi) Guarantees (A) of the Obligations, (B) of Indebtedness permitted
by Section 7.1(a) (other than this clause (vi), (C) given, entered into or
created in connection with or as an inducement to (1) the purchase or sale
of capacity or energy (including support arrangements with respect to
generating plants and transmission and distribution facilities, and
contracts for the purchase of capacity and/or energy) or of fuel, (2) the
installation of energy-saving devices and taking of other energy-saving
measures, and (3) other operational matters in the ordinary course of
business; provided, that no individual Guarantee permitted under this
clause (3) may present a liability or exposure to the Borrower or a
Subsidiary in an amount greater than $10,000,000; and provided, further,
that this Section 7.1(a)(v) shall not permit the giving, entering into or
creation, after the date hereof, of any Guarantee (other than as required
under contracts existing on the date hereof) providing support for the
acquisition by the Borrower or a Subsidiary of generating capacity or a
generating plant (other than in connection with buyouts by the Borrower of
non-utility generating operations, in connection with power purchases
required by law or in connection with exchanges of capacity or plant
entitlements within the ordinary course of ensuring an adequate power
supply to mitigate the Borrower's risk, provided that no such exchange
shall exceed three years in duration) which individually presents a
liability or exposure to the Borrower or a Subsidiary in an amount greater
than $10,000,000.
(b) In any transaction providing for Indebtedness in excess of $1,000,000,
the Borrower will not enter into or become bound by any credit agreement or
other document or instrument which (i) contains financial covenants or events of
default that are more restrictive or onerous on the Borrower than those
covenants or events of default contained in this Credit Agreement or (ii)
provides for, or permits the exercise of, remedies upon the occurrence of an
event of default thereunder which are not provided for in, or permitted to be
exercised under or in respect of, this Credit Agreement (each such covenant,
event of default and provision described in the preceding clauses (i) and (ii)
being herein called a "More Favorable Provision"), unless, prior to or
simultaneously, (x) the Borrower executes and delivers to the Administrative
Agent an amendment to this Credit Agreement and such other documents and
instruments as the Administrative Agent shall reasonably request, in each case
reasonably satisfactory in form and substance to the Administrative Agent, which
modify the provisions of this Credit Agreement and the terms of the transactions
contemplated hereby and by the Loan Documents so as to give the Lenders the
benefits of each More Favorable Provision, and (y) the Borrower furnishes to the
Administrative Agent and the Lenders a copy of such credit agreement, or other
document or instrument.
Section 7.2 Liens
The Borrower will not, and will not permit any Significant
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Borrower or any Subsidiary
existing on the date hereof and set forth in Schedule 7.2, provided that (i)
such Lien shall not apply to any other property or asset of the Borrower or any
Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof and any extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(d) purchase money Liens securing Indebtedness permitted by Section
7.1(a)(iii) incurred in connection with the acquisition after the date hereof of
any property by the Borrower or any Significant Subsidiary, provided that such
Indebtedness shall not exceed in any case 90% of the cost to the Borrower or
such Significant Subsidiary of the property acquired and each such Lien shall
cover only such property acquired (and renewals, replacements and improvements
thereof and thereto);
(e) Liens on nuclear fuel, or rights to purchase or use nuclear fuel, which
are created to secure, and only to secure, Indebtedness incurred for the purpose
of purchasing or arising as a result of leasing nuclear fuel for use in plants
in which the Borrower or a Significant Subsidiary as an interest;
(f) Liens on coal and fuel oil and proceeds thereof (excluding accounts
receivable arising from the sale of electrical energy) to secure, and only to
secure, Indebtedness incurred for the purpose of purchasing or storing such
fuels for use in plants of the Borrower or a Significant Subsidiary;
(g) Liens on computer and related equipment, vehicles, automotive equipment
and construction equipment, and the office and service buildings of the Borrower
or a Significant Subsidiary to secure Indebtedness permitted by Section
7.1(a)(iii) incurred for the financing or refinancing of the cost thereof,
provided that such Indebtedness shall not exceed in any case the cost to the
Borrower or such Significant Subsidiary of such property;
(h) any Lien, moneys sufficient for the discharge of which have been
deposited in trust with the trustee or mortgagee under the instrument evidencing
such Lien, with irrevocable authority to such trustee or mortgagee to apply such
moneys to the discharge of such Lien to the extent required for such purpose;
(i) rights reserved to or vested in others to take or receive any part of
the gas, by-products of gas or steam or electricity generated or produced by or
from any properties of the Borrower or any Subsidiary or with respect to any
other rights concerning supply, transportation or storage of a commodity which
is used in the ordinary course of business; and
(j) Liens in addition to those permitted by clauses (a) through (i) above
securing Indebtedness in an aggregate unpaid principal amount not in excess of
$15,000,000.
Section 7.3 Fundamental Changes
(a) The Borrower will not, and will not permit any Significant Subsidiary
to merge into or consolidate with any other Person, or permit any other Person
to merge into or consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the equity
securities of any of the Significant Subsidiaries (in each case, whether now
owned or hereafter acquired), or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto, no Default shall have
occurred and be continuing:
(i) any Significant Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving entity, any Significant
Subsidiary may merge into any Wholly-Owned Subsidiary in a transaction in
which such Wholly-Owned Subsidiary is the surviving entity;
(ii) any Significant Subsidiary may merge with any Person in a
transaction that is not permitted by clause (i) of this Section 7.3(a),
provided that such merger is permitted by Sections 7.4 or 7.5, as
applicable;
(iii) any Significant Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to any Wholly-Owned
Subsidiary;
(iv) the Borrower or any Significant Subsidiary may sell, transfer,
lease or otherwise dispose of its assets in a transaction that is not
permitted by clause (iii) of this Section 7.3(a), provided that such sale,
transfer, lease or other disposition is also permitted by Section 7.5.; and
(v) any Significant Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and is not materially disadvantageous
to the Lenders.
(b) The Borrower will not, and will not permit any of the Significant
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Borrower and the Significant
Subsidiaries on the date of execution of this Credit Agreement and businesses
directly related thereto.
Section 7.4 Investments, Loans, Advances, Guarantees and Acquisitions
(a) The Borrower will not, and will not permit any of the Significant
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger)
any capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any Loans or advances to, make or permit to exist any Guarantees
of any obligations of, or make or permit to exist any investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions (including pursuant to any merger)) any
assets of any other Person constituting a business unit (collectively,
"Investments"), except:
(i) Permitted Investments;
(ii) Investments existing on the date hereof and set forth in Schedule
7.4(a)(ii);
(iii) Guarantees permitted by Section 7.1(a)(v); and
(iv) other Investments, provided that immediately after giving effect
thereto, (A) no Default shall have occurred or be continuing and (B) the
aggregate book value of the assets of the Subsidiaries shall not exceed 15%
of the aggregate book value of the assets of the Borrower and the
Subsidiaries on a consolidated assets determined in accordance with GAAP,
provided, further that after the date hereof, neither the Borrower nor any
Subsidiary shall acquire any ownership interest in any nuclear energy
generating plants.
(b) Notwithstanding the foregoing, the following shall not be considered
Investments prohibited or limited by this Section 7.4(a): (i) current trade and
customer accounts receivable for property leased, goods furnished or services
rendered in the ordinary course of business and payable in accordance with
customary trade terms, (ii) deposits, advances or prepayments to suppliers for
property leased or licensed, goods furnished and services rendered in the
ordinary course of business, (iii) advance to employees for relocation and
travel expenses, drawing accounts and similar expenditures, (iv) stock or other
securities acquired in connection with the satisfaction or enforcement of
Indebtedness or claim due to the Borrower or any Subsidiary or as security for
any such Indebtedness or claim or (v) demand deposits in banks or similar
financial institutions.
(c) In determining the amount of outstanding Investments:
(i) the amount of any Investments shall be the cost thereof minus any
returns of capital in cash on such Investment (determined in accordance
with GAAP without regard to amounts realized as income on such Investment);
(ii) the amount of acquisition shall include the amount of any
Indebtedness assumed in connection with such purchase or secured by any
asset acquired in such purchase (whether or not any Indebtedness is
assumed) or for which any Person that becomes a Subsidiary is liable on the
date on which the securities of such Person are acquired; and
(iii) no Investment shall be increased as the result of an increase in
the undistributed retained earnings of the Person in which the Investment
was made or decreased as a result of an equity interest in the losses of
such Person.
Section 7.5 Asset Sales
The Borrower will not, and will not permit any of the Significant
Subsidiaries to, sell, transfer, lease or otherwise dispose (including pursuant
to a merger) of any asset, including any equity securities, or enter into any
Sale and Leaseback Transaction, except:
(a) sales, transfers, leases and other dispositions of inventory, used or
surplus equipment and Permitted Investments, in each case in the ordinary course
of business;
(b) sales, transfers, leases and other dispositions of inventory and
Permitted Investments, in each case in the ordinary course of business;
(c) sales, transfers, leases and other dispositions of tangible assets no
longer used or useful or advantageous to the conduct of the business which are
to be replaced in the ordinary course of business to the extent necessary by
other tangible assets of equal or greater value;
(d) grants of licenses of products and intangible assets for fair value in
the ordinary course of business;
(e) grants of easements and other similar rights to use its real estate and
properties;
(f) other sales, transfers, leases and other dispositions and Sale and
Leaseback Transactions, provided that at the time thereof and immediately after
giving effect thereto, (i) no Default shall have occurred and be continuing,
(ii) the aggregate fair market value of all assets, sold, transferred, leased or
otherwise disposed of and all Sale and Leaseback Transactions in reliance upon
this subsection (f) shall not exceed $20,000,000 in the aggregate in any period
of 12 consecutive months, and (iii) all sales, transfers, leases and other
dispositions and all Sale and Leaseback Transactions permitted by this
subsection (f) shall be made for fair value;
(g) sales, transfers, leases and other dispositions of nuclear assets, any
generation assets, including contracts for the supply of generations; and
(h) entitlements to the Hydro-Quebec tie line.
Section 7.6 Hedging Agreements
The Borrower will not, and will not permit any of the Subsidiaries to,
enter into any Hedging Agreement, other than Hedging Agreements entered into in
the ordinary course of business to hedge or mitigate risks to which the Borrower
or any Subsidiary is exposed in the conduct of its business or the management of
its liabilities, including an interest rate risk management program.
Section 7.7 Restricted Payments
The Borrower will not declare or make, or agree to pay for or make,
directly or indirectly, any Restricted Payment, except that the Borrower may
declare and make Restricted Payments provided that immediately before and after
giving effect to such declaration or payment, no Event of Default shall have
occurred and be continuing.
Section 7.8 Transactions with Affiliates
The Borrower will not, and will not permit any of the Subsidiaries to,
sell, transfer, lease or otherwise dispose (including pursuant to a merger) any
property or assets to, or purchase, lease or otherwise acquire (including
pursuant to a merger) any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, except on terms and conditions
not less favorable to the Borrower or such Subsidiary than could be obtained on
an arms-length basis from unrelated third parties, provided that this Section
shall not apply to any transaction that is permitted under Section 7.1, 7.3,
7.4, 7.5 or 7.8 between or among the Borrower and not involving any other
Affiliate.
Section 7.9 Restrictive Agreements
The Borrower will not, and will not permit any of the Significant
Subsidiaries to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower to perform its obligations under
the Security Agreement or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to any shares of its equity securities or to
make or repay Loans or advances to the Borrower or any other Subsidiary or to
Guarantee Indebtedness of the Borrower or any other Subsidiary, provided that
the foregoing shall not apply to restrictions and conditions imposed by (i)
applicable law, (ii) the Loan Documents, (iii) the FAME Loan Agreement, (iv)
covenants in documents creating Liens permitted by Section 7.2(d) prohibiting
further Liens on the assets encumbered thereby, and (v) immaterial agreements,
instruments, deeds and leases.
Section 7.10 Amendment of Material Documents
The Borrower will not, and will not permit any Significant Subsidiary to,
amend, modify or waive any of its rights under any Material Agreement or its
certificate of incorporation, by-laws or other organizational documents, other
than amendments, modifications or waivers that would not reasonably be expected
to adversely affect the Credit Parties.
Section 7.11 Interest Coverage Ratio
The Borrower will not permit the Interest Coverage Ratio as of the end of
any fiscal quarter to be less than 1.75:100.
Section 7.12 Capitalization Ratio
The Borrower will not permit the Capitalization Ratio at any time to be
greater than 0.65:1.00. This covenant will be tested as of the last day of each
fiscal quarter.
ARTICLE 8. EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee,
commission or any other amount (other than an amount referred to in clause (a)
of this Article) payable under any Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for a period
of five days.
(c) any representation or warranty made or deemed made by or on behalf of
the Borrower or by the Borrower on behalf of any Subsidiary in or in connection
with any Loan Document or any amendment or modification hereof or waiver
thereunder, or in any report, certificate, financial statement or other document
furnished pursuant to or in connection with any Loan Document or any amendment
or modification hereof or waiver thereunder, shall prove to have been incorrect
in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition
or agreement contained in Sections, 6.3 or 6.8 or in Article 7;
(e) the Borrower shall fail to observe or perform any covenant, condition
or agreement contained in any Loan Document to which it is a party (other than
those specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after the Borrower shall or
reasonably should, have obtained knowledge thereof;
(f) the Borrower or any Subsidiary shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable (after giving
effect to any applicable grace period);
(g) any event or condition occurs that results in any Material Indebtedness
becoming due prior to its scheduled maturity or that enables or permits the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity, provided that this clause (g) shall not apply to secured Indebtedness
that becomes due solely as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Borrower or any Subsidiary or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in writing
its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount
in excess of $10,000,000 shall be rendered against the Borrower or any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the Required
Lenders, when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in a Material Adverse Effect;
(m) (i) any Loan Document shall cease, for any reason, to be in full force
and effect, or the Borrower shall so assert in writing or shall disavow any of
its obligations thereunder or (ii) any representation, warranty, covenant or
other obligation for the benefit of the Borrower or any of its Affiliates
contained in any Loan Document that, by its terms, survives for any period shall
cease, for any reason, to so survive; or
(n) any Lien purported to be created under the Security Agreement shall
cease to be, or shall be asserted by the Borrower not to be, a valid and after
the Administrative Agent has elected to perfect its security interest under the
Security Agreement, perfected Lien on any Collateral, with the priority required
by the Security Agreement, except as a result of the sale or other disposition
of the applicable Collateral in a transaction permitted under the Loan
Documents;
then, and in every such event (other than an event described in clause (h) or
(i) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued under the Loan Documents, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued under the Loan Documents, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower.
ARTICLE 9. THE ADMINISTRATIVE AGENT
Each Credit Party hereby irrevocably appoints the Administrative Agent as
its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Loan Documents that the
Administrative Agent is required to exercise in writing by the Required Lenders
(or such other number or percentage of the Credit Parties as shall be necessary
under the circumstances as provided in Section 10.2), and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of the Subsidiaries that is communicated to or
obtained by the Person serving as Administrative Agent or any of its Affiliates
in any capacity. The Administrative Agent shall not be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Credit Parties as shall be
necessary under the circumstances as provided in Section 10.2) or in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Borrower or a Credit
Party (and, promptly after its receipt of any such notice, it shall give each
Credit Party and the Borrower notice thereof), and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth therein, (iv) the validity, enforceability, effectiveness or genuineness
thereof or any other agreement, instrument or other document or (v) the
satisfaction of any condition set forth in Article 5 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent, provided that no such delegation shall serve as a release
of the Administrative Agent or waiver by the Borrower of any rights hereunder.
The Administrative Agent and any such sub-agent may perform any and all its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and
any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Credit Parties and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Credit Parties, appoint
a successor Administrative Agent which shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.3 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Credit Party acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Credit Party and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Credit Agreement. Each Credit Party
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Credit Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon any Loan
Document, any related agreement or any document furnished thereunder.
Notwithstanding anything in any Loan Document to the contrary, the
Syndication Agent in such capacity shall not have any right, duty or obligation
under the Loan Documents.
ARTICLE 10. MISCELLANEOUS
Section 10.1 Notices
Except in the case of notices and other communications expressly permitted
to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 00 Xxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000,
Attention of Xxxxxx Call, Treasurer (Telephone No. (000) 000-0000); Telecopy No.
(000) 000-0000);
(b) if to the Administrative Agent, to it at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of: Xxxx Xxxxxxxxxx (Telephone No. (000) 000-0000);
Telecopy No. (000) 000-0000 or 6366 or 6367, with a copy to The Bank of New
York, at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of: Xxxx X. Xxxx
(Telephone No. (000) 000-0000; Telecopy No. (000) 000-0000; and
(c) if to any other Credit Party, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Credit Agreement shall be deemed to have been given on
the date of receipt.
Section 10.2 Waivers; Amendments
(a) No failure or delay by any Credit Party in exercising any right or
power under any Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Credit Parties under the Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of any Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
shall not be construed as a waiver of any Default, regardless of whether any
Credit Party may have had notice or knowledge of such Default at the time.
(b) Neither this Credit Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders, provided that no
such agreement shall (i) increase any Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan, or
reduce the rate of interest thereon, or reduce any fees or other amounts payable
under the Loan Documents, or reduce the amount of any scheduled reduction of the
Commitments, without the written consent of each Credit Party affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, or any interest thereon, or any fees or other amounts payable under the
Loan Documents, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of reduction or expiration of the Commitments, or
extend the final expiration of date of any Letter of Credit beyond the Maturity
Date, without the written consent of each Credit Party affected thereby, (iv)
change any provision hereof in a manner that would alter the pro rata sharing of
payments required by any Loan Document, without the written consent of each
Credit Party, (v) change any of the provisions of this Section or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender, (vii) release any of the Collateral from the Liens of
the Loan Documents (except as expressly provided in the Security Agreement),
without the consent of each Lender, and provided, further, that (x) no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
Section 10.3 Expenses; Indemnity; Damage Waiver
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Credit Agreement or any
amendments, modifications or waivers of the provisions of any Loan Document
(whether or not the transactions contemplated thereby shall be consummated) and
(ii) all out-of-pocket expenses incurred by any Credit Party, including the
fees, charges and disbursements of any counsel for any Credit Party, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including its rights under this Section, or in connection
with the Loans made hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans.
(b) The Borrower shall indemnify each Credit Party and each Related Party
thereof (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all actual losses, claims, damages,
liabilities and related reasonable expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Loan Document or any agreement or instrument
contemplated thereby, the performance by the parties to the Loan Documents of
their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated thereby, (ii) any Loan or the use of the
proceeds thereof, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
the Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of the Subsidiaries or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto, provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent an
amount equal to the product of such unpaid amount multiplied by a fraction, the
numerator of which is such Lender's Commitment and the denominator of which is
the total of all Lenders' Commitments (in each case determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as applicable, was incurred by or asserted against
the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct and actual damages) arising out of, in connection with, or as a result
of, any Loan Document or any agreement, instrument or other document
contemplated thereby, the Transactions or any Loan or the use of the proceeds
thereof.
(e) All amounts due under this Section shall be payable promptly but in no
event later than ten days after written demand therefor.
Section 10.4 Successors and Assigns
(a) The provisions of this Credit Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Credit Party (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Credit Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each
Credit Party) any legal or equitable right, remedy or claim under or by reason
of any Loan Document.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Credit Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it), provided that (i)
except in the case of an assignment to a Lender or an Affiliate or an Approved
Fund of a Lender, each of the Borrower and the Administrative Agent must give
its prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender or
an Affiliate or an Approved Fund of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 unless
the Borrower and the Administrative Agent otherwise consent, (iii) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance together with, unless otherwise agreed by the
Administrative Agent, a processing and recordation fee of $3,500, and (iv) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire, and provided further, that any consent of the
Borrower otherwise required under this paragraph shall not be required if a
Default has occurred and is continuing. Subject to acceptance and recording
thereof pursuant to paragraph (d) of this Section, from and after the effective
date specified in each Assignment and Acceptance, the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under the Loan
Documents, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under the Loan Documents (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
the Loan Documents, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 3.5, 3.6, 3.7 and 10.3). Any
assignment or transfer by a Lender of rights or obligations under the Loan
Documents that does not comply with this paragraph shall be treated for purposes
of the Loan Documents as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York City a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive absent
clearly demonstrable error, and the Borrower and each Credit Party may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Credit Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the
Borrower and any Credit Party, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Credit Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or any Credit
Party, sell participations to one or more banks or other entities (each such
bank or other entity being called a "Participant") in all or a portion of such
Lender's rights and obligations under the Loan Documents (including all or a
portion of its Commitment and the Loans owing to it), provided that (i) such
Lender's obligations under the Loan Documents shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower and the Credit Parties
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of any Loan
Documents, provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 10.2(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.5
and 3.6 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.8
as though it were a Lender, provided that such Participant agrees to be subject
to Section 2.10(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 3.5 or 3.7 than the Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.7 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 3.7(e) as though it were a
Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under the Loan Documents to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest, provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations under the
Loan Documents or substitute any such pledgee or assignee for such Lender as a
party hereto.
Section 10.5 Survival
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Credit Agreement or any other
Loan Document shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of any Loan Document and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that any Credit Party may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under the Loan Documents is outstanding and
unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 3.5, 3.6, 3.7 and 10.3 and Article 9 shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans and the termination
of the Commitments or the termination of this Credit Agreement or any provision
hereof.
Section 10.6 Counterparts; Integration
This Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which, when taken together, shall constitute but one contract. This
Agreement and any separate letter agreements with respect to fees payable to any
Credit Party constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
Section 10.7 Severability
In the event any one or more of the provisions contained in this Credit
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
Section 10.8 Right of Setoff
If an Event of Default shall have occurred and be continuing, each of the
Lenders and their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to setoff
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other obligations at any time owing by it to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Credit
Agreement held by it, irrespective of whether or not it shall have made any
demand under this Credit Agreement and although such obligations may be
unmatured. The rights of each the Lenders and their respective Affiliates under
this Section are in addition to other rights and remedies (including other
rights of setoff) that it may have.
Section 10.9 Governing Law; Jurisdiction; Consent to Service of Process
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court
or Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of
or relating to this Credit Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that, to the extent permitted by
applicable law, all claims in respect of any such action or proceeding may be
heard and determined in such New York State or, to the extent permitted by
applicable law, in such Federal court. Each of the parties hereto 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. Nothing in this Credit Agreement shall affect any right that
the Administrative Agent or any other Credit Party may otherwise have to bring
any action or proceeding relating to this Credit Agreement or the other Loan
Documents against the Borrower, or any of its property, in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Credit Agreement or the other Loan Documents
in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Credit Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.1. Nothing in this
Credit Agreement will affect the right of any party to this Credit Agreement to
serve process in any other manner permitted by law.
Section 10.10 WAIVER OF JURY TRIAL
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
Section 10.11 Headings
Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Credit Agreement and shall
not affect the construction of, or be taken into consideration in interpreting,
this Credit Agreement.
Section 10.12 Interest Rate Limitation
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees, charges and other
amounts that are treated as interest on such Loan under applicable law
(collectively the "charges"), shall exceed the maximum lawful rate (the "maximum
rate") that may be contracted for, charged, taken, received or reserved by the
Lender holding such Loan in accordance with applicable law, the rate of interest
payable in respect of such Loan hereunder, together with all of the charges
payable in respect thereof, shall be limited to the maximum rate and, to the
extent lawful, the interest and the charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated, and the interest and the charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the maximum rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.
Section 10.13 Effective Date
This Agreement shall be effective at such time (the "Effective Date") as
(i) executed counterparts of this Credit Agreement shall have been delivered to
the Administrative Agent by the Borrower and each Lender and the Administrative
Agent shall have delivered an executed counterpart of this Credit Agreement to
the Borrower and each Lender and (ii) all fees payable to the Administrative
Agent and the Lenders in connection herewith on or prior to the Effective Date
shall have been paid. Delivery of an executed counterpart of this Credit
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Credit Agreement.
Section 10.14 Treatment of Certain Information
Each Credit Party agrees to use reasonable precautions to keep
confidential, in accordance with their customary procedures for handling
confidential information of the same nature, all non-public information supplied
by the Borrower or any Subsidiary pursuant to this Credit Agreement which (a) is
clearly identified by such Person as being confidential at the time the same is
delivered to such Credit Party, or (b) constitutes any financial statement,
financial projections or forecasts, budget, compliance certificate, audit
report, management letter or accountants' certification delivered hereunder
("Information"), provided, however, that nothing herein shall limit the
disclosure of any such Information (i) to such of their respective Related
Parties as need to know such Information, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, or
requested by any bank regulatory authority, (iii) on a confidential basis, to
prospective lenders or their counsel, (iv) to auditors or accountants, and any
analogous counterpart thereof, (v) to any other Credit Party, (vi) in connection
with any litigation to which any one or more of the Credit Parties is a party,
(vii) to the extent such Information (A) becomes publicly available other than
as a result of a breach of this Credit Agreement, (B) becomes available to any
of the Credit Parties on a non-confidential basis from a source other than the
Borrower or any Subsidiary, or (C) was available to the Credit Parties on a
non-confidential basis prior to its disclosure to any of them by the Borrower or
any Subsidiary; and (viii) to the extent the Borrower shall have consented to
such disclosure in writing.
CENTRAL MAINE POWER COMPANY
CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
CENTRAL MAINE POWER COMPANY
By:
---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
CENTRAL MAINE POWER COMPANY
CREDIT AGREEMENT
THE BANK OF NEW YORK, individually
and as Administrative Agent
By:
---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
FLEET NATIONAL BANK, individually and
as Syndication Agent
By:
---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
PEOPLES HERITAGE BANK
By:
---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
iii
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.......................................................1
SECTION 1.1 DEFINED TERMS.................................................1
SECTION 1.2 CLASSIFICATION OF LOANS AND BORROWINGS.......................18
SECTION 1.3 TERMS GENERALLY..............................................18
SECTION 1.4 ACCOUNTING TERMS; GAAP.......................................19
ARTICLE 2. THE CREDITS......................................................19
SECTION 2.1 COMMITMENTS..................................................19
SECTION 2.2 LOANS AND BORROWINGS.........................................19
SECTION 2.3 REQUESTS FOR BORROWINGS......................................20
SECTION 2.4 FUNDING OF BORROWINGS........................................21
SECTION 2.5 TERMINATION AND REDUCTION OF COMMITMENTS.....................21
SECTION 2.6 REPAYMENT OF LOANS; EVIDENCE OF DEBT.........................22
SECTION 2.7 PREPAYMENT OF BORROWINGS.....................................23
SECTION 2.8 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SETOFFS...23
ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC............................25
SECTION 3.1 INTEREST.....................................................25
SECTION 3.2 INTEREST ELECTIONS...........................................26
SECTION 3.3 FEES27
SECTION 3.4 ALTERNATE RATE OF INTEREST...................................28
SECTION 3.5 INCREASED COSTS; ILLEGALITY..................................28
---------------------------
SECTION 3.6 BREAK FUNDING PAYMENTS.......................................30
SECTION 3.7 TAXES........................................................31
SECTION 3.8 MITIGATION OBLIGATIONS.......................................31
ARTICLE 4. REPRESENTATIONS AND WARRANTIES...................................32
SECTION 4.1 ORGANIZATION; POWERS.........................................32
SECTION 4.2 AUTHORIZATION; ENFORCEABILITY................................33
SECTION 4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS.........................33
SECTION 4.4 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE..............34
SECTION 4.5 PROPERTIES...................................................34
SECTION 4.6 LITIGATION AND ENVIRONMENTAL MATTERS.........................34
SECTION 4.7 COMPLIANCE WITH LAWS AND AGREEMENTS..........................36
SECTION 4.8 INVESTMENT AND HOLDING COMPANY STATUS........................36
SECTION 4.9 TAXES........................................................36
SECTION 4.10 ERISA.......................................................36
SECTION 4.11 DISCLOSURE..................................................37
SECTION 4.12 SIGNIFICANT SUBSIDIARIES....................................37
SECTION 4.13 LABOR MATTERS...............................................37
SECTION 4.14 SECURITY AGREEMENT..........................................37
SECTION 4.15 FEDERAL RESERVE REGULATIONS.................................38
SECTION 4.16 YEAR 2000 ISSUE.............................................38
ARTICLE 5. CONDITIONS.......................................................38
SECTION 5.1 FIRST LOANS..................................................38
SECTION 5.2 EACH CREDIT EVENT............................................41
ARTICLE 6. AFFIRMATIVE COVENANTS............................................41
SECTION 6.1 FINANCIAL STATEMENTS AND OTHER INFORMATION...................41
SECTION 6.2 NOTICES OF MATERIAL EVENTS...................................42
SECTION 6.3 EXISTENCE; CONDUCT OF BUSINESS...............................43
SECTION 6.4 PAYMENT OF OBLIGATIONS.......................................43
SECTION 6.5 MAINTENANCE OF PROPERTIES....................................43
SECTION 6.6 BOOKS AND RECORDS; INSPECTION RIGHTS.........................43
SECTION 6.7 COMPLIANCE WITH LAWS.........................................44
SECTION 6.8 USE OF PROCEEDS..............................................44
SECTION 6.9 INFORMATION REGARDING COLLATERAL.............................44
SECTION 6.10 INSURANCE...................................................45
SECTION 6.11 FURTHER ASSURANCES..........................................45
SECTION 6.12 ENVIRONMENTAL COMPLIANCE....................................45
ARTICLE 7. NEGATIVE COVENANTS...............................................45
SECTION 7.1 INDEBTEDNESS.................................................46
SECTION 7.2 LIENS........................................................47
SECTION 7.3 FUNDAMENTAL CHANGES..........................................48
SECTION 7.4 INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS....49
SECTION 7.5 ASSET SALES..................................................50
SECTION 7.6 HEDGING AGREEMENTS...........................................51
SECTION 7.7 RESTRICTED PAYMENTS..........................................51
SECTION 7.8 TRANSACTIONS WITH AFFILIATES.................................52
SECTION 7.9 RESTRICTIVE AGREEMENTS.......................................52
SECTION 7.10 AMENDMENT OF MATERIAL DOCUMENTS.............................52
SECTION 7.11 INTEREST COVERAGE RATIO.....................................52
SECTION 7.12 CAPITALIZATION RATIO........................................52
ARTICLE 8. EVENTS OF DEFAULT................................................53
ARTICLE 9. THE ADMINISTRATIVE AGENT.........................................55
ARTICLE 10. MISCELLANEOUS...................................................57
SECTION 10.1 NOTICES.....................................................57
SECTION 10.2 WAIVERS; AMENDMENTS.........................................58
SECTION 10.3 EXPENSES; INDEMNITY; DAMAGE WAIVER..........................59
SECTION 10.4 SUCCESSORS AND ASSIGNS......................................60
SECTION 10.5 SURVIVAL....................................................62
SECTION 10.6 COUNTERPARTS; INTEGRATION...................................62
SECTION 10.7 SEVERABILITY................................................63
SECTION 10.8 RIGHT OF SETOFF.............................................63
SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS..63
SECTION 10.10 WAIVER OF JURY TRIAL.......................................64
SECTION 10.11 HEADINGS...................................................64
SECTION 10.12 INTEREST RATE LIMITATION...................................64
SECTION 10.13 EFFECTIVE DATE.............................................65
SECTION 10.14 TREATMENT OF CERTAIN INFORMATION...........................65
SCHEDULES:
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Schedule 2.1 List of Commitments
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Schedule 4.6 Disclosed Matters
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Schedule 4.12 List of Subsidiaries
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Schedule 7.1 List of Existing Indebtedness
------------------------------ ----------------------------------------
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Schedule 7.2 List of Existing Liens
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Schedule 7.4(a)(i) List of Permitted Investments
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Schedule 7.4(a)(ii) List of Existing Investments
============================== ========================================
EXHIBITS:
============================== ========================================
Exhibit A Form of Assignment and Acceptance
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Exhibit B Reserved
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Exhibit C Form of Note
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