Execution Copy
REVOLVING CREDIT AGREEMENT
by and among
MASSACHUSETTS FUEL INVENTORY TRUST
(the "Trust"),
FLEET NATIONAL BANK, as Agent
(the "Agent"),
THE BANK OF NEW YORK, as co-agent
(the "Co-Agent")
and
THE BANK OF NEW YORK,
UNION BANK OF CALIFORNIA, N.A.,
CORESTATES BANK, N.A.,
FIRST UNION NATIONAL BANK
and
FLEET NATIONAL BANK
(collectively, the "Banks"),
$30,000,000
September 12, 1997
TABLE OF CONTENTS
Section Page
1. DEFINITIONS
2. THE REVOLVING CREDIT ADVANCES
2.1. The Revolving Credit Advances
2.2. Making the Advances
3. COMPETITIVE BID ADVANCES
3.1. Competitive Bid Borrowings
3.2. Interest on Competitive Bid Advances
3.3. Competitive Bid Notes
4. CONVERSION, INTEREST, PAYMENTS AND COSTS
4.1. Conversion of Advances
4.2. Interest
4.3. Overdue Principal and Interest
4.4. Limitation on Interest
4.5. Interest Period and Rate Determination and
Protection
4.6. Increased Costs, Etc.
4.7. Illegality or Impossibility
4.8. Payment on Any Day Other Than The Last Day of an
Interest Period
4.9. Prepayments
4.10. Payments and Computations
4.11. Payment on Non-Business Days
4.12. Sharing of Payments, Etc.
5. COMMITMENTS
5.1. Amount of Commitment
5.2. Extension of Commitments
5.3. Commitment Fees
5.4. Reduction and Termination by the Trust
6. SECURITY
7. CONDITIONS OF FIRST LENDING
7.1. Documentation
7.2. Security Documents
7.3. Financial Statements
7.4. Representations and Warranties
7.5. Performance; No Default
7.6. Company Credit Agreement
7.7. Proceedings and Documents
7.8. Notice of Borrowing
8. CONDITIONS OF SUBSEQUENT BORROWINGS
8.1. Representations and Warranties
8.2. Performance; No Default
8.3. Notes in Full Force and Effect
9. REPRESENTATIONS AND WARRANTIES
9.1. Legal Existence and Good Standing, Etc.
9.2. Trust Power; Consents; Absence of Conflict with
Other Agreements, Etc.
9.3. Title to Properties; Leases
9.4. Financial Statements
9.5. No Material Changes, Etc.
9.6. Franchises, Patents, Copyrights, Etc.
9.7. Litigation
9.8. No Materially Adverse Contracts, Etc.
9.9. Compliance with Other Instruments,
Laws, Etc.
9.10. Tax Status
9.11. Absence of Security Interests, Etc.
9.12. Use of Proceeds
9.13. Pension Plan
9.14. Disclosure
9.15. Investment Company; Public Utility Holding
Company
9.16. Environmental Matters
10. EXEMPT CHARACTER OF TRANSACTION
11. AFFIRMATIVE COVENANTS
11.1. Punctual Payment
11.2. Maintenance of Office
11.3. Reports, Certificates and Other Information
11.4. Existence and Franchises
11.5. Payments of Taxes
11.6. Maintenance of Property
11.7. Books, Records and Inspections
11.8. Further Assurances
11.9. Securities Law, Etc. Compliance
11.10. Insurance
11.11. Payment of Indebtedness and Performance of
Obligations
11.12. Change of Trust Name
11.13. Enforcement of Fuel Purchase Contract
12. CERTAIN NEGATIVE COVENANTS
12.1. Debt
12.2. Liens
12.3. Guaranties, Loans or Advances
12.4. Investments
12.5. Other Agreements
12.6. Merger, Consolidation, or Sale of Assets
12.7. Leases
12.8. Debt Payments
12.9. Alterations to Trust Agreement
12.10. Alterations to Fuel Purchase Agreement
13. EVENTS OF DEFAULT; ACCELERATION
14. NOTICE AND WAIVERS OF DEFAULT
14.1. Notice of Default
14.2. Waivers of Default
15. REMEDIES ON DEFAULT, ETC.
15.1. Rights of Banks
15.2. Setoff
16. THE AGENT
16A. THE CO-AGENT
17. CONSENT TO JURISDICTION
18. BINDING EFFECT AND ASSIGNMENT
19. EXECUTION IN COUNTERPARTS
20. SURVIVAL OF COVENANTS, ETC.
21. NOTICE, ETC.
22. GOVERNING LAW
23. MISCELLANEOUS
24. ENTIRE AGREEMENT, ETC.
25. CONSENTS, AMENDMENTS, WAIVERS, ETC.
26. PARTICIPATIONS
27. EXPENSES; INDEMNIFICATION
28. CLAIMS AGAINST THE TRUSTEE
29. HEADINGS
30. WAIVER OF JURY TRIAL
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated as of September 12,
1997, by and among, MASSACHUSETTS FUEL INVENTORY TRUST, a
trust organized under the laws of The Commonwealth of
Massachusetts, and created under the terms of the Trust
Agreement (as defined below), acting by and through its
Trustee, STATE STREET BANK AND TRUST COMPANY, (the "Trust"),
THE BANK OF NEW YORK, UNION BANK OF CALIFORNIA, N.A.,
CORESTATES BANK, N.A., FIRST UNION NATIONAL BANK and FLEET
NATIONAL BANK (collectively, the Banks"), THE BANK OF NEW
YORK, as co-agent for the Banks (the "Co-Agent"), and FLEET
NATIONAL BANK, as agent for the Banks (the "Agent").
1. DEFINITIONS. The following terms shall have the
meanings assigned to them below in this 1 or in the
provisions of this Agreement and the Exhibits hereto
referred to below:
Absolute Rate - a fixed rate of interest per annum
(computed on the basis of a 360-day year for the actual
number of days elapsed and expressed in decimals to 1/10,000
of 1%).
Advance - an advance by a Bank to the Trust (i)
pursuant to 2, whether a Base Rate Advance or Eurodollar
Rate Advance or (ii) pursuant to 3, a Competitive Bid
Advance (each of which shall be a Type of Advance).
Agent - has the meaning specified in the preamble.
Agent's Fee - has the meaning specified in 5.3(b).
Agent's Special Counsel - Xxxxxx & Hannah LLP of
Boston, Massachusetts, or such other counsel as may be
approved by the Agent.
Alternate Base Rate - for any day, will be the greater
of (i) the Base Rate announced from time to time by Fleet
National Bank at its head office in Boston as its base rate
or (ii) 1/2% per annum above the Federal Funds Effective
Rate in effect from time to time.
Applicable Eurodollar Rate Margin - on any date of
determination, the percentage per annum set forth below
opposite the Company's Standard & Poors Rating on such date;
provided, that if no Standard & Poors Rating is in effect on
any such date, the Applicable Eurodollar Rate Margin shall
be the highest Applicable Eurodollar Rate Margin set forth
below (and in the event the Company wishes to designate
another nationally recognized rating service in addition to
or other than Standard & Poors Rating Group, the Trust and
the Banks will negotiate in good faith to amend the schedule
set forth below to take account of such new or additional
rating; provided, that until agreement on such amendment is
reached, the last effective rating of Standard & Poors shall
be deemed to continue in effect for purposes of determining
the Applicable Eurodollar Rate Margin):
Standard & Poors Applicable Eurodollar
Rating Rate Margin
A 0.180%
A- 0.200%
BBB+ 0.250%
BBB 0.335%
less than BBB 0.425%
Applicable Facility Fee Rate - on any date of
determination, the percentage per annum set forth below
opposite the Company's Standard & Poors Rating on such date;
provided, that if no Standard & Poors Rating is in effect on
any such date, the Applicable Facility Fee Rate shall be the
highest Applicable Facility Fee Rate set forth below (and in
the event the Company wishes to designate another nationally
recognized rating service in addition to or other than
Standard & Poors, the Trust and the Banks will negotiate in
good faith to amend the schedule set forth below to take
account of such new or additional rating; provided, that
until agreement on such amendment is reached, the last
effective rating of Standard & Poors shall be deemed to
continue in effect for purposes of determining the
Applicable Facility Fee Rate):
Standard & Poors Applicable Facility
Rating Fee Rate
A 0.075%
A- 0.080%
BBB+ 0.950%
BBB 0.120%
less than BBB 0.200%
Applicable Lending Office - with respect to each Bank,
such Bank's Domestic Lending office in the case of a Base
Rate Advance or Competitive Bid Advance, and such Bank's
Eurodollar Lending Office(s) in the case of a Eurodollar
Advance.
Assessment Rate - for any Interest Period, the net
annual assessment rate (rounded upwards, if necessary, to
the next higher 1/100 of 1%) applicable to the Agent on its
insured deposits under the Federal Deposit Insurance Act,
determined by annualizing the most recent assessment levied
on the Agent by the Federal Deposit Insurance Corporation
(the "FDIC") with respect to such deposits.
Assignee - has the meaning set forth in 17.
Available Commitment - as of any date of determination,
the excess of (a) the Maximum Commitment over (b) the amount
by which the aggregate principal amount of advances
outstanding to the Company under the Company Credit
Agreement exceeds the difference between the Company's
Maximum Commitment (as defined in the Company Credit
Agreement) and the Maximum Commitment.
Banks - has the meaning specified in the preamble.
Base Rate Advance - an Advance which bears interest at
the Alternate Base Rate.
Borrowing - simultaneous Advances made hereunder to the
Trust by the Banks.
Boston - the City of Boston in The Commonwealth of
Massachusetts in the United States of America.
Business Day - (i) in the case of a Business Day which
relates to a Eurodollar Advance, any day of the year on
which banks are open for business in Boston, London, and New
York and on which dealings are carried on in the interbank
market and in the country where payment is to be made in the
currency of such Advances and (ii) in the case of a Business
Day which relates to a Base Rate Advance or Competitive Bid
Advance, any day of the year on which banks are open for
business in New York and Boston.
Capitalized Leases - leases in which the Trust is the
lessee and the future rental obligations of which are
reflected as a liability on the Trust's balance sheet in
accordance with GAAP.
Closing Date - the date of the First Lending.
Co-Agent - has the meaning specified in the preamble.
Collateral - has the meaning specified in 6.
Commitment - as to each Bank on any date of
determination, the Maximum Commitment then in effect times
the Commitment Percentage.
Commitment Percentage - as to each Bank on any date of
determination, the percentage figure set opposite such
Bank's name in 5.1(a).
Commodities - has the meaning specified for such term
in the Security Agreement.
Company - Colonial Gas Company, a Massachusetts
corporation.
Company Credit Agreement - the Revolving Credit
Agreement, of even date herewith, among the Company, the
Banks and the Agent, as amended and in effect from time to
time.
Competitive Bid Advance - an Advance made pursuant to
3 hereof by a Bank pursuant to a Competitive Bid Auction.
Competitive Bid Auction - a solicitation of Competitive
Bids setting forth Competitive Bid Rates pursuant to 3.
Competitive Bid Notes - has the meaning set forth in
3.3.
Competitive Bid Quote - an offer by a Bank to make a
Competitive Bid Advance in accordance with 3.
Competitive Bid Rate - has the meaning set forth in
3.1(d)(ii)(C).
Compliance Certificate - has the meaning specified in
11.3(c).
Consent and Agreement - has the meaning specified for
such term in the Security Agreement.
Convert, Conversion, and Converted - refers to
Conversion of Base Rate Advances or Eurodollar Rate Advances
into Advances of another Type pursuant to 4.1.
Cost - means, at any time as to Commodities of the same
type, the aggregate purchase price (including cost of
transportation and injection) paid by the Trust for such
type of Commodity, as determined, on a fungible basis, in
accordance with a generally accepted accounting method
consistently applied.
Debt - means at any time obligations under Capitalized
Leases and all obligations of the Trust evidenced by bonds,
debentures, letters of credit, notes or other similar
instruments and all other evidences of indebtedness of the
Trust (including, without limitation, indebtedness with
maturities of less than one year), created, issued,
guaranteed, incurred or assumed for money borrowed or for
the deferred (for a period materially in excess of the
Trust's present customary practices in similar transactions)
purchase price of property or services purchased, and any
other instrument or other arrangement which would be treated
as indebtedness under GAAP, excluding, however, accounts
payable (other than for borrowed money) and accrued costs
and expenses incurred in the ordinary course of business,
provided that the same are not overdue for 90 days or more
in a material amount or, if overdue for 90 days or more in a
material amount, are being contested in good faith and by
appropriate proceedings and reserves, which are adequate in
accordance with GAAP, have been set aside therefor.
Default(s) - has the meaning specified in 13.
Domestic Lending Office - with respect to any Bank, the
office of such Bank specified as its "Domestic Lending
Office" below its name on the signature pages hereof or such
other office or affiliate of such Bank as such Bank may from
time to time specify to the Trust and the Agent.
DPU - shall mean the Department of Public Utilities of
The Commonwealth of Massachusetts.
Environmental Law - any federal, state, or local
statutory or common law, ordinance, rule or regulation in
existence on the applicable date, relating to Hazardous
Materials (as defined herein), pollution or protection of
public health, safety or the environment, including without
limitation, any common law of nuisance or trespass; any law,
rule or regulation relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants
or chemicals, or industrial, toxic or hazardous substances
or waste into the environment (including without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the presence,
generation, manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants or chemicals or industrial, toxic
or hazardous substances or wastes; and any law, rule or
regulation relating to solid waste, water quality, air
quality, wetlands protection, sanitary waste disposal, or
environmental impact review.
Environmental Notice - any summons, citation,
directive, information request, notice of potential
responsibility, notice of violation or deficiency, order,
claim, complaint, investigation, proceeding, judgment,
letter or other communication, written or oral, actual or
threatened, from the United States Environmental Protection
Agency or other federal, state or local agency or authority,
or any other entity or individual, public or private,
concerning any intentional or unintentional act or omission
which involves Management of Hazardous Substances on or off
any property owned or leased by Trust, any affiliate of
Trust or any guarantor of the Obligations; the imposition of
any lien on such property, including but not limited to
liens asserted by government entities in connection with
Responses to the presence or Release of Hazardous
Substances; and any alleged violation of or responsibility
under Environmental Laws.
ERISA - means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
Eurodollar Advance - shall mean any Advance which bears
interest at a rate determined by reference to the Eurodollar
Rate (Reserve Adjusted).
Eurodollar Lending Office - shall mean with respect to
any Bank the office of such Bank designated as such below
its name on the signature pages hereof or such other office
or offices of such Bank (as designated from time to time by
notice from such Bank to the Trust, the Company and the
Agent) which shall be making or maintaining the Eurodollar
Advances of such Bank hereunder or such other office or
offices through which such Bank determines its Eurodollar
Rate. A Eurodollar Office of any Bank may be, at the option
of such Bank, either a domestic office or foreign office
located within Europe, the Caribbean or the Bahamas.
Eurodollar Rate - with respect to any Eurodollar
Advance for any Interest Period, the rate per annum equal to
the average of the respective rates notified to the Agent by
the Reference Bank as the rate at which United States
dollars in immediately available funds are offered to the
Eurodollar Lending Office of the Reference Bank two Business
Days prior to the beginning of such Interest Period by prime
banks in any interbank market selected by the Reference Bank
at or about the relevant local time of such Eurodollar
Lending Office, for delivery on the first day of such
Interest Period, for the number of days comprised therein
and in an amount equal or comparable to the amount of the
Eurodollar Advance of the Reference Bank for such Interest
Period. As used herein, "relevant local time" as to any
Eurodollar Office shall mean 11:00 A.M., London time, when
such Eurodollar Lending Office is located in Europe, or
10:00 A.M., Boston time, when such Eurodollar Lending Office
is located in North America, the Caribbean or the Bahamas.
Eurodollar Rate (Reserve Adjusted) - with respect to
any Eurodollar Advance for any Interest Period, a rate per
annum equal to the sum of (i) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Eurodollar Rate* = Eurodollar Rate + Applicable Eurodollar
(Reserve Adjusted) Rate Margin
_______________________________________
1-Eurodollar Reserve Percentage
*To be rounded upwards, if necessary, to the next
higher 1/16 of 1%.
Eurodollar Reserve Percentage - shall mean, with
respect to each Interest Period, the percentage (expressed
as a decimal) equal to the daily average during such
Interest Period of the percentages in effect on each day of
such Interest Period as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for
determining reserve requirements applicable to "Eurodollar
Liabilities" pursuant to Regulation D or any other then
applicable regulation of the Board of Governors which
prescribes reserve requirements applicable to "Eurodollar
Liabilities" as presently defined in Regulation D.
Event(s) of Default - has the meaning specified in 13.
Facility Fee - has the meaning specified in 5.3(b).
Federal Funds Effective Rate - the weighted average of
the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal
funds brokers on such day, as published for the prior day by
the Federal Reserve Bank of Boston.
First Lending - the first Advance made to the Trust
hereunder.
Fuel Purchase Contract - the Purchase Contract, dated
as of June 27, 1990, between the Trust and the Company, as
amended and in effect on the Closing Date.
GAAP - in general, principles which are (a) consistent
with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors (or
successor organizations), in effect for the fiscal year of
the Trust ended December 31, 1996 and (b) such that
certified public accountants would, insofar as the use of
accounting principles is pertinent, be in a position to
deliver an unqualified opinion as to financial statements in
which such principles have been properly applied; provided,
however, that for purposes of the financial statements to be
delivered by the Trust pursuant to 11 hereof, GAAP shall
mean such principles as in effect for the periods covered by
such financial statements.
Guaranteed Pension Plan - means any pension plan
maintained by the Trust or to which it contributes, the
benefits under which are guaranteed in whole or in part by
the Pension Benefit Guaranty Corporation.
Hazardous Substance - any substance or material (i)
identified in Section 101(14) of CERCLA, 42 USC 9601(14)
and as set forth in Title 40, Code of Federal Regulations,
Part 302, as the same may be amended from time to time, or
(ii) determined to be or identified as toxic, a pollutant or
contaminant, or regulated as such under federal, state or
local statute, law, ordinance, rule, or regulation or
judicial or administrative order or decision, as same may be
amended from time to time. The term "Hazardous Substance"
as used herein shall also include any substance or material
presently or hereafter identified defined or treated as
toxic or hazardous in any manner according to any
Environmental Law, or, including, without limitation, any
oil, lead paint, herbicides, pesticides, asbestos,
polychlorinated biphenyls, radon, radioactive substance,
methane, volatile hydrocarbons, acids, pesticides, paints,
petroleum-based products, liquefied natural gas, gas in
vapor form, propane, lead, cyanide, DDT, printing inks and
industrial solvents..
Indemnified Party - has the meaning specified in 27.
Independent Accountant - a firm of independent public
accountants selected by the Board of Directors of the
Company, which is "independent" as that term is defined in
Rule 2-01 of Regulation S-X promulgated by the Securities
and Exchange Commission and is reasonably acceptable to the
Agent.
Interest Payment Date - (a) for any Eurodollar Advance,
the last day of each Interest Period for such Advance, (b)
for any Base Rate Advance any date when interest is due and
payable as provided in 4.2(a) hereof, and (c) for
Competitive Bid Advances, any date when interest is due and
payable as provided under 3.2 hereof.
Interest Period - (a) with respect to each
Eurodollar Advance comprising the same Borrowing:
(i) initially, the period (A) commencing on the
date of such Borrowing or, in the case of a Conversion
into Eurodollar Advances pursuant to 4.1, commencing
on the date of such Conversion and (B) ending one (1),
two (2), three (3), or six (6), months thereafter as
determined in accordance with the provisions of this
Agreement; and
(ii) thereafter, each subsequent Interest Period
for Eurodollar Advances shall begin on the last day of
the immediately preceding Interest Period for such
Advances and shall end one (1), two (2), three (3), or
six (6), months thereafter as the Trust may select
pursuant to 4.5; provided that (A) any such Interest
Period which would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding
Business Day unless such Business Day occurs in a new
calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (B)
any such Interest Period which begins on a day for
which there is no numerically corresponding day in the
calendar month during which such Interest Period is to
end shall end on the last Business Day of such calendar
month.
(b) With respect to each Base Rate Advance, the
period commencing on the date of such Advance and expiring
on the date when the Base Rate Advance is repaid or, as the
case may be, Converted to another Type of Advance.
(c) With respect to each Competitive Bid Advance,
the period commencing on the date of such Advance and ending
not less than 7 days and not more than 180 days thereafter,
as the Trust may elect in accordance with 3 hereof.
No Interest Period may be selected in respect to all or
any portion of any Advance (other than a Competitive Bid
Advance) which would expire on a date which occurs after the
Maturity Date for the then Outstanding Revolving Credit
Notes of the Trust and no Interest Period may be selected in
respect of all or any portion of any Advance which would
expire after the Termination Date or on a date which is not
a Business Day.
Loan Documents - collectively, this Agreement, the
Notes, the Security Documents, the Fee Letter and any other
documents or instruments required to be delivered by the
Trust pursuant hereto or thereto.
London - the City of London in England.
Majority Banks - at any time, the Bank or Banks holding
at least 66 2/3% of the aggregate unpaid principal amount of
the Advances (excluding Competitive Bid Advances), or, if no
Advances (excluding Competitive Bid Advances) are at the
time outstanding, having at least 66 2/3% of the aggregate
amount of the Commitments then in effect.
Manage or Management - to generate, handle,
manufacture, process, treat, store, use, re-use, refine,
recycle, reclaim, blend or burn for energy recovery,
incinerate, accumulate speculatively, transport, transfer,
dispose of, Release, threaten to Release or abandon
Hazardous Substances;
"Material Adverse Change" - a material adverse change
in the business, assets, liabilities, condition (financial
or otherwise), results of operations or business prospects
of (a) the Trust which would reasonably be expected to
render the Trust unable to perform its obligations under the
Loan Documents. The term "Material Adverse Change" shall
include, without limitation, any change in any law,
regulation, treaty or directive or in the interpretation or
application thereof by any Governmental Body charged with
the administration thereof or compliance by the Trust with
any request or directive from any Governmental Body the
result of which would have a Material Adverse Effect.
"Material Adverse Effect" - (a) with respect to any
Person (including, without limitation, the Trust), any
materially adverse effect on such Person's business, assets,
liabilities, condition (financial or otherwise), results of
operations or business prospects, (b) with respect to a
group of Persons "taken as a whole" (including, without
limitation, the Trust), any materially adverse effect on
such Persons' business, assets, liabilities, financial
conditions, results of operations or business prospects
taken as a whole on, where appropriate, a consolidated basis
in accordance with GAAP and (c) with respect to any of this
Agreement, the Note or the Security Documents, any adverse
effect, WHETHER OR NOT MATERIAL, on the binding nature,
validity or enforceability thereof as an obligation of the
Trust.
Maturity Date - has the meaning specified in 2.2(h).
Maximum Commitment - as of any date of determination,
the lesser of (a) $30,000,000 or (b) the amount to which the
Maximum Commitment may have been reduced pursuant to 5.4;
provided, that if the obligations of the Banks to make
further advances are terminated pursuant to 13, the Maximum
Commitment as of any date of determination thereafter shall
be deemed to be zero.
Monthly Report - has the meaning specified in 11.3(e).
Notes - collectively, the Revolving Credit Notes and
the Competitive Bid Notes.
Notice of Borrowing - has the meaning specified in
2.2(a).
Obligations - all indebtedness, obligations and
liabilities to the Banks, individually or collectively,
existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise of the Trust arising or
incurred under this Agreement or in respect of Advances made
or instruments at any time evidencing any of the foregoing.
Officer's Certificate - a certificate signed by the
President, Executive Vice President, any Senior Vice
President, the Vice President - Finance or Treasurer of the
corporation on whose behalf the certificate is executed.
Outstanding - when used with reference to the aggregate
balance of Advances, means and includes, as at any date of
determination, the unpaid principal amount of the Advances.
Pension Benefit Guaranty Corporation - the Pension
Benefit Guaranty Corporation created by 4002 of ERISA and
any successor entities having similar responsibilities.
Person - any individual, corporation (including a
business trust), partnership, trust, unincorporated
association, joint stock company, limited liability company,
limited liability partnership or other legal entity or
organization and any governmental agency or political
subdivision thereof.
Purchase Contract - shall mean the Fuel Purchase
Contract dated as of June 27, 1990, between the Trust and
the Company.
Reference Bank - Fleet National Bank.
Release - any actual or threatened spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injection, escaping, leaching, dumping or disposing of
Hazardous Substances into the environment, as that
"environment" is defined in CERCLA; and
Reserve Requirement - with respect to each Interest
Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the aggregate
reserve requirement (including all basic, supplemental,
marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in
reserve requirements during such Interest Period) specified
under Regulation D of the Board of Governors of the Federal
Reserve System, or any other regulation of the Board of
Governors which prescribes reserve requirements applicable
to nonpersonal time deposits as presently defined in
Regulation D, as then in effect, as applicable to the class
of banks of which Fleet National Bank is a member, on
deposits having a maturity approximately equal to such
Interest Period.
Respond or Response - any action taken pursuant to
Environmental Laws to correct, remove, remediate, clean up,
prevent, mitigate, monitor, evaluate, investigate or assess
the Release of a Hazardous Substance.
Revolving Credit Notes - has the meaning specified in
2.2(h).
Security Agreement - the Security Agreement and
Assignment of Contracts, of even date herewith, between the
Trust and the Agent, in substantially the form of Exhibit H
hereto.
Security Documents - the Security Agreement, the Fuel
Purchase Contract (as defined therein), the Consent and
Agreement (as defined therein) the Trust Agreement (as
defined therein) and any documents or instruments delivered
pursuant thereto to perfect the security interest of the
Agent created thereby.
Storage Fields - has the meaning specified for such
term in the Security Agreement.
Standard & Poors Rating - the rating announced from
time to time by Standard & Poors for the Company's bonds
issued under the Indenture (as defined in the Company Credit
Agreement).
Subsidiary - any corporation, association or other
business entity, a majority (by number of votes) of the
outstanding Voting Stock of which is at the time owned or
controlled by the Company or by one or more Subsidiaries of
the Company or by the Company and one or more Subsidiaries
of the Company or in any event which is included in the
Company's consolidated balance sheet.
Termination Date - the earlier of (a) September 11,
2000, or such later date to which the date of termination of
the Banks' obligations to make Advances hereunder shall be
extended in accordance with 5.2 hereof and (b) the date of
termination of this Agreement pursuant to 13.
Trust Agreement - the Trust Agreement, dated as of
June 22, 1990, between the Company, as Trustor, and State
Street Bank and Trust Company (as successor trustee to
Shawmut Bank, N.A.), as Trustee, as amended in accordance
with its terms and in effect from time to time.
Trust Borrowing Base - An amount equal to the "Total
Fuel Inventory" of the Trust as set forth on the "Analysis
of Fuel Inventory Accounts" of the Trust included in the
most recent Monthly Report.
Trustee - State Street Bank and Trust Company, the
successor trustee under the Trust Agreement.
Type of Advances - any one of the types of Advances
under this Agreement.
Voting Stock - capital stock or similar interests of
any class or classes (however designated), the holders of
which are at the time entitled, as such holders, to vote for
the election of the directors (or persons performing similar
functions) of the corporation, association or other business
entity involved, whether or not the right so to vote exists
by reason of the happening of a contingency.
Wholly Owned Subsidiary - any Subsidiary all of the
outstanding capital stock or other interest of which, other
than directors' qualifying shares and shares issued solely
for the purpose of satisfying local requirements concerning
the minimum number of shareholders, is owned by the Company,
directly or indirectly through a Wholly Owned Subsidiary.
All terms of an accounting character not specifically
defined herein shall have the meanings assigned thereto by
GAAP.
2. THE REVOLVING CREDIT ADVANCES.
2.1. The Revolving Credit Advances. Each Bank
severally agrees, on the terms and conditions hereinafter
set forth, to make Advances to the Trust from time to time
on any Business Day during the period from the date hereof
to the Termination Date in an aggregate amount (i) in the
case of each Bank not to exceed at any time the Outstanding
amount of such Bank's Commitment and (ii) in the case of all
of the Banks not to exceed at any time the Outstanding
amount of the Available Commitment, in each case, as such
amount may be reduced pursuant to 5.4. In no event shall
the aggregate outstanding principal balance of all Advances
to the Trust exceed the lesser of (A) $30,000,000 or (B) the
Trust Borrowing Base. In no event shall any Bank be
obligated to fund or maintain Advances in excess of such
Bank's Commitment. For each borrowing immediately following
receipt of the Monthly Report, the aggregate of all Advances
(including such borrowing) shall in no event be greater than
the Trust Borrowing Base as set forth in such Monthly
Report. At no time shall the aggregate number of
Outstanding Advances to the Trust hereunder and to the
Company under the Company Credit Agreement exceed the number
six (6).
Each Borrowing made by the Trust shall: (i) be in an
aggregate amount of not less than $500,000 (unless otherwise
specified herein) and (ii) consist of Advances of the same
Type made to the Trust on the same day by the Banks ratably
according to their respective Commitments. There is no
limit on the number of Borrowings that may be made on any
Business Day. Within the limits of the provisions of this
2.1, the Trust may borrow, prepay pursuant to 4.9 and
reborrow under this 2.1.
2.2. Making the Advances.
(a) Each Advance (other than Competitive Bid
Advances) shall be made on notice given not later than
10:00 A.M. (Boston time), (i) in the case of a Base Rate
Advance on the date of the proposed Borrowing or (ii) in the
case of a Eurodollar Rate Advance on the third Business Day
prior to the date of the proposed Borrowing, given to the
Agent from the Trust (a "Notice of Borrowing"). The Agent
shall give the Banks prompt notice of each Notice of
Borrowing and of each other notice received from the Trust
hereunder. Each such Notice of Borrowing shall be by
telephone, telecopy, telex or cable, in each case confirmed
immediately in writing by the Trust in substantially the
form of Exhibit B hereto, specifying therein (A) the
requested date of such Borrowing, (B) the requested Type of
Advances comprising such Borrowing, (C) in the case of a
Borrowing comprised of Eurodollar Rate Advances or
Eurodollar Advances, the initial Interest Period for such
Advances, and (D) the amount of such Borrowing (which must
be a minimum of $1,000,000 in the case of a Notice of
Borrowing requesting Eurodollar Advances).
(b) Each Bank shall, before 12:00 Noon (Boston
time) on the date of such Borrowing, subject to the terms
and conditions of this Agreement, make available for the
account of its Applicable Lending Office to the Agent at the
Agent's address referred to in 21 and in immediately
available funds such Bank's ratable portion of such
Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in 7 or
8, as the case may be, the Agent will credit such funds to
the Trust at such address or office.
(c) A Notice of Borrowing with respect to a
Eurodollar Advance shall be irrevocable and binding on the
Trust and, in respect of any Borrowing comprised of
Eurodollar Advances, the Trust shall indemnify each Bank
against any loss or expense incurred by such Bank as a
result of any failure of the Trust to borrow the amounts
requested on the date requested, including without
limitation, any loss, including lost profits, or expense
incurred by reason of the liquidation, reutilization or
reemployment of deposits or other funds acquired by any Bank
to fund or maintain a Eurodollar Advance to be made by such
Bank.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's
ratable portion of such Borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on
the date of such Borrowing in accordance with and as
provided in this 2.2 and the Agent may, in reliance upon
such assumption, make available on such date a corresponding
amount to the Trust. If and to the extent such Bank shall
not have so made such ratable portion available to the Agent
and the Agent shall have made available such corresponding
amount to the Trust, such Bank agrees to pay to the Agent
forthwith on demand, and the Trust agrees to repay to the
Agent within two Business Days after demand (but only after
demand for payment has first been made to such Bank and such
Bank has failed to make such payment), an amount equal to
such corresponding amount together with interest thereon for
each day from the date the Agent shall make such amount
available to the Trust until the date such amount is paid or
repaid to the Agent, at an interest rate for the first day
of such period equal to the interest rate applicable at the
time to Advances comprising such Borrowing and for all
subsequent days of such period equal to the Alternate Base
Rate. If such Bank shall pay to the Agent such
corresponding amount, such amount so paid shall constitute
such Bank's Advance as part of such Borrowing for purposes
of this Agreement. If the Trust makes a repayment required
by the foregoing provisions of this 2.2(d) and thereafter
the applicable Bank or Banks make the payments to the Agent
required by this 2.2(d), the Agent shall promptly refund
the amount of the Trust's payment.
(e) The failure of any Bank to make the Advance
to be made by it as part of any Borrowing shall not relieve
any other Bank of its obligation, if any, hereunder to make
its Advance on the date of such Borrowing, but no Bank shall
be responsible for the failure of any other Bank to make the
Advance to be made by such other Bank on the date of any
Borrowing.
(f) In the case of Eurodollar Advances requested
in a Notice of Borrowing, the Agent shall notify the Trust
and the Company and each Bank of the Eurodollar Rate
applicable to such Eurodollar Advances not later than
11:00 A.M. (Boston time) on the Business Day of the proposed
Borrowing specified in the applicable Notice of Borrowing.
(g) The Trust hereby absolutely and
unconditionally promises to pay to the Agent for the account
of each of the Banks on the Termination Date all Outstanding
Advances.
(h) Revolving Credit Notes. The Indebtedness of
the Trust resulting from the Advances (other than
Competitive Bid Advances) made and to be made to the Trust
hereunder shall be evidenced by revolving credit notes, in
substantially the form of Exhibit A hereto, executed and
delivered by the Trust to each Bank on (i) the date of the
First Lending and (ii) on the date of each Borrowing made by
the Trust hereunder on or after the Maturity Date of any
previously delivered Revolving Credit Note. Each such
Revolving Credit Note and the Advances evidenced thereby
will be due and payable on the date (the "Maturity Date")
which is the earlier of (A) 364 days after the date thereof
or (B) the Termination Date. (The revolving credit notes of
the Trust are collectively referred to herein as the
"Revolving Credit Notes").
All Advances made to the Trust by a Bank shall be
recorded by the Bank and all payments made on account of
principal thereof shall be similarly recorded. Any failure
of a Bank to record a transaction in a timely fashion shall
not affect or impair the validity of any Obligation.
3. COMPETITIVE BID ADVANCES
3.1. Competitive Bid Borrowings.
(a) Competitive Bid Advance Option. In addition
to the Advances permitted pursuant to 2 hereof, the Trust
may, pursuant to the terms of this 3, cause the Agent to
request that the Banks make offers to fund Advances to the
Trust from time to time prior to the Termination Date. The
Banks may, but shall have no obligation to, make such offers
and the Trust may, but shall have no obligation to, accept
such offers in the manner set forth in this 3.
(b) Competitive Bid Request. When the Trust
wishes to request offers to make Competitive Bid Advances
under this 3, it shall transmit to the Agent by telex or
telecopier a bid request substantially in the form of
Exhibit C hereto to be received no later than 10:00 A.M. on
the first Business Day prior to the requested Borrowing date
with respect to Absolute Rate Advances specifying (A) the
requested Borrowing date (which must be a Business Day) and
the amount of such Competitive Bid Advance (which must be a
minimum of $2,500,000) and may not, together with the
aggregate amount of all other Advances then Outstanding to
the Trust, exceed the Available Commitment and (B) the
Interest Period for such Advance. The Trust may request
offers to make Advances for more than one Interest Period in
a single bid request. The Trust may submit a request for
offers to make Competitive Bid Advances that number of times
in any period of 12 consecutive months which does not exceed
the difference between forty (40) and the number of times
the Company requests "Competitive Bid Advances" under and as
defined in the Company Credit Agreement during the same 12
month period.
(c) Invitation for Competitive Bids. Subsequent
to receipt of a bid request, the Agent shall send to the
Banks by telex or telecopier an invitation for bids not
later than 4:00 P.M. (Boston time) on the Business Day on
which the Trust delivers its request in accordance with
3.1(b), substantially in the form of Exhibit D hereto,
which shall constitute an invitation by the Trust requesting
each Bank to submit bids offering to make Competitive Bid
Advances in accordance with this 3.
(d) Submission and Contents of Competitive Bids.
(i) Each Bank may submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid
Advances in response to any invitation for bids. Each
Competitive Bid Quote must comply with the requirements
of this subsection (d) and, except in the case of
Competitive Bid Quotes by Fleet National Bank, must be
submitted to the Agent by telex or telecopier not later
than 9:15 A.M. (Boston time) on the requested Borrowing
Date. Competitive Bid Quotes submitted by Fleet
National Bank must be submitted directly to the Trust
by telex or telecopier not later than 9:00 A.M. (Boston
time) on the requested Borrowing Date. Any Competitive
Bid Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions
of the Trust.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit E hereto and shall in
any case specify:
(A) the proposed Borrowing Date,
(B) the principal amount of the Advance for
which each offer is made, which principal amount
(x) may be greater than the Commitment of the
quoting Bank but may not exceed the Maximum
Commitment, (y) must be $2,500,000 or a larger
multiple of $1,000 and (z) may not exceed the
principal amount of Competitive Bid Advances for
which offers were requested,
(C) the rate of interest per annum (rounded
to the nearest 1/10,000th of 1%) (the "Competitive
Bid Rate") offered for each such Competitive Bid
Advance,
(D) the proposed maturity date of the
proposed Advance (which date must be no less than
7 days and no longer than 180 days from the
Borrowing Date specified in subsection (A) above),
and
(E) the identity of the quoting Bank.
(iii) Any Competitive Bid Quote for a
Competitive Bid Advance shall be disregarded if it:
(A) is not substantially in the form of
Exhibit E hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable invitation
for Competitive Bids; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Trust. Not later than 10:00 A.M.
(Boston time) on the requested Borrowing Date, the Agent
shall notify the Trust of the terms of any Competitive Bid
Quote submitted by a Bank that is in accordance with the
preceding subsection (d). The Agent's notice to the Trust
shall specify (i) the aggregate principal amount of Advances
for which offers have been received for each Interest Period
specified in the related Competitive Bid Request and (ii)
the respective principal amounts and Competitive Bid Rates,
as the case may be, so offered, as well as the terms of the
Competitive Bid Quotes which were received but disregarded
by the Agent.
(f) Acceptance and Notice By Trust. Not later
than 10:30 A.M. (Boston time) on the requested Borrowing
Date, the Trust shall notify, by telephone, confirmed by
telecopy, the Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to the preceding
subsection (e). In the case of an acceptance, such notice
(a "Notice of Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are
accepted. The Trust may accept any Competitive Bid Quote in
whole or in part; provided that:
(i) the aggregate principal amount of each
Borrowing may not exceed the applicable amount set
forth in the related Competitive Bid Request,
(ii) subject to the provisions of 3.1(h) hereof,
the principal amount of each Advance must be $2,500,000
or a larger multiple of $1,000,
(iii) offers quoting lower Competitive Bid
Rates must be accepted prior to offers quoting higher
Competitive Bid Rates, and
(iv) the Trust shall not accept any offer that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
(g) Notice by the Agent to the Banks. After the
Trust notifies the Agent of its acceptance or non-acceptance
of the offers pursuant to subsection (f), the Agent shall
notify, by telephone and confirm by telecopy, such Banks
that made such offers pursuant to subsection (d) of the
Trust's acceptance or non-acceptance of such offers not
later than 11:00 A.M. (Boston time) on the requested
Borrowing Date.
(h) Allocation by Agent; Usage of Commitments.
If offers are made by two or more Banks with the same
Competitive Bid Rates for a greater aggregate principal
amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal
amount of Advances in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as
nearly as possible (in such multiples, not smaller than
$1,000, as the Agent may deem appropriate) in proportion to
the aggregate principal amount of such offers.
Determinations by the Agent of the amounts of Competitive
Bid Advances shall be conclusive in the absence of manifest
error.
Upon each occasion that a Competitive Bid Advance is
made, and during the period for which such Competitive Bid
Advance is outstanding, each Bank's Commitment shall be
deemed automatically utilized by an amount equal to the
amount of such Competitive Bid Advance multiplied by such
Bank's Commitment Percentage, regardless of the extent to
which such Bank makes such Competitive Bid Advance.
3.2. Interest on Competitive Bid Advances. Each
Competitive Bid Advance shall bear interest on the
outstanding principal amount thereof for the Interest Period
applicable thereto, at a rate per annum equal to the
Competitive Bid Rate quoted by the Bank making such Advance
in accordance with 3.1(d). Such interest shall be payable
for each Interest Period on the last day thereof or, if such
Interest Period is longer than three months, every three
months after the first day thereof and on the last day
thereof.
Notwithstanding any other provision herein to the
contrary, at no time shall the sum of the aggregate
principal amount of Competitive Bid Advances Outstanding to
the Trust plus the aggregate principal amount of all other
Advances Outstanding to the Trust exceed the Available
Commitment.
3.3. Competitive Bid Notes. The Indebtedness of the
Trust resulting from the Competitive Bid Advances made and
to be made to the Trust hereunder shall be evidenced by
promissory notes executed and delivered by the Trust to the
Banks making each such Competitive Bid Advance on the date
such Competitive Bid Advances are made in substantially the
form of Exhibit A-1 hereto (the "Competitive Bid Notes").
4. CONVERSION, INTEREST, PAYMENTS AND COSTS.
4.1. Conversion of Advances. The Trust may, upon
notice given to the Agent not later than 10:00 A.M. (Boston
time) on the Business Day of the proposed Conversion in the
case of Conversion into Base Rate Advances and on the third
Business Day prior to the proposed Conversion in the case
of Conversion into Eurodollar Advances, Convert, on any
Business Day, all Base Rate Advances or Eurodollar Rate
Advances comprising the same Borrowing made to the Trust
into Advances of one or more Types, provided, however, that
any Conversion of Eurodollar Advances may be made on, and
only on, the last day of an Interest Period for such
Advances and any Conversion into Eurodollar Advances shall
be in a minimum amount of $1,000,000. Each such notice of
Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances
to be Converted, and (iii) if such Conversion is into
Eurodollar Advances, the duration of the initial Interest
Period for such Advances.
4.2. Interest. Except as otherwise provided in 4.3,
the Trust shall pay interest on the unpaid principal amount
of each Advance made by each Bank from the date of such
Advance until such principal amount is paid in full, at such
interest rates, and payable at such times as follows:
(a) during such periods as such Advance shall be
a Base Rate Advance, at the Alternate Base Rate, payable
quarterly in arrears on the last day of each March, June,
September and December during such periods and on the date
such Base Rate Advance shall be paid in full; and
(b) during such periods as such Advance shall be
a Eurodollar Advance, at the Eurodollar Rate (Reserve
Adjusted), payable (i) with respect to each Eurodollar
Advance for which the Interest Period is either one (1), two
(2) or three (3) months on the Interest Payment Date and
(ii) with respect to each Eurodollar Advance for which the
Interest Period is six (6) months, the amount of interest
accrued shall be payable on the last day of the third month
of such Interest Period and the remaining portion of such
interest shall be payable on the Interest Payment Date.
4.3. Overdue Principal and Interest. Any amount of
principal of any and all Advances which is not paid when due
(whether at stated maturity, by acceleration or otherwise)
and, to the extent permitted by law, any amount of interest
on any such Advances which is not paid when due, shall bear
interest, from the date on which such amount shall have
become due and payable by the Trust to the date on which
such amount shall be paid (whether before or after
judgment), payable on demand, at a rate equal to 2% per
annum above the rate of interest otherwise applicable to the
relevant Advances.
4.4. Limitation on Interest. No provision of this
Agreement or any Note shall require the payment or permit
the collection of interest in excess of the rate then
permitted by applicable law.
4.5. Interest Period and Rate Determination and
Protection.
(a) The Trust shall have the option to elect a
duration of one (1) month, two (2) months, three (3) months
or six (6) months in the case of Eurodollar Advances, made
to it, for each Interest Period. Such option shall be
exercised as provided in 2.2 with respect to the initial
Interest Period for any Eurodollar Advances and shall be
exercised as provided in 4.1 with respect to the initial
Interest Period for Eurodollar Advances commencing on the
date of a Conversion into such Advances, and in each such
case, may be exercised as to each subsequent Interest Period
applicable to such Advances by giving notice to the Agent
three Business Days in the case of Eurodollar Advances,
prior to the first day of such subsequent Interest Period.
Each such notice shall be by telephone, telex, telecopy or
cable, in each case confirmed immediately in writing by the
Trust. If no such notice is received with respect to the
Advances, the Trust shall be deemed to have elected the same
Interest Period duration as the immediately preceding
Interest Period applicable to such Advances.
(b) In the event the Agent shall determine that
adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate which would otherwise be
applicable during any Interest Period, the Agent shall
forthwith give telex or telecopy notice of such
determination (which shall be conclusive and binding on the
Trust), to the Trust at least two Business Days before the
first day of such Interest Period. In such event: (i) any
Notice of Borrowing or Notice of Conversion pursuant to 4.1
requesting a Eurodollar Advance shall be deemed a request
for a Base Rate Advance; (ii) each Eurodollar Advance will
automatically, on the last day of the then current Interest
Period thereof, Convert into a Base Rate Advance; and (iii)
the obligations of the Banks to make Eurodollar Advances
shall be suspended until the Agent determines that the
circumstances giving rise to such suspension no longer
exist, whereupon the Agent shall so notify the Trust and the
Banks.
4.6. Increased Costs, Etc.
(a) Anything herein to the contrary
notwithstanding, if any changes in present or future
applicable law (which term "applicable law", as used in this
Agreement, includes statutes and rules and regulations
thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or
official charged with the administration or the
interpretation thereof and requests, directives,
instructions and notices at any time or from time to time
heretofore or hereafter made upon or otherwise issued to the
Agent or any Bank by any central bank or other fiscal,
monetary or other authority, whether or not having the force
of law) shall (i) subject the Agent or any Bank to any tax,
levy, impost, duty, charge, fee, deduction or withholding of
any nature with respect to this Agreement, the amount of the
Commitments or the payment to the Agent or any Bank of any
amounts due to it hereunder, or (ii) materially change the
basis of taxation of payments to the Agent or any Bank of
the principal of or the interest on the Advances or any
other amounts payable to the Agent or any Bank hereunder, or
(iii) impose or increase or render applicable any special or
supplemental deposit or reserve or similar requirements or
assessment against assets held by, or deposits in or for the
account of, or any liabilities of, or loans by an office of
the Agent or any Bank in respect of the transactions
contemplated herein, or (iv) impose on the Agent or any Bank
any other condition or requirement with respect to this
Agreement, the Commitments or any Advance, and the result of
any of the foregoing is (A) to increase the cost to any Bank
of making, funding or maintaining all or any part of the
Advances, or (B) to reduce the amount of principal, interest
or other amount payable to any Bank hereunder, or (C) to
require the Agent or any Bank to make any payment or to
forego any interest or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by the Agent or any Bank from
the Trust hereunder, then, and in each such case not
otherwise provided for hereunder, the Trust will, upon
demand made by the Agent promptly following the Agent's
receipt of notification of such event (or made by any Bank
with respect to any of the matters described in clause (iii)
above promptly following such Bank's receipt of notice
pertaining to such matters) accompanied by calculations
thereof in reasonable detail, pay to the Agent for its
account or for the account of such Bank, as the case may be,
such additional amounts as will be sufficient to compensate
them for such additional cost, reduction, payment or
foregone interest or other sum, provided that the foregoing
provisions of this sentence shall not apply in the case of
any additional cost, reduction, payment or foregone interest
or other sum resulting from any taxes charged upon or by
reference to the overall net income, profits or gains of the
Agent or any Bank.
(b) If any Bank shall have determined that any
present or future applicable law, rule, regulation,
guideline, directive or request (whether or not having force
of law) regarding capital requirements for banks or bank
holding companies, or any change therein or in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by such Bank with any of the foregoing, either imposes a
requirement upon such Bank to allocate additional capital
resources or increases such Bank's requirement to allocate
capital resources to such Bank's commitment to make, or to
such Bank's maintenance of, Advances hereunder, which has or
would have the effect of reducing the return on such Bank's
capital to a level below that which such Bank could have
achieved (taking into consideration such Bank's then
existing policies with respect to capital adequacy and
assuming full utilization of such Bank's capital) but for
such applicability, change, interpretation, administration
or compliance, by any amount deemed by such Bank to be
material, such Bank shall promptly after its determination
of such occurrence give notice thereof to the Trust. The
Trust and such Bank shall thereafter attempt to negotiate in
good faith an adjustment to the compensation payable
hereunder which will adequately compensate the Bank for such
reduction. If the Trust and any such Bank are unable to
agree to such adjustment within thirty days after the day on
which the Trust received such notice, then commencing on the
date of such notice (but not earlier than the effective date
of any such applicability, change, interpretation,
administration or compliance), the fees payable hereunder
shall increase by an amount which will, in such Bank's
reasonable determination, evidenced by calculations in
reasonable detail delivered to the Company, compensate such
Bank for such reduction, such Bank's determination of such
amount to be conclusive and binding upon the Trust, absent
manifest error. In determining such amount, a Bank may use
any reasonable methods of averaging, allocating or
attributing such reduction among its customers.
4.7. Illegality or Impossibility. Notwithstanding
any other provision of this Agreement, if the introduction
of or any change in or in the interpretation of any law or
regulation applicable to any Bank or its Eurodollar Lending
Office shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over such Bank or
its Eurodollar Lending Office shall assert that it is
unlawful, for such Bank or Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar
Advances to the Trust or to continue to fund or maintain
Eurodollar Advances to the Trust hereunder, or if any Bank
determines after making reasonable efforts, including
consultations with the Agent, that deposits of the relevant
amount for the relevant Interest Period for Eurodollar
Advances to the Trust, are not available to such Bank after
making reasonable attempts to obtain such deposits, then, on
notice thereof and demand therefor by such Bank to the Trust
and the Agent, (i) the obligation of such Bank to the Trust
to make Eurodollar Advances and to Convert Base Rate
Advances into Eurodollar Advances in such currency shall be
suspended and (ii) the Trust shall forthwith prepay in full
all Eurodollar Advances to such Bank with interest accrued
thereon. If the Trust so notifies the Agent within five
Business Days after any Bank notifies the Trust pursuant to
the foregoing provisions of this 4.7, the Trust may,
instead of prepaying, Convert all Eurodollar Advances of all
Banks then outstanding into Base Rate Advances.
4.8. Payment on Any Day Other Than The Last Day of an
Interest Period. If, due to payments or Conversions made by
the Trust pursuant to this Agreement or due to acceleration
of the maturity of any Advances pursuant to 13 or due to
any other reason, any Bank receives payments of principal or
is subject to a Conversion to another Type of Advance of a
Eurodollar Advance other than on the last day of an Interest
Period relating to the applicable Eurodollar Advance, the
Trust shall, upon demand by such Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of
such Bank any amounts required to compensate such Bank for
any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss, including lost
profits, costs or expenses incurred by reason of the
liquidation, reutilization or reemployment of deposits or
other funds acquired by such Bank to fund or maintain such
Advances. Such compensation may include, without
limitation, an amount equal to (a) the amount of interest
which would have accrued on the amount so paid, prepaid or
Converted or not borrowed, Converted or prepaid for the
period from the date of such payment, prepayment or
Conversion or failure to borrow, Convert or prepay to the
last day of the then current Interest Period for such
Advance (or, in the case of a failure to borrow, Convert or
prepay, to the last day of the Interest Period for such
Advance which would have commenced on the date of such
failure to borrow, Convert or prepay) at the applicable rate
of interest for such Advances provided for herein minus (b)
the amount of interest (as reasonably determined by the
Agent in consultation with such Bank) which would accrue and
become payable to such Bank during such period on the
principal repaid, prepaid or not borrowed if such Bank,
following such repayment, prepayment or failure to borrow,
were to reinvest such principal in U. S. Treasury securities
selected by such Bank in an amount equal (as nearly as may
be) to the principal so repaid, prepaid or not borrowed and
having a term equal (as near as may be) to such period.
4.9. Prepayments. The Trust may not prepay
Competitive Bid Advances prior to the last day of the
Interest Period relating thereto. The Trust may, upon at
least five Business Days notice to the Agent stating the
proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Trust shall,
prepay the outstanding aggregate principal amount of all
other types of Advances made to the Trust as part of the
same Borrowing, in whole at any time, or ratably in part
from time to time, with accrued interest to the date of such
prepayment on the principal amount prepaid; provided,
however, that: (i) each partial prepayment shall be in an
aggregate principal amount of not less than $1,000,000 and
(ii) all such prepayments shall be made to the Agent for the
account of the Banks ratably according to the then
outstanding principal amount of the Notes; and provided,
that if any such prepayment of Eurodollar Advances shall be
made on any day other than the last day of the Interest
Period applicable to such Advance, the Trust shall indemnify
the Banks (i) as provided in 4.8 and (ii) for amounts
required to compensate each Bank for any additional losses,
including lost profits, costs or expenses which it may
reasonably incur as a result of such prepayment, including
without limitation any loss, costs or expenses incurred by
reason of the liquidation, reutilization or reemployment of
deposits or other funds.
4.10. Payments and Computations.
(a) The Trust shall make each payment to be made
by it hereunder not later than 12:00 noon (Boston time) on
the day when due in lawful money of the United States to the
Agent at its address set forth in 21 in immediately
available funds. The Agent will, promptly after its receipt
thereof, distribute like funds relating to the payment of
principal or interest or Commitment Fees or other amounts
payable hereunder ratably to the Banks for the account of
their respective Advances and their Applicable Lending
Offices in like funds. All payments by the Trust hereunder
and under any of the other Loan Documents shall be made
without setoff or counterclaim and free and clear of and
without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans,
restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein
unless the Trust is compelled by law to make such deduction
or withholding. If any such obligation is imposed hereafter
upon the Trust with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the
Trust will pay to the Agent, for the account of the Banks or
(as the case may be) the Agent, on the date on which such
amount is due and payable hereunder or under such other Loan
Document, such additional amount in dollars as shall be
necessary to enable the Banks or the Agent to receive the
same net amount which the Banks or the Agent would have
received on such due date had no such obligation been
imposed upon the Trust, provided that the foregoing
obligation to pay such additional amounts shall not apply:
(i) to any payment to a Bank if such Bank is not,
on the date hereof (or on the date it becomes a Bank
under this Agreement) and on the date of any change in
the lending office of such Bank identified after its
execution, entitled by virtue of its status as a
non-resident alien to submit either a Form 1001
(relating to such Bank and entitling it to a complete
exemption from withholding on all interest to be
received by it hereunder in respect of the Advances) or
Form 4224 (relating to all interest to be received by
such Bank hereunder in respect of Advances) of the U.S.
Department of Treasury, or
(ii) to any item referred to in the preceding
sentence that would not have been imposed but for the
failure by such Bank to comply with applicable
certification, information, documentation or other
reporting requirements concerning the nationality,
residence, identity or connections of such Bank with
the United States if such compliance is required by
statute or regulation of the United States as a
precondition to relief or exemption from such item.
The Trust will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other
charges deducted from or paid with respect to payments made
by the Trust hereunder or under such other Loan Document.
Promptly after receipt of all payments with respect to
Competitive Bid Advances, the Agent shall pay the proper
portion of such payment to each Bank which made such
Competitive Bid Advance.
(b) All computations of interest, Commitment Fees
and Facility Fees hereunder shall be made by the Agent on
the basis of a year of 360 days for the actual number of
days (including the first day but excluding the last day)
elapsed. The outstanding amount of the Advances as
reflected on the Agent's records from time to time shall be
considered correct and binding on the Trust and the Banks
unless within thirty (30) days after receipt of any notice
by the Agent of such outstanding amount, the Trust or any of
the Banks, as the case may be, notify the Agent to the
contrary.
(c) Any change in the rate of interest payable on
any Advance resulting from a change in the Alternate Base
Rate shall become effective as of the opening of business on
the day on which such change in the Alternate Base Rate
becomes effective.
4.11. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on
the next succeeding Business Day, (except as provided in the
definition of Interest Period in 1) and such extension of
time shall in such case be included in the computation of
payment of interest or Commitment Fees, or Facility Fees, as
the case may be.
4.12. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on
account of the Advances made by it in excess of its ratable
share (according to the then outstanding principal amount of
the Advances) of payments on account of the Advances
obtained by all the Banks, such Bank shall purchase from the
other Banks such participations in the Advances held by such
other Banks as shall cause such purchasing Bank to share
such payment ratably according to the then outstanding
principal amount of the Advances with each of such other
Banks; provided, however, that if all or any portion of such
payment is thereafter recovered from such purchasing Bank,
the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, with interest at an
interest rate per annum equal to the Alternate Base Rate.
The Trust agrees that any Bank so purchasing a participation
in the Trust's Advance from another Bank pursuant to this
4.12 may, to the fullest extent permitted by law, exercise
all its rights of payment with respect to such participation
as fully as if such Bank were the direct creditor of the
Trust in the amount of such participation.
5. COMMITMENTS.
5.1. Amount of Commitment. The respective amount of
each Bank's Commitment on the date hereof and its respective
Commitment Percentage shall be as follows (except as may be
modified pursuant to Section 18):
Amount of Commitment
Lender Commitment Percentage
The Bank of New York $8,000,000 26.67%
Union Bank of $4,000,000 13.33%
California, N.A.
CoreStates Bank, $4,000,000 13.33%
N.A.
First Union National $4,000,000 13.33%
Bank
Fleet National Bank $10,000,000 33.33%
5.2. Extension of Commitments. The Trust may, by
written notice to the Banks and the Agent not less than
sixty (60) days and not more than ninety (90) days prior to
the Termination Date then in effect, request that the
Termination Date be extended to a later date specified in
such notice. The Agent shall notify the Trust as to whether
all of the Banks have agreed to the extension of the
Termination Date to such later date not later than thirty
(30) days prior to the Termination Date then in effect. An
extension to which all of the Banks have agreed shall become
effective upon the receipt by the Banks not less than five
(5) Business Days prior to the Termination Date then in
effect of (a) executed promissory notes substantially in the
form of Exhibit A hereto, and (b) an opinion of counsel to
the Trust, satisfactory to the Banks and their counsel, as
to the due authorization, execution and delivery by the
Trust of such notice of extension and such promissory notes,
the validity and binding effect as regards the Trust of this
Agreement and the promissory notes so delivered, and there
being no necessity for any authorization or approval by, or
any filing or registration with, any public regulatory body
(including, but without limitation, approval of the
Department of Public Utilities of The Commonwealth of
Massachusetts) for such extension and for the performance of
this Agreement and the promissory notes so delivered (or, if
any such action is necessary or required, stating that the
same has been duly obtained or effected, and is valid and
sufficient for the purpose and a true copy thereof is
attached to such opinion).
5.3. Commitment Fees.
(a) Facility Fee. The Trust agrees to pay to the
Agent for the account of each Bank, pro rata in accordance
with its Commitment, a Facility Fee (the "Facility Fee")
calculated at the Applicable Facility Fee Rate on the amount
of such Bank's Commitment. The Facility Fee shall be
payable quarterly in arrears on the last day of each
calendar quarter and on the Termination Date.
(b) Agent's Fees. The Trust has agreed to pay to
the Agent a fee for arranging the Advances hereunder and an
agent's administration fee (the "Agent's Fee") in accordance
with a letter agreement dated as of the date hereof, between
the Company and the Agent.
5.4. Reduction and Termination by the Trust. The
Trust at its option may, at any time and from time to time,
reduce ratably in part (in integral multiples of $5,000,000)
or terminate in whole the unused portion of the Commitment
of the Banks provided for in 5.1 on not less than five
Business Days' notice in writing, telegraphic or telephonic
notice confirmed in writing to the Agent. Promptly after
receiving any notice of the Trust delivered pursuant to this
5.4, the Agent will notify the Banks of the substance
thereof. After any such termination, the Trust may not
reinstate the portion terminated.
6. SECURITY. The Obligations of the Trust to the
Banks under the Loan Documents shall be secured by a blanket
first perfected lien on all of the gas inventory of the
Trust and by an assignment by the Trust of the Fuel Purchase
Contract and certain other documents and instruments
(collectively, the "Collateral"), pursuant to the terms of
the Security Documents.
7. CONDITIONS OF FIRST LENDING. The obligation of
each Bank to make its Advance on the occasion of the First
Lending is subject to the following conditions precedent:
7.1. Documentation. The Agent shall have received
before the day of the First Lending, in form and substance
satisfactory to the Agent and in sufficient copies for each
Bank:
(a) Certified copies of the resolutions of the
Trustee of the Trust approving this Agreement and the other
Loan Documents;
(b) Signed copies of a certificate of the Trustee
of the Trust certifying the names and true signatures of the
officers of the Trust authorized to sign this Agreement, the
other Loan Documents and any other documents delivered or to
be delivered by the Trust hereunder;
(c) A certified copy of the Trust Agreement as in
effect on the Closing Date.
(d) A favorable opinion of counsel to the Trust
in substantially the form of Exhibit F hereto and as to such
other matters as any Bank through the Agent may reasonably
request;
(e) Copies of any authorization or approval of
any public regulatory body (including, without limitation,
the DPU) required for the execution, delivery and
performance by the Trust of this Agreement and the other
documents to be delivered by the Trust hereunder;
(f) A true copy, certified by the Trust and the
Company, of the Fuel Purchase Contract, as amended and in
effect on the Closing Date; and
(g) A true copy, certified by the Trust, of the
Consent and Agreement as in effect on the Closing Date.
7.2. Security Documents. The Security Documents and
the appropriate financing statements and other documents
with respect thereto, necessary to enable the Agent to
perfect the Banks' security interests thereunder, shall have
been duly executed by the Trust and delivered to the Agent
for filing or recording, as applicable, in all appropriate
filing offices or other locations necessary for the
perfection of such interests, and, except as otherwise
agreed by the Agent after notice to the Banks, all other
actions necessary for the perfection of such security
interests shall have been taken.
7.3. Financial Statements. The Banks shall have
received not less than five (5) days prior to the Closing
Date audited consolidated and consolidating balance sheets
of the Company and its Subsidiaries as at December 31, 1996,
and related consolidated and consolidating statements of
income and retained earnings of the Company for the twelve
months then ended, in each case prepared in accordance with
GAAP and certified by Xxxxx Xxxxxxxx or other Independent
Accountant.
7.4. Representations and Warranties. The
representations and warranties contained in 9 shall have
been correct as of the date on which made and shall also be
correct at and as of the date of the First Lending with the
same effect as if made at and as of such time, except to the
extent that the facts upon which such representations and
warranties are based may in the ordinary course be changed
by the transactions permitted or contemplated hereby, and
the Trust shall deliver a certificate to the Agent to such
effect.
7.5. Performance; No Default. The Trust shall have
performed and complied with all terms and conditions herein
required to be performed or complied with by it prior to or
at the time of the First Lending and at the time of the
First Lending there shall exist no Default or Event of
Default or condition which would, with either or both the
giving of notice or the lapse of time, result in a Default
or Event of Default upon consummation of the First Lending.
7.6. Company Credit Agreement. The Company Credit
Agreement shall have been duly executed and delivered by the
parties thereto and all of the conditions to the "First
Lending" thereunder shall have been satisfied.
7.7. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this
Agreement and all documents incident thereto shall be
reasonably satisfactory in substance and in form to the
Agent and to the Agent's Special Counsel, and the Agent and
such counsel shall have received all information and such
counterpart originals or certified or other copies of such
documents and such other approvals, opinions or documents as
the Agent or such counsel may reasonably request.
7.8. Notice of Borrowing. The Agent shall have
received a Notice of Borrowing from the Trust as required by
2.2.
8. CONDITIONS OF SUBSEQUENT BORROWINGS. The
obligation of the Banks to make any Advances subsequent to
the Closing Date is subject to the following conditions
precedent:
8.1. Representations and Warranties. The
representations and warranties contained in 9 and otherwise
made by the Trust in connection with the transactions
contemplated by this Agreement subsequent to the date hereof
shall have been correct as of the date on which made and
shall also be correct at and as of the date of the Advances,
with the same effect as if made at and as of such time,
except to the extent that the facts upon which such
representations and warranties are based may be changed by
the actions or transactions permitted or contemplated
hereby.
8.2. Performance; No Default. The Trust shall have
performed and complied with all terms and conditions herein
required to be performed or complied with by it prior to or
at the time of the Advance, and there shall exist no Default
or Event of Default or condition which would, with either or
both the giving of notice or the lapse of time, result in a
Default or Event of Default upon consummation of the
Advance.
In the case of any Advance, the giving of each Notice
of Borrowing made subsequent to the Closing Date, as the
case may be, by the Trust shall be deemed to be a
representation and warranty by the Trust on the dates of
such Notice of Borrowing and of such Borrowing that the
statements in 9 are correct in all material respects.
8.3. Notes in Full Force and Effect. The Notes shall
be in full force and effect, and the Trust shall have
delivered to the Banks contemporaneously with its delivery
of such Notes an opinion of counsel, satisfactory to the
Banks, regarding the due authorization, execution and
delivery of such Notes, the validity and binding effect of
such Notes, and there being no necessity for any
authorization or approval by, or any filing or registration
with, any public regulatory body (including, but without
limitation, approval of the DPU) for the delivery of such
Notes or the performance of such Notes.
9. REPRESENTATIONS AND WARRANTIES. The Trust
represents and warrants to the Agent and the Banks that:
9.1. Legal Existence and Good Standing, Etc.
(a) The Trust has its chief executive offices at
Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000; its principal
books and records are kept at 00 Xxxxxx Xxxxxx, Xxxxxx, XX
00000.
(b) The Trust (i) is a duly organized, validly
existing and effective trust in accordance with its terms,
and (ii) has the power to own its property and conduct its
business as now and presently contemplated and (iii) is duly
qualified to do business and is in good standing in each
other jurisdiction where the conduct of its business or the
nature of its assets requires such qualification. The Trust
has no Subsidiaries.
9.2. Trust Power; Consents; Absence of Conflict with
Other Agreements, Etc. The execution, delivery and
performance of this Agreement and the other Loan Documents
by the Trust and the Borrowings and transactions
contemplated hereby and thereby:
(a) are within the trust powers of the Trust, as
applicable, have been duly authorized by all necessary trust
action and do not and will not contravene any provision of
law or any contractual restriction binding on or affecting
it;
(b) do not require any approval or consent of, or
filing with, any governmental agency or authority bearing on
the validity of such instruments and Borrowings which is
required by law or any regulation of any such agency or
authority which have not been obtained and delivered to the
Agent prior to the Closing Date, and are not in
contravention of the terms of the Trust Agreement of the
Trust or any amendment thereof;
(c) will not conflict with or result in any
breach or contravention of or the creation of any lien
under, any indenture, agreement, lease, instrument or
undertaking to which the Trust is a party or by which it is
bound; and
(d) in all material respects are and will be
valid and legally binding obligations of the Trust and are
and will be enforceable in accordance with their respective
terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting generally the enforcement of creditors' rights.
9.3. Title to Properties; Leases. Except as
indicated on Schedule 9.3 hereto, the Trust owns all of its
assets reflected in its balance sheets as at December 31,
1996 described in 7.3, or acquired since that date (except
property and assets sold or otherwise disposed of in the
ordinary course of business since that date), subject to no
mortgages, leases, liens or other encumbrances except for
(i) current taxes or taxes being contested in good faith by
appropriate proceedings and then only to the extent that
adequate reserves have been set aside therefor or its books
in accordance with GAAP, (ii) liens arising in the ordinary
course of business or sums being contested in good faith by
appropriate proceedings and then only to the extent that
adequate reserves have been set aside therefor or its books
in accordance with GAAP, but not involving Debt, (iii) liens
existing on the date hereof to the extent shown on
Schedule 9.3 or (iv) the liens in favor of the Agent created
by the Security Documents and other liens hereafter incurred
and permitted under 12.2.
9.4. Financial Statements. The financial statements
delivered to the Banks pursuant to 7.3 fairly present the
financial condition of the Trust as at the close of business
on the date thereof. There are no contingent liabilities of
the Trust as of such date involving material amounts, which
are not disclosed in said balance sheets and the related
notes thereto.
9.5. No Material Changes, Etc. Since December 31,
1996, there have occurred no Material Adverse Changes as
shown on or reflected in the financial statements delivered
to the Bank pursuant to 7.3 hereof.
9.6. Franchises, Patents, Copyrights, Etc. The Trust
possesses franchises, patents, copyrights, trademarks,
tradenames, licenses and permits, and rights in respect of
the foregoing, adequate for the conduct of its business
substantially as now conducted and without any conflict with
any rights of others (other than for conflicts that would
not either individually or collectively have a Material
Adverse Effect).
9.7. Litigation. Except as set forth on
Schedule 9.7, there are no actions, suits, proceedings or
investigations of any kind pending or threatened against the
Trust before any court, tribunal or administrative agency or
board which, if adversely determined, might, either in any
case or in the aggregate, have a Material Adverse Effect or
materially impair the right of the Trust, to carry on
business substantially as now conducted, or result in any
substantial liability not adequately covered by insurance,
or which question the validity of this Agreement or the
Notes, or any action taken or to be taken pursuant hereto or
thereto.
9.8. No Materially Adverse Contracts, Etc. The Trust
is not subject to any indenture, agreement or charter,
corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which has or is expected
in the future to have Material Adverse Effect. The Trust is
not a party to any contract or agreement which has or is
expected to have any Material Adverse Effect.
9.9. Compliance with Other Instruments, Laws, Etc.
The Trust is not in violation of any provision of its Trust
Agreement, or any other agreement or instrument by which it
or any of its properties may be bound or any decree, order,
judgment, any statute, license, rule or regulation, in a
manner which could result in the imposition of substantial
penalties or have a Material Adverse Effect.
9.10. Tax Status. The Trust has caused to be filed
all federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to
which it is subject; and has paid all taxes and other
governmental assessments and charges shown or determined to
be due on such returns, reports and declarations, except
those being contested in good faith by appropriate
proceedings and then only to the extent that adequate
reserves have been set aside therefor or its books in
accordance with GAAP, but not involving any Debt; and has
set aside on its books provisions reasonably adequate for
the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and the Trust knows of no basis for any such
claim.
9.11. Absence of Security Interests, Etc. Except (i)
for current taxes or taxes being contested in good faith by
appropriate proceedings and for which any adequate reserves
required by GAAP have been established, (ii) liens arising
in the ordinary course of business or sums being contested
in good faith, but not involving any Debt, (iii) liens
existing on the date hereof to the extent shown in the
financial statements referred to in 7.3 or Schedule 9.3 or
(iv) liens hereafter incurred and permitted under 12.2,
there is no significant financing statement, security
agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records,
registry, or other public office of any jurisdiction, which
purports to cover, affect or give notice of any present or
possible future lien on, or security interest in, any assets
or property of the Trust or any rights thereunder.
9.12. Use of Proceeds. The proceeds of the Advances
shall be used by the Trust solely for the purpose of
financing its purchase of Commodities pursuant to the Fuel
Purchase Contract. No portion of any Advance is to be used
for the purpose of purchasing or carrying any "margin
security" or "margin stock" as such terms are used in
Regulations G and U of the Board of Governors of the Federal
Reserve System, 12 C.F.R. 207 and 221.
9.13. Pension Plan. The Trust has no employees.
9.14. Disclosure. Neither this Agreement nor any
document delivered to the Agent or any Bank by or on behalf
of the Trust to induce such Bank to enter into this
Agreement contains any untrue statement of a material fact
or omits to state a material fact which omission would make
the statements herein or therein misleading.
9.15. Investment Company; Public Utility Holding
Company. The Trust is not an "investment company" or a
"company controlled" by an "investment company" or an
"affiliate" of an "investment company" within the meaning of
the Investment Company Act of 1940, as amended. The Trust
is not a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", as such
terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
9.16. Environmental Matters. The Trust is in
compliance in all material respects with all applicable
Environmental Laws (as defined herein), including, without
limitation, the Clean Water Act of 1977, as amended, 33
U.S.C. 1251 et seq., the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. 6901 et seq. ("RCRA"), the
Massachusetts Hazardous Waste Management Act, Massachusetts
General Laws Annotated ch. 21C (West 1992) (the
"Massachusetts Hazardous Waste Act"), the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. 9601 et seq.
("CERCLA"), and the Massachusetts Oil and Hazardous Material
Release Prevention Act, Massachusetts General Laws Annotated
ch. 21E (West 1992) (the "Massachusetts Oil and Hazardous
Material Act"), except for such noncompliance which, in the
judgment of the Trust, would not have a Material Adverse
Effect and, to its knowledge, has not acquired, incurred or
assumed, directly or indirectly, any contingent liability in
connection with the release of any Hazardous Substance (as
defined herein) into the environment which, in the judgment
of the Trust, would have a Material Adverse Effect. To the
best of the Trustee's knowledge, the Trust is not the
subject of any evaluation, administrative proceedings,
administrative consent orders, judicial proceedings or
demand orders under CERCLA, or under the Massachusetts Oil
and Hazardous Material Act, or any similar statute in any
other jurisdiction which, in the judgment of the Trust,
would have a Material Adverse Effect.
10. EXEMPT CHARACTER OF TRANSACTION. This Agreement
is made with the Banks in reliance upon their several
representations to the Trust, which by their execution of
this Agreement they hereby confirm, that each Bank for
itself and not for any other Bank has no present intention
of selling or otherwise disposing of any interest in the
Advances other than for participations contemplated by 26
and assignments contemplated by 18 hereof. The Trust
represents to the Banks that it has not, either directly or
through any agent, offered any interest in the Advances for
sale to, or solicited any offers to buy any interest therein
from, or otherwise approached or negotiated in respect of
any interest therein with, any Person or Persons other than
the Banks. Each Bank agrees that it will not, directly or
indirectly, sell or offer, or attempt to offer to dispose
of, any interest in the Advances or solicit any offers to
buy any interest therein from, or otherwise approach or
negotiate with respect thereto with, any Person whatsoever
so as to bring the execution and delivery of this Agreement
within the provisions of 5 of the Securities Act of 1933,
as now in effect or as later amended.
11. AFFIRMATIVE COVENANTS. Until expiration or
termination of the Commitments and thereafter until all
obligations of the Trust hereunder and under the Notes are
paid in full, the Trust agrees that it will:
11.1. Punctual Payment. Duly and punctually pay or
cause to be paid the principal and interest on the Advances,
and the Commitment Fees, the Facility Fees, the Agent's Fees
and all other fees and expenses payable as provided herein
or in the other Loan Documents as the same shall become due,
whether at maturity or at any date fixed for payment or
prepayment or by declaration or otherwise, all in accordance
with the terms of this Agreement.
11.2. Maintenance of Office. Maintain an office at
Two International Place, Boston, Massachusetts or at such
other place in Massachusetts as the Trust shall designate
within 30 days of any change of such office by written
notice, addressed as provided in 21 where notices,
presentations and demands to or upon the Trust in respect of
the Advances may be given or made.
11.3. Reports, Certificates and Other Information.
Furnish to the Agent (in sufficient number of copies to
provide one to each Bank);
(a) Annual Report. As soon as practicable and,
in any event, within 90 days after the end of each fiscal
year of the Trust, a consolidated and consolidating balance
sheet of the Trust as at the end of such fiscal year and
consolidated and consolidating statements of earnings and
cash flow of the Trust for the fiscal year then ended, each
setting forth in comparative form the figures for the
previous fiscal year, all in reasonable detail prepared in
accordance with GAAP, such consolidated financial statements
to be accompanied by a report and opinion of Xxxxx Xxxxxxxx
or other Independent Accountants, which report and opinion
shall have been prepared in accordance with generally
accepted auditing standards.
(b) Interim Reports. Within forty-five (45) days
after each quarter (except the last quarter) of each fiscal
year of the Trust, unaudited financial statements of the
Trust prepared in the same manner as the annual report
referred to in 11.3(a), signed by a proper officer of the
Trust, as applicable, and consisting of at least a balance
sheet as at the close of such quarter and statements of
earnings and cash flows for such quarter and for the period
from the beginning of such fiscal year to the close of such
quarter.
(c) Certificates. Contemporaneously with the
furnishing of a copy of each annual report provided for in
subsection (a) and of each set of quarterly statements
provided for in subsection (b), a Compliance Certificate
from the Trust substantially in the form of Exhibit G hereto
(the "Compliance Certificate") dated the date of such annual
report or such quarterly statements and signed on behalf of
the Trust by the Trustee, to the effect that no Default or
Event of Default has occurred and is continuing, or, if
there is any such event, describing it and the steps, if
any, being taken to cure it.
(d) Notice of Default, Litigation and
Environmental Matters. Forthwith upon learning of the
occurrence of any of the following, written notice thereof,
describing the same and the steps being taken by the Trust
with respect thereto: (i) the occurrence of a Default or
Event of Default or any event which, but for the waiver of
such event, would be a Default or Event of Default, or (ii)
the institution of, or any adverse determination in, any
litigation, arbitration proceeding or governmental
proceeding which is, or could be, materially adverse to the
Trust. The Trust will promptly give notice to the Agent and
each of the Banks (i) of any violation of any federal, state
or local statute, regulation, ordinance, order or decree
relating to health, safety or the environment that the Trust
reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any
oral report is made) to any federal, state or local
environmental agency and that, in the judgment of the Trust,
would have a Material Adverse Effect, and (ii) upon becoming
aware thereof, of any inquiry, proceeding, investigation or
other action, including a notice from any agency of
potential environmental liability, or any federal, state or
local environmental agency or board that, in the judgment of
the Trust, would have a Material Adverse Effect.
(e) Monthly Report. On or before the fifteenth
(15th) day of each month a report (each a "Monthly Report")
in substantially the form of Exhibit I hereto and certified
by an officer on behalf of the Trust, showing, as of the
last Business Day of the immediately preceding month: the
Cost of the Trust's inventory of Commodities, by type; the
location of the Storage Fields containing such inventory;
and the dollar value of the outstanding accounts receivable
owned by the Trust. On or before the twentieth (20th) day
of each month (but in any event not earlier than the third
business day following the fifteenth day of the month) the
total outstanding Advances shall not exceed the Trust
Borrowing Base as of the Monthly Report for the immediately
preceding month.
(f) Other Information. From time to time such
other information concerning the Trust as any Bank or the
Agent may reasonably request.
11.4. Existence and Franchises. Except as otherwise
expressly permitted in this Agreement, maintain in full
force and effect its separate existence and all rights,
licenses, leases and franchises reasonably necessary to the
conduct of its business and comply with (i) the applicable
laws and regulations wherever its business is conducted,
(ii) its Trust Agreement, and (iii) all agreements and
instruments by which it or any of its properties may be
bound and all applicable decrees, orders and judgments.
11.5. Payments of Taxes. Cause to be promptly paid
when due all material taxes, assessments or other
governmental charges owing, unless the same shall be
diligently contested in good faith and reserves which are
adequate in accordance with GAAP have been set aside
therefor.
11.6. Maintenance of Property. Maintain all material
assets or property in good repair and working order and
condition, normal wear and tear excepted, and make all
needful repairs, replacements, additions and improvements
thereto.
11.7. Books, Records and Inspections. Maintain
complete and accurate books and records; permit reasonable
access during normal business hours by any Bank or the Agent
to the books and records of the Trust; and permit any Bank
or the Agent to inspect the properties and operations of the
Trust; and promptly respond to all reasonable requests for
information by any Bank or the Agent.
11.8. Further Assurances. Cooperate with the Banks
and execute, acknowledge (if appropriate) and deliver such
further instruments and documents, and take such other
action as the Banks shall reasonably request to carry out to
their satisfaction the transactions contemplated by this
Agreement.
11.9. Securities Law, Etc. Compliance. Comply in all
material respects with all valid applicable laws and any
rules and regulations thereunder in connection with all
transactions contemplated by this Agreement, including
(without limitation) takeover, disclosure and other Federal
and State securities laws and Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System.
11.10. Insurance. Cause to be maintained with
financially sound and reputable insurers insurance with
respect to its properties and business against such
casualties and contingencies in amounts, containing such
terms, in such forms and for such periods as shall be in
accordance with the general practices of businesses engaged
in similar activities in similar geographic areas (which may
include reasonable self insurance) and as may be reasonably
satisfactory to the Banks. Without limiting the foregoing,
the Trust will (i) keep all of its physical property insured
against fire, flood and extended coverage risks in amounts
and with deductibles equal to those generally maintained by
businesses engaged in similar activities in similar
geographic areas, which may include reasonable self
insurance (ii) maintain all such workers' compensation or
similar insurance as may be required by law, and (iii)
maintain, in amounts and with deductibles equal to those
generally maintained by businesses engaged in similar
activities in similar geographic areas (which may include
reasonable self insurance), general public liability
insurance against claims for bodily injury, death or
property damage occurring on, in or about its properties,
business interruption insurance and product liability
insurance. At least five (5) days before the expiration of
any such policy, the Trust will (except as aforesaid) obtain
a renewal of any policy about to expire or a new policy or
policies operating as a renewal thereof, to the satisfaction
of the Banks; provided, however, that the Trust will notify
the Banks that a policy is being canceled by an insurer not
later than ten (10) days prior to the effective date of such
cancellation. In the event of failure to provide and
maintain insurance as herein provided, the Banks may, at
their option, after giving notice to and consulting with the
Trust, provide such insurance and charge the amount thereof
to the Trust and the Trust hereby promises to pay to the
Banks on demand the amount of any disbursements made by the
Banks for such purpose. The Trust shall furnish to the
Banks certificates or other evidence satisfactory to the
Banks of compliance with the foregoing insurance provision.
11.11 Payment of Indebtedness and Performance of
Obligations. Pay and discharge promptly as and when due all
lawful indebtedness, obligations and claims for labor,
materials and supplies or otherwise (including, without
limitation, Debt) which, if unpaid, would (a) have a
Material Adverse Effect, or (b) become a lien not permitted
by paragraph 11.2, provided that the Trust shall not be
required to pay and discharge or cause to be paid and
discharged any such indebtedness, obligation or claim so
long as the validity thereof shall be contested in good
faith and by appropriate proceedings diligently conducted by
the Trust, and further provided that such reserve or other
appropriate provision as shall be required in accordance
with GAAP shall have been made therefor.
11.12. Change of Trust Name. Notify the Agent within
ten (10) days of any change in its name and duly execute and
deliver appropriate financing statements and other documents
necessary to enable the Agent to maintain continuously
perfected the security interests granted under the Security
Documents.
11.13. Enforcement of Fuel Purchase Contract.
Enforce all of its rights under the Fuel Purchase Contract,
and undertake any action necessary in connection therewith.
12. CERTAIN NEGATIVE COVENANTS. The Trust agrees
that, so long as any portion of the Commitments remain
outstanding or until such date as the Advances and all other
Obligations have been paid and satisfied in full, whichever
shall later occur, it will not:
12.1. Debt. Incur or permit to exist any Debt except
(i) the obligations of the Trust to the Banks and the Agent
under the Loan Documents, and (ii) obligations of the Trust
to the Company, provided that all such obligations shall be
subordinated to the payment in full of principal and
interest and other amounts payable under this Agreement, the
Notes and the other Loan Documents upon terms, and pursuant
to documents in form and substance satisfactory to the
Banks.
12.2. Liens. Create or permit to exist any mortgage,
pledge, title retention lien, or other lien, encumbrance or
security interest with respect to any assets now owned or
hereafter acquired, except
(i) liens existing on the date of this Agreement
and described on Schedule 9.3 hereto;
(ii) mechanic's, materialmen's, suppliers', tax
and other like liens arising in the ordinary course of
business securing obligations which are not overdue or,
if overdue, are being contested in good faith by
appropriate proceedings; liens arising in connection
with workmen's compensation, unemployment insurance and
appeal and release bonds; and other liens incident to
the conduct of business or the operation of property
and assets and not incurred in connection with the
obtaining of any advance or credit; and
(iii) liens securing the Advances.
12.3. Guaranties, Loans or Advances. Become or be a
guarantor or surety of, or otherwise become or be
responsible in any manner (whether by agreement to purchase
any obligations, stock, assets, goods or services, or to
supply or advance any funds, assets, goods or services, or
otherwise) with respect to, any undertaking of any other
person or entity, or make or permit to exist any loans or
advances to any other person or entity, except for the
endorsement, in the ordinary course of collection, of
instruments payable to it or to its order.
12.4. Investments. Purchase or otherwise acquire any
security or Debt of any Person, whether directly or
indirectly, except advances by the Trust to the Company as
permitted by the Fuel Purchase Contract.
12.5. Other Agreements. Enter into any agreement
containing any provision which would be violated or breached
by the performance of its obligations hereunder or under any
instrument or document delivered or to be delivered by it
hereunder or in connection herewith.
12.6. Merger, Consolidation, or Sale of Assets.
Become a party to any merger, consolidation, or disposition
of any substantial assets, except as expressly permitted by
the Fuel Purchase Contract or the merger of the Trust into
the Company so long as the Company is the survivor of such
merger.
12.7. Leases. Acquire any real or personal property
by lease or similar agreement (whether or not the respective
property shall have theretofore been owned and sold by the
Trust).
12.8. Debt Payments. Directly or indirectly, make
any payments in reduction of any Debt of the Trust (other
than Debt in respect of the Advances) prior to the final
maturity thereof, other than payments required by the terms
of any sinking fund, serial maturity or mandatory prepayment
provision contained in any instrument evidencing Debt
permitted by 12.1 and other than payments made pursuant to
the Fuel Purchase Contract.
12.9 Alterations to Trust Agreement. Amend, alter,
modify or waive any of the provisions of the Trust Agreement
in any material way without the prior written consent of the
Agent.
12.10. Alterations to Fuel Purchase Contract. Until
expiration or termination of the Commitments under the
Company Credit Agreement and thereafter until all
obligations of the Company thereunder and under the Notes
issued pursuant thereto are paid in full, amend, alter,
modify or waive any of the provisions of the Fuel Purchase
Contract in any manner that would materially affect the
absolute and unconditional obligations of the Trust to take
and pay for any and all Fuel pursuant to the terms of the
Fuel Purchase Contract or otherwise adversely affect or
impair the security of the Banks therein without the prior
written consent of such Banks as hold 100% of the aggregate
principal amount of the Maximum Commitment.
13. EVENTS OF DEFAULT; ACCELERATION. If any of the
following events ("Events of Default" or, if notice or lapse
of time or notice and lapse of time is required, then, prior
to such notice and/or lapse of time, "Defaults") shall
occur:
(a) if the Trust shall default in the payment of
principal on any of the Advances when the same shall become
due and payable, whether at maturity or at any date fixed
for payment or prepayment or by declaration;
(b) if the Trust shall default in the payment of
any interest on the Advances, or the Facility Fee, Agent's
Fee or any other fee or expense payable hereunder or under
the other Loan Documents when the same shall become due and
payable;
(c) if the Trust shall default in the performance
of or compliance with any term contained in the Security
Agreement or in any of 11.3(d), 12.1, 12.2, 12.3, 12.4,
12.5, 12.6, 12.7, 12.8, or 12.9 hereof;
(d) if the Trust shall default in the performance
of or compliance with any term contained in this Agreement
other than those referred to above in this 13, and such
default shall not have been remedied within 30 days after
written notice thereof shall have been given to the Trust by
the Agent;
(e) if any representation or warranty made or
deemed made by the Trust herein or in connection with any of
the transactions contemplated hereby shall prove to have
been false or incorrect in any material respect on the date
as of which made;
(f) if the Trust shall default (as principal or
guarantor or other surety) in the payment of any principal
of, or premium, if any, or interest on any indebtedness
(other than the Obligations to the Banks hereunder), or with
respect to any of the terms of any evidence of such
indebtedness or of any agreement relating thereto, and such
default shall entitle the holder of such indebtedness to
accelerate the maturity thereof and the unpaid balance of
any such defaulted indebtedness is equal to or exceeds
$100,000, unless, in the case of any default, such default
has been affirmatively waived by or on behalf of the holder
of such indebtedness;
(g) if the Trust makes an assignment for the
benefit of creditors, or petitions or applies for the
appointment of a liquidator or receiver or custodian (or
similar official) of the Trust, or of any substantial part
of the assets of the Trust or commences any proceeding or
case relating to the Trust under any bankruptcy,
reorganization, arrangements, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect;
(h) if any such petition or application is filed
or any such proceeding or case is commenced against the
Trust and the Trust indicates its approval thereof, consent
thereto or acquiescence therein or an order is entered
appointing any such liquidator or receiver or custodian (or
similar official), or adjudicating the Trust bankrupt or
insolvent, or approving a petition in any such proceeding or
a decree or order for relief is entered in respect of the
Trust in an involuntary case under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar laws of any
jurisdiction as now or hereafter constituted;
(i) if any order is entered in any proceeding by
or against the Trust decreeing or permitting the dissolution
or split-up of the Trust or the winding up of its affairs;
(j) if there shall remain in force, undischarged,
unsatisfied and unstayed, for more than 30 days, whether or
not consecutive, any final judgment or judgments which
exceed, either individually or in the aggregate, more than
$1,000 against the Trust;
(k) if any governmental authority or any person
purporting to act under governmental authority shall have
taken any action to condemn, seize or appropriate or to
assume custody or control of, all or any substantial part of
the property of the Trust;
(l) if the Trust shall default in the performance
of or compliance with any term contained in the Security
Documents or if an Event of Default under and as defined in
the Company Credit Agreement shall occur and be continuing;
(m) if the Trust shall fail to obtain, renew,
maintain or comply with all such government approvals as
shall now or hereafter be necessary or, in the opinion of
special counsel to the Banks, desirable (i) for the
execution, delivery or performance by the Trust of its, or
the exercise by the Banks of their, rights under the Loan
Documents or (ii) for the grant by the Trust of the
assignments and security interests granted by the Security
Documents or for the validity and enforceability or for the
perfection of or the exercise by the Agent of its rights and
remedies thereunder; or any such government approval shall
be revoked, terminated, withdrawn, suspended, modified or
withheld or shall cease to be in full force and effect, and
such revocation, termination, withdrawal, suspension,
modification, withholding or cessation may adversely affect
the Banks or the security provided to the Banks under the
Loan Documents, or any proceeding shall be commenced by or
before any governmental authority for the purpose of so
revoking, terminating, withdrawing, suspending, modifying or
withholding any such government approval and such proceeding
is not dismissed within 30 days;
(n) if, without the consent of the Majority
Banks, the Fuel Purchase Contract or any Loan Document shall
be amended, supplemented, terminated or otherwise modified
or become of no force or effect or the obligations of any
party thereto shall be modified, suspended, discharged or
terminated (in any such case, whether by the voluntary
action of any party to such Loan Document, by operation of
law, or otherwise and other than by the expiration thereof
in accordance with its terms), or the Trust shall give any
consent, waiver or approval thereunder (other than any
consent, waiver or approval which cannot adversely affect
the Banks or the security provided to the Banks under the
Loan Documents);
(o) if the Agent and the Banks shall fail to have
a valid and perfected first priority security interest,
subject to no liens prior or equal to the liens of the
Security Documents except, in the case of fuel stored in
storage fields under the control of Persons other than the
Trust, the lien for storage charges and interest thereon, to
the extent permitted by applicable law, over all the
collateral and security purported to be granted to the Agent
and the Banks pursuant to the Security Documents;
(p) if all or any material part of the property
comprising the Collateral shall have been condemned, seized
or otherwise appropriated, or custody or control of such
property shall have been assumed, by any court, government
or governmental agency of competent jurisdiction, and such
property shall have been retained for a period of 30 days;
(q) if by reason of the transactions contemplated
by the Loan Documents, the Trust, the Trustee, the Agent or
any Bank becomes, or is declared by the SEC to be, or with
the passage of a specific period of time would become, a
"public utility company" as defined in the Public Utility
Holding Company Act of 1935, as amended, or any successor
provisions thereto, or the Trust, the Trustee, the Agent or
any Bank or the beneficiaries of the Trust, or any partner,
officer or employee of any of them, shall become, or with
the passage of a specific period of time would become,
subject to regulation under said Act;
(r) if by reason of the transactions contemplated
by the Loan Documents, the Trust, the Trustee, the Agent or
any Bank becomes, or is declared by the DPU or similar
agency of any other state to be, or with the passage of a
specific period of time would become, a "gas company" as
defined in Chapter 164 of the Massachusetts General Laws, or
the equivalent as defined under the law of any other state,
or the Trust, the Trustee, the Agent or any Bank, shall
become, or with the passage of a specific period of time
would become, subject to regulation as public utilities
and/or public service corporations under the laws of any
state, unless in any such case within 10 days thereof the
Company shall have obtained a stay, and such stay shall
remain in full force and effect, or taken other action which
eliminates the adverse consequences of the event or
declaration giving rise to any of the foregoing;
(s) if by reason of the transactions contemplated
by the Loan Documents, the Trust, the Trustee, the Agent or
any Bank becomes, or is declared by the Department of Energy
or FERC to be, or with the passage of a specific period of
time would become, a "public utility" as defined in the
Federal Power Act, as amended, or a "natural gas company" as
defined in the Natural Gas Act, as amended, or the Trust,
the beneficiaries of the Trust, the Trustee, the Agent or
any Bank, or any partner, officer or employee of any of them
shall be, or with the passage of a specified period of time
would become, subject to regulation under either or both of
said Acts, unless in any such case within 10 days thereof
the Company shall have obtained a stay, and such stay shall
remain in full force and effect, or taken other action which
eliminates the adverse consequences of the event or
declaration giving rise to any of the foregoing; or
(t) if any judicial decision, law or regulation
or interpretation of any judicial decision, law or
regulation shall be adopted or enforced by any court or
governmental or regulatory authority (including, without
limitation, the DPU or similar agency of any other state,
the SEC, the Department of Energy and FERC),and as a result
of such adoption or enforcement any Loan Document or any
transaction contemplated thereby shall be or become, or with
the passage of a specific period of time would become,
unlawful or the performance of any Loan Document or any
material term thereof shall be rendered impracticable,
unlawful or unenforceable unless within 10 days thereof the
Company shall have obtained a stay of such action, and such
stay shall remain in full force and effect, or taken other
such action which eliminates the adverse consequences of
such action;
then and in any such event (unless all Defaults and Events
of Default shall theretofore have been remedied) the Agent
may and, upon the written, telecopied or telephonic
(confirmed in writing) request of the Majority Banks shall
by notice to the Trust declare: (i) the obligation of each
Bank to make Advances to the Trust to be terminated,
whereupon the same shall terminate, and/or (ii) the Advances
to the Trust, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and
payable, whereupon such Advances, all such interest and all
such amounts shall become and be forthwith due and payable
without presentment, demand, protest or notice, all of which
are hereby expressly waived by the Trust. Notwithstanding
the foregoing, upon any Event of Default contemplated by
subsections (g), (h) or (i) above, all amounts specified in
clause (ii) above shall become immediately due and payable
automatically without any requirement of notice from the
Agent or any Bank.
14. NOTICE AND WAIVERS OF DEFAULT.
14.1. Notice of Default. If any Person shall give
any notice or take any other action in respect of a claimed
Default (whether or not constituting an Event of Default)
under this Agreement or any other note, evidence of
indebtedness, indenture or other obligation as to which the
Company, any of its Subsidiaries or the Trust is a party, or
obligor, whether as principal or surety, the Trust shall
forthwith give written notice thereof to each of the Banks,
describing the notice or action and the nature of the
claimed Default.
14.2. Waivers of Default. Any Default or Event of
Default may be waived as provided in 25 hereof. Any
Default or Event of Default so waived shall be deemed to
have been cured and to be not continuing; but no such waiver
shall extend to or affect any subsequent like default or
impair any rights arising therefrom.
15. REMEDIES ON DEFAULT, ETC.
15.1. Rights of Banks. In case any one or more of
the Events of Default specified in 13 shall have occurred
and be continuing, and whether or not all amounts owing with
respect to the Advances have been declared due and payable
pursuant to 13, (i) each Bank, if owed any amount with
respect to such Advances, may proceed to protect and enforce
its rights by suit in equity, action at law and/or other
appropriate proceeding, whether for the specific performance
of any covenant or agreement contained in this Agreement,
including the obtaining of the ex parte appointment of a
receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the Bank;
and (ii) to the extent any Bank holds Advances (excluding
Competitive Bid Advances) exceeding in the aggregate
principal amount such Bank's Commitment Percentage of the
then outstanding aggregate principal amount of all such
Advances held by all the Banks, the other Banks shall
purchase such participations in such Bank's Advances so as
to result in the outstanding aggregate principal amount of
such Advances held by each Bank to equal each such Bank's
Commitment Percentage of the then outstanding aggregate
principal amount of all such Advances. The Trust hereby
agrees that any Bank so purchasing a participation from
another Bank pursuant to this 15.1 may, to the fullest
extent permitted by law, exercise all its right of payment
(including the right of set-off) with respect to such
participation as fully as if such Bank were the direct
creditor of the Trust in the amount of such participation.
15.2. Setoff. Upon the occurrence and during the
continuance of any Event of Default, each Bank is hereby
authorized at any time and from time to time, without notice
(any such notice being expressly waived hereby) and to the
fullest extent permitted by law, to set off and apply any
and all deposits (general or specific, time or demand,
provisional or final, and in whatever currency denominated)
at any time held or other sums credited by or due from such
Bank to the Trust against any and all liabilities, direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter arising of the Trust to such Bank.
Each of the Banks agrees with the other Banks that (i) if an
amount to be set off is to be applied to Indebtedness of the
Trust to a Bank, other than the Advances held by all of the
Banks, such amount shall be applied ratably to such other
Indebtedness and to the Advances and (ii) if a Bank shall
receive from the Trust any payment whether by voluntary
payment, exercise of the right of setoff, counterclaim,
cross action, enforcement of the Advances held by a Bank by
proceedings against the Trust at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, any such
payment received under this 15.2 shall be shared in
proportion to each Bank's Commitment Percentage.
16. THE AGENT. (a) Each Bank by its own execution of
this Agreement does hereby appoint, and consent to the
appointment of, the Agent as agent for the ratable benefit
of the Banks hereunder. The Agent is authorized to take
such action on behalf of each of the Banks and to exercise
all such powers as are hereunder and in related documents
delegated to the Agent, together with such powers as are
reasonably incidental thereto.
(b) The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties
under this Agreement. The Agent may utilize the services of
such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses
of any such Persons shall be paid by the Trust.
(c) Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other
Person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder, or in connection
herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment
whatsoever, except that the Agent or such other Person, as
the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
(d) The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement,
or any instrument at any time constituting, or intended to
constitute, collateral security for the Advances, or for the
value of any such collateral security or for the validity,
enforceability or collectibility of any such amounts owing
with respect to the Advances, or for any recitals or
statements, warranties or representations herein or made in
any certificate or instrument hereafter furnished to it by
or on behalf of the Trust or any beneficiary of the Trust or
be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or
agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security
for the Advances. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to
it by the Trust or any holder of any of the Advances shall
have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does
it assume any liability to the Banks with respect to the
creditworthiness or financial condition of the Trust and
each Bank represents and warrants to the Agent that it has
made its own independent evaluation of the creditworthiness
of the Trust and has not relied upon the Agent or any
material or information furnished by the Agent in making
such evaluation.
(e) If in the opinion of the Agent the
distribution of any amount received by it in such capacity
hereunder might involve it in liability, it may refrain from
making distribution until its right to make distribution
shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the
Agent its proportionate share of the amount so adjudged to
be repaid or shall pay over the same in such manner and to
such Persons as shall be determined by such court. With
respect to obligations of the Trust hereunder, a payment to
the Agent shall be deemed to be a payment to the Banks.
(f) The Agent may deem and treat the payee of any
Note as the absolute owner thereof for all purposes hereof
until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder.
(g) In its individual capacity, Fleet National
Bank shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the
Advances made by it hereunder, as it would have were it not
also the Agent.
16A. THE CO-AGENT. Notwithstanding anything to
the contrary set forth herein, the Co-Agent shall be deemed
to be the agent of the Banks in name only, and the Co-Agent
shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than (a)
those applicable to all Banks as such or (b) those otherwise
applicable to The Bank of New York in its individual
capacity. Each Bank acknowledges that it has not relied,
and will not rely, on the Co-Agent in deciding to enter into
this Agreement or in taking or not taking action hereunder.
17. CONSENT TO JURISDICTION.
(a) The Trust hereby irrevocably submits to the
jurisdiction of any Massachusetts State or Federal court
sitting in Boston over any action or proceeding arising out
of or relating to this Agreement or any Note issued by the
Trust, and the Trust hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard
and determined in such Massachusetts State or Federal Court.
Service of process may be made to the Trust by mailing or
delivering a copy of such process to the Trust at the
Trust's address as specified in 21 hereof. The Trust
agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Nothing in this 17 shall affect the right of
any Bank to serve legal process in any other manner
permitted by law or affect the right of any Bank to bring
any action or proceeding against the Trust or its property
in the courts of any other jurisdictions.
18. BINDING EFFECT AND ASSIGNMENT. This Agreement
shall become effective when it shall have been executed by
the Trust, the Agent and each Bank and shall be binding upon
and inure to the benefit of the Trust, the Agent and each
Bank and their respective successors and assigns, except
that the Trust shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Banks. Any Bank or subsequent assignee of
any Bank may with the written consent of the Trust (which
consent shall not be unreasonably withheld so long as the
assignment, if the Trust so requests, has first been offered
to one or more of the other Banks) and the Agent assign,
pursuant to documentation satisfactory to the Agent and its
counsel, to any financial institution (an "Assignee") all or
any part of such Bank's or Assignee's obligations, rights
and benefits hereunder and to the extent of such assignment
any such Assignee shall have the same obligations, rights
and benefits with respect to the Trust or any of them, as
the case may be, as it would have had if it were a Bank
hereunder; provided, that each such assignment shall be in a
minimum amount of $5,000,000 and, provided further, that no
such assignment shall become effective unless the assigning
bank shall have paid a $3,500 assignment fee to the Agent in
consideration of the Agent's recordation of such assignment.
Notwithstanding anything in this 18 to the contrary, each
Bank shall be permitted to assign any or all of its rights
hereunder to any of its "bank" affiliates or to any of the
twelve (12) Federal Reserve Banks organized under 4 of the
Federal Reserve Act 12 U.S.C. 341, without the prior
written consent of the Trust or the Agent, provided that
such "bank" affiliate shall have total capital of not less
than $100,000,000. If any assignee Bank is not incorporated
under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest
or fees are payable hereunder or under any of the other Loan
Documents for its account, deliver to the Trust and the
Agent a certification as to its exemption from deduction or
withholding of any United States Federal income taxes.
19. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same
agreement.
20. SURVIVAL OF COVENANTS, ETC. All covenants,
agreements, representations and warranties made herein and
in any certificates or other papers delivered by or on
behalf of the Trust pursuant hereto are material and shall
be deemed to have been relied upon by the Banks,
notwithstanding any investigation heretofore or hereafter
made by it, and shall survive the making by the Banks of the
Advances, as herein contemplated and shall continue in full
force and effect so long as any Commitment remains
outstanding or as long as any Advances or other amount due
under this Agreement or the Notes remain outstanding and
unpaid. All statements contained in any certificate or
other paper delivered to the Banks at any time by or on
behalf of the Trust pursuant hereto or in connection with
the transaction contemplated hereby shall constitute
representations and warranties by the Trust hereunder.
21. NOTICE, ETC. Except as otherwise specified
herein, all notices and other communications made or
required to be given pursuant to this Agreement shall be in
writing and shall be either delivered by hand or mailed by
United States of America first-class mail, postage prepaid,
or sent by telecopier confirmed by letter, addressed as
follows:
(a) If to the Trust, at State Street Bank and
Trust Company, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx, Attn: Officer in Charge-Corporate Trust
Department or at such other address for notice as the Trust
shall last have furnished in writing to the Person giving
the notice; with a copy to:
Xxxxxxx Xxxxxx, Esq.
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
(b) if to the Agent, at Fleet National Bank, Xxx
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xxxxxx
X. Xxxx, Vice President, National Utilities Group, Telecopy:
(000) 000-0000, or such other address for notice as the
Agent shall last have furnished in writing to the Person
giving the notice; with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx & Hannah LLP
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
(c) if to any Bank, at the address set forth for
such Bank on the signature page hereof, or such other
address for notice as the Bank shall last have furnished in
writing to the Person giving the notice.
All such notices and communication shall, when mailed,
telexed, telecopied or cabled, be effective when deposited
in the mails or delivered to the telex, telecopy or cable
system, respectively.
22. GOVERNING LAW. This Agreement shall be deemed to
be a contract under the laws of the Commonwealth of
Massachusetts and shall for all purposes be construed in
accordance with and governed by the laws of said
Commonwealth, without regard to principles of conflicts of
law.
23. MISCELLANEOUS. The rights and remedies herein
expressed are cumulative and not exclusive of any other
rights which any Bank would otherwise have. Any instruments
required by any of the provisions hereof to be in the form
annexed hereto as an exhibit shall be substantially in such
form with such changes therefrom, if any, as may be approved
by the Banks and the Trust. The captions in this Agreement
are for convenience of reference only and shall not define
or limit the provisions hereof. This Agreement or any
amendment may be executed in separate counterparts, each of
which when so executed and delivered shall be an original,
but all of which together shall constitute one instrument.
In proving this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
24. ENTIRE AGREEMENT, ETC. This Agreement and any
other documents executed in connection herewith or therewith
express the entire understanding of the parties with respect
to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, except as
provided in 25.
25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as
otherwise expressly set forth in any particular provision of
this Agreement or any of the other Loan Documents, any
consent or approval required or permitted by this Agreement
or any of the other Loan Documents to be given by the Banks
may be given, and any term of this Agreement or any of the
other Loan Documents or of any other instrument related
hereto or mentioned herein may be amended, and the
performance or observance by the Trust of any term of this
Agreement or any of the other Loan Documents may be waived
(either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the
written consent of the Trust and the Majority Banks,
provided, however, that:
(a) Without the written consent of such Banks as
hold 100% of the aggregate principal amount of the Maximum
Commitment,
(i) no reduction in the principal amount of,
interest rate on, or Facility Fee or any other fee
relating to the Commitments or the Advances shall be
made;
(ii) no extension or postponement of the stated
time of payment of the principal amount of, interest
on, or Facility Fee or any other fee relating to, the
Commitments or the Advances shall be made;
(iii) no increase in the amount, or extension
of the term, of the Commitment beyond those provided
for hereunder shall be made;
(iv) no change in the definitions of the terms
"Majority Banks" or "Collateral" shall be made;
(v) no release of any of the Collateral granted
by the Trust pursuant to the Security Documents shall
be made; and
(vi) no change in the language of this 25 shall
be made.
No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of any
Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to
or demand upon the Trust shall entitle the Trust to other or
further notice or demand in similar or other circumstances.
26. PARTICIPATIONS. Any Bank may, without the consent
of any other party, sell participations to one or more banks
or other entities (each a "Participant") in all or a portion
of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and its Advances); provided that (i) such Bank's
obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the Trust, the Agent, and the Banks shall continue to
deal solely and directly with such Bank, as the case may be,
in connection with such Bank's rights and obligations under
this Agreement and (iv) each participation shall be in a
minimum amount of $5,000,000. No Bank shall grant any
Participant the right to vote or otherwise act in respect to
any matter related to this Agreement except that such rights
may be granted with respect to amendments or waivers related
to the reduction of principal or the reduction of the rate
of interest or a change in Facility Fees or the postponement
of the date fixed for any payment of principal or interest,
if such right to vote or otherwise act with respect to such
amendments or waivers is provided for by the terms of the
agreement governing such participation interest; provided,
however, that the Trust shall not be obligated to
communicate directly or indirectly with any Participant with
respect to this Agreement or the transactions contemplated
hereby.
27. EXPENSES; INDEMNIFICATION. Whether or not the
transactions contemplated hereby shall be consummated, the
Trust will pay (a) the reasonable cost of (i) reproducing
this Agreement and other instruments mentioned herein and
(ii) any taxes payable by any Bank (including any interest
and penalties in respect thereof but other than taxes based
upon such Bank's net income or profits) and any filing fees
payable by the Agent, on or with respect to the transactions
contemplated by this Agreement (the Trust hereby agreeing to
indemnify each Bank with respect thereto); (b) the
reasonable fees, expenses and disbursements of the Agent's
special counsel (Xxxxxx & Hannah LLP) incurred in connection
with the preparation of this Agreement and other instruments
mentioned herein, each closing hereunder, amendments,
modifications, approvals, consents or waivers hereto or
hereunder, (c) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and costs) incurred by
Fleet National Bank in connection with the syndication of
the loan and by the Banks in connection with (i) the
enforcement of this Agreement, the Notes and the other Loan
Documents against the Trust or the administration thereof
after the occurrence of an Event of Default and (ii) in
connection with any litigation, proceeding or dispute
whether arising hereunder or otherwise, in any way related
to any Bank's relationship with the Trust hereunder.
The Trust further agrees to indemnify and hold harmless
any Bank as well as each Bank's shareholders, directors,
agents, officers, subsidiaries and affiliates ("Indemnified
Parties") from and against all claims, actions or causes of
action ("Claims") (including without limitation all damages,
losses, settlement payments, liabilities, reasonable costs
and expenses related to any such Claims), incurred,
suffered, sustained or required to be paid by an Indemnified
Party by reason of or resulting from the transactions
contemplated hereby, except any of the foregoing which
result from gross negligence or willful misconduct of the
Indemnified Party; provided, that each Bank agrees not to
settle any litigation in connection with any claim or
liability with respect to which such Bank may seek
indemnification hereunder without the prior written consent
of the Trust, which consent shall not be unreasonably
withheld. In any investigation, proceeding or litigation,
or the preparation therefor, the Banks shall be entitled to
select their own counsel and, in addition to the foregoing
indemnity, the Trust agrees to pay promptly the reasonable
fees and expenses of such counsel, provided, however, that
the Trust shall be required to bear the expense of only one
counsel for all of the Banks unless (i) in the written
opinion of counsel to the Agent, use of only one counsel
could reasonably be expected to give rise to a conflict of
interest or (ii) the Trust authorizes any Bank to employ
separate counsel (including the in-house counsel of the
applicable Bank) at its expense. The covenants of this 27
shall survive payment or satisfaction of payment of amounts
owing with respect to the Notes.
28. CLAIMS AGAINST THE TRUSTEE. The Banks and the
Agent each acknowledge that if it should have any monetary
claim against the Trustee by reason of the transactions
contemplated hereby, such Bank shall look only to the Trust
Estate for payment or satisfaction thereof, except in the
case of gross negligence or willful misconduct on the part
of the Trustee.
29. HEADINGS. Headings of the sections have been
inserted as a matter of convenience only and shall not
control or affect the meaning or construction of any of the
terms and provisions hereof.
30. WAIVER OF JURY TRIAL. THE TRUST HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF WHICH RIGHTS AND OBLIGATIONS. EXCEPT AS
PROHIBITED BY LAW AND EXCEPT IN THE CASE OF GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, THE TRUST HEREBY WAIVES ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO
IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. THE TRUST (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE
AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
BANK OR THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES
THAT THE AGENT AND THE BANKS HAVE ENTERED INTO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS TO WHICH THE TRUST IS A
PARTY IN RELIANCE ON, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
[remainder of page intentionally left blank]
Signed, sealed and delivered, as of the date set forth
at the beginning of this Agreement, by the Trust and each of
the Banks.
THE TRUST:
MASSACHUSETTS FUEL INVENTORY
TRUST
By State Street Bank and Trust
Company, not in its individual
capacity but solely as
successor Trustee of the
Massachusetts Fuel Inventory
Trust under the Trust Agreement
dated as of June 22, 1990 as
amended and in effect on the
date hereof, between it and the
Trustor and the Beneficiary
named therein
[Seal] By: s/Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
Attest:
THE BANKS:
THE BANK OF NEW YORK
By: s/Xxxx X. Xxxx
Title: Vice President
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
UNION BANK OF CALIFORNIA, N.A.
By: s/Xxxxxxx X. Xxxxxxx
Title: Vice President
Union Bank of California, N.A.
000 X. Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
CORESTATES BANK, N.A.
By: s/Xxxx Xxxxxxx
Title: Vice President
CoreStates Bank, N.A.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
FIRST UNION NATIONAL BANK
By: s/Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
First Union National Bank
000 X. Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxx, XX 00000
Attention: Legal Division
FLEET NATIONAL BANK
By: s/Xxxxxx X. Xxxx
Title: Vice President
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx,
Vice President
THE CO-AGENT:
THE BANK OF NEW YORK
By: s/Xxxx X. Xxxx
Title: Vice President
The Bank of New York
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
THE AGENT:
FLEET NATIONAL BANK, as Agent
By: s/Xxxxxx X. Xxxx
Title: Vice President
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx,
Vice President
EXHIBIT A-1
REVOLVING CREDIT NOTE
[$________] September ___, 1997
FOR VALUE RECEIVED, the undersigned Massachusetts Fuel
Inventory Trust, a Massachusetts trust (the "Borrower"),
hereby absolutely and unconditionally promises to pay to the
order of [ ] (the "Bank") at
the head office of Fleet National Bank, as Agent (the
"Agent"), at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000:
(a) on , 1998, the principal amount of
[____________ ($_________)] or, if less, the aggregate
unpaid principal amount of Advances made by the Bank to
the Borrower pursuant to the Credit Agreement (as
hereinafter defined); and
(b) interest on the principal from time to time
outstanding from the date hereof through and including
the date on which such principal amount is paid in
full, at the times and at the rates provided in the
Revolving Credit Agreement dated as of September ___,
1997, as amended or supplemented from time to time (the
"Credit Agreement"), by and among the Massachusetts
Fuel Inventory Trust, the Bank and such other banks or
financial institutions that are or may become parties
to the Credit Agreement from time to time in accordance
with the provisions thereof (the Bank and such other
banks being collectively referred to as the "Banks")
and the Agent, as agent for the Banks.
This Note evidences borrowings under, is subject to the
terms and conditions of, and has been issued by the Borrower
in accordance with the terms of the Credit Agreement, and is
one of the Revolving Credit Notes referred to therein. The
Bank and any holder hereof is entitled to the benefits of
the Credit Agreement and may enforce the agreements of the
Borrower contained therein, and any holder hereof may
exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance
with the respective terms thereof. All capitalized terms
used in this Note and not otherwise defined herein shall
have the same meanings herein as in the Credit Agreement.
The Bank shall, and is hereby irrevocably authorized by
the Borrower to, endorse on the schedule attached to this
Note or a continuation of such schedule attached hereto and
made a part hereof, an appropriate notation evidencing
advances and repayments of principal of this Note, provided
that failure by the Bank to make any such notations shall
not affect any of the Borrower's obligations or the validity
of any repayments made by the Borrower in respect of this
Note.
The Borrower has the right in certain circumstances and
the obligation under certain other circumstances to prepay
the whole or part of the principal of this Note on the terms
and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall
occur, the entire unpaid principal amount of this Note and
all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect
provided in the Credit Agreement.
The Borrower and every endorser and guarantor of this
Note or the obligation represented hereby waive presentment,
demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension
or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of
collateral and to the addition or release of any other party
or person primarily or secondarily liable.
This Note shall be deemed to take effect as a sealed
instrument under the laws of the Commonwealth of
Massachusetts and for all purposes shall be construed in
accordance with such laws.
IN WITNESS WHEREOF, Massachusetts Fuel Inventory Trust
has caused this Note to be signed by its duly authorized
officer as of the day and year first above written.
MASSACHUSETTS FUEL INVENTORY
TRUST
By:
Title:
Amount of
Principal Balance of
Amount of Paid or Principal Notation
Date Loan Prepaid Unpaid Made By
EXHIBIT A-2
COMPETITIVE BID NOTE
[$ ] [ , 199 ]
FOR VALUE RECEIVED, the undersigned, Massachusetts Fuel
Inventory Trust, a Massachusetts trust (the "Borrower"),
hereby promises to pay to the order of [_______________]
(the "Bank"), at the office of Fleet National Bank, as Agent
(the "Agent") at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, on [ , 199 ], pursuant to 3 of the Credit
Agreement dated as of September __, 1997, as amended, among
the Borrower, the Banks named therein and the Agent (the
"Credit Agreement"), the principal sum of ______________
Dollars ($ ) [and to pay interest on the unpaid
principal amount outstanding from time to time at the rate
of % per annum, payable on the last day of and on the
Maturity Date, at said office, in lawful money of the United
States of America in immediately available funds.
The Borrower promises to pay interest, on demand, on
any overdue principal and, to the extent permitted by law,
overdue interest at a rate or rates determined as set forth
in the Credit Agreement.
This Competitive Bid Note evidences borrowings under,
is subject to the terms and conditions of, and has been
issued by the Borrower in accordance with the terms of the
Credit Agreement, and is one of the Competitive Bid Notes
referred to therein. The Bank and any holder hereof is
entitled to the benefits of the Credit Agreement and may
enforce the agreements of the Borrower contained therein,
and any holder hereof may exercise the respective remedies
provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Competitive Bid
Note and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.
The Borrower has the right in certain circumstances and
the obligation under certain other circumstances to prepay
the whole or part of the principal of this Competitive Bid
Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall
occur, the entire unpaid principal amount of this
Competitive Bid Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the
manner and with the effect provided in the Credit Agreement.
The Borrower and every endorser and guarantor of this
Competitive Bid Note or the obligation represented hereby
waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this
Competitive Bid Note, assent to any extension or
postponement of the time of payment or any other indulgence,
to any substitution, exchange or release of collateral and
to the addition or release of any other party or person
primarily or secondarily liable.
This Competitive Bid Note shall be deemed to take
effect as a sealed instrument under the laws of the
Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IN WITNESS WHEREOF, Borrower has caused this
Competitive Bid Note to be signed by its duly authorized
officer as of the day and year first above written.
MASSACHUSETTS FUEL INVENTORY TRUST
By:
Title:
EXHIBIT B
NOTICE OF BORROWING
FLEET NATIONAL BANK
As Agent for the Banks which are parties
to the Revolving Credit Agreement
referred to below
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Vice President, National Utilities Group
Ladies and Gentlemen:
The undersigned Massachusetts Fuel Inventory Trust (the
"Borrower") refers to the Revolving Credit Agreement, dated
as of September __, 1997 (the "Credit Agreement", the terms
defined therein being used herein as therein defined), among
the Borrower, certain Banks parties thereto, and FLEET
NATIONAL BANK, as Agent for said Banks, and hereby gives you
notice pursuant to 2.2 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed
Borrowing") as required by 2.2 of the Credit Agreement:
(i) The requested Business Day of the Proposed
Borrowing is , 19 ;
(ii) The requested Type of Advances comprising the
Proposed Borrowing is [Base Rate Advances] [Eurodollar
Advances];
(iii) [In the case of Eurodollar Advances:] such
Advances shall have a [one (1) month], [two (2) months],
[three (3) months], [six (6) months], initial Interest
Period therefor;] and
(iv) The aggregate amount of the Proposed Borrowing is
[$ ].
Very truly yours,
MASSACHUSETTS FUEL INVENTORY
TRUST
By
Title:
EXHIBIT C
FORM OF COMPETITIVE BID QUOTE REQUEST
[Date]
To: Fleet National Bank, as Agent (the "Agent")
From: Massachusetts Fuel Inventory Trust (the
"Borrower")
Re: Revolving Credit Agreement (the "Credit Agreement")
dated as of September __, 1997 among Massachusetts
Fuel Inventory Trust, the Banks party thereto and the
Agent.
We hereby give notice pursuant to 3.1(b) of the Credit
Agreement that we request Competitive Bid Quotes for the
following proposed Competitive Bid Borrowing(s):
Date of Borrowing:
Principal Amount* Interest Period** Maturity Date
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Terms used herein have the meanings assigned to them in
the Credit Agreement.
MASSACHUSETTS FUEL INVENTORY
TRUST
By
Title:
* Amount must be a minimum of $2,500,000 or any larger
multiple of $1,000.
** 7 to 180 days, subject to the provisions of the
definition of Interest Period.
EXHIBIT D
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
Massachusetts Fuel Inventory Trust (the "Borrower")
Pursuant to 3.1(c) of the Revolving Credit Agreement
(the "Credit Agreement") dated as of September __, 1997
among Massachusetts Fuel Inventory Trust, the Banks parties
thereto and Fleet National Bank, as Agent, we are pleased on
behalf of the Borrower to invite you to submit Competitive
Bid Quotes to the Borrower for the following proposed
Competitive Bid Borrowing(s):
Date of Borrowing:
Principal Amount Interest Period Maturity Date
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Please respond to this invitation by no later than
* a.m. (Boston time) on [date].
FLEET NATIONAL BANK, as
Agent
By:
Authorized Officer
* The time specified in Section 3.1(d)(i) of the Credit
Agreement.
EXHIBIT E
FORM OF COMPETITIVE BID QUOTE
FLEET NATIONAL BANK, as Agent
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Re: Competitive Bid Quote to Massachusetts Fuel Inventory
Trust (the "Borrower")
In response to your invitation on behalf of the
Borrower dated , 19 , we hereby make
the following Competitive Bid Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing: *
4. We hereby offer to make Competitive Bid Advance(s) in
the following principal amounts, for the following
Interest Periods and at the following rates:
Principal Interest Competitive Bid Maturity
Amount** Period*** Rate**** Date
$
$
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable
conditions set forth in the Revolving Credit Agreement dated
___________________________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Bids must be made
for $2,500,000 or any larger multiple of $500,000.
*** 7 to 180 days, as specified in the related Invitation.
**** Specify rate of interest per annum (each rounded to the
nearest 1/10,000th of 1%).
as of September __, 1997 among Massachusetts Fuel Inventory
Trust, the Banks, the parties thereto, and Fleet National
Bank, as Agent, irrevocably obligates us to make the
Competitive Bid Advance(s) for which any offer(s) are
accepted in whole or in part by the Borrower.
Very truly yours,
[NAME OF BANK]
Dated: By:
Authorized Officer
EXHIBIT F
[BORROWERS' COUNSEL LETTERHEAD]
____________, 1997
To: The Banks party to the credit agreements
referred to below (the "Credit Agreements")
and Fleet National Bank, as Agent for such Banks
Ladies & Gentlemen:
We have acted as counsel to Colonial Gas Company (the
"Utility"), a corporation organized under the laws of The
Commonwealth of Massachusetts, and Massachusetts Fuel
Inventory Trust (the "Trust"), a trust organized under the
laws of The Commonwealth of Massachusetts, in connection
with the preparation, execution and delivery of the
following documents and the transactions contemplated
thereby:
(i) The Trust Agreement dated as of June 26, 1990
(the "Trust Agreement") between State Street Bank and
Trust Company, as successor trustee, and the Utility.
(ii) The Revolving Credit Agreement dated as of
September __, 1997 (the "Trust Credit Agreement"), by
and among the Trust, The Bank of New York, Union Bank
of California, N.A., CoreStates Bank, N.A., First Union
National Bank and Fleet National Bank (the "Banks") and
Fleet National Bank as Agent for the Banks (the
"Agent") and The Bank of New York as Co-Agent for the
Banks;
(iii) The Revolving Credit Agreement dated as
of September , 1997 (the "Company Credit
Agreement") by and among the Utility, the Banks and the
Agent;
(iv) The Security Agreement and Assignment of
Contracts dated as of September __, 1997 (the "Security
Agreement"), between the Trustee and the Agent.
(v) The Purchase Contract dated as of June 26,
1990 (the "Purchase Contract") between the Trust and
the Utility.
(vi) The Consent and Agreement dated as of
September __, 1997 (the "Consent"), by the Utility.
(vii) The Notes dated the date hereof (the
"Notes"), executed by the Utility or the Trust under
the Respective Credit Agreements and each payable to
the order of one of the Banks.
This opinion is given pursuant to 6.1(c)(i) of the
Company Credit Agreement. Except as otherwise defined
herein, all terms defined in the Trust Credit Agreement
shall have the respective meanings ascribed to them therein.
In connection with our preparation of this opinion, we
have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of
the Loan Documents, the charter documents and by-laws of the
Utility, resolutions of the Board of Directors of the
Utility (certified copies of which have been furnished to
you), the Trust Agreement and such other documents as we
have deemed necessary in connection with the opinions
hereinafter set forth. We have relied as to various
questions of fact upon the representations and warranties of
the Utility contained in the above-mentioned documents and
the certificates of public officials and officers of the
Utility delivered thereunder.
We have assumed due authorization and execution of all
agreements referred to herein by the parties thereto other
than the Utility and the Trust. We have also assumed the
genuineness of all signatures (other than those on behalf of
the Utility and the Trust), the conformity to the originals
of all documents reviewed by us as copies, and the
authenticity and completeness of all original documents
reviewed by us in original or copy form.
Our opinions expressed in paragraphs 5 and 11 hereof
are qualified by the fact that if the Agent or one or more
of the Banks should acquire gas which is part of the
Collateral (as defined in the Security Agreement) by
foreclosure or otherwise and intends to dispose of such gas
in The Commonwealth of Massachusetts, any contract or
contracts for the sale of such gas might have to be filed
and might be subject to action by the DPU relative to the
rates, prices, charges and practices covered by such
contract. Additionally, if such Collateral should be
purchased by a Massachusetts gas company under a contract
covering a period in excess of more than one year, either
DPU approval or a provision in the contract subjecting the
price of the Collateral to future DPU review will be
required.
Based upon the foregoing, and subject to the
limitations and qualifications set forth below, we are of
the opinion that:
1. The Utility is a corporation duly organized,
validly existing and in good standing under the laws of The
Commonwealth of Massachusetts; has not failed to qualify to
transact business in any jurisdiction where failure to
qualify would materially adversely affect its ability to
perform its obligations under any of the Loan Documents to
which it is a party; and has corporate power to execute and
deliver each of the Loan Documents to which it is a party
and to incur and perform its obligations thereunder.
2. The making and performance by the Utility of each
of the Loan Documents to which it is a party have been duly
authorized by all necessary corporate action and do not and
will not violate any provision of law or of its charter or
by-laws or result in the breach of or constitute a default
under or require any consent under any indenture or other
agreement or instrument of which we are aware (after having
made a reasonable investigation with respect thereto) to
which the Utility is a party or by which the Utility or its
properties and assets may be bound or affected.
3. Except for matters described or referred to in
Schedule 8.7 of the Colonial Credit Agreement or Schedule
9.7 of the Trust Credit Agreement, there are no actions,
suits or proceedings at law or in equity by or before any
governmental agency or authority or arbitrator now pending
or, to the best of our knowledge (after having made a
reasonable investigation with respect thereto), threatened
against or affecting the Utility or the Trust which, if
adversely determined, could materially adversely affect the
obligations of the Utility or the Trust to carry out the
transactions contemplated by the Loan Documents. In
rendering the opinion expressed in this paragraph 3, with
your permission we have made no independent review of any
court's docket.
4. Each Loan Document to which the Utility is a party
constitutes a legal, valid and binding obligation of the
Utility, enforceable against the Utility in accordance with
its terms subject, as to enforceability, to applicable
bankruptcy, insolvency, moratorium and other similar laws
affecting creditors rights generally and to general
principals of equity.
5. No government approval is required for the due
execution, delivery and performance by the Utility and the
Trust of their respective obligations, and the exercise of
their respective rights, under the Loan Documents or for the
grant by the Utility and the Trust of the security interests
and assignments granted by the Loan Documents or for the
validity and enforceability thereof or for the perfection or
the exercise by the Agent of its rights and remedies
thereunder except the order of the DPU dated June , 1990,
which order has been duly obtained. There is no proceeding
pending, or to the best of our knowledge (after having made
a reasonable investigation with respect thereto) threatened,
which seeks, or may reasonably be expected, to rescind,
terminate, modify or suspend the aforesaid order.
6. The security interest granted to you under the
Security Agreement in the Collateral, as defined therein,
has been duly created with respect to those items and types
of Collateral in which a security interest may be created
under Article 9 of the Uniform Commercial Code of those
jurisdictions in which the Collateral is located (in each
case, the "UCC"), and financing statements relating to such
security interest have been duly filed pursuant to the UCC
with the Massachusetts Secretary of State and the Boston
City Clerk; the New York Department of State and the
Allegheny County Registry of Deeds; the Pennsylvania
Secretary of State and the Potter County Prothonotary; and
the West Virginia Secretary of State and the ________ County
Clerk, which are the only actions necessary to perfect such
security interest in the right, title and interest of the
Trust in those items and types of Collateral in which a
security interest may be perfected by filing a financing
statement under the UCC. We call your attention, however,
to the necessity of filing continuation statements or
amendments from time to time or under certain circumstances
under the applicable provisions of the UCC in order to
maintain such perfection. At the time of a search made
within ( ) days of the date hereof in the
offices of [recite locations searched], the Collateral was
subject to no liens or security interests properly recorded
or filed in such filing offices showing the Trust or the
Utility as debtor, except . Capitalized terms used in this
paragraph 6 have the meanings ascribed to them in the
Security Agreement.
7. The Trust is a trust validly existing under the
laws of The Commonwealth of Massachusetts and has the legal
capacity to enter into, and to perform its obligations
under, each of the Loan Documents to which it is or is
intended to be a party and all other instruments and
agreements to be executed and delivered by it thereunder.
8. Each of the Credit Agreement, the Security
Agreement and the Trust Agreement constitutes, and each of
the other Loan Documents to which the Trust is a party or to
which the Trust is contemplated to become a party from time
to time pursuant to the Credit Agreement, when executed and
delivered, will constitute the legal, valid and binding
obligation of the Trust, enforceable against the Trust in
accordance with its respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency,
moratorium and other similar laws affecting creditors'
rights generally and to general principals of equity.
9. All capitalized terms in this paragraph 9 have the
meanings ascribed to them in the Security Agreement. The
Storage Facility Agreements pursuant to which Fuel is or is
to be stored in facilities under the control of Persons
(other than the Utility) which have agreed with the Utility
to store such Fuel constitute legal, valid and binding
obligations of the Utility, and such Storage Facility
Agreements do not restrict the performance by the Trust or
the Utility of each Loan Document to which they are parties
or prohibit the authorization by the Utility of the Trust or
its designee to give instructions, and take other action
pursuant to such agreements, contained in 3(d) of the
Purchase Contract.
10. By reason of the transactions contemplated by the
Loan Documents, neither the Trust, the Trustee, the Agent
nor any Bank will become, or will be declared by the SEC to
be, or with the passage of a specific period of time will
become, a "public utility company" as defined in the Public
Utility Holding Company Act of 1935, as amended, or any
successor provision thereto, and neither the Trust, the
Trustee, the Agent nor any Bank or the shareholders of any
of the Trust, the Agent or any Bank, or any partner, officer
or employee of any of them, will become, or with the passage
of a specific period of time will become, subject to
regulation under said Act.
11. Under existing law neither the Trust, the Trustee,
the Agent nor any Bank will become, by reason of the
transaction contemplated by the Loan Documents, a "gas
company" as defined in section 1 of Chapter 164 of the
Massachusetts General Laws as now in effect, nor will any of
them or the shareholders of any of them become subject to
regulation under the laws of the Commonwealth of
Massachusetts governing public utilities or public service
companies.
We do not herein express any opinion as to matters
governed by any laws other than the laws of The Commonwealth
of Massachusetts and the Federal Law of the United States.
To the extent the laws of the State of New York, the
Commonwealth of Pennsylvania and the State of Rhode Island
are relevant to our opinions herein expressed, we have
relied on the following opinions rendered to us of even date
herewith, a copy of which has been furnished to you: [LIST]
With respect to the Natural Gas Act and the Federal
Power Act, we have relied on the opinion of even date
herewith of ________________
Very truly yours,
EXHIBIT G
MASSACHUSETTS FUEL INVENTORY TRUST
Compliance Certificate Under
Revolving Credit Agreement
Dated September __, 1997
On behalf of Massachusetts Fuel Inventory Trust, a
Massachusetts Trust (the "Borrower"), the undersigned
[Insert Name], the Trustee of the Trust hereby certifies as
of the date hereof the following:
1. No Defaults. I have read a copy of the Revolving
Credit Agreement dated September __, 1997 (the "Agreement")
among the Borrower and the Banks named therein and, to the
best of my knowledge and belief, the Borrower is not in
default in the performance or observance of any of the
covenants, terms or provisions of the Agreement or the
covenants, terms or provisions of the Notes issued pursuant
thereto. [If the Borrower shall be in default, the signer
of this certificate shall specify all such Defaults and the
nature thereof, of which he or she may have knowledge.]
Attached hereto is Schedule A, on which are set forth all
relevant calculations needed to determine whether the
Borrower is in compliance with 11.8 and 11.9 of the
Agreement, which calculations are based on the financial
statements of the Borrower's most recent fiscal quarter
required to be supplied under the Agreement. I have no
knowledge of the occurrence of any event since the date of
such financial statements which would render this
Certificate incorrect as of the date hereof.
2. No Material Changes, Etc. Since [December 31,
1996] [or insert the date of the last certificate issued
pursuant to 10.3(c) of the Agreement], there have occurred
no Material Adverse Changes in the financial condition or
business of the Borrower as shown on or reflected in the
consolidated balance sheet of the Borrower as of [December
31, 1996] [or insert the date of the most recent audited
financials of the Borrower], other than changes disclosed in
writing and shown on Schedule B hereto, and changes in the
ordinary course of business which have not had any material
adverse effect on the business or financial condition of
the Borrower.
3. Litigation. Except as set forth on Schedule C
hereto, there are no actions, suits, proceedings or
investigations of any kind pending against the Borrower
before any court, tribunal or administrative agency or board
which, if adversely determined, might, either in any case or
in the aggregate, materially adversely affect the
properties, assets, financial condition or business of the
Borrower or materially impair the right of the Borrower to
carry on business substantially as now conducted, or result
in any substantial liability not adequately covered by
insurance, or which question the validity of the Agreement
or the Notes, or any action taken or to be taken pursuant
hereto or thereto.
4. No Materially Adverse Contracts, Etc. Except as
set forth on Schedule D hereto, neither the Borrower is (i)
subject to any charter, corporate or other legal restriction
or any judgment, decree, order, rule or regulation which in
the judgment of the Borrower has or is expected in the
future to have a materially adverse effect on the business,
assets or financial condition of the Borrower, or (ii) a
party to any contract or agreement which in the judgment of
the Borrower has or is expected to have any materially
adverse effect on the business of the Borrower, except as
otherwise reflected in adequate reserves.
5. Tax Status. The Borrower has made or filed all
federal and state income and, to the best of my knowledge,
all other tax returns, reports and declarations required by
any jurisdiction to which it is subject; and has paid all
taxes and other governmental assessments and charges that
are material in amount, shown or determined to be due on
such returns, reports and declarations, except those being
contested in good faith; and has set aside on its books
provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes,
except those being contested in good faith, in any material
amount claimed to be due by the taxing authority of any
jurisdiction, and I know of no basis for any such claim.
MASSACHUSETTS FUEL INVENTORY
TRUST
By
Title
EXHIBIT I
MONTHLY REPORT
MASSACHUSETTS FUEL INVENTORY TRUST (the "Trust") hereby
certifies to FLEET NATIONAL BANK (the "Bank"), pursuant to
Section 11.3(e) of the Revolving Credit Agreement dated as
of September _____, 1997 (the "Credit Agreement"), that the
Borrowing Base is as follows and that the Trust Borrowing
Base is at least equal to the amount of the Advances
requested by the Trust as of the last day of the previous
month together with all outstanding Advances to the Trust
calculated as follows:
Calculation of Borrowing Base:
1. The Cost of the Trust's inventory
of Commodities (by type) as of the
end of the calendar month preceding
the date of this
Certificate (the "Month") $_________
2. The dollar value of the Trust's
outstanding accounts receivable
at the end of the Month $_________
Total Fuel Inventory $_________
3. The locations (city/county and state) where the
Natural Gas and propane owned by the Borrowers is stored as
of the end of the Month are as follows:
Defined terms used herein without definition shall have
the meanings ascribed to such terms in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of the ______ day of ________________,
199___.
MASSACHUSETTS FUEL INVENTORY
TRUST
By State Street Bank and Trust
Company, not in its individual
capacity but solely as
successor Trustee of the
Massachusetts Fuel Inventory
Trust under the Trust Agreement
dated as of June 22, 1990 as
amended and in effect on the
date hereof, between it and the
Trustor and the Beneficiary
named therein
[Seal] By:
Title:
