File No. 70-8955
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3 to
FORM U-1
DECLARATION WITH RESPECT TO AUTHORIZATION OF
A REVOLVING CREDIT FACILITY FOR EASTERN UTILITIES ASSOCIATES
AND CERTAIN OF ITS SUBSIDIARIES
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
EASTERN UTILITIES ASSOCIATES ("EUA")
P.O. Box 2333, Boston, Massachusetts 02107
BLACKSTONE VALLEY ELECTRIC COMPANY ("BLACKSTONE")
Washington Highway, Lincoln, Rhode Island 02865
EASTERN EDISON COMPANY ("EASTERN")
110 Mulberry Street, Brockton, Massachusetts 02403
MONTAUP ELECTRIC COMPANY ("MECO")
P.O. Box 2333, Boston, Massachusetts 02107
NEWPORT ELECTRIC CORPORATION ("NEWPORT")
12 Turner Road, Middleton, Rhode Island 02840
(Names of companies filing this statement
and addresses of their principal executive offices)
EASTERN UTILITIES ASSOCIATES
(Name of top registered holding company
parent of applicant or declarant)
CLIFFORD J. HEBERT, JR., TREASURER
EASTERN UTILITIES ASSOCIATES
P.O. Box 2333, Boston, Massachusetts 02107
(Name and address of agent for service)
The Commission is requested to mail signed copies
of all orders, notices and communications to:
ARTHUR I. ANDERSON, P.C.
McDermott, Will & Emery
75 State Street
Boston, Massachusetts 02109
This Amendment No. 3 (the "Amendment") amends the Declarants'
Declaration on Form U-1 dated November 8, 1996, as amended by Amendment No.
1 dated December 2, 1996 and Amendment No. 2 dated January 29, 1997.
1. Item 2 is hereby amended and restated in its entirety to read as
follows:
ITEM 2. FEES, COMMISSIONS, AND EXPENSES.
The fees, commissions and expenses of the Declarants expected to be
paid or incurred, directly or indirectly, in connection with the
transaction described above are estimated as follows:
Company Legal Fees $ 25,000
Lenders' Legal Fees $ 75,000
Administrative and Agency Fees $ 57,500
Miscellaneous $ 10,000
TOTAL $167,500
2. Item 6 is hereby amended and restated in its entirety to read as
follows:
ITEM 6. EXHIBITS AND FINANCIAL STATEMENTS (* denotes filed herewith)
(+ Confidential treatment requested.)
(a) Exhibits.
*Exhibit B-1 Form of Revolving Credit Agreement
Exhibit B-2 Preliminary Terms and Conditions of
Facility (previously filed)
*Exhibit F Opinion of Counsel
*Exhibit H Proposed Form of Notice
(b) Financial Statements (previously filed).
+ b-1 Projected Cash Flow Statement of EUA (parent company
only) for 1997-2001
+ b-2 Projected Cash Flow Statement of Blackstone for 1997-
2001
+ b-3 Projected Cash Flow Statement of Eastern for 1997-2001
+ b-4 Projected Cash Flow Statement of Montaup for 1997-2001
+ b-5 Projected Cash Flow Statement of Newport for 1997-2001
+ b-6 Projected Cash Flow Statement of Cogenex for 1997-2001
+ b-7 Projected Cash Flow Statement of Ocean State for 1997-
2001
+ b-8 Projected Cash Flow Statement of ESC for 1997-2001
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, each of the undersigned Declarants has duly caused this statement
to be signed on its behalf by the undersigned duly authorized individual.
EASTERN UTILITIES ASSOCIATES,
BLACKSTONE VALLEY ELECTRIC COMPANY,
EASTERN EDISON COMPANY,
MONTAUP ELECTRIC COMPANY, and
NEWPORT ELECTRIC CORPORATION,
By: /s/ Clifford J. Hebert, Jr.
Clifford J. Hebert, Jr.
Treasurer
Dated: March 27, 1997
CREDIT AGREEMENT
Dated as of __________, 1997
EASTERN UTILITIES ASSOCIATES, a Massachusetts
voluntary association, BLACKSTONE VALLEY ELECTRIC COMPANY, a
Rhode Island corporation, EASTERN EDISON COMPANY, a Massachusetts
corporation, MONTAUP ELECTRIC COMPANY, a Massachusetts
corporation, NEWPORT ELECTRIC CORPORATION, a Rhode Island
corporation, EUA COGENEX CORPORATION, a Massachusetts
corporation, EUA OCEAN STATE CORPORATION, a Rhode Island
corporation, EUA SERVICE CORPORATION, a Massachusetts
corporation, the BANKS listed on the signature pages hereof, BNY
CAPITAL MARKETS, INC., as Arranger and THE BANK OF NEW YORK, as
Agent, agree as follows (with certain terms used herein being
defined in Article 11):
ARTICLE 1.
CREDIT FACILITY
Section 1.01 Commitment to Lend. (a) RC Loans.
(i) Upon the terms and subject to the conditions of this
Agreement, each Bank agrees to make, from time to time during the
period from the Agreement Date through the Termination Date, one
or more RC Loans to each of the Borrowers in an aggregate unpaid
principal amount, with respect to all of the Borrowers, not
exceeding at any time such Bank's Commitment at such time;
provided, however, that the aggregate unpaid principal amount of
all Loans shall not exceed at any time the aggregate amount of
the Commitments at such time; provided, further, however, that
the Banks shall not make RC Loans to an individual Borrower if,
after giving effect to such RC Loans, the aggregate unpaid
principal amount of all Loans to such Borrower would exceed such
Borrower's Availability.
(ii) Subject to Section 1.06 and the other terms and
conditions of this Agreement, the RC Loans may, at the option of
a Borrower, be made as, and from time to time continued as or
converted into, Base Rate or Eurodollar Rate Loans of any
permitted Type, or any combination thereof. The aggregate amount
of the Commitments on the Agreement Date is $120,000,000.
(b) Bid Rate Loans. Upon the terms and subject to the
conditions of this Agreement, in response to each request for Bid
Rate Loans by a Borrower, each Bank may, but shall not be
obligated to, submit one or more offers to make Bid Rate Loans to
such Borrower as provided in Section 1.02(b); provided, however,
that the aggregate unpaid principal amount of all Loans shall not
exceed at any time the aggregate amount of the Commitments at
such time; provided, further, however, that the Banks shall not
make Bid Rate Loans to an individual Borrower if, after giving
effect to such Bid Rate Loans, the aggregate unpaid principal
amount of all Loans to such Borrower would exceed such Borrower's
Availability.
(c) Swing Loans. (i) Upon the terms and subject to
the conditions of this Agreement, each Swing Loan Lender agrees
to make, from time to time during the period from the Agreement
Date to but excluding the Termination Date, one or more Swing
Loans to each of the Borrowers; provided that the aggregate
unpaid principal amount of all Swing Loans shall not exceed at
any time the lesser of (A) the aggregate amount of Commitments at
such time minus the aggregate unpaid principal amount of RC Loans
and Bid Rate Loans outstanding at such time and (B) $20,000,000;
provided, however, that neither Swing Loan Lender shall make
Swing Loans to an individual Borrower if, after giving effect to
such Swing Loans, the aggregate unpaid principal amount of all
Loans to such Borrower would exceed such Borrower's Availability.
(ii) All Swing Loans shall be in an amount not less
than $25,000 and shall be in an integral multiple of $10,000 and
shall be made and maintained at a rate of interest per annum
agreed upon by the Swing Loan Lender making such Swing Loan and
the applicable Borrower. The applicable Borrower shall request a
Swing Loan by giving the Agent and the applicable Swing Loan
Lender notice thereof (which shall be irrevocable) by telephone,
promptly confirmed in writing in the form of Schedule
1.01(c)(ii). All Swing Loans shall be disbursed by the Swing
Loan Lender making such Swing Loan in Dollars in funds
immediately available to the applicable Borrower by credit to an
account of such Borrower at such Swing Loan Lender's Domestic
Lending Office, or in such other manner as may have been
specified by such Borrower and as shall be acceptable to such
Swing Loan Lender, on the day requested, if such telephonic
request is received by the Agent and such Swing Loan Lender not
later than 12:00 noon (New York time) on such day, and if
received thereafter on any Business Day, on the next Business
Day. Each Swing Loan Lender shall provide prompt notice to the
Agent and the Banks of the making of any Swing Loans to a
Borrower.
(iii) If a Swing Loan Lender makes demand upon all of
the Banks, whether before or after a Default, each Bank (other
than such Swing Loan Lender) shall irrevocably and
unconditionally purchase from such Swing Loan Lender, without
recourse or warranty, an undivided interest and participation in
the Swing Loans made by such Swing Loan Lender then outstanding,
by paying to such Swing Loan Lender, without reduction or
deduction of any kind, including but not limited to reductions or
deductions for set-off, recoupment or counterclaim, in Dollars
immediately available at such Swing Loan Lender's Domestic
Lending Office, an amount equal to such Bank's Pro Rata Share of
the principal amount of all Swing Loans made by such Swing Loan
Lender then outstanding, and thereafter, except as otherwise
provided in the second succeeding sentence, the Banks' respective
interests in such Swing Loans, and the remaining interest of such
Swing Loan Lender in such Swing Loans, shall in all respects be
treated as Base Rate Loans under this Agreement, but such Swing
Loans shall continue to be evidenced by the Swing Note, and shall
continue to be due and payable by the applicable Borrower in
accordance with Section 1.04(a). If any Bank does not pay any
amount which it is required to pay after giving effect to the
provisions of Section 1.01(c)(iv) forthwith upon the demand of a
Swing Loan Lender as described above, such Swing Loan Lender
shall be entitled to recover such amount on demand from such
Bank, together with interest thereon, at the Federal Funds Rate
for the first three Business Days, and thereafter at the Base
Rate plus 2%, for each day from the date of such demand, if made
prior to 2:00 p.m. (New York time) on any Business Day, or, if
made at any other time, from the next Business Day following the
date of such demand, until the date such amount is paid to such
Swing Loan Lender by such Bank. If such Bank does not pay such
amount forthwith upon the demand of a Swing Loan Lender as
described above, and until such time as such Bank makes the
required payment, such Swing Loan Lender's remaining interest in
the applicable Swing Loan shall continue to include the amount of
such unpaid participation obligation.
(iv) No Bank shall be obligated to purchase a
participation in any Swing Loan unless (A) the applicable Swing
Loan Lender believed in good faith that the conditions specified
in Sections 2.02(b) and (c) were satisfied by the applicable
Borrower at the time such Swing Loan was made or (B) such Bank
had actual knowledge, by receipt of information furnished to it
pursuant to Section 5.01(e) hereof, or otherwise, that any such
condition had not been satisfied and failed to notify the
applicable Swing Loan Lender in a writing received by such Swing
Loan Lender one Business Day prior to the time that it made such
Swing Loan that such Swing Loan Lender was not authorized to make
such Swing Loan or (C) the satisfaction of such condition that
was not satisfied had been waived in accordance with the
provisions of this Agreement.
Section 1.02 Manner of Borrowing. (a) RC Loans.
With respect to RC Loans:
(i) The applicable Borrower shall give the Agent
notice (which shall be irrevocable) no later than 10:00 a.m. on,
in the case of Base Rate Loans, the Business Day before the
requested date for the making of such RC Loans, and, in the case
of Eurodollar Rate Loans, the third Eurodollar Business Day
before the RC Loan Date. Each such notice shall be in the form
of Schedule 1.02(a)(i) and shall specify (A) the RC Loan Date,
which shall be, in the case of Base Rate Loans, a Business Day
and, in the case of Eurodollar Rate Loans, a Eurodollar Business
Day, (B) the Type or Types of RC Loans requested and (C) the
amount of each such Type of RC Loan, the aggregate of which
amounts for all Types of Loans requested shall not be less than
the lesser of $1,000,000 and integral multiples of $250,000
thereof and the aggregate amount of the unused Commitments. Upon
receipt of any such notice, the Agent shall promptly notify each
Bank of the contents thereof and of the amount and Type of each
RC Loan to be made by such Bank on the requested date specified
therein.
(ii) Not later than 11:00 a.m. on each RC Loan Date,
each Bank shall make available to the Agent, in Dollars in funds
immediately available to the Agent at the Agent's Office, the RC
Loans to be made by such Bank on such date. Any Bank's failure
to make any RC Loan to be made by it on the RC Loan Date shall
not relieve any other Bank of its obligation to make any RC Loan
to be made by such other Bank on such RC Loan Date, but such
other Bank shall not be liable for such failure.
(iii) Unless the Agent shall have received notice from a
Bank prior to 10:00 a.m. on the RC Loan Date that such Bank will
not make available to the Agent the RC Loans requested to be made
by such Bank on such date, the Agent may assume that such Bank
has made such RC Loans available to the Agent on such date in
accordance with Section 1.02(a)(ii) and the Agent in its sole
discretion may, in reliance upon such assumption, make available
to the applicable Borrower on such date a corresponding amount on
behalf of such Bank. If and to the extent such Bank shall not
have so made available to the Agent the RC Loans requested to be
made by such Bank on such date and the Agent shall have so made
available to the applicable Borrower a corresponding amount on
behalf of such Bank, such Bank shall, on demand, pay to the Agent
such corresponding amount together with interest thereon, for
each day from the date such amount shall have been so made
available by the Agent to the applicable Borrower until the date
such amount shall have been repaid to the Agent, at the Federal
Funds Rate until (and including) the third Business Day after
demand is made and thereafter at the Base Rate plus 2%. If such
Bank does not pay such corresponding amount promptly upon the
Agent's demand therefor, the Agent shall promptly notify the
applicable Borrower and such Borrower shall immediately repay
such corresponding amount to the Agent together with accrued
interest thereon at the applicable rate or rates provided in
Section 1.03(a).
(iv) All RC Loans made available to the Agent in
accordance with Section 1.02(a)(ii) shall be disbursed by the
Agent not later than 12:00 noon on the RC Loan Date therefor in
Dollars in funds immediately available to the applicable Borrower
by credit to an account of such Borrower at the Agent's Office or
in such other manner as may have been specified in the applicable
notice and as shall be acceptable to the Agent.
(b) Bid Rate Loans. With respect to Bid Rate Loans:
(i) (A) The applicable Borrower shall give the Agent
a request for Bid Rate Loans no later than 1:00 p.m. on the
Business Day prior to the Bid Rate Loan Date.
(B) Each such request shall be submitted substantially
in the form of Schedule 1.02(b)(i) and shall specify (1) the Bid
Rate Loan Date, which shall be a Business Day, (2) the aggregate
principal amount of each of the requested Bid Rate Loans and (3)
the Interest Periods (each of which shall end on a Business Day
(x) no earlier than 7 days and no later than 180 days after the
Bid Rate Loan Date and (y) no later than the Termination Date) of
the requested Bid Rate Loans.
(C) Upon receipt of a timely request for Bid Rate
Loans on a Business Day, the Agent shall notify each Bank of the
contents thereof no later than 3:00 p.m. on such Business Day.
(ii) (A) Each Bank may, in its sole and absolute
discretion, submit one or more offers to make each Type of
requested Bid Rate Loan in response to a request for Bid Rate
Loans. Offers shall be irrevocable (but Loans to be made
pursuant thereto shall be subject to Article 2), except with the
written consent of the Agent given on the written instructions of
the applicable Borrower, and may not be modified, except to
correct a manifest error that has not been reasonably relied upon
by such Borrower.
(B) Offers shall (1) be submitted substantially in the
form of Schedule 1.02(b)(ii), (2) identify the Bank making such
offer, (3) identify the request for Bid Rate Loans to which such
offer relates, (4) specify the rate of interest per annum that
such Bank is willing to offer in response to such request, (5)
specify the principal amount, or the maximum and minimum
principal amounts, of the requested Types of Bid Rate Loans such
Bank is willing to make at such rates, which amounts, singly or
in the aggregate, may exceed such Bank's Commitment at such time
and (6) be submitted by telecopier to the Agent no later than
10:00 a.m. on the Bid Rate Loan Date, except that offers for
requested Bid Rate Loans submitted by the Agent (or any Affiliate
of the Agent), in its capacity as a Bank, may, and may only, be
submitted not later than one half hour prior to the deadline
applicable to the other Banks. No offer submitted by a Bank may
contain qualifying, conditional or similar language or contain
proposed terms other than those specified in this paragraph (B).
(C) No later than 10:30 a.m. on the Bid Rate Loan
Date, the Agent shall notify the applicable Borrower of the
contents of all offers received by the Agent prior to 10:00 a.m.
on such day from the other Banks.
(iii) (A) Not later than 11:00 a.m. on the Bid Rate
Loan Date, the applicable Borrower shall notify the Agent (which
notice shall be irrevocable except, with respect to notices that
have not yet been relied upon by any Bank, in the case of
manifest error) of the offers, if any, of which it has received
notice from the Agent that such Borrower is accepting. Each
offer that such Borrower has not notified the Agent by such time
that it is accepting shall be deemed to have been rejected. The
applicable Borrower may, in its sole discretion, accept or reject
any offer in whole or in part; provided that (A) the aggregate
principal amount of offers accepted with respect to each
requested Type of Bid Rate Loan may not exceed the principal
amount specified for such Type in the request therefor, (B) the
aggregate principal amount of any offer by any Bank accepted with
respect to a requested Type of Bid Rate Loan may not exceed the
maximum, nor be less than the minimum, aggregate principal amount
thereof specified in such Bank's offer with respect to such Type
of Bid Rate Loan and (C) subject to clauses (A) and (B) above,
offers may be accepted only on the basis of ascending rates of
interest. If offers with identical rates of interest are made by
two or more Banks with respect to the same Type of requested Bid
Rate Loans for a greater aggregate principal amount than the
amount accepted by such Borrower, the principal amount accepted
shall be allocated by the Agent among such Banks as nearly as
possible (but in such multiples as the Agent may deem
appropriate) in proportion to the aggregate principal amount of
such offers. Such determination by the Agent shall be conclusive
in the absence of manifest error.
(B) Upon receipt of any notice from the applicable
Borrower accepting any offer or offers, the Agent shall promptly
notify each of the Banks that also submitted offers in response
to the applicable request whether its offers were accepted or
rejected and, if any of such Bank's offers were accepted, shall
identify such offers and the respective amounts thereof accepted.
(iv) (A) Not later than 12:00 noon on the Bid Rate
Loan Date, each Bank shall make the amount of the Bid Rate Loan
or Bid Rate Loans to be made by such Bank available to the Agent,
in Dollars in funds immediately available to the Agent at the
Agent's Office.
(B) Unless otherwise specified in the applicable
request, Bid Rate Loans shall be disbursed by the Agent not later
than 2:00 p.m. on the date specified therefor and shall be
applied in the following order: first, to repay Bid Rate Loans
maturing or matured as of such date; and second, by credit to an
account of the applicable Borrower at the Agent's Office or in
such other manner as may have been specified to and as shall be
reasonably acceptable to the Agent, in each case in Dollars in
funds immediately available to such Borrower or the appropriate
Bank, as the case may be.
(v) If (A)(1) the applicable Borrower shall, on the
Bid Rate Loan Date, fail to accept offers, in an aggregate amount
sufficient to repay a Bid Rate Loan or Bid Rate Loans maturing or
matured as of such day, or (2) bids submitted in response to a
request for Bid Rate Loans are in an aggregate amount
insufficient to pay a Bid Rate Loan or Bid Rate Loans maturing or
matured as of the Bid Rate Loan Date of such requested Bid Rate
Loans and (B) Bid Rate Loans maturing on such day shall not
otherwise be repaid on such day, such Borrower shall, unless it
provides written notice to the Agent to the contrary by 11:00
a.m. on such day, be deemed to have duly requested Base Rate
Loans to be made on such date in an amount sufficient to repay
the balance of such maturing and matured Bid Rate Loan or Bid
Rate Loans, and if the conditions to the making of such Base Rate
Loans shall have been fulfilled at such time and the Banks make
such Base Rate Loans, the proceeds thereof shall be applied to
repay such balance.
(vi) The parties may, by agreement among the applicable
Borrower, the Agent and each of the Banks, adopt in writing
alternative procedures (including alternative time schedules) for
requesting, offering and consummating Bid Rate Loans.
(vii) Each Bid Rate Loan shall be deemed a utilization
of the Commitment of each Bank in an amount equal to such Bank's
Pro Rata Share of the aggregate outstanding amounts of Bid Rate
Loans, whether or not such Bank shall have made any Bid Rate
Loan, and notwithstanding the amount of any Bid Rate Loan made by
such Bank.
Section 1.03 Interest. (a) Rates. Each RC Loan
shall bear interest on the outstanding principal amount thereof
at a rate per annum equal to, (A) so long as it is a Base Rate
Loan, the Base Rate, and (B) so long as it is a Eurodollar Rate
Loan, the applicable Adjusted Eurodollar Rate plus the Applicable
Margin. Each Bid Rate Loan shall bear interest on the
outstanding principal amount thereof at the rate determined in
accordance with Section 1.02(b). Each Swing Loan shall bear
interest on the outstanding principal amount thereof at the rate
per annum agreed upon by the Swing Loan Lender making such Swing
Loans and the applicable Borrower. If all or any part of a Loan
(including Swing Loans) or any other amount due and payable under
the Loan Documents is not paid when due (whether at maturity, by
reason of notice of prepayment or acceleration or otherwise),
such unpaid amount shall, to the maximum extent permitted by
Applicable Law, bear interest for each day during the period from
the date such amount became so due until it shall be paid in full
(whether before or after judgment) at a rate per annum equal to
the Post-Default Rate.
(b) Payment. Interest shall be payable by the
applicable Borrower, (i) in the case of RC Loans that are (A)
Base Rate Loans, on each Interest Payment Date, (B) Eurodollar
Rate Loans, on the last day of each applicable Interest Period
(and, if an Interest Period is longer than three months, at
intervals of three months after the first day of such Interest
Period), (ii) in the case of Bid Rate Loans, on the last day of
the applicable Interest Period (and, if an Interest Period is
longer than 90 days, at intervals of 90 days after the first day
of such Interest Period), (iii) in the case of Swing Loans, on
the dates agreed upon by the Swing Loan Lender making such Swing
Loan and the applicable Borrower, (iv) in the case of any Loan,
when such Loan shall be due (whether at maturity, by reason of
notice of prepayment or acceleration or otherwise) or converted,
but only to the extent then accrued on the amount then so due or
converted, and (v) all other amounts due and payable under the
Loan Documents, on demand. Interest at the Post-Default Rate
shall be payable on demand.
(c) Conversion and Continuation. (i) All or any part
of the principal amount of RC Loans of any Type may, on any
Business Day, but subject to Section 7.04, be converted into any
other Type or Types of RC Loans, except that Base Rate Loans may
be converted into Eurodollar Rate Loans only on a Eurodollar
Business Day.
(ii) Base Rate Loans shall continue as Base Rate Loans
unless and until such Loans are converted into RC Loans of
another Type. Eurodollar Rate Loans of any Type shall continue
as RC Loans of such Type until the end of the then current
Interest Period therefor, at which time they shall be
automatically converted into Base Rate Loans unless the
applicable Borrower shall have given the Agent notice in
accordance with Section 1.03(c)(iv) requesting either that such
Loans continue as RC Loans of such Type for another Interest
Period or that such Loans be converted into RC Loans of another
Type at the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained
in Section 1.03(c)(i) or (ii), during a Default, the Agent shall,
if so instructed by the Required Banks, notify each Borrower that
its RC Loans may only be converted into or continued as RC Loans
of the Types specified by the Required Banks and, thereafter,
until no Default shall continue to exist or until the Required
Banks shall otherwise agree, RC Loans may not be converted into
or continued as RC Loans of any Type other than one or more of
such specified Types.
(iv) The applicable Borrower shall give the Agent
notice (which shall be irrevocable) of each conversion of its RC
Loans or continuation of its Eurodollar Rate Loans no later than
10:00 a.m. on, in the case of a conversion into Base Rate Loans,
the Business Day before the requested date of such conversion,
and, in the case of a conversion into or continuation of
Eurodollar Rate Loans, the third Eurodollar Business Day before
the requested date of such conversion or continuation. Each
notice of conversion or continuation shall be in the form of
Schedule 1.03(c)(iv) and shall specify (A) the requested date of
such conversion or continuation, (B) the amount and Type and, in
the case of Eurodollar Rate Loans, the last day of the applicable
Interest Period of the Eurodollar Rate Loans to be converted or
continued and (C) the amount and Type or Types of RC Loans into
which such RC Loans are to be converted or as which such RC Loans
are to be continued. Upon receipt of any such notice, the Agent
shall promptly notify each Bank of (x) the contents thereof, (y)
the amount and Type and, in the case of Eurodollar Rate Loans,
the last day of the applicable Interest Period of each RC Loan to
be converted or continued by such Bank and (z) the amount and
Type or Types of RC Loans into which such RC Loans are to be
converted or as which such RC Loans are to be continued.
(v) RC Loans may not be converted into Bid Rate Loans
or Swing Loans, and Bid Rate Loans and Swing Loans may not be
converted, except as required under Section 7.01(b), or
continued.
(d) Maximum Interest Rate. Nothing contained in the
Loan Documents shall require a Borrower at any time to pay
interest at a rate exceeding the Maximum Permissible Rate. If
interest payable by a Borrower on any date would exceed the
maximum amount permitted by the Maximum Permissible Rate, such
interest payment shall automatically be reduced to such maximum
permitted amount, and interest for any subsequent period, to the
extent less than the maximum amount permitted for such period by
the Maximum Permissible Rate, shall be increased by the unpaid
amount of such reduction. Any interest actually received for any
period in excess of such maximum amount permitted for such period
shall be deemed to have been applied as a prepayment of the
Loans.
Section 1.04 Repayment. (a) Each of the RC Loans and
the Swing Loans shall mature and become due and payable, and
shall be repaid by the applicable Borrower, in full on the
Termination Date.
(b) The Bid Rate Loans shall mature and become due and
payable, and shall be repaid by the applicable Borrower in full,
on the last day of the applicable Interest Period specified in
accordance with Section 1.02(b)(i)(B).
Section 1.05 Prepayments. (a) Optional Prepayments.
The applicable Borrower may, at any time and from time to time,
but subject to Section 7.04, prepay the RC Loans and Swing Loans
in whole or in part, without premium or penalty (but subject to
Section 7.04), except that any partial prepayment of RC Loans
shall be in an aggregate principal amount of at least $1,000,000.
Such Borrower shall give the Agent notice of each prepayment
pursuant to this Section 1.05(a) no later than 10:00 a.m. on, in
the case of a prepayment of Base Rate Loans, the Business Day
before the date of such prepayment, and, in the case of a
prepayment of Eurodollar Rate Loans, the third Eurodollar
Business Day before the date of such prepayment and, in the case
of a prepayment of Swing Loans, the day of such prepayment. Each
such notice of prepayment shall be in the form of Schedule
1.05(a) and shall specify (i) the date such prepayment is to be
made and (ii) whether the Loans to be prepaid are RC Loans or
Swing Loans, the amount and Type and, in the case of Eurodollar
Rate Loans, the last day of the applicable Interest Period of
such Loans to be prepaid. Upon receipt of any such notice, the
Agent shall promptly notify each Bank of the contents thereof and
the amount and Type and, in the case of Eurodollar Rate Loans,
the last day of the applicable Interest Period of each such Loan
of such Bank to be prepaid. Amounts to be prepaid pursuant to
this Section 1.05(a) shall irrevocably be due and payable on the
date specified in the applicable notice of prepayment, together
with interest thereon as provided in Section 1.03(b).
(b) Mandatory Prepayments. (i) Loans in Excess of
Commitments. If, after giving effect to any partial or total
reduction of the Commitments pursuant to Section 1.07, the
aggregate unpaid principal amount of the Loans exceeds the
aggregate Commitments, the Borrowers shall prepay the Loans in an
aggregate amount equal to the amount of such excess, together
with interest thereon as provided in Section 1.03(b), on the date
of such reduction.
(ii) Reduction of Availability. If the aggregate
unpaid principal amount of the Loans of any Borrower, at any
time, exceeds such Borrower's Availability, such Borrower shall
prepay its Loans in an aggregate amount equal to the amount of
such excess, together with interest thereon as provided in
Section 1.03(b), on the date of the reduction of such Borrower's
Availability giving rise to such excess.
(c) Other Prepayment Provisions. Amounts prepaid by a
Borrower pursuant to this Section 1.05 shall be applied (i) to
prepay Base Rate Loans of such Borrower, (ii) to the extent that
the amount of any such prepayment exceeds the then outstanding
aggregate principal amount of such Base Rate Loans, the
Eurodollar Rate Loans of such Borrower in the order that the
Interest Periods for such Loans end, (iii) to the extent that the
amount of any such prepayment exceeds the then outstanding
aggregate principal amount of the RC Loans of such Borrower, the
Bid Rate Loans of such Borrower, and (iv) to the extent that the
amount of any such prepayment exceeds the then outstanding
aggregate principal amount of such RC Loans and Bid Rate Loans
the Swing Loans of such Borrower. Amounts to be prepaid pursuant
to this Section 1.05 shall be paid on the day or within the time
period specified therefor, whether or not such payment would
require a prepayment of Eurodollar Rate Loans prior to the last
day of an applicable Interest Period or would result in losses,
costs or expenses compensable under Section 7.04 and, for
purposes of Section 6.01(a), shall be deemed to be "due" on the
day specified for such payment or on the last day of the period
within which such payment is required to be made.
Section 1.06 Limitation on Types of Loans.
Notwithstanding anything to the contrary contained in this
Agreement, the Borrowers shall borrow, prepay, convert and
continue RC Loans in a manner such that (a) the aggregate
principal amount of Eurodollar Rate Loans of the same Type and
having the same Interest Period shall at all times be not less
than $2,000,000 or, if less, the aggregate amount of the
Commitments, (b) there shall not be, at any one time, more than
ten Interest Periods in effect with respect to Eurodollar Rate
Loans of all Types and (c) no payment of Eurodollar Rate Loans
will have to be made prior to the last day of an applicable
Interest Period in order to repay the Loans (subject to Section
1.11(c)) on the date specified in Section 1.04.
Section 1.07 Reductions in Commitments. EUA may
reduce the aggregate Commitments in whole or, from time to time,
in part, by giving the Agent notice (which shall be irrevocable)
thereof no later than 10:00 a.m. on the third Business Day before
the requested date of such reduction, except that (a) no partial
reduction of the Commitments shall be in an aggregate amount less
than $5,000,000, and (b) no reduction may reduce the Commitments
to an amount less than the aggregate amount of Loans outstanding.
Upon receipt of any such notice, the Agent shall promptly notify
each Bank of the contents thereof and the amount to which such
Bank's Commitment is to be reduced.
Section 1.08 Fees. (a) Facility Fees. The
Borrowers, jointly and severally, agree to pay to the Agent for
the account of each Bank a facility fee on the daily amount of
such Bank's Commitment (without regard to any utilization
thereof) for each day from the Agreement Date through the
Termination Date (or earlier date of termination of the
Commitments in their entirety) at a rate per annum equal to the
Applicable Facility Fee Percentage, payable in arrears on
successive Interest Payment Dates, on the Termination Date and on
the date of any partial or total reduction of such Commitment (to
the extent accrued and unpaid on the amount of the reduction).
(b) Agent's Fees. The Borrowers, jointly and
severally, agree to pay to the Agent, for its own account, the
fees payable to it pursuant to the Agent's Fee Letter, payable in
the amounts and at the times provided therein.
(c) Fees Non-Refundable. None of the fees payable
under this Section 1.08 shall be refundable in whole or in part.
Section 1.09 Computation of Interest and Fees.
Interest calculated on the basis of the Adjusted Eurodollar Rate
or the Federal Funds Rate, interest on the Bid Rate Loans and the
facility fees shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed. Interest
calculated on the basis of the Prime Rate shall be computed on
the basis of a year of 365 or 366 days, as applicable, and paid
for the actual number of days elapsed. Interest on the Swing
Loans shall be calculated on the basis agreed upon by the
applicable Swing Loan Lender and the applicable Borrower.
Interest for any period shall be calculated from and including
the first day thereof to but excluding the last day thereof.
Section 1.10 Evidence of Indebtedness. Each Bank's
Loans and the respective Borrowers' obligation to repay such
Loans with interest in accordance with the terms of this
Agreement shall be evidenced by this Agreement, the records of
such Bank and, in the case of RC Loans, a single RC Note of such
Borrower payable to the order of such Bank and in the case of Bid
Rate Loans, a single Bid Rate Note of such Borrower payable to
the order of such Bank. The Swing Loans and the respective
Borrowers' obligation to repay the Swing Loans with interest in
accordance with the terms of this Agreement shall be evidenced by
this Agreement, the records of the Swing Loan Lenders, and a
single Swing Note of such Borrower payable to the order of each
of the Swing Loan Lenders. The records of each Bank shall be
prima facie evidence of such Bank's Loans and accrued interest
thereon and of all payments made in respect thereof.
Section 1.11 Payments by the Borrowers. (a) Time,
Place and Manner. All payments due to the Agent or a Swing Loan
Lender under the Loan Documents shall be made to the Agent at the
Agent's Office or at such other address as the Agent or such
Swing Loan Lender, respectively, may designate by notice to the
Borrowers. All payments due to any Bank under the Loan Documents
shall, in the case of payments on account of principal of or
interest on the Loans or fees, be made to the Agent at the
Agent's Office and, in the case of all other payments, be made
directly to such Bank at its Domestic Lending Office or at such
other address as such Bank may designate by notice to the
Borrowers. All payments due to any Bank under the Loan
Documents, whether made to the Agent or directly to such Bank,
shall be made for the account of, in the case of payments in
respect of Eurodollar Rate Loans, such Bank's Eurodollar Lending
Office and, in the case of all other payments, such Bank's
Domestic Lending Office. A payment shall not be deemed to have
been made on any day unless such payment has been received by the
required Person, at the required place of payment, in Dollars in
funds immediately available to such Person at such place, no
later than 12:00 noon on such day.
(b) No Reductions. All payments due to the Agent, a
Swing Loan Lender or any Bank under the Loan Documents, and all
other terms, conditions, covenants and agreements to be observed
and performed by the Borrowers thereunder, shall be made,
observed or performed by the Borrowers without any reduction or
deduction whatsoever, including any reduction or deduction for
any set-off, recoupment, counterclaim (whether sounding in tort,
contract or otherwise) or Tax, except, subject to Section 1.13,
for any withholding or deduction for Taxes required to be
withheld or deducted under Applicable Law.
(c) Extension of Payment Dates. Whenever any payment
to the Agent, a Swing Loan Lender or any Bank under the Loan
Documents would otherwise be due (except by reason of
acceleration) on a day that is not a Business Day, or, in the
case of payments of the principal of Eurodollar Rate Loans, a
Eurodollar Business Day, such payment shall instead be due on the
next succeeding Business or Eurodollar Business Day, as the case
may be, unless, in the case of a payment of the principal of
Eurodollar Rate Loans, such extension would cause payment to be
due in the next succeeding calendar month, in which case such due
date shall be advanced to the next preceding Eurodollar Business
Day. If the date any payment under the Loan Documents is due is
extended (whether by operation of any Loan Document, Applicable
Law or otherwise), such payment shall bear interest for such
extended time at the rate of interest applicable hereunder.
Section 1.12 Distribution of Payments by the Agent.
(a) The Agent shall promptly distribute to each Swing Loan
Lender and each Bank its ratable share of each payment received
by the Agent under the Loan Documents for the account of the
Swing Loan Lenders and the Banks by credit to an account of such
Swing Loan Lender or such Bank at the Agent's Office or by wire
transfer to an account of such Swing Loan Lender or such Bank at
an office of any other commercial bank located in the United
States.
(b) Unless the Agent shall have received notice from
the applicable Borrower prior to the date on which any payment is
due to a Swing Loan Lender or the Banks under the Loan Documents
that such Borrower will not make such payment in full, the Agent
may assume that such Borrower has made such payment in full to
the Agent on such date and the Agent in its sole discretion may,
in reliance upon such assumption, cause to be distributed to each
Swing Loan Lender and each Bank on such due date a corresponding
amount with respect to the amount then due such Swing Loan Lender
and such Bank. If and to the extent the applicable Borrower
shall not have so made such payment in full to the Agent and the
Agent shall have so distributed to a Swing Loan Lender or any
Bank a corresponding amount, such Swing Loan Lender or such Bank
shall, on demand, repay to the Agent the amount so distributed
together with interest thereon, for each day from the date such
amount is distributed to such Swing Loan Lender or such Bank
until the date such Swing Loan Lender or such Bank repays such
amount to the Agent, at the Federal Funds Rate until (and
including) the third Business Day after demand is made and
thereafter at the Base Rate plus 2%.
Section 1.13 Taxes. (a) (i) Taxes Payable by the
Borrowers. If under Applicable Law any Tax is required to be
withheld or deducted by a Borrower from, or is otherwise payable
by a Borrower in connection with, any payment to the Agent, a
Swing Loan Lender or any Bank under the Loan Documents, such
Borrower shall pay to the Agent, such Swing Loan Lender or such
Bank, as applicable, such additional amounts as may be necessary
so that the net amount received by the Agent, such Swing Loan
Lender or such Bank with respect to such payment, after
withholding or deducting all Taxes required to be withheld or
deducted by such Borrower, is equal to the full amount payable
under the Loan Documents.
(ii) Taxes Payable by the Agent or any Bank. The
applicable Borrower shall, promptly upon request by the Agent, a
Swing Loan Lender or any Bank for the payment thereof pay to the
Agent, such Swing Loan Lender or such Bank, as the case may be,
(A) all Taxes (other than Bank Taxes) payable by the Agent, such
Swing Loan Lender or such Bank, as the case may be, with respect
to any payment due to the Agent, such Swing Loan Lender or such
Bank under the Loan Documents and (B) all Taxes payable by the
Agent or such Bank as a result of payments made by such Borrower
(whether made to a taxing authority or to the Agent, such Swing
Loan Lender or such Bank) pursuant to this Section 1.13(a)(ii).
(iii) Limitations. Notwithstanding anything to the
contrary contained herein, a Borrower shall not be required to
pay any additional amount in respect of withholding of United
States Federal income taxes pursuant to this Section 1.13 to any
Bank (A) except to the extent such Taxes are required to be
withheld as a result of (1) in the case of a Person that is a
Bank on the Agreement Date, a Regulatory Change Enacted after the
Agreement Date and (2) in the case of a Person that becomes a
Bank after the Agreement Date, a Regulatory Change Enacted after
such Person becomes a Bank, or (B) to the extent such withholding
is required because such Bank has failed to submit any form or
certificate that it is entitled to so submit under Applicable
Law.
(iv) Exemption from U.S. Withholding Taxes. There
shall be submitted to the Borrowers and the Agent, (A) on or
before the first date that interest or fees are payable to such
Bank under the Loan Documents, (1) if at the time the same are
applicable, (aa) by each Bank that is not a United States Person,
two duly completed and signed copies of Internal Revenue Service
Form 1001 or 4224, in either case entitling such Bank to a
complete exemption from withholding of any United States federal
income taxes on all amounts to be received by such Bank under the
Loan Documents, or (bb) by each Bank that is a Non-US Bank, (x) a
duly completed Internal Revenue Service Form W-8 and (y) a
certification in the form of Schedule 1.13(a)(iv) that such Bank
is a Non-US Bank or (2) if at the time any of the foregoing are
inapplicable, duly completed and signed copies of such form, if
any, as entitles such Bank to complete exemption from withholding
of United States federal income taxes, and (B) from time to time
thereafter, prior to the expiration or obsolescence of any
previously delivered form or upon any previously delivered form
becoming inaccurate or inapplicable, such further duly completed
and signed copies of such form, if any, as entitles such Bank to
exemption from withholding of United States federal income taxes
to the maximum extent to which such Bank is then entitled under
Applicable Law. Each Bank shall promptly notify the Borrowers
and the Agent if (A) it is required to withdraw or cancel any
form or certificate previously submitted by it or any such form
or certificate has otherwise become ineffective or inaccurate or
(B) payments to it are or will be subject to withholding of
United States federal income taxes to a greater extent than the
extent to which payments to it were previously subject. Upon the
request of the Borrowers or the Agent, each Bank that is a United
States Person shall from time to time submit to the Borrowers and
the Agent a certificate to the effect that it is such a United
States Person and a duly completed Internal Revenue Service Form
W-9.
(b) Credits and Deductions. If the Agent, a Swing
Loan Lender or any Bank is, in its reasonable opinion, able to
apply for any credit, deduction or other reduction in Bank Taxes
by reason of any payment made by a Borrower under Section
1.13(a)(i), the Agent, such Swing Loan Lender or such Bank, as
the case may be, shall use reasonable efforts to obtain such
credit, deduction or other reduction and, upon receipt thereof
(including receipt of any such credit, deduction or other
reduction that shall not actually have been applied for by such
Person), will pay to such Borrower such amount, not exceeding the
increased amount paid by such Borrower, as is equal to the net
after-tax value to the Agent, such Swing Loan Lender or such
Bank, in its sole opinion, of such part of such credit, deduction
or other reduction as it considers to be allocable to such
payment by such Borrower, having regard to all of the Agent's,
such Swing Loan Lender's or such Bank's dealings giving rise to
similar credits, deductions or other reductions in relation to
the same tax period and to the cost of obtaining the same;
provided, however, that (i) the Agent, such Swing Loan Lender or
such Bank, as the case may be, shall not be obligated to disclose
to a Borrower any information regarding its tax affairs or
computations and (ii) nothing in this Section 1.13(b) shall
interfere with the right of the Agent, such Swing Loan Lender or
such Bank to arrange its tax affairs as it deems appropriate.
Section 1.14 Pro Rata Treatment. Except to the extent
otherwise provided herein, (a) RC Loans of each Type to be made
on any day shall be made by the Banks pro rata in accordance with
their respective Commitments, (b) RC Loans of the Banks shall be
converted and continued pro rata in accordance with their
respective amounts of RC Loans of the Type and, in the case of
Eurodollar Rate Loans, having the Interest Period being so
converted or continued, (c) each reduction in the Commitments
shall be made pro rata in accordance with the respective amounts
thereof and (d) each payment of the principal of or interest on
the RC Loans or of fees shall be made for the account of the
Banks or, if applicable, a Swing Loan Lender pro rata in
accordance with the respective amounts thereof then due and
payable.
Section 1.15 Increase in Commitments. (a) (i) EUA
may, by submitting an Increase Notice to the Agent, request that
the Banks increase the aggregate Commitments up to the amount
specified therein, which shall be an integral multiple of
$5,000,000 and shall not be greater than $150,000,000, effective
on the Increase Date, which shall be any Business Day occurring
not less than 25 (unless otherwise agreed to by EUA and the
Agent) nor more than 30 days after the date on which the Increase
Notice shall have been given, and such notice shall specify the
requested amount by which the aggregate amount of the Commitments
are to increase, the names of any new lenders who have agreed to
become Banks hereunder, and the amount of their proposed
Commitments. Promptly upon receipt of such Increase Notice from
EUA, the Agent shall notify the Banks of the contents thereof.
If and to the extent that the aggregate amount of the proposed
Commitments of such new lenders is less than the aggregate amount
of the increase of the Commitments requested by EUA, each Bank
shall provide written notice to the Agent, no later than 21 days
after the date on which the Increase Notice shall have been given
to the Agent, of the amount, if any, by which such Bank agrees to
increase its Commitment. Promptly upon receipt of such notice
from any Bank, the Agent shall notify EUA of the contents
thereof. To the extent that the aggregate amount of the proposed
Commitments of such new lenders and the proposed increase of the
Commitments of such existing Banks is less than the aggregate
amount of the increase of the Commitments requested by EUA, EUA
may either (A) request the Agent to solicit the Banks for further
increases in their Commitments or (B) amend the Increase Notice
by reducing the requested amount by which the aggregate amount of
the Commitments is to be increased to an amount equal to the
aggregate amount of proposed Commitments of such new lenders and
the proposed increase of the Commitments of such existing Banks.
(ii) Upon the effectiveness of the increase in
Commitments pursuant to Section 1.15(b) below, each of the new
lenders shall execute and deliver a counterpart of this
Agreement, Annex A shall be amended by the Borrowers and the
Agent to reflect the increase in the Commitment of any existing
Bank and the Commitments of such new lenders and such new lenders
shall be and become Banks hereunder for all purposes hereof and
of the Loan Documents. In connection with any such increase, the
Borrowers shall execute and deliver new Notes to reflect
appropriately such new Commitments and the Banks (including such
new lenders) shall effect such purchases and sales among
themselves of portions of the outstanding Loans as shall be
necessary to reflect such Commitments, as specified by the Agent,
and, in connection with such purchases and sales, the applicable
Borrower shall pay to each affected Bank an amount equal to the
amount such Borrower would have had to pay pursuant to Section
7.04 if such Loans, or portions thereof, were prepaid on such
Increase Date.
(b) An increase in Commitments shall become effective
on the Increase Date so long as each of the following conditions
shall have been fulfilled on and as of such date: (i) the Agent
and EUA shall have consented to any such new lenders (such
consent not to be unreasonably withheld or delayed); (ii) the
Agent shall have received opinions of counsel to the Borrowers in
form and substance reasonably satisfactory to the Agent; (iii)
Banks or other lenders who agree to become Banks hereunder shall
have agreed to an increase of their Commitments in an aggregate
amount equal to the amount of the requested increase in the
aggregate amount of the Commitments set forth in the Increase
Notice; (iv) the conditions to the making of Loans set forth in
Section 2.02 shall be fulfilled on and as of such Increase Date
as if Loans were made thereon; and (v) the Agent shall have
received such other instruments and documents, in form and
substance satisfactory to it, as it shall have reasonably
requested.
Section 1.16. Extension of Termination Date. EUA may,
by submitting to the Agent an Extension Notice on or within the
30 days following the first anniversary of the Agreement Date
and, if the Termination Date has been previously extended
pursuant to this Section 1.16, the second anniversary of the
Agreement Date, request that the Banks extend the Termination
Date to the last day of a period of one year from the then
current Termination Date; provided that EUA shall not be entitled
to submit any such request if at the time thereof an Event of
Default shall have occurred and be continuing. Promptly upon
receipt of such Extension Notice from EUA, the Agent shall notify
the Banks of the contents thereof. Each Bank shall notify the
Agent, no later than 30 days following its receipt of such notice
from the Agent, of its determination, which shall be in its sole
and absolute discretion, to extend or not to extend the
Termination Date, which notice shall be irrevocable, provided
that if any Bank shall fail to so notify the Agent, such Bank
shall be deemed to have given notice of its determination not to
so extend. If the Required Banks consent to the requested
extension, the new Termination Date shall be the last day of the
period of one year commencing on the Termination Date in effect
immediately prior to such extension. In the event that the
Required Banks, but fewer than all of the Banks, consent to the
requested extension, EUA shall have the right to either (a) with
the consent of the Agent (such consent not to be unreasonably
withheld or delayed), replace any non-consenting Bank (with
respect to which the Termination Date in effect immediately prior
to such extension shall remain in effect) with another commercial
bank or banks (collectively, the "Replacement Banks") or (b) with
the consent of the Agent (such consent not to be unreasonably
withheld or delayed), eliminate any such non-consenting Bank and
reduce the Commitments by the amount of such Bank's Commitment.
In the case of clause (a) above, the Bank being replaced (the
"Replaced Bank") shall promptly transfer its Loans and Commitment
to the Replacement Bank or Banks in the manner and with the
effect provided for in Section 10.10(a)(ii) concurrently with (i)
the payment to it by the Replacement Bank or Banks of an
aggregate amount equal to all accrued and unpaid amounts payable
to the Replaced Bank hereunder and (ii) the payment to it by the
Borrowers of an amount equal to the aggregate sum of any amounts
which would be payable under Section 7.04 as if all of the
Replaced Bank's Loans were being prepaid in full on the date of
such transfer; provided that the fee otherwise payable pursuant
to Section 10.10(a)(ii)(C) shall not be payable with respect to
any such transfer. In the case of clause (b) above, the
elimination of such Bank shall not be effective until the Bank
shall have given notice to the Agent that the Borrowers have paid
to it all accrued and unpaid amounts payable to it hereunder.
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01 Conditions to Initial Loans. The
obligation of each of the Banks and the Swing Loan Lenders to
make its initial Loan to any Borrower is subject to the
fulfillment of each of the following conditions in connection
with the initial Loans made hereunder (whether such initial Loans
are RC Loans, Swing Loans or Bid Rate Loans):
(a) the Agent shall have received each of the
following, in form and substance and, in the case of the
materials referred to in clauses (i), (ii), (iii), (vi) and
(vii), certified in a manner satisfactory to the Agent:
(i) with respect to each Borrower, a certificate
of the Secretary or an Assistant Secretary of such Borrower,
dated the Agreement Date, substantially in the form of
Schedule 2.01(a)(i), to which shall be attached copies of
the resolutions and by-laws referred to in such certificate;
(ii) with respect to each Borrower, a copy of the
certificate of incorporation, certified, as of a recent
date, by the Secretary of State or other appropriate
official of such Borrower's jurisdiction of incorporation;
(iii) with respect to each Borrower and each
Significant Subsidiary thereof, good standing certificates,
issued as of a recent date by the appropriate Secretary of
State or other appropriate official of such Person's
jurisdiction of incorporation;
(iv) with respect to each Borrower, an opinion of
counsel for such Borrower, dated the requested date for the
making of such Loan, in the form of Schedule 2.01(a)(iv),
with such changes as the Agent shall approve;
(v) an opinion of counsel for the Agent, dated
the requested date for the making of such Loan, in the form
of Schedule 2.01(a)(v);
(vi) a copy of each Governmental Approval and
other consent or approval listed on Schedule 3.03;
(vii) a certificate of the president or treasurer
or any assistant treasurer of EUA or Service, dated the
requested date for the making of such Loan, setting forth
the manner and degree of detail in which the Borrowers will
make the calculations required by paragraph 3 of Schedule
5.01(b); and
(viii) a duly executed RC Note of each Borrower for
each Bank, a duly executed Bid Rate Note of each Borrower
for each Bank and a duly executed Swing Note of each
Borrower for each Swing Loan Lender.
(b) all fees payable on or prior to the requested date
of such Loan pursuant to Section 1.08, and all amounts payable
pursuant to Section 10.02 for which invoices have been delivered
to any Borrower on or prior to such date, shall have been paid in
full or arrangements satisfactory to the Agent shall have been
made to cause them to be paid in full concurrently with the
disbursement of the proceeds of the Loans to be made on such
date.
Section 2.02 Conditions to Each Loan. The obligation
of each of the Banks and a Swing Loan Lender to make each Loan
requested to be made by it, including its initial Loan, is
subject to the fulfillment of each of the following conditions:
(a) the Agent or, in the case of Swing Loans, a Swing
Loan Lender, shall have received a notice of borrowing from the
applicable Borrower with respect to such Loan complying with the
requirements of Section 1.02 or, in the case of Swing Loans,
complying with the requirements of Section 1.01(c)(i);
(b) each Representation and Warranty shall be true and
correct in all material respects at and as of the time such Loan
is to be made, both with and without giving effect to such Loan
and all other Loans to be made at such time and to the
application of the proceeds thereof;
(c) no Default shall have occurred and be continuing
at the time such Loan is to be made or would result from the
making of such Loan and all other Loans to be made at such time
or from the application of the proceeds thereof, other than a
Default (i) caused by, relating to or otherwise with respect to
no more than one Borrower (which shall not be the Borrower
requesting the Loan) and (ii) not constituting a Default under
Sections 4.18, 6.01(a), 6.01(d)(ii), 6.01(f) or 6.01(h); and
(d) such Loan will not contravene any Applicable Law
applicable to such Bank or such Swing Loan Lender, as the case
may be.
Except to the extent that the applicable Borrower shall
have disclosed in the notice of borrowing, or in a subsequent
notice given to the Banks prior to 5:00 p.m. on the Business Day
before the requested date for the making of the requested Loans,
that a condition specified in clause (b) or (c) above will not be
fulfilled as of the requested time for the making of such Loans,
such Borrower shall be deemed to have made a Representation and
Warranty as of the time of the making of such Loans that the
conditions specified in such clauses have been fulfilled as of
such time. No such disclosure by the applicable Borrower that a
condition specified in clause (b) or (c) above will not be
fulfilled as of the requested time for the making of the
requested Loans shall affect the right of each Bank to not make
the Loans requested to be made by it if, in such Bank's
determination, such condition has not been fulfilled at such
time. The obligation of each Bank and each Swing Loan Lender to
make a Loan requested by a Regulated Borrower shall not be
affected by the failure to fulfill the conditions in clauses
(c)(i) or (c)(ii) above, so long as (x) in the case of clause
(c)(ii), such failure was not caused by, related to or otherwise
with respect to such Regulated Borrower and (y) such Regulated
Borrower has demonstrated to the reasonable satisfaction of the
Agent and the Required Banks that the aggregate principal amount
of all Consolidated Indebtedness of such Regulated Borrower and
its Consolidated Subsidiaries before and immediately after giving
effect to the requested Loans does not and will not exceed 65% of
Regulated Borrower Capitalization determined as of the last day
of the most recent fiscal quarter of such Regulated Borrower.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce the Agent, the Swing Loan Lenders
and each Bank to enter into this Agreement and to make each Loan
requested to be made by it, each of the Borrowers represents and
warrants as follows:
Section 3.01 Organization; Power; Qualification. Such
Borrower and each Significant Subsidiary thereof are corporations
duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, have the
corporate power and authority, and have obtained all necessary
Governmental Approvals and all other consents and approvals, to
own their respective properties and to carry on their respective
businesses as now being and hereafter proposed to be conducted
and are duly qualified and in good standing as foreign
corporations, and are authorized to do business, in all
jurisdictions in which the character of their respective
properties or the nature of their respective businesses requires
such qualification or authorization, except for qualifications
and authorizations the lack of which, singly or in the aggregate,
has not had and will not have a Materially Adverse Effect on such
Borrower and its Significant Subsidiaries taken as a whole.
Section 3.02 Subsidiaries. Schedule 3.02 sets forth,
as of the Agreement Date, all of the Subsidiaries of such
Borrower, their jurisdictions of incorporation and the
percentages of the various classes of their Capital Securities
owned by such Borrower or another Subsidiary of such and
indicates which Subsidiaries are Consolidated Subsidiaries and
which Subsidiaries are Significant Subsidiaries. Such Borrower
or another Subsidiary, as the case may be, has the unrestricted
right to vote, and (subject to limitations imposed by Applicable
Law) to receive dividends and distributions on, all Capital
Securities indicated on Schedule 3.02 as owned by such Borrower
or Subsidiary. All such Capital Securities have been duly
authorized and issued and are fully paid and nonassessable.
Section 3.03 Authorization; Enforceability; Required
Consents; Absence of Conflicts. Such Borrower has the power, and
has taken all necessary action (including, if a corporation, any
necessary stockholder action) to authorize it, to execute,
deliver and perform in accordance with their respective terms the
Loan Documents and to borrow hereunder in the amount of such
Borrower's Availability. This Agreement has been, and each of
the other Loan Documents when delivered to the Agent will have
been, duly executed and delivered by such Borrower and is, or
when so delivered will be, a legal, valid and binding obligation
of such Borrower, enforceable against such Borrower in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally. The execution, delivery and performance in accordance
with their respective terms by such Borrower of the Loan
Documents, and each borrowing hereunder, whether or not in the
amount of such Borrower's Availability, do not and (absent any
change in any Applicable Law or applicable Contract) will not (a)
require any Governmental Approval or any other consent or
approval, including any consent or approval of the stockholders
of such Borrower, other than Governmental Approvals and other
consents and approvals that have been obtained, are final and not
subject to review on appeal or to collateral attack, are in full
force and effect and, in the case of any such required under any
Applicable Law or Contract as in effect on the Agreement Date,
are listed on Schedule 3.03, or (b) violate, conflict with,
result in a breach of, constitute a default under, or result in
or require the creation of any Lien upon any assets of such
Borrower or any Significant Subsidiary under, (i) the charter or
by-laws of such Borrower, (ii) any Contract to which such
Borrower or any Subsidiary is a party or by which such Borrower
or any Subsidiary or any of their respective properties may be
bound or (iii) any Applicable Law, other than, in the case of
clause (b)(ii) or (b)(iii), any such violation, conflict, breach
or default that (A) could not, singly or in the aggregate, have a
Materially Adverse Effect on (x) such Borrower and its
Significant Subsidiaries taken as a whole or (y) any Loan
Document and (B) could not reasonably be expected to expose the
Agent, any Swing Loan Lender or any Bank to any loss, liability
or expense.
Section 3.04 Taxes. Such Borrower and each
Significant Subsidiary thereof have (a) filed all Tax returns
required to have been filed by it under Applicable Law, (b) paid
all Taxes that are due and payable by it or have been assessed
against it except for Taxes the failure to have paid which does
not contravene Section 4.04 and (c) to the extent required by
generally accepted accounting principles, reserved against all
Taxes that are payable by it but are not yet due or that are due
and payable by it or have been assessed against it but have not
yet been paid.
Section 3.05 Litigation. Except as set forth on
Schedule 3.05, there are not, in any court or before any
arbitrator of any kind or before or by any governmental or
non-governmental body, any actions, suits or proceedings pending
or threatened (nor, to the knowledge of such Borrower or any
Significant Subsidiary thereof, is there any reasonable basis
therefor) against or in any other way relating to or affecting
(a) such Borrower or any Significant Subsidiary thereof or any of
their respective businesses or properties or (b) any Loan
Document, except actions, suits or proceedings that, if adversely
determined, would not, singly or in the aggregate, have a
Materially Adverse Effect on (x) such Borrower and its
Significant Subsidiaries taken as a whole or (y) any Loan
Document.
Section 3.06 Burdensome Provisions. Neither such
Borrower nor any Significant Subsidiary thereof is a party to or
bound by any Contract or Applicable Law, compliance with which
could reasonably be expected to have a Materially Adverse Effect
on (a) such Borrower and its Significant Subsidiaries taken as a
whole or (b) any Loan Document.
Section 3.07 No Adverse Change or Event. Since
December 31, 1996, no change in the business, assets,
Liabilities, condition (financial or otherwise), results of
operations or business prospects of such Borrower or any
Significant Subsidiary thereof has occurred, and no event has
occurred or failed to occur, that has had or could reasonably be
expected to have, either alone or in conjunction with all other
such changes, events and failures, a Materially Adverse Effect on
(a) such Borrower and its Significant Subsidiaries taken as a
whole or (b) any Loan Document. Such an adverse change may have
occurred, and such an event may have occurred or failed to occur,
at any particular time notwithstanding the fact that at such time
no Default shall have occurred and be continuing.
Section 3.08 Additional Adverse Facts. Except for
facts and circumstances disclosed on Schedule 3.05 or in the
notes to the financial statements referred to in Section 5.02(a)
or otherwise disclosed in writing by EUA to all of the Banks
prior to the Agreement Date, no fact or circumstance is known to
such Borrower, as of the Agreement Date, that, either alone or in
conjunction with all other such facts and circumstances, has had
or could reasonably be expected to have (so far as such Borrower
and its Significant Subsidiaries can foresee) a Materially
Adverse Effect on (a) such Borrower and its Significant
Subsidiaries taken as a whole or (b) any Loan Document. If a
fact or circumstance disclosed on such Schedule or in such notes
should in the future have a Materially Adverse Effect on (x) such
Borrower and its Significant Subsidiaries taken as a whole or (y)
any Loan Document, such Materially Adverse Effect shall be a
change or event subject to Section 3.07 notwithstanding such
disclosure.
Section 3.09 Investment Company Act. Neither such
Borrower nor any Significant Subsidiary thereof is an "investment
company" or a Person "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940.
Section 3.10 Compliance with Applicable Law and
Contracts. Each of such Borrower and the Significant
Subsidiaries thereof is in compliance with all Applicable Law and
the terms of all Contracts to which it is a party or by which it
or any of its properties may be bound, except for non-compliances
that, either singly or in the aggregate, would not have a
Materially Adverse Effect on (a) such Borrower and its
Significant Subsidiaries taken as a whole or (b) any Loan
Document.
Section 3.11 Title to Properties and Assets. (a)
Fee-Owned Real Property. Each of such Borrower and the
Significant Subsidiaries thereof has good and marketable title to
each parcel or tract of material real property owned in fee by
it, in each case free and clear of all Liens, assessments or
governmental charges or levies, except for Permitted Liens.
(b) Leased Real Property. Each of such Borrower and
the Significant Subsidiaries thereof possesses a valid leasehold
interest in each parcel of material leased real property held by
it as lessee, in each case free and clear of all Liens,
assessments or governmental charges or levies, except for
Permitted Liens.
(c) Other Assets. Each of such Borrower and the
Significant Subsidiaries thereof has good and marketable title to
all its other material assets, free and clear of all Liens,
assessments or governmental charges or levies, except for
Permitted Liens.
ARTICLE 4
CERTAIN COVENANTS
From the Agreement Date and until the Repayment Date,
A. Each Borrower shall and shall cause each of its
Significant Subsidiaries to:
Section 4.01 Preservation of Existence. Preserve and
maintain its corporate existence, except that this Section 4.01
shall not apply, in the case of any such Significant Subsidiary,
to termination of its corporate existence pursuant to a merger,
consolidation or combination permitted under Section 4.11.
Section 4.02 Preservation of Rights and Properties.
(a) Preserve and maintain all of its franchises, licenses, rights
and privileges under Contract and Applicable Law material to the
proper conduct of its business; and (b) preserve and maintain in
good repair, working order and condition, excepting ordinary wear
and tear and damage due to casualty, all of its tangible property
material to the proper conduct of its business.
Section 4.03 Business Activities. Subject to Section
4.12, engage in such businesses so that such Borrower and its
Significant Subsidiaries taken as a whole remain principally
engaged in the businesses principally engaged in by them as of
the Agreement Date.
Section 4.04 Payment of Taxes and Liabilities. Pay or
discharge before they become delinquent all Taxes and all
Liabilities (including, but not limited to indebtedness arising
under leases to which such Borrower or any Significant Subsidiary
thereof is a party), except that this Section 4.04 shall not
apply to Taxes and Liabilities that (a) are being contested in
good faith by appropriate proceedings and for which adequate
reserves, in an amount not less than the amount required by
generally accepted accounting principles, have been provided or
(b) in the aggregate, are less than $1,000,000.
Section 4.05 Compliance With Applicable Law. Comply
with all Applicable Law, except that this Section 4.05 shall not
apply to any non-compliance that, either singly or in the
aggregate, would not have a Materially Adverse Effect on (a) the
Borrower and its Significant Subsidiaries taken as a whole or (b)
any Loan Document.
Section 4.06 Preservation of Loan Document
Enforceability. Take all actions (including obtaining and
maintaining in full force and effect consents and Governmental
Approvals) that are required so that its obligations under the
Loan Documents will at all times be legal, valid and binding and
enforceable in accordance with their respective terms.
Section 4.07 Insurance. Maintain insurance with
responsible insurance companies against at least such risks and
in at least such amounts as is customarily maintained by similar
businesses, or as may be required by Applicable Law.
Section 4.08 Use of Proceeds. Use the proceeds of the
Loans only for general corporate purposes. None of the proceeds
of any of the Loans shall be used to purchase or carry, or to
reduce or retire or refinance any credit incurred to purchase or
carry, any margin stock (within the meaning of Regulations U and
X of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying
any margin stock. If requested by any Bank, the Borrower or any
Significant Subsidiary thereof shall complete and sign Part I of
a copy of Federal Reserve Form U-1 referred to in Regulation U
and deliver such copy to such Bank.
B. Each Borrower shall not, and shall not permit any of its
Significant Subsidiaries to, directly or indirectly:
Section 4.09 Indebtedness. Have any Indebtedness, at
any time, except that this Section 4.09 shall not apply to (a)
the Loans, (b) Existing Indebtedness and (c) Permitted
Indebtedness.
Section 4.10 Liens. Permit to exist, at any time, any
Lien upon any of its properties or assets of any character,
whether now owned or hereafter acquired, or upon any income or
profits therefrom, except that this Section 4.10 shall not apply
to Permitted Liens, provided, however, that if, notwithstanding
this Section 4.10, any Lien to which this Section is applicable
shall be created or arise, the Liabilities of such Borrower under
the Loan Documents shall automatically be secured by such Lien
equally and ratably with the other Liabilities secured thereby,
provided, further, however, that notwithstanding such equal and
ratable securing and sharing, the existence of such Lien shall
constitute a default by such Borrower in the performance or
observance of this Section 4.10.
Section 4.11 Merger or Consolidation. Merge,
consolidate or otherwise combine with any Person, except that, if
after giving effect thereto no Default would exist, this Section
4.11 shall not apply to (a) any merger, consolidation or
combination of such Borrower with any one or more Significant
Subsidiaries of any of the Borrowers, provided that such Borrower
shall be the continuing Person, and (b) any merger, consolidation
or combination of any Significant Subsidiary with any one or more
other Significant Subsidiaries.
Section 4.12 Disposition of Assets. Sell, lease,
license, transfer or otherwise dispose of any asset or any
interest therein, except that this Section 4.12 shall not apply
to (a) any disposition of any asset or any interest therein in
the ordinary course of business, (b) any disposition of any
obsolete or retired property not used or useful in its business,
(c) any disposition of any asset or any interest therein to a
Borrower or a Significant Subsidiary, (d) a Required Asset Sale,
(e) any disposition of any asset or interest therein by Cogenex,
provided that, prior to each such disposition, EUA has provided
to the Agent written notice thereof, together with evidence
satisfactory to the Agent that no Default under Section 4.19
shall have occurred and be continuing or would result from such
disposition and, if the Guarantor is no longer liable under
Section 9.01, that the Cogenex Coverage Ratio is equal to or
greater than 1.1 both immediately before and after giving effect
to such disposition, provided, however, that no such notice or
evidence described in the immediately preceding proviso shall be
required in the case of dispositions referred to in clause (a) or
(b) above by Cogenex, (f) any transaction to which any of the
other provisions of this Agreement (other than Section 4.15) is
by its express terms inapplicable and (g) transactions permitted
by Section 4.17.
Section 4.13 Taxes of Other Persons. (a) File a
consolidated tax return with any other Person other than EUA and
its Consolidated Subsidiaries, or (b) except as required by
Applicable Law, pay or enter into any Contract to pay any Taxes
owing by any Person other than EUA and its Consolidated
Subsidiaries.
Section 4.14 Benefit Plans. (a) (i) Have, or permit
any of its ERISA Affiliates to have, any Benefit Plan other than
an Existing Benefit Plan or (ii) permit any Existing Benefit Plan
to be amended in any manner, that, in either case, would cause
the aggregate Unfunded Benefit Liabilities under all Existing
Benefit Plans to exceed $10,000,000; or (b) permit any Existing
Benefit Plan to have a Funded Current Liability Percentage of
less than 60%.
Section 4.15 Transactions with Affiliates. Except [as
specified in Schedule 4.15 or] as may be otherwise required under
the Public Utility Holding Company Act of 1935, effect any
transaction with any Affiliate that is on a basis less favorable
than would at the time be obtainable for a comparable transaction
in arms-length dealing with an unrelated third party.
Section 4.16 Limitation on Restrictive Covenants.
Permit to exist, at any time, any consensual restriction limiting
the ability (whether by covenant, event of default, subordination
or otherwise) of any Subsidiary to (a) pay dividends or make any
other distributions on shares of its capital stock held by the
Borrower or any other Subsidiary, (b) pay any obligation owed to
the Borrower or any other Subsidiary, (c) make any loans or
advances to or investments in the Borrower or in any other
Subsidiary, (d) transfer any of its property or assets to the
Borrower or any other Subsidiary or (e) create any Lien upon its
property or assets whether now owned or hereafter acquired or
upon any income or profits therefrom, except that this Section
4.16 shall not apply to Permitted Restrictive Covenants.
Section 4.17 Issuance or Disposition of Capital
Securities. Issue any of its Capital Securities or sell, transfer
or otherwise dispose of any Capital Securities of such Borrower
or any Significant Subsidiary thereof, except that this Section
4.17 shall not apply to (a) any issuance or disposition of
Capital Securities of EUA, (b) any issuance or disposition of
preferred stock of any Regulated Borrower, so long as such
preferred stock is not convertible into common stock of such
Regulated Borrower or (c) any issuance or disposition of Capital
Securities of Cogenex that would not result in a Default under
Section 6.01(j).
C. EUA shall not:
Section 4.18 EUA Capitalization Ratio. Permit, at any
time, the aggregate principal amount of all Consolidated
Indebtedness (excluding any portion of Consolidated Indebtedness
consisting of Mandatorily Redeemable Stock) of EUA and its
Consolidated Subsidiaries at such time to exceed 70% of EUA
Capitalization determined as of the last day of the most recent
fiscal quarter of EUA.
D. Cogenex shall not:
Section 4.19 Cogenex Capitalization Ratio. Permit, at
any time, the aggregate principal amount of all Consolidated
Indebtedness (excluding any portion of Consolidated Indebtedness
consisting of Mandatorily Redeemable Stock) of Cogenex and its
Consolidated Subsidiaries at such time to exceed 80% of Cogenex
Capitalization determined as of the last day of the most recent
fiscal quarter of Cogenex.
ARTICLE 5
INFORMATION
Section 5.01 Information to Be Furnished. From the
Agreement Date and until the Repayment Date, each Borrower shall
furnish to each Bank:
(a) Quarterly Financial Statements. As soon as
available and in any event within 45 days, or, in the case of
Cogenex and Ocean State, within 60 days, after the close of each
of the first three quarterly accounting periods in each fiscal
year of such Borrower, commencing with the quarterly period
ending March 31, 1997, consolidated balance sheets of such
Borrower and its Consolidated Subsidiaries as at the end of such
quarterly period and the related consolidated statements of
income, retained earnings and cash flows of such Borrower and its
Consolidated Subsidiaries for such quarterly period and for the
elapsed portion of the fiscal year ended with the last day of
such quarterly period, setting forth in each case in comparative
form the figures for the corresponding periods of the previous
fiscal year.
(b) Year-End Financial Statements; Accountants'
Certificate. As soon as available and in any event within 90
days, or, in the case of Cogenex and Ocean State, within 120
days, after the end of each fiscal year of such Borrower,
commencing with the fiscal year ending December 31, 1996:
(i) consolidated balance sheets of such Borrower
and its Consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of
income, retained earnings and cash flows of such Borrower
and its Consolidated Subsidiaries for such fiscal year,
setting forth in comparative form the figures as at the end
of and for the previous fiscal year; and
(ii) an audit report of Coopers & Lybrand L.L.P.,
or other independent certified public accountants of
recognized standing, on such of the financial statements
referred to in clause (i) as are consolidated financial
statements, which report shall be in scope and substance
satisfactory to the Required Banks.
(c) Officer's Certificate as to Financial Statements
and Defaults. At the time that financial statements are
furnished pursuant to Section 5.01(a) or (b), a certificate of
the President, the Treasurer or any Assistant Treasurer of EUA or
the Vice President, Finance or any Assistant Treasurer of Service
in the form of Schedule 5.01(c).
(d) Reports and Filings. Promptly upon receipt
thereof, copies of all reports, if any, submitted to a Borrower
or any of its Consolidated Subsidiaries, or the Board of
Directors of such Borrower or Consolidated Subsidiary thereof, by
its independent certified public accountants, including any
management letter; (i) as soon as practicable, copies of all such
financial statements and reports as such Borrower or Consolidated
Subsidiary thereof shall send to its stockholders and of all
registration statements and all regular or periodic reports that
such Borrower or Consolidated Subsidiary thereof shall file, or
may be required to file, with the Securities and Exchange
Commission or any successor commission.
(e) Requested Information. From time to time and
promptly upon request of any Bank, such Information regarding the
Loan Documents, the Loans or the business, assets, Liabilities,
financial condition, results of operations or business prospects
of such Borrower and its Significant Subsidiaries as such Bank
may reasonably request, in each case in form and substance and
certified in a manner satisfactory to the requesting Bank.
(f) Notice of Defaults, Material Adverse Changes and
Other Matters. Prompt notice of:
(i) any Default,
(ii) the acquisition or formation of a new
Significant Subsidiary and, in the case of each such new
Significant Subsidiary, its name, jurisdiction of
incorporation, the percentages of the various classes of its
Capital Securities owned by such Borrower or another
Subsidiary and whether or not such new Significant
Subsidiary is a Consolidated Subsidiary,
(iii) any change in the name of any Significant
Subsidiary, its jurisdiction of incorporation, the
percentages of the various classes of its Capital Securities
owned by such Borrower or another Subsidiary or its status
as a Consolidated or non-Consolidated Subsidiary,
(iv) the commencement of, or the occurrence or
nonoccurrence of any change or event relating to, any
action, suit or proceeding that would cause the
Representation and Warranty contained in Section 3.05 to be
incorrect if made at such time,
(v) the occurrence or nonoccurrence of any change
or event that would cause the Representation and Warranty
contained in Section 3.07 to be incorrect if made at such
time,
(vi) any change in the S&P Rating or the Moody's
Rating,
(vii) any event or condition referred to in clauses
(i) through (vii) of Section 6.01(h), whether or not such
event or condition shall constitute an Event of Default, and
(viii) any amendment of the certificate of
incorporation or by-laws of such Borrower.
Section 5.02 Accuracy of Financial Statements and
Information. Historical Financial Statements. Each
Borrower hereby represents and warrants that (i) Schedule 5.02(a)
sets forth a complete and correct list of the financial
statements submitted by such Borrower to the Banks in order to
induce them to execute and deliver this Agreement, (ii) such
financial statements are complete and correct and present fairly,
in accordance with Generally Accepted Accounting Principles, the
consolidated financial position of such Borrower and its
Consolidated Subsidiaries as at their respective dates and the
consolidated results of operations, retained earnings and, as
applicable, changes in financial position or cash flows of the
Borrower and such Subsidiaries for the respective periods to
which such statements relate, and (iii) except as disclosed or
reflected in such financial statements, as at September 30, 1996,
neither such Borrower nor any Subsidiary thereof had any
Liability, contingent or otherwise, or any unrealized or
anticipated loss, that, singly or in the aggregate, has had or
could reasonably be expected to have a Materially Adverse Effect
on such Borrower and its Consolidated Subsidiaries taken as a
whole.
(b) Future Financial Statements. The financial
statements delivered by each Borrower pursuant to Section 5.01(a)
or (b) shall be complete and correct and present fairly, in
accordance with Generally Accepted Accounting Principles (except
for changes therein or departures therefrom that are described in
the certificate or report accompanying such statements and that
have been approved in writing by such Borrower's then current
independent certified public accountants), the consolidated
financial position of such Borrower and its Consolidated
Subsidiaries as at their respective dates and the consolidated
results of operations, retained earnings and cash flows of the
Borrower and such Subsidiaries for the respective periods to
which such statements relate, and the furnishing of the same to
the Banks shall constitute a representation and warranty by such
Borrower made on the date the same are furnished to the Banks to
that effect and to the further effect that, except as disclosed
or reflected in such financial statements, as at the respective
dates thereof, neither such Borrower nor any Subsidiary thereof
had any Liability, contingent or otherwise, or any unrealized or
anticipated loss, that, singly or in the aggregate, has had or
might have a Materially Adverse Effect on such Borrower and its
Consolidated Subsidiaries taken as a whole.
(c) Historical Information. Each Borrower hereby
represents and warrants that all written Information furnished to
the Agent or the Banks by or on behalf of such Borrower prior to
the Agreement Date in connection with or pursuant to the Loan
Documents and the relationships established thereunder, at the
time the same was so furnished, but in the case of written
Information dated as of a prior date, as of such date, (i) in the
case of any written Information prepared in the ordinary course
of business, was complete and correct in the light of the purpose
prepared, and, in the case of any written Information the
preparation of which was requested by any Bank, was complete and
correct in all material respects to the extent necessary to give
such Bank true and accurate knowledge of the subject matter
thereof, (ii) did not contain any untrue statement of a material
fact, and (iii) did not omit to state a material fact necessary
in order to make the statements contained therein (taken as a
whole) not misleading in the light of the circumstances under
which they were made.
(d) Future Information. All written Information
furnished to the Agent or the Banks by or on behalf of each
Borrower on or after the Agreement Date in connection with or
pursuant to the Loan Documents or in connection with or pursuant
to any amendment or modification of, or waiver of rights under,
the Loan Documents, shall, at the time the same is so furnished,
but in the case of written Information dated as of a prior date,
as of such date, (i) in the case of any written Information
prepared in the ordinary course of business, be complete and
correct in the light of the purpose prepared, and, in the case of
any written Information required by the terms of the Loan
Documents or the preparation of which was requested by any Bank,
be complete and correct to the extent necessary to give such Bank
true and accurate knowledge of the subject matter thereof, (ii)
not contain any untrue statement of a material fact, and (iii)
not omit to state a material fact necessary in order to make the
statements contained therein (taken as a whole) not misleading in
the light of the circumstances under which they were made, and
the furnishing of the same to the Agent or any Bank shall
constitute a representation and warranty by the applicable
Borrower made on the date the same are so furnished to the effect
specified in clauses (i), (ii) and (iii).
Section 5.03 Additional Covenants Relating to
Disclosure. From the Agreement Date and until the Repayment
Date, each Borrower shall and shall cause each of its Significant
Subsidiaries to:
(a) Visits, Inspections and Discussions. Permit, or,
in the case of premises, property, books, records or Persons not
within its immediate control, make reasonable efforts in order to
permit, representatives (whether or not officers or employees) of
any Bank or Swing Loan Lender, from time to time, as often as may
be reasonably requested, to (i) visit any of its premises or
property or any premises or property of others on which any of
its property or books and records (or books and records of others
relating to it) may be located, (ii) inspect, and verify the
amount, character and condition of, any of its property, (iii)
review and make extracts from its books and records and books and
records of others relating to it, including management letters
prepared by its independent certified public accountants, and
(iv) discuss with its principal officers and, upon notice to EUA
giving EUA a reasonable opportunity to participate, with its
independent certified public accountants its business, assets,
Liabilities, financial condition, results of operation and
business prospects.
(b) Accounting Methods and Financial Records.
Maintain a system of accounting, and keep such books, records and
accounts (which shall be true and complete), as may be required
or necessary to permit (i) the preparation of financial
statements required to be delivered pursuant to Section 5.01(a)
and (b) and (ii) the determination of the compliance of such
Borrower and its Significant Subsidiaries with the terms of the
Loan Documents.
(c) Fiscal Year. Maintain the same opening and
closing dates for each fiscal year as for the fiscal year
reflected in the Base Financial Statements or, if the opening and
closing dates for the fiscal year reflected in the Base Financial
Statements were determined pursuant to a formula, determine the
opening and closing dates for each fiscal year pursuant to the
same formula.
Section 5.04 Authorization of Third Parties to Deliver
Information and Discuss Affairs. Each Borrower shall be deemed
to have authorized and directed each Person whose preparation or
delivery to the Agent or the Banks of any opinion, report or
other Information is a condition or covenant under the Loan
Documents (including under Article 2 or this Article 5) to so
prepare or deliver such Information for the benefit of the Agent
and the Banks. Each Borrower agrees to promptly execute and
deliver from time to time such further authorizations to effect
the purposes of this Section 5.04 as the Agent or any Bank may
reasonably request.
ARTICLE 6
DEFAULT
Section 6.01 Events of Default. Each of the following
shall constitute an Event of Default, whatever the reason for
such event and whether it shall be voluntary or involuntary, or
within or without the control of the applicable Borrower or any
Subsidiary thereof, or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule
or regulation of any governmental or nongovernmental body:
(a) Any payment of principal of or interest on any of
the Loans or the Notes or of fees shall not be made when and as
due (whether at maturity, by reason of notice of prepayment or
acceleration or otherwise) and in accordance with the terms of
this Agreement and the Notes and, except in the case of payments
of principal, such failure shall continue for five days;
(b) Any Representation and Warranty made by any of the
Borrowers shall at any time prove to have been incorrect or
misleading in any material respect when made;
(c) A Borrower shall default in the performance or
observance of:
(i) any term, covenant, condition or agreement
contained in Section 4.01 (insofar as such Section requires
the preservation of the corporate existence of such
Borrower), 4.06, 4.08 through 4.19 or 5.01(f)(i); or
(ii) any term, covenant, condition or agreement
contained in this Agreement (other than a term, covenant,
condition or agreement a default in the performance or
observance of which is elsewhere in this Section
specifically dealt with) and, if capable of being remedied,
such default shall continue unremedied for a period of 30
days;
(d) (i) A Borrower or any Significant Subsidiary
thereof shall fail to pay, in accordance with its terms and when
due and payable, any of the principal of or interest on any of
its Indebtedness (other than the Loans) having a then outstanding
principal amount in excess of $10,000,000, (ii) the maturity of
any such Indebtedness shall, in whole or in part, have been
accelerated, or any such Indebtedness shall, in whole or in part,
have been required to be prepaid prior to the stated maturity
thereof, in accordance with the provisions of any Contract
evidencing, providing for the creation of or concerning such
Indebtedness, or (iii) (A) any event shall have occurred and be
continuing (and not effectively waived) that permits (or, with
the passage of time or the giving of notice or both, would
permit) any holder or holders of such Indebtedness, any trustee
or agent acting on behalf of such holder or holders or any other
Person so to accelerate such maturity or require any such
prepayment and (B) if the Contract evidencing, providing for the
creation of or concerning such Indebtedness provides for a cure
period for such event, such event shall not be cured prior to the
end of such cure period;
(e) A default shall be continuing under any Contract
(other than a Contract relating to Indebtedness to which clause
(d) of this Section 6.01 is applicable) binding upon a Borrower
or any Significant Subsidiary thereof, except a default that,
together with all other such defaults, has not had and will not
have a Materially Adverse Effect on (i) such Borrower and its
Consolidated Subsidiaries taken as a whole or, in the case of a
Contract binding upon Cogenex or any Significant Subsidiary
thereof and for so long as the Guarantor is liable under Section
9.01, Cogenex and EUA and their Consolidated Subsidiaries taken
as a whole or (ii) any Loan Document;
(f)(i) A Borrower or any Significant Subsidiary
thereof shall (A) commence a voluntary case under the Federal
bankruptcy laws (as now or hereafter in effect), (B) file a
petition seeking to take advantage of any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, (C) consent to
or fail to contest in a timely and appropriate manner any
petition filed against it in an involuntary case under such
bankruptcy laws or other laws, (D) apply for, or consent to, or
fail to contest in a timely and appropriate manner, the
appointment of, or the taking of possession by, a receiver,
custodian, trustee, liquidator or the like of itself or of a
substantial part of its assets, domestic or foreign, (E) admit in
writing its inability to pay, or generally not be paying, its
debts (other than those that are the subject of bona fide
disputes) as they become due, (F) make a general assignment for
the benefit of creditors, or (G) take any corporate action for
the purpose of effecting any of the foregoing;
(ii) (A) A case or other proceeding shall be
commenced against a Borrower or any Significant Subsidiary
thereof seeking (1) relief under the Federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, or (2) the
appointment of a trustee, receiver, custodian, liquidator or the
like of such Borrower or any Significant Subsidiary thereof, or
of all or any substantial part of the assets, domestic or
foreign, of such Borrower or any Significant Subsidiary thereof,
and such case or proceeding shall continue undismissed and
unstayed for a period of 30 days, or (B) an order granting the
relief requested in such case or proceeding against such Borrower
or any Significant Subsidiary thereof (including an order for
relief under such Federal bankruptcy laws) shall be entered;
(g) A judgment or order shall be entered against a
Borrower or any Significant Subsidiary thereof by any court, and
(i) in the case of a judgment or order for the payment of money,
either (A) such judgment or order shall continue undischarged and
unstayed for a period of 60 days in which the aggregate amount of
all such judgments and orders exceeds $10,000,000 or (B)
enforcement proceedings shall have been commenced upon such
judgment or order, the amount of which, together with the
aggregate amount of all other judgments and orders with respect
to which enforcement proceedings shall have commenced, exceeds
$10,000,000 and (ii) in the case of any judgment or order for
other than the payment of money, such judgment or order, together
with all other such judgments or orders, could reasonably be
expected to have a Materially Adverse Effect on such Borrower and
its Consolidated Subsidiaries taken as a whole or, in the case of
Cogenex or any Significant Subsidiary thereof and for so long as
the Guarantor is liable under Section 9.01, on Cogenex and EUA
and their Consolidated Subsidiaries taken as a whole;
(h) (i) Any Termination Event shall occur with respect
to any Benefit Plan of a Borrower, any Significant Subsidiary
thereof or any of their respective ERISA Affiliates, (ii) any
Accumulated Funding Deficiency, whether or not waived, shall
exist with respect to any such Benefit Plan, (iii) any Person
shall engage in any Prohibited Transaction involving any such
Benefit Plan, (iv) a Borrower, any Significant Subsidiary thereof
or any of their respective ERISA Affiliates shall be in "default"
(as defined in ERISA Section 4219(c)(5)) with respect to payments
owing to any such Benefit Plan that is a Multiemployer Benefit
Plan as a result of such Person's complete or partial withdrawal
(as described in ERISA Section 4203 or 4205) therefrom, (v) a
Borrower, any Significant Subsidiary thereof or any of their
respective ERISA Affiliates shall fail to pay when due an amount
that is payable by it to the PBGC or to any such Benefit Plan
under Title IV of ERISA, (vi) a proceeding shall be instituted by
a fiduciary of any such Benefit Plan against a Borrower, any
Significant Subsidiary thereof or any of their respective ERISA
Affiliates to enforce ERISA Section 515 and such proceeding shall
not have been dismissed within 30 days thereafter, or (vii) any
other event or condition shall occur or exist with respect to any
such Benefit Plan, except that no event or condition referred to
in clauses (i) through (vii) shall constitute an Event of Default
if it, together with all other such events or conditions at the
time existing, has not subjected, and in the reasonable
determination of the Required Banks will not subject, the
Borrower or any Significant Subsidiary thereof to any Liability
that, alone or in the aggregate with all such Liabilities for all
such Persons, exceeds $10,000,000;
(i) A Borrower or any of its Affiliates asserts, or a
Borrower or any of its Affiliates institutes any proceedings
seeking to establish, that any provision of the Loan Documents is
invalid, not binding or unenforceable; or
(j) EUA shall at any time beneficially own, directly
or indirectly, (i) less than 100% of the issued and outstanding
shares of common stock of Blackstone, Eastern, Montaup, Newport,
Ocean State or Service, or (ii) less than 51% of the issued and
outstanding shares of common stock of Cogenex.
Section 6.02 Remedies upon Event of Default.
During the continuance of any Event of Default caused by,
relating to or otherwise with respect to a Borrower (other than
an Event of Default under Section 4.18, 6.01(a), 6.01(d)(ii),
6.01(f) or 6.01(h)), and in every such event, the Agent, upon
notice to such Borrower, may do either or both of the following:
(i) declare, in whole or, from time to time, in part, the
principal of and interest on the Loans and the Notes of such
Borrower and all other amounts owing by such Borrower under the
Loan Documents to be, and such Loans and such Notes and all such
other amounts applicable to such Borrower shall thereupon and to
that extent become, due and payable by such Borrower and (ii)
terminate, in whole or, from time to time, in part, the
Commitments with respect to such Borrower.
(b) During the continuance of (i) Events of Default
caused by, relating to or otherwise with respect to more than one
Borrower (other than one specified in Section 6.01(f) with
respect to any such Borrower) or (ii) an Event of Default
constituting an Event of Default under Section 4.18, 6.01(a),
6.01(d)(ii) or 6.01(h), and in every such event, the Agent, upon
notice to the applicable Borrowers, may do either or both of the
following: (A) declare, in whole or, from time to time, in part,
the principal of and interest on the Loans and the Notes and all
other amounts owing under the Loan Documents to be, and the Loans
and the Notes and all such other amounts shall thereupon and to
that extent become, due and payable and (B) terminate, in whole
or, from time to time, in part, the Commitments; provided,
however, that the Agent shall not exercise any of the remedies
referred to in sub-clauses (A) and (B) above with respect to the
Loans and Notes of, or the Commitments in favor of, a Regulated
Borrower (unless the Event of Default in question was caused by,
related to or was otherwise with respect to such Regulated
Borrower) if such Regulated Borrower demonstrated to the
reasonable satisfaction of the Required Banks that the aggregate
principal amount of all Consolidated Indebtedness of such
Regulated Borrower and its Consolidated Subsidiaries at such time
does not exceed 65% of its Regulated Borrower Capitalization
determined as of the last day of the most recent fiscal quarter
of such Regulated Borrower.
(c) Upon the occurrence of an Event of Default with
respect to any Borrower under Section 6.01(f), automatically and
without any notice to such Borrower, (i) the principal of and
interest on the Loans and the Notes of such Borrower and all
other amounts owing by such Borrower under the Loan Documents
shall be due and payable by such Borrower and (ii) the
Commitments with respect to such Borrower shall terminate.
(d) Presentment, demand, protest or notice of any kind
(other than the notices provided for in clauses (a) and (b) of
this Section 6.02) are hereby expressly waived.
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01 Mandatory Suspension and Conversion of
Eurodollar Rate Loans. (a) A Bank's obligations to make,
continue or convert into Eurodollar Rate Loans of any Type shall
be suspended, all such Bank's outstanding RC Loans of that Type
shall be converted on the last day of their applicable Interest
Periods (or, if earlier, in the case of clause (iii) below, on
the last day such Bank may lawfully continue to maintain RC Loans
of that Type or, in the case of clause (iv) below, on the day
determined by such Bank to be the last Business Day before the
effective date of the applicable restriction) into, and, unless
cancelled by the applicable Borrower, all pending requests for
the making or continuation of or conversion into Loans of such
Type by such Bank shall be deemed requests for, Base Rate Loans,
if:
(i) on or prior to the determination of an
interest rate for a Eurodollar Rate Loan of that Type for
any Interest Period, the Agent determines that for any
reason appropriate information is not available to it for
purposes of determining the Adjusted Eurodollar Rate for
such Interest Period;
(ii) on or prior to the first day of any Interest
Period for a Eurodollar Rate Loan of that Type, the Required
Banks notify the Agent that the Adjusted Eurodollar Rate as
determined by the Agent for such Interest Period would not
accurately reflect the cost to such Banks of making,
continuing or converting into a Eurodollar Rate Loan of such
Type for such Interest Period;
(iii) at any time such Bank determines that any
Regulatory Change Enacted after the Agreement Date makes it
unlawful or impracticable for such Bank or its applicable
Lending Office to make, continue or convert into any
Eurodollar Rate Loan of that Type, or to comply with its
obligations hereunder in respect thereof; or
(iv) such Bank determines that, by reason of any
Regulatory Change Enacted after the Agreement Date, such
Bank or its applicable Lending Office is substantially
restricted, directly or indirectly, in the amount that it
may hold of (A) a category of liabilities that includes
deposits by reference to which, or on the basis of which,
the interest rate applicable to Eurodollar Rate Loans of
that Type is directly or indirectly determined or (B) the
category of assets that includes Eurodollar Rate Loans of
that Type.
(b) A Bank's Bid Rate Loans of any Type shall be
converted into Base Rate Loans (in the case of clause (i) below,
on the last day such Bank may lawfully continue to maintain Loans
of that Type, and, in the case of clause (ii) below, on the day
determined by such Bank to be the last Business Day before the
effective date of the applicable restriction) if:
(i) at any time such Bank determines that any
Regulatory Change Enacted after the Agreement Date makes it
unlawful for such Bank or its applicable Lending Office to
maintain any Bid Rate Loan of that Type, or to comply with
its obligations hereunder in respect thereof; or
(ii) such Bank determines that, by reason of any
Regulatory Change Enacted after the Agreement Date, such
Bank or its applicable Lending Office is restricted,
directly or indirectly, in the amount that it may hold of
(A) a category of liabilities that includes deposits by
reference to which, or on the basis of which, the interest
rate applicable to Bid Rate Loans of that Type is directly
or indirectly determined, or (B) the category of assets that
include Bid Rate Loans of that Type.
(c) If, as a result of this Section 7.01, any Loan of
any Bank that would otherwise be made or maintained as or
converted into a Eurodollar Rate Loan of any Type for any
Interest Period is instead made or maintained as or converted
into a Base Rate Loan, then, unless the corresponding Loan of
each of the other Banks is also to be made or maintained as or
converted into a Base Rate Loan, such Loan shall be treated as
being a Eurodollar Rate Loan of such Type for such Interest
Period for all purposes of this Agreement (including the timing,
application and proration among the Banks of interest payments,
conversions and prepayments) except for the calculation of the
interest rate borne by such Loan. The Agent shall promptly
notify the Borrowers and each Bank of the existence or occurrence
of any condition or circumstance specified in clause (a)(i)
above, and each Bank shall promptly notify the Borrowers and the
Agent of the existence or occurrence of any condition or
circumstance specified in clauses (a)(ii), (a)(iii), (a)(iv),
(b)(i) or (b)(ii) above applicable to such Bank's Loans, but the
failure by the Agent or such Bank to give any such notice shall
not affect such Bank's rights hereunder.
Section 7.02 Regulatory Changes. If in the
determination of any Bank (a) any Regulatory Change Enacted after
the Agreement Date shall directly or indirectly (i) reduce the
amount of any sum received or receivable by such Bank with
respect to any Eurodollar Rate Loan or Bid Rate Loan or the
return to be earned by such Bank on any such Loan, (ii) impose a
cost on such Bank or any Affiliate of such Bank that is
attributable to the making, funding or maintaining of, or such
Bank's commitment to make, any such Loan or (iii) require such
Bank or any Affiliate of such Bank to make any payment on or
calculated by reference to the gross amount of any amount
received by such Bank under any Loan Document and (b) such
increased cost or payment shall not be fully compensated for by
an adjustment in the applicable rates of interest payable under
the Loan Documents, then the applicable Borrower shall pay to
such Bank such additional amounts as such Bank determines will,
together with any adjustment in the applicable rates of interest
payable hereunder, fully compensate for such increased cost or
payment. Such additional amounts shall be payable, in the case
of those applicable to prior periods, within 15 days after
request by such Bank for such payment and, in the case of those
applicable to future periods, on the dates specified, or
determined in accordance with a method specified, by such Bank.
Each Bank will promptly notify the applicable Borrower of any
determination made by it referred to in clauses (a) and (b)
above, but the failure to give such notice shall not affect such
Bank's right to compensation.
Section 7.03 Capital Requirements. If, in the
determination of any Bank, such Bank or any Affiliate of such
Bank is required, under Applicable Law, interpretations,
directives, requests and guidelines (whether or not having the
force of law), to maintain capital on account of any Loan or such
Bank's commitment to make any Loan, then, upon request by such
Bank, the applicable Borrower shall from time to time thereafter
pay to such Bank such additional amounts as such Bank determines
will fully compensate for any reduction in the rate of return on
the capital that such Bank or such Affiliate is so required to
maintain on account of such Loan or commitment suffered as a
result of such capital requirement. Such additional amounts
shall be payable, in the case of those applicable to prior
periods, within 15 days after request by such Bank for such
payment and, in the case of those relating to future periods, on
the dates specified, or determined in accordance with a method
specified, by such Bank.
Section 7.04 Funding Losses. Each Borrower shall pay
to each Bank, within 15 days after request by such Bank of such
payment, such amount or amounts as such Bank determines are
necessary to compensate it for any loss, cost or expense incurred
by it as a result of (a) any payment, prepayment or conversion of
a Eurodollar Rate Loan or any payment or prepayment of a Bid Rate
Loan on a date other than the last day of an Interest Period for
such Eurodollar Rate Loan or Bid Rate Loan, as the case may be,
or (b) a Eurodollar Rate Loan or a Bid Rate Loan for any reason
not being made or, in the case of a Eurodollar Rate Loan,
converted, or any payment of principal thereof or interest
thereon not being made, on the date therefor determined in
accordance with the applicable provisions of this Agreement. At
the election of such Bank, and without limiting the generality of
the foregoing, but without duplication, such compensation on
account of losses may include an amount equal to the excess of
(i) the interest that would have been received from the
applicable Borrower under this Agreement on any amounts to be
reemployed during an Interest Period or its remaining portion
over (ii) the interest component of the return that such Bank
determines it could have obtained had it placed such amount on
deposit in the interbank Dollar market selected by it for a
period equal to such Interest Period or its remaining portion.
Section 7.05 Certain Determinations. In making the
determinations contemplated by Sections 7.01, 7.02, 7.03 and
7.04, each Bank may make such estimates, assumptions, allocations
and the like that such Bank reasonably determines to be
appropriate, and such Bank's selection thereof in accordance with
this Section 7.05, and the determinations made by such Bank on
the basis thereof, shall be final, binding and conclusive upon
the Borrowers, except, in the case of such determinations, for
manifest errors in computation or transmission. Each Bank shall
furnish to the Borrowers upon request a certificate outlining in
reasonable detail the computation of any amounts claimed by it
under Sections 7.02, 7.03 and 7.04 and the assumptions underlying
such computations.
Section 7.06 Change of Lending Office. If an event
occurs with respect to a Lending Office of any Bank that makes
operable the provisions of clause (a)(iii), (a)(iv), (b)(i) or
(b)(ii) of Section 7.01 or entitles such Bank to make a claim
under Section 1.13(a), 7.02 or 7.03, such Bank shall, if
requested by a Borrower, use reasonable efforts to designate
another Lending Office or Offices the designation of which will
eliminate such operability or reduce the amount such Bank is so
entitled to claim, provided that such designation would not, in
the sole and absolute discretion of such Bank, be disadvantageous
to such Bank in any manner or contrary to such Bank's policies.
Each Bank may at any time and from time to time change any
Lending Office and shall give notice of any such change to the
Agent and the Borrowers. Except in the case of a change in
Lending Offices made at the request of a Borrower, the
designation of a new Lending Office by any Bank shall not make
operable the provisions of clause (a)(iii), (a)(iv), (b)(i) or
(b)(ii) of Section 7.01 or entitle such Bank to make a claim
under Section 1.13(a), 7.02 or 7.03 if the operability of such
clause or such claim results solely from such designation and not
from a Regulatory Change Enacted thereafter.
Section 7.07. Replacement of Banks. If (a) any Bank
requests compensation pursuant to Section 1.13, 7.02 or 7.03, (b)
such Bank's obligation to make or continue, or to convert Loans
of any other Type into, any Type of Eurodollar Rate Loan shall be
suspended pursuant to Section 7.01 or (c) such Bank, for reasons
other than the determination by such Bank that the conditions to
lending have not been fulfilled, does not make available any RC
Loans requested pursuant to Section 1.02(a), EUA, upon three
Business Days' notice, may require that such Bank transfer all of
its right, title and interest under this Agreement and such
Bank's Notes to any bank or financial institution identified by
the Borrower and consented to by the Agent (which consent shall
not be unreasonably withheld or delayed) (i) if such proposed
transferee agrees to assume all of the obligations of such Bank
for consideration equal to the outstanding principal amount of
such Bank's Loans, together with interest thereon to the date of
such transfer, and satisfactory arrangements are made for payment
to such Bank of all other amounts payable hereunder to such Bank
on or prior to the date of such transfer (including any fees
accrued hereunder and any amounts that would be payable under
Section 7.04 as if all of such Bank's Loans were being prepaid in
full on such date) and (ii) if such Bank being replaced has
requested compensation pursuant to Section 1.13, 7.02 or 7.03,
the aggregate compensation, if any, pursuant to Section 1.13,
7.02 or 7.03 with respect to such replaced Bank's Loans that
could have been claimed by such proposed transferee had it been
the Bank holding such Loans would not, at the time of the
proposed transfer, be greater than the amount of such
compensation requested by the Bank replaced. Without prejudice
to the survival of any other agreement of the Borrowers
hereunder, the agreements of the Borrowers contained in Sections
1.13, 7.02, 7.03, 7.04 and 10.02 (without duplication of any
payments made to such Bank by the Borrowers or the proposed
transferee) shall survive for the benefit of any Bank replaced
under this Section 7.07 with respect to the time prior to such
replacement.
ARTICLE 8
THE AGENT
Section 8.01 Appointment and Powers. Each Bank hereby
irrevocably appoints and authorizes The Bank of New York, and The
Bank of New York hereby agrees, to act as the agent for such Bank
under the Loan Documents with such powers as are delegated to the
Agent by the terms thereof, together with such other powers as
are reasonably incidental thereto. The Agent's duties shall be
purely ministerial and it shall have no duties or
responsibilities except those expressly set forth in the Loan
Documents. The Agent shall not be required under any
circumstances to take any action that, in its judgment, (a) is
contrary to any provision of the Loan Documents or Applicable Law
or (b) would expose it to any Liability or expense against which
it has not been indemnified to its satisfaction. The Agent shall
not, by reason of its serving as the Agent, be a trustee or other
fiduciary for any Bank.
Section 8.02 Limitation on Agent's Liability. Neither
the Agent nor any of its directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to
be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or
willful misconduct. The Agent shall not be responsible to any
Bank for (a) any recitals, statements, representations or
warranties contained in the Loan Documents or in any certificate
or other document referred to or provided for in, or received by
any of the Banks under, the Loan Documents, (b) the validity,
effectiveness or enforceability of the Loan Documents or any such
certificate or other document or (c) any failure by any Borrower
to perform any of its obligations under the Loan Documents. The
Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents
or attorneys-in-fact so long as the Agent was not grossly
negligent in selecting or directing such agents or
attorneys-in-fact. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any
thereof by telephone, telex, telecopier, telegram or cable)
believed by it to be genuine and correct and to have been signed
or given by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. As to any
matters not expressly provided for by the Loan Documents, the
Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Loan Documents in accordance
with instructions signed by the Required Banks, and such
instructions of the Required Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the
Banks.
Section 8.03 Defaults. The Agent shall not be deemed
to have knowledge of the occurrence of a Default with respect to
any Borrower (other than the non-payment to it of principal of or
interest on Loans or fees) unless the Agent has received notice
from a Bank or such Borrower specifying such Default and stating
that such notice is a "Notice of Default". In the event that the
Agent has knowledge of such a non-payment or receives such a
notice of the occurrence of a Default, the Agent shall give
prompt notice thereof to the Banks. In the event of any Default,
the Agent shall (a) in the case of a Default that constitutes an
Event of Default, take either or both of the actions with respect
to the applicable Borrower or Borrowers, as the case may be,
referred to in clauses (i) and (ii) of Section 6.02(a) or clauses
(A) and (B) of Section 6.02(b), respectively, if so directed by
the Required Banks and (b) in the case of any Default, take such
other action with respect to such Default as shall be reasonably
directed by the Required Banks. Unless and until the Agent shall
have received such directions, in the event of any Default, the
Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default as
it shall deem advisable in the best interests of the Banks.
Section 8.04 Rights as a Bank. Each Person acting as
the Agent that is also a Bank shall, in its capacity as a Bank,
have the same rights and powers under the Loan Documents as any
other Bank and may exercise the same as though it were not acting
as the Agent, and the term "Bank" or "Banks" shall include such
Person in its individual capacity. Each Person acting as the
Agent (whether or not such Person is a Bank) and its Affiliates
may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Borrowers and their
respective Affiliates as if it were not acting as the Agent, and
such Person and its Affiliates may accept fees and other
consideration from the Borrowers and their respective Affiliates
for services in connection with the Loan Documents or otherwise
without having to account for the same to the Banks.
Section 8.05 Indemnification. The Banks agree to
indemnify the Agent (to the extent not reimbursed by the
Borrowers hereunder), ratably on the basis of their respective
Commitments, for any and all Liabilities, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent (including
the costs and expenses that the Borrowers are obligated to pay
hereunder) in any way relating to or arising out of the Loan
Documents or any other documents contemplated thereby or referred
to therein or the transactions contemplated thereby or the
enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the
foregoing to the extent (a) they are subject to the indemnity
contemplated by the last sentence of Section 10.10(b) or (b) they
arise from gross negligence or willful misconduct by the Agent.
Section 8.06 Non-Reliance on Agent and Other Banks.
Each Bank agrees that it has made and will continue to make,
independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it deems
appropriate, its own credit analysis of the Borrowers and its own
decision to enter into the Loan Documents and to take or refrain
from taking any action in connection therewith. The Agent shall
not be required to keep itself informed as to the performance or
observance by the Borrowers of the Loan Documents or any other
document referred to or provided for therein or to inspect the
properties or books of any Borrower or any Significant Subsidiary
thereof. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by
the Agent under the Loan Documents, the Agent shall have no
obligation to provide any Bank with any information concerning
the business, status or condition of any Borrower or any
Significant Subsidiary thereof or the Loan Documents that may
come into the possession of the Agent or any of its Affiliates.
Section 8.07 Resignation of the Agent. The Agent may
at any time give notice of its resignation to the Banks and the
Borrowers. Upon receipt of any such notice of resignation, the
Required Banks may appoint a successor Agent; provided, that (a)
such successor Agent shall have a combined capital and surplus
equal to or greater than $500,000,000, and (b) EUA has consented
to such successor Agent (such consent not to be unreasonably
withheld or delayed); provided, however, that such consent by EUA
shall not be required in the event that bankruptcy, insolvency or
similar proceedings, whether voluntary or involuntary, have been
commenced by or against EUA. If no successor Agent shall have
been so appointed by the Required Banks and shall have accepted
such appointment within 30 days after the retiring Agent's giving
of notice of resignation, then the retiring Agent may, on behalf
of the Banks and after consultation with EUA, appoint a successor
Agent. Upon the acceptance by any Person of its appointment as a
successor Agent, such Person shall thereupon succeed to and
become vested with all the rights, powers, privileges, duties and
obligations of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations as Agent under the
Loan Documents. After any retiring Agent's resignation as Agent,
the provisions of this Article 8 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent.
ARTICLE 9.
GUARANTY
Section 9.01 Guaranty of Payment and Performance. The
Guarantor hereby (a) guarantees to the Guaranteed Parties the due
and punctual payment and performance of all of the Guaranteed
Obligations in accordance with their respective terms and when
and as due (whether at maturity, by reason of acceleration or
otherwise), or deemed to be due pursuant to Section 9.02, and
(b) agrees so to pay and perform the same when so due, or deemed
to be due, upon demand; provided, however, that, at any time
after June 30, 1998 and upon the event that (i) the Cogenex
Coverage Ratio is equal to or greater than 1.1, (ii) Cogenex has
had a positive Consolidated Net Income for the four most recently
completed quarters (taken as a whole), and (iii) no Default by
Cogenex under Section 6.02(d) has occurred and is continuing
(determined as if the minimum amount of $10,000,000 was
eliminated from such Section and without giving effect to any
waiver that may have been granted by the holder or holders of any
Indebtedness of Cogenex), the Guarantor shall have no further
liability under this Article 9 after such time.
Section 9.02 Continuance and Acceleration of
Guaranteed Obligations upon Certain Events. If:
(a) any Event of Default resulting in the automatic
acceleration of any Guaranteed Obligations shall occur;
(b) any injunction, stay or the like that enjoins any
acceleration, or demand for the payment of any Guaranteed
Obligations that would otherwise be required or permitted
under the Loan Documents shall become effective; or
(c) any Guaranteed Obligations shall be or be
determined to be or become discharged (except as a result of
the payment thereof in full), disallowed, invalid, illegal,
void or otherwise unenforceable (whether by operation of any
present or future law or by order of any court or
governmental agency) against Cogenex;
then (i) such Guaranteed Obligations shall, for all purposes
hereunder, be deemed (A) in the case of clause (c), to continue
to be outstanding and in full force and effect notwithstanding
the unenforceability thereof against Cogenex and (B) if such is
not already the case, to have thereupon become immediately due
and payable and to have commenced bearing interest at the Post-
Default Rate and (ii) the Guaranteed Parties may exercise all of
the rights and remedies hereunder that would be available to them
during an Event of Default.
Section 9.03 Recovered Payments. The Guaranteed
Obligations shall be deemed not to have been paid, observed or
performed, and the Guarantor's obligations hereunder in respect
thereof shall continue and not be discharged, to the extent that
any payment thereof by Cogenex or the Guarantor, or out of the
proceeds of any collateral, is recovered from or paid over by or
for the account of the Guaranteed Parties as a preference or
fraudulent transfer or by virtue of any subordination (whether
present or future or contractual or otherwise) of the Guaranteed
Obligations, whether such recovery or payment over is effected by
any judgment, decree or order of any court or governmental
agency, by any plan of reorganization or by settlement or
compromise by the Guaranteed Parties (whether or not consented to
by Cogenex, the Guarantor or any other guarantor) of any claim
for any such recovery or payment over. The Guarantor hereby
expressly waives, to the extent permitted by Applicable Law, the
benefit of any applicable statute of limitations and agrees that
it shall be liable hereunder whenever such a recovery or payment
over occurs.
Section 9.04 Binding Nature of Certain Adjudications.
The Guarantor shall be conclusively bound by the adjudication in
any action or proceeding, legal or otherwise, involving any
controversy arising under, in connection with, or in any way
related to, any of the Guaranteed Obligations, and by a judgment,
award or decree entered therein, if the Guarantor shall have had
the right, or shall have been given the opportunity, to
participate in such action or proceeding, and shall have been
given notice of such action or proceeding in time to exercise
such right or avail itself of such opportunity, provided that the
foregoing shall not limit any right that the Guarantor may have
under Applicable Law to appeal any such adjudication.
Section 9.05 Nature of Guarantor's Obligations. The
Guarantor's obligations under the Loan Documents (a) are absolute
and unconditional, (b) constitute a guaranty of payment and not a
guaranty of collection, (c) are as primary obligor and not as a
surety only, (d) shall be a continuing guaranty of all present
and future Guaranteed Obligations and all promissory notes and
other documentation given in extension or renewal or substitution
for any of the Guaranteed Obligations and (e) shall be
irrevocable.
Section 9.06 No Release of Guarantor. THE OBLIGATIONS
OF THE GUARANTOR HEREUNDER SHALL NOT BE REDUCED, LIMITED OR
TERMINATED, NOR SHALL THE GUARANTOR BE DISCHARGED FROM ANY
THEREOF, FOR ANY REASON WHATSOEVER (other than, subject to
Section 9.03, the payment, observance and performance of the
Guaranteed Obligations or the satisfaction of the requirements
contained in the proviso of Section 9.01), including (and whether
or not the same shall have occurred or failed to occur once or
more than once and whether or not the Guarantor shall have
received notice thereof):
(a)(i) any increase in the principal amount of, or
interest rate applicable to, (ii) any extension of the time of
payment, observance or performance of, (iii) any other amendment
or modification of any of the other terms and provisions of, (iv)
any release, composition or settlement (whether by way of
acceptance of a plan of reorganization or otherwise) of, (v) any
subordination (whether present or future or contractual or
otherwise) of, or (vi) any discharge, disallowance, invalidity,
illegality, voidness or other unenforceability of, the Guaranteed
Obligations;
(b)(i) any failure to obtain, (ii) any release,
composition or settlement of, (iii) any amendment or modification
of any of the terms and provisions of, (iv) any subordination of,
or (v) any discharge, disallowance, invalidity, illegality,
voidness or other unenforceability of, any other guaranties of
the Guaranteed Obligations;
(c)(i) any failure to obtain or any release of, (ii)
any failure to protect or preserve, (iii) any release,
compromise, settlement or extension of the time of payment of any
obligations constituting, (iv) any failure to perfect or maintain
the perfection or priority of any Lien upon, (v) any
subordination of any Lien upon, or (vi) any discharge,
disallowance, invalidity, illegality, voidness or other
unenforceability of any Lien or intended Lien upon, any
collateral now or hereafter securing the Guaranteed Obligations
or any other guaranties thereof;
(d) any termination of or change in any relationship
between the Guarantor and Cogenex including any such termination
or change resulting from a change in the ownership of the
Guarantor or Cogenex or from the cessation of any commercial
relationship between the Guarantor and Cogenex;
(e) any exercise of, or any election not to exercise
or failure to exercise, delay in the exercise of, waiver of, or
forbearance or other indulgence with respect to, any right,
remedy or power available to the Guaranteed Parties, including
(i) any election not or failure to exercise any right of setoff,
recoupment or counterclaim, (ii) any election of remedies
effected by the Guaranteed Parties, including the foreclosure
upon any real estate constituting election of remedies effected
by the Guaranteed Parties, including the foreclosure upon any
real estate constituting collateral, whether or not such election
affects the right to obtain a deficiency judgment, and (iii) any
election by the Guaranteed Parties in any proceeding under the
Bankruptcy Code of the application of Section 1111(b)(2) of such
Code; and
(f) ANY OTHER ACT OR FAILURE TO ACT OR ANY OTHER EVENT
OR CIRCUMSTANCE THAT (i) VARIES THE RISK OF THE GUARANTOR
HEREUNDER OR (ii), BUT FOR THE PROVISIONS HEREOF, WOULD, AS A
MATTER OF STATUTE OR RULE OF LAW OR EQUITY, OPERATE TO REDUCE,
LIMIT OR TERMINATE THE OBLIGATIONS OF THE GUARANTOR THEREUNDER OR
DISCHARGE THE GUARANTOR FROM ANY THEREOF.
Section 9.07 Certain Waivers. The Guarantor waives:
(a) any requirement, and any right to require, that
any right or power be exercised or any action be taken against
Cogenex or any collateral for the Guaranteed Obligations;
(b) all defenses to, and all setoffs, counterclaims
and claims of recoupment against, the Guaranteed Obligations that
may at any time be available to Cogenex or the Guarantor;
(c) (i) notice of acceptance of and intention to rely
hereunder, (ii) notice of the making or renewal of any Loans of
Cogenex or other extensions of credit to Cogenex hereunder and of
the incurrence or renewal of any other Guaranteed Obligations,
(iii) notice of any of the matters referred to in Section 9.06
and (iv) all other notices that may be required by Applicable Law
or otherwise to preserve any rights against the Guarantor
hereunder, including any notice of default, demand, dishonor,
presentment and protest;
(d) diligence;
(e) any defense based upon, arising out of or in any
way related to (i) any claim that any sale or other disposition
of any collateral for the Guaranteed Obligations was not
conducted in a commercially reasonable fashion or that a public
sale, should the Guaranteed Parties have elected so to proceed,
was, in and of itself, not a commercially reasonable method of
sale, (ii) any claim that any election of remedies by the
Guaranteed Parties, including the exercise by the Guaranteed
Parties of any rights against any collateral, impaired, reduced,
released or otherwise extinguished any right that the Guarantor
might otherwise have had against Cogenex or against any
collateral, including any right of subrogation, exoneration,
reimbursement or contribution or right to obtain a deficiency
judgment, (iii) any claim based upon, arising out of or in any
way related to any of the matters referred to in Section 9.07 and
(iv) any claim that the Loan Documents should be strictly
construed against the Guaranteed Parties; and
(f) ALL OTHER DEFENSES UNDER ANY APPLICABLE LAW THAT
WOULD, BUT FOR THIS CLAUSE (f), BE AVAILABLE TO THE GUARANTOR AS
A DEFENSE AGAINST OR A REDUCTION OR LIMITATION OF ITS LIABILITIES
AND OBLIGATIONS HEREUNDER.
Section 9.08 Subordination of Rights Against Cogenex
and Collateral. All rights that the Guarantor may at any time
have against Cogenex or any collateral for the Guaranteed
Obligations (including rights of subrogation, exoneration,
reimbursement and contribution and whether arising under
Applicable Law or otherwise), and all obligations that Cogenex
may at any time have to the Guarantor, arising by virtue of the
Guarantor's obligations hereunder, any payment made pursuant
thereto or the exercise by the Guaranteed Parties of their rights
with respect to any collateral are hereby expressly subordinated
to the prior payment, observance and performance in full of the
Guaranteed Obligations. The Guarantor shall not enforce any of
the rights, or attempt to obtain payment or performance of any of
the obligations, subordinated pursuant to this Section 9.08 until
the Guaranteed Obligations have been paid, observed and performed
in full, except that such prohibition shall not apply to routine
acts, such as the giving of notices and the filing of
continuation statements, necessary to preserve any such rights.
If any amount shall be paid to or recovered by the Guarantor
(whether directly or by way of setoff, recoupment or
counterclaim) on account of any right or obligation subordinated
pursuant to this Section 9.08, such amount shall be held in trust
by the Guarantor for the benefit of the Guaranteed Parties, not
commingled with any of the Guarantor's other funds and forthwith
paid over to the Guaranteed Parties, in the exact form received,
together with any necessary endorsements, to be applied and
credited against, or held as security for, the Guaranteed
Obligations and the obligations of the Guarantor hereunder.
ARTICLE 10.
MISCELLANEOUS
Section 10.01 Notices and Deliveries. Manner of
Delivery. All notices, communications and materials (including
all Information) to be given or delivered pursuant to the Loan
Documents shall, except in those cases where giving notice by
telephone is expressly permitted, be given or delivered in
writing (which shall include telecopy transmissions). Notices
under Sections 1.01(c), 1.02, 1.03(c), 1.05, 1.07, 1.15 and 6.02
may be by telephone, promptly, in the case of each notice other
than one under Section 6.02, confirmed in writing. In the event
of a discrepancy between any telephonic notice and any written
confirmation thereof, such written confirmation shall be deemed
the effective notice except to the extent that the Agent has
acted in reliance on such telephonic notice.
(b) Addresses. All notices, communications and
materials to be given or delivered pursuant to the Loan Documents
shall be given or delivered at the following respective addresses
and telecopier and telephone numbers and to the attention of the
following individuals or departments:
(i) if to any Borrower, to it, c/o EUA at:
One Liberty Square
Boston, Massachusetts 02107
Telecopier No.: 617-357-7320
Telephone No.: 617-357-9590
Attention: Clifford J. Hebert, Jr.
(ii) if to the Agent, to it at:
One Wall Street
New York, New York 10286
Telecopier No.: 212-635-7923
Telephone No.: 212-635-7581
Attention: John Hall
with a copy to:
The Bank of New York
One Wall Street
New York, New York 10286
Telecopier No.:_______________
Telephone No.:_______________
Attention:___________________,
Agency Function Administration
(iii) if to any Bank (including any Bank in its
capacity as Swing Loan Lender), to it at the
address or telecopier or telephone number and
to the attention of the individual or
department, set forth below such Bank's name
under the heading "Notice Address" on Annex A
or, in the case of a Bank that becomes a Bank
pursuant to an assignment, set forth under
the heading "Notice Address" in the Notice of
Assignment given to the Borrowers and the
Agent with respect to such assignment;
or at such other address or telecopier or telephone number or to
the attention of such other individual or department as the party
to which such information pertains may hereafter specify for the
purpose in a notice specifically captioned "Notice of Change of
Address" given to (x) if the party to which such information
pertains is a Borrower, the Agent and each Bank, (y) if the party
to which such information pertains is the Agent, the Borrowers
and each Bank and (z) if the party to which such information
pertains is a Bank, the Borrowers and the Agent.
(c) Effectiveness. Each notice and communication
and any material to be given or delivered pursuant to the Loan
Documents shall be deemed so given or delivered (i) if sent by
registered or certified mail, postage prepaid, return receipt
requested, on the third Business Day after such notice,
communication or material, addressed as above provided, is
delivered to a United States post office and a receipt therefor
is issued thereby, (ii) if sent by any other means of physical
delivery, when such notice, communication or material is
delivered to the appropriate address as above provided, (iii) if
sent by telecopier, when such notice, communication or material
is transmitted to the appropriate telecopier number as above
provided and is received at such number and (iv) if given by
telephone, when communicated to the individual or any member of
the department specified as the individual or department to whose
attention notices, communications and materials are to be given
or delivered, or, in the case of notice by the Agent to any of
the Borrowers under Section 6.02 given by telephone as above
provided, if any individual or any member of the department to
whose attention notices, communications and materials are to be
given or delivered is unavailable at the time, to any other
officer or employee of the respective Borrower, except that (x)
notices of a change of address, telecopier or telephone number or
individual or department to whose attention notices,
communications and materials are to be given or delivered shall
not be deemed given until received and (y) notices,
communications and materials to be given or delivered to the
Agent or any Bank pursuant to Sections 1.02, 1.03(c), 1.05, 1.07
and 1.15 and Article 5 shall not be deemed given or delivered
until received by the officer of the Agent or such Bank
responsible, at the time, for the administration of this
Agreement.
(d) Reasonable Notice. Any requirement under
Applicable Law of reasonable notice by the Agent or the Banks to
the Borrowers of any event in connection with, or in any way
related to, the Loan Documents or the exercise by the Agent or
the Banks of any of their rights thereunder shall be met if
notice of such event is given to the Borrowers in the manner
prescribed above at least 10 days before (i) the date of such
event or (ii) the date after which such event will occur.
Section 10.02 Expenses; Indemnification. Whether or
not any Loans are made hereunder, the Borrowers hereby agree,
jointly and severally, to:
(a) subject to Section 1.13, pay or reimburse the
Agent, each Swing Loan Lender and each Bank for all transfer,
documentary, stamp and similar taxes, and all recording and
filing fees and taxes, payable in connection with, arising out
of, or in any way related to, the execution, delivery and
performance of the Loan Documents or the making of the Loans;
(b) pay or reimburse the Agent for all reasonable
costs and expenses (including fees and disbursements of legal
counsel, appraisers, accountants and other experts employed or
retained by the Agent) incurred by the Agent in connection with,
arising out of, or in any way related to (i) the negotiation,
preparation, execution and delivery of (A) the Loan Documents and
(B) whether or not executed, any waiver, amendment or consent
thereunder or thereto, (ii) consulting with respect to any matter
in any way arising out of, related to, or connected with, the
Loan Documents, including (A) the protection, preservation,
exercise or enforcement of any of the rights of the Agent, the
Swing Loan Lenders or the Banks under or related to the Loan
Documents or (B) the performance of any of the obligations of the
Agent, the Swing Loan Lenders or the Banks under or related to
the Loan Documents or (iii) protecting, preserving, exercising or
enforcing any of the rights of the Agent, the Swing Loan Lenders
or the Banks under or related to the Loan Documents;
(c) pay or reimburse each Swing Loan Lender and each
Bank for all reasonable costs and expenses (including fees and
disbursements of legal counsel and other experts employed or
retained by such Bank or such Swing Loan Lender) incurred by such
Bank or such Swing Loan Lender in connection with, arising out
of, or in any way related to protecting, preserving, exercising
or enforcing any of its rights under or related to the Loan
Documents; and
(d) indemnify and hold each Indemnified Person
harmless from and against all losses (including judgments,
penalties and fines) suffered, and pay or reimburse each
Indemnified Person for all costs and expenses (including fees and
disbursements of legal counsel and other experts employed or
retained by such Indemnified Person) incurred, by such
Indemnified Person in connection with, arising out of, or in any
way related to (i) any Loan Document Related Claim (whether
asserted by such Indemnified Person or a Borrower or any other
Person), including the prosecution or defense thereof and any
litigation or proceeding with respect thereto (whether or not, in
the case of any such litigation or proceeding, such Indemnified
Person is a party thereto), or (ii) any investigation,
governmental or otherwise, arising out of, related to, or in any
way connected with, the Loan Documents or the relationships
established thereunder, except that the foregoing indemnity shall
not be applicable to any loss suffered by any Indemnified Person
to the extent such loss is determined by a judgment of a court
that is binding on any Borrower and such Indemnified Person,
final and not subject to review on appeal, to be the result of
acts or omissions on the part of such Indemnified Person
constituting gross negligence or willful misconduct.
Section 10.03 Amounts Payable Due upon Request for
Payment. All amounts payable by the Borrowers under Section
10.02 and under the other provisions of the Loan Documents shall,
except as otherwise expressly provided, be immediately due upon
request for the payment thereof and upon furnishing to EUA a
certificate outlining in reasonable detail the computation of
such amounts claimed.
Section 10.04 Remedies of the Essence. The various
rights and remedies of the Agent, the Swing Loan Lenders and the
Banks under the Loan Documents are of the essence of those
agreements, and the Agent, the Swing Loan Lenders and the Banks
shall be entitled to obtain a decree requiring specific
performance of each such right and remedy.
Section 10.05 Rights Cumulative. Each of the rights
and remedies of the Agent, the Swing Loan Lenders and the Banks
under the Loan Documents shall be in addition to all of their
other rights and remedies under the Loan Documents and Applicable
Law, and nothing in the Loan Documents shall be construed as
limiting any such rights or remedies.
Section 10.06 Confidentiality. Each of the Agent, the
Banks and the Swing Loan Lenders agrees to exercise all
reasonable efforts to keep any information made available to such
Person by any of the Borrowers or the Guarantor confidential from
anyone other than persons employed or retained by the Agent, such
Bank or Swing Loan Lender; provided, however, that nothing herein
shall prevent the Agent, any Bank or either Swing Loan Lender
from disclosing such information (a) to any Affiliate of the
Agent, such Bank or Swing Loan Lender or to any other Bank, if
such Affiliate, prior to such disclosure, agrees for the benefit
of the Borrowers to comply with the provisions of this Section
10.06, (b) upon the order of any court or administrative agency,
(c) upon the request or demand of any regulatory agency or
authority having jurisdiction over the Agent, such Bank or Swing
Loan Lender, (d) that has been publicly disclosed, (e) in
connection with any litigation relating to the Loans, this
Agreement or any transaction contemplated hereby to which any
Bank, any Swing Loan Lender or the Agent may be a party, (f) to
the extent reasonably required in connection with the exercise of
any remedy hereunder, (g) to the Agent's, such Bank's or Swing
Loan Lender's legal counsel and independent auditors and (h) to
any actual or proposed participant or assignee of all or any part
of its Loans hereunder, if such other Person, prior to such
disclosure, agrees for the benefit of the Borrowers to comply
with the provisions of this Section 10.06.
Section 10.07 Amendments; Waivers. Any term,
covenant, agreement or condition of the Loan Documents may be
amended, and any right under the Loan Documents may be waived,
if, but only if, such amendment or waiver is in writing and is
signed by the Required Banks and, if the rights and duties of the
Agent or a Swing Loan Lender are affected thereby, by the Agent
or such Swing Loan Lender, as the case may be, and, in the case
of an amendment, by the Borrowers; provided, however, that no
amendment or waiver shall be effective, unless in writing and
signed by each Bank affected thereby, to the extent it (a)
changes the amount of such Bank's Commitment, (b) reduces the
principal of or the rate of interest on such Bank's Loans or
Notes or the fees payable to such Bank hereunder, (c) postpones
any date fixed for any payment of principal of or interest on
such Bank's Loans or Notes or the fees payable to such Bank
hereunder, (d) releases the Guarantor from any or all of its
obligations under Section 9.01 or (e) amends Section 1.14,
Article 2 (in connection with the initial Loans hereunder), this
Section 10.07, Section 10.09, the definition of "Required Banks"
or any other provision of this Agreement requiring the consent or
other action of all of the Banks. Unless otherwise specified in
such waiver, a waiver of any right under the Loan Documents shall
be effective only in the specific instance and for the specific
purpose for which given. No election not to exercise, failure to
exercise or delay in exercising any right, nor any course of
dealing or performance, shall operate as a waiver of any right of
the Agent, a Swing Loan Lender or any Bank under the Loan
Documents or Applicable Law, nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right of the Agent, a Swing
Loan Lender or any Bank under the Loan Documents or Applicable
Law.
Section 10.08 Set-Off. The Agent, each Swing Loan
Lender and each Bank is hereby authorized by each of the
Borrowers, at any time and from time to time, without notice,
during any Event of Default, to set off against, and to
appropriate and apply to the payment of, the amount owed by a
Borrower under the Loan Documents (whether owing to such Person
or to any other Person that is the Agent, a Swing Loan Lender or
a Bank and without reduction thereof on account of any
participation that any such Bank may have granted pursuant to
Section 10.10(b)) any and all amounts owing by such Person to
such Borrower (whether payable in Dollars or any other currency,
whether matured or unmatured and, in the case of deposits,
whether general or special, time or demand and however evidenced
and whether maintained at a branch or office located within or
without the United States).
Section 10.09 Sharing of Recoveries. Each Bank agrees
that, if, for any reason, including as a result of (a) the
exercise of any right of counterclaim, set-off, banker's lien or
similar right, (b) its claim in any applicable bankruptcy,
insolvency or other similar law being deemed secured by a
Liability, which Liability constitutes "debt" under Section
101(11) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act or the Uniform Fraudulent Transfer Act, owed by it
to a Borrower, including a claim deemed secured under Section 506
of the Bankruptcy Code, or (c) the allocation of payments by the
Agent or a Borrower in a manner contrary to the provisions of
Section 1.14, such Bank shall receive payment of a proportion of
the aggregate amount due and payable to it hereunder as principal
of or interest on the Loans or fees that is greater than the
proportion received by any other Bank in respect of the aggregate
of such amounts due and payable to such other Bank hereunder,
then the Bank receiving such proportionately greater payment
shall purchase participations (which it shall be deemed to have
done simultaneously upon the receipt of such payment) in the
rights of the other Banks hereunder so that all such recoveries
with respect to such amounts due and payable hereunder (net of
costs of collection) shall be pro rata; provided, however, that
no such participation shall be deemed to have been so purchased
in any Bid Rate Loans of any of the other Banks; and provided,
further, that if all or part of such proportionately greater
payment received by the purchasing Bank is thereafter recovered
by or on behalf of a Borrower from such Bank, such purchases
shall be rescinded and the purchase prices paid for such
participations shall be returned to such Bank to the extent of
such recovery, but without interest (unless the purchasing Bank
is required to pay interest on the amount recovered to the Person
recovering such amount, in which case the selling Bank shall be
required to pay interest at a like rate). The Borrowers
expressly consent to the foregoing arrangements and agree that
any holder of a participation in any rights hereunder so
purchased or acquired pursuant to this Section 10.09 shall, with
respect to such participation, be entitled to all of the rights
of a Bank under Sections 7.02, 10.02 and 10.08 (subject to any
condition imposed on a Bank hereunder with respect thereto) and
may exercise any and all rights of set-off with respect to such
participation as fully as though the Borrowers were directly
indebted to the holder of such participation for Loans in the
amount of such participation.
Section 10.10 Assignments and Participations. (a)
Assignments. (i) None of the Borrowers may assign any of its
rights or obligations under the Loan Documents without the prior
written consent of each Bank, and no assignment of any such
obligation shall release any Borrower therefrom unless each Bank
shall have consented to such release in a writing specifically
referring to the obligation from which such Borrower is to be
released.
(ii) Each Bank may from time to time assign any
or all of its rights and obligations under the Loan Documents to
one or more Persons; provided that, except in the case of the
grant of a security interest to a Federal Reserve Bank (which may
be made without condition or restriction), no such assignment
shall be effective unless (A) the assignment is consented to by
EUA (unless an Event of Default specified in Section 6.01(f) with
respect to a Borrower exists) and the Agent (such consents not to
be unreasonably withheld or delayed), (B) a Notice of Assignment
with respect to such assignment, duly executed by the assignor
and the assignee, shall have been given to the Borrowers and the
Agent and (C) except in the case of an assignment by the Bank
that is the Agent, the Agent shall have been paid an assignment
fee of $3,500. Upon any effective assignment, the assignor shall
be released from the obligations so assigned and, in the case of
an assignment of all of its Loans and Commitment, shall cease to
be a Bank. In the event of any effective assignment by a Bank,
each Borrower shall, against (except in the case of a partial
assignment) receipt of the existing Notes by it of the assignor
Bank, issue new Notes to the assignee Bank.
(b) Participations. Each Bank may from time to time
sell or otherwise grant participations in any or all of its
rights and obligations under the Loan Documents without the
consent of the Borrowers, the Agent or any other Bank. Each
holder of a participation in any rights under the Loan Documents
may exercise any and all rights of set-off with respect to such
participation as fully as though the Borrowers were directly
indebted to the holder of such participation for Loans in the
amount of such participation. No holder of a participation shall
be entitled to any amounts that would otherwise be payable to it
with respect to its participation to the extent that they exceed
the amounts that would have been payable to the Bank that granted
such participation if such participation had not been granted,
including, but not limited to, amounts payable under Section
1.13, 7.02 or 7.03. Each Bank selling or granting a
participation shall indemnify the Borrowers and the Agent for any
Taxes and Liabilities that they may sustain as a result of such
Bank's failure to withhold and pay any Taxes applicable to
payments by such Bank to its participant in respect of such
participation. In the event of any such grant by any Bank of a
participating interest, such Bank shall remain responsible for
the performance of its obligations hereunder and under the Loan
Documents, and the Borrowers, the Agent and the other Banks shall
deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, provided,
however, that such Bank shall be entitled to agree with the
holder of any such participation that such Bank shall not,
without the consent of such holder, agree to any amendment or
waiver that would have any of the effects described in the
proviso of Section 10.07, to the extent that such holder would be
affected thereby.
Section 10.11 Governing Law. The rights and duties of
the Borrowers, the Agent, the Swing Loan Lenders and the Banks
under this Agreement and the Notes (including matters relating to
the Maximum Permissible Rate) shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the
State of New York.
Section 10.12 Judicial Proceedings; Waiver of Jury
Trial. Any judicial proceeding brought against a Borrower with
respect to any Loan Document Related Claim may be brought in any
court of competent jurisdiction in the City of New York, and, by
execution and delivery of this Agreement, each Borrower (a)
accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and
irrevocably agrees to be bound by any judgment rendered thereby
in connection with any Loan Document Related Claim and (b)
irrevocably waives any objection it may now or hereafter have as
to the venue of any such proceeding brought in such a court or
that such a court is an inconvenient forum. Each Borrower hereby
waives personal service of process and consents that service of
process upon it may be made by certified or registered mail,
return receipt requested, at its address specified or determined
in accordance with the provisions of Section 10.01(b), and
service so made shall be deemed completed on the third Business
Day after such service is deposited in the mail. Nothing herein
shall affect the right of the Agent, a Swing Loan Lender, any
Bank or any other Indemnified Person to serve process in any
other manner permitted by law or shall limit the right of the
Agent, a Swing Loan Lender, any Bank or any other Indemnified
Person to bring proceedings against a Borrower in the courts of
any other jurisdiction. Any judicial proceeding by a Borrower
against the Agent, a Swing Loan Lender or any Bank involving any
Loan Document Related Claim shall be brought only in a court
located in, in the case of the Agent or a Swing Loan Lender, the
City and State of New York and, in the case of a Bank, the
jurisdiction in which such Bank's principal United States office
is located. THE BORROWERS, THE AGENT, THE SWING LOAN LENDERS AND
EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING ANY LOAN DOCUMENT RELATED CLAIM.
Section 10.13 Severability of Provisions. Any
provision of the Loan Documents that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
thereof or affecting the validity or enforceability of such
provision in any other jurisdiction. To the extent permitted by
Applicable Law, each Borrower hereby waives any provision of
Applicable Law that renders any provision of the Loan Documents
prohibited or unenforceable in any respect.
Section 10.14 Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto were
upon the same instrument.
Section 10.15 Survival of Obligations. Except as
otherwise expressly provided therein, the rights and obligations
of the Borrowers, the Agent, the Swing Loan Lenders, the Banks
and the other Indemnified Persons under the Loan Documents shall
survive the Repayment Date.
Section 10.16 Entire Agreement. This Agreement and
the Notes embody the entire agreement among the Borrowers, the
Agent, the Swing Loan Lenders, and the Banks relating to the
subject matter hereof and supersede all prior agreements,
representations and understandings, if any, relating to the
subject matter hereof.
Section 10.17 Successors and Assigns. All of the
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns.
ARTICLE 11
INTERPRETATION
Section 11.01 Defined Terms. For the purposes of this
Agreement:
"Accumulated Funding Deficiency" has the meaning
ascribed to that term in Section 302 of ERISA.
"Adjusted Eurodollar Rate" means, for any Interest
Period, a rate per annum (rounded upward, if necessary, to the
next higher 1/16 of 1%) equal to the rate obtained by dividing
(a) the Eurodollar Rate for such Interest Period by (b) a
percentage equal to 1 minus the Reserve Requirement in effect
from time to time during such Interest Period.
"Affiliate" means, with respect to a Person, any other
Person that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such first Person; unless otherwise specified,
"Affiliate" means an Affiliate of any of the Borrowers.
"Agent" means The Bank of New York, as agent for the
Banks under the Loan Documents, and any successor Agent appointed
pursuant to Section 8.07.
"Agent's Fee Letter" means the letter agreement among
the Borrowers and The Bank of New York providing for certain fees
to be paid to the Agent in connection with this Agreement.
"Agent's Office" means the address of the Agent
specified in or determined in accordance with the provisions of
Section 10.01(b).
"Agreement" means this Agreement, including all
schedules, annexes and exhibits hereto.
"Agreement Date" means the date set forth as such on
the signature pages hereof, which date is the date the executed
copies of this Agreement were delivered by all parties hereto
and, accordingly, this Agreement became effective and the Banks
first became committed to make the Loans and other extensions of
credit contemplated by this Agreement. If no such date is there
set forth, the Agreement Date shall be the date as of which this
Agreement is dated.
"Applicable Facility Fee Percentage" means, for any
day, (a) if the S&P Rating is not lower than A- or the Moody's
Rating is not lower than A3, 0.100% per annum; (b) if (i) the S&P
Rating is lower than A- but not lower than BBB or the Moody's
Rating is lower than A3 but not lower than Baa2 and (ii) clause
(a) above is not applicable, 0.125% per annum; (c) if (i) the S&P
Rating is BBB- or the Moody's Rating is Baa3 and (ii) clauses (a)
and (b) above are not applicable, 0.175% per annum; and (d) if
the S&P Rating is BB+ or lower and the Moody's Rating is Ba1 or
lower, 0.300% per annum.
"Applicable Law" means, with respect to any Person,
anything in Section 10.11 to the contrary notwithstanding, (a)
all common law and principles of equity applicable to such Person
and (b) all provisions of all (i) constitutions, statutes, rules,
regulations and orders of governmental bodies, (ii) Governmental
Approvals and (iii) orders, decisions, judgments and decrees
applicable to such Person.
"Applicable Margin" means, for any day, (a) if the S&P
Rating is not lower than A- or the Moody's Rating is not lower
than A3, 0.150% per annum; (b) if (i) the S&P Rating is lower
than A- but not lower than BBB or the Moody's Rating is lower
than A3 but not lower than Baa2 and (ii) clause (a) above is not
applicable, 0.250% per annum; (c) if (i) the S&P Rating is BBB-
or the Moody's Rating is Baa3 and (ii) clauses (a) and (b) above
are not applicable, 0.325% per annum; and (d) if the S&P Rating
is BB+ or lower and the Moody's Rating is Ba1 or lower, 0.450%
per annum.
"Asset Disposition Percentage" means, with respect to
any Borrower at any time, the following: (a) if the aggregate
amount of the Cash Flow Percentages of all assets of such
Borrower or any Significant Subsidiary thereof sold or otherwise
disposed of subsequent to the Agreement Date pursuant to one or
more Required Asset Sales is at any time equal to or less than
20%, the Asset Disposition Percentage shall be 0%, (b) if such
aggregate amount is at any time greater than 20% but equal to or
less than 50%, the Asset Disposition Percentage shall be such
aggregate percentage, and (c) if such aggregate amount is at any
time greater than 50%, the Asset Disposition Percentage shall be
100%.
"Availability" means, at any time, (a) with respect to
Cogenex, $75,000,000, (b) with respect to each of Ocean State and
Service, (i) $10,000,000 minus (ii) the product of (A)
$10,000,000 and (B) such Borrower's Asset Disposition Percentage
at such time, (c) with respect to Newport, (i) $30,000,000 minus
(ii) the product of (A) $30,000,000 and (B) Newport's Asset
Disposition Percentage at such time and (d) with respect to each
other Borrower, the lesser of (i) the aggregate amount of the
Commitments at such time and (ii) (A) the aggregate amount of the
Commitments on the Agreement Date minus (B) the product of (1)
the aggregate amount of the Commitments on the Agreement Date and
(2) such Borrower's Asset Disposition Percentage at such time.
"Bank" means (a) any Person listed on the signature
pages hereof following the Agent and (b) any Person (other than
the Borrower or any of its Affiliates) that has been assigned any
or all of the rights or obligations of a Bank pursuant to Section
10.10(a).
"Bank Tax" means any net income or franchise tax
imposed upon any Bank by any jurisdiction (or political
subdivision thereof) in which such Bank or any of its Lending
Offices is located.
"Base Financial Statements" means the most recent,
audited, consolidated balance sheet of EUA and its Consolidated
Subsidiaries referred to in Schedule 5.02(a) and the related
statements of income, retained earnings and, as applicable,
changes in financial position or cash flows for the fiscal year
ended with the date of such balance sheet.
"Base Rate" means, for any day, a rate per annum equal
to the higher of (a) the Prime Rate in effect on such day and (b)
the sum of the Federal Funds Rate in effect on such day plus
1/2%.
"Base Rate Loan" means any RC Loan the interest on
which is, or is to be, as the context may require, computed on
the basis of the Base Rate.
"Benefit Plan" of any Person, means, at any time, any
"pension plan" as such term is defined in Section 3(2) of ERISA,
which is subject to Title IV of ERISA.
"Bid Rate Loan" means any amount advance by a Bank
pursuant to Section 1.01(b).
"Bid Rate Loan Date" means the requested date for the
making of a Bid Rate Loan, as specified by the applicable
Borrower in accordance with Section 1.02(b)(i).
"Bid Rate Note" means a promissory note in the form of
Exhibit B.
"Blackstone" means Blackstone Valley Electric Company,
a Rhode Island corporation.
"Borrower" means EUA, Blackstone, Eastern, Montaup,
Newport, Cogenex, Ocean State, or Service; "Borrowers" means each
of the Borrowers, individually and collectively.
"Business Day" means any day other than a Saturday,
Sunday or other day on which banks in New York City are
authorized to close.
"Capital Security" means, with respect to any Person,
(a) any share of capital stock of such Person or (b) any security
convertible into, or any option, warrant or other right to
acquire, any share of capital stock of such Person.
"Capitalization" means, as of any date of
determination, with respect to EUA, Cogenex or a Regulated
Borrower and their respective Consolidated Subsidiaries, in each
case determined on a consolidated basis, an amount equal to the
sum of (a) the total principal amount of all Indebtedness
(including any Mandatorily Redeemable Stock) of EUA, Cogenex or
such Regulated Borrower, as the case may be, and their respective
Consolidated Subsidiaries outstanding on such date and (b)
Consolidated Net Worth as of such date.
"Cash Flow Percentage" means, as of the date of any
Required Asset Sale by a Borrower or a Significant Subsidiary
thereof, the ratio, expressed as a percentage, derived by
dividing (a) the portion of Consolidated EBITDA for the four
consecutive fiscal quarters of such Borrower ending on, or most
recently ended prior to, such date for which financial
information is available and has been delivered to the Banks
hereunder prior to such date attributable to the assets sold or
otherwise disposed of pursuant to such Required Asset Sale by (b)
Consolidated EBITDA of such Borrower for such period.
"Code" means the Internal Revenue Code of 1986.
"Cogenex" means EUA Cogenex Corporation, a
Massachusetts corporation.
"Cogenex Capitalization" means, at any time, the
Capitalization of Cogenex at such time.
"Cogenex Coverage Ratio" means, at any time, the ratio
of (a) the sum of (i) the present value, determined by Cogenex in
a manner satisfactory to the Agent, of the promissory notes,
lease receivables, equipment receivables and other similar assets
owned by or otherwise owing to Cogenex at such time in connection
with energy projects and related investments and activities of
Cogenex and (ii) the net working capital of Cogenex at such time
to (b) the aggregate amount of Cogenex's Indebtedness at such
time.
"Commitment" of any Bank means (a) the amount set forth
opposite such Bank's name under the heading "Commitment" on Annex
A or, in the case of a Bank that becomes a Bank pursuant to an
assignment, the amount of the assignor's Commitment assigned to
such Bank, in either case, as the same may be reduced or
increased from time to time pursuant to Section 1.07 or Section
1.15 or increased or reduced from time to time pursuant to
assignments in accordance with Section 10.10(a), or (b) as the
context may require, the obligation of such Bank to make RC Loans
in an aggregate unpaid principal amount not exceeding such
amount.
"Consolidated EBITDA" means, with respect to a Borrower
for any period, the sum of (a) Consolidated Net Income of such
Borrower for such period and (b) to the extent deducted in
determining Consolidated Net Income for such period, interest
expense, income tax expense, depreciation expense and
amortization expense.
"Consolidated Indebtedness" means, with respect to any
Person, the consolidated Indebtedness of such Person and its
Consolidated Subsidiaries.
"Consolidated Net Income" means, with respect to any
Borrower, for any period, the amount of consolidated net income
of such Borrower and its Consolidated Subsidiaries for such
period (taken as a cumulative whole) provided that there shall be
excluded: (a) any net income (or net loss) of a Consolidated
Subsidiary of such Borrower (i) for any period during which it
was not a Consolidated Subsidiary or (ii), in case of any such
net income, to the extent that the declaration or payment of
dividends or similar distributions by that Consolidated
Subsidiary is not at the time permitted by operation of the terms
of any Contract or Applicable Law; (b) any net income (or net
loss) of any Person (other than a Consolidated Subsidiary) in
which such Borrower or any Consolidated Subsidiary thereof has an
ownership interest, except to the extent that any such income has
actually been received by such Borrower or Subsidiary in the form
of cash dividends or similar distributions; (c) any restoration
of any contingency reserve, except to the extent that provision
for such reserve was made out of income during such period; (d)
any net gains or losses on the sale or other disposition, not in
the ordinary course of business, of investments and other capital
assets, provided that there shall also be excluded any related
charges for taxes thereon; (e) any net gain arising from the
collection of the proceeds of any insurance policy; (f) any
write-up of any asset; (g) any net gains resulting from the
extinguishment or defeasance of any Indebtedness; (h) any
earnings from discontinued businesses; and (i) any extraordinary
gains or losses.
"Consolidated Net Worth" means the sum of the capital
stock (excluding treasury stock and capital stock subscribed for
and unissued) and surplus (including earned surplus, capital
surplus and the balance of the current profit and loss account
not transferred to surplus) accounts of EUA or Cogenex, as the
case may be, and its Consolidated Subsidiaries appearing on a
consolidated balance sheet of such Borrower and its Consolidated
Subsidiaries prepared as of the date of determination in
accordance with Generally Accepted Accounting Principles, after
eliminating all intercompany transactions and all amounts
properly attributable to minority interests, if any, in the stock
and surplus of Subsidiaries.
"Consolidated Subsidiary" means, with respect to any
Person at any time, any Subsidiary or other Person the accounts
of which would be consolidated with those of such first Person in
its consolidated financial statements as of such time; unless
otherwise specified, "Consolidated Subsidiary" means a
Consolidated Subsidiary of EUA.
"Contract" means (a) any agreement, including an
indenture, lease or license, (b) any deed or other instrument of
conveyance, (c) any certificate of incorporation or charter and
(d) any by-law.
"Default" means any condition or event that constitutes
an Event of Default or that with the giving of notice or lapse of
time or both would, unless cured or waived, become an Event of
Default.
"Dollars" and the sign "$" mean lawful money of the
United States of America.
"Domestic Lending Office" of any Bank or a Swing Loan
Lender means (a) the branch or office of such Bank or such Swing
Loan Lender set forth below such Bank's or such Swing Loan
Lender's name under the heading "Domestic Lending Office" on
Annex A or, in the case of a Bank that becomes a Bank pursuant to
an assignment, the branch or office of such Bank set forth under
the heading "Domestic Lending Office" in the Notice of Assignment
given to the Borrowers and the Agent with respect to such
assignment or (b) such other branch or office of such Bank or
such Swing Loan Lender designated by such Bank or such Swing Loan
Lender from time to time as the branch or office at which its
Base Rate Loans or Swing Loans, as the case may be, are to be
made or maintained.
"Eastern" means Eastern Edison Company, a Massachusetts
corporation.
"Enacted", as applied to a Regulatory Change, means the
date such Regulatory Change first becomes effective or is
implemented or first required or expected to be complied with,
whether the same is (a) the result of an enactment by a
government or any agency or political subdivision thereof, a
determination of a court or regulatory authority, or otherwise or
(b) enacted, adopted, issued or proposed before or after the
Agreement Date.
"ERISA" means the Employee Retirement Income Security
Act of 1974.
"ERISA Affiliate" means, with respect to any Person,
any other Person, including a Subsidiary or other Affiliate of
such first Person, that is a member of any group of organizations
within the meaning of Code Sections 414(b), (c), (m) or (o) of
which such first Person is a member.
"EUA" means Eastern Utilities Associates, a
Massachusetts voluntary association.
"EUA Capitalization" means, at any time, the
Capitalization of EUA at such time.
"Eurodollar Business Day" means any Business Day on
which dealings in Dollar deposits are carried on in the London
interbank market and on which commercial banks are open for
domestic and international business (including dealings in Dollar
deposits) in London, England.
"Eurodollar Lending Office" of any Bank means (a) the
branch or office of such Bank set forth below such Bank's name
under the heading "Eurodollar Lending Office" on Annex A or, in
the case of a Bank that becomes a Bank pursuant to an assignment,
the branch or office of such Bank set forth under the heading
"Eurodollar Lending Office" in the Notice of Assignment given to
the Borrowers and the Agent with respect to such assignment or
(b) such other branch or office of such Bank designated by such
Bank from time to time as the branch or office at which its
Eurodollar Rate Loans are to be made or maintained.
"Eurodollar Rate" means, for any Interest Period, the
rate per annum determined by the Agent (rounded upward, if
necessary, to the next higher 1/16 of 1%) to be the rate at which
The Bank of New York offered or would have offered to place with
first-class banks in the London interbank market deposits in
Dollars in amounts comparable to the Eurodollar Rate Loan of The
Bank of New York to which such Interest Period applies, for a
period equal to such Interest Period, at 11:00 a.m. (London time)
on the second Eurodollar Business Day before the first day of
such Interest Period.
"Eurodollar Rate Loan" means any RC Loan the interest
on which is, or is to be, as the context may require, computed on
the basis of the Adjusted Eurodollar Rate.
"Event of Default" means any of the events specified in
Section 6.01.
"Existing Benefit Plan" means any Benefit Plan listed
on Schedule 4.14.
"Existing Indebtedness" means, in the case of any
Borrower or any Significant Subsidiary thereof, (a) any
Indebtedness of such Person outstanding on the Agreement Date, to
the extent set forth on Schedule 4.09, and (b) any Indebtedness
of such Person constituting a renewal, extension or refunding of
any Existing Indebtedness of such Person, but only if (i) at the
time such Indebtedness is incurred and immediately after giving
effect thereto, no Default would exist, (ii) the principal amount
of such Indebtedness does not exceed the principal amount of the
Indebtedness so renewed, extended or refunded and (iii) such
Indebtedness bears interest at a rate per annum not exceeding the
rate borne by the Indebtedness so renewed, extended or refunded
except for any increase that is commercially reasonable at the
time such Indebtedness is incurred.
"Extension Notice" means a written notice whereby EUA
requests an extension of the Termination Date pursuant to Section
1.16.
"Federal Funds Rate" means, for any day, the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for
any day that is a Business Day, the average of quotations for
such day on such transactions received by The Bank of New York
from three Federal funds brokers of recognized standing selected
by such bank.
"Funded Current Liability Percentage" has the meaning
ascribed to that term in Code Section 412(l)(8)(b).
"Generally Accepted Accounting Principles" means (a) in
the case of the Base Financial Statements, generally accepted
accounting principles at the time of the issuance of the Base
Financial Statements and (b) in all other cases, the accounting
principles followed in the preparation of the Base Financial
Statements.
"Governmental Approval" means any authorization,
consent, approval, license or exemption of, registration or
filing with, or report or notice to, any governmental unit.
"Guaranteed Obligations" means all indebtedness,
liabilities and obligations of Cogenex (including in its capacity
as a "debtor in possession" under the Bankruptcy Code) due or
owing to, or in favor or for the benefit of, the Guaranteed
Parties under the Loan Documents, of every kind, nature and
description, direct or indirect, absolute or contingent, due or
not due, now existing or hereafter arising, and whether or not
(a) due or owing to, or in favor or for the benefit of, Persons
that are Guaranteed Parties as of the Agreement Date or that
become Guaranteed Parties by reason of any succession or
assignment at any time thereafter, (b) ARISING OR ACCRUING BEFORE
OR AFTER THE FILING BY OR AGAINST COGENEX OF A PETITION UNDER THE
BANKRUPTCY CODE OR (c) ALLOWABLE UNDER SECTION 502(b)(2) OF THE
BANKRUPTCY CODE.
"Guaranteed Parties" means all Persons that are, or at
any time were, the Agent, a Swing Loan Lender, a Bank or any
other Indemnified Person.
"Guarantor" means EUA.
"Guaranty" of any Person means any obligation,
contingent or otherwise, of such Person (a) to pay any Liability
of any other Person or to otherwise protect, or having the
practical effect of protecting, the holder of any such Liability
against loss (whether such obligation arises by virtue of such
Person being a partner of a partnership or participant in a joint
venture or by agreement to pay, to keep well, to purchase assets,
goods, securities or services or to take or pay, or otherwise) or
(b) incurred in connection with the issuance by a third Person of
a Guaranty of any Liability of any other Person (whether such
obligation arises by agreement to reimburse or indemnify such
third Person or otherwise). The word "Guarantee" when used as a
verb has the correlative meaning.
"Increase Date" means the date requested by EUA on
which the Banks would increase the aggregate Commitments, as such
date is specified in the applicable Increase Notice.
"Increase Notice" means a notice of a requested
increase in the aggregate Commitments, substantially in the form
of Schedule 1.15(a).
"Indebtedness" of any Person means, without
duplication, (in each case, whether such obligation is with full
or limited recourse) (a) any obligation of such Person for
borrowed money, (b) any obligation of such Person evidenced by a
bond, debenture, note or other similar instrument, (c) any
obligation of such Person to pay the deferred purchase price of
property or services, except a trade account payable that arises
in the ordinary course of business but only if and so long as the
same is payable on customary trade terms, (d) any obligation of
such Person as lessee under a capital lease, (e) any Mandatorily
Redeemable Stock of such Person (the amount of such Mandatorily
Redeemable Stock to be determined for this purpose as the higher
of the liquidation preference of and the amount payable upon
redemption of such Mandatorily Redeemable Stock), (f) any
obligation with respect to an interest rate or currency swap or
similar obligation obligating such Person to make payments,
whether periodically or upon the happening of a contingency,
except that if any agreement relating to such obligation provides
for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case,
the amount of such obligation shall be the net amount thereof,
(g) any Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) a Lien on any asset of such Person
and (h) any Indebtedness of others Guaranteed by such Person,
including any non-contingent obligation of such Person to
reimburse any other Person in respect of amounts paid under a
Guaranty issued by such other Person.
"Indemnified Person" means any Person that is, or at
any time was, the Agent, a Swing Loan Lender, a Bank, an
Affiliate of the Agent (including BNY Capital Markets, Inc.), a
Swing Loan Lender or a Bank or a director, officer, employee or
agent of any such Person.
"Information" means data, certificates, reports,
statements (including financial statements), opinions of counsel,
documents and other information.
"Interest Payment Date" means the last day of March,
June, September and December of each year.
"Interest Period" means (a) a period commencing, in the
case of a Bid Rate Loan, on the date of the making of such Loan
and ending on the last day of the Interest Period specified
therefor in accordance with Section 1.02(b)(ii) and (b) a period
commencing, in the case of the first Interest Period applicable
to a Eurodollar Rate Loan, on the date of the making of, or
conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of
the immediately preceding Interest Period, and ending, depending
on the Type of Loan, on the same day in the first week thereafter
or the first, second, third or sixth calendar month thereafter,
except that (x) any Interest Period that would otherwise end on a
day that is not a Eurodollar Business Day shall be extended to
the next succeeding Eurodollar Business Day unless such
Eurodollar Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding
Eurodollar Business Day and (y) any Interest Period that begins
on the last Eurodollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month in which such Interest Period ends) shall end on
the last Eurodollar Business Day of a calendar month.
"Lending Office" of any Bank means the Domestic Lending
Office or the Eurodollar Lending Office of such Bank.
"Liability" of any Person means (in each case, whether
with full or limited recourse) any indebtedness, liability,
obligation, covenant or duty of or binding upon, or any term or
condition to be observed by or binding upon, such Person or any
of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, whether arising under
Contract, Applicable Law, or otherwise, whether now existing or
hereafter arising, and whether for the payment of money or the
performance or non-performance of any act.
"Lien" means, with respect to any property or asset (or
any income or profits therefrom) of any Person (in each case
whether the same is consensual or nonconsensual or arises by
Contract, operation of law, legal process or otherwise) (a) any
mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof or (b) any
other arrangement, express or implied, under which the same is
transferred, sequestered or otherwise identified so as to subject
the same to, or make the same available for, the payment or
performance of any Liability in priority to the payment of the
ordinary, unsecured Liabilities of such Person. For the purposes
of this Agreement, a Person shall be deemed to own subject to a
Lien any asset that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement
relating to such asset.
"Loan" means an RC Loan, a Bid Rate Loan or a Swing
Loan.
"Loan Document Related Claim" means any claim or
dispute (whether arising under Applicable Law, including any
"environmental" or similar law, under Contract or otherwise and,
in the case of any proceeding relating to any such claim or
dispute, whether civil, criminal, administrative or otherwise) in
any way arising out of, related to, or connected with, the Loan
Documents, the relationships established thereunder or any
actions or conduct thereunder or with respect thereto, whether
such claim or dispute arises or is asserted before or after the
Agreement Date or before or after the Repayment Date.
"Loan Documents" means this Agreement and the Notes and
all other agreements, documents and instruments relating to,
arising out of, or in any way connected with this Agreement and
the Notes.
"Mandatorily Redeemable Stock" means, with respect to
any Person, any share of such Person's capital stock to the
extent that it is (a) redeemable, payable or required to be
purchased or otherwise retired or extinguished, or convertible
into any Indebtedness or other Liability of such Person, (i) at a
fixed or determinable date, whether by operation of a sinking
fund or otherwise, (ii) at the option of any Person other than
such Person or (iii) upon the occurrence of a condition not
solely within the control of such Person, such as a redemption
required to be made out of future earnings or (b) convertible
into Mandatorily Redeemable Stock.
"Materially Adverse Effect" means, (a) with respect to
any Person, 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", 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 Generally Accepted Accounting Principles and (c)
with respect to any Loan Document, any adverse effect, WHETHER OR
NOT MATERIAL, on the binding nature, validity or enforceability
thereof as an obligation of any Borrower.
"Maximum Permissible Rate" means, with respect to
interest payable on any amount, the rate of interest on such
amount that, if exceeded, could, under Applicable Law, result in
(a) civil or criminal penalties being imposed on the payee or (b)
the payee's being unable to enforce payment of (or, if collected,
to retain) all or any part of such amount or the interest payable
thereon.
"Montaup" means Montaup Electric Company, a
Massachusetts corporation.
"Moody's" means Moody's Investors Service, Inc.
"Moody's Rating" means, at any time, the rating of the
first mortgage bonds of Eastern, as most recently announced by
Moody's.
"Multiemployer Benefit Plan" of any Person, means, a
multiemployer plan as defined in Section 4001(a)(3) of ERISA to
which such Person is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"Newport" means Newport Electric Corporation, a Rhode
Island corporation.
"Non-US Bank" means a Person that is not a United
States Person and that is not described in Section 881(c)(3) of
the Code.
"Note" means any RC Note, Bid Rate Note or Swing Note.
"Notice of Assignment" means any notice to the
Borrowers and the Agent with respect to an assignment pursuant to
Section 10.10(a) in the form of Schedule 10.10(a).
"Ocean State" means EUA Ocean State Corporation, a
Rhode Island corporation.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Indebtedness" means Indebtedness of the
Borrowers in an aggregate principal amount, together with any
such other Indebtedness of each of the other Borrowers, not
exceeding $25,000,000 outstanding at any time in the aggregate
for all of the Borrowers.
"Permitted Lien" means (a) any Lien securing and only
securing the obligations of a Borrower under the Loan Documents;
(b) any Lien securing a tax, assessment or other governmental
charge or levy or the claim of a materialman, mechanic, carrier,
warehouseman or landlord for labor, materials, supplies or
rentals incurred in the ordinary course of business, but only if
payment thereof shall not at the time be required to be made in
accordance with Section 4.04 and foreclosure, distraint, sale or
other similar proceedings either have not commenced or are being
duly contested in good faith by appropriate proceedings and for
which adequate reserves have been set aside and are properly
recorded in the books and records of such Borrower in accordance
with Generally Accepted Accounting Principles; (c) any Lien on
the properties and assets of a Subsidiary of a Borrower securing
an obligation owing to such Borrower; (d) any Lien made in the
ordinary course of business in connection with, or to secure
payment of, obligations under worker's compensation, unemployment
insurance or similar legislation; (e) any Lien arising pursuant
to an order of attachment, distraint or similar legal process
arising in connection with legal proceedings that has been in
existence for less than 20 days after the entry thereof or with
respect to which the execution or enforcement thereof has been
stayed or the payment of which is covered in full (subject to a
customary deductible) by insurance; (f) any Lien existing on (i)
any property or asset of any Person at the time such Person
becomes a Subsidiary or (ii) any property or asset at the time
such property or asset is acquired by a Borrower or a Subsidiary,
but only, in the case of either (i) or (ii), if and so long as
(A) such Lien was not created in contemplation of such Person
becoming a Subsidiary or such property or asset being acquired,
(B) such Lien is and will remain confined to the property or
asset subject to it at the time such Person becomes a Subsidiary
or such property or asset is acquired and to fixed improvements
thereafter erected on such property or asset and (C) such Lien
secures only the obligation secured thereby at the time such
Person becomes a Subsidiary or such property or asset is
acquired; (g) any Lien in existence on the Agreement Date to the
extent set forth on Schedule 4.10, but only, in the case of each
such Lien, to the extent it secures an obligation outstanding on
the Agreement Date to the extent set forth on such Schedule; (h)
any Lien securing Purchase Money Indebtedness but only if, in the
case of each such Lien, (i) such Lien shall at all times be
confined solely to the property or asset the purchase price of
which was financed through the incurrence of the Purchase Money
Indebtedness secured by such Lien and to improvements thereafter
erected on such property or asset and (ii) such Lien attached to
such property or asset within 30 days of the acquisition of such
property or asset; (i) any Lien securing the performance by a
Borrower of any public tenders; (j) any Lien constituting an
easement, right-of-way, zoning or other similar restriction on
the use of real property of a Borrower; or (k) any Lien
constituting a renewal, extension or replacement of a Lien
constituting a Permitted Lien by virtue of clause (f), (g), (h)
or (k) of this definition, but only if (i) at the time such Lien
is granted and immediately after giving effect thereto, no
Default would exist, (ii) such Lien is limited to all or a part
of the property or asset that was subject to the Lien so renewed,
extended or replaced and to fixed improvements thereafter erected
on such property or asset, (iii) the principal amount of the
obligations secured by such Lien does not exceed the principal
amount of the obligations secured by the Lien so renewed,
extended or replaced and (iv) the obligations secured by such
Lien bear interest at a rate per annum not exceeding the rate
borne by the obligations secured by the Lien so renewed, extended
or replaced except for any increase that is commercially
reasonable at the time of such increase.
"Permitted Restrictive Covenant" means (a) any covenant
or restriction contained in any Loan Document, (b) any covenant
or restriction binding upon any Person at the time such Person
becomes a Subsidiary of a Borrower if the same is not created in
contemplation thereof, (c) any covenant or restriction of the
type contained in Section 4.10 that is contained in any Contract
evidencing or providing for the creation of or concerning
Purchase Money Indebtedness so long as such covenant or
restriction is limited to the property purchased therewith, (d)
any covenant or restriction described in Schedule 4.16, but only
to the extent such covenant or restriction is there identified by
specific reference to the provision of the Contract in which such
covenant or restriction is contained, or (e) any covenant or
restriction that (i) is not more burdensome than an existing
Permitted Restrictive Covenant that is such by virtue of clause
(b), (c), (d) or (e), (ii) is contained in a Contract
constituting a renewal, extension or replacement of the Contract
in which such existing Permitted Restrictive Covenant is
contained and (iii) is binding only on the Person or Persons
bound by such existing Permitted Restrictive Covenant.
"Person" means any individual, sole proprietorship,
corporation, partnership, trust, unincorporated organization,
mutual company, joint stock company, estate, union, employee
organization, government or any agency or political subdivision
thereof or, for the purpose of the definition of "ERISA
Affiliate", any trade or business.
"Post-Default Rate" means the rate otherwise applicable
under Section 1.03(a) (excluding the last sentence thereof) plus
2%.
"Prime Rate" means the prime commercial lending rate of
The Bank of New York, as publicly announced to be in effect from
time to time. The Prime Rate shall be adjusted automatically,
without notice, on the effective date of any change in such prime
commercial lending rate. The Prime Rate is not necessarily The
Bank of New York's lowest rate of interest.
"Prohibited Transaction" means any transaction that is
prohibited under Code Section 4975 or ERISA Section 406 and not
exempt under Code Section 4975 or ERISA Section 408.
"Pro Rata Share" means, with respect to any Bank at any
time, the percentage of the aggregate amount of the Commitments
at such time that is represented by such Bank's Commitment at
such time.
"Purchase Money Indebtedness" means (a) Indebtedness of
a Borrower or any Significant Subsidiary thereof that is incurred
to finance part or all of (but not more than) the purchase price
of a tangible asset, provided that such Indebtedness is incurred
within 90 days after such purchase, or (b) Indebtedness that (i)
constitutes a renewal, extension or refunding of, but not an
increase in the principal amount of, Purchase Money Indebtedness
that is such by virtue of clause (a) or (b) and (ii) bears
interest at a rate per annum that is commercially reasonable at
the time such Indebtedness is incurred.
"RC Loan" means any amount advanced by a Bank pursuant
to Section 1.01(a).
"RC Loan Date" means the requested date for the making
of a Base Rate Loan or a Eurodollar Rate Loan, as specified by
the applicable Borrower in accordance with Section 1.02(a)(i).
"RC Note" means a promissory note in the form of
Exhibit A.
"Regulated Borrower" means Blackstone, Eastern, Montaup
or Newport.
"Regulated Borrower Capitalization" means, at any time,
the Capitalization of a Regulated Borrower at such time.
"Regulation D" means Regulation D of the Board of
Governors of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of
Governors of the Federal Reserve System.
"Regulatory Change" means any Applicable Law,
interpretation, directive, request or guideline (whether or not
having the force of law), or any change therein or in the
administration or enforcement thereof, that becomes effective or
is implemented or first required or expected to be complied with
after the Agreement Date, whether the same is (a) the result of
an enactment by a government or any agency or political
subdivision thereof, a determination of a court or regulatory
authority, or otherwise or (b) enacted, adopted, issued or
proposed before or after the Agreement Date, including any such
that imposes, increases or modifies any Tax, reserve requirement,
insurance charge, special deposit requirement, assessment or
capital adequacy requirement, but excluding any such that
imposes, increases or modifies any Bank Tax.
"Repayment Date" means the later of (a) the termination
of the Commitments (whether as a result of the occurrence of the
Termination Date, reduction to zero pursuant to Section 1.07 or
termination pursuant to Section 6.02) and (b) the payment in full
of the Loans and all other amounts payable or accrued hereunder.
"Reportable Event" means, with respect to any Benefit
Plan of any Person, (a) the occurrence of any of the events set
forth in ERISA Sections 4043(c), other than an event as to which
the requirement of 30 days' notice, or the penalty for failure to
provide such notice, has been waived by the PBGC, (b) the
existence of conditions sufficient to require advance notice to
the PBGC pursuant to ERISA Section 4043(b), (c) the occurrence of
any of the events set forth in ERISA Sections 4062(e) or 4063(a)
or the regulations thereunder, (d) any event requiring such
Person or any of its ERISA Affiliates to provide security to such
Benefit Plan under Code Section 401(a)(29) or (e) any failure to
make a payment required by Code Section 412(m) with respect to
such Benefit Plan.
"Representation and Warranty" means any representation
or warranty made by a Borrower pursuant to or under (a) Section
2.02, Article 3, Section 5.02 or any other provision of this
Agreement or (b) any amendment to, or waiver of rights under,
this Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION
OR WARRANTY REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION
(EXCEPT, IN EACH CASE, TO THE EXTENT OTHERWISE EXPRESSLY
PROVIDED), THE INFORMATION THAT IS THE SUBJECT MATTER THEREOF IS
WITHIN THE KNOWLEDGE OF THE APPLICABLE BORROWER.
"Required Asset Sale" means, with respect to any
Borrower, any sale, lease or other disposition of any or all
assets of such Borrower or any Significant Subsidiary thereof
pursuant to and as required by Applicable Law.
"Required Banks" means, at any time, Banks having more
than 51% of the aggregate amount of the Commitments or, if the
Commitments shall have expired or been terminated, Banks having
more than 51% of the aggregate amount of the Loans outstanding.
"Reserve Requirement" means, at any time, the then
current maximum rate for which reserves (including any marginal,
supplemental or emergency reserve) are required to be maintained
under Regulation D by member banks of the Federal Reserve System
in New York City with deposits exceeding five billion Dollars
against "Eurocurrency liabilities", as that term is used in
Regulation D. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in
the Reserve Requirement.
"Service" means EUA Service Corporation, a
Massachusetts corporation.
"S&P" means Standard & Poor's (a division of The
McGraw-Hill Companies).
"S&P Rating" means, at any time, the rating of the
first mortgage bonds of Eastern, as most recently announced by
S&P.
"Significant Subsidiary" means, at any time, a
Subsidiary of a Borrower, that accounts for more than 10% of such
Borrower's average annual consolidated operating income for the
24 month period ending on, or most recently ended prior to, such
date; unless otherwise specified, "Significant Subsidiary" means
a Significant Subsidiary of EUA.
"Subsidiary" means, with respect to any Person, any
other Person (a) securities of which having ordinary voting power
to elect a majority of the board of directors (or other persons
having similar functions) or (b) other ownership interests of
which ordinarily constituting a majority voting interest, are at
the time, directly or indirectly, owned or controlled by such
first Person, or by one or more of its Subsidiaries, or by such
first Person and one or more of its Subsidiaries; unless
otherwise specified, "Subsidiary" means a Subsidiary of EUA.
"Swing Loan" means an amount advanced by a Swing Loan
Lender pursuant to Section 1.01(c) hereof.
"Swing Loan Lender" means The Bank of New York or Fleet
National Bank; "Swing Loan Lenders" means each of The Bank of New
York and Fleet National Bank, individually and collectively.
"Swing Note" means any promissory note in the form of
Exhibit C.
"Tax" means any Federal, State or foreign tax,
assessment or other governmental charge (including any
withholding tax) upon a Person or upon its assets, revenues,
income or profits.
"Termination Date" means the third anniversary of the
Agreement Date.
"Termination Event" means, with respect to any Benefit
Plan, (a) any Reportable Event with respect to such Benefit Plan,
(b) the termination of such Benefit Plan, or the filing of a
notice of intent to terminate such Benefit Plan, or the treatment
of any amendment to such Benefit Plan as a termination under
ERISA Section 4041(c), (c) the institution of proceedings to
terminate such Benefit Plan under ERISA Section 4042 or (d) the
appointment of a trustee to administer such Benefit Plan under
ERISA Section 4042.
"Type" means, with respect to Loans, any of the
following, each of which shall be deemed to be a different "Type"
of Loan: Base Rate Loans, Eurodollar Rate Loans having a one-week
Interest Period, Eurodollar Rate Loans having a one-month
Interest Period, Eurodollar Rate Loans having a two-month
Interest Period, Eurodollar Rate Loans having a three-month
Interest Period and Eurodollar Rate Loans having a six-month
Interest Period. Each Bid Rate Loan having an Interest Period
different from that of any other Bid Rate Loan shall also be a
different "Type" of Loan. Any Eurodollar Rate Loan having an
Interest Period that differs from the duration specified for a
Type of Eurodollar Rate Loan listed above solely as a result of
the operation of clauses (x) and (y) of the definition of
"Interest Period" shall be deemed to be a Loan of such above-
listed Type notwithstanding such difference in duration of
Interest Periods.
"Unfunded Benefit Liabilities" means, with respect to
any Benefit Plan at any time, the amount of unfunded benefit
liabilities of such Benefit Plan at such time as determined under
ERISA Section 4001(a)(18).
"United States Person" means a corporation, partnership
or other entity created, organized or incorporated under the laws
of the United States of America or a State thereof (including the
District of Columbia).
Section 11.02 Other Interpretive Provisions. (a)
Except as otherwise specified herein, all references herein (i)
to any Person shall be deemed to include such Person's successors
and assigns, (ii) to EUA shall be deemed to include such Person
in each of its capacities hereunder, including as a Borrower and
the Guarantor, (iii) to any Applicable Law defined or referred to
herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be
amended or supplemented from time to time and (iv) to any Loan
Document or Contract defined or referred to herein or in any
other Loan Document shall be deemed references to such Loan
Document or Contract (and, in the case of any Note or any other
instrument, any instrument issued in substitution therefor) as
the terms thereof may have been or may be amended, supplemented,
waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein",
"hereof" and "hereunder" and words of similar import shall refer
to this Agreement as a whole and not to any provision of this
Agreement, and the words "Article", "Section", "Annex",
"Schedule" and "Exhibit" shall refer to Articles and Sections of,
and Annexes, Schedules and Exhibits to, this Agreement unless
otherwise specified.
(c) Whenever the context so requires, the neuter
gender includes the masculine or feminine, the masculine gender
includes the feminine, and the singular number includes the
plural, and vice versa.
(d) Any item or list of items set forth following the
word "including", "include" or "includes" is set forth only for
the purpose of indicating that, regardless of whatever other
items are in the category in which such item or items are
"included", such item or items are in such category, and shall
not be construed as indicating that the items in the category in
which such item or items are "included" are limited to such items
or to items similar to such items.
(e) Each authorization in favor of the Agent, the
Swing Loan Lenders, the Banks or any other Person granted by or
pursuant to this Agreement shall be deemed to be irrevocable and
coupled with an interest.
(f) Except as otherwise specified herein, all
references to the time of day shall be deemed to be to New York
City time as then in effect.
Section 11.03 Accounting Matters. Unless otherwise
specified herein, all accounting determinations hereunder and all
computations utilized by a Borrower in complying with the
covenants contained herein shall be made, all accounting terms
used herein shall be interpreted, and all financial statements
required to be delivered hereunder shall be prepared, in
accordance with Generally Accepted Accounting Principles, except,
in the case of such financial statements, for departures from
Generally Accepted Accounting Principles that may from time to
time be approved in writing by the independent certified public
accountants who are at the time, in accordance with Section
5.01(b), reporting on a Borrower's financial statements.
Section 11.04 Representations and Warranties. All
Representations and Warranties shall be deemed made (a) in the
case of any Representation and Warranty contained in this
Agreement at the time of its initial execution and delivery, at
and as of the Agreement Date, (b) in the case of any
Representation and Warranty contained in this Agreement or any
other document at the time any Loan is made, at and as of such
time and (c) in the case of any particular Representation and
Warranty, wherever contained, at such other time or times as such
Representation and Warranty is made or deemed made in accordance
with the provisions of this Agreement or the document pursuant
to, under or in connection with which such Representation and
Warranty is made or deemed made.
Section 11.05 Captions. Captions to Articles,
Sections and subsections of, and Annexes, Schedules and Exhibits
to, this Agreement are included for convenience of reference only
and shall not constitute a part of this Agreement for any other
purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 11.06 Interpretation of Related Documents.
Except as otherwise specified therein, terms that are defined
herein that are used in Notes, certificates, opinions and other
documents delivered in connection herewith shall have the
meanings ascribed to them herein and such documents shall be
otherwise interpreted in accordance with the provisions of
this Article 11.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers all as
of the Agreement Date.
EASTERN UTILITIES ASSOCIATES
By ______________________
Name:
Title:
BLACKSTONE VALLEY ELECTRIC COMPANY
By _______________________
Name:
Title:
EASTERN EDISON COMPANY
By ________________________
Name:
Title:
MONTAUP ELECTRIC COMPANY
By ________________________
Name:
Title:
NEWPORT ELECTRIC CORPORATION
By _________________________
Name:
Title:
EUA COGENEX CORPORATION
By _________________________
Name:
Title:
EUA OCEAN STATE CORPORATION
By ________________________
Name:
Title:
EUA SERVICE CORPORATION
By __________________________
Name:
Title:
BNY CAPITAL MARKETS, INC.,
as Arranger
By __________________________
Name:
Title:
THE BANK OF NEW YORK,
as Agent and as a Bank
By _________________________
Name:
Title:
[BANK]
By ________________________
Name:
Title:
[BANK]
By _______________________
Name:
Title:
Agreement Date:
ANNEX A
Banks, Lending Offices
and Notice Addresses Commitments
THE BANK OF NEW YORK $
Domestic Lending Office:
[name and address]
Eurodollar Lending Office:
[name and address]
Notice Address:
[name and address]
Telex No.:
Telecopy No.:
Telephone No.:
Attention:
ANNEX A
Banks, Lending Offices
and Notice Addresses Commitments
[BANK]
Domestic Lending Office:
[name and address]
Eurodollar Lending Office:
[name and address]
Notice Address:
[name and address]
Telex No.:
Telecopy No.:
Telephone No.:
Attention:
Schedule 1.01(c)(ii)
NOTICE OF BORROWING FOR SWING LOANS
[Name and address
of Swing Loan Lender in
accordance with Section 10.01(b)]
[Name and address
of Agent in accordance with
Section 10.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as
of __________, 1997, among Eastern Utilities Associates,
Blackstone Valley Electric Company, Eastern Edison Company,
Montaup Electric Company, Newport Electric Corporation, EUA
Cogenex Corporation, EUA Ocean State Corporation, EUA Service
Corporation, as Borrowers, the banks listed on the signature
pages thereof, BNY Capital Markets, Inc., as Arranger, and
The Bank of New York, as Agent (the "Credit Agreement"). The
undersigned hereby confirms its telephonic notice given
pursuant to Section 1.01(c)(ii) of the Credit Agreement of
its request to have the following Swing Loans made to it on
[insert requested date of borrowing]:
Amount of Swing Loan Interest Rate Interest Payment Date
____________________ ______________ _____________________
____________________ ______________ _____________________
____________________ ______________ _____________________
[Please disburse the proceeds of the Swing Loans by [insert
requested method of disbursement].]1
The undersigned represents and warrants that (a) the
borrowing requested hereby complies with the requirements of the Credit
Agreement and (b) [except to the extent set forth on Annex A hereto,]2
(i) each Representation and Warranty is true and correct in all
material respects at and as of the date hereof and (except to the
extent the undersigned gives notice to the Swing Loan Lender and the
Agent to the contrary prior to 5:00 p.m. on the Business Day before the
requested date for the making of the Swing Loans) will be true and
correct in all material respects at and as of the time the Swing Loans
are made, in each case both with and without giving effect to the Swing
Loans and the application of the proceeds thereof, and (ii) no Default
has occurred and is continuing as of the date hereof or would result
from the making of the Swing Loans or from the application of the
proceeds thereof if the Swing Loans were made on the date hereof, and
(except to the extent the undersigned gives notice to the Swing Loan
Lender and the Agent to the contrary prior to 5:00 p.m. on the Business
Day before the requested date for the making of the Swing Loans) no
Default will have occurred and be continuing at the time the Swing
Loans are to be made or would result from the making of the Swing Loans
or from the application of the proceeds thereof.
[NAME OF APPLICABLE BORROWER]
By ______________________,
Name:
Title:
_____________________
1. Include and complete this sentence if the proceeds of the
requested Swing Loans are to be disbursed in a manner other than
by credit to an account of the applicable Borrower at the Swing
Loan Lenders's Domestic Lending Office.
2. If the representation and warranty in either clause (b)(i) or
(b)(ii) would be incorrect and, in the case of clause (b)(i),
incorrect in any material respect, include the material in
brackets and set forth the reasons such representation and
warranty would be incorrect on an attachment labeled Annex A.
Schedule 1.02(b)(i)
NOTICE OF BORROWING FOR RC LOANS
[Name and address
of Agent in accordance with
Section 10.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as
of __________, 1997, among Eastern Utilities Associates,
Blackstone Valley Electric Company, Eastern Edison Company,
Montaup Electric Company, Newport Electric Corporation, EUA
Cogenex Corporation, EUA Ocean State Corporation, EUA Service
Corporation, as Borrowers, the banks listed on the signature
pages thereof, BNY Capital Markets, Inc., as Arranger, and
The Bank of New York, as Agent (the "Credit Agreement"). The
undersigned hereby gives notice pursuant to Section 1.02(a)
of the Credit Agreement of its request to have the following
RC Loans made to it on [insert requested date of borrowing]:
Type of RC Loan1 Amount
_________________________________ ______________
_________________________________ ______________
_________________________________ ______________
[Please disburse the proceeds of the RC Loans by [insert
requested method of disbursement].]2
The undersigned represents and warrants that (a) the
borrowing requested hereby complies with the requirements of the Credit
Agreement and (b) [except to the extent set forth on Annex A hereto,]3
(i) each Representation and Warranty is true and correct in all
material respects at and as of the date hereof and (except to the
extent the undersigned gives notice to the Banks to the contrary prior
to 5:00 p.m. on the Business Day before the requested date for the
making of the RC Loans) will be true and correct in all material
respects at and as of the time the RC Loans are made, in each case both
with and without giving effect to the RC Loans and the application of
the proceeds thereof, and (ii) no Default has occurred and is
continuing as of the date hereof or would result from the making of the
RC Loans or from the application of the proceeds thereof if the RC
Loans were made on the date hereof, and (except to the extent the
undersigned gives notice to the Banks to the contrary prior to 5:00
p.m. on the Business Day before the requested date for the making of
the RC Loans) no Default will have occurred and be continuing at the
time the RC Loans are to be made or would result from the making of the
RC Loans or from the application of the proceeds thereof.
[NAME OF APPLICABLE BORROWER]
By ______________________
Name:
Title:
_____________________
1. Be sure to specify the duration of the Interest Period in the case
of Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
2. Include and complete this sentence if the proceeds of the
requested RC Loans are to be disbursed in a manner other than by
credit to an account of the applicable Borrower at the Agent's
Office.
3. If the representation and warranty in either clause (b)(i) or
(b)(ii) would be incorrect and, in the case of clause (b)(i),
incorrect in any material respect, include the material in
brackets and set forth the reasons such representation and
warranty would be incorrect on an attachment labeled Annex A.
- 1 -
Schedule 1.02(b)(i)
REQUEST FOR BID RATE LOANS
[Name and address
of Agent in accordance with
Section 10.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as of
__________, 1997, among Eastern Utilities Associates, Blackstone Valley
Electric Company, Eastern Edison Company, Montaup Electric Company,
Newport Electric Corporation, EUA Cogenex Corporation, EUA Ocean State
Corporation, EUA Service Corporation, as Borrowers, the banks listed on
the signature pages thereof, BNY Capital Markets, Inc., as Arranger,
and The Bank of New York, as Agent (the "Credit Agreement").
Pursuant to Section 1.02(b)(i) of the Credit Agreement, the
undersigned hereby requests to have the following Bid Rate Loans made
to it on the date and upon the terms specified below:
(a) The date on which the requested Bid Rate Loan shall be
made is ____________; and
(b) The principal amount of the requested Bid Rate Loan is
$____________; and
(c) The Interest Period for the requested Bid Rate Loan
shall end on ____________.
The undersigned represents and warrants that (a) the
borrowing requested hereby complies with the requirements of the Credit
Agreement and (b) [except to the extent set forth on Annex A hereto,]1
(i) each Representation and Warranty is true and correct in all
material respects at and as of the date hereof and (except to the
extent the undersigned gives notice to the Banks to the contrary prior
to 5:00 p.m. on the Business Day before the requested date for the
making of the Bid Rate Loans) will be true and correct in all material
respects at and as of the time the Bid Rate Loans are made, in each
case both with and without giving effect to the Bid Rate Loans and the
application of the proceeds thereof, and (ii) no Default has occurred
and is continuing as of the date hereof or would result from the making
of the Bid Rate Loans or from the application of the proceeds thereof
if the Bid Rate Loans were made on the date hereof, and (except to the
extent the undersigned gives notice to the Banks to the contrary prior
to 5:00 p.m. on the Business Day before the requested date for the
making of the Bid Rate Loans) no Default will have occurred and be
continuing at the time the Bid Rate Loans are to be made or would
result from the making of the Bid Rate Loans or from the application of
the proceeds thereof.
[NAME OF APPLICABLE BORROWER]
By ______________________,
Name:
Title:
_____________________
1. If the representation and warranty in either clause (b)(i) or
(b)(ii) would be incorrect and, in the case of clause (b)(i),
incorrect in any material respect, include the material in
brackets and set forth the reasons such representation and
warranty would be incorrect on an attachment labeled Annex A.
Schedule 1.02(b)(ii)
FORM OF BID RATE LOAN OFFER
[Name and address
of Agent in accordance with
Section 10.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as of
__________, 1997, among Eastern Utilities Associates, Blackstone Valley
Electric Company, Eastern Edison Company, Montaup Electric Company,
Newport Electric Corporation, EUA Cogenex Corporation, EUA Ocean State
Corporation, EUA Service Corporation, as Borrowers, the banks listed on
the signature pages thereof, BNY Capital Markets, Inc., as Arranger,
and The Bank of New York, as Agent (the "Credit Agreement"). In
response to your request for Bid Rate Loans dated ___________, 19__,
the undersigned hereby offers to make the following Bid Rate Loan(s) in
the amount(s) and at the rate(s) set forth below for the indicated
Interest Periods (the last day of such Interest Periods referred to
hereafter as a "Bid Rate Maturity Date").
<TABLE>
Bid Rate Maturity Dates
Bid Rate Loans
<CAPTION>
Amount1/ Interest Rate2/ Amount1/ Interest Rate2/ Amount1/ Interest Rate2/
<S> <C> <C>
[Min: ]/1 [Max: ]/1 [Max: ]/1
[Max: ]/1 [Min: ]/1 [Min: ]/1
___________ _____________ ___________ ____________ ____________ _______________
[Min: ]/1 [Max: ]/1 [Max: ]/1
[Max: ]/1 [Min: ]/1 [Min: ]/1
___________ _____________ ___________ ____________ ____________ _______________
[Min: ]/1 [Max: ]/1 [Max: ]/1
[Max: ]/1 [Min: ]/1 [Min: ]/1
___________ _____________ ___________ ____________ ____________ _______________
</TABLE>
provided that the aggregate principal amount of Bid Rate Loans
for which the above offers may be accepted shall not exceed
[$ ].3
We agree that the offer(s) set forth above, subject to
the satisfaction of the conditions set forth in Section 2.02 of
the Credit Agreement, irrevocably obligate the undersigned to
make the Bid Rate Loan(s) for which such offers are accepted, in
whole or in part.
[NAME OF BANK]
By ___________________________
Name:
Title:
________________________________________________
1. (a) Principal amount offered for each Bid Rate Maturity Date
may not exceed principal amount requested.
(b) Not more than three offers may be made with respect to
each Bid Rate Maturity Date.
(c) The Bank may specify maximum and minimum amounts that
may be accepted.
2. Specify rate of interest per annum and state it as a decimal
to the nearest 1/10,000 of 1%.
3. Include and specify aggregate limitation if the sum of
individual offers exceeds the amount the Bank is willing to
lend.
Schedule 1.03(c)(iv)
NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of Agent in accordance with
Section 10.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as of
__________, 1997, among Eastern Utilities Associates, Blackstone
Valley Electric Company, Eastern Edison Company, Montaup Electric
Company, Newport Electric Corporation, EUA Cogenex Corporation,
EUA Ocean State Corporation, EUA Service Corporation, as
Borrowers, the banks listed on the signature pages thereof, BNY
Capital Markets, Inc., as Arranger, and The Bank of New York, as
Agent (the "Credit Agreement"). The undersigned hereby gives
notice pursuant to Section 1.03(c)(iv) of the Credit Agreement of
its desire to convert or continue the RC Loans specified below
into or as RC Loans of the Types and in the amounts specified
below on [insert date of conversion or continuation]:
Converted
RC Loans to be Converted or Continued or Continued RC Loans
Last Day of
Type Current Type
of RC Loan1 Interest Period Amount of RC Loan1 Amount
The undersigned represents and warrants that
conversions and continuations requested hereby comply with
the requirements of the Credit Agreement.
[NAME OF APPLICABLE BORROWER]
By
Name:
Title:
____________________
1. Be sure to specify the duration of the Interest Period
in the case of Eurodollar Rate Loans (e.g., one-month
Eurodollar Rate).
Schedule 1.05(a)
NOTICE OF PREPAYMENT
[Name and address
of Agent in accordance with
Section 10.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as
of _____________, 1997, among Eastern Utilities Associates,
Blackstone Valley Electric Company, Eastern Edison Company,
Montaup Electric Company, Newport Electric Corporation, EUA
Cogenex Corporation, EUA Ocean State Corporation, EUA Service
Corporation, as Borrowers, the banks listed on the signature
pages thereof, BNY Capital Markets, Inc., as Arranger, and
The Bank of New York, as Agent (the "Credit Agreement"). The
undersigned hereby gives notice pursuant to Section 1.05(a)
of the Credit Agreement that it will prepay the [RC Loans]
[Swing Loans] specified below on [insert date of prepayment]:
Last Day of
[Type of RC Loan1] Current
[Swing Loans] Interest Period Amount
The undersigned represents and warrants that the
prepayment requested hereby complies with the requirements
of the Credit Agreement.
[NAME OF APPLICABLE BORROWER]
By
Name:
Title:
____________________
1. Be sure to specify the duration of the Interest Period
in the case of Eurodollar Rate Loans (e.g., one-month
Eurodollar Rate).
Schedule 1.13(a)(iv)
Non-US Bank Certificate
Eastern Utilities Associates
Blackstone Valley Electric Company
Eastern Edison Company
Montaup Electric Company
Newport Electric Corporation
EUA Cogenex Corporation
EUA Ocean State Corporation
EUA Service Corporation
The Bank Of New York
Gentlemen:
Reference is made to the Credit Agreement, dated
as of __________, 1997 among Eastern Utilities Associates,
Blackstone Valley Electric Company, Eastern Edison Company,
Montaup Electric Company, Newport Electric Corporation, EUA
Cogenex Corporation, EUA Ocean State Corporation, EUA
Service Corporation, as Borrowers, the banks listed on the
signature pages thereof, BNY Capital Markets, Inc., as
Arranger, and The Bank of New York, as Agent. Terms used
herein that are defined in such Credit Agreement are used
with the meanings therein ascribed to them.
The undersigned hereby (a) certifies to the
Borrowers and the Agent that (i) it is a Non-US Bank and
(ii) is entitled to submit an Internal Revenue Service Form
W-8 and (b) agrees to indemnify and defend the Borrowers
and the Agent from, and hold each of them harmless against,
any and all losses, liabilities, claims, damages, and
expenses of any kind arising out of, resulting from, or in
any way connected with the certification made pursuant to
clause (a) being incorrect.
Very truly yours,
[Bank]
By:
Name:
Title:
Schedule 1.15(a)
NOTICE OF REQUEST TO INCREASE COMMITMENTS
[Name and address
of Agent in accordance with
Section 10.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated
as of __________, 1997, among Eastern Utilities Associates,
Blackstone Valley Electric Company, Eastern Edison Company,
Montaup Electric Company, Newport Electric Corporation, EUA
Cogenex Corporation, EUA Ocean State Corporation, EUA
Service Corporation, as Borrowers, the banks listed on the
signature pages thereof, BNY Capital Markets, Inc., as
Arranger, and The Bank of New York, as Agent (the "Credit
Agreement"). Terms used herein that are defined in such
Credit Agreement are used with the meanings therein
ascribed to them.
Pursuant to Section 1.15(a) of the Credit
Agreement, the undersigned hereby requests that the Banks
increase the Commitments to $_____________. Attached
hereto is a list of the Banks and the amount of the
increase of each Bank's Commitment, and a list of lenders
proposed to become Banks under the Credit Agreement and the
amount of each such lender's Commitment.
EASTERN UTILITIES ASSOCIATES
By
Name:
Title:
Schedule 2.01(a)(i)
[NAME OF APPLICABLE BORROWER]
CERTIFICATE AS TO RESOLUTIONS, ETC.
I, __________, [Assistant] Secretary of [Name of
Applicable Borrower], a __________ corporation (the
"Company"), hereby certify, pursuant to Section 2.01(a)(i)
of the Credit Agreement dated as of __________, 1997 among
Eastern Utilities Associates, Blackstone Valley Electric
Company, Eastern Edison Company, Montaup Electric Company,
Newport Electric Corporation, EUA Cogenex Corporation, EUA
Ocean State Corporation, EUA Service Corporation, as
Borrowers, the banks listed on the signature pages thereof,
BNY Capital Markets, Inc., as Arranger, and The Bank of New
York, as Agent, that:
1. The below named persons have been duly
elected (or appointed) and have duly qualified as, and
on this day are, officers of the Company holding their
respective offices below set opposite their names, and
the signatures below set opposite their names are
their genuine signatures:
Name Office Signature
[Insert names and offices
of persons authorized to sign the
Loan Documents]
2. (a) Attached as Annex A is a true and
correct copy of resolutions duly adopted by [unanimous
written consent of] the Board of Directors of the
Company. Such resolutions have not been amended,
modified or revoked and are in full force and effect
on the date hereof.
[(b) Attached as Annex A-1 is a true and
correct copy of resolutions duly adopted by [unanimous
written consent of] the stockholders of the Company.
Such resolutions have not been amended, modified or
revoked and are in full force and effect on the date
hereof.]1
3. [List Loan Documents to which the Company is
a party], in each case as executed and delivered on
behalf of the Company, are in the forms thereof
approved by [unanimous written consent of] the Board
of Directors of the Company.
4. There has been no amendment to the
Certificate of Incorporation of the Company since
__________, 19__.2
5. Attached as Annex B is a true and correct
copy of the By-laws of the Company as in effect on
__________, 19__3 and at all subsequent times to and
including the date hereof.
IN WITNESS WHEREOF, I have signed this
certificate this __ day of __________, 19__.
___________________________
[Assistant] Secretary
I, __________, [title] of the Company, hereby
certify that [name of the above [Assistant] Secretary] has
been duly elected or appointed and has been duly qualified
as, and on this day is, [Assistant] Secretary of the
Company, and the signature in paragraph 1 above is his
genuine signature.
IN WITNESS WHEREOF, I have signed this
certificate this __ day of __________, 19__.
___________________________
[Title]
____________________
1. Omit if not applicable.
2. Insert date of the Secretary of State's Certificate of
Incorporation required by Section 2.01(a)(ii).
3. Insert date of the Board of Directors' meeting
adopting the resolutions referred to in
paragraph 2(a).
Annex A
[NAME OF APPLICABLE BORROWER]
RESOLUTIONS OF BOARD OF DIRECTORS
RESOLVED, that this Corporation is authorized to
borrow from the banks listed on the signature pages of the
below-mentioned Credit Agreement (the "Banks"), under and
pursuant to such Credit Agreement, an aggregate principal
amount not to exceed at any time outstanding $150,000,000,
to be repaid in accordance with the Credit Agreement, with
interest on the unpaid principal amounts thereof from time
to time outstanding at the interest rates per annum
provided for in the Credit Agreement; and be it further
RESOLVED, that the form, terms and provisions of:
(a) the proposed Credit Agreement (the "Credit
Agreement"), in substantially the form of the draft of
__________, 1997, among Eastern Utilities Associates,
Blackstone Valley Electric Company, Eastern Edison
Company, Montaup Electric Company, Newport Electric
Corporation, EUA Cogenex Corporation, EUA Ocean State
Corporation, EUA Service Corporation, as Borrowers,
the Banks, BNY Capital Markets, Inc., as Arranger, and
The Bank of New York, as Agent, providing, among other
things, (i) for the making by the Banks to this
Corporation from time to time of advances ("Loans") in
an aggregate principal amount not to exceed at any
time outstanding $150,000,000 upon the terms and
conditions therein set forth, (ii) for the payment by
this Corporation of the fees, costs and expenses as
therein provided AND (iii) FOR THE WAIVER BY THIS
CORPORATION OF (A) TRIAL BY JURY AND (B) CLAIMS FOR
SPECIAL, INDIRECT AND CONSEQUENTIAL DAMAGES, ALL AS
THEREIN PROVIDED; and
(b) the proposed promissory notes (the "Notes"),
in substantially the form of Exhibits A, B and C to
the draft of the Credit Agreement referred to in
paragraph (a) of this resolution, to be issued by this
Corporation to the Banks pursuant to the terms and
conditions of the Credit Agreement, to evidence the
indebtedness of this Corporation to the Banks
resulting from each of the Loans made by the Banks to
this Corporation and providing, among other things,
for the repayment of such Loans, and payment of
interest thereon;
be, and the same hereby are, in all respects approved, and
that the Chairman of the Board of Directors of this
Corporation, the President, any Vice President or the
Treasurer of this Corporation be, and each of them hereby
is, authorized, in the name and on behalf of this
Corporation, to execute and deliver the Credit Agreement
and the Notes (collectively, the "Loan Documents"), each in
the form, or substantially in the form, thereof submitted
to the Board of Directors of this Corporation, with such
changes, additions and modifications thereto as the officer
of this Corporation executing the same shall approve, such
approval to be conclusively evidenced by his execution and
delivery thereof; and be it further
RESOLVED, that the drafts of the Loan Documents
referred to above be filed by the Secretary of this
Corporation among the minutes of the meeting of the Board
of Directors of this Corporation; and be it further
RESOLVED, that the proper officers of this
Corporation be, and each of them hereby is, authorized and
empowered (any one of them acting alone) to do or cause to
be done all such acts or things and to sign and deliver, or
cause to be signed and delivered, all such documents,
instruments and certificates (including, without
limitation, all notices and certificates required or
permitted to be given or made under the terms of the Loan
Documents), in the name and on behalf of this Corporation
or otherwise, as such officer of this Corporation may deem
necessary, advisable or appropriate to effectuate or carry
out the purposes and intent of the foregoing resolutions
and to perform the obligations of this Corporation under
the agreements and instruments referred to therein.
Annex A-1
[NAME OF APPLICABLE BORROWER]
RESOLUTIONS OF SHAREHOLDERS
[Insert applicable resolutions]
Schedule 2.01(a)(iv)
[Letterhead of Applicable Borrower's Counsel]
Schedule 2.01(a)(v)
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
Schedule 3.02
SCHEDULE OF SUBSIDIARIES
Schedule 3.03
SCHEDULE OF REQUIRED CONSENTS AND
GOVERNMENTAL APPROVALS
Schedule 3.05
SCHEDULE OF MATERIAL LITIGATION
Schedule 4.09
SCHEDULE OF EXISTING INDEBTEDNESS
Schedule 4.10
SCHEDULE OF EXISTING LIENS
Obligation Secured Collateral
Schedule 4.14
SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 4.15
SCHEDULE OF CERTAIN TRANSACTIONS WITH AFFILIATES
Schedule 4.16
SCHEDULE OF EXISTING RESTRICTIVE COVENANTS
Schedule 5.01(c)
[EASTERN UTILITIES ASSOCIATES]
[EUA SERVICE CORPORATION]
CERTIFICATE AS TO FINANCIAL STATEMENTS AND DEFAULTS
I, __________, [President, Treasurer or Assistant
Treasurer] [Vice President, Finance or Assistant Treasurer] of
[Eastern Utilities Associates] [EUA Service Corporation], a
__________ corporation, hereby certify, pursuant to Section
5.01(c) of the Credit Agreement dated as of __________, 1997
among Eastern Utilities Associates, Blackstone Valley Electric
Company, Eastern Edison Company, Montaup Electric Company,
Newport Electric Corporation, EUA Cogenex Corporation, EUA Ocean
State Corporation, EUA Service Corporation, as Borrowers, the
banks listed on the signature pages thereof, BNY Capital Markets,
Inc., as Arranger, and The Bank of New York, as Agent, that:
1. (a) The accompanying [unaudited]1 consolidated
financial statements of [Insert Name of Applicable Borrower] and
its Consolidated Subsidiaries as at __________ and for the
[fiscal year][quarterly accounting period]2 ending __________,
19__, are complete and correct and present fairly, in accordance
with Generally Accepted Accounting Principles (except for changes
therein or departures therefrom described below that have been
approved in writing by Messrs. __________, [Insert Name of
Applicable Borrower]'s current independent certified public
accountants), the consolidated financial position of [Insert Name
of Applicable Borrower] and its Consolidated Subsidiaries as at
the end of such [fiscal year][quarterly period]2, and the
consolidated results of operations and cash flows for such
quarterly period, and for the elapsed portion of the fiscal year
ended with the last day of [fiscal year][such quarterly period]2,
in each case on the basis presented [and subject only to normal
year-end auditing adjustments]1.
(b) Except as disclosed or reflected in such financial
statements, as at __________, neither [Insert Name of Applicable
Borrower] nor any Subsidiary had any Liability, contingent or
otherwise, or any unrealized or anticipated loss, that, singly or
in the aggregate, have had or might have a Materially Adverse
Effect on [Insert Name of Applicable Borrower] and its
Consolidated Subsidiaries taken as a whole.
2. (a) The changes in and departures from Generally
Accepted Accounting Principles are as follows:
All such changes have been approved in writing by Messrs.
__________.
[[(b) Attached as Annex A are [unaudited]1 consolidated
financial statements of [Insert Name of Applicable Borrower] and
its Consolidated Subsidiaries as at __________ and for the
[fiscal year][quarterly accounting period]2 ending __________,
19__, which have been prepared in accordance with Generally
Accepted Accounting Principles without giving effect to the
changes referred to in Paragraph 2(a) of this Certificate or any
previous Certificate. Such financial statements are complete and
correct and present fairly, in accordance with Generally Accepted
Accounting Principles, the consolidated financial position of
[Insert Name of Applicable Borrower] and its Consolidated
Subsidiaries as at the end of such [fiscal year][quarterly
period]2, and the consolidated results of operations and cash
flows for such quarterly period, and for the elapsed portion of
the fiscal year ending with the last day of such [fiscal
year][quarterly period]2, in each case on the basis presented
[and subject only to normal year-end auditing adjustments]1.]3]
[3. There follows the calculation required to establish
whether or not EUA was in compliance with Section 4.18 of the
Agreement.]4
[4. There follows the calculation required to establish
whether or not Cogenex was in compliance with Section 4.19 of the
Agreement and the calculation of the Cogenex Coverage Ratio.]5
5. Based on an examination sufficient to enable me to
make an informed statement, no Default exists, including, in
particular, any such arising under the provisions of Article 4,
except the following:
[If none such exist, insert "None"; if any do exist,
specify the same by Section, give the date the same occurred,
and the steps being taken by [the applicable Borrower] or a
Subsidiary thereof with respect thereto.]
Dated: ______________________
Name:
Title:
_______________
1. Include only in the case of a certificate to be delivered
with respect to quarterly financial statements.
2. Include first alternative in the case of a certificate to
be delivered with respect to year-end financial
statements; include second alternative in the case of a
certificate to be delivered with respect to quarterly
financial statements.
3. Paragraph (b) should be included in, and Annex A attached
to, the Certificate only if changes from Generally
Accepted Accounting Principles are specified in Paragraph
2(a) of this or any previous Certificate.
4. To be provided quarterly by EUA. The calculations should
be made in the same manner and with the same degree of
detail as the calculations set forth in the certificate
delivered by EUA pursuant to Section 2.01(a)(vii).
5. To be provided quarterly by Cogenex. The calculations
should be made in the same manner and with the same degree
of detail as the calculations set forth in the certificate
delivered by EUA pursuant to Section 2.01(a)(vii).
Schedule 5.02(a)
SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
Schedule 10.10(a)
NOTICE OF ASSIGNMENT
[Name and address
of Borrowers in accordance with
Section 10.01(b)]
[Name and address
of Agent in accordance with
Section 10.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as of
__________, 1997, among Eastern Utilities Associates, Blackstone
Valley Electric Company, Eastern Edison Company, Montaup Electric
Company, Newport Electric Corporation, EUA Cogenex Corporation,
EUA Ocean State Corporation, EUA Service Corporation, as
Borrowers, the banks listed on the signature pages thereof, BNY
Capital Markets, Inc., as Arranger, and The Bank of New York, as
Agent (the "Credit Agreement"). The undersigned hereby gives
notice pursuant to Section 10.10(a) of the Credit Agreement that
[name of Assignor] [(the "Assignor")]1 has made the following
assignment to [name of Assignee] [(the "Assignee")]2:
Rights and Obligations
Assigned:
Effective Date of
Assignment:
[The Assignee's Lending Offices and address for notices
are as follows:
Domestic Lending Office:
Eurodollar Lending Office:
Notice Address:]3
[The Assignor hereby requests that the Borrowers and the
Agent consent to the assignment described above by signing a copy
of this letter in the space provided below and returning it to
the Assignor. Such consent shall release the Assignor from all
of the obligations described above as having been assigned to the
Assignee].4
[NAME OF ASSIGNEE]
By
Name:
Title:
[NAME OF ASSIGNEE]
By
Name:
Title:
[Assignment and release consented to:]4
EASTERN UTILITIES ASSOCIATES
By
Name:
Title:
THE BANK OF NEW YORK,
as agent
By
Name:
Title:
1. Include definition if Footnote 4 material is to be
included.
2. Include definition if Footnote 3 or Footnote 4 material is
to be included.
3. Omit if the Assignee is a Bank.
4. Include the appropriate portion of the bracketed provision
if (i) the Assignor desires to be released from the
assigned obligations, (ii) the consent of EUA and the
Agent is required for such release and (iii) the Assignor
has not otherwise obtained such consents.
EXHIBIT A
[NAME OF APPLICABLE BORROWER]
RC NOTE
_______________, 19__
FOR VALUE RECEIVED, [NAME OF APPLICABLE BORROWER]
(the "Borrower") hereby promises to pay to the order of
__________ (the "Bank"), for the account of its applicable
Lending Office, the unpaid principal amount of each RC Loan
made by such Bank under the Credit Agreement referred to below,
on the dates and in the amounts specified in Section 1.04 of
such Credit Agreement, and to pay interest on the principal
amount of each such RC Loan on the dates and at the rates
specified in Section 1.03 of such Credit Agreement. All
payments due the Bank hereunder shall be made to the Bank at
the place, in the type of money and funds and in the manner
specified in Section 1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the
grid attached hereto, or on a continuation thereof, each RC
Loan of the Bank and each payment, with respect thereto.
Presentment, demand, protest, notice of dishonor and
notice of intent to accelerate are hereby waived by the
undersigned.
This RC Note evidences RC Loans made under, and is
entitled to the benefits of, the Credit Agreement, dated as of
__________, 1997, among Eastern Utilities Associates,
Blackstone Valley Electric Company, Eastern Edison Company,
Montaup Electric Company, Newport Electric Corporation, EUA
Cogenex Corporation, EUA Ocean State Corporation, EUA Service
Corporation, as Borrowers, the banks listed on the signature
pages thereof, BNY Capital Markets, Inc., as Arranger, and The
Bank of New York, as Agent, as the same may be amended from
time to time. Reference is made to such Credit Agreement, as
so amended, for provisions relating to the prepayment and the
acceleration of the maturity hereof.
This RC Note shall, pursuant to New York General
Obligations Law Subsection 5-1401, be construed in accordance with and
goverend by the law of the State of New York.
[NAME OF APPLICABLE BORROWER]
By
Name:
Title:
GRID
RC NOTE
_______________________________________________________________________
Amount of Amount of Notation
Date Loan Principal Repaid Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
EXHIBIT B
[NAME OF APPLICABLE BORROWER]
BID RATE NOTE
_______________, 19__
FOR VALUE RECEIVED, [NAME OF APPLICABLE BORROWER] (the
"Borrower") hereby promises to pay to the order of __________
(the "Bank") the principal amount of the Bid Rate Loans of the
Bank outstanding, on the dates and in the amounts specified in
Section 1.02(b) and 1.04 of the Credit Agreement referred to
below, and to pay interest on the principal amount of each Bid
Rate Loan on the dates and at the rates specified in Section
1.02(b) and 1.03 of such Credit Agreement. All payments due the
Bank hereunder shall be made to the Bank at the place, in the
type of money and funds and in the manner specified in Section
1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid
attached hereto, or on a continuation thereof, each Bid Rate Loan
of the Bank and each payment, with respect thereto.
Presentment, demand, protest, notice of dishonor and
notice of intent to accelerate are hereby waived by the
undersigned.
This Bid Rate Note evidences Bid Rate Loans made under,
and is entitled to the benefits of, the Credit Agreement, dated
as of __________, 1997, among Eastern Utilities Associates,
Blackstone Valley Electric Company, Eastern Edison Company,
Montaup Electric Company, Newport Electric Corporation, EUA
Cogenex Corporation, EUA Ocean State Corporation, EUA Service
Corporation, as Borrowers, the banks listed on the signature
pages thereof, BNY Capital Markets, Inc., as Arranger, and The
Bank of New York, as Agent, as the same may be amended from time
to time. Reference is made to such Credit Agreement, as so
amended, for provisions relating to the acceleration of the
maturity hereof.
This Bid Rate Note shall, pursuant to New York General
Obligations Law Subsection 5-5401, be construed in accordance with and
governed by the law of the State of New York.
[NAME OF APPLICABLE BORROWER]
By
Name:
Title:
GRID
BID RATE NOTE
_______________________________________________________________________
Amount of Amount of Notation
Date Bid Rate Loan Principal Repaid Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
EXHIBIT C
[NAME OF APPLICABLE BORROWER]
SWING NOTE
______, 1997
FOR VALUE RECEIVED, [NAME OF APPLICABLE BORROWER] (the
"Borrower") hereby promises to pay to the order of [NAME OF
APPLICABLE SWING LOAN LENDER] (the "Swing Loan Lender") the
principal amount of Swing Loans outstanding, on the dates and in
the amounts specified in Sections 1.01, 1.04 and 1.05 of the
Credit Agreement referred to below, and to pay interest on such
principal amount on the dates and at the rates specified in
Section 1.03 of such Credit Agreement. All payments due to the
Swing Loan Lender hereunder shall be made to the Swing Loan
Lender at the place, in the type of money and funds and in the
manner specified in Section 1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid
attached hereto, or on a continuation thereof, each Swing Loan
and each payment, repayment or conversion with respect thereto.
Presentment, demand, protest, notice of dishonor and
notice of intent to accelerate are hereby waived by the
undersigned.
This Swing Note evidences Swing Loans made under, and is
entitled to the benefits of, the Credit Agreement, dated as of
________, 1997, among Eastern Utilities Associates, Blackstone
Valley Electric Company, Eastern Edison Company, Montaup Electric
Company, Newport Electric Corporation, EUA Cogenex Corporation,
EUA Ocean State Corporation, EUA Service Corporation, as
Borrowers, the Banks listed on the signature pages thereof, BNY
Capital Markets, Inc., as Arranger, and The Bank of New York, as
Agent ("Credit Agreement"). Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to such
terms in the Credit Agreement. Reference is made to such Credit
Agreement, as so amended, for provisions relating to the
repayment and the acceleration of the maturity hereof.
This Swing Note shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the State of
New York.
[NAME OF APPLICABLE BORROWER]
By
Name:
Title:
GRID
SWING NOTE
______________________________________________________________________
Amount of
Principal Paid Unpaid Principal
Amount of or Amount of Notation
Date Agent SL Repaid Agent SL Note Made By
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
ANNEX A Banks, Lending Offices and Notice Addresses
Annex A RESOLUTIONS OF BOARD OF DIRECTORS
Annex A-1 RESOLUTIONS OF SHAREHOLDERS
Schedule 1.01(c)(ii) NOTICE OF SWING BORROWING
Schedule 1.02(a)(i) NOTICE OF RC BORROWING
Schedule 1.02(b)(i) REQUEST FOR BID RATE LOANS
Schedule 1.02(b)(ii) FORM OF BID RATE LOAN OFFER
Schedule 1.03(c)(iv) NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.05(a) NOTICE OF PREPAYMENT
Schedule 1.13(a)(iv) Non-US Bank Certificate
Schedule 1.15(a) NOTICE OF REQUEST TO INCREASE COMMITMENTS
Schedule 2.01(a)(i) CERTIFICATE AS TO RESOLUTIONS, ETC
Schedule 2.01(a)(iv) [Letterhead of Applicable Borrower's Counsel]
Schedule 2.01(a)(v) [Letterhead of Winthrop, Stimson, Putnam &
Roberts]
Schedule 3.02 SCHEDULE OF SUBSIDIARIES
Schedule 3.03 SCHEDULE OF REQUIRED CONSENTS AND
GOVERNMENTAL APPROVALS
Schedule 3.05 SCHEDULE OF MATERIAL LITIGATION
Schedule 4.09 SCHEDULE OF EXISTING INDEBTEDNESS
Schedule 4.10 SCHEDULE OF EXISTING LIENS
Schedule 4.14 SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 4.15 SCHEDULE OF CERTAIN TRANSACTIONS WITH
AFFILIATES
Schedule 4.16 SCHEDULE OF EXISTING RESTRICTIVE COVENANTS
Schedule 5.01(b) CERTIFICATE AS TO FINANCIAL STATEMENTS AND
DEFAULTS
Schedule 5.02(a) SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
Schedule 10.09(a) NOTICE OF ASSIGNMENT
Exhibit A RC NOTE
Exhibit B BID RATE NOTE
Exhibit C SWING NOTE
WSP&R DRAFT
03/20/97
$120,000,000
CREDIT AGREEMENT
Dated as of , 1997
Among
EASTERN UTILITIES ASSOCIATES,
BLACKSTONE VALLEY ELECTRIC COMPANY,
EASTERN EDISON COMPANY,
MONTAUP ELECTRIC COMPANY,
NEWPORT ELECTRIC CORPORATION,
EUA COGENEX CORPORATION,
EUA OCEAN STATE CORPORATION,
EUA SERVICE CORPORATION,
as Borrowers
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF,
BNY CAPITAL MARKETS, INC.,
as Arranger
and
THE BANK OF NEW YORK,
as Agent
TABLE OF CONTENTS
Page
ARTICLE 1.
CREDIT FACILITY
Section 1.01 Commitment to Lend 1
(a) RC Loans 1
(b) Bid Rate Loans 1
(c) Swing Loans 2
Section 1.02 Manner of Borrowing 3
(a) RC Loans 3
(b) Bid Rate Loans 5
Section 1.03 Interest 7
(a) Rates 7
(b) Payment 7
(c) Conversion and Continuation 8
(d) Maximum Interest Rate 9
Section 1.04 Repayment 9
Section 1.05 Prepayments 9
(a) Optional Prepayments 9
(b) Mandatory Prepayments 10
(i) Loans in Excess of Commitments 10
(ii) Reduction of Availability 10
(c) Other Prepayment Provisions 10
Section 1.06 Limitation on Types of Loans 10
Section 1.07 Reductions in Commitments 11
Section 1.08 Fees 11
(a) Facility Fees 11
(b) Agent's Fees 11
(c) Fees Non-Refundable 11
Section 1.09 Computation of Interest and Fees 11
Section 1.10 Evidence of Indebtedness 12
Section 1.11 Payments by the Borrowers 12
(a) Time, Place and Manner 12
(b) No Reductions 12
(c) Extension of Payment Dates 12
Section 1.12 Distribution of Payments by the Agent 13
Section 1.13 Taxes 13
(a) (i) Taxes Payable by the Borrowers 13
(ii) Taxes Payable by the Agent or any Bank 14
(iii) Limitations 14
(iv) Exemption from U.S. Withholding Taxes 14
(b) Credits and Deductions 15
Section 1.14 Pro Rata Treatment 15
Section 1.15 Increase in Commitments 15
Section 1.16. Extension of Termination Date 17
ARTICLE 2.
CONDITIONS TO LOANS
Section 2.01 Conditions to Initial Loans 18
Section 2.02 Conditions to Each Loan 19
ARTICLE 3.
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01 Organization; Power; Qualification 20
Section 3.02 Subsidiaries 20
Section 3.03 Authorization; Enforceability; Required
Consents; Absence of Conflicts 21
Section 3.04 Taxes 21
Section 3.05 Litigation 22
Section 3.06 Burdensome Provisions 22
Section 3.07 No Adverse Change or Event 22
Section 3.08 Additional Adverse Facts 22
Section 3.09 Investment Company Act 23
Section 3.10 Compliance with Applicable Law and Contracts 23
Section 3.11 Title to Properties and Assets 23
(a) Fee-Owned Real Property 23
(b) Leased Real Property 23
(c) Other Assets 23
ARTICLE 4.
CERTAIN COVENANTS
A. Each Borrower shall and shall cause each of its
Significant Subsidiaries to:
Section 4.01 Preservation of Existence 23
Section 4.02 Preservation of Rights and Properties 24
Section 4.03 Business Activities 24
Section 4.04 Payment of Taxes and Liabilities 24
Section 4.05 Compliance With Applicable Law 24
Section 4.06 Preservation of Loan Document Enforceability 24
Section 4.07 Insurance 24
Section 4.08 Use of Proceeds 24
B. Each Borrower shall not, and shall not permit any of its
Significant Subsidiaries to, directly or indirectly:
Section 4.09 Indebtedness 25
Section 4.10 Liens 25
Section 4.11 Merger or Consolidation 25
Section 4.12 Disposition of Assets 25
Section 4.13 Taxes of Other Persons 26
Section 4.14 Benefit Plans 26
Section 4.15 Transactions with Affiliates 26
Section 4.16 Limitation on Restrictive Covenants 26
Section 4.17 Issuance or Disposition of Capital Securities 26
C. EUA shall not:
Section 4.18 EUA Capitalization Ratio 26
D. Cogenex shall not:
Section 4.19 Cogenex Capitalization Ratio 27
ARTICLE 5.
INFORMATION
Section 5.01 Information to Be Furnished 27
(a) Quarterly Financial Statements 27
(b) Year End Financial Statements; Accountants'
Certificate 27
(c) Officer's Certificate as to Financial Statements
and Defaults 28
(d) Reports and Filings 28
(e) Requested Information 28
(f) Notice of Defaults, Material Adverse Changes and
Other Matters 28
Section 5.02 Accuracy of Financial Statements and
Information 29
(a) Historical Financial Statements 29
(b) Future Financial Statements 29
(c) Historical Information 30
(d) Future Information 30
Section 5.03 Additional Covenants Relating to Disclosure 30
(a) Visits, Inspections and Discussions 31
(b) Accounting Methods and Financial Records 31
(c) Fiscal Year 31
Section 5.04 Authorization of Third Parties to Deliver
Information and Discuss Affairs 31
ARTICLE 6.
DEFAULT
Section 6.01 Events of Default 32
Section 6.02 Remedies upon Event of Default 35
ARTICLE 7.
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01 Mandatory Suspension and Conversion of
Eurodollar Rate Loans 36
Section 7.02 Regulatory Changes 37
Section 7.03 Capital Requirements 38
Section 7.04 Funding Losses 38
Section 7.05 Certain Determinations 39
Section 7.06 Change of Lending Office 39
Section 7.07. Replacement of Banks 39
ARTICLE 8.
THE AGENT
Section 8.01 Appointment and Powers 40
Section 8.02 Limitation on Agent's Liability 40
Section 8.03 Defaults 41
Section 8.04 Rights as a Bank 41
Section 8.05 Indemnification 42
Section 8.06 Non Reliance on Agent and Other Banks 42
Section 8.07 Resignation of the Agent 42
ARTICLE 9.
GUARANTY
Section 9.01 Guaranty of Payment and Performance 43
Section 9.02 Continuance and Acceleration of Guaranteed
Obligations upon Certain Events 43
Section 9.03 Recovered Payments 44
Section 9.04 Binding Nature of Certain Adjudications 44
Section 9.05 Nature of Guarantor's Obligations 44
Section 9.06 No Release of Guarantor 45
Section 9.07 Certain Waivers 46
Section 9.08 Subordination of Rights Against
Cogenex and Collateral 47
ARTICLE 10.
MISCELLANEOUS
Section 10.01 Notices and Deliveries 47
(a) Manner of Delivery 47
(b) Addresses 48
(c) Effectiveness 49
(d) Reasonable Notice 49
Section 10.02 Expenses; Indemnification 50
Section 10.03 Amounts Payable Due upon Request for Payment 51
Section 10.04 Remedies of the Essence 51
Section 10.05 Rights Cumulative 51
Section 10.06 Confidentiality 51
Section 10.07 Amendments; Waivers 52
Section 10.08 Set-Off 52
Section 10.09 Sharing of Recoveries 52
Section 10.10 Assignments and Participations 53
(a) Assignments 53
(b) Participations 54
Section 10.11 Governing Law 54
Section 10.12 Judicial Proceedings; Waiver of Jury Trial 54
Section 10.13 Severability of Provisions 55
Section 10.14 Counterparts 55
Section 10.15 Survival of Obligations 55
Section 10.16 Entire Agreement 55
Section 10.17 Successors and Assigns 56
ARTICLE 11.
INTERPRETATION
Section 11.01 Defined Terms 56
Section 11.02 Other Interpretive Provisions 73
Section 11.03 Accounting Matters 74
Section 11.04 Representations and Warranties 74
Section 11.05 Captions 74
Section 11.06 Interpretation of Related Documents 75
ANNEX A Banks, Lending Offices and Notice
Addresses
Annex A RESOLUTIONS OF BOARD OF DIRECTORS
Annex A-1 RESOLUTIONS OF SHAREHOLDERS
Schedule 1.01(c)(ii) NOTICE OF SWING BORROWING
Schedule 1.02(a)(i) NOTICE OF RC
BORROWING
Schedule 1.02(b)(i) REQUEST FOR BID RATE LOANS
Schedule 1.02(b)(ii) FORM OF BID RATE LOAN OFFER
Schedule 1.03(c)(iv) NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.05(a) NOTICE OF PREPAYMENT
Schedule 1.13(a)(iv) Non-US Bank Certificate
Schedule 1.15(a) NOTICE OF REQUEST TO INCREASE
COMMITMENTS
Schedule 2.01(a)(i) CERTIFICATE AS TO RESOLUTIONS, ETC
Schedule 2.01(a)(iv) [Letterhead of Applicable Borrower's
Counsel]
Schedule 2.01(a)(v) [Letterhead of Winthrop, Stimson, Putnam
& Roberts]
Schedule 3.02 SCHEDULE OF SUBSIDIARIES
Schedule 3.03 SCHEDULE OF REQUIRED CONSENTS AND
GOVERNMENTAL APPROVALS
Schedule 3.05 SCHEDULE OF MATERIAL LITIGATION
Schedule 4.09 SCHEDULE OF EXISTING INDEBTEDNESS
Schedule 4.10 SCHEDULE OF EXISTING LIENS
Schedule 4.14 SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 4.16 SCHEDULE OF EXISTING RESTRICTIVE
COVENANTS
Schedule 5.01(b) CERTIFICATE AS TO FINANCIAL STATEMENTS
AND DEFAULTS
Schedule 5.02(a) SCHEDULE OF HISTORICAL FINANCIAL
INFORMATION
Schedule 10.09(a) NOTICE OF ASSIGNMENT
Exhibit A RC NOTE
Exhibit B BID RATE NOTE
Exhibit C SWING NOTE
EXHIBIT F
March 26, 1997
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
Re:File No. 70-8955 Declaration With Respect To
Revolving Credit Facility
Ladies and Gentlemen:
As counsel for Eastern Utilities Associates ("EUA"), Eastern
Edison Company ("Eastern"), Montaup Electric Company ("Montaup"),
EUA Service Corporation ("Service"), Blackstone Valley Electric
Company ("Blackstone"), Newport Electric Corporation ("Newport")
EUA Ocean State Corporation ("Ocean State") and EUA Cogenex
Corporation ("Cogenex"), we are furnishing this opinion to be
used in connection with the filing of the declaration on Form U-1
under the Public Utility Holding Company Act of 1935, as amended,
(the "Declaration") filed by EUA, Eastern, Montaup, Blackstone
and Newport with the Securities and Exchange Commission (the
"SEC"), on November 8, 1996, File No. 70-8955. The Declaration
requests authority to issue and sell short-term notes under a
revolving credit facility (the "Notes") to banks through the
period ending five years from the closing date under the facility
in aggregate amounts outstanding at any one time not to exceed
$75 million in the case of EUA, $75 million in the case of
Eastern, $20 million in the case of Montaup, $20 million in the
case of Blackstone, and $25 million in the case of Newport
(referred to together hereinafter as the "Proposed
Transactions").
It is our opinion, subject to the additional assumptions,
exceptions and qualifications hereinafter stated, that in the
event that the Proposed Transactions are consummated in
accordance with the Declaration:
(a) All state laws applicable to the Proposed Transactions
will have been complied with by EUA, Eastern, Montaup,
Blackstone and Newport.
(b) EUA, Eastern and Montaup, issuers of Notes to evidence
bank borrowings in accordance with the Declaration, are all
validly organized and duly existing corporations organized
under the laws of the Commonwealth of Massachusetts and any
Notes issued by EUA, Eastern or Montaup will be valid and
binding obligations of EUA, Eastern or Montaup, as the case
may be, in accordance with their terms.
(c) Blackstone and Newport, also issuers of Notes to
evidence bank borrowings in accordance with the Declaration,
are each a validly organized and duly existing corporation
organized under the laws of the State of Rhode Island and
any Notes issued by Blackstone or Newport will be valid and
binding obligations of Blackstone or Newport, as the case
may be, in accordance with their terms.
(d) The consummation of the Proposed Transactions will not
violate the legal rights of the holders of any of the
securities of EUA, Eastern, Montaup, Blackstone or Newport,
or of any of Cogenex, Service, Ocean State, EUA Energy
Investment Corporation ("EUA Energy"), OSP Finance Company
("OSP"), Northeast Energy Management, Inc. ("NEM"), EUA
Citizens Conservation Services, Inc. ("CCS"), EUA Highland
Corporation ("Highland"), Cogenex-Canada (each of NEM, CCS,
Highland and Cogenex-Canada being an associate or subsidiary
company of Cogenex), EUA Energy Services, Inc. ("Energy
Services"), Duke/Louis Dreyfus Energy Services (New England)
L.L.C. ("D/LDNE") (D/LDNE being an associate company of
Energy Services), EUA TransCapacity, Inc. ("TransCapacity"),
EUA BIOTEN, Inc. ("BIOTEN") (TransCapacity and BIOTEN being
associate companies of EUA Energy), Ocean State Power ("OSP
I") or Ocean State Power II ("OSP II") (OSP I and OSP II
being Rhode Island general partnerships).
This opinion, in addition to being subject to the
consummation of the Proposed Transactions in accordance with the
Declaration, is also subject to the following additional
assumptions, exceptions and qualifications:
(1) the due authorization by the Boards of Directors of
EUA, Eastern, Montaup, Blackstone and Newport in connection with
the issuance of their respective Notes;
(2) compliance with such order or orders as the SEC may
issue from time to time upon the Declaration;
(3) the accuracy of information furnished to us (a) as to
the outstanding securities of EUA, Eastern, Montaup, Blackstone
and Newport, or of Cogenex, Service, Ocean State, EUA Energy,
OSP, Cogenex-Canada, Unicord, OSP I, OSP II, Energy Services,
D/LDNE, TransCapacity, NEM, CCS, Highland and BIOTEN, and (b)
that there is no provision or condition in any note or other
document in connection with outstanding short-term borrowings or
any of those companies limiting any of the Proposed Transactions;
and
(4) that the enforceability of the Notes may be subject to
and affected by applicable bankruptcy, receivership, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws
affecting the enforcement of the rights and remedies of creditors
generally (including, without limitation, such as may deny giving
effect to waivers of rights to debtors or guarantors); and such
duties and standards as are or may be imposed on creditors,
including, without limitation, good faith, reasonableness and
fair dealing under any applicable statute, rule, regulation or
judicial decision; and
(5) that the enforceability of the Notes may be subject to
and affected by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and the exercise of equitable powers by a court
of competent jurisdiction (and no opinion is given herein as to
specific performance or as to the availability of other equitable
remedies or equitable relief of any kind).
This opinion relates only to federal law and the laws of the
Commonwealth of Massachusetts, and we express no opinion with
respect to any other jurisdiction. To the extent that certain
matters addressed may involve the laws of other states, we have
assumed that such laws are not materially different from the laws
of the Commonwealth of Massachusetts. We express no opinion with
respect to the effect of the consummation of the Proposed
Transactions on the legal rights of the holders of any of the
securities of any associate companies of EUA, Eastern, Montaup,
Service, Blackstone, Newport, Ocean State or Cogenex, other than
those associate companies expressly set forth herein.
We consent to the use of this opinion in connection with the
Declaration.
Very truly yours,
McDermott, Will & Emery
EXHIBIT H
(PROPOSED FORM OF NOTICE)
SECURITIES AND EXCHANGE COMMISSION
(Release No. 35 - , 70 - )
Eastern Utilities Associates ("EUA"), a public utility holding
company registered under the Public Utility Holding Company Act
of 1935, as amended (the "Act"), and Blackstone Valley Electric
Company ("Blackstone"), Eastern Edison Company ("Eastern"),
Montaup Electric Company ("MECO"), Newport Electric Corporation
("Newport"), EUA Cogenex Corporation ("Cogenex"), EUA Ocean State
Corporation ("Ocean State") and EUA Service Corporation ("ESC"),
each of which is a wholly-owned subsidiary of EUA (each of EUA,
Blackstone, Eastern, MECO and Newport are sometimes herein called
a "Declarant" and collectively all such companies are herein
called "Declarants," and each of Cogenex, Ocean State and ESC are
sometimes herein called an "Affiliate" and collectively all such
companies are called "Affiliates"), have filed a declaration with
this Commission pursuant to Sections 6(a), 7 and 12(b) of the
Public Utility Holding Company Act of 1935 (the "Act") and Rules
45 and 52(b) promulgated thereunder.
The Declarants seek authorization to enter into a revolving
credit agreement to replace certain credit facilities currently
in place and pursuant to which they and the Affiliates will be
permitted to borrow from time to time, from one or more
commercial banks or other lending institutions (the "Lenders") up
to $150 million in the aggregate through a period ending five
years after the closing date of the agreement. Borrowings may
take the form of (i) borrowings from all Lenders under the
Facility on a pro rata basis ("Pro Rata Borrowings"), (ii)
borrowings of at least $100,000 each and up to $20,000,000 in the
aggregate (the "Swing Line Borrowings") from a particular Lender
(the "Swing Line Lender"), and (iii) short-term borrowings from
Lenders on a competitive bid basis ("Competitive Bid
Borrowings").
NOTICE IS FURTHER GIVEN that any interested person may, not
later than _________ ___, 1997, request in writing that a
hearing be held on such matter, stating the nature of his
interest, the reasons for such request, and the issues of fact or
law raised by said declaration which he desires to controvert; or
he may request that he be notified if the Commission should order
a hearing thereon. Any such request should be addressed:
Secretary, Securities and Exchange Commission, 450 5th Street,
N.W., Judiciary Plaza, Washington, D.C. 20549. A copy of such
request should be served personally or by mail upon the declarant
at the above-stated address and proof of service (by affidavit
or, in case of an attorney at law, by certificate) should be
filed with the request. At any time after said date the
declaration, as filed or as it may be amended, may be granted and
permitted to become effective as provided in Rule 23 of the
General Rules and Regulations promulgated under the Act, or the
Commission may grant exemption from such rules as provided in
Rules 20(a) and 100 thereof or take such other action as it may
deem appropriate. Persons who request a hearing or advice as to
whether a hearing is ordered will receive any notices and orders
issued in this matter, including the date of the hearing (if
ordered) and any postponements thereof.
For the Commission, by the Division of Corporate Regulation,
pursuant to delegated authority.
Secretary
