SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
__x__ Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended September 30, 1997
OR
Transition Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the transition period from to
COMMISSION FILE NUMBER 0-10007
COLONIAL GAS COMPANY
(Exact name of registrant as specified in its charter)
Massachusetts 04-1558100
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
40 Market Street, Lowell, Massachusetts 01852
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (978) 322-3000
Former name, former address and former fiscal year, if
changed since last report: Not applicable
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes __x__ No
The number of shares of the registrant's common stock, $3.33
par value, outstanding as of November 1, 1997 was 8,653,666.
[END OF 10-Q COVER PAGE]
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
COLONIAL GAS COMPANY
(Registrant)
Date: November 12, 1997 s/F.L. Putnam III
F.L. Putnam III
President and Chief Executive Officer
Date: November 12, 1997 s/Nickolas Stavropoulos
Nickolas Stavropoulos
Executive Vice President - Finance,
Marketing and Chief Financial Officer
[END OF SIGNATURES]
COLONIAL GAS COMPANY HEREBY AMENDS THE FOLLOWING ITEMS, FINANCIAL
STATEMENT OR OTHER PORTIONS OF ITS QUARTERLY REPORT ON FORM 10-Q FOR
THE PERIOD ENDING SEPTEMBER 30, 1997:
Exhibit
4e Revolving Credit Agreement for Colonial Gas Company
dated as of September 12, 1997, with Fleet National
Bank as Agent for designated Banks
4f Revolving Credit Agreement for Massachusetts Fuel
Inventory Trust, dated as of September 12, 1997,
with Fleet National Bank as Agent for designated
Banks
4h Security Agreement and Assignment of Contracts dated
as of September 12, 1997, made by Massachusetts
Fuel Inventory Trust in favor of Fleet National
Bank as Agent for designated Banks
The above-referenced Exhibits which were listed but not included
with the Form 10-Q Report filed on November 13, 1997, are hereby being
filed with this Form 10-Q/A.
Execution Copy
REVOLVING CREDIT AGREEMENT
by and among
COLONIAL GAS COMPANY
(the "Company"),
FLEET NATIONAL BANK, as Agent
(the "Agent"),
THE BANK OF NEW YORK, as co-agent
(the "Co-Agent")
and
THE BANK OF NEW YORK,
UNION BANK OF CALIFORNIA, N.A.,
CORESTATES BANK, N.A.,
FIRST UNION NATIONAL BANK
and
FLEET NATIONAL BANK
(collectively, the "Banks"),
$75,000,000
September 12, 1997
TABLE OF CONTENTS
Section Page
1. DEFINITIONS
2. THE REVOLVING CREDIT ADVANCES
2.1. The Revolving Credit Advances
2.2. Making the Advances
3. COMPETITIVE BID ADVANCES
3.1. Competitive Bid Borrowings
3.2. Interest on Competitive Bid Advances
3.3. Competitive Bid Notes
4. CONVERSION, INTEREST, PAYMENTS AND COSTS
4.1. Conversion of Advances
4.2. Interest
4.3. Overdue Principal and Interest
4.4. Limitation on Interest
4.5. Interest Period and Rate Determination and
Protection
4.6. Increased Costs, Etc.
4.7. Illegality or Impossibility
4.8. Payment on Any Day Other Than The Last Day of an
Interest Period
4.9. Prepayments
4.10. Payments and Computations
4.11. Payment on Non-Business Days
4.12. Sharing of Payments, Etc.
5. COMMITMENTS
5.1. Amount of Commitment
5.2. Extension of Commitments
5.3. Commitment Fees
5.4. Reduction and Termination by the Company
6. CONDITIONS OF FIRST LENDING
6.1. Documentation
6.2. Financial Statements
6.3. Representations and Warranties
6.4. Performance; No Default
6.5. Trust Credit Agreement
6.6. Proceedings and Documents
6.7. Notice of Borrowing
7. CONDITIONS OF SUBSEQUENT BORROWINGS
7.1. Representations and Warranties
7.2. Performance; No Default
7.3. Notes in Full Force and Effect
8. REPRESENTATIONS AND WARRANTIES
8.1. Corporate Existence and Good Standing, Etc.
8.2. Corporate Power; Consents; Absence of Conflict
with Other Agreements, Etc.
8.3. Title to Properties; Leases
8.4. Financial Statements
8.5. No Material Changes, Etc.
8.6. Franchises, Patents, Copyrights, Etc.
8.7. Litigation
8.8. No Material Adverse Contracts, Etc.
8.9. Compliance with Other Instruments,
Laws, Etc.
8.10. Tax Status
8.11. Absence of Security Interests, Etc.
8.12. Use of Proceeds
8.13. Pension Plan
8.14. Subsidiaries
8.15. Disclosure
8.16. Investment Company; Public Utility Holding
Company
8.17. Environmental Matters
9. EXEMPT CHARACTER OF TRANSACTION
10. AFFIRMATIVE COVENANTS
10.1. Punctual Payment
10.2. Maintenance of Office
10.3. Reports, Certificates and Other Information
10.4. Existence and Franchises
10.5. Payments of Taxes
10.6. Maintenance of Property
10.7. Books, Records and Inspections
10.8. Employee Benefit Plans
10.9. Copies of Employee Benefit Plan Reports
10.10. Further Assurances
10.11. Securities Law, Etc. Compliance
10.12. Insurance
10.13. Payment of Indebtedness and Performance of Obligations
10.14. Change of Corporate Name
11. CERTAIN NEGATIVE COVENANTS
11.1. Debt
11.2. Liens
11.3. Guaranties, Loans or Advances
11.4. Investments
11.5. Subsidiaries
11.6. Other Agreements
11.7. Merger, Consolidation, or Sale of Assets
11.8. Debt to Capitalization Ratio
11.9. Interest Coverage Ratio
11.10. Terminate Pension Plan
11.11. Pension Plan Distribution
11.12. Indenture
11.13. Leases
11.14. Debt Payments
11.15. Dividends; Distributions
11.16. Alterations to Fuel Purchase Contract
12. EVENTS OF DEFAULT; ACCELERATION
13. NOTICE AND WAIVERS OF DEFAULT
13.1. Notice of Default
13.2. Waivers of Default
14. REMEDIES ON DEFAULT, ETC.
14.1. Rights of Banks
14.2. Setoff
15. THE AGENT
15A. THE CO-AGENT
16. CONSENT TO JURISDICTION
17. BINDING EFFECT AND ASSIGNMENT
18. EXECUTION IN COUNTERPARTS
19. SURVIVAL OF COVENANTS, ETC.
20. NOTICE, ETC.
21. GOVERNING LAW
22. MISCELLANEOUS
23. ENTIRE AGREEMENT, ETC.
24. CONSENTS, AMENDMENTS, WAIVERS, ETC.
25. PARTICIPATIONS
26. EXPENSES; INDEMNIFICATION
27. HEADINGS
28. WAIVER OF JURY TRIAL
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated as of September 12,
1997, by and among COLONIAL GAS COMPANY, a Massachusetts
corporation (the "Company"), THE BANK OF NEW YORK, UNION
BANK OF CALIFORNIA, N.A., CORESTATES BANK, N.A., FIRST UNION
NATIONAL BANK and FLEET NATIONAL BANK (collectively the
"Banks"), THE BANK OF NEW YORK, as co-agent for the Banks
(the "Co-Agent"), and FLEET NATIONAL BANK, as agent of the
Banks (the "Agent").
1. DEFINITIONS. The following terms shall have the
meanings assigned to them below in this 1 or in the
provisions of this Agreement and the Exhibits hereto
referred to below:
Absolute Rate - a fixed rate of interest per annum
(computed on the basis of a 360-day year for the actual
number of days elapsed and expressed in decimals to 1/10,000
of 1%).
Acquisition - any transaction consummated after the
date of this Agreement by which the Company (i) acquires any
going business or all or substantially all of the assets of
any firm, corporation or division thereof which is in the
gas distribution, gas pipeline, cogeneration, alternate
energy or trucking businesses, whether through purchase of
assets, merger, consolidation or otherwise, or (ii) acquires
(in one transaction or as the most recent transaction in a
series of transactions) at least a majority of the
securities (having ordinary voting power for the election of
directors) of a corporation which is in one of the
businesses described in clause (i) above.
Advance - an advance by a Bank to the Company (i)
pursuant to 2, whether a Base Rate Advance or Eurodollar
Rate Advance or (ii) pursuant to 3, a Competitive Bid
Advance (each of which shall be a Type of Advance).
Agent - has the meaning specified in the preamble.
Agent's Fee - has the meaning specified in 5.3(b).
Agent's Special Counsel - Gadsby & Hannah LLP of
Boston, Massachusetts, or such other counsel as may be
approved by the Agent.
Alternate Base Rate - for any day, will be the greater
of (i) the Base Rate announced from time to time by Fleet
National Bank at its head office in Boston as its base rate
or (ii) 1/2% per annum above the Federal Funds Effective
Rate in effect from time to time.
Applicable Eurodollar Rate Margin - on any date of
determination, the percentage per annum set forth below
opposite the Company's Standard & Poors Rating on such date;
provided, that if no Standard & Poors Rating is in effect on
any such date, the Applicable Eurodollar Rate Margin shall
be the highest Applicable Eurodollar Rate Margin set forth
below (and in the event the Company wishes to designate
another nationally recognized rating service in addition to
or other than Standard & Poors Rating Group, the Company and
the Banks will negotiate in good faith to amend the schedule
set forth below to take account of such new or additional
rating; provided, that until agreement on such amendment is
reached, the last effective rating of Standard & Poors shall
be deemed to continue in effect for purposes of determining
the Applicable Eurodollar Rate Margin):
Standard & Poors Applicable Eurodollar
Rating Rate Margin
A 0.180%
A- 0.200%
BBB+ 0.250%
BBB 0.335%
less than BBB 0.425%
Applicable Facility Fee Rate - on any date of
determination, the percentage per annum set forth below
opposite the Company's Standard & Poors Rating on such date;
provided, that if no Standard & Poors Rating is in effect on
any such date, the Applicable Facility Fee Rate shall be the
highest Applicable Facility Fee Rate set forth below (and in
the event the Company wishes to designate another nationally
recognized rating service in addition to or other than
Standard & Poors, the Company and the Banks will negotiate
in good faith to amend the schedule set forth below to take
account of such new or additional rating; provided, that
until agreement on such amendment is reached, the last
effective rating of Standard & Poors shall be deemed to
continue in effect for purposes of determining the
Applicable Facility Fee Rate):
Standard & Poors Applicable Facility
Rating Fee Rate
A 0.075%
A- 0.080%
BBB+ 0.950%
BBB 0.120%
less than BBB 0.200%
Applicable Lending Office - with respect to each Bank,
such Bank's Domestic Lending office in the case of a Base
Rate Advance or Competitive Bid Advance, and such Bank's
Eurodollar Lending Office(s) in the case of a Eurodollar
Advance.
Assessment Rate - for any Interest Period, the net
annual assessment rate (rounded upwards, if necessary, to
the next higher 1/100 of 1%) applicable to the Agent on its
insured deposits under the Federal Deposit Insurance Act,
determined by annualizing the most recent assessment levied
on the Agent by the Federal Deposit Insurance Corporation
(the "FDIC") with respect to such deposits.
Assignee - has the meaning set forth in 17.
Available Commitment - as of any date of determination,
the excess of (a) the Maximum Commitment over (b) the
aggregate principal amount of Advances outstanding to the
Trust under the Trust Credit Agreement.
Banks - has the meaning specified in the preamble.
Base Rate Advance - an Advance which bears interest at
the Alternate Base Rate.
Borrowing - simultaneous Advances made hereunder to the
Company by the Banks.
Boston - the City of Boston in The Commonwealth of
Massachusetts in the United States of America.
Business Day - (i) in the case of a Business Day which
relates to a Eurodollar Advance, any day of the year on
which banks are open for business in Boston, London, and New
York and on which dealings are carried on in the interbank
market and in the country where payment is to be made in the
currency of such Advances and (ii) in the case of a Business
Day which relates to a Base Rate Advance or Competitive Bid
Advance, any day of the year on which banks are open for
business in New York and Boston.
Capitalized Leases - leases in which the Company or a
Subsidiary is the lessee and the future rental obligations
of which are reflected as a liability on the Company's
consolidated balance sheet in accordance with GAAP.
Closing Date - the date of the First Lending.
Co-Agent - has the meaning specified in the preamble.
Collateral - has the meaning set forth in 29.
Commitment - as to each Bank on any date of
determination, the Maximum Commitment then in effect times
the Commitment Percentage.
Commitment Percentage - as to each Bank on any date of
determination, the percentage figure set opposite such
Bank's name in 5.1.
Company - has the meaning specified in the preamble.
Competitive Bid Advance - an Advance made pursuant to
3 hereof by a Bank pursuant to a Competitive Bid Auction.
Competitive Bid Auction - a solicitation of Competitive
Bids setting forth Competitive Bid Rates pursuant to 3.
Competitive Bid Notes - has the meaning set forth in
3.3.
Competitive Bid Quote - an offer by a Bank to make a
Competitive Bid Advance in accordance with 3.1(d)
Competitive Bid Rate - has the meaning set forth in
3.1(d)(ii)(C).
Compliance Certificate - has the meaning specified in
10.3(c).
Consent and Agreement - has the meaning specified for
such term in the Security Agreement.
Consolidated Capitalization - an amount determined on a
consolidated basis in accordance with GAAP equal to the sum
of Consolidated Common Equity plus preferred stock of the
Company plus Debt.
Consolidated Common Equity - an amount determined on a
consolidated basis in accordance with GAAP, equal to the sum
of (a) the capital accounts, excluding preferred stock, of
the Company and its Subsidiaries plus (b) the earned surplus
(or deficit) and capital surplus of the Company and its
Subsidiaries, after eliminating intercompany items.
Consolidated Net Income - for any period, the
consolidated net income (or net loss) of the Company and its
Subsidiaries, after deduction of all expenses, taxes and
other proper charges and after eliminating therefrom all
extraordinary items of income and expenses, all determined
in accordance with GAAP.
Convert, Conversion, and Converted - refers to
Conversion of Base Rate Advances or Eurodollar Rate Advances
into any other Type of Advance pursuant to 4.1.
Debt - means at any time obligations under Capitalized
Leases and all obligations of the Company evidenced by
bonds, debentures, letters of credit, notes or other similar
instruments and all other evidences of indebtedness of the
Company (including, without limitation, indebtedness with
maturities of less than one year and the Mortgage Debt),
created, issued, guaranteed, incurred or assumed for money
borrowed or for the deferred (for a period materially in
excess of the Company's present customary practices in
similar transactions) purchase price of property or services
purchased, and any other instrument or arrangement which
would be treated as indebtedness under GAAP, excluding,
however, accounts payable (other than for borrowed money)
and accrued costs and expenses incurred in the ordinary
course of business, provided that the same are not overdue
for 90 days or more in a material amount or, if overdue for
90 days or more in a material amount, are being contested in
good faith and by appropriate proceedings and reserves,
which are adequate in accordance with GAAP, have been set
aside therefor.
Default(s) - has the meaning specified in 12.
Domestic Lending Office - with respect to any Bank, the
office of such Bank specified as its "Domestic Lending
Office" below its name on the signature pages hereof or such
other office or affiliate of such Bank as such Bank may from
time to time specify to the Borrowers and the Agent.
DPU - means the Department or Public Utilities of The
Commonwealth of Massachusetts.
EBIT - means for any period an amount equal to the
Consolidated Net Income plus, to the extent deducted in
computing Consolidated Net Income, (a) interest, (b) Federal
and state income taxes and (c) extraordinary items.
Environmental Law - any federal, state, or local
statutory or common law, ordinance, rule or regulation, in
existence on the applicable date, relating to Hazardous
Materials (as defined herein), pollution or protection of
public health, safety or the environment, including without
limitation, any common law of nuisance or trespass; any law,
rule or regulation relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants
or chemicals, or industrial, toxic or hazardous substances
or waste into the environment (including without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the presence,
generation, manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants or chemicals or industrial, toxic
or hazardous substances or wastes; and any law, rule or
regulation relating to solid waste, water quality, air
quality, wetlands protection, sanitary waste disposal, or
environmental impact review.
Environmental Notice - any summons, citation,
directive, information request, notice of potential
responsibility, notice of violation or deficiency, order,
claim, complaint, investigation, proceeding, judgment,
letter or other communication, written or oral, actual or
threatened, from the United States Environmental Protection
Agency or other federal, state or local agency or authority,
or any other entity or individual, public or private,
concerning any intentional or unintentional act or omission
which involves Management of Hazardous Substances on or off
any property owned or leased by the Company, any affiliate
of the Company or any guarantor of the Obligations; the
imposition of any lien on such property, including but not
limited to liens asserted by government entities in
connection with Responses to the presence or Release of
Hazardous Substances; and any alleged violation of or
responsibility under Environmental Laws;
ERISA - means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
Eurodollar Advance - shall mean any Advance which bears
interest at a rate determined by reference to the Eurodollar
Rate (Reserve Adjusted).
Eurodollar Lending Office - shall mean with respect to
any Bank the office of such Bank designated as such below
its name on the signature pages hereof or such other office
or offices of such Bank (as designated from time to time by
notice from such Bank to the Company and the Agent) which
shall be making or maintaining the Eurodollar Advances of
such Bank hereunder or such other office or offices through
which such Bank determines its Eurodollar Rate. A
Eurodollar Office of any Bank may be, at the option of such
Bank, either a domestic office or foreign office located
within Europe, the Caribbean or the Bahamas.
Eurodollar Rate - with respect to any Eurodollar
Advance for any Interest Period, the rate per annum equal to
the average of the respective rates notified to the Agent by
the Reference Bank as the rate at which United States
dollars in immediately available funds are offered to the
Eurodollar Lending Office of the Reference Bank two Business
Days prior to the beginning of such Interest Period by prime
banks in any interbank market selected by the Reference Bank
at or about the relevant local time of such Eurodollar
Lending Office, for delivery on the first day of such
Interest Period, for the number of days comprised therein
and in an amount equal or comparable to the amount of the
Eurodollar Advance of the Reference Bank for such Interest
Period. As used herein, "relevant local time" as to any
Eurodollar Office shall mean 11:00 A.M., London time, when
such Eurodollar Lending Office is located in Europe, or
10:00 A.M., Boston time, when such Eurodollar Lending Office
is located in North America, the Caribbean or the Bahamas.
Eurodollar Rate (Reserve Adjusted) - with respect to
any Eurodollar Advance for any Interest Period, a rate per
annum equal to the sum of (i) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Eurodollar Rate* = Eurodollar Rate + Applicable Eurodollar
(Reserve Adjusted) Rate Margin
_________________________________________
1 - Eurodollar Reserve Percentage
*To be rounded upwards, if necessary, to the next
higher 1/16 of 1%.
Eurodollar Reserve Percentage - shall mean, with
respect to each Interest Period, the percentage (expressed
as a decimal) equal to the daily average during such
Interest Period of the percentages in effect on each day of
such Interest Period as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for
determining reserve requirements applicable to "Eurodollar
Liabilities" pursuant to Regulation D or any other then
applicable regulation of the Board of Governors which
prescribes reserve requirements applicable to "Eurodollar
Liabilities" as presently defined in Regulation D.
Event(s) of Default - has the meaning specified in 12.
Facility Fee - has the meaning specified in 5.3(a).
Federal Funds Effective Rate - the weighted average of
the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal
funds brokers on such day, as published for the prior day by
the Federal Reserve Bank of Boston.
First Lending - the first Advance made to the Company
hereunder.
Fuel Purchase Contract - the Purchase Contract, dated
as of June 27, 1990, between the Trust and the Company, as
amended and in effect on the Closing Date.
GAAP - in general, principles which are (a) consistent
with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors (or
successor organizations), in effect for the fiscal year of
the Company ended December 31, 1996 and (b) such that
certified public accountants would, insofar as the use of
accounting principles is pertinent, be in a position to
deliver an unqualified opinion as to financial statements in
which such principles have been properly applied; provided,
however, that for purposes of the financial statements to be
delivered by the Company pursuant to 11 hereof, GAAP shall
mean such principles as in effect for the periods covered by
such financial statements.
Guaranteed Pension Plan - means any pension plan
maintained by the Company or any Subsidiary or to which any
of them contributes, the benefits under which are guaranteed
in whole or in part by the Pension Benefit Guaranty
Corporation.
Hazardous Substance - any substance or material (i)
identified in Section 101(14) of CERCLA, 42 USC 9601(14)
and as set forth in Title 40, Code of Federal Regulations,
Part 302, as the same may be amended from time to time, or
(ii) determined to be or identified as toxic, a pollutant or
contaminant, or regulated as such under federal, state or
local statute, law, ordinance, rule, or regulation or
judicial or administrative order or decision, as same may be
amended from time to time. The term "Hazardous Substance"
as used herein shall also include any substance or material
presently or hereafter identified defined or treated as
toxic or hazardous in any manner according to any
Environmental Law or, including, without limitation, any
oil, lead paint, herbicides, pesticides, asbestos,
polychlorinated biphenyls, radon, radioactive substance,
methane, volatile hydrocarbons, acids, pesticides, paints,
petroleum-based products, liquefied natural gas, gas in
vapor form, propane, lead, cyanide, DDT, printing inks, and
industrial solvents.
Indemnified Party - has the meaning specified in 26.
Indenture - the Second Amended and Restated First
Mortgage Indenture, dated as of June 15, 1992, between the
Company and State Street Bank and Trust Company, as
successor trustee, as supplemented by the First and Second
Supplemental Indentures, the Amendment to Second
Supplemental Indenture and the Third Supplemental Indenture
and as amended from time to time in accordance with its
terms.
Independent Accountant - a firm of independent public
accountants selected by the Board of Directors of the
Company, which is "independent" as that term is defined in
Rule 2-01 of Regulation S-X promulgated by the Securities
and Exchange Commission and is reasonably acceptable to the
Agent.
Interest Charges - for any period, the expenses of the
Company and its Subsidiaries for such period for interest on
Debt (including the current portion thereof), determined in
accordance with GAAP, including Facility Fees, Agent's Fee
and similar expenses in connection with the borrowing of
money but excluding the interest component of the Company's
obligations under the Fuel Purchase Contract, and net of
regulatory interest.
Interest Coverage Ratio - means the ratio of EBIT to
Interest Charges calculated quarterly based on the
immediately preceding four quarters.
Interest Payment Date - (a) for any Eurodollar Advance,
the last day of each Interest Period for such Advance, (b)
for any Base Rate Advance any date when interest is due and
payable as provided in 4.2(a) hereof, and (c) for
Competitive Bid Advances, any date when interest is due and
payable as provided under 3.2 hereof.
Interest Period -
(a) with respect to each Eurodollar Advance
comprising the same Borrowing:
(i) initially, the period (A) commencing on the
date of such Borrowing or, in the case of a Conversion
into Eurodollar Advances pursuant to 4.1, commencing
on the date of such Conversion and (B) ending one (1),
two (2), three (3), or six (6), months thereafter as
determined in accordance with the provisions of this
Agreement; and
(ii) thereafter, each subsequent Interest Period
for Eurodollar Advances shall begin on the last day of
the immediately preceding Interest Period for such
Advances and shall end one (1), two (2), three (3), or
six (6), months thereafter as the Company may select
pursuant to 4.5; provided that (A) any such Interest
Period which would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding
Business Day unless such Business Day occurs in a new
calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (B)
any such Interest Period which begins on a day for
which there is no numerically corresponding day in the
calendar month during which such Interest Period is to
end shall end on the last Business Day of such calendar
month.
(b) With respect to each Base Rate Advance, the
period commencing on the date of such Advance and expiring
on the date when the Base Rate Advance is repaid or, as the
case may be, Converted to another Type of Advance.
(c) With respect to each Competitive Bid Advance,
the period commencing on the date of such Advance and ending
not less than 7 days and not more than 180 days thereafter,
as the Company may elect in accordance with 3 hereof.
No Interest Period may be selected in respect to all or
any portion of any Advance (other than a Competitive Bid
Advance) which would expire on a date which occurs after the
Maturity Date for the then Outstanding Revolving Credit
Notes of the Company and no Interest Period may be selected
in respect of all or any portion of any Advance which would
expire after the Termination Date or on a date which is not
a Business Day.
Loan Documents - collectively, this Agreement, the
Notes, the Security Documents and any other documents or
instruments required to be delivered by the Company pursuant
hereto or thereto.
London - the City of London in England.
Majority Banks - at any time, the Bank or Banks holding
at least 66 2/3% of the aggregate unpaid principal amount of
the Advances (excluding Competitive Bid Advances), or, if no
Advances (excluding Competitive Bid Advances) are at the
time outstanding, having at least 66 2/3% of the aggregate
amount of the Commitments then in effect.
Manage or Management - to generate, handle,
manufacture, process, treat, store, use, re-use, refine,
recycle, reclaim, blend or burn for energy recovery,
incinerate, accumulate speculatively, transport, transfer,
dispose of, Release, threaten to Release or abandon
Hazardous Substances;
"Material Adverse Change" - a material adverse change
in the business, assets, liabilities, condition (financial
or otherwise), results of operations or business prospects
of (a) the Trust, (b) the Company or (c) the Company and its
Subsidiaries "taken as a whole" which would reasonably be
expected to render the Company unable to perform its
obligations under the Loan Documents. The term "Material
Adverse Change" shall include, without limitation, any
change in any law, regulation, treaty or directive or in the
interpretation or application thereof by any Governmental
Body charged with the administration thereof or compliance
by the Borrowers with any request or directive from any
Governmental Body the result of which would have a Material
Adverse Effect.
"Material Adverse Effect" - (a) with respect to any
Person (including, without limitation, the Borrowers and the
Subsidiaries), any materially adverse effect on such
Person's business, assets, liabilities, condition (financial
or otherwise), results of operations or business prospects,
(b) with respect to a group of Persons "taken as a whole"
(including, without limitation, the Borrowers and the
Subsidiaries), any materially adverse effect on such
Persons' business, assets, liabilities, financial
conditions, results of operations or business prospects
taken as a whole on, where appropriate, a consolidated basis
in accordance with GAAP and (c) with respect to any of this
Agreement, the Notes or the Security Documents, any adverse
effect, WHETHER OR NOT MATERIAL, on the binding nature,
validity or enforceability thereof as an obligation of the
Borrowers.
Maturity Date - has the meaning specified in 2.2(h).
Maximum Commitment - as of any date of determination,
the lesser of (a) $75,000,000 or (b) the amount to which the
Maximum Commitment may have been reduced pursuant to 5.4;
provided, that if the obligations of the Banks to make
further advances are terminated pursuant to 12, the Maximum
Commitment as of any date of determination thereafter shall
be deemed to be zero.
Mortgage Debt - all bonds now outstanding under the
Indenture as shown on the financial statements delivered to
the Banks as contemplated by 6.2 and any additional bonds
which may from time to time be issued in accordance with the
terms of the Indenture.
Notes - collectively, the Revolving Credit Notes and
the Competitive Bid Notes.
Notice of Borrowing - has the meaning specified in
2.2(a).
Obligations - all indebtedness, obligations and
liabilities to the Banks, individually or collectively,
existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise of the Company arising or
incurred under this Agreement or in respect of Advances made
or instruments at any time evidencing any of the foregoing.
Officer's Certificate - a certificate signed by the
President, Executive Vice President, any Senior Vice
President, the Vice President-Finance or Treasurer of the
corporation on whose behalf the certificate is executed.
Outstanding - when used with reference to the aggregate
balance of Advances, means and includes, as at any date of
determination, the unpaid principal amount of the Advances.
Pension Benefit Guaranty Corporation - the Pension
Benefit Guaranty Corporation created by 4002 of ERISA and
any successor entities having similar responsibilities.
Person - any individual, corporation (including a
business trust), partnership, trust, unincorporated
association, joint stock company, limited liability company,
limited liability partnership or other legal entity or
organization and any governmental agency or political
subdivision thereof.
Reference Bank - Fleet National Bank.
Release - any actual or threatened spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injection, escaping, leaching, dumping or disposing of
Hazardous Substances into the environment, as that
"environment" is defined in CERCLA; and
Reserve Requirement - with respect to each Interest
Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the aggregate
reserve requirement (including all basic, supplemental,
marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in
reserve requirements during such Interest Period) specified
under Regulation D of the Board of Governors of the Federal
Reserve System, or any other regulation of the Board of
Governors which prescribes reserve requirements applicable
to nonpersonal time deposits as presently defined in
Regulation D, as then in effect, as applicable to the class
of banks of which Fleet National Bank is a member, on
deposits having a maturity approximately equal to such
Interest Period.
Respond or Response - any action taken pursuant to
Environmental Laws to correct, remove, remediate, clean up,
prevent, mitigate, monitor, evaluate, investigate or assess
the Release of a Hazardous Substance.
Revolving Credit Notes - has the meaning specified in
2.2(h).
Security Agreement - the Security Agreement and
Assignment of Contracts of even date herewith, between the
Trust and the Agent in substantially the form of Exhibit H
hereto.
Security Documents - the Security Agreement, the
Consent and Agreement (as defined therein) and any documents
or instruments delivered pursuant thereto to perfect the
security interest of the Agent created thereby.
Standard & Poors Rating - the rating announced from
time to time by Standard & Poors for the Company's bonds
issued under the Indenture.
Subsidiary - any corporation, association or other
business entity, a majority (by number of votes) of the
outstanding Voting Stock of which is at the time owned or
controlled by the Company or by one or more Subsidiaries of
the Company or by the Company and one or more Subsidiaries
of the Company or in any event which is included in the
Company's consolidated balance sheet.
Termination Date - the earlier of (a) September 11,
2000, or such later date to which the date of termination of
the Banks' obligations to make Advances hereunder shall be
extended in accordance with 5.2 hereof and (b) the date of
termination of this Agreement pursuant to 12.
Trust - Massachusetts Fuel Inventory Trust, a trust
established under the Trust Agreement.
Trust Agreement - the Trust Agreement, dated as of
June 22, 1990, between the Company, as Trustor, and State
Street Bank and Trust Company (as successor trustee to
Shawmut Bank, N.A.), as Trustee, as amended in accordance
with its terms and in effect from time to time.
Trust Credit Agreement - the Revolving Credit Agreement
of even date herewith, among the Trust, the Banks and the
Agent, as amended and in effect from time to time.
Trustee - State Street Bank and Trust Company, the
successor trustee under the Trust Agreement.
Type of Advances - any one of the types of Advances
under this Agreement.
Voting Stock - capital stock or similar interests of
any class or classes (however designated), the holders of
which are at the time entitled, as such holders, to vote for
the election of the directors (or persons performing similar
functions) of the corporation, association or other business
entity involved, whether or not the right so to vote exists
by reason of the happening of a contingency.
Wholly Owned Subsidiary - any Subsidiary all of the
outstanding capital stock or other interest of which, other
than directors' qualifying shares and shares issued solely
for the purpose of satisfying local requirements concerning
the minimum number of shareholders, is owned by the Company,
directly or indirectly through a Wholly Owned Subsidiary.
All terms of an accounting character not specifically
defined herein shall have the meanings assigned thereto by
GAAP.
2. THE REVOLVING CREDIT ADVANCES.
2.1. The Revolving Credit Advances. Each Bank
severally agrees, on the terms and conditions hereinafter
set forth, to make Advances to the Company from time to time
on any Business Day during the period from the date hereof
to the Termination Date in an aggregate amount (i) in the
case of each Bank, not to exceed at any time the Outstanding
amount of such Bank's Commitment and (ii) in the case of all
of the Banks, not to exceed at any time the Outstanding
amount of the Available Commitment, in each case, as such
amount may be reduced pursuant to 5.4. In no event shall
the aggregate outstanding principal balance of (i) all
Advances to the Company exceed $75,000,000 or (ii) the sum
of all Advances to the Company hereunder and all "Advances"
(as defined in the Trust Credit Agreement) to the Trust
under the Trust Credit Agreement exceed at any one time
$75,000,000. In no event shall any Bank be obligated to
fund or maintain Advances in excess of such Bank's
Commitment. Anything to the contrary herein
notwithstanding, at no time shall the aggregate number of
Outstanding Advances to the Company hereunder and to the
Trust under the Trust Credit Agreement exceed the number six
(6).
Each Borrowing made by the Company shall: (i) be in an
aggregate amount of not less than $500,000 (unless otherwise
specified herein) and (ii) consist of Advances of the same
Type made to the Company on the same day by the Banks
ratably according to their respective Commitments. There is
no limit on the number of Borrowings that may be made on any
Business Day. Within the limits of the provisions of this
2.1, the Company may borrow, prepay pursuant to 4.9 and
reborrow under this 2.1.
2.2. Making the Advances.
(a) Each Advance (other than Competitive Bid
Advances) shall be made on notice given not later than
10:00 A.M. (Boston time), (i) in the case of a Base Rate
Advance on the date of the proposed Borrowing or (ii) in the
case of a Eurodollar Rate Advance on the third Business Day
prior to the date of the proposed Borrowing, given to the
Agent from the Company (a "Notice of Borrowing"). The Agent
shall give the Banks prompt notice of each Notice of
Borrowing and of each other notice received from the Company
hereunder. Each such Notice of Borrowing shall be by
telephone, telecopy, telex or cable, in each case confirmed
immediately in writing by the Company in substantially the
form of Exhibit B hereto, specifying therein (A) the
requested date of such Borrowing, (B) the requested Type of
Advances comprising such Borrowing, (C) in the case of a
Borrowing comprised of Eurodollar Rate Advances, the initial
Interest Period for such Advances, and (D) the amount of
such Borrowing (which must be a minimum of $1,000,000 in the
case of a Notice of Borrowing requesting Eurodollar
Advances).
(b) Each Bank shall, before 12:00 Noon (Boston
time) on the date of such Borrowing, subject to the terms
and conditions of this Agreement, make available for the
account of its Applicable Lending Office to the Agent at the
Agent's address referred to in 20 and in immediately
available funds such Bank's ratable portion of such
Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in 6 or
7, as the case may be, the Agent will credit such funds to
the Company at such address or office.
(c) A Notice of Borrowing with respect to a
Eurodollar Advance shall be irrevocable and binding on the
Company and, in respect of any Borrowing comprised of
Eurodollar Advances, the Company shall indemnify each Bank
against any loss or expense incurred by such Bank as a
result of any failure of the Company to borrow the amounts
requested on the date requested, including without
limitation, any loss, including lost profits, or expense
incurred by reason of the liquidation or re-employment of
deposits or other funds acquired by any Bank to fund or
maintain a Eurodollar Advance to be made by such Bank.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's
ratable portion of such Borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on
the date of such Borrowing in accordance with and as
provided in this 2.2 and the Agent may, in reliance upon
such assumption, make available on such date a corresponding
amount to the Company. If and to the extent such Bank shall
not have so made such ratable portion available to the Agent
and the Agent shall have made available such corresponding
amount to the Company, such Bank agrees to pay to the Agent
forthwith on demand, and the Company agree to repay to the
Agent within two Business Days after demand (but only after
demand for payment has first been made to such Bank and such
Bank has failed to make such payment), an amount equal to
such corresponding amount together with interest thereon for
each day from the date the Agent shall make such amount
available to the Company until the date such amount is paid
or repaid to the Agent, at an interest rate for the first
day of such period equal to the interest rate applicable at
the time to Advances comprising such Borrowing and for all
subsequent days of such period equal to the Alternate Base
Rate. If such Bank shall pay to the Agent such
corresponding amount, such amount so paid shall constitute
such Bank's Advance as part of such Borrowing for purposes
of this Agreement. If the Company make a repayment required
by the foregoing provisions of this 2.2(d) and thereafter
the applicable Bank or Banks make the payments to the Agent
required by this 2.2(d), the Agent shall promptly refund
the amount of the Borrowers' payment.
(e) The failure of any Bank to make the Advance
to be made by it as part of any Borrowing shall not relieve
any other Bank of its obligation, if any, hereunder to make
its Advance on the date of such Borrowing, but no Bank shall
be responsible for the failure of any other Bank to make the
Advance to be made by such other Bank on the date of any
Borrowing.
(f) In the case of Eurodollar Advances requested
in a Notice of Borrowing, the Agent shall notify the Company
and each Bank of the Eurodollar Rate applicable to such
Eurodollar Advances not later than 11:00 A.M. (Boston time)
on the Business Day of the proposed Borrowing specified in
the applicable Notice of Borrowing.
(g) The Company hereby absolutely and
unconditionally promises to pay to the Agent for the account
of each of the Banks on the Termination Date all Outstanding
Advances.
(h) Revolving Credit Notes. The Indebtedness of
the Company resulting from the Advances made and to be made
to the Company under this 2 shall be evidenced by Revolving
Credit Notes executed and delivered by the Company to each
Bank in substantially the form of Exhibit A-1 hereto on (i)
the date of the First Lending and (ii) on the date of each
Borrowing made by the Company hereunder on or after the
Maturity Date of any previously delivered Revolving Credit
Note. Each such Revolving Credit Note and the Advances
evidenced thereby will be due and payable on the date (the
"Maturity Date") which is the earlier of (A) 364 days after
the date thereof or (B) the Termination Date. (The
revolving credit notes of the Company are collectively
referred to herein as the "Revolving Credit Notes").
All Advances made to the Company by a Bank shall be
recorded by the Bank and all payments made on account of
principal thereof shall be similarly recorded. Any failure
of a Bank to record a transaction in a timely fashion shall
not affect or impair the validity of any Obligation.
3. COMPETITIVE BID ADVANCES.
3.1. Competitive Bid Borrowings.
(a) Competitive Bid Advance Option. In addition
to the Advances permitted pursuant to 2 hereof, the Company
may, pursuant to the terms of this 3, cause the Agent to
request that the Banks make offers to fund Advances to the
Company from time to time prior to the Termination Date.
The Banks may, but shall have no obligation to, make such
offers and the Company may, but shall have no obligation to,
accept such offers in the manner set forth in this 3.
(b) Competitive Bid Request. When the Company
wishes to request offers to make Competitive Bid Advances
under this 3, it shall transmit to the Agent by telex or
telecopier a bid request substantially in the form of
Exhibit C hereto to be received no later than 10:00 A.M. on
the first Business Day prior to the requested Borrowing date
with respect to Absolute Rate Advances specifying (A) the
requested Borrowing date (which must be a Business Day) and
the amount of such Competitive Bid Advance (which must be a
minimum of $2,500,000) and may not, together with the
aggregate amount of all other Advances then Outstanding to
the Borrowers, exceed the Available Commitment and (B) the
Interest Period for such Advance. The Company may request
offers to make Advances for more than one Interest Period in
a single bid request. The Company may submit a request for
offers to make Competitive Bid Advances no more than that
number of times in any period of 12 consecutive months which
does not exceed the difference between forty (40) and the
number of times the Trust requests "Competitive Bid
Advances" under and as defined in the Trust Credit Agreement
during the same 12 month period.
(c) Invitation for Competitive Bids. Subsequent
to receipt of a bid request, the Agent shall send to the
Banks by telex or telecopier an invitation for bids not
later than 4:00 P.M. (Boston time) on the Business Day on
which the Company delivers its request in accordance with
3.1(b), substantially in the form of Exhibit D hereto,
which shall constitute an invitation by the Company
requesting each Bank to submit bids offering to make
Competitive Bid Advances in accordance with this 3.
(d) Submission and Contents of Competitive Bids.
(i) Each Bank may submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid
Advances in response to any invitation for bids. Each
Competitive Bid Quote must comply with the requirements
of this subsection (d) and, except in the case of
Competitive Bid Quotes by Fleet National Bank, must be
submitted to the Agent by telex or telecopier not later
than 9:15 A.M. (Boston time) on the requested Borrowing
Date. Competitive Bid Quotes submitted by Fleet
National Bank must be submitted directly to the Company
by telex or telecopier not later than 9:00 A.M. (Boston
time) on the requested Borrowing Date. Any Competitive
Bid Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions
of the Company.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit E hereto and shall in
any case specify:
(A) the proposed Borrowing Date,
(B) the principal amount of the Advance for
which each offer is made, which principal amount
(x) may be greater than the Commitment of the
quoting Bank but may not exceed the Maximum
Commitment, (y) must be $2,500,000 or a larger
multiple of $1,000 and (z) may not exceed the
principal amount of Competitive Bid Advances for
which offers were requested,
(C) the rate of interest per annum (rounded
to the nearest 1/10,000th of 1%) (the "Competitive
Bid Rate") offered for each such Competitive Bid
Advance,
(D) the proposed maturity date of the
proposed Advance (which date must be no less than
7 days and no longer than 180 days from the
Borrowing Date specified in subsection (A) above),
and
(E) the identity of the quoting Bank.
(iii) Any Competitive Bid Quote for a
Competitive Bid Advance shall be disregarded if it:
(A) is not substantially in the form of
Exhibit E hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable invitation
for Competitive Bids; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Company. Not later than 10:00 A.M.
(Boston time) on the requested Borrowing Date, the Agent
shall notify the Company of the terms of any Competitive Bid
Quote submitted by a Bank that is in accordance with the
preceding subsection (d). The Agent's notice to the
Borrower shall specify (i) the aggregate principal amount of
Advances for which offers have been received for each
Interest Period specified in the related Competitive Bid
Request and (ii) the respective principal amounts and
Competitive Bid Rates, as the case may be, so offered, as
well as the terms of the Competitive Bid Quotes which were
received but disregarded by the Agent.
(f) Acceptance and Notice By Company. Not later
than 10:30 A.M. (Boston time) on the requested Borrowing
Date, the Company shall notify, by telephone, confirmed by
telecopy, the Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to the preceding
subsection 3.1(e). In the case of an acceptance, such
notice (a "Notice of Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are
accepted. The Company may accept any Competitive Bid Quote
in whole or in part; provided that:
(i) the aggregate principal amount of each
Borrowing may not exceed the applicable amount set
forth in the related Competitive Bid Request,
(ii) subject to the provisions of 3.1(h) hereof,
the principal amount of each Advance must be $2,500,000
or a larger multiple of $1,000,
(iii) offers quoting lower Competitive Bid
Rates must be accepted prior to offers quoting higher
Competitive Bid Rates, and
(iv) the Company shall not accept any offer that
is described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
(g) Notice by the Agent to the Banks. After the
Company notifies the Agent of its acceptance or
non-acceptance of the offers pursuant to subsection (f), the
Agent shall notify, by telephone and confirm by telecopy,
such Banks that made such offers pursuant to subsection (d)
of the Company's acceptance or non-acceptance of such offers
not later than 11:00 A.M. (Boston time) on the requested
Borrowing Date.
(h) Allocation by Agent; Usage of Commitments.
If offers are made by two or more Banks with the same
Competitive Bid Rates for a greater aggregate principal
amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal
amount of Advances in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as
nearly as possible (in such multiples, not smaller than
$1,000, as the Agent may deem appropriate) in proportion to
the aggregate principal amount of such offers.
Determinations by the Agent of the amounts of Competitive
Bid Advances shall be conclusive in the absence of manifest
error.
Upon each occasion that a Competitive Bid Advance is
made, and during the period for which such Competitive Bid
Advance is outstanding, each Bank's Commitment shall be
deemed automatically utilized by an amount equal to the
amount of such Competitive Bid Advance multiplied by such
Bank's Commitment Percentage, regardless of the extent to
which such Bank makes such Competitive Bid Advance.
3.2. Interest on Competitive Bid Advances. Each
Competitive Bid Advance shall bear interest on the
outstanding principal amount thereof for the Interest Period
applicable thereto, at a rate per annum equal to the
Competitive Bid Rate quoted by the Bank making such Advance
in accordance with 3.1(d). Such interest shall be payable
for each Interest Period on the last day thereof or, if such
Interest Period is longer than three months, every three
months after the first day thereof and on the last day
thereof.
Notwithstanding any other provision herein to the
contrary, at no time shall the sum of the aggregate
principal amount of Competitive Bid Advances Outstanding to
the Company plus the aggregate principal amount of all
other Advances Outstanding to the Company exceed the
Available Commitment.
3.3. Competitive Bid Notes. The Indebtedness of the
Company resulting from the Competitive Bid Advances made and
to be made to the Company hereunder shall be evidenced by
promissory notes executed and delivered by the Company to
the Banks making such Competitive Bid Advances on the date
each such Competitive Bid Advance is made, substantially in
the form of Exhibit A-2 hereto.
4. CONVERSION, INTEREST, PAYMENTS AND COSTS.
4.1. Conversion of Advances. The Company may, upon
notice given to the Agent not later than 10:00 A.M. (Boston
time) on the Business Day of the proposed Conversion in the
case of Conversion into Base Rate Advances and on the third
Business Day prior to the proposed Conversion in the case of
Conversion into Eurodollar Advances, Convert, on any
Business Day, all Base Rate Advances or Eurodollar Rate
Advances comprising the same Borrowing made to such Borrower
into Advances of one or more Types, provided, however, that
any Conversion of Eurodollar Advances may be made on, and
only on, the last day of an Interest Period for such
Advances and any Conversion into Eurodollar Advances shall
be in a minimum amount of $1,000,000. Each such notice of
Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances
to be Converted, and (iii) if such Conversion is into
Eurodollar Advances, the duration of the initial Interest
Period for such Advances.
4.2. Interest. Except as otherwise provided in 4.3,
the Company shall pay interest on the unpaid principal
amount of each Advance made by each Bank from the date of
such Advance until such principal amount is paid in full, at
such interest rates, and payable at such times as follows:
(a) during such periods as such Advance shall be
a Base Rate Advance, at the Alternate Base Rate, payable
quarterly in arrears on the last day of each March, June,
September and December during such periods and on the date
such Base Rate Advance shall be paid in full; and
(b) during such periods as such Advance shall be
a Eurodollar Advance, at the Eurodollar Rate (Reserve
Adjusted), payable (i) with respect to each Eurodollar
Advance for which the Interest Period is either one (1), two
(2) or three (3) months on the Interest Payment Date and
(ii) with respect to each Eurodollar Advance for which the
Interest Period is six (6) months, the amount of interest
accrued shall be payable on the last day of the third month
of such Interest Period and the remaining portion of such
interest shall be payable on the Interest Payment Date.
4.3. Overdue Principal and Interest. Any amount of
principal of any and all Advances which is not paid when due
(whether at stated maturity, by acceleration or otherwise)
and, to the extent permitted by law, any amount of interest
on any such Advances which is not paid when due, shall bear
interest, from the date on which such amount shall have
become due and payable by the Company to the date on which
such amount shall be paid (whether before or after
judgment), payable on demand, at a rate equal to 2% per
annum above the rate of interest otherwise applicable to the
relevant Advances.
4.4. Limitation on Interest. No provision of this
Agreement or any Note shall require the payment or permit
the collection of interest in excess of the rate then
permitted by applicable law.
4.5. Interest Period and Rate Determination and
Protection.
(a) The Company shall have the option to elect a
duration of one (1) month, two (2) months, three (3) months
or six (6) months in the case of Eurodollar Advances, made
to it, for each Interest Period. Such option shall be
exercised as provided in 2.2 with respect to the initial
Interest Period for any Eurodollar Advances and shall be
exercised as provided in 4.1 with respect to the initial
Interest Period for any Eurodollar Advances commencing on
the date of a Conversion into such Advances, and in each
such case, may be exercised as to each subsequent Interest
Period applicable to such Advances by giving notice to the
Agent three Business Days in the case of Eurodollar Advances
prior to the first day of such subsequent Interest Period.
Each such notice shall be by telephone, telex, telecopy or
cable, in each case confirmed immediately in writing by the
Company. If no such notice is received with respect to the
Advances, the Company shall be deemed to have elected the
same Interest Period duration as the immediately preceding
Interest Period applicable to such Advances.
(b) In the event the Agent shall determine that
adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate which would otherwise be
applicable during any Interest Period, the Agent shall
forthwith give telex or telecopy notice of such
determination (which shall be conclusive and binding on the
Company), to the Company at least two Business Days before
the first day of such Interest Period. In such event: (i)
any Notice of Borrowing or Notice of Conversion pursuant to
4.1 requesting a Eurodollar Advance shall be deemed a
request for a Base Rate Advance; (ii) each Eurodollar
Advance will automatically, on the last day of the then
current Interest Period thereof, Convert into a Base Rate
Advance; and (iii) the obligations of the Banks to make
Eurodollar Advances shall be suspended until the Agent
determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall so
notify the Company and the Banks.
4.6. Increased Costs, Etc.
(a) Anything herein to the contrary
notwithstanding, if any changes in present or future
applicable law (which term "applicable law", as used in this
Agreement, includes statutes and rules and regulations
thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or
official charged with the administration or the
interpretation thereof and requests, directives,
instructions and notices at any time or from time to time
heretofore or hereafter made upon or otherwise issued to the
Agent or any Bank by any central bank or other fiscal,
monetary or other authority, whether or not having the force
of law) shall (i) subject the Agent or any Bank to any tax,
levy, impost, duty, charge, fee, deduction or withholding of
any nature with respect to this Agreement, the amount of the
Commitments or the payment to the Agent or any Bank of any
amounts due to it hereunder, or (ii) materially change the
basis of taxation of payments to the Agent or any Bank of
the principal of or the interest on the Advances or any
other amounts payable to the Agent or any Bank hereunder, or
(iii) impose or increase or render applicable any special or
supplemental deposit or reserve or similar requirements or
assessment against assets held by, or deposits in or for the
account of, or any liabilities of, or loans by an office of
the Agent or any Bank in respect of the transactions
contemplated herein, or (iv) impose on the Agent or any Bank
any other condition or requirement with respect to this
Agreement, the Commitments or any Advance, and the result of
any of the foregoing is (A) to increase the cost to any Bank
of making, funding or maintaining all or any part of the
Advances, or (B) to reduce the amount of principal, interest
or other amount payable to any Bank hereunder, or (C) to
require the Agent or any Bank to make any payment or to
forego any interest or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by the Agent or any Bank from
the Company hereunder, then, and in each such case not
otherwise provided for hereunder, the Company will, upon
demand made by the Agent promptly following the Agent's
receipt of notification of such event (or made by any Bank
with respect to any of the matters described in clause (iii)
above promptly following the Bank's receipt of notice
pertaining to such matters) accompanied by calculations
thereof in reasonable detail, pay to the Agent for its
account or for the account of such Bank, as the case may be,
such additional amounts as will be sufficient to compensate
them for such additional cost, reduction, payment or
foregone interest or other sum, provided that the foregoing
provisions of this sentence shall not apply in the case of
any additional cost, reduction, payment or foregone interest
or other sum resulting from any taxes charged upon or by
reference to the overall net income, profits or gains of the
Agent or any Bank.
(b) If any Bank shall have determined that any
present or future applicable law, rule, regulation,
guideline, directive or request (whether or not having force
of law) regarding capital requirements for banks or bank
holding companies, or any change therein or in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by such Bank with any of the foregoing, either imposes a
requirement upon such Bank to allocate additional capital
resources or increases such Bank's requirement to allocate
capital resources to such Bank's commitment to make, or to
such Bank's maintenance of, Advances hereunder, which has or
would have the effect of reducing the return on such Bank's
capital to a level below that which such Bank could have
achieved (taking into consideration such Bank's then
existing policies with respect to capital adequacy and
assuming full utilization of such Bank's capital) but for
such applicability, change, interpretation, administration
or compliance, by any amount deemed by such Bank to be
material, such Bank shall promptly after its determination
of such occurrence give notice thereof to the Company. The
Company and such Bank shall thereafter attempt to negotiate
in good faith an adjustment to the compensation payable
hereunder which will adequately compensate the Bank for such
reduction. If the Company and any such Bank are unable to
agree to such adjustment within thirty days after the day on
which the Company received such notice, then commencing on
the date of such notice (but not earlier than the effective
date of any such applicability, change, interpretation,
administration or compliance), the fees payable hereunder
shall increase by an amount which will, in such Bank's
reasonable determination, evidenced by calculations in
reasonable detail furnished to the Company, compensate such
Bank for such reduction, such Bank's determination of such
amount to be conclusive and binding upon the Company, absent
manifest error. In determining such amount, a Bank may use
any reasonable methods of averaging, allocating or
attributing such reduction among its customers.
4.7. Illegality or Impossibility. Notwithstanding
any other provision of this Agreement, if the introduction
of or any change in or in the interpretation of any law or
regulation applicable to any Bank or its Eurodollar Lending
Office shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over such Bank or
its Eurodollar Lending Office shall assert that it is
unlawful, for such Bank or Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar
Advances to the Company or to continue to fund or maintain
Eurodollar Advances to the Company hereunder, or if any Bank
determines after making reasonable efforts, including
consultations with the Agent, that deposits of the relevant
amount for the relevant Interest Period for Eurodollar
Advances to the Company, are not available to such Bank
after making reasonable attempts to obtain such deposits,
then, on notice thereof and demand therefor by such Bank to
the Company and the Agent, (i) the obligation of such Bank
to the Company to make Eurodollar Advances and to Convert
Base Rate Advances and into Eurodollar Advances in such
currency shall be suspended and (ii) the Company shall
forthwith prepay in full all Eurodollar Advances to such
Bank with interest accrued thereon. If the Company so
notifies the Agent within five Business Days after any Bank
notifies the Company pursuant to the foregoing provisions of
this 4.7, the Company may, instead of prepaying, Convert
all Eurodollar Advances of all Banks then outstanding into
Base Rate Advances.
4.8. Payment on Any Day Other Than The Last Day of an
Interest Period. If, due to payments or Conversions made by
the Company pursuant to this Agreement or due to
acceleration of the maturity of any Advances pursuant to 12
or due to any other reason, any Bank receives payments of
principal or is subject to a Conversion to another Type of
Advance of a Eurodollar Advance other than on the last day
of an Interest Period relating to the applicable Eurodollar
Advance the Company shall, upon demand by such Bank (with a
copy of such demand to the Agent), pay to the Agent for the
account of such Bank any amounts required to compensate such
Bank for any additional losses, costs or expenses which it
may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss,
including lost profits, costs or expenses incurred by reason
of the liquidation, reutilization or reemployment of
deposits or other funds acquired by such Bank to fund or
maintain such Advances. Such compensation may include,
without limitation, an amount equal to (a) the amount of
interest which would have accrued on the amount so paid,
prepaid or Converted or not borrowed, Converted or prepaid
for the period from the date of such payment, prepayment or
Conversion or failure to borrow, Convert or prepay to the
last day of the then current Interest Period for such
Advance (or, in the case of a failure to borrow, Convert or
prepay, to the last day of the Interest Period for such
Advance which would have commenced on the date of such
failure to borrow, Convert or prepay) at the applicable rate
of interest for such Advances provided for herein minus (b)
the amount of interest (as reasonably determined by the
Agent in consultation with such Bank), which would accrue
and become payable to such Bank during such period on the
principal repaid, prepaid or not borrowed if such Bank,
following such repayment, prepayment or failure to borrow,
were to reinvest such principal in U. S. Treasury securities
selected by such Bank in an amount equal (as nearly as may
be) to the principal so repaid, prepaid or not borrowed and
having a term equal (as near as may be) to such period.
4.9. Prepayments. The Company may not prepay
Competitive Bid Advances prior to the last day of the
Interest Period relating thereto. The Company may, upon at
least five Business Days notice to the Agent stating the
proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Company shall,
prepay the outstanding aggregate principal amount of all
other types of Advances made to the Company as part of the
same Borrowing, in whole at any time, or ratably in part
from time to time, with accrued interest to the date of such
prepayment on the principal amount prepaid; provided,
however, that: (i) each partial prepayment shall be in an
aggregate principal amount of not less than $1,000,000 and
(ii) all such prepayments shall be made to the Agent for the
account of the Banks ratably according to the then
outstanding principal amount of the Notes; and provided,
that if any such prepayment of Eurodollar Advances shall be
made on any day other than the last day of the Interest
Period applicable to such Advance, such Borrower shall
indemnify the Banks (i) as provided in 4.8 and (ii) for
amounts required to compensate each Bank for any additional
losses, including lost profits, costs or expenses which it
may reasonably incur as a result of such prepayment,
including without limitation any loss, costs or expenses
incurred by reason of the liquidation reutilization, or
reemployment of deposits or other funds.
4.10. Payments and Computations.
(a) The Company shall make each payment to be
made by it hereunder not later than 12:00 noon (Boston time)
on the day when due in lawful money of the United States to
the Agent at its address set forth in 20 in immediately
available funds. The Agent will, promptly after its receipt
thereof, distribute like funds relating to the payment of
principal or interest or Commitment Fees or other amounts
payable hereunder ratably to the Banks for the account of
their respective Advances and their Applicable Lending
Offices in like funds. All payments by the Company
hereunder and under any of the other Loan Documents shall be
made without setoff or counterclaim and free and clear of
and without deduction for any taxes, levies, imposts,
duties, charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority
therein unless the Company is compelled by law to make such
deduction or withholding. If any such obligation is imposed
hereafter upon the Company with respect to any amount
payable by it hereunder or under any of the other Loan
Documents, the Company will pay to the Agent, for the
account of the Banks or (as the case may be) the Agent, on
the date on which such amount is due and payable hereunder
or under such other Loan Document, such additional amount in
dollars as shall be necessary to enable the Banks or the
Agent to receive the same net amount which the Banks or the
Agent would have received on such due date had no such
obligation been imposed upon the Company, provided that the
foregoing obligation to pay such additional amounts shall
not apply:
(i) to any payment to a Bank if such Bank is not,
on the date hereof (or on the date it becomes a Bank
under this Agreement) and on the date of any change in
the lending office of such Bank identified after its
execution, entitled by virtue of its status as a
non-resident alien to submit either a Form 1001
(relating to such Bank and entitling it to a complete
exemption from withholding on all interest to be
received by it hereunder in respect of the Advances) or
Form 4224 (relating to all interest to be received by
such Bank hereunder in respect of Advances) of the U.S.
Department of Treasury, or
(ii) to any item referred to in the preceding
sentence that would not have been imposed but for the
failure by such Bank to comply with applicable
certification, information, documentation or other
reporting requirements concerning the nationality,
residence, identity or connections of such Bank with
the United States if such compliance is required by
statute or regulation of the United States as a
precondition to relief or exemption from such item.
The Company will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other
charges deducted from or paid with respect to payments made
by the Company hereunder or under such other Loan Document.
Promptly after receipt of all payments with respect to
Competitive Bid Advances, the Agent shall pay the proper
portion of such payment to each Bank which made such
Competitive Bid Advance.
(b) All computations of interest, Commitment Fees
and Facility Fees hereunder shall be made by the Agent on
the basis of a year of 360 days for the actual number of
days (including the first day but excluding the last day)
elapsed. The outstanding amount of the Advances as
reflected on the Agent's records from time to time shall be
considered correct and binding on the Company and the Banks
unless within thirty (30) days after receipt of any notice
by the Agent of such outstanding amount, the Company or any
of the Banks, as the case may be, notify the Agent to the
contrary.
(c) Any change in the rate of interest payable on
any Advance resulting from a change in the Alternate Base
Rate shall become effective as of the opening of business on
the day on which such change in the Alternate Base Rate
becomes effective.
4.11. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on
the next succeeding Business Day, (except as provided in the
definition of Interest Period in 1) and such extension of
time shall in such case be included in the computation of
payment of interest or Commitment Fees, or Facility Fees, as
the case may be.
4.12. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on
account of the Advances made by it in excess of its ratable
share (according to the then outstanding principal amount of
the Advances) of payments on account of the Advances
obtained by all the Banks, such Bank shall purchase from the
other Banks such participations in the Advances held by such
other Banks as shall cause such purchasing Bank to share
such payment ratably according to the then outstanding
principal amount of the Advances with each of such other
Banks; provided, however, that if all or any portion of such
payment is thereafter recovered from such purchasing Bank,
the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, with interest at an
interest rate per annum equal to the Alternate Base Rate.
The Company agree that any Bank so purchasing a
participation in the Company's Advance from another Bank
pursuant to this 4.12 may, to the fullest extent permitted
by law, exercise all its rights of payment with respect to
such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation.
5. COMMITMENTS.
5.1. Amount of Commitment. The respective amount of
each Bank's Commitment on the date hereof and its respective
Commitment Percentage shall be as follows (except as may be
modified pursuant to Section 17):
Amount of Commitment
Lender Commitment Percentage
The Bank of New York $20,000,000 26.67%
Union Bank of $10,000,000 13.33%
California, N.A.
CoreStates Bank, $10,000,000 13.33%
N.A.
First Union National $10,000,000 13.33%
Bank
Fleet National Bank $25,000,000 33.33%
5.2. Extension of Commitments. The Company may, by
written notice to the Banks and the Agent not less than
sixty (60) days and not more than ninety (90) days prior to
the Termination Date then in effect, request that the
Termination Date be extended to a later date specified in
such notice. The Agent shall notify the Company as to
whether all of the Banks have agreed to the extension of the
Termination Date to such later date not later than thirty
(30) days prior to the Termination Date then in effect. An
extension to which all of the Banks have agreed shall become
effective upon the receipt by the Banks not less than five
(5) Business Days prior to the Termination Date then in
effect of (a) executed promissory notes substantially in the
form of Exhibit A hereto, and (b) an opinion of counsel to
the Company, satisfactory to the Banks and their counsel, as
to the due authorization, execution and delivery by the
Company of such notice of extension and such promissory
notes, the validity and binding effect as regards the
Company of this Agreement and the promissory notes so
delivered, and there being no necessity for any
authorization or approval by, or any filing or registration
with, any public regulatory body (including, but without
limitation, approval of the DPU) for such extension and for
the performance of this Agreement and the promissory notes
so delivered (or, if any such action is necessary or
required, stating that the same has been duly obtained or
effected, and is valid and sufficient for the purpose and a
true copy thereof is attached to such opinion).
5.3. Commitment Fees.
(a) Facility Fee. The Company agree to pay to
the Agent for the account of each Bank, pro rata in
accordance with its Commitment, a Facility Fee (the
"Facility Fee") calculated at the Applicable Facility Fee
Rate on the amount equal to the excess of (i) such Bank's
Commitment over (ii) such Bank's "Commitment" under and as
defined in the Trust Credit Agreement. The Facility Fee
shall be payable quarterly in arrears on the last day of
each calendar quarter and on the Termination Date.
(b) Agent's Fees. The Company has agreed to pay
to the Agent a fee for arranging the Advances hereunder and
an agent's administration fee (the "Agent's Fee") in
accordance with a letter agreement dated as of the date
hereof, between the Company and the Agent.
5.4. Reduction and Termination by the Company. The
Company at its option may, at any time and from time to
time, reduce ratably in part (in integral multiples of
$5,000,000) or terminate in whole the unused portion of the
Commitments of the Banks provided for in 5.1 on not less
than five Business Days' notice in writing, telegraphic or
telephonic notice confirmed in writing to the Agent.
Promptly after receiving any notice of the Company delivered
pursuant to this 5.4, the Agent will notify the Banks of
the substance thereof. After any such termination, the
Company may not reinstate the portion terminated.
Notwithstanding the foregoing, the Company may not reduce
the Commitments of the Banks provided for in 5.1 to amounts
that are less than the "Commitments" of the Banks from time
to time provided for in 5.1 of the Trust Credit Agreement.
6. CONDITIONS OF FIRST LENDING. The obligation of
each Bank to make its Advance on the occasion of the First
Lending is subject to the following conditions precedent:
6.1. Documentation. The Agent shall have received
before the day of the First Lending, in form and substance
satisfactory to the Agent and in sufficient copies for each
Bank:
(a) Certified copies of the resolutions of the
Board of Directors of the Company approving this
Agreement and the other Loan Documents;
(b) Signed copies of a certificate of the Clerk
or an Assistant Clerk of the Company certifying the
names and true signatures of the officers of the
Company authorized to sign this Agreement and the other
Loan Documents and any other documents delivered or to
be delivered by the Company hereunder;
(c) A certificate from the Secretary of State of
The Commonwealth of Massachusetts as to the Company's
corporate existence and good standing;
(d) A certificate from the Massachusetts
Department of Revenue as to the Company's tax good
standing or, if such certificate cannot be obtained
prior to the First Lending, a certificate of the
Treasurer of the Company certifying as to the Company's
tax compliance; and
(e) A favorable opinion of counsel to the
Borrowers in substantially the form of Exhibit F hereto
and as to such other matters as any Bank through the
Agent may reasonably request; and
(f) Certified copies of the charter and by-laws
of the Company as in effect on the Closing Date; and
(g) Copies of any authorization or approval of
any public regulatory body (including, without
limitation, the DPU) required for the execution,
delivery and performance by the Company of this
Agreement and the other documents to be delivered by
the Company hereunder.
6.2. Financial Statements. The Banks shall have
received not less than five (5) days prior to the Closing
Date audited consolidated and consolidating balance sheets
of the Company and its Subsidiaries as at December 31, 1996,
and related consolidated and consolidating statements of
income and retained earnings of the Company and its
Subsidiaries for the twelve months then ended, in each case
prepared in accordance with GAAP and certified by Grant
Thornton or other Independent Accountant.
6.3. Representations and Warranties. The
representations and warranties contained in 8 shall have
been correct as of the date on which made and shall also be
correct at and as of the date of the First Lending with the
same effect as if made at and as of such time, except to the
extent that the facts upon which such representations and
warranties are based may in the ordinary course be changed
by the transactions permitted or contemplated hereby, and
the Company shall deliver a certificate to the Agent to such
effect.
6.4. Performance; No Default. The Company shall have
performed and complied with all terms and conditions herein
required to be performed or complied with by it prior to or
at the time of the First Lending and at the time of the
First Lending there shall exist no Default or Event of
Default or condition which would, with either or both the
giving of notice or the lapse of time, result in a Default
or Event of Default upon consummation of the First Lending.
6.5. Security Documents Trust Credit Agreement. The
Trust Credit Agreement shall have been duly executed and
delivered by the parties thereto and all of the conditions
to the "First Lending" thereunder shall have been satisfied.
6.6. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this
Agreement and all documents incident thereto shall be
reasonably satisfactory in substance and in form to the
Agent and to the Agent's Special Counsel, and the Agent and
such counsel shall have received all information and such
counterpart originals or certified or other copies of such
documents and such other approvals, opinions or documents as
the Agent or such counsel may reasonably request.
6.7. Notice of Borrowing. The Agent shall have
received a Notice of Borrowing from the Company as required
by 2.2.
7. CONDITIONS OF SUBSEQUENT BORROWINGS. The
obligation of the Banks to make any Advances subsequent to
the Closing Date is subject to the following conditions
precedent:
7.1. Representations and Warranties. The
representations and warranties contained in 8 (other than
those representations and warranties contained in 8.1,
8.3, 8.4, 8.6, 8.7, 8.8, 8.9, 8.10, 8.11, and 8.13 to the
extent that such representations and warranties pertain to a
Subsidiary as of a date after the date of the First Lending
and other than the representations and warranties contained
in 8.5 to the extent that such representations and
warranties pertain to Advances employed solely to repay
outstanding Advances as of the end of the Interest Period
pertaining to such Advances) and otherwise made by the
Company in connection with the transactions contemplated by
this Agreement subsequent to the date hereof shall have been
correct as of the date on which made and shall also be
correct at and as of the date of the Advances, with the same
effect as if made at and as of such time, except to the
extent that the facts upon which such representations and
warranties are based may be changed by the actions or
transactions permitted or contemplated hereby.
7.2. Performance; No Default. The Company shall have
performed and complied with all terms and conditions herein
required to be performed or complied with by it prior to or
at the time of the Advances, and there shall exist no
Default or Event of Default or condition which would, with
either or both the giving of notice or the lapse of time,
result in a Default or Event of Default upon consummation of
the Advance.
In the case of any Advance, the giving of each Notice
of Borrowing made subsequent to the Closing Date, as the
case may be, by the Company shall be deemed to be a
representation and warranty by the Company on the dates of
such Notice of Borrowing and of such Borrowing that the
statements in 8 are correct in all material respects.
7.3. Notes in Full Force and Effect. The Notes shall
be in full force and effect, and the Company shall have
delivered to the Banks contemporaneously with its delivery
of such Notes an opinion of counsel, satisfactory to the
Banks, regarding the due authorization, execution and
delivery of such Notes, the validity and binding effect of
such Notes, and there being no necessity for any
authorization or approval by, or any filing or registration
with, any public regulatory body (including, but without
limitation, approval of the DPU) for the delivery of such
Notes or the performance of such Notes.
8. REPRESENTATIONS AND WARRANTIES. The Company
represent and warrant to the Agent and the Banks that:
8.1. Corporate Existence and Good Standing, Etc.
(a) The Company and each of its Subsidiaries (i)
are corporations duly organized, validly existing and in
good standing under the laws of the respective jurisdictions
in which they are incorporated, (ii) have corporate power to
own their property and conduct their respective businesses
as now and as presently contemplated, and (iii) are duly
qualified to do business and in good standing as foreign
corporations in each jurisdiction where the conduct of their
business or the nature of their assets require such
qualification except where failure to so qualify would have
no material adverse effect. The Company has no Subsidiaries
except for Transgas Inc. and CGI Transport Ltd.
(b) The Company has its chief executive offices
at 40 Market Street, Lowell, MA 01852 at which place its
principal books and records are kept.
8.2. Corporate Power; Consents; Absence of Conflict
with Other Agreements, Etc. The execution, delivery and
performance of this Agreement and the other Loan Documents
by the Company and the Borrowings and transactions
contemplated hereby and thereby:
(a) are within the corporate powers of the
Company, have been duly authorized by all necessary
corporate action and do not and will not contravene any
provision of law or any contractual restriction binding on
or affecting it;
(b) do not require any approval or consent of, or
filing with, any governmental agency or authority bearing on
the validity of such instruments and Borrowings which is
required by law or the regulation of any such agency or
authority which have not been obtained and delivered to the
Agent prior to the Closing Date and are not in contravention
of the terms of the Company's Certificate of Incorporation
or by-laws, or any amendment thereof;
(c) will not conflict with or result in any
breach or contravention of or the creation of any lien
under, any indenture, agreement, lease, instrument or
undertaking to which the Company is a party or by which it
is bound; and
(d) in all material respects are and will be
valid and legally binding obligations of the Company and are
and will be enforceable in accordance with their respective
terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting generally the enforcement of creditors' rights.
8.3. Title to Properties; Leases. Except as
indicated on Schedule 8.3 hereto, the Company and its
Subsidiaries own all of their respective assets reflected in
the balance sheet as at December 31, 1996 described in 6.2,
or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business
since that date), subject to no mortgages, leases, liens or
other encumbrances except for (i) current taxes or taxes
being contested in good faith by appropriate proceedings and
then only to the extent that adequate reserves have been set
aside therefor or its books in accordance with GAAP, (ii)
liens arising in the ordinary course of business or sums
being contested in good faith by appropriate proceedings and
then only to the extent that adequate reserves have been set
aside therefor or its books in accordance with GAAP, but not
involving Debt, (iii) liens existing on the date hereof to
the extent shown on Schedule 8.3 or (iv) hereafter incurred
and permitted under 11.2.
8.4. Financial Statements. The financial statements
delivered to the Banks pursuant to 6.2 fairly present the
financial condition of the Company and its Subsidiaries as
at the close of business on the date thereof. There are no
contingent liabilities of the Company and its Subsidiaries
as of such date involving material amounts, which are not
disclosed in said balance sheets and the related notes
thereto.
8.5. No Material Changes, Etc. Since December 31,
1996, there have occurred no Material Adverse Changes as
shown on or reflected in the financial statements delivered
to the Bank pursuant to 6.2 hereof.
8.6. Franchises, Patents, Copyrights, Etc. Each of
the Company and its Subsidiaries possesses franchises,
patents, copyrights, trademarks, tradenames, licenses and
permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now
conducted and without any conflict with any rights of others
(other than for conflicts that would not either individually
or collectively have a Material Adverse Effect).
8.7. Litigation. Except as set forth on
Schedule 8.7, there are no actions, suits, proceedings or
investigations of any kind pending or threatened against the
Company or any Subsidiary before any court, tribunal or
administrative agency or board which, if adversely
determined, might, either in any case or in the aggregate,
have a Material Adverse Effect or materially impair the
right of the Company and its Subsidiaries taken as a whole,
to carry on business substantially as now conducted, or
result in any substantial liability not adequately covered
by insurance, or which question the validity of this
Agreement or the Notes, or any action taken or to be taken
pursuant hereto or thereto.
8.8. No Materially Adverse Contracts, Etc. Neither
the Company nor any of its Subsidiaries is subject to any
indenture, agreement or charter, corporate or other legal
restriction, or any judgment, decree, order, rule or
regulation which has or is expected in the future to have a
Material Adverse Effect. Neither the Company nor any of its
Subsidiaries is a party to any contract or agreement which
has or is expected to have any Material Adverse Effect.
8.9. Compliance with Other Instruments, Laws, Etc.
Neither the Company nor any of its Subsidiaries is in
violation of any provision of its charter documents or
by-laws or any other agreement or instrument by which it or
any of its properties may be bound or any decree, order,
judgment, any statute, license, rule or regulation, in a
manner which could result in the imposition of substantial
penalties or have a Material Adverse Effect.
8.10. Tax Status. Each of the Company and its
Subsidiaries has made or filed all federal and state income
all other tax returns, reports and declarations required by
any jurisdiction to which it is subject; and has paid all
taxes and other governmental assessments and charges shown
or determined to be due on such returns, reports and
declarations, except those being contested in good faith by
appropriate proceedings and then only to the extent that
adequate reserves have been set aside therefor or its books
in accordance with GAAP, but not involving any Debt; and has
set aside on its books provisions reasonably adequate for
the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and the Company knows of no basis for any such
claim.
8.11. Absence of Security Interests, Etc. Except (i)
for current taxes or taxes being contested in good faith by
appropriate proceedings and for which any adequate reserves
required by GAAP have been established, (ii) liens arising
in the ordinary course of business or sums being contested
in good faith, but not involving any Debt, (iii) liens
existing on the date hereof to the extent shown in the
financial statements referred to in 6.2 or Schedule 8.3 or
(iv) liens hereafter incurred and permitted under 11.2,
there is no significant financing statement, security
agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records,
registry, or other public office of any jurisdiction, which
purports to cover, affect or give notice of any present or
possible future lien on, or security interest in, any assets
or property of the Company, any of its Subsidiaries or any
rights thereunder.
8.12. Use of Proceeds. The proceeds of the Advances
shall be used for general corporate purposes, which may
include the financing of gas inventory purchases. No
portion of any Advance is to be used for the purpose of
purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations G and U of the
Board of Governors of the Federal Reserve System, 12 C.F.R.
207 and 221.
8.13. Pension Plan. The funding of any Guaranteed
Pension Plan of the Company and its Subsidiaries, or any of
them, complies with the minimum funding standards of 412 of
the Internal Revenue Code of 1986, as amended.
8.14. Subsidiaries. The Company owns directly or
beneficially through one or more of its Subsidiaries, free
and clear of all material liens and encumbrances, at least
one hundred percent (100%) of the issued and outstanding
Voting Stock of each of its Subsidiaries. The Company has
no Subsidiaries other than those Subsidiaries named in
8.1(a) hereof. All shares of such stock have been validly
issued and are fully paid and non-assessable, and no rights
to subscribe to additional shares have been granted.
8.15. Disclosure. Neither this Agreement nor any
document delivered to the Agent or any Bank by or on behalf
of the Company to induce such Bank to enter into this
Agreement contains any untrue statement of a material fact
or omits to state a material fact which omission would make
the statements herein or therein misleading.
8.16. Investment Company; Public Utility Holding
Company. Neither the Company nor any Subsidiary is an
"investment company" or a "company controlled" by an
"investment company" or an "affiliate" of an "investment
company" within the meaning of the Investment Company Act of
1940, as amended. Neither the Company nor any Subsidiary is
a "holding company", or a "subsidiary company" of a "holding
company", or an affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms
are defined in the Public Utility Holding Company Act of
1935, as amended.
8.17. Environmental Matters. The Company is in
compliance in all material respects with all applicable
Environmental Laws (as defined herein), including, without
limitation, the Clean Water Act of 1977, as amended, 33
U.S.C. 1251 et seq., the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. 6901 et seq. ("RCRA"), the
Massachusetts Hazardous Waste Management Act, Massachusetts
General Laws Annotated ch. 21C (West 1992) (the
"Massachusetts Hazardous Waste Act"), the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. 9601 et seq.
("CERCLA"), and the Massachusetts Oil and Hazardous Material
Release Prevention Act, Massachusetts General Laws Annotated
ch. 21E (West 1992) (the "Massachusetts Oil and Hazardous
Material Act"), except for such noncompliance which, in the
judgment of the Company, would not have a Material Adverse
Effect and, to its knowledge, has not acquired, incurred or
assumed, directly or indirectly, any contingent liability in
connection with the release of any Hazardous Substance (as
defined herein) into the environment which, in the judgment
of the Company, would have a Material Adverse Effect. To
the best of the Company's knowledge, the Company is not the
subject of any evaluation, administrative proceedings,
administrative consent orders, judicial proceedings or
demand orders under CERCLA, or under the Massachusetts Oil
and Hazardous Material Act, or any similar statute in any
other jurisdiction which, in the judgment of the Company,
would have a Material Adverse Effect.
9. EXEMPT CHARACTER OF TRANSACTION. This Agreement
is made with the Banks in reliance upon their several
representations to the Company, which by their execution of
this Agreement they hereby confirm, that each Bank for
itself and not for any other Bank has no present intention
of selling or otherwise disposing of any interest in the
Advances other than for participations contemplated by 25
and assignments contemplated by 17 hereof. The Company
represents to the Banks that it has not, either directly or
through any agent, offered any interest in the Advances for
sale to, or solicited any offers to buy any interest therein
from, or otherwise approached or negotiated in respect of
any interest therein with, any Person or Persons other than
the Banks. Each Bank agrees that it will not, directly or
indirectly, sell or offer, or attempt to offer to dispose
of, any interest in the Advances or solicit any offers to
buy any interest therein from, or otherwise approach or
negotiate with respect thereto with, any Person whatsoever
so as to bring the execution and delivery of this Agreement
within the provisions of 5 of the Securities Act of 1933,
as now in effect or as later amended.
10. AFFIRMATIVE COVENANTS. Until expiration or
termination of the Commitments and thereafter until all
obligations of the Company hereunder and under the Notes are
paid in full, the Company agrees that it will:
10.1. Punctual Payment. Duly and punctually pay or
cause to be paid the principal and interest on the Advances,
and the Commitment Fees, the Facility Fees, the Agent's Fees
and all other fees and expenses payable as provided herein
or in the other Loan Documents as the same shall become due,
whether at maturity or at any date fixed for payment or
prepayment or by declaration or otherwise, all in accordance
with the terms of this Agreement.
10.2. Maintenance of Office. Maintain an office at
40 Market Street, Lowell, Massachusetts or at such other
place in Massachusetts as the Company shall designate within
30 days of any change of such office by written notice,
addressed as provided in 20 where notices, presentations
and demands to or upon the Company in respect of the
Advances may be given or made.
10.3. Reports, Certificates and Other Information.
Furnish to the Agent (in sufficient number of copies to
provide one to each Bank):
(a) Annual Report. As soon as practicable and,
in any event, within 90 days after the end of each fiscal
year of the Company a consolidated and consolidating balance
sheet of each of the Company and its Subsidiaries as at the
end of such fiscal year and consolidated and consolidating
statements of earnings and cash flow of the Company and its
Subsidiaries for the fiscal year then ended, each setting
forth in comparative form the figures for the previous
fiscal year, all in reasonable detail prepared in accordance
with GAAP, such consolidated financial statements to be
accompanied by a report and opinion of Grant Thornton or
other Independent Accountants, to the effect that such
consolidated financial statements have been prepared in
accordance with GAAP applied on a basis consistent with
prior years (except as to changes with which such
accountants concur) and present fairly, in all material
respects, the consolidated financial position of the Company
and its Subsidiaries as of the date thereof, and the
consolidated results of their operations and their
consolidated cash flows for each of the three years in the
period ended at the date thereof.
(b) Interim Reports. Within forty-five (45) days
after each quarter (except the last quarter) of each fiscal
year of the Company, a copy of the report on Form 10-Q of
the Securities and Exchange Commission filed by the Company
and its Subsidiaries with respect to such quarter or, if no
such report has been timely filed, unaudited financial
statements of the Company and its Subsidiaries prepared in
the same manner as the annual report referred to in
10.3(a), signed by a proper officer of the Company and
consisting of at least a balance sheet as at the close of
such quarter and statements of earnings and cash flows for
such quarter and for the period from the beginning of such
fiscal year to the close of such quarter.
(c) Certificates. Contemporaneously with the
furnishing of a copy of each annual report provided for in
subsection (a) and of each set of quarterly statements
provided for in subsection (b), a Compliance Certificate
from the Company substantially in the form of Exhibit G
hereto (the "Compliance Certificate") dated the date of such
annual report or such quarterly statements and signed on
behalf of the Company, by the President, the chief financial
officer, the chief accounting officer or the Treasurer of
the Company to the effect that no Default or Event of
Default has occurred and is continuing, or, if there is any
such event, describing it and the steps, if any, being taken
to cure it and containing a computation of, and showing
compliance with, each of the financial ratios and
restrictions contained in 11.8 and 11.9 of this Agreement.
(d) Reports to SEC and to Shareholders. Copies
of each material filing and report made by the Company or
any Subsidiary with or to the Securities and Exchange
Commission, and of each material communication from the
Company or any Subsidiary to shareholders generally,
promptly upon the filing or making thereof.
(e) Notice of Default, Litigation, ERISA Matters
and Environmental Matters. Forthwith upon learning of the
occurrence of any of the following, written notice thereof,
describing the same and the steps being taken by the Company
with respect thereto: (i) the occurrence of a Default or
Event of Default or any event which, but for the waiver of
such event, would be a Default or Event of Default, or (ii)
the institution of, or any adverse determination in, any
litigation, arbitration proceeding or governmental
proceeding which is, or could have a Material Adverse
Effect, or (iii) the occurrence of a Reportable Event under
ERISA for which the 30-day notice requirement under ERISA
Regulation 2615.3(a) is not waived, or the institution of
steps by the Company or any Subsidiary to withdraw from, or
the institution of any steps to terminate, any employee
benefit plan as to which the Company or any of its
Subsidiaries may have any material unfunded liability. The
Company will promptly give notice to the Agent and each of
the Banks (i) of any violation of any federal, state or
local statute, regulation, ordinance, order or decree
relating to health, safety or the environment that the
Company report in writing or is reportable by such Person in
writing (or for which any written report supplemental to any
oral report is made) to any federal, state or local
environmental agency and that, in the judgment of the
Company, would have a Material Adverse Effect, and (ii) upon
becoming aware thereof, of any inquiry, proceeding,
investigation or other action, including a notice from any
agency of potential environmental liability, or any federal,
state or local environmental agency or board that, in the
judgment of the Company, would have a Material Adverse
Effect.
(f) Financial Forecast. Prior to the end of each
fiscal year, beginning with the fiscal year ending
December 31, 1997, the Company's annual financial forecast,
on a quarterly basis, for the next following fiscal year, in
such form and with such detail as the Banks may request.
(g) Other Information. From time to time such
other information concerning the Company and its
Subsidiaries as any Bank or the Agent may reasonably
request.
10.4. Existence and Franchises. Except as otherwise
expressly permitted in this Agreement, maintain, and cause
each of its Subsidiaries to maintain in full force and
effect, its separate existence and all rights, licenses,
leases and franchises reasonably necessary to the conduct of
its business and comply with (i) the applicable laws and
regulations wherever its business is conducted, (ii) the
provisions of its charter documents or by-laws and (iii) all
agreements and instruments by which it or any of its
properties may be bound and all applicable decrees, orders
and judgments.
10.5. Payments of Taxes. Promptly pay when due, and
cause each of its Subsidiaries to do the same, all material
taxes, assessments or other governmental charges owing,
unless the same shall be diligently contested in good faith
and reserves, which are adequate in accordance with GAAP,
have been set aside therefor.
10.6. Maintenance of Property. Maintain all material
assets or property in good repair and working order and
condition, normal wear and tear excepted, and cause each of
the Subsidiaries to do the same, and make all needful
repairs, replacements, additions and improvements thereto.
10.7. Books, Records and Inspections. Maintain, and
cause each of its Subsidiaries to maintain, complete and
accurate books and records; permit reasonable access during
normal business hours by any Bank or the Agent to the books
and records of the Company and of any Subsidiary; and permit
any Bank or the Agent to inspect the properties and
operations of the Company and of any Subsidiary and promptly
respond to all reasonable requests for information by any
Bank or the Agent.
10.8. Employee Benefit Plans. Maintain, and cause
each of its Subsidiaries to maintain, each employee benefit
plan as to which it may have any material liability, in
material compliance with all applicable requirements of law
and regulations.
10.9. Copies of Employee Benefit Plan Reports. If
requested by any Bank, send to each of the Banks copies of
all Forms 5500 and/or Forms 5500C relating to a Guaranteed
Pension Plan together with all attachments thereto,
including any actuarial statement required to be made under
103(d) of ERISA, promptly following the date on which any
such form is filed with the Department of Labor, except, in
the case of any multi-employer plans, the Company will cause
such Forms and all such attachments thereto to be sent to
the Banks within a reasonable time after such Forms are
filed with the Department of Labor.
10.10. Further Assurances. Cooperate with the Banks
and execute, acknowledge (if appropriate) and deliver such
further instruments and documents, and take such other
action as the Banks shall reasonably request to carry out to
their satisfaction the transactions contemplated by this
Agreement.
10.11. Securities Law, Etc. Compliance. Comply in
all material respects with all valid applicable laws and any
rules and regulations thereunder in connection with all
transactions contemplated by this Agreement, including
(without limitation) takeover, disclosure and other Federal
and State securities laws and Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System.
10.12. Insurance. Maintain, and cause each of its
Subsidiaries to maintain, with financially sound and
reputable insurers insurance with respect to its properties
and business against such casualties and contingencies in
amounts, containing such terms, in such forms and for such
periods as shall be in accordance with the general practices
of businesses engaged in similar activities in similar
geographic areas (which may include reasonable self
insurance) and as may be reasonably satisfactory to the
Banks. Without limiting the foregoing, the Company will,
and will cause each of its Subsidiaries to (i) keep all of
its physical property insured against fire, flood and
extended coverage risks in amounts and with deductibles
equal to those generally maintained by businesses engaged in
similar activities in similar geographic areas, which may
include reasonable self insurance (ii) maintain all such
workers' compensation or similar insurance as may be
required by law, and (iii) maintain, in amounts and with
deductibles equal to those generally maintained by
businesses engaged in similar activities in similar
geographic areas (which may include reasonable self
insurance), general public liability insurance against
claims for bodily injury, death or property damage occurring
on, in or about its properties, business interruption
insurance and product liability insurance. At least five
(5) days before the expiration of any such policy, the
Company will (except as aforesaid) obtain a renewal of any
policy about to expire or a new policy or policies operating
as a renewal thereof, to the satisfaction of the Banks;
provided, however, that the Company will notify the Banks
that a policy is being canceled by an insurer not later than
ten (10) days prior to the effective date of such
cancellation. In the event of failure to provide and
maintain insurance as herein provided, the Banks may, at
their option, after giving notice to and consulting with the
Company, provide such insurance and charge the amount
thereof to the Company and the Company hereby promises to
pay to the Banks on demand the amount of any disbursements
made by the Banks for such purpose. The Company shall
furnish to the Banks certificates or other evidence
satisfactory to the Banks of compliance with the foregoing
insurance provision.
10.13. Payment of Indebtedness and Performance of
Obligations. Pay and discharge promptly as and when due all
lawful indebtedness, obligations and claims for labor,
materials and supplies or otherwise (including, without
limitation, Debt) which, if unpaid, would (a) have a
Material Adverse Effect, or (b) become a lien not permitted
by paragraph 11.2, provided that the Company shall not be
required to pay and discharge or cause to be paid and
discharged any such indebtedness, obligation or claim so
long as the validity thereof shall be contested in good
faith and by appropriate proceedings diligently conducted by
the Company, and further provided that such reserve or other
appropriate provision as shall be required in accordance
with GAAP shall have been made therefor.
10.14. Change of Corporate Name. Notify the Agent
within ten (10) days of any change in its corporate name and
duly execute and deliver appropriate financing statements
and other documents necessary to enable the Agent to
maintain continuously perfected the security interests
granted under the Security Documents.
11. CERTAIN NEGATIVE COVENANTS. The Company agrees
that, so long as any portion of the Commitments remain
outstanding or until such date as the Advances and all other
Obligations have been paid and satisfied in full, whichever
shall later occur, it will not:
11.1. Debt. Incur or permit to exist, with respect
to it or any of its Subsidiaries, any Debt except (i) the
Advances, (ii) in the case of the Company, purchase money
debt incurred in connection with the acquisition of real or
personal property after the date hereof not to exceed in the
aggregate $500,000, (iii) the Mortgage Debt, (iv) other Debt
reflected on the audited balance sheets delivered to the
Bank pursuant to 6.2 hereof and extensions, renewals or
refinancings of such Debt; provided that the aggregate
principal amount of such Debt is not increased, (v) Debt
arising under the Fuel Purchase Contract, (vi) additional
Debt, provided that all Debt incurred pursuant to this
clause (vi) shall be unsecured and shall either require no
amortization of principal on or prior to the Termination
Date or shall be subordinated to the obligations of the
Company hereunder on terms and conditions satisfactory to
the Banks, and (vii) any Company Subsidiaries may incur Debt
so long as such debt is non-recourse to both the Company and
the Trust and the aggregate amount of such debt does not
exceed $10,000,000 at any time.
11.2. Liens. Create or permit to exist any mortgage,
pledge, title retention lien, or other lien, encumbrance or
security interest with respect to any assets now owned or
hereafter acquired, except
(i) liens existing on the date of this Agreement
and described on Schedule 8.3 hereto;
(ii) liens securing Debt permitted under clause
(ii) of 11.1 and attached only to the property
acquired;
(iii) mechanic's, materialmen's, suppliers',
tax and other like liens arising in the ordinary course
of business securing obligations which are not overdue
or, if overdue, are being contested in good faith by
appropriate proceedings; liens arising in connection
with workmen's compensation, unemployment insurance and
appeal and release bonds; and other liens incident to
the conduct of business or the operation of property
and assets and not incurred in connection with the
obtaining of any advance or credit;
(iv) Liens arising under the Indenture as from
time to time amended or supplemented;
(v) Liens securing the Advances or arising under
the Fuel Purchase Contract;
(vi) Liens which constitute "permitted liens," as
defined in the Indenture;
(vii) Liens arising out of judgments or awards
against the Company with respect to which at the time
an appeal or proceeding for review is being prosecuted
in good faith and with respect to which there shall
have been secured a stay of execution pending such
appeal or proceedings for review; and
(viii) Liens on appliances and gas utilization
equipment held for resale, securing the purchase price
of such appliances and gas utilization equipment,
provided that the aggregate amount of Debt secured by
such Liens shall not exceed at any time $500,000.
Notwithstanding the foregoing, the Company will not in
any event pledge or assign as security to any Person other
than the Agent (A) the gas inventory or accounts receivable
of the Trust or (B) the gas inventory or accounts receivable
of the Company relating to such gas inventory.
11.3. Guaranties, Loans or Advances. With respect to
it or any of its Subsidiaries, become or be a guarantor or
surety of, or otherwise become or be responsible in any
manner (whether by agreement to purchase any obligations,
stock, assets, goods or services, or to supply or advance
any funds, assets, goods or services, or otherwise) with
respect to, any undertaking of any other person or entity,
or make or permit to exist any loans or advances to any
other person or entity, except for (i) the endorsement, in
the ordinary course of collection, of instruments payable to
it or to its order, (ii) in the case of the Company, its
monetary obligations under the Fuel Purchase Contract, and
(iii) in the case of the Company, guaranties made in the
ordinary course of business in an amount not to exceed
$2,500,000 and not guaranteeing obligations for borrowed
money.
11.4. Investments. With respect to the Company,
purchase or otherwise acquire any security or Debt of any
Person, whether directly or indirectly, except (i)
marketable unconditional obligations of or guaranteed by the
government of the United States of America maturing not more
than five (5) years after original issue, or participations
in such obligations acquired from any Bank or other domestic
bank having total assets in excess of $1,000,000,000, (ii)
certificates of deposit and eligible bankers' acceptances
for the Banks or such other domestic banks and demand and
time deposits in any bank, (iii) commercial paper rated at
the time of acquisition thereof not less than "P-1" by
Moody's Investors Service Inc. or "A-1" by Standard & Poors
Corporation, and (iv) the Company's investments in
Acquisitions or existing Subsidiaries.
11.5. Subsidiaries. (i) Directly or indirectly,
enter into any transaction with any Subsidiary except on
terms which are fair and reasonable to the Company and
which, taken as a whole, are at least as favorable to the
Company as it would obtain in a comparable transaction with
an unrelated person, or (ii) sell the stock of any
Subsidiary, or permit a Subsidiary to sell or otherwise
dispose of its property, other than at a fair value, unless
such sale or disposition is not detrimental to the interests
of the Banks hereunder and the difference between the fair
value and the proceeds of such sale or disposition is either
less than $25,000 or, in the aggregate with the differences
from all other such sales or dispositions during the
preceding 24 consecutive months, less than 3/4 of 1% of
tangible net worth as shown in the most recent report of the
Company.
11.6. Other Agreements. With respect to it or any of
its Subsidiaries, enter into any agreement containing any
provision which would be violated or breached by the
performance of its obligations hereunder or under any
instrument or document delivered or to be delivered by it
hereunder or in connection herewith.
11.7. Merger, Consolidation, or Sale of Assets. With
respect to it or any of its Subsidiaries, become a party to
any merger, consolidation, or disposition of any substantial
assets, except mergers of a Subsidiary into another
Subsidiary, or the merger of the Trust into the Company so
long as the Company is the survivor of such merger.
11.8. Debt to Capitalization Ratio. Permit the
total amount of Debt to exceed sixty-five percent (65%) of
Consolidated Capitalization.
11.9. Interest Coverage Ratio. Permit the Interest
Coverage Ratio to be less than 1.75 to 1.00.
11.10. Terminate Pension Plan. With respect to it or
any of its Subsidiaries, terminate, withdraw from, or permit
termination of any Guaranteed Pension Plan unless the asset
value of such Plan is then at least equal to the value of
the benefits guaranteed by the Pension Benefit Guaranty
Corporation or unless such termination will not result in
any significant liability to the Company or any
Subsidiaries.
11.11. Pension Plan Distribution. With respect to it
or any of its Subsidiaries, permit any distribution
described in 4043(b)(7) of ERISA to be made from any
Guaranteed Pension Plan.
11.12. Indenture. Amend, modify or supplement the
Indenture as in effect on the date of this Agreement in any
way that would directly or indirectly (i) subject the lien
of the Indenture to the gas inventory or accounts receivable
of the Company or the Trust, (ii) cause the scheduled date
of payments of principal, interest and expenses of Mortgage
Debt to occur at dates earlier than the allowed dates in
effect on the Closing Date, (iii) amend in any material way
the definitions of "additional property" or "net amount of
additional property" or "permitted liens" in the
definitional section of the Indenture, or (iv) amend in any
material way Section 3.02 of the Indenture.
11.13. Leases. Acquire any real or personal property
by lease or similar agreement (whether or not the respective
property shall have theretofore been owned and sold by the
Company) if, by reason of such transaction, the aggregate
amount of rentals or similar payments (excluding payments in
respect of Capitalized Lease Obligations) payable by the
Company during the then current or any subsequent fiscal
year of the Company in respect of all leases at the time in
effect (excluding any thereof to the extent cancelable at
the option of the Company but including for the purpose any
renewal terms of any thereof to the extent renewable at the
option of the lessors) would exceed 3% of Consolidated
Capitalization as at the date of determination.
11.14. Debt Payments. Directly or indirectly, make
any payments in reduction of any Debt of the Company (other
than Debt in respect of the Advances) prior to the final
maturity thereof, other than payments required by the terms
of any sinking fund, serial maturity or mandatory prepayment
provision contained in any instrument evidencing Debt
permitted by 11.1 and other than payments made pursuant to
the Fuel Purchase Contract, unless (i) such payment is made
out of the proceeds of a concurrent (and in any event within
twelve (12) months of such payment) refunding operation
involving the incurring by the Company of additional Debt
which is at least equal in aggregate principal amount to,
and which has a weighted average life to maturity (as
determined in accordance with any accepted financial
practice) no shorter than the remaining life of this
Agreement and (ii) after giving effect to such payment, the
aggregate amount of all such Debt prepaid by the Company and
not refinanced on a long-term basis with funds other than
Company funds or the funds provided hereunder since the
Closing Date shall not exceed $25,000,000.
11.15. Dividends; Distributions. Declare or pay
any dividends (other than dividends payable in shares of
common stock of the Company) on, or make any other
distribution in respect of, any shares of any class of
capital stock of the Company, or apply any of its property
or assets to, or set aside any sum for, the payment,
purchase, redemption or other acquisition or retirement of,
any shares of any class of capital stock of the Company, if,
after giving effect to such dividend or other distribution,
the result of such dividend or other distribution would
cause a violation of 11.8 or any other provision contained
herein.
11.16. Alterations to Fuel Purchase Contract. Until
expiration or termination of the Commitments under the Trust
Credit Agreement and thereafter until all obligations of the
Trust thereunder and under the Notes issued pursuant thereto
are paid in full, amend, alter, modify or waive any of the
provisions of the Fuel Purchase Contract in any manner that
would materially affect the absolute and unconditional
obligations of the Company to take and pay for any and all
Fuel pursuant to the terms of the Fuel Purchase Contract or
otherwise adversely affect or impair the security of the
Banks therein without the prior written consent of such
Banks as hold 100% of the aggregate principal amount of the
Maximum Commitment.
12. EVENTS OF DEFAULT; ACCELERATION. If any of the
following events ("Events of Default" or, if notice or lapse
of time or notice and lapse of time is required, then, prior
to such notice and/or lapse of time, "Defaults") shall
occur:
(a) if the Company shall default in the payment
of principal on any of the Advances when the same shall
become due and payable, whether at maturity or at any date
fixed for payment or prepayment or by declaration;
(b) if the Company shall default in the payment
of any interest on the Advances, or the Facility Fee,
Agent's Fee or any other fee or expense payable hereunder or
under the other Loan Documents, and such Default shall
continue for more than one Business Day, when the same shall
become due and payable;
(c) if the Company shall default in the
performance of or compliance with any term contained in any
of 10.3(e), 11.1, 11.2, 11.3, 11.4, 11.5, 11.7, 11.8,
11.9, 11.10, 11.11, 11.12, 11.13, 11.14, 11.15 or 11.16
hereof;
(d) if the Company shall default in the
performance of or compliance with any term contained in this
Agreement other than those referred to above in this 12,
and such default shall not have been remedied within 30 days
after written notice thereof shall have been given to the
Company by the Agent;
(e) if any representation or warranty made or
deemed made by the Company herein or in connection with any
of the transactions contemplated hereby shall prove to have
been false or incorrect in any material respect on the date
as of which made;
(f) if the Company or any Subsidiary shall
default (as principal or guarantor or other surety) in the
payment of any principal of, or premium, if any, or interest
on any indebtedness (other than the Obligations to the Banks
hereunder), or with respect to any of the terms of any
evidence of such indebtedness or of any agreement relating
thereto, and such default shall entitle the holder of such
indebtedness to accelerate the maturity thereof and the
unpaid balance of any such defaulted indebtedness is equal
to or exceeds $1,000,000 unless, in the case of any default,
such default has been affirmatively waived by or on behalf
of the holder of such indebtedness;
(g) if the Company or any Subsidiary makes an
assignment for the benefit of creditors, or petitions or
applies for the appointment of a liquidator or receiver or
custodian (or similar official) of the Company or any
Subsidiary, or of any substantial part of the assets of the
Company or any Subsidiary or commences any proceeding or
case relating to the Company or any Subsidiary under any
bankruptcy, reorganization, arrangements, insolvency,
readjustment of debt, dissolution or liquidation or similar
law of any jurisdiction, now or hereafter in effect;
(h) if any such petition or application is filed
or any such proceeding or case is commenced against the
Company or any Subsidiary and the Company or such Subsidiary
indicates its approval thereof, consent thereto or
acquiescence therein or an order is entered appointing any
such liquidator or receiver or custodian (or similar
official), or adjudicating the Company or any Subsidiary
bankrupt or insolvent, or approving a petition in any such
proceeding or a decree or order for relief is entered in
respect of the Company or any Subsidiary in an involuntary
case under any bankruptcy or reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation
or similar laws of any jurisdiction as now or hereafter
constituted;
(i) if any order is entered in any proceeding by
or against the Company, any Subsidiary decreeing or
permitting the dissolution or split-up of the Company or any
Subsidiary or the winding up of its affairs;
(j) if there shall remain in force, undischarged,
unsatisfied and unstayed, for more than 30 days, whether or
not consecutive, any final judgment or judgments which
exceed, either individually or in the aggregate, more than
$1,000,000 against the Company or any Subsidiary;
(k) if any governmental authority or any person
purporting to act under governmental authority shall have
taken any action to condemn, seize or appropriate or to
assume custody or control of, all or any substantial part of
the property of the Company and its Subsidiaries taken as a
whole;
(l) if an Event of Default under and as defined
in the Trust Credit Agreement shall occur and be continuing;
(m) if the Company shall fail to obtain, renew,
maintain or comply with all such government approvals as
shall now or hereafter be necessary or, in the opinion of
special counsel to the Banks, desirable (i) for the
execution, delivery or performance by the Company of its, or
the exercise by the Banks of their, rights under the Loan
Documents or (ii) for the grant by the Trust of the
assignments and security interests granted by the Security
Documents or for the validity and enforceability or for the
perfection of or the exercise by the Agent of its rights and
remedies thereunder; or any such government approval shall
be revoked, terminated, withdrawn, suspended, modified or
withheld or shall cease to be in full force and effect, and
such revocation, termination, withdrawal, suspension,
modification, withholding or cessation may adversely affect
the Banks or the security provided to the Banks under the
Loan Documents, or any proceeding shall be commenced by or
before any governmental authority for the purpose of so
revoking, terminating, withdrawing, suspending, modifying or
withholding any such government approval and such proceeding
is not dismissed within 30 days;
(n) if, without the consent of the Majority
Banks, the Fuel Purchase Contract or any Loan Document shall
be amended, supplemented, terminated or otherwise modified
or become of no force or effect or the obligations of any
party thereto shall be modified, suspended, discharged or
terminated (in any such case, whether by the voluntary
action of any party to such Loan Document, by operation of
law, or otherwise and other than by the expiration thereof
in accordance with its terms), or the Company shall give any
consent, waiver or approval thereunder (other than any
consent, waiver or approval which cannot adversely affect
the Banks or the security provided to the Banks under the
Loan Documents);
(o) if any judicial decision, law or regulation
or interpretation of any judicial decision, law or
regulation shall be adopted or enforced by any court or
governmental or regulatory authority (including, without
limitation, the DPU or similar agency of any other state,
the SEC, the Department of Energy and FERC), and as a result
of such adoption or enforcement any Loan Document or any
transaction contemplated thereby shall be or become, or with
the passage of a specific period of time would become,
unlawful or the performance of any Loan Document or any
material term thereof shall be rendered unlawful or
unenforceable unless within 10 days thereof the Company
shall have obtained a stay of such action, and such stay
shall remain in full force and effect, or taken other action
which eliminates the adverse consequence of such action; or
(p) if the Company's franchise or license to
distribute gas is revoked or suspended;
then and in any such event (unless all Defaults and Events
of Default shall theretofore have been remedied) the Agent
may and, upon the written, telecopied or telephonic
(confirmed in writing) request of the Majority Banks shall
by notice to the Company declare: (i) the obligation of
each Bank to make Advances to the Company to be terminated,
whereupon the same shall terminate, and/or (ii) the Advances
to the Company, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and
payable, whereupon such Advances, all such interest and all
such amounts shall become and be forthwith due and payable
without presentment, demand, protest or notice, all of which
are hereby expressly waived by the Company. Notwithstanding
the foregoing, upon any Event of Default contemplated by
subsections (g), (h), or (i) above, all amounts specified in
clause (ii) above shall become immediately due and payable
automatically without any requirement of notice from the
Agent or any Bank.
13. NOTICE AND WAIVERS OF DEFAULT.
13.1. Notice of Default. If any Person shall give
any notice or take any other action in respect of a claimed
Default (whether or not constituting an Event of Default)
under this Agreement or any other note, evidence of
indebtedness, indenture or other obligation as to which the
Company, any of its Subsidiaries or the Trust is a party, or
obligor, whether as principal or surety, the Company shall
forthwith give written notice thereof to each of the Banks,
describing the notice or action and the nature of the
claimed Default.
13.2. Waivers of Default. Any Default or Event of
Default may be waived as provided in 24 hereof. Any
Default or Event of Default so waived shall be deemed to
have been cured and to be not continuing; but no such waiver
shall extend to or affect any subsequent like default or
impair any rights arising therefrom.
14. REMEDIES ON DEFAULT, ETC.
14.1. Rights of Banks. In case any one or more of
the Events of Default specified in 12 shall have occurred
and be continuing, and whether or not all amounts owing with
respect to the Advances have been declared due and payable
pursuant to 12, (i) each Bank, if owed any amount with
respect to such Advances, may proceed to protect and enforce
its rights by suit in equity, action at law and/or other
appropriate proceeding, whether for the specific performance
of any covenant or agreement contained in this Agreement,
including the obtaining of the ex parte appointment of a
receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the Bank;
and (ii) to the extent any Bank holds Advances (excluding
Competitive Bid Advances) exceeding in the aggregate
principal amount such Bank's Commitment Percentage of the
then outstanding aggregate principal amount of all such
Advances held by all the Banks, the other Banks shall
purchase such participations in such Bank's Advances so as
to result in the outstanding aggregate principal amount of
such Advances held by each Bank to equal each such Bank's
Commitment Percentage of the then outstanding aggregate
principal amount of all such Advances. The Company hereby
agrees that any Bank so purchasing a participation from
another Bank pursuant to this 14.1 may, to the fullest
extent permitted by law, exercise all its right of payment
(including the right of set-off) with respect to such
participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation.
14.2. Setoff. Upon the occurrence and during the
continuance of any Event of Default, each Bank is hereby
authorized at any time and from time to time, without notice
(any such notice being expressly waived hereby) and to the
fullest extent permitted by law, to set off and apply any
and all deposits (general or specific, time or demand,
provisional or final, and in whatever currency denominated)
at any time held or other sums credited by or due from any
of the Banks to the Company against any and all liabilities,
direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising of the Company to the
Banks. Each of the Banks agrees with the other Banks that
(i) if an amount to be set off is to be applied to
Indebtedness of the Company to a Bank, other than the
Advances held by all of the Banks, such amount shall be
applied ratably to such other Indebtedness and to the
Advances and (ii) if a Bank shall receive from the Company
any payment whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of
the Advances held by a Bank by proceedings against the
Company at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, such payment received
under this 14.2 shall be shared in proportion to each
Bank's Commitment Percentage.
15. THE AGENT. (a) Each Bank by its own execution of
this Agreement does hereby appoint, and consent to the
appointment of, the Agent as agent for the ratable benefit
of the Banks hereunder. The Agent is authorized to take
such action on behalf of each of the Banks and to exercise
all such powers as are hereunder and in related documents
delegated to the Agent, together with such powers as are
reasonably incidental thereto.
(b) The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties
under this Agreement. The Agent may utilize the services of
such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses
of any such Persons shall be paid by the Company.
(c) Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other
Person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder, or in connection
herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment
whatsoever, except that the Agent or such other Person, as
the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
(d) The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement,
or any instrument at any time constituting, or intended to
constitute, collateral security for the Advances, or for the
value of any such collateral security or for the validity,
enforceability or collectability of any such amounts owing
with respect to the Advances, or for any recitals or
statements, warranties or representations herein or made in
any certificate or instrument hereafter furnished to it by
or on behalf of the Company or be bound to ascertain or
inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any
instrument at any time constituting, or intended to
constitute, collateral security for the Advances. The Agent
shall not be bound to ascertain whether any notice, consent,
waiver or request delivered to it by the Company or any
holder of any of the Advances shall have been duly
authorized or is true, accurate and complete. The Agent has
not made nor does it now make any representations or
warranties, express or implied, nor does it assume any
liability to the Banks with respect to the creditworthiness
or financial condition of the Company or any of its
Subsidiaries and each Bank represents and warrants to the
Agent that it has made its own independent evaluation of the
creditworthiness of the Company and its Subsidiaries and has
not relied upon the Agent or any material or information
furnished by the Agent in making such evaluation.
(e) If in the opinion of the Agent the
distribution of any amount received by it in such capacity
hereunder might involve it in liability, it may refrain from
making distribution until its right to make distribution
shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the
Agent its proportionate share of the amount so adjudged to
be repaid or shall pay over the same in such manner and to
such Persons as shall be determined by such court. With
respect to obligations of the Company hereunder, a payment
to the Agent shall be deemed to be a payment to the Banks.
(f) The Agent may deem and treat the payee of any
Note as the absolute owner thereof for all purposes hereof
until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder.
(g) In its individual capacity, Fleet National
Bank shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the
Advances made by it hereunder, as it would have were it not
also the Agent.
15A. THE CO-AGENT. Notwithstanding anything to
the contrary set forth herein, the Co-Agent shall be deemed
to be the agent of the Banks in name only, and the Co-Agent
shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than (a)
those applicable to all Banks as such or (b) those otherwise
applicable to The Bank of New York in its individual
capacity. Each Bank acknowledges that it has not relied,
and will not rely, on the Co-Agent in deciding to enter into
this Agreement or in taking or not taking action hereunder.
16. CONSENT TO JURISDICTION.
(a) The Company hereby irrevocably submits to the
jurisdiction of any Massachusetts State or Federal court
sitting in Boston over any action or proceeding arising out
of or relating to this Agreement or any Note issued by the
Company, and the Company hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard
and determined in such Massachusetts State or Federal Court.
Service of process may be made to the Company by mailing or
delivering a copy of such process to the Company at the
Company's address as specified in 20 hereof. The Company
agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Nothing in this 16 shall affect the right of
any Bank to serve legal process in any other manner
permitted by law or affect the right of any Bank to bring
any action or proceeding against the Company or its property
in the courts of any other jurisdictions.
17. BINDING EFFECT AND ASSIGNMENT. This Agreement
shall become effective when it shall have been executed by
the Company, the Agent and each Bank and shall be binding
upon and inure to the benefit of the Company, the Agent and
each Bank and their respective successors and assigns,
except that the Company shall have no right to assign its
rights hereunder or any interest herein without the prior
written consent of the Banks. Any Bank or subsequent
assignee of any Bank may with the written consent of the
Company (which consent shall not be unreasonably withheld so
long as the assignment, if the Company so request, has first
been offered to one or more of the other Banks) and the
Agent assign, pursuant to documentation satisfactory to the
Agent and its counsel, to any financial institution (an
"Assignee") all or any part of, such Bank's or Assignee's
obligations, rights and benefits hereunder and to the extent
of such assignment any such Assignee shall have the same
obligations, rights and benefits with respect to Company as
it would have had if it were one of the original Banks
hereunder; provided, that each such assignment shall be in a
minimum amount of $5,000,000 and, provided further, that no
such assignment shall become effective unless the assigning
bank shall have paid a $3,500 assignment fee to the Agent in
consideration of the Agent's recordation of such assignment.
Notwithstanding anything in this 17 to the contrary, each
Bank shall be permitted to assign any or all of its rights
hereunder to any of its "bank" affiliates or to any of the
twelve (12) Federal Reserve Banks organized under 4 of the
Federal Reserve Act 12 U.S.C. 341, without the prior
written consent of the Company or the Agent, provided that
such "bank" affiliate shall have total capital of not less
than $100,000,000. If any assignee Bank is not incorporated
under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest
or fees are payable hereunder or under any of the other Loan
Documents for its account, deliver to the Company and the
Agent a certification as to its exemption from deduction or
withholding of any United States Federal income taxes.
18. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same
agreement.
19. SURVIVAL OF COVENANTS, ETC. All covenants,
agreements, representations and warranties made herein and
in any certificates or other papers delivered by or on
behalf of the Company pursuant hereto are material and shall
be deemed to have been relied upon by the Banks,
notwithstanding any investigation heretofore or hereafter
made by it, and shall survive the making by the Banks of the
Advances, as herein contemplated and shall continue in full
force and effect so long as any Commitment remains
outstanding or as long as any Advances or other amount due
under this Agreement or the Notes remain outstanding and
unpaid. All statements contained in any certificate or
other paper delivered to the Banks at any time by or on
behalf of the Company pursuant hereto or in connection with
the transaction contemplated hereby shall constitute
representations and warranties by the Company hereunder.
20. NOTICE, ETC. Except as otherwise specified
herein, all notices and other communications made or
required to be given pursuant to this Agreement shall be in
writing and shall be either delivered by hand or mailed by
United States of America first-class mail, postage prepaid,
or sent by telecopier confirmed by letter, addressed as
follows:
(a) If to the Company, at: Colonial Gas Company,
40 Market Street, Lowell, MA 01853 Attn: Nickolas
Stravropoulos, Vice President-Finance, Telecopy:
(508) 459-2314, or at such other address for notice as the
Company shall last have furnished in writing to the Person
giving the notice with a copy to:
Stanley Keller, Esq.
Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108
(b) if to the Agent, at Fleet National Bank, One
Federal Street, Boston, Massachusetts 02211, Attn: Thomas L.
Rose, Vice President, National Utilities Group, Telecopy:
(617) 346-0580, or such other address for notice as the
Agent shall last have furnished in writing to the Person
giving the notice; with a copy to:
Peter S. Johnson, Esq.
Gadsby & Hannah LLP
225 Franklin Street
Boston, MA 02110
Telecopy: (617) 345-7050
(c) if to any Bank, at the address set forth for
such Bank on the signature page hereof, or such other
address for notice as the Bank shall last have furnished in
writing to the Person giving the notice.
All such notices and communication shall, when mailed,
telexed, telecopied or cabled, be effective when deposited
in the mails or delivered to the telex, telecopy or cable
system, respectively.
21. GOVERNING LAW. This Agreement shall be deemed to
be contracts under the laws of The Commonwealth of
Massachusetts and shall for all purposes be construed in
accordance with and governed by the laws of said
Commonwealth, without regard to principles of conflicts of
law.
22. MISCELLANEOUS. The rights and remedies herein
expressed are cumulative and not exclusive of any other
rights which any Bank would otherwise have. Any instruments
required by any of the provisions hereof to be in the form
annexed hereto as an exhibit shall be substantially in such
form with such changes therefrom, if any, as may be approved
by the Banks and the Company. The captions in this
Agreement are for convenience of reference only and shall
not define or limit the provisions hereof. This Agreement
or any amendment may be executed in separate counterparts,
each of which when so executed and delivered shall be an
original, but all of which together shall constitute one
instrument. In proving this Agreement, it shall not be
necessary to produce or account for more than one such
counterpart.
23. ENTIRE AGREEMENT, ETC. This Agreement and any
other documents executed in connection herewith or therewith
express the entire understanding of the parties with respect
to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, except as
provided in 24.
24. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as
otherwise expressly set forth in any particular provision of
this Agreement, any consent or approval required or
permitted by this Agreement to be given by the Banks may be
given, and any term of this Agreement or of any other
instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Company of
any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or
prospectively) with, but only with, the written consent of
the Company and the Majority Banks, provided, however, that:
(a) Without the written consent of such Banks as
hold 100% of the aggregate principal amount of the Maximum
Commitment,
(i) no reduction in the principal amount of,
interest rate on, or Facility Fee or any other fee
relating to the Commitments or the Advances shall be
made;
(ii) no extension or postponement of the stated
time of payment of the principal amount of, interest
on, or Facility Fee or any other fee relating to the
Commitments or the Advances shall be made;
(iii) no increase in the amount, or extension
of the term, of the Commitment beyond those provided
for hereunder shall be made;
(iv) no change in the definition of the term
"Majority Banks" shall be made; and
(v) no change in the language of this 24 shall
be made.
No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of any
Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to
or demand upon the Company shall entitle the Company to
other or further notice or demand in similar or other
circumstances.
25. PARTICIPATIONS. Any Bank may, without the consent
of any other party, sell participations to one or more banks
or other entities (each a "Participant") in all or a portion
of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and its Advances); provided that (i) such Bank's
obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the Company, the Agent, and the Banks shall continue
to deal solely and directly with such Bank, as the case may
be, in connection with such Bank's rights and obligations
under this Agreement and (iv) each participation shall be in
a minimum amount of $5,000,000. No Bank shall grant any
Participant the right to vote or otherwise act in respect to
any matter related to this Agreement except that such rights
may be granted with respect to amendments or waivers related
to the reduction of principal or the reduction of the rate
of interest or a change in Facility Fees or the
postponement of the date fixed for any payment of principal
or interest, if such right to vote or otherwise act with
respect to such amendments or waivers is provided for by the
terms of the agreement governing such participation
interest; provided, however, that the Company shall not be
obligated to communicate directly or indirectly with any
Participant with respect to this Agreement or the
transactions contemplated hereby.
26. EXPENSES; INDEMNIFICATION. Whether or not the
transactions contemplated hereby shall be consummated, the
Company will pay (a) the reasonable cost of (i) reproducing
this Agreement and other instruments mentioned herein and
(ii) any taxes payable by any Bank (including any interest
and penalties in respect thereof but other than taxes based
upon such Bank's net income or profits) and any filing fees
payable by the Agent, on or with respect to the transactions
contemplated by this Agreement (the Company hereby agreeing
to indemnify each Bank with respect thereto); (b) the
reasonable fees, expenses and disbursements of the Agent's
special counsel (Gadsby & Hannah LLP incurred in connection
with the preparation of this Agreement and other instruments
mentioned herein, each closing hereunder, amendments,
modifications, approvals, consents or waivers hereto or
hereunder; (c) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and costs) incurred by
Fleet National Bank in connection with the syndication of
the loan and by the Banks in connection with (i) the
enforcement of this Agreement, the Notes and the other Loan
Documents against the Company or the administration thereof
after the occurrence of an Event of Default and (ii) in
connection with any litigation, proceeding or dispute
whether arising hereunder or otherwise, in any way related
to any Bank's relationship with the Company hereunder. The
Company further agree to indemnify and hold harmless any
Bank as well as each Bank's shareholders, directors, agents,
officers, subsidiaries and affiliates ("Indemnified
Parties"), from and against all claims, actions or causes of
action ("Claims") (including without limitation all damages,
losses, settlement payments, liabilities, reasonable costs
and expenses related to such Claims), incurred, suffered,
sustained or required to be paid by an Indemnified Party by
reason of or resulting from the transactions contemplated
hereby, except any of the foregoing which result from gross
negligence or willful misconduct of the indemnified party;
provided, that each Bank agrees not to settle any litigation
in connection with any claim or liability with respect to
which such Bank may seek indemnification hereunder without
the prior written consent of the Company, which consent
shall not be unreasonably withheld or delayed. In any
investigation, proceeding or litigation, or the preparation
therefor, the Banks shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the
Company agrees to pay promptly the reasonable fees and
expenses of such counsel, provided, however, that the
Company shall be required to bear the expense of only one
counsel for all of the Banks unless (i) in the written
opinion of counsel to the Agent, use of only one counsel
could reasonably be expected to give rise to a conflict of
interest or (ii) the Company authorize any Bank to employ
separate counsel (including the in-house counsel of the
applicable Bank) at the Company's expense. The covenants of
this 26 shall survive payment or satisfaction of payment of
amounts owing with respect to the Notes.
27. HEADINGS; CONSTRUCTION. Headings of the sections
have been inserted as a matter of convenience only and shall
not control or affect the meaning or construction of any of
the terms and provisions hereof.
28. WAIVER OF JURY TRIAL. THE COMPANY HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF WHICH RIGHTS AND OBLIGATIONS. EXCEPT AS
PROHIBITED BY LAW AND EXCEPT IN THE CASE OF GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, THE COMPANY HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED
TO IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. THE COMPANY (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
BANK OR THE AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH BANK OR THE AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE BANKS HAVE ENTERED INTO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS TO WHICH THE
COMPANY IS A PARTY IN RELIANCE ON, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
[remainder of page intentionally left blank]
Signed, sealed and delivered, as of the date set forth
at the beginning of this Agreement, by the Company and each
of the Banks.
THE COMPANY:
COLONIAL GAS COMPANY
[Corporate Seal] By: s/Dennis W. Carroll
Vice President and Treasurer
Attest:
THE BANKS:
THE BANK OF NEW YORK
By: s/John W. Hall
Title: Vice President
The Bank of New York
One Wall Street, 19th Floor
New York, NY 10286
Attention: John Hall
UNION BANK OF CALIFORNIA, N.A.
By: s/Karyssa M. Britton
Title: Vice President
Union Bank of California, N.A.
445 S. Figueroa Street
Los Angeles, CA 90071
Attention: Karyssa M. Britton
CORESTATES BANK, N.A.
By: s/Tony Braxton
Title: Vice President
CoreStates Bank, N.A.
1339 Chestnut Street
Philadelphia, PA 19107
Attention: Tony Braxton
FIRST UNION NATIONAL BANK
By: s/Michael J. Kolosowsky
Title: Vice President
First Union National Bank
301 S. College Street, 31st
Floor
Charlotte, NC 28288
Attention: Legal Division
FLEET NATIONAL BANK
By: s/Thomas L. Rose
Title: Vice President
Fleet National Bank
One Federal Street
Boston, Massachusetts 02211
Attention: Thomas L. Rose,
Vice President
THE CO-AGENT:
THE BANK OF NEW YORK
By: s/John W. Hall
Title: Vice President
The Bank of New York
One Wall Street, 19th Floor
New York, NY 10286
Attention: John Hall
THE AGENT:
FLEET NATIONAL BANK, as Agent
By: s/Thomas L. Rose
Title: Vice President
Fleet National Bank
One Federal Street
Boston, Massachusetts 02211
Attention: Thomas L. Rose,
Vice President
EXHIBIT A-1
REVOLVING CREDIT NOTE
[$________] September ___, 1997
FOR VALUE RECEIVED, the undersigned Colonial Gas
Company, a Massachusetts corporation (the "Company"), hereby
absolutely and unconditionally promises to pay to the order
of [ ] (the "Bank") at the head
office of Fleet National Bank, as Agent (the "Agent"), at
One Federal Street, Boston, Massachusetts 02211:
(a) on September___, 1998, the principal amount
of [____________ ($_________)] or, if less, the
aggregate unpaid principal amount of Advances made by
the Bank to the Company pursuant to the Credit
Agreement (as hereinafter defined); and
(b) interest on the principal from time to time
outstanding from the date hereof through and including
the date on which such principal amount is paid in
full, at the times and at the rates provided in the
Revolving Credit Agreement dated as of September___,
1997, as amended or supplemented from time to time (the
"Credit Agreement"), by and among the Company, the Bank
and such other banks or financial institutions that are
or may become parties to the Credit Agreement from time
to time in accordance with the provisions thereof (the
Bank and such other banks being collectively referred
to as the "Banks") and the Agent, as agent for the
Banks.
This Note evidences borrowings under, is subject to the
terms and conditions of, and has been issued by the Company
in accordance with the terms of the Credit Agreement, and is
one of the Revolving Credit Notes referred to therein. The
Bank and any holder hereof is entitled to the benefits of
the Credit Agreement and may enforce the agreements of the
Company contained therein, and any holder hereof may
exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance
with the respective terms thereof. All capitalized terms
used in this Note and not otherwise defined herein shall
have the same meanings herein as in the Credit Agreement.
The Bank shall, and is hereby irrevocably authorized by
the Company to, endorse on the schedule attached to this
Note or a continuation of such schedule attached hereto and
made a part hereof, an appropriate notation evidencing
advances and repayments of principal of this Note, provided
that failure by the Bank to make any such notations shall
not affect any of the Company's obligations or the validity
of any repayments made by the Company in respect of this
Note.
The Company has the right in certain circumstances and
the obligation under certain other circumstances to prepay
the whole or part of the principal of this Note on the terms
and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall
occur, the entire unpaid principal amount of this Note and
all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect
provided in the Credit Agreement.
The Company and every endorser and guarantor of this
Note or the obligation represented hereby waive presentment,
demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension
or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of
collateral and to the addition or release of any other party
or person primarily or secondarily liable.
This Note shall be deemed to take effect as a sealed
instrument under the laws of the Commonwealth of
Massachusetts and for all purposes shall be construed in
accordance with such laws.
IN WITNESS WHEREOF, Colonial Gas Company has caused
this Note to be signed by its duly authorized officer as of
the day and year first above written.
COLONIAL GAS COMPANY
[Corporate Seal]
By:
Title:
Amount of
Principal Balance of
Amount of Paid or Principal Notation
Date Loan Prepaid Unpaid Made By
EXHIBIT A-2
COMPETITIVE BID NOTE
[$ ] [ , 199 ]
FOR VALUE RECEIVED, the undersigned, Colonial Gas
Company, a Massachusetts corporation (the "Company"), hereby
promises to pay to the order of [_______________] (the
"Bank"), at the office of Fleet National Bank, as Agent (the
"Agent") at One Federal Street, Boston, Massachusetts 02211,
on [ , 199 ], pursuant to 3 of the Credit Agreement
dated as of September __, 1997, as amended, among the
Company, the Banks named therein and the Agent (the "Credit
Agreement"), the principal sum of Dollars
($ ) and to pay interest on the unpaid principal
amount outstanding from time to time at the rate of % per
annum, payable on the last day of and on the Maturity
Date, at said office, in lawful money of the United States
of America in immediately available funds.
The Company promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law,
overdue interest at a rate or rates determined as set forth
in the Credit Agreement.
This Competitive Bid Note evidences borrowings under,
is subject to the terms and conditions of, and has been
issued by the Company in accordance with the terms of the
Credit Agreement, and is one of the Competitive Bid Notes
referred to therein. The Bank and any holder hereof is
entitled to the benefits of the Credit Agreement and may
enforce the agreements of the Company contained therein, and
any holder hereof may exercise the respective remedies
provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Competitive Bid
Note and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.
The Company has the right in certain circumstances and
the obligation under certain other circumstances to prepay
the whole or part of the principal of this Competitive Bid
Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall
occur, the entire unpaid principal amount of this
Competitive Bid Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the
manner and with the effect provided in the Credit Agreement.
The Company and every endorser and guarantor of this
Competitive Bid Note or the obligation represented hereby
waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this
Competitive Bid Note, assent to any extension or
postponement of the time of payment or any other indulgence,
to any substitution, exchange or release of collateral and
to the addition or release of any other party or person
primarily or secondarily liable.
This Competitive Bid Note shall be deemed to take
effect as a sealed instrument under the laws of the
Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IN WITNESS WHEREOF, Colonial Gas Company has caused
this Competitive Bid Note to be signed by its duly
authorized officer as of the day and year first above
written.
COLONIAL GAS COMPANY
[Corporate Seal]
By:
Title:
EXHIBIT B
NOTICE OF BORROWING
FLEET NATIONAL BANK
As Agent for the Banks which are parties
to the Revolving Credit Agreement
referred to below
One Federal Street
Boston, MA 02211
Attention: Thomas L. Rose
Vice President, National Utilities Group
Ladies and Gentlemen:
The undersigned Colonial Gas Company (the "Company")
refers to the Revolving Credit Agreement, dated as of
September __, 1997 (the "Credit Agreement", the terms
defined therein being used herein as therein defined), among
the Company, certain Banks parties thereto, and FLEET
NATIONAL BANK, as Agent for said Banks, and hereby gives you
notice pursuant to 2.2 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed
Borrowing") as required by 2.2 of the Credit Agreement:
(i) The requested Business Day of the Proposed
Borrowing is , 19 ;
(ii) The requested Type of Advances comprising the
Proposed Borrowing is [Base Rate Advances] [Eurodollar
Advances];
(iii) [In the case of Eurodollar Advances:] such
Advances shall have a [one (1) month], [two (2) months],
[three (3) months], [six (6) months], initial Interest
Period therefor;] and
(iv) The aggregate amount of the Proposed Borrowing is
[$ ].
Very truly yours,
COLONIAL GAS COMPANY
By
Title:
EXHIBIT C
FORM OF COMPETITIVE BID QUOTE REQUEST
[Date]
To: Fleet National Bank, as Agent (the "Agent")
From: Colonial Gas Company (the "Borrower")
Re: Revolving Credit Agreement (the "Credit Agreement")
dated as of September __, 1997 among Colonial Gas
Company, the Banks party thereto and the Agent.
We hereby give notice pursuant to 3.1(b) of the Credit
Agreement that we request Competitive Bid Quotes for the
following proposed Competitive Bid Borrowing(s):
Date of Borrowing:
Principal Amount* Interest Period** Maturity Date
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Terms used herein have the meanings assigned to them in
the Credit Agreement.
COLONIAL GAS COMPANY
By
Title:
* Amount must be a minimum of $2,500,000 or any larger
multiple of $500,000.
** 7 to 180 days, subject to the provisions of the
definition of Interest Period.
EXHIBIT D
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
Colonial Gas Company (the "Borrower")
Pursuant to 3.1(c) of the Revolving Credit Agreement
(the "Credit Agreement") dated as of September __, 1997
among Colonial Gas Company, the Banks parties thereto and
Fleet National Bank, as Agent, we are pleased on behalf of
the Borrower to invite you to submit Competitive Bid Quotes
to the Borrower for the following proposed Competitive Bid
Borrowing(s):
Date of Borrowing:
Principal Amount Interest Period Maturity Date
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Please respond to this invitation by no later than
* a.m. (Boston time) on [date].
FLEET NATIONAL BANK, as
Agent
By:
Authorized Officer
* The time specified in Section 3.1(d)(i) of the Credit
Agreement.
EXHIBIT E
FORM OF COMPETITIVE BID QUOTE
FLEET NATIONAL BANK, as Agent
One Federal Street
Boston, Massachusetts 02211
Attention:
Re: Competitive Bid Quote to Colonial Gas Company (the
"Borrower")
In response to your invitation on behalf of the
Borrower dated , 19 , we hereby make
the following Competitive Bid Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing: *
4. We hereby offer to make Competitive Bid Advance(s) in
the following principal amounts, for the following
Interest Periods and at the following rates:
Principal Interest Competitive Bid Maturity
Amount** Period*** Rate**** Date
$
$
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable
conditions set forth in the Revolving Credit Agreement dated
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Bids must be made
for $2,500,000 or any larger multiple of $1,000.
*** 7 to 180 days, as specified in the related Invitation.
**** Specify rate of interest per annum (each rounded to the
nearest 1/10,000th of 1%).
as of September __, 1997 among Colonial Gas Company, the
Banks, the parties thereto, and Fleet National Bank, as
Agent, irrevocably obligates us to make the Competitive Bid
Advance(s) for which any offer(s) are accepted in whole or
in part by the Borrower.
Very truly yours,
[NAME OF BANK]
Dated: By:
Authorized Officer
EXHIBIT F
[BORROWERS' COUNSEL LETTERHEAD]
September __, 1997
To: The Banks party to the credit agreements
referred to below (the "Credit Agreements")
and Fleet National Bank, as Agent for such Banks
Ladies & Gentlemen:
We have acted as counsel to Colonial Gas Company (the
"Utility"), a corporation organized under the laws of The
Commonwealth of Massachusetts, and Massachusetts Fuel
Inventory Trust (the "Trust"), a trust organized under the
laws of The Commonwealth of Massachusetts, in connection
with the preparation, execution and delivery of the
following documents and the transactions contemplated
thereby:
(i) The Trust Agreement dated as of June 26, 1990
(the "Trust Agreement") between State Street Bank and
Trust Company, as successor trustee, and the Utility.
(ii) The Revolving Credit Agreement dated as of
September __, 1997 (the "Credit Agreement"), by and
among the Utility, The Bank of New York, Union Bank of
California, N.A., CoreStates Bank, N.A., First Union
National Bank and Fleet National Bank (the "Banks") and
Fleet National Bank as Agent for the Banks (the
"Agent") and The Bank of New York as Co-Agent for the
Banks.
(iii) The Revolving Credit Agreement dated as
of June 26, 1990 (the "Trust Credit Agreement") by and
among Massachusetts Fuel Inventory Trust acting by and
through its trustee Shawmut Bank, N.A. (the "Trustee"),
the Banks and the Agent.
(iv) The Security Agreement and Assignment of
Contracts dated as of September __, 1997 (the "Security
Agreement"), between the Trustee and the Agent.
(v) The Purchase Contract dated as of June 26,
1990 (the "Purchase Contract") between the Trust and
the Utility.
(vi) The Consent and Agreement dated as of
September __, 1997 (the "Consent"), by the Utility.
(vii) The Notes dated the date hereof (the
"Notes"), executed by the Utility under the Colonial
Credit Agreement or the Trust under the Trust Credit
Agreement and each payable to the order of one of the
Banks.
This opinion is given pursuant to 6.1(c) of the
Colonial Credit Agreement and 7.1(c) of the Trust Credit
Agreement. Except as otherwise defined herein, all terms
defined in the Credit Agreement shall have the respective
meanings ascribed to them therein.
In connection with our preparation of this opinion, we
have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of
the Loan Documents, the charter documents and by-laws of the
Utility, resolutions of the Board of Directors of the
Utility (certified copies of which have been furnished to
you), the Trust Agreement and such other documents as we
have deemed necessary in connection with the opinions
hereinafter set forth. We have relied as to various
questions of fact upon the representations and warranties of
the Utility contained in the above-mentioned documents and
the certificates of public officials and officers of the
Utility delivered thereunder.
We have assumed due authorization and execution of all
agreements referred to herein by the parties thereto other
than the Utility and the Trust. We have also assumed the
genuineness of all signatures (other than those on behalf of
the Utility and the Trust), the conformity to the originals
of all documents reviewed by us as copies, and the
authenticity and completeness of all original documents
reviewed by us in original or copy form.
Our opinions expressed in paragraphs 5 and 11 hereof
are qualified by the fact that if the Agent or one or more
of the Banks should acquire gas which is part of the
Collateral (as defined in the Security Agreement) by
foreclosure or otherwise and intends to dispose of such gas
in The Commonwealth of Massachusetts, any contract or
contracts for the sale of such gas might have to be filed
and might be subject to action by the DPU relative to the
rates, prices, charges and practices covered by such
contract. Additionally, if such Collateral should be
purchased by a Massachusetts gas company under a contract
covering a period in excess of more than one year, either
DPU approval or a provision in the contract subjecting the
price of the Collateral to future DPU review will be
required.
Based upon the foregoing, and subject to the
limitations and qualifications set forth below, we are of
the opinion that:
1. The Utility is a corporation duly organized,
validly existing and in good standing under the laws of The
Commonwealth of Massachusetts; has not failed to qualify to
transact business in any jurisdiction where failure to
qualify would materially adversely affect its ability to
perform its obligations under any of the Loan Documents to
which it is a party; and has corporate power to execute and
deliver each of the Loan Documents to which it is a party
and to incur and perform its obligations thereunder.
2. The making and performance by the Utility of each
of the Loan Documents to which it is a party have been duly
authorized by all necessary corporate action and do not and
will not violate any provision of law or of its charter or
by-laws or result in the breach of or constitute a default
under or require any consent under any indenture or other
agreement or instrument of which we are aware (after having
made a reasonable investigation with respect thereto) to
which the Utility is a party or by which the Utility or its
properties and assets may be bound or affected.
3. Except for matters described or referred to in
Schedule 8.7 of the Colonial Credit Agreement or Schedule
9.7 of the Trust Credit Agreement, there are no actions,
suits or proceedings at law or in equity by or before any
governmental agency or authority or arbitrator now pending
or, to the best of our knowledge (after having made a
reasonable investigation with respect thereto), threatened
against or affecting the Utility or the Trust which, if
adversely determined, could materially adversely affect the
obligations of the Utility or the Trust to carry out the
transactions contemplated by the Loan Documents. In
rendering the opinion expressed in this paragraph 3, with
your permission we have made no independent review of any
court's docket.
4. Each Loan Document to which the Utility is a party
constitutes a legal, valid and binding obligation of the
Utility, enforceable against the Utility in accordance with
its terms subject, as to enforceability, to applicable
bankruptcy, insolvency, moratorium and other similar laws
affecting creditors rights generally and to general
principals of equity.
5. No government approval is required for the due
execution, delivery and performance by the Utility and the
Trust of their respective obligations, and the exercise of
their respective rights, under the Loan Documents or for the
grant by the Utility and the Trust of the security interests
and assignments granted by the Loan Documents or for the
validity and enforceability thereof or for the perfection or
the exercise by the Agent of its rights and remedies
thereunder except the order of the DPU dated June , 1990,
which order has been duly obtained. There is no proceeding
pending, or to the best of our knowledge (after having made
a reasonable investigation with respect thereto) threatened,
which seeks, or may reasonably be expected, to rescind,
terminate, modify or suspend the aforesaid order.
6. The security interest granted to you under the
Security Agreement in the Collateral, as defined therein,
has been duly created with respect to those items and types
of Collateral in which a security interest may be created
under Article 9 of the Uniform Commercial Code of those
jurisdictions in which the Collateral is located (in each
case, the "UCC"), and financing statements relating to such
security interest have been duly filed pursuant to the UCC
with the Massachusetts Secretary of State and the Boston
City Clerk; the New York Department of State and the
Allegheny County Registry of Deeds; the Pennsylvania
Secretary of State and the Potter County Prothonotary; and
the West Virginia Secretary of State and the ________ County
Clerk, which are the only actions necessary to perfect such
security interest in the right, title and interest of the
Trust in those items and types of Collateral in which a
security interest may be perfected by filing a financing
statement under the UCC. We call your attention, however,
to the necessity of filing continuation statements or
amendments from time to time or under certain circumstances
under the applicable provisions of the UCC in order to
maintain such perfection. At the time of a search made
within ( ) days of the date hereof in the
offices of [recite locations searched], the Collateral was
subject to no liens or security interests properly recorded
or filed in such filing offices showing the Trust or the
Utility as debtor, except . Capitalized terms used in this
paragraph 6 have the meanings ascribed to them in the
Security Agreement.
7. The Trust is a trust validly existing under the
laws of The Commonwealth of Massachusetts and has the legal
capacity to enter into, and to perform its obligations
under, each of the Loan Documents to which it is or is
intended to be a party and all other instruments and
agreements to be executed and delivered by it thereunder.
8. Each of the Trust Credit Agreement, the Security
Agreement and the Trust Agreement constitutes, and each of
the other Loan Documents to which the Trust is a party or to
which the Trust is contemplated to become a party from time
to time pursuant to the Trust Credit Agreement, when
executed and delivered, will constitute the legal, valid and
binding obligation of the Trust, enforceable against the
Trust in accordance with its respective terms, subject, as
to enforceability, to applicable bankruptcy, insolvency,
moratorium and other similar laws affecting creditors'
rights generally and to general principals of equity.
9. All capitalized terms in this paragraph 9 have the
meanings ascribed to them in the Security Agreement. The
Storage Facility Agreements pursuant to which Fuel is or is
to be stored in facilities under the control of Persons
(other than the Utility) which have agreed with the Utility
to store such Fuel constitute legal, valid and binding
obligations of the Utility, and such Storage Facility
Agreements do not restrict the performance by the Trust or
the Utility of each Loan Document to which they are parties
or prohibit the authorization by the Utility of the Trust or
its designee to give instructions, and take other action
pursuant to such agreements, contained in 3(d) of the
Purchase Contract.
10. By reason of the transactions contemplated by the
Loan Documents, neither the Trust, the Trustee, the Agent
nor any Bank will become, or will be declared by the SEC to
be, or with the passage of a specific period of time will
become, a "public utility company" as defined in the Public
Utility Holding Company Act of 1935, as amended, or any
successor provision thereto, and neither the Trust, the
Trustee, the Agent nor any Bank or the shareholders of any
of the Trust, the Agent or any Bank, or any partner, officer
or employee of any of them, will become, or with the passage
of a specific period of time will become, subject to
regulation under said Act.
11. Under existing law neither the Trust, the Trustee,
the Agent nor any Bank will become, by reason of the
transaction contemplated by the Loan Documents, a "gas
company" as defined in section 1 of Chapter 164 of the
Massachusetts General Laws as now in effect, nor will any of
them or the shareholders of any of them become subject to
regulation under the laws of the Commonwealth of
Massachusetts governing public utilities or public service
companies.
We do not herein express any opinion as to matters
governed by any laws other than the laws of The Commonwealth
of Massachusetts and the Federal Law of the United States.
To the extent the laws of the State of New York, the
Commonwealth of Pennsylvania and the State of Rhode Island
are relevant to our opinions herein expressed, we have
relied on the following opinions rendered to us of even date
herewith, a copy of which has been furnished to you: [LIST]
With respect to the Natural Gas Act and the Federal
Power Act, we have relied on the opinion of even date
herewith of ________________
Very truly yours,
EXHIBIT G
COLONIAL GAS COMPANY
Compliance Certificate Under
Revolving Credit Agreement
Dated September __, 1997
On behalf of Colonial Gas Company, a Massachusetts
corporation (the "Company"), the undersigned [Insert Name],
the duly elected and qualified [Insert appropriate title:
any one of the (a) President (b) Chief Financial Officer (c)
Chief Accounting Officer (d) Treasurer] of the Company
hereby certifies as of the date hereof the following:
1. No Defaults. I have read a copy of the Revolving
Credit Agreement dated September __, 1997 (the "Agreement")
among the Company and the Banks named therein and, to the
best of my knowledge and belief, the Company is not in
default in the performance or observance of any of the
covenants, terms or provisions of the Agreement or the
covenants, terms or provisions of the Notes issued pursuant
thereto. [If the Company shall be in default, the signer of
this certificate shall specify all such Defaults and the
nature thereof, of which he or she may have knowledge.]
Attached hereto is Schedule A, on which are set forth all
relevant calculations needed to determine whether the
Company is in compliance with 11.8 and 11.9 of the
Agreement, which calculations are based on the financial
statements of the Company's most recent fiscal quarter
required to be supplied under the Agreement. I have no
knowledge of the occurrence of any event since the date of
such financial statements which would render this
Certificate incorrect as of the date hereof.
2. No Material Changes, Etc. Since [December 31,
1996] [or insert the date of the last certificate issued
pursuant to 10.3(c) of the Agreement], there have occurred
no Material Adverse Changes in the financial condition or
business of the Company and its Subsidiaries as shown on or
reflected in the consolidated balance sheet of the Company
and its Subsidiaries as of [December 31, 1996] [or insert
the date of the most recent audited financials of the
Company], other than changes disclosed in writing and shown
on Schedule B hereto, and changes in the ordinary course of
business which have not had any material adverse effect on
the business or financial condition of the Company and its
Subsidiaries taken as a whole.
3. Litigation. Except as set forth on Schedule C
hereto, there are no actions, suits, proceedings or
investigations of any kind pending against the Company or
any Subsidiary before any court, tribunal or administrative
agency or board which, if adversely determined, might,
either in any case or in the aggregate, materially adversely
affect the properties, assets, financial condition or
business of the Company and its Subsidiaries considered as a
whole or materially impair the right of the Company and its
Subsidiaries considered as a whole to carry on business
substantially as now conducted, or result in any substantial
liability not adequately covered by insurance, or which
question the validity of the Agreement or the Notes, or any
action taken or to be taken pursuant hereto or thereto.
4. No Materially Adverse Contracts, Etc. Except as
set forth on Schedule D hereto, neither the Company nor any
of its Subsidiaries is (i) subject to any charter, corporate
or other legal restriction or any judgment, decree, order,
rule or regulation which in the judgment of the Company has
or is expected in the future to have a materially adverse
effect on the business, assets or financial condition of the
Company and its Subsidiaries as a whole, or (ii) a party to
any contract or agreement which in the judgment of the
Company has or is expected to have any materially adverse
effect on the business of the Company and its Subsidiaries
as a whole, except as otherwise reflected in adequate
reserves.
5. Tax Status. The Company and its Subsidiaries have
made or filed all federal and state income and, to the best
of my knowledge, all other tax returns, reports and
declarations required by any jurisdiction to which any of
them are subject; and have paid all taxes and other
governmental assessments and charges that are material in
amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in
good faith; and have set aside on their books provisions
reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes, except those
being contested in good faith, in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and I know of no basis for any such claim.
COLONIAL GAS COMPANY
By
Title
Execution Copy
REVOLVING CREDIT AGREEMENT
by and among
MASSACHUSETTS FUEL INVENTORY TRUST
(the "Trust"),
FLEET NATIONAL BANK, as Agent
(the "Agent"),
THE BANK OF NEW YORK, as co-agent
(the "Co-Agent")
and
THE BANK OF NEW YORK,
UNION BANK OF CALIFORNIA, N.A.,
CORESTATES BANK, N.A.,
FIRST UNION NATIONAL BANK
and
FLEET NATIONAL BANK
(collectively, the "Banks"),
$30,000,000
September 12, 1997
TABLE OF CONTENTS
Section Page
1. DEFINITIONS
2. THE REVOLVING CREDIT ADVANCES
2.1. The Revolving Credit Advances
2.2. Making the Advances
3. COMPETITIVE BID ADVANCES
3.1. Competitive Bid Borrowings
3.2. Interest on Competitive Bid Advances
3.3. Competitive Bid Notes
4. CONVERSION, INTEREST, PAYMENTS AND COSTS
4.1. Conversion of Advances
4.2. Interest
4.3. Overdue Principal and Interest
4.4. Limitation on Interest
4.5. Interest Period and Rate Determination and
Protection
4.6. Increased Costs, Etc.
4.7. Illegality or Impossibility
4.8. Payment on Any Day Other Than The Last Day of an
Interest Period
4.9. Prepayments
4.10. Payments and Computations
4.11. Payment on Non-Business Days
4.12. Sharing of Payments, Etc.
5. COMMITMENTS
5.1. Amount of Commitment
5.2. Extension of Commitments
5.3. Commitment Fees
5.4. Reduction and Termination by the Trust
6. SECURITY
7. CONDITIONS OF FIRST LENDING
7.1. Documentation
7.2. Security Documents
7.3. Financial Statements
7.4. Representations and Warranties
7.5. Performance; No Default
7.6. Company Credit Agreement
7.7. Proceedings and Documents
7.8. Notice of Borrowing
8. CONDITIONS OF SUBSEQUENT BORROWINGS
8.1. Representations and Warranties
8.2. Performance; No Default
8.3. Notes in Full Force and Effect
9. REPRESENTATIONS AND WARRANTIES
9.1. Legal Existence and Good Standing, Etc.
9.2. Trust Power; Consents; Absence of Conflict with
Other Agreements, Etc.
9.3. Title to Properties; Leases
9.4. Financial Statements
9.5. No Material Changes, Etc.
9.6. Franchises, Patents, Copyrights, Etc.
9.7. Litigation
9.8. No Materially Adverse Contracts, Etc.
9.9. Compliance with Other Instruments,
Laws, Etc.
9.10. Tax Status
9.11. Absence of Security Interests, Etc.
9.12. Use of Proceeds
9.13. Pension Plan
9.14. Disclosure
9.15. Investment Company; Public Utility Holding
Company
9.16. Environmental Matters
10. EXEMPT CHARACTER OF TRANSACTION
11. AFFIRMATIVE COVENANTS
11.1. Punctual Payment
11.2. Maintenance of Office
11.3. Reports, Certificates and Other Information
11.4. Existence and Franchises
11.5. Payments of Taxes
11.6. Maintenance of Property
11.7. Books, Records and Inspections
11.8. Further Assurances
11.9. Securities Law, Etc. Compliance
11.10. Insurance
11.11. Payment of Indebtedness and Performance of
Obligations
11.12. Change of Trust Name
11.13. Enforcement of Fuel Purchase Contract
12. CERTAIN NEGATIVE COVENANTS
12.1. Debt
12.2. Liens
12.3. Guaranties, Loans or Advances
12.4. Investments
12.5. Other Agreements
12.6. Merger, Consolidation, or Sale of Assets
12.7. Leases
12.8. Debt Payments
12.9. Alterations to Trust Agreement
12.10. Alterations to Fuel Purchase Agreement
13. EVENTS OF DEFAULT; ACCELERATION
14. NOTICE AND WAIVERS OF DEFAULT
14.1. Notice of Default
14.2. Waivers of Default
15. REMEDIES ON DEFAULT, ETC.
15.1. Rights of Banks
15.2. Setoff
16. THE AGENT
16A. THE CO-AGENT
17. CONSENT TO JURISDICTION
18. BINDING EFFECT AND ASSIGNMENT
19. EXECUTION IN COUNTERPARTS
20. SURVIVAL OF COVENANTS, ETC.
21. NOTICE, ETC.
22. GOVERNING LAW
23. MISCELLANEOUS
24. ENTIRE AGREEMENT, ETC.
25. CONSENTS, AMENDMENTS, WAIVERS, ETC.
26. PARTICIPATIONS
27. EXPENSES; INDEMNIFICATION
28. CLAIMS AGAINST THE TRUSTEE
29. HEADINGS
30. WAIVER OF JURY TRIAL
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated as of September 12,
1997, by and among, MASSACHUSETTS FUEL INVENTORY TRUST, a
trust organized under the laws of The Commonwealth of
Massachusetts, and created under the terms of the Trust
Agreement (as defined below), acting by and through its
Trustee, STATE STREET BANK AND TRUST COMPANY, (the "Trust"),
THE BANK OF NEW YORK, UNION BANK OF CALIFORNIA, N.A.,
CORESTATES BANK, N.A., FIRST UNION NATIONAL BANK and FLEET
NATIONAL BANK (collectively, the Banks"), THE BANK OF NEW
YORK, as co-agent for the Banks (the "Co-Agent"), and FLEET
NATIONAL BANK, as agent for the Banks (the "Agent").
1. DEFINITIONS. The following terms shall have the
meanings assigned to them below in this 1 or in the
provisions of this Agreement and the Exhibits hereto
referred to below:
Absolute Rate - a fixed rate of interest per annum
(computed on the basis of a 360-day year for the actual
number of days elapsed and expressed in decimals to 1/10,000
of 1%).
Advance - an advance by a Bank to the Trust (i)
pursuant to 2, whether a Base Rate Advance or Eurodollar
Rate Advance or (ii) pursuant to 3, a Competitive Bid
Advance (each of which shall be a Type of Advance).
Agent - has the meaning specified in the preamble.
Agent's Fee - has the meaning specified in 5.3(b).
Agent's Special Counsel - Gadsby & Hannah LLP of
Boston, Massachusetts, or such other counsel as may be
approved by the Agent.
Alternate Base Rate - for any day, will be the greater
of (i) the Base Rate announced from time to time by Fleet
National Bank at its head office in Boston as its base rate
or (ii) 1/2% per annum above the Federal Funds Effective
Rate in effect from time to time.
Applicable Eurodollar Rate Margin - on any date of
determination, the percentage per annum set forth below
opposite the Company's Standard & Poors Rating on such date;
provided, that if no Standard & Poors Rating is in effect on
any such date, the Applicable Eurodollar Rate Margin shall
be the highest Applicable Eurodollar Rate Margin set forth
below (and in the event the Company wishes to designate
another nationally recognized rating service in addition to
or other than Standard & Poors Rating Group, the Trust and
the Banks will negotiate in good faith to amend the schedule
set forth below to take account of such new or additional
rating; provided, that until agreement on such amendment is
reached, the last effective rating of Standard & Poors shall
be deemed to continue in effect for purposes of determining
the Applicable Eurodollar Rate Margin):
Standard & Poors Applicable Eurodollar
Rating Rate Margin
A 0.180%
A- 0.200%
BBB+ 0.250%
BBB 0.335%
less than BBB 0.425%
Applicable Facility Fee Rate - on any date of
determination, the percentage per annum set forth below
opposite the Company's Standard & Poors Rating on such date;
provided, that if no Standard & Poors Rating is in effect on
any such date, the Applicable Facility Fee Rate shall be the
highest Applicable Facility Fee Rate set forth below (and in
the event the Company wishes to designate another nationally
recognized rating service in addition to or other than
Standard & Poors, the Trust and the Banks will negotiate in
good faith to amend the schedule set forth below to take
account of such new or additional rating; provided, that
until agreement on such amendment is reached, the last
effective rating of Standard & Poors shall be deemed to
continue in effect for purposes of determining the
Applicable Facility Fee Rate):
Standard & Poors Applicable Facility
Rating Fee Rate
A 0.075%
A- 0.080%
BBB+ 0.950%
BBB 0.120%
less than BBB 0.200%
Applicable Lending Office - with respect to each Bank,
such Bank's Domestic Lending office in the case of a Base
Rate Advance or Competitive Bid Advance, and such Bank's
Eurodollar Lending Office(s) in the case of a Eurodollar
Advance.
Assessment Rate - for any Interest Period, the net
annual assessment rate (rounded upwards, if necessary, to
the next higher 1/100 of 1%) applicable to the Agent on its
insured deposits under the Federal Deposit Insurance Act,
determined by annualizing the most recent assessment levied
on the Agent by the Federal Deposit Insurance Corporation
(the "FDIC") with respect to such deposits.
Assignee - has the meaning set forth in 17.
Available Commitment - as of any date of determination,
the excess of (a) the Maximum Commitment over (b) the amount
by which the aggregate principal amount of advances
outstanding to the Company under the Company Credit
Agreement exceeds the difference between the Company's
Maximum Commitment (as defined in the Company Credit
Agreement) and the Maximum Commitment.
Banks - has the meaning specified in the preamble.
Base Rate Advance - an Advance which bears interest at
the Alternate Base Rate.
Borrowing - simultaneous Advances made hereunder to the
Trust by the Banks.
Boston - the City of Boston in The Commonwealth of
Massachusetts in the United States of America.
Business Day - (i) in the case of a Business Day which
relates to a Eurodollar Advance, any day of the year on
which banks are open for business in Boston, London, and New
York and on which dealings are carried on in the interbank
market and in the country where payment is to be made in the
currency of such Advances and (ii) in the case of a Business
Day which relates to a Base Rate Advance or Competitive Bid
Advance, any day of the year on which banks are open for
business in New York and Boston.
Capitalized Leases - leases in which the Trust is the
lessee and the future rental obligations of which are
reflected as a liability on the Trust's balance sheet in
accordance with GAAP.
Closing Date - the date of the First Lending.
Co-Agent - has the meaning specified in the preamble.
Collateral - has the meaning specified in 6.
Commitment - as to each Bank on any date of
determination, the Maximum Commitment then in effect times
the Commitment Percentage.
Commitment Percentage - as to each Bank on any date of
determination, the percentage figure set opposite such
Bank's name in 5.1(a).
Commodities - has the meaning specified for such term
in the Security Agreement.
Company - Colonial Gas Company, a Massachusetts
corporation.
Company Credit Agreement - the Revolving Credit
Agreement, of even date herewith, among the Company, the
Banks and the Agent, as amended and in effect from time to
time.
Competitive Bid Advance - an Advance made pursuant to
3 hereof by a Bank pursuant to a Competitive Bid Auction.
Competitive Bid Auction - a solicitation of Competitive
Bids setting forth Competitive Bid Rates pursuant to 3.
Competitive Bid Notes - has the meaning set forth in
3.3.
Competitive Bid Quote - an offer by a Bank to make a
Competitive Bid Advance in accordance with 3.
Competitive Bid Rate - has the meaning set forth in
3.1(d)(ii)(C).
Compliance Certificate - has the meaning specified in
11.3(c).
Consent and Agreement - has the meaning specified for
such term in the Security Agreement.
Convert, Conversion, and Converted - refers to
Conversion of Base Rate Advances or Eurodollar Rate Advances
into Advances of another Type pursuant to 4.1.
Cost - means, at any time as to Commodities of the same
type, the aggregate purchase price (including cost of
transportation and injection) paid by the Trust for such
type of Commodity, as determined, on a fungible basis, in
accordance with a generally accepted accounting method
consistently applied.
Debt - means at any time obligations under Capitalized
Leases and all obligations of the Trust evidenced by bonds,
debentures, letters of credit, notes or other similar
instruments and all other evidences of indebtedness of the
Trust (including, without limitation, indebtedness with
maturities of less than one year), created, issued,
guaranteed, incurred or assumed for money borrowed or for
the deferred (for a period materially in excess of the
Trust's present customary practices in similar transactions)
purchase price of property or services purchased, and any
other instrument or other arrangement which would be treated
as indebtedness under GAAP, excluding, however, accounts
payable (other than for borrowed money) and accrued costs
and expenses incurred in the ordinary course of business,
provided that the same are not overdue for 90 days or more
in a material amount or, if overdue for 90 days or more in a
material amount, are being contested in good faith and by
appropriate proceedings and reserves, which are adequate in
accordance with GAAP, have been set aside therefor.
Default(s) - has the meaning specified in 13.
Domestic Lending Office - with respect to any Bank, the
office of such Bank specified as its "Domestic Lending
Office" below its name on the signature pages hereof or such
other office or affiliate of such Bank as such Bank may from
time to time specify to the Trust and the Agent.
DPU - shall mean the Department of Public Utilities of
The Commonwealth of Massachusetts.
Environmental Law - any federal, state, or local
statutory or common law, ordinance, rule or regulation in
existence on the applicable date, relating to Hazardous
Materials (as defined herein), pollution or protection of
public health, safety or the environment, including without
limitation, any common law of nuisance or trespass; any law,
rule or regulation relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants
or chemicals, or industrial, toxic or hazardous substances
or waste into the environment (including without limitation,
ambient air, surface water, ground water, land surface or
subsurface strata) or otherwise relating to the presence,
generation, manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of
pollutants, contaminants or chemicals or industrial, toxic
or hazardous substances or wastes; and any law, rule or
regulation relating to solid waste, water quality, air
quality, wetlands protection, sanitary waste disposal, or
environmental impact review.
Environmental Notice - any summons, citation,
directive, information request, notice of potential
responsibility, notice of violation or deficiency, order,
claim, complaint, investigation, proceeding, judgment,
letter or other communication, written or oral, actual or
threatened, from the United States Environmental Protection
Agency or other federal, state or local agency or authority,
or any other entity or individual, public or private,
concerning any intentional or unintentional act or omission
which involves Management of Hazardous Substances on or off
any property owned or leased by Trust, any affiliate of
Trust or any guarantor of the Obligations; the imposition of
any lien on such property, including but not limited to
liens asserted by government entities in connection with
Responses to the presence or Release of Hazardous
Substances; and any alleged violation of or responsibility
under Environmental Laws.
ERISA - means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
Eurodollar Advance - shall mean any Advance which bears
interest at a rate determined by reference to the Eurodollar
Rate (Reserve Adjusted).
Eurodollar Lending Office - shall mean with respect to
any Bank the office of such Bank designated as such below
its name on the signature pages hereof or such other office
or offices of such Bank (as designated from time to time by
notice from such Bank to the Trust, the Company and the
Agent) which shall be making or maintaining the Eurodollar
Advances of such Bank hereunder or such other office or
offices through which such Bank determines its Eurodollar
Rate. A Eurodollar Office of any Bank may be, at the option
of such Bank, either a domestic office or foreign office
located within Europe, the Caribbean or the Bahamas.
Eurodollar Rate - with respect to any Eurodollar
Advance for any Interest Period, the rate per annum equal to
the average of the respective rates notified to the Agent by
the Reference Bank as the rate at which United States
dollars in immediately available funds are offered to the
Eurodollar Lending Office of the Reference Bank two Business
Days prior to the beginning of such Interest Period by prime
banks in any interbank market selected by the Reference Bank
at or about the relevant local time of such Eurodollar
Lending Office, for delivery on the first day of such
Interest Period, for the number of days comprised therein
and in an amount equal or comparable to the amount of the
Eurodollar Advance of the Reference Bank for such Interest
Period. As used herein, "relevant local time" as to any
Eurodollar Office shall mean 11:00 A.M., London time, when
such Eurodollar Lending Office is located in Europe, or
10:00 A.M., Boston time, when such Eurodollar Lending Office
is located in North America, the Caribbean or the Bahamas.
Eurodollar Rate (Reserve Adjusted) - with respect to
any Eurodollar Advance for any Interest Period, a rate per
annum equal to the sum of (i) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%)
determined pursuant to the following formula:
Eurodollar Rate* = Eurodollar Rate + Applicable Eurodollar
(Reserve Adjusted) Rate Margin
_______________________________________
1-Eurodollar Reserve Percentage
*To be rounded upwards, if necessary, to the next
higher 1/16 of 1%.
Eurodollar Reserve Percentage - shall mean, with
respect to each Interest Period, the percentage (expressed
as a decimal) equal to the daily average during such
Interest Period of the percentages in effect on each day of
such Interest Period as prescribed by the Board of Governors
of the Federal Reserve System (or any successor) for
determining reserve requirements applicable to "Eurodollar
Liabilities" pursuant to Regulation D or any other then
applicable regulation of the Board of Governors which
prescribes reserve requirements applicable to "Eurodollar
Liabilities" as presently defined in Regulation D.
Event(s) of Default - has the meaning specified in 13.
Facility Fee - has the meaning specified in 5.3(b).
Federal Funds Effective Rate - the weighted average of
the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal
funds brokers on such day, as published for the prior day by
the Federal Reserve Bank of Boston.
First Lending - the first Advance made to the Trust
hereunder.
Fuel Purchase Contract - the Purchase Contract, dated
as of June 27, 1990, between the Trust and the Company, as
amended and in effect on the Closing Date.
GAAP - in general, principles which are (a) consistent
with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors (or
successor organizations), in effect for the fiscal year of
the Trust ended December 31, 1996 and (b) such that
certified public accountants would, insofar as the use of
accounting principles is pertinent, be in a position to
deliver an unqualified opinion as to financial statements in
which such principles have been properly applied; provided,
however, that for purposes of the financial statements to be
delivered by the Trust pursuant to 11 hereof, GAAP shall
mean such principles as in effect for the periods covered by
such financial statements.
Guaranteed Pension Plan - means any pension plan
maintained by the Trust or to which it contributes, the
benefits under which are guaranteed in whole or in part by
the Pension Benefit Guaranty Corporation.
Hazardous Substance - any substance or material (i)
identified in Section 101(14) of CERCLA, 42 USC 9601(14)
and as set forth in Title 40, Code of Federal Regulations,
Part 302, as the same may be amended from time to time, or
(ii) determined to be or identified as toxic, a pollutant or
contaminant, or regulated as such under federal, state or
local statute, law, ordinance, rule, or regulation or
judicial or administrative order or decision, as same may be
amended from time to time. The term "Hazardous Substance"
as used herein shall also include any substance or material
presently or hereafter identified defined or treated as
toxic or hazardous in any manner according to any
Environmental Law, or, including, without limitation, any
oil, lead paint, herbicides, pesticides, asbestos,
polychlorinated biphenyls, radon, radioactive substance,
methane, volatile hydrocarbons, acids, pesticides, paints,
petroleum-based products, liquefied natural gas, gas in
vapor form, propane, lead, cyanide, DDT, printing inks and
industrial solvents..
Indemnified Party - has the meaning specified in 27.
Independent Accountant - a firm of independent public
accountants selected by the Board of Directors of the
Company, which is "independent" as that term is defined in
Rule 2-01 of Regulation S-X promulgated by the Securities
and Exchange Commission and is reasonably acceptable to the
Agent.
Interest Payment Date - (a) for any Eurodollar Advance,
the last day of each Interest Period for such Advance, (b)
for any Base Rate Advance any date when interest is due and
payable as provided in 4.2(a) hereof, and (c) for
Competitive Bid Advances, any date when interest is due and
payable as provided under 3.2 hereof.
Interest Period - (a) with respect to each
Eurodollar Advance comprising the same Borrowing:
(i) initially, the period (A) commencing on the
date of such Borrowing or, in the case of a Conversion
into Eurodollar Advances pursuant to 4.1, commencing
on the date of such Conversion and (B) ending one (1),
two (2), three (3), or six (6), months thereafter as
determined in accordance with the provisions of this
Agreement; and
(ii) thereafter, each subsequent Interest Period
for Eurodollar Advances shall begin on the last day of
the immediately preceding Interest Period for such
Advances and shall end one (1), two (2), three (3), or
six (6), months thereafter as the Trust may select
pursuant to 4.5; provided that (A) any such Interest
Period which would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding
Business Day unless such Business Day occurs in a new
calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (B)
any such Interest Period which begins on a day for
which there is no numerically corresponding day in the
calendar month during which such Interest Period is to
end shall end on the last Business Day of such calendar
month.
(b) With respect to each Base Rate Advance, the
period commencing on the date of such Advance and expiring
on the date when the Base Rate Advance is repaid or, as the
case may be, Converted to another Type of Advance.
(c) With respect to each Competitive Bid Advance,
the period commencing on the date of such Advance and ending
not less than 7 days and not more than 180 days thereafter,
as the Trust may elect in accordance with 3 hereof.
No Interest Period may be selected in respect to all or
any portion of any Advance (other than a Competitive Bid
Advance) which would expire on a date which occurs after the
Maturity Date for the then Outstanding Revolving Credit
Notes of the Trust and no Interest Period may be selected in
respect of all or any portion of any Advance which would
expire after the Termination Date or on a date which is not
a Business Day.
Loan Documents - collectively, this Agreement, the
Notes, the Security Documents, the Fee Letter and any other
documents or instruments required to be delivered by the
Trust pursuant hereto or thereto.
London - the City of London in England.
Majority Banks - at any time, the Bank or Banks holding
at least 66 2/3% of the aggregate unpaid principal amount of
the Advances (excluding Competitive Bid Advances), or, if no
Advances (excluding Competitive Bid Advances) are at the
time outstanding, having at least 66 2/3% of the aggregate
amount of the Commitments then in effect.
Manage or Management - to generate, handle,
manufacture, process, treat, store, use, re-use, refine,
recycle, reclaim, blend or burn for energy recovery,
incinerate, accumulate speculatively, transport, transfer,
dispose of, Release, threaten to Release or abandon
Hazardous Substances;
"Material Adverse Change" - a material adverse change
in the business, assets, liabilities, condition (financial
or otherwise), results of operations or business prospects
of (a) the Trust which would reasonably be expected to
render the Trust unable to perform its obligations under the
Loan Documents. The term "Material Adverse Change" shall
include, without limitation, any change in any law,
regulation, treaty or directive or in the interpretation or
application thereof by any Governmental Body charged with
the administration thereof or compliance by the Trust with
any request or directive from any Governmental Body the
result of which would have a Material Adverse Effect.
"Material Adverse Effect" - (a) with respect to any
Person (including, without limitation, the Trust), any
materially adverse effect on such Person's business, assets,
liabilities, condition (financial or otherwise), results of
operations or business prospects, (b) with respect to a
group of Persons "taken as a whole" (including, without
limitation, the Trust), any materially adverse effect on
such Persons' business, assets, liabilities, financial
conditions, results of operations or business prospects
taken as a whole on, where appropriate, a consolidated basis
in accordance with GAAP and (c) with respect to any of this
Agreement, the Note or the Security Documents, any adverse
effect, WHETHER OR NOT MATERIAL, on the binding nature,
validity or enforceability thereof as an obligation of the
Trust.
Maturity Date - has the meaning specified in 2.2(h).
Maximum Commitment - as of any date of determination,
the lesser of (a) $30,000,000 or (b) the amount to which the
Maximum Commitment may have been reduced pursuant to 5.4;
provided, that if the obligations of the Banks to make
further advances are terminated pursuant to 13, the Maximum
Commitment as of any date of determination thereafter shall
be deemed to be zero.
Monthly Report - has the meaning specified in 11.3(e).
Notes - collectively, the Revolving Credit Notes and
the Competitive Bid Notes.
Notice of Borrowing - has the meaning specified in
2.2(a).
Obligations - all indebtedness, obligations and
liabilities to the Banks, individually or collectively,
existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise of the Trust arising or
incurred under this Agreement or in respect of Advances made
or instruments at any time evidencing any of the foregoing.
Officer's Certificate - a certificate signed by the
President, Executive Vice President, any Senior Vice
President, the Vice President - Finance or Treasurer of the
corporation on whose behalf the certificate is executed.
Outstanding - when used with reference to the aggregate
balance of Advances, means and includes, as at any date of
determination, the unpaid principal amount of the Advances.
Pension Benefit Guaranty Corporation - the Pension
Benefit Guaranty Corporation created by 4002 of ERISA and
any successor entities having similar responsibilities.
Person - any individual, corporation (including a
business trust), partnership, trust, unincorporated
association, joint stock company, limited liability company,
limited liability partnership or other legal entity or
organization and any governmental agency or political
subdivision thereof.
Purchase Contract - shall mean the Fuel Purchase
Contract dated as of June 27, 1990, between the Trust and
the Company.
Reference Bank - Fleet National Bank.
Release - any actual or threatened spilling, leaking,
pumping, pouring, emitting, emptying, discharging,
injection, escaping, leaching, dumping or disposing of
Hazardous Substances into the environment, as that
"environment" is defined in CERCLA; and
Reserve Requirement - with respect to each Interest
Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the aggregate
reserve requirement (including all basic, supplemental,
marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in
reserve requirements during such Interest Period) specified
under Regulation D of the Board of Governors of the Federal
Reserve System, or any other regulation of the Board of
Governors which prescribes reserve requirements applicable
to nonpersonal time deposits as presently defined in
Regulation D, as then in effect, as applicable to the class
of banks of which Fleet National Bank is a member, on
deposits having a maturity approximately equal to such
Interest Period.
Respond or Response - any action taken pursuant to
Environmental Laws to correct, remove, remediate, clean up,
prevent, mitigate, monitor, evaluate, investigate or assess
the Release of a Hazardous Substance.
Revolving Credit Notes - has the meaning specified in
2.2(h).
Security Agreement - the Security Agreement and
Assignment of Contracts, of even date herewith, between the
Trust and the Agent, in substantially the form of Exhibit H
hereto.
Security Documents - the Security Agreement, the Fuel
Purchase Contract (as defined therein), the Consent and
Agreement (as defined therein) the Trust Agreement (as
defined therein) and any documents or instruments delivered
pursuant thereto to perfect the security interest of the
Agent created thereby.
Storage Fields - has the meaning specified for such
term in the Security Agreement.
Standard & Poors Rating - the rating announced from
time to time by Standard & Poors for the Company's bonds
issued under the Indenture (as defined in the Company Credit
Agreement).
Subsidiary - any corporation, association or other
business entity, a majority (by number of votes) of the
outstanding Voting Stock of which is at the time owned or
controlled by the Company or by one or more Subsidiaries of
the Company or by the Company and one or more Subsidiaries
of the Company or in any event which is included in the
Company's consolidated balance sheet.
Termination Date - the earlier of (a) September 11,
2000, or such later date to which the date of termination of
the Banks' obligations to make Advances hereunder shall be
extended in accordance with 5.2 hereof and (b) the date of
termination of this Agreement pursuant to 13.
Trust Agreement - the Trust Agreement, dated as of
June 22, 1990, between the Company, as Trustor, and State
Street Bank and Trust Company (as successor trustee to
Shawmut Bank, N.A.), as Trustee, as amended in accordance
with its terms and in effect from time to time.
Trust Borrowing Base - An amount equal to the "Total
Fuel Inventory" of the Trust as set forth on the "Analysis
of Fuel Inventory Accounts" of the Trust included in the
most recent Monthly Report.
Trustee - State Street Bank and Trust Company, the
successor trustee under the Trust Agreement.
Type of Advances - any one of the types of Advances
under this Agreement.
Voting Stock - capital stock or similar interests of
any class or classes (however designated), the holders of
which are at the time entitled, as such holders, to vote for
the election of the directors (or persons performing similar
functions) of the corporation, association or other business
entity involved, whether or not the right so to vote exists
by reason of the happening of a contingency.
Wholly Owned Subsidiary - any Subsidiary all of the
outstanding capital stock or other interest of which, other
than directors' qualifying shares and shares issued solely
for the purpose of satisfying local requirements concerning
the minimum number of shareholders, is owned by the Company,
directly or indirectly through a Wholly Owned Subsidiary.
All terms of an accounting character not specifically
defined herein shall have the meanings assigned thereto by
GAAP.
2. THE REVOLVING CREDIT ADVANCES.
2.1. The Revolving Credit Advances. Each Bank
severally agrees, on the terms and conditions hereinafter
set forth, to make Advances to the Trust from time to time
on any Business Day during the period from the date hereof
to the Termination Date in an aggregate amount (i) in the
case of each Bank not to exceed at any time the Outstanding
amount of such Bank's Commitment and (ii) in the case of all
of the Banks not to exceed at any time the Outstanding
amount of the Available Commitment, in each case, as such
amount may be reduced pursuant to 5.4. In no event shall
the aggregate outstanding principal balance of all Advances
to the Trust exceed the lesser of (A) $30,000,000 or (B) the
Trust Borrowing Base. In no event shall any Bank be
obligated to fund or maintain Advances in excess of such
Bank's Commitment. For each borrowing immediately following
receipt of the Monthly Report, the aggregate of all Advances
(including such borrowing) shall in no event be greater than
the Trust Borrowing Base as set forth in such Monthly
Report. At no time shall the aggregate number of
Outstanding Advances to the Trust hereunder and to the
Company under the Company Credit Agreement exceed the number
six (6).
Each Borrowing made by the Trust shall: (i) be in an
aggregate amount of not less than $500,000 (unless otherwise
specified herein) and (ii) consist of Advances of the same
Type made to the Trust on the same day by the Banks ratably
according to their respective Commitments. There is no
limit on the number of Borrowings that may be made on any
Business Day. Within the limits of the provisions of this
2.1, the Trust may borrow, prepay pursuant to 4.9 and
reborrow under this 2.1.
2.2. Making the Advances.
(a) Each Advance (other than Competitive Bid
Advances) shall be made on notice given not later than
10:00 A.M. (Boston time), (i) in the case of a Base Rate
Advance on the date of the proposed Borrowing or (ii) in the
case of a Eurodollar Rate Advance on the third Business Day
prior to the date of the proposed Borrowing, given to the
Agent from the Trust (a "Notice of Borrowing"). The Agent
shall give the Banks prompt notice of each Notice of
Borrowing and of each other notice received from the Trust
hereunder. Each such Notice of Borrowing shall be by
telephone, telecopy, telex or cable, in each case confirmed
immediately in writing by the Trust in substantially the
form of Exhibit B hereto, specifying therein (A) the
requested date of such Borrowing, (B) the requested Type of
Advances comprising such Borrowing, (C) in the case of a
Borrowing comprised of Eurodollar Rate Advances or
Eurodollar Advances, the initial Interest Period for such
Advances, and (D) the amount of such Borrowing (which must
be a minimum of $1,000,000 in the case of a Notice of
Borrowing requesting Eurodollar Advances).
(b) Each Bank shall, before 12:00 Noon (Boston
time) on the date of such Borrowing, subject to the terms
and conditions of this Agreement, make available for the
account of its Applicable Lending Office to the Agent at the
Agent's address referred to in 21 and in immediately
available funds such Bank's ratable portion of such
Borrowing. After the Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in 7 or
8, as the case may be, the Agent will credit such funds to
the Trust at such address or office.
(c) A Notice of Borrowing with respect to a
Eurodollar Advance shall be irrevocable and binding on the
Trust and, in respect of any Borrowing comprised of
Eurodollar Advances, the Trust shall indemnify each Bank
against any loss or expense incurred by such Bank as a
result of any failure of the Trust to borrow the amounts
requested on the date requested, including without
limitation, any loss, including lost profits, or expense
incurred by reason of the liquidation, reutilization or
reemployment of deposits or other funds acquired by any Bank
to fund or maintain a Eurodollar Advance to be made by such
Bank.
(d) Unless the Agent shall have received notice
from a Bank prior to the date of any Borrowing that such
Bank will not make available to the Agent such Bank's
ratable portion of such Borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on
the date of such Borrowing in accordance with and as
provided in this 2.2 and the Agent may, in reliance upon
such assumption, make available on such date a corresponding
amount to the Trust. If and to the extent such Bank shall
not have so made such ratable portion available to the Agent
and the Agent shall have made available such corresponding
amount to the Trust, such Bank agrees to pay to the Agent
forthwith on demand, and the Trust agrees to repay to the
Agent within two Business Days after demand (but only after
demand for payment has first been made to such Bank and such
Bank has failed to make such payment), an amount equal to
such corresponding amount together with interest thereon for
each day from the date the Agent shall make such amount
available to the Trust until the date such amount is paid or
repaid to the Agent, at an interest rate for the first day
of such period equal to the interest rate applicable at the
time to Advances comprising such Borrowing and for all
subsequent days of such period equal to the Alternate Base
Rate. If such Bank shall pay to the Agent such
corresponding amount, such amount so paid shall constitute
such Bank's Advance as part of such Borrowing for purposes
of this Agreement. If the Trust makes a repayment required
by the foregoing provisions of this 2.2(d) and thereafter
the applicable Bank or Banks make the payments to the Agent
required by this 2.2(d), the Agent shall promptly refund
the amount of the Trust's payment.
(e) The failure of any Bank to make the Advance
to be made by it as part of any Borrowing shall not relieve
any other Bank of its obligation, if any, hereunder to make
its Advance on the date of such Borrowing, but no Bank shall
be responsible for the failure of any other Bank to make the
Advance to be made by such other Bank on the date of any
Borrowing.
(f) In the case of Eurodollar Advances requested
in a Notice of Borrowing, the Agent shall notify the Trust
and the Company and each Bank of the Eurodollar Rate
applicable to such Eurodollar Advances not later than
11:00 A.M. (Boston time) on the Business Day of the proposed
Borrowing specified in the applicable Notice of Borrowing.
(g) The Trust hereby absolutely and
unconditionally promises to pay to the Agent for the account
of each of the Banks on the Termination Date all Outstanding
Advances.
(h) Revolving Credit Notes. The Indebtedness of
the Trust resulting from the Advances (other than
Competitive Bid Advances) made and to be made to the Trust
hereunder shall be evidenced by revolving credit notes, in
substantially the form of Exhibit A hereto, executed and
delivered by the Trust to each Bank on (i) the date of the
First Lending and (ii) on the date of each Borrowing made by
the Trust hereunder on or after the Maturity Date of any
previously delivered Revolving Credit Note. Each such
Revolving Credit Note and the Advances evidenced thereby
will be due and payable on the date (the "Maturity Date")
which is the earlier of (A) 364 days after the date thereof
or (B) the Termination Date. (The revolving credit notes of
the Trust are collectively referred to herein as the
"Revolving Credit Notes").
All Advances made to the Trust by a Bank shall be
recorded by the Bank and all payments made on account of
principal thereof shall be similarly recorded. Any failure
of a Bank to record a transaction in a timely fashion shall
not affect or impair the validity of any Obligation.
3. COMPETITIVE BID ADVANCES
3.1. Competitive Bid Borrowings.
(a) Competitive Bid Advance Option. In addition
to the Advances permitted pursuant to 2 hereof, the Trust
may, pursuant to the terms of this 3, cause the Agent to
request that the Banks make offers to fund Advances to the
Trust from time to time prior to the Termination Date. The
Banks may, but shall have no obligation to, make such offers
and the Trust may, but shall have no obligation to, accept
such offers in the manner set forth in this 3.
(b) Competitive Bid Request. When the Trust
wishes to request offers to make Competitive Bid Advances
under this 3, it shall transmit to the Agent by telex or
telecopier a bid request substantially in the form of
Exhibit C hereto to be received no later than 10:00 A.M. on
the first Business Day prior to the requested Borrowing date
with respect to Absolute Rate Advances specifying (A) the
requested Borrowing date (which must be a Business Day) and
the amount of such Competitive Bid Advance (which must be a
minimum of $2,500,000) and may not, together with the
aggregate amount of all other Advances then Outstanding to
the Trust, exceed the Available Commitment and (B) the
Interest Period for such Advance. The Trust may request
offers to make Advances for more than one Interest Period in
a single bid request. The Trust may submit a request for
offers to make Competitive Bid Advances that number of times
in any period of 12 consecutive months which does not exceed
the difference between forty (40) and the number of times
the Company requests "Competitive Bid Advances" under and as
defined in the Company Credit Agreement during the same 12
month period.
(c) Invitation for Competitive Bids. Subsequent
to receipt of a bid request, the Agent shall send to the
Banks by telex or telecopier an invitation for bids not
later than 4:00 P.M. (Boston time) on the Business Day on
which the Trust delivers its request in accordance with
3.1(b), substantially in the form of Exhibit D hereto,
which shall constitute an invitation by the Trust requesting
each Bank to submit bids offering to make Competitive Bid
Advances in accordance with this 3.
(d) Submission and Contents of Competitive Bids.
(i) Each Bank may submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid
Advances in response to any invitation for bids. Each
Competitive Bid Quote must comply with the requirements
of this subsection (d) and, except in the case of
Competitive Bid Quotes by Fleet National Bank, must be
submitted to the Agent by telex or telecopier not later
than 9:15 A.M. (Boston time) on the requested Borrowing
Date. Competitive Bid Quotes submitted by Fleet
National Bank must be submitted directly to the Trust
by telex or telecopier not later than 9:00 A.M. (Boston
time) on the requested Borrowing Date. Any Competitive
Bid Quote so made shall be irrevocable except with the
written consent of the Agent given on the instructions
of the Trust.
(ii) Each Competitive Bid Quote shall be in
substantially the form of Exhibit E hereto and shall in
any case specify:
(A) the proposed Borrowing Date,
(B) the principal amount of the Advance for
which each offer is made, which principal amount
(x) may be greater than the Commitment of the
quoting Bank but may not exceed the Maximum
Commitment, (y) must be $2,500,000 or a larger
multiple of $1,000 and (z) may not exceed the
principal amount of Competitive Bid Advances for
which offers were requested,
(C) the rate of interest per annum (rounded
to the nearest 1/10,000th of 1%) (the "Competitive
Bid Rate") offered for each such Competitive Bid
Advance,
(D) the proposed maturity date of the
proposed Advance (which date must be no less than
7 days and no longer than 180 days from the
Borrowing Date specified in subsection (A) above),
and
(E) the identity of the quoting Bank.
(iii) Any Competitive Bid Quote for a
Competitive Bid Advance shall be disregarded if it:
(A) is not substantially in the form of
Exhibit E hereto or does not specify all of the
information required by subsection (d)(ii);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable invitation
for Competitive Bids; or
(D) arrives after the time set forth in
subsection (d)(i).
(e) Notice to Trust. Not later than 10:00 A.M.
(Boston time) on the requested Borrowing Date, the Agent
shall notify the Trust of the terms of any Competitive Bid
Quote submitted by a Bank that is in accordance with the
preceding subsection (d). The Agent's notice to the Trust
shall specify (i) the aggregate principal amount of Advances
for which offers have been received for each Interest Period
specified in the related Competitive Bid Request and (ii)
the respective principal amounts and Competitive Bid Rates,
as the case may be, so offered, as well as the terms of the
Competitive Bid Quotes which were received but disregarded
by the Agent.
(f) Acceptance and Notice By Trust. Not later
than 10:30 A.M. (Boston time) on the requested Borrowing
Date, the Trust shall notify, by telephone, confirmed by
telecopy, the Agent of its acceptance or non-acceptance of
the offers so notified to it pursuant to the preceding
subsection (e). In the case of an acceptance, such notice
(a "Notice of Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are
accepted. The Trust may accept any Competitive Bid Quote in
whole or in part; provided that:
(i) the aggregate principal amount of each
Borrowing may not exceed the applicable amount set
forth in the related Competitive Bid Request,
(ii) subject to the provisions of 3.1(h) hereof,
the principal amount of each Advance must be $2,500,000
or a larger multiple of $1,000,
(iii) offers quoting lower Competitive Bid
Rates must be accepted prior to offers quoting higher
Competitive Bid Rates, and
(iv) the Trust shall not accept any offer that is
described in subsection (d)(iii) or that otherwise
fails to comply with the requirements of this
Agreement.
(g) Notice by the Agent to the Banks. After the
Trust notifies the Agent of its acceptance or non-acceptance
of the offers pursuant to subsection (f), the Agent shall
notify, by telephone and confirm by telecopy, such Banks
that made such offers pursuant to subsection (d) of the
Trust's acceptance or non-acceptance of such offers not
later than 11:00 A.M. (Boston time) on the requested
Borrowing Date.
(h) Allocation by Agent; Usage of Commitments.
If offers are made by two or more Banks with the same
Competitive Bid Rates for a greater aggregate principal
amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal
amount of Advances in respect of which such offers are
accepted shall be allocated by the Agent among such Banks as
nearly as possible (in such multiples, not smaller than
$1,000, as the Agent may deem appropriate) in proportion to
the aggregate principal amount of such offers.
Determinations by the Agent of the amounts of Competitive
Bid Advances shall be conclusive in the absence of manifest
error.
Upon each occasion that a Competitive Bid Advance is
made, and during the period for which such Competitive Bid
Advance is outstanding, each Bank's Commitment shall be
deemed automatically utilized by an amount equal to the
amount of such Competitive Bid Advance multiplied by such
Bank's Commitment Percentage, regardless of the extent to
which such Bank makes such Competitive Bid Advance.
3.2. Interest on Competitive Bid Advances. Each
Competitive Bid Advance shall bear interest on the
outstanding principal amount thereof for the Interest Period
applicable thereto, at a rate per annum equal to the
Competitive Bid Rate quoted by the Bank making such Advance
in accordance with 3.1(d). Such interest shall be payable
for each Interest Period on the last day thereof or, if such
Interest Period is longer than three months, every three
months after the first day thereof and on the last day
thereof.
Notwithstanding any other provision herein to the
contrary, at no time shall the sum of the aggregate
principal amount of Competitive Bid Advances Outstanding to
the Trust plus the aggregate principal amount of all other
Advances Outstanding to the Trust exceed the Available
Commitment.
3.3. Competitive Bid Notes. The Indebtedness of the
Trust resulting from the Competitive Bid Advances made and
to be made to the Trust hereunder shall be evidenced by
promissory notes executed and delivered by the Trust to the
Banks making each such Competitive Bid Advance on the date
such Competitive Bid Advances are made in substantially the
form of Exhibit A-1 hereto (the "Competitive Bid Notes").
4. CONVERSION, INTEREST, PAYMENTS AND COSTS.
4.1. Conversion of Advances. The Trust may, upon
notice given to the Agent not later than 10:00 A.M. (Boston
time) on the Business Day of the proposed Conversion in the
case of Conversion into Base Rate Advances and on the third
Business Day prior to the proposed Conversion in the case
of Conversion into Eurodollar Advances, Convert, on any
Business Day, all Base Rate Advances or Eurodollar Rate
Advances comprising the same Borrowing made to the Trust
into Advances of one or more Types, provided, however, that
any Conversion of Eurodollar Advances may be made on, and
only on, the last day of an Interest Period for such
Advances and any Conversion into Eurodollar Advances shall
be in a minimum amount of $1,000,000. Each such notice of
Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances
to be Converted, and (iii) if such Conversion is into
Eurodollar Advances, the duration of the initial Interest
Period for such Advances.
4.2. Interest. Except as otherwise provided in 4.3,
the Trust shall pay interest on the unpaid principal amount
of each Advance made by each Bank from the date of such
Advance until such principal amount is paid in full, at such
interest rates, and payable at such times as follows:
(a) during such periods as such Advance shall be
a Base Rate Advance, at the Alternate Base Rate, payable
quarterly in arrears on the last day of each March, June,
September and December during such periods and on the date
such Base Rate Advance shall be paid in full; and
(b) during such periods as such Advance shall be
a Eurodollar Advance, at the Eurodollar Rate (Reserve
Adjusted), payable (i) with respect to each Eurodollar
Advance for which the Interest Period is either one (1), two
(2) or three (3) months on the Interest Payment Date and
(ii) with respect to each Eurodollar Advance for which the
Interest Period is six (6) months, the amount of interest
accrued shall be payable on the last day of the third month
of such Interest Period and the remaining portion of such
interest shall be payable on the Interest Payment Date.
4.3. Overdue Principal and Interest. Any amount of
principal of any and all Advances which is not paid when due
(whether at stated maturity, by acceleration or otherwise)
and, to the extent permitted by law, any amount of interest
on any such Advances which is not paid when due, shall bear
interest, from the date on which such amount shall have
become due and payable by the Trust to the date on which
such amount shall be paid (whether before or after
judgment), payable on demand, at a rate equal to 2% per
annum above the rate of interest otherwise applicable to the
relevant Advances.
4.4. Limitation on Interest. No provision of this
Agreement or any Note shall require the payment or permit
the collection of interest in excess of the rate then
permitted by applicable law.
4.5. Interest Period and Rate Determination and
Protection.
(a) The Trust shall have the option to elect a
duration of one (1) month, two (2) months, three (3) months
or six (6) months in the case of Eurodollar Advances, made
to it, for each Interest Period. Such option shall be
exercised as provided in 2.2 with respect to the initial
Interest Period for any Eurodollar Advances and shall be
exercised as provided in 4.1 with respect to the initial
Interest Period for Eurodollar Advances commencing on the
date of a Conversion into such Advances, and in each such
case, may be exercised as to each subsequent Interest Period
applicable to such Advances by giving notice to the Agent
three Business Days in the case of Eurodollar Advances,
prior to the first day of such subsequent Interest Period.
Each such notice shall be by telephone, telex, telecopy or
cable, in each case confirmed immediately in writing by the
Trust. If no such notice is received with respect to the
Advances, the Trust shall be deemed to have elected the same
Interest Period duration as the immediately preceding
Interest Period applicable to such Advances.
(b) In the event the Agent shall determine that
adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate which would otherwise be
applicable during any Interest Period, the Agent shall
forthwith give telex or telecopy notice of such
determination (which shall be conclusive and binding on the
Trust), to the Trust at least two Business Days before the
first day of such Interest Period. In such event: (i) any
Notice of Borrowing or Notice of Conversion pursuant to 4.1
requesting a Eurodollar Advance shall be deemed a request
for a Base Rate Advance; (ii) each Eurodollar Advance will
automatically, on the last day of the then current Interest
Period thereof, Convert into a Base Rate Advance; and (iii)
the obligations of the Banks to make Eurodollar Advances
shall be suspended until the Agent determines that the
circumstances giving rise to such suspension no longer
exist, whereupon the Agent shall so notify the Trust and the
Banks.
4.6. Increased Costs, Etc.
(a) Anything herein to the contrary
notwithstanding, if any changes in present or future
applicable law (which term "applicable law", as used in this
Agreement, includes statutes and rules and regulations
thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or
official charged with the administration or the
interpretation thereof and requests, directives,
instructions and notices at any time or from time to time
heretofore or hereafter made upon or otherwise issued to the
Agent or any Bank by any central bank or other fiscal,
monetary or other authority, whether or not having the force
of law) shall (i) subject the Agent or any Bank to any tax,
levy, impost, duty, charge, fee, deduction or withholding of
any nature with respect to this Agreement, the amount of the
Commitments or the payment to the Agent or any Bank of any
amounts due to it hereunder, or (ii) materially change the
basis of taxation of payments to the Agent or any Bank of
the principal of or the interest on the Advances or any
other amounts payable to the Agent or any Bank hereunder, or
(iii) impose or increase or render applicable any special or
supplemental deposit or reserve or similar requirements or
assessment against assets held by, or deposits in or for the
account of, or any liabilities of, or loans by an office of
the Agent or any Bank in respect of the transactions
contemplated herein, or (iv) impose on the Agent or any Bank
any other condition or requirement with respect to this
Agreement, the Commitments or any Advance, and the result of
any of the foregoing is (A) to increase the cost to any Bank
of making, funding or maintaining all or any part of the
Advances, or (B) to reduce the amount of principal, interest
or other amount payable to any Bank hereunder, or (C) to
require the Agent or any Bank to make any payment or to
forego any interest or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by the Agent or any Bank from
the Trust hereunder, then, and in each such case not
otherwise provided for hereunder, the Trust will, upon
demand made by the Agent promptly following the Agent's
receipt of notification of such event (or made by any Bank
with respect to any of the matters described in clause (iii)
above promptly following such Bank's receipt of notice
pertaining to such matters) accompanied by calculations
thereof in reasonable detail, pay to the Agent for its
account or for the account of such Bank, as the case may be,
such additional amounts as will be sufficient to compensate
them for such additional cost, reduction, payment or
foregone interest or other sum, provided that the foregoing
provisions of this sentence shall not apply in the case of
any additional cost, reduction, payment or foregone interest
or other sum resulting from any taxes charged upon or by
reference to the overall net income, profits or gains of the
Agent or any Bank.
(b) If any Bank shall have determined that any
present or future applicable law, rule, regulation,
guideline, directive or request (whether or not having force
of law) regarding capital requirements for banks or bank
holding companies, or any change therein or in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance
by such Bank with any of the foregoing, either imposes a
requirement upon such Bank to allocate additional capital
resources or increases such Bank's requirement to allocate
capital resources to such Bank's commitment to make, or to
such Bank's maintenance of, Advances hereunder, which has or
would have the effect of reducing the return on such Bank's
capital to a level below that which such Bank could have
achieved (taking into consideration such Bank's then
existing policies with respect to capital adequacy and
assuming full utilization of such Bank's capital) but for
such applicability, change, interpretation, administration
or compliance, by any amount deemed by such Bank to be
material, such Bank shall promptly after its determination
of such occurrence give notice thereof to the Trust. The
Trust and such Bank shall thereafter attempt to negotiate in
good faith an adjustment to the compensation payable
hereunder which will adequately compensate the Bank for such
reduction. If the Trust and any such Bank are unable to
agree to such adjustment within thirty days after the day on
which the Trust received such notice, then commencing on the
date of such notice (but not earlier than the effective date
of any such applicability, change, interpretation,
administration or compliance), the fees payable hereunder
shall increase by an amount which will, in such Bank's
reasonable determination, evidenced by calculations in
reasonable detail delivered to the Company, compensate such
Bank for such reduction, such Bank's determination of such
amount to be conclusive and binding upon the Trust, absent
manifest error. In determining such amount, a Bank may use
any reasonable methods of averaging, allocating or
attributing such reduction among its customers.
4.7. Illegality or Impossibility. Notwithstanding
any other provision of this Agreement, if the introduction
of or any change in or in the interpretation of any law or
regulation applicable to any Bank or its Eurodollar Lending
Office shall make it unlawful, or any central bank or other
governmental authority having jurisdiction over such Bank or
its Eurodollar Lending Office shall assert that it is
unlawful, for such Bank or Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar
Advances to the Trust or to continue to fund or maintain
Eurodollar Advances to the Trust hereunder, or if any Bank
determines after making reasonable efforts, including
consultations with the Agent, that deposits of the relevant
amount for the relevant Interest Period for Eurodollar
Advances to the Trust, are not available to such Bank after
making reasonable attempts to obtain such deposits, then, on
notice thereof and demand therefor by such Bank to the Trust
and the Agent, (i) the obligation of such Bank to the Trust
to make Eurodollar Advances and to Convert Base Rate
Advances into Eurodollar Advances in such currency shall be
suspended and (ii) the Trust shall forthwith prepay in full
all Eurodollar Advances to such Bank with interest accrued
thereon. If the Trust so notifies the Agent within five
Business Days after any Bank notifies the Trust pursuant to
the foregoing provisions of this 4.7, the Trust may,
instead of prepaying, Convert all Eurodollar Advances of all
Banks then outstanding into Base Rate Advances.
4.8. Payment on Any Day Other Than The Last Day of an
Interest Period. If, due to payments or Conversions made by
the Trust pursuant to this Agreement or due to acceleration
of the maturity of any Advances pursuant to 13 or due to
any other reason, any Bank receives payments of principal or
is subject to a Conversion to another Type of Advance of a
Eurodollar Advance other than on the last day of an Interest
Period relating to the applicable Eurodollar Advance, the
Trust shall, upon demand by such Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of
such Bank any amounts required to compensate such Bank for
any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss, including lost
profits, costs or expenses incurred by reason of the
liquidation, reutilization or reemployment of deposits or
other funds acquired by such Bank to fund or maintain such
Advances. Such compensation may include, without
limitation, an amount equal to (a) the amount of interest
which would have accrued on the amount so paid, prepaid or
Converted or not borrowed, Converted or prepaid for the
period from the date of such payment, prepayment or
Conversion or failure to borrow, Convert or prepay to the
last day of the then current Interest Period for such
Advance (or, in the case of a failure to borrow, Convert or
prepay, to the last day of the Interest Period for such
Advance which would have commenced on the date of such
failure to borrow, Convert or prepay) at the applicable rate
of interest for such Advances provided for herein minus (b)
the amount of interest (as reasonably determined by the
Agent in consultation with such Bank) which would accrue and
become payable to such Bank during such period on the
principal repaid, prepaid or not borrowed if such Bank,
following such repayment, prepayment or failure to borrow,
were to reinvest such principal in U. S. Treasury securities
selected by such Bank in an amount equal (as nearly as may
be) to the principal so repaid, prepaid or not borrowed and
having a term equal (as near as may be) to such period.
4.9. Prepayments. The Trust may not prepay
Competitive Bid Advances prior to the last day of the
Interest Period relating thereto. The Trust may, upon at
least five Business Days notice to the Agent stating the
proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Trust shall,
prepay the outstanding aggregate principal amount of all
other types of Advances made to the Trust as part of the
same Borrowing, in whole at any time, or ratably in part
from time to time, with accrued interest to the date of such
prepayment on the principal amount prepaid; provided,
however, that: (i) each partial prepayment shall be in an
aggregate principal amount of not less than $1,000,000 and
(ii) all such prepayments shall be made to the Agent for the
account of the Banks ratably according to the then
outstanding principal amount of the Notes; and provided,
that if any such prepayment of Eurodollar Advances shall be
made on any day other than the last day of the Interest
Period applicable to such Advance, the Trust shall indemnify
the Banks (i) as provided in 4.8 and (ii) for amounts
required to compensate each Bank for any additional losses,
including lost profits, costs or expenses which it may
reasonably incur as a result of such prepayment, including
without limitation any loss, costs or expenses incurred by
reason of the liquidation, reutilization or reemployment of
deposits or other funds.
4.10. Payments and Computations.
(a) The Trust shall make each payment to be made
by it hereunder not later than 12:00 noon (Boston time) on
the day when due in lawful money of the United States to the
Agent at its address set forth in 21 in immediately
available funds. The Agent will, promptly after its receipt
thereof, distribute like funds relating to the payment of
principal or interest or Commitment Fees or other amounts
payable hereunder ratably to the Banks for the account of
their respective Advances and their Applicable Lending
Offices in like funds. All payments by the Trust hereunder
and under any of the other Loan Documents shall be made
without setoff or counterclaim and free and clear of and
without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans,
restrictions or conditions of any nature now or hereafter
imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein
unless the Trust is compelled by law to make such deduction
or withholding. If any such obligation is imposed hereafter
upon the Trust with respect to any amount payable by it
hereunder or under any of the other Loan Documents, the
Trust will pay to the Agent, for the account of the Banks or
(as the case may be) the Agent, on the date on which such
amount is due and payable hereunder or under such other Loan
Document, such additional amount in dollars as shall be
necessary to enable the Banks or the Agent to receive the
same net amount which the Banks or the Agent would have
received on such due date had no such obligation been
imposed upon the Trust, provided that the foregoing
obligation to pay such additional amounts shall not apply:
(i) to any payment to a Bank if such Bank is not,
on the date hereof (or on the date it becomes a Bank
under this Agreement) and on the date of any change in
the lending office of such Bank identified after its
execution, entitled by virtue of its status as a
non-resident alien to submit either a Form 1001
(relating to such Bank and entitling it to a complete
exemption from withholding on all interest to be
received by it hereunder in respect of the Advances) or
Form 4224 (relating to all interest to be received by
such Bank hereunder in respect of Advances) of the U.S.
Department of Treasury, or
(ii) to any item referred to in the preceding
sentence that would not have been imposed but for the
failure by such Bank to comply with applicable
certification, information, documentation or other
reporting requirements concerning the nationality,
residence, identity or connections of such Bank with
the United States if such compliance is required by
statute or regulation of the United States as a
precondition to relief or exemption from such item.
The Trust will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other
charges deducted from or paid with respect to payments made
by the Trust hereunder or under such other Loan Document.
Promptly after receipt of all payments with respect to
Competitive Bid Advances, the Agent shall pay the proper
portion of such payment to each Bank which made such
Competitive Bid Advance.
(b) All computations of interest, Commitment Fees
and Facility Fees hereunder shall be made by the Agent on
the basis of a year of 360 days for the actual number of
days (including the first day but excluding the last day)
elapsed. The outstanding amount of the Advances as
reflected on the Agent's records from time to time shall be
considered correct and binding on the Trust and the Banks
unless within thirty (30) days after receipt of any notice
by the Agent of such outstanding amount, the Trust or any of
the Banks, as the case may be, notify the Agent to the
contrary.
(c) Any change in the rate of interest payable on
any Advance resulting from a change in the Alternate Base
Rate shall become effective as of the opening of business on
the day on which such change in the Alternate Base Rate
becomes effective.
4.11. Payment on Non-Business Days. Whenever any
payment to be made hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on
the next succeeding Business Day, (except as provided in the
definition of Interest Period in 1) and such extension of
time shall in such case be included in the computation of
payment of interest or Commitment Fees, or Facility Fees, as
the case may be.
4.12. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on
account of the Advances made by it in excess of its ratable
share (according to the then outstanding principal amount of
the Advances) of payments on account of the Advances
obtained by all the Banks, such Bank shall purchase from the
other Banks such participations in the Advances held by such
other Banks as shall cause such purchasing Bank to share
such payment ratably according to the then outstanding
principal amount of the Advances with each of such other
Banks; provided, however, that if all or any portion of such
payment is thereafter recovered from such purchasing Bank,
the purchase shall be rescinded and the purchase price
restored to the extent of such recovery, with interest at an
interest rate per annum equal to the Alternate Base Rate.
The Trust agrees that any Bank so purchasing a participation
in the Trust's Advance from another Bank pursuant to this
4.12 may, to the fullest extent permitted by law, exercise
all its rights of payment with respect to such participation
as fully as if such Bank were the direct creditor of the
Trust in the amount of such participation.
5. COMMITMENTS.
5.1. Amount of Commitment. The respective amount of
each Bank's Commitment on the date hereof and its respective
Commitment Percentage shall be as follows (except as may be
modified pursuant to Section 18):
Amount of Commitment
Lender Commitment Percentage
The Bank of New York $8,000,000 26.67%
Union Bank of $4,000,000 13.33%
California, N.A.
CoreStates Bank, $4,000,000 13.33%
N.A.
First Union National $4,000,000 13.33%
Bank
Fleet National Bank $10,000,000 33.33%
5.2. Extension of Commitments. The Trust may, by
written notice to the Banks and the Agent not less than
sixty (60) days and not more than ninety (90) days prior to
the Termination Date then in effect, request that the
Termination Date be extended to a later date specified in
such notice. The Agent shall notify the Trust as to whether
all of the Banks have agreed to the extension of the
Termination Date to such later date not later than thirty
(30) days prior to the Termination Date then in effect. An
extension to which all of the Banks have agreed shall become
effective upon the receipt by the Banks not less than five
(5) Business Days prior to the Termination Date then in
effect of (a) executed promissory notes substantially in the
form of Exhibit A hereto, and (b) an opinion of counsel to
the Trust, satisfactory to the Banks and their counsel, as
to the due authorization, execution and delivery by the
Trust of such notice of extension and such promissory notes,
the validity and binding effect as regards the Trust of this
Agreement and the promissory notes so delivered, and there
being no necessity for any authorization or approval by, or
any filing or registration with, any public regulatory body
(including, but without limitation, approval of the
Department of Public Utilities of The Commonwealth of
Massachusetts) for such extension and for the performance of
this Agreement and the promissory notes so delivered (or, if
any such action is necessary or required, stating that the
same has been duly obtained or effected, and is valid and
sufficient for the purpose and a true copy thereof is
attached to such opinion).
5.3. Commitment Fees.
(a) Facility Fee. The Trust agrees to pay to the
Agent for the account of each Bank, pro rata in accordance
with its Commitment, a Facility Fee (the "Facility Fee")
calculated at the Applicable Facility Fee Rate on the amount
of such Bank's Commitment. The Facility Fee shall be
payable quarterly in arrears on the last day of each
calendar quarter and on the Termination Date.
(b) Agent's Fees. The Trust has agreed to pay to
the Agent a fee for arranging the Advances hereunder and an
agent's administration fee (the "Agent's Fee") in accordance
with a letter agreement dated as of the date hereof, between
the Company and the Agent.
5.4. Reduction and Termination by the Trust. The
Trust at its option may, at any time and from time to time,
reduce ratably in part (in integral multiples of $5,000,000)
or terminate in whole the unused portion of the Commitment
of the Banks provided for in 5.1 on not less than five
Business Days' notice in writing, telegraphic or telephonic
notice confirmed in writing to the Agent. Promptly after
receiving any notice of the Trust delivered pursuant to this
5.4, the Agent will notify the Banks of the substance
thereof. After any such termination, the Trust may not
reinstate the portion terminated.
6. SECURITY. The Obligations of the Trust to the
Banks under the Loan Documents shall be secured by a blanket
first perfected lien on all of the gas inventory of the
Trust and by an assignment by the Trust of the Fuel Purchase
Contract and certain other documents and instruments
(collectively, the "Collateral"), pursuant to the terms of
the Security Documents.
7. CONDITIONS OF FIRST LENDING. The obligation of
each Bank to make its Advance on the occasion of the First
Lending is subject to the following conditions precedent:
7.1. Documentation. The Agent shall have received
before the day of the First Lending, in form and substance
satisfactory to the Agent and in sufficient copies for each
Bank:
(a) Certified copies of the resolutions of the
Trustee of the Trust approving this Agreement and the other
Loan Documents;
(b) Signed copies of a certificate of the Trustee
of the Trust certifying the names and true signatures of the
officers of the Trust authorized to sign this Agreement, the
other Loan Documents and any other documents delivered or to
be delivered by the Trust hereunder;
(c) A certified copy of the Trust Agreement as in
effect on the Closing Date.
(d) A favorable opinion of counsel to the Trust
in substantially the form of Exhibit F hereto and as to such
other matters as any Bank through the Agent may reasonably
request;
(e) Copies of any authorization or approval of
any public regulatory body (including, without limitation,
the DPU) required for the execution, delivery and
performance by the Trust of this Agreement and the other
documents to be delivered by the Trust hereunder;
(f) A true copy, certified by the Trust and the
Company, of the Fuel Purchase Contract, as amended and in
effect on the Closing Date; and
(g) A true copy, certified by the Trust, of the
Consent and Agreement as in effect on the Closing Date.
7.2. Security Documents. The Security Documents and
the appropriate financing statements and other documents
with respect thereto, necessary to enable the Agent to
perfect the Banks' security interests thereunder, shall have
been duly executed by the Trust and delivered to the Agent
for filing or recording, as applicable, in all appropriate
filing offices or other locations necessary for the
perfection of such interests, and, except as otherwise
agreed by the Agent after notice to the Banks, all other
actions necessary for the perfection of such security
interests shall have been taken.
7.3. Financial Statements. The Banks shall have
received not less than five (5) days prior to the Closing
Date audited consolidated and consolidating balance sheets
of the Company and its Subsidiaries as at December 31, 1996,
and related consolidated and consolidating statements of
income and retained earnings of the Company for the twelve
months then ended, in each case prepared in accordance with
GAAP and certified by Grant Thornton or other Independent
Accountant.
7.4. Representations and Warranties. The
representations and warranties contained in 9 shall have
been correct as of the date on which made and shall also be
correct at and as of the date of the First Lending with the
same effect as if made at and as of such time, except to the
extent that the facts upon which such representations and
warranties are based may in the ordinary course be changed
by the transactions permitted or contemplated hereby, and
the Trust shall deliver a certificate to the Agent to such
effect.
7.5. Performance; No Default. The Trust shall have
performed and complied with all terms and conditions herein
required to be performed or complied with by it prior to or
at the time of the First Lending and at the time of the
First Lending there shall exist no Default or Event of
Default or condition which would, with either or both the
giving of notice or the lapse of time, result in a Default
or Event of Default upon consummation of the First Lending.
7.6. Company Credit Agreement. The Company Credit
Agreement shall have been duly executed and delivered by the
parties thereto and all of the conditions to the "First
Lending" thereunder shall have been satisfied.
7.7. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this
Agreement and all documents incident thereto shall be
reasonably satisfactory in substance and in form to the
Agent and to the Agent's Special Counsel, and the Agent and
such counsel shall have received all information and such
counterpart originals or certified or other copies of such
documents and such other approvals, opinions or documents as
the Agent or such counsel may reasonably request.
7.8. Notice of Borrowing. The Agent shall have
received a Notice of Borrowing from the Trust as required by
2.2.
8. CONDITIONS OF SUBSEQUENT BORROWINGS. The
obligation of the Banks to make any Advances subsequent to
the Closing Date is subject to the following conditions
precedent:
8.1. Representations and Warranties. The
representations and warranties contained in 9 and otherwise
made by the Trust in connection with the transactions
contemplated by this Agreement subsequent to the date hereof
shall have been correct as of the date on which made and
shall also be correct at and as of the date of the Advances,
with the same effect as if made at and as of such time,
except to the extent that the facts upon which such
representations and warranties are based may be changed by
the actions or transactions permitted or contemplated
hereby.
8.2. Performance; No Default. The Trust shall have
performed and complied with all terms and conditions herein
required to be performed or complied with by it prior to or
at the time of the Advance, and there shall exist no Default
or Event of Default or condition which would, with either or
both the giving of notice or the lapse of time, result in a
Default or Event of Default upon consummation of the
Advance.
In the case of any Advance, the giving of each Notice
of Borrowing made subsequent to the Closing Date, as the
case may be, by the Trust shall be deemed to be a
representation and warranty by the Trust on the dates of
such Notice of Borrowing and of such Borrowing that the
statements in 9 are correct in all material respects.
8.3. Notes in Full Force and Effect. The Notes shall
be in full force and effect, and the Trust shall have
delivered to the Banks contemporaneously with its delivery
of such Notes an opinion of counsel, satisfactory to the
Banks, regarding the due authorization, execution and
delivery of such Notes, the validity and binding effect of
such Notes, and there being no necessity for any
authorization or approval by, or any filing or registration
with, any public regulatory body (including, but without
limitation, approval of the DPU) for the delivery of such
Notes or the performance of such Notes.
9. REPRESENTATIONS AND WARRANTIES. The Trust
represents and warrants to the Agent and the Banks that:
9.1. Legal Existence and Good Standing, Etc.
(a) The Trust has its chief executive offices at
Two International Place, Boston, MA 02211; its principal
books and records are kept at 40 Market Street, Lowell, MA
01852.
(b) The Trust (i) is a duly organized, validly
existing and effective trust in accordance with its terms,
and (ii) has the power to own its property and conduct its
business as now and presently contemplated and (iii) is duly
qualified to do business and is in good standing in each
other jurisdiction where the conduct of its business or the
nature of its assets requires such qualification. The Trust
has no Subsidiaries.
9.2. Trust Power; Consents; Absence of Conflict with
Other Agreements, Etc. The execution, delivery and
performance of this Agreement and the other Loan Documents
by the Trust and the Borrowings and transactions
contemplated hereby and thereby:
(a) are within the trust powers of the Trust, as
applicable, have been duly authorized by all necessary trust
action and do not and will not contravene any provision of
law or any contractual restriction binding on or affecting
it;
(b) do not require any approval or consent of, or
filing with, any governmental agency or authority bearing on
the validity of such instruments and Borrowings which is
required by law or any regulation of any such agency or
authority which have not been obtained and delivered to the
Agent prior to the Closing Date, and are not in
contravention of the terms of the Trust Agreement of the
Trust or any amendment thereof;
(c) will not conflict with or result in any
breach or contravention of or the creation of any lien
under, any indenture, agreement, lease, instrument or
undertaking to which the Trust is a party or by which it is
bound; and
(d) in all material respects are and will be
valid and legally binding obligations of the Trust and are
and will be enforceable in accordance with their respective
terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
affecting generally the enforcement of creditors' rights.
9.3. Title to Properties; Leases. Except as
indicated on Schedule 9.3 hereto, the Trust owns all of its
assets reflected in its balance sheets as at December 31,
1996 described in 7.3, or acquired since that date (except
property and assets sold or otherwise disposed of in the
ordinary course of business since that date), subject to no
mortgages, leases, liens or other encumbrances except for
(i) current taxes or taxes being contested in good faith by
appropriate proceedings and then only to the extent that
adequate reserves have been set aside therefor or its books
in accordance with GAAP, (ii) liens arising in the ordinary
course of business or sums being contested in good faith by
appropriate proceedings and then only to the extent that
adequate reserves have been set aside therefor or its books
in accordance with GAAP, but not involving Debt, (iii) liens
existing on the date hereof to the extent shown on
Schedule 9.3 or (iv) the liens in favor of the Agent created
by the Security Documents and other liens hereafter incurred
and permitted under 12.2.
9.4. Financial Statements. The financial statements
delivered to the Banks pursuant to 7.3 fairly present the
financial condition of the Trust as at the close of business
on the date thereof. There are no contingent liabilities of
the Trust as of such date involving material amounts, which
are not disclosed in said balance sheets and the related
notes thereto.
9.5. No Material Changes, Etc. Since December 31,
1996, there have occurred no Material Adverse Changes as
shown on or reflected in the financial statements delivered
to the Bank pursuant to 7.3 hereof.
9.6. Franchises, Patents, Copyrights, Etc. The Trust
possesses franchises, patents, copyrights, trademarks,
tradenames, licenses and permits, and rights in respect of
the foregoing, adequate for the conduct of its business
substantially as now conducted and without any conflict with
any rights of others (other than for conflicts that would
not either individually or collectively have a Material
Adverse Effect).
9.7. Litigation. Except as set forth on
Schedule 9.7, there are no actions, suits, proceedings or
investigations of any kind pending or threatened against the
Trust before any court, tribunal or administrative agency or
board which, if adversely determined, might, either in any
case or in the aggregate, have a Material Adverse Effect or
materially impair the right of the Trust, to carry on
business substantially as now conducted, or result in any
substantial liability not adequately covered by insurance,
or which question the validity of this Agreement or the
Notes, or any action taken or to be taken pursuant hereto or
thereto.
9.8. No Materially Adverse Contracts, Etc. The Trust
is not subject to any indenture, agreement or charter,
corporate or other legal restriction, or any judgment,
decree, order, rule or regulation which has or is expected
in the future to have Material Adverse Effect. The Trust is
not a party to any contract or agreement which has or is
expected to have any Material Adverse Effect.
9.9. Compliance with Other Instruments, Laws, Etc.
The Trust is not in violation of any provision of its Trust
Agreement, or any other agreement or instrument by which it
or any of its properties may be bound or any decree, order,
judgment, any statute, license, rule or regulation, in a
manner which could result in the imposition of substantial
penalties or have a Material Adverse Effect.
9.10. Tax Status. The Trust has caused to be filed
all federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to
which it is subject; and has paid all taxes and other
governmental assessments and charges shown or determined to
be due on such returns, reports and declarations, except
those being contested in good faith by appropriate
proceedings and then only to the extent that adequate
reserves have been set aside therefor or its books in
accordance with GAAP, but not involving any Debt; and has
set aside on its books provisions reasonably adequate for
the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and the Trust knows of no basis for any such
claim.
9.11. Absence of Security Interests, Etc. Except (i)
for current taxes or taxes being contested in good faith by
appropriate proceedings and for which any adequate reserves
required by GAAP have been established, (ii) liens arising
in the ordinary course of business or sums being contested
in good faith, but not involving any Debt, (iii) liens
existing on the date hereof to the extent shown in the
financial statements referred to in 7.3 or Schedule 9.3 or
(iv) liens hereafter incurred and permitted under 12.2,
there is no significant financing statement, security
agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records,
registry, or other public office of any jurisdiction, which
purports to cover, affect or give notice of any present or
possible future lien on, or security interest in, any assets
or property of the Trust or any rights thereunder.
9.12. Use of Proceeds. The proceeds of the Advances
shall be used by the Trust solely for the purpose of
financing its purchase of Commodities pursuant to the Fuel
Purchase Contract. No portion of any Advance is to be used
for the purpose of purchasing or carrying any "margin
security" or "margin stock" as such terms are used in
Regulations G and U of the Board of Governors of the Federal
Reserve System, 12 C.F.R. 207 and 221.
9.13. Pension Plan. The Trust has no employees.
9.14. Disclosure. Neither this Agreement nor any
document delivered to the Agent or any Bank by or on behalf
of the Trust to induce such Bank to enter into this
Agreement contains any untrue statement of a material fact
or omits to state a material fact which omission would make
the statements herein or therein misleading.
9.15. Investment Company; Public Utility Holding
Company. The Trust is not an "investment company" or a
"company controlled" by an "investment company" or an
"affiliate" of an "investment company" within the meaning of
the Investment Company Act of 1940, as amended. The Trust
is not a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", as such
terms are defined in the Public Utility Holding Company Act
of 1935, as amended.
9.16. Environmental Matters. The Trust is in
compliance in all material respects with all applicable
Environmental Laws (as defined herein), including, without
limitation, the Clean Water Act of 1977, as amended, 33
U.S.C. 1251 et seq., the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. 6901 et seq. ("RCRA"), the
Massachusetts Hazardous Waste Management Act, Massachusetts
General Laws Annotated ch. 21C (West 1992) (the
"Massachusetts Hazardous Waste Act"), the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. 9601 et seq.
("CERCLA"), and the Massachusetts Oil and Hazardous Material
Release Prevention Act, Massachusetts General Laws Annotated
ch. 21E (West 1992) (the "Massachusetts Oil and Hazardous
Material Act"), except for such noncompliance which, in the
judgment of the Trust, would not have a Material Adverse
Effect and, to its knowledge, has not acquired, incurred or
assumed, directly or indirectly, any contingent liability in
connection with the release of any Hazardous Substance (as
defined herein) into the environment which, in the judgment
of the Trust, would have a Material Adverse Effect. To the
best of the Trustee's knowledge, the Trust is not the
subject of any evaluation, administrative proceedings,
administrative consent orders, judicial proceedings or
demand orders under CERCLA, or under the Massachusetts Oil
and Hazardous Material Act, or any similar statute in any
other jurisdiction which, in the judgment of the Trust,
would have a Material Adverse Effect.
10. EXEMPT CHARACTER OF TRANSACTION. This Agreement
is made with the Banks in reliance upon their several
representations to the Trust, which by their execution of
this Agreement they hereby confirm, that each Bank for
itself and not for any other Bank has no present intention
of selling or otherwise disposing of any interest in the
Advances other than for participations contemplated by 26
and assignments contemplated by 18 hereof. The Trust
represents to the Banks that it has not, either directly or
through any agent, offered any interest in the Advances for
sale to, or solicited any offers to buy any interest therein
from, or otherwise approached or negotiated in respect of
any interest therein with, any Person or Persons other than
the Banks. Each Bank agrees that it will not, directly or
indirectly, sell or offer, or attempt to offer to dispose
of, any interest in the Advances or solicit any offers to
buy any interest therein from, or otherwise approach or
negotiate with respect thereto with, any Person whatsoever
so as to bring the execution and delivery of this Agreement
within the provisions of 5 of the Securities Act of 1933,
as now in effect or as later amended.
11. AFFIRMATIVE COVENANTS. Until expiration or
termination of the Commitments and thereafter until all
obligations of the Trust hereunder and under the Notes are
paid in full, the Trust agrees that it will:
11.1. Punctual Payment. Duly and punctually pay or
cause to be paid the principal and interest on the Advances,
and the Commitment Fees, the Facility Fees, the Agent's Fees
and all other fees and expenses payable as provided herein
or in the other Loan Documents as the same shall become due,
whether at maturity or at any date fixed for payment or
prepayment or by declaration or otherwise, all in accordance
with the terms of this Agreement.
11.2. Maintenance of Office. Maintain an office at
Two International Place, Boston, Massachusetts or at such
other place in Massachusetts as the Trust shall designate
within 30 days of any change of such office by written
notice, addressed as provided in 21 where notices,
presentations and demands to or upon the Trust in respect of
the Advances may be given or made.
11.3. Reports, Certificates and Other Information.
Furnish to the Agent (in sufficient number of copies to
provide one to each Bank);
(a) Annual Report. As soon as practicable and,
in any event, within 90 days after the end of each fiscal
year of the Trust, a consolidated and consolidating balance
sheet of the Trust as at the end of such fiscal year and
consolidated and consolidating statements of earnings and
cash flow of the Trust for the fiscal year then ended, each
setting forth in comparative form the figures for the
previous fiscal year, all in reasonable detail prepared in
accordance with GAAP, such consolidated financial statements
to be accompanied by a report and opinion of Grant Thornton
or other Independent Accountants, which report and opinion
shall have been prepared in accordance with generally
accepted auditing standards.
(b) Interim Reports. Within forty-five (45) days
after each quarter (except the last quarter) of each fiscal
year of the Trust, unaudited financial statements of the
Trust prepared in the same manner as the annual report
referred to in 11.3(a), signed by a proper officer of the
Trust, as applicable, and consisting of at least a balance
sheet as at the close of such quarter and statements of
earnings and cash flows for such quarter and for the period
from the beginning of such fiscal year to the close of such
quarter.
(c) Certificates. Contemporaneously with the
furnishing of a copy of each annual report provided for in
subsection (a) and of each set of quarterly statements
provided for in subsection (b), a Compliance Certificate
from the Trust substantially in the form of Exhibit G hereto
(the "Compliance Certificate") dated the date of such annual
report or such quarterly statements and signed on behalf of
the Trust by the Trustee, to the effect that no Default or
Event of Default has occurred and is continuing, or, if
there is any such event, describing it and the steps, if
any, being taken to cure it.
(d) Notice of Default, Litigation and
Environmental Matters. Forthwith upon learning of the
occurrence of any of the following, written notice thereof,
describing the same and the steps being taken by the Trust
with respect thereto: (i) the occurrence of a Default or
Event of Default or any event which, but for the waiver of
such event, would be a Default or Event of Default, or (ii)
the institution of, or any adverse determination in, any
litigation, arbitration proceeding or governmental
proceeding which is, or could be, materially adverse to the
Trust. The Trust will promptly give notice to the Agent and
each of the Banks (i) of any violation of any federal, state
or local statute, regulation, ordinance, order or decree
relating to health, safety or the environment that the Trust
reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any
oral report is made) to any federal, state or local
environmental agency and that, in the judgment of the Trust,
would have a Material Adverse Effect, and (ii) upon becoming
aware thereof, of any inquiry, proceeding, investigation or
other action, including a notice from any agency of
potential environmental liability, or any federal, state or
local environmental agency or board that, in the judgment of
the Trust, would have a Material Adverse Effect.
(e) Monthly Report. On or before the fifteenth
(15th) day of each month a report (each a "Monthly Report")
in substantially the form of Exhibit I hereto and certified
by an officer on behalf of the Trust, showing, as of the
last Business Day of the immediately preceding month: the
Cost of the Trust's inventory of Commodities, by type; the
location of the Storage Fields containing such inventory;
and the dollar value of the outstanding accounts receivable
owned by the Trust. On or before the twentieth (20th) day
of each month (but in any event not earlier than the third
business day following the fifteenth day of the month) the
total outstanding Advances shall not exceed the Trust
Borrowing Base as of the Monthly Report for the immediately
preceding month.
(f) Other Information. From time to time such
other information concerning the Trust as any Bank or the
Agent may reasonably request.
11.4. Existence and Franchises. Except as otherwise
expressly permitted in this Agreement, maintain in full
force and effect its separate existence and all rights,
licenses, leases and franchises reasonably necessary to the
conduct of its business and comply with (i) the applicable
laws and regulations wherever its business is conducted,
(ii) its Trust Agreement, and (iii) all agreements and
instruments by which it or any of its properties may be
bound and all applicable decrees, orders and judgments.
11.5. Payments of Taxes. Cause to be promptly paid
when due all material taxes, assessments or other
governmental charges owing, unless the same shall be
diligently contested in good faith and reserves which are
adequate in accordance with GAAP have been set aside
therefor.
11.6. Maintenance of Property. Maintain all material
assets or property in good repair and working order and
condition, normal wear and tear excepted, and make all
needful repairs, replacements, additions and improvements
thereto.
11.7. Books, Records and Inspections. Maintain
complete and accurate books and records; permit reasonable
access during normal business hours by any Bank or the Agent
to the books and records of the Trust; and permit any Bank
or the Agent to inspect the properties and operations of the
Trust; and promptly respond to all reasonable requests for
information by any Bank or the Agent.
11.8. Further Assurances. Cooperate with the Banks
and execute, acknowledge (if appropriate) and deliver such
further instruments and documents, and take such other
action as the Banks shall reasonably request to carry out to
their satisfaction the transactions contemplated by this
Agreement.
11.9. Securities Law, Etc. Compliance. Comply in all
material respects with all valid applicable laws and any
rules and regulations thereunder in connection with all
transactions contemplated by this Agreement, including
(without limitation) takeover, disclosure and other Federal
and State securities laws and Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System.
11.10. Insurance. Cause to be maintained with
financially sound and reputable insurers insurance with
respect to its properties and business against such
casualties and contingencies in amounts, containing such
terms, in such forms and for such periods as shall be in
accordance with the general practices of businesses engaged
in similar activities in similar geographic areas (which may
include reasonable self insurance) and as may be reasonably
satisfactory to the Banks. Without limiting the foregoing,
the Trust will (i) keep all of its physical property insured
against fire, flood and extended coverage risks in amounts
and with deductibles equal to those generally maintained by
businesses engaged in similar activities in similar
geographic areas, which may include reasonable self
insurance (ii) maintain all such workers' compensation or
similar insurance as may be required by law, and (iii)
maintain, in amounts and with deductibles equal to those
generally maintained by businesses engaged in similar
activities in similar geographic areas (which may include
reasonable self insurance), general public liability
insurance against claims for bodily injury, death or
property damage occurring on, in or about its properties,
business interruption insurance and product liability
insurance. At least five (5) days before the expiration of
any such policy, the Trust will (except as aforesaid) obtain
a renewal of any policy about to expire or a new policy or
policies operating as a renewal thereof, to the satisfaction
of the Banks; provided, however, that the Trust will notify
the Banks that a policy is being canceled by an insurer not
later than ten (10) days prior to the effective date of such
cancellation. In the event of failure to provide and
maintain insurance as herein provided, the Banks may, at
their option, after giving notice to and consulting with the
Trust, provide such insurance and charge the amount thereof
to the Trust and the Trust hereby promises to pay to the
Banks on demand the amount of any disbursements made by the
Banks for such purpose. The Trust shall furnish to the
Banks certificates or other evidence satisfactory to the
Banks of compliance with the foregoing insurance provision.
11.11 Payment of Indebtedness and Performance of
Obligations. Pay and discharge promptly as and when due all
lawful indebtedness, obligations and claims for labor,
materials and supplies or otherwise (including, without
limitation, Debt) which, if unpaid, would (a) have a
Material Adverse Effect, or (b) become a lien not permitted
by paragraph 11.2, provided that the Trust shall not be
required to pay and discharge or cause to be paid and
discharged any such indebtedness, obligation or claim so
long as the validity thereof shall be contested in good
faith and by appropriate proceedings diligently conducted by
the Trust, and further provided that such reserve or other
appropriate provision as shall be required in accordance
with GAAP shall have been made therefor.
11.12. Change of Trust Name. Notify the Agent within
ten (10) days of any change in its name and duly execute and
deliver appropriate financing statements and other documents
necessary to enable the Agent to maintain continuously
perfected the security interests granted under the Security
Documents.
11.13. Enforcement of Fuel Purchase Contract.
Enforce all of its rights under the Fuel Purchase Contract,
and undertake any action necessary in connection therewith.
12. CERTAIN NEGATIVE COVENANTS. The Trust agrees
that, so long as any portion of the Commitments remain
outstanding or until such date as the Advances and all other
Obligations have been paid and satisfied in full, whichever
shall later occur, it will not:
12.1. Debt. Incur or permit to exist any Debt except
(i) the obligations of the Trust to the Banks and the Agent
under the Loan Documents, and (ii) obligations of the Trust
to the Company, provided that all such obligations shall be
subordinated to the payment in full of principal and
interest and other amounts payable under this Agreement, the
Notes and the other Loan Documents upon terms, and pursuant
to documents in form and substance satisfactory to the
Banks.
12.2. Liens. Create or permit to exist any mortgage,
pledge, title retention lien, or other lien, encumbrance or
security interest with respect to any assets now owned or
hereafter acquired, except
(i) liens existing on the date of this Agreement
and described on Schedule 9.3 hereto;
(ii) mechanic's, materialmen's, suppliers', tax
and other like liens arising in the ordinary course of
business securing obligations which are not overdue or,
if overdue, are being contested in good faith by
appropriate proceedings; liens arising in connection
with workmen's compensation, unemployment insurance and
appeal and release bonds; and other liens incident to
the conduct of business or the operation of property
and assets and not incurred in connection with the
obtaining of any advance or credit; and
(iii) liens securing the Advances.
12.3. Guaranties, Loans or Advances. Become or be a
guarantor or surety of, or otherwise become or be
responsible in any manner (whether by agreement to purchase
any obligations, stock, assets, goods or services, or to
supply or advance any funds, assets, goods or services, or
otherwise) with respect to, any undertaking of any other
person or entity, or make or permit to exist any loans or
advances to any other person or entity, except for the
endorsement, in the ordinary course of collection, of
instruments payable to it or to its order.
12.4. Investments. Purchase or otherwise acquire any
security or Debt of any Person, whether directly or
indirectly, except advances by the Trust to the Company as
permitted by the Fuel Purchase Contract.
12.5. Other Agreements. Enter into any agreement
containing any provision which would be violated or breached
by the performance of its obligations hereunder or under any
instrument or document delivered or to be delivered by it
hereunder or in connection herewith.
12.6. Merger, Consolidation, or Sale of Assets.
Become a party to any merger, consolidation, or disposition
of any substantial assets, except as expressly permitted by
the Fuel Purchase Contract or the merger of the Trust into
the Company so long as the Company is the survivor of such
merger.
12.7. Leases. Acquire any real or personal property
by lease or similar agreement (whether or not the respective
property shall have theretofore been owned and sold by the
Trust).
12.8. Debt Payments. Directly or indirectly, make
any payments in reduction of any Debt of the Trust (other
than Debt in respect of the Advances) prior to the final
maturity thereof, other than payments required by the terms
of any sinking fund, serial maturity or mandatory prepayment
provision contained in any instrument evidencing Debt
permitted by 12.1 and other than payments made pursuant to
the Fuel Purchase Contract.
12.9 Alterations to Trust Agreement. Amend, alter,
modify or waive any of the provisions of the Trust Agreement
in any material way without the prior written consent of the
Agent.
12.10. Alterations to Fuel Purchase Contract. Until
expiration or termination of the Commitments under the
Company Credit Agreement and thereafter until all
obligations of the Company thereunder and under the Notes
issued pursuant thereto are paid in full, amend, alter,
modify or waive any of the provisions of the Fuel Purchase
Contract in any manner that would materially affect the
absolute and unconditional obligations of the Trust to take
and pay for any and all Fuel pursuant to the terms of the
Fuel Purchase Contract or otherwise adversely affect or
impair the security of the Banks therein without the prior
written consent of such Banks as hold 100% of the aggregate
principal amount of the Maximum Commitment.
13. EVENTS OF DEFAULT; ACCELERATION. If any of the
following events ("Events of Default" or, if notice or lapse
of time or notice and lapse of time is required, then, prior
to such notice and/or lapse of time, "Defaults") shall
occur:
(a) if the Trust shall default in the payment of
principal on any of the Advances when the same shall become
due and payable, whether at maturity or at any date fixed
for payment or prepayment or by declaration;
(b) if the Trust shall default in the payment of
any interest on the Advances, or the Facility Fee, Agent's
Fee or any other fee or expense payable hereunder or under
the other Loan Documents when the same shall become due and
payable;
(c) if the Trust shall default in the performance
of or compliance with any term contained in the Security
Agreement or in any of 11.3(d), 12.1, 12.2, 12.3, 12.4,
12.5, 12.6, 12.7, 12.8, or 12.9 hereof;
(d) if the Trust shall default in the performance
of or compliance with any term contained in this Agreement
other than those referred to above in this 13, and such
default shall not have been remedied within 30 days after
written notice thereof shall have been given to the Trust by
the Agent;
(e) if any representation or warranty made or
deemed made by the Trust herein or in connection with any of
the transactions contemplated hereby shall prove to have
been false or incorrect in any material respect on the date
as of which made;
(f) if the Trust shall default (as principal or
guarantor or other surety) in the payment of any principal
of, or premium, if any, or interest on any indebtedness
(other than the Obligations to the Banks hereunder), or with
respect to any of the terms of any evidence of such
indebtedness or of any agreement relating thereto, and such
default shall entitle the holder of such indebtedness to
accelerate the maturity thereof and the unpaid balance of
any such defaulted indebtedness is equal to or exceeds
$100,000, unless, in the case of any default, such default
has been affirmatively waived by or on behalf of the holder
of such indebtedness;
(g) if the Trust makes an assignment for the
benefit of creditors, or petitions or applies for the
appointment of a liquidator or receiver or custodian (or
similar official) of the Trust, or of any substantial part
of the assets of the Trust or commences any proceeding or
case relating to the Trust under any bankruptcy,
reorganization, arrangements, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect;
(h) if any such petition or application is filed
or any such proceeding or case is commenced against the
Trust and the Trust indicates its approval thereof, consent
thereto or acquiescence therein or an order is entered
appointing any such liquidator or receiver or custodian (or
similar official), or adjudicating the Trust bankrupt or
insolvent, or approving a petition in any such proceeding or
a decree or order for relief is entered in respect of the
Trust in an involuntary case under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar laws of any
jurisdiction as now or hereafter constituted;
(i) if any order is entered in any proceeding by
or against the Trust decreeing or permitting the dissolution
or split-up of the Trust or the winding up of its affairs;
(j) if there shall remain in force, undischarged,
unsatisfied and unstayed, for more than 30 days, whether or
not consecutive, any final judgment or judgments which
exceed, either individually or in the aggregate, more than
$1,000 against the Trust;
(k) if any governmental authority or any person
purporting to act under governmental authority shall have
taken any action to condemn, seize or appropriate or to
assume custody or control of, all or any substantial part of
the property of the Trust;
(l) if the Trust shall default in the performance
of or compliance with any term contained in the Security
Documents or if an Event of Default under and as defined in
the Company Credit Agreement shall occur and be continuing;
(m) if the Trust shall fail to obtain, renew,
maintain or comply with all such government approvals as
shall now or hereafter be necessary or, in the opinion of
special counsel to the Banks, desirable (i) for the
execution, delivery or performance by the Trust of its, or
the exercise by the Banks of their, rights under the Loan
Documents or (ii) for the grant by the Trust of the
assignments and security interests granted by the Security
Documents or for the validity and enforceability or for the
perfection of or the exercise by the Agent of its rights and
remedies thereunder; or any such government approval shall
be revoked, terminated, withdrawn, suspended, modified or
withheld or shall cease to be in full force and effect, and
such revocation, termination, withdrawal, suspension,
modification, withholding or cessation may adversely affect
the Banks or the security provided to the Banks under the
Loan Documents, or any proceeding shall be commenced by or
before any governmental authority for the purpose of so
revoking, terminating, withdrawing, suspending, modifying or
withholding any such government approval and such proceeding
is not dismissed within 30 days;
(n) if, without the consent of the Majority
Banks, the Fuel Purchase Contract or any Loan Document shall
be amended, supplemented, terminated or otherwise modified
or become of no force or effect or the obligations of any
party thereto shall be modified, suspended, discharged or
terminated (in any such case, whether by the voluntary
action of any party to such Loan Document, by operation of
law, or otherwise and other than by the expiration thereof
in accordance with its terms), or the Trust shall give any
consent, waiver or approval thereunder (other than any
consent, waiver or approval which cannot adversely affect
the Banks or the security provided to the Banks under the
Loan Documents);
(o) if the Agent and the Banks shall fail to have
a valid and perfected first priority security interest,
subject to no liens prior or equal to the liens of the
Security Documents except, in the case of fuel stored in
storage fields under the control of Persons other than the
Trust, the lien for storage charges and interest thereon, to
the extent permitted by applicable law, over all the
collateral and security purported to be granted to the Agent
and the Banks pursuant to the Security Documents;
(p) if all or any material part of the property
comprising the Collateral shall have been condemned, seized
or otherwise appropriated, or custody or control of such
property shall have been assumed, by any court, government
or governmental agency of competent jurisdiction, and such
property shall have been retained for a period of 30 days;
(q) if by reason of the transactions contemplated
by the Loan Documents, the Trust, the Trustee, the Agent or
any Bank becomes, or is declared by the SEC to be, or with
the passage of a specific period of time would become, a
"public utility company" as defined in the Public Utility
Holding Company Act of 1935, as amended, or any successor
provisions thereto, or the Trust, the Trustee, the Agent or
any Bank or the beneficiaries of the Trust, or any partner,
officer or employee of any of them, shall become, or with
the passage of a specific period of time would become,
subject to regulation under said Act;
(r) if by reason of the transactions contemplated
by the Loan Documents, the Trust, the Trustee, the Agent or
any Bank becomes, or is declared by the DPU or similar
agency of any other state to be, or with the passage of a
specific period of time would become, a "gas company" as
defined in Chapter 164 of the Massachusetts General Laws, or
the equivalent as defined under the law of any other state,
or the Trust, the Trustee, the Agent or any Bank, shall
become, or with the passage of a specific period of time
would become, subject to regulation as public utilities
and/or public service corporations under the laws of any
state, unless in any such case within 10 days thereof the
Company shall have obtained a stay, and such stay shall
remain in full force and effect, or taken other action which
eliminates the adverse consequences of the event or
declaration giving rise to any of the foregoing;
(s) if by reason of the transactions contemplated
by the Loan Documents, the Trust, the Trustee, the Agent or
any Bank becomes, or is declared by the Department of Energy
or FERC to be, or with the passage of a specific period of
time would become, a "public utility" as defined in the
Federal Power Act, as amended, or a "natural gas company" as
defined in the Natural Gas Act, as amended, or the Trust,
the beneficiaries of the Trust, the Trustee, the Agent or
any Bank, or any partner, officer or employee of any of them
shall be, or with the passage of a specified period of time
would become, subject to regulation under either or both of
said Acts, unless in any such case within 10 days thereof
the Company shall have obtained a stay, and such stay shall
remain in full force and effect, or taken other action which
eliminates the adverse consequences of the event or
declaration giving rise to any of the foregoing; or
(t) if any judicial decision, law or regulation
or interpretation of any judicial decision, law or
regulation shall be adopted or enforced by any court or
governmental or regulatory authority (including, without
limitation, the DPU or similar agency of any other state,
the SEC, the Department of Energy and FERC),and as a result
of such adoption or enforcement any Loan Document or any
transaction contemplated thereby shall be or become, or with
the passage of a specific period of time would become,
unlawful or the performance of any Loan Document or any
material term thereof shall be rendered impracticable,
unlawful or unenforceable unless within 10 days thereof the
Company shall have obtained a stay of such action, and such
stay shall remain in full force and effect, or taken other
such action which eliminates the adverse consequences of
such action;
then and in any such event (unless all Defaults and Events
of Default shall theretofore have been remedied) the Agent
may and, upon the written, telecopied or telephonic
(confirmed in writing) request of the Majority Banks shall
by notice to the Trust declare: (i) the obligation of each
Bank to make Advances to the Trust to be terminated,
whereupon the same shall terminate, and/or (ii) the Advances
to the Trust, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and
payable, whereupon such Advances, all such interest and all
such amounts shall become and be forthwith due and payable
without presentment, demand, protest or notice, all of which
are hereby expressly waived by the Trust. Notwithstanding
the foregoing, upon any Event of Default contemplated by
subsections (g), (h) or (i) above, all amounts specified in
clause (ii) above shall become immediately due and payable
automatically without any requirement of notice from the
Agent or any Bank.
14. NOTICE AND WAIVERS OF DEFAULT.
14.1. Notice of Default. If any Person shall give
any notice or take any other action in respect of a claimed
Default (whether or not constituting an Event of Default)
under this Agreement or any other note, evidence of
indebtedness, indenture or other obligation as to which the
Company, any of its Subsidiaries or the Trust is a party, or
obligor, whether as principal or surety, the Trust shall
forthwith give written notice thereof to each of the Banks,
describing the notice or action and the nature of the
claimed Default.
14.2. Waivers of Default. Any Default or Event of
Default may be waived as provided in 25 hereof. Any
Default or Event of Default so waived shall be deemed to
have been cured and to be not continuing; but no such waiver
shall extend to or affect any subsequent like default or
impair any rights arising therefrom.
15. REMEDIES ON DEFAULT, ETC.
15.1. Rights of Banks. In case any one or more of
the Events of Default specified in 13 shall have occurred
and be continuing, and whether or not all amounts owing with
respect to the Advances have been declared due and payable
pursuant to 13, (i) each Bank, if owed any amount with
respect to such Advances, may proceed to protect and enforce
its rights by suit in equity, action at law and/or other
appropriate proceeding, whether for the specific performance
of any covenant or agreement contained in this Agreement,
including the obtaining of the ex parte appointment of a
receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the Bank;
and (ii) to the extent any Bank holds Advances (excluding
Competitive Bid Advances) exceeding in the aggregate
principal amount such Bank's Commitment Percentage of the
then outstanding aggregate principal amount of all such
Advances held by all the Banks, the other Banks shall
purchase such participations in such Bank's Advances so as
to result in the outstanding aggregate principal amount of
such Advances held by each Bank to equal each such Bank's
Commitment Percentage of the then outstanding aggregate
principal amount of all such Advances. The Trust hereby
agrees that any Bank so purchasing a participation from
another Bank pursuant to this 15.1 may, to the fullest
extent permitted by law, exercise all its right of payment
(including the right of set-off) with respect to such
participation as fully as if such Bank were the direct
creditor of the Trust in the amount of such participation.
15.2. Setoff. Upon the occurrence and during the
continuance of any Event of Default, each Bank is hereby
authorized at any time and from time to time, without notice
(any such notice being expressly waived hereby) and to the
fullest extent permitted by law, to set off and apply any
and all deposits (general or specific, time or demand,
provisional or final, and in whatever currency denominated)
at any time held or other sums credited by or due from such
Bank to the Trust against any and all liabilities, direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter arising of the Trust to such Bank.
Each of the Banks agrees with the other Banks that (i) if an
amount to be set off is to be applied to Indebtedness of the
Trust to a Bank, other than the Advances held by all of the
Banks, such amount shall be applied ratably to such other
Indebtedness and to the Advances and (ii) if a Bank shall
receive from the Trust any payment whether by voluntary
payment, exercise of the right of setoff, counterclaim,
cross action, enforcement of the Advances held by a Bank by
proceedings against the Trust at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, any such
payment received under this 15.2 shall be shared in
proportion to each Bank's Commitment Percentage.
16. THE AGENT. (a) Each Bank by its own execution of
this Agreement does hereby appoint, and consent to the
appointment of, the Agent as agent for the ratable benefit
of the Banks hereunder. The Agent is authorized to take
such action on behalf of each of the Banks and to exercise
all such powers as are hereunder and in related documents
delegated to the Agent, together with such powers as are
reasonably incidental thereto.
(b) The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be
entitled to take, and to rely on, advice of counsel
concerning all matters pertaining to its rights and duties
under this Agreement. The Agent may utilize the services of
such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses
of any such Persons shall be paid by the Trust.
(c) Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other
Person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or
approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder, or in connection
herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment
whatsoever, except that the Agent or such other Person, as
the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
(d) The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement,
or any instrument at any time constituting, or intended to
constitute, collateral security for the Advances, or for the
value of any such collateral security or for the validity,
enforceability or collectibility of any such amounts owing
with respect to the Advances, or for any recitals or
statements, warranties or representations herein or made in
any certificate or instrument hereafter furnished to it by
or on behalf of the Trust or any beneficiary of the Trust or
be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or
agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security
for the Advances. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered to
it by the Trust or any holder of any of the Advances shall
have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does
it assume any liability to the Banks with respect to the
creditworthiness or financial condition of the Trust and
each Bank represents and warrants to the Agent that it has
made its own independent evaluation of the creditworthiness
of the Trust and has not relied upon the Agent or any
material or information furnished by the Agent in making
such evaluation.
(e) If in the opinion of the Agent the
distribution of any amount received by it in such capacity
hereunder might involve it in liability, it may refrain from
making distribution until its right to make distribution
shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the
Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the
Agent its proportionate share of the amount so adjudged to
be repaid or shall pay over the same in such manner and to
such Persons as shall be determined by such court. With
respect to obligations of the Trust hereunder, a payment to
the Agent shall be deemed to be a payment to the Banks.
(f) The Agent may deem and treat the payee of any
Note as the absolute owner thereof for all purposes hereof
until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder.
(g) In its individual capacity, Fleet National
Bank shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the
Advances made by it hereunder, as it would have were it not
also the Agent.
16A. THE CO-AGENT. Notwithstanding anything to
the contrary set forth herein, the Co-Agent shall be deemed
to be the agent of the Banks in name only, and the Co-Agent
shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than (a)
those applicable to all Banks as such or (b) those otherwise
applicable to The Bank of New York in its individual
capacity. Each Bank acknowledges that it has not relied,
and will not rely, on the Co-Agent in deciding to enter into
this Agreement or in taking or not taking action hereunder.
17. CONSENT TO JURISDICTION.
(a) The Trust hereby irrevocably submits to the
jurisdiction of any Massachusetts State or Federal court
sitting in Boston over any action or proceeding arising out
of or relating to this Agreement or any Note issued by the
Trust, and the Trust hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard
and determined in such Massachusetts State or Federal Court.
Service of process may be made to the Trust by mailing or
delivering a copy of such process to the Trust at the
Trust's address as specified in 21 hereof. The Trust
agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
(b) Nothing in this 17 shall affect the right of
any Bank to serve legal process in any other manner
permitted by law or affect the right of any Bank to bring
any action or proceeding against the Trust or its property
in the courts of any other jurisdictions.
18. BINDING EFFECT AND ASSIGNMENT. This Agreement
shall become effective when it shall have been executed by
the Trust, the Agent and each Bank and shall be binding upon
and inure to the benefit of the Trust, the Agent and each
Bank and their respective successors and assigns, except
that the Trust shall not have the right to assign its rights
hereunder or any interest herein without the prior written
consent of the Banks. Any Bank or subsequent assignee of
any Bank may with the written consent of the Trust (which
consent shall not be unreasonably withheld so long as the
assignment, if the Trust so requests, has first been offered
to one or more of the other Banks) and the Agent assign,
pursuant to documentation satisfactory to the Agent and its
counsel, to any financial institution (an "Assignee") all or
any part of such Bank's or Assignee's obligations, rights
and benefits hereunder and to the extent of such assignment
any such Assignee shall have the same obligations, rights
and benefits with respect to the Trust or any of them, as
the case may be, as it would have had if it were a Bank
hereunder; provided, that each such assignment shall be in a
minimum amount of $5,000,000 and, provided further, that no
such assignment shall become effective unless the assigning
bank shall have paid a $3,500 assignment fee to the Agent in
consideration of the Agent's recordation of such assignment.
Notwithstanding anything in this 18 to the contrary, each
Bank shall be permitted to assign any or all of its rights
hereunder to any of its "bank" affiliates or to any of the
twelve (12) Federal Reserve Banks organized under 4 of the
Federal Reserve Act 12 U.S.C. 341, without the prior
written consent of the Trust or the Agent, provided that
such "bank" affiliate shall have total capital of not less
than $100,000,000. If any assignee Bank is not incorporated
under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest
or fees are payable hereunder or under any of the other Loan
Documents for its account, deliver to the Trust and the
Agent a certification as to its exemption from deduction or
withholding of any United States Federal income taxes.
19. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same
agreement.
20. SURVIVAL OF COVENANTS, ETC. All covenants,
agreements, representations and warranties made herein and
in any certificates or other papers delivered by or on
behalf of the Trust pursuant hereto are material and shall
be deemed to have been relied upon by the Banks,
notwithstanding any investigation heretofore or hereafter
made by it, and shall survive the making by the Banks of the
Advances, as herein contemplated and shall continue in full
force and effect so long as any Commitment remains
outstanding or as long as any Advances or other amount due
under this Agreement or the Notes remain outstanding and
unpaid. All statements contained in any certificate or
other paper delivered to the Banks at any time by or on
behalf of the Trust pursuant hereto or in connection with
the transaction contemplated hereby shall constitute
representations and warranties by the Trust hereunder.
21. NOTICE, ETC. Except as otherwise specified
herein, all notices and other communications made or
required to be given pursuant to this Agreement shall be in
writing and shall be either delivered by hand or mailed by
United States of America first-class mail, postage prepaid,
or sent by telecopier confirmed by letter, addressed as
follows:
(a) If to the Trust, at State Street Bank and
Trust Company, Two International Place, Boston,
Massachusetts, Attn: Officer in Charge-Corporate Trust
Department or at such other address for notice as the Trust
shall last have furnished in writing to the Person giving
the notice; with a copy to:
Stanley Keller, Esq.
Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108
(b) if to the Agent, at Fleet National Bank, One
Federal Street, Boston, Massachusetts 02211, Attn: Thomas
L. Rose, Vice President, National Utilities Group, Telecopy:
(617) 346-0580, or such other address for notice as the
Agent shall last have furnished in writing to the Person
giving the notice; with a copy to:
Peter S. Johnson, Esq.
Gadsby & Hannah LLP
225 Franklin Street
Boston, MA 02110
Telecopy: (617) 345-7050
(c) if to any Bank, at the address set forth for
such Bank on the signature page hereof, or such other
address for notice as the Bank shall last have furnished in
writing to the Person giving the notice.
All such notices and communication shall, when mailed,
telexed, telecopied or cabled, be effective when deposited
in the mails or delivered to the telex, telecopy or cable
system, respectively.
22. GOVERNING LAW. This Agreement shall be deemed to
be a contract under the laws of the Commonwealth of
Massachusetts and shall for all purposes be construed in
accordance with and governed by the laws of said
Commonwealth, without regard to principles of conflicts of
law.
23. MISCELLANEOUS. The rights and remedies herein
expressed are cumulative and not exclusive of any other
rights which any Bank would otherwise have. Any instruments
required by any of the provisions hereof to be in the form
annexed hereto as an exhibit shall be substantially in such
form with such changes therefrom, if any, as may be approved
by the Banks and the Trust. The captions in this Agreement
are for convenience of reference only and shall not define
or limit the provisions hereof. This Agreement or any
amendment may be executed in separate counterparts, each of
which when so executed and delivered shall be an original,
but all of which together shall constitute one instrument.
In proving this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
24. ENTIRE AGREEMENT, ETC. This Agreement and any
other documents executed in connection herewith or therewith
express the entire understanding of the parties with respect
to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived,
discharged or terminated orally or in writing, except as
provided in 25.
25. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as
otherwise expressly set forth in any particular provision of
this Agreement or any of the other Loan Documents, any
consent or approval required or permitted by this Agreement
or any of the other Loan Documents to be given by the Banks
may be given, and any term of this Agreement or any of the
other Loan Documents or of any other instrument related
hereto or mentioned herein may be amended, and the
performance or observance by the Trust of any term of this
Agreement or any of the other Loan Documents may be waived
(either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the
written consent of the Trust and the Majority Banks,
provided, however, that:
(a) Without the written consent of such Banks as
hold 100% of the aggregate principal amount of the Maximum
Commitment,
(i) no reduction in the principal amount of,
interest rate on, or Facility Fee or any other fee
relating to the Commitments or the Advances shall be
made;
(ii) no extension or postponement of the stated
time of payment of the principal amount of, interest
on, or Facility Fee or any other fee relating to, the
Commitments or the Advances shall be made;
(iii) no increase in the amount, or extension
of the term, of the Commitment beyond those provided
for hereunder shall be made;
(iv) no change in the definitions of the terms
"Majority Banks" or "Collateral" shall be made;
(v) no release of any of the Collateral granted
by the Trust pursuant to the Security Documents shall
be made; and
(vi) no change in the language of this 25 shall
be made.
No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of any
Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to
or demand upon the Trust shall entitle the Trust to other or
further notice or demand in similar or other circumstances.
26. PARTICIPATIONS. Any Bank may, without the consent
of any other party, sell participations to one or more banks
or other entities (each a "Participant") in all or a portion
of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and its Advances); provided that (i) such Bank's
obligations under this Agreement shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the Trust, the Agent, and the Banks shall continue to
deal solely and directly with such Bank, as the case may be,
in connection with such Bank's rights and obligations under
this Agreement and (iv) each participation shall be in a
minimum amount of $5,000,000. No Bank shall grant any
Participant the right to vote or otherwise act in respect to
any matter related to this Agreement except that such rights
may be granted with respect to amendments or waivers related
to the reduction of principal or the reduction of the rate
of interest or a change in Facility Fees or the postponement
of the date fixed for any payment of principal or interest,
if such right to vote or otherwise act with respect to such
amendments or waivers is provided for by the terms of the
agreement governing such participation interest; provided,
however, that the Trust shall not be obligated to
communicate directly or indirectly with any Participant with
respect to this Agreement or the transactions contemplated
hereby.
27. EXPENSES; INDEMNIFICATION. Whether or not the
transactions contemplated hereby shall be consummated, the
Trust will pay (a) the reasonable cost of (i) reproducing
this Agreement and other instruments mentioned herein and
(ii) any taxes payable by any Bank (including any interest
and penalties in respect thereof but other than taxes based
upon such Bank's net income or profits) and any filing fees
payable by the Agent, on or with respect to the transactions
contemplated by this Agreement (the Trust hereby agreeing to
indemnify each Bank with respect thereto); (b) the
reasonable fees, expenses and disbursements of the Agent's
special counsel (Gadsby & Hannah LLP) incurred in connection
with the preparation of this Agreement and other instruments
mentioned herein, each closing hereunder, amendments,
modifications, approvals, consents or waivers hereto or
hereunder, (c) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and costs) incurred by
Fleet National Bank in connection with the syndication of
the loan and by the Banks in connection with (i) the
enforcement of this Agreement, the Notes and the other Loan
Documents against the Trust or the administration thereof
after the occurrence of an Event of Default and (ii) in
connection with any litigation, proceeding or dispute
whether arising hereunder or otherwise, in any way related
to any Bank's relationship with the Trust hereunder.
The Trust further agrees to indemnify and hold harmless
any Bank as well as each Bank's shareholders, directors,
agents, officers, subsidiaries and affiliates ("Indemnified
Parties") from and against all claims, actions or causes of
action ("Claims") (including without limitation all damages,
losses, settlement payments, liabilities, reasonable costs
and expenses related to any such Claims), incurred,
suffered, sustained or required to be paid by an Indemnified
Party by reason of or resulting from the transactions
contemplated hereby, except any of the foregoing which
result from gross negligence or willful misconduct of the
Indemnified Party; provided, that each Bank agrees not to
settle any litigation in connection with any claim or
liability with respect to which such Bank may seek
indemnification hereunder without the prior written consent
of the Trust, which consent shall not be unreasonably
withheld. In any investigation, proceeding or litigation,
or the preparation therefor, the Banks shall be entitled to
select their own counsel and, in addition to the foregoing
indemnity, the Trust agrees to pay promptly the reasonable
fees and expenses of such counsel, provided, however, that
the Trust shall be required to bear the expense of only one
counsel for all of the Banks unless (i) in the written
opinion of counsel to the Agent, use of only one counsel
could reasonably be expected to give rise to a conflict of
interest or (ii) the Trust authorizes any Bank to employ
separate counsel (including the in-house counsel of the
applicable Bank) at its expense. The covenants of this 27
shall survive payment or satisfaction of payment of amounts
owing with respect to the Notes.
28. CLAIMS AGAINST THE TRUSTEE. The Banks and the
Agent each acknowledge that if it should have any monetary
claim against the Trustee by reason of the transactions
contemplated hereby, such Bank shall look only to the Trust
Estate for payment or satisfaction thereof, except in the
case of gross negligence or willful misconduct on the part
of the Trustee.
29. HEADINGS. Headings of the sections have been
inserted as a matter of convenience only and shall not
control or affect the meaning or construction of any of the
terms and provisions hereof.
30. WAIVER OF JURY TRIAL. THE TRUST HEREBY WAIVES
ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF WHICH RIGHTS AND OBLIGATIONS. EXCEPT AS
PROHIBITED BY LAW AND EXCEPT IN THE CASE OF GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, THE TRUST HEREBY WAIVES ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO
IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE
OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. THE TRUST (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE
AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
BANK OR THE AGENT WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES
THAT THE AGENT AND THE BANKS HAVE ENTERED INTO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS TO WHICH THE TRUST IS A
PARTY IN RELIANCE ON, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
[remainder of page intentionally left blank]
Signed, sealed and delivered, as of the date set forth
at the beginning of this Agreement, by the Trust and each of
the Banks.
THE TRUST:
MASSACHUSETTS FUEL INVENTORY
TRUST
By State Street Bank and Trust
Company, not in its individual
capacity but solely as
successor Trustee of the
Massachusetts Fuel Inventory
Trust under the Trust Agreement
dated as of June 22, 1990 as
amended and in effect on the
date hereof, between it and the
Trustor and the Beneficiary
named therein
[Seal] By: s/Patrick E. Thebado
Title: Assistant Vice President
Attest:
THE BANKS:
THE BANK OF NEW YORK
By: s/John W. Hall
Title: Vice President
The Bank of New York
One Wall Street, 19th Floor
New York, NY 10286
Attention: John Hall
UNION BANK OF CALIFORNIA, N.A.
By: s/Karyssa M. Britton
Title: Vice President
Union Bank of California, N.A.
445 S. Figueroa Street
Los Angeles, CA 90071
Attention: Karyssa M. Britton
CORESTATES BANK, N.A.
By: s/Tony Braxton
Title: Vice President
CoreStates Bank, N.A.
1339 Chestnut Street
Philadelphia, PA 19107
Attention: Tony Braxton
FIRST UNION NATIONAL BANK
By: s/Michael J. Kolosowsky
Title: Vice President
First Union National Bank
301 S. College Street, 31st
Floor
Charlotte, NC 28288
Attention: Legal Division
FLEET NATIONAL BANK
By: s/Thomas L. Rose
Title: Vice President
Fleet National Bank
One Federal Street
Boston, Massachusetts 02211
Attention: Thomas L. Rose,
Vice President
THE CO-AGENT:
THE BANK OF NEW YORK
By: s/John W. Hall
Title: Vice President
The Bank of New York
One Wall Street, 19th Floor
New York, NY 10286
Attention: John Hall
THE AGENT:
FLEET NATIONAL BANK, as Agent
By: s/Thomas L. Rose
Title: Vice President
Fleet National Bank
One Federal Street
Boston, Massachusetts 02211
Attention: Thomas L. Rose,
Vice President
EXHIBIT A-1
REVOLVING CREDIT NOTE
[$________] September ___, 1997
FOR VALUE RECEIVED, the undersigned Massachusetts Fuel
Inventory Trust, a Massachusetts trust (the "Borrower"),
hereby absolutely and unconditionally promises to pay to the
order of [ ] (the "Bank") at
the head office of Fleet National Bank, as Agent (the
"Agent"), at One Federal Street, Boston, Massachusetts
02211:
(a) on , 1998, the principal amount of
[____________ ($_________)] or, if less, the aggregate
unpaid principal amount of Advances made by the Bank to
the Borrower pursuant to the Credit Agreement (as
hereinafter defined); and
(b) interest on the principal from time to time
outstanding from the date hereof through and including
the date on which such principal amount is paid in
full, at the times and at the rates provided in the
Revolving Credit Agreement dated as of September ___,
1997, as amended or supplemented from time to time (the
"Credit Agreement"), by and among the Massachusetts
Fuel Inventory Trust, the Bank and such other banks or
financial institutions that are or may become parties
to the Credit Agreement from time to time in accordance
with the provisions thereof (the Bank and such other
banks being collectively referred to as the "Banks")
and the Agent, as agent for the Banks.
This Note evidences borrowings under, is subject to the
terms and conditions of, and has been issued by the Borrower
in accordance with the terms of the Credit Agreement, and is
one of the Revolving Credit Notes referred to therein. The
Bank and any holder hereof is entitled to the benefits of
the Credit Agreement and may enforce the agreements of the
Borrower contained therein, and any holder hereof may
exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance
with the respective terms thereof. All capitalized terms
used in this Note and not otherwise defined herein shall
have the same meanings herein as in the Credit Agreement.
The Bank shall, and is hereby irrevocably authorized by
the Borrower to, endorse on the schedule attached to this
Note or a continuation of such schedule attached hereto and
made a part hereof, an appropriate notation evidencing
advances and repayments of principal of this Note, provided
that failure by the Bank to make any such notations shall
not affect any of the Borrower's obligations or the validity
of any repayments made by the Borrower in respect of this
Note.
The Borrower has the right in certain circumstances and
the obligation under certain other circumstances to prepay
the whole or part of the principal of this Note on the terms
and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall
occur, the entire unpaid principal amount of this Note and
all of the unpaid interest accrued thereon may become or be
declared due and payable in the manner and with the effect
provided in the Credit Agreement.
The Borrower and every endorser and guarantor of this
Note or the obligation represented hereby waive presentment,
demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension
or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of
collateral and to the addition or release of any other party
or person primarily or secondarily liable.
This Note shall be deemed to take effect as a sealed
instrument under the laws of the Commonwealth of
Massachusetts and for all purposes shall be construed in
accordance with such laws.
IN WITNESS WHEREOF, Massachusetts Fuel Inventory Trust
has caused this Note to be signed by its duly authorized
officer as of the day and year first above written.
MASSACHUSETTS FUEL INVENTORY
TRUST
By:
Title:
Amount of
Principal Balance of
Amount of Paid or Principal Notation
Date Loan Prepaid Unpaid Made By
EXHIBIT A-2
COMPETITIVE BID NOTE
[$ ] [ , 199 ]
FOR VALUE RECEIVED, the undersigned, Massachusetts Fuel
Inventory Trust, a Massachusetts trust (the "Borrower"),
hereby promises to pay to the order of [_______________]
(the "Bank"), at the office of Fleet National Bank, as Agent
(the "Agent") at One Federal Street, Boston, Massachusetts
02211, on [ , 199 ], pursuant to 3 of the Credit
Agreement dated as of September __, 1997, as amended, among
the Borrower, the Banks named therein and the Agent (the
"Credit Agreement"), the principal sum of ______________
Dollars ($ ) [and to pay interest on the unpaid
principal amount outstanding from time to time at the rate
of % per annum, payable on the last day of and on the
Maturity Date, at said office, in lawful money of the United
States of America in immediately available funds.
The Borrower promises to pay interest, on demand, on
any overdue principal and, to the extent permitted by law,
overdue interest at a rate or rates determined as set forth
in the Credit Agreement.
This Competitive Bid Note evidences borrowings under,
is subject to the terms and conditions of, and has been
issued by the Borrower in accordance with the terms of the
Credit Agreement, and is one of the Competitive Bid Notes
referred to therein. The Bank and any holder hereof is
entitled to the benefits of the Credit Agreement and may
enforce the agreements of the Borrower contained therein,
and any holder hereof may exercise the respective remedies
provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Competitive Bid
Note and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.
The Borrower has the right in certain circumstances and
the obligation under certain other circumstances to prepay
the whole or part of the principal of this Competitive Bid
Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall
occur, the entire unpaid principal amount of this
Competitive Bid Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the
manner and with the effect provided in the Credit Agreement.
The Borrower and every endorser and guarantor of this
Competitive Bid Note or the obligation represented hereby
waive presentment, demand, notice, protest and all other
demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this
Competitive Bid Note, assent to any extension or
postponement of the time of payment or any other indulgence,
to any substitution, exchange or release of collateral and
to the addition or release of any other party or person
primarily or secondarily liable.
This Competitive Bid Note shall be deemed to take
effect as a sealed instrument under the laws of the
Commonwealth of Massachusetts and for all purposes shall be
construed in accordance with such laws.
IN WITNESS WHEREOF, Borrower has caused this
Competitive Bid Note to be signed by its duly authorized
officer as of the day and year first above written.
MASSACHUSETTS FUEL INVENTORY TRUST
By:
Title:
EXHIBIT B
NOTICE OF BORROWING
FLEET NATIONAL BANK
As Agent for the Banks which are parties
to the Revolving Credit Agreement
referred to below
One Federal Street
Boston, MA 02211
Attention: Thomas L. Rose
Vice President, National Utilities Group
Ladies and Gentlemen:
The undersigned Massachusetts Fuel Inventory Trust (the
"Borrower") refers to the Revolving Credit Agreement, dated
as of September __, 1997 (the "Credit Agreement", the terms
defined therein being used herein as therein defined), among
the Borrower, certain Banks parties thereto, and FLEET
NATIONAL BANK, as Agent for said Banks, and hereby gives you
notice pursuant to 2.2 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the
information relating to such Borrowing (the "Proposed
Borrowing") as required by 2.2 of the Credit Agreement:
(i) The requested Business Day of the Proposed
Borrowing is , 19 ;
(ii) The requested Type of Advances comprising the
Proposed Borrowing is [Base Rate Advances] [Eurodollar
Advances];
(iii) [In the case of Eurodollar Advances:] such
Advances shall have a [one (1) month], [two (2) months],
[three (3) months], [six (6) months], initial Interest
Period therefor;] and
(iv) The aggregate amount of the Proposed Borrowing is
[$ ].
Very truly yours,
MASSACHUSETTS FUEL INVENTORY
TRUST
By
Title:
EXHIBIT C
FORM OF COMPETITIVE BID QUOTE REQUEST
[Date]
To: Fleet National Bank, as Agent (the "Agent")
From: Massachusetts Fuel Inventory Trust (the
"Borrower")
Re: Revolving Credit Agreement (the "Credit Agreement")
dated as of September __, 1997 among Massachusetts
Fuel Inventory Trust, the Banks party thereto and the
Agent.
We hereby give notice pursuant to 3.1(b) of the Credit
Agreement that we request Competitive Bid Quotes for the
following proposed Competitive Bid Borrowing(s):
Date of Borrowing:
Principal Amount* Interest Period** Maturity Date
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Terms used herein have the meanings assigned to them in
the Credit Agreement.
MASSACHUSETTS FUEL INVENTORY
TRUST
By
Title:
* Amount must be a minimum of $2,500,000 or any larger
multiple of $1,000.
** 7 to 180 days, subject to the provisions of the
definition of Interest Period.
EXHIBIT D
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
Massachusetts Fuel Inventory Trust (the "Borrower")
Pursuant to 3.1(c) of the Revolving Credit Agreement
(the "Credit Agreement") dated as of September __, 1997
among Massachusetts Fuel Inventory Trust, the Banks parties
thereto and Fleet National Bank, as Agent, we are pleased on
behalf of the Borrower to invite you to submit Competitive
Bid Quotes to the Borrower for the following proposed
Competitive Bid Borrowing(s):
Date of Borrowing:
Principal Amount Interest Period Maturity Date
$
Such Competitive Bid Quotes should offer a Competitive
Bid Rate.
Please respond to this invitation by no later than
* a.m. (Boston time) on [date].
FLEET NATIONAL BANK, as
Agent
By:
Authorized Officer
* The time specified in Section 3.1(d)(i) of the Credit
Agreement.
EXHIBIT E
FORM OF COMPETITIVE BID QUOTE
FLEET NATIONAL BANK, as Agent
One Federal Street
Boston, Massachusetts 02211
Attention:
Re: Competitive Bid Quote to Massachusetts Fuel Inventory
Trust (the "Borrower")
In response to your invitation on behalf of the
Borrower dated , 19 , we hereby make
the following Competitive Bid Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing: *
4. We hereby offer to make Competitive Bid Advance(s) in
the following principal amounts, for the following
Interest Periods and at the following rates:
Principal Interest Competitive Bid Maturity
Amount** Period*** Rate**** Date
$
$
We understand and agree that the offer(s) set forth
above, subject to the satisfaction of the applicable
conditions set forth in the Revolving Credit Agreement dated
___________________________
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not
exceed principal amount requested. Bids must be made
for $2,500,000 or any larger multiple of $500,000.
*** 7 to 180 days, as specified in the related Invitation.
**** Specify rate of interest per annum (each rounded to the
nearest 1/10,000th of 1%).
as of September __, 1997 among Massachusetts Fuel Inventory
Trust, the Banks, the parties thereto, and Fleet National
Bank, as Agent, irrevocably obligates us to make the
Competitive Bid Advance(s) for which any offer(s) are
accepted in whole or in part by the Borrower.
Very truly yours,
[NAME OF BANK]
Dated: By:
Authorized Officer
EXHIBIT F
[BORROWERS' COUNSEL LETTERHEAD]
____________, 1997
To: The Banks party to the credit agreements
referred to below (the "Credit Agreements")
and Fleet National Bank, as Agent for such Banks
Ladies & Gentlemen:
We have acted as counsel to Colonial Gas Company (the
"Utility"), a corporation organized under the laws of The
Commonwealth of Massachusetts, and Massachusetts Fuel
Inventory Trust (the "Trust"), a trust organized under the
laws of The Commonwealth of Massachusetts, in connection
with the preparation, execution and delivery of the
following documents and the transactions contemplated
thereby:
(i) The Trust Agreement dated as of June 26, 1990
(the "Trust Agreement") between State Street Bank and
Trust Company, as successor trustee, and the Utility.
(ii) The Revolving Credit Agreement dated as of
September __, 1997 (the "Trust Credit Agreement"), by
and among the Trust, The Bank of New York, Union Bank
of California, N.A., CoreStates Bank, N.A., First Union
National Bank and Fleet National Bank (the "Banks") and
Fleet National Bank as Agent for the Banks (the
"Agent") and The Bank of New York as Co-Agent for the
Banks;
(iii) The Revolving Credit Agreement dated as
of September , 1997 (the "Company Credit
Agreement") by and among the Utility, the Banks and the
Agent;
(iv) The Security Agreement and Assignment of
Contracts dated as of September __, 1997 (the "Security
Agreement"), between the Trustee and the Agent.
(v) The Purchase Contract dated as of June 26,
1990 (the "Purchase Contract") between the Trust and
the Utility.
(vi) The Consent and Agreement dated as of
September __, 1997 (the "Consent"), by the Utility.
(vii) The Notes dated the date hereof (the
"Notes"), executed by the Utility or the Trust under
the Respective Credit Agreements and each payable to
the order of one of the Banks.
This opinion is given pursuant to 6.1(c)(i) of the
Company Credit Agreement. Except as otherwise defined
herein, all terms defined in the Trust Credit Agreement
shall have the respective meanings ascribed to them therein.
In connection with our preparation of this opinion, we
have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of
the Loan Documents, the charter documents and by-laws of the
Utility, resolutions of the Board of Directors of the
Utility (certified copies of which have been furnished to
you), the Trust Agreement and such other documents as we
have deemed necessary in connection with the opinions
hereinafter set forth. We have relied as to various
questions of fact upon the representations and warranties of
the Utility contained in the above-mentioned documents and
the certificates of public officials and officers of the
Utility delivered thereunder.
We have assumed due authorization and execution of all
agreements referred to herein by the parties thereto other
than the Utility and the Trust. We have also assumed the
genuineness of all signatures (other than those on behalf of
the Utility and the Trust), the conformity to the originals
of all documents reviewed by us as copies, and the
authenticity and completeness of all original documents
reviewed by us in original or copy form.
Our opinions expressed in paragraphs 5 and 11 hereof
are qualified by the fact that if the Agent or one or more
of the Banks should acquire gas which is part of the
Collateral (as defined in the Security Agreement) by
foreclosure or otherwise and intends to dispose of such gas
in The Commonwealth of Massachusetts, any contract or
contracts for the sale of such gas might have to be filed
and might be subject to action by the DPU relative to the
rates, prices, charges and practices covered by such
contract. Additionally, if such Collateral should be
purchased by a Massachusetts gas company under a contract
covering a period in excess of more than one year, either
DPU approval or a provision in the contract subjecting the
price of the Collateral to future DPU review will be
required.
Based upon the foregoing, and subject to the
limitations and qualifications set forth below, we are of
the opinion that:
1. The Utility is a corporation duly organized,
validly existing and in good standing under the laws of The
Commonwealth of Massachusetts; has not failed to qualify to
transact business in any jurisdiction where failure to
qualify would materially adversely affect its ability to
perform its obligations under any of the Loan Documents to
which it is a party; and has corporate power to execute and
deliver each of the Loan Documents to which it is a party
and to incur and perform its obligations thereunder.
2. The making and performance by the Utility of each
of the Loan Documents to which it is a party have been duly
authorized by all necessary corporate action and do not and
will not violate any provision of law or of its charter or
by-laws or result in the breach of or constitute a default
under or require any consent under any indenture or other
agreement or instrument of which we are aware (after having
made a reasonable investigation with respect thereto) to
which the Utility is a party or by which the Utility or its
properties and assets may be bound or affected.
3. Except for matters described or referred to in
Schedule 8.7 of the Colonial Credit Agreement or Schedule
9.7 of the Trust Credit Agreement, there are no actions,
suits or proceedings at law or in equity by or before any
governmental agency or authority or arbitrator now pending
or, to the best of our knowledge (after having made a
reasonable investigation with respect thereto), threatened
against or affecting the Utility or the Trust which, if
adversely determined, could materially adversely affect the
obligations of the Utility or the Trust to carry out the
transactions contemplated by the Loan Documents. In
rendering the opinion expressed in this paragraph 3, with
your permission we have made no independent review of any
court's docket.
4. Each Loan Document to which the Utility is a party
constitutes a legal, valid and binding obligation of the
Utility, enforceable against the Utility in accordance with
its terms subject, as to enforceability, to applicable
bankruptcy, insolvency, moratorium and other similar laws
affecting creditors rights generally and to general
principals of equity.
5. No government approval is required for the due
execution, delivery and performance by the Utility and the
Trust of their respective obligations, and the exercise of
their respective rights, under the Loan Documents or for the
grant by the Utility and the Trust of the security interests
and assignments granted by the Loan Documents or for the
validity and enforceability thereof or for the perfection or
the exercise by the Agent of its rights and remedies
thereunder except the order of the DPU dated June , 1990,
which order has been duly obtained. There is no proceeding
pending, or to the best of our knowledge (after having made
a reasonable investigation with respect thereto) threatened,
which seeks, or may reasonably be expected, to rescind,
terminate, modify or suspend the aforesaid order.
6. The security interest granted to you under the
Security Agreement in the Collateral, as defined therein,
has been duly created with respect to those items and types
of Collateral in which a security interest may be created
under Article 9 of the Uniform Commercial Code of those
jurisdictions in which the Collateral is located (in each
case, the "UCC"), and financing statements relating to such
security interest have been duly filed pursuant to the UCC
with the Massachusetts Secretary of State and the Boston
City Clerk; the New York Department of State and the
Allegheny County Registry of Deeds; the Pennsylvania
Secretary of State and the Potter County Prothonotary; and
the West Virginia Secretary of State and the ________ County
Clerk, which are the only actions necessary to perfect such
security interest in the right, title and interest of the
Trust in those items and types of Collateral in which a
security interest may be perfected by filing a financing
statement under the UCC. We call your attention, however,
to the necessity of filing continuation statements or
amendments from time to time or under certain circumstances
under the applicable provisions of the UCC in order to
maintain such perfection. At the time of a search made
within ( ) days of the date hereof in the
offices of [recite locations searched], the Collateral was
subject to no liens or security interests properly recorded
or filed in such filing offices showing the Trust or the
Utility as debtor, except . Capitalized terms used in this
paragraph 6 have the meanings ascribed to them in the
Security Agreement.
7. The Trust is a trust validly existing under the
laws of The Commonwealth of Massachusetts and has the legal
capacity to enter into, and to perform its obligations
under, each of the Loan Documents to which it is or is
intended to be a party and all other instruments and
agreements to be executed and delivered by it thereunder.
8. Each of the Credit Agreement, the Security
Agreement and the Trust Agreement constitutes, and each of
the other Loan Documents to which the Trust is a party or to
which the Trust is contemplated to become a party from time
to time pursuant to the Credit Agreement, when executed and
delivered, will constitute the legal, valid and binding
obligation of the Trust, enforceable against the Trust in
accordance with its respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency,
moratorium and other similar laws affecting creditors'
rights generally and to general principals of equity.
9. All capitalized terms in this paragraph 9 have the
meanings ascribed to them in the Security Agreement. The
Storage Facility Agreements pursuant to which Fuel is or is
to be stored in facilities under the control of Persons
(other than the Utility) which have agreed with the Utility
to store such Fuel constitute legal, valid and binding
obligations of the Utility, and such Storage Facility
Agreements do not restrict the performance by the Trust or
the Utility of each Loan Document to which they are parties
or prohibit the authorization by the Utility of the Trust or
its designee to give instructions, and take other action
pursuant to such agreements, contained in 3(d) of the
Purchase Contract.
10. By reason of the transactions contemplated by the
Loan Documents, neither the Trust, the Trustee, the Agent
nor any Bank will become, or will be declared by the SEC to
be, or with the passage of a specific period of time will
become, a "public utility company" as defined in the Public
Utility Holding Company Act of 1935, as amended, or any
successor provision thereto, and neither the Trust, the
Trustee, the Agent nor any Bank or the shareholders of any
of the Trust, the Agent or any Bank, or any partner, officer
or employee of any of them, will become, or with the passage
of a specific period of time will become, subject to
regulation under said Act.
11. Under existing law neither the Trust, the Trustee,
the Agent nor any Bank will become, by reason of the
transaction contemplated by the Loan Documents, a "gas
company" as defined in section 1 of Chapter 164 of the
Massachusetts General Laws as now in effect, nor will any of
them or the shareholders of any of them become subject to
regulation under the laws of the Commonwealth of
Massachusetts governing public utilities or public service
companies.
We do not herein express any opinion as to matters
governed by any laws other than the laws of The Commonwealth
of Massachusetts and the Federal Law of the United States.
To the extent the laws of the State of New York, the
Commonwealth of Pennsylvania and the State of Rhode Island
are relevant to our opinions herein expressed, we have
relied on the following opinions rendered to us of even date
herewith, a copy of which has been furnished to you: [LIST]
With respect to the Natural Gas Act and the Federal
Power Act, we have relied on the opinion of even date
herewith of ________________
Very truly yours,
EXHIBIT G
MASSACHUSETTS FUEL INVENTORY TRUST
Compliance Certificate Under
Revolving Credit Agreement
Dated September __, 1997
On behalf of Massachusetts Fuel Inventory Trust, a
Massachusetts Trust (the "Borrower"), the undersigned
[Insert Name], the Trustee of the Trust hereby certifies as
of the date hereof the following:
1. No Defaults. I have read a copy of the Revolving
Credit Agreement dated September __, 1997 (the "Agreement")
among the Borrower and the Banks named therein and, to the
best of my knowledge and belief, the Borrower is not in
default in the performance or observance of any of the
covenants, terms or provisions of the Agreement or the
covenants, terms or provisions of the Notes issued pursuant
thereto. [If the Borrower shall be in default, the signer
of this certificate shall specify all such Defaults and the
nature thereof, of which he or she may have knowledge.]
Attached hereto is Schedule A, on which are set forth all
relevant calculations needed to determine whether the
Borrower is in compliance with 11.8 and 11.9 of the
Agreement, which calculations are based on the financial
statements of the Borrower's most recent fiscal quarter
required to be supplied under the Agreement. I have no
knowledge of the occurrence of any event since the date of
such financial statements which would render this
Certificate incorrect as of the date hereof.
2. No Material Changes, Etc. Since [December 31,
1996] [or insert the date of the last certificate issued
pursuant to 10.3(c) of the Agreement], there have occurred
no Material Adverse Changes in the financial condition or
business of the Borrower as shown on or reflected in the
consolidated balance sheet of the Borrower as of [December
31, 1996] [or insert the date of the most recent audited
financials of the Borrower], other than changes disclosed in
writing and shown on Schedule B hereto, and changes in the
ordinary course of business which have not had any material
adverse effect on the business or financial condition of
the Borrower.
3. Litigation. Except as set forth on Schedule C
hereto, there are no actions, suits, proceedings or
investigations of any kind pending against the Borrower
before any court, tribunal or administrative agency or board
which, if adversely determined, might, either in any case or
in the aggregate, materially adversely affect the
properties, assets, financial condition or business of the
Borrower or materially impair the right of the Borrower to
carry on business substantially as now conducted, or result
in any substantial liability not adequately covered by
insurance, or which question the validity of the Agreement
or the Notes, or any action taken or to be taken pursuant
hereto or thereto.
4. No Materially Adverse Contracts, Etc. Except as
set forth on Schedule D hereto, neither the Borrower is (i)
subject to any charter, corporate or other legal restriction
or any judgment, decree, order, rule or regulation which in
the judgment of the Borrower has or is expected in the
future to have a materially adverse effect on the business,
assets or financial condition of the Borrower, or (ii) a
party to any contract or agreement which in the judgment of
the Borrower has or is expected to have any materially
adverse effect on the business of the Borrower, except as
otherwise reflected in adequate reserves.
5. Tax Status. The Borrower has made or filed all
federal and state income and, to the best of my knowledge,
all other tax returns, reports and declarations required by
any jurisdiction to which it is subject; and has paid all
taxes and other governmental assessments and charges that
are material in amount, shown or determined to be due on
such returns, reports and declarations, except those being
contested in good faith; and has set aside on its books
provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes,
except those being contested in good faith, in any material
amount claimed to be due by the taxing authority of any
jurisdiction, and I know of no basis for any such claim.
MASSACHUSETTS FUEL INVENTORY
TRUST
By
Title
EXHIBIT I
MONTHLY REPORT
MASSACHUSETTS FUEL INVENTORY TRUST (the "Trust") hereby
certifies to FLEET NATIONAL BANK (the "Bank"), pursuant to
Section 11.3(e) of the Revolving Credit Agreement dated as
of September _____, 1997 (the "Credit Agreement"), that the
Borrowing Base is as follows and that the Trust Borrowing
Base is at least equal to the amount of the Advances
requested by the Trust as of the last day of the previous
month together with all outstanding Advances to the Trust
calculated as follows:
Calculation of Borrowing Base:
1. The Cost of the Trust's inventory
of Commodities (by type) as of the
end of the calendar month preceding
the date of this
Certificate (the "Month") $_________
2. The dollar value of the Trust's
outstanding accounts receivable
at the end of the Month $_________
Total Fuel Inventory $_________
3. The locations (city/county and state) where the
Natural Gas and propane owned by the Borrowers is stored as
of the end of the Month are as follows:
Defined terms used herein without definition shall have
the meanings ascribed to such terms in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
certificate as of the ______ day of ________________,
199___.
MASSACHUSETTS FUEL INVENTORY
TRUST
By State Street Bank and Trust
Company, not in its individual
capacity but solely as
successor Trustee of the
Massachusetts Fuel Inventory
Trust under the Trust Agreement
dated as of June 22, 1990 as
amended and in effect on the
date hereof, between it and the
Trustor and the Beneficiary
named therein
[Seal] By:
Title:
Execution Copy
SECURITY AGREEMENT
AND ASSIGNMENT OF CONTRACTS
SECURITY AGREEMENT AND ASSIGNMENT OF CONTRACTS (this
"Security Agreement") dated as of September 12, 1997, made by
MASSACHUSETTS FUEL INVENTORY TRUST (the "Trust") by State
Street Bank and Trust Company, not in its individual capacity
but solely as successor trustee (herein, in such capacity,
called the "Trustee") under the Trust Agreement dated as of
June 22, 1990 (said Trust Agreement, as the same may from
time to time be amended, modified or supplemented, being
herein called the "Trust Agreement") between it and Colonial
Gas Company, as trustor and beneficiary (the "Company", and
together with the Trust, the "Borrowers"), to FLEET NATIONAL
BANK as agent (in such capacity, the "Agent"), for the
ratable benefit of itself and the Banks party to the Credit
Agreement (as defined below) (the "Banks") and the
institution and/or person acting as Trustee (hereinafter
referred to collectively as the "Secured Parties"):
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement (as
hereinafter defined), the Banks have agreed to extend credit
to the Trust from time to time in an aggregate principal
amount up to but not exceeding $30,000,000, by making
Advances to the Trust, such Advances to be evidenced by the
Notes (as defined in the Credit Agreement); and
WHEREAS, the Banks are willing to extend credit under
the Credit Agreement in order, among other things, to enable
the Trust to acquire rights in the Collateral (as hereinafter
defined), but only upon the condition, among others, that (a)
the Trust shall have executed and delivered to the Agent, for
the ratable benefit of the Secured Parties, this Security
Agreement and Assignment of Contracts and (b) the Company
shall have executed and delivered to the Agent, for the
ratable benefit of the Secured Parties, the Consent and
Agreement;
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants herein contained and for other good and
valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
Section 1. Defined Terms. Unless the context
otherwise specifies or requires, each term defined in this
Section 1 shall, when used in this Agreement, have the
meaning indicated. To the extent that certain of the terms
defined in this Agreement are defined by cross-reference to
documents which may not be in full force and effect during
the entire term of this Agreement, the definitions contained
in such documents shall be and remain effective for purposes
of implementing this Agreement during the term of this
Agreement.
"Advance" shall have the meaning set forth in Section 1
of the Credit Agreement.
"Agent" shall mean Fleet National Bank, and its
successors and permitted assigns, as agent for the ratable
benefit of the Secured Parties.
"Authorized Officer" shall mean at any time and for any
purpose the following officers: in the case of the Trust,
any Vice President or Assistant Vice President of the
Trustee; or in the case of the Company, President, Vice
President, Treasurer, or any Assistant Treasurer.
"Banks" shall have the meaning specified in the preamble
to the Credit Agreement.
"Bill of Sale" shall have the meaning specified in
Schedule A to the Fuel Purchase Contract.
"Cash Collateral Account" shall have the meaning,
specified in Section 6.1 of this Agreement.
"Code" shall mean the Uniform Commercial Code as the
same may from time to time be in effect in any applicable
jurisdiction.
"Collateral" shall mean all property or rights referred
to in Section 2(a) hereof in which a security interest is
granted under this Security Agreement.
"Commodities" means each of the following types of gases
and fuels: liquified natural gas and natural gas in vapor
form (herein collectively called "Natural Gas") and propane,
each of which is a fungible commodity which is intermingled
or may be intermingled with Commodities owned by other
Persons and all contract rights, general intangibles and
other rights to acquire any of the foregoing types of gases
and fuels; and such other type or types of gases and fuels
as may from time to time be acceptable to the Banks and the
Agent.
"Commitment" shall have the meaning specified in Section
1 of the Credit Agreement.
"Company" means Colonial Gas Company, a Massachusetts
corporation.
"Consent and Agreement" means the Consent and Agreement
between the Company and the Agent in the form attached as
Annex II hereto.
"Contracts" shall mean, collectively, (i) the Fuel
Purchase Contract and (ii) all Bills of Sale.
"Credit Agreement" shall mean the Credit Agreement dated
as of the date hereof between the Trustee, the Agent and the
Banks, as the same may from time to time be amended, modified
or supplemented.
"Default" shall have the meaning specified in Section 1
of the Credit Agreement.
"Event of Default" shall have the meaning specified in
Section 1 of the Credit Agreement.
"Fuel Purchase Contract" means the Purchase Contract
between the Trust and the Company dated June 27, 1990, a copy
of which, as amended and in effect on the date hereof, is
attached as Annex I hereto.
"Majority Banks" shall have the meaning specified in
Section 1 of the Credit Agreement.
"Notes" shall have the meaning specified in Section 1 of
the Credit Agreement.
"Obligations" shall mean all indebtedness, obligations
and liabilities of the Trust to the Agent or any other
Secured Party, whether absolute or contingent, due or to
become due, now existing or hereafter incurred, under,
arising out of or in connection with the Credit Agreement,
the Notes or this Security Agreement.
"Person" shall have the meaning specified in Section 1
of the Credit Agreement.
"Proceeds" shall have the meaning assigned to it under
the Code and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable to the Trust from time to time
with respect to any of the Collateral, (ii) any and all
payments (in any form whatsoever) made or due and payable to
the Trust from time to time in connection with any
requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any
governmental body, authority, bureau or agency (or any Person
acting under color of governmental authority), and (iii) any
and all other amounts from time to time paid or payable under
or in connection with any of the Collateral.
"Secured Parties" shall mean the Agent and the Banks and
the Trustee and their respective successors and permitted
assigns.
"Security Agreement" shall mean this Security Agreement
and Assignment of Contracts and all Annexes thereto, as the
same may from time to time be amended, modified or
supplemented.
"Storage Facility Agreements" shall have the meaning
ascribed to it in the Fuel Purchase Contract.
"Storage Fields" means those certain storage areas,
together with the related fixtures and equipment described in
Schedule D to the Fuel Purchase Contract (as from time to
time amended with the prior written consent of the Majority
Banks) used to store Commodities financed hereunder.
"Termination Date" shall have the meaning specified in
Section 1 of the Credit Agreement.
"Trust" shall mean the trust created by the Trust
Agreement, and in no event shall such term be deemed to
include State Street Bank and Trust Company, the Company (as
the beneficiary and trustor) or any of their respective
assets (but shall include the Trust Estate).
"Trust Estate" shall have the meaning specified in the
Trust Agreement.
"Trust Agreement" shall have the meaning specified in
Section 1 of the Credit Agreement.
Section 2. Grant of Security Interest.
(a) As collateral security for the prompt and complete
payment and performance when due of all the Obligations and
in order to induce the Banks to enter into the Credit
Agreement and extend credit to the Trust in accordance with
the terms thereof, the Trust hereby assigns, conveys,
mortgages, pledges, hypothecates and transfers to the Agent,
for the ratable benefit of the Secured Parties, and hereby
grants to the Agent, for the ratable benefit of the Secured
Parties, a security interest in all the Trust's right, title
and interest in, to and under the following (all of which
being hereinafter collectively called the "Collateral"):
(i) the Contracts;
(ii) all Commodities;
(iii) all accounts, contract rights and general
intangibles arising in respect of sales of or contracts
to sell any Commodities;
(iv) all rights, remedies, powers, privileges and
claims of the Trust, now or hereafter existing, (a) for
all monies due and to become due under any of the
agreements and instruments referred to in clause (i)
above, (b) for indemnities, warranties and guaranties
provided for or arising out of or in connection with any
of the agreements and instruments referred to in clause
(i) above or the Commodities, (c) for any damages
arising out of or for breach or default under or in
connection with any such agreement or instrument, (d) to
all other amounts from time to time paid or payable
under or in connection with any such agreement or
instrument (including refunds thereunder), (e) to accept
delivery of and to receive title to any Commodities or
to obtain any service with respect thereto under any
such agreement or instrument or to perform or to
exercise or enforce any and all covenants, remedies,
powers and privileges thereunder; provided, however,
that the foregoing shall not relate to any insurance,
indemnities, warranties and guaranties to the
institution and/or person acting as Trustee;
(v) the Cash Collateral Account and all monies and
instruments from time to time in the Cash Collateral
Account; and
(vi) to the extent not otherwise included, all
Proceeds and products of any or all of the foregoing.
(b) The security interest granted hereby in all
Commodities and all Contracts is and shall be a purchase
money security interest.
Section 3. Assignment of Rights, Powers and
Privileges. In addition to the assignment and security
interest granted in Section 2 hereof, and without limitation
of any of the rights and remedies provided for in this
Security Agreement, the Trust hereby irrevocably assigns and
transfers to the Agent, for the ratable benefit of the
Secured Parties, absolutely and not merely as collateral
security, the right to exercise any and all of the Trust's
rights, remedies, powers and privileges, (whether mandatory,
discretionary or judgmental) but none of its obligations,
duties or liabilities, under or arising out of the Contracts
including, without limitation, the Trust's right and/or power
to (i) take or refrain from taking any action under any of
the Contracts, (ii) express satisfaction with, grant approval
to or give any waiver or make any other determination with
respect to any payment, document, agreement, opinion,
certificate, representation, insurance, storage arrangement,
the fulfillment of any condition precedent or any action or
inaction relating to any of the Contracts or the transactions
contemplated thereby, and (iii) pursue any right or remedy
with respect to any default under any Contract. The Trust
agrees that, upon written instructions (or telephone
instructions, confirmed promptly by facsimile transmission
from the Agent), it will exercise any or all such rights,
remedies, powers and privileges as may be so instructed by
the Agent; provided that the Trust shall have no duty or
obligation to exercise any of such rights, remedies, powers
or privileges except as so instructed by the Agent. The
Trust also agrees that the Agent, for the ratable benefit of
the Secured Parties, may exercise in its sole discretion, any
or all such rights, remedies, powers or privileges directly,
without prior notice to or consent by the Trust; and in
furtherance thereof, and without limiting the generality of
the power granted in Section 7(a) hereof, the Trust hereby
irrevocably constitutes and appoints the Agent and any
officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact, with full irrevocable
power and authority in the place and stead of the Trust and
in the name of the Trust or in its own name, from time to
time in the Agent's discretion, to exercise any and all such
rights, remedies, powers or privileges. This power of
attorney is a power coupled with an interest and shall be
irrevocable. Notwithstanding the provisions of this Section
3, the institution or person acting as Trustee shall not be
required to exercise any of the foregoing rights, remedies,
powers or privileges, or to follow the instructions of the
Agent with respect to such exercise, if it has been advised
by counsel that in the reasonable opinion of counsel, such
exercise is or may be contrary to the Credit Agreement, or is
otherwise contrary to law or is likely to result in liability
for such institution or person acting as Trustee against
which such institution or person is not effectively
indemnified.
Section 4. Liabilities under Agreements. It is
expressly agreed that, anything contained herein to the
contrary notwithstanding (a) the Trust shall at all times
remain liable to observe and perform all of its duties and
obligations under each Contract to the same extent as if this
Security Agreement had not been executed; (b) the exercise by
the Agent, for the ratable benefit of the Secured Parties, of
any of the rights assigned hereunder shall not release the
Trust from any of its duties or obligations under any of the
Contracts; and (c) the Agent shall not have any obligation or
liability under any of the Contracts, by reason of or arising
out of this Security Agreement or the receipt by the Agent of
any payment or property under any of the Contracts pursuant
hereto, nor shall the Agent be obligated to perform or
fulfill any of the duties or obligations of the Trust under
any of the Contracts, or to make any payment thereunder, or
to make any inquiry as to the nature or sufficiency of any
payment or property received by it thereunder, or the
sufficiency or performance by any party thereunder, or to
present or file any claim, or to take any action to collect
or enforce any performance or the payment of any amounts or
the delivery of any property which may have been assigned to
it or to which it may be entitled at any time or times;
provided, however, that the foregoing shall not be deemed to
alter the Agent's obligations pursuant to Section 10 hereof,
as Agent for the ratable benefit of the Secured Parties,
pursuant to this Security Agreement.
Section 5. Covenants. The Trust covenants and
agrees with the Agent, for the ratable benefit of the Secured
Parties that from and after the date of this Security
Agreement and until the Obligations are fully satisfied:
5.1. Further Documentation; Pledge of Instruments. At
any time and from time to time, upon the written request of
the Agent, and at the sole expense of the Trust, the Trust
will promptly, subject to the following two sentences, duly
execute and deliver any and all documents and take such
further action as the Agent may reasonably deem desirable in
obtaining the full benefits of this Security Agreement and of
the rights and powers herein granted, including, without
limitation, the filing of any financing or continuation
statements under the Code with respect to the liens and
security interests granted hereby or otherwise necessary to
establish or maintain a prior perfected security interest in
the Collateral. The Trust also hereby authorizes the Agent
to file, on behalf of the Secured Parties, any such financing
or continuation statement without the signature of the
Trustee to the extent permitted by applicable law. If any
amount payable under or in connection with any of the
Collateral shall be or become evidenced by any promissory
note or other instrument, the Trust shall, or shall cause,
such note or instrument to be delivered immediately to the
Agent hereunder, duly endorsed in a manner satisfactory to
the Agent.
5.2. Maintenance of Records. The Trust will keep and
maintain at its own cost and expense records satisfactory to
the Agent with respect to the Collateral including, without
limitation, a record of all payments received and all credits
granted with respect to the Collateral and all other dealings
with the Collateral. The Trust will mark its books and
records pertaining to the Collateral to evidence this
Security Agreement and the security interest granted hereby.
For the Secured Parties' further security, the Trust agrees
that the Agent, on behalf of the Secured Parties, shall have
a special property interest in all of the Trust's books and
records pertaining to the Collateral and the Trust shall
deliver and turn over any such books and records to the Agent
or to its representatives at any reasonable time on demand of
the Agent. The Agent and the Trust shall have the right at
all reasonable times to inspect and copy such books and
records which are in the possession of the other.
5.3. Indemnification. In any suit, proceeding or action
brought by the Agent, on behalf of the Secured Parties, under
any Contract for any sum owing thereunder or to enforce any
provisions of such Contract, the Trust will (subject to the
provisions of Section 12 hereof) save, indemnify and keep the
Agent and each other Secured Party harmless from and against
all expense, loss or damage suffered by reason of any
defense, setoff, counterclaim, recoupment or reduction or
liability whatsoever of the obligee thereunder, arising out
of a breach by the Trust of any obligation thereunder or
arising out of any other agreement, indebtedness or liability
at any time owing to or in favor of such obligee or its
successors from the Trust, and all such obligations of the
Trust shall be and remain enforceable against and only
against the Trust and shall not be enforceable against the
Agent or any other Secured Party. The Trust further agrees,
subject to the provision of Section 12 hereof, to pay and to
save the Agent and the Secured Parties harmless from any and
all liabilities with respect to, or resulting from any delay
in paying, any and all excise, sales or other taxes which may
be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions
contemplated by this Security Agreement.
5.4. Limitations on Liens on Collateral. Except for the
security interests created by this Security Agreement and
liens permitted under Section 12.2 of the Credit Agreement,
the Trust will not create, permit or suffer to exist, and
will defend the Collateral against and take such other action
as is necessary to remove, any lien, security interest,
encumbrance, claim or right, in or to the Collateral, and
will defend the right, title and interest of the Secured
Parties in and to any of the Trust's rights in, to and under
the Collateral against the claims and demands of all persons
whomsoever.
5.5. Removals, etc. Without the prior written consent
of the Agent, the Trust shall not: (i) maintain any of its
books or records with respect to its accounts, contract
rights or general intangibles at any office other than an
office located at 40 Market Street, Lowell, MA 01852; or (ii)
permit any of its inventory (except inventory in transit or
covered by documents in the physical possession of the Agent)
or other tangible personal property included in the
Collateral to be held at or removed to any location other
than a location constituting a Storage Field except upon a
sale thereof in the ordinary course of business as presently
conducted. The Trust shall maintain its chief executive
office and principal place of business at Two International
Place, Boston, Massachusetts 02110, or at such other place in
Massachusetts as the Trust shall designate within 30 days of
any change of such office by written notice to the Agent.
Not later than 10 days after the end of each month, the Trust
shall notify the Agent of the locations of any Storage Field
not listed on Schedule A attached hereto where any of the
Commodities are located (except for such Storage Fields of
which the Trust has previously notified the Agent).
Section 6. Cash Collateral Account.
6.1. Establishment and Maintenance. Concurrently with
the execution and delivery of this Agreement, the Trust shall
establish at the office of the Agent at One Federal Street,
Boston, Massachusetts 02211, a cash collateral account,
Account No. _________, entitled the "Massachusetts Fuel
Inventory Trust Cash Collateral Account" (the "Cash
Collateral Account") which Cash Collateral Account shall be
maintained at all times until termination thereof in
accordance with Section 6.7 hereof. All monies and
instruments in the Cash Collateral Account from time to time
shall constitute collateral security for the payment and
performance by the Trust of all the Obligations and, subject
to the terms and provisions of this Agreement, shall at all
times be subject to the sole control of the Agent. The Trust
shall have no right of withdrawal from the Cash Collateral
Account, except as provided in Section 6.7 hereof, and shall
have no rights, title, interests, or powers with respect to
any monies or instruments at any time on deposit in the Cash
Collateral Account until it is terminated in accordance with
the provisions hereof; provided that the Agent shall act with
respect to the Cash Collateral Account and apply the funds
deposited therein in accordance with the provisions of
Sections 6.4, 6.5, 6.6 and 6.7 hereof. The Agent agrees to
give the Trust prompt notice if the Cash Collateral Account
or any funds on deposit in the Cash Collateral Account shall
become subject to any writ, judgment, warrant of attachment,
execution or similar process.
6.2. Security Interest. In furtherance of the intent of
this Section 6, the Trust has pursuant to this Agreement
assigned, pledged, and conveyed to the Agent, for the ratable
benefit of the Secured Parties, and granted to the Agent, for
the ratable benefit of the Secured Parties, a first,
perfected security interest in all monies and instruments
from time to time in the Cash Collateral Account as
collateral security for the prompt and unconditional payment
and performance in full of the Obligations.
6.3. Required Deposits. The Trust agrees that (i) it
will cause the proceeds of any Advance made to it pursuant to
the Credit Agreement to be deposited in the Cash Collateral
Account and (ii) it will cause all amounts payable to the
Trust under the Contracts to be deposited in the Cash
Collateral Account. Subject to and in furtherance of the
foregoing, the Trust agrees to deliver sufficient and
irrevocable instructions to all other parties to the
Contracts that all such proceeds and all payments due or to
become due to the Trust under the Contracts shall be promptly
paid directly into the Cash Collateral Account and that no
alteration, modification or abrogation of the foregoing
instructions shall be accepted by such Persons except upon
the express written authorization of the Agent. If,
notwithstanding the foregoing, the Trust at any time receives
any such proceeds or any payments under or in connection with
any Contract or otherwise assigned to the Agent for the
ratable benefit of the Secured Parties pursuant to this
Agreement, all such amounts shall be held by the Trust as the
agent of and in trust for the Agent, shall be segregated from
other funds of the Trust and shall, forthwith upon receipt by
the Trust, be turned over to the Agent for deposit in the
Cash Collateral Account in the same form as received by the
Trust (and, if received in the form of a check, note or any
other instrument, shall be duly endorsed by the Trust to the
order of the Agent).
6.4. Application of Funds. Until the occurrence and
continuance of an Event of Default, funds on deposit in the
Cash Collateral Account at any time and from time to time
(other than deposits to the Cash Collateral Account from
Advances as contemplated by Section 6.3(i) hereof, that are
to be applied in the fashion described in Section 2(b) or
2(e) of the Fuel Purchase Contract) shall be applied by the
Agent promptly upon receipt in the order of priority stated
below:
(i) ratably to the payment of all amounts then due
and payable to the Banks under the Credit Agreement,
according to the then unpaid amounts thereof, without
preference or priority of any kind among them; and
(ii) ratably, to the payment of amounts, if any,
then due and owing to any Secured Party (including the
Agent) on account of any indemnifications or other
obligations for fees or expenses or otherwise pursuant
to this Security Agreement, and to the payment of
amounts then due and payable to the institution and/or
person acting as Trustee on account of obligations for
fees and expenses or otherwise arising under the Trust
Agreement; according to the then unpaid amounts thereof,
without preference or priority of any kind among them.
Until the occurrence and continuance of an Event of
Default, funds deposited in the Cash Collateral Account at
any time and from time to time and constituting Advances
under Section 6.3(i) hereof, shall be applied to the account
of the Company as contemplated by Section 2(e) of the Fuel
Purchase Contract.
If any funds from time to time on deposit in the Cash
Collateral Account shall remain unused after application of
such funds in accordance with the foregoing, such funds
shall, subject to Sections 6.5 and 6.6 hereof, be accumulated
by the Agent in the Cash Collateral Account, for the ratable
benefit of the Secured Parties, and held as collateral
security for the payment and performance of the Obligations.
6.5. Default. If an Event of Default shall have
occurred and be continuing, the Agent may, subject to the
terms and provisions of Sections 9 and 11 hereof, at its sole
option from time to time apply all or any part of the funds
in the Cash Collateral Account in the manner specified in
Section 11 hereof.
6.6. Investment of Funds. To the extent not applied as
provided in Section 6.4 hereof, funds remaining on deposit in
the Cash Collateral Account shall be invested by the Agent,
at the election and direction of the Trust, in marketable
direct or guaranteed obligations of the United States of
America which mature within one year from the date of
purchase by the Agent, certificates of deposit and bankers'
acceptances of banks organized under the laws of the United
States of America or any state thereof having total assets in
excess of $1,000,000,000 United States Dollars, and
securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the
United States of America or any state thereof (other than the
Trustee) which at the time of purchase have been rated by one
or more nationally recognized rating organizations and the
ratings for which are not less than "A-1" or "P-1"; provided
that all such investments shall be evidenced by instruments.
Upon the investment of monies in the Cash Collateral Account
in instruments in accordance with the foregoing, such
instruments shall be deemed to be delivered to the Agent to
be held by it as Collateral hereunder, for the ratable
benefit of the Secured Parties, and the Agent shall be
authorized to endorse any of such instruments in a manner
satisfactory to it, on behalf of the Trust.
6.7. Termination of Cash Collateral Account. When the
Obligations have been satisfied and paid in full, the Agent
shall distribute the funds then on deposit in the Cash
Collateral Account to the Trust whereupon said Cash
Collateral Account shall terminate.
Section 7. Agent's Appointment as Attorney-in-Fact.
(a) The Trust hereby irrevocably constitutes and
appoints the Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-
in-fact with full irrevocable power and authority in the
place and stead of the Trust and in the name of the Trust or
in its own name, from time to time in the Agent's discretion
(subject to Section 10(b) hereof), for the purpose of
carrying out the terms of this Security Agreement, to take
any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable
in the judgment of the Agent to accomplish the purposes of
this Security Agreement and, without limiting the generality
of the foregoing, hereby gives the Agent, for the ratable
benefit of the Secured Parties, the power and right, on
behalf of the Trust without notice to or assent by the Trust,
to do the following:
(i) upon the occurrence and continuance of a
Default or an Event of Default, to ask, demand, collect,
receive and give acquittances and receipts for any and
all monies due and to become due, or any performance to
be rendered, under any Contract and, in the name of the
Trust or its own name or otherwise, to take possession
of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of
monies due under any Contract and to file any claim or
to take any other action or proceeding in any court of
law or equity or otherwise deemed appropriate by the
Agent for the purpose of collecting any and all such
monies due or securing any performance to be rendered
under any Contract; and
(ii) to pay or discharge taxes, liens, security
interests or other encumbrances levied or placed on or
threatened against the Collateral, to effect any repairs
or any insurance called for by the terms of any Contract
and to pay all or any part of the premiums therefor and
the costs thereof; and
(iii) upon the occurrence and continuance of
any Default or Event of Default, (A) to direct any party
liable for any payment or performance under any of the
Contracts to make payment of any and all monies due and
to become due thereunder or to render any performance
provided for therein directly to the Agent or as the
Agent shall direct; (B) to receive payment of and
receipt for any and all monies, claims and other amounts
due and to become due at any time in respect of or
arising out of any Collateral; (C) to sign and endorse
any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection
with accounts and other documents relating to the
Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court
of competent jurisdiction to collect the Collateral or
any portion thereof or Proceeds relating thereto and to
enforce any other right in respect of any Collateral;
(E) to defend any suit, action or proceeding brought
against the Trust with respect to any Collateral; (it
being understood that the Trustee shall have the right
to participate in the defense of any suit, action or
proceeding brought against the Trust which might involve
personal liability on the part of the Trustee); (F) to
settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith,
to give such discharges or releases as the Agent may
deem appropriate and (G) generally to sell, transfer,
pledge, make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely
as though the Agent were the absolute owner thereof for
all purposes, and to do, at the Agent's option and the
Trust's expense, at any time, or from time to time, all
acts and things which the Agent deems necessary to
protect, preserve or realize upon the Collateral and the
security interest created therein in favor of the
Secured Parties, in order to effect the intent of this
Security Agreement, all as fully and effectively as the
Trust might do.
The Trust hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. This power
of attorney is a power coupled with an interest and shall be
irrevocable.
(b) The powers conferred on the Agent, for the ratable
benefit of the Secured Parties hereunder are solely to
protect the interests of the Secured Parties in the
Collateral and shall not impose any duty upon the Agent to
exercise any such powers, except as provided in Section 10
hereof.
(c) The Trust also authorizes the Agent, for the
ratable benefit of the Secured Parties, at any time and from
time to time, (i) to communicate in its own name with any
party to any Contract with regard to the assignment of the
Contracts hereunder and other matters relating thereto and
(ii) to execute, in connection with the sale provided for in
Section 9(a) hereof, any endorsements, assignments, bills of
sale or other instruments of conveyance or transfer with
respect to the Collateral.
Section 8. Performance by Agent of Trust's
Obligations. If the Trust fails to perform or comply with
any of its agreements contained in the Credit Agreement or
any Contract, the Agent, for the ratable benefit of the
Secured Parties, as provided for by the terms of this
Security Agreement may itself perform or comply, or otherwise
cause performance or compliance, with such agreement, and the
expenses of the Agent incurred in connection with such
performance or compliance (including, without limitation,
legal fees and expenses), together with interest thereon at
the rate provided for in respect of the overdue Advances made
by the Agent under the Credit Agreement, shall be payable by
the Trust to the Agent on demand and such payment shall
constitute Obligations secured hereby.
Section 9. Remedies, Rights Upon Default.
(a) If an Event of Default shall occur and be
continuing, the Agent, for the ratable benefit of the Secured
Parties, may exercise (in addition to all other rights and
remedies granted to it in this Security Agreement and in any
other instrument or agreement securing, evidencing or
relating to the Obligations) all rights and remedies of a
secured party under the Code and/or any and all of the
Trust's rights and remedies under the Contracts in the name
of and in the place of, or in concert with, the Trust.
Without limiting the generality of the foregoing, the Trust
expressly agrees that in any such event the Agent, for the
ratable benefit of the Secured Parties, without demand of
performance or other demand, advertisement or notice of any
kind (except the notice specified below of time and place of
public or private sale) to or upon the Trust or any other
person (all and each of which demands, advertisements and/or
notices are hereby expressly waived to the extent permitted
by applicable law), may, subject to the provisions of the
Contracts, forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give an option or options to
purchase or otherwise dispose of and deliver said Collateral
(or contract to do so), or any part thereof, in one or more
parcels at public or private sale or sales, at any exchange,
broker's board or at any of the Agent's offices or elsewhere
at such prices as it may deem best, for cash or on credit or
for future delivery without assumption of any credit risk.
The Secured Parties shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any
such private sale or sales to purchase the whole or any part
of said Collateral so sold, free of any right or equity of
redemption in the Trust, which right or equity is hereby
expressly released. The Trust further agrees in any such
event, at the Agent's request, subject to the provisions of
the Contracts, to assemble the Collateral, and to make it
available to the Agent at places which the Agent shall
reasonably select, whether at the Trustee's premises or
elsewhere. The Agent, for the ratable benefit of the Secured
Parties, shall apply the proceeds of any such collection,
recovery, receipt, appropriation, realization or sale or
disposition to the payment in whole or in part of the
Obligations in accordance with the provisions of Section 11
of this Security Agreement; and only after so applying such
proceeds and after the payment by the Agent of any other
amount required by any provision of law, need the Agent
account for the surplus, if any, to the Trust. To the extent
permitted by applicable law, the Trust waives all claims,
damages and demands against the Agent arising out of the
repossession, retention or sale or disposition of the
Collateral. The Trust agrees that the Agent need not give
more than 10 days notice (which notification shall be deemed
given when delivered or when mailed, postage prepaid,
addressed to the Trustee at its address set forth in Section
14 hereof) of the time and place of any public sale or of the
time after which a private sale may take place and that such
notice is reasonable notification of such matters. Subject
to the provisions of Section 12 hereof, the Trust shall
remain liable for any deficiency if the proceeds of any sale
or disposition of the Collateral are insufficient to pay all
amounts to which the Agent, on behalf of the Secured Parties,
is entitled.
(b) The Trust also agrees, subject to the provisions of
Section 12 hereof, to pay all costs of the Agent incurred
with respect to the collection of any of the Obligations and
the enforcement of any Secured Parties' rights hereunder,
including all costs and expenses of every kind incurred
therein or incidental to the care, safekeeping or otherwise
of any or all of the Collateral, and attorneys' fees and
expenses. All amounts payable hereunder and under Section 27
of the Credit Agreement shall be payable on demand.
(c) Except as otherwise expressly provided in Section
9(a) above, to the extent permitted by applicable law, the
Trust hereby waives presentment, demand, protest or any
notice of any kind in connection with this Security Agreement
or any Collateral.
(d) The Trust also hereby agrees that the Agent shall
not be required to marshall any present or future security
for (including but not limited to the Collateral) any one or
more of the Obligations or to resort to such security in any
particular order; and all of the Agent's rights hereunder as
agent for the ratable benefit of the Secured Parties and in
respect of such security shall be cumulative and in addition
to all other rights, however existing or arising. To the
extent that it lawfully may, the Trust hereby agrees that it
will not invoke any law relating to marshalling of collateral
which might cause delay in or impede the enforcement of the
Secured Parties' rights under this Agreement, or under any
other instrument evidencing any of the Obligations or under
which any of the Obligations is outstanding or by which any
of the Obligations is secured or guaranteed, and to the
extent that it lawfully may, the Trust hereby irrevocably
waives the benefits of all such laws.
Section 10. Concerning Agent; Appointment of Agent;
Limitation on Agent's Duty in Respect of Collateral.
(a) The institution and/or person acting as Trustee, by
its execution of the requisite documents pursuant to which it
accepted its appointment as successor trustee under the Trust
Agreement, has thereby acknowledged and agreed that its
beneficial interest in the security interest granted to the
Agent under this Security Agreement shall be in lieu of all
other liens on the Trust Estate (which may arise as a matter
of law or otherwise) in favor of such institution and/or
person, and does thereby expressly waive the benefits of any
such lien.
(b) Subject to the provisions of paragraph (c) of this
Section 10, the Agent shall, upon the written instruction of
the Majority Banks, promptly take or refrain from taking any
action, or consent or effect a modification, waiver,
alteration or amendment of this Security Agreement, or
exercise or refrain from exercising any right, granted to the
Agent, for the ratable benefit of the Secured Parties, under
this Security Agreement, provided, however, that no
individual Bank (other than the Agent) or the Trust shall
have any right to enforce directly any of the rights or the
security interests granted by this Security Agreement or to
require the Agent to take or refrain from taking any action
under this Security Agreement.
(c) The Agent shall not be required to do any acts
hereunder or to take any action toward the execution or
enforcement of the agency hereby created or to prosecute or
defend any suit in respect of this Agreement or any
instrument delivered hereunder or otherwise, unless
indemnified to its satisfaction by the Banks (to the extent
not indemnified therefor by the Trust) against loss, cost,
liability and expense. If any indemnity furnished to the
Agent for any purpose, in the reasonable judgment of the
Agent determined in good faith, shall be insufficient or
shall become impaired, the Agent may call for additional
indemnity and shall not be required to commence, or shall be
entitled to cease, to do the acts indemnified against unless
such additional indemnity has been furnished.
(d) The Agent agrees, for the benefit of the Secured
Parties, that it will, subject to paragraph (c) of this
Section 10, enforce the rights and security interests granted
to the Secured Parties hereunder, in accordance with written
instructions given pursuant to paragraph (b) of this Section
10, with the same degree of care which it would exercise in
secured transactions for its own account. The Agent may
exercise its powers and execute its duties by or through
employees or agents and shall be entitled to take, and to
rely on, advice of counsel concerning all matters pertaining
to its rights and duties under this Agreement. Neither the
Agent nor any of its shareholders, directors, officers or
employees shall be liable to the Secured Parties for any
action taken, or omitted to be taken, in good faith by it or
them hereunder or in connection herewith or be responsible
for the consequences of any oversight or error of judgment,
provided that the Agent may be liable for losses due to its
gross negligence or willful misconduct. Notwithstanding any
other provision of this Security Agreement, neither the Agent
nor any of its shareholders, directors, officers or employees
shall be liable to the Secured Parties for any action taken,
or omitted to be taken, in accordance with written
instructions of the Majority Banks pursuant to paragraph (b)
of this Section 10, and in accordance with the standard of
care required by this paragraph (d).
(e) The Agent will not be responsible to the Secured
Parties for any recitals or statements, warranties or
representations in the Credit Agreement or this Security
Agreement or made in any certificate or instrument hereafter
furnished to it by or on behalf of any of the other parties
to the Credit Agreement or this Security Agreement or be
bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or
agreements therein. The Agent makes no representations or
warranties, and assumes no responsibility to the Secured
Parties, with respect to the legality, sufficiency,
enforceability or collectibility of the Credit Agreement or
this Security Agreement or any agreement, instrument or other
document referred to in any such documents, or of any
Collateral, or of the financial condition of the Trust or the
Company. The Agent assumes no responsibility for the
security value of the Collateral, or for the performance of
any obligations of the Trust or the Company. Beyond the safe
custody thereof, the Agent shall not have any duty as to any
Collateral in its possession or control or in the possession
or control of any of its agents or nominees or any income
thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto.
(f) For all purposes of this Security Agreement, in
absence of actual knowledge of a responsible officer of the
Agent, the Agent shall not be deemed to have knowledge of any
Default or Event of Default unless or until so notified in
writing by the Trust or the Company.
Section 11. Application of Proceeds Upon Event of
Default. Any monies or property actually received by the
Agent pursuant to the exercise of any rights or remedies
referred to in Section 9 or 11 hereof or otherwise, upon the
occurrence of an Event of Default, shall be applied in the
following order:
first, to the payment of all amounts due to the
Agent under Sections 8, 9 and 10(b) of this Security
Agreement and applicable law;
second, ratably, to the payment of any amounts then
due and payable to any Secured Party under the Credit
Agreement and the Notes, according to the then unpaid
amounts thereof, without preference or priority of any
kind among them (such payment in each case, to be
applied first to accrued unpaid interest and,
thereafter, to unpaid principal debt);
third, ratably, to the payment of amounts, if any,
then due and owing to any Secured Party (including the
Agent) on account of any indemnifications pursuant to
this Security Agreement, the Trust Agreement or any
Contract, and to the payment of amounts then due and
payable to the institution acting as Trustee on account
of obligations for fees or expenses arising under the
Trust Agreement according to the then unpaid amounts
thereof, without preference or priority of any kind
among them;
fourth, ratably, to the payment of all of the
Obligations (except for Obligations which shall have
been paid pursuant to items first, second or third of
this Section 11), according to the then unpaid amounts
thereof, without preference or priority of any kind
among them; and
fifth, the remainder, if any, to the Trust, its
successors or assigns, or to whomsoever may be lawfully
entitled to receive the same, or as a court of competent
jurisdiction may direct.
Section 12. Concerning Trustee.
(a) State Street Bank and Trust Company in its capacity
as Trustee, is entering into this Security Agreement and
granting the security interest provided for herein solely as
successor trustee under the Trust Agreement and pursuant to
instructions contained therein, and not in its individual
capacity and in no case whatsoever shall State Street Bank
and Trust Company (or any entity acting as a successor
trustee, co-trustee or separate trustee under the Trust
Agreement) be personally liable on, or for any loss in
respect of, any of the statements, representations,
warranties, agreements or obligations of the Trustee
hereunder or for any losses the Trust may suffer, as to all
of which the Agent, on behalf of the Secured Parties, agrees
to look solely to the Trust, except for any loss caused by
the Trustee's willful misconduct or gross negligence
(provided that this exception shall not be deemed to apply to
the extent that the Trustee has followed instructions given
to it, or which it is authorized to accept, pursuant to this
Agreement and the Trust Agreement).
(b) The Agent, on behalf of the Secured Parties, agrees
that if any other successor trustee is appointed in
accordance with the terms of the Trust Agreement, such
successor trustee shall, without further act, succeed to all
the rights, duties, immunities and obligations of the Trustee
hereunder and the predecessor successor trustee shall be
released from all further duties and obligations hereunder,
all without in any way altering the terms of this Security
Agreement or the Trustee's obligations hereunder.
Section 13. Release of Collateral. The Agent, on
behalf of the Secured Parties, agrees that each time the
Trust is required by the terms of the Fuel Purchase Contract
to transfer title to any Commodities to the Company free and
clear of the security interest created by this Security
Agreement, the Agent, on behalf of the Secured Parties, shall
release its security interest so that such transfer may be
made; provided that (i) no Default or Event of Default has
occurred and is continuing, and the Trustee and the Company
shall have delivered a certificate to such effect in the form
of Annex III attached hereto, signed by a duly authorized
officer of the Trustee and the Company (it being understood
that the Trustee shall be entitled to rely on the
representations of the Company in such certificate with
respect to the matters therein except to the extent that the
Trustee has received notice or has actual knowledge of such
matters) upon which the Agent shall be entitled to rely, (ii)
the Company and the Trust have each complied to the
satisfaction of the Agent with all provisions of the Fuel
Purchase Contract relating to such transfer, (iii) any
payment required to be made by the Company in connection with
such transfer shall have been deposited in the Cash
Collateral Account, and (iv) any Collateral being substituted
for such Commodities shall have become subject to the
security interest created by this Security Agreement and such
security interest shall have been perfected.
Section 14. Notices. Any notice to the Agent or the
Trust hereunder shall be deemed to have been duly given when
delivered or when deposited in the mail, first class postage
prepaid, addressed: if to the Agent, at One Federal Street,
Boston, Massachusetts 02211, Attention: Thomas L. Rose, Vice
President, National Utilities Group, and if to the Trust, at
State Street Bank and Trust Company, Two International Place,
Boston, Massachusetts 02110, Attention: Virginia Jones,
Secretary.
Section 15. Severability. Any provision of this
Security Agreement which 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 hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other
jurisdiction.
Section 16. No Waiver; Cumulative Remedies;
Amendments. The Agent or any other Secured Party shall not
by any act, delay, omission or otherwise be deemed to have
waived any of its rights or remedies hereunder and no waiver
shall be valid unless in writing, signed by the Agent on
behalf of the Secured Parties, and then only to the extent
therein set forth. A waiver by the Agent on behalf of the
Secured Parties of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or
remedy which the Agent or any other Secured Party would
otherwise have had on any future occasion. No failure to
exercise nor any delay in exercising on the part of the Agent
or any other Secured Party, any right, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The
rights and remedies hereunder provided are cumulative and may
be exercised singly or concurrently, and are not exclusive of
any rights and remedies provided by law. None of the terms
or provisions of this Security Agreement may be waived,
altered, modified or amended except by an instrument in
writing, duly executed by the party sought to be bound
thereby.
Section 17. Successors and Assigns; Governing Law.
This Security Agreement and all obligations of the Trust
hereunder shall be binding upon the successors and assigns of
the Trust, and shall inure to the benefit of the Agent and
the other Secured Parties and each of their respective
successors and assigns, subject to the limitations on the
right of assignment contained in Section 18 of the Credit
Agreement. This Security Agreement shall be governed by, and
be construed and interpreted in accordance with, the laws of
The Commonwealth of Massachusetts, without regards to
principles of conflicts of law.
Section 18. Financing Statement. A photographic or
other reproduction of this Security Agreement is sufficient
as a financing statement.
Section 19. Resignation or Removal of Agent; Fees and
Expenses.
(a) The Agent may, and shall, at the election of the
Majority Banks resign as agent for the ratable benefit of the
Secured Parties hereunder, such resignation to be effective
upon the earlier to occur of (i) written acceptance of
appointment as agent by a successor designated by the
Majority Banks, which acceptance shall be effective
immediately upon the execution thereof, or (ii) 30 days
following the Agent's delivery of a notice of resignation or
receipt of a notice of removal, as applicable. On the date
such resignation or removal is effective in accordance with
this Section 19(a), without further act, the Agent's
obligation to act as agent for the Secured Parties hereunder
shall terminate and thereupon, such successor, if any, shall
succeed to the rights, powers and duties of the Agent
hereunder with respect to the Collateral with like effect as
if an original signatory to this Agreement.
(b) Upon the resignation or removal of the Agent as
agent for the Secured Parties hereunder pursuant to paragraph
(a) of this Section 19, the Agent shall, upon the written
request of such successor, execute and deliver an instrument
or instruments transferring to such successor any Collateral
held by the Agent hereunder and shall pay over to such
successor all monies and instruments on deposit in such Cash
Collateral Account.
Section 20. Entire Agreement. This Agreement
together with all Annexes hereto, contains the full, final
and exclusive statement of the agreement between the Trust
and the Agent relating to the transactions contemplated
hereby.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Trust and the Agent have each
caused this Security Agreement and Assignment of Contracts to
be executed by its duly authorized officer on the date first
set forth above.
STATE STREET BANK AND TRUST
COMPANY,
not in its individual capacity
but solely as successor trustee
of the Massachusetts Fuel
Inventory Trust under the Trust
Agreement dated as of June 22,
1990, between it and the
Trustor and the Beneficiary
named therein.
By: s/Patrick E. Thebado
Assistant Vice President
FLEET NATIONAL BANK, as Agent
By: s/Thomas L. Rose, Vice President
ANNEX I
FUEL PURCHASE CONTRACT
ANNEX II
CONSENT AND AGREEMENT
ANNEX III
CERTIFICATE OF TRUSTEE
SCHEDULE 1
List of Storage Fields
County State
Lewis West Virginia
Taylor West Virginia
Harrison West Virginia
Gilmer West Virginia
Juniata Pennsylvania
Cameron Pennsylvania
Elk Pennsylvania
McKean Pennsylvania
Forest Pennsylvania
Jefferson Pennsylvania
Venango Pennsylvania
Erie Pennsylvania
Westmoreland Pennsylvania
Potter Pennsylvania
Steuben New York
Allegany New York
Niagara New York
Cattaraugus New York
Chautaugua New York
Wyoming New York
Middlesex Massachusetts
Barnstable Massachusetts
Plymouth Massachusetts
