<Page>
Exhibit 10.al
================================================================================
(1996)
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
Dated as of January 31, 2006
among
MAINE PUBLIC SERVICE COMPANY,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and
L/C Issuer,
and
The Other Lenders Party Hereto
================================================================================
<Page>
TABLE OF CONTENTS
<Table>
<Caption>
Section
Page
-------
----
<S>
<C>
ARTICLE I.
DEFINITIONS AND ACCOUNTING
TERMS............................................................1
1.01 Defined
Terms...............................................................................1
1.02 Other
Interpretive
Provisions..............................................................12
1.03 Accounting
Terms...........................................................................13
1.04
Rounding...................................................................................13
1.05 Times of
Day...............................................................................13
1.06 Letter of
Credit
Amounts...................................................................13
ARTICLE II.
THE COMMITMENTS AND CREDIT
EXTENSIONS......................................................13
2.01 Letters of
Credit..........................................................................13
2.02
Termination or Reduction of
Commitments....................................................18
2.03 Repayment
of L/C Borrowings;
Interest......................................................18
2.04
Fees.......................................................................................18
2.05
Computation of Interest and
Fees...........................................................19
2.06 Payments
Generally; Agent's
Clawback.......................................................19
2.07 Sharing of
Payments........................................................................20
ARTICLE III.
TAXES, YIELD PROTECTION AND
ILLEGALITY.....................................................20
3.01
Taxes......................................................................................20
3.02 Increased
Costs............................................................................21
3.03
Mitigation
Obligations.....................................................................22
3.04
Survival...................................................................................22
ARTICLE IV.
CONDITIONS PRECEDENT TO L/C CREDIT
EXTENSIONS..............................................22
4.01 Conditions
of Initial L/C Credit
Extension.................................................22
4.02 Conditions
to all L/C Credit
Extensions....................................................24
ARTICLE V.
REPRESENTATIONS AND
WARRANTIES.............................................................24
5.01 Existence,
Qualification and Power; Compliance with
Laws...................................24
5.02
Authorization; No
Contravention............................................................24
5.03
Governmental Authorization; Other
Consents.................................................24
5.04 Binding
Effect.............................................................................24
5.05 Financial
Statements; No Material Adverse Effect; No Internal Control
Event................25
5.06
Litigation.................................................................................25
5.07 No
Default.................................................................................25
5.08 Ownership
of Property;
Liens...............................................................25
5.09
Environmental
Compliance...................................................................25
5.10
Insurance..................................................................................26
5.11
Taxes......................................................................................26
5.12 ERISA
Compliance...........................................................................26
5.13
Subsidiaries...............................................................................26
5.14 Margin
Regulations; Investment Company Act; Public Utility Holding Company
Act.............26
5.15
Disclosure.................................................................................27
5.16 Compliance
with
Laws.......................................................................27
5.17
Intellectual Property; Licenses,
Etc.......................................................27
5.18 Rights in
Collateral; Priority of
Liens....................................................27
ARTICLE VI.
AFFIRMATIVE
COVENANTS......................................................................27
6.01
Financial
Statements.......................................................................27
6.02
Certificates; Other
Information............................................................28
6.03
Notices....................................................................................29
6.04 Payment of
Obligations.....................................................................30
6.05
Preservation of Existence,
Etc.............................................................30
6.06
Maintenance of
Properties..................................................................30
6.07
Maintenance of
Insurance...................................................................30
</Table>
i
<Page>
<Table>
<S>
<C>
6.08 Compliance
with
Laws.......................................................................30
6.09 Books and
Records..........................................................................30
6.10 Inspection
Rights..........................................................................30
6.11 Use of
Proceeds............................................................................30
6.12 Financial
Covenants........................................................................31
6.13
Collateral
Records.........................................................................31
6.14 Security
Interests.........................................................................31
ARTICLE VII.
NEGATIVE
COVENANTS.........................................................................31
7.01
Liens......................................................................................31
7.02
Investments................................................................................32
7.03
Indebtedness...............................................................................32
7.04
Fundamental
Changes........................................................................33
7.05
Dispositions...............................................................................33
7.06 Restricted
Payments........................................................................33
7.07 Change in
Nature of
Business...............................................................33
7.08
Transactions with
Affiliates...............................................................33
7.09 Burdensome
Agreements......................................................................33
7.10 Use of
Proceeds............................................................................34
ARTICLE VIII. EVENTS OF
DEFAULT AND
REMEDIES.............................................................34
8.01 Events of
Default..........................................................................34
8.02 Remedies
Upon Event of
Default.............................................................35
8.03
Application of
Funds.......................................................................36
ARTICLE IX.
ADMINISTRATIVE
AGENT.......................................................................36
9.01 Appointment and
Authorization of Administrative
Agent......................................36
9.02 Rights as
a
Lender.........................................................................37
9.03
Exculpatory
Provisions.....................................................................37
9.04 Reliance
by Administrative
Agent...........................................................37
9.05 Delegation
of
Duties.......................................................................38
9.06
Resignation of
Agent.......................................................................38
9.07
Non-Reliance on Agent and Other
Lenders....................................................38
9.08 No Other
Duties,
Etc.......................................................................38
9.09
Administrative Agent May File Proofs of
Claim..............................................38
9.10 Collateral
Matters.........................................................................39
ARTICLE X.
MISCELLANEOUS..............................................................................40
10.01 Amendments,
Etc............................................................................40
10.02 Notices;
Effectiveness; Electronic
Communications..........................................41
10.03 No Waiver;
Cumulative
Remedies.............................................................42
10.04 Expenses;
Indemnity: Damage
Waiver.........................................................42
10.05 Payments Set
Aside.........................................................................43
10.06 Successors and
Assigns.....................................................................43
10.07 Treatment of
Certain Information;
Confidentiality..........................................45
10.08 Right of
Setoff............................................................................46
10.09 Interest Rate
Limitation...................................................................46
10.10 Counterparts;
Integration;
Effectiveness...................................................46
10.11 Survival of
Representations and
Warranties.................................................46
10.12
Severability...............................................................................46
10.13 Governing Law;
Jurisdiction;
Etc...........................................................46
10.14 Waiver of Right
to Trial by
Jury...........................................................47
10.15 USA Patriot Act
Notice.....................................................................47
10.16 Time of the
Essence........................................................................47
10.17 Maine
Notice...............................................................................47
</Table>
ii
<Page>
SCHEDULES
2.01
Commitments and Applicable Percentages
5.06
Litigation
5.09
Environmental Matters
5.13
Subsidiaries and Other Equity Investments
7.01 Existing
Liens
7.03 Existing
Indebtedness
10.02 Administrative
Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A
Compliance Certificate
B
Assignment and Assumption
iii
<Page>
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT (this "AGREEMENT") is
entered into
as of January 31, 2006, among MAINE PUBLIC SERVICE COMPANY, a Maine
corporation
("BORROWER"), each lender from time to time party hereto
(collectively, the
"LENDERS" and individually, a "LENDER"), and BANK OF AMERICA, N.A.,
as
Administrative Agent and L/C Issuer. This Agreement memorializes
the replacement
of Borrower's Letter of Credit and Reimbursement Agreement dated as
of June 1,
1996, with The Bank of New York as Agent and Issuing Bank, as the
same has been
amended to date, which is being terminated in connection with
Borrower's
execution and delivery of this Agreement, and as such the Letter of
Credit to be
issued hereunder is an "Alternate Credit Facility" as such term is
used in the
MPUFB Indenture and this Agreement is intended to be the
"Reimbursement
Agreement" and to evidence "Reimbursement Agreement Obligations" as
such terms
are used in the Second Mortgage Indenture (as defined below). As
collateral for
the Borrower's obligations hereunder the Borrower has pledged its
Second
Mortgage and Collateral Trust Bonds, Series 2021, in the principal
amount of
$14,400,000 (the "SECOND MORTGAGE BONDS"), originally issued under
and secured
by the Sixth Supplemental Indenture dated as of June 1, 2002 (the
"SECOND
MORTGAGE SUPPLEMENTAL INDENTURE"), which supplemented the Indenture
of Second
Mortgage and Deed of Trust, dated as of October 1, 1985, between
the Borrower
and The Bank of New York Trust Company, N.A., successor trustee as
Trustee (the
"SECOND MORTGAGE TRUSTEE") (as it has been or may be supplemented,
amended or
otherwise modified from time to time, the "SECOND MORTGAGE
INDENTURE").
Borrower has requested that Lenders provide a revolving credit
facility for the
issuance of letters of credit, and Lenders are willing to do so on
the terms and
conditions set forth herein. In consideration of the mutual
covenants and
agreements herein contained, the parties hereto covenant and agree
as follows:
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following
terms
shall have the meanings set forth below:
"ADMINISTRATIVE AGENT" or "AGENT" means Bank of America in its
capacity as
administrative agent under any of the Loan Documents, or any
successor
administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means Agent's address and, as
appropriate,
account as set forth on SCHEDULE 10.02, or such other address or
account as
Agent may from time to time notify Borrower and Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form
supplied by Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by or
is under common Control with the Person specified.
"AGENT FEE LETTER" has the meaning specified in Section
2.04(b).
"AGGREGATE COMMITMENTS" means the Commitments of all Lenders.
"AGREEMENT" means this Letter of Credit and Reimbursement
Agreement.
"APPLICABLE PERCENTAGE" means with respect to any Lender at any
time, the
percentage (carried out to the ninth decimal place) of the
Aggregate Commitments
represented by such Lender's Commitment at such time. If the
obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to
SECTION 8.02 or if the Aggregate Commitments have expired, then the
Applicable
Percentage of each Lender shall be determined based on the
Applicable Percentage
of such Lender most recently in effect, giving effect to any
subsequent
assignments. The initial Applicable Percentage of each Lender is
set forth
opposite the name of such Lender on SCHEDULE 2.01 or in the
Assignment and
Assumption pursuant to which such Lender becomes a party hereto, as
applicable.
"APPLICABLE RATE" means a per annum rate equal to:
(a) with
respect to Letters of Credit, 1.375%; and
1
<Page>
(B) with
respect to the commitment fee, 0.25%.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a
Lender and an Eligible Assignee (with the consent of any party
whose consent is
required by SECTION 10.06(b), and accepted by Agent, in
substantially the form
of EXHIBIT B or any other form approved by Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect of
any capital
lease of any Person, the capitalized amount thereof that would
appear on a
balance sheet of such Person prepared as of such date in accordance
with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of
the remaining lease payments under the relevant lease that would
appear on a
balance sheet of such Person prepared as of such date in accordance
with GAAP if
such lease were accounted for as a capital lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated
balance sheet of
Parent and its subsidiaries for the fiscal year ended December 31,
2004, and the
related consolidated statements of income or operations,
shareholders' equity
and cash flows for such fiscal year of Parent and its subsidiaries,
including
the notes thereto.
"BANK OF AMERICA" means Bank of America, N.A. and its
successors.
"BASE RATE" means for any day a fluctuating rate per annum equal to
the higher
of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in
effect for such day as publicly announced from time to time by Bank
of America
as its "prime rate." The "prime rate" is a rate set by Bank of
America based
upon various factors including Bank of America's costs and desired
return,
general economic conditions and other factors, and is used as a
reference point
for pricing some loans, which may be priced at, above, or below
such announced
rate. Any change in such rate announced by Bank of America shall
take effect at
the opening of business on the day specified in the public
announcement of such
change.
"BORROWER" has the meaning specified in the introductory paragraph
hereto.
"BORROWER FINANCIAL STATEMENTS" has the meaning specified in
Section 6.01(a)(ii)
"BORROWER MATERIALS" has the meaning specified in Section 6.02.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which
commercial banks are authorized to close under the Laws of, or are
in fact
closed in, the state where Administrative Agent's Office is
located.
"CASH COLLATERALIZE" has the meaning specified in Section
2.01(h).
CHANGE IN LAW" means the occurrence, after the date of this
Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule,
regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in
the
administration, interpretation or application thereof by any
Governmental
Authority or (c) the making or issuance of any request, guideline
or directive
(whether or not having the force of law) by any Governmental
Authority.
"CHANGE OF CONTROL" means, with respect to any Person, an event or
series of
events by which:
(a) any
"person" or "group" (as such terms are used in Sections 13(d)
and
14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit
plan of such person or its subsidiaries, and any person or entity
acting in its
capacity as trustee, agent or other fiduciary or administrator of
any such plan)
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the
Securities Exchange Act of 1934, except that a person or group
shall be deemed
to have "beneficial ownership" of all securities that such person
or group has
the right to acquire (such right, an "option right"), whether such
right is
exercisable immediately or only after the passage of time),
directly or
indirectly, of 25% or more of the equity securities of such Person
entitled to
vote for members of the board of directors or equivalent governing
body of such
Person on a fully-diluted basis (and taking into account all such
securities
that such person or group has the right to acquire pursuant to any
option
right);
(b)
during any period of 12 consecutive months, a majority of the
members
of the board of directors or other equivalent governing body of
such Person
cease to be composed of individuals (i) who were members of that
board or
equivalent governing
2
<Page>
body on the first day of such period, (ii) whose election or
nomination to that
board or equivalent governing body was approved by individuals
referred to in
clause (i) above constituting at the time of such election or
nomination at
least a majority of that board or equivalent governing body or
(iii) whose
election or nomination to that board or other equivalent governing
body was
approved by individuals referred to in clauses (i) and (ii) above
constituting
at the time of such election or nomination at least a majority of
that board or
equivalent governing body (excluding, in the case of both clause
(ii) and clause
(iii), any individual whose initial nomination for, or assumption
of office as,
a member of that board or equivalent governing body occurs as a
result of an
actual or threatened solicitation of proxies or consents for the
election or
removal of one or more directors by any person or group other than
a
solicitation for the election of one or more directors by or on
behalf of the
board of directors); or
(c) any
individual(s) or entity(s) acting in concert shall have
acquired
by contract or otherwise, or shall have entered into a contract or
arrangement
that, upon consummation thereof, will result in its or their
acquisition of the
power to exercise, directly or indirectly, a controlling influence
over the
management or policies of such Person, or control over the equity
securities of
such Person entitled to vote for members of the board of directors
or equivalent
governing body of such Person on a fully-diluted basis (and taking
into account
all such securities that such individual(s) or entity(s) or group
has the right
to acquire pursuant to any option right) representing 25% or more
of the
combined voting power of such securities.
"CLOSING DATE" means the first date all the conditions precedent in
SECTION 4.01
are satisfied or waived in accordance with SECTION 10.01.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COLLATERAL" shall mean the Second Mortgage Bonds.
"COLLATERAL DOCUMENTS" means the Second Mortgage Bonds, the Second
Mortgage
Supplemental Indenture, and all agreements, instruments and
documents now or
hereafter executed and delivered in connection with this Agreement
pursuant to
which Liens are granted or purported to be granted to Agent in
Collateral
securing all or part of the Obligations each in form and substance
satisfactory
to Agent.
"COMMITMENT" means, as to each Lender, its obligation to purchase
participations
in L/C Obligations, in an aggregate principal amount at any one
time outstanding
not to exceed the amount set forth opposite such Lender's name on
SCHEDULE 2.01
or in the Assignment and Assumption pursuant to which such Lender
becomes a
party hereto, as applicable, as such amount may be adjusted from
time to time in
accordance with this Agreement.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the
form of
EXHIBIT A.
"CONSOLIDATED INTEREST EXPENSE" means, for any specified period,
the total
consolidated interest charges of the Borrower and its Subsidiaries
for such
period, determined in accordance with GAAP, plus (i) the allowance
for borrowed
funds used during construction for such period, minus (ii) interest
on customer
deposits for such period.
"CONSOLIDATED NET INCOME AVAILABLE FOR FIXED CHARGES" means, for
any specified
period, the consolidated income or loss before extraordinary items
of the
Borrower and its Subsidiaries for such period, determined in
accordance with
GAAP, plus (i) Consolidated Interest Expense for such period, plus
(ii) the
provision for income taxes for such period, minus (iii) the
allowance for equity
funds used during construction for such period.
"CONSOLIDATED TOTAL CAPITAL" means, at a particular date, the total
of the
amounts that, in conformity with GAAP, would be included on a
consolidated
balance sheet of the Borrower and its Subsidiaries as of such date
in respect of
(i) Consolidated Indebtedness for Borrowed Money (excluding
Indebtedness of
other Persons guaranteed by the Borrower or a Subsidiary), (ii)
preferred and
preference stock, and (iii) Common Shareholders' Equity.
"CONSOLIDATED TOTAL INDEBTEDNESS FOR BORROWED MONEY" means at any
particular
date, the total amount of (i) Indebtedness of the Borrower and its
Subsidiaries,
excluding intercompany items, that, in conformity with GAAP, would
be included
on a consolidated balance sheet of the Borrower and its
Subsidiaries (a) in
respect of money borrowed, (b) in respect of obligations evidenced
by a note,
bond, debenture or other like written obligation to pay money, (c)
in respect of
obligations under Capital Leases, and (d) in respect of obligations
under
conditional sales or other title retention agreements, and (ii)
Indebtedness of
other Persons of the nature described in clauses (a) through (d)
above which is
guaranteed by the Borrower or a Subsidiary or with respect to which
the Borrower
or a Subsidiary is contingently liable.
3
<Page>
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of
any security
issued by such Person or of any agreement, instrument or other
undertaking to
which such Person is a party or by which it or any of its property
is bound.
"CONTROL" means the possession, directly or indirectly, of the
power to direct
or cause the direction of the management or policies of a Person,
whether
through the ability to exercise voting power, by contract or
otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative
thereto.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States, and all
other liquidation, conservatorship, bankruptcy, assignment for the
benefit of
creditors, moratorium, rearrangement, receivership, insolvency,
reorganization,
or similar debtor relief Laws of the United States or other
applicable
jurisdictions from time to time in effect and affecting the rights
of creditors
generally.
"DEBT SERVICE COVERAGE RATIO" means the ratio computed in
accordance with
Section 6.12(c).
"DEFAULT" means any event or condition that constitutes an Event of
Default or
that, with the giving of any notice, the passage of time, or both,
would be an
Event of Default.
"DEFAULT RATE" means (a) when used with respect to Obligations
other than L/C
Fees an interest rate equal to (i) the Base Rate plus (ii) 4% per
annum, and (b)
when used with respect to L/C Fees, a rate equal to the Applicable
Rate plus 4%
per annum.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund
any portion of
participations in L/C Obligations required to be funded by it
hereunder within
one Business Day of the date required to be funded by it hereunder,
(b) has
otherwise failed to pay over to Agent or any other Lender any other
amount
required to be paid by it hereunder within one Business Day of the
date when
due, unless the subject of a good faith dispute, or (c) has been
deemed
insolvent or become the subject of a bankruptcy or insolvency
proceeding.
"DETERMINATION OF TAXABILITY" means (a) a Determination of
Taxability under the
MPUFB Indenture or (b) a determination that the interest income on
any of the
MPUFB Bonds is includable in gross income for federal income tax
purposes
(except for any determination that as a result of interest on the
MPUFB Bonds
being included as an item of tax preference or otherwise being
taken into
account in determining alternative minimum taxable income under the
Code)(each
such exception being a "TAX CODE EXCEPTION"), which determination
shall be
deemed to have been made upon the occurrence of the first to occur
of the
following (in each case not including any such matter as a result
of a Tax Code
Exception): (i) the day on which Borrower or MPUFB is advised in
writing by the
Commissioner or any District Director of the Internal Revenue
Service that,
based upon any filings of Borrower or MPUFB or upon any other
grounds
whatsoever, the interest on the MPUFB Bonds is includable in the
gross income
for federal income tax purposes of any holder or former holder
thereof; (ii) the
day on which Borrower receives notice from the Agent that the Agent
has been
advised by nationally recognized bond counsel, in response to a
request by the
Agent, that interest on the MPUFB Bonds by any holder or former
holder is
includable in the gross income for federal income tax purposes of
such holder;
(iii) the day on which Borrower, MPUFB, the Agent or the Second
Mortgage Trustee
receives notice in writing from any holder or former holder of a
MPUFB Bond that
the Internal Revenue Service has issued a statutory notice of
deficiency or
similar notice to such holder or former holder that asserts in
effect that
interest on the MPUFB Bonds received by such holder or former
holder is
includable in the gross income for federal income tax purposes of
such holder;
(iv) the day on which Borrower or MPUFB is advised in writing by
the
Commissioner or any District Director of the Internal Revenue
Service that there
has been issued a public or private ruling of the Internal Revenue
Service or a
technical advice memorandum issued by the National Office of the
Internal
Revenue Service that the interest on the MPUFB Bonds is includable
in the gross
income for federal income tax purposes of any holder or former
holder of a MPUFB
Bond; (v) the day on which Borrower or MPUFB is advised in writing
that a final
determination, from which no further right of appeal exists, has
been made by a
court of competent jurisdiction in the United States of America in
a proceeding
with respect to which Borrower or MPUFB has been given written
notice and an
opportunity to participate and defend that the interest on the
MPUFB Bonds is
includable in the gross income for federal income tax purposes of
any holder or
former holder of a MPUFB Bond; or (vi) the effective date of any
legislation,
judicial decision, decree, or order, ruling ,regulation or official
statement of
the Department of the Treasury or Internal Revenue Service, of
general
application that results in the interest on the MPUFB Bonds being
includable in
the gross income for federal income tax purposes of any holder or
former holder
thereof; provided, however, that no Determination of Taxability
shall occur
under subparagraph (i), (ii), (iii), (iv) or (vi) of this
definition unless
Borrower has been afforded the opportunity, at its expense, to
contest any such
conclusion and/or assessment and, further, no Determination of
Taxability shall
occur until such contest, if made, has been finally determined.
Borrower shall
be deemed to have been afforded the opportunity to contest the
occurrence of a
Determination of Taxability if it
4
<Page>
shall have been permitted to commence and maintain any action in
the name of any
holder or former holder of a MPUFB Bond to judgment and through any
appeals
therefrom or other proceedings related thereto.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease
or other
disposition (including any sale and leaseback transaction) of any
property by
any Person, including any sale, assignment, transfer or other
disposal, with or
without recourse, of any notes or accounts receivable or any rights
and claims
associated therewith.
"DOLLAR" and "$" mean lawful money of the United States.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; and (c)
any other Person (other than a natural person) approved by (i)
Agent and the L/C
Issuer, and (ii) unless an Event of Default has occurred and is
continuing,
Borrower (each such approval not to be unreasonably withheld or
delayed);
PROVIDED that notwithstanding the foregoing, "Eligible Assignee"
shall not
include Borrower or any of Borrower's Affiliates or
Subsidiaries.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and
foreign
statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees,
permits, concessions, grants, franchises, licenses, agreements or
governmental
restrictions relating to pollution and the protection of the
environment or the
release of any materials into the environment, including those
related to
hazardous substances or wastes, air emissions and discharges to
waste or public
systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise
(including any liability for damages, costs of environmental
remediation, fines,
penalties or indemnities), of Borrower, any other Loan Party or any
of their
respective Subsidiaries directly or indirectly resulting from or
based upon (a)
violation of any Environmental Law, (b) the generation, use,
handling,
transportation, storage, treatment or disposal of any Hazardous
Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened
release of
any Hazardous Materials into the environment or (e) any contract,
agreement or
other consensual arrangement pursuant to which liability is assumed
or imposed
with respect to any of the foregoing.
"EQUITY INTERESTS" means, with respect to any Person, all of the
shares of
capital stock of (or other ownership or profit interests in) such
Person, all of
the warrants, options or other rights for the purchase or
acquisition from such
Person of shares of capital stock of (or other ownership or profit
interests in)
such Person, all of the securities convertible into or exchangeable
for shares
of capital stock of (or other ownership or profit interests in)
such Person or
warrants, rights or options for the purchase or acquisition from
such Person of
such shares (or such other interests), and all of the other
ownership or profit
interests in such Person (including partnership, member or trust
interests
therein), whether voting or nonvoting, and whether or not such
shares, warrants,
options, rights or other interests are outstanding on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated)
under common control with Borrower within the meaning of Section
414(b) or (c)
of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions
relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a
withdrawal by Borrower or any ERISA Affiliate from a Pension Plan
subject to
Section 4063 of ERISA during a plan year in which it was a
substantial employer
(as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or
partial withdrawal by Borrower or any ERISA Affiliate from a
Multiemployer Plan
or notification that a Multiemployer Plan is in reorganization; (d)
the filing
of a notice of intent to terminate, the treatment of a Plan
amendment as a
termination under Sections 4041 or 4041A of ERISA, or the
commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042
of ERISA for
the termination of, or the appointment of a trustee to administer,
any Pension
Plan or Multiemployer Plan; or (f) the imposition of any liability
under Title
IV of ERISA, other than for PBGC premiums due but not delinquent
under Section
4007 of ERISA, upon Borrower or any ERISA Affiliate.
"EVENT OF DEFAULT" has the meaning specified in SECTION 8.01.
"EXCLUDED TAXES" means, with respect to Agent, any Lender, the L/C
Issuer or any
other recipient of any payment to be made by or on account of any
obligation of
Borrower hereunder, (a) taxes imposed on or measured by its overall
net income
(however
5
<Page>
denominated), and franchise taxes imposed on it (in lieu of net
income taxes),
by the jurisdiction (or any political subdivision thereof) under
the laws of
which such recipient is organized or in which its principal office
is located
or, in the case of any Lender, in which its applicable Lending
Office is
located, and (b) any branch profits taxes imposed by the United
States or any
similar tax imposed by any other jurisdiction in which Borrower is
located.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal
to the
weighted average of the rates on overnight Federal funds
transactions with
members of the Federal Reserve System arranged by Federal funds
brokers on such
day, as published by the Federal Reserve Bank of New York on the
Business Day
next succeeding such day; PROVIDED that (a) if such day is not a
Business Day,
the Federal Funds Rate for such day shall be such rate on such
transactions on
the next preceding Business Day as so published on the next
succeeding Business
Day, and (b) if no such rate is so published on such next
succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
(rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged
to Bank of
America on such day on such transactions as determined by
Agent.
"FIRST MORTGAGE INDENTURE" means the Indenture of Mortgage and Deed
of Trust,
dated as of October 1, 1945, between Borrower and U.S. Bank Trust
National
Association, successor trustee as Trustee thereunder, as it has
been or may be
supplemented, amended or otherwise modified from time to time.
"FRB" means the Board of Governors of the Federal Reserve System of
the United
States.
"GAAP" means generally accepted accounting principles in the United
States set
forth in the opinions and pronouncements of the Accounting
Principles Board and
the American Institute of Certified Public Accountants and
statements and
pronouncements of the Financial Accounting Standards Board or such
other
principles as may be approved by a significant segment of the
accounting
profession in the United States, that are applicable to the
circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means the government of the United States
or any other
nation, or of any political subdivision thereof, whether state or
local, and any
agency, authority, instrumentality, regulatory body, court, central
bank or
other entity exercising executive, legislative, judicial, taxing,
regulatory or
administrative powers or functions of or pertaining to government
(including any
supra-national bodies such as the European Union or the European
Central Bank).
.
"GUARANTEE" means, as to any Person, any (a) any obligation,
contingent or
otherwise, of such Person guaranteeing or having the economic
effect of
guaranteeing any Indebtedness or other obligation payable or
performable by
another Person (the "primary obligor") in any manner, whether
directly or
indirectly, and including any obligation of such Person, direct or
indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or
payment of)
such Indebtedness or other obligation, (ii) to purchase or lease
property,
securities or services for the purpose of assuring the obligee in
respect of
such Indebtedness or other obligation of the payment or performance
of such
Indebtedness or other obligation, (iii) to maintain working
capital, equity
capital or any other financial statement condition or liquidity or
level of
income or cash flow of the primary obligor so as to enable the
primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into
for the
purpose of assuring in any other manner the obligee in respect of
such
Indebtedness or other obligation of the payment or performance
thereof or to
protect such obligee against loss in respect thereof (in whole or
in part), or
(b) any Lien on any assets of such Person securing any Indebtedness
or other
obligation of any other Person, whether or not such Indebtedness or
other
obligation is assumed by such Person (or any right, contingent or
otherwise, of
any holder of such Indebtedness to obtain any such Lien). The
amount of any
Guarantee shall be deemed to be an amount equal to the stated or
determinable
amount of the related primary obligation, or portion thereof, in
respect of
which such Guarantee is made or, if not stated or determinable, the
maximum
reasonably anticipated liability in respect thereof as determined
by the
guaranteeing Person in good faith. The term "Guarantee" as a verb
has a
corresponding meaning.
"GUARANTOR" means a Person that gives a Guarantee to the Agent for
the benefit
of the Lenders and/or the L/C Issuer.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances
or wastes
and all hazardous or toxic substances, wastes or other pollutants,
including
petroleum or petroleum distillates, asbestos or asbestos-containing
materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other
substances or wastes of any nature regulated pursuant to any
Environmental Law.
6
<Page>
"INDEBTEDNESS" means, as to any Person at a particular time,
without duplication
(for example, Borrower's letters of credit securing other
Indebtedness shall not
count as Indebtedness independent of the Indebtedness being
secured), all of the
following, whether or not included as indebtedness or liabilities
in accordance
with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes,
loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under
letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar
instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase
price
of property or services (other than trade accounts payable in
the
ordinary course of business and, in each case, not past due for
more
than 60 days after the date on which such trade account payable
was
created);
(e) indebtedness (excluding prepaid interest thereon) secured by
a
Lien on property owned or being purchased by such Person
(including
indebtedness arising under conditional sales or other title
retention
agreements), whether or not such indebtedness shall have been
assumed
by such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity
Interest in such Person or any other Person, valued, in the case of
a
redeemable preferred interest, at the greater of its voluntary
or
involuntary liquidation preference PLUS accrued and unpaid
dividends;
and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall
include the
Indebtedness of any partnership or joint venture (other than a
joint venture
that is itself a corporation or limited liability company) in which
such Person
is a general partner or a joint venturer, unless such Indebtedness
is expressly
made non-recourse to such Person. The amount of any net obligation
under any
Swap Contract on any date shall be deemed to be the Swap
Termination Value
thereof as of such date. The amount of any capital lease or
Synthetic Lease
Obligation as of any date shall be deemed to be the amount of
Attributable
Indebtedness in respect thereof as of such date.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEES" has the meaning specified in SECTION 10.04(b).
"INFORMATION" has the meaning specified in SECTION 10.07.
"INTERNAL CONTROL EVENT" means a material weakness in, or fraud
that involves
management or other employees who have a significant role in,
Borrower's
internal controls over financial reporting, in each case as
described in the
Securities Laws and when relevant requirements become effective as
to Borrower
under regulations promulgated under the Securities Laws.
"INVESTMENT" means, as to any Person, any direct or indirect
acquisition or
investment by such Person, whether by means of (a) the purchase or
other
acquisition of capital stock or other securities of another Person,
(b) a loan,
advance or capital contribution to, Guarantee or assumption of debt
of, or
purchase or other acquisition of any other debt or equity
participation or
interest in, another Person, including any partnership or joint
venture interest
in such other Person and any arrangement pursuant to which the
investor
Guarantees Indebtedness of such other Person, or (c) the purchase
or other
acquisition (in one transaction or a series of transactions) of
assets of
another Person that constitute a business unit. For purposes of
covenant
compliance, the amount of any Investment shall be the amount
actually invested,
without adjustment for subsequent increases or decreases in the
value of such
Investment.
"IRS" means the United States Internal Revenue Service.
7
<Page>
"ISP" means, with respect to any Letter of Credit, the
"International Standby
Practices 1998" published by the Institute of International Banking
Law &
Practice (or such later version thereof as may be in effect at the
time of
issuance).
"ISSUER DOCUMENTS" means with respect to any Letter of Credit (but
not including
the Letter of Credit itself), the L/C Application, and any other
document,
agreement and instrument entered into by the L/C Issuer and
Borrower (or any
Subsidiary) or in favor of the L/C Issuer and relating to any such
Letter of
Credit.
"LAWS" means, collectively, all international, foreign, Federal,
state and local
statutes, treaties, rules, guidelines, regulations, ordinances,
codes and
administrative or judicial precedents or authorities, including
the
interpretation or administration thereof by any Governmental
Authority charged
with the enforcement, interpretation or administration thereof, and
all
applicable administrative orders, directed duties, requests,
licenses,
authorizations and permits of, and agreements with, any
Governmental Authority,
in each case whether or not having the force of law.
"L/C ADVANCE" means, with respect to each Lender, such Lender's
funding of its
participation in any L/C Borrowing in accordance with its
Applicable Percentage.
"L/C APPLICATION" means an application and agreement for the
issuance or
amendment of a Letter of Credit in the form from time to time in
use by the L/C
Issuer.
"L/C BORROWING" means an extension of credit resulting from a
drawing under any
Letter of Credit which has not been reimbursed on the date when
made.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit,
the issuance
thereof or extension of the expiry date thereof, or the increase of
the amount
thereof.
"L/C EXPIRATION DATE" means the day that is thirty days prior to
the Maturity
Date then in effect (or, if such day is not a Business Day, the
next preceding
Business Day).
"L/C FEE" has the meaning specified in Section 2.01(j).
"L/C ISSUER" means Bank of America in its capacity as issuer of
Letters of
Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the
aggregate amount
available to be drawn under all outstanding Letters of Credit PLUS
the aggregate
of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of
computing the amount available to be drawn under any Letter of
Credit, the
amount of such Letter of Credit shall be determined in accordance
with SECTION
1.06. For all purposes of this Agreement, if on any date of
determination a
Letter of Credit has expired by its terms but any amount may still
be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such
Letter of
Credit shall be deemed to be "outstanding" in the amount so
remaining available
to be drawn.
"LENDER" has the meaning specified in the introductory paragraph
hereto.
"LENDING OFFICE" means, as to any Lender, the office or offices of
such Lender
described as such in such Lender's Administrative Questionnaire, or
such other
office or offices as a Lender may from time to time notify Borrower
and Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder. A
Letter of
Credit may be a commercial letter of credit or a standby letter of
credit.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit
arrangement, encumbrance, lien (statutory or other), charge, or
preference,
priority or other security interest or preferential arrangement in
the nature of
a security interest of any kind or nature whatsoever (including any
conditional
sale or other title retention agreement, any easement, right of way
or other
encumbrance on title to real property, and any financing lease
having
substantially the same economic effect as any of the
foregoing).
"LOAN DOCUMENTS" means this Agreement, each Issuer Document and the
Agent Fee
Letter.
8
<Page>
"LOAN PARTIES" means, collectively, Borrower and each Person (other
than Agent,
the L/C Issuer, or any Lender) executing a Loan Document.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in,
or a material
adverse effect upon, the operations, business, properties,
liabilities (actual
or contingent), condition (financial or otherwise) or prospects of
Borrower or
Borrower and its Subsidiaries taken as a whole; (b) a material
impairment of the
ability of any Loan Party to perform its obligations under any Loan
Document to
which it is a party; or (c) a material adverse effect upon the
legality,
validity, binding effect or enforceability against any Loan Party
of any Loan
Document to which it is a party.
"MATURITY DATE" means January 31, 2009.
"MPUFB" means the Maine Public Utility Financing Bank.
"MPUFB BONDS" means the Maine Public Utility Financing Bank Public
Utility
Refunding Revenue Bonds, Series 1996 (Maine Public Service Company
Project) in
the original principal amount of $15,000,000, issued pursuant to
the MPUFB
Indenture.
"MPUFB INDENTURE" means the Indenture of Trust, dated as of June 1,
1996,
between MPUFB, as Issuer, and U.S. Bank National Association
(successor to Fleet
National Bank), as Trustee, as the same has been and may be amended
from time to
time.
"MPUFB LOAN AGREEMENT" means the Loan Agreement, dated as of June
1, 1996,
between Borrower and MPUFB, as the same has been and may be amended
from time to
time.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type
described in
Section 4001(a)(3) of ERISA, to which Borrower or any ERISA
Affiliate makes or
is obligated to make contributions, or during the preceding five
plan years, has
made or been obligated to make contributions.
"OBLIGATIONS" means all advances to, and debts, liabilities,
obligations,
covenants and duties of, any Loan Party arising under any Loan
Document or
otherwise with respect to any Letter of Credit, whether direct or
indirect
(including those acquired by assumption), absolute or contingent,
due or to
become due, now existing or hereafter arising and including
interest and fees
that accrue after the commencement by or against any Loan Party or
any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such
Person as the
debtor in such proceeding, regardless of whether such interest and
fees are
allowed claims in such proceeding.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any
corporation, the
certificate or articles of incorporation and the bylaws (or
equivalent or
comparable constitutive documents with respect to any non-U.S.
jurisdiction);
(b) with respect to any limited liability company, the certificate
or articles
of formation or organization and operating agreement; and (c) with
respect to
any partnership, joint venture, trust or other form of business
entity, the
partnership, joint venture or other applicable agreement of
formation or
organization and any agreement, instrument, filing or notice with
respect
thereto filed in connection with its formation or organization with
the
applicable Governmental Authority in the jurisdiction of its
formation or
organization and, if applicable, any certificate or articles of
formation or
organization of such entity.
"OTHER TAXES" means all present or future stamp, intangible or
documentary taxes
or any other excise or property taxes, charges or similar levies
arising from
any payment made hereunder or under any other Loan Document or any
Collateral
Document or from the execution, delivery or enforcement of, or
otherwise with
respect to, this Agreement or any other Loan Document or any
Collateral
Document.
"OUTSTANDING AMOUNT" means on any date, the amount of L/C
Obligations on such
date after giving effect to any L/C Credit Extension occurring on
such date and
any other changes in the aggregate amount of the L/C Obligations as
of such
date, including as a result of any reimbursements by Borrower of
Unreimbursed
Amounts.
"PARENT" means Maine & Maritimes Corporation, a Maine
corporation which owns
100% of the issued and outstanding capital stock of the
Borrower.
"PARTICIPANT" has the meaning specified in SECTION 10.06(d).
9
<Page>
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as such
term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is
subject to Title IV of ERISA and is sponsored or maintained by
Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate
contributes or has
an obligation to contribute, or in the case of a multiple employer
or other plan
described in Section 4064(a) of ERISA, has made contributions at
any time during
the immediately preceding five plan years.
"PERSON" means any natural person, corporation, limited liability
company,
trust, joint venture, association, company, partnership,
Governmental Authority
or other entity.
"PLAN" means any "employee benefit plan" (as such term is defined
in Section
3(3) of ERISA) established by Borrower or, with respect to any such
plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"PLATFORM" has the meaning specified in SECTION 6.02.
"PLEDGE AGREEMENT" means the Pledge and Security Agreement, dated
as of June 1,
1996, among Borrower, Tender Agent and Adminsitrative Agent, as the
same has
been and may be amended from time to time.
"PUC" means the Maine Public Utilities Commission.
"REGISTER" has the meaning specified in SECTION 10.06(c).
"REGISTERED PUBLIC ACCOUNTING FIRM" has the meaning specified in
the Securities
Laws and shall be independent of Borrower as prescribed by the
Securities Laws.
"RELATED DOCUMENTS" means any Letter of Credit, the Second Mortgage
Supplemental
Indenture, the Second Mortgage Bonds, the MPUFB Indenture, the
MPUFB Bonds, the
Tender Agreement, the MPUFB Loan Agreement, the Pledge Agreement ,
the
Remarketing Agreement and any other agreement or instrument
relating to any of
the foregoing.
"RELATED PARTIES" means, with respect to any Person, such Person's
Affiliates
and the partners, directors, officers, employees, agents and
advisors of such
Person and of such Person's Affiliates.
"REMARKETING AGENT" means Banc of America Securities LLC, successor
to The Bank
of New York.
"REMARKETING AGREEMENT" means the Remarketing Agreement dated as of
June 1, 1996
between Borrower and the Remarketing Agent, as the same has been or
may be
amended from time to time.
"REPORTABLE EVENT" means any of the events set forth in Section
4043(c) of
ERISA, other than events for which the 30 day notice period has
been waived.
"REQUIRED LENDERS" means, as of any date of determination, Lenders
having more
than 50% of the Aggregate Commitments or, if the obligation of the
L/C Issuer to
make L/C Credit Extensions has been terminated pursuant to SECTION
8.02, Lenders
holding in the aggregate more than 50% of the Total Outstandings
(with the
aggregate amount of each Lender's risk participation and funded
participation in
L/C Obligations being deemed "held" by such Lender for purposes of
this
definition); PROVIDED that the Commitment of, and the portion of
the Total
Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for
purposes of making a determination of Required Lenders.
"RESPONSIBLE OFFICER"
means the chief executive officer, president, chief
financial officer, chief accounting officer, treasurer or assistant
treasurer of
a Loan Party. Any document delivered hereunder that is signed by a
Responsible
Officer of a Loan Party shall be conclusively presumed to have been
authorized
by all necessary corporate, partnership and/or other action on the
part of such
Loan Party and such Responsible Officer shall be conclusively
presumed to have
acted on behalf of such Loan Party.
10
<Page>
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in cash,
securities or other property) with respect to any capital stock or
other Equity
Interest of Borrower or any Subsidiary, or any payment (whether in
cash,
securities or other property), including any sinking fund or
similar deposit, on
account of the purchase, redemption, retirement, acquisition,
cancellation or
termination of any such capital stock or other Equity Interest or
on account of
any return of capital to Borrower's stockholders, partners or
members (or the
equivalent Person thereof).
"SARBANES-OXLEY" means the Sarbanes-Oxley Act of 2002.
"SEC" means the Securities and Exchange Commission, or any
Governmental
Authority succeeding to any of its principal functions.
"SECOND MORTGAGE BONDS" has the meaning set forth in the first
paragraph of this
Agreement.
"SECOND MORTGAGE INDENTURE" has the meaning set forth in the first
paragraph of
this Agreement.
"SECOND MORTGAGE SUPPLEMENTAL INDENTURE" has the meaning set forth
in the first
paragraph of this Agreement.
"SECOND MORTGAGE TRUSTEE" has the meaning set forth in the first
paragraph of
this Agreement.
"SECURITIES LAWS" means the Securities Act of 1933, the Securities
Exchange Act
of 1934, Sarbanes-Oxley and the applicable accounting and auditing
principles,
rules, standards and practices promulgated, approved or
incorporated by the SEC
or the Public Company Accounting Oversight Board, as each of the
foregoing may
be amended and in effect on any applicable date hereunder.
"SUBORDINATED LIABILITIES" means liabilities subordinated to the
Obligations in
a manner acceptable to Agent in its sole discretion.
"SUBSIDIARY" of a Person means a corporation, partnership, joint
venture,
limited liability company or other business entity of which a
majority of the
shares of securities or other interests having ordinary voting
power for the
election of directors or other governing body (other than
securities or
interests having such power only by reason of the happening of a
contingency)
are at the time beneficially owned, or the management of which is
otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both,
by such Person. Unless otherwise specified, all references herein
to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of
Borrower.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis
swaps,
credit derivative transactions, forward rate transactions,
commodity swaps,
commodity options, forward commodity contracts, equity or equity
index swaps or
options, bond or bond price or bond index swaps or options or
forward bond or
forward bond price or forward bond index transactions, interest
rate options,
forward foreign exchange transactions, cap transactions, floor
transactions,
collar transactions, currency swap transactions, cross-currency
rate swap
transactions, currency options, spot contracts, or any other
similar
transactions or any combination of any of the foregoing (including
any options
to enter into any of the foregoing), whether or not any such
transaction is
governed by or subject to any master agreement, and (b) any and all
transactions
of any kind, and the related confirmations, which are subject to
the terms and
conditions of, or governed by, any form of master agreement
published by the
International Swaps and Derivatives Association, Inc., any
International Foreign
Exchange Master Agreement, or any other master agreement (any such
master
agreement, together with any related schedules, a "MASTER
AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts,
after taking into account the effect of any legally enforceable
netting
agreement relating to such Swap Contracts, (a) for any date on or
after the date
such Swap Contracts have been closed out and termination value(s)
determined in
accordance therewith, such termination value(s), and (b) for any
date prior to
the date referenced in clause (a), the amount(s) determined as
the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or
more mid-market or other readily available quotations provided by
any recognized
dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a
Lender).
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of a
Person under (a)
a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an
agreement for the use or possession of property creating
obligations that do not
appear on the balance
11
<Page>
sheet of such Person but which, upon the insolvency or bankruptcy
of such
Person, would be characterized as the indebtedness of such Person
(without
regard to accounting treatment).
"TANGIBLE NET WORTH" means the value of total assets (including
leaseholds and
leasehold improvements and reserves against assets but excluding
goodwill,
patents, trademarks, trade names, organization expense, unamortized
debt
discount and expense, capitalized or deferred research and
development costs,
deferred marketing expenses, and other like intangibles, and monies
due from
Affiliates, officers, directors, employees, shareholders, members
or managers)
less Total Liabilities, including but not limited to accrued and
deferred income
taxes, but excluding the non-current portion of Subordinated
Liabilities.
"TAXES" means all present or future taxes, levies, imposts, duties,
deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental
Authority, including any interest, additions to tax or penalties
applicable
thereto.
"TENDER AGENT" means U.S. Bank National Association, successor to
Fleet National
Bank.
"TENDER AGREEMENT" means the Tender Agreement dated as of June 1,
1996, among
the MPUFB Trustee, the Tender Agent, the Borrower and the
Remarketing Agent, as
the same has been or may be amended from time to time.
"THRESHOLD AMOUNT" means $1,000,000.
"TOTAL LIABILITIES" means the sum of current liabilities plus long
term
liabilities.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of all
L/C
Obligations.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's
benefit
liabilities under Section 4001(a)(16) of ERISA, over the current
value of that
Pension Plan's assets, determined in accordance with the
assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for
the applicable
plan year.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning specified in Section
2.01(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement
and each other Loan Document, unless otherwise specified herein or
in such other
Loan Document:
(a)
The definitions of terms herein shall apply equally to the singular
and
plural forms of the terms defined. Whenever the context may
require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words
"INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to be
followed by the
phrase "without limitation." The word "WILL" shall be construed to
have the same
meaning and effect as the word "SHALL." Unless the context requires
otherwise,
(i) any definition of or reference to any agreement, instrument or
other
document (including any Organization Document) shall be construed
as referring
to such agreement, instrument or other document as from time to
time amended,
supplemented or otherwise modified (subject to any restrictions on
such
amendments, supplements or modifications set forth herein or in any
other Loan
Document), (ii) any reference herein to any Person shall be
construed to include
such Person's successors and assigns, (iii) the words "HEREIN,"
"HEREOF" and
"HEREUNDER," and words of similar import when used in any Loan
Document, shall
be construed to refer to such Loan Document in its entirety and not
to any
particular provision thereof, (iv) all references in a Loan
Document to
Articles, Sections, Exhibits and Schedules shall be construed to
refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in
which such references appear, (v) any reference to any law shall
include all
statutory and regulatory provisions consolidating, amending,
replacing or
interpreting such law and any reference to any law or regulation
shall, unless
otherwise specified, refer to such law or regulation as amended,
modified or
supplemented from time to time, and (vi) the words "ASSET" and
"PROPERTY" shall
be construed to have the same meaning and effect and to refer to
any and all
tangible and intangible assets and properties, including cash,
securities,
accounts and contract rights.
(b) In the computation of periods of time from a specified date to
a later
specified date, the word "FROM" means "FROM AND INCLUDING;" the
words "TO" and
"UNTIL" each mean "TO BUT EXCLUDING;" and the word "THROUGH" means
"TO AND
INCLUDING."
12
<Page>
(c) Section headings herein and in the other Loan Documents are
included for
convenience of reference only and shall not affect the
interpretation of this
Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) GENERALLY. All accounting terms not
specifically or completely defined herein shall be construed in
conformity with,
and all financial data (including financial ratios and other
financial
calculations) required to be submitted pursuant to this Agreement
shall be
prepared in conformity with, GAAP applied on a consistent basis, as
in effect
from time to time, applied in a manner consistent with that used in
preparing
the Audited Financial Statements, EXCEPT as otherwise specifically
prescribed
herein.
(b) CHANGES IN GAAP. If at any time any change in GAAP would affect
the
computation of any financial ratio or requirement set forth in any
Loan
Document, and either Borrower or the Required Lenders shall so
request, Agent,
Lenders and Borrower shall negotiate in good faith to amend such
ratio or
requirement to preserve the original intent thereof in light of
such change in
GAAP (subject to the approval of the Required Lenders); PROVIDED
THAT, until so
amended, (i) such ratio or requirement shall continue to be
computed in
accordance with GAAP prior to such change therein and (ii) Borrower
shall
provide to Agent and Lenders financial statements and other
documents required
under this Agreement or as reasonably requested hereunder setting
forth a
reconciliation between calculations of such ratio or requirement
made before and
after giving effect to such change in GAAP.
(c) CONSOLIDATION OF VARIABLE INTEREST ENTITIES. All references
herein to
consolidated financial statements of Borrower and its Subsidiaries
or to the
determination of any amount for Borrower and its Subsidiaries on a
consolidated
basis or any similar reference shall, in each case, be deemed to
include each
variable interest entity that Borrower is required to consolidate
pursuant to
FASB Interpretation No. 46 - Consolidation of Variable Interest
Entities: an
interpretation of ARB No. 51 (January 2003) as if such variable
interest entity
were a Subsidiary as defined herein.
1.04 ROUNDING. Any financial ratios required to be maintained
by
Borrower pursuant to this Agreement shall be calculated by dividing
the
appropriate component by the other component, carrying the result
to one place
more than the number of places by which such ratio is expressed
herein and
rounding the result up or down to the nearest number (with a
rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references
herein
to times of day shall be references to Eastern time (daylight or
standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein
the
amount of a Letter of Credit at any time shall be deemed to be the
stated amount
of such Letter of Credit in effect at such time; PROVIDED, HOWEVER,
that with
respect to any Letter of Credit that, by its terms or the terms of
any Issuer
Document related thereto, provides for one or more automatic
increases in the
stated amount thereof, the amount of such Letter of Credit shall be
deemed to be
the maximum stated amount of such Letter of Credit after giving
effect to all
such increases, whether or not such maximum stated amount is in
effect at such
time and FURTHER PROVIDED, HOWEVER, that with respect to any Letter
of Credit
that, by its terms, provides for a different availability based on
the
applicable interest rate period for the bonds to which such Letter
of Credit
relates, then, for purposes of determining L/C Fees only, the
stated amount
shall be the aggregate principal amount together with the amount
that would be
available for the payment of interest if the weekly interest rate
period or
monthly interest rate period was then in effect, regardless of the
actual
then-prevailing interest rate period.
ARTICLE II. THE COMMITMENTS AND L/C CREDIT EXTENSIONS
2.01 LETTERS OF CREDIT. (a) THE LETTER OF CREDIT COMMITMENT.
(i) Subject to the terms and conditions set forth herein, (A) the
L/C
Issuer agrees, in reliance upon the agreements of the other Lenders
set forth in
this SECTION 2.01, (1) from time to time on any Business Day during
the period
from the Closing Date until the L/C Expiration Date, to issue
Letters of Credit
for the account of Borrower, and to amend or extend Letters of
Credit previously
issued by it, in accordance with subsection (b) below, and (2) to
honor drawings
under the Letters of Credit; and (B) the Lenders severally agree to
participate
in Letters of Credit issued for the account of Borrower and any
drawings
thereunder; PROVIDED that after giving effect to any L/C Credit
Extension with
respect to any Letter of Credit, (x) the Outstanding Amount of all
L/C
Obligations shall not exceed the Aggregate Commitments, and (y) the
Applicable
Percentage of the Outstanding Amount of all L/C Obligations of any
Lender shall
not exceed such Lender's Commitment. Each request by Borrower for
the issuance
or amendment of a Letter of Credit shall be deemed to be a
representation by
Borrower that the L/C Credit Extension so requested complies with
the conditions
set forth in the proviso to the preceding sentence. Within the
13
<Page>
foregoing limits, and subject to the terms and conditions hereof,
Borrower's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly
Borrower may, during the foregoing period, obtain Letters of Credit
to replace
Letters of Credit that have expired or that have been drawn upon
and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A)
subject to Section 2.01(b)(iv), the expiry date of such
requested
Letter of Credit would occur more than twelve months after the date
of issuance
or last extension, unless the Required Lenders have approved such
expiry date;
or
(B) the
expiry date of such requested Letter of Credit would occur
after
the L/C Expiration Date, unless all the Lenders have approved such
expiry date.
(iii) The L/C Issuer shall be under no obligation to issue any
Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator
shall by its terms purport to enjoin or restrain the L/C Issuer
from issuing
such Letter of Credit, or any Law applicable to the L/C Issuer or
any request or
directive (whether or not having the force of law) from any
Governmental
Authority with jurisdiction over the L/C Issuer shall prohibit, or
request that
the L/C Issuer refrain from, the issuance of letters of credit
generally or such
Letter of Credit in particular or shall impose upon the L/C Issuer
with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for
which the L/C Issuer is not otherwise compensated hereunder) not in
effect on
the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss,
cost or expense which was not applicable on the Closing Date and
which the L/C
Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more
policies of
the L/C Issuer;
(C) except as otherwise agreed by Agent and the L/C Issuer, such
Letter of
Credit is in an initial stated amount less than $100,000, in the
case of a
commercial Letter of Credit, or $500,000, in the case of a standby
Letter of
Credit;
(D) such Letter of Credit is to be denominated in a currency other
than Dollars;
(E) a default of any Lender's obligations to fund under Section
2.01(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless
the L/C
Issuer has entered into satisfactory arrangements with Borrower or
such Lender
to eliminate the L/C Issuer's risk with respect to such Lender;
or
(F) unless specifically provided for in this Agreement, such Letter
of Credit
contains any provisions for automatic reinstatement of the stated
amount after
any drawing thereunder.
(iv) The L/C Issuer shall not amend any Letter of Credit if the
L/C
Issuer would not be permitted at such time to issue such Letter of
Credit in its
amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter
of
Credit if (A) the L/C Issuer would have no obligation at such time
to issue such
Letter of Credit in its amended form under the terms hereof, or (B)
the
beneficiary of such Letter of Credit does not accept the proposed
amendment to
such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect
to
any Letters of Credit issued by it and the documents associated
therewith, and
the L/C Issuer shall have all of the benefits and immunities (A)
provided to
Agent in ARTICLE IX with respect to any acts taken or omissions
suffered by the
L/C Issuer in connection with Letters of Credit issued by it or
proposed to be
issued by it and Issuer Documents pertaining to such Letters of
Credit as fully
as if the term "Administrative Agent" or "Agent" as used in ARTICLE
IX included
the L/C Issuer with respect to such acts or omissions, and (B) as
additionally
provided herein with respect to the L/C Issuer.
(b)
PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT;
AUTO-EXTENSION LETTERS OF CREDIT.
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon
the request of Borrower delivered to the L/C Issuer (with a copy to
Agent) in
the form of a L/C Application, appropriately completed and signed
by a
Responsible Officer of Borrower. Such L/C Application must be
received by the
L/C Issuer and Agent not later than 11:00 a.m. at least two
Business Days (or
such later date and time as Agent and the L/C Issuer may agree in a
particular
instance in their sole discretion) prior to
14
<Page>
the proposed issuance date or date of amendment, as the case may
be. In the case
of a request for an initial issuance of a Letter of Credit, such
L/C Application
shall specify in form and detail satisfactory to the L/C Issuer:
(A) the
proposed issuance date of the requested Letter of Credit (which
shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name
and address of the beneficiary thereof; (E) the documents to be
presented by
such beneficiary in case of any drawing thereunder; (F) the full
text of any
certificate to be presented by such beneficiary in case of any
drawing
thereunder; and (G) such other matters as the L/C Issuer may
require. In the
case of a request for an amendment of any outstanding Letter of
Credit, such L/C
Application shall specify in form and detail satisfactory to the
L/C Issuer (A)
the Letter of Credit to be amended; (B) the proposed date of
amendment thereof
(which shall be a Business Day); (C) the nature of the proposed
amendment; and
(D) such other matters as the L/C Issuer may require. Additionally,
Borrower
shall furnish to the L/C Issuer and Agent such other documents and
information
pertaining to such requested Letter of Credit issuance or
amendment, including
any Issuer Documents, as the L/C Issuer or Agent may require.
(ii) Promptly after receipt of any L/C Application at the address
set
forth in SCHEDULE 10.02 for receiving L/C Applications and
related
correspondence, the L/C Issuer will confirm with Agent (by
telephone or in
writing) that Agent has received a copy of such L/C Application
from Borrower
and, if not, the L/C Issuer will provide Agent with a copy thereof.
Unless the
L/C Issuer has received written notice from any Lender, Agent or
any Loan Party,
at least one Business Day prior to the requested date of issuance
or amendment
of the applicable Letter of Credit, that one or more applicable
conditions in
ARTICLE IV shall not then be satisfied, then, subject to the terms
and
conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter
of Credit for the account of Borrower or enter into the applicable
amendment, as
the case may be, in each case in accordance with the L/C Issuer's
usual and
customary business practices. Immediately upon the issuance of each
Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably
and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in
such Letter of Credit in an amount equal to the product of such
Lender's
Applicable Percentage TIMES the amount of such Letter of
Credit.
(iii) Promptly after its delivery of any Letter of Credit or
any
amendment to a Letter of Credit to an advising bank with respect
thereto or to
the beneficiary thereof, the L/C Issuer will also deliver to
Borrower and Agent
a true and complete copy of such Letter of Credit or amendment.
(iv) If Borrower so requests in any applicable L/C Application,
the
L/C Issuer may, in its sole and absolute discretion, agree to issue
a Letter of
Credit that has automatic extension provisions (each, an
"AUTO-EXTENSION LETTER
OF CREDIT"); provided that any such Auto-Extension Letter of Credit
must permit
the L/C Issuer to prevent any such extension at least once in each
twelve-month
period (commencing with the date of issuance of such Letter of
Credit) by giving
prior notice to the beneficiary thereof not later than a day (the
"NON-EXTENSION
NOTICE DATE") in each such twelve-month period to be agreed upon at
the time
such Letter of Credit is issued. Unless otherwise directed by the
L/C Issuer,
Borrower shall not be required to make a specific request to the
L/C Issuer for
any such extension. Once an Auto-Extension Letter of Credit has
been issued, the
Lenders shall be deemed to have authorized (but may not require)
the L/C Issuer
to permit the extension of such Letter of Credit at any time to an
expiry date
not later than the L/C Expiration Date; provided, however, that the
L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has
determined that it
would not be permitted, or would have no obligation, at such time
to issue such
Letter of Credit in its revised form (as extended) under the terms
hereof (by
reason of the provisions of clause (ii) or (iii) of SECTION 2.01(a)
or
otherwise), or (B) it has received notice (which may be by
telephone or in
writing) on or before the day that is five Business Days before
the
Non-Extension Notice Date (1) from Agent that the Required Lenders
have elected
not to permit such extension or (2) from Agent, any Lender or
Borrower that one
or more of the applicable conditions specified in Section 4.02 is
not then
satisfied, and in each such case directing the L/C Issuer not to
permit such
extension.
(v) If Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute
discretion, agree to
issue a Letter of Credit that permits the automatic reinstatement
of all or a
portion of the stated amount thereof after any drawing thereunder
(each, an
"AUTO-REINSTATEMENT LETTER OF CREDIT"). Unless otherwise directed
by the L/C
Issuer, Borrower shall not be required to make a specific request
to the L/C
Issuer to permit such reinstatement. Once an Auto-Reinstatement
Letter of Credit
has been issued, except as provided in the following sentence, the
Lenders shall
be deemed to have authorized (but may not require) the L/C Issuer
to reinstate
all or a portion of the stated amount thereof in accordance with
the provisions
of such Letter of Credit. Notwithstanding the foregoing, if
such
Auto-Reinstatement Letter of Credit permits the L/C Issuer to
decline to
reinstate all or any portion of the stated amount thereof after a
drawing
thereunder by giving notice of such non-reinstatement within a
specified number
of days after such drawing (the "NON-REINSTATEMENT DEADLINE"), the
L/C Issuer
shall not permit such reinstatement if it has received a notice
(which may be by
telephone or in writing) on or before the day that is five Business
Days before
the Non-Reinstatement Deadline (A) from Agent that the Required
Lenders have
elected not to permit such reinstatement or (B) from Agent, any
Lender or
Borrower that one or more of the applicable conditions specified
in
15
<Page>
SECTION 4.02 is not then satisfied (treating such reinstatement as
an L/C Credit
Extension for purposes of this clause) and, in each case, directing
the L/C
Issuer not to permit such reinstatement.
(c)
DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any
notice of a drawing under such Letter of Credit, the L/C Issuer
shall notify
Borrower and Agent thereof. Not later than 11:00 a.m. on the date
of any payment
by the L/C Issuer under a Letter of Credit (each such date, an
"HONOR DATE"),
Borrower shall reimburse the L/C Issuer through Agent in an amount
equal to the
amount of such drawing. If Borrower fails to so reimburse the L/C
Issuer by such
time, Borrower shall be deemed to have incurred from the L/C Issuer
an L/C
Borrowing in the amount of the unreimbursed drawing (the
"UNREIMBURSED AMOUNT")
which L/C Borrowing shall be due and payable on demand (together
with interest)
and shall bear interest at the Default Rate. Agent shall promptly
notify each
Lender of the Honor Date, the Unreimbursed Amount, and the amount
of such
Lender's Applicable Percentage thereof. Any notice given by the L/C
Issuer or
Agent pursuant to this SECTION 2.01(c)(i) may be given by telephone
if
immediately confirmed in writing; PROVIDED that the lack of such an
immediate
confirmation shall not affect the conclusiveness or binding effect
of such
notice.
(ii) Each Lender shall upon any notice pursuant to SECTION
2.01(c)(i)
make funds available to Agent for the account of the L/C Issuer at
the
Administrative Agent's Office in an amount equal to its Applicable
Percentage of
the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified
in such notice by Agent. Each Lender's payment to Agent for the
account of the
L/C Issuer pursuant to this SECTION 2.01(c)(ii) shall be deemed
payment in
respect of its participation in the applicable L/C Borrowing and
shall
constitute an L/C Advance from such Lender in satisfaction of its
participation
obligation under this SECTION 2.01. Agent shall remit the funds so
received to
the L/C Issuer.
(iii) Until each Lender funds its L/C Advance pursuant to this
SECTION
2.01(c) to reimburse the L/C Issuer for any amount drawn under any
Letter of
Credit, interest in respect of such Lender's Applicable Percentage
of such
amount shall be solely for the account of the L/C Issuer.
(iv) Each Lender's obligation to make L/C Advances to reimburse
the
L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this
SECTION 2.01(c), shall be absolute and unconditional and shall not
be affected
by any circumstance, including (A) any setoff, counterclaim,
recoupment, defense
or other right which such Lender may have against the L/C Issuer,
Borrower or
any other Person for any reason whatsoever; (B) the occurrence or
continuance of
a Default, or (C) any other occurrence, event or condition, whether
or not
similar to any of the foregoing. No such making of an L/C Advance
shall relieve
or otherwise impair the obligation of Borrower to reimburse the L/C
Issuer for
the amount of any payment made by the L/C Issuer under any Letter
of Credit,
together with interest as provided herein.
(v) If any Lender fails to make available to Agent for the account
of
the L/C Issuer any amount required to be paid by such Lender
pursuant to the
foregoing provisions of this SECTION 2.01(c) by the time specified
in SECTION
2.01(c)(ii), the L/C Issuer shall be entitled to recover from such
Lender
(acting through Agent), on demand, such amount with interest
thereon for the
period from the date such payment is required to the date on which
such payment
is immediately available to the L/C Issuer at a rate per annum
equal to the
greater of the Federal Funds Rate and a rate determined by the L/C
Issuer in
accordance with banking industry rules on interbank compensation,
PLUS any
administrative, processing or similar fees customarily charged by
the L/C Issuer
in connection with the foregoing. A certificate of the L/C Issuer
submitted to
any Lender (through Agent) with respect to any amounts owing under
this clause
(v) shall be conclusive absent manifest error.
(d)
REPAYMENT OF PARTICIPATIONS.
(i) At any time after the L/C Issuer has made a payment under
any
Letter of Credit and has received from any Lender such Lender's L/C
Advance in
respect of such payment in accordance with SECTION 2.01(c), if
Agent receives
for the account of the L/C Issuer any payment in respect of the
related
Unreimbursed Amount or interest thereon (whether directly from
Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by
Agent),
Agent will distribute to such Lender its Applicable Percentage
thereof
(appropriately adjusted, in the case of interest payments, to
reflect the period
of time during which such Lender's L/C Advance was outstanding) in
the same
funds as those received by Agent.
(ii) If any payment received by Agent for the account of the
L/C
Issuer pursuant to SECTION 2.01(c)(i) is required to be returned
under any of
the circumstances described in SECTION 10.05 (including pursuant to
any
settlement entered into by the L/C Issuer in its discretion), each
Lender shall
pay to Agent for the account of the L/C Issuer its Applicable
Percentage thereof
on
16
<Page>
demand of Agent, plus interest thereon from the date of such demand
to the date
such amount is returned by such Lender, at a rate per annum equal
to the Federal
Funds Rate from time to time in effect. The obligations of Lenders
under this
clause shall survive the payment in full of the Obligations and the
termination
of this Agreement.
(e)
OBLIGATIONS ABSOLUTE. The obligation of Borrower to reimburse the
L/C
Issuer for each drawing under each Letter of Credit and to repay
each L/C
Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of
Credit,
this Agreement, any other Loan Document or any Collateral
Document;
(ii) the existence of any claim, counterclaim, setoff, defense
or
other right that Borrower or any Subsidiary may have at any time
against any
beneficiary or any transferee of such Letter of Credit (or any
Person for whom
any such beneficiary or any such transferee may be acting), the L/C
Issuer or
any other Person, whether in connection with this Agreement, the
transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument
relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient
in any respect or any statement therein being untrue or inaccurate
in any
respect; or any loss or delay in the transmission or otherwise of
any document
required in order to make a drawing under such Letter of
Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against
presentation of a draft or certificate that does not strictly
comply with the
terms of such Letter of Credit; or any payment made by the L/C
Issuer under such
Letter of Credit to any Person purporting to be a trustee in
bankruptcy,
debtor-in-possession, assignee for the benefit of creditors,
liquidator,
receiver or other representative of or successor to any beneficiary
or any
transferee of such Letter of Credit, including any arising in
connection with
any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not
similar to any of the foregoing, including any other circumstance
that might
otherwise constitute a defense available to, or a discharge of,
Borrower or any
Subsidiary.
Borrower shall promptly examine a copy of each Letter of Credit and
each
amendment thereto that is delivered to it and, in the event of any
claim of
noncompliance with Borrower's instructions or other irregularity,
Borrower will
immediately notify the L/C Issuer. Borrower shall be conclusively
deemed to have
waived any such claim against the L/C Issuer and its correspondents
unless such
notice is given as aforesaid.
(f) RECORDS. Each Lender and Agent shall maintain in accordance
with its usual
practice accounts or records evidencing the purchases and sales by
such Lender
of participations in Letters of Credit. In the event of any
conflict between the
accounts and records maintained by Agent and the accounts and
records of any
Lender in respect of such matters, the accounts and records of
Agent shall
control in the absence of manifest error.
(g) ROLE
OF L/C ISSUER. Each Lender and Borrower agree that, in paying
any
drawing under a Letter of Credit, the L/C Issuer shall not have
any
responsibility to obtain any document (other than any sight draft,
certificates
and documents expressly required by the Letter of Credit) or to
ascertain or
inquire as to the validity or accuracy of any such document or the
authority of
the Person executing or delivering any such document. None of the
L/C Issuer,
Agent, any of their respective Related Parties nor any
correspondent,
participant or assignee of the L/C Issuer shall be liable to any
Lender for (i)
any action taken or omitted in connection herewith at the request
or with the
approval of Lenders or the Required Lenders, as applicable; (ii)
any action
taken or omitted in the absence of gross negligence or willful
misconduct; or
(iii) the due execution, effectiveness, validity or enforceability
of any
document or instrument related to any Letter of Credit or Issuer
Document.
Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or
transferee with respect to its use of any Letter of Credit;
PROVIDED, HOWEVER,
that this assumption is not intended to, and shall not, preclude
Borrower's
pursuing such rights and remedies as it may have against the
beneficiary or
transferee at law or under any other agreement. None of the L/C
Issuer, Agent,
any of their respective Related Parties nor any correspondent,
participant or
assignee of the L/C Issuer, shall be liable or responsible for any
of the
matters described in clauses (i) through (v) of SECTION 2.01(e);
PROVIDED,
HOWEVER, that anything in such clauses to the contrary
notwithstanding, Borrower
may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to
Borrower, to the extent, but only to the extent, of any direct, as
opposed to
consequential or exemplary, damages suffered by Borrower which
Borrower proves
were caused by the L/C Issuer's willful misconduct or gross
negligence or the
L/C Issuer's willful failure to pay under any Letter of Credit
after the
presentation to it by the beneficiary of a sight draft and
certificate(s)
strictly complying with the terms and
17
<Page>
conditions of a Letter of Credit. In furtherance and not in
limitation of the
foregoing, the L/C Issuer may accept documents that appear on their
face to be
in order, without responsibility for further investigation,
regardless of any
notice or information to the contrary, and the L/C Issuer shall not
be
responsible for the validity or sufficiency of any instrument
transferring or
assigning or purporting to transfer or assign a Letter of Credit or
the rights
or benefits thereunder or proceeds thereof, in whole or in part,
which may prove
to be invalid or ineffective for any reason.
(h) CASH
COLLATERAL. Upon the request of Agent, if, as of the L/C
Expiration Date, any L/C Obligation for any reason remains
outstanding, Borrower
shall, immediately Cash Collateralize the then Outstanding Amount
of all L/C
Obligations. Section 8.02(c) sets forth certain additional
requirements to
deliver Cash Collateral hereunder. In addition, if for any reason,
the Total
Outstandings at any time exceeds the Aggregate Commitment then in
effect,
Borrower shall immediately Cash Collateralize the L/C Obligations
in an amount
equal to such excess. For purposes hereof, "CASH COLLATERALIZE"
means to pledge
and deposit with or deliver to Agent, for the benefit of the L/C
Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit
account balances
pursuant to documentation in form and substance satisfactory to
Agent and the
L/C Issuer (which documents are hereby consented to by Lenders).
Derivatives of
such term have corresponding meanings. Borrower hereby grants to
Agent, for the
benefit of the L/C Issuer and Lenders, a security interest in all
such cash,
deposit accounts and all balances therein and all proceeds of the
foregoing.
Cash collateral shall be maintained in blocked, non-interest
bearing deposit
accounts at Bank of America.
(i)
APPLICABILITY OF ISP AND UCP. Unless otherwise expressly agreed by
the
L/C Issuer and Borrower when a Letter of Credit is issued, (i) the
rules of the
ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the
Uniform Customs and Practice for Documentary Credits, as most
recently published
by the International Chamber of Commerce (the "ICC") at the time of
issuance
shall apply to each commercial Letter of Credit.
(j) L/C
FEES. Borrower shall pay to Agent for the account of each
Lender
in accordance with its Applicable Percentage a L/C fee (the "L/C
FEE") for each
Letter of Credit equal to the Applicable Rate TIMES the daily
amount available
to be drawn under such Letter of Credit. For purposes of computing
the daily
amount available to be drawn under any Letter of Credit, the amount
of such
Letter of Credit shall be determined in accordance with SECTION
1.06. L/C Fees
shall be (i) computed on a quarterly basis in arrears and (ii) due
and payable
on the first Business Day after the end of each March, June,
September and
December, commencing with the first such date to occur after the
issuance of
such Letter of Credit, on the L/C Expiration Date and thereafter on
demand.
Notwithstanding anything to the contrary contained herein, upon the
request of
the Required Lenders, while any Event of Default exists, all L/C
Fees shall
accrue at the Default Rate.
(k)
CONFLICT WITH ISSUER DOCUMENTS. In the event of any conflict
between
the terms hereof and the terms of any Issuer Documents, the terms
hereof shall
control.
2.02 TERMINATION OR REDUCTION OF COMMITMENTS. Borrower may,
upon
notice to Agent, terminate the Aggregate Commitments, or from time
to time
permanently reduce the Aggregate Commitments; PROVIDED that (i) any
such notice
shall be received by Agent not later than 11:00 a.m. five Business
Days prior to
the date of termination or reduction, (ii) any such partial
reduction shall be
in an aggregate amount of $1,000,000 or any whole multiple of
$1,000,000 in
excess thereof, (iii) Borrower shall not terminate or reduce the
Aggregate
Commitments if, after giving effect thereto, the Outstanding Amount
of all L/C
Obligations would exceed the Aggregate Commitments. Agent will
promptly notify
the Lenders of any such notice of termination or reduction of the
Aggregate
Commitments. Any reduction of the Aggregate Commitments shall be
applied to the
Commitment of each Lender according to its Applicable Percentage.
All fees
accrued until the effective date of any termination of the
Aggregate Commitments
shall be paid on the effective date of such termination.
2.03 REPAYMENT OF L/C BORROWINGS; INTEREST. Each L/C Borrowing is
due
and payable on demand. Each L/C Borrowing and, upon the request of
the Required
Lenders, any other amount payable by Borrower under any Loan
Document that is
not paid when due (without regard to any applicable grace periods),
whether at
stated maturity, upon demand, by acceleration or otherwise, shall
bear interest
at a fluctuating interest rate per annum at all times equal to the
Default Rate
to the fullest extent permitted by applicable Laws. Accrued and
unpaid interest
as set forth above (including interest on past due interest) shall
be due and
payable upon demand. Interest hereunder shall be due and payable in
accordance
with the terms hereof before and after judgment, and before and
after the
commencement of any proceeding under any Debtor Relief Law.
2.04 FEES. In addition to certain fees described in subsection (j)
of
SECTION 2.01:
18
<Page>
(a)
COMMITMENT FEE. Borrower shall pay to Agent for the account of
each
Lender in accordance with its Applicable Percentage, a commitment
fee equal to
the Applicable Rate TIMES the actual daily amount by which the
Aggregate
Commitments exceed the Outstanding Amount of L/C Obligations. The
commitment fee
shall accrue at all times from the Closing Date until the Maturity
Date,
including at any time during which one or more of the conditions in
ARTICLE IV
is not met, and shall be due and payable quarterly in arrears on
the last
Business Day of each March, June, September and December,
commencing with the
first such date to occur after the Closing Date, and on the
Maturity Date. The
commitment fee shall be calculated quarterly in arrears, and if
there is any
change in the Applicable Rate during any quarter, the actual daily
amount shall
be computed and multiplied by the Applicable Rate separately for
each period
during such quarter that such Applicable Rate was in effect.
(b)
AGENT'S FEES. Borrower shall pay to Agent for Agent's own
account,
fees in the amounts and at the times specified in the letter
agreement, dated
October 3, 2005 (the "AGENT FEE LETTER"), between Borrower and
Agent. Such fees
shall be fully earned when paid and shall be nonrefundable for any
reason
whatsoever.
(c)
LENDERS' UPFRONT FEE. On the Closing Date, Borrower shall pay
to
Agent, for the account of each Lender in accordance with their
respective
Applicable Percentages, an upfront fee in an amount of 1/4 of 1% of
the
Commitment of such Lender. Such upfront fees are for the credit
facilities
committed by Lenders under this Agreement and are fully earned on
the date paid.
The upfront fee paid to each Lender is solely for its own account
and is
nonrefundable for any reason whatsoever.
(d) DRAW
FEE AND AMENDMENT FEE. Borrower shall pay to the Agent for the
account of each Lender in accordance with its Applicable
Percentage, a fee for
each draw request made on a Letter of Credit and for each amendment
made to a
Letter of Credit; such fees are currently $175 and $250,
respectively, and are
subject to change from time to time. In addition, Borrower shall
pay directly to
the L/C Issuer for its own account the customary issuance,
presentation and
other processing fees, and other standard costs and charges, of the
L/C Issuer
relating to letters of credit as from time to time in effect. All
such fees,
costs and charges are due and payable on demand and are
nonrefundable.
2.05
COMPUTATION OF INTEREST AND FEES. All computations of interest
when the Base Rate is determined by Bank of America's "prime rate"
shall be made
on the basis of a year of 365 or 366 days, as the case may be, and
actual days
elapsed. All other computations of fees and interest shall be made
on the basis
of a 360-day year and actual days elapsed (which results in more
fees or
interest, as applicable, being paid than if computed on the basis
of a 365-day
year). Interest shall accrue on each L/C Borrowing for the day on
which the L/C
Borrowing is made, and shall not accrue on a L/C Borrowing, or any
portion
thereof, for the day on which the L/C Borrowing or such portion is
paid,
PROVIDED that any L/C Borrowing that is repaid on the same day on
which it is
made shall, subject to SECTION 2.06(a), bear interest for one day.
Each
determination by Agent of an interest rate or fee hereunder shall
be conclusive
and binding for all purposes, absent manifest error.
2.06 PAYMENTS GENERALLY; AGENT'S CLAWBACK. (a)(i) GENERAL. All
payments to be made by Borrower shall be made without condition or
deduction for
any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly
provided herein, all payments by Borrower hereunder shall be made
to Agent, for
the account of L/C Issuer or the respective Lenders to which such
payment is
owed, at the Administrative Agent's Office in Dollars and in
immediately
available funds not later than 12:00 noon on the date specified
herein. Agent
will promptly distribute to each Lender its Applicable
Percentage(or other
applicable share as provided herein) of such payment in like funds
as received
by wire transfer to such Lender's Lending Office. All payments
received by Agent
after 12:00 noon shall be deemed received on the next succeeding
Business Day
and any applicable interest or fee shall continue to accrue. If any
payment to
be made by Borrower shall come due on a day other than a Business
Day, payment
shall be made on the next following Business Day, and such
extension of time
shall be reflected in computing interest or fees, as the case may
be.
(ii) On
each date when the payment of any principal, interest or fees
are
due hereunder or under any other Loan Document, Borrower agrees to
maintain on
deposit in an ordinary checking account maintained by Borrower with
Agent (as
such account shall be designated by Borrower in a written notice to
Agent from
time to time, the "BORROWER ACCOUNT") an amount sufficient to pay
such
principal, interest or fees in full on such date. Borrower hereby
authorizes
Agent (A) to deduct automatically all principal, interest or fees
when due
hereunder from the Borrower Account, and (B) if and to the extent
any payment of
principal, interest or fees under this Agreement is not made when
due to deduct
any such amount from any or all of the accounts of Borrower
maintained at Agent.
Agent agrees to provide written notice to Borrower of any automatic
deduction
made pursuant to this SECTION 2.06(a)(ii) showing in reasonable
detail the
amounts of such deduction. Lenders agree to reimburse Borrower
based on their
Applicable Percentage for any amounts deducted from such accounts
in excess of
amount due hereunder and under any other Loan Documents.
19
<Page>
(b)
PAYMENTS BY BORROWER; PRESUMPTIONS BY AGENT. Unless Agent shall
have
received notice from Borrower prior to the date on which any
payment is due to
Agent for the account of the Lenders or the L/C Issuer hereunder
that Borrower
will not make such payment, Agent may assume that Borrower has made
such payment
on such date in accordance herewith and may, in reliance upon such
assumption,
distribute to Lenders or the L/C Issuer, as the case may be, the
amount due. In
such event, if Borrower has not in fact made such payment, then
each of Lenders
or the L/C Issuer, as the case may be, severally agrees to repay to
Agent
forthwith on demand the amount so distributed to such Lender or the
L/C Issuer,
in immediately available funds with interest thereon, for each day
from and
including the date such amount is distributed to it to but
excluding the date of
payment to Agent, at the greater of the Federal Funds Rate and a
rate determined
by Agent in accordance with banking industry rules on interbank
compensation. A
notice of Agent to any Lender or Borrower with respect to any
amount owing under
this subsection (b) shall be conclusive, absent manifest error.
(c)
OBLIGATIONS OF LENDERS SEVERAL. The obligations of Lenders
hereunder
to fund participations in Letters of Credit and to make payments
under SECTION
10.04(c) are several and not joint. The failure of any Lender to
make any L/C
Advance, to fund any such participation or to make any payment
under SECTION
10.04(c) on any date required hereunder shall not relieve any other
Lender of
its corresponding obligation to do so on such date, and no Lender
shall be
responsible for the failure of any other Lender to so make its L/C
Advance,
purchase its participation or to make its payment under SECTION
10.04(c):
2.07 SHARING OF PAYMENTS. If any Lender shall, by exercising any
right
of setoff or counterclaim or otherwise, obtain payment in respect
of any
principal of or interest on any of the participations in L/C
Obligations held by
it resulting in such Lender's receiving payment of a proportion of
the aggregate
amount of such participations and accrued interest thereon greater
than its PRO
RATA share thereof as provided herein, then the Lender receiving
such greater
proportion shall (a) notify Agent of such fact, and (b) purchase
(for cash at
face value) subparticipations in L/C Obligations of the other
Lenders, or make
such other adjustments as shall be equitable, so that the benefit
of all such
payments shall be shared by the Lenders ratably in accordance with
the aggregate
amount of principal of and accrued interest on their respective L/C
Advances and
other amounts owing them, PROVIDED that:
(i) if
any such subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such
subparticipations shall be rescinded and the purchase price
restored
to the extent of such recovery, without interest; and
(ii) the
provisions of this Section shall not be construed to
apply to (x) any payment made by Borrower pursuant to and in
accordance with the express terms of this Agreement or (y) any
payment
obtained by a Lender as consideration for subparticipations in
L/C
Obligations to any assignee or participant, other than to Borrower
or
any Subsidiary thereof (as to which the provisions of this
Section
shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent
it may
effectively do so under applicable law, that any Lender acquiring
a
participation pursuant to the foregoing arrangements may exercise
against such
Loan Party rights of setoff and counterclaim with respect to such
participation
as fully as if such Lender were a direct creditor of such Loan
Party in the
amount of such participation.
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES. (a) PAYMENTS FREE OF TAXES. Any and all payments by
Borrower to or on account of any obligation of Borrower hereunder
or under any
other Loan Document shall be made free and clear of and without
reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that
if Borrower
shall be required by any applicable law to deduct any Indemnified
Taxes
(including any Other Taxes) from such payments, then, (i) the sum
payable shall
be increased as necessary so that after making all required
deductions
(including deductions applicable to additional sums payable under
this Section),
Agent, Lender or L/C Issuer, as the case may be, receives an amount
equal to the
sum it would have received had no such deductions been made, (ii)
Borrower shall
make such deductions, and (iii) Borrower shall timely pay the full
amount
deducted to the relevant Governmental Authority in accordance with
applicable
law.
(b) PAYMENT OF OTHER TAXES BY BORROWER. Without limiting the
provisions of
subsection (a) above, Borrower shall timely pay any Other Taxes to
the relevant
Governmental Authority in accordance with applicable law.
(c) INDEMNIFICATION BY BORROWER. Borrower shall indemnify Agent,
each Lender and
the L/C Issuer, within 10 days after demand therefor, for the full
amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or
Other Taxes
imposed or
20
<Page>
asserted on or attributable to amounts payable under this Section)
paid by
Agent, such Lender or the L/C Issuer, as the case may be, and any
penalties,
interest and reasonable expenses arising therefrom or with respect
thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly
or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to
the amount of such payment or liability delivered to Borrower by a
Lender or the
L/C Issuer (with a copy to Agent), or by Agent on its own behalf or
on behalf of
a Lender or the L/C Issuer, shall be conclusive absent manifest
error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any payment
of
Indemnified Taxes or Other Taxes by Borrower to a Governmental
Authority,
Borrower shall deliver to Agent the original or a certified copy of
a receipt
issued by such Governmental Authority evidencing such payment, a
copy of the
return reporting such payment or other evidence of such payment
reasonably
satisfactory to Agent.
(e) STATUS OF LENDERS. Any Lender, if requested by Borrower or
Agent, shall
deliver such documentation prescribed by applicable law or
reasonably requested
by Borrower or Agent as will enable the Borrower or Agent to
determine whether
or not such Lender is subject to backup withholding or information
reporting
requirements.
(f) TREATMENT OF CERTAIN REFUNDS. If Agent, any Lender or the L/C
Issuer
determines, in its sole discretion, that it has received a refund
of any Taxes
or Other Taxes as to which it has been indemnified by Borrower or
with respect
to which Borrower has paid additional amounts pursuant to this
Section, it shall
pay to Borrower an amount equal to such refund (but only to the
extent of
indemnity payments made, or additional amounts paid, by Borrower
under this
Section with respect to the Taxes or Other Taxes giving rise to
such refund),
net of all out-of-pocket expenses of Agent, such Lender or the L/C
Issuer, as
the case may be, and without interest (other than any interest paid
by the
relevant Governmental Authority with respect to such refund),
PROVIDED that
Borrower, upon the request of Agent, such Lender or the L/C Issuer,
agrees to
repay the amount paid over to Borrower (plus any penalties,
interest or other
charges imposed by the relevant Governmental Authority) to Agent,
such Lender or
the L/C Issuer in the event Agent, such Lender or the L/C Issuer is
required to
repay such refund to such Governmental Authority. This subsection
shall not be
construed to require Agent, any Lender or the L/C Issuer to make
available its
tax returns (or any other information relating to its taxes that it
deems
confidential) to Borrower or any other Person.
3.02 INCREASED COSTS (a) INCREASED COSTS GENERALLY. If any Change
in
Law shall:
(i)
impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance charge or similar requirement
against assets
of, deposits with or for the account of, or credit extended or
participated in
by, any Lender or the L/C Issuer;
(ii) subject
any Lender or the L/C Issuer to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, or
any
participation in a Letter of Credit, or change the basis of
taxation of payments
to such Lender or the L/C Issuer in respect thereof (except for
Indemnified
Taxes or Other Taxes covered by SECTION 3.01 and the imposition of,
or any
change in the rate of, any Excluded Tax payable by such Lender or
the L/C
Issuer); or
(iii) impose on any
Lender or the L/C Issuer any other condition,
cost or expense affecting this Agreement or any Letter of Credit
or
participation therein;
and the result of any of the foregoing shall be to increase the
cost to such
Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter
of Credit (or of maintaining its obligation to participate in or to
issue any
Letter of Credit), or to reduce the amount of any sum received or
receivable by
such Lender or the L/C Issuer hereunder (whether of principal,
interest or any
other amount) then, upon request of such Lender or the L/C Issuer,
Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such
additional amount
or amounts as will compensate such Lender or the L/C Issuer, as the
case may be,
for such additional costs incurred or reduction suffered.
(b)
CAPITAL REQUIREMENTS. If any Lender or the L/C Issuer determines
that
any Change in Law affecting such Lender or the L/C Issuer or any
Lending Office
of such Lender or such Lender's or the L/C Issuer's holding
company, if any,
regarding capital requirements has or would have the effect of
reducing the rate
of return on such Lender's or the L/C Issuer's capital or on the
capital of such
Lender's or the L/C Issuer's holding company, if any, as a
consequence of this
Agreement, the Commitments of such Lender, or participations in
Letters of
Credit held by, such Lender, or the Letters of Credit issued by the
L/C Issuer,
to a level below that which such Lender or the L/C Issuer or such
Lender's or
the L/C Issuer's holding company could have achieved
21
<Page>
but for such Change in Law (taking into consideration such Lender's
or the L/C
Issuer's policies and the policies of such Lender's or the L/C
Issuer's holding
company with respect to capital adequacy), then from time to time
Borrower will
pay to such Lender or the L/C Issuer, as the case may be, such
additional amount
or amounts as will compensate such Lender or the L/C Issuer or such
Lender's or
the L/C Issuer's holding company for any such reduction suffered.
If Borrower
becomes obligated to make any material amount of recurring payments
under this
subsection, then Borrower shall have the right to find another
issuer of an
appropriate letter of credit, and, upon closing with such issuer
and the return
to the Agent of any Letters of Credit outstanding hereunder and
payment of any
amounts due hereunder, terminate this Agreement, provided however
that no such
termination shall affect Borrower's obligations to the Lenders, the
Agent, and
the L/C Issuer for matters arising during the period this Agreement
was in
effect and payment of their reasonable out-of-pocket costs,
including reasonable
attorneys' fees, in connection with such termination.
(c)
CERTIFICATES FOR REIMBURSEMENT. A certificate of a Lender or the
L/C
Issuer setting forth the amount or amounts necessary to compensate
such Lender
or the L/C Issuer or its holding company, as the case may be, as
specified in
subsection (a) or (b) of this Section and delivered to Borrower
shall be
conclusive absent manifest error. Borrower shall pay such Lender or
the L/C
Issuer, as the case may be, the amount shown as due on any such
certificate
within 10 days after receipt thereof.
(d)
DELAY IN REQUESTS. Failure or delay on the part of any Lender or
the
L/C Issuer to demand compensation pursuant to the foregoing
provisions of this
Section shall not constitute a waiver of such Lender's or the L/C
Issuer's right
to demand such compensation, PROVIDED that Borrower shall not be
required to
compensate a Lender or the L/C Issuer pursuant to the foregoing
provisions of
this Section for any increased costs incurred or reductions
suffered more than
nine months prior to the date that such Lender or the L/C Issuer,
as the case
may be, notifies Borrower of the Change in Law giving rise to such
increased
costs or reductions and of such Lender's or the L/C Issuer's
intention to claim
compensation therefor (except that, if the Change in Law giving
rise to such
increased costs or reductions is retroactive, then the nine-month
period
referred to above shall be extended to include the period of
retroactive effect
thereof).
3.03 MITIGATION OBLIGATIONS. If any Lender requests compensation
under
SECTION 3.02, or Borrower is required to pay any additional amount
to any Lender
or any Governmental Authority for the account of any Lender
pursuant to SECTION
3.01, then such Lender shall use reasonable efforts to designate a
different
Lending Office or to assign its rights and obligations hereunder to
another of
its offices, branches or affiliates, if, in the judgment of such
Lender, such
designation or assignment (i) would eliminate or reduce amounts
payable pursuant
to SECTION 3.01 or 3.02, as the case may be, in the future, and
(ii) in each
case, would not subject such Lender to any unreimbursed cost or
expense and
would not otherwise be disadvantageous to such Lender. Borrower
hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in
connection with
any such designation or assignment.
3.04 SURVIVAL. All of Borrower's obligations under this ARTICLE
III
shall survive termination of the Aggregate Commitments and
repayment of all
other Obligations hereunder.
ARTICLE IV. CONDITIONS PRECEDENT TO L/C CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL L/C CREDIT EXTENSION. The obligation of
the
L/C Issuer to make the initial L/C Credit Extension hereunder is
subject to
satisfaction of the following conditions precedent:
(a) Agent's receipt of the following, each of which shall be
originals or
telecopies (followed promptly by originals) unless otherwise
specified, each
properly executed by a Responsible Officer of the signing Loan
Party, each dated
the Closing Date (or, in the case of certificates of governmental
officials, a
recent date before the Closing Date) and each in form and substance
satisfactory
to Agent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number
for
distribution to Agent, each Lender and Borrower, together with
originals of the applicable Issuer Documents to be delivered to
the
L/C Issuer and all Collateral Documents, with the original
Second
Mortgage Bonds, to be delivered to the Agent;
(ii) such certificates of resolutions or other action,
incumbency
certificates and/or other certificates of Responsible Officers of
each
Loan Party as Agent may require evidencing the identity, authority
and
capacity of each Responsible Officer thereof authorized to act as
a
Responsible Officer in connection with this Agreement and the
other
Loan Documents to which such Loan Party is a party;
22
<Page>
(iii) such documents and certifications as Agent may reasonably
require to evidence that each Loan Party is duly organized or
formed,
and that each Loan Party is validly existing, in good standing
and
qualified to engage in business in each jurisdiction where its
ownership, lease or operation of properties or the conduct of
its
business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a
Material
Adverse Effect;
(iv) a favorable opinion of counsel to the Loan Parties acceptable
to
Agent addressed to Agent and each Lender, as to the matters set
forth
concerning the Loan Parties and the Loan Documents in form and
substance satisfactory to Agent;
(v) a certificate of a Responsible Officer of each Loan Party
either
(A) attaching copies of all consents, licenses and approvals
required
in connection with the execution, delivery and performance by
such
Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and stating that such
consents,
licenses and approvals shall be in full force and effect, or
(B)
stating that no such consents, licenses or approvals are so
required;
(vi) a certificate signed by a Responsible Officer of Borrower
certifying (A) that the conditions specified in SECTIONS 4.02(a)
and
(b) have been satisfied, and (B) that there has been no event
or
circumstance since the date of the Borrower Financial Statements
that
has had or could be reasonably expected to have, either
individually
or in the aggregate, a Material Adverse Effect;
(vii) evidence that all insurance required to be maintained
pursuant
to the Loan Documents has been obtained and is in effect;
(viii) a duly completed Compliance Certificate as of the last day
of
the fiscal quarter of Borrower most recently ended prior to the
Closing Date, signed by a Responsible Officer of Borrower;
(ix) evidence that all commitments under the Letter of Credit
and
Reimbursement Agreement dated as of June 1, 1996, with The Bank of
New
York as Agent and Issuing Bank, as the same has been amended to
date
(the "EXISTING CREDIT AGREEMENT") have been or concurrently with
the
Closing Date are being terminated, and all outstanding amounts
thereunder paid in full and all Liens securing obligations under
the
Existing Credit Agreement have been or concurrently with the
Closing
Date are being released;
(x) evidence that the Letter of Credit to be issued hereunder has
been
accepted as an "Alternate Credit Facility" by the Trustee under
the
MPUFB Indenture;
(xi) true and complete copies of each of the following, as amended
to
date, shall be provided to the Agent: the MPUFB Loan Agreement,
the
MPUFB Indenture, the Second Mortgage Supplemental Indenture,
the
Pledge Agreement, the Tender Agreement, the Remarketing Agreement;
and
(xii) such other assurances, certificates, documents, consents
or
opinions as Agent, the L/C Issuer or the Required Lenders
reasonably
may require.
(b) Any
fees required to be paid on or before the Closing Date shall
have
been paid.
(c) Unless waived by
Agent, Borrower shall have paid all fees, charges and
disbursements of counsel to Agent to the extent invoiced prior to
or on the
Closing Date, plus such additional amounts of such fees, charges
and
disbursements as shall constitute its reasonable estimate of such
fees, charges
and disbursements incurred or to be incurred by it through the
closing
proceedings (provided that such estimate shall not thereafter
preclude a final
settling of accounts between Borrower and Agent).
(d) The
Closing Date shall have occurred on or before February 28,
2006.
Without limiting the generality of the provisions of SECTION 9.04,
for purposes
of determining compliance with the conditions specified in this
SECTION 4.01,
each Lender that has signed this Agreement shall be deemed to have
consented to,
approved or accepted or to be satisfied with, each document or
other matter
required thereunder to be consented to or approved by or
23
<Page>
acceptable or satisfactory to a Lender unless Agent shall have
received notice
from such Lender prior to the proposed Closing Date specifying its
objection
thereto.
4.02 CONDITIONS TO ALL L/C CREDIT EXTENSIONS. The obligation of
the
L/C Issuer to honor any request for a L/C Credit Extension is
subject to the
following conditions precedent:
(a) The representations and warranties of Borrower and each other
Loan Party
contained in ARTICLE V or any other Loan Document, or which are
contained in any
document furnished at any time under or in connection herewith or
therewith,
shall be true and correct on and as of the date of such L/C Credit
Extension,
except to the extent that such representations and warranties
specifically refer
to an earlier date, in which case they shall be true and correct as
of such
earlier date, and except that for purposes of this SECTION 4.02,
the
representations and warranties contained in subsections (a) and (b)
of SECTION
5.05 shall be deemed to refer to the most recent statements
furnished pursuant
to clauses (a) and (b), respectively, of SECTION 6.01.
(b) No Default shall exist, or would result from such proposed L/C
Credit
Extension or from the application of the proceeds thereof.
(c) Agent and the L/C Issuer shall have received the L/C
Application in
accordance with the requirements hereof.
(d) Agent shall have received, in form and substance satisfactory
to it, such
other assurances, certificates, documents or consents related to
the foregoing
as Agent, the L/C Issuer or the Required Lenders reasonably may
require.
Each L/C Application submitted by Borrower shall be deemed to be
a
representation and warranty that the conditions specified in
SECTIONS 4.02(a)
and (b) have been satisfied on and as of the date of the applicable
L/C Credit
Extension.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Agent and the Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS.
Each
Loan Party and each Subsidiary thereof (a) is duly organized or
formed, validly
existing and in good standing under the Laws of the jurisdiction of
its
incorporation or organization, (b) has all requisite power and
authority and all
requisite governmental licenses, authorizations, consents and
approvals to (i)
own or lease its assets and carry on its business and (ii) execute,
deliver and
perform its obligations under the Loan Documents and the Collateral
Documents to
which it is a party, (c) is duly qualified and is licensed and in
good standing
under the Laws of each jurisdiction where its ownership, lease or
operation of
properties or the conduct of its business requires such
qualification or
license, and (d) is in compliance with all Laws; except in each
case referred to
in clause (b)(i), (c) or (d), to the extent that failure to do so
could not
reasonably be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and
performance by each Loan Party of each Loan Document and each
Collateral
Document to which such Person is party, have been duly authorized
by all
necessary corporate or other organizational action, and do not and
will not (a)
contravene the terms of any of such Person's Organization
Documents; (b)
conflict with or result in any breach or contravention of, or the
creation of
any Lien under, or require any payment to be made under (i) any
Contractual
Obligation to which such Person is a party or affecting such Person
or the
properties of such Person or any of its Subsidiaries or (ii) any
order,
injunction, writ or decree of any Governmental Authority or any
arbitral award
to which such Person or its property is subject; or (c) violate any
Law. Each
Loan Party and each Subsidiary thereof is in compliance with all
Contractual
Obligations referred to in clause (b)(i), except to the extent that
failure to
do so could not reasonably be expected to have a Material Adverse
Effect.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval,
consent,
exemption, authorization, or other action by, or notice to, or
filing with, any
Governmental Authority or any other Person is necessary or required
in
connection with the execution, delivery or performance by, or
enforcement
against, any Loan Party of this Agreement or any other Loan
Document or any
Collateral Document except that any action requiring a sale of any
material part
of the Borrower's assets will require PUC approval.
5.04 BINDING EFFECT. This Agreement has been, and each other
Loan
Document and each Collateral Document, when delivered hereunder,
will have been,
duly executed and delivered by each Loan Party that is party
thereto. This
24
<Page>
Agreement constitutes, and each other Loan Document and each
Collateral Document
when so delivered will constitute, a legal, valid and binding
obligation of such
Loan Party, enforceable against each Loan Party that is party
thereto in
accordance with its terms.
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT; NO
INTERNAL
CONTROL EVENT. (a) The Borrower Financial Statements (i) were
prepared in
accordance with GAAP consistently applied throughout the period
covered thereby,
except as otherwise expressly noted therein; (ii) fairly present
the financial
condition of Borrower and its Subsidiaries as of the date thereof
and their
results of operations for the period covered thereby in accordance
with GAAP
consistently applied throughout the period covered thereby, except
as otherwise
expressly noted therein; and (iii) show all material indebtedness
and other
liabilities, direct or contingent, of Borrower and its Subsidiaries
as of the
date thereof, including liabilities for taxes, material commitments
and
Indebtedness.
(b) The unaudited consolidated and consolidating balance sheets of
Borrower and
its Subsidiaries dated September 30, 2005, and the related
consolidated and
consolidating statements of income or operations, shareholders'
equity and cash
flows for the fiscal quarter ended on that date (i) were prepared
in accordance
with GAAP consistently applied throughout the period covered
thereby, except as
otherwise expressly noted therein, and (ii) fairly present the
financial
condition of Borrower and its Subsidiaries as of the date thereof
and their
results of operations for the period covered thereby, subject, in
the case of
clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit
adjustments.
(c) Since the date of the Borrower Financial Statements, there has
been no event
or circumstance, either individually or in the aggregate, that has
had or could
reasonably be expected to have a Material Adverse Effect.
(d) Since the date of the Borrower Financial Statements, no
Internal Control
Event has occurred.
(e) Subject to the second sentence of this subsection, the
consolidated pro
forma balance sheets of Borrower and its Subsidiaries as at
December 31, 2005,
and the related consolidated pro forma statements of income and
cash flows of
Borrower and its Subsidiaries for the twelve months then ended,
certified by the
chief financial officer of Borrower, copies of which have been
furnished to each
Lender, fairly present the consolidated pro forma financial
condition of
Borrower and its Subsidiaries as at such date and the consolidated
pro forma
results of operations of Borrower and its Subsidiaries for the
period ended on
such date, all in accordance with GAAP. The consolidated forecasted
balance
sheet and statements of income and cash flows of the Borrower and
its
Subsidiaries were prepared in good faith on the basis of the
assumptions stated
therein, which assumptions were fair in light of the conditions
existing at the
time of delivery of such forecasts, and represented, at the time of
delivery,
the Borrower's best estimate of its future financial
performance.
5.06
LITIGATION. There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of Borrower after due and
diligent
investigation, threatened or contemplated, at law, in equity, in
arbitration or
before any Governmental Authority, by or against Borrower or any of
its
Subsidiaries or against any of their properties or revenues that
(a) purport to
affect or pertain to this Agreement or any other Loan Document or
any Collateral
Document, or any of the transactions contemplated hereby, or (b)
except as
specifically disclosed in SCHEDULE 5.06, either individually or in
the
aggregate, if determined adversely, could reasonably be expected to
have a
Material Adverse Effect, and there has been no adverse change in
the status, or
financial effect on any Loan Party or any Subsidiary thereof, of
the matters
described on SCHEDULE 5.06.
5.07 NO DEFAULT. Neither Borrower nor any Subsidiary is in
default
under or with respect to any Contractual Obligation that could,
either
individually or in the aggregate, reasonably be expected to have a
Material
Adverse Effect. No Default has occurred and is continuing or would
result from
the consummation of the transactions contemplated by this Agreement
or any other
Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of Borrower and each
Subsidiary has good record and marketable title in fee simple to,
or valid
leasehold interests in, all real property necessary or used in the
ordinary
conduct of its business, except for such defects in title as could
not,
individually or in the aggregate, reasonably be expected to have a
Material
Adverse Effect. The property of Borrower and its Subsidiaries is
subject to no
Liens, other than Liens permitted by SECTION 7.01.
5.09 ENVIRONMENTAL COMPLIANCE. Borrower and its Subsidiaries
conduct
in the ordinary course of business a review of the effect of
existing
Environmental Laws and claims alleging potential liability or
responsibility for
violation of any Environmental Law on their respective businesses,
operations
and properties, and as a result thereof Borrower has reasonably
25
<Page>
concluded that, except as specifically disclosed in SCHEDULE 5.09,
such
Environmental Laws and claims could not, individually or in the
aggregate,
reasonably be expected to have a Material Adverse Effect.
5.10 INSURANCE. The properties of Borrower and its Subsidiaries
are
insured with financially sound and reputable insurance companies
not Affiliates
of Borrower, in such amounts (after giving effect to any
self-insurance
compatible with the following standards), with such deductibles and
covering
such risks as are customarily carried by companies engaged in
similar businesses
and owning similar properties in localities where Borrower or the
applicable
Subsidiary operates.
5.11 TAXES. Borrower and its Subsidiaries have filed all
Federal,
state and other material tax returns and reports required to be
filed, and have
paid all Federal, state and other material taxes, assessments, fees
and other
governmental charges levied or imposed upon them or their
properties, income or
assets otherwise due and payable, except those which are being
contested in good
faith by appropriate proceedings diligently conducted and for which
adequate
reserves have been provided in accordance with GAAP. There is no
proposed tax
assessment against Borrower or any Subsidiary that would, if made,
have a
Material Adverse Effect.
5.12 ERISA COMPLIANCE. (a) Each Plan is in compliance in all
material
respects with the applicable provisions of ERISA, the Code and
other Federal or
state Laws. Each Plan that is intended to qualify under Section
401(a) of the
Code has received a favorable determination letter from the IRS or
an
application for such a letter is currently being processed by the
IRS with
respect thereto and, to the best knowledge of Borrower, nothing has
occurred
which would prevent, or cause the loss of, such qualification.
Borrower and each
ERISA Affiliate have made all required contributions to each Plan
subject to
Section 412 of the Code, and no application for a funding waiver or
an extension
of any amortization period pursuant to Section 412 of the Code has
been made
with respect to any Plan.
(b) There are no pending or, to the best knowledge of Borrower,
threatened
claims, actions or lawsuits, or action by any Governmental
Authority, with
respect to any Plan that could be reasonably be expected to have a
Material
Adverse Effect. There has been no prohibited transaction or
violation of the
fiduciary responsibility rules with respect to any Plan that has
resulted or
could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither
Borrower nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any
liability
under Title IV of ERISA with respect to any Pension Plan (other
than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither
Borrower nor
any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability
(and no event has occurred which, with the giving of notice under
Section 4219
of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA
with respect to a Multiemployer Plan; and (v) neither Borrower nor
any ERISA
Affiliate has engaged in a transaction that could be subject to
Sections 4069 or
4212(c) of ERISA.
5.13 SUBSIDIARIES. As of the Closing Date, Borrower has no
Subsidiaries other than those specifically disclosed in Part (a) of
SCHEDULE
5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been
validly issued, are fully paid and nonassessable and are owned by a
Loan Party
in the amounts specified on Part (a) of Schedule 5.13 free and
clear of all
Liens. Borrower has no equity investments in any other corporation
or entity
other than those specifically disclosed in Part(b) of SCHEDULE
5.13. All of the
outstanding Equity Interests in Borrower have been validly issued
and are fully
paid and nonassessable and are owned by Maine & Maritimes
Corporation in the
amounts specified on Part (c) of SCHEDULE 5.13 free and clear of
all Liens.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT. (a) Borrower is not engaged and will not
engage,
principally or as one of its important activities, in the business
of purchasing
or carrying margin stock (within the meaning of Regulation U issued
by the FRB),
or extending credit for the purpose of purchasing or carrying
margin stock.
Following the application of the drawing under each Letter of
Credit, not more
than 25% of the value of the assets (either of Borrower only or of
Borrower and
its Subsidiaries on a consolidated basis) subject to the provisions
of SECTION
7.01 or SECTION 7.05 or subject to any restriction contained in any
agreement or
instrument between Borrower and any Lender or any Affiliate of any
Lender
relating to Indebtedness and within the scope of SECTION 8.01(e)
will be margin
stock.
(b) None of Borrower, any Person Controlling Borrower, or any
Subsidiary is or
is required to be registered as an "investment company" under the
Investment
Company Act of 1940.
26
<Page>
(c) The Parent and each of its subsidiaries, including the
Borrower, have been
exempted as a "holding company" and a "subsidiary", respectively,
under the
Public Utility Holding Company Act of 1935 (repealed effective
February 8, 2006)
pursuant to annual filings made with the SEC on Form U-3A-2, the
most recent of
which is now in full force and effect and has not been revoked,
modified or
amended. While the Parent meets the definition of a "holding
company" under the
Public Utility Holding Company Act of 2005, and the Borrower meets
the
definition of a "subsidiary" under such Act, (a) the only
applicable
requirements under such Act are state and federal government access
to books and
records of holding companies and their subsidiaries for other
regulatory
purposes, and (b) either the Parent or the Borrower, or both, may
come under the
terms of exemptions under regulations yet to be promulgated under
such Act by
the Federal Energy Regulatory Commission. The provisions of the
Federal Power
Act giving jurisdiction over securities issued by certain utilities
does not
extend to the securities and other obligations of the Borrower
issued or
incurred under this Agreement, since it is organized and operating
in a state
under the laws of which the security issues and other obligations
under this
Agreement are regulated by a state commission. The Borrower is
subject to the
jurisdiction of the PUC, which is vested with comprehensive powers
of
supervision, regulation and control over various matters, including
the issuance
of securities.
5.15 DISCLOSURE. Borrower has disclosed to Agent and Lenders
all
agreements, instruments and corporate or other restrictions to
which it or any
of its Subsidiaries is subject, and all other matters known to it,
that,
individually or in the aggregate, could reasonably be expected to
result in a
Material Adverse Effect. No report, financial statement,
certificate or other
information furnished (whether in writing or orally) by or on
behalf of any Loan
Party to Agent or any Lender in connection with the transactions
contemplated
hereby and the negotiation of this Agreement or delivered hereunder
or under any
other Loan Document (in each case, as modified or supplemented by
other
information so furnished) contains any material misstatement of
fact or omits to
state any material fact necessary to make the statements therein,
in the light
of the circumstances under which they were made, not misleading;
PROVIDED that,
with respect to projected financial information, Borrower
represents only that
such information was prepared in good faith based upon assumptions
believed to
be reasonable at the time.
5.16 COMPLIANCE WITH LAWS. Each of Borrower and each Subsidiary is
in
compliance in all material respects with the requirements of all
Laws and all
orders, writs, injunctions and decrees applicable to it or to its
properties,
except in such instances in which (a) such requirement of Law or
order, writ,
injunction or decree is being contested in good faith by
appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either
individually
or in the aggregate, could not reasonably be expected to have a
Material Adverse
Effect.
5.17 INTELLECTUAL PROPERTY; LICENSES, ETC. Borrower and its
Subsidiaries own, or possess the right to use, all of the
trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises,
licenses and
other intellectual property rights that are reasonably necessary
for the
operation of their respective businesses, without conflict with the
rights of
any other Person. To the best knowledge of Borrower, no slogan or
other
advertising device, product, process, method, substance, part or
other material
now employed, or now contemplated to be employed, by Borrower or
any Subsidiary
infringes upon any rights held by any other Person. No claim or
litigation
regarding any of the foregoing is pending or, to the best knowledge
of Borrower,
threatened, which, either individually or in the aggregate, could
reasonably be
expected to have a Material Adverse Effect.
5.18 RIGHTS IN COLLATERAL; PRIORITY OF LIENS. Borrower and each
other
Loan Party have caused the Second Mortgage Bonds to be duly
executed and
delivered in accordance with the terms of the Collateral Documents,
as
collateral security for Borrower's obligations hereunder, and the
Letter of
Credit to be issued under this Agreement is an "Alternate Credit
Facility" as
defined in the MPUFB Indenture. The Second Mortgage Bonds
constitute valid and
enforceable second priority perfected Liens on the property of
Borrower, as
described in the Second Mortgage Indenture, in favor of Agent, for
the ratable
benefit of Agent, L/C Issuer and Lenders.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any
Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall
remain outstanding, Borrower shall, and shall (except in the case
of the
covenants set forth in SECTIONS 6.01, 6.02, and 6.03) cause each
Subsidiary to:
6.01 FINANCIAL STATEMENTS. Deliver to Agent a sufficient number
of
copies for delivery by Agent to each Lender, in form and detail
satisfactory to
Agent and the Required Lenders:
(a) as soon as available, but in any event within 120 days after
the end of each
fiscal year of Borrower,
27
<Page>
(i) a consolidated and consolidating balance sheet of Parent and
its
subsidiaries as at the end of such fiscal year, and the related
consolidated and
consolidating statements of income or operations, shareholders'
equity and cash
flows for such fiscal year, setting forth in each case in
comparative form the
figures for the previous fiscal year, all in reasonable detail and
prepared in
accordance with GAAP, such consolidated statements to be audited
and accompanied
by (i) a report and opinion of Vitale, Caturano and Co., Ltd. or
another
Registered Public Accounting Firm of nationally recognized standing
reasonably
acceptable to the Required Lenders, which report and opinion shall
be prepared
in accordance with generally accepted auditing standards and
applicable
Securities Laws and shall not be subject to any "going concern" or
like
qualification or exception or any qualification or exception as to
the scope of
such audit and (ii) when and to the extent required by the SEC an
attestation
report of such Registered Public Accounting Firm as to the Parent's
internal
controls pursuant to Section 404 of Sarbanes-Oxley expressing a
conclusion to
which the Required Lenders do not object and such consolidating
statements to be
certified by a Responsible Officer of Parent to the effect that
such statements
are fairly stated in all material respects when considered in
relation to the
consolidated financial statements of Parent and its subsidiaries,
provided,
however, that so long as Parent is subject to section 13 of the
Securities
Exchange Act of 1934, as amended, this requirement shall be
satisfied with
respect to Parent by delivery within such 120-day period of the
annual report of
Parent on Form 10-K for such fiscal year, together with all
documents from the
preceding fiscal year which are incorporated therein by reference,
and have
theretofore not been delivered, as filed by Parent with the SEC;
and
(ii) a consolidated and consolidating balance sheet of Borrower and
its
Subsidiaries as at the end of such fiscal year, and the related
consolidated and
consolidating statements of income or operations, shareholders'
equity and cash
flows for such fiscal year, setting forth in each case in
comparative form the
figures for the previous fiscal year, all in reasonable detail and
prepared in
accordance with GAAP, and such consolidating statements to be
certified by a
Responsible Officer of Borrower to the effect that such statements
are fairly
stated in all material respects when considered in relation to the
consolidated
financial statements of Borrower and its Subsidiaries (the
"Borrower Financial
Statements");
(b) as soon as available, but in any event within 60 days after the
end of each
of the first three fiscal quarters of each fiscal year of
Borrower,
(i) a consolidated and consolidating balance sheet of Parent and
its
subsidiaries as at the end of such fiscal quarter, and the related
consolidated
and consolidating statements of income or operations, shareholders'
equity and
cash flows for such fiscal quarter and for the portion of Parent's
fiscal year
then ended, setting forth in each case in comparative form the
figures for the
corresponding fiscal quarter of the previous fiscal year and the
corresponding
portion of the previous fiscal year, all in reasonable detail, such
consolidated
statements to be certified by a Responsible Officer of Parent as
fairly
presenting the financial condition, results of operations,
shareholders' equity
and cash flows of Parent and its subsidiaries in accordance with
GAAP, subject
only to normal year-end audit adjustments and the absence of
footnotes and such
consolidating statements to be certified by a Responsible Officer
of Parent to
the effect that such statements are fairly stated in all material
respects when
considered in relation to the consolidated financial statements of
the Parent
and its subsidiaries, provided, however, that so long as Parent is
subject to
section 13 of the Securities Exchange Act of 1934, as amended, this
requirement
shall be satisfied with respect to Parent by delivery within such
60-day period
of the annual report of Parent on Form 10-Q for such quarter, as
filed by Parent
with the SEC; and
(ii) a consolidated and consolidating balance sheet of Borrower and
its
Subsidiaries as at the end of such fiscal quarter, and the related
consolidated
and consolidating statements of income or operations, shareholders'
equity and
cash flows for such fiscal quarter and for the portion of
Borrower's fiscal year
then ended, setting forth in each case in comparative form the
figures for the
corresponding fiscal quarter of the previous fiscal year and the
corresponding
portion of the previous fiscal year, all in reasonable detail, such
consolidated
statements to be certified by a Responsible Officer of Borrower as
fairly
presenting the financial condition, results of operations,
shareholders' equity
and cash flows of Borrower and its Subsidiaries in accordance with
GAAP, subject
only to normal year-end audit adjustments and the absence of
footnotes and such
consolidating statements to be certified by a Responsible Officer
of Borrower to
the effect that such statements are fairly stated in all material
respects when
considered in relation to the consolidated financial statements of
the Borrower
and its Subsidiaries; and
(c) as soon as available, but in any event at least 60 days after
the end of
each fiscal year of Borrower, forecasts prepared by management of
Borrower, in
form satisfactory to Agent and the Required Lenders, of
consolidated balance
sheets and statements of income or operations and cash flows of
Borrower and its
Subsidiaries on a monthly basis for the immediately following
fiscal year
(including the fiscal year in which the Maturity Date occurs).
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to Agent a
sufficient
number of copies for delivery by Agent to each Lender, in form and
detail
satisfactory to Agent and the Required Lenders:
28
<Page>
(a) concurrently with the delivery of the financial statements
referred to in
SECTION 6.01(a), a certificate of its independent certified public
accountants
certifying such financial statements and stating that in making the
examination
necessary therefor no knowledge was obtained of any Default or, if
any such
Default shall exist, stating the nature and status of such
event;
(b) concurrently with the delivery of the financial statements
referred to in
SECTIONS 6.01(a) and (b), a duly completed Compliance Certificate
signed by a
Responsible Officer of Borrower;
(c) promptly after any request by Agent or any Lender, copies of
any detailed
audit reports, management letters or recommendations submitted to
the board of
directors (or the audit committee of the board of directors) of
Borrower by
independent accountants in connection with the accounts or books of
Borrower or
any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual
report, proxy
or financial statement or other report or communication sent to the
stockholders
of Borrower, and copies of all annual, regular, periodic and
special reports and
registration statements which Borrower may file or be required to
file with the
Securities and Exchange Commission under Section 13 or 15(d) of the
Securities
Exchange Act of 1934, and not otherwise required to be delivered to
Agent
pursuant hereto;
(e) promptly after the furnishing thereof, copies of any statement
or report
furnished to any holder of debt securities of any Loan Party or any
Subsidiary
thereof pursuant to the terms of any indenture, loan or credit or
similar
agreement and not otherwise required to be furnished to the Lenders
pursuant to
Section 6.01 or any other clause of this Section 6.02;
(f) promptly, and in any event within five Business Days after
receipt thereof
by any Loan Party or any Subsidiary thereof, copies of each notice
or other
correspondence received from the Securities and Exchange Commission
(or
comparable agency in any applicable non-U.S. jurisdiction)
concerning any
investigation or possible investigation or other inquiry by such
agency
regarding financial or other operational results of any Loan Party
or any
Subsidiary thereof; and
(g) promptly, such additional information regarding the business,
financial or
corporate affairs of Borrower or any Subsidiary, or compliance with
the terms of
the Loan Documents and the Collateral Documents, as Agent or any
Lender may from
time to time reasonably request.
Borrower hereby acknowledges that (a) Agent will make available to
Lenders and
the L/C Issuer materials and/or information provided by or on
behalf of Borrower
hereunder (collectively, "BORROWER MATERIALS") by posting Borrower
Materials on
IntraLinks or another similar electronic system (the "PLATFORM")
and (b) certain
of the Lenders may be "public-side" Lenders (I.E., Lenders that do
not wish to
receive material non-public information with respect to Borrower or
its
securities) (each, a "PUBLIC LENDER"). Borrower hereby agrees that
(w) all
Borrower Materials that are to be made available to Public Lenders
shall be
clearly and conspicuously marked "PUBLIC" so long as Borrower is
the issuer of
any outstanding debt or equity securities that are registered or
issued pursuant
to a private offering or is actively contemplating issuing any such
securities
which, at a minimum, shall mean that the word "PUBLIC" shall appear
prominently
on the first page thereof; (x) by marking Borrower Materials
"PUBLIC," Borrower
shall be deemed to have authorized Agent, the L/C Issuer and the
Lenders to
treat such Borrower Materials as not containing any material
non-public
information with respect to Borrower or its securities for purposes
of United
States Federal and state securities laws (provided, however, that
to the extent
such Borrower Materials constitute Information, they shall be
treated as set
forth in Section 10.07); (y) all Borrower Materials marked "PUBLIC"
are
permitted to be made available through a portion of the Platform
designated
"Public Investor;" and (z) Agent shall be entitled to treat any
Borrower
Materials that are not marked "PUBLIC" as being suitable only for
posting on a
portion of the Platform not designated "Public Investor".
Notwithstanding the
foregoing, the Borrower shall be under no obligation to mark any
Borrower
Materials "PUBLIC."
6.03 NOTICES. Promptly notify Agent and each Lender:
(a) of the occurrence of any Default;
(b) of any matter that has resulted or could reasonably be expected
to result in
a Material Adverse Effect, including (i) breach or non-performance
of, or any
default under, a Contractual Obligation of Borrower or any
Subsidiary; (ii) any
dispute, litigation, investigation, proceeding or suspension
between Borrower or
any Subsidiary and any Governmental Authority; or (iii) the
commencement of, or
any material development in, any litigation or proceeding affecting
Borrower or
any Subsidiary, including pursuant to any applicable Environmental
Laws;
(c) of the occurrence of any ERISA Event; and
29
<Page>
(d) of the occurrence of any Internal Control Event.
Each notice pursuant to this Section shall be accompanied by a
statement of a
Responsible Officer of Borrower setting forth details of the
occurrence referred
to therein and stating what action Borrower has taken and proposes
to take with
respect thereto. Each notice pursuant to SECTION 6.03(a) shall
describe with
particularity any and all provisions of this Agreement and any
other Loan
Document or Collateral Document that have been breached.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same
shall
become due and payable, all its obligations and liabilities,
including (a) all
tax liabilities, assessments and governmental charges or levies
upon it or its
properties or assets, unless the same are being contested in good
faith by
appropriate proceedings diligently conducted and adequate reserves
in accordance
with GAAP are being maintained by Borrower or such Subsidiary; (b)
all lawful
claims which, if unpaid, would by law become a Lien upon its
property; and (c)
all Indebtedness, as and when due and payable, but subject to any
subordination
provisions contained in any instrument or agreement evidencing
such
Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and
maintain
in full force and effect its legal existence and good standing
under the Laws of
the jurisdiction of its organization except in a transaction
permitted by
SECTION 7.04 or 7.05; (b) take all reasonable action to maintain
all rights,
privileges, permits, licenses and franchises necessary or desirable
in the
normal conduct of its business, except to the extent that failure
to do so could
not reasonably be expected to have a Material Adverse Effect; and
(c) preserve
or renew all of its registered patents, trademarks, trade names and
service
marks, the non-preservation of which could reasonably be expected
to have a
Material Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect
all
of its material properties and equipment necessary in the operation
of its
business in good working order and condition, ordinary wear and
tear excepted;
(b) make all necessary repairs thereto and renewals and
replacements thereof
except where the failure to do so could not reasonably be expected
to have a
Material Adverse Effect; and (c) use the standard of care typical
in the
industry in the operation and maintenance of its facilities.
6.07 MAINTENANCE OF INSURANCE. Maintain with financially sound
and
reputable insurance companies not Affiliates of Borrower, insurance
with respect
to its properties and business against loss or damage of the kinds
customarily
insured against by Persons engaged in the same or similar business,
of such
types and in such amounts (after giving effect to any
self-insurance compatible
with the following standards) as are customarily carried under
similar
circumstances by such other Persons and providing for not less than
30 days'
prior notice to Agent of termination, lapse or cancellation of such
insurance.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with
the
requirements of all Laws and all orders, writs, injunctions and
decrees
applicable to it or to its business or property, except in such
instances in
which (a) such requirement of Law or order, write, injunction or
decree is being
contested in good faith by appropriate proceedings diligently
conducted; or (b)
the failure to comply therewith could not reasonably be expected to
have a
Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with
GAAP
consistently applied shall be made of all financial transactions
and matters
involving the assets and business of Borrower or such Subsidiary,
as the case
may be; and (b) maintain such books of record and account in
material conformity
with all applicable requirements of any Governmental Authority
having regulatory
jurisdiction over Borrower or such Subsidiary, as the case may be.
Borrower
shall maintain, or cause to be maintained, at all times books and
records
pertaining to the Collateral in such detail, form and scope as
Agent or any
Lender shall reasonably require.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of Agent and each Lender to visit and inspect any of
its properties,
to examine its corporate, financial and operating records, and make
copies
thereof or abstracts therefrom, and to discuss its affairs,
finances and
accounts with its directors, officers, and independent public
accountants, all
at the expense of Borrower and at such reasonable times during
normal business
hours and as often as may be reasonably desired, upon reasonable
advance notice
to Borrower; PROVIDED, HOWEVER, that when an Event of Default
exists Agent or
any Lender (or any of their respective representatives or
independent
contractors) may do any of the foregoing at the expense of Borrower
at any time
during normal business hours and without advance notice.
6.11 USE OF PROCEEDS. Use the Letters of Credit for credit
enhancement
for the MPUFB Bonds and not for any other purpose.
30
<Page>
6.12 FINANCIAL COVENANTS.
(a) TANGIBLE NET WORTH. Maintain on a consolidated basis Tangible
Net
Worth equal to at least Thirty Two Million Five Hundred Seventy
Four Thousand
Dollars ($32,574,000).
(b) CONSOLIDATED TOTAL INDEBTEDNESS FOR BORROWED MONEY TO
CONSOLIDATED
TOTAL CAPITAL. Maintain Consolidated Total Indebtedness for
Borrowed Money to an
amount equal to or lesser than 65% of Consolidated Total Capital,
calculated at
the end of each quarter, using the results of the twelve-month
period ending
with that reporting period.
(c) DEBT SERVICE COVERAGE RATIO. Maintain a ratio of Consolidated
Net
Income Available for Fixed Charges to Consolidated Interest Expense
of at least
1.75:1.0, calculated at the end of each quarter, using the results
of the
twelve-month period ending with that reporting period.
6.13 COLLATERAL
RECORDS. To execute and deliver promptly, and to
cause each other Loan Party to execute and deliver promptly, to
Agent, from time
to time, solely for Agent's convenience in maintaining a record of
the
Collateral, such written statements and schedules as Agent may
reasonably
require designating, identifying or describing the Collateral. The
failure by
Borrower or any other Loan Party, however, to promptly give Agent
such
statements or schedules shall not affect, diminish, modify or
otherwise limit
the Liens on the Collateral granted pursuant to the Collateral
Documents.
6.14 SECURITY
INTERESTS. To, and to cause each other Loan Party
to, (a) defend the Collateral against all claims and demands of all
Persons at
any time claiming the same or any interest therein, and (b) do
whatever Agent
may reasonably request, from time to time, to effect the purposes
of this
Agreement and the other Loan Documents and Collateral Documents,
including
cooperating with Agent's representatives and paying claims which
might, if
unpaid, become a Lien on the Collateral.
ARTICLE VII. NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any
Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall
remain outstanding, Borrower shall not, nor shall it permit any
Subsidiary to,
directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist any Lien upon
any
of its property, assets or revenues, whether now owned or hereafter
acquired,
other than the following:
(a) Liens pursuant to any Loan Document or any Collateral
Document;
(b) Liens existing on the date hereof and listed on SCHEDULE 7.01
and any
renewals or extensions thereof, PROVIDED that (i) the property
covered thereby
is not changed, (ii) the amount secured or benefited thereby is not
increased,
(iii) the direct or any contingent obligor with respect thereto is
not changed,
and (iv) any renewal or extension of the obligations secured or
benefited
thereby is permitted by SECTION 7.03(b);
(c) Liens for taxes not yet due or which are being contested in
good faith and
by appropriate proceedings diligently conducted, if adequate
reserves with
respect thereto are maintained on the books of the applicable
Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other
like Liens arising in the ordinary course of business which are not
overdue for
a period of more than 30 days or which are being contested in good
faith and by
appropriate proceedings diligently conducted, if adequate reserves
with respect
thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in
connection with
workers' compensation, unemployment insurance and other social
security
legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases
(other than Indebtedness), statutory obligations, surety and appeal
bonds,
performance bonds and other obligations of a like nature incurred
in the
ordinary course of business;
31
<Page>
(g) easements, rights-of-way, restrictions and other similar
encumbrances
affecting real property which, in the aggregate, are not
substantial in amount,
and which do not in any case materially detract from the value of
the property
subject thereto or materially interfere with the ordinary conduct
of the
business of the applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event
of Default under SECTION 8.01(h); and
(i) Liens securing Indebtedness permitted under SECTION 7.03(e);
PROVIDED that
(i) such Liens do not at any time encumber any property other than
the property
financed by such Indebtedness and (ii) the Indebtedness secured
thereby does not
exceed the cost or fair market value, whichever is lower, of the
property being
acquired on the date of acquisition.
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by Borrower or such Subsidiary in the form of
cash
equivalents or short-term marketable debt securities;
(b) advances to officers, directors and employees of Borrower and
Subsidiaries
in an aggregate amount not to exceed $50,000 at any time
outstanding, for
travel, entertainment, relocation and analogous ordinary business
purposes;
(c) Investments of Borrower in any wholly-owned Subsidiary and
Investments of
any wholly-owned Subsidiary in Borrower or in another wholly-owned
Subsidiary;
(d) Investments consisting of extensions of credit in the nature of
accounts
receivable or notes receivable arising from the grant of trade
credit in the
ordinary course of business, and Investments received in
satisfaction or partial
satisfaction thereof from financially troubled account debtors to
the extent
reasonably necessary in order to prevent or limit loss; and
(e) Guarantees permitted by SECTION 7.03.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents and Collateral
Documents;
(b) Indebtedness outstanding on the date hereof and listed on
SCHEDULE 7.03 and
any refinancings, refundings, renewals or extensions thereof;
PROVIDED that (i)
the amount of such Indebtedness is not increased at the time of
such
refinancing, refunding, renewal or extension except by an amount
equal to a
reasonable premium or other reasonable amount paid, and fees and
expenses
reasonably incurred, in connection with such refinancing and by an
amount equal
to any existing commitments unutilized thereunder and (ii) the
terms relating to
principal amount, amortization, maturity, collateral (if any) and
subordination
(if any), and other material terms taken as a whole, of any such
refinancing,
refunding, renewing or extending Indebtedness, and of any agreement
entered into
and of any instrument issued in connection therewith, are no less
favorable in
any material respect to the Loan Parties or Lenders than the terms
of any
agreement or instrument governing the Indebtedness being
refinanced, refunded,
renewed or extended and the interest rate applicable to any such
refinancing,
refunding, renewing or extending Indebtedness does not exceed the
then
applicable market interest rate;
(c) Guarantees of Borrower or any Subsidiary in respect of
Indebtedness
otherwise permitted hereunder of Borrower or any wholly-owned
Subsidiary;
(d) obligations (contingent or otherwise) of Borrower or any
Subsidiary existing
or arising under any Swap Contract, PROVIDED that (i) such
obligations are (or
were) entered into by such Person in the ordinary course of
business for the
purpose of directly mitigating risks associated with liabilities,
commitments,
investments, assets, or property held or reasonably anticipated by
such Person,
or changes in the value of securities issued by such Person, and
not for
purposes of speculation or taking a "market view;" and (ii) such
Swap Contract
does not contain any provision exonerating the non-defaulting party
from its
obligation to make payments on outstanding transactions to the
defaulting party;
and
(e) Indebtedness in respect of capital leases, Synthetic Lease
Obligations and
purchase money obligations for fixed or capital assets within the
limitations
set forth in SECTION 7.01(i); PROVIDED, HOWEVER, that the
cumulative amount of
all such Indebtedness outstanding during the term of this Agreement
shall not
exceed $2,500,000.
32
<Page>
7.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate
with
or into another Person, or Dispose of (whether in one transaction
or in a series
of transactions) all or substantially all of its assets (whether
now owned or
hereafter acquired) to or in favor of any Person, except that, so
long as no
Default exists or would result therefrom, Borrower's sole
Subsidiary may be
dissolved or otherwise terminate its existence, inasmuch as it has
heretofore
disposed of substantially all of its operating assets.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement
to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now
owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of
business;
(c) Dispositions of equipment or real property to the extent that
(i) such
property is exchanged for credit against the purchase price of
similar
replacement property or (ii) the proceeds of such Disposition are
reasonably
promptly applied to the purchase price of such replacement
property;
(d) Dispositions of property by any Subsidiary to Borrower or to a
wholly-owned
Subsidiary; PROVIDED that if the transferor of such property is a
Guarantor, the
transferee thereof must either be Borrower or a Guarantor; and
(e) Dispositions permitted by SECTION 7.04.
PROVIDED, HOWEVER, that any Disposition pursuant to clauses (a)
through (e)
shall be for fair market value.
7.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly,
any
Restricted Payment, or incur any obligation (contingent or
otherwise) to do so,
or issue or sell any Equity Interests, except that, so long as no
Default shall
have occurred and be continuing at the time of any action described
below or
would result therefrom:
(a) each Subsidiary may make Restricted Payments to Borrower,
Guarantors and any
other Person that owns an Equity Interest in such Subsidiary,
ratably according
to their respective holdings of the type of Equity Interest in
respect of which
such Restricted Payment is being made;
(b) Borrower and each Subsidiary may declare and make dividend
payments or other
distributions payable solely in the common stock or other common
Equity
Interests of such Person;
(c) Borrower and each Subsidiary may purchase, redeem or otherwise
acquire
Equity Interests issued by it with the proceeds received from the
substantially
concurrent issue of new shares of its common stock or other common
Equity
Interests; and
(d) Borrower may pay dividends to Parent to the full extent
permitted by the
PUC.
7.07 CHANGE IN NATURE OF BUSINESS. Engage in any material line
of
business substantially different from those lines of business
conducted by
Borrower and its Subsidiaries on the date hereof or any business
substantially
related or incidental thereto.
7.08 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of
any
kind with any Affiliate of Borrower, whether or not in the ordinary
course of
business, other than on fair and reasonable terms substantially as
favorable to
Borrower or such Subsidiary as would be obtainable by Borrower or
such
Subsidiary at the time in a comparable arm's length transaction
with a Person
other than an Affiliate, provided that (a) the foregoing
restriction shall not
apply to transactions between or among Borrower and any Guarantor
or between and
among Guarantors, and (b) transactions permitted by order of the
PUC shall be
conclusively presumed to meet the foregoing standard.
7.09 BURDENSOME AGREEMENTS. Enter into any Contractual
Obligation
(other than this Agreement or any other Loan Document or any
Collateral
Document) that (a) limits the ability (i) of any Subsidiary to make
Restricted
Payments to Borrower or to otherwise transfer property to Borrower,
(ii) of any
Subsidiary to Guarantee the Indebtedness of Borrower or (iii) of
Borrower or any
Subsidiary to create, incur, assume or suffer to exist Liens on
property of such
Person; PROVIDED, HOWEVER, that this clause (iii) shall not
prohibit any
negative pledge incurred or provided in favor of any holder of
Indebtedness
permitted under SECTION 7.03(e) solely to the extent any such
negative pledge
relates to the property financed by or the subject of such
Indebtedness; or
33
<Page>
(b) requires the grant of a Lien to secure an obligation of such
Person if a
Lien is granted to secure another obligation of such Person.
7.10
USE OF PROCEEDS. Use the proceeds of any Letter of Credit,
whether directly or indirectly, and whether immediately,
incidentally or
ultimately, to purchase or carry margin stock (within the meaning
of Regulation
U of the FRB) or to extend credit to others for the purpose of
purchasing or
carrying margin stock or to refund indebtedness originally incurred
for such
purpose.
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an
Event
of Default:
(a) NON-PAYMENT. Borrower or any other Loan Party fails to pay (i)
when and as
required to be paid herein any drawing under any Letter of Credit,
any amount of
principal of any L/C Obligation or any interest on any such drawing
or L/C
Obligation, or (ii) within three days after the same becomes due,
any fee due
hereunder, or (iii) within five days after the same becomes due,
any other
amount payable hereunder or under any other Loan Document or
Collateral
Document; or
(b) SPECIFIC COVENANTS. Borrower fails to perform or observe any
term, covenant
or agreement contained in any of SECTION 6.02(a) THROUGH (g)
INCLUSIVE, 6.03,
6.05, 6.10, 6.11 or 6.12 or ARTICLE VII; or
(c) OTHER DEFAULTS. Any Loan Party fails to perform or observe any
other
covenant or agreement (not specified in subsection (a) or (b)
above) contained
in any Loan Document on its part to be performed or observed and
such failure
continues for 30 days or any default or Event of Default occurs
under any other
Loan Document or any Collateral Document; or
(d) REPRESENTATIONS AND WARRANTIES. Any representation, warranty,
certification
or statement of fact made or deemed made by or on behalf of
Borrower or any
other Loan Party herein, in any other Loan Document or any
Collateral Document,
or in any document delivered in connection herewith or therewith
shall be
incorrect or misleading when made or deemed made; or
(e) CROSS-DEFAULT. (i) Borrower or any Subsidiary (A) fails to make
any payment
when due (whether by scheduled maturity, required prepayment,
acceleration,
demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than
Indebtedness hereunder and Indebtedness under Swap Contracts)
having an
aggregate principal amount (including undrawn committed or
available amounts and
including amounts owing to all creditors under any combined or
syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to
observe or
perform any other agreement or condition relating to any such
Indebtedness or
Guarantee or contained in any instrument or agreement evidencing,
securing or
relating thereto, or any other event occurs, the effect of which
default or
other event is to cause, or to permit the holder or holders of such
Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee
or agent on
behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with
the giving of notice if required, such Indebtedness to be demanded
or to become
due or to be repurchased, prepaid, defeased or redeemed
(automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem
such
Indebtedness to be made, prior to its stated maturity, or such
Guarantee to
become payable or cash collateral in respect thereof to be
demanded; (ii) there
occurs under any Swap Contract an Early Termination Date (as
defined in such
Swap Contract) resulting from (A) any event of default under such
Swap Contract
as to which Borrower or any Subsidiary is the Defaulting Party (as
defined in
such Swap Contract) or (B) any Termination Event (as so defined)
under such Swap
Contract as to which Borrower or any Subsidiary is an Affected
Party (as so
defined) and, in either event, the Swap Termination Value owed by
Borrower or
such Subsidiary as a result thereof is greater than the Threshold
Amount; or
(iii) causes or suffers to exist an event of default, beyond any
applicable
notice or cure period, under any Related Document or the First
Mortgage
Indenture; or
(f) INSOLVENCY PROCEEDINGS, ETC. Any Loan Party or any of its
Subsidiaries
institutes or consents to the institution of any proceeding under
any Debtor
Relief Law, or makes an assignment for the benefit of creditors; or
applies for
or consents to the appointment of any receiver, trustee, custodian,
conservator,
liquidator, rehabilitator or similar officer for it or for all or
any material
part of its property; or any receiver, trustee, custodian,
conservator,
liquidator, rehabilitator or similar officer is appointed without
the
application or consent of such Person and the appointment continues
undischarged
or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law
relating to any such Person or to all or any material part of its
property is
instituted without the consent of such Person and continues
undismissed or
unstayed for 60 calendar days, or an order for relief is entered in
any such
proceeding; or
34
<Page>
(g) INABILITY TO PAY DEBTS; ATTACHMENT. (i) Borrower or any
Subsidiary becomes
unable or admits in writing its inability or fails generally to pay
its debts as
they become due, or (ii) any writ or warrant of attachment or
execution or
similar process is issued or levied against all or any material
part of the
property of any such Person and is not released, vacated or fully
bonded within
30 days after its issue or levy; or
(h) JUDGMENTS. There is entered against Borrower or any Subsidiary
(i) a final
judgment or order for the payment of money in an aggregate amount
exceeding the
Threshold Amount (to the extent not covered by independent
third-party insurance
as to which the insurer does not dispute coverage), or (ii) any one
or more
non-monetary final judgments that have, or could reasonably be
expected to have,
individually or in the aggregate, a Material Adverse Effect and, in
either case,
(A) enforcement proceedings are commenced by any creditor upon such
judgment or
order, or (B) there is a period of 10 consecutive days during which
a stay of
enforcement of such judgment, by reason of a pending appeal or
otherwise, is not
in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan
or
Multiemployer Plan which has resulted or could reasonably be
expected to result
in liability of Borrower under Title IV of ERISA to the Pension
Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of
the Threshold
Amount, or (ii) Borrower or any ERISA Affiliate fails to pay when
due, after the
expiration of any applicable grace period, any installment payment
with respect
to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer
Plan in an aggregate amount in excess of the Threshold Amount;
or
(j) INVALIDITY OF LOAN DOCUMENTS, COLLATERAL DOCUMENTS OR RELATED
DOCUMENTS. Any
Loan Document, Collateral Document or any of the other Related
Documents or any
provision thereof, at any time after its execution and delivery and
for any
reason other than as expressly permitted hereunder or thereunder or
satisfaction
in full of all the Obligations, ceases to be in full force and
effect; or any
Loan Party or any other Person contests in any manner the validity
or
enforceability of any Loan Document, any Collateral Document or any
of the other
Related Documents or any provision thereof; or any Loan Party
denies that it has
any or further liability or obligation under any Loan Document, any
Collateral
Document or any of the other Related Documents, or purports to
revoke, terminate
or rescind any Loan Document, any Collateral Document or any of the
other
Related Documents or any provision thereof; or
(k) CHANGE OF CONTROL. There occurs any Change of Control with
respect to
Borrower without the prior written consent of the Required Lenders,
such consent
not to be unreasonably withheld, conditioned or delayed; or
(l) MATERIAL ADVERSE EFFECT. There occurs any event or circumstance
that has a
Material Adverse Effect; or
(m) DETERMINATION OF TAXABILITY. There occurs a Determination of
Taxability; or
(n) LIENS OF SECOND MORTGAGE INDENTURE. The Liens created by the
Second Mortgage
Indenture shall for any reason cease to create valid, perfected
Liens and/or
security interests in favor of Agent, for the ratable benefit of
Agent, L/C
Issuer and Lenders.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default
occurs
and is continuing, Agent shall, at the request of, or may, with the
consent of,
the Required Lenders, take any or all of the following actions and,
if it does
so, it shall give a notice that an Event of Default has occurred
and is
continuing (i) to the MPUFB Trustee pursuant to Section 9.01(f) of
the MPUFB
Indenture, and (ii)_to the Second Mortgage Trustee pursuant to
Section 12.01(k)
of the Second Mortgage Indenture:
(a) declare any obligation of the L/C Issuer to make L/C Credit
Extensions to be
terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all L/C Obligations and
any
reimbursement obligations arising from drawing under any Letter of
Credit, all
interest accrued and unpaid thereon, and all other amounts owing or
payable
hereunder or under any other Loan Document to be immediately due
and payable,
without presentment, demand, protest or other notice of any kind,
all of which
are hereby expressly waived by Borrower;
(c) require that Borrower Cash Collateralize the L/C Obligations
(in an amount
up to an amount equal to the then Outstanding Amount thereof);
and
(d) exercise on behalf of itself and the Lenders all rights and
remedies
available to it and the Lenders under the Loan Documents and all
rights and
remedies available to it and the Lenders under the Collateral
Documents;
35
<Page>
PROVIDED, HOWEVER, that upon the occurrence of an actual or deemed
entry of an
order for relief with respect to Borrower under the Bankruptcy Code
of the
United States, any obligation of the L/C Issuer to make L/C Credit
Extensions
shall automatically terminate, the unpaid principal amount of all
outstanding
L/C Obligations and any unpaid reimbursement obligations arising
from drawing
under any Letter of Credit and all interest and other amounts as
aforesaid shall
automatically become due and payable, and the obligation of
Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically
become
effective, in each case without further act of Agent or any
Lender.
If an Event of Default shall have occurred and be continuing and
there
shall be outstanding all or any part of any unreimbursed Letter of
Credit
payment(s) or any other Obligations, Borrower agrees that Agent, on
behalf of
the L/C Issuer and Lenders, shall be subrogated to any and all
rights of
Borrower or any Subsidiary against the beneficiary of any Letter of
Credit, and
Borrower agrees that, upon request of Agent, Borrower will promptly
do such
further acts and execute, acknowledge and deliver such documents as
Agent may
reasonably request in order to implement the assignment to Agent of
such rights
of Borrower or any Subsidiary against the beneficiary of any Letter
of Credit.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided
for
in SECTION 8.02 (or after the L/C Obligations and unreimbursed
drawings have
automatically become immediately due and payable and the L/C
Obligations have
automatically been required to be Cash Collateralized as set forth
in the
proviso to SECTION 8.02), any amounts received on account of the
Obligations
shall be applied by Agent in the following order:
FIRST, to payment of that portion of the Obligations constituting
fees,
indemnities, expenses and other amounts (including fees, charges
and
disbursements of counsel to Agent (including fees and time charges
for attorneys
who may be employees of Agent) and amounts payable under ARTICLE
III) payable to
Agent in its capacity as such;
SECOND, to payment of that portion of the Obligations constituting
fees,
indemnities and other amounts (other than principal, interest and
L/C Fees)
payable to Lenders and the L/C Issuer (including fees, charges and
disbursements
of counsel to the respective Lenders and the L/C Issuer (including
fees and time
charges for attorneys who may be employees of any Lender or the L/C
Issuer) and
amounts payable under ARTICLE III), ratably among them in
proportion to the
respective amounts described in this clause SECOND payable to
them;
THIRD, to payment of that portion of the Obligations constituting
accrued and
unpaid L/C Fees and interest on L/C Borrowings and other
Obligations, ratably
among Lenders and the L/C Issuer in proportion to the respective
amounts
described in this clause THIRD payable to them;
FOURTH, to payment of that portion of the Obligations constituting
unpaid
principal of the L/C Borrowings and unpaid reimbursement obligation
arising from
the drawings under Letters of Credit, ratably among Lenders and the
L/C Issuer
in proportion to the respective amounts described in this clause
FOURTH held by
them;
FIFTH, to Agent for the account of the L/C Issuer, to Cash
Collateralize that
portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters
of Credit; and
LAST, the balance, if any, after all of the Obligations have been
indefeasibly
paid in full, to Borrower or as otherwise required by Law.
Subject to SECTION 2.01(c), amounts used to Cash Collateralize the
aggregate
undrawn amount of Letters of Credit pursuant to clause FIFTH above
shall be
applied to satisfy drawings under such Letters of Credit as they
occur. If any
amount remains on deposit as Cash Collateral after all Letters of
Credit have
either been fully drawn or expired, such remaining amount shall be
applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX. ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT. (a)
Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank
of America to
act on its behalf as Administrative Agent hereunder and under the
other Loan
Documents and authorizes Agent to take such actions on its behalf
and to
exercise such powers as are delegated to Agent by the terms hereof
and thereof,
together with such actions and powers as are reasonably incidental
thereto. The
provisions of this
36
<Page>
Article are solely for the benefit of Agent, the Lenders and the
L/C Issuer, and
neither the Borrower nor any other Loan Party shall have rights as
a third party
beneficiary of any of such provisions.
(b) Agent shall also act as the "collateral agent" under the
Loan
Documents, and each of the Lenders and the L/C Issuer hereby
irrevocably
appoints and authorizes Agent to act as the agent of such Lender
and the L/C
Issuer for purposes of acquiring, holding and enforcing any and all
Liens on
Collateral granted by any of the Loan Parties to secure any of the
Obligations,
together with such powers and discretion as are reasonably
incidental thereto.
In this connection, Agent, as "collateral agent" and any co-agents,
sub-agents
and attorneys-in-fact appointed by Agent pursuant to Section 9.05
for purposes
of holding or enforcing any Lien on the Collateral (or any portion
thereof)
granted under the Collateral Documents, or for exercising any
rights and
remedies thereunder at the direction of Agent), shall be entitled
to the
benefits of all provisions of this Article IX and Article X (as
though such
co-agents, sub-agents and attorneys-in-fact were the "collateral
agent" under
the Loan Documents) as if set forth in full herein with respect
thereto.
9.02 RIGHTS AS A LENDER. The Person serving as Agent hereunder
shall
have the same rights and powers in its capacity as a Lender as any
other Lender
and may exercise the same as though it were not Agent and the term
"Lender" or
"Lenders" shall, unless otherwise expressly indicated or unless the
context
otherwise requires, include the Person serving as Agent hereunder
in its
individual capacity. Such Person and its Affiliates may accept
deposits from,
lend money to, act as the financial advisor or in any other
advisory capacity
for and generally engage in any kind of business with the Borrower
or any
Subsidiary or other Affiliate thereof as if such Person were not
Agent hereunder
and without any duty to account therefor to Lenders.
9.03 EXCULPATORY PROVISIONS. Agent shall not have any duties or
obligations except those expressly set forth herein and in the
other Loan
Documents. Without limiting the generality of the foregoing,
Agent:
(a) shall not be subject to any fiduciary or other implied
duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and
powers
expressly contemplated hereby or by the other Loan Documents that
Agent is
required to exercise as directed in writing by the Required Lenders
(or such
other number or percentage of the Lenders as shall be expressly
provided for
herein or in the other Loan Documents), PROVIDED that Agent shall
not be
required to take any action that, in its opinion or the opinion of
its counsel,
may expose Agent to liability or that is contrary to any Loan
Document or
applicable Law; and
(c) shall not, except as expressly set forth herein and in the
other
Loan Documents, have any duty to disclose, and shall not be liable
for the
failure to disclose, any information relating to Borrower or any of
its
Affiliates that is communicated to or obtained by the Person
serving as Agent or
any of its Affiliates in any capacity.
Agent shall not be liable for any action taken or not taken by it
(i)
with the consent or at the request of the Required Lenders (or such
other number
or percentage of the Lenders as shall be necessary, or as Agent
shall believe in
good faith shall be necessary, under the circumstances as provided
in SECTIONS
8.02 and 10.01) or (ii) in the absence of its own gross negligence
or willful
misconduct. Agent shall be deemed not to have knowledge of any
Default unless
and until written notice describing such Default is given to Agent
by Borrower,
a Lender or the L/C Issuer. Agent shall not be responsible for or
have any duty
to ascertain or inquire into (i) any statement, warranty or
representation made
in or in connection with this Agreement or any other Loan Document,
(ii) the
contents of any certificate, report or other document delivered
hereunder or
thereunder or in connection herewith or therewith, (iii) the
performance or
observance of any of the covenants, agreements or other terms or
conditions set
forth herein or therein or the occurrence of any Default, (iv) the
validity,
enforceability, effectiveness or genuineness of this Agreement, any
other Loan
Document or any Collateral Document or any other agreement,
instrument or
document or (v) the satisfaction of any condition set forth in
ARTICLE IV or
elsewhere herein, other than to confirm receipt of items expressly
required to
be delivered to Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT. Agent shall be entitled to
rely
upon, and shall not incur any liability for relying upon, any
notice, request,
certificate, consent, statement, instrument, document or other
writing
(including any electronic message, Internet or intranet website
posting or other
distribution) believed by it to be genuine and to have been signed,
sent or
otherwise authenticated by the proper Person. Agent also may rely
upon any
statement made to it orally or by telephone and believed by it to
have been made
by the proper Person, and shall not incur any liability for relying
thereon. In
determining
37
<Page>
compliance with any condition hereunder to the issuance of a Letter
of Credit,
that by its terms must be fulfilled to the satisfaction of a Lender
or the L/C
Issuer, Agent may presume that such condition is satisfactory to
such Lender or
the L/C Issuer unless Agent shall have received notice to the
contrary from such
Lender or the L/C Issuer prior to the issuance of such Letter of
Credit. Agent
may consult with legal counsel (who may be counsel for Borrower),
independent
accountants and other experts selected by it, and shall not be
liable for any
action taken or not taken by it in accordance with the advice of
any such
counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. Agent may perform any and all of its
duties
and exercise its rights and powers hereunder or under any other
Loan Document by
or through any one or more sub-agents appointed by Agent. Agent and
any such
sub-agent may perform any and all of its duties and exercise its
rights and
powers by or through their respective Related Parties. The
exculpatory
provisions of this Article shall apply to any such sub-agent and to
the Related
Parties of Agent and any such sub-agent, and shall apply to their
respective
activities in connection with the syndication of the credit
facilities provided
for herein as well as activities as Agent.
9.06 RESIGNATION OF AGENT. Agent may at any time give notice of
its
resignation to Lenders, the L/C Issuer and Borrower. Upon receipt
of any such
notice of resignation, the Required Lenders shall have the right,
in
consultation with Borrower, to appoint a successor, which shall be
a bank with
an office in the United States, or an Affiliate of any such bank
with an office
in the United States. If no such successor shall have been so
appointed by the
Required Lenders and shall have accepted such appointment within 30
days after
the retiring Agent gives notice of its resignation, then the
retiring Agent may
on behalf of Lenders and the L/C Issuer, appoint a successor Agent
meeting the
qualifications set forth above; PROVIDED that if Agent shall notify
Borrower and
Lenders that no qualifying Person has accepted such appointment,
then such
resignation shall nonetheless become effective in accordance with
such notice
and (1) the retiring Agent shall be discharged from its duties and
obligations
hereunder and under the other Loan Documents (except that in the
case of any
collateral security held by Agent on behalf of Lenders or the L/C
Issuer under
any of the Loan Documents, the retiring Agent shall continue to
hold such
collateral security until such time as a successor Agent is
appointed) and (2)
all payments, communications and determinations provided to be made
by, to or
through Agent shall instead be made by or to each Lender and the
L/C Issuer
directly, until such time as the Required Lenders appoint a
successor Agent as
provided for above in this Section. Upon the acceptance of a
successor's
appointment as Agent hereunder, such successor shall succeed to and
become
vested with all of the rights, powers, privileges and duties of the
retiring (or
retired) Agent, and the retiring Agent shall be discharged from all
of its
duties and obligations hereunder or under the other Loan Documents
(if not
already discharged therefrom as provided above in this Section).
The fees
payable by Borrower to a successor Agent shall be the same as those
payable to
its predecessor unless otherwise agreed between Borrower and such
successor.
After the retiring Agent's resignation hereunder and under the
other Loan
Documents, the provisions of this Article and SECTION 10.04 shall
continue in
effect for the benefit of such retiring Agent, its sub-agents and
their
respective Related Parties in respect of any actions taken or
omitted to be
taken by any of them while the retiring Administrative Agent was
acting as
Administrative Agent.
Any resignation by Bank of America as Agent pursuant to this
Section shall also
constitute its resignation as L/C Issuer. Upon the acceptance of a
successor's
appointment as Agent hereunder, (a) such successor shall succeed to
and become
vested with all of the rights, powers, privileges and duties of the
retiring L/C
Issuer, (b) the retiring L/C Issuer shall be discharged from all of
their
respective duties and obligations hereunder or under the other Loan
Documents,
and (c) the successor L/C Issuer shall issue letters of credit in
substitution
for the Letters of Credit, if any, outstanding at the time of such
succession or
make other arrangements satisfactory to the retiring L/C Issuer to
effectively
assume the obligations of the retiring L/C Issuer with respect to
such Letters
of Credit.
9.07 NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender and the
L/C
Issuer acknowledges that it has, independently and without reliance
upon Agent
or any other Lender or any of their Related Parties and based on
such documents
and information as it has deemed appropriate, made its own credit
analysis and
decision to enter into this Agreement. Each Lender and the L/C
Issuer also
acknowledges that it will, independently and without reliance upon
Agent or any
other Lender or any of their Related Parties and based on such
documents and
information as it shall from time to time deem appropriate,
continue to make its
own decisions in taking or not taking action under or based upon
this Agreement,
any other Loan Document or any related agreement or any document
furnished
hereunder or thereunder.
9.08 NO OTHER DUTIES, ETC. Anything herein to the contrary
notwithstanding, no Lender holding a title listed on the cover page
hereof shall
have any powers, duties or responsibilities under this Agreement or
any of the
other Loan Documents, except in its capacity, as applicable, as
Agent, a Lender
or the L/C Issuer hereunder.
38
<Page>
9.09 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of
the
pendency of any receivership, insolvency, liquidation,
bankruptcy,
reorganization, arrangement, adjustment, composition or other
judicial
proceeding relative to any Loan Party, Agent (irrespective of
whether the
principal of L/C Obligation shall then be due and payable as herein
expressed or
by declaration or otherwise and irrespective of whether Agent shall
have made
any demand on Borrower) shall be entitled and empowered, by
intervention in such
proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal
and interest owing and unpaid in respect of L/C Obligations and all
other
Obligations that are owing and unpaid and to file such other
documents as may be
necessary or advisable in order to have the claims of Lenders, the
L/C Issuer
and Agent (including any claim for the reasonable compensation,
expenses,
disbursements and advances of Lenders, the L/C Issuer and Agent and
their
respective agents and counsel and all other amounts due Lenders,
the L/C Issuer
and Agent under SECTIONS 2.01(j) and (k), 2.05 and 10.04) allowed
in such
judicial proceeding; and
(b) to collect and receive any monies or other property payable
or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or
other similar official in any such judicial proceeding is hereby
authorized by
each Lender and the L/C Issuer to make such payments to Agent and,
in the event
that Agent shall consent to the making of such payments directly to
Lenders and
the L/C Issuer, to pay to Agent any amount due for the reasonable
compensation,
expenses, disbursements and advances of Agent and its agents and
counsel, and
any other amounts due Agent under SECTIONS 2.04 and 10.04. Nothing
contained
herein shall be deemed to authorize Agent to authorize or consent
to or accept
or adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization,
arrangement, adjustment or composition affecting the Obligations or
the rights
of any Lender or to authorize Agent to vote in respect of the claim
of any
Lender in any such proceeding.
9.10 COLLATERAL MATTERS. (a) Each Lender and the L/C Issuer
hereby
irrevocably authorizes and directs Agent to accept the Second
Mortgage Bonds on
behalf of the Agent, the Lenders and the L/C Issuer and to enter
into the
Collateral Documents for the benefit of such Lender and the L/C
Issuer. Each
Lender and the L/C Issuer hereby agrees that, except as otherwise
set forth in
Section 10.01, any action taken by the Required Lenders, in
accordance with the
provisions of this Agreement or the Collateral Documents, and the
exercise by
the Required Lenders of the powers set forth herein or therein,
together with
such other powers as are reasonably incidental thereto, shall be
authorized and
binding upon all of Lenders and the L/C Issuer. Agent is hereby
authorized (but
not obligated) on behalf of all of Lenders and the L/C Issuer,
without the
necessity of any notice to or further consent from any Lender or
the L/C Issuer
from time to time prior to, an Event of Default, to take any action
with respect
to any Collateral or Collateral Documents which may be necessary to
perfect and
maintain perfected the Liens upon the Collateral granted pursuant
to the
Collateral Documents.
(b) Each Lender and the L/C issuer hereby irrevocably authorize
Agent,
at its option and in its discretion,
(i) to release any Lien on any property granted to or held
by Agent under any Loan Document (A) upon termination of the
Aggregate
Commitments and payment in full of all Obligations (other than
contingent
indemnification obligations) and the expiration or termination of
all Letters of
Credit, (B) that is sold or to be sold as part of or in connection
with any sale
permitted hereunder or under any other Loan Document, (C) subject
to SECTION
10.01, if approved, authorized or ratified in writing by the
Required Lenders,
or (D) in connection with any foreclosure sale or other disposition
of
Collateral after the occurrence of an Event of Default; and
(ii) to subordinate any Lien on any property granted to or
held by Agent under any Loan Document to the holder of any Lien on
such property
that is permitted by this Agreement or any other Loan Document.
Upon request by Agent at any time, each Lender and the L/C Issuer
will confirm
in writing Agent's authority to release or subordinate its interest
in
particular types or items of Collateral pursuant to this SECTION
9.10.
(c) Subject to (b) above, Agent shall (and is hereby
irrevocably
authorized by each Lender and the L/C Issuer to) execute such
documents as may
be necessary to evidence the release or subordination of the Liens
granted to
Agent for the benefit of Agent and Lenders and the L/C Issuer
herein or pursuant
hereto upon the applicable Collateral and/or the Collateral
Documents; provided
that (i) Agent shall not be required to execute any such document
on terms
which, in Agent's opinion, would expose Agent to or create any
liability or
entail any consequence other than the release or subordination of
such Liens
39
<Page>
without recourse or warranty and (ii) such release or subordination
shall not in
any manner discharge, affect or impair the Obligations or any Liens
upon (or
obligations of Borrower or any other Loan Party in respect of) all
interests
retained by Borrower or any other Loan Party, including the
proceeds of the
sale, all of which shall continue to constitute part of the
Collateral and/or
the Collateral Documents. In the event of any sale or transfer of
Collateral
and/or the Collateral Documents, or any foreclosure with respect to
any of the
Collateral and/or the Collateral Documents, Agent shall be
authorized to deduct
all expenses reasonably incurred by Agent from the proceeds of any
such sale,
transfer or foreclosure.
(d) Agent shall have no obligation whatsoever to any Lender, the
L/C
Issuer or any other Person to assure that the Collateral exists or
is owned by
Borrower or any other Loan Party or is cared for, protected or
insured or that
the Liens granted to Agent herein or in any of the Collateral
Documents or
pursuant hereto or thereto have been properly or sufficiently or
lawfully
created, perfected, protected or enforced or are entitled to any
particular
priority, or to exercise or to continue exercising at all or in any
manner or
under any duty of care, disclosure or fidelity any of the rights,
authorities
and powers granted or available to Agent in this SECTION 9.10 or in
any of the
Collateral Documents, it being understood and agreed that in
respect of the
Collateral and/or the Collateral Documents, or any act, omission or
event
related thereto, Agent may act in any manner it may deem
appropriate, in its
sole discretion, given Agent's own interest in the Collateral
and/or the
Collateral Documents as one of Lenders and that Agent shall have no
duty or
liability whatsoever to Lenders or the L/C Issuer.
(e) Each Lender and the L/C Issuer hereby appoints each other
Lender
as agent for the purpose of perfecting Lenders' and the L/C
Issuer's security
interest in assets which, in accordance with Article 9 of the UCC
can be
perfected only by possession. Should any Lender or the L/C Issuer
(other than
Agent) obtain possession of any such Collateral, such Lender or the
L/C Issuer
shall notify Agent thereof, and, promptly upon Agent's request
therefor shall
deliver such Collateral to Agent or in accordance with Agent's
instructions.
(f) Agent agrees that it shall not release the Collateral or
its
interest in the Collateral without the prior written consent of
each Lender.
ARTICLE X. MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of
this
Agreement or any other Loan Document, and no consent to any
departure by
Borrower or any other Loan Party therefrom, shall be effective
unless in writing
signed by the Required Lenders and Borrower or the applicable Loan
Party, as the
case may be, and acknowledged by Agent, and each such waiver or
consent shall be
effective only in the specific instance and for the specific
purpose for which
given; PROVIDED, HOWEVER, that no such amendment, waiver or consent
shall:
(a) waive any condition set forth in SECTION 4.01(a) without the
written consent
of each Lender; PROVIDED, HOWEVER, in the sole discretion of Agent,
only a
waiver by Agent shall be required with respect to immaterial
matters or items
specified in SECTION 4.01(a) (iii) or (iv) with respect to which
Borrower has
given assurances satisfactory to Agent that such items shall be
delivered
promptly following the Closing Date;
(b) extend or increase the Commitment of any Lender (or reinstate
any Commitment
terminated pursuant to SECTION 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any
payment (excluding mandatory prepayments) of principal, interest,
fees or other
amounts due to Lenders (or any of them) hereunder or under any
other Loan
Document without the written consent of each Lender directly
affected thereby;
(d) reduce the principal of, or the rate of interest specified
herein on, any
unreimbursed drawing under any Letter of Credit or L/C Borrowing,
or (subject to
clause (iii) of the second proviso to this SECTION 10.01) any fees
or other
amounts payable hereunder or under any other Loan Document, without
the written
consent of each Lender directly affected thereby; PROVIDED,
HOWEVER, that only
the consent of the Required Lenders shall be necessary to amend the
definition
of "Default Rate" or to waive any obligation of Borrower to pay
interest or L/C
Fees at the Default Rate;
(e) amend any financial covenant in Section 6.12 without written
consent of each
Lender;
40
<Page>
(f) change SECTION 2.07 or SECTION 8.03 in a manner that would
alter the pro
rata sharing of payments required thereby without the written
consent of each
Lender; or
(g) change any provision of this Section or the definition of
"Required Lenders"
or any other provision hereof specifying the number or percentage
of Lenders
required to amend, waive or otherwise modify any rights hereunder
or make any
determination or grant any consent hereunder, without the written
consent of
each Lender;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent
shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders
required above,
affect the rights or duties of the L/C Issuer under this Agreement
or any Issuer
Document relating to any Letter of Credit issued or to be issued by
it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by
Agent in
addition to the Lenders required above, affect the rights or duties
of Agent
under this Agreement or any other Loan Document; and (iii) the
Agent Fee Letter
may be amended, or rights or privileges thereunder waived, in a
writing executed
only by the parties thereto. Notwithstanding anything to the
contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any
amendment,
waiver or consent hereunder, except that the Commitment of such
Lender may not
be increased or extended without the consent of such Lender.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS. (a)
NOTICES
GENERALLY. Except in the case of notices and other communications
expressly
permitted to be given by telephone (and except as provided in
subsection (b)
below), all notices and other communications provided for herein
shall be in
writing and shall be delivered by hand or overnight courier
service, mailed by
certified or registered mail or sent by telecopier as follows, and
all notices
and other communications expressly permitted hereunder to be given
by telephone
shall be made to the applicable telephone number, as follows:
(i) if to Borrower, Agent or the L/C Issuer, to the address,
telecopier number, electronic mail address or telephone number
specified for
such Person on SCHEDULE 10.02 ; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its
Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by
certified or
registered mail, shall be deemed to have been given when received;
notices sent
by telecopier shall be deemed to have been given when sent (except
that, if not
given during normal business hours for the recipient, shall be
deemed to have
been given at the opening of business on the next business day for
the
recipient). Notices delivered through electronic communications to
the extent
provided in subsection (b) below, shall be effective as provided in
such
subsection (b).
(b) ELECTRONIC COMMUNICATIONS. Notices and other communications to
Lenders and
the L/C Issuer hereunder may be delivered or furnished by
electronic
communication (including e-mail and Internet or intranet websites)
pursuant to
procedures approved by Agent, provided that the foregoing shall not
apply to
notices to any Lender or the L/C Issuer pursuant to Article II if
such Lender or
the L/C Issuer, as applicable, has notified the Agent that it is
incapable of
receiving notices under such Article by electronic communication.
Agent or
Borrower may, in its discretion, agree to accept notices and
other
communications to it hereunder by electronic communications
pursuant to
procedures approved by it, provided that approval of such
procedures may be
limited to particular notices or communications. Unless Agent
otherwise
prescribes, (i) notices and other communications sent to an e-mail
address shall
be deemed received upon the sender's receipt of an acknowledgement
from the
intended recipient (such as by the "return receipt requested"
function, as
available, return e-mail or other written acknowledgement),
PROVIDED that if
such notice or other communication is not sent during the normal
business hours
of the recipient, such notice or communication shall be deemed to
have been sent
at the opening of business on the next business day for the
recipient, and (ii)
notices or communications posted to an Internet or intranet website
shall be
deemed received upon the deemed receipt by the intended recipient
at its e-mail
address as described in the foregoing clause (i) of notification
that such
notice or communication is available and identifying the website
address
therefor.
(c) THE PLATFORM. THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE." THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE
BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.
NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE
BY ANY AGENT
PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In
no event
shall Agent or any of its Related Parties (collectively,
41
<Page>
the "Agent Parties") have any liability to Borrower, any Lender,
the L/C Issuer
or any other Person for losses, claims, damages, liabilities or
expenses of any
kind (whether in tort, contract or otherwise) arising out of
Borrower's or
Agent's transmission of Borrower Materials through the Internet,
except to the
extent that such losses, claims, damages, liabilities or expenses
are determined
by a court of competent jurisdiction by a final and nonappealable
judgment to
have resulted from the gross negligence or willful misconduct of
such Agent
Party; provided, however, that in no event shall any Agent Party
have any
liability to Borrower, any Lender, the L/C Issuer or any other
Person for
indirect, special, incidental, consequential o
