EXECUTION COPY
CREDIT AGREEMENT
Dated as of November 16, 2001
among
THE CONNECTICUT LIGHT
AND POWER COMPANY,
WESTERN MASSACHUSETTS
ELECTRIC COMPANY,
YANKEE GAS SERVICES COMPANY, and
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
as Borrowers
THE BANKS NAMED HEREIN
and
CITIBANK, N.A.
as Administrative Agent
XXXXXXX XXXXX XXXXXX, INC.
and
BANC ONE CAPITAL MARKETS, INC.
Joint Lead Arrangers
BANC ONE CAPITAL MARKETS, INC.
Syndication Agent
BARCLAYS BANK PLC
and
UNION BANK OF CALIFORNIA, N.A.
Co-Syndication Agents
FLEET NATIONAL BANK, Documentation Agent
CREDIT AGREEMENT
Dated as of November 16, 2001
THIS CREDIT AGREEMENT is made by and among:
(i) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation
organized under the laws of the State of Connecticut ("CL&P");
(ii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation
organized under the laws of the Commonwealth of Massachusetts
("WMECO");
(iii)YANKEE GAS SERVICES COMPANY, a corporation organized
under the laws of the State of Connecticut ("Yankee");
(iv) PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, a corporation
organized under the laws of the State of New Hampshire
("PSNH";CL&P, WMECO, Yankee and PSNH each being a "Borrower",
and collectively, the "Borrowers").
(v) The financial institutions (the "Banks") listed on the
signature pages hereof and the other Lenders (as hereinafter
defined) from time to time party hereto; and
(vi) CITIBANK, N.A. ("Citibank"), as Administrative Agent for the
Lenders hereunder.
PRELIMINARY STATEMENT
The Borrowers have requested the Banks to provide the credit
facility hereinafter described in the amounts and on the terms
and conditions set forth herein. The Banks have so agreed on the
terms and conditions set forth herein, and the Administrative
Agent has agreed to act as agent for the Lenders on such terms
and conditions.
Based upon the foregoing and subject to the terms and
conditions set forth in this Agreement, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be applicable to the
singular and plural forms of the terms defined):
"Administrative Agent" means Citibank, in its capacity
as administrative agent hereunder, or any successor thereto
as provided herein.
"Advance" means a Contract Advance.
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling (including,
but not limited to, all directors and officers of such
Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly or
indirectly, the power to direct or cause the direction of
the management and policies of such entity, whether through
the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Credit Agreement, as the same
may be modified, amended and/or supplemented pursuant to the
terms hereof.
"Applicable Facility Fee Rate" means, for each Borrower
for any day, the percentage per annum set forth below in
effect on such day, determined on the basis of the
Applicable Rating Level of CL&P:
Applicable Facility Fee Rate
Applicable Rating Level Percentage (%)
Level I 0.125
Level II 0.150
Level III 0.200
Level IV 0.375
Level V 0.500
Any change in the Applicable Facility Fee Rate caused by a
change in the Applicable Rating Level shall take effect at
the time such change in the Applicable Rating Level shall
occur.
"Applicable Lending Office" means, with respect to each
Lender:
(i) in the case of any Contract Advance, (A) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar Rate
Advance or (B) such Lender's "Domestic Lending Office" in the
case of a Base Rate Advance, in each case as specified opposite
such Lender's name on Schedule I hereto or in the Lender
Assignment pursuant to which it became a Lender; or
(ii) in each case, such other office of such Lender as
such Lender may from time to time specify in writing to the
Borrowers and the Administrative Agent.
"Applicable Margin" means, for each Borrower, for any
day for any outstanding Contract Advance, the percentage per
annum set forth below in effect on such day, determined on
the basis of the Applicable Rating Level for such Borrower:
Applicable Margin Percentage %)
Utilization Utilization
Eurodollar Margin for Margin for
Rating Rate Eurodollar Rate Base Rate Base Rate
Level Advances Advances Advances Advances
Level I 0.750 0.125 0.000 0.000
Level II 0.850 0.125 0.000 0.000
Level II 1.050 0.125 0.050 0.125
Level IV 1.375 0.250 0.375 0.250
Level V 1.500 0.250 0.500 0.250
provided, that (x) the Applicable Margin for Eurodollar Rate
Advances shall be increased by the rate per annum set forth
above under the caption "Utilization Margin for Eurodollar
Rate Advances" that corresponds to the Applicable Rating
Level used to determine such Applicable Margin and (y) the
Applicable Margin for Base Rate Advances shall be increased
by the rate per annum set forth above under the caption
"Utilization Margin for Base Rate Advances" that corresponds
to the Applicable Rating Level used to determine such
Applicable Margin, in any case, during any period in which
the total principal amount of outstanding Advances is
greater than one-half of the Total Commitment. Any change
in the Applicable Margin caused by a change in the
Applicable Rating Level shall take effect at the time such
change in the Applicable Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance
made to any Borrower, either of (i) the Base Rate from time
to time applicable to such Advance plus the Applicable
Margin, or (ii) the Eurodollar Rate from time to time
applicable to such Advance plus the Applicable Margin.
"Applicable Rating Level" for each Borrower, shall be
determined at any time and from time to time on the basis of
the Reference Ratings applicable to such Borrower, in
accordance with the following:
Applicable Rating Level
S&P Xxxxx'x
Level I BBB+ or higher Baa1 or higher
Level II BBB Baa2
Level III BBB- Baa3
Xxxxx XX XXx Xx0
Xxxxx X XX or lower Ba2 or lower
In the event that the Reference Ratings do not correspond to
the same Applicable Rating Level, then the lower of the two
ratings shall determine the Applicable Rating Level, except
that if the Reference Ratings differ by more than one Level,
the Level that is one Level higher than the Level
corresponding to the lower of such ratings shall determine
the Applicable Rating Level; provided, that the foregoing
exception shall not apply in any case when the lower of such
ratings shall correspond to Level IV or Level V, in which
case the Level corresponding to such lower rating shall
determine the Applicable Rating Level; provided, further,
that if such Borrower has outstanding Borrower Debt (or
Secured Debt, if Secured Debt then forms the basis for
Reference Ratings pursuant to the definition of "Reference
Ratings" in this Section 1.01) and both Xxxxx'x and S&P
shall have ceased to issue or maintain ratings on such
Borrower Debt (or Secured Debt, as the case may be), then
the Applicable Rating Level shall be Level V.
"Available Commitment" means, for each Lender, the
unused portion of such Lender's Commitment (which shall be
equal to the excess, if any, of such Lender's Commitment
over such Lender's Contract Advances outstanding).
"Available Commitments" shall refer to the aggregate of the
Lenders' Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the
caption to this Agreement.
"Base Rate" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time to
time which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by
the Administrative Agent in its principal place of
business from time to time as the Administrative
Agent's base rate;
(b) 1/2 of one percent per annum above the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks, adjusted to the nearest 1/32 of one
percent (the "CD Rate"); and
(c) 1/2 of one percent per annum above the
Federal Funds Rate in effect from time to time.
If the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the CD Rate or the Federal
Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Base
Rate shall be determined without regard to clause (b) of the
first sentence of this definition, in the event the
Administrative Agent is unable to ascertain the CD Rate, and
clause (c) of the first sentence of this definition, in the
event the Administrative Agent is unable to ascertain the
Federal Funds Rate, until the circumstances giving rise to
such inability no longer exist. Any change in the Base Rate
due to a change in the Administrative Agent's base rate, the
CD Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Administrative Agent's
base rate, the CD Rate or the Federal Funds Rate,
respectively.
"Base Rate Advance" means a Contract Advance in respect
of which a Borrower has selected in accordance with
Article III hereof, or this Agreement provides for, interest
to be computed on the basis of the Base Rate.
"Borrower" or "Borrowers" has the meaning assigned to
that term in the caption to this Agreement.
"Borrower Debt" has the meaning specified in the
definition of "Reference Ratings" in this Section 1.01.
"Borrower Sublimit" means: (i) with respect to CL&P,
$150,000,000, (ii) with respect to WMECO, $100,000,000,
(iii) with respect to Yankee, $100,000,000 and (iv) with
respect to PSNH, $100,000,000.
"Borrowing" means a Contract Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Change of Control" means (a) any Person or "group"
(within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended), shall either
(1) acquire beneficial ownership of more than 50% of any
outstanding class of common stock of NU having ordinary
voting power in the election of directors of NU or
(2) obtain the power (whether or not exercised) to elect a
majority of NU's directors or (b) the Board of Directors of
NU shall not consist of a majority of Continuing Directors.
For purposes of this definition, the term "Continuing
Directors" means directors of NU on the Closing Date and
each other director of NU, if such other director's
nomination for election to the Board of Directors of NU is
recommended by a majority of the then Continuing Directors.
"Citibank" has the meaning assigned to that term in the
caption to this Agreement.
"CL&P" has the meaning assigned to that term in the
caption to this Agreement.
"Closing Date" has the meaning assigned to that term in
Section 5.01 hereof.
"Commitment" means, for each Lender, the aggregate
amount set forth opposite such Lender's name on the
signature pages hereof or, if such Lender has entered into
one or more Lender Assignments, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant
to Section 10.07(c), in each such case as such amount may be
reduced from time to time pursuant to Section 2.03 hereof.
"Commitments" shall refer to the aggregate of the Lenders'
Commitments hereunder.
"Confidential Information" has the meaning assigned to
that term in Section 10.08 hereof.
"Consolidated Debt" means, at any date for any
Borrower, the total Debt of such Borrower and its
Subsidiaries as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Consolidated EBIT" means, for any Borrower for any
period (as determined on a consolidated basis in accordance
with generally accepted accounting principles), the
Borrower's and its Subsidiaries' net income for such period,
adjusted as follows:
(i) increased by the amount of federal and state income taxes
to the extent deducted in the computation of such
Borrower's and/or its Subsidiaries' consolidated net
income for such period;
(ii) increased by the amount of Consolidated Interest Expense
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iii) increased by the amount of dividends on preferred stock
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iv) decreased (increased) by the gain (loss) on asset sales
done outside the ordinary course of business by the
Borrower and/or its Subsidiaries to the extent such gains
(losses) are not offset by increases (decreases) in
amortization of regulatory assets, nd to the extent such
again (loss) is included in the computation
of the Borrower's and/or its Subsidiaries' consolidated
net income for such period; and
(v) decreased by the amount of revenues accrued by the
Borrower and/or its Subsidiaries related to interest
on Stranded Cost Recovery Obligations of the Borrower
and/or its Subsidiaries, and increased by the amount
of operating expenses accrued by the Borrower and/or
its Subsidiaries related to interest on Stranded
Cost Recovery Obligations of the Borrower and/or its
Subsidiaries, in each case to the extent included in the
computation of the Borrower's and/or its Subsidiaries'
consolidated net income for such period.
"Consolidated Interest Expense" means, for any
Borrower, for any period, the aggregate amount of any
interest required to be paid during such period by such
Borrower and its Subsidiaries on Debt (including the current
portion thereof) (as determined on a consolidated basis in
accordance with generally accepted accounting principles),
excluding interest required to be paid on the Stranded Cost
Recovery Obligations of such Borrower.
"Contract Advance" means an advance by a Lender to any
Borrower pursuant to Article III hereof, and refers to a
Eurodollar Rate Advance or a Base Rate Advance (each of
which shall be a "Type" of Contract Advance). For purposes
of this Agreement, all Contract Advances of a Lender (or
portions thereof) of the same Type and Interest Period, if
any,made or converted on the same day to the same Borrower
shall be deemed to be a single Advance by such Lender until
repaid.
"Contract Borrowing" means a borrowing consisting of
one or more Contract Advances of the same Type and Interest
Period, if any, made to the same Borrower on the same
Business Day by the Lenders, ratably in accordance with
their respective Commitments. A Contract Borrowing may be
referred to herein as being a "Type" of Contract Borrowing,
corresponding to the Type of Contract Advances comprising
such Borrowing. For purposes of this Agreement, all
Contract Advances of the same Type and Interest Period, if
any, made or converted on the same day to the same Borrower
shall be deemed a single Contract Borrowing hereunder until
repaid.
"Contract Note" means a promissory note of any Borrower
payable to the order of a Lender, in substantially the form
of Exhibit 1.01A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from
the Contract Advances made by such Lender to such Borrower.
"Debt" means, for any Person, without duplication,
(i) indebtedness of such Person for borrowed money,
including but not limited to obligations of such Person
evidenced by bonds, debentures, notes or other similar
instruments (excluding Stranded Cost Recovery Obligations
which are non-recourse to such Person), (ii) obligations of
such Person to pay the deferred purchase price of property
or services (excluding any obligation of such Person to the
United States Department of Energy or its successor with
respect to disposition of spent nuclear fuel burned prior to
April 3, 1983), (iii) obligations of such Person as lessee
under leases which shall have been or should be, in
accordance with generally accepted accounting principles,
recorded as capital leases, (iv) obligations under direct or
indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iii), above, and
(v) liabilities in respect of unfunded vested benefits under
ERISA Plans.
"Disclosure Documents" means, for any Borrower:
(i) such Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 2000; (ii) its Quarterly
Reports on Form 10-Q for the fiscal quarters ended March 31
and June 30, 2001; (iii) each Current Report on Form 8-K of
such Person filed after June 30, 2001 and on or prior to
October 26, 2001; and (iv) the Information Memorandum.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person,
any trade or business (whether or not incorporated) which is
a "commonly controlled entity" of such Person within the
meaning of the regulations under Section 414 of the Internal
Revenue Code of 1986, as amended from time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan"
subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than
a ERISA Multiemployer Plan) maintained for employees of any
Borrower or any ERISA Affiliate thereof and covered by
Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable
Event described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject
to the provision for 30-day notice to the PBGC under such
regulations) with respect to an ERISA Plan or an ERISA
Multiemployer Plan, or (ii) the withdrawal of any Borrower
or any of its ERISA Affiliates from an ERISA Plan or an
ERISA Multiemployer Plan during a plan year in which it was
a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to
terminate an ERISA Plan or an ERISA Multiemployer Plan or
the treatment of an ERISA Plan amendment as a termination or
of an ERISA Multiemployer Plan amendment as a termination
under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or
condition which might constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a
trustee to administer, any ERISA Plan or ERISA Multiemployer
Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rates per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London
interbank market at 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period in the
amount of $1,000,000 and for a period equal to such Interest
Period. The Eurodollar Rate for the Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by
the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period,
subject, however, to the provisions of Sections 3.05(d) and
4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in
respect of which a Borrower has selected in accordance with
Article III hereof, or this Agreement provides for, interest
to be computed on the basis of the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender or its
subparticipant, for each Interest Period for each Eurodollar
Rate Advance, means the reserve percentage applicable during
such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such
percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under
Regulation D or other regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement, without
benefit of or credit for proration, exemptions or offsets)
for such Lender or its subparticipant with respect to
liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such
Interest Period.
"Event of Default" has the meaning specified in
Section 8.01 hereof.
"Existing Credit Facility" means the credit facility
provided to the Borrowers under the Credit Agreement, dated
as of November 17, 2000, among CL&P, WMECO, the lenders
party thereto and Citibank, as administrative agent for the
lenders thereunder.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal to, for each day
during such period, the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter dated
October 31, 2001 among Citibank, Xxxxxxx Xxxxx Barney, Inc.,
Barclays Bank PLC, Union Bank of California, N.A., Banc One
Capital Markets, Inc., NU, CL&P, WMECO, Yankee and PSNH.
"FERC" means the Federal Energy Regulatory Commission.
"Financial Statements" means (A) with respect to CL&P,
(i) the audited consolidated balance sheet of CL&P as at
December 31, 2000, (ii) the unaudited consolidated balance
sheet of CL&P as at June 30, 2001, (iii) the audited
consolidated statements of income and cash flows of CL&P for
the Fiscal Year ended December 31, 2000 and (iv) the
unaudited consolidated statements of income and cash flows
of CL&P for the 6-month period ended June 30, 2001, in each
case as included in CL&P's Annual Report on Form 10-K for
the Fiscal Year ended December 31, 2000 or Quarterly Report
on Form 10-Q for the Fiscal Quarter ended June 30, 2001,
(B), with respect to WMECO, (i) the audited balance sheet of
WMECO as at December 31, 2000, (ii) the unaudited balance
sheet of WMECO as at June 30, 2001, (iii) the audited
statements of income and cash flows of WMECO for the Fiscal
Year ended December 31, 2000 and (iv) the unaudited
statements of income and cash flows of WMECO for the 6-month
period ended June 30, 2001, in each case as included in
WMECO's Annual Report on Form 10-K for the Fiscal Year ended
December 31, 2000 or Quarterly Report on Form 10-Q for the
Fiscal Quarter ended June 30, 2001, (C), with respect to
Yankee, (i) the audited balance sheet of Yankee as at
December 31, 2000, (ii) the unaudited balance sheet of
Yankee as at June 30, 2001 (iii) the audited statements of
income and cash flows of Yankee for the Fiscal Year ended
December 31, 2000 and (iv) the unaudited statements of
income and cash flows of Yankee for the 6-month period ended
June 30, 2001, and (D), with respect to PSNH, (i) the
audited consolidated balance sheet of PSNH as at
December 31, 2000, (ii) the unaudited consolidated balance
sheet of PSNH as at June 30, 2001, (iii) the audited
consolidated statements of income and cash flows of PSNH for
the Fiscal Year ended December 31, 2000, and (iv) the
unaudited consolidated statements of income and cash flows
of PSNH for the 6-month period ended June 30, 2001, in each
case as included in PSNH's Annual Report on Form 10-K for
the Fiscal Year ended December 31, 2000 or Quarterly Report
on Form 10-Q for the Fiscal Quarter ended June 30, 2001.
"First Mortgage Indentures" means (i) in the case of
CL&P, the Indenture of Mortgage and Deed of Trust dated as
of May 1, 1921, from CL&P to Bankers Trust Company, as
trustee, as previously and hereafter amended and
supplemented, (ii) in the case of Yankee, the Indenture of
Mortgage and Deed of Trust, dated as of July 1, 1989,
between Yankee and The Connecticut National Bank, as
trustee, as in effect on the date hereof and as amended and
supplemented from time to time, (iii) in the case of WMECO,
any first mortgage indenture entered into after the date
hereof on substantially the terms of the Old WMECO Indenture
and covering substantially the same collateral, so long as
such indenture and the lien created thereby are approved by
the Massachusetts Department of Telecommunications and
Energy, and (iv) in the case of PSNH, the First Mortgage
Indenture, dated as of August 15, 1978, between PSNH and
First Union National Bank as successor trustee, as
previously and hereafter amended and supplemented.
"Fiscal Quarter" means a period of three calendar
months ending on the last day of March, June, September or
December, as the case may be.
"Fiscal Year" means a period of twelve calendar months
ending on the last day of December.
"Fraction" means, in respect of any Borrower as
determined at any time, a fraction, the numerator of which
shall be the Borrower Sublimit of such Borrower at such
time, and the denominator of which shall be the sum of the
Borrower Sublimits of all Borrowers at such time.
"Governmental Approval" means any authorization,
consent, approval, license, permit, certificate, exemption
of, or filing or registration with, any governmental
authority or other legal or regulatory body (including,
without limitation, the Securities and Exchange Commission,
the FERC, the Nuclear Regulatory Commission, the Connecticut
Department of Public Utility Control, the Massachusetts
Department of Telecommunications and Energy and the New
Hampshire Public Utility Commission), required in connection
with either (i) the execution, delivery or performance of
any Loan Document or (ii) the nature of a Borrower's or any
Subsidiary's business as conducted or the nature of the
property owned or leased by it.
"Hazardous Substance" means any waste, substance or
material identified as hazardous, dangerous or toxic by any
office, agency, department, commission, board, bureau or
instrumentality of the United States of America or of the
State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that
term in Section 10.04(b) hereof.
"Information Memorandum" means the confidential
Information Memorandum, dated October, 2001, regarding the
credit facility to be provided to the Borrowers hereunder,
as distributed to the Administrative Agent and the Lenders,
including, without limitation, all schedules and attachments
hereto.
"Interest Period" has the meaning assigned to that term
in Section 3.05(a) hereof.
"Lender Assignment" means an assignment and acceptance
entered into by a Lender and an assignee, and accepted by
the Administrative Agent, in substantially the form of
Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on
the signature pages hereof, and each assignee that shall
become a party hereto pursuant to Section 10.07.
"Lien" means, with respect to any asset or property,
any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset or
property. For the purposes of this Agreement, a Person or
any of its Subsidiaries shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement
relating to such asset.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means on any date of determination,
Lenders who, collectively, on such date (i) have Percentages
in the aggregate of at least 66-2/3% and (ii) if the
Commitments have been terminated, hold at least 66-2/3% of
the then aggregate unpaid principal amount of the Advances
owing to the Lenders. Determination of those Lenders
satisfying the criteria specified above for action by the
Majority Lenders shall be made by the Administrative Agent
and shall be conclusive and binding on all parties absent
manifest error.
"Moody's" means Xxxxx'x Investors Service, Inc., or any
successor thereto.
"New Hampshire Order" means the order of the New
Hampshire Public Utility Commission required in connection
with the execution, delivery and performance of the Loan
Documents by PSNH.
"Note" means a Contract Note, as may be amended,
supplemented or otherwise modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned
to that term in Section 3.01 hereof.
"NU" means Northeast Utilities, an unincorporated
voluntary business association organized under the laws of
the Commonwealth of Massachusetts.
"NU System Money Pool" means the money pool described
in the application/declaration, as amended, of NU and
certain of its Subsidiaries filed with the Securities and
Exchange Commission in File No. 70-8875, as amended from
time to time.
"NUSCO" means Northeast Utilities Service Company, a
Connecticut corporation.
"Old WMECO Indenture" means the First Mortgage
Indenture and Deed of Trust dated as of August 1, 1954, from
WMECO to State Street Bank and Trust Company, as successor
trustee, as amended and supplemented.
"Other Taxes" has the meaning assigned to that term in
Section 4.05(b) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any
date of determination, the percentage obtained by dividing
such Lender's Commitment on such day by the total of the
Commitments on such day, and multiplying the quotient so
obtained by 100%.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company,
joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any
political subdivision or agency thereof.
"PSNH" has the meaning assigned to that term in the
caption to this agreement.
"Recipient" has the meaning assigned to that term in
Section 10.08 hereof.
"Reference Banks" means Citibank, Fleet National Bank
and the Toronto Dominion Bank, and any other bank or
financial institution designated by the Borrowers and the
Administrative Agent with the approval of the Majority
Lenders to act as a Reference Bank hereunder.
"Reference Ratings" means, with respect to a Borrower,
the ratings assigned by S&P and Moody's to the long-term
senior unsecured non-credit enhanced debt of such Borrower
(the "Borrower Debt"); provided, that
(i) if neither S&P nor Moody's maintains a rating on the
Borrower Debt of a Borrower because no such Borrower Debt
is outstanding, then the "Reference Ratings" shall be
based on the ratings assigned by S&P and Moody's to the
long-term senior secured debt (the "Secured Debt") of such
Borrower, but such rating shall be deemed to correspond
to an Applicable Rating Level that is one Level lower
than the Level that would correspond to such secured debt
rating pursuant to the definition of "Applicable Rating
Level";
(ii) if neither S&P nor Moody's (A) maintains a rating on the
Borrower Debt of a Borrower because no such Borrower Debt
is outstanding and (B) maintains a rating on the Secured
Debt of a Borrower because no such Secured Debt
is outstanding, then the "Reference Ratings" shall be
based on such Borrower's corporate ratings as maintained
by S&P and Moody's (the "Corporate Ratings"); provided,
that if the Applicable Rating Level would be
lowered solely as a result of being determined on the
basis of Corporate Ratings (and not, for example, as a
result of any deterioration in the financial condition,
operations, creditworthiness or prospects of such
Borrower, as determined on the basis of public
announcements by S&P or Moody's), the Applicable Rating
Level theretofore in effect shall remain in force until
one or both of the Corporate Ratings are next raised,
lowered or confirmed by S&P or Moody's, as the case may
be;
(iii)until such time as Yankee shall have issued Borrower
Debt or Secured Debt or shall have obtained Corporate
Ratings (in which case the foregoing provisions of this
definition shall apply), the "Reference Ratings" of
Yankee shall be deemed to bethe S&P and Moody's ratings
that correspond to the Applicable Rating Level that is
one Level higher than the Applicable Rating Level for
the Borrower Debt of CL&P; and
(iv) in the case of PSNH, the Xxxxx'x rating for Borrower Debt
shall be deemed to be the Moody's equivalent of the
applicable S&P rating until such time as Moody's shall
have publicly confirmed or changed such rating.
"Regulatory Asset" means, with respect to CL&P or
WMECO, an intangible asset established by statute,
regulation or regulatory order or similar action of a
utility regulatory agency having jurisdiction over CL&P or
WMECO, as the case may be, and included in the rate base of
CL&P or WMECO, as the case may be, with the intention that
such asset be amortized by rates over time.
"S&P" means Standard and Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., or any
successor thereto.
"Secured Debt" has the meaning specified in the
definition of "Reference Ratings" in this Section 1.01.
"SEC Borrowing Limit" means, for any Borrower on any
date, the short-term debt borrowing limit prescribed by the
Securities and Exchange Commission applicable to such
Borrower on such date.
"Stranded Cost Recovery Obligations" means, with
respect to any Person, such Person's obligations to make
principal, interest or other payments to the issuer of
stranded cost recovery bonds pursuant to a loan agreement or
similar arrangement whereby the issuer has loaned the
proceeds of such bonds to such Person.
"Subsidiary" shall mean, with respect to any Person
(the "Parent"), any corporation, association or other
business entity of which securities or other ownership
interests representing 50% or more of the ordinary voting
power are, at the time as of which any determination is
being made, owned or controlled by the Parent or one or more
Subsidiaries of the Parent or by the Parent and one or more
Subsidiaries of the Parent.
"Taxes" has the meaning assigned to that term in
Section 4.05(a) hereof.
"Termination Date" means the earliest to occur of (i)
November 15, 2002, or such later date to which the
Termination Date shall be extended in accordance with
Section 2.04, (ii) the date of termination or reduction in
whole of the Commitments pursuant to Section 2.03 or 8.02 or
(iii) the date of acceleration of all amounts payable
hereunder pursuant to Section 8.02.
"Total Capitalization" means, at any date for any
Borrower, the sum of (i) Consolidated Debt of such Borrower
and its Subsidiaries, (ii) the aggregate of the par value
of, or stated capital represented by, the outstanding shares
of all classes of common and preferred shares of such
Borrower and its Subsidiaries and (iii) the consolidated
surplus of such Borrower and its Subsidiaries, paid-in,
earned and other capital, if any, in each case as determined
on a consolidated basis in accordance with generally
accepted accounting principles consistent with those applied
in the preparation of such Borrower's Financial Statements.
"Total Commitment" means $350,000,000, or such lesser
amount from time to time as shall equal the sum of the
Commitments.
"Type" has the meaning assigned to such term (i) in the
definition of "Contract Advance" when used in such context
and (ii) in the definition of "Contract Borrowing" when used
in such context.
"Unmatured Default" means the occurrence and
continuance of an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default.
"WMECO" has the meaning assigned to that term in the
caption to this Agreement.
"Yankee" has the meaning assigned to that term in the
caption to this Agreement.
SECTION 1.02. Computation of Time Periods.
In the computation of periods of time under this Agreement,
any period of a specified number of days or months shall be
computed by including the first day or month occurring during
such period and excluding the last such day or month. In the
case of a period of time "from" a specified date "to" or "until"
a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms; Financial Statements.
All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting
principles applied on a basis consistent with the application
employed in the preparation of the Financial Statements. All
references contained herein to any Borrower's Annual Report on
Form 10-K in respect of a Fiscal Year or Quarterly Report on Form
10-Q in respect of a Fiscal Quarter shall be deemed to include
any exhibits and schedules thereto, including without limitation
in the case of any Annual Report on Form 10-K, any "Annual
Report" of such Borrower referred to therein.
SECTION 1.04. Computations of Outstandings.
Whenever reference is made in this Agreement to the
principal amount of Advances outstanding under this Agreement to
one or more Borrowers on any date, such reference shall refer to
the aggregate principal amount of all such Advances to such
Borrower(s) outstanding on such date after giving effect to (i)
all Advances to be made to such Borrower(s) on such date and the
application of the proceeds thereof and (ii) any repayment or
prepayment of Advances on such date by such Borrower(s).
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments.
(a) Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Advances to the
Borrowers from time to time on any Business Day during the period
from the Closing Date until the Termination Date, in an aggregate
amount not to exceed on any day such Lender's Available
Commitment. Within the limits of such Lender's Available
Commitment and such Borrower's Borrower Sublimit, each Borrower
may request Advances hereunder, repay or prepay Advances and
utilize the resulting increase in the Available Commitments for
further Advances in accordance with the terms hereof.
(b) In no event shall any Borrower be entitled to request
or receive any Advance under subsection (a) that would cause the
aggregate principal amount advanced pursuant thereto to exceed
the Available Commitments. In no event shall any Borrower be
entitled to request or receive any Advance that would cause the
total principal amount of all Advances outstanding hereunder to
exceed the Total Commitment, or that would cause the aggregate
principal amount of all Advances outstanding to or requested by
such Borrower to exceed such Borrower's Borrower Sublimit. In no
event shall any Borrower be entitled to request or receive any
Advance that, when aggregated with all other Advances outstanding
to or requested by such Borrower and all other short-term debt of
such Borrower, would exceed such Borrower's SEC Borrowing Limit
as then in effect.
SECTION 2.02. Fees.
(a) Each Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee (the "Facility
Fee") on the amount of such Lender's Commitment (whether used or
unused) multiplied by such Borrower's Fraction, at the Applicable
Facility Fee Rate from the date of this Agreement, in the case of
each Bank, and from the effective date specified in the Lender
Assignment pursuant to which it became a Lender, in the case of
each other Lender, until the Termination Date. The Facility Fee
payable by each Borrower shall be payable quarterly in arrears on
the last day of each December, March, June and September,
commencing the first such date following the Closing Date, with
final payment payable on the Termination Date.
(b) The Borrowers further agree to pay the fees specified
in the Fee Letter that are for their account, together with such
other fees as may be separately agreed to by the Borrowers and
the Administrative Agent or its Affiliates.
SECTION 2.03. Reduction of the Commitments; Borrower
Sublimits.
(a) Each Borrower may, at any time, severally and without
the consent of the other Borrowers, by providing at least three
Business Days' prior written notice to the Administrative Agent,
terminate in whole or reduce in part its Borrower Sublimit;
provided, that any such partial reduction shall be in a minimum
aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. Each such notice of termination or
reduction shall be irrevocable. In no event shall any Borrower
be entitled to increase its Borrower Sublimit without the consent
of all of the Lenders.
(b) Each reduction in a Borrower's Borrower Sublimit
pursuant to this Section 2.03 shall result in a like reduction in
the Commitments on a pro rata basis with respect to each Lender.
SECTION 2.04. Extension of the Termination Date.
(a) Unless the Termination Date shall have previously
occurred in accordance with its terms, at least 45 days but not
more than 60 days before the Termination Date, as then in effect,
the Borrowers may jointly, by notice to the Administrative Agent
(any such notice being irrevocable), request the Administrative
Agent and the Lenders to extend the Termination Date for a period
of 364 days. If the Borrowers shall make such request, the
Administrative Agent shall promptly inform the Lenders thereof
and, no later than 30 days prior to the Termination Date as then
in effect, the Administrative Agent shall notify the Borrowers in
writing if the Lenders consent to such request and the conditions
of such consent (including conditions relating to legal
documentation and evidence of the obtaining of all necessary
governmental approvals). The granting of any such consent shall
be in the sole and absolute discretion of each Lender, and, if
any Lender shall not so notify the Administrative Agent or, if
the Administrative Agent shall not so notify the Borrowers, such
lack of notification shall be deemed to be a determination not to
consent to such request. No such extension shall occur unless
all of the Lenders consent in writing thereto (or if less than
all the Lenders consent thereto, unless one or more other
existing Lenders, or one or more other banks and financial
institutions acceptable to the Borrowers and the Administrative
Agent, agree to assume all of the Commitments of the non-
consenting Lenders).
ARTICLE III
CONTRACT ADVANCES
SECTION 3.01. Contract Advances.
(a) More than one Contract Borrowing may be made on the
same Business Day. Each Contract Borrowing shall consist of
Contract Advances of the same Type and Interest Period made to
the same Borrower on the same Business Day by the Lenders ratably
according to their respective Commitments. Each Contract
Borrowing shall be made on notice in substantially the form of
Exhibit 3.01 hereto (a "Notice of Contract Borrowing"), delivered
by the Borrower requesting such Contract Borrowing to the
Administrative Agent, by hand or facsimile, not later than 11:00
a.m. (New York City time) (i) in the case of Eurodollar Rate
Advances, on the third Business Day prior to the date of the
proposed Borrowing and (ii) in the case of Base Rate Advances, on
the day of the proposed Borrowing. Upon receipt of a Notice of
Contract Borrowing, the Administrative Agent shall notify the
Lenders thereof promptly on the day so received. Each Notice of
Contract Borrowing shall specify therein: (i) the requested
(A) date of such Borrowing, (B) principal amount and Type of
Advances comprising such Borrowing and (C) initial Interest
Period for such Advances; (ii) the identity of the Borrower
requesting such proposed Borrowing and (iii) the Borrower
Sublimit applicable to such Borrower on the proposed date of such
proposed Borrowing and the aggregate amount of Advances to be
outstanding to such Borrower on such date after giving effect to
such proposed Borrowing. Each proposed Borrowing shall be
subject to the satisfaction of the conditions precedent thereto
as set forth in Article V hereof.
SECTION 3.02. Terms Relating to the Making of Contract
Advances.
(a) Notwithstanding anything in Section 3.01 above to the
contrary:
(i) at no time shall more than twelve different
Contract Borrowings be outstanding hereunder;
(ii) each Contract Borrowing hereunder which is to be
comprised of Base Rate Advances shall be in an aggregate
principal amount of not less than $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, or such lesser
amount as shall be equal to the total amount of the
Available Commitments on such date, after giving effect to
all other Contract Borrowings to be made to, or repaid or
prepaid by, the relevant Borrower on such date; and
(iii) each Contract Borrowing hereunder which is to
be comprised of Eurodollar Rate Advances shall be in an
aggregate principal amount of not less than $5,000,000 or an
increment of $1,000,000 in excess thereof.
(b) Each Notice of Borrowing shall be irrevocable and
binding on the Borrower requesting such proposed Borrowing.
SECTION 3.03. Making of Advances.
(a) Each Lender shall, before 12:00 noon (New York City
time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative
Agent at the Administrative Agent's address referred to in
Section 10.02, in same day funds, such Lender's portion of such
Borrowing. Contract Advances shall be made by the Lenders
ratably in accordance with their several Commitments. After the
Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article V, the
Administrative Agent will make such funds available to the
Borrower that made the request for such Borrowing at the
Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the time of any Borrowing that such
Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Borrowing, the Administrative
Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 3.03, and the
Administrative Agent may, in reliance upon such assumption, make
available to the Borrower that made the request for such
Borrowing a corresponding amount on such date. If and to the
extent that any such Lender (a "non-performing Lender") shall not
have so made such ratable portion available to the Administrative
Agent, the non-performing Lender and such Borrower severally
agree to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for
each day from the date such amount is made available to such
Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of such Borrower, the
interest rate applicable at the time to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. Nothing herein shall in any way limit, waive or otherwise
reduce any claims that any party hereto may have against any non-
performing Lender.
(c) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Advance
on the date of such Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 3.04. Repayment of Advances; Contract Notes.
(a) Each Borrower shall repay the principal amount of each
Advance made to it hereunder on the Termination Date.
(b) Any Lender may request that the Contract Advances made
by it to any Borrower be evidenced by a Contract Note. Promptly
upon receipt of such request, the relevant Borrower shall
prepare, execute and deliver to such Lender (or, if requested by
such Lender, to such Lender and its assignees) a Contract Note.
Thereafter, the Contract Advances evidenced by such Contract Note
and interest thereon shall at all times (including after
assignment pursuant to Section 10.07) be represented by one or
more Contract Notes payable to the order of the payee named
therein.
SECTION 3.05. Interest.
(a) Interest Periods.
(i) The period commencing on the date of each Advance
and ending on the last day of the period selected by a
Borrower with respect to such Advance pursuant to the
provisions of this Section 3.05 is referred to herein as an
"Interest Period". The duration of each Interest Period
shall be (i) in the case of any Eurodollar Rate Advance,
one, two or three months and (ii) in the case of any Base
Rate Advance, the period of time beginning on the date of
the making of, or the conversion of an outstanding Advance
into, such Advance and ending on the last day of March,
June, September or December next following the date on which
such Advance was made; provided, however, that no Interest
Period may be selected by any Borrower if such Interest
Period would end after the Termination Date.
(ii) Subject to the terms and conditions of this
Agreement, the initial Interest Period for any Advance made
to any Borrower shall be determined by such Borrower as set
forth in its Notice of Contract Borrowing with respect to
such Advance. Such Borrower may elect to continue or
convert one or more Advances of any Type and having the same
Interest Period to one or more Advances of the same or any
other Type and having the same or a different Interest
Period on the following terms and subject to the following
conditions:
(A) Each continuation or conversion shall be made
as to all Advances comprising a single Borrowing upon
written notice given by such Borrower to the
Administrative Agent not later than 11:00 a.m. (New
York City time) on the third Business Day prior to the
date of the proposed continuation or conversion, in the
case of a continuation of or conversion to a Eurodollar
Rate Advance, or on the day of the proposed
continuation of or conversion to a Base Rate Advance.
The Administrative Agent shall notify each Lender of
the contents of such notice promptly after receipt
thereof. Each such notice shall specify therein the
following information: (1) the date of such proposed
continuation or conversion (which in the case of
Eurodollar Rate Advances shall be the last day of the
Interest Period then applicable to such Advances to be
continued or converted), (2) the Type of, and Interest
Period applicable to the Advances proposed to be
continued or converted, (3) the aggregate principal
amount of Advances proposed to be continued or
converted, and (4) the Type of Advances to which such
Advances are proposed to be continued or converted and
the Interest Period to be applicable thereto.
(B) During the continuance of an Unmatured
Default, the right of the Borrowers to continue or
convert Advances to Eurodollar Rate Advances shall be
suspended, and all Eurodollar Rate Advances then
outstanding shall be converted to Base Rate Advances on
the last day of the Interest Period then in effect, if,
on such day, an Unmatured Default shall be continuing.
(C) During the continuance of an Event of
Default, the right of the Borrowers to continue or
convert Advances to Eurodollar Rate Advances shall be
suspended, and upon the occurrence of an Event of
Default, all Eurodollar Rate Advances then outstanding
shall immediately, without further act by the
Borrowers, be converted to Base Rate Advances.
(D) If no notice of continuation or conversion is
received by the Administrative Agent as provided in
paragraph (A), above, with respect to any outstanding
Advances on or before the third Business Day prior to
the last day of the Interest Period then in effect for
such Advances, the Administrative Agent shall treat
such absence of notice as a deemed notice of
continuation or conversion providing for such Advances
to be continued as or converted to Base Rate Advances
with an Interest Period of three months commencing on
the last day of such Interest Period.
(b) Interest Rates. Each Borrower shall pay interest on
the unpaid principal amount of each Advance owing by such
Borrower from the date of such Advance until such principal
amount shall be paid in full, at the Applicable Rate for such
Advance (except as otherwise provided in this subsection (b)),
payable as follows:
(i) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, interest thereon shall be payable
on the last day of the Interest Period applicable thereto
and on the Termination Date; provided that during the
continuance of any Event of Default, such Advance shall bear
interest at a rate per annum equal at all times to 2% per
annum above the Applicable Rate for such Advance for such
Interest Period, or, if higher, the Applicable Margin plus
2.0% per annum above the Applicable Rate in effect from time
to time for Base Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base
Rate Advance, interest thereon shall be payable quarterly on
the last day of each March, June, September and December and
on the date such Base Rate Advance shall be paid in full;
provided that during the continuance of any Event of
Default, such Advance shall bear interest at a rate per
annum equal at all times to 2% per annum above the
Applicable Rate for such Advance for such Interest Period.
(c) Other Amounts. Any other amounts payable hereunder
that are not paid when due shall (to the fullest extent permitted
by law) bear interest, from the date when due until paid in full,
at a rate per annum equal at all times to 2.0% per annum above
the Applicable Rate in effect from time to time for Base Rate
Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent
shall give prompt notice to the Borrowers and the Lenders of the
Applicable Rate determined from time to time by the
Administrative Agent for each Contract Advance for each Borrower.
Each Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining the Eurodollar
Rate for any Interest Period. If any one Reference Bank shall
not furnish such timely information, the Administrative Agent
shall determine such interest rate on the basis of the timely
information furnished by the other two Reference Banks.
SECTION 3.06. Several Obligations.
Each Borrower's obligations hereunder are several and not
joint. Any actions taken by or on behalf of the Borrowers shall
not result in one Borrower being held responsible for the
actions, debts or liabilities of the other Borrowers. Nothing
contained herein shall be interpreted as requiring the Borrowers
to effect Borrowings jointly.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations.
(a) Each Borrower shall make each payment hereunder not
later than 12:00 noon (New York City time) on the day when due in
U.S. Dollars to the Administrative Agent at its address referred
to in Section 10.02 hereof, in same day funds. The
Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal,
interest, fees or other amounts payable to the Lenders, to the
respective Lenders to whom the same are payable, for the account
of their respective Applicable Lending Offices, in each case to
be applied in accordance with the terms of this Agreement. Upon
its acceptance of a Lender Assignment and recording of the
information contained therein in the Register pursuant to
Section 10.07, from and after the effective date specified in
such Lender Assignment, the Administrative Agent shall make all
payments hereunder in respect of the interest assigned thereby to
the Lender assignee thereunder, and the parties to such Lender
Assignment shall make all appropriate adjustments in such
payments for periods prior to such effective date directly
between themselves.
(b) Each Borrower hereby authorizes the Administrative
Agent and each Lender, if and to the extent payment owed to the
Administrative Agent or such Lender, as the case may be, is not
made when due hereunder, to charge from time to time against any
or all of such Borrower's accounts with the Administrative Agent
or such Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Base Rate
(except when determined on the basis of the Federal Funds Rate)
shall be made by the Administrative Agent on the basis of a year
of 365 or 366 days, as the case may be. All computations of
interest and other amounts payable pursuant to Section 4.03 shall
be made by the Lender claiming such interest or other amount on
the basis of a year of 360 days. All other computations of
interest, including computations of interest based on the
Eurodollar Rate, the Base Rate (when and if determined on the
basis of the Federal Funds Rate), and all computations of fees
and other amounts payable hereunder, shall be made by the
Administrative Agent on the basis of a year of 360 days. In each
such case, such computation shall be made for the actual number
of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or other
amounts are payable. Each such determination by the
Administrative Agent or a Lender shall be conclusive and binding
for all purposes, absent manifest error.
(d) Whenever any payment under any Loan Document shall be
stated to be due, or the last day of an Interest Period hereunder
shall be stated to occur, on a day other than a Business Day,
such payment shall be made, and the last day of such Interest
Period shall occur, on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of payment of interest and fees hereunder; provided,
however, that if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances to be made, or the
last day of an Interest Period for a Eurodollar Rate Advance to
occur, in the next following calendar month, such payment shall
be made on the next preceding Business Day and such reduction of
time shall in such case be included in the computation of payment
of interest hereunder.
(e) Unless the Administrative Agent shall have received
notice from a Borrower prior to the date on which any payment is
due to the Lenders hereunder that such Borrower will not make
such payment in full, the Administrative Agent may assume that
such Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, such Lender shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender, together with interest thereon, for
each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02. Prepayments.
(a) No Borrower shall have any right to prepay any Contract
Advances except in accordance with subsections (b) and (c),
below.
(b) Any Borrower may, (i) in the case of Eurodollar Rate
Advances, upon at least three Business Day's written notice to
the Administrative Agent (such notice being irrevocable) and
(ii) in the case of Base Rate Advances, upon notice not later
than 11:00 a.m. on the date of the proposed prepayment to the
Administrative Agent (such notice being irrevocable), stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given, such Borrower shall, prepay Contract
Advances comprising part of the same Borrowing, in whole or
ratably in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid and any amounts
owing in connection therewith pursuant to Section 4.03(d);
provided, however, that each partial prepayment shall be in an
aggregate principal amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(c) If at any time, the aggregate principal amount of
Advances outstanding shall exceed the Total Commitment, the
Borrowers shall forthwith prepay Advances in a principal amount
equal to such excess. If at any time, the aggregate principal
amount of Advances outstanding to any Borrower shall exceed the
Borrower Sublimit of such Borrower, such Borrower shall forthwith
prepay Advances in a principal amount equal to such excess. All
prepayments pursuant to this subsection (c) shall be effected
from outstanding Contract Advances comprising part of the same
Borrowing or Borrowings and shall be accompanied by payment of
accrued interest to the date of such prepayment on the principal
amount prepaid and any amounts owing in connection therewith
pursuant to Section 4.03(d).
SECTION 4.03. Yield Protection.
(a) Change in Circumstances. Notwithstanding any other
provision herein, if after the date hereof, the adoption of or
any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall (i) change
the basis of taxation of payments to any Lender of the principal
of or interest on any Eurodollar Rate Advance made by such Lender
or any fees or other amounts payable under the Loan Documents
(other than changes in respect of taxes imposed on the overall
net income of such Lender or its Applicable Lending Office by the
jurisdiction in which such Lender has its principal office or in
which such Applicable Lending Office is located or by any
political subdivision or taxing authority therein), or (ii) shall
impose, modify or deem applicable any reserve, special deposit or
similar requirement against commitments or assets of, deposits
with or for the account of, or credit extended by, such Lender,
or (iii) shall impose on such Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar
Rate Advances made by such Lender, and the result of any of the
foregoing shall be to increase the cost to such Lender, of
agreeing to make, making or maintaining any Advance or to reduce
the amount of any sum received or receivable by such Lender under
any Loan Document (whether of principal, interest or otherwise),
then the Borrowers will pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) Capital. If any Lender shall have determined that any
change after the date hereof in any law, rule, regulation or
guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after
the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing
or in the interpretation or administration of any of the
foregoing by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any
Applicable Lending Office of such Lender) or any Lender's holding
company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect
(i) of reducing the rate of return on such Lender's capital or on
the capital of such Lender's holding company, if any, as a
consequence of this Agreement, the Commitment of such Lender
hereunder or the Advances made by such Lender pursuant hereto to
a level below that which such Lender or such Lender's holding
company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such
Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), or (ii) of increasing
or otherwise determining the amount of capital required or
expected to be maintained by such Lender or such Lender's holding
company based upon the existence of this Agreement, the
Commitment of such Lender hereunder, the Advances made by such
Lender pursuant hereto and other similar such commitments,
agreements or assets, then from time to time the Borrowers shall
pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender or such Lender's holding company
for any such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. Each Borrower shall pay to each
Lender upon demand, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender to such Borrower, from the
date of such Advance until such principal amount is paid in full,
at an interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest
Period. Such additional interest shall be determined by such
Lender and notified to the relevant Borrower and the
Administrative Agent.
(d) Breakage Indemnity. Each Borrower shall indemnify each
Lender against any loss, cost or reasonable expense which such
Lender may sustain or incur as a consequence of (i) any failure
by such Borrower to fulfill on the date of any Borrowing or
conversion of Advances hereunder the applicable conditions
precedent set forth in Articles III and V, (ii) any failure by
such Borrower to borrow any, or convert any outstanding Advance
into a, Eurodollar Rate Advance hereunder after a Notice of
Contract Borrowing has been delivered pursuant to Section 3.01
hereof or after delivery of a notice of conversion pursuant to
Section 3.05(a)(ii) hereof, (iii) any payment, prepayment or
conversion of a Eurodollar Rate Advance made to such Borrower
required or permitted by any other provision of this Agreement or
otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (iv) any default in
payment or prepayment of the principal amount of any Eurodollar
Rate Advance made to such Borrower or any part thereof or
interest accrued thereon, as and when due and payable (at the due
date thereof, by irrevocable notice of prepayment or otherwise)
or (v) the occurrence of any Event of Default with respect to
such Borrower, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Advance or any part thereof
as a Eurodollar Rate Advance. Such loss, cost or reasonable
expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of
obtaining the funds for the Eurodollar Rate Advance being paid,
prepaid, converted or not borrowed for the period from the date
of such payment, prepayment, conversion or failure to borrow to
the last day of the Interest Period for such Advance (or, in the
case of a failure to borrow, the Interest Period for such Advance
which would have commenced on the date of such failure) over
(B) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the
funds so paid, prepaid, converted or not borrowed for such period
or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that in the case of any
Eurodollar Rate Advance, each Lender shall have funded each such
Advance with a fixed-rate instrument bearing the rates and
maturities designated in the determination of the Applicable Rate
for such Advance.
(e) Notices. A certificate of each Lender setting forth
such Lender's claim for compensation hereunder and the amount
necessary to compensate such Lender or its holding company
pursuant to subsections (a) through (d) of this Section 4.03
shall be submitted to the Borrowers and the Administrative Agent
and shall be conclusive and binding for all purposes, absent
manifest error. The Borrowers or appropriate Borrower shall pay
each Lender directly the amount shown as due on any such
certificate within 10 days after its receipt of the same. The
failure of any Lender to provide such notice or to make demand
for payment under this Section 4.03 shall not constitute a waiver
of such Lender's rights hereunder; provided that such Lender
shall not be entitled to demand payment pursuant to
subsections (a) through (d) of this Section 4.03 in respect of
any loss, cost, expense, reduction or reserve, if such demand is
made more than one year following the later of such Lender's
incurrence or sufferance thereof or such Lender's actual
knowledge of the event giving rise to such Lender's rights
pursuant to such subsections. Each Lender shall use reasonable
efforts to ensure the accuracy and validity of any claim made by
it hereunder, but the foregoing shall not obligate any Lender to
assert any possible invalidity or inapplicability of the law,
rule, regulation, guideline or other change or condition which
shall have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other
provision herein, if the adoption of or any change in any law or
regulation or in the interpretation or administration thereof by
any governmental authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to
make or maintain any Eurodollar Rate Advance or to give effect to
its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrowers
and the Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Lender hereunder, whereupon the
right of any Borrower to select Eurodollar Rate Advances for
any Borrowing or conversion shall be forthwith suspended
until such Lender shall withdraw such notice as provided
hereinbelow or shall cease to be a Lender hereunder pursuant
to Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate
Advances be converted to Base Rate Advances, in which event
all Eurodollar Rate Advances shall be automatically
converted to Base Rate Advances as of the effective date of
such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall
promptly notify the other Lenders. Promptly upon becoming aware
that the circumstances that caused such Lender to deliver such
notice no longer exist, such Lender shall deliver notice thereof
to the Borrowers and the Administrative Agent withdrawing such
prior notice (but the failure to do so shall impose no liability
upon such Lender). Promptly upon receipt of such withdrawing
notice from such Lender (or upon such Lender assigning all of its
Commitments, Advances, participation and other rights and
obligations under the Loan Documents in accordance with
Section 10.07(g)), the Administrative Agent shall deliver notice
thereof to the Borrowers and the Lenders and such suspension
shall terminate. Prior to any Lender giving notice to the
Borrowers under this subsection (f), such Lender shall use
reasonable efforts to change the jurisdiction of its Applicable
Lending Office, if such change would avoid such unlawfulness and
would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender. Any notice to the Borrowers by
any Lender shall be effective as to each Eurodollar Rate Advance
on the last day of the Interest Period currently applicable to
such Eurodollar Rate Advance; provided that if such notice shall
state that the maintenance of such Advance until such last day
would be unlawful, such notice shall be effective on the date of
receipt by the Borrowers and the Administrative Agent.
(g) Market Rate Disruptions. If (i) fewer than two
Reference Banks furnish timely information to the Administrative
Agent for determining the Eurodollar Rate for Eurodollar Rate
Advances in connection with any proposed Borrowing or (ii) if the
Majority Lenders shall notify the Administrative Agent that the
Eurodollar Rate will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their
respective Eurodollar Rate Advances, the right of the Borrowers
to select or receive Eurodollar Rate Advances for any Borrowing
shall be forthwith suspended until the Administrative Agent shall
notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist, and until such
notification from the Administrative Agent, each requested
Borrowing of Eurodollar Rate Advances hereunder shall be deemed
to be a request for Base Rate Advances.
(h) Rights of Participants. Any participant in a Lender's
interests hereunder may assert any claim for yield protection
under Section 4.03 that it could have asserted if it were a
Lender hereunder. If such a claim is asserted by any such
participant, it shall be entitled to receive such compensation
from the Borrowers as a Lender would receive in like
circumstances; provided, however, that with respect to any such
claim, the Borrowers shall have no greater liability to the
Lender and its participant, in the aggregate, than it would have
had to the Lender alone had no such participation interest been
created.
(i) Liabilities of Borrowers. Each Borrower shall be
liable for its pro rata share of each payment to be made by the
Borrowers under subsections (a) and (b) of this Section 4.03,
such pro rata share to be determined on the basis of such
Borrower's Fraction; provided, however, that if and to the extent
that any such liabilities are reasonably determined by the
Borrowers (subject to the approval of the Administrative Agent
which approval shall not be unreasonably withheld) to be directly
attributable to Advances made to a specific Borrower, only such
Borrower shall be liable for such payments. .
SECTION 4.04. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise, but excluding any proceeds received by assignments or
sales of participation in accordance with Section 10.07 hereof to
a Person that is not an Affiliate of the Borrowers) on account of
the Advances owing to it (other than pursuant to Section 4.03
hereof) in excess of its ratable share of payments on account of
the Advances obtained by all the Lenders, such Lender shall
forthwith purchase from the other Lenders such participation in
the Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each
of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrowers agree
that any Lender so purchasing a participation from another Lender
pursuant to this Section 4.04 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of any such Borrower
in the amount of such participation. Notwithstanding the
foregoing, if any Lender shall obtain any such excess payment
involuntarily, such Lender may, in lieu of purchasing
participation from the other Lenders in accordance with this
Section 4.04, on the date of receipt of such excess payment,
return such excess payment to the Administrative Agent for
distribution in accordance with Section 4.01(a).
SECTION 4.05. Taxes.
(a) All payments by or on behalf of any Borrower under any
Loan Document shall be made in accordance with Section 4.01, free
and clear of and without deduction for all present or future
taxes, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of
each Lender and the Administrative Agent, taxes imposed on its
overall net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes
imposed on it, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable under any Loan
Document to any Lender or the Administrative Agent, (i) the sum
payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable
to additional sums payable under this Section 4.05) such Lender
or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
by such Borrower under any Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "Other Taxes").
(c) Each Borrower hereby indemnifies each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and any Other Taxes
imposed by any jurisdiction on amounts payable under this
Section 4.05) paid by such Lender or the Administrative Agent (as
the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally
asserted. A Lender's claim for such indemnification shall be set
forth in a certificate of such Lender setting forth in reasonable
detail the amount necessary to indemnify such Lender pursuant to
this subsection (c) and shall be submitted to the Borrowers and
the Administrative Agent and shall be conclusive and binding for
all purposes, absent manifest error. The appropriate Borrower
shall pay such Lender directly the amount shown as due on any
such certificate within 30 days after the receipt of same. If
any Taxes or Other Taxes for which a Lender or the Administrative
Agent has received payments from a Borrower hereunder shall be
finally determined to have been incorrectly or illegally asserted
and are refunded to such Lender or the Administrative Agent, such
Lender or the Administrative Agent, as the case may be, shall
promptly forward to such Borrower any such refunded amount. Each
Borrower's, the Administrative Agent's and each Lender's
obligations under this Section 4.05 shall survive the payment in
full of the Advances.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower making such payment will furnish to the
Administrative Agent, at its address referred to in
Section 10.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of
the United States of America or any state thereof shall, on or
prior to the date it becomes a Lender hereunder, deliver to the
Borrowers and the Administrative Agent such certificates,
documents or other evidence, as required by the Internal Revenue
Code of 1986, as amended from time to time (the "Code"), or
treasury regulations issued pursuant thereto, including Internal
Revenue Service Form W-8BEN or Form W-8ECI and any other
certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any
subsequent version thereof, properly completed and duly executed
by such Lender establishing that it is (i) not subject to
withholding under the Code or (ii) totally exempt from United
States of America tax under a provision of an applicable tax
treaty. Each Lender shall promptly notify the Borrowers and the
Administrative Agent of any change in its Applicable Lending
Office and shall deliver to the Borrowers and the Administrative
Agent together with such notice such certificates, documents or
other evidence referred to in the immediately preceding sentence.
Each Lender will use good faith efforts to apprise the Borrowers
and the Administrative Agent as promptly as practicable of any
impending change in its tax status that would give rise to any
obligation by any Borrower to pay any additional amounts pursuant
to this Section 4.05. Unless the Borrowers and the Administrative
Agent have received forms or other documents satisfactory to them
indicating that payments under the Loan Documents are not subject
to United States of America withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the
Borrowers or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a
jurisdiction outside the United States of America. Each Lender
represents and warrants that each such form supplied by it to the
Administrative Agent and the Borrowers pursuant to this
Section 4.05, and not superseded by another form supplied by it,
is or will be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable
pursuant to this Section 4.05 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any
certificate or document requested by the Borrowers or to change
the jurisdiction of its Applicable Lending Office if the making
of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue
and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness.
The obligations of the Lenders to make Advances hereunder
shall not become effective until the date (the "Closing Date") on
which each of the following conditions is satisfied:
(a) The Administrative Agent shall have received on or
before the Closing Date the following, each dated the Closing
Date, in form and substance satisfactory to the Administrative
Agent and in sufficient copies for each Lender:
(i) Counterparts of this Agreement, duly executed by
each Borrower.
(ii) A certificate of the Secretary or Assistant
Secretary (or analogous officer or representative) of
each Borrower certifying:
(A) the names and true signatures of the officers
of such Borrower authorized to sign the Loan Documents
to be executed and delivered by such Borrower;
(B) that attached thereto are true and correct
copies of: (1) the Articles of Incorporation and By-
laws of such Borrower, together with all amendments
thereto, as in effect on such date; (2) the resolutions
of such Borrower's Board of Directors approving the
execution, delivery and performance by such Borrower of
the Loan Documents to be executed and delivered by such
Borrower; (3) all documents evidencing other necessary
corporate or other similar action, if any, with respect
to the execution, delivery and performance by such
Borrower of the Loan Documents to be executed and
delivered by such Borrower; and (4) true and correct
copies of all Governmental Approvals referred to in
clause (i) of the definition of "Governmental Approval"
required to be obtained by such Borrower in connection
with the execution, delivery and performance by such
Borrower of the Loan Documents to be executed and
delivered by such Borrower (including the required
orders of the Securities and Exchange Commission); and
(C) that the resolutions referred to in the
foregoing clause (B)(2) have not been modified, revoked
or rescinded and are in full force and effect on such
date.
(iii) A certificate signed by the Treasurer or
Assistant Treasurer of each Borrower, certifying as to:
(A) the SEC Borrowing Limit of such Borrower as
in effect on the Closing Date;
(B) the delivery to each of the Lenders, prior to
the Closing Date, of true, correct and complete copies
(other than exhibits thereto) of all of the Disclosure
Documents; and
(C) the absence of any material adverse change in
the financial condition, operations, properties or
prospects of such Borrower since June 30, 2001, except
as disclosed in the Disclosure Documents.
(iv) A certificate of a duly authorized officer of each
Borrower stating that (i) the representations and warranties
of such Borrower contained in Section 6.01 are correct, in
all material respects, on and as of the Closing Date before
and after giving effect to any Advances to be made on such
date and the application of the proceeds thereof, and
(ii) no event has occurred and is continuing with respect to
such Borrower which constitutes an Event of Default or
Unmatured Default in respect of such Borrower, or would
result from such initial Advances or the application of the
proceeds thereof.
(v) Such financial, business and other information
regarding each Borrower and its Subsidiaries, as any Lender
shall have reasonably requested.
(vi) Favorable opinions of:
(A) Xxxxxxx X. Xxxxxx, Assistant General Counsel
of NUSCO, in substantially the form of Exhibit 5.01A
hereto; and as to such other matters as any Lender may
reasonably request; and
(B) King & Spalding, special New York counsel to
the Administrative Agent, in substantially the form of
Exhibit 5.01B hereto and as to such other matters as
any Lender may reasonably request.
(b) The "Commitments" under the Existing Credit Facility
shall have been terminated or expired pursuant to the terms
thereof and all amounts outstanding thereunder shall have been
(or will have been, upon the first Advance and the application of
the proceeds thereof on the Closing Date) paid in full.
(c) Yankee's existing $60,000,000 revolving credit facility
shall have been terminated and all amounts outstanding thereunder
shall have been (or will have been, upon the first Advance and
the application of the proceeds thereof on the Closing Date) paid
in full.
(d) All fees and other amounts payable pursuant to Section
2.02 hereof or pursuant to the Fee Letter shall have been paid
(to the extent then due and payable).
(e) The Administrative Agent shall have received such other
approvals, opinions and documents as the Majority Lenders,
through the Administrative Agent, shall have reasonably requested
as to the legality, validity, binding effect or enforceability of
this Agreement or the financial condition, operations, properties
or prospects of each Borrower.
SECTION 5.02. Conditions Precedent to All Contract
Advances.
The obligation of any Lender to make any Contract Advance to
any Borrower, including the initial Contract Advance to such
Borrower, shall be subject to the conditions precedent that, on
the date of such Contract Advance and after giving effect
thereto:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Contract Borrowing with
respect to such Advance and the acceptance of the proceeds of
such Advance without prior correction by or on behalf of such
Borrower shall constitute a representation and warranty by such
Borrower that on the date of such Advance such statements are
true):
(i) the representations and warranties of such
Borrower contained in Section 6.01 of this Agreement are
correct, in all material respects, on and as of the date of
such Advance, before and after giving effect to such Advance
and to the application of the proceeds therefrom, as though
made on and as of such date;
(ii) no Event of Default or Unmatured Default with
respect to such Borrower has occurred and is continuing on
or as of the date of such Advance or would result from such
Advance or from the application of the proceeds thereof;
(iii) the making of such Advance, when aggregated
with all other Advances outstanding to or requested by such
Borrower would not cause such Borrower's Borrower Sublimit
to be exceeded; and
(iv) the making of such Advance, when aggregated with
all other Advances outstanding to or requested by such
Borrower and all other outstanding short-term debt of such
Borrower would not cause such Borrower's SEC Borrowing Limit
then in effect to be exceeded;
(b) if such Borrower is PSNH, the New Hampshire Order shall
be in full force and effect with all applicable periods of time
for review, rehearing or appeal with respect thereto having
expired; and
(c) such Borrower shall have furnished to the
Administrative Agent such other approvals, opinions or documents
as any Lender may reasonably request through the Administrative
Agent as to the legality, validity, binding effect or
enforceability of any Loan Document.
SECTION 5.03. Reliance on Certificates.
The Lenders and the Administrative Agent shall be entitled
to rely conclusively upon the certificates delivered from time to
time by officers of each Borrower as to the names, incumbency,
authority and signatures of the respective persons named therein
until such time as the Administrative Agent may receive a
replacement certificate, in form acceptable to the Administrative
Agent, from an officer of such Borrower identified to the
Administrative Agent as having authority to deliver such
certificate, setting forth the names and true signatures of the
officers and other representatives of such Borrower thereafter
authorized to act on behalf of such Borrower and, in all cases,
the Lenders and the Administrative Agent may rely on the
information set forth in any such certificate.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the
Borrowers.
Each Borrower represents and warrants with respect to itself
as follows:
(a) Such Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, has the requisite
corporate power and authority to own its property and assets
and to carry on its business as now conducted and is
qualified to do business in every jurisdiction where,
because of the nature of its business or property, such
qualification is required, except where the failure so to
qualify would not have a material adverse effect on the
financial condition, properties, prospects or operations of
such Borrower. Such Borrower has the corporate power to
execute, deliver and perform its obligations under the Loan
Documents and to borrow hereunder.
(b) The execution, delivery and performance of the
Loan Documents by such Borrower are within such Borrower's
corporate powers, have been duly authorized by all necessary
corporate or other similar action, and do not and will not
contravene (i) such Borrower's, charter or by-laws, as the
case may be, or any law or legal restriction or (ii) any
contractual restriction binding on or affecting such
Borrower or its properties.
(c) Except as disclosed in such Borrower's Disclosure
Documents, such Borrower is not in violation of any law or
in default with respect to any judgment, writ, injunction,
decree, rule or regulation (including any of the foregoing
relating to environmental laws and regulations) of any court
or governmental agency or instrumentality where such
violation or default would reasonably be expected to have a
material adverse effect on the financial condition,
properties, prospects or operations of such Borrower.
(d) There has been no material adverse development
with respect to (i) such Borrower's proceedings to divest
its generating assets, or (ii) any orders, plans or
authorizations for recovery of its stranded assets, where
any such development results, or would reasonably be
expected to result, in a material adverse effect on the
financial condition, properties, prospects or operations of
such Borrower, other than as described in the Disclosure
Documents.
(e) All Governmental Approvals referred to in
clause (i) of the definition of "Governmental Approval" have
been duly obtained or made, and all applicable periods of
time for review, rehearing or appeal with respect thereto
have expired, except for the New Hampshire Order. From and
after the date that the New Hampshire Order is obtained,
with all applicable periods of time for review, rehearing or
appeal with respect thereto having expired, all Governmental
Approvals referred to in clause (i) of the definition of
"Governmental Approval" with respect to PSNH shall have been
duly obtained. Such Borrower has obtained or made all
Governmental Approvals referred to in clause (ii) of the
definition of "Governmental Approvals", except (A) those
which are not yet required but which are obtainable in the
ordinary course of business as and when required, (B) those
the absence of which would not materially adversely affect
the financial condition, properties, prospects or operations
of such Borrower and (C) those which such Borrower is
diligently attempting in good faith to obtain, renew or
extend, or the requirement for which such Borrower is
contesting in good faith by appropriate proceedings or by
other appropriate means, in each case described in the
foregoing clause (C), except as is disclosed in such
Borrower's Disclosure Documents, such attempt or contest,
and any delay resulting therefrom, is not reasonably
expected to have a material adverse effect on the financial
condition, properties, prospects or operations of such
Borrower or to magnify to any significant degree any such
material adverse effect that would reasonably be expected to
result from the absence of such Governmental Approval.
(f) The Loan Documents to which such Borrower is a
party are legal, valid and binding obligations of such
Borrower enforceable against such Borrower in accordance
with their respective terms; subject to the qualification,
however, that the enforcement of the rights and remedies
herein and therein is subject to bankruptcy and other
similar laws of general application affecting rights and
remedies of creditors and the application of general
principles of equity (regardless of whether considered in a
proceeding in equity or at law).
(g) The Financial Statements of such Borrower, copies
of which have been provided to the Administrative Agent and
each of the Lenders, fairly present in all material respects
the financial condition and results of operations of such
Borrower (in the case of CL&P and PSNH, on a consolidated
basis) at and for the period ended on the dates thereof, and
have been prepared in accordance with generally accepted
accounting principles consistently applied. Since June 30,
2001, there has been no material adverse change in the
consolidated (or in the case of WMECO and Yankee,
unconsolidated) financial condition, operations, properties
or prospects of such Borrower and its Subsidiaries, if any,
taken as a whole, except as disclosed in such Borrower's
Disclosure Documents.
(h) There is no pending or known threatened action or
proceeding (including, without limitation, any action or
proceeding relating to any environmental protection laws or
regulations) affecting such Borrower or its properties,
before any court, governmental agency or arbitrator (i)
which affects or purports to affect the legality, validity
or enforceability of any Loan Document or (ii) as to which
there is a reasonable possibility of an adverse
determination and which, if adversely determined, would
materially adversely affect the financial condition,
properties, prospects or operations of such Borrower,
except, for purposes of this clause (ii) only, such as is
described in such Borrower's Disclosure Documents or in
Schedule II hereto.
(i) No ERISA Plan Termination Event has occurred nor
is reasonably expected to occur with respect to any ERISA
Plan which would materially adversely affect the financial
condition, properties, prospects or operations of such
Borrower taken as a whole, except as disclosed to the
Lenders and consented to by the Majority Lenders in writing.
Since the date of the most recent Schedule B (Actuarial
Information) to the annual report of each such ERISA Plan
(Form 5500 Series), there has been no material adverse
change in the funding status of the ERISA Plans referred to
therein, and no "prohibited transaction" (as defined in
Section 4975 of the Internal Revenue Code of 1986, as
amended, and in ERISA) has occurred with respect thereto
that, singly or in the aggregate with all other "prohibited
transactions" and after giving effect to all likely
consequences thereof, would be reasonably expected to have a
material adverse effect on the financial condition,
properties, prospects or operations of such Borrower.
Neither such Borrower nor any of its ERISA Affiliates has
incurred nor reasonably expects to incur any material
withdrawal liability under ERISA to any ERISA Multiemployer
Plan, except as disclosed to and consented by the Majority
Lenders in writing.
(j) Such Borrower has good and marketable title (or,
in the case of personal property, valid title) or valid
leasehold interests in its assets, except for (i) minor
defects in title that do not materially interfere with the
ability of such Borrower to conduct its business as now
conducted and (ii) other defects that, either individually
or in the aggregate, do not materially adversely affect the
financial condition, properties, prospects or operations of
such Borrower. All such assets and properties are free and
clear of any Lien, other than Liens permitted under
Section 7.02(a) hereof.
(k) All outstanding shares of capital stock having
ordinary voting power for the election of directors of such
Borrower have been validly issued, are fully paid and
nonassessable and are owned beneficially by NU, free and
clear of any Lien. NU is a "holding company" (as defined in
the Public Utility Holding Company Act of 1935, as amended).
(l) Such Borrower has filed all tax returns (Federal,
state and local) required to be filed and paid taxes shown
thereon to be due, including interest and penalties, or, to
the extent such Borrower is contesting in good faith an
assertion of liability based on such returns, has provided
adequate reserves in accordance with generally accepted
accounting principles for payment thereof.
(m) No exhibit, schedule, report or other written
information provided by or on behalf of such Borrower or its
agents to the Administrative Agent or the Lenders in
connection with the negotiation, execution and closing of
the Loan Documents (including, without limitation, the
Financial Statements and the Information Memorandum (but
excluding the projections contained in the Information
Memorandum)) knowingly contained when made any material
misstatement of fact or knowingly omitted to state any
material fact necessary to make the statements contained
therein not misleading in light of the circumstances under
which they were made. Except as has been disclosed to the
Administrative Agent and each Lender, the projections
delivered concurrently with the Information Memorandum were
prepared in good faith on the basis of assumptions
reasonable as of the date of the Information Memorandum, it
being understood that such projections do not constitute a
warranty or binding assurance of future performance. Except
as has been disclosed to the Administrative Agent and each
Lender, nothing has come to the attention of the responsible
officers of such Borrower that would indicate that any of
such assumptions, to the extent material to such
projections, has ceased to be reasonable in light of
subsequent developments or events.
(n) All proceeds of the Advances shall be used (i) for
the general corporate purposes of such Borrower, including
to provide liquidity support for such Borrower's commercial
paper, and (ii) to provide liquidity to the NU System Money
Pool. No proceeds of any Advance will be used in violation
of, or in any manner that would result in a violation by any
party hereto of, Regulation T, U or X promulgated by the
Board of Governors of the Federal Reserve System or any
successor regulations. Such Borrower (A) is not an
"investment company" within the meaning ascribed to that
term in the Investment Company Act of 1940 and (B) is not
engaged in the business of extending credit for the purpose
of buying or carrying margin stock.
(o) Such Borrower has no Subsidiaries, other than
those listed on Schedule III hereto, each of which is either
inactive or a special purpose entity used solely in
connection with the financing activities of such Borrower,
and none of which, either individually or collectively with
all other Subsidiaries of such Borrower, represents 10% or
more of such Borrower's consolidated assets or 10% or more
of such Borrower's consolidated net income (or loss) on any
date or for any relevant period of determination.
(p) Such Borrower has obtained the insurance specified
in Section 7.01(c) hereof and the same is in full force and
effect.
ARTICLE VII
COVENANTS
SECTION 7.01. Affirmative Covenants of the Borrowers.
On and after the Closing Date, so long as any obligation
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower shall, unless the Majority
Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply the proceeds of each
Advance solely as specified in Section 6.01(n) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before
the same shall become delinquent, all taxes, assessments and
governmental charges, royalties or levies imposed upon it or
upon its property except to the extent such Borrower is
contesting the same in good faith by appropriate proceedings
and has set aside adequate reserves in accordance with
generally accepted accounting principles for the payment
thereof.
(c) Maintenance of Insurance. Maintain, or cause to
be maintained, insurance (including appropriate plans of
self-insurance) covering such Borrower and its properties,
in effect at all times in such amounts and covering such
risks as may be required by law and, in addition, as is
usually carried by companies engaged in similar businesses
and owning similar properties.
(d) Preservation of Existence, Etc.; Disaggregation.
(i) Except as permitted by Section 7.02(b)
hereof, preserve and maintain its existence, corporate
or otherwise, material rights (statutory and otherwise)
and franchises except where the failure to maintain and
preserve such rights and franchises would not
materially adversely affect the financial condition,
properties, prospects or operations of such Borrower.
(ii) In furtherance of the foregoing, and
notwithstanding Section 7.02(b), each Borrower agrees
that it will not, except in accordance with one or more
restructuring plans approved by the appropriate
regulatory authorities, sell, transfer or otherwise
dispose of (by lease or otherwise, and whether in one
or a series of related transactions) any portion of its
generation, transmission or distribution assets in
excess of 10% of the net utility plant assets of such
Borrower, in each case as determined on a cumulative
basis from the date of this Agreement through the
Termination Date by reference to such entity's
published balance sheets.
(e) Compliance with Laws, Etc. Comply in all material
respects with the requirements of all applicable laws,
rules, regulations and orders of any governmental authority,
including, without limitation, any such laws, rules,
regulations and orders issued by the Securities and Exchange
Commission or relating to zoning, environmental protection,
use and disposal of Hazardous Substances, land use,
construction and building restrictions, ERISA and employee
safety and health matters relating to business operations,
except to the extent (i) that such Borrower is contesting
the same in good faith by appropriate proceedings or
(ii) that any such non-compliance, and the enforcement or
correction thereof, would not materially adversely affect
the financial condition, properties, prospects or operations
of such Borrower.
(f) Inspection Rights. At any time and from time to
time upon reasonable notice, permit the Administrative Agent
and its agents and representatives to examine and make
copies of and abstracts from the records and books of
account of, and the properties of, such Borrower and to
discuss the affairs, finances and accounts of such Borrower
(i) with such Borrower and its officers and directors and
(ii) with the consent of such Borrower (which consent shall
not be unreasonably withheld or delayed), with the
accountants of such Borrower.
(g) Keeping of Books. Keep proper records and books
of account, in which full and correct entries shall be made
of all financial transactions of such Borrower and the
assets and business of such Borrower, in accordance with
generally accepted accounting practices consistently
applied.
(h) Conduct of Business. Except as permitted by
Section 7.02(b) but subject in all respects to Section
7.01(d)(ii), conduct its primary business in substantially
the same manner and in substantially the same fields as such
business is conducted on the Closing Date.
(i) Maintenance of Properties, Etc. (i) As to
properties of the type described in Section 6.01(j) hereof,
maintain title of the quality described therein and
preserve, maintain, develop, and operate, in substantial
conformity with all laws, material contractual obligations
and prudent practices prevailing in the industry, all of its
properties which are used or useful in the conduct of its
businesses in good working order and condition, ordinary
wear and tear excepted, except (A) as permitted by Section
7.02(b), but subject nevertheless to Section 7.01(d)(ii),
(B) as disclosed in the Disclosure Documents or otherwise in
writing to the Administrative Agent and the Lenders on or
prior to the date hereof, and (C) to the extent such non-
conformity would not materially adversely affect the
financial condition, properties, prospects or operations of
such Borrower; provided, however, that such Borrower will
not be prevented from discontinuing the operation and
maintenance of any such properties if such discontinuance
is, in the judgment of such Borrower, desirable in the
operation or maintenance of its business and would not
materially adversely affect the financial condition,
properties, prospects or operations of such Borrower.
(j) Governmental Approvals. Duly obtain, on or prior
to such date as the same may become legally required, and
thereafter maintain in effect at all times, all Governmental
Approvals on its part to be obtained, except in the case of
those Governmental Approvals referred to in clause (ii) of
the definition of "Governmental Approvals", (i) those the
absence of which would not materially adversely affect the
financial condition, properties, prospects or operations of
such Borrower and (ii) those which such Borrower is
diligently attempting in good faith to obtain, renew or
extend, or the requirement for which such Borrower is
contesting in good faith by appropriate proceedings or by
other appropriate means; provided, however, that the
exception afforded by clause (ii), above, shall be available
only if and for so long as such attempt or contest, and any
delay resulting therefrom, does not have a material adverse
effect on the financial condition, properties, prospects or
operations of such Borrower and does not magnify to any
significant degree any such material adverse effect that
would reasonably be expected to result from the absence of
such Governmental Approval.
(k) Further Assurances. Promptly execute and deliver
all further instruments and documents, and take all further
action, that may be necessary or that any Lender through the
Administrative Agent may reasonably request in order to
fully give effect to the interests and properties purported
to be covered by the Loan Documents.
SECTION 7.02. Negative Covenants of the Borrowers.
On and after the Closing Date, and so long as any obligation
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower shall not, without the
written consent of the Majority Lenders:
(a) Liens, Etc. Create incur, assume or suffer to exist
any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, except:
(i) any Liens existing on the Closing Date;
(ii) Liens created by the First Mortgage Indentures, so
long as by the terms thereof no "event of default"
(howsoever designated) in respect of any bonds issued
thereunder will arise upon the occurrence of an Unmatured
Default or Event of Default hereunder;
(iii) "Permitted Liens" or "Permitted Encumbrances"
under the First Mortgage Indenture to which any Borrower is
a party and, in the case of WMECO, under the Old WMECO
Indenture, in each case, to the extent such Liens do not
secure Debt of such Borrower;
(iv) any purchase money Lien or construction mortgage
on assets hereafter acquired or constructed by such Borrower
and any Lien on any assets existing at the time of
acquisition thereof by such Borrower or created within 180
days from the date of completion of such acquisition or
construction; provided that such Lien shall at all times be
confined solely to the assets so acquired or constructed and
any additions thereto;
(v) any existing Liens on assets now owned by such
Borrower and Liens existing on assets of a corporation or
other going concern when it is merged into or with such
Borrower or when substantially all of its assets are
acquired by such Borrower; provided that such Liens shall at
all times be confined solely to such assets, or if such
assets constitute a utility system, additions to or
substitutions for such assets;
(vi) Liens resulting from legal proceedings being
contested in good faith by appropriate legal or
administrative proceedings by such Borrower, and as to which
such Borrower, to the extent required by generally accepted
accounting principles applied on a consistent basis, shall
have set aside on its books adequate reserves;
(vii) Liens created in favor of the other
contracting party in connection with advance or progress
payments;
(viii) any Liens in favor of any state of the United
States or any political subdivision of any such state, or
any agency of any such state or political subdivisions, or
trustee acting on behalf of holders of obligations issued by
any of the foregoing or any financial institutions lending
to or purchasing obligations of any of the foregoing, which
Lien is created or assumed for the purpose of financing all
or part of the cost of acquiring or constructing the
property subject thereto;
(ix) Liens resulting from conditional sale agreements,
capital leases or other title retention agreements
including, without limitation, Liens arising under leases of
nuclear fuel from the Niantic Bay Fuel Trust;
(x) with respect to pollution control bond financings,
Liens on funds, accounts and other similar intangibles of
such Borrower created or arising under the relevant
indenture, pledges of the related loan agreement with the
relevant issuing authority and pledges of such Borrower's
interest, if any, in any bonds issued pursuant to such
financings to a letter of credit bank or bond issuer or
similar credit enhancer;
(xi) Liens granted on accounts receivable and
Regulatory Assets in connection with financing transactions,
whether denominated as sales or borrowings;
(xii) any other Liens incurred in the ordinary
course of business otherwise than to secure Debt; and
(xiii) any extension, renewal or replacement of
Liens permitted by clauses (i), (iii) through (v) and (vii)
through (xi); provided, however, that the principal amount
of Debt secured thereby shall not, at the time of such
extension, renewal or replacement, exceed the principal
amount of Debt so secured and that such extension, renewal
or replacement shall be limited to all or a part of the
property which secured the Lien so extended, renewed or
replaced or to other property of no greater value than the
property which secured the Lien so extended, renewed or
replaced.
(b) Mergers, Acquisitions, Sales of Assets, Etc. Merge
with or into or consolidate with or into, any Person, or purchase
or otherwise acquire (whether directly or indirectly) all or
substantially all of the assets or stock of any class of, or any
partnership or joint venture interest in, any other Person, or
sell, transfer, convey, lease or otherwise dispose of all or any
substantial part of its assets; except for the following, and
then only after receipt of all necessary corporate and
governmental or regulatory approvals and provided that, before
and after giving effect to any such merger, consolidation,
purchase, acquisition, sale, transfer, conveyance, lease or other
disposition, no Event of Default or Unmatured Default shall have
occurred and be continuing:
(A) with respect to CL&P, WMECO and PSNH, any
sale, lease, transfer, conveyance or other disposition
of transmission assets (1) to another Subsidiary of NU
on an arms'-length basis as permitted by the
appropriate regulatory authorities or (2) to any Person
on an arms'-length basis as required by the appropriate
regulatory authorities.
(B) the sale of such Borrower's assets in the
ordinary course of business on customary terms and
conditions, including any sale of accounts receivable
on reasonable commercial terms (including a
commercially reasonably discount) to obtain funding for
CL&P and WMECO, as the case may be.
For purposes of this subsection (b), any sale of assets by such
Borrower (in one or a series of transactions) will be deemed to
be a "substantial part" of its assets if (i) the book value of
such assets exceeds 7.5% of the total book value of the assets
(net of Regulatory Assets) of such Borrower, as reflected in the
most recent financial statements of the Borrower delivered to the
Administrative Agent pursuant to Section 7.04 hereof (or, if no
such financial statements have been delivered to the
Administrative Agent as of the relevant date of determination,
the Financial Statements of such Borrower), or (ii) the gross
revenue associated with such assets accounts for more than 7.5%
of the total gross revenue of such Borrower for the four
proceeding fiscal quarters, as reflected in the most recent
financial statements of the Borrower delivered to the
Administrative Agent pursuant to Section 7.04 hereof (or, if no
such financial statements have been delivered to the
Administrative Agent as of the relevant date of determination,
the Financial Statements of such Borrower).
(c) Compliance with ERISA. (i) Terminate, or permit any
ERISA Affiliate thereof to terminate, any ERISA Plan so as to
result in any liability of such Borrower to the PBGC in an amount
greater than $1,000,000, or (ii) permit to exist any occurrence
of any Reportable Event (as defined in Title IV of ERISA) which,
alone or together with any other Reportable Event with respect to
the same or another ERISA Plan, has a reasonable possibility of
resulting in liability of such Borrower to the PBGC in an
aggregate amount exceeding $1,000,000, or any other event or
condition which presents a material risk of such a termination by
the PBGC of any ERISA Plan or has a reasonable possibility of
resulting in a liability of such Borrower to the PBGC in an
aggregate amount exceeding $1,000,000.
(d) Accounting Changes. Make any change in its accounting
policies or reporting practices except as required or permitted
by the Securities and Exchange Commission, the Financial
Accounting Standards Board or any other generally recognized
accounting authority.
(e) Transactions with Affiliates. Engage in any
transaction with any Affiliate except (i) in accordance with the
Public Utility Holding Company Act of 1935, as amended, to the
extent applicable thereto or (ii) on terms no less favorable to
such Borrower than if the transaction had been negotiated in good
faith on an arms-length basis with a non-Affiliate and on
commercially reasonable terms or pursuant to a binding agreement
in effect on the Closing Date.
(f) Interests in Nuclear Plants. Acquire any nuclear plant
or any interest therein not held on the Closing Date, other than
so-called "power entitlements" acquired for use in the ordinary
course of business.
(g) Subsidiaries. Create, acquire or permit to exist, any
Subsidiary, other than (i) Subsidiaries in existence on the
Closing Date and listed on Schedule III hereto and (ii)
Subsidiaries that are either inactive or special purpose entities
used solely in connection with the financing activities of such
Borrower; provided, that none of the Subsidiaries described in
clauses (i) and (ii) above, either individually or collectively
with all other such Subsidiaries, shall represent 10% or more of
such Borrower's consolidated assets or 10% or more of such
Borrower's consolidated net income (or loss) on any date or for
any relevant period of determination.
SECTION 7.03. Financial Covenants of the Borrowers.
On and after the Closing Date, so long as any obligation
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower shall, unless the Majority
Lenders shall otherwise consent in writing:
(a) Consolidated Debt Ratio. Maintain at all times a
ratio of Consolidated Debt to Total Capitalization of no
more than 0.65:1:00.
(b) Interest Coverage Ratio. Maintain, as of the end
of each Fiscal Quarter, with respect to the four Fiscal
Quarters then ended, a ratio of Consolidated EBIT to
Consolidated Interest Expense of at least 2.25:1.00.
SECTION 7.04. Reporting Obligations of the Borrowers.
So long as any obligation hereunder shall remain unpaid or
any Lender shall have any Commitment hereunder, each Borrower
shall, unless the Majority Lenders shall otherwise consent in
writing, furnish or cause to be furnished to the Administrative
Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within ten
days after the occurrence of each Event of Default or
Unmatured Default with respect to such Borrower continuing
on the date of such statement, a statement of the Chief
Financial Officer, Treasurer or Assistant Treasurer of such
Borrower setting forth details of such Event of Default or
Unmatured Default and the action which such Borrower
proposes to take with respect thereto;
(ii) (A) as soon as available, and in any event within
fifty (50) days after the end of each of the first three
Fiscal Quarters of each Fiscal Year of such Borrower, a copy
of such Borrower's Quarterly Report on Form 10-Q (if such
Borrower is required to file such report with the U.S.
Securities and Exchange Commission pursuant to Section 13 or
15 of the U.S. Securities Exchange Act of 1934, as amended)
submitted to the Securities and Exchange Commission with
respect to such quarter, and, with respect to Yankee, and
any other Borrower that ceases to be required to submit such
report, consolidated balance sheets of Yankee and such
Borrower as of the end of such Fiscal Quarter and
consolidated statements of income and retained earnings and
of cash flows of Yankee and such Borrower for the period
commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter, all in reasonable
detail and duly certified (subject to year-end audit
adjustments) by the Chief Financial Officer, Treasurer,
Assistant Treasurer or Comptroller of Yankee and such
Borrower as having been prepared in accordance with
generally accepted accounting principles consistent with
those applied in the preparation of the Financial
Statements; and
(B) concurrently with the delivery of the
financial statements described in the foregoing clause
(a), a certificate of the Chief Financial Officer,
Treasurer, Assistant Treasurer or Comptroller of such
Borrower:
(1) to the effect that such financial
statements were prepared in accordance with
generally accepted accounting principles
consistent with those applied in the preparation
of the Financial Statements,
(2) stating that no Event of Default or
Unmatured Default with respect to such Borrower
has occurred and is continuing or, if an Event of
Default or Unmatured Default with respect to such
Borrower has occurred and is continuing,
describing the nature thereof and the action which
such Borrower proposes to take with respect
thereto, and
(3) demonstrating such Borrower's compliance
with the covenants set forth in Section 7.03
hereof, for and as of the end of such Fiscal
Quarter, in each case such demonstrations to be in
form satisfactory to the Administrative Agent and
to set forth in reasonable detail the computations
used in determining such compliance;
(iii) (A) as soon as available, and in any event
within 105 days after the end of each Fiscal Year of such
Borrower, a copy of such Borrower's report on Form 10-K (if
such Borrower is required to file such report with the U.S.
Securities and Exchange Commission pursuant to Sections 13
or 15 of the U.S. Securities Exchange Act of 1934, as
amended) submitted to the Securities and Exchange Commission
with respect to such Fiscal Year, and, with respect to
Yankee, and any other Borrower that ceases to be required to
submit such report, a copy of the annual audit reports for
such year for Yankee and such Borrower, including therein
consolidated balance sheets of Yankee and such Borrower as
of the end of such Fiscal Year and consolidated statements
of income and retained earnings and of cash flows of Yankee
and such Borrower for such Fiscal Year, all in reasonable
detail and certified by a nationally-recognized independent
public accountant; and
(B) concurrently with the delivery of the
financial statements described in the foregoing clause
(A), a certificate of the Chief Financial Officer,
Treasurer, Assistant Treasurer or Comptroller of such
Borrower:
(1) to the effect that such financial
statements were prepared in accordance with
generally accepted accounting principles
consistent with those applied in the preparation
of the Financial Statements, and
(2) stating that no Event of Default or
Unmatured Default with respect to such Borrower
has occurred and is continuing, or if an Event of
Default or Unmatured Default with respect to such
Borrower has occurred and is continuing,
describing the nature thereof and the action which
such Borrower proposes to take with respect
thereto, and
(3) demonstrating such Borrower's compliance
with the covenants set forth in Section 7.03
hereof, for and as of the end of such Fiscal Year,
in each case such demonstrations to be in form
satisfactory to the Administrative Agent and to
set forth in reasonable detail the computations
used in determining such compliance;
(iv) upon the reasonable request of the Administrative
Agent, but not more than once per Fiscal Quarter, copies of
any or all filings or registrations with, or notices or
reports to, any regulatory authority;
(v) as soon as possible and in any event (A) within 30
days after the Chief Financial Officer, Treasurer or any
Assistant Treasurer of such Borrower knows or has reason to
know that any ERISA Plan Termination Event described in
clause (i) of the definition of ERISA Plan Termination Event
with respect to any ERISA Plan or ERISA Multiemployer Plan
has occurred and (B) within 10 days after such Borrower
knows or has reason to know that any other ERISA Plan
Termination Event with respect to any ERISA Plan or ERISA
Multiemployer Plan has occurred, a statement of the Chief
Financial Officer, Treasurer or Assistant Treasurer of such
Borrower describing such ERISA Plan Termination Event and
the action, if any, which such Borrower proposes to take
with respect thereto;
(vi) promptly after receipt thereof by such Borrower or
any of its ERISA Affiliates from the PBGC, copies of each
notice received by such Borrower or any such ERISA Affiliate
of the PBGC's intention to terminate any ERISA Plan or ERISA
Multiemployer Plan or to have a trustee appointed to
administer any ERISA Plan or ERISA Multiemployer Plan;
(vii) promptly after receipt thereof by such
Borrower or any of its ERISA Affiliates from an ERISA
Multiemployer Plan sponsor, a copy of each notice received
by such Borrower or any of its ERISA Affiliates concerning
the imposition or amount of withdrawal liability in an
aggregate principal amount of at least $10,000,000 pursuant
to Section 4202 of ERISA in respect of which such Borrower
may be liable;
(viii) promptly after such Borrower becomes aware of
the commencement thereof, notice of all actions, suits,
proceedings or other events of the type described in
Section 6.01(h) hereof (including, without limitation, any
action or proceeding relating to any environmental
protection laws or regulations);
(ix) promptly after the filing thereof, copies of each
prospectus (excluding any prospectus contained in any Form S-
8) and Current Report on Form 8-K, if any, which such
Borrower files with the Securities and Exchange Commission
or any successor governmental authority;
(x) promptly after any change in the SEC Borrowing
Limit of such Borrower, notice of the new SEC Borrowing
Limit applicable to such Borrower;
(xi) promptly upon satisfaction of the condition
specified in Section 5.02(b), a a certificate of the
Treasurer or Assistant Treasurer of PSNH stating that the
New Hampshire Order is in full force and effect with all
applicable periods of time for review, rehearing or appeal
with respect thereto having expired; and
(xii) promptly after requested, such other
information respecting the financial condition, operations,
properties or prospects of such Borrower or its Subsidiaries
as the Administrative Agent, or the Majority Lenders through
the Administrative Agent, may from time to time reasonably
request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default.
The following events shall each constitute an "Event of
Default" with respect to a Borrower:
(a) Such Borrower shall fail to pay any principal of
any Advance when due or shall fail to pay any interest
thereon or fees or other amounts payable under the Loan
Documents within two days after the same becomes due; or
(b) Any representation or warranty made by such
Borrower (or any of its officers or agents) in any Loan
Document, any certificate or other writing delivered
pursuant hereto or thereto shall prove to have been
incorrect in any material respect when made or deemed made;
or
(c) Such Borrower shall fail to perform or observe any
term or covenant on its part to be performed or observed
contained in Section 7.01(d), Section 7.02, Section 7.03 or
Section 7.04(i) hereof; or
(d) Such Borrower shall fail to perform or observe any
other term or covenant on its part to be performed or
observed contained in any Loan Document and any such failure
shall remain unremedied for a period of 30 days after the
earlier of (i) written notice of such failure having been
given to such Borrower by the Administrative Agent or
(ii) such Borrower having obtained actual knowledge of such
failure; or
(e) Such Borrower shall fail to pay any of its Debt
when due (including any interest or premium thereon but
excluding Debt outstanding hereunder and excluding other
Debt aggregating in no event more than $10,000,000 in
principal amount at any one time) whether by scheduled
maturity, required prepayment, acceleration, demand or
otherwise, and such failure shall continue after the
applicable grace period, if any, specified in any agreement
or instrument relating to such Debt; or any other default
under any agreement or instrument relating to any such Debt,
or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement
or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity
of such Debt; or any such Debt shall be declared to be due
and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment or as a result of
such Borrower's exercise of a prepayment option) prior to
the stated maturity thereof; or
(f) Such Borrower shall generally not pay its debts as
such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make an
assignment for the benefit of creditors; or any proceeding
shall be instituted by or against such Borrower seeking to
adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of its debts
under any law relating to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any
substantial part of its property and, in the case of a
proceeding instituted against such Borrower such Borrower
shall consent thereto or such proceeding shall remain
undismissed or unstayed for a period of 90 days or any of
the actions sought in such proceeding (including without
limitation the entry of an order for relief against such
Borrower or the appointment of a receiver, trustee,
custodian or other similar official for such Borrower or any
of its property) shall occur; or such Borrower shall take
any corporate or other action to authorize any of the
actions set forth above in this subsection (f); or
(g) Any judgments or orders for the payment of money
in excess of $10,000,000 (or aggregating more than
$10,000,000 at any one time) shall be rendered against such
Borrower or its properties, and either (A) enforcement
proceedings shall have been commenced by any creditor upon
such judgment or order and shall not have been stayed or
(B) there shall be any period of 15 consecutive days during
which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in
effect; or
(h) Any material provision of any Loan Document to
which such Borrower is a party shall at any time for any
reason cease to be valid and binding on such Borrower, or
shall be determined to be invalid or unenforceable by any
court, governmental agency or authority having jurisdiction
over such Borrower, or such Borrower shall deny that it has
any further liability or obligation under any Loan Document;
or
(i) NU shall cease to beneficially own, free and clear
of any Liens, at least 85% of all outstanding shares of
capital stock having ordinary voting power for the election
of directors of such Borrower; or
(j) A Change of Control shall have occurred.
SECTION 8.02. Remedies Upon Events of Default.
Upon the occurrence and during the continuance of any Event
of Default with respect to a Borrower, the Administrative Agent
shall at the request, or may with the consent, of the Lenders
entitled to make such request, upon notice to such Borrower
(i) declare the obligation of each Lender to make Advances to
such Borrower to be terminated, whereupon such obligation of each
Lender shall forthwith terminate, provided, that any such request
or consent pursuant to this clause (i) shall be made solely by
Lenders having Percentages in the aggregate of not less 66-2/3%;
and (ii) declare the Advances made to such Borrower, all interest
thereon and all other amounts payable by such Borrower under this
Agreement and the other Loan Documents to be forthwith due and
payable, whereupon such Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each Borrower, provided,
that any such request or consent pursuant to this clause (ii)
shall be made solely by the Lenders holding at least 66-2/3% of
the then aggregate unpaid principal amount of the Advances owing
by such Borrower, provided, that if such Event of Default is an
Event of Default pursuant to subsection (f) of Section 8.01, then
(A) the obligation of each Lender to make Advances to such
Borrower shall automatically be terminated and (B) the Advances
made to such Borrower, all such interest and all such amounts
shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Borrower.
ARTICLE IX
THE AGENT
SECTION 9.01. Authorization and Action.
Each Lender hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection
thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall
be binding upon all Lenders; provided, however, that the
Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or
which is contrary to the Loan Documents or applicable law. The
Administrative Agent agrees to deliver promptly to each Lender
notice of each notice given to it by a Borrower pursuant to the
terms of this Agreement.
SECTION 9.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with any Loan Document, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may
treat each Lender party hereto as a "Lender" hereunder and for
all purposes hereof until the Administrative Agent receives and
accepts a Lender Assignment entered into by such Lender, as
assignor, and an assignee, as provided in Section 10.07; (ii) may
consult with legal counsel (including counsel for the
Borrower(s)), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Lender and shall not be
responsible to any Lender for the Information Memorandum or any
other statements, warranties or representations made in or in
connection with any Loan Document; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on
the part of any Borrower to be performed or observed, or to
inspect any property (including the books and records) of any
Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of any Loan Document by acting upon
any notice, consent, certificate or other instrument or writing
(which may be by facsimile) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 9.03. Citibank and Affiliates.
With respect to its Commitment and the Advances made by it,
Citibank shall have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though
it were not the Administrative Agent and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates
may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with,
any Borrower, any of their respective Subsidiaries and any Person
who may do business with or own securities of any Borrower or any
such Subsidiary, all as if Citibank were not the Administrative
Agent and without any duty to account therefor to the Lenders.
SECTION 9.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on the Information Memorandum and the Financial
Statements and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 9.05. Indemnification.
The Lenders agree to indemnify the Administrative Agent (to
the extent not reimbursed by the Borrowers), ratably according to
their respective Commitments (or, if the Commitments have been
terminated, ratably according to the respective principal amounts
of the Advances then held by each of them (provided, that if any
Commitments or Advances are held by any Borrower or Affiliates
thereof, any ratable apportionment hereunder shall exclude their
respective Commitments hereunder or the principal amount of the
Advances held by such Borrower(s) or Affiliates)), from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative
Agent in its capacity as such in any way relating to or arising
out of any Loan Document or any action taken or omitted by the
Administrative Agent in its capacity as such under any Loan
Document, provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon
demand for such Lender's ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, the
Loan Documents to the extent that the Administrative Agent is
entitled to reimbursement for such expenses pursuant to Section
10.04 but is not reimbursed for such expenses by the Borrowers.
SECTION 9.06. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers, with any
such resignation to become effective only upon the appointment of
a successor Administrative Agent pursuant to this Section 9.06.
Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor Administrative Agent, which shall be
a Lender or another commercial bank or trust company reasonably
acceptable to the Borrowers organized or licensed under the laws
of the United States, or of any State thereof. If no successor
Administrative Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent,
which shall be Lender or shall be another commercial bank or
trust company organized or licensed under the laws of the United
States or of any State thereof reasonably acceptable to the
Borrowers. In addition to the foregoing right of the
Administrative Agent to resign, the Majority Lenders may remove
the Administrative Agent at any time, with or without cause,
concurrently with the appointment by the Majority Lenders of a
successor Administrative Agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder
as Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under the Loan
Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc.
No amendment or waiver of any provision of any Loan
Document, nor consent to any departure by any Borrower therefrom,
shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver
or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive,
modify or eliminate any of the conditions specified in Article V,
(b) increase the Commitment of any Lender hereunder or increase
the Commitments of the Lenders that may be maintained hereunder
or increase any Borrower Sublimit or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest
on, the Advances, any Applicable Margin or any fees or other
amounts payable hereunder (other than fees payable to the
Administrative Agent pursuant to Section 2.02(b) hereof),
(d) postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable
under the Loan Documents (other than fees payable to the
Administrative Agent pursuant to Section 2.02(b) hereof),
(e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders
which shall be required for the Lenders or any of them to take
any action under the Loan Documents, (f) amend any Loan Document
in a manner intended to prefer one or more Lenders over any other
Lenders, or (g) amend this Section 10.01; and provided, further,
that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent, in addition to the Lenders
required above to take such action, affect the rights or duties
of the Administrative Agent under any Loan Document.
SECTION 10.02. Notices, Etc.
Except as otherwise expressly provided herein, all notices
and other communications provided for under the Loan Documents
shall be in writing (including facsimile communication) and
mailed, sent by facsimile or hand delivered:
(vi) if to any Borrower, to it in care of NUSCO at 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxx 00000, Attention: Assistant
Treasurer, facsimile number: (000) 000-0000, confirm
number: (000) 000-0000;
(vii)if to any Bank, at its Domestic Lending Office
specified opposite its name on Schedule I hereto;
(viii) if to any Lender other than a Bank, at its Domestic
Lending Office specified in the Lender Assignment
pursuant to which it became a Lender; and
(ix) if to the Administrative Agent, at its address at Xxx
Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000,
Attention: Bank Loan Services, facsimile number:
(000) 000-0000, with a copy to Citibank, N.A.,
Global Power Group, 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx,
Xx., Managing Director, facsimile number: (000) 000-0000,
confirm number: (000) 000-0000;
or, as to each party, at such other address as shall be
designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed,
sent by facsimile or hand delivered, be effective five days after
when deposited in the mails, or when sent by facsimile, or when
delivered, respectively, except that notices and communications
to the Administrative Agent pursuant to Article II, III, IV or IX
shall not be effective until received by the Administrative
Agent. With respect to any telephone notice given or received by
the Administrative Agent pursuant to Section 3.03 hereof, the
records of the Administrative Agent shall be conclusive for all
purposes.
SECTION 10.03. No Waiver of Remedies.
No failure on the part of the Administrative Agent or any
Lender to exercise, and no delay in exercising, any right under
any Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification.
(a) The Borrowers agree to pay when due, in accordance with
the terms hereof: (i) all costs and expenses of the
Administrative Agent in connection with the preparation,
negotiation, execution and delivery of the Loan Documents, the
administration of the Loan Documents, and any proposed
modification, amendment, or consent relating thereto (including,
in each case, the reasonable fees and expenses of counsel to the
Administrative Agent) and (ii) all costs and expenses of the
Administrative Agent and each Lender (including all fees and
expenses of counsel) in connection with the enforcement, whether
through negotiations, legal proceedings or otherwise, of the Loan
Documents.
(b) The Borrowers hereby agree to indemnify and hold the
Administrative Agent and each Lender, and its officers,
directors, employees, professional advisors and affiliates (each,
an "Indemnified Person") harmless from and against any and all
claims, damages, losses, liabilities, costs or expenses
(including reasonable attorney's fees and expenses, whether or
not such Indemnified Person is named as a party to any proceeding
or investigation or is otherwise subjected to judicial or legal
process arising from any such proceeding or investigation) which
any of them may incur or which may be claimed against any of them
by any person or entity (except to the extent such claims,
damages, losses, liabilities, costs or expenses arise from the
gross negligence or willful misconduct of the Indemnified
Person):
(i) by reason of or in connection with the execution,
delivery or performance of the Loan Documents or any
transaction contemplated thereby, or the use by any Borrower
of the proceeds of any Advance;
(ii) in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Substance (A) at, upon or under any property of any of the
Borrowers or any of their respective Affiliates or (B) by or
on behalf of any of the Borrowers or any of their respective
Affiliates at any time and in any place; or
(iii) in connection with any documentary taxes,
assessments or charges made by any governmental authority by
reason of the execution and delivery of the Loan Documents.
(c) The Borrowers' obligations under this Section 10.04
shall survive the assignment by any Lender pursuant to
Section 10.07 hereof and shall survive as well the repayment of
all amounts owing to the Lenders under the Loan Documents and the
termination of the Commitments. If and to the extent that the
obligations of the Borrowers under this Section 10.04 are
unenforceable for any reason, the Borrowers agree to make the
maximum contribution to the payment and satisfaction thereof
which is permissible under applicable law.
(d) The Borrowers' obligations under this Section 10.04 are
in addition to and shall not be deemed to supersede their
indemnification and similar obligations set forth in that certain
Commitment Letter dated as of October 31, 2001 among the
Borrowers, Citibank, Xxxxxxx Xxxxx Xxxxxx, Inc. and Banc One
Capital Markets, Inc.
(e) Each Borrower shall be liable for its pro rata share of
any payment to be made by the Borrowers under this Section 10.04,
such pro rata share to be determined on the basis of such
Borrower's Fraction; provided, however, that if and to the extent
that any such liabilities are reasonably determined by the
Borrowers (subject to the approval of the Administrative Agent
which approval shall not be unreasonably withheld) to be directly
attributable to a specific Borrower, only such Borrower shall be
liable for such payments.
SECTION 10.05. Right of Set-off.
(a) Upon (i) the occurrence and during the continuance of
any Event of Default with respect to any Borrower, and (ii) the
making of the request or the granting of the consent specified by
Section 8.02 to authorize the Administrative Agent to declare the
Advances due and payable pursuant to the provisions of Section
8.02, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account
of such Borrower against any and all of the obligations of such
Borrower now or hereafter existing under the Loan Documents held
by such Lender, irrespective of whether or not such Lender shall
have made any demand under the Loan Documents and although such
obligations may be unmatured. Each Lender agrees promptly to
notify such Borrower after any such set-off and application made
by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
(b) Each Borrower agrees that it shall have no right of
off-set, deduction or counterclaim in respect of its obligations
under the Loan Documents, and that the obligations of the Lenders
hereunder are several and not joint. Nothing contained herein
shall constitute a relinquishment or waiver of such Borrower's
rights to any independent claim that such Borrower may have
against the Administrative Agent or any Lender, but no Lender
shall be liable for the conduct of the Administrative Agent or
any other Lender, and the Administrative Agent shall not be
liable for the conduct of any Lender.
SECTION 10.06. Binding Effect.
This Agreement shall become effective when it shall have
been executed by each Borrower, the Administrative Agent and when
the Administrative Agent shall have been notified by each Bank
that such Bank has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrowers, the
Administrative Agent and each Lender and their respective
successors and assigns, except that the Borrowers shall not have
the right to assign their rights under the Loan Documents or any
interest herein without the prior written consent of the Lenders.
SECTION 10.07. Assignments and Participation.
(a) Each Lender may assign to one or more banks or other
entities all or a portion of its rights and obligations under the
Loan Documents, including, without limitation, all or a portion
of its Commitment and the Advances owing to it (with the prior
written consent of the Borrowers and the Administrative Agent if
the assignee thereunder is not then a Lender or an Affiliate of a
Lender, which consent shall not be unreasonably withheld);
provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations under the Loan Documents, (ii) if
the assignee thereunder is not then a Lender or an Affiliate of a
Lender, the amount of the Commitment or Advance being assigned
pursuant to each such assignment shall in no event be less than
the lesser of the amount of the assigning Lender's Commitment and
$5,000,000, and (iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an assignment and
acceptance in substantially the form of Exhibit 10.07 hereto (the
"Lender Assignment"), together with a processing and recordation
fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Lender Assignment, which effective date shall be at least five
Business Days after the execution thereof, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights
and obligations under the Loan Documents have been assigned to it
pursuant to such Lender Assignment, have the rights and
obligations of a Lender under the Loan Documents and (y) the
Lender assignor thereunder shall, to the extent that rights and
obligations under the Loan Documents have been assigned by it to
an assignee pursuant to such Lender Assignment, relinquish its
rights and be released from its obligations under the Loan
Documents (and, in the case of a Lender Assignment covering all
or the remaining portion of an assigning Lender's rights and
obligations under the Loan Documents, such Lender shall cease to
be a party to the Loan Documents); provided, however, if an Event
of Default shall have occurred and be continuing a Lender may
assign all or a portion of its rights and obligations without the
prior written consent of the Borrowers but otherwise in
accordance with this Section.
(b) By executing and delivering a Lender Assignment, the
Lender assignor thereunder and the assignee thereunder confirm to
and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Lender Assignment,
such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan
Documents or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under the
Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) such assignee confirms that it has
received a copy of the Loan Documents, together with copies of
the Financial Statements, or the latest financial statements
delivered by the Borrowers to the Administrative Agent pursuant
to Section 7.04 hereof, and such other documents and information
as it has deemed appropriate to make its own credit analysis and
decision to enter into such Lender Assignment; (iv) such assignee
will, independently and without reliance upon the Administrative
Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents; (v) such assignee
appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Administrative Agent
by the terms thereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be
performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 10.02 a copy of each Lender Assignment
delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrowers, the Administrative
Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes
of the Loan Documents. The Register shall be available for
inspection by the Borrowers or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an
assigning Lender and an assignee, the Administrative Agent shall,
if such Lender Assignment has been completed and is in
substantially the form of Exhibit 10.07 hereto, (i) accept such
Lender Assignment, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the
Borrowers.
(e) Each Lender may sell participations to one or more
banks or other entities in or to all or a portion of its rights
and obligations under the Loan Documents (including, without
limitation, all or a portion of its Commitment and the Advances
owing to it); provided, however, that (i) such Lender's
obligations under the Loan Documents (including, without
limitation, its Commitment hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) such Lender shall remain a "Lender" hereunder and for all
purposes of the Loan Documents, (iv) the Borrowers, the
Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents, and
(v) the holder of any such participation, other than an Affiliate
of such Lender, shall not be entitled to require such Lender to
take or omit to take any action under the Loan Documents, except
action (A) reducing the principal of, or interest on, the
Advances, any Applicable Margin or any fees or other amounts
payable under the Loan Documents (other than fees payable
pursuant to Section 2.02(b) hereof) or (B) postponing any date
fixed for any payment of principal of, or interest on, the
Advances or any fees or other amounts payable under the Loan
Documents (other than fees payable pursuant to Section 2.02(b)
hereof).
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or proposed participation
pursuant to this Section 10.07, disclose to the assignee or
participant or proposed assignee or proposed participant, any
information relating to the Borrowers furnished to such Lender by
or on behalf of the Borrowers; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or
participant shall agree, in accordance with the terms of
Section 10.08, to preserve the confidentiality of any
Confidential Information received by it from such Lender.
(g) If any Lender shall have delivered a notice to the
Administrative Agent described in Section 4.03(a), (b), (c) or
(f) hereof, or shall become a non-performing Lender under Section
3.03(b) hereof, and if and so long as such Lender shall not have
withdrawn such notice or corrected such non-performance in
accordance with Section 3.03(b), the Borrowers may demand that
such Lender assign, in accordance with Section 10.07 hereof, to
one or more assignees designated by either the Borrowers or the
Administrative Agent (and reasonably acceptable to the other),
all (but not less than all) of such Lender's Commitment,
Advances, participation and other rights and obligations under
the Loan Documents; provided that any such demand by the
Borrowers during the continuance of an Event of Default or an
Unmatured Default shall be ineffective without the consent of the
Majority Lenders. If, within 30 days following any such demand
by the Borrowers, any such assignee so designated shall fail to
tender such assignment on terms reasonably satisfactory to the
Borrowers and the Borrowers and the Administrative Agent shall
have failed to designate any such assignee, then such demand by
the Borrowers shall become ineffective, it being understood for
purposes of this provision that such assignment shall be
conclusively deemed to be on terms reasonably satisfactory to
such Lender, and such Lender shall be compelled to tender such
assignment forthwith, if (i) such assignee (A) shall agree to
such assignment in substantially the form of the Lender
Assignment and (B) shall tender payment to such Lender in an
amount equal to the full outstanding dollar amount accrued in
favor of such Lender hereunder (as computed in accordance with
the records of the Administrative Agent) and (ii) in the event
the Borrowers demanded such assignment, the Borrowers shall
tender payment to the Administrative Agent of the processing and
recording fee specified in Section 10.07(a) for such assignment.
(h) Anything in this Section 10.07 to the contrary
notwithstanding, any Lender may assign and pledge all or any
portion of its Commitment and the Advances owing to it to any
Federal Reserve Bank (and its transferees) as collateral security
pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
SECTION 10.08. Confidentiality.
In connection with the negotiation and administration of the
Loan Documents, the Borrowers have furnished or caused to have
furnished and will from time to time furnish or cause to be
furnished to the Administrative Agent and the Lenders (each, a
"Recipient") written information which when delivered to the
Recipient will be deemed to be confidential (such information,
other than any such information which (i) was publicly available,
or otherwise known to the Recipient, at the time of disclosure,
(ii) subsequently becomes publicly available other than through
any act or omission by the Recipient or (iii) otherwise
subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his
or its obligations to the Borrowers, being hereinafter referred
to as "Confidential Information"). The Recipient will not
knowingly disclose any such Confidential Information to any third
party (other than to those persons who have a confidential
relationship with the Recipient), and will take all reasonable
steps to restrict access to such information in a manner designed
to maintain the confidential nature of such information, in each
case until such time as the same ceases to be Confidential
Information or as the Borrowers may otherwise instruct. It is
understood, however, that the foregoing will not restrict the
Recipient's ability to freely exchange such Confidential
Information with prospective participants in or assignees of the
Recipient's position herein, but the Recipient's ability to so
exchange Confidential Information shall be conditioned upon any
such prospective participant's entering into an understanding as
to confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of
any or all Confidential Information if and to the extent that
such disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's
records by appropriate authorities, (ii) pursuant to court order,
subpoena or other legal process or (iii) otherwise, as required
by law; in the event of any required disclosure under clause (ii)
or (iii), above, the Recipient agrees to use reasonable efforts
to inform the Borrowers as promptly as practicable unless the
Lender is prohibited from doing so by court order, subpoena or
other legal process.
SECTION 10.09. Waiver of Jury Trial.
Each of the Borrowers, the Administrative Agent and the
Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim arising out of or relating
to the Loan Documents, or any other instrument or document
delivered hereunder or thereunder.
SECTION 10.10. Governing Law.
The Loan Documents shall be governed by, and construed in
accordance with, the laws of the State of New York. Each of the
Borrowers, the Lenders and the Administrative Agent:
(i) irrevocably submits to the jurisdiction of any New York State
Court or Federal court sitting in New York City in any action
arising out of or relating to the Loan Documents, (ii) agrees
that all claims in such action may be decided in such court,
(iii) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum and (iv) consents to the service
of process by mail. A final judgment in any such action shall be
conclusive and may be enforced in other jurisdictions. Nothing
herein shall affect the right of any party to serve legal process
in any manner permitted by law or affect its right to bring any
action in any other court.
SECTION 10.11. Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or
implied, of any Loan Document, or actions taken or to be taken by
any party thereunder, shall be construed to create a partnership,
association, or joint venture between such parties or any of
them. No term or provision of any Loan Document shall be
construed to confer a benefit upon, or grant a right or privilege
to, any Person other than the parties hereto.
SECTION 10.12. Execution in Counterparts
This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same
agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE CONNECTICUT LIGHT AND
POWER COMPANY
By:__________________________
Name: Xxxxx X. Xxxxx
Title: Treasurer
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By: __________________________
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer -
Finance
YANKEE GAS SERVICES
COMPANY
By: __________________________
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer
PUBLIC SERVICE COMPANY
OF NEW HAMPSHIRE
By: __________________________
Name: Xxxxx X. Xxxxx
Title: Assistant Treasurer -
Finance
CITIBANK, N.A.,
as Administrative Agent
By:__________________________
Name:
Title:
The Banks:
Commitment: $29,615,384.62 CITIBANK, N.A.
By__________________________
Name:
Title:
Commitment: $29,615,384.62 UNION BANK OF CALIFORNIA, N.A.
By __________________________
Name:
Title:
Commitment: $29,615,384.62 BANK ONE, NA
By __________________________
Name:
Title:
Commitment: $29,615,384.62 BARCLAYS BANK PLC
By__________________________
Name:
Title:
Commitment: $29,601,923.08 FLEET NATIONAL BANK
By__________________________
Name:
Title:
Commitment: $29,601,923.08 TORONTO DOMINION (TEXAS), INC.
By__________________________
Name:
Title:
Commitment: $23,342,307.69 THE BANK OF NEW YORK
By__________________________
Name:
Title:
Commitment: $23,342,307.69 THE BANK OF NOVA SCOTIA
By__________________________
Name:
Title:
Commitment: $23,342,307.69 JPMORGAN CHASE BANK
By__________________________
Name:
Title:
Commitment: $18,846,153.85 THE INDUSTRIAL BANK OF JAPAN
By__________________________
Name:
Title:
Commitment: $18,846,153.85 BNP PARIBAS
By__________________________
Name:
Title:
Commitment: $18,846,153.85 CITIZENS BANK OF MASSACHUSETTS
By__________________________
Name:
Title:
Commitment: $18,846,153.85 BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By__________________________
Name:
Title:
Commitment: $13,461,538.46 MELLON BANK, N.A.
By__________________________
Name:
Title:
Commitment: $13,461,538.46 ARAB BANKING CORPORATION
By__________________________
Name:
Title:
Total of Commitments: $350,000,000
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Bank Domestic Lending Eurodollar Lending
Office Office
Barclays Bank PLC 00 Xxxx Xxxxxx, 00xx 00 Xxxx Xxxxxx, 00xx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Citibank, NA Xxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxxx
0xx Xxxxx, Zone 2 7th Floor, Zone 0
Xxxx Xxxxxx Xxxx, XX Xxxx Xxxxxx Xxxx, XX
00000 11120
Bank One, NA 1 Bank Xxx Xxxxx 0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Union Bank of 000 Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, N.A. Street Street
00xx Xxxxx 00xx Xxxxx
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
The Bank of Xxx Xxxx Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxx Xxxx xx Xxxx 00 Xxxxx Xxxxxx 28 State Street
Scotia Xxxxxx, XX 00000 Xxxxxx, XX 00000
XX Xxxxxx Xxxxx 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Fleet National Bank One Federal Street Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
The Industrial Bank of 1251 Avenue of the 1251 Avenue of the
Japan Americas Americas
New York, NY 10020- Xxx Xxxx, XX 00000-
1104 1104
Mellon Bank, N.A. One Mellon Bank Xxx Xxxxxx Xxxx
Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
BNP Paribas 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Toronto Dominion 00 Xxxx 00xx Xxxxxx 31 West 52nd Street
(Texas), Inc. Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Bayerische Hypo- und 000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxx Branch
Vereinsbank AG, New Xxx Xxxx, XX 00000 c/o New York Branch
York 000 Xxxx 00xx Xxxxxx
Xxxxxx Xxx Xxxx, XX 00000
Citizens Bank of 00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxxxxxxxxx Xxxxxx, XX 00000 Xxxxxx, XX 00000
Arab Banking To be provided. To be provided.
Corporation
SCHEDULE II
PENDING ACTIONS
None.
SCHEDULE III
SUBSIDIARIES
A. CL&P
1. CL&P Receivables Corporation
2. Electric Power Incorporated (inactive)
3. The Nutmeg Power Company (inactive)
4. The Connecticut Steam Company (inactive)
5. CL&P Capital L.P.
B. WMECO
1. WMECO Funding LLC
C. YANKEE
None.
D. PSNH
1. PSNH Funding LLC
2. Properties, Inc.
