Exhibit 10.23
$60,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Among
YANKEE GAS SERVICES COMPANY
THE BANKS LISTED ON ANNEX A HERETO
and
THE BANK OF NEW YORK,
as Agent
Dated as of February 2, 1995
TABLE OF CONTENTS
Page
ARTICLE 1
CREDIT FACILITIES...........................................1
1.01. Revolving Credit Facility............................1
1.02. Manner of Borrowing..................................1
1.03. Bid Loan Facility....................................3
1.04. Interest.............................................5
(a) Rates..................................................5
(b) Payment................................................5
(c) Conversion and Continuation............................6
(d) Maximum Interest Rate..................................6
1.05. Repayment............................................7
1.06. Prepayments..........................................7
1.07. Minimum Amount of Loans..............................7
1.08. Cancellation or Reduction of Commitments.............8
1.09. Facility Fee.........................................8
1.10. Agent's Fees.........................................8
1.11. Computation of Interest..............................8
1.12. Payments by the Borrower.............................8
1.13. Evidence of Indebtedness.............................10
1.14. Pro Rata Treatment...................................10
ARTICLE 2
CONDITIONS TO EFFECTIVENESS.................................11
2.01. Conditions to Restatement Effective Date.............11
2.02. Conditions to Each Loan..............................12
2.03. Special Additional Conditions to Bid Loans...........12
2.04. Special Conditions to Refunding Loans................13
2.05. Extension of Termination Date........................13
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES OF THE BORROWER......13
3.01. Organization; Power; Qualification...................14
3.02. Authorization; Enforceability; Required Consents;
Absence of Conflicts........................................14
3.03. Subsidiaries.........................................14
3.04. Governmental Approvals...............................14
3.05. Debt; Liabilities....................................15
3.06. Litigation...........................................15
3.07. Environmental Matters................................15
3.08. ERISA................................................15
3.09. Tax Returns and Payments.............................15
3.10. No Material Adverse Change or Event..................16
3.11. Investment Company Act; Public Utility Holding
Company Act.................................................16
ARTICLE 4
COVENANTS.....................................................16
4.01. Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of Taxes and Claims....16
4.02. Insurance...............................................16
4.03. Use of Proceeds........................................17
4.04. Merger or Consolidation................................17
4.05. Disposition of Assets..................................17
4.06. Taxes of Other Persons.................................17
4.07. Benefit Plans..........................................17
4.08. Transactions with Affiliates...........................17
4.09. Liens..................................................18
4.10. Equity Ratio...........................................18
4.11. Consolidated Stockholders' Equity......................18
4.12. Consolidated Cash Coverage Ratio.......................18
ARTICLE 5
FINANCIAL STATEMENTS AND INFORMATION...........................18
5.01. Financial Statements and Information to Be Furnished....18
(a) Quarterly Financial Statements; Officer's Certificate.....18
(b) Year-End Financial Statements; Accountant's and Officer's
Certificates...................................................19
(c) Additional Materials......................................19
(i) Reports and Filings.......................................19
(ii) Requested Materials.......................................19
(d) Notice of Defaults, Litigation and Other Matters..........20
5.02. Accuracy of Financial Statements and Information........20
(a) Historical Financial Statements...........................20
(b) Future Financial Statements...............................20
(d) Historical Information....................................21
(e) Future Information........................................21
5.03. Additional Covenants Relating to Disclosure.............22
(a) Accounting Methods and Financial Records..................22
(b) Visits and Inspections....................................22
ARTICLE 6
DEFAULT........................................................22
6.01. Events of Default........................................22
6.02. Remedies upon Event of Default...........................25
ARTICLE 7
LIBOR AND BASE RATE LOAN PROVISIONS............................25
7.01. Mandatory Suspension and Conversion of LIBOR Loans......25
7.02. Regulatory Changes......................................26
7.03. Change of Lending Office................................27
7.04. Funding Losses..........................................27
7.05. Determinations..........................................27
ARTICLE 8
THE AGENT......................................................28
8.01. Appointment and Powers..................................28
8.02. Limitation on Agent's LiabilitY.........................28
8.03. Defaults................................................29
8.04. Rights as a Bank........................................29
8.05. Indemnification.........................................29
8.06. Non-Reliance on Agent and Other Banks...................30
8.07. Resignation of the Agent................................30
ARTICLE 9
MISCELLANEOUS..................................................31
9.01. Notices.................................................31
9.02. Expenses; Indemnification...............................32
9.03. Rights Cumulative.......................................34
9.04. Waivers; Amendments.....................................34
9.05. Set-Off.................................................35
9.06. Sharing of Recoveries...................................35
9.07. Assignment..............................................36
9.08. Participations..........................................37
9.09. Governing Law...........................................38
9.10. Judicial Proceedings; Waiver of Jury Trial..............38
9.11. Exemption from Withholding..............................38
9.12. Severability of Provisions..............................39
9.13. Survival of Obligations.................................39
9.14. Entire Agreement........................................40
9.15. Counterparts............................................40
9.16. Successors and Assigns..................................40
ARTICLE 10
INTERPRETATION.................................................40
10.01. Definitional Provisions................................40
(a) Defined Terms.............................................40
(b) Other Definitional Provisions.............................53
10.02. Accounting Matters.....................................54
10.03. Representations and Warranties.........................54
10.04. Captions...............................................55
Annex A Banks, Lending Offices, Notice Addresses and Commitments
Schedule 1.02 Notice of Borrowing
Schedule 1.03(b)Bid Borrowing Notice
Schedule 1.03(c)Form of Bid
Schedule 1.03(e)Notice of Acceptance of Bid(s)
Schedule 2.01(a)Borrower's Certificate as to Resolutions,etc.
Schedule 2.01(d) Opinion of Counsel for the Borrower and its
Subsidiaries
Schedule 2.01(f) Certificate of Negotiating Officer
Schedule 3.03 Subsidiaries
Schedule 3.08 ERISA Plans
Schedule 4.09 Liens
Schedule 5.01(a) Officer's Certificate as to Quarterly Financial
Statements; Compliance
Schedule 5.01(b)Officer's Certificate as to Year-End Financial
Statements; Compliance
Exhibit A-1 Base Rate Note
Exhibit A-2 LIBOR Note
Exhibit A-3 Bid Note
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 2, 1995
WHEREAS, YANKEE GAS SERVICES COMPANY, a Connecticut corporation,
as Borrower (the "Borrower"), The Bank of New York, as Agent, and
certain banks were parties to a Credit Agreement dated as of June
20, 1989, which Credit Agreement was amended by Amendment No. I
dated as of June 20, 1992 (as amended, the "Original Agreement");
and
WHEREAS, the Borrower, The Bank of New York, as Agent (the
"Agent") and the banks listed on the signature pages hereof (the
"Banks"), wish to amend and restate the Original Agreement;
NOW, THEREFORE, the Borrower, the Agent and the Banks agree that
the Original Agreement is amended and restated in its entirety as
of the Restatement Effective Date as follows (as amended and
restated hereby, the "Agreement") (with certain terms used herein
being defined in Article 10):
ARTICLE 1
CREDIT FACILITIES
Section 1.01. Revolving Credit Facility. Upon the terms and
subject to the conditions of this Agreement, each Bank, severally
and not jointly, shall, from time to time from the Agreement Date
and until the Termination Date, make one or more Loans to the
Borrower, the aggregate unpaid principal amount of which (not
including Bid Loans) at any time shall not exceed such Bank's
Commitment at such time and which may initially be, or may from
time to time be converted into, Base Rate, LIBOR or Bid Loans, or
any combination thereof; provided, however, that the aggregate
unpaid principal amount of all Loans, including Bid Loans, shall
not at any time exceed the aggregate Commitments of the Banks at
such time.
Section 1.02. Manner of Borrowing. (a) To request a Loan, the
Borrower shall give the Agent notice of each proposed borrowing
of (i) a Base Rate Loan no later than 9:30 a.m. on the requested
date of such borrowing, (ii) a LIBOR Loan not less than three
LIBOR Business Days prior to the date of such borrowing and (iii)
a Bid Loan at the time required pursuant to Section 1.03. Each
such notice shall be in the form of Schedule 1.02 and shall
specify (i) in the case of all Loans, the date, which shall be a
Business Day (and a LIBOR Business Day in the case of a LIBOR
Loan), and the amount of the proposed borrowing (which shall be a
multiple of $100,000) and whether the Loan is to be made as a
Base Rate Loan, a LIBOR Loan or a Bid Loan, (ii) in the case of
LIBOR Loans, the duration of the initial Interest Period as
selected by the Borrower and (iii) in the case of Bid Loans, the
information required by Section 1.03. Each such notice (other
than notices for Bid Loans) shall be irrevocable. Base Rate
Loans and Bid Borrowings shall be made only on a Business Day and
LIBOR Loans shall be made only on a LIBOR Business Day. The
aggregate principal amount of Loans made as part of any Advance
shall be not less than the lesser of (x) $1,000,000 and (y) the
remaining unused amount of the Commitments.
(b) Upon receipt of each notice of borrowing, the Agent shall
promptly notify each Bank of the contents thereof and, in the
case of Pro Rata Loans, of such Bank's ratable share of the Loans
requested pursuant thereto.
(c) Not later than 12:00 p.m. (New York time) on the date of each
Advance of a Pro Rata Loan, each Bank shall (except as provided
in subsection 1.02(d)) make available its pro rata share of such
Advance to the Agent, in Dollars immediately available to the
Agent at the Agent's Office. Any Bank's failure to make any Loan
to be made by it in connection with any Advance on the date
specified therefor shall not relieve any other Bank of its
obligation to make any Loan to be made by such other Bank on such
date, but such other Bank shall not be liable for such failure.
(d) Unless the Agent shall have received written notice from a
Bank prior to 11:00 a.m. (New York time) on the date of any
Advance of a Pro Rata Loan that such Bank will not make available
to the Agent such Bank's pro rata share of such Advance, the
Agent may assume that such Bank has made such amount available to
the Agent on the date of such Advance in accordance with Section
1.02(c) and the Agent in its sole discretion may, in reliance
upon such assumption, make available to the Borrower on such date
a corresponding amount on behalf of such Bank. Any such amount
so made available by the Agent on behalf of such Bank shall be
deemed a Loan by such Bank. If and to the extent such Bank shall
not have so made available to the Agent such Bank's pro rata
share of such Advance and the Agent shall have so made available
to the Borrower a corresponding amount on behalf of such Bank,
the Agent shall be entitled to recover such corresponding amount
on demand from such Bank together with interest thereon, for each
day from the date such corresponding amount shall have been so
made available by the Agent to the Borrower until the date such
corresponding amount shall have been repaid to the Agent, at the
interest rate applicable at the time to such Advance. If such
Bank does not pay such corresponding amount promptly upon the
Agent's demand therefor, the Agent shall promptly notify the
Borrower and the Borrower shall immediately upon receipt of
notice repay such corresponding amount to the Agent together with
accrued interest thereon at the applicable rate or rates provided
in Section 1.04(a).
(e) Each Loan shall be disbursed by the Agent, in Dollars in
funds immediately available to the Borrower, by credit to an
account of the Borrower at the Agent's Office. Unless the Agent
determines that any applicable condition specified in Article 2
has not been satisfied to the satisfaction of the Agent, such
disbursement shall be made not later than 2:00 p.m. (New York
time) on the date specified therefor.
Section 1.03. Bid Loan Facility. (a) Upon the terms and subject
to the conditions of this Agreement, each Bank may make Bid Loans
to the Borrower from time to time prior to the Termination Date.
(b) To request a Bid Borrowing, the Borrower shall give the Agent
a non-binding notice of such request no later than 9:00 a.m. on
the requested date for such Bid Borrowing. Such notice shall be
submitted in the form of Schedule 1.03(b) and shall specify (i)
the requested date of such Bid Borrowing, which shall be a
Business Day, (ii) the principal amount of such Bid Borrowing,
which shall be equal to $2,500,000 or a greater multiple of
$100,000, (iii) the extent to which such Bid Borrowing is to be a
Refunding Loan and (iv) the duration of two alternative Interest
Periods for such Bid Borrowing, which must be equal to or greater
than seven days but no greater than 180 days. Upon receipt of a
request for a Bid Borrowing, the Agent shall promptly notify each
Bank of the contents thereof.
(c) Each Bank may, in its sole discretion, submit, by telex or
telecopy to the Agent no later than 10:00 a.m. on the requested
date for a proposed Bid Borrowing, a bid for a Bid Loan to the
Agent in response to a request for a Bid Borrowing. Such bid
shall be submitted in the form of Schedule 1.03(c) and shall
identify (i) the Bank making such bid and (ii) the requested date
of such Bid Borrowing, and shall specify (i) the fixed rate of
interest per annum (computed on the basis of a 360-day year and
for the actual number of days elapsed and expressed in decimals
to 1/10,000 of 1%) that such Bank is willing to offer for a Bid
Loan to be made as part of such Bid Borrowing and (ii) the
principal amount of the Bid Loan such Bank is willing to make at
such rate as part of such Bid Borrowing, which amount may exceed
such Bank's Commitment at such time. A Bank may submit up to two
bids in response to any request for a Bid Borrowing, but both
bids of a Bank with respect to Bid Borrowings requested at the
same time must be submitted by such Bank at the same time. No
such bid may contain qualifying, conditional or similar language
or contain proposed terms other than those specified in this
paragraph.
(d) Each such bid shall be irrevocable and may not be modified
except to correct a manifest error therein. The Agent shall
notify the Borrower of the contents of any bid to be made by it
in its capacity as a Bank in response to a request for a Bid
Borrowing no later than 9:45 a.m. on the requested date of such
Bid Borrowing. No later than 10:30 a.m. on the requested date
for a Bid Borrowing, the Agent shall notify the Borrower of the
contents of all bids received by the Agent prior to 10:00 a.m. on
such day from the other Banks.
(e) Not later than 11:00 a.m. on the requested date for a Bid
Borrowing, the Borrower shall notify the Agent (which notice
shall be irrevocable) of the bids, if any, that the Borrower is
accepting. Such notice of acceptance of bids shall be in the
form of Schedule 1.03(e). Any bids omitted from such notice shall
be deemed to have been rejected. The Borrower may accept any bid
in whole or in part; provided that (i) the Borrower may not
accept bids with respect to any Bid Borrowing if, after giving
effect thereto, the aggregate unpaid principal amount of Pro Rata
Loans and Bid Loans of all the Banks at such time would exceed
the aggregate Commitments of all of the Banks at such time, (ii)
the aggregate principal amount of bids accepted with respect to
any Bid Borrowing may not exceed the principal amount specified
for such Bid Borrowing in the request therefor, (iii) the
aggregate principal amount of bids by any Bank accepted with
respect to Bid Borrowings requested at the same time may not
exceed the maximum aggregate principal amount specified in such
Bank's response to the request for such Bid Borrowings or be less
than the minimum aggregate principal amount specified in such
Bank's response to the request for such Bid Borrowing and (iv)
bids with respect to any Bid Borrowing may be accepted only in
ascending order of the interest rates specified in such bids. If
two or more bids specify the same interest rate, then the
Borrower shall accept such bid or bids, in such respective
amounts as the Borrower may choose. Upon receipt of any notice
from the Borrower accepting any bid or bids, the Agent shall
promptly notify each of the Banks that submitted a bid with
respect to the applicable Bid Borrowing whether its bids were
accepted or rejected and, if any of such Bank's bids were
accepted, shall identify such bids and the respective amounts
thereof so accepted. If the Borrower has not accepted any bids
in accordance with the foregoing procedure in an amount
sufficient to repay all maturing Bid Loans on the requested date
for a Bid Borrowing, the Agent shall, by 11:30 a.m. on such day,
notify each Bank as to the Pro Rata Loan deemed requested as of
such date in accordance with Section 1.03(i) below.
(f) Not later than 2:00 p.m. on the date of each Bid Borrowing,
each Bank that has had accepted all or part of any bid made by it
with respect to such Bid Borrowing shall make the amount of the
Bid Loan to be made by such Bank as part of such Bid Borrowing
available to the Agent, in Dollars immediately available to the
Agent, at the Agent's Office.
(g) Bid Borrowings shall be disbursed by the Agent not later than
3:00 p.m. on the date specified therefor, in Dollars immediately
available to the Borrower, by credit to the Borrower's account
with the Agent in writing, except that Refunding Loans shall be
applied by the Agent to repay maturing Bid Loans on the date of
such Refunding Loans.
(h) Each Bid Borrowing shall reduce the unused Commitment of each
Bank in an amount equal to such Bank's prorata share (in
accordance with the Commitment of each Bank) of such Bid
Borrowing, whether or not such Bank shall have made any Loan, and
notwithstanding the amount of any Loan made by such Bank, as a
part of such Bid Borrowing. The unused Commitment of each Bank
shall, upon maturity of a Bid Loan, be reinstated in the amount
of the reduction effected in the preceding sentence.
(i) If the Borrower shall fail to request a conversion into a Pro
Rata Loan in accordance with Section 1.04(c), or shall fail to
accept Bids in an amount sufficient to pay the Bid Loan or Bid
Loans maturing on any day, or if no Bank submits a bid in
response to a request for a Bid Borrowing, the Borrower shall,
unless it provides written notice to the Agent to the contrary by
11:30 a.m. on the day of a maturing Bid Loan or Bid Loans, be
deemed to have requested a Refunding Loan (which is subject to
the special conditions to Refunding Loans set forth in Section
2.04) on such date in an amount sufficient to pay such maturing
Bid Loan or Bid Loans and such Refunding Loan shall bear interest
at the Base Rate.
Section 1.04. Interest. (a) Rates. Until an Event of Default
occurs and is continuing, (i) each Loan shall bear interest on
the outstanding principal amount thereof until due at a rate per
annum equal to, (A) so long as it is a Base Rate Loan, the
Alternate Base Rate as in effect from time to time, (B) so long
as it is a LIBOR Loan, Adjusted LIBOR for the applicable Interest
Period plus the LIBOR Margin as in effect on the first day of
such Interest Period and (C) so long as it is a Bid Loan, a rate
determined pursuant to Section 1.03, and (ii) each other amount
due and payable under this Agreement shall, to the maximum extent
permitted by Applicable Law, bear interest at a rate per annum
equal to the Base Rate as in effect from time to time. So long
as an Event of Default is continuing (and whether before or after
judgment), each Loan (whether or not due) and, to the maximum
extent permitted by Applicable Law, each other amount due and
payable under this Agreement or any Note shall bear interest at a
rate per annum equal to the applicable Post-Default Rate.
(b) Payment. Interest shall be payable (i) in the case of Base
Rate Loans, on each Interest Payment Date, (ii) in the case of
LIBOR Loans, on the last day of each applicable Interest Period
(and, if an Interest Period is longer than three months, at
intervals of three months after the first day of such Interest
Period), (iii) in the case of any Loan, when such Loan shall be
due (whether at maturity, by reason of notice of prepayment or
acceleration or otherwise) or converted, but only to the extent
then accrued on the amount then so due or converted and (iv) in
the case of all other amounts due and payable under this
Agreement and the Notes, except as otherwise expressly provided
herein, upon demand. Interest at the Post-Default Rate shall be
payable on demand.
(c) Conversion and Continuation. (i) All or any part of the
principal amount of Loans of any type may, on any Business Day,
be converted into any other type or types of Pro Rata Loans,
except that (A) the aggregate principal amount of Loans to be
converted of the same type and, in the case of LIBOR Loans,
having the same Interest Period shall be at least $1,000,000, (B)
Base Rate Loans may be converted into LIBOR Loans only on a LIBOR
Business Day, (C) LIBOR Loans may only be converted on the last
day of an applicable Interest Period (D) Bid Loans may only be
converted upon maturity and (E) except for conversions of LIBOR
Loans to Base Rate Loans, no conversions shall be made so long as
a Default shall have occurred and be continuing.
(ii) All or any part of the principal amount of a LIBOR Loan may,
on the last day of an Interest Period applicable to such Loan, be
continued as a LIBOR Loan for another Interest Period.
(iii) The Borrower shall give the Agent notice (which shall be
irrevocable) of each conversion or continuation at least, in the
case of conversions into Base Rate Loans, one Business Day, in
the case of conversions into or continuations of LIBOR Loans,
three LIBOR Business Days, and, in the case of conversions into
or continuations of Bid Loans at the time specified in Section
1.03, before the requested date of such conversion or
continuation, specifying (A) such requested date, (B) the amount
and type and, in the case of Fixed Rate Loans, the last day of
the applicable Interest Period of the Loans to be converted or
continued and (C) in the case of a conversion, the amount and the
type or types of Loans into which such Loans are to be converted.
In the absence of any such notice, LIBOR Loans shall be converted
into Base Rate Loans at the end of the then current Interest
Period therefor. Upon receipt of any such notice, the Agent
shall promptly notify each Bank of (x) the contents thereof, (y)
the amount and type and, in the case of LIBOR Loans, the last day
of the applicable Interest Period of each Loan to be converted or
continued by such Bank and (z) in the case of a conversion, the
type or types of Loans into which such Loans are to be converted.
(d) Maximum Interest Rate. Nothing contained in this Agreement
or any Note shall require the Borrower to pay interest at a rate
exceeding the Maximum Permissible Rate. If interest payable to
any Bank on any date would otherwise exceed the maximum amount
permitted by the Maximum Permissible Rate, such interest payment
shall be automatically reduced to such maximum permitted amount,
and interest payable to such Bank for any subsequent period
shall, to the extent less than the maximum amount for such period
permitted by the Maximum Permissible Rate, be increased by the
unpaid amount of such reduction. Any interest actually received
for any period in excess of such maximum permitted amount for
such period shall be deemed to have been paid and applied as a
prepayment of the Loans.
Section 1.05. Repayment. Each amount advanced as a Loan shall
mature and become due and payable, and shall be repaid by the
Borrower, in full, not later than the earlier of (a) the
Termination Date and (b) the date that is 364 days after the date
such Loan is made.
Section 1.06. Prepayments. (a) The Borrower may at any time and
from time to time prepay Pro Rata Loans in whole or in part,
without premium or penalty (except as provided in Section 7.04),
except that any prepayment pursuant to this paragraph (a) shall
be in an aggregate principal amount of at least $1,000,000.
Amounts to be prepaid pursuant to this paragraph (a) shall
irrevocably be due and payable on the date specified in the
applicable notice of prepayment.
(b) Upon any reduction in the Commitments, the Borrower shall, if
the aggregate unpaid principal amount of all Loans exceeds the
aggregate amount of the Commitments as so reduced, prepay an
amount of the Pro Rata Loans (to the extent that there are Pro
Rata Loans outstanding) equal to the amount of such excess. Such
amounts shall be prepaid at the time or times that the
Commitments are so reduced.
(c) The Borrower shall give the Agent notice of each prepayment
at least, in the case of a prepayment of Base Rate Loans, one
Business Day, and, in the case of a prepayment of LIBOR Loans,
three LIBOR Business Days, before the date of such prepayment,
specifying (i) the date such prepayment is to be made, (ii) the
paragraph pursuant to which such prepayment is to be made and
(iii) the amount and type and, in the case of LIBOR Loans, the
last day of the applicable Interest Period of each Loan to be
prepaid. Upon receipt of any such notice, the Agent shall
promptly notify each Bank of the contents thereof and the amount
and type, and in case of a LIBOR Loan, the last day of the
applicable Interest Period of each Loan of such Bank to be
prepaid.
(d) Any prepayment of a LIBOR Loan shall be made only on the last
day of an applicable Interest Period; provided, however, that,
notwithstanding the foregoing provisions of this clause (d), the
Borrower may prepay any Pro Rata Loan on any Business Day,
whether or not the last day of an Interest Period, if, in the
case of a LIBOR Loan, the Borrower pays each Bank compensation as
provided in Section 7.04.
(e) Amounts of Loans prepaid may be reborrowed, subject to the
terms and conditions hereof.
Section 1.07. Minimum Amount of Loans. Notwithstanding anything
to the contrary contained in this Agreement, the Borrower shall
borrow, prepay, convert and continue Loans in a manner such that
there will not be outstanding at any time Loans of the same type
and, in the case of LIBOR and Bid Loans, having the same Interest
Period with an aggregate principal amount of less than
$1,000,000.
Section 1.08. Cancellation or Reduction of Commitments. The
Borrower may at any time, upon not less than ten Business Days'
prior notice to the Agent (which notice shall be irrevocable),
cancel or reduce the Commitments, without penalty; provided that
any reduction shall be in an aggregate amount that is a multiple
of $5,000,000.
Section 1.09. Facility Fee. The Borrower shall pay to the Agent,
for the account of the Banks, a facility fee on the aggregate
Commitments of the Banks for each day from the Effective Date
through the Termination Date at a rate per annum of .12%, payable
on each Fee Payment Date in arrears, on the Termination Date and
on the date of any reduction of the Commitments (to the extent
accrued and unpaid on the amount of the reduction). Fees shall
be computed on the basis of a year of 360 days.
Section 1.10. Agent's Fees. The Borrower shall pay to the Agent
such fees as are set forth in the Agent's Fee Letter.
Section 1.11. Computation of Interest. Interest on the Loans
shall be computed, if a LIBOR or a Bid Loan, on the basis of a
year of 360 days, and if a Base Rate Loan, on the basis of a year
of 365 days, and paid for the actual number of days elapsed.
Interest for any period shall be calculated from and including
the first day thereof to but excluding the last day thereof.
Section 1.12. Payments by the Borrower. (a) All payments due to
the Agent under this Agreement or any Note shall be made to the
Agent at the Agent's Office or at such other address as the Agent
may designate by notice to the Borrower. All payments due to any
Bank under this Agreement or any Note shall, in the case of
payments on account of principal of the Loans, interest on the
Loans or fees, be made to the Agent at the Agent's Office and, in
the case of all other payments, be made directly to such Bank at
its Domestic Lending Office or at such other address as such Bank
may designate by notice to the Borrower. All payments due to any
Bank on account of LIBOR Loans shall be made to the Agent or
directly to such Bank, as the case may be, for the account of
such Bank's LIBOR Lending Office. A payment shall not be deemed
to have been made on any day unless such payment is in Dollars in
funds immediately available to such Person and at such address as
such payment is to be made in accordance with this paragraph (a),
no later than 3:00 p.m. (New York time) on such day. All unpaid
principal shall become due and payable as provided in Section
1.05.
(b) All payments due the Agent or any Bank under this Agreement
or any Note, and all terms, conditions, covenants and agreements
to be observed or performed by the Borrower thereunder, shall be
made, observed or performed by the Borrower without any reduction
or deduction whatsoever, including, but not limited to, any
deduction for any set-off, recoupment, counterclaim (whether
sounding in tort, contract or otherwise) or Tax. If any Tax is
required to be withheld or deducted from any payment due the
Agent or any Bank under this Agreement or any Note, the Borrower
shall withhold or deduct such amount and shall pay to or for the
account of the Agent or such Bank, as the case may be, such
additional amounts as may be necessary so that every net payment,
after withholding or deduction for any Tax, will not be less than
the amount provided in this Agreement. The Borrower agrees to
furnish promptly to the Agent or such Bank, as the case may be,
official receipts evidencing any withholding or deduction for any
Tax.
(c) Whenever any payment under this Agreement or any Note shall
be due on a day that is not a Business Day, or, in the case of
payments on account of LIBOR Loans, a LIBOR Business Day, the
date of payment therefor shall be extended to the next succeeding
Business or LIBOR Business Day, as the case may be, unless, in
the case of a payment on account of a LIBOR Loan, such extension
would cause payment to be made in the next succeeding calendar
month, in which case such due date shall be advanced to the next
preceding LIBOR Business Day. If the date for any payment of any
amount under this Agreement or any Note is extended (whether by
operation of this Agreement or any Note, any provision of law or
otherwise), interest shall be payable on such amount for such
extended time on the extended date of payment provided that the
Borrower shall not be obligated to pay interest on such amount
for such extended time in the next succeeding Interest Period.
(d) The Agent shall distribute to each Bank its ratable share of
each payment received by the Agent under this Agreement or any
Note for the account of such Bank, in Dollars in funds
immediately available to such Bank, by credit to an account of
such Bank at the Agent's Office or otherwise in accordance with
the instructions of such Bank. Each such distribution of any
such payment shall be made on (i) the same day as such payment is
received by the Agent, if such payment is received by the Agent
prior to 2:00 p.m. (New York time) on any day and (ii) the first
Business Day after such payment is received by the Agent, if such
payment is received by the Agent after 2:00 p.m. (New York time)
on any day.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in
full to the Agent on such date and the Agent in its sole
discretion may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date a corresponding amount
with respect to the amount then due such Bank. If and to the
extent the Borrower shall not have so made such payment in full
to the Agent and the Agent shall have so caused to be distributed
to any Bank a corresponding amount with respect to the amount
then due such Bank, such Bank shall repay to the Agent forthwith
on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such
amount to the Agent, at the Federal Funds Rate until (and
including) the third Business Day after such demand is made and
thereafter at the Base Rate.
Section 1.13. Evidence of Indebtedness. Each Bank's Loans, and
the Borrower's obligation to repay such Loans with interest in
accordance with the terms of this Agreement, shall be evidenced
by this Agreement, the records of such Bank and, in the case of
Loans that are Base Rate Loans, a single Base Rate Note payable
to the order of such Bank, in the case of Loans that are LIBOR
Loans, a single LIBOR Note payable to the order of such Bank,
and, in the case of any Loan that is a Bid Loan, a single Bid
Note payable to the order of such Bank. The records of each Bank
shall be prima facie evidence of the Loans of such Bank and
accrued interest thereon and of all payments made in respect
thereof.
Section 1.14. Pro Rata Treatment. Except to the extent otherwise
provided herein, (a) each Pro Rata Loan (including each Refunding
Loan to the extent that it is a Pro Rata Loan) shall be made from
the Banks pro rata in accordance with their respective
Commitments, (b) each payment and prepayment of principal of Pro
Rata Loans (including Refunding Loans to the extent that they are
Pro Rata Loans) (except prepayments pursuant to Section 7.01)
shall be made pro rata in accordance with the respective amounts
thereof then outstanding, (c) each payment of interest on Pro
Rata Loans and facility fees shall be made for the account of the
Banks pro rata in accordance with their respective amounts
thereof then due and payable, (d) each cancellation or reduction
in the Commitments shall be made pro rata in accordance with the
Banks respective amounts thereof and (e) each conversion of Loans
of a particular type and Interest Period shall be made pro rata
in accordance with the Banks' respective Commitments.
ARTICLE 2
CONDITIONS TO EFFECTIVENESS
Section 2.01. Conditions to Restatement Effective Date. The
amendment and restatement of this Agreement being effected hereby
shall become effective on the date (the "Restatement Effective
Date") on which the Agent has received, with copies for each
Bank, each of the following:
(a) a certificate of the Secretary or an Assistant Secretary of
the Borrower, dated the date of such Loan, substantially in the
form of Schedule 2.01(a), to which shall be attached copies of
the resolutions and by-laws referred to in such certificate;
(b) a copy of the certificate of incorporation of the Borrower,
certified as of a recent date by the Secretary of State or other
appropriate official of the Borrower's jurisdiction of
incorporation;
(c) a good standing certificate with respect to the Borrower,
issued as of a recent date by the Secretary of State or other
appropriate official of the jurisdiction of the Borrower's
incorporation, together with a telegram from such Secretary of
State or other official, updating the information in such
certificate;
(d) an opinion of counsel for the Borrower, dated the date of
such Loan, substantially in the form of Schedule 2.01(d);
(e) a duly executed Base Rate Note and LIBOR Note for each Bank,
each dated the Restatement Effective Date and in the amount of
each Bank's Commitment, as increased as of the Restatement
Effective Date;
(f) a certificate in the form of Schedule 2.01(f);
(g) a certificate of a corporate officer of the Borrower
certifying that, at and as of the Restatement Effective Date, (i)
all of the Representations and Warranties shall be true and
correct and (ii) no Default shall have occurred and be
continuing;
(h) the Agent shall have received all materials as the Agent or
the Required Banks may have requested pursuant to Section
5.01(c)(ii) that may reasonably be produced prior to the
Restatement Effective Date; and
(i) all legal matters incident to such amendment and restatement
and the other transactions contemplated by this Agreement shall
be satisfactory to Messrs. Winthrop, Stimson, Xxxxxx & Xxxxxxx,
counsel for the Agent and the Banks.
Section 2.02. Conditions to Each Loan. The obligation of each
Bank to make each Loan, including its initial Loan, on the
occasion of each Borrowing (but not the obligation to convert or
continue any Loan) is subject to the fulfillment of each of the
following conditions:
(a) the Agent shall have received a notice of borrowing with
respect to such Loan complying with the requirements of Section
1.02;
(b) all of the Representations and Warranties shall be true and
correct at and as of the time of such borrowing, with and without
giving effect to such borrowing and to the application of the
proceeds thereof;
(c) no Default shall have occurred and be continuing at such time
or after giving effect to such borrowing;
(d) the Agent shall have received all materials as the Agent or
the Required Banks may have requested pursuant to Section
5.01(c)(ii) that may reasonably be produced prior to the time of
such borrowing;
(e) such Loan will not contravene any Applicable Law applicable
to such Bank; and
(f) all legal matters incident to such Loan and the other
transactions contemplated by this Agreement shall be satisfactory
to Messrs. Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the
Agent and the Banks.
Each notice of borrowing shall constitute a representation and
warranty by the Borrower made as of the time of the making of the
requested borrowing that the conditions specified in clauses (b)
and (c) have been fulfilled as of such time, unless a notice to
the contrary specifically captioned "Disclosure Statement" is
received by the Agent from the Borrower prior to 5:00 p.m. (New
York time) on the Business Day preceding the date of the
requested Loan.
Section 2.03. Special Additional Conditions to Bid Loans. The
obligation of any Bank to make a Bid Loan is subject to:
(a) the receipt by the Agent of notice from the Borrower of its
intention to borrow such Loan in accordance with the provisions
of Section 1.03(b); and
(b) the receipt by the Agent, prior to or contemporaneously with
the making of such Loan, of a duly executed Bid Note in favor of
such Bank, in the form of Exhibit A-3 attached hereto.
Section 2.04. Special Conditions to Refunding Loans. The
obligation of each Bank to make a Refunding Loan is subject to
each of the following conditions:
(a) either the Borrower (i) shall have given notice of its
intention to borrow such Loan in accordance with the provisions
of Section 1.02 or (ii) shall be deemed to have requested a
Refunding Loan in accordance with the provisions of Section
1.03(i);
(b) all of the Representations and Warranties shall be true and
correct at and as of the time of such borrowing, with and without
giving effect to such borrowing and to the application of the
proceeds thereof; and
(c) no Default shall have occurred and be continuing at such time
or after giving effect to such borrowing;
Such conditions shall be the exclusive conditions to the making
of Refunding Loans.
Section 2.05. Extension of Termination Date. It is understood
that the Borrower may, prior to the date two months prior to the
first anniversary of the Restatement Effective Date and the first
anniversary thereafter, if applicable, deliver a written notice
to each of the Banks requesting that the Termination Date be
extended for one year. Each of the Banks agrees to respond to
any such request within 45 days of its receipt of such notice
from the Borrower provided that the failure to respond shall not
be deemed to be a consent to the requested Extension and shall
not otherwise subject any Bank to any liability. Each of the
Banks may, in accordance with the request of the Borrower but in
the sole discretion of such Bank, agree to extend the Termination
Date by delivering a written notice to such effect to the Agent
and the Borrower, which notice shall specifically refer to this
Section 2.05. No such extension shall be effective unless
consented to in writing by each of the Banks. Any Bank which
chooses not to extend the Termination Date may, in accordance
with Section 9.07, be replaced.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES OF THE BORROWER
A. In order to induce the Agent and each Bank to enter into this
Agreement and to make each Loan, the Borrower represents and
warrants, as of the Agreement Date, as of the Restatement
Effective Date and as of the time of each Loan, as follows:
Section 3.01. Organization; Power; Qualification. The Borrower
and each of its Subsidiaries are corporations duly organized,
validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, have the corporate
power and authority to own their respective properties and to
carry on their respective businesses as now being and hereafter
proposed to be conducted.
Section 3.02. Authorization; Enforceability; Required Consents;
Absence of Conflicts. The Borrower has the corporate power, and
has taken all necessary corporate action (including, if
necessary, any stockholder action) to authorize it, to execute,
deliver and perform in accordance with their respective terms
this Agreement and the Notes and to borrow hereunder in the
amount of the Commitments. This Agreement has been duly executed
and delivered by the Borrower and is, and each of the Notes when
delivered to the Banks will be, a legal, valid and binding
obligation of the Borrower. The execution, delivery and
performance in accordance with their respective terms by the
Borrower of this Agreement and the Notes, and each borrowing
hereunder, whether or not in the amount of the unused
Commitments, do not and will not (a) require any Governmental
Approval, any consent or approval of the Borrower or any of its
Subsidiaries or any consent or approval of the stockholders of
the Borrower or any of its Subsidiaries other than Governmental
Approvals and other consents and approvals that have been
obtained and, except for Governmental Approvals and consents and
approvals required as a result of a Regulatory Change, (b)
violate or conflict with, result in a breach of, or constitute a
default under (I) any Contract to which the Borrower or any of
its Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or (ii) any Applicable
Law, except for violations, conflicts, breaches or defaults that,
singly and in the aggregate, have not had and are not reasonably
likely to have a Materially Adverse Effect on the Borrower and
its Subsidiaries taken as a whole or on this Agreement or (c)
result in or require the creation of any Lien upon any assets of
the Borrower or any of its Subsidiaries.
B. In order to induce each Bank to make each Loan, the Borrower
represents and warrants, as of the time of each Loan, as follows:
Section 3.03. Subsidiaries. Schedule 3.03 sets forth, as of the
Agreement Date and the Restatement Effective Date, all of the
Subsidiaries of the Borrower, their jurisdictions of
incorporation and the percentages of the various classes of their
capital securities owned by the Borrower or another of its
Subsidiaries and indicates which Subsidiaries are Consolidated
Subsidiaries.
Section 3.04. Governmental Approvals. The Borrower and each of
its Subsidiaries owns, or is licensed or otherwise has the lawful
right to use, all Governmental Approvals used in or necessary for
the conduct of its business as currently conducted.
Section 3.05. Debt; Liabilities. The Borrower and its
Subsidiaries have no Debt or Liabilities as of the Agreement Date
or the Restatement Effective Date, except (a) as previously
disclosed to the Banks and (b) other Liabilities that, singly and
in the aggregate, have not had and are not reasonably likely to
have a Materially Adverse Effect on the Borrower and its
Subsidiaries taken as a whole.
Section 3.06. Litigation. Except as previously disclosed on the
registration statement filed with the Securities and Exchange
Commission ("SEC") on Form S-1 on April 14, 1989 or on Amendment
No. 1 thereto filed with the SEC on June 6, 1989, there are not,
in any court or before any arbitrator of any kind or before or by
any governmental or non-governmental body, any actions, suits or
proceedings, pending or (to the knowledge of the Borrower)
probable of assertion against or in any other way relating to or
affecting (a) the Borrower or any of its Subsidiaries or the
business or any property of the Borrower or any of its
Subsidiaries, except actions, suits or proceedings that could not
reasonably be expected, singly or in the aggregate, to have a
Materially Adverse Effect on the Borrower and its Subsidiaries
taken as a whole or (b) this Agreement or any Note.
Section 3.07. Environmental Matters. Except as previously
disclosed to the Banks in writing, the Borrower and each of its
Subsidiaries is in compliance with all requirements of
environmental, health and safety Applicable Law except any
noncompliances that, in the aggregate, will not have a Materially
Adverse Effect on the Borrower and its Subsidiaries taken as a
whole.
Section 3.08. ERISA. (a) All of the Plans as of the Agreement
Date and the Restatement Effective Date are set forth in Schedule
3.08.
(b) Each Plan is in compliance with ERISA in all material
respects. The Borrower and each ERISA Affiliate have complied
with the requirements of ERISA Section 515 with respect to each
Plan that is a Multiemployer Plan. No material liability to the
PBGC has been, or is expected by the Borrower to be, incurred by
the Borrower or any of its ERISA Affiliates.
Section 3.09. Tax Returns and Payments. The Borrower and each of
its Subsidiaries have (a) filed all Tax returns required to be
filed by it under Applicable Law, (b) paid all Taxes that are due
and payable by it except for Taxes the nonpayment of which does
not contravene Section 4.01(e) and (c) to the extent required by
generally accepted accounting principles, reserved against all
Taxes that are not yet due and payable or the non-payment of
which does not contravene Section 4.01(e) and the Borrower knows
of no reason to anticipate any additional assessments in respect
thereof.
Section 3.10. No Material Adverse Change or Event. Since the
Agreement Date, no change in the business, assets, liabilities,
financial condition, results of operations or business prospects
of the Borrower and its Consolidated Subsidiaries, and no event
has occurred or failed to occur, that has had or is reasonably
likely to have, either alone or in conjunction with all other
such changes, events and failures, a Materially Adverse Effect on
(I) the Borrower and its Consolidated Subsidiaries or (ii) on
this Agreement or the Notes.
Section 3.11. Investment Company Act; Public Utility Holding
Company Act. The Borrower (a) is not an investment company
within the meaning of the Investment Company Act of 1940 and (b)
is exempt from registration under the Public Utility Holding
Company Act of 1935 pursuant to Section 3(a)(1) thereof.
ARTICLE 4
COVENANTS
From the Agreement Date and until the Repayment Date,
A. The Borrower shall and shall cause each of its Subsidiaries
to:
Section 4.01. Preservation of Existence and Properties, Scope of
Business, Compliance with Law, Payment of Taxes and Claims. (a)
Preserve and maintain its corporate existence and all of its
other franchises, licenses, rights and privileges, (b) preserve
and maintain in good repair, working order and condition all
other properties, required for the conduct of its business, (c)
engage primarily in the businesses conducted on the Agreement
Date and in businesses related thereto, (d) comply with all
Applicable Laws and (e) pay or discharge when due all Taxes and
all claims that might become a Lien on any properties of the
Borrower or any of its Subsidiaries, except that this Section
4.01 (other than clauses (a), in so far as it requires the
Borrower to preserve its corporate existence, and (c)) shall not
apply in any circumstance where noncompliance, together with all
other noncompliances, will not have a Materially Adverse Effect
on (x) the Borrower and its Subsidiaries taken as a whole or (y)
this Agreement and the Notes.
Section 4.02. Insurance. Maintain insurance with responsible
insurance companies against such risks and in such amounts as is
customarily maintained by similar businesses, or as may be
required by Applicable Law or reasonably requested by the
Required Banks.
B. The Borrower shall:
Section 4.03. Use of Proceeds. Use the proceeds of the Loans for
general corporate purposes. None of the proceeds of any of the
Loans shall be used to purchase or carry, or to reduce or retire
or refinance any credit incurred to purchase or carry, any Margin
Stock or to extend credit to others for the purpose of purchasing
or carrying any Margin Stock. If requested by any Bank, the
Borrower will furnish to such Bank statements in conformity with
the requirements of Federal Reserve Form U-1 referred to in
Regulation U.
C. The Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
Section 4.04. Merger or Consolidation. Merge or consolidate with
any Person, except that, if after giving effect thereto no
Default would exist, this Section 4.04 shall not apply to any
merger or consolidation of the Borrower with any one or more
Persons, provided that the Borrower shall be the continuing
Person.
Section 4.05. Disposition of Assets. Sell, lease, transfer or
otherwise voluntarily dispose of any assets, except that this
Section 4.05 shall not apply to (a) any disposition of assets in
the ordinary course of business, (b) any disposition of any
obsolete or retired property not used or useful in its business,
(c) any disposition of assets to the Borrower and (d) other
dispositions of assets not exceeding $20,000,000 in aggregate
book value in any fiscal year for the Borrower and all of its
Subsidiaries.
Section 4.06. Taxes of Other Persons. (a) File a consolidated tax
return with any other Person other than, in the case of the
Borrower, YES or a Consolidated Subsidiary and, in the case of
any such Subsidiary, YES, the Borrower or a Consolidated
Subsidiary or (b) except as required by Applicable Law, pay or
enter into any Contract to pay any Taxes owing by any Person
other than the Borrower or a Consolidated Subsidiary.
Section 4.07. Benefit Plans. (a) Amend any Existing Benefit Plan
in any manner that would increase the aggregate Unfunded Benefit
Liabilities under all Existing Benefit Plans to an amount which
would have a Materially Adverse Effect on the Borrower and its
Consolidated Subsidiaries taken as a whole or (b) permit any
Existing Benefit Plan to have a Funded Current Liability
Percentage of less than 60%.
Section 4.08. Transactions with Affiliates. Except to the extent
provided otherwise in the Connecticut Department of Public
Utilities Control Order dated December 21, 1988, effect any
transaction with any Affiliate on a basis less favorable than
would at the time be obtainable for a comparable transaction in
arm's-length dealing with an unrelated third party.
Section 4.09. Liens. Create, assume or incur, or permit or
suffer to exist or to be created, assumed or incurred, any Lien
upon any of its properties or assets of any character, whether
now owned or hereafter acquired, or upon any income or profits
therefrom, except that this Section 4.09 shall not apply to
Permitted Liens, provided, however, that if, notwithstanding this
Section 4.09, any Lien to which this Section is applicable shall
be created or arise, the obligations and liabilities of the
Borrower under this Agreement and the Notes shall automatically
be secured by such Lien equally and ratably with the other
obligations and liabilities secured thereby, and the holder of
such other obligations and liabilities, by accepting such Lien,
shall be deemed to have agreed thereto and to share with the
Banks, on that basis, the proceeds of such Lien, whether or not
the Banks' security interest shall be perfected, provided
further, however, that notwithstanding such equal and ratable
securing and sharing, the existence of such Lien shall constitute
a default by the Borrower in the performance or observance of
this Section 4.09.
D. The Borrower shall not:
Section 4.10. Equity Ratio. At any time permit the ratio of
Common Equity to Consolidated Capitalization to decline below 37-
1/2%.
Section 4.11. Consolidated Stockholders' Equitv. At any time
permit Consolidated Stockholders Equity to be less than
$90,000,000.
Section 4.12. Consolidated Cash Coverage Ratio. With respect to
any twelve month period ending on the last day of each fiscal
quarter, permit the Cash Coverage Ratio to be less than 2 to 1.
ARTICLE 5
FINANCIAL STATEMENTS AND INFORMATION
Section 5.01. Financial Statements and Information to Be
Furnished. From the Agreement Date and until the Repayment Date,
the Borrower shall furnish to each Bank:
(a) Quarterly Financial Statements; Officer's Certificate. As
soon as available and in any event within 50 days after the close
of each of the first three quarterly accounting periods in each
fiscal year of the Borrower:
(I) consolidated and consolidating balance sheets of the Borrower
and its Consolidated Subsidiaries as at the end of such quarterly
period and the related consolidated and consolidating statements
of income, retained earnings and cash flows of the Borrower and
its Consolidated Subsidiaries for such quarterly period and for
the elapsed portion of the fiscal year ended with the last day of
such quarterly period, setting forth in each case in comparative
form the figures for the corresponding periods of the previous
fiscal year; and
(ii) a certificate with respect thereto of the president or chief
financial officer of the Borrower in the form of Schedule
5.01(a).
(b) Year-End Financial Statements; Accountants' and Officer's
Certificates. As soon as available and in any event within 105
days after the end of each fiscal year of the Borrower:
(i) consolidated and consolidating balance sheets of the Borrower
and its Consolidated Subsidiaries as at the end of such fiscal
year and the related consolidated and consolidating statements of
income, retained earnings and cash flows of the Borrower and its
Consolidated Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the
previous fiscal year;
(ii) a report of independent certified public accountants of
recognized standing satisfactory to the Required Banks, on such
of the financial statements referred to in clause (i) as are
consolidated financial statements, which report shall be either
(A) prepared in accordance with Generally Accepted Accounting
Principles, not limited in scope and without qualification or
exceptions or (B) in scope and substance satisfactory to the
Required Banks; and
(iii) a certificate of the president or chief financial officer
of the Borrower in the form of Schedule 5.01(b).
(c) Additional Materials.
(I) Reports and Filings. As soon as practicable, copies of all
such financial statements and reports as YES, the Borrower or any
of the Borrower's Subsidiaries shall send to its stockholders and
of all registration statements and all regular or periodic
reports that the Borrower or any of its Subsidiaries shall file,
or may be required to file, with the Securities and Exchange
Commission or any successor commission.
(ii) Requested Materials. From time to time and promptly upon
request of the Agent or the Required Banks, such data,
certificates, reports, statements, opinions of counsel, documents
and further information regarding any Loan, this Agreement or any
Note or the business, assets, liabilities, financial condition,
results of operations or business prospects of the Borrower and
its Subsidiaries as the Agent or the Required Banks may
reasonably request, in each case in form and substance and
certified in a manner satisfactory to the Agent or the Required
Banks.
(d) Notice of Defaults, Litigation and Other Matters. Promptly
after becoming aware thereof, notice of (i) any Default; (ii) any
change or event referred to in Section 3.10; (iii) any event or
condition referred to in clauses (i) through (vi) of Section
6.01(g), whether or not such event or condition shall constitute
an Event of Default; (iv) the commencement of any actions, suits
or proceedings or investigations in any court or before any
arbitrator of any kind or by or before any governmental or non-
governmental body against or in any other way relating to or
affecting (A) the Borrower or any of its Subsidiaries or any of
their respective businesses or properties or (B) this Agreement
or the Notes, that, if adversely determined, might singly or in
the aggregate, have a Materially Adverse Effect on (x) the
Borrower and its Subsidiaries taken as a whole or (y) this
Agreement and the Notes; and (v) any amendment of the certificate
of incorporation or by-laws of the Borrower.
Section 5.02. Accuracy of Financial Statements and Information.
(a) Historical Financial Statements. The Borrower hereby
represents and warrants that (i) the financial statements
submitted by the Borrower to the Banks, prior to the Restatement
Effective Date and in connection with the Original Agreement, are
complete and correct and present fairly, in accordance with
Generally Accepted Accounting Principles, the consolidated and
consolidating financial position of the Borrower and the
Consolidated Subsidiaries, as at their respective dates and the
consolidated and consolidating results of operations, retained
earnings and, as applicable, changes in financial position or
cash flows of the Borrower and such Subsidiaries, for the
respective periods to which such statements relate, and (ii)
except as disclosed or reflected in such financial statements, as
at September 30, 1994, neither the Borrower nor any Subsidiary
had any Liability, contingent or otherwise, or any unrealized or
anticipated loss, that, singly or in the aggregate, has had or
might have a Materially Adverse Effect on the Borrower and the
Consolidated Subsidiaries taken as a whole, and the furnishing of
the same to the Agent constitutes a representation and warranty
to that effect.
(b) Future Financial Statements. The financial statements
delivered pursuant to Section 5.01(a) or (b) shall be complete
and correct and present fairly, in accordance with Generally
Accepted Accounting Principles (except for changes therein or
departures therefrom that are described in the certificate or
report accompanying such statement and that have been approved in
writing by the Borrower's then current independent certified
public accountants), the consolidated and consolidating financial
position of the Borrower and the Consolidated Subsidiaries as at
their respective dates and the consolidated and consolidating
results of operations, retained earnings and cash flows of the
Borrower and such Subsidiaries for the respective periods to
which such statements relate, and the furnishing of the same to
the Banks shall constitute a representation and warranty by the
Borrower made on the date the same are furnished to the Banks to
that effect and to the further effect that, except as disclosed
or reflected in such financial statements, as at the respective
dates thereof, neither the Borrower nor any Subsidiary had any
Liability, contingent or otherwise, or any unrealized or
anticipated loss, that, singly or in the aggregate, has had or
might have a Materially Adverse Effect on the Borrower and the
Consolidated Subsidiaries taken as a whole.
(d) Historical Information. The Borrower hereby represents and
warrants to the Agent and the Banks that (i) all Information
furnished to the Agent or the Banks by or on behalf of the
Borrower or any of its Subsidiaries prior to the Agreement Date
in connection with or pursuant to this Agreement and the Notes or
the relationship established under this Agreement and the Notes,
and (ii) all Information provided in the registration statement
filed with the Securities Exchange Commission on Form S-1 on
April 14, 1989 with respect to YES, at the time all such
Information was so furnished, but in the case of Information
dated as of a prior date, as of such prior date, (A) in the case
of any such Information prepared in the ordinary course of
business, was complete and correct in all material respects in
the light of the purpose prepared, and, in the case of any such
Information the preparation of which was requested by the Agent
or any Bank, was complete and correct to the extent necessary to
give the Agent or such Bank true and accurate knowledge of the
subject matter thereof in all material respects, (B) did not
contain any untrue statement of a material fact and (C) did not
omit to state a fact necessary in order to make the statements
contained therein not materially misleading in the light of the
circumstances under which they were made.
(e) Future Information. All Information furnished to the Agent or
any Bank by or on behalf of the Borrower or any of its
Subsidiaries on and after the Agreement Date in connection with
or pursuant to this Agreement and the Notes or in connection with
or pursuant to any amendment or modification of, or waiver under,
this Agreement or any Note, shall, at the time the same is so
furnished, but in the case of Information dated as of a prior
date, as of such prior date, (A) in the case of any such
Information prepared in the ordinary course of business, be
complete and correct in all material respects in the light of the
purpose prepared, and, in the case of any such Information
required by the terms of this Agreement or any Note or the
preparation of which was requested by the Agent or any Bank, be
complete and correct to the extent necessary to give the Agent or
such Bank true and accurate knowledge of the subject matter
thereof in all material respects, (B) not contain any untrue
statement of a material fact and (C) not omit to state a fact
necessary in order to make the statements contained therein not
materially misleading in the light of the circumstances under
which they were made, and the furnishing of the same to the Agent
or any Bank shall constitute a representation and warranty by the
Borrower made on the date the same are so furnished to the effect
specified in clauses (A), (B) and (C).
Section 5.03. Additional Covenants Relating to Disclosure. From
the Agreement Date and until the Repayment Date, the Borrower
shall and shall cause each of its Subsidiaries to:
(a) Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts
(which shall be true and complete), as may be required or
necessary to permit (i) the preparation of financial statements
required to be delivered pursuant to Section 5.01(a) and (b) and
(ii) the determination of the Borrower's compliance with the
terms of this Agreement.
(b) Visits and Inspections. Permit representatives (whether or
not officers or employees) of the Agent or any Bank, from time to
time, as often as may be reasonably requested, but only during
normal business hours, upon two Business Days' notice, to (i)
visit and inspect any properties of the Borrower and each of its
Subsidiaries, (ii) inspect and make extracts from their books and
records, including but not limited to management letters prepared
by the Borrower's independent accountants and (iii) discuss with
their principal officers, and their independent accountants,
their respective businesses, assets, liabilities, financial
conditions, results of operations and business prospects. Any of
the Borrower's proprietary Information obtained by
representatives of the Agent or any Bank shall be kept
confidential except to the extent necessary to effect an
assignment pursuant to Section 9.07 hereof or to grant a
participation pursuant to Section 9.08 hereof or except as
otherwise required by law, regulation or judicial process.
ARTICLE 6
DEFAULT
Section 6.01. Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such
event and whether it shall be voluntary or involuntary, or within
or without the control of the Borrower or its Subsidiaries, or be
effected by operation of law or pursuant to any judgment or order
of any court or any order, rule or regulation of any governmental
or nongovernmental body:
(a) The payment of principal of or interest on any of the Loans
or the Notes or of any fees shall not be made when and as due
(whether at maturity, by reason of notice of prepayment or
acceleration or otherwise) and in accordance with the terms of
this Agreement and the Notes and, in the case of interest and
fees, such default shall continue unremedied for three Business
Days;
(b) Any Representation or Warranty shall at any time prove to
have been incorrect or misleading in any material respect when
made;
(c) The Borrower shall default in the performance or observance
of:
(i) any term, covenant, condition or agreement contained in
Section 4.01(a) (insofar as such Section requires the
preservation of the corporate existence of the Borrower),
Sections 4.04 through 4.12, Section 5.01(d) or Section 5.03 (b);
or
(ii)any term, covenant, condition or agreement contained in this
Agreement (other than a term, covenant, condition or agreement a
default in the performance or observance of which is elsewhere in
this Section specifically dealt with) and, if such default is
capable of being remedied, such default shall continue unremedied
for a period of 30 days.
(d) The Borrower or any of its Subsidiaries shall fail to pay, in
accordance with its terms and when due and payable, any principal
of or interest on any Debt having an aggregate outstanding
principal amount in excess of $1,000,000 (other than (i) the
Loans and (ii) amounts which the Borrower or such Subsidiary
disputes in good faith), or the maturity of any such Debt shall,
in whole or in part, have been accelerated, or any such Debt
shall, in whole or in part, have been required to be prepaid
prior to the stated maturity thereof, in accordance with the
provisions of any Contract evidencing, providing for the creation
of or concerning such Debt or any event shall have occurred and
be continuing that permits any holder or holders of such Debt,
any trustee or agent acting on behalf of such holder or holders
or any other Person so to accelerate such maturity or require any
such prepayment;
(e) (i) The Borrower or any of its Subsidiaries shall
(A)commence a voluntary case under the Federal bankruptcy laws
(as now or hereafter in effect), (B) file a petition seeking to
take advantage of any other laws, domestic or foreign, relating
to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, (C) consent to or fail to
contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or
other laws, (D) apply for, or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the taking
of possession by, a receiver, custodian, trustee, liquidator or
the like of itself or of a substantial part of its assets,
domestic or foreign, (E) admit in writing its inability to pay,
or generally not be paying, its debts (other than those that are
the subject of bona fide disputes) as they become due, (F) make a
general assignment for the benefit of creditors or (G) take any
corporate action for the purpose of effecting any of the
foregoing; or
(ii) (A) A case or other proceeding shall be commenced against
the Borrower or any of its Subsidiaries in any court of competent
jurisdiction seeking (1) relief under the Federal bankruptcy laws
(as now or hereafter in effect) or under any other laws, domestic
or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts or (2) the
appointment of a trustee, receiver, custodian, liquidator or the
like of the Borrower or such Subsidiary, or of all or any
substantial part of the assets, domestic or foreign, of the
Borrower or such Subsidiary, and such case or proceeding shall
continue undismissed or unstayed for a period of 30 days, or (B)
an order granting the relief requested in such case or proceeding
against the Borrower or such Subsidiary (including, but not
limited to, an order for relief under such Federal bankruptcy
laws) shall be entered;
(f) A judgment or order for the payment of money shall be entered
against the Borrower or any of its Subsidiaries by any court, and
either (i) such judgment or order shall continue undischarged and
unstayed for a period of 30 days in which the aggregate amount of
all such judgments and orders exceeds $1,000,000 or (ii)
enforcement proceedings shall have been commenced upon such
judgment or order; or
(g) (i) Any Termination Event shall occur, (ii) any Accumulated
Funding Deficiency, whether or not waived, shall exist with
respect to any Plan, (iii) any Person shall engage in any
Prohibited Transaction involving any Plan, (iv) the Borrower or
any ERISA Affiliate shall be in "default" (as defined in ERISA
Section 4219(c)(5)) with respect to payments owing to a
Multiemployer Plan as a result of the Borrower's or any ERISA
Affiliate's complete or partial withdrawal (as described in ERISA
Section 4203 or 4205) from such Multiemployer Plan, (v) the
Borrower or any ERISA Affiliate shall fail to pay when due an
amount that is payable by it to the PBGC or to a Plan under Title
IV of ERISA, (vi) a proceeding shall be instituted by a fiduciary
of any Plan against the Borrower or any ERISA Affiliate to
enforce ERISA Section 515 and such proceeding shall not have been
dismissed within 30 days thereafter or (vii) any other event or
condition (other than an ordinary event or condition relating to
the regular and ongoing operation and administration of a Plan or
a related funding vehicle) shall occur or exist with respect to a
Plan, except that no event or condition referred to in clauses
(i) through (vii) shall constitute an Event of Default if it,
together with all other such events or conditions at the time
existing, has not subjected, and in the reasonable determination
of the Required Banks is not reasonably likely to subject, the
Borrower or any of its Subsidiaries to any Debt or Liability
(other than a Liability constituting the obligation to make
future contributions) that, alone or in the aggregate, exceeds
$1,000,000.
Section 6.02. Remedies upon Event of Default. Upon the
occurrence and during the continuance of any Event of Default and
in every such event, the Agent, upon notice to the Borrower, may
do any or all of the following: (a) declare the principal of and
interest on the Loans and the Notes and all other amounts owing
by the Borrower under this Agreement to be, and the Loans and the
Notes and all such other amounts shall thereupon become,
immediately due and payable, (b) terminate the Commitments and
(c)exercise or cause to be exercised any other rights that may be
available to the Agent and the Banks under Applicable Law. Upon
the occurrence of an Event of Default specified in Section
6.01(e), automatically and without any notice to the Borrower (a)
the principal of and interest on the Loans and the Notes and all
other amounts owing by the Borrower under this Agreement shall
become immediately due and payable and (b) the Commitments shall
terminate. Presentment, demand, protest or notice of any kind
(other than the notice provided for in the first sentence of this
Section 6.02) are hereby expressly waived.
ARTICLE 7
LIBOR AND BASE RATE LOAN PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of LIBOR Loans.
A Bank's obligations to make, maintain or convert into LIBOR
Loans of any type shall be suspended, all such Bank's outstanding
Loans of that type shall be converted on the last day of their
applicable Interest Periods (or, if earlier, in the case of
clause (c) below, on the last day such Bank may lawfully continue
to maintain Loans of that type or, in the case of clause (d)
below, on the day determined by such Bank to be the last Business
Day or LIBOR Business Day, as the case may be, before the
effective date of the applicable restriction) into, and all
pending requests for the making of or conversion into Loans of
such type by such Bank shall be deemed requests for, Base Rate
Loans, if and so long as:
(a) on or prior to the determination of an interest rate for a
LIBOR Loan other than a Bid Loan of that type for any Interest
Period, the Agent determines that for any reason appropriate
information is not available to it for purposes of determining
LIBOR for such Interest Period;
(b) on or prior to the first day of any Interest Period for a
LIBOR Loan, the Required Banks determine that LIBOR, as
determined by the Agent for such Interest Period, would not
accurately reflect the cost to such Banks of making, maintaining
or converting into a Loan of such type for such Interest Period;
(c) at any time such Bank determines that any Regulatory Change
makes it unlawful or impracticable for such Bank to make or
maintain any LIBOR Loan, or to comply with its obligations
hereunder in respect thereof; or
(d) such Bank determines that by reason of any Regulatory Change
it is restricted, directly or indirectly, in the amount that it
may hold of (i) a category of liabilities that includes deposits
by reference to which, or on the basis of which, the interest
rate applicable to LIBOR Loans is directly or indirectly
determined, or (ii) the category of assets that includes LIBOR
Loans.
The Agent shall promptly notify the Borrower and each Bank of the
existence or occurrence of any condition or circumstance
specified in clause (a) above, and each Bank shall promptly
notify the Borrower and the Agent of the existence or occurrence
of any condition or circumstance specified in clause (b), (c) or
(d) above applicable to such Bank's Loans, but the failure by the
Agent or such Bank to give any such notice shall not affect such
Bank's rights hereunder.
Section 7.02. Regulatory Changes. If in the determination of any
Bank (a) any Regulatory Change shall (i) reduce the amount of any
sum received or receivable by such Bank with respect to any Loan
or the return to be earned by such Bank on any Loan, (ii) impose
a cost on such Bank or any Affiliate of such Bank that is
attributable to the making or maintaining of, or such Bank's
commitment to make, any Loan, (iii) require such Bank or any
Affiliate of such Bank to make any payment on or calculated by
reference to the gross amount of any amount received by such Bank
hereunder or under any Note or (iv) reduce the rate of return on
the capital of such Bank or any Affiliate of such Bank allocable
to any Loan or such Bank's commitment to make any Loan and (b)
such reduction, increased cost or payment shall not be fully
compensated for by an adjustment in the applicable rates of
interest payable hereunder, then, within 15 days after request by
such Bank, the Borrower shall pay to such Bank such additional
amount or amounts as such Bank determines will, together with any
adjustment in the applicable rates of interest payable hereunder,
fully compensate for such reduction, increased cost or payment.
Such Bank will promptly notify the Borrower of any Regulatory
Change of which it has knowledge that will entitle such Bank to
compensation pursuant to this Section 7.02, but the failure to
give such notice shall not affect such Bank's right to such
compensation.
Section 7.03. Change of Lending Office. If an event occurs with
respect to a Lending Office that makes operable the provisions of
clause (b), (c) or (d) of Section 7.01 with respect to any Bank
or entitles any Bank to make a claim under Section 7.02, such
Bank shall, upon the request of the Borrower, use reasonable
efforts to designate another Lending Office or Offices the
designation of which will eliminate such operability or reduce
the amount such Bank is so entitled to claim, provided that such
designation would not, in the sole and absolute discretion of
such Bank, be disadvantageous to such Bank in any manner or
contrary to such Bank's policies. Each Bank may at any time and
from time to time change any Lending Office and shall give prompt
notice of any such change to the Agent and the Borrower. Except
in the case of a change in Lending Offices made at the request of
the Borrower, the designation of a new Lending Office by any Bank
shall not make operable the provisions of clause (b), (c) or (d)
of Section 7.01 or increase the amount such Bank is entitled to
claim under Section 7.02 if the operability of such clause or the
increase in the amount such Bank is so entitled to claim results
solely from such designation and does not result from a
subsequent Regulatory Change.
Section 7.04. Funding Losses. The Borrower shall pay to each
Bank, upon request, such amount or amounts as such Bank
determines are necessary to compensate it for any loss, cost or
expense incurred by it as a result of (a) any payment, prepayment
or conversion of a LIBOR Loan or a Bid Loan (including, without
limitation, any such payment, prepayment or conversion that is
mandatory or automatic, other than a payment or prepayment
required pursuant to Section 1.02(d) or 1.04(d)) on a date other
than the last day of an Interest Period for such Loan or (b) a
LIBOR Loan or a Bid Loan for any reason not being made or
converted, or any payment of principal thereof or interest
thereon not being made, on the date therefor determined in
accordance with the applicable provisions of this Agreement. At
the election of such Bank, and without limiting the generality of
the foregoing, but without duplication, such compensation on
account of losses may include an amount equal to the excess of
(i) the interest that would have been received from the Borrower
under this Agreement on any amounts to be reemployed during an
Interest Period or its remaining portion over (ii) the interest
component of the return that such Bank determines it could have
obtained had it placed such amount on deposit in the interbank
Dollar market selected by it for a period equal to such Interest
Period or its remaining portion.
Section 7.05. Determinations. (a) All determinations by a Bank
contemplated by Sections 7.01, 7.02 and 7.04 shall be made by
such Bank in good faith. In making such determinations, each Bank
may make such estimates, assumptions, allocations and the like
that such Bank in good faith determines to be appropriate, but
such Bank's selection thereof in accordance with this Section
7.05, and the determinations made by such Bank on the basis
thereof, shall be final, binding and conclusive upon the
Borrower, except, in the case of such determinations, for
manifest errors in computation or transmission. Each Bank
requesting payment under this Article 7 shall furnish to the
Borrower upon request a certificate describing the assumptions
underlying the computation of the amounts claimed by it. The
Bank submitting such certificate shall indicate the extent to
which the amount requested reflects an increased cost to a bank
or other institution to which it sold a participation in
accordance with Section 9.08.
(b) Each Bank agrees to attempt to avoid or minimize increased
costs under Sections 7.01, 7.02 and 7.04 unless in the sole
opinion of such Bank such action would adversely affect it.
ARTICLE 8
THE AGENT
Section 8.01. Appointment and Powers. Each Bank hereby
irrevocably appoints and authorizes The Bank of New York, and The
Bank of New York hereby agrees, to act as the agent and
representative of such Bank under this Agreement with such powers
as are delegated to the Agent by the terms hereof, together with
such other powers as are reasonably incidental thereto. The
Agent shall have no duties or responsibilities except those
expressly set forth herein and shall not be required under any
circumstances to take any action that, in its judgment, is
contrary to this Agreement or Applicable Law or would expose it
to personal liability. The Agent shall not, by reason of its
serving as the Agent, be a trustee or other fiduciary for any
Bank.
Section 8.02. Limitation on Agent's Liability. Neither the Agent
nor any of its directors, officers, employees or agents shall be
liable or responsible for any action taken or omitted to be taken
by it or them under this Agreement or any Note, except for its or
their own gross negligence, willful misconduct or knowing
violations of law. The Agent shall not be responsible to any of
the Banks for (a) any recitals, statements, representations or
warranties contained in this Agreement or any Note or in any
certificate or other document referred to or provided for in, or
received by any of the Banks under, this Agreement, (b) the
validity, effectiveness or enforceability of any certificate or
other document or (c) any failure by the Borrower to perform any
of its obligations under this Agreement or any Note. The Agent
may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents
or attorneys-in-fact so long as the Agent was not grossly
negligent in selecting or directing such agents or attorneys-in-
fact. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any
thereof by telephone, telex, telecopier, telegram or cable)
believed by it to be genuine and correct and to have been signed
or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants
and other experts selected by the Agent. As to any matters not
expressly provided for by this Agreement, the Agent shall in all
cases be fully protected in acting, or in refraining from acting,
under this Agreement in accordance with instructions signed by
the Required Banks, and such instructions of the Required Banks
and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks.
Section 8.03. Defaults. The Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than the non-
payment to it of fees or principal of or interest on Loans)
unless the Agent has received notice from a Bank or the Borrower
specifying such Default and stating that such notice is a "Notice
of Default". In the event that the Agent receives such a notice
of the occurrence of a Default, the Agent shall give prompt
notice thereof to the Banks. In the event of any Default, the
Agent shall (subject to Section 8.05(b)) (a) in the case of a
Default that constitutes an Event of Default, take either or both
of the actions referred to in clauses (a) and (b) of the first
sentence of Section 6.02, if so directed by the Required Banks,
and (b) in the case of any Default, take such other action with
respect to such Default as shall be reasonably directed by the
Required Banks (such action to be conclusively deemed reasonable
if taken by the Agent); provided that, unless and until the Agent
shall have received such directions, the Agent may take such
action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of the
Banks.
Section 8.04. Rights as a Bank. Each Person acting as the Agent
that is also a Bank shall, in its capacity as a Bank, have the
same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not acting as the Agent,
and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include such Person in its individual
capacity. Each Person acting as the Agent and its Affiliates may
(without having to account therefor to any Bank) accept deposits
from, lend money to and generally engage in any kind of banking,
trust or other business with the Borrower and its Affiliates as
if it were not acting as the Agent, and such Person and its
Affiliates may accept fees and other consideration from the
Borrower and its Affiliates for services in connection with this
Agreement or otherwise without having to account for the same to
the Banks.
Section 8.05. Indemnification. (a) The Banks agree to indemnify
the Agent (to the extent not reimbursed under Section 9.02),
ratably on the basis of the respective principal amounts of the
Loans outstanding made by the Banks (or, if no Loans are at the
time outstanding, ratably on the basis of their respective
Commitments), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent (including
the costs and expenses that the Borrower is obligated to pay
under Section 9.02) in any way relating to or arising out of this
Agreement or any Note or any other documents contemplated thereby
or referred to therein or the transactions contemplated thereby
or the enforcement of any of the terms thereof or of any such
other documents, provided that no Bank shall be liable for any of
the foregoing to the extent they arise from gross negligence,
willful misconduct or knowing violations of law by the Agent.
(b) Notwithstanding any other provision of this Agreement or any
Note, the Agent shall in all cases be fully justified in failing
or refusing to act hereunder unless it shall be indemnified to
its satisfaction by the Banks against any and all liability and
expense that may be incurred by it by reason of taking or
continuing to take any such action.
Section 8.06. Non-Reliance on Agent and Other Banks. Each Bank
agrees that it has, independently and without reliance on the
Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit
analysis of the Borrower and the decision to enter into this
Agreement, and that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking
action under this Agreement. The Agent shall not be required to
keep itself informed as to the performance or observance by the
Borrower of this Agreement or any other document referred to or
provided for herein or to inspect the properties or books of the
Borrower or any Subsidiary thereof. Except for notices, reports
and other documents and information expressly required to be
furnished to the Banks by the Agent under this Agreement, the
Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any Affiliate
thereof that may come into the possession of the Agent or any of
its Affiliates.
Section 8.07. Resignation of the Agent. Subject to the
appointment and acceptance of a successor Agent as provided
below, the Agent may resign at any time by giving notice thereof
to the Banks and the Borrower. Upon receipt of any such notice
of resignation, the Required Banks may, after consultation with
the Borrower, appoint a successor Agent. If no successor Agent
shall have been so appointed by the Required Banks and shall have
accepted such appointment within 30 days after the retiring
Agent's giving of notice of resignation, then the retiring Agent
may, on behalf of the Banks and after consultation with the
Borrower, appoint a successor Agent. Upon the acceptance of any
appointment as Agent by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights,
powers, privileges, duties and obligations of the retiring Agent,
and the retiring Agent shall be discharged from its duties and
obligations as Agent under this Agreement. After any retiring
Agent's resignation or removal as Agent, the provisions of this
Article 8 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was
acting as the Agent.
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices. (a) All notices and other communications
under this Agreement, including but not limited to materials
delivered pursuant to Article 5, shall be in writing (which shall
include communications by telex and telecopy), except that
notices under Sections 1.02(a), 1.02(b), 1.02(d), 1.03(b),
1.04(c)(iii), 1.06(c), 1.08, 1.12(e) and 6.02 may be by
telephone, promptly confirmed in writing. In the event of a
discrepancy between telephonic notice to the Agent or any Bank
and the written confirmation thereof, or in the event written
confirmation of such notice is not furnished, the telephonic
notice as understood by the Agent or such Bank will be deemed the
effective notice to the extent that the Agent or such Bank acts
in reliance thereon. All written notices and communications
shall be sent by registered or certified mail, postage prepaid,
return receipt requested, by prepaid telex, by telecopier or by
courier service, or shall be delivered by hand.
(b) All notices and other communications under this Agreement
shall be given at the following respective addresses and telex,
telecopier and telephone numbers and to the attention of the
following Persons:
(i) if to the Borrower, to it at:
Yankee Gas Services Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
(ii) if to the Agent, to it at:
The Bank of New York
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telex No.: 177612
Attention: Xxxx X. Xxxx, 19th Floor
Telephone No: (000) 000-0000
Telecopier No: (000) 000-0000
Xxxxxxxx Xxxxxx, 18th Floor
Telephone No: (000) 000-0000
Telecopier No: (000) 000-0000/6367
(iii)if to any Bank, to it at the address or telex, telecopier or
telephone number, and to the attention of the Person, set forth
under such Bank's name on Annex A as the notice address for such
Bank; or at such other address or telex, telecopier or telephone
number or to the attention of such other Person as the party to
which such information pertains may hereafter specify for the
purpose in a notice to the Borrower and the Agent specifically
captioned "Notice of Change of Address".
(c) Each notice and other communication under this Agreement
shall be effective or deemed delivered or furnished (i) if given
by mail, on the third Business Day after such communication is
deposited in the mail, addressed as above provided, (ii) if given
by telex or telecopier, when such communication is transmitted to
the appropriate number determined as provided above in Section
9.01(b) and the appropriate answer-back is received or receipt is
otherwise acknowledged, (iii) if given by courier service or by
hand delivery, when delivered to the addressee as provided above
and (iv) if given by telephone, when communicated to the Person
or to the holder of the office specified as the Person or
officeholder to whose attention communications are to be given,
or, in the case of notice by the Agent to the Borrower under
Section 6.02 given by telephone, if such Person or officeholder
is unavailable at the time, such notice shall be effective when
communicated to any other officer of the Borrower.
Notwithstanding the foregoing, (i) notices of a change of
address, telex, telecopier or telephone number shall not be
effective until received and (ii) notices to the Agent under
Sections 1.02(a), 1.02(b), 1.02(d), 1.03(b), 1.04(c)(iii),
1.06(c), 1.08 and 1.12(e) shall not be deemed given or furnished
on any day unless physically received, by an officer of the Agent
in its syndications department, not later than 1:00 p.m. (New
York time) on such day.
(d) Any requirement under Applicable Law of reasonable notice by
the Agent or the Banks to the Borrower of any event shall be met
if notice is given in the manner prescribed above at least 10
days before (i) the date of such event or (ii) the date after
which such event will occur.
Section 9.02. Expenses; Indemnification. Whether or not any
Loans are made hereunder, the Borrower shall:
(a) pay or reimburse the Agent and the Banks for all reasonable
transfer, documentary, stamp and similar taxes, and all recording
and filing fees, payable as a result of, in connection with, or
in any way related to the execution, delivery and performance of
this Agreement, the Notes or the making of the Loans;
(b) pay or reimburse the Agent for all of the Agent's reasonable
costs and expenses (including reasonable fees and disbursements
of legal counsel and other experts employed or retained by the
Agent) incurred in connection with (i) the negotiation,
preparation, execution and delivery of (A) this Agreement and the
Notes and (B) whether or not executed, any waiver, amendment or
consent under or to this Agreement and the Notes, (ii) consulting
with respect to any matter in any way arising out of, relating
to, or connected with, this Agreement, including, but not limited
to, the enforcement by the Agent or the Banks of any of their
respective rights or the performance by the Agent or the Banks of
their respective obligations under this Agreement and the Notes
and (iii) protecting, preserving, exercising or enforcing any of
the rights of the Agent or the Banks under this Agreement or the
Notes;
(c) pay or reimburse the Banks for all of their reasonable costs
and expenses (including reasonable fees and disbursements of
legal counsel and other experts employed or retained by any
Bank), incurred during the continuance of or related to a
Default, in connection with (i) the negotiation, preparation,
execution and delivery of any waiver, amendment or consent under
or to this Agreement or any Note, whether or not executed, (ii)
consulting with respect to any matter in any way arising out of,
relating to, or connected with this Agreement, including, but not
limited to, the enforcement by the Banks of their rights or the
performance by the Banks of their respective obligations under
this Agreement or any Note and (iii) protecting, preserving,
exercising or enforcing any of the rights of the Banks under this
Agreement or any Note; and
(d) indemnify and hold the Agent and the Banks harmless from and
against all losses suffered, and pay or reimburse the Agent and
the Banks for all of its and their reasonable costs and expenses
(including reasonable fees and disbursements of legal counsel and
other experts employed or retained by the Agent or any Bank)
incurred, in connection with (i) any Credit Agreement Related
Claim (whether asserted by any Bank or the Borrower or any other
Person and whether asserted before or after the Repayment Date),
and the prosecution or defense thereof, or (ii) any governmental
investigation (whether by a judicial, executive or legislative
body) in any manner related to or arising out of the Agreement,
the Notes or the transactions contemplated thereby), except that
the foregoing indemnity shall not be applicable to any loss
suffered or any cost or expense incurred by the Agent or any Bank
to the extent such loss, cost or expense is determined by a
judgment of a court referred to in the second to last sentence of
Section 9.10 that is binding on the Agent or such Bank, final and
not subject to review on appeal, to be the direct result of acts
or omissions on the part of the Agent or such Bank, as the case
may be, constituting (A) reckless disregard for the rights of
another Person, (B) willful misconduct, (C) knowing violations of
law or (D)in the case of claims by the Borrower against the Agent
or any Bank, the Agent's or such Bank's failure to observe any
other standard applicable to it under any of the other provisions
of this Agreement or, but only to the extent not waivable
thereunder, Applicable Law. All amounts payable by the Borrower
under this Section 9.02 shall be due upon written demand with an
itemization of costs.
Section 9.03. Rights Cumulative. All of the rights and remedies
of the Agent and the Banks under this Agreement and the Notes
shall be cumulative and not exclusive and shall be in addition to
all other rights and remedies of the Agent and the Banks under
this Agreement, the Notes and Applicable Law, and nothing herein
or therein shall be construed as limiting any such rights or
remedies.
Section 9.04. Waivers; Amendments. (a) Except as provided in
paragraph (b) of this Section, any term, covenant, agreement or
condition of this Agreement or the Notes may be amended or
waived, and any departure therefrom may be consented to, if, but
only if, such amendment, waiver or consent is in writing and is
signed by the Required Banks and, if the rights or duties of the
Agent are affected thereby, by the Agent and, in the case of an
amendment, by the Borrower; provided, however, that no amendment,
waiver or consent shall (i) unless in writing and signed by each
Bank affected thereby, (A) increase the amount of such Bank's
Commitment, (B) reduce the amount of any payment of principal of
or interest on such Bank's Loans or Notes or the fees payable to
such Bank hereunder, or (C) postpone any date fixed for any
payment of principal of or interest on such Bank's Loans or Notes
or the fees payable to such Bank hereunder, or (ii) unless in
writing and signed by each of the Banks, (A) amend the definition
of "Required Banks" contained in Section 10.01,(B) amend this
Section 9.04 or any provision of this Agreement requiring the
consent or other action of all of the Banks, or (C) increase the
aggregate amount of the Commitments as the same may be reduced
from time to time pursuant to any provision of this Agreement.
Unless otherwise specified in such waiver or consent, a waiver or
consent given hereunder or under the Notes shall be effective
only in the specific instance and for the specific purpose for
which given.
(b) Notwithstanding anything to the contrary contained herein,
this Agreement, including (i) Annex A, may be amended from time
to time for the purpose of effecting an assignment by a Bank in
accordance with Section 9.07(a) by an amendment in writing signed
by the assignor Bank, the assignee Bank, the Agent and, in the
case of an assigment requiring the consent of the Borrower, the
Borrower, and (ii) the timing and administrative procedures set
forth in Section 1.03 may be unilaterally amended by the Agent on
a reasonable basis with prior notice to the Borrower, with
reasonable notice to the Borrower and the Banks.
(c) No course of dealing or performance by the Agent or any Bank,
including any delay or forbearance by it in exercising any right
under this Agreement or any Note, shall operate as a waiver by it
of such right, or the amendment, release or novation of any
provision thereof, nor shall any single or partial exercise of
any right preclude other or further exercises thereof or the
exercise of any other right. In exercising their rights and
remedies, the Agent and the Banks may be selective, and the
exercise by the Agent or any Bank of any right or remedy shall
not be deemed a waiver of its right at any time and from time to
time to exercise any one or more of its other rights and
remedies, nor shall any single or partial exercise of any right
or remedy preclude its other or further exercise at any time and
from time to time.
Section 9.05. Set-Off. Upon the failure of the Borrower to pay
when due any amount payable under this Agreement or any Note or
upon and after the occurrence of any Event of Default, the Agent
and each Bank and each of their respective branches and offices
is hereby authorized by the Borrower, at any time and from time
to time, without notice, (a) to set off against, and to
appropriate and apply to the payment of, the Obligations, any and
all amounts owing by the Agent or such Bank or any such office or
branch to the Borrower (whether payable in Dollars or any other
currency, whether matured or unmatured, and, in the case of
deposits, whether general or special, time or demand and however
evidenced) and (b) pending any such action, to the extent
necessary, to hold such amounts as collateral to secure the
Obligations and to return as unpaid for insufficient funds any
and all checks and other items drawn against any deposits so held
as the Agent or such Bank in its sole discretion may elect.
Section 9.06. Sharing of Recoveries. Each Bank agrees that, if,
including, but not limited to, as a result of (a) the exercise of
any right of counterclaim, set-off, banker's lien or similar
right, (b) its receipt of a secured claim under any applicable
bankruptcy, insolvency or other similar law, the security for
which is a debt owed by it to the Borrower, including a secured
claim under 11 U.S.C.A. Sec. 506, (c) the allocation of payments by
the Borrower in a manner contrary to the provisions of Section
1.14 or (d) any other reason, such Bank shall receive payment of
a proportion of the aggregate amount due and payable to it
hereunder and under its Notes as principal, interest or fees that
is greater than the proportion received by any other Bank in
respect of the aggregate of such amounts due and payable to such
other Bank hereunder and under its Notes, then the Bank receiving
such proportionately greater payment shall purchase
participations (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in the rights of
the other Banks hereunder and under their Notes so that all such
recoveries with respect to such amounts due and payable hereunder
and under all the Notes held by the Banks shall be pro rata;
provided that if all or part of such proportionately greater
payment received by the purchasing Bank is thereafter recovered
by or on behalf of the Borrower from such Bank, such purchases
shall be rescinded and the purchase prices paid for such
participations shall be returned to such Bank to the extent of
such recovery, but without interest (unless the purchasing Bank
is required to pay interest on the amount recovered to the Person
recovering such amount, in which case the selling Bank shall be
required to pay interest at a like rate), provided further that
nothing in this Section 9.06 shall impair the right of any Bank
to exercise any right of set-off or counterclaim it may have and
to apply the amount subject to such exercise to the payment of
indebtedness of the Borrower and its Subsidiaries other than the
Obligations subject to the sharing provisions of this Section
9.06. The Borrower expressly consents to the foregoing
arrangements and agrees that any holder of a participation in any
rights hereunder or under any such Note so purchased or acquired
pursuant to this Section 9.06 shall, with respect to such
participation, be entitled to all of the rights of a Bank under
Sections 7.02, 7.04, 9.02(d) and 9.05 and may exercise any and
all rights of set-off with respect to such participation as fully
as if the Borrower was directly indebted to the holder of such
participation for Loans in the amount of such participation.
Section 9.07. Assignment. (a) The Borrower may, with the prior
written consent of the Agent (which consent shall not be
unreasonably withheld), replace any of the Banks listed on Annex
A with another bank; provided, (i) that the Bank being replaced
has been paid in full all amounts due it hereunder, (ii) that the
full amount of the Commitments remains unchanged, (iii) that the
percentage of the total Commitments allocated to the other Banks
listed on Annex A (or any successors thereto) remains unchanged
unless prior written consent from such Banks has been obtained
and (iv) any such replacement bank assumes all the rights and
obligations of its predecessor.
(b) The Bank of New York may, without the consent of the Borrower
or any Bank, assign any or all of its rights and obligations
under this Agreement and any Note to one or more Persons, except
that (i) no such assignment shall be made to a Person that is not
an Eligible Assignee without the written consent of the Borrower
and (ii) no such assignment shall be made without the consent of
the Borrower if, after giving effect thereto, The Bank of New
York's Commitment would be less than $1,000,000. Each Bank other
than The Bank of New York may (i) without the consent of the
Borrower or the Agent, assign all (but not less than all) of its
rights and obligations under this Agreement and the Notes to any
of its Affiliates that is an Eligible Assignee and (ii) with the
prior consent of the Borrower with notice to the Agent (which
consent shall not be unreasonably withheld), assign any or all of
its rights and obligations under this Agreement and the Notes to
one or more Persons. Any assignment or transfer by The Bank of
New York or any other Bank of any of its obligations under this
Agreement or the Notes in accordance with the terms of this
paragraph (a) shall, to the extent of the obligations so assigned
or transferred, release such Bank and constitute a novation. In
connection with each such assignment by The Bank of New York or
any other Bank, (i) the assignor Bank, the assignee Bank, the
Agent and, in the case of an assignment requiring the consent of
the Borrower, the Borrower shall enter into an amendment to Annex
A and (ii) the Borrower shall issue new Notes to the assignee
Bank and, in the case of a partial assignment, to the assignor
Bank against receipt of the existing Notes of the assignor Bank,
such amendment and new Notes to appropriately reflect such
assignment. In the event of any partial assignment by any Bank,
all payments and communications by the Borrower or the Agent to
the assignee Bank may, at the option of the Borrower and the
Agent, respectively, be made to the assignor Bank in the same
manner as if such assignment had not occurred.
(c) The Borrower may not assign or transfer any of its rights or
obligations under this Agreement or any Note without the prior
written consent of each Bank, and no such assignment or transfer
of any such obligation shall relieve the Borrower thereof unless
each Bank shall have consented to such release in a writing
specifically referring to the obligation from which the Borrower
is to be released.
(d) Notwithstanding any other provision of this Section 9.07,
each Bank may at any time, without complying with any
restrictions set forth in this Section 9.07, assign all or any
portion of its rights under such Bank's Commitment under this
Agreement, its Loans and Notes to any of the twelve Federal
Reserve Banks provided that any such assignment to a Federal
Reserve Bank shall not release the Bank assignor from its
obligations under this Agreement.
Section 9.08. Participations. Each Bank may from time to time
sell or otherwise grant participations in its Loans and Notes to
any Person, and the holder of any such participation (a) shall,
with respect to its participation, be entitled to all of the
rights of a Bank under Sections 7.02, 7.04, 9.02(d) and 9.05 and
(b) may exercise any and all rights of set-off or banker's lien
with respect thereto, in each case as fully as if the Borrower
was directly indebted to the holder of such participation for
Loans in the amount of such participation; provided that (i) all
claims to be made on behalf of any participant under Section
7.02, 7.04 or 9.02(d) shall be made by the Bank that granted such
participation and all payments pursuant to such claims shall be
made by the Borrower to such Bank, (ii) such Bank shall remain
primarily liable to the parties hereto for its obligations
hereunder, and (iii) each participation agreement shall provide
that the participant (A) will comply with the restrictions
contained in the last sentence of Section 5.03(b) to the same
extent as if it were a Bank and (B) will keep all of the
Borrower's proprietary Information confidential. Each Bank
shall, promptly after granting any such participation, notify the
Borrower of the identity of the holder of such participation.
Section 9.09. Governing Law. This Agreement and the Notes,
including matters related to the Maximum Permissible Rate, shall
be construed in accordance with and governed by the law of the
State of New York.
Section 9.10. Judicial Proceedings; Waiver of Jury Trial. Any
judicial proceeding brought against the Borrower with respect to
any Credit Agreement Related Claim may be brought in any court of
competent jurisdiction in the City and State of New York and, by
execution and delivery of this Agreement, the Borrower (a)
accepts, generally and unconditionally, the nonexclusive
jurisdiction of such courts and any related appellate court and
irrevocably agrees to be bound by any judgment rendered thereby
in connection with any Credit Agreement Related Claim and (b)
irrevocably waives any objection it may now or hereafter have as
to the venue of any such suit, action or proceeding brought in
such a court or that such court is an inconvenient forum. The
Borrower hereby waives personal service of process and consents
that service of process upon it may be made by certified or
registered mail, return receipt requested, at its address
specified or determined in accordance with the provisions of
Section 9.01(b), and service so made shall be deemed completed on
the third Business Day after such service is deposited in the
mail. Nothing herein shall affect the right to serve process in
any other manner permitted by law or shall limit the right of the
Agent or any Bank to bring proceedings against the Borrower in
the courts of any other jurisdiction. Any judicial proceeding by
the Borrower against the Agent or any Bank involving any Credit
Agreement Related Claim shall be brought only in a court in New
York, New York or the city in which the chief executive office of
the Agent or such Bank, as the case may be, is located. THE
BORROWER, THE AGENT AND EACH BANK HEREBY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING ANY CREDIT AGREEMENT RELATED
CLAIM.
Section 9.11. Exemption from Withholding. (a) Each Bank that is
not a United States person (as such term is defined in Section
7701(a)(30) of the Code) shall submit to the Borrower and the
Agent on or before the date the initial Loan is made hereunder
(or, in the case of a Person that became a Bank by assignment,
promptly upon such assignment), duly completed and signed copies
of either (i) Form 1001 of the United States Internal Revenue
Service entitling such Bank to a complete exemption from
withholding on all amounts to be received by such Bank pursuant
to this Agreement and the Loans or (ii) Form 4224 of the United
States Internal Revenue Service relating to all amounts to be
received by such Bank pursuant to this Agreement and the Loans.
Each such Bank shall, from time to time after submitting either
such Form, submit to the Borrower and the Agent such additional
duly completed and signed copies of one or the other of such
Forms (or such successor Forms as shall be adopted from time to
time by the relevant United States taxing authorities) as may be
(i) requested in writing by the Borrower or the Agent and (ii)
appropriate under then current United States law or regulations
to avoid or reduce United States withholding taxes on payments in
respect of all amounts to be received by such Bank pursuant to
this Agreement or the Loans. Upon the request of the Borrower or
the Agent, each Bank that is a United States person (as such term
is defined in Section 7701(a)(30) of the Code) shall submit to
the Borrower and the Agent a certificate to the effect that it is
such a United States person.
(b) If any Bank determines that, as a result of any Regulatory
Change, it is unable to submit to the Borrower or the Agent any
form or certificate that such Bank is obligated to submit
pursuant to the preceding paragraph, or that such Bank is
required to withdraw or cancel any such form or certificate, or
any such form or certificate previously submitted has otherwise
become ineffective or inaccurate, such Bank shall promptly notify
the Borrower and the Agent of such fact.
(c) Notwithstanding anything to the contrary contained herein,
the Borrower shall not be required to pay any additional amount
in respect of United States withholding taxes pursuant to Section
1.12(b) or Section 7.02 to any Bank that (i) is not, on the date
this Agreement executed by such Bank (or, in the case of a Person
that became a Bank by assignment, on the date of such
assignment), either (x) entitled to submit Form 1001 entitling
such Bank to a complete exemption from withholding on all amounts
to be received by such Bank pursuant to this Agreement and the
Loans or Form 4224 relating to all amounts to be received by such
Bank pursuant to this Agreement and the Loans or (y) a United
States person (as such term is defined in Section 7701(a)(30) of
the Code), or (ii) has failed to submit any form or certificate
that it was required so to do pursuant to this Section 9.11 and
entitled so to do under Applicable Law or (iii) is no longer
entitled to submit Form 1001 or Form 4224 (or any successor Form
as shall be adopted from time to time by the relevant United
States taxing authorities) as a result of any change in
circumstances other than a Regulatory Change.
Section 9.12. Severability of Provisions. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. To
the extent permitted by Applicable Law, the Borrower hereby
waives any provision of law that renders any provision hereof
prohibited or unenforceable in any respect.
Section 9.13. Survival of Obligations. Except as otherwise
expressly provided herein, the rights and obligations of the
parties hereunder shall survive the repayment of the Loans and
the Notes.
Section 9.14. Entire Agreement. This Agreement and the Notes
embody the entire agreement between the Borrower, the Agent and
the Banks relating to the subject matter hereof and supersede all
prior agreements, representations and understandings, if any,
relating to such subject matter.
Section 9.15. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
Section 9.16. Successors and Assigns. All the provisions of this
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
ARTICLE 10
INTERPRETATION
Section 10.01. Definitional Provisions.
(a) Defined Terms. For the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to that
term in Section 302 of ERISA.
"Adjusted LIBOR" means, for any Interest Period, a rate per annum
(rounded upward, if necessary, to the next higher 1/16 of 1%)
equal to the rate obtained by dividing (i) LIBOR (similarly
rounded) for such Interest Period by (ii) a percentage equal to 1
minus the Reserve Requirement in effect from time to time during
such Interest Period.
"Advance" means an advance of the proceeds of a Loan hereunder.
"Affiliate" means, with respect to any Person at any time, any
other Person that, directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such first Person at such time.
"Agent" means The Bank of New York, as agent and representative
for the Banks under this Agreement and the Notes, and any
replacement Agent appointed pursuant to Section 8.07.
"Agent's Fee Letter" means the letter, dated the date hereof,
from the Borrower to, and accepted by, The Bank of New York,
relating to the payment of certain fees by the Borrower to the
Agent.
"Agent's Office" means the address of The Bank of New York
specified in or determined in accordance with the provisions of
Section 9.01(b).
"Agreement" means this Agreement, as amended from time to time,
and after giving effect to all waivers and departures from the
terms hereof that have been consented to but only, in the case of
each such amendment, waiver or consent, to the extent it complies
with the provisions of Section 9.04.
"Agreement Date" means June 20, 1989.
"Alternate Base Rate" means, at any time, the higher of (i) the
Base Rate and (ii) the Federal Funds Rate plus 1/2%.
"Applicable Law" means, anything in Section 9.10 to the contrary
notwithstanding, (i) all applicable common law and principles of
equity and (ii) all applicable provisions of all (A)
constitutions, statutes, rules, regulations and orders of
governmental bodies, (B) Governmental Approvals and (C) orders,
decisions, judgments and decrees of all courts and arbitrators.
"Base Rate" means, at any time, the rate of interest publicly
announced from time to time by The Bank of New York as its
"prime" rate (which rate is not The Bank of New York's lowest
rate of interest).
"Base Rate Loan" means a Loan the interest on which is, or is to
be, as the context may require, computed on the basis of the Base
Rate.
"Base Rate Note" means a promissory note in the form of Exhibit
A-1.
"Bid Borrowing" means any borrowing of Bid Loans from one or more
of the Banks on a given date, consisting, collectively, of all
Bid Loans made or to be made by the Banks on such date.
"Bid Loan" means an amount advanced by a Bank pursuant to Section
1.03.
"Bid Note" means a promissory note in the form of Exhibit A-3.
"Bonds" means first mortgage bonds issued by the Borrower or, if
there are no such first mortgage bonds outstanding, the senior
debt securities of the Borrower.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banks in New York City are authorized to
close.
"Cash Coverage Ratio" means with respect to any such period the
ratio of (a) the sum of (i) consolidated net income of the
Borrower for such period plus (or minus) (ii) all extraordinary
items deducted (or added) in determining said net income plus
(iii) all income taxes deducted in determining said net income
plus (iv) total interest charges of the Borrower and its
Subsidiaries deducted in determining said net income, excluding
allowance for borrowed funds used during construction (such
interest charges with such exclusion being referred to as "Actual
Interest Expense") plus (v) depreciation minus (vi) allowance for
equity and borrowed funds used during construction and other
noncash items described in Financial Accounting Standards Board
Statement No. 90 to (b) Actual Interest Expense for such period.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" of any Bank means the amount set forth opposite its
name in Annex A, as the same may be reduced or limited from time
to time pursuant to Section 1.08, or, as the context may require,
the obligation of such Bank to make Pro Rata Loans in an
aggregate amount not exceeding such amount as so reduced or
limited.
"Common Equity" shall mean the sum of (i) the aggregate par value
of common stock issued to provide funds to finance the business
of the Borrower, (ii) capital contributions from Persons to
provide funds to finance the business of the Borrower, (iii)
other capital paid-in to provide funds to finance the business of
the Borrower, (iv) plus any earned surplus or less any deficit,
attributable to the business of the Borrower.
"Consolidated Capitalization" means at any time an amount equal
to the sum of (a) Consolidated Stockholders' Equity and (b)
Consolidated Funded Debt, in each case, as of such time.
"Consolidated Debt" means at any time the consolidated Debt of
the Borrower and its Consolidated Subsidiaries as of such time.
"Consolidated Funded Debt" means at any time Consolidated Debt
that is, at such time, Funded Debt.
"Consolidated Net Income", for any Person for any period, means
the amount of consolidated net income of such Person and its
Consolidated Subsidiaries for such period (taken as a cumulative
whole), provided that there shall be excluded: (i) any net income
(or net loss) of a Consolidated Subsidiary (A) for any period
during which it was not a Consolidated Subsidiary or (B), in case
of any such net income, to the extent that the declaration or
payment of dividends or similar distributions by that
Consolidated Subsidiary is not at the time permitted by operation
of the terms of any Contract or Applicable Law; (ii) any net
income (or net loss) of any other Person (other than a
Consolidated Subsidiary) in which such Person or any of its
Consolidated Subsidiaries has an ownership interest, except to
the extent that any such income has actually been received by
such Person or such Subsidiary in the form of cash dividends or
similar distributions; (iii) any restoration of any contingency
reserve, except to the extent that provision for such reserve was
made out of income during such period; (iv) any net gains or
losses on the sale or other disposition, not in the ordinary
course of business, of investments and other capital assets,
provided that there shall also be excluded any related charges
for taxes thereon; (v) any net gain arising from the collection
of the proceeds of any insurance policy (other than a business
interruption insurance policy); (vi) any write-up of any asset;
(vii) any net gains resulting from the defeasance of any Debt;
(viii) any earnings from discontinued businesses; and (ix) any
extraordinary gains or losses.
"Consolidated Stockholders' Equity" means at any time the
consolidated stockholders' equity of the Borrower and the
Consolidated Subsidiaries less their consolidated Mandatorily
Redeemable Obligations (except to the extent deducted in
determining such consolidated stockholders equity), in each case,
as of such time.
"Consolidated Subsidiary" means, with respect to any Person at
any time, any Subsidiary of such Person or any other entity the
accounts of which would be consolidated with those of such first
Person in its consolidated financial statements as of such time.
"Contract" means any indenture, agreement, other contractual
restriction, lease, instrument, certificate of incorporation or
charter, or by-law, except that no Loan Document shall constitute
a "Contract".
"Credit Agreement Related Claim" means any claim (whether
sounding in tort, contract or otherwise) in any way arising out
of, related to, or connected with, this Agreement, the Notes or
the relationship established hereunder or thereunder, whether
such claim arises or is asserted before or after the Agreement
Date or before or after the Repayment Date.
"Debt" of any Person means at any time, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all
obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or
services, except trade accounts payable that arise in the
ordinary course of business but only if and so long as the same
are payable on customary trade terms, (iv) all obligations of
such Person as lessee under capital leases, (v) all obligations
of such Person to purchase securities or other property that
arise out of or in connection with the sale of the same or
substantially similar securities or property, (vi) all non-
contingent obligations of such Person to reimburse any other
Person in respect of amounts paid under a letter of credit or
similar instrument to the extent that such reimbursement
obligations remain outstanding after they become non-contingent,
(vii) all obligations with respect to interest rate and currency
swaps and similar obligations obligating such Person to make
payments, whether periodically or upon the happening of a
contingency, except that if any agreement relating to such
obligations provides for the netting of amounts payable by and to
such Person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such Person, then in
each such case, the amount of such obligations shall be the net
amount thereof, (viii) all Debt secured by (or for which the
holder of such Debt has an existing right, contingent or
otherwise, to be secured by) a Lien on any asset of such Person,
whether or not such Debt is assumed by such Person, and (ix) all
Debt of others Guaranteed by such Person.
"Default" means any condition or event that constitutes an Event
of Default or that with the giving of notice or lapse of time or
both would, unless cured or waived, become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States
of America.
"Domestic Lending Office" of any Bank means the branch or office
designated by such Bank from time to time as the branch or office
at which such Bank's Base Rate Loans are to be made and
maintained.
"Eligible Assignee" means (i) a commercial bank organized under
the laws of the United States, or any State thereof, and having
combined capital and surplus in excess of $100,000,000, (ii) a
commercial bank organized under the laws of any other country
that is a member of the Organization for Economic Cooperation and
Development ("OECD"), or a political subdivision of any such
country, and having combined capital and surplus (or the
equivalent thereof under the accounting principles applicable
thereto) in excess of $100,000,000, provided that such bank is
acting through a branch or agency located in the country in which
it is organized or another country that is also a member of the
OECD and (iii) the central bank of any country that is a member
of the OECD.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" means any Person, including a Subsidiary or
other Affiliate of the Borrower, that is a member of any group of
organizations within the meaning of Code Sections 414(b), (c),
(m) or (o) of which the Borrower is a member.
"Existing Benefit Plan" means any Plan listed on Schedule 3.08.
"Event of Default" means any of the events specified in Section
6.01.
"Extension" means an extension of the Termination Date for one
year pursuant to Section 2.05.
"Federal Funds Rate" means, for any day, the rate determined by
the Agent to be the prevailing rate per annum (rounded upward, if
necessary, to the next higher 1/100 of 1 %)bid at 10:00 a.m. (or
as soon thereafter as is practicable) on such day by two or more
New York Federal funds dealers of recognized standing selected by
the Agent for the purchase at face value of Federal funds in the
secondary market in an amount comparable to the principal amount
of the Loans of the Bank acting as Agent to which the Federal
Funds Rate is to apply and with a maturity of one day.
"Fee Payment Date" means the fifth Business Day of each January,
April, July and October.
"Funded Current Liability Percentage" has the meaning ascribed to
such term in Code Section 401(a)(29).
"Funded Debt" means, with respect to any Person, Debt of such
Person having a final maturity date more than one year after the
date of issuance, incurrence or assumption thereof by such
Person, including the current portion of any such Debt and
including Debt that is renewable or extendable, at the option of
the obligor, to a date more than one year after the date of
issuance, incurrence or assumption thereof.
"Generally Accepted Accounting Principles" means generally
accounting principles as in effect in the United States on the
Restatement Effective Date (or the Agreement Date with respect to
financial statements and computations delivered or made prior to
the Restatement Effective Date).
"Governmental Approval" means an authorization, consent,
approval, license or exemption of, registration or filing with,
or report or notice to, any governmental unit.
"Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person, directly or indirectly,(i)
guaranteeing any Debt or Liability of any other Person or (ii) in
any other manner (whether or not constituting a guaranty)
providing for the payment of any such Debt or Liability or
otherwise protecting, or having the practical effect of
protecting, the holder of such Debt or Liability against loss
(whether such obligation arises by virtue of such Person being a
partner of a partnership or participant in a joint venture or by
agreement to indemnify, to keep well, to purchase assets, goods,
securities or services, to take or pay, to reimburse for payments
made under letters of credit or otherwise). The word "Guarantee"
when used as a verb has the correlative meaning.
"Information" means data, certificates, reports, statements
(including, but not limited to, financial statements delivered
pursuant to or referred to in Sections 5.01 and 5.02), opinions
of counsel, documents and other information, whether, in the case
of any such in writing, the same was prepared by the Borrower or
any other Person.
"Interest Payment Date" means the last Business Day of January,
April, July and October of each year.
"Interest Period" means a period commencing, in the case of a Bid
Loan and in the case of the first Interest Period applicable to a
LIBOR Loan, on the date of the making of, or conversion into,
such Loan, and, in the case of each subsequent, successive
Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending, at the
election of the Borrower, in the case of LIBOR Interest Periods,
on the same day in the first, second, third or sixth calendar
month thereafter, and, in the case of a Bid Loan, on the day
specified in the notice of the Borrower delivered pursuant to
Section 1.03(e) except that (i) any Interest Period that would
otherwise end on a day that is not a LIBOR Business Day shall be
extended to the next succeeding LIBOR Business Day unless, in the
case of a LIBOR Interest Period, such LIBOR Business Day falls in
another calendar month, in which case such Interest Period shall
end on the next preceding LIBOR Business Day, (ii) any LIBOR
Interest Period that begins on the last LIBOR Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month in which such Interest
Period ends) shall, subject to clauses (iii) and (iv) below, end
on the last LIBOR Business Day of a calendar month, (iii) any
Interest Period that begins prior to the Termination Date and
that would otherwise end after the Termination Date shall end on
the Termination Date, and (iv) if any Interest Period applicable
to a LIBOR Loan would, by virtue of clause (iii) above, be less
than one month, such Loan shall be made as or converted into a
Base Rate Loan. "LIBOR Interest Period" means an Interest Period
applicable to a LIBOR Loan.
"Lending Office" of any Bank means the Domestic Lending Office or
LIBOR Lending Office of such Bank or both. For purposes of
Sections 7.01 and 7.02, references to a "Bank" shall be deemed to
include a reference to any applicable Lending Office of such
Bank.
"Liability" as applied to a Person, means an obligation or
liability, whether arising under Contract, Applicable Law or
otherwise, in each case to the extent such obligation or
liability does not otherwise constitute Debt of such Person.
"LIBOR" means, for any Interest Period, the rate per annum at
which The Bank of New York offered or would have offered to place
with first-class banks in the London interbank market deposits in
Dollars in amounts comparable to the LIBOR Loan to which such
Interest Period applies, for a period equal to such Interest
Period, at 11:00 a.m. (London time) on the second LIBOR Business
Day before the first day of such Interest Period.
"LIBOR Business Day" means any Business Day on which dealings in
Dollar deposits are carried on in the London interbank market and
on which commercial banks are open for domestic and international
business (including dealings in Dollar deposits) in London.
"LIBOR Lending Office" of any Bank means the branch, office or
Affiliate designated by such Bank from time to time as the
branch, office or Affiliate at which such Bank's LIBOR Loans are
to be made and maintained.
"LIBOR Loan" means a Loan the interest on which is, or is to be,
as the context may require, computed on the basis of Adjusted
LIBOR.
"LIBOR Margin" means, at all times, .2250%.
"LIBOR Note" means a promissory note in the form of Exhibit A-2.
"Lien", as applied to the property or assets (or the income or
profits therefrom) of any Person, means (in each case, whether
the same is consensual or nonconsensual or arises by Contract,
operation of law, legal process or otherwise): any mortgage,
lien, pledge, attachment, levy, charge or other security interest
or encumbrance of any kind in respect of any property of such
Person, or upon the income or profits therefrom. For this
purpose, a Person shall be deemed to own subject to a Lien any
asset that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement,
capitalized lease or other title retention agreement relating to
such asset.
"Loan" means any amount advanced pursuant to Section 1.01 or
Section 1.03, and a Loan of a "type" means a Loan that bears, or
is to bear, as the context may require, interest based on the
Base Rate, the Adjusted LIBOR for a one-month Interest Period the
Adjusted LIBOR for a two-month Interest Period, the Adjusted
LIBOR for a three-month Interest Period, the Adjusted LIBOR for a
six-month Interest Period or interest as determined pursuant to
Section 1.03 if a Bid Loan.
"Loan Documents" means (i) this Agreement, the Notes and (ii) all
other agreements, documents and instruments arising out of (A)
any agreement, document or instrument referred to in clause (i)
above, (B) any other agreement, document or instrument
referred to in this clause (ii) or (C) any of the transactions
pursuant to any agreement, document or instrument referred to in
clause (i) above or in this clause (ii).
"Mandatorily Redeemable Obligation" means, as applied to a
Person, an obligation of such Person to the extent that it is
redeemable, payable or required to be purchased or otherwise
retired or extinguished (a) at a fixed or determinable date,
whether by operation of a sinking fund or otherwise, (b) at the
option of any Person other than such Person or (c) upon the
occurrence of a condition not solely within the control of such
Person, such as a redemption required to be made out of future
earnings.
"Margin Stock" means "margin stock" as defined in Regulations U
and X.
"Materially Adverse Effect" means, (i) with respect to any
Person, a materially adverse effect on such Person's business,
assets, liabilities, financial condition, results of operations
or business prospects, (ii) with respect to a group of Persons
"taken as a whole", a materially adverse effect on such Persons'
business, assets, liabilities, financial conditions, results of
operations or business prospects taken as a whole on, where
appropriate, a consolidated basis in accordance with Generally
Accepted Accounting Principles, (iii) with respect to any
Contract or any other obligation (other than this Agreement and
the Notes), a materially adverse effect, as to any party thereto,
upon the binding nature, validity or enforceability thereof, and
(iv) with respect to this Agreement or any of the Notes, an
adverse effect, whether or not material, on the binding nature,
validity or enforceability thereof as an obligation of the
Borrower.
"Maximum Permissible Rate" means, with respect to interest
payable on any amount owing to any Person, the rate of interest
on such amount that, if exceeded, could, under Applicable Law,
result in (i) civil or criminal penalties being imposed on such
Person or (ii) such Person's being unable to enforce payment of
(or, if collected, to retain) all or any part of such amount or
the interest payable thereon.
"Multiemployer Plan" means a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Note" means a Base Rate Note and a LIBOR Note, in each case
dated the Restatement Effective Date, or a Bid Note.
"Obligations" means all indebtedness, liabilities, obligations,
covenants and duties of, and all terms and conditions to be
observed by, the Borrower due or owing to, or in favor or for the
benefit of, the Agent and the Banks, or any of them, under this
Agreement or any of the Notes, or any of them, of every kind,
nature and description, direct or indirect, absolute or
contingent, due or not due, contractual or tortious, liquidated
or unliquidated, arising by operation of law or otherwise, now
existing or hereafter arising, and whether or not (i) for the
payment of money or the performance or nonperformance of any act,
(ii) arising or accruing before or after the filing by or against
the borrower of a petition under the Bankruptcy Code or (iii)
allowable under Section 5.02(b)(2) of the Bankruptcy Code.
"Original Agreement" shall have the meaning ascribed thereto in
the first recital to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Lien" means: (i) any Lien securing first mortgage
bonds issued pursuant to the Indenture of Mortgage and Deed of
Trust dated as of June 30, 1989 between the Borrower and the
Connecticut National Bank, as Trustee, or other secured debt
issued by the Borrower that did not at the time of issuance
result in a violation of Section 4.10; (ii) any Lien securing a
tax, assessment or other governmental charge or levy or the claim
of a materialman, mechanic, carrier, warehouseman or landlord for
labor, materials, supplies or rentals incurred in the ordinary
course of business, but only if payment thereof shall not at the
time be required to be made in accordance with Section 4.01(e)
and foreclosure, distraint, sale or other similar proceedings
shall not have been commenced; (iii) any Lien on the properties
and assets of a Subsidiary of the Borrower securing an obligation
owing to the Borrower; (iv) any Lien consisting of a deposit or
pledge made in the ordinary course of business in connection
with, or to secure payment of, obligations under worker's
compensation, unemployment insurance or similar legislation; (v)
any Lien constituting an encumbrance in the nature of zoning
restrictions, easements and rights or restrictions of record on
the use of real property that does not materially detract from
the value of such property or impair the use thereof in the
business of the Borrower or any Subsidiary; (vi) any Lien
constituting a lease or sublease granted by the Borrower or any
Subsidiary to others pursuant to a transaction to which Section
4.05 does not apply; (vii) any Lien arising pursuant to an order
of attachment, distraint or similar legal process arising in
connection with legal proceedings, but only if and so long as the
execution or other enforcement thereof is not unstayed for more
than 20 days; (viii) any Lien existing on (A) any property or
asset of any Person at the time such Person becomes a Subsidiary
or (B) any property or asset at the time such property or asset
is acquired by the Borrower or a Subsidiary, but only, in the
case of either (A) or (B), if and so long as (1) such Lien was
not created in contemplation of such Person becoming a Subsidiary
or such property or asset being acquired, (2) such Lien is and
will remain confined to the property or asset subject to it at
the time such Person becomes a Subsidiary or such property or
asset is acquired and to fixed improvements thereafter erected on
such property or asset, (3) such Lien secures only the obligation
secured thereby at the time such Person becomes a Subsidiary or
such property or asset is acquired and (4) the obligation secured
by such Lien is not in default; (ix) any Lien in existence on the
Agreement Date to the extent set forth on Schedule 4.09, but
only, in the case of each such Lien, to the extent it secures an
obligation outstanding on the Agreement Date to the extent set
forth on such Schedule; (x) any Lien securing Purchase Money Debt
but only if, in the case of each such Lien, (A) such Lien shall
at all times be confined solely to the property or asset the
purchase price of which was financed through the incurrence of
the Purchase Money Debt secured by such Lien and to fixed
improvements thereafter erected on such property or asset and (B)
such Lien attached to such property or asset within 30 days of
the acquisition of such property or asset; or (xi) any Lien
constituting a renewal, extension or replacement of a Lien
constituting a Permitted Lien by virtue of clause (viii), (ix),
(x) or (xi) of this definition, but only, in the case of each
such renewal, extension or replacement Lien, if (A) the principal
amount of the obligation secured by such Lien does not exceed the
principal amount of the obligation so secured at the time of the
extension, renewal or replacement, (B) the obligation secured by
such Lien bears interest at a rate per annum that is commercially
reasonable at the time such obligation is incurred and (C) such
renewal, extension or replacement Lien is limited to all or a
part of the property or asset that was subject to the Lien
extended, renewed or replaced and to fixed improvements
thereafter erected on such property or asset.
"Person" means an individual, sole proprietorship, corporation,
partnership, trust, unincorporated organization, mutual company,
joint stock company, estate, union, employee organization, a
government or any agency or political subdivision thereof and,
for the purpose of the definition of "ERISA Affiliate", a trade
or business.
"Plan" means, at any time, any employee benefit plan (including a
Multiemployer Plan), the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any
time within six years immediately preceding the time in question
were, in whole or in part, the responsibility of the Borrower or
any ERISA Affiliate.
"Post-Default Rate" means a rate per annum equal to the Base Rate
as in effect from time to time plus 2% (provided that, if the
amount that is to bear interest at the Post-Default Rate is a
LIBOR Loan, the "Post-Default Rate" for such Loan shall be, for
the period commencing on the date the Post-Default Rate becomes
applicable and ending on the earlier of (i) the day such Loan is
converted into a Base Rate Loan and (ii) the last day of the
Interest Period during which such amount becomes due and payable,
the interest rate for such Loan as provided in Section
1.04(a)(i)(B) plus 2% and thereafter the Base Rate as in effect
from time to time plus 2%).
"Pro Rata Loan" means a Base Rate or LIBOR Loan.
"Prohibited Transaction" means a transaction that is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not
exempt under Section 4975 of the Code or Section 408 of ERISA.
"Purchase Money Debt" means (i) Debt of the Borrower that is
incurred to finance part or all of (but not more than) the
purchase price of a tangible asset, provided that (A) neither the
Borrower nor any Subsidiary had at any time prior to such
purchase any interest in such asset other than a security
interest or an interest as lessee under an operating lease and
(B) such Debt is incurred within 30 days after such purchase, or
(ii) Debt that (A) constitutes a renewal, extension or refunding
of, but not an increase in the principal amount of, Purchase
Money Debt that is such by virtue of clause (i) or (ii) and (B)
bears interest at a rate per annum that is commercially
reasonable at the time such Debt is incurred.
"Refunding Loan" means any Loan to the extent the proceeds
thereof are to be used to refinance outstanding Bid Loans.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System and any successor regulation.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System and any successor regulation.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System and any successor regulation.
"Regulatory Change" means any Applicable Law (including, without
limitation, the risk-based capital guidelines contained in 12
C.F.R. Parts 3, 208, 225 and 325), interpretation, directive,
request or guideline (whether or not having the force of law), or
any change therein or in the administration or enforcement
thereof, that becomes effective or is implemented after the
Agreement Date, whether or not the same is (i) the result of an
enactment by a government or any agency or political subdivision
thereof, a determination of a court or regulatory authority, or
otherwise or (ii) enacted, adopted, issued or proposed before or
after the Agreement Date, including any such that imposes,
increases or modifies any Tax, reserve requirement, insurance
charge, special deposit requirement, assessment or capital
adequacy requirement, but excluding any such that imposes,
increases or modifies any income or franchise tax imposed upon
any Bank by any jurisdiction (or any political subdivision
thereof) in which such Bank or any Lending Office is located.
"Repayment Date" means the later of (i) the Termination Date or
the cancellation or reduction to zero of the Commitments,
whichever occurs first, and (b) the payment in full of the
Obligations.
"Reportable Event" means, to the extent the same relates to or
affects a Plan, (i) any of the events set forth in ERISA Sections
4043(b) (other than a Reportable Event as to which the provision
of 30 days' notice to the PBGC is waived under applicable
regulations), 4068(f) or 4063(a) or the regulations thereunder,
(ii) any event requiring the Borrower or any ERISA Affiliate to
provide security to a Plan under Code Section 401(a)(29) and
(iii) any failure to make a payment required by Code Section
412(m).
"Representation and Warranty" means each representation or
warranty made pursuant to or under (i) Section 2.01, Section
2.02, Article 3, Section 5.02 or any other provision of this
Agreement, (ii) any amendment of or waiver or consent under this
Agreement or (iii) any Schedule to this Agreement or any such
amendment, waiver or consent, whether or not, in the case of any
representation or warranty referred to in clause (i), (ii) or
(iii) of this definition, the information that is the subject
matter thereof is within the knowledge of the Borrower.
"Required Banks" means Banks holding more than 66-2/3% of the
aggregate unpaid principal amount of the Notes (if any) and Banks
having in the aggregate more than 66-2/3% of the Commitments;
provided, that if any Note is outstanding, for purposes of
requesting the Agent to take any action described in Section
6.02(a), "Required Banks" means Banks holding more than 66-2/3%
of the aggregate unpaid principal amount of the Notes then
outstanding; and provided, further, that for purposes of
requesting the Agent to take any action described in Section
6.02(b), "Required Banks" means Banks having in the aggregate
more than 66-2/3% of the Commitments.
"Reserve Requirement" means at any time the then current maximum
rate for which reserves (including any marginal, supplemental or
emergency reserve) are required to be maintained under Regulation
D by member banks of the Federal Reserve System in New York City
with deposits exceeding five billion Dollars against
"Eurocurrency liabilities", as that term is used in Regulation D.
Adjusted LIBOR shall be adjusted automatically on and as of the
effective date of any change in the applicable Reserve
Requirement.
"Restatement Effective Date" shall have the meaning set forth in
Section 2.01.
"Subsidiary" means, with respect to any Person, any other Person
of which (i) securities having ordinary voting power to elect a
majority of the board of directors (or other persons having
similar functions) or (ii) other ownership interests ordinarily
constituting a majority voting interest, are at the time,
directly or indirectly, owned or controlled by such first Person,
or by one or more of its Subsidiaries, or by such first Person
and one or more of its Subsidiaries.
"Tax" means any Federal, State or foreign tax, assessment or
other governmental charge or levy (including any withholding tax)
upon a Person or upon its assets, revenues, income or profits,
other than income and franchise taxes imposed upon any Bank by
the jurisdictions (or any political subdivisions thereof) in
which such Bank or any Lending Office of such Bank is located.
"Termination Date" means January 31, 1998 or such later date to
which the Commitments have been extended pursuant to an
Extension.
"Termination Event" means (i) a Reportable Event, (ii) the
termination of a Plan, or the filing of a notice of intent to
terminate a Plan, or the treatment of a Plan amendment as a
termination under ERISA Section 4041(c), (iii) the institution of
proceedings to terminate a Plan under ERISA Section 4042 or (iv)
the appointment of a trustee to administer any Plan under ERISA
Section 4042.
"Unfunded Benefit Liabilities" means with respect to any Plan at
any time, the amount of unfunded benefit liabilities of such Plan
at such time as determined under ERISA Section 4001(a)(18).
"YES" means Yankee Energy System, Inc., a Connecticut
corporation, of which the Borrower is a wholly-owned subsidiary.
(b) Other Definitional Provisions. (i) Except as otherwise
specified herein, all references herein (A) to any Person shall
be deemed to include such Person's successors and assignees, but
only, in the case of assignees of the Borrower or any Bank, to
the extent the applicable assignment complies with the provisions
of this Agreement, (B) to any Applicable Law defined or referred
to herein shall be deemed references to such Applicable Law as
the same may have been or may be amended or supplemented from
time to time, (C) to this Agreement or any Note shall be deemed
references to this Agreement or such Note (and, in the case of
any Note, any other instrument issued in substitution therefor)
as the terms thereof may have been or may be amended,
supplemented, waived or modified from time to time, but only, in
the case of each such amendment, supplement, waiver or
modification, to the extent permitted by, and effected in
accordance with, the terms thereof, and (D) to any other Contract
defined or referred to herein or therein shall be deemed
references to such Contract (and, in the case of any instrument,
any other instrument issued in substitution therefor) as the
terms thereof may have been or may be amended, supplemented,
waived or otherwise modified from time to time.
(ii) When used in this Agreement, the words "herein", "hereof"
and "hereunder", and words of similar import, shall refer to this
Agreement as a whole and not to any provision of this Agreement,
and the words "Section", "Article", "Schedule", "Annex" and
"Exhibit" shall refer to Sections and Articles of, and Schedules,
Annexes and Exhibits to, this Agreement unless otherwise
specified.
(iii) Whenever the context so requires, the neuter gender
includes the masculine or feminine, and the singular number
includes the plural, and vice versa.
(iv) Unless otherwise specified, all references herein to a time
of day shall mean that time of day in New York City.
(v) All terms defined in this Agreement shall have the defined
meanings when used in the Notes or, except as otherwise expressly
stated therein, any certificate, opinion or other document
delivered pursuant hereto.
Section 10.02. Accounting Matters. Unless otherwise specified
herein, all accounting determinations hereunder and all
computations utilized by the Borrower in complying with the
covenants contained herein shall be made, all accounting terms
used herein shall be interpreted, and all financial statements
required to be delivered hereunder shall be prepared, in
accordance with Generally Accepted Accounting Principles
(subject, in the case of financial statements delivered pursuant
to Section 5.01(a), to normal year-end auditing adjustments),
except, in the case of such financial statements, for departures
from Generally Accepted Accounting Principles that may from time
to time be concurred with by the Borrower's independent certified
public accountants.
Section 10.03. Representations and Warranties. Unless otherwise
specified, all Representations and Warranties shall be deemed
made at and as of the Agreement Date, at and as of the
Restatement Effective Date, at and as of the time of each Loan,
and, in addition, in the case of any particular Representation
and Warranty, at such other time or times as such Representation
and Warranty is made or deemed made in accordance with the
provisions of this Agreement pursuant to, under which, or in
connection with which, such Representation or Warranty is made or
deemed made.
Section 10.04. Captions. Captions to Sections, Articles,
Schedules, Annexes and Exhibits are provided for convenience of
reference only and shall not constitute a part of this Agreement
for any other purpose.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers all as of the
Restatement Effective Date.
YANKEE GAS SERVICES COMPANY
By s/s Xxxxx X. Xxxxxx
Title: Assistant Treasurer
THE BANK OF NEW YORK,
as Agent and as a Bank
By s/s Xxxx X. Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By s/s Xxxxx X. Xxxxx, Xx.
Title: Director
SHAWMUT BANK CONNECTICUT, N.A.
By s/s Xxxxxx X. Xxxx
Title: Vice President
MELLON BANK, N.A.
By s/s Xxxx Xxxxx Xxxxx
Title: Vice President
SWISS BANK CORPORATION
By s/s Xxxxxx Xxxxxxxxxx
Title: Associate Director
By s/s Xxxxx X. Xxxxxx
Title: Associate Director
Banks, Lending Offices
and Notice Addresses Commitment
THE BANK OF NEW YORK $20,000,000
Domestic Lending Office:
The Bank of New York
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LIBOR Lending Office:
The Bank of New York
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice Address:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telex No.: 177612
Attention: Xxxx X. Xxxx, 19th Floor
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Xxxxxxxx Xxxxxx, 18th Floor
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000/6367
THE FIRST NATIONAL BANK
OF BOSTON $10,000,000
Domestic Lending Office:
The First National Bank of Boston
000 Xxxxxxx Xxxxxx, M/S 01-08-02
Xxxxxx, XX 00000
LIBOR Lending Office:
The First National Bank of Boston
000 Xxxxxxx Xxxxxx, M/S 01-08-02
Xxxxxx, XX 00000
Notice Address:
The First National Bank of Boston
000 Xxxxxxx Xxxxxx, XXX 00-00-00
Xxxxxx, XX 00000
Telex No.: 499-6527
For credit issues:
Attention: Xxxxx X. Xxxxxx
Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
For notices and other issues:
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SHAWMUT BANK
CONNECTICUT, N.A. $10,000,000
Domestic Lending Office:
Shawmut Bank N.A.
One Federal Street, OF0308
Xxxxxx, XX 00000
LIBOR Lending Office:
Shawmut Bank N.A.
One Federal Street, OF0308
Xxxxxx, XX 00000
Notice Address:
Shawmut Bank N.A.
Xxx Xxxxxxx Xxxxxx, XX0000
Xxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx
Vice President
MELLON BANK, N.A. $10,000,000
Domestic Lending Office:
Mellon Bank, N.A.
One Mellon Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
LIBOR Lending Office:
Mellon Bank, N.A.
One Mellon Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Notice Address:
Mellon Bank, N.A.
One Mellon Xxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxx Xxxxx Xxxxx
SWISS BANK CORPORATION $10,000,000
Domestic Lending Office:
Swiss Bank Corporation New York Branch and Cayman Islands
Branches
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
LIBOR Lending Office:
Swiss Bank Corporation
New York Branch and Cayman Islands Branches
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice Address:
Swiss Bank Corporation
New York Branch and Cayman Islands Branches
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Public Utilities Department
Reference all correspondence: Yankee Gas
Services Co. No. 039152
For credit issues:
Attention: Xxxxxx Xxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
For notices and other issues:
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
