Exhibit B-7
EXECUTION VERSION
CREDIT AGREEMENT
Dated as of November 8, 2004
among
NORTHEAST UTILITIES,
as Borrower
THE BANKS NAMED HEREIN,
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
and
JPMORGAN CHASE BANK,
as Fronting Bank
BARCLAYS CAPITAL and
UNION BANK OF CALIFORNIA, N.A.,
Joint Lead Arrangers
CITIGROUP GLOBAL MARKETS INC. and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
Co-Syndication Agents
FLEET NATIONAL BANK,
Documentation Agent
CREDIT AGREEMENT
Dated as of November 8, 2004
THIS CREDIT AGREEMENT is made by and among:
(i) NORTHEAST UTILITIES, an unincorporated voluntary
business association organized under the laws of
the Commonwealth of Massachusetts ("NU" or the
"Borrower");
(ii) The financial institutions (the "Banks") listed on
the signature pages hereof and the other Lenders
(as hereinafter defined) from time to time party
hereto;
(iii) UNION BANK OF CALIFORNIA, N.A. ("Union
Bank"), as Administrative Agent (as hereinafter
defined) for the Lenders hereunder; and
(iv) JPMORGAN CHASE BANK, as Fronting Bank (as
hereinafter defined).
PRELIMINARY STATEMENT
The Borrower has requested the Banks and the Fronting Bank
to provide the credit facility hereinafter described in the
amounts and on the terms and conditions set forth herein. The
Banks and the Fronting Bank have so agreed on the terms and
conditions set forth herein, and the Administrative Agent has
agreed to act as agent for the Lenders on such terms and
conditions.
Based upon the foregoing and subject to the terms and
conditions set forth in this Agreement, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be applicable to the
singular and plural forms of the terms defined):
"Account Party" has the meaning set forth in
Section 2.02(a).
"Administrative Agent" means Union Bank, in its capacity as
administrative agent hereunder, or any successor thereto as
provided herein.
"Advance" means an advance by a Lender to the Borrower
pursuant to Article III hereof, and refers to a Eurodollar Rate
Advance or a Base Rate Advance (each of which shall be a "Type"
of Advance).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including, but not
limited to, all directors and officers of such Person),
controlled by, or under direct or indirect common control with
such Person. A Person shall be deemed to control another entity
if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of
such entity, whether through the ownership of voting securities,
by contract or otherwise.
"Agreement" means this Credit Agreement, as the same may be
modified, amended and/or supplemented pursuant to the terms
hereof.
"Applicable Facility Fee Rate" means, for any day, the
percentage per annum set forth below in effect on such day,
determined on the basis of the Applicable Rating Level of the
Borrower:
Applicable Facility Fee Rate
---------------------------
Applicable Rating Level Percentage (%)
----------------------- --------------
Level I 0.125
Level II 0.150
Level III 0.175
Level IV 0.200
Level V 0.250
Level VI 0.400
Any change in the Applicable Facility Fee Rate caused by a
change in the Applicable Rating Level shall take effect at
the time such change in the Applicable Rating Level shall
occur.
"Applicable Lending Office" means, with respect to each
Lender:
(i) in the case of any Advance, (A) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar Rate
Advance or (B) such Lender's "Domestic Lending Office" in
the case of a Base Rate Advance, in each case as specified
opposite such Lender's name on Schedule I hereto or in the
Lender Assignment pursuant to which it became a Lender; or
(ii) in each case, such other office of such Lender as
such Lender may from time to time specify in writing to the
Borrower and the Administrative Agent.
"Applicable Margin" means, for any day for any outstanding
Advance, the percentage per annum set forth below in effect on
such day, determined on the basis of the Applicable Rating Level
for the Borrower:
Applicable Margin Percentage
----------------------------
Eurodollar Utilization Utilization
Rating Rate Margin for Margin
Level Advances Eurodollar Base for Base
(%) Rate Rate Rate
Advances Advances Advances
(%) (%) (%)
Level I 0.375 0.125 0.000 0.125
Level II 0.475 0.125 0.000 0.125
Level III 0.575 0.125 0.000 0.125
Level IV 0.800 0.125 0.000 0.125
Level V 1.000 0.125 0.000 0.125
Level VI 1.225 0.125 0.225 0.125
provided, that (x) the Applicable Margin for Eurodollar Rate
Advances shall be increased by the rate per annum set forth above
under the caption "Utilization Margin for Eurodollar Rate
Advances" that corresponds to the Applicable Rating Level used to
determine such Applicable Margin and (y) the Applicable Margin
for Base Rate Advances shall be increased by the rate per annum
set forth above under the caption "Utilization Margin for Base
Rate Advances" that corresponds to the Applicable Rating Level
used to determine such Applicable Margin, in any case, during any
period in which the total principal amount of Outstanding Credits
is greater than one-half of the Total Commitment. Any change in
the Applicable Margin caused by a change in the Applicable Rating
Level shall take effect at the time such change in the Applicable
Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance made to
the Borrower, either of (i) the Base Rate from time to time
applicable to such Advance plus the Applicable Margin, or
(ii) the Eurodollar Rate from time to time applicable to such
Advance plus the Applicable Margin.
"Applicable Rating Level" shall be determined at any time
and from time to time on the basis of the Reference Ratings in
accordance with the following:
Applicable
Rating S&P Reference
Level Rating ▇▇▇▇▇'▇ Reference Rating
---------- -------------- ------------------------
Level I A- or higher Or A3 or higher
Level II BBB+ Or Baa1
Level III BBB Or Baa2
Level IV BBB- and Baa3
Level V BBB- Or Baa3
Level VI BB+ or lower and Ba1 or lower
(or unrated) (or unrated)
"Level I" applies on any day on which the S&P Reference Rating
is A- or higher or the ▇▇▇▇▇'▇ Reference Rating is A3 or higher.
"Level II" applies on any day on which (i) the S&P Reference
Rating is BBB+ or higher or the ▇▇▇▇▇'▇ Reference Rating is Baa1
or higher and (ii) Level I does not apply.
"Level III" applies on any day on which (i) the S&P Reference
Rating is BBB or higher or the ▇▇▇▇▇'▇ Reference Rating is Baa2
or higher and (ii) neither Level I or Level II applies.
"Level IV" applies on any day on which the S&P Reference Rating
is BBB- and the ▇▇▇▇▇'▇ Reference Rating is Baa3.
"Level V" applies on any day on which (i) the S&P Reference
Rating is BBB- or higher or the ▇▇▇▇▇'▇ Reference Rating is Baa3
or higher and (ii) none of Levels I, II, III or IV applies.
"Level VI" applies on any day on which (i) the S&P Reference
Rating is BB+ or lower and the ▇▇▇▇▇'▇ Reference Rating is Ba1
or lower and (ii) none of Levels I, II, III, IV or V applies.
In the event that the Reference Ratings do not correspond to the
same Applicable Rating Level, then, (i) if the higher of such
Reference Ratings corresponds to Levels I, II, III or V and (A)
the Reference Ratings differ by only one rating level, the
Applicable Rating Level that corresponds to the higher of such
Reference Ratings shall apply, and (B) the Reference Ratings
differ by more than one rating level, the Applicable Rating
Level that is one level below the Applicable Rating Level that
corresponds to the higher of such Reference Ratings shall apply,
and (ii) if the Reference Ratings differ by more than one rating
level and the lower of such Reference Ratings corresponds to
Level VI, the Applicable Rating Level that corresponds to the
lower of such Reference Ratings shall apply. The Applicable
Rating Level shall be redetermined as and when any change in the
ratings used in the determination thereof shall be announced by
S&P or ▇▇▇▇▇'▇, as the case may be.
"Approved Fund" means any Person (other than a natural
person) that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business that
is administered or managed by (i) a Lender, (ii) an Affiliate of
a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Available Commitment" means, for each Lender, the excess of
such Lender's Commitment over such Lender's Percentage of the
Outstanding Credits. "Available Commitments" shall refer to the
aggregate of the Lenders' Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the caption
to this Agreement.
"Base Rate" means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time, which
rate per annum shall at all times be equal to the higher of:
(i) the rate of interest announced publicly by the
Administrative Agent in its principal place of business from
time to time as the Administrative Agent's "base rate" or
"reference rate"; and
(ii) 1/2 of one percent per annum above the Federal Funds
Rate in effect from time to time.
If the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it
is unable to ascertain the Federal Funds Rate for any reason,
including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms
thereof, the Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition, in the event
the Administrative Agent is unable to ascertain the Federal Funds
Rate, until the circumstances giving rise to such inability no
longer exist. Any change in the Base Rate due to a change in the
Administrative Agent's base rate or the Federal Funds Rate shall
be effective on the effective date of such change in the
Administrative Agent's base rate or the Federal Funds Rate.
"Base Rate Advance" means an Advance in respect of which the
Borrower has selected in accordance with Article III hereof, or
this Agreement provides for, interest to be computed on the basis
of the Base Rate.
"Beneficiary" means any Person designated by an Account
Party to whom the Fronting Bank is to make payment, or on whose
order payment is to be made, under a Letter of Credit.
"Borrower" has the meaning assigned to that term in the
caption to this Agreement.
"Borrowing" means a borrowing consisting of one or more
Advances of the same Type and Interest Period, if any, made to
the Borrower on the same Business Day by the Lenders, ratably in
accordance with their respective Commitments. A Borrowing may be
referred to herein as being a "Type" of Borrowing, corresponding
to the Type of Advances comprising such Borrowing. For purposes
of this Agreement, all Advances of the same Type and Interest
Period, if any, made or converted on the same day to the Borrower
shall be deemed a single Borrowing hereunder until repaid.
"Business Day" means a day of the year on which banks are
not required or authorized to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances,
on which dealings are carried on in the London interbank market.
"Cash Collateral Account" means an account maintained at the
principal domestic office of the Administrative Agent for the
purpose, and subject to the terms and conditions, set forth in
Section 2.02(h).
"Change of Control" means (i) any Person or "group" (within
the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended), shall either (A) acquire beneficial
ownership of more than 50% of any outstanding class of common
stock of NU having ordinary voting power in the election of
directors of NU or (B) obtain the power (whether or not
exercised) to elect a majority of NU's directors or (ii) the
Board of Directors of NU shall not consist of a majority of
Continuing Directors. For purposes of this definition, the term
"Continuing Directors" means directors of NU on the Closing Date
and each other director of NU, if such other director's
nomination for election to the Board of Directors of NU is
recommended by a majority of the then Continuing Directors.
"CL&P" means The Connecticut Light and Power Company, a
corporation organized under the laws of the State of Connecticut.
"Closing Date" has the meaning assigned to that term in
Section 5.01 hereof.
"Commitment" means, for each Lender, the aggregate amount
set forth opposite such Lender's name on Schedule I or, if such
Lender has entered into one or more Lender Assignments, set forth
for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 10.07(c), in each such case as such
amount may be reduced or increased from time to time pursuant to
Section 2.04 hereof. "Commitments" shall refer to the aggregate
of the Lenders' Commitments hereunder.
"Commitment Increase" has the meaning given such term in
Section 2.04(b).
"Commitment Increase Approvals" means any governmental
approval or resolution of the board of directors of the Borrower
that has not been obtained by or on behalf of the Borrower and is
not in full force and effect on the date hereof, which
governmental approval or resolution is required to be obtained in
order to authorize a Commitment Increase and the performance by
the Borrower of its obligations under this Agreement after giving
effect to such Commitment Increase.
"Common Equity" means, at any date for the Borrower, an
amount equal to the sum of the aggregate of the par value of, or
stated capital represented by, the outstanding common shares of
the Borrower and its Subsidiaries and the surplus, paid-in,
earned and other capital, if any, of the Borrower and its
Subsidiaries, in each case as determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Confidential Information" has the meaning assigned to that
term in Section 10.08 hereof.
"Consolidated Debt" means, at any date for the Borrower, the
total Debt of the Borrower and its Subsidiaries as determined on
a consolidated basis in accordance with generally accepted
accounting principles.
"Consolidated EBIT" means, for any period (as determined on
a consolidated basis in accordance with generally accepted
accounting principles), the Borrower's and its Subsidiaries' net
income for such period, adjusted as follows:
(i) increased by the amount of federal and state income taxes to
the extent deducted in the computation of such Borrower's
and/or its Subsidiaries' consolidated net income for such
period;
(ii) increased by the amount of Consolidated Interest Expense
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iii) increased by the amount of dividends on preferred stock
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iv) decreased (increased) by the gain (loss) on asset sales done
outside the ordinary course of business by the Borrower
and/or its Subsidiaries to the extent such gains (losses)
are not offset by increases (decreases) in amortization of
regulatory assets, and to the extent such gain (loss) is
included in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period; and
(v) decreased by the amount of revenues accrued by the Borrower
and/or its Subsidiaries related to interest on Stranded Cost
Recovery Obligations of Subsidiaries of the Borrower, and
increased by the amount of operating expenses accrued by the
Borrower and/or its Subsidiaries related to interest on
Stranded Cost Recovery Obligations of Subsidiaries of the
Borrower, in each case to the extent included in the
computation of the Borrower's and/or its Subsidiaries'
consolidated net income for such period.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of any interest required to be paid during such
period by the Borrower and its Subsidiaries on Debt (including
the current portion thereof) (as determined on a consolidated
basis in accordance with generally accepted accounting
principles), excluding interest required to be paid on the
Stranded Cost Recovery Obligations of any Subsidiary of the
Borrower.
"Date of Issuance" means the date of issuance by the
Fronting Bank of a Letter of Credit under this Agreement.
"Debt" means, for any Person, without duplication,
(i) indebtedness of such Person for borrowed money, including but
not limited to obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (excluding
Stranded Cost Recovery Obligations that are non-recourse to such
Person), (ii) obligations of such Person to pay the deferred
purchase price of property or services (excluding any obligation
of such Person to Dominion Resources, Inc. or its successor with
respect to disposition of spent nuclear fuel burned prior to
April 3, 1983), (iii) obligations of such Person as lessee under
leases that shall have been or should be, in accordance with
generally accepted accounting principles, recorded as capital
leases, (iv) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the
kinds referred to in clauses (i) through (iii), above, including
all Parent Support Obligations, (v) letters of credit, guaranties
and other forms of credit enhancement issued to support power
sales and trading activities, and (vi) liabilities in respect of
unfunded vested benefits under ERISA Plans.
"Defaulting Lender" has the meaning set forth in Section
2.02(m).
"Disclosure Documents" means for the Borrower and each
Principal Subsidiary, as applicable: (i) such Person's Annual
Report on Form 10-K for the fiscal year ended December 31, 2003;
(ii) its Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31 and June 30, 2004; (iii) the Information
Memorandum; and (iv) the Borrower's Current Reports on Form 8-K
filed January 22, 2004, March 30, 2004, May 19, 2004, June 15,
2004, June 24, 2004, July 14, 2004, August 19, 2004 and September
15, 2004.
"Drawing" means a drawing by a Beneficiary under any Letter
of Credit.
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of
a Lender, (iii) an Approved Fund and (iv) any other Person (other
than a natural person) approved by (A) the Administrative Agent,
(B) in the case of any assignment of any Commitment, the Fronting
Bank, and (C) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding
the foregoing, "Eligible Assignee" shall not include the Borrower
or any of the Borrower's Affiliates or Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person, any
trade or business (whether or not incorporated) that is a
"commonly controlled entity" of such Person within the meaning of
the regulations under Section 414 of the Internal Revenue Code of
1986, as amended from time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan"
subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than a
ERISA Multiemployer Plan) maintained for employees of the
Borrower or any ERISA Affiliate of the Borrower and covered by
Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under such regulations)
with respect to an ERISA Plan or an ERISA Multiemployer Plan, or
(ii) the withdrawal of the Borrower or any of its ERISA
Affiliates from an ERISA Plan or an ERISA Multiemployer Plan
during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate an ERISA Plan or an ERISA
Multiemployer Plan or the treatment of an ERISA Plan amendment as
a termination or of an ERISA Multiemployer Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or
condition that might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any ERISA Plan or ERISA Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rates per annum at which
deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 a.m. (London time) two
Business Days before the first day of such Interest Period in the
amount of $1,000,000 and for a period equal to such Interest
Period. The Eurodollar Rate for the Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions
of Sections 3.05(d) and 4.03(g).
"Eurodollar Rate Advance" means an Advance in respect of
which the Borrower has selected in accordance with Article III
hereof, or this Agreement provides for, interest to be computed
on the basis of the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender or its
subparticipant, for each Interest Period for each Eurodollar Rate
Advance, means the reserve percentage applicable during such
Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days
in such Interest Period during which any such percentage shall be
so applicable) under Regulation D or other regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement,
without benefit of or credit for proration, exemptions or
offsets) for such Lender or its subparticipant with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01
hereof.
"Existing Credit Facility" means the credit facility
provided under the Credit Agreement, dated as of November 10,
2003, among NU, the lenders party thereto, Union Bank, as
administrative agent for the lenders thereunder, and Bank One,
NA, as fronting bank thereunder.
"Existing LCs" means letters of credit (i) issued under the
Existing Credit Facility; (ii) outstanding and available to be
drawn as of the Closing Date; and (iii) identified on
Schedule III hereto.
"Expiration Date" means, with respect to a Letter of Credit,
its stated expiration date.
"Extension of Credit" means the making of any Advance or the
issuance or amendment (including, without limitation, an
extension or renewal) of a Letter of Credit.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal to, for each day during such
period, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter dated October 6,
2003 among the Borrower, CL&P, WMECO, Yankee, PSNH, Barclays
Capital, Barclays Bank PLC, Union Bank, Citigroup Global Markets
Inc., Citicorp USA, Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Inc.
"FERC" means the Federal Energy Regulatory Commission.
"Financial Statements" means, with respect to the Borrower
and each Principal Subsidiary, as applicable, (i) the audited
consolidated balance sheet of such Person as at December 31, 2003
(ii) the unaudited consolidated balance sheet of such Person as
at June 30, 2004, (iii) the audited consolidated statements of
income and cash flows of such Person for the Fiscal Year ended
December 31, 2003 and (iv) the unaudited consolidated statements
of income and cash flows of such Person for the 6-month period
ended June 30, 2004, in each case as included in such Person's
Annual Report on Form 10-K for the Fiscal Year ended December 31,
2003 or Quarterly Report on Form 10-Q for the Fiscal Quarter
ended June 30, 2004.
"First Mortgage Indenture" means, (i) in the case of CL&P,
the Indenture of Mortgage and Deed of Trust, dated as of May 1,
1921, from CL&P to Deutsche Bank Trust Company Americas, as
successor trustee, as previously and hereafter amended and
supplemented, (ii) in the case of Yankee, the Indenture of
Mortgage and Deed of Trust, dated as of July 1, 1989, between
Yankee and The Bank of New York, as successor trustee, as in
effect on the date hereof and as amended and supplemented from
time to time, (iii) in the case of WMECO, any first mortgage
indenture entered into after the date hereof on substantially the
terms of the Old WMECO Indenture and covering substantially the
same collateral, so long as such indenture and the lien created
thereby are approved by the Massachusetts Department of
Telecommunications and Energy, (iv) in the case of NGC, the
Indenture of Mortgage and Deed of Trust, dated as of October 18,
2001, between NGC and The Bank of New York, as trustee, as
amended and supplemented from time to time, and (v) in the case
of PSNH, the First Mortgage Indenture, dated as of August 15,
1978, between PSNH and Wachovia Bank, National Association, as
successor trustee, as previously and hereafter amended and
supplemented.
"Fiscal Quarter" means a period of three calendar months
ending on the last day of March, June, September or December, as
the case may be.
"Fiscal Year" means a period of twelve calendar months
ending on the last day of December.
"Fronting Bank" means JPMorgan Chase Bank and any other
Lender having a long-term credit rating acceptable to the
Borrower that delivers an instrument in form and substance
satisfactory to the Borrower and the Administrative Agent whereby
such other Lender agrees to act as "Fronting Bank" hereunder.
"Governmental Approval" means any authorization, consent,
approval, license, permit, certificate, exemption of, or filing
or registration with, any governmental authority or other legal
or regulatory body (including, without limitation, the Securities
and Exchange Commission, the FERC, the Nuclear Regulatory
Commission, the Connecticut Department of Public Utility Control,
the New Hampshire Public Utilities Commission and the
Massachusetts Department of Telecommunications and Energy)
required in connection with either (i) the execution, delivery or
performance of any Loan Document, or (ii) the nature of the
Borrower's or any Subsidiary's business as conducted or the
nature of the property owned or leased by it.
"Hazardous Substance" means any waste, substance or material
identified as hazardous, dangerous or toxic by any office,
agency, department, commission, board, bureau or instrumentality
of the United States of America or of the State or locality in
which the same is located having or exercising jurisdiction over
such waste, substance or material.
"Indemnified Person" has the meaning assigned to that term
in Section 10.04(b) hereof.
"Information Memorandum" means the Confidential Information
Memorandum, dated October, 2004, regarding the credit facility to
be provided to the Borrower hereunder, as distributed to the
Administrative Agent and the Lenders, including, without
limitation, all schedules and attachments thereto.
"Interest Period" has the meaning assigned to that term in
Section 3.05(a) hereof.
"L/C Commitment Amount" equals $350,000,000, as the same may
be reduced or increased from time to time pursuant to
Section 2.04 hereof.
"Lender Assignment" means an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit 10.07
hereto.
"Lenders" means the financial institutions listed on the
signature pages hereof, and each assignee that shall become a
party hereto pursuant to Section 10.07.
"Letter of Credit" has the meaning set forth in
Section 2.02(a).
"Letter of Credit Request" has the meaning set forth in
Section 2.02(c).
"Lien" means, with respect to any asset or property, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset or property. For the
purposes of this Agreement, a Person or any of its Subsidiaries
shall be deemed to own subject to a Lien any asset that it has
acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means on any date of determination,
Lenders who, collectively, on such date (i) have Percentages in
the aggregate of at least 66-2/3% and (ii) if the Commitments
have been terminated, hold at least 66-2/3% of the then aggregate
Outstanding Credits of the Lenders. Determination of those
Lenders satisfying the criteria specified above for action by the
Majority Lenders shall be made by the Administrative Agent and
shall be conclusive and binding on all parties absent manifest
error.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto.
"NGC" means Northeast Generation Company, a corporation
organized under the laws of the State of Connecticut.
"Note" means a promissory note of the Borrower payable to
the order of a Lender, in substantially the form of Exhibit 1.01A
hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Advances made by such Lender to
the Borrower, as such may be amended, supplemented or otherwise
modified from time to time.
"Notice of Borrowing" has the meaning assigned to that term
in Section 3.01 hereof.
"NU" has the meaning assigned to that term in the caption to
this Agreement.
"NU System Money Pool" means the money pool described in the
application/declaration, as amended, of NU and certain of its
Subsidiaries, filed with the Securities and Exchange Commission
in File No. 70-9755, as amended from time to time.
"NUSCO" means Northeast Utilities Service Company, a
Connecticut corporation.
"Old WMECO Indenture" means the First Mortgage Indenture and
Deed of Trust dated as of August 1, 1954, from WMECO to State
Street Bank and Trust Company, as successor trustee, as amended
and supplemented.
"Other Taxes" has the meaning assigned to that term in
Section 4.05(b)
"Outstanding Credits" mean, on any date of determination, an
amount equal to (i) the aggregate principal amount of all
Advances outstanding on such date plus (ii) the aggregate Stated
Amounts of all issued but undrawn Letters of Credit outstanding
on such date plus (iii) the aggregate amount of Reimbursement
Obligations outstanding on such date (exclusive of Reimbursement
Obligations that, on such date of determination, are repaid with
the proceeds of an Advance made in accordance with Section
2.02(g)(ii), to the extent the principal amount of such Advance
is included in the determination of the aggregate principal
amount of all outstanding Advances as provided in clause (i) of
this definition). The "Outstanding Credits" of a Lender on any
date of determination shall be an amount equal to the outstanding
Advances made by such Lender plus the amount of such Lender's
participatory interest in outstanding Letters of Credit and
Reimbursement Obligations.
"Parent Support Obligation" means, without duplication, any
obligation of the Borrower under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the
kinds referred to in clauses (i) through (iii) and (v) of the
definition of "Debt", including any reimbursement obligation in
respect of a letter of credit, any recourse obligation in respect
of a surety or similar bond or other, similar obligation of the
Borrower other than a construction completion or similar
performance guaranty as permitted hereunder issued on behalf of
Select Energy Services, Inc. (formerly known as HEC Inc.). The
amount of each Parent Support Obligation shall be computed in
good faith in accordance with the Borrower's then applicable ▇▇▇▇-
to-market and other risk management methods.
"Participation Transfer Date" has the meaning assigned to
that term in Section 2.02(m).
"Participation Transfer Period" has the meaning assigned to
that term in Section 2.02(m).
"Payment Date" means the date on which payment of a Drawing
is made by the Fronting Bank.
"PBGC" means the Pension Benefit Guaranty Corporation (or
any successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any date of
determination, the percentage obtained by dividing such Lender's
Commitment on such day by the total of the Commitments on such
day, and multiplying the quotient so obtained by 100%.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint
stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or
agency thereof.
"Principal Subsidiary" shall mean, during any fiscal
quarter, CL&P, WMECO, PSNH, Select Energy Inc., NGC, Yankee and
any other Subsidiary, whether owned directly or indirectly by the
Borrower, which, with respect to the Borrower and its
Subsidiaries taken as a whole, represents at least ten percent
(10%) of the Borrower's consolidated assets (calculated as an
average of such consolidated assets over the preceding four
fiscal quarters) and ten percent (10%) of the Borrower's
consolidated net income (or loss) (calculated as a sum of such
net income (or loss) over the preceding four fiscal quarters).
"PSNH" means Public Service Company of New Hampshire, a
corporation duly organized under the laws of the State of New
Hampshire.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended.
"Recipient" has the meaning assigned to that term in
Section 10.08 hereof.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
"Reference Banks" means Union Bank, Barclays Bank PLC and
JPMorgan Chase Bank and any other bank or financial institution
designated by the Borrower and the Administrative Agent with the
approval of the Majority Lenders to act as a Reference Bank
hereunder.
"Reference Ratings" means the ratings assigned by S&P and
Moody's to the senior, unsecured, non-credit enhanced long-term
Debt of the Borrower.
"Regulatory Asset" means, with respect to CL&P, PSNH or
WMECO, an intangible asset established by statute, regulation or
regulatory order or similar action of a utility regulatory agency
having jurisdiction over CL&P, PSNH or WMECO, as the case may be,
and included in the rate base of CL&P, PSNH or WMECO, as the case
may be, with the intention that such asset be amortized by rates
over time.
"Reimbursement Obligation" means the absolute and
unconditional obligation of the Borrower, pursuant to
Section 2.02(f), to reimburse the Fronting Bank for any Drawing.
"S&P" means Standard and Poor's Ratings Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Stated Amount" means the maximum amount available to be
drawn by a Beneficiary under a Letter of Credit.
"Stranded Cost Recovery Obligations" means, with respect to
any Person, such Person's obligations to make principal, interest
or other payments to the issuer of stranded cost recovery bonds
pursuant to a loan agreement or similar arrangement whereby the
issuer has loaned the proceeds of such bonds to such Person.
"Subsidiary" shall mean, with respect to any Person (the
"Parent"), any corporation, association or other business entity
of which securities or other ownership interests representing 50%
or more of the ordinary voting power are, at the time as of which
any determination is being made, owned or controlled by the
Parent or one or more Subsidiaries of the Parent (whether direct
or indirect) or by the Parent and one or more such Subsidiaries
of the Parent.
"Termination Date" means the earliest to occur of
(i) November 6, 2009, or such later date to which the Termination
Date shall be extended in accordance with Section 2.05, (ii) the
date of termination or reduction in whole of the Commitments
pursuant to Section 2.04 or 8.02 or (iii) the date of
acceleration of all amounts payable hereunder pursuant to
Section 8.02.
"Total Capitalization" means, at any date, the sum of (i)
Consolidated Debt of the Borrower and its Subsidiaries, (ii) the
aggregate of the par value of, or stated capital represented by,
the outstanding shares of all classes of common and preferred
shares of the Borrower and its Subsidiaries and (iii) the
consolidated surplus of the Borrower and its Subsidiaries, paid-
in, earned and other capital, if any, in each case as determined
on a consolidated basis in accordance with generally accepted
accounting principles consistent with those applied in the
preparation of the Borrower's Financial Statements.
"Total Commitment" means $500,000,000, or such other amount
from time to time as shall equal the sum of the Commitments.
"Transferred Amount" has the meaning assigned to that term
in Section 2.02(m).
"Type" has the meaning assigned to such term (i) in the
definition of "Advance" when used in such context and (ii) in the
definition of "Borrowing" when used in such context.
"Union Bank" has the meaning assigned to that term in the
caption to this Agreement.
"Unmatured Default" means the occurrence and continuance of
an event that, with the giving of notice or lapse of time or
both, would constitute an Event of Default.
"WMECO" means Western Massachusetts Electric Company, a
corporation organized under the laws of the Commonwealth of
Massachusetts.
"Yankee" means Yankee Gas Services Company, a corporation
duly organized under the laws of the State of Connecticut.
SECTION 1.02. Computation of Time Periods.
In the computation of periods of time under this
Agreement, any period of a specified number of days or months
shall be computed by including the first day or month occurring
during such period and excluding the last such day or month. In
the case of a period of time "from" a specified date "to" or
"until" a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms; Financial Statements.
All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting
principles applied on a basis consistent with the application
employed in the preparation of the Financial Statements. All
references contained herein to the Borrower's or a Principal
Subsidiary's Annual Report on Form 10-K in respect of a Fiscal
Year or Quarterly Report on Form 10-Q in respect of a Fiscal
Quarter shall be deemed to include any exhibits and schedules
thereto, including without limitation in the case of any Annual
Report on Form 10-K, any "Annual Report" of the Borrower or such
Principal Subsidiary referred to therein.
SECTION 1.04. Computations of Outstandings.
Whenever reference is made in this Agreement to the
principal amount of Outstanding Credits under this Agreement on
any date, such reference shall refer to the aggregate principal
amount of all Outstanding Credits on such date after giving
effect to (i) all Extensions of Credit to be made on such date
and the application of the proceeds thereof and (ii) any
repayment or prepayment of Advances, and any payment of
Reimbursement Obligations, on such date by the Borrower.
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments.
(a) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower from time
to time on any Business Day during the period from the Closing
Date until the Termination Date, in an aggregate amount not to
exceed on any day such Lender's Available Commitment. Within the
limits of such Lender's Available Commitment, the Borrower may
request Advances hereunder, repay or prepay Advances and utilize
the resulting increase in the Available Commitments for further
Advances in accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or
receive any Advance under subsection (a) that would cause the
aggregate principal amount advanced pursuant thereto to exceed
the Available Commitments. In no event shall the Borrower be
entitled to request or receive any Advance that would cause the
total principal amount of all Outstanding Credits to exceed the
Total Commitment.
SECTION 2.02. Letters of Credit
(a) Agreement of Fronting Bank. Subject to the terms and
conditions of this Agreement, the Fronting Bank agrees to issue
and amend (including, without limitation, to extend or renew) for
the account of the Borrower or any Subsidiary thereof (each such
Person, an "Account Party") one or more standby letters of credit
(individually, a "Letter of Credit" and collectively, the
"Letters of Credit") from and including the Closing Date to the
Termination Date, up to a maximum aggregate Stated Amount at any
one time outstanding equal to the L/C Commitment Amount minus
Reimbursement Obligations outstanding at such time, each having
an Expiration Date on or prior to 364 days after the Date of
Issuance, date of extension or renewal, as the case may be, of
such Letter of Credit; provided, however, that the Fronting Bank
will not issue or amend a Letter of Credit if, immediately
following such issuance or amendment, (i) the Stated Amount of
such Letter of Credit would (A) exceed the Available Commitments
or (B) when aggregated with (1) the Stated Amounts of all other
outstanding Letters of Credit and (2) the outstanding
Reimbursement Obligations, exceed the L/C Commitment Amount, or
(ii) the total principal amount of all Outstanding Credits would
exceed the Total Commitment.
(b) Forms. Each Letter of Credit shall be in a form customarily
used by the Fronting Bank or in such other form as has been
approved by the Fronting Bank. At the time of issuance or
amendment, subject to the terms and conditions of this Agreement,
the amount and the terms and conditions of each Letter of Credit
shall be subject to approval by the Fronting Bank and the
Borrower.
(c) Notice of Issuance; Application. The Borrower shall give
the Fronting Bank and the Administrative Agent written notice (or
telephonic notice confirmed in writing) at least three Business
Days prior to the requested Date of Issuance of a Letter of
Credit, such notice to be in substantially the form of
Exhibit 2.02 hereto (a "Letter of Credit Request"). The Borrower
shall also execute and deliver such customary letter of credit
application forms as requested from time to time by the Fronting
Bank. Such application forms shall indicate the identity of the
Account Party and that the Borrower is the "Applicant" or shall
otherwise indicate that the Borrower is the obligor in respect of
any Letter of Credit to be issued thereunder. If the terms or
conditions of the application forms conflict with any provision
of this Agreement, the terms of this Agreement shall govern.
(d) Issuance. Provided the Borrower has given the notice
prescribed by Section 2.02(c) and subject to the other terms and
conditions of this Agreement, including the satisfaction of the
applicable conditions precedent set forth in Article V, the
Fronting Bank shall issue the requested Letter of Credit on the
requested Date of Issuance as set forth in the applicable Letter
of Credit Request for the benefit of the stipulated Beneficiary
and shall deliver the original of such Letter of Credit to the
Beneficiary at the address specified in the notice. At the
request of the Borrower, the Fronting Bank shall deliver a copy
of each Letter of Credit to the Borrower within a reasonable time
after the Date of Issuance thereof. Upon the request of the
Borrower, the Fronting Bank shall deliver to the Borrower a copy
of any Letter of Credit proposed to be issued hereunder prior to
the issuance thereof. The Administrative Agent shall promptly
notify each Lender of its pro rata share of each issued Letter of
Credit and the Expiration Date thereof.
(e) Notice of Drawing. The Fronting Bank shall promptly notify
the Borrower by telephone, facsimile or other telecommunication
of any Drawing under a Letter of Credit.
(f) Payments. The Borrower hereby agrees to pay to the Fronting
Bank, in the manner provided in subsection (g) below:
(i) on each Payment Date, an amount equal to the amount paid
by the Fronting Bank under any Letter of Credit; and
(ii) if any Drawing shall be reimbursed to the Fronting Bank
after 12:00 noon (New York time) on the Payment Date, interest on
any and all amounts required to be paid pursuant to clause (i) of
this subsection (f) from and after the due date thereof until
payment in full, payable on demand, at an annual rate of interest
equal to 2.00% above the Administrative Agent's base rate as in
effect from time to time.
(g) Method of Reimbursement. The Borrower shall reimburse the
Fronting Bank for each Drawing under any Letter of Credit
pursuant to subsection (f) above in the following manner:
(i) the Borrower shall immediately reimburse the Fronting
Bank in the manner described in Section 4.01; or
(ii) if (A) the Borrower has not reimbursed the Fronting Bank
pursuant to clause (i) above, (B) the applicable conditions to
the making of an Advance set forth in Articles II, III and V have
been fulfilled, and (C) the Available Commitments in effect at
such time exceed the amount of the Drawing to be reimbursed, the
Borrower may reimburse the Fronting Bank for such Drawing with
the proceeds of a Base Rate Advance or, if the conditions
specified in the foregoing clauses (A), (B) and (C) have been
satisfied and a Notice of Borrowing requesting a Eurodollar Rate
Advance has been given in accordance with Section 3.01 three
Business Days prior to the relevant Payment Date, with the
proceeds of a Eurodollar Rate Advance.
(h) Expiration or Maturity Date of Letters of Credit; Cash
Collateral Requirement.
(i) If the Termination Date is scheduled to occur prior to
the Expiration Date of any Letter of Credit outstanding hereunder,
the Borrower shall, no later than the Termination Date (after
giving effect to any extension thereof pursuant to Section 2.05),
deposit cash in immediately available funds in the Cash
Collateral Account in an amount equal to the Stated Amount of
such Letter of Credit. If a Drawing pursuant to such Letter of
Credit occurs on or prior to the Expiration Date of such Letter
of Credit, the Borrower authorizes the Fronting Bank to use the
monies deposited in the Cash Collateral Account to make a payment
to the Beneficiary with respect to such Drawing. If no Drawing
occurs on or prior to the Expiration Date of such Letter of
Credit, the Fronting Bank shall promptly return to the Borrower
the balance on deposit in the Cash Collateral Account with
respect to such outstanding Letter of Credit. The Borrower
hereby collaterally assigns, and grants to the Fronting Bank, for
the pro rata benefit of the Fronting Bank and the Lenders, a
security interest in all funds held in the Cash Collateral
Account from time to time and proceeds thereof, as security for
the payment of all amounts due and to become due from the
Borrower to the Fronting Bank under this Agreement. The Cash
Collateral Account shall be in the name of the Borrower for the
benefit of the Fronting Bank and the Lenders as a cash collateral
account, but the Fronting Bank shall have sole dominion and
control over, and sole access to, the Cash Collateral Account.
Neither the Borrower nor any Person claiming on behalf of or
through the Borrower shall have any right to withdraw any of the
funds held in the Cash Collateral Account. The Borrower agrees
that it will not (i) sell or otherwise dispose of any interest in
the Cash Collateral Account or any funds held therein, or
(ii) create or permit to exist any Lien upon or with respect to
the Cash Collateral Account or any funds held therein. The
Fronting Bank shall exercise reasonable care in the custody and
preservation of any funds held in the Cash Collateral Account and
shall be deemed to have exercised such care if such funds are
accorded treatment substantially equivalent to that which the
Fronting Bank accords other funds deposited with the Fronting
Bank in like accounts, it being understood that the Fronting Bank
shall not have any responsibility for taking any necessary steps
to preserve rights against any parties with respect to any funds
held in the Cash Collateral Account.
(ii) At the direction of the Borrower, provided, that no
Unmatured Default or Event of Default shall have occurred and be
continuing, the Fronting Bank shall invest funds on deposit in
the Cash Collateral Account in certificates of deposit, other
bank deposits of the Fronting Bank, or other high-quality short-
term debt instruments, in each case at such rates and for such
periods as the Borrower and the Fronting Bank shall agree. The
Borrower shall bear all risks and costs associated with such
investments and the liquidation thereof and shall make additional
deposits in the Cash Collateral Account to the extent necessary
to ensure that the amounts on deposit therein at all times equal
or exceed the amounts required to be deposited therein pursuant
to this subsection (h). Upon the payment in full of all amounts
due hereunder and the expiration or termination of all Letters of
Credit, the Fronting Bank shall pay to the Borrower the proceeds
of any investments remaining in the Cash Collateral Account.
(iii) If, at any time following payment to the Lenders of
any amounts owing or to become owing in respect thereof, the
Borrower's reimbursement and other obligations under or in
respect of any Letter of Credit shall be transferred to another
credit facility in a manner satisfactory to the Fronting Bank in
its sole and absolute discretion with the result that such Letter
of Credit is deemed issued under such other credit facility, such
Letter of Credit shall no longer be deemed to be a "Letter of
Credit" for purposes of, and shall no longer be deemed to be
outstanding under, this Agreement.
(iv) If at any time there shall be more than one Fronting
Bank, then separate Cash Collateral Accounts shall be maintained by
the Borrower with each such Fronting Bank in respect of the Letters
of Credit issued by such Fronting Bank, and the provisions of
this subsection (h) shall apply with equal force to each such
Cash Collateral Account.
Nothing in this subsection (h) shall limit or otherwise
affect the participatory interests of the Lenders in the
outstanding Letters of Credit.
(i) Nature of Fronting Bank's Duties. In determining whether to
honor any Drawing under any Letter of Credit, the Fronting Bank
shall be responsible only to determine that the documents and
certificates required to be delivered under that Letter of Credit
have been delivered and that they comply on their face with the
requirements of that Letter of Credit. The Borrower otherwise
assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by the Fronting Bank by, the respective
Beneficiaries of such Letters of Credit. In furtherance and not
in limitation of the foregoing, but consistent with applicable
law, the Fronting Bank shall not be responsible (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the
application for and issuance of any drawing honored under a
Letter of Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
such Letter of Credit, or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for errors,
omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex, facsimile or
otherwise, whether or not they be in cipher; (iv) for errors in
interpretation of technical terms; (v) for any loss or delay in
the transmission or otherwise of any document required in order
to make a drawing under any such Letter of Credit, or the
proceeds thereof; (vi) for the misapplication by the Beneficiary
of any such Letter of Credit or of the proceeds of any drawing
honored under such Letter of Credit; and (vii) for any
consequences arising from causes beyond the control of the
Fronting Bank. None of the above shall affect, impair or prevent
the vesting of any of the Fronting Bank's rights or powers
hereunder. Not in limitation of the foregoing, any action taken
or omitted to be taken by the Fronting Bank under or in
connection with any Letter of Credit, whether in determining to
honor any Drawing under any Letter of Credit or otherwise, shall
not create against the Fronting Bank any liability to the
Borrower or any Lender, except for actions or omissions resulting
from the gross negligence or willful misconduct of the Fronting
Bank or any of its agents or representatives.
(j) Obligations of Borrower Absolute. The obligation of the
Borrower to reimburse the Fronting Bank for Drawings honored
under the Letters of Credit issued by it shall be unconditional
and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances including,
without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
(ii) the existence of any claim, set-off, defense or other
right that the Borrower, any Account Party or any Affiliate of
the Borrower or any Account Party may have at any time against a
Beneficiary or any transferee of any Letter of Credit (or any
Persons or entities for whom any such Beneficiary or transferee
may be acting), the Fronting Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated
herein or any unrelated transaction;
(iii) any draft, demand, certificate or any other documents
presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(v) any non-application or misapplication by the Beneficiary
of the proceeds of any Drawing under a Letter of Credit; or
(vi) the fact that an Unmatured Default or Event of Default
shall have occurred and be continuing.
No payment made under this Section shall be deemed to be a waiver of
any claim the Borrower may have against the Fronting Bank or any other
Person.
(k) Participations by Lenders.
(i) (i) By the issuance of a Letter of Credit and without any
further action on the part of the Fronting Bank or any Lender in
respect thereof, the Fronting Bank shall hereby be deemed to have
granted to each Lender, and each Lender shall hereby be deemed to
have acquired from the Fronting Bank, an undivided interest and
participation in such Letter of Credit (including any letter of
credit issued by the Fronting Bank in substitution or exchange
for such Letter of Credit pursuant to the terms thereof) equal to
such Lender's Percentage of the Stated Amount of such Letter of
Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the
Fronting Bank, in accordance with this subsection (k), such
Lender's Percentage of each payment made by the Fronting Bank in
respect of an unreimbursed Drawing under a Letter of Credit. The
Fronting Bank shall notify the Administrative Agent of the amount
of such unreimbursed Drawing honored by it not later than
(x) 12:00 noon (New York time) on the date of payment of a draft
under a Letter of Credit, if such payment is made at or prior to
11:00 a.m. (New York time) on such day, and (y) the close of
business (New York time) on the date of payment of a draft under
a Letter of Credit, if such payment is made after 11:00 a.m. (New
York time) on such day, and the Administrative Agent shall notify
each Lender of the date and amount of such unreimbursed Drawing
under such Letter of Credit honored by the Fronting Bank and the
amount of such Lender's Percentage therein no later than (1) 1:00
p.m. (New York time) on such day, if such payment is made at or
prior to 11:00 a.m. (New York time) on such day, and (2) 11:00
a.m. (New York time) on the next following Business Day, if such
payment is made after 11:00 a.m. (New York time) on such day.
Not later than 2:00 p.m. (New York time) on the date of receipt
of a notice of an unreimbursed Drawing by a Lender, such Lender
agrees to pay to the Fronting Bank an amount equal to the product
of (A) such Lender's Percentage and (B) the amount of the payment
made by the Fronting Bank in respect of such unreimbursed
Drawing.
(ii) If payment of the amount due pursuant to the preceding
sentence from a Lender is received by the Fronting Bank after the
close of business on the date it is due, such Lender agrees to
pay to the Fronting Bank, in addition to (and along with) its
payment of the amount due pursuant to the preceding sentence,
interest on such amount at a rate per annum equal to (a) for the
period from and including the date such payment is due to but
excluding the second succeeding Business Day, the Federal Funds
Rate, and (b) for the period from and including the second
Business Day succeeding the date such payment is due to but
excluding the date on which such amount is paid in full, the
Federal Funds Rate plus 2.00%.
(l) Obligations of Lenders Absolute. Each Lender acknowledges
and agrees that (i) its obligation to acquire a participation in
the Fronting Bank's liability in respect of the Letters of Credit
and (ii) its obligation to make the payments specified herein,
and the right of the Fronting Bank to receive the same, in the
manner specified herein, are absolute and unconditional and shall
not be affected by any circumstances whatsoever, including,
without limitation, (A) the occurrence and continuance of any
Event of Default or any Unmatured Default; (B) any other breach
or default by the Borrower, the Administrative Agent or any
Lender hereunder; (C) any lack of validity or enforceability of
any Letter of Credit or this Agreement; (D) the existence of any
claim, setoff, defense or other right that the Lender may have at
any time against the Borrower, any other Account Party, any
Beneficiary, the Fronting Bank or any other Lender; (E) the
existence of any claim, setoff, defense or other right that the
Borrower may have at any time against any Beneficiary, the
Fronting Bank, the Administrative Agent, any Lender or any other
Person, whether in connection with this Agreement or any other
documents contemplated hereby or any unrelated transactions; (F)
any amendment or waiver of, or consent to any departure from, all
or any of the Letters of Credit or this Agreement; (G) any
statement or any document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in
any respect; (H) payment by the Fronting Bank under any Letter of
Credit against presentation of a draft or certificate that does
not comply with the terms of such Letter of Credit, so long as
such payment is not the consequence of the Fronting Bank's gross
negligence or willful misconduct in determining whether documents
presented under a Letter of Credit comply with the terms thereof;
(I) the occurrence of the Termination Date; or (J) any other
circumstance or happening whatsoever, whether or not similar to
any of the foregoing. Nothing herein shall prevent the assertion
by any Lender of a claim by separate suit or compulsory
counterclaim, nor shall any payment made by a Lender under
Section 2.02 hereof be deemed to be a waiver of any claim that a
Lender may have against the Fronting Bank or any other Person.
(m) Proceeds of Reimbursements. (i) Upon receipt of a payment
from the Borrower pursuant to subsection (f) hereof, the Fronting
Bank shall promptly transfer to each Lender such Lender's pro
rata share (determined in accordance with such Lender's
Percentage) of such payment based on such Lender's pro rata share
(determined as aforesaid) of amounts previously paid pursuant to
subsection (k), above, and not previously transferred pursuant to
this subsection (m) by the Fronting Bank; provided, however, that
if a Lender shall fail to pay to the Fronting Bank any amount
required by subsection (k) above by the close of business on the
Business Day following the date on which such payment was due
from such Lender, and the Borrower shall not have reimbursed the
Fronting Bank for such amount pursuant to subsection (g) hereof
(such unreimbursed amount being hereinafter referred to as a
"Transferred Amount"), the Fronting Bank shall be deemed to have
purchased, on such following Business Day (a "Participation
Transfer Date") from such Lender (a "Defaulting Lender"), a
participation in such Transferred Amount and shall be entitled,
for the period from and including the Participation Transfer Date
to the earlier of (i) the date on which the Borrower shall have
reimbursed the Fronting Bank for such Transferred Amount and (ii)
the date on which such Lender shall have reimbursed the Fronting
Bank for such Transferred Amount (the "Participation Transfer
Period"), to the rights, privileges and obligations of a "Lender"
under this Agreement with respect to such Transferred Amount, and
such Defaulting Lender shall not be deemed to be a Lender
hereunder, and shall not have any rights or interests of a Lender
hereunder, with respect to such Transferred Amount, and its
Percentage shall be reduced accordingly with the amount by which
such Percentage is reduced deemed held by the Fronting Bank
during the Participation Transfer Period; and provided further,
however, that if, at any time after the occurrence of a
Participation Transfer Date with respect to any Lender and prior
to the reimbursement by such Lender of the Fronting Bank with
respect to the related Transferred Amount pursuant to subsection
(k) above, the Fronting Bank shall receive any payment from the
Borrower pursuant to subsection (f) hereof, the Fronting Bank
shall not be obligated to pay any amounts to such Lender, and the
Fronting Bank shall retain such amounts (including, without
limitation, interest payments due from the Borrower pursuant to
subsection (f) hereof) for its own account as a Lender, provided
that all such amounts shall be applied in satisfaction of the
unpaid amounts (including, without limitation, interest payments
due from such Lender pursuant to subsection (k), above) due from
such Lender with respect to such Transferred Amount.
(i) If at any time after the occurrence of a Participation
Transfer Date with respect to any Lender, the Administrative
Agent shall receive any payment from the Borrower for the account
of such Lender pursuant to this Agreement, if at the time of
receipt of such amounts by the Administrative Agent such Lender
shall not have reimbursed the Fronting Bank with respect to the
related Transferred Amount pursuant to subsection (k) above, the
Administrative Agent shall not pay any such amounts to such
Lender but shall pay all such amounts to the Fronting Bank and
the Fronting Bank shall retain such amounts for its own account
as a Lender and apply such amounts in satisfaction of the unpaid
amounts (including, without limitation, interest payments due
from such Lender pursuant to subsection (k) above) due from such
Lender with respect to such Transferred Amount.
(ii) All payments due to the Lenders from the Fronting Bank
pursuant to this subsection (m) shall be made to the Lenders if,
as, and, to the extent possible, when the Fronting Bank receives
payments in respect of Drawings under the Letters of Credit
pursuant to subsection (f) hereof, and in the same funds in which
such amounts are received; provided that if any Lender to whom
the Fronting Bank is required to transfer any such payment (or
any portion thereof) pursuant to this subsection (m) does not
receive such payment (or portion thereof) prior to (i) the close
of business on the Business Day on which the Fronting Bank
received such payment from the Borrower, if the Fronting Bank
received such payment prior to 1:00 p.m. (New York time) on such
day, or (ii) 1:00 p.m. (New York time) on the Business Day next
succeeding the Business Day on which the Fronting Bank received
such payment from the Borrower, if the Fronting Bank received
such payment after 1:00 p.m. (New York time) on such day, the
Fronting Bank agrees to pay to such Lender, along with its
payment of the portion of such payment due to such Lender,
interest on such amount at a rate per annum equal to (1) for the
period from and including the Business Day when such payment was
required to be made to the Lenders to but excluding the second
succeeding Business Day, the Federal Funds Rate and (ii) for the
period from and including the second Business Day succeeding the
Business Day when such payment was required to be made to the
Lenders to but excluding the date on which such amount is paid in
full, the Federal Funds Rate plus 2.00%. The provisions of this
subsection (m) shall not affect or impair any of the obligations
under this Agreement of any Defaulting Lender to the Fronting
Bank, all of which shall remain unaffected by any default in
payment by the Fronting Bank to such Defaulting Lender.
(iii) If, in connection with any case or other proceeding
seeking liquidation, reorganization or other relief with respect
to the Borrower or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or if for any other
reason whatsoever, the Fronting Bank shall be required to return
to the Borrower or to a trustee, receiver, liquidator, custodian
or other similar official all or any portion of any payments to
the Lenders pursuant to this subsection (m) or interest thereon
(a "Returned Payment"), each Lender shall, upon demand of the
Fronting Bank, forthwith return to the Fronting Bank any amounts
transferred to such Lender by the Fronting Bank in respect
thereof pursuant to this subsection (m) plus such Lender's pro
rata share (determined in accordance with such Lender's
Percentage) of interest (if any) that the Fronting Bank is
required to pay to such trustee, receiver, liquidator, custodian
or other similar official with respect to any Returned Payment.
(n) Concerning the Fronting Bank.
(i) The Fronting Bank will exercise and give the same care and
attention to the Letters of Credit as it gives to its other
letters of credit and similar obligations, and each Lender agrees
that the Fronting Bank's sole liability to each Lender shall be
(i) to distribute promptly, as and when received by the Fronting
Bank, and in accordance with the provisions of subsection (m)
above, such Lender's pro rata share (determined in accordance
with such Lender's Percentage) of any payments to the Fronting
Bank by the Borrower pursuant to subsection (g) above in respect
of Drawings under the Letters of Credit, (ii) to exercise or
refrain from exercising any right or to take or to refrain from
taking any action under this Agreement or any Letter of Credit as
may be directed in writing by the Majority Lenders (or, when
expressly required by the terms of this Agreement, all of the
Lenders) or the Administrative Agent acting at the direction and
on behalf of the Majority Lenders (or, when expressly required by
the terms of this Agreement, all of the Lenders), except to the
extent required by the terms hereof or thereof or by applicable
law, and (iii) as otherwise expressly set forth in this Section
2.02. The Fronting Bank shall not be liable for any action taken
or omitted at the request or with approval of the Majority
Lenders (or, when expressly required by the terms of this
Agreement, all of the Lenders) or of the Administrative Agent
acting on behalf of the Majority Lenders (or, when expressly
required by the terms of this Agreement, all of the Lenders) or
for the nonperformance of the obligations of any other party
under this Agreement, any Letter of Credit or any other document
contemplated hereby or thereby. Without in any way limiting any
of the foregoing, the Fronting Bank may rely upon the advice of
counsel concerning legal matters and upon any written
communication or any telephone conversation that it believes to
be genuine or to have been signed, sent or made by the proper
Person and shall not be required to make any inquiry concerning
the performance by the Borrower, any Beneficiary or any other
Person of any of their respective obligations and liabilities
under or in respect of this Agreement, any Letter of Credit or
any other documents contemplated hereby or thereby. The Fronting
Bank shall not have any obligation to make any claim, or assert
any Lien, upon any property held by the Fronting Bank or assert
any offset thereagainst in satisfaction of all or any part of the
obligations of the Borrower hereunder; provided that the Fronting
Bank shall, if so directed by the Majority Lenders or the
Administrative Agent acting on behalf of and with the consent of
the Majority Lenders, have an obligation to make a claim, or
assert a Lien, upon property held by the Fronting Bank in
connection with this Agreement, or assert an offset thereagainst.
(ii) The Fronting Bank may accept deposits from, make loans or
otherwise extend credit to, and generally engage in any kind of
banking or trust business with the Borrower or any of its
Affiliates, or any other Person, and receive payment on such
loans or extensions of credit and otherwise act with respect
thereto freely and without accountability in the same manner as
if this Agreement and the transactions contemplated hereby were
not in effect.
(iii) The Fronting Bank makes no representation or warranty,
and shall have no responsibility, with respect to: (i) the
genuineness, legality, validity, binding effect or enforceability
of this Agreement or any other documents contemplated hereby;
(ii) the truthfulness, accuracy or performance of any of the
representations, warranties or agreements contained in this
Agreement or any other documents contemplated hereby; (iii) the
collectibility of any amounts due under this Agreement; (iv) the
financial condition of the Borrower or any other Person; or (v)
any act or omission of any Beneficiary with respect to its use of
any Letter of Credit or the proceeds of any Drawing under any
Letter of Credit.
(o) Indemnification of Fronting Bank by Lenders. To the extent
that the Fronting Bank is not reimbursed and indemnified by the
Borrower under Section 10.04 hereof, each Lender agrees to
reimburse and indemnify the Fronting Bank on demand, pro rata in
accordance with such Lender's Percentage, for and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever that may be imposed on, incurred by
or asserted against the Fronting Bank, in any way relating to or
arising out of this Agreement, any Letter of Credit or any other
document contemplated hereby or thereby, or any action taken or
omitted by the Fronting Bank under or in connection with this
Agreement, any Letter of Credit or any other document
contemplated hereby or thereby; provided, however, that such
Lender shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the
Fronting Bank's gross negligence or willful misconduct; and
provided further, however, that such Lender shall not be liable
to the Fronting Bank or any other Lender for the failure of the
Borrower to reimburse the Fronting Bank for any drawing made
under a Letter of Credit with respect to which such Lender has
paid the Fronting Bank such Lender's pro rata share (determined
in accordance with such Lender's Percentage), or for the
Borrower's failure to pay interest thereon. Each Lender's
obligations under this subsection (o) shall survive the payment
in full of all amounts payable by such Lender under subsection
(k), above, and the termination of this Agreement and the Letters
of Credit. Nothing in this subsection (o) is intended to limit
any Lender's reimbursement obligation contained in subsection
(k), above.
(p) Representations of Lenders. As between the Fronting Bank
and the Lenders, by its execution and delivery of this Agreement
each Lender hereby represents and warrants solely to the Fronting
Bank that (i) it is duly organized and validly existing in good
standing under the laws of the jurisdiction of its formation, and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations to the Fronting Bank under
this Agreement; and (ii) this Agreement constitutes its legal,
valid and binding obligation enforceable against it in accordance
with the terms hereof, except as such enforceability may be
limited by applicable bank organization, moratorium,
conservatorship or other laws now or hereafter in effect
affecting the enforcement of creditors rights in general and the
rights of creditors of banks, and except as such enforceability
may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(q) Multiple Fronting Banks. If there shall be more than one
Fronting Bank holding Outstanding Credits at any time hereunder,
each such Fronting Bank shall, with respect to the Letters of
Credit issued by it and the Reimbursement Obligations owing to
it, be regarded hereunder as the "Fronting Bank" and shall have
all the rights, interests, protections and obligations of the
"Fronting Bank" hereunder with respect to such Letters of Credit
and Reimbursement Obligations and all matters relating thereto.
Whenever any action may be, or is required to be, taken by the
Fronting Bank hereunder, each Fronting Bank may, or shall, take
such action only in respect of the Letters of Credit issued by it
and the Reimbursement Obligations owing to it. Whenever the
consent of the Fronting Bank is required hereunder with respect
to any proposed action, the consent of each Fronting Bank holding
Outstanding Credits shall be required for such proposed action to
be taken. Any notice to be provided to the Fronting Bank shall
be provided to each Fronting Bank holding Outstanding Credits,
and each such Fronting Bank shall have the right to request any
information, and take any other action, as the Fronting Bank is
permitted to do hereunder. If at any time no Letters of Credit
and no Reimbursement Obligations are outstanding, then JPMorgan
Chase, in its capacity as Fronting Bank, shall have the sole
right and/or obligation to take any action or issue any consent
that the Fronting Bank may, or is required to, take or issue
hereunder. The protections accorded the Fronting Bank hereunder
shall inure to the benefit of each Fronting Bank holding
Outstanding Credits from time to time hereunder, regardless of
whether the same are outstanding at the time as the benefits of
such protections are asserted.
(r) Existing Letters of Credit. The Borrower hereby
acknowledges and agrees that each of the Existing LCs shall, from
and after the Closing Date, be deemed to be a "Letter of Credit"
issued under this Agreement for the account of the Borrower, and
the reimbursement obligations in respect of any drawing made by
the beneficiary with respect to any Existing LC shall, from and
after the Closing Date, constitute "Reimbursement Obligations" of
the Borrower under this Agreement, and the Outstanding Credits
shall be increased, and the Available Commitments shall be
decreased, by an amount equal to the stated amounts of the
Existing LCs upon the Closing Date. Each of the Lenders
acknowledges and consents to the terms of this subsection (r).
SECTION 2.03. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee (the "Facility Fee") on
the amount of such Lender's Commitment (whether used or unused)
at the Applicable Facility Fee Rate, from the date of this
Agreement, in the case of each Bank, and from the effective date
specified in the Lender Assignment pursuant to which it became a
Lender, in the case of each other Lender, until the Termination
Date. The Facility Fee payable by the Borrower shall be
calculated and accrued daily and shall be payable quarterly in
arrears on the last day of each December, March, June and
September, commencing the first such date following the Closing
Date, with final payment payable on the Termination Date.
(b) The Borrower further agrees to pay the fees specified in the
Fee Letter (including the "Fronting Fee" referred to therein)
that are for its account to the parties entitled thereto,
together with such other fees as may be separately agreed to by
the Borrower and the other parties thereto or their respective
Affiliates.
(c) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, a fee in an amount equal to the then
Applicable Margin for outstanding Eurodollar Rate Advances
multiplied by the Stated Amount of each Letter of Credit, in each
case for the number of days that such Letter of Credit is issued
but undrawn, payable quarterly in arrears on the last day of each
December, March, June and September, commencing the first such
date following the Closing Date, with final payment payable on
the Termination Date.
SECTION 2.04. Reduction and Increase of the Commitments.
(a) Reduction. The Borrower may, at any time, by providing at
least three Business Days' prior written notice to the
Administrative Agent, terminate in whole or reduce in part the
Commitments on a pro rata basis with respect to each Lender;
provided, that any such partial reduction shall be in a minimum
aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof; provided, further, that the
Commitments may not be reduced to an amount that is less than
the aggregate Stated Amount of outstanding Letters of Credit.
Each such notice of termination or reduction shall be
irrevocable. Subject to the foregoing, any reduction of the
Commitments to an amount that is lower than the L/C Commitment
Amount shall result in a reduction of the L/C Commitment Amount
to the extent of such deficit.
(b) Increase. From time to time prior to the Termination Date,
the Borrower may increase the Total Commitment by an aggregate
amount of $100,000,000 (any such increase, a "Commitment
Increase"), up to a maximum Total Commitment of $600,000,000, by
designating either one or more of the existing Lenders (each of
which, in its sole discretion, may determine whether and to what
degree to offer to participate in such Commitment Increase) or
one or more other banks or other financial institutions
reasonably acceptable to the Administrative Agent that at the
time agree, in the case of any such bank or financial institution
that is an existing Lender to increase its Commitment (an
"Increasing Lender") and, in the case of any other such bank or
financial institution (an "Additional Lender"), to become a party
to this Agreement. The sum of the increases in the Commitments
of the Increasing Lenders pursuant to this subsection (b) plus
the Commitments of the Additional Lenders upon giving effect to
the Commitment Increase shall not in the aggregate exceed the
amount of the Commitment Increase. The Borrower shall provide
prompt notice of any proposed Commitment Increase pursuant to
this subsection (b) to the Administrative Agent, which shall
promptly provide a copy of such notice to the Lenders.
(i) Any Commitment Increase shall become effective upon
(A) the receipt by the Administrative Agent of (1) an agreement
in form and substance satisfactory to the Administrative Agent
(x) signed by the Borrower, each Increasing Lender, each Additional
Lender and, if any portion of the Commitment Increase is to be
allocated to increase the L/C Commitment Amount, the Fronting
Bank, (y) setting forth the new Commitment of each such Lender
and setting forth the agreement of each Additional Lender to
become a party to this Agreement and to be bound by all the terms
and provisions hereof binding upon each Lender, and (z) if any
portion of the Commitment Increase is to be allocated to increase
the L/C Commitment Amount, setting forth the new L/C Commitment
Amount, (2) certified copies of the Commitment Increase Approvals
and such opinions of counsel for the Borrower with respect to the
Commitment Increase as the Administrative Agent may reasonably
request, and (3) a certificate (the statements contained in which
shall be true) of a duly authorized officer of the Borrower
stating that both before and after giving effect to such
Commitment Increase (x) no Unmatured Default or Event of Default
has occurred and is continuing, (y) all representations and
warranties made by the Borrower in this Agreement are true and
correct in all material respects, and (z) all Commitment Increase
Approvals have been obtained and are in full force and effect,
and (B) the funding by each Increasing Lender and Additional
Lender of the Advance(s) to be made by each such Lender described
in paragraph (iii) below.
(ii) Upon the effective date of any Commitment Increase, each
Increasing Lender and each Additional Lender shall provide funds
to the Administrative Agent in the manner described in Section
3.03 in an amount equal to the product of (x) the aggregate
principal amount of Advances outstanding hereunder, expressed as
a percentage of the Total Commitment (calculated, in each case,
immediately prior to such Commitment Increase) and (y) the amount
of such Lender's Commitment Increase. The funds so provided by
any Lender shall be deemed to be an Advance or Advances made by
such Lender on the date of such Commitment Increase, with such
Advance(s) being (A) in an amount equal to the product of (x) the
aggregate outstanding principal amount of each Advance expressed
as a percentage of the Total Commitment (calculated, in each
case, immediately prior to such Commitment Increase) and (y) the
amount of such Lender's Commitment Increase and (B) of the same
Type(s) and having the same Interest Period(s) as each Advance
described in the preceding clause (A), such that after giving
effect to such Commitment Increase and the Advances(s) made on
the date of such Commitment Increase, each Advance outstanding
hereunder shall consist of Advances made by the Lenders ratably
in accordance with their pro rata shares of the Total Commitment.
(iii) Notwithstanding any provision contained herein to the
contrary, from and after the date of any Commitment Increase and
the making of any Advances on such date pursuant to paragraph
(iii) above, all calculations and payments of interest on the
Advance comprising any Advances shall take into account the
actual Commitment of each Lender and the principal amount
outstanding of each Advance made by such Lender during the
relevant period of time.
SECTION 2.05. Extension of the Termination Date.
Unless the Termination Date shall have previously occurred
in accordance with its terms, at least 45 days but not more than
60 days before the Termination Date, as then in effect, the
Borrower may, by notice to the Administrative Agent (any such
notice being irrevocable), request the Administrative Agent, the
Fronting Bank and the Lenders to extend the Termination Date for
a period of 364 days. If the Borrower shall make such request,
the Administrative Agent shall promptly inform the Fronting Bank
and the Lenders thereof and, no later than 30 days prior to the
Termination Date as then in effect, the Administrative Agent
shall notify the Borrower in writing if the Fronting Bank and the
Lenders consent to such request and the conditions of such
consent (including conditions relating to legal documentation and
evidence of the obtaining of all necessary governmental
approvals). The granting of any such consent shall be in the
sole and absolute discretion of the Fronting Bank and each
Lender, and, if the Fronting Bank or any Lender shall not so
notify the Administrative Agent or, if the Administrative Agent
shall not so notify the Borrower, such lack of notification shall
be deemed to be a determination not to consent to such request.
No such extension shall occur unless the Fronting Bank and all of
the Lenders consent in writing thereto (or, in the case of the
Lenders, if less than all the Lenders consent thereto, unless one
or more other existing Lenders, or one or more other banks and
financial institutions acceptable to the Borrower and the
Administrative Agent, agree to assume all of the Commitments of
the non-consenting Lenders).
ARTICLE III
ADVANCES
SECTION 3.01. Advances. More than one Borrowing may be made
on the same Business Day. Each Borrowing shall consist of
Advances of the same Type and Interest Period made to the Borrower
on the same Business Day by the Lenders ratably according to their
respective Commitments. Each Borrowing shall be made on notice in
substantially the form of Exhibit 3.01 hereto (a "Notice of Borrowing"),
delivered by the Borrower to the Administrative Agent, by hand or
facsimile, not later than 11:00 a.m. (New York City time) (i) in
the case of Eurodollar Rate Advances, on the third Business Day
prior to the date of the proposed Borrowing and (ii) in the case
of Base Rate Advances, on the day of the proposed Borrowing. Upon
receipt of a Notice of Borrowing, the Administrative Agent shall
notify the Lenders thereof promptly on the day so received.
Each Notice of Borrowing shall specify therein: (i) the requested
(A) date of such Borrowing, (B) principal amount and Type of Advances
comprising such Borrowing and (C) initial Interest Period for
such Advances; (ii) the aggregate amount of Outstanding Credits
on such date after giving effect to such proposed Borrowing.
Each proposed Borrowing shall be subject to the satisfaction of
the conditions precedent thereto as set forth in Article V
hereof; and (iii) if the Borrower so chooses, a term, expressed
as a number of days (which shall in no event end later than the
Termination Date), beyond which such Borrowing may not be
outstanding.
SECTION 3.02. Terms Relating to the Making of Advances.
(a) Notwithstanding anything in Section 3.01 above to the
contrary:
(i) at no time shall more than twelve different Borrowings be
outstanding hereunder;
(ii) each Borrowing hereunder that is to be comprised of Base
Rate Advances shall be in an aggregate principal amount of not
less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof, or such lesser amount as shall be equal to the
total amount of the Available Commitments on such date, after
giving effect to all other Borrowings to be made to, or repaid or
prepaid by, the Borrower on such date; and
(iii) each Borrowing hereunder that is to be comprised of
Eurodollar Rate Advances shall be in an aggregate principal
amount of not less than $5,000,000 or an increment of $1,000,000
in excess thereof.
(b) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower.
SECTION 3.03. Making of Advances.
(a) Each Lender shall, before 1:00 p.m. (New York City time) on
the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's address referred to in Section 10.02, in
same day funds, such Lender's portion of such Borrowing.
Advances shall be made by the Lenders ratably in accordance with
their several Commitments. After the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article V, the Administrative Agent will
make such funds available to the Borrower at the Administrative
Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the time of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's
ratable portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance
with subsection (a) of this Section 3.03, and the Administrative
Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount on such date. If and to the
extent that any such Lender (a "non-performing Lender") shall not
have so made such ratable portion available to the Administrative
Agent, the non-performing Lender and the Borrower severally agree
to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, the interest rate applicable at
the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. Nothing herein
shall in any way limit, waive or otherwise reduce any claims that
any party hereto may have against any non-performing Lender.
(c) The failure of any Lender to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Advance on the date
of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by
such other Lender on the date of any Borrowing.
SECTION 3.04. Repayment of Advances; Delivery of Notes.
(a) The Borrower shall repay the principal amount of each
Advance made to it hereunder no later than on the earlier of (i)
the last day of the term (if any) specified pursuant to clause
(iii) of Section 3.01 in the Notice of Borrowing related to such
Advance and (ii) the Termination Date.
(b) Any Lender may request that the Extensions of Credit to be
made by it be evidenced by a Note. Promptly upon receipt of such
request, the Borrower shall prepare, execute and deliver to such
Lender (or, if requested by such Lender, to such Lender and its
assignees) a Note. Thereafter, the Extensions of Credit
evidenced by such Note and interest thereon shall at all times
(including after assignment pursuant to Section 10.07) be
represented by one or more Notes payable to the order of the
payee named therein.
SECTION 3.05. Interest.
(a) Interest Periods.
(i) The period commencing on the date of each Advance and
ending on the last day of the period selected by the Borrower with
respect to such Advance pursuant to the provisions of this
Section 3.05 is referred to herein as an "Interest Period". The
duration of each Interest Period shall be (i) in the case of any
Eurodollar Rate Advance, one, two, three or four months and
(ii) in the case of any Base Rate Advance, the period of time
beginning on the date of the making of, or the conversion of an
outstanding Advance into, such Advance and ending on the last day
of March, June, September or December next following the date on
which such Advance was made; provided, however, that no Interest
Period may be selected by the Borrower if such Interest Period
would end after the Termination Date.
(ii) Subject to the terms and conditions of this Agreement,
the initial Interest Period for any Advance made to the Borrower
shall be determined by the Borrower as set forth in its Notice of
Borrowing with respect to such Advance. The Borrower may elect
to continue or convert one or more Advances of any Type and
having the same Interest Period to one or more Advances of the
same or any other Type and having the same or a different
Interest Period on the following terms and subject to the
following conditions:
(A) Each continuation or conversion shall be made as to
all Advances comprising a single Borrowing upon written notice
given by the Borrower to the Administrative Agent not later
than 11:00 a.m. (New York City time) on the third Business Day
prior to the date of the proposed continuation of or
conversion, in the case of a continuation or conversion to a
Eurodollar Rate Advance, or on the day of the proposed
continuation of or conversion to a Base Rate Advance. The
Administrative Agent shall notify each Lender of the contents
of such notice promptly after receipt thereof. Each such
notice shall specify therein the following information: (1)
the date of such proposed continuation or conversion (which in
the case of Eurodollar Rate Advances shall be the last day of
the Interest Period then applicable to such Advances to be
continued or converted), (2) the Type of, and Interest Period
applicable to, the Advances proposed to be continued or
converted, (3) the aggregate principal amount of Advances
proposed to be continued or converted, and (4) the Type of
Advances to which such Advances are proposed to be continued
or converted and the Interest Period
to be applicable thereto.
(B) During the continuance of an Unmatured Default, the
right of the Borrower to continue or convert Advances to
Eurodollar Rate Advances shall be suspended, and all
Eurodollar Rate Advances then outstanding shall be converted
to Base Rate Advances on the last day of the Interest Period
then in effect, if, on such day, an Unmatured Default shall be
continuing.
(C) During the continuance of an Event of Default,
the right of the Borrower to continue or convert Advances to
Eurodollar Rate Advances shall be suspended, and upon the
occurrence of an Event of Default, all Eurodollar Rate Advances
then outstanding shall immediately, without further act by the
Borrower, be converted to Base Rate Advances.
(D) If no notice of continuation or conversion is
received by the Administrative Agent as provided in paragraph
(A), above, with respect to any outstanding Advances on or
before the third Business Day prior to the last day of the
Interest Period then in effect for such Advances, the
Administrative Agent shall treat such absence of notice as
a deemed notice of continuation or conversion providing for
such Advances to be continued as or converted to Base Rate
Advances with an Interest Period of three months commencing
on the last day of such Interest Period.
(b) Interest Rates. The Borrower shall pay interest on the
unpaid principal amount of each Advance owing by the Borrower
from the date of such Advance until such principal amount shall
be paid in full, at the Applicable Rate for such Advance (except
as otherwise provided in this subsection (b)), payable as
follows:
(i) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, interest thereon shall be payable (A) on
the last day of the Interest Period applicable thereto, (B) in the
case of a Eurodollar Rate Advance with an Interest Period of more
than three months' duration, on each day that would have been an
Interest Payment Date for such Advance if successive Interest
Periods of three months' duration had been applicable to such
Advance, (C) on the date on which such Advance is repaid in full
and (D) on the Termination Date; provided that during the
continuance of any Event of Default, such Advance shall bear
interest at a rate per annum equal at all times to 2.0% per annum
above the Applicable Rate for such Advance for such Interest
Period, or, if higher, 2.0% per annum above the Applicable Rate
in effect from time to time for Base Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate
Advance, interest thereon shall be payable (A) quarterly on the
last day of each March, June, September and December, (B) on the
date such Base Rate Advance shall be paid in full and (C) on the
Termination Date; provided that during the continuance of any
Event of Default, such Advance shall bear interest at a rate per
annum equal at all times to 2.0% per annum above the Applicable
Rate for such Advance for such Interest Period.
(c) Other Amounts. Except as otherwise provided in Section
2.02(f)(ii), any other amounts payable hereunder that are not
paid when due shall (to the fullest extent permitted by law) bear
interest, from the date when due until paid in full, at a rate
per annum equal at all times to 2.0% per annum above the
Applicable Rate in effect from time to time for Base Rate
Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent
shall give prompt notice to the Borrower and the Lenders of the
Applicable Rate determined from time to time by the
Administrative Agent for each Advance. Each Reference Bank
agrees to furnish to the Administrative Agent timely information
for the purpose of determining the Eurodollar Rate for any
Interest Period. If any one Reference Bank shall not furnish
such timely information, the Administrative Agent shall determine
such interest rate on the basis of the timely information
furnished by the other two Reference Banks.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations.
(a) The Borrower shall make each payment hereunder not later
than 12:00 noon (New York City time) on the day when due in U.S.
Dollars to the Administrative Agent or, with respect to payments
made in respect of Reimbursement Obligations, the Fronting Bank,
at its address referred to in Section 10.02 hereof, in same day
funds. The Administrative Agent or the Fronting Bank, as the
case may be, will promptly thereafter cause to be distributed
like funds relating to the payment of principal, interest, fees
or other amounts payable to the Lenders, to the respective
Lenders to whom the same are payable, for the account of their
respective Applicable Lending Offices, in each case to be applied
in accordance with the terms of this Agreement. Upon its
acceptance of a Lender Assignment and recording of the
information contained therein in the Register pursuant to
Section 10.07, from and after the effective date specified in
such Lender Assignment, the Administrative Agent or the Fronting
Bank, as the case may be, shall make all payments hereunder in
respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Lender Assignment shall make
all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes the Administrative Agent, the
Fronting Bank and each Lender, if and to the extent payment owed
to the Administrative Agent, the Fronting Bank or such Lender, as
the case may be, is not made when due hereunder, to charge from
time to time against any or all of the Borrower's accounts with
the Administrative Agent, the Fronting Bank or such Lender, as
the case may be, any amount so due.
(c) All computations of interest based on the Base Rate (except
when determined on the basis of the Federal Funds Rate) shall be
made on the basis of a year of 365 or 366 days, as the case may
be. All computations of interest and other amounts payable
pursuant to Section 4.03 shall be made by the Lender claiming
such interest or other amount on the basis of a year of 360 days.
All other computations of interest, including computations of
interest based on the Eurodollar Rate, the Base Rate (when and if
determined on the basis of the Federal Funds Rate), and all
computations of fees and other amounts payable hereunder, shall
be made on the basis of a year of 360 days. In each such case,
such computation shall be made for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest, fees or other amounts are
payable. Each such determination by the Administrative Agent,
the Fronting Bank or a Lender shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment under any Loan Document shall be stated
to be due, or the last day of an Interest Period hereunder shall
be stated to occur, on a day other than a Business Day, such
payment shall be made, and the last day of such Interest Period
shall occur, on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of payment of interest and fees hereunder; provided,
however, that if such extension would cause payment of interest
on, or principal of, Eurodollar Rate Advances to be made, or the
last day of an Interest Period for a Eurodollar Rate Advance to
occur, in the next following calendar month, such payment shall
be made on the next preceding Business Day and such reduction of
time shall in such case be included in the computation of payment
of interest hereunder.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the
Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent, such Lender shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender, together with interest thereon, for
each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02. Prepayments.
(a) The Borrower shall not have any right to prepay any Advances
except in accordance with subsections (b) and (c), below.
(b) The Borrower may, (i) in the case of Eurodollar Rate
Advances, upon at least three Business Day's written notice to
the Administrative Agent (such notice being irrevocable) and
(ii) in the case of Base Rate Advances, upon notice not later
than 11:00 a.m. on the date of the proposed prepayment to the
Administrative Agent (such notice being irrevocable), stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given, the Borrower shall, prepay Advances
comprising part of the same Borrowing, in whole or ratably in
part, together with accrued interest to the date of such
prepayment on the principal amount prepaid and any amounts owing
in connection therewith pursuant to Section 4.03(d); provided,
however, that each partial prepayment shall be in an aggregate
principal amount not less than $5,000,000 or an integral multiple
of $1,000,000 in excess thereof.
(c) If at any time the aggregate principal amount of Outstanding
Credits shall exceed the Total Commitment, the Borrower shall
forthwith prepay so much of the outstanding Advances, and/or pay
to the Administrative Agent an amount in immediately available
funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the Administrative Agent) equal to
so much of the amount available for drawing under the Letters of
Credit outstanding at such time, as shall result in the amount of
Outstanding Credits minus the amount of funds so held as
collateral being less than or equal to the Total Commitment at
such time. All prepayments pursuant to this subsection (c) shall
be effected from outstanding Advances comprising part of the same
Borrowing or Borrowings and shall be accompanied by payment of
accrued interest to the date of such prepayment on the principal
amount prepaid and any amounts owing in connection therewith
pursuant to Section 4.03(d).
SECTION 4.03. Yield Protection.
(a) Change in Circumstances. Notwithstanding any other
provision herein, if after the date hereof the adoption of or any
change in applicable law or regulation or in the interpretation
or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation
of payments to the Fronting Bank or any Lender of the principal
of or interest on any Eurodollar Rate Advance made by such Lender
or any fees or other amounts payable hereunder (other than
changes in respect of taxes imposed on the overall net income of
the Fronting Bank or such Lender, or its Applicable Lending
Office, by the jurisdiction in which the Fronting Bank or such
Lender has its principal office or in which such Applicable
Lending Office is located or by any political subdivision or
taxing authority therein), or (ii) shall impose, modify or deem
applicable any reserve, special deposit or similar requirement
against letters of credit (or participatory interests therein)
issued by, commitments or assets of, deposits with or for the
account of, or credit extended by, the Fronting Bank or such
Lender, or (iii) shall impose on the Fronting Bank or such Lender
any other condition affecting this Agreement, the Letters of
Credit or participatory interests therein or Eurodollar Rate
Advances, and the result of any of the foregoing shall be (A) to
increase the cost to the Fronting Bank or such Lender of issuing,
maintaining or participating in this Agreement or the Letter of
Credit or of agreeing to make, making or maintaining any Advance
or (B) to reduce the amount of any sum received or receivable by
the Fronting Bank or such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to the
Fronting Bank or such Lender, upon demand, such additional amount
or amounts as will compensate the Fronting Bank or such Lender
for such additional costs incurred or reduction suffered.
(b) Capital. If the Fronting Bank or any Lender shall have
determined that any change after the date hereof in any law,
rule, regulation or guideline adopted pursuant to or arising out
of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards", or the
adoption after the date hereof of any law, rule, regulation or
guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of
the foregoing by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by the Fronting Bank or any
Lender (or any Applicable Lending Office of the Fronting Bank or
such Lender), or any holding company of any such entity, with any
request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect (i) of reducing
the rate of return on such entity's capital or on the capital of
such entity's holding company, if any, as a consequence of this
Agreement, the Letters of Credit or such entity's participatory
interest therein, any Commitment hereunder or the portion of the
Advances made by such entity pursuant hereto to a level below
that which such entity or such entity's holding company could
have achieved, but for such applicability, adoption, change or
compliance (taking into consideration such entity's policies and
the policies of such entity's holding company with respect to
capital adequacy), or (ii) of increasing or otherwise determining
the amount of capital required or expected to be maintained by
such entity or such entity's holding company based upon the
existence of this Agreement, the Letters of Credit or such
entity's participatory interest therein, any Commitment
hereunder, the portion of the Advances made by such entity
pursuant hereto and other similar such credits, participations,
commitments, agreements or assets, then from time to time the
Borrower shall pay to the Fronting Bank or such Lender, upon
demand, such additional amount or amounts as will compensate such
entity or such entity's holding company for any such reduction or
allocable capital cost suffered.
(c) Eurodollar Reserves. The Borrower shall pay to each Lender
upon demand, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender to the Borrower, from the date of such
Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest
Period. Such additional interest shall be determined by such
Lender and notified to the Borrower and the Administrative Agent.
(d) Breakage Indemnity. The Borrower shall indemnify each
Lender against any loss, cost or reasonable expense that such
Lender may sustain or incur as a consequence of (i) any failure
by the Borrower to fulfill on the date of any Borrowing or
conversion of Advances hereunder the applicable conditions
precedent set forth in Articles III and V, (ii) any failure by
the Borrower to borrow any, or convert any outstanding Advance
into a, Eurodollar Rate Advance hereunder after a Notice of
Borrowing has been delivered pursuant to Section 3.01 hereof or
after delivery of a notice of conversion pursuant to Section
3.05(a)(ii) hereof, (iii) any payment, prepayment or conversion
of a Eurodollar Rate Advance required or permitted by any other
provision of this Agreement or otherwise made or deemed made on a
date other than the last day of the Interest Period applicable
thereto, (iv) any default in payment or prepayment of the
principal amount of any Eurodollar Rate Advance made to the
Borrower or any part thereof or interest accrued thereon, as and
when due and payable (at the due date thereof, by irrevocable
notice of prepayment or otherwise) or (v) the occurrence of any
Event of Default, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Advance or any part thereof
as a Eurodollar Rate Advance. Such loss, cost or reasonable
expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of
obtaining the funds for the Eurodollar Rate Advance being paid,
prepaid, converted or not borrowed for the period from the date
of such payment, prepayment, conversion or failure to borrow to
the last day of the Interest Period for such Advance (or, in the
case of a failure to borrow, the Interest Period for such Advance
that would have commenced on the date of such failure) over
(B) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the
funds so paid, prepaid, converted or not borrowed for such period
or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that in the case of any
Eurodollar Rate Advance, each Lender shall have funded each such
Advance with a fixed-rate instrument bearing the rates and
maturities designated in the determination of the Applicable Rate
for such Advance.
(e) Notices. A certificate of the Fronting Bank or any Lender
setting forth such entity's claim for compensation hereunder and
the amount necessary to compensate such entity or its holding
company pursuant to subsections (a) through (d) of this
Section 4.03 shall be submitted to the Borrower and the
Administrative Agent and shall be conclusive and binding for all
purposes, absent manifest error. The Borrower shall pay the
Fronting Bank or such Lender directly the amount shown as due on
any such certificate within 10 days after its receipt of the
same. The failure of any entity to provide such notice or to
make demand for payment under this Section 4.03 shall not
constitute a waiver of such entity's rights hereunder; provided
that such entity shall not be entitled to demand payment pursuant
to subsections (a) through (d) of this Section 4.03 in respect of
any loss, cost, expense, reduction or reserve, if such demand is
made more than one year following the later of such entity's
incurrence or sufferance thereof or such entity's actual
knowledge of the event giving rise to such entity's rights
pursuant to such subsections. The Fronting Bank and each Lender
shall use reasonable efforts to ensure the accuracy and validity
of any claim made by it hereunder, but the foregoing shall not
obligate any such entity to assert any possible invalidity or
inapplicability of the law, rule, regulation, guideline or other
change or condition that shall have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other provision
herein, if the adoption of or any change in any law or regulation
or in the interpretation or administration thereof by any
governmental authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to
make or maintain any Eurodollar Rate Advance or to give effect to
its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrower
and the Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not thereafter
be made by such Lender hereunder, whereupon the right of the
Borrower to select Eurodollar Rate Advances for any Borrowing or
conversion shall be forthwith suspended until such Lender shall
withdraw such notice as provided herein below or shall cease to
be a Lender hereunder pursuant to Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances be
converted to Base Rate Advances, in which event all Eurodollar
Rate Advances shall be automatically converted to Base Rate
Advances as of the effective date of such notice as provided
herein below.
Upon receipt of any such notice, the Administrative Agent
shall promptly notify the other Lenders. Promptly upon becoming
aware that the circumstances that caused such Lender to deliver
such notice no longer exist, such Lender shall deliver notice
thereof to the Borrower and the Administrative Agent withdrawing
such prior notice (but the failure to do so shall impose no
liability upon such Lender). Promptly upon receipt of such
withdrawing notice from such Lender (or upon such Lender
assigning all of its Commitments, Advances, participation and
other rights and obligations under the Loan Documents in
accordance with Section 10.07(g)), the Administrative Agent shall
deliver notice thereof to the Borrower and the Lenders and such
suspension shall terminate. Prior to any Lender giving notice to
the Borrower under this subsection (f), such Lender shall use
reasonable efforts to change the jurisdiction of its Applicable
Lending Office, if such change would avoid such unlawfulness and
would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender. Any notice to the Borrower by
any Lender shall be effective as to each Eurodollar Rate Advance
on the last day of the Interest Period currently applicable to
such Eurodollar Rate Advance; provided that if such notice shall
state that the maintenance of such Advance until such last day
would be unlawful, such notice shall be effective on the date of
receipt by the Borrower and the Administrative Agent.
(g) Market Rate Disruptions. If (i) fewer than two Reference
Banks furnish timely information to the Administrative Agent for
determining the Eurodollar Rate for Eurodollar Rate Advances in
connection with any proposed Borrowing or (ii) if the Majority
Lenders shall notify the Administrative Agent that the Eurodollar
Rate will not adequately reflect the cost to such Majority
Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances, the right of the Borrower to select or
receive Eurodollar Rate Advances for any Borrowing shall be
forthwith suspended until the Administrative Agent shall notify
the Borrower and the Lenders that the circumstances causing such
suspension no longer exist, and until such notification from the
Administrative Agent, each requested Borrowing of Eurodollar Rate
Advances hereunder shall be deemed to be a request for Base Rate
Advances.
(h) Rights of Participants. Any participant in a Lender's
interests hereunder may assert any claim for yield protection
under Section 4.03 that it could have asserted if it were a
Lender hereunder. If such a claim is asserted by any such
participant, it shall be entitled to receive such compensation
from the Borrower as a Lender would receive in like
circumstances; provided, however, that with respect to any such
claim, the Borrower shall have no greater liability to the Lender
and its participant, in the aggregate, than it would have had to
the Lender alone had no such participation interest been created.
SECTION 4.04. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of banker's lien,
set-off or counterclaim, or otherwise, but excluding any proceeds
received by assignments or sales of participation in accordance
with Section 10.07 hereof to a Person that is not an Affiliate of
the Borrower) on account of the Advances and LC Outstandings
owing to it (other than pursuant to Section 4.03 hereof) in
excess of its ratable share of payments on account of the
Advances and LC Outstandings obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such
participation in the Advances owing to them as shall be necessary
to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with
an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 4.04 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation. Notwithstanding the foregoing, if
any Lender shall obtain any such excess payment involuntarily,
such Lender may, in lieu of purchasing participation from the
other Lenders in accordance with this Section 4.04, on the date
of receipt of such excess payment, return such excess payment to
the Administrative Agent for distribution in accordance with
Section 4.01(a).
SECTION 4.05. Taxes.
(a) All payments by or on behalf of the Borrower under any Loan
Document shall be made in accordance with Section 4.01, free and
clear of and without deduction for all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
Lender, the Fronting Bank and the Administrative Agent, taxes
imposed on its overall net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Lender, the
Fronting Bank or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof and, in the case
of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable under any Loan Document to any Lender, the Fronting Bank
or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 4.05) such Lender, the Fronting Bank
or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
by the Borrower under any Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower hereby indemnifies each Lender, the Fronting
Bank and the Administrative Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes and any
Other Taxes imposed by any jurisdiction on amounts payable under
this Section 4.05) paid by such Lender, the Fronting Bank or the
Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. A claim for such
indemnification shall be set forth in a certificate of such
Lender, the Fronting Bank or the Administrative Agent (as the
case may be) setting forth in reasonable detail the amount
necessary to indemnify such Person pursuant to this
subsection (c) and shall be submitted to the Borrower and the
Administrative Agent and shall be conclusive and binding for all
purposes, absent manifest error. The Borrower shall pay such
Lender, the Fronting Bank or the Administrative Agent (as the
case may be) directly the amount shown as due on any such
certificate within 30 days after the receipt of same. If any
Taxes or Other Taxes for which a Lender, the Fronting Bank or the
Administrative Agent has received payments from the Borrower
hereunder shall be finally determined to have been incorrectly or
illegally asserted and are refunded to such Lender, the Fronting
Bank or the Administrative Agent, such Lender, the Fronting Bank
or the Administrative Agent, as the case may be, shall promptly
forward to the Borrower any such refunded amount. The
Borrower's, the Administrative Agent's, the Fronting Bank's and
each Lender's obligations under this Section 4.05 shall survive
the payment in full of the Outstanding Credits.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address
referred to in Section 10.02, the original or a certified copy of
a receipt evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of the
United States of America or any state thereof shall, on or prior
to the date it becomes a Lender hereunder, deliver to the
Borrower and the Administrative Agent such certificates,
documents or other evidence, as required by the Internal Revenue
Code of 1986, as amended from time to time (the "Code"), or
treasury regulations issued pursuant thereto, including Internal
Revenue Service Form W-8BEN or Form W-8ECI and any other
certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any
subsequent version thereof, properly completed and duly executed
by such Lender establishing that it is (i) not subject to
withholding under the Code or (ii) totally exempt from United
States of America tax under a provision of an applicable tax
treaty. Each Lender shall promptly notify the Borrower and the
Administrative Agent of any change in its Applicable Lending
Office and shall deliver to the Borrower and the Administrative
Agent together with such notice such certificates, documents or
other evidence referred to in the immediately preceding sentence.
Each Lender will use good faith efforts to apprise the Borrower
and the Administrative Agent as promptly as practicable of any
impending change in its tax status that would give rise to any
obligation by the Borrower to pay any additional amounts pursuant
to this Section 4.05. Unless the Borrower and the Administrative
Agent have received forms or other documents satisfactory to them
indicating that payments under the Loan Documents are not subject
to United States of America withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the
Borrower or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a
jurisdiction outside the United States of America. Each Lender
represents and warrants that each such form supplied by it to the
Administrative Agent and the Borrower pursuant to this
Section 4.05, and not superseded by another form supplied by it,
is or will be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant
to this Section 4.05 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate
or document requested by the Borrower or to change the
jurisdiction of its Applicable Lending Office if the making of
such a filing or change would avoid the need for or reduce the
amount of any such additional amounts that may thereafter accrue
and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness.
The obligations of the Fronting Bank and the Lenders to
make Extensions of Credit hereunder shall not become effective
until the date (the "Closing Date") on which each of the
following conditions is satisfied:
(a) The Administrative Agent shall have received on or before
the Closing Date the following, each dated the Closing Date, in
form and substance satisfactory to the Administrative Agent and
in sufficient copies for the Fronting Bank and each Lender:
(i) Counterparts of this Agreement, duly executed by the
Borrower.
(ii) A certificate of the Secretary or Assistant Secretary of
the Borrower certifying:
(A) the names and true signatures of the officers of the
Borrower authorized to sign the Loan Documents;
(B) that attached thereto are true and correct copies
of: (1) the Declaration of Trust of the Borrower, together
with all amendments thereto, as in effect on such date; (2)
the resolutions of the Borrower's board of trustees approving
the execution, delivery and performance by the Borrower of the
Loan Documents; (3) all documents evidencing other necessary
corporate or other similar action, if any, with respect to the
execution, delivery and performance of the Loan Documents by
the Borrower; and (4) true and correct copies of all
Governmental Approvals referred to in clause (i) of the
definition of "Governmental Approval" required to be obtained
by the Borrower in connection with the execution, delivery
and performance by the Borrower of the Loan Documents
(including the order of the Securities and Exchange
Commission); and
(C) that the resolutions referred to in the foregoing
clause (B)(2) have not been modified, revoked or rescinded
and are in full force and effect on such date.
(iii) A certificate signed by the Treasurer or Assistant
Treasurer of the Borrower, certifying as to:
(A) the delivery to the Fronting Bank and each of the
Lenders, prior to the Closing Date, of true, correct and
complete copies (other than exhibits thereto) of all of the
Disclosure Documents; and
(B) the absence of any material adverse change in the
business, condition (financial or otherwise), operations,
properties or prospects of the Borrower or the Borrower and
its Principal Subsidiaries, taken as a whole, since June 30,
2004, except as disclosed in the Disclosure Documents.
(iv) A certificate of a duly authorized officer of the
Borrower stating that (i) the representations and warranties of the
Borrower contained in Section 6.01 are correct, in all material
respects, on and as of the Closing Date before and after giving
effect to any Extensions of Credit to be made on such date and
the application of the proceeds thereof, and (ii) no event has
occurred and is continuing that constitutes an Event of Default
or Unmatured Default, or would result from such initial
Extensions of Credit or the application of the proceeds thereof.
(v) Such financial, business and other information regarding
the Borrower and its Principal Subsidiaries, as the Fronting Bank or
any Lender shall have reasonably requested.
(vi) Favorable opinions of:
(A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel of
NUSCO, in substantially the form of Exhibit 5.01A hereto,
and of such other counsel as relied upon therein; and as to
such other matters as the Fronting Bank or any Lender may
reasonably request; and
(B) King & Spalding LLP, special New York counsel to the
Administrative Agent, in substantially the form of Exhibit
5.01B hereto and as to such other matters as the Fronting
Bank or any Lender may reasonably request.
(b) The commitments or commitment under the Existing Credit
Facility shall have been terminated or expired pursuant to the
terms thereof and all amounts outstanding thereunder shall have
been (or will have been, upon the first Advance and the
application of the proceeds thereof on the Closing Date) paid in
full.
(c) All fees and other amounts payable pursuant to Section 2.03
hereof or pursuant to the Fee Letter shall have been paid (to the
extent then due and payable).
(d) The Administrative Agent shall have received such other
approvals, opinions and documents as the Fronting Bank or the
Majority Lenders, through the Administrative Agent, shall have
reasonably requested as to the legality, validity, binding effect
or enforceability of this Agreement or the financial condition,
operations, properties or prospects of the Borrower and its
Principal Subsidiaries.
SECTION 5.02. Conditions Precedent to All Extensions of Credit.
The obligation of the Fronting Bank or any Lender to make
any Extension of Credit, including the initial Extension of
Credit, shall be subject to the conditions precedent that, on the
date of such Extension of Credit and after giving effect thereto:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing or Letter of Credit
Request with respect to such Extension of Credit and the
acceptance of the proceeds of such Extension of Credit by the
Borrower or the acceptance of a Letter of Credit by the
Beneficiary thereof, as the case may be, shall constitute a
representation and warranty by the Borrower that on the date of
such Extension of Credit such statements are true):
(i) the representations and warranties of the Borrower
contained in Section 6.01 of this Agreement are correct, in all
material respects, on and as of the date of such Extension of
Credit, before and after giving effect to such Extension of Credit
and to the application of the proceeds therefrom, as though made
on and as of such date;
(ii) no Event of Default or Unmatured Default has occurred
and is continuing on or as of the date of such Extension of Credit
or would result from such Extension of Credit or from the
application of the proceeds thereof;
(iii) the making of such Extension of Credit, when aggregated
with all other Outstanding Credits, would not cause the aggregate
amount of Outstanding Credits to exceed the Total Commitment; and
(iv) if such Extension of Credit is the issuance of a Letter
of Credit, the Stated Amount thereof, when aggregated with (A) the
Stated Amount of each other Letter of Credit that is outstanding
or with respect to which a Letter of Credit Request has been
received and (B) the outstanding Reimbursement Obligations, would
not cause the L/C Commitment Amount to be exceeded; and
(b) at the time the Outstanding Credits would first exceed
$450,000,000, the Borrower shall have furnished to the
Administrative Agent:
(i) a certificate of the Secretary or an Assistant Secretary
of the Borrower certifying that attached thereto are true and
correct copies of all Governmental Approvals required in order
for the Borrower to request and maintain Outstanding Credits in
an amount at least equal to the aggregate amount of the
Commitments, and that such Governmental Approvals have been
issued and are in full force and effect; and
(ii) an opinion of counsel for the Borrower to the effect
that no Governmental Approval is or will be required in
connection with the performance by the Borrower, or the
consummation by the Borrower of the transactions contemplated by,
this Agreement, other than the Governmental Approvals described
in clause (i) above, which have been duly issued and are final and
in full force and effect; and
(c) the Borrower shall have furnished to the Administrative
Agent such other approvals, opinions or documents as the Fronting
Bank or any Lender may reasonably request through the Administrative
Agent as to the legality, validity, binding effect or enforceability
of any Loan Document.
SECTION 5.03. Reliance on Certificates.
The Fronting Bank, the Lenders and the Administrative
Agent shall be entitled to rely conclusively upon the
certificates delivered from time to time by officers of the
Borrower as to the names, incumbency, authority and signatures of
the respective persons named therein until such time as the
Administrative Agent may receive a replacement certificate, in
form acceptable to the Administrative Agent, from an officer of
the Borrower identified to the Administrative Agent as having
authority to deliver such certificate, setting forth the names
and true signatures of the officers and other representatives of
the Borrower thereafter authorized to act on behalf of the
Borrower and, in all cases, the Fronting Bank, the Lenders and
the Administrative Agent may rely on the information set forth in
any such certificate.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a voluntary association organized under a
Declaration of Trust, and each of its Principal Subsidiaries is a
corporation, in each case duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
organization, has the requisite corporate power (or in the case
of the Borrower, power under its Declaration of Trust) and
authority to own its property and assets and to carry on its
business as now conducted and is qualified to do business in
every jurisdiction where, because of the nature of its business
or property, such qualification is required, except where the
failure so to qualify would not have a material adverse effect on
the financial condition, properties, prospects or operations of
the Borrower or of the Borrower and its Principal Subsidiaries
taken as a whole. The Borrower has the requisite power to
execute, deliver and perform its obligations under the Loan
Documents and to borrow hereunder.
(b) The execution, delivery and performance of the Loan
Documents by the Borrower are within the Borrower's powers under
its Declaration or Trust, have been duly authorized by all
necessary action under its Declaration of Trust and applicable
law, and do not and will not contravene (i) the Borrower's
Declaration of Trust or any law or legal restriction or (ii) any
contractual restriction binding on or affecting the Borrower or
its properties or its Principal Subsidiaries or their respective
properties.
(c) Except as disclosed in the Disclosure Documents, none of the
Borrower or any of its Principal Subsidiaries is in violation of
any law or in default with respect to any judgment, writ,
injunction, decree, rule or regulation (including any of the
foregoing relating to environmental laws and regulations) of any
court or governmental agency or instrumentality where such
violation or default would reasonably be expected to have a
material adverse effect on the financial condition, properties,
prospects or operations of the Borrower or of the Borrower and
its Principal Subsidiaries, taken as a whole.
(d) All Governmental Approvals referred to in clause (i) of the
definition of "Governmental Approvals" have been duly obtained or
made and are in full force and effect (other than any
Governmental Approval that would be required to be delivered
pursuant to Section 5.02(b)(i)), and all applicable periods of
time for review, rehearing or appeal with respect thereto have
expired. The Borrower and each Subsidiary thereof has obtained
or made all Governmental Approvals referred to in clause (ii) of
the definition of "Governmental Approvals", except (A) those that
are not yet required but that are obtainable in the ordinary
course of business as and when required, (B) those the absence of
which would not materially adversely affect the financial
condition, properties, prospects or operations of the Borrower or
of the Borrower and its Principal Subsidiaries, taken as a whole,
and (C) those that the Borrower or any such Subsidiary, as the
case may be, is diligently attempting in good faith to obtain,
renew or extend, or the requirement for which the Borrower or any
such Subsidiary, as the case may be, is contesting in good faith
by appropriate proceedings or by other appropriate means, in each
case described in the foregoing clause (C), except as is
disclosed in the Disclosure Documents, such attempt or contest,
and any delay resulting therefrom, is not reasonably expected to
have a material adverse effect on the financial condition,
properties, prospects or operations of the Borrower or of the
Borrower and its Principal Subsidiaries, taken as a whole, or to
magnify to any significant degree any such material adverse
effect that would reasonably be expected to result from the
absence of such Governmental Approval.
(e) The Loan Documents are legal, valid and binding obligations
of the Borrower enforceable against the Borrower in accordance
with their respective terms; subject to the qualification,
however, that the enforcement of the rights and remedies herein
and therein is subject to bankruptcy and other similar laws of
general application affecting rights and remedies of creditors
and the application of general principles of equity (regardless
of whether considered in a proceeding in equity or at law).
(f) The Financial Statements, copies of which have been provided
to the Administrative Agent, the Fronting Bank and each of the
Lenders, fairly present in all material respects the consolidated
financial condition and results of operations of the Borrower and
each of its Principal Subsidiaries at and for the period ended on
the dates thereof, and have been prepared in accordance with
generally accepted accounting principles consistently applied.
Since June 30, 2004, there has been no material adverse change in
the consolidated financial condition, operations, properties or
prospects of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole, except as disclosed in the
Disclosure Documents.
(g) There is no pending or known threatened litigation,
investigation, action or proceeding (including, without
limitation, any action or proceeding relating to any
environmental protection laws or regulations) affecting the
Borrower, any Principal Subsidiary thereof or any of their
respective properties, before any court, governmental agency or
arbitrator (i) that affects or purports to affect the legality,
validity or enforceability of any Loan Document or (ii) as to
which there is a reasonable possibility of an adverse
determination and that, if adversely determined, would materially
adversely affect the financial condition, properties, prospects
or results of operations of the Borrower or of the Borrower and
its Principal Subsidiaries, taken as a whole, except, for
purposes of this clause (ii) only, such as is described in the
Disclosure Documents or in Schedule II hereto.
(h) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan that
would materially adversely affect the financial condition,
properties, prospects or operations of the Borrower or of the
Borrower and its Principal Subsidiaries, taken as a whole, except
as disclosed to the Lenders and consented to by the Majority
Lenders in writing. Since the date of the most recent Schedule B
(Actuarial Information) to the annual report of each such ERISA
Plan (Form 5500 Series), there has been no material adverse
change in the funding status of the ERISA Plans referred to
therein, and no "prohibited transaction" (as defined in
Section 4975 of the Internal Revenue Code of 1986, as amended,
and in ERISA) has occurred with respect thereto that, singly or
in the aggregate with all other "prohibited transactions" and
after giving effect to all likely consequences thereof, would be
reasonably expected to have a material adverse effect on the
financial condition, properties, prospects or operations of the
Borrower or of the Borrower and its Principal Subsidiaries, taken
as a whole. Neither the Borrower nor any of its ERISA Affiliates
has incurred nor reasonably expects to incur any material
withdrawal liability under ERISA to any ERISA Multiemployer Plan,
except as disclosed to and consented by the Majority Lenders in
writing.
(i) The Borrower and each Principal Subsidiary thereof has good
and marketable title (or, in the case of personal property, valid
title) or valid leasehold interests in its assets, except for (i)
minor defects in title that do not materially interfere with the
ability of the Borrower or such Principal Subsidiary to conduct
its business as now conducted and (ii) other defects that, either
individually or in the aggregate, do not materially adversely
affect the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole. All such assets and properties
are free and clear of any Lien, other than Liens permitted under
Section 7.02(a) hereof. No Liens exist on the stock of CL&P,
WMECO, PSNH, or Yankee.
(j) All outstanding shares of capital stock having ordinary
voting power for the election of directors of each Principal
Subsidiary have been validly issued and are fully paid and
nonassessable and are owned beneficially by NU, free and clear of
any Lien. NU is a "holding company" (as defined in the Public
Utility Holding Company Act of 1935, as amended).
(k) The Borrower and each of its Principal Subsidiaries has
filed all tax returns (Federal, state and local) required to be
filed and paid taxes shown thereon to be due, including interest
and penalties, or, to the extent the Borrower or such Principal
Subsidiary is contesting in good faith an assertion of liability
based on such returns, has provided adequate reserves in
accordance with generally accepted accounting principles for
payment thereof.
(l) No exhibit, schedule, report or other written information
provided by or on behalf of the Borrower or its agents to the
Administrative Agent, the Fronting Bank or the Lenders in
connection with the negotiation, execution and closing of the
Loan Documents (including, without limitation, the Financial
Statements and the Information Memorandum (but excluding the
projections contained in the Information Memorandum)) knowingly
contained when made any material misstatement of fact or
knowingly omitted to state any material fact necessary to make
the statements contained therein not misleading in light of the
circumstances under which they were made. Except as has been
disclosed to the Administrative Agent, the Fronting Bank and each
Lender, the projections delivered concurrently with the
Information Memorandum were prepared in good faith on the basis
of assumptions reasonable as of the date of the Information
Memorandum, it being understood that such projections do not
constitute a warranty or binding assurance of future performance.
As of the date of this Agreement, except as has been disclosed to
the Administrative Agent, the Fronting Bank and each Lender,
nothing has come to the attention of the responsible officers of
the Borrower that would indicate that any of such assumptions, to
the extent material to such projections, has ceased to be
reasonable in light of subsequent developments or events.
(m) All proceeds of the Advances shall be used (i) for the
general corporate purposes of the Borrower, including to provide
liquidity support for the Borrower's commercial paper, and (ii)
to provide liquidity to the NU System Money Pool. The Letters of
Credit shall be used for the general corporate purposes of the
Borrower and its Subsidiaries. No proceeds of any Advance will
be used in violation of, or in any manner that would result in a
violation by any party hereto of, Regulation T, U or X
promulgated by the Board of Governors of the Federal Reserve
System or any successor regulations. Neither the Borrower nor
any Subsidiary thereof (A) is an "investment company" within the
meaning ascribed to that term in the Investment Company Act of
1940 and (B) is engaged in the business of extending credit for
the purpose of buying or carrying margin stock.
(n) The Borrower and each Principal Subsidiary thereof has
obtained the insurance specified in Section 7.01(c) hereof and
the same is in full force and effect.
(o) (i) The assets, at a fair valuation, of the Borrower exceed
its debts; (ii) the Borrower has not incurred and does not intend
to incur, and does not believe that it will incur, debts beyond
its ability to pay such debts as such debts mature; and (iii) the
Borrower will have sufficient capital with which to conduct its
business. As used in this paragraph, "debt" means any liability
on a claim, and "claim" means (A) any right to payment from such
person, whether or not such a right is reduced to judgment
against such person, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (B) any right to an equitable remedy for
breach of performance by such person if such breach gives rise to
a payment from such person, whether or not such right to an
equitable remedy is reduced to judgment against such person,
whether fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. The amount of unliquidated,
contingent, unmatured or disputed liabilities of any person at
any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or
matured liability.
(p) The Borrower does not intend to treat the Extensions of
Credit and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation section
1.6011-4). In the event that the Borrower determines to take any
action inconsistent with such intention, it will promptly notify
the Administrative Agent thereof.
ARTICLE VII
COVENANTS
SECTION 7.01. Affirmative Covenants.
On and after the Closing Date, so long as any obligation
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower shall, unless the Majority
Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply the proceeds of each Advance, and
use, and cause its Subsidiaries to use, the Letters of Credit,
solely as specified in Section 6.01(m) hereof.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Principal Subsidiaries to pay and discharge, before the same
shall become delinquent, all taxes, assessments and governmental
charges, royalties or levies imposed upon it or upon its property
except to the extent the Borrower or such Principal Subsidiary is
contesting the same in good faith by appropriate proceedings and
has set aside adequate reserves in accordance with generally
accepted accounting principles for the payment thereof.
(c) Maintenance of Insurance. Maintain or cause to be
maintained, and cause each of its Principal Subsidiaries to
maintain or cause to be maintained, insurance (including
appropriate plans of self-insurance) covering the Borrower, the
Principal Subsidiaries and their respective properties, in effect
at all times in such amounts and covering such risks as may be
required by law and, in addition, as is usually carried by
companies engaged in similar businesses and owning similar
properties as the Borrower and such Principal Subsidiaries.
(d) Preservation of Existence, Etc.; Disaggregation.
(i) Except as permitted by Section 7.02(b) hereof, preserve
and maintain, and cause each of its Principal Subsidiaries to
preserve and maintain, its existence, corporate or otherwise,
material rights (statutory and otherwise) and franchises except
where the failure to maintain and preserve such rights and
franchises would not materially adversely affect the financial
condition, properties, prospects or operations of the Borrower or
of the Borrower and its Principal Subsidiaries, taken as a whole.
(ii) In furtherance of the foregoing, and notwithstanding
Section 7.02(b), the Borrower agrees that it will not, and will
cause each of its Principal Subsidiaries not to, except in
accordance with one or more restructuring plans approved by the
appropriate regulatory authorities, sell, transfer or otherwise
dispose of (by lease or otherwise, and whether in one or a series
of related transactions) any portion of its generation,
transmission or distribution assets in excess of 15% of the net
utility plant assets of the Borrower and its Principal
Subsidiaries, taken as a whole, in each case as determined on a
cumulative basis from the date of this Agreement through the
Termination Date by reference to the published balance sheets of
the Borrower and its Principal
Subsidiaries.
(e) Compliance with Laws, Etc. Comply, and cause each of its
Principal Subsidiaries to comply, in all material respects with
the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, including, without
limitation, any such laws, rules, regulations and orders issued
by the Securities and Exchange Commission or relating to zoning,
environmental protection, use and disposal of Hazardous
Substances, land use, construction and building restrictions,
ERISA and employee safety and health matters relating to business
operations, except to the extent (i) that the Borrower or any
such Principal Subsidiary is contesting the same in good faith by
appropriate proceedings or (ii) that any such non-compliance, and
the enforcement or correction thereof, would not materially
adversely affect the financial condition, properties, prospects
or operations of the Borrower or of the Borrower and its
Principal Subsidiaries, taken as a whole.
(f) Inspection Rights. At any time and from time to time upon
reasonable notice, permit, and cause each of its Principal
Subsidiaries to permit, the Administrative Agent and its agents
and representatives to examine and make copies of and abstracts
from the records and books of account of, and the properties of,
the Borrower and each Principal Subsidiary and to discuss the
affairs, finances and accounts of the Borrower and each Principal
Subsidiary (i) with the Borrower, each Principal Subsidiary and
their respective officers and directors and (ii) with the consent
of the Borrower and/or its Principal Subsidiaries, as the case
may be (which consent shall not be unreasonably withheld or
delayed), with the accountants of the Borrower or any such
Principal Subsidiary.
(g) Keeping of Books. Keep, and cause each Principal Subsidiary
to keep, proper records and books of account, in which full and
correct entries shall be made of all financial transactions of
the Borrower and each Principal Subsidiary and the assets and
business of the Borrower and each Principal Subsidiary, in
accordance with generally accepted accounting practices
consistently applied.
(h) Conduct of Business. Except as permitted by Section 7.02(b)
but subject in all respects to Section 7.01(d)(ii), conduct, and
cause each Principal Subsidiary to conduct, its primary business
in substantially the same manner and in substantially the same
fields as such business is conducted on the Closing Date.
(i) Maintenance of Properties, Etc. (i) As to properties of
the type described in Section 6.01(i) hereof, maintain, and cause
each Principal Subsidiary to maintain, title of the quality
described therein and preserve, maintain, develop, and operate,
and cause each Principal Subsidiary to preserve, maintain,
develop and operate, in substantial conformity with all laws,
material contractual obligations and prudent practices prevailing
in the industry, all of its properties that are used or useful in
the conduct of its businesses in good working order and
condition, ordinary wear and tear excepted, except (A) as
permitted by Section 7.02(b), but subject nevertheless to Section
7.01(d)(ii), (B) as disclosed in the Disclosure Documents or
otherwise in writing to the Administrative Agent, the Fronting
Bank and the Lenders on or prior to the date hereof, and (C) to
the extent such non-conformity would not materially adversely
affect the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole; provided, however, that neither
the Borrower nor any Principal Subsidiary will be prevented from
discontinuing the operation and maintenance of any such
properties if such discontinuance is, in the judgment of the
Borrower or such Principal Subsidiary, desirable in the operation
or maintenance of its business and would not materially adversely
affect the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole.
(j) Governmental Approvals. Duly obtain, and cause each
Principal Subsidiary to duly obtain, on or prior to such date as
the same may become legally required, and thereafter maintain,
and cause each Principal Subsidiary to maintain, in effect at all
times, all Governmental Approvals on its part to be obtained,
except in the case of those Governmental Approvals referred to in
clause (ii) of the definition of "Governmental Approvals",
(i) those the absence of which would not materially adversely
affect the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole, and (ii) those that the Borrower
or such Principal Subsidiary is diligently attempting in good
faith to obtain, renew or extend, or the requirement for which
the Borrower or such Principal Subsidiary is contesting in good
faith by appropriate proceedings or by other appropriate means;
provided, however, that the exception afforded by clause (ii),
above, shall be available only if and for so long as such attempt
or contest, and any delay resulting therefrom, does not have a
material adverse effect on the financial condition, properties,
prospects or operations of the Borrower or of the Borrower and
its Principal Subsidiaries, taken as a whole, and does not
magnify to any significant degree any such material adverse
effect that would reasonably be expected to result from the
absence of such Governmental Approval.
(k) Further Assurances. Promptly execute and deliver all
further instruments and documents, and take all further action,
that may be necessary or that any Lender or the Fronting Bank
through the Administrative Agent may reasonably request in order
to fully give effect to the interests and properties purported to
be covered by the Loan Documents.
SECTION 7.02. Negative Covenants.
On and after the Closing Date, and so long as any
obligation hereunder shall remain unpaid or any Lender shall have
any Commitment hereunder, the Borrower shall not, or permit any
Principal Subsidiary to, without the written consent of the
Majority Lenders:
(a) Liens, Etc. Create incur, assume or suffer to exist any
Lien upon any of its properties or assets (including the stock of
its Subsidiaries), whether now owned or hereafter acquired,
except:
(i) any Liens existing on the Closing Date;
(ii) Liens created by the First Mortgage Indentures, so long
as by the terms thereof no "event of default" (howsoever
designated) in respect of any bonds issued thereunder will arise
upon the occurrence of an Unmatured Default or Event of Default
hereunder; provided, however, that the aggregate principal
amount of securities issued by NGC under its First Mortgage
Indenture shall in no event exceed (i) $440,000,000 plus (ii) the
aggregate principal amount of such additional securities as may
be issued to finance the costs of acquiring or constructing assets
hereafter acquired or constructed (or to refinance such costs
within 180 days of the incurrence thereof);
(iii) with respect to such Principal Subsidiary, "Permitted
Liens" or "Permitted Encumbrances" under the First Mortgage
Indenture to which such Principal Subsidiary is a party, in each
case to the extent such Liens do not secure Debt of such
Principal Subsidiary;
(iv) any purchase money Lien or construction mortgage on
assets hereafter acquired or constructed by the Borrower or any
Principal Subsidiary and any Lien on any assets existing at the
time of acquisition thereof by the Borrower or such Principal
Subsidiary or created within 180 days from the date of completion
of such acquisition or construction; provided that, such Lien
shall at all times be confined solely to the assets so acquired
or constructed and any additions thereto;
(v) any existing Liens on assets now owned by the Borrower
or any Principal Subsidiary and Liens existing on assets of a
corporation or other going concern when it is merged into or with
the Borrower or such Principal Subsidiary or when substantially
all of its assets are acquired by the Borrower or such Principal
Subsidiary; provided that such Liens shall at all times be
confined solely to such assets, or if such assets constitute a
utility system, additions to or substitutions for such assets;
(vi) Liens resulting from legal proceedings being contested in
good faith by appropriate legal or administrative proceedings by
the Borrower or any Principal Subsidiary, and as to which the
Borrower or such Principal Subsidiary, to the extent required by
generally accepted accounting principles applied on a consistent
basis, shall have set aside on its books adequate reserves;
(vii) Liens created in favor of the other contracting
party in connection with advance or progress payments;
(viii) any Liens in favor of any state of the United States
or any political subdivision of any such state, or any agency of
any such state or political subdivisions, or trustee acting on
behalf of holders of obligations issued by any of the foregoing or
any financial institutions lending to or purchasing obligations of
any of the foregoing, which Lien is created or assumed for the
purpose of financing all or part of the cost of acquiring or
constructing the property subject thereto;
(ix) Liens resulting from conditional sale agreements, capital
leases or other title retention agreements;
(x) with respect to pollution control bond financings, Liens
on funds, accounts and other similar intangibles of the Borrower or
any Principal Subsidiary created or arising under the relevant
indenture, pledges of the related loan agreement with the
relevant issuing authority and pledges of the Borrower's or such
Principal Subsidiary's interest, if any, in any bonds issued
pursuant to such financings to a letter of credit bank or bond
issuer or similar credit enhancer;
(xi) Liens granted on accounts receivable and Regulatory
Assets in connection with financing transactions, whether
denominated as sales or borrowings;
(xii) Liens on the stock of NGC;
(xiii) Liens on the assets of, or the stock issued by, any
Subsidiary of the Borrower created to hold generating assets if
such Liens are created to secure nonrecourse Debt incurred to
acquire, construct or otherwise develop such generating assets;
(xiv) Liens created to secure Debt of a transmission
company Subsidiary of the Borrower with respect to assets
transferred to such transmission company by another Subsidiary of
the Borrower;
(xv) any other Liens incurred in the ordinary course of
business otherwise than to secure Debt;
(xvi) any extension, renewal or replacement of Liens
permitted by clauses (i), (iii) through (v) and (vii) through
(xiv); provided, however, that the principal amount of Debt
secured thereby shall not, at the time of such extension, renewal
or replacement, exceed the principal amount of Debt so secured
and that such extension, renewal or replacement shall be limited
to all or a part of the property that secured the Lien so
extended, renewed or replaced or to other property of no greater
value than the property that secured the Lien so extended,
renewed or replaced.
(b) Mergers, Acquisitions, Sales of Assets, Etc. Merge with or
into or consolidate with or into, any Person, or purchase or
otherwise acquire (whether directly or indirectly) all or
substantially all of the assets or stock of any class of, or any
partnership or joint venture interest in, any other Person, or
sell, transfer, convey, lease or otherwise dispose of all or any
substantial part of its assets or the capital stock of any
Principal Subsidiary; except for the following, and then only
after receipt of all necessary corporate and governmental or
regulatory approvals and provided that, before and after giving
effect to any such merger, consolidation, purchase, acquisition,
sale, transfer, conveyance, lease or other disposition, no Event
of Default or Unmatured Default shall have occurred and be
continuing:
(i) Subsidiaries of NU may merge with or consolidate into
(x) wholly-owned Subsidiaries of NU so long as, in any such case,
the wholly-owned Subsidiary is the survivor and (y) NU so long as
NU is the survivor;
(ii) NU or any Subsidiary of NU may merge with or consolidate
into a Person that is not an Affiliate of NU so long as (1) NU or
such Subsidiary is the survivor of such merger or consolidation,
(2) NU demonstrates pro forma compliance with the financial
covenants set forth in Section 7.03 hereof, and (3) NU's
indicative senior unsecured non-credit enhanced long-term debt
ratings from S&P and ▇▇▇▇▇'▇ in contemplation of such merger or
consolidation, and NU's actual senior unsecured non-credit
enhanced long-term debt ratings from S&P and ▇▇▇▇▇'▇ following
any such merger or consolidation, remain at or above the levels
established immediately prior to the merger or consolidation;
(iii) NU and its wholly-owned Subsidiaries may acquire
interests in joint ventures, partnerships, or similar interest
in, or the assets or capital stock of, any Person, so long as
such Person is principally engaged in an activity permitted under
PUHCA as in effect on the date hereof;
(iv) any Principal Subsidiary may sell, lease, transfer or
otherwise dispose of transmission assets (1) to another
Subsidiary of NU on such basis as permitted by the appropriate
regulatory authorities or (2) to any Person on such basis as
required by the appropriate regulatory authorities; and
(v) NU or any Principal Subsidiary may sell, lease, transfer,
convey or otherwise dispose of assets or security to any
Principal Subsidiary or to NU; and
(vi) the Borrower or any Principal Subsidiary may sell its
assets in the ordinary course of business on customary terms and
conditions, including any sale of accounts receivable on
reasonable commercial terms (including a commercially reasonable
discount) to obtain funding for any Principal Subsidiary.
For purposes of this subsection (b), any sale of assets by the
Borrower or any Principal Subsidiary (in one or a series of
transactions) will be deemed to be a "substantial part" of its
assets if (i) the book value of such assets exceeds 15% of the
total book value of the assets (net of Regulatory Assets) of such
Person, as reflected in the most recent financial statements of
the Borrower or such Principal Subsidiary delivered to the
Administrative Agent pursuant to Section 7.04 hereof (or, if no
such financial statements have been delivered to the
Administrative Agent as of the relevant date of determination,
the Financial Statements of such Person), or (ii) the gross
revenue associated with such assets accounts for more than 15% of
the total gross revenue of the Borrower or such Principal
Subsidiary for the four proceeding fiscal quarters, as reflected
in the most recent financial statements of the Borrower or such
Principal Subsidiary delivered to the Administrative Agent
pursuant to Section 7.04 hereof (or, if no such financial
statements have been delivered to the Administrative Agent as of
the relevant date of determination, the Financial Statements of
such Person).
(c) Compliance with ERISA. (i) Terminate, or permit any of its
ERISA Affiliates to terminate, any ERISA Plan so as to result in
any liability of the Borrower or any Principal Subsidiary to the
PBGC in an amount greater than $1,000,000, or (ii) permit to
exist any occurrence of any Reportable Event (as defined in Title
IV of ERISA) which, alone or together with any other Reportable
Event with respect to the same or another ERISA Plan, has a
reasonable possibility of resulting in liability of the Borrower
or any Principal Subsidiary to the PBGC in an aggregate amount
exceeding $1,000,000, or any other event or condition that
presents a material risk of such a termination by the PBGC of any
ERISA Plan or has a reasonable possibility of resulting in a
liability of the Borrower or any Principal Subsidiary to the PBGC
in an aggregate amount exceeding $1,000,000
(d) Accounting Changes. Make any change in its accounting
policies or reporting practices except as required or permitted
by the Securities and Exchange Commission, the Financial
Accounting Standards Board or any other generally recognized
accounting authority.
(e) Transactions with Affiliates. Engage in any transaction
with any Affiliate except (i) in accordance with PUHCA to the
extent applicable thereto or (ii) on terms no less favorable to
the Borrower or the Principal Subsidiary party thereto than if
the transaction had been negotiated in good faith on an arms-
length basis with a non-Affiliate and on commercially reasonable
terms or pursuant to a binding agreement in effect on the Closing
Date.
(f) Interests in Nuclear Plants. Acquire any nuclear plant or
any interest therein not held on the Closing Date, other than so
called "power entitlements" acquired for use in the ordinary
course of business.
(g) Financing Agreements. With respect to the Borrower only,
permit any Principal Subsidiary to enter into any agreement,
contract, indenture or similar obligation, or issue any security
(all of the foregoing being referred to as "Financing
Agreements"), that is not in effect on the Closing Date, or amend
or modify any existing Financing Agreement, if the effect of such
Financing Agreement (or amendment or modification thereof) is to
impose any additional restriction not in effect on the Closing
Date on the ability of such Principal Subsidiary to pay dividends
to the Borrower; provided, that the foregoing shall not restrict
the right of any Subsidiary of the Borrower created to hold
generating assets, to enter into any such Financing Agreement in
connection with the incurrence of nonrecourse Debt to acquire,
construct or otherwise develop generating assets.
SECTION 7.03. Financial Covenants.
On and after the Closing Date, so long as any obligation
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower shall, unless the Majority
Lenders shall otherwise consent in writing:
(a) Consolidated Debt Ratio. Maintain at all times a ratio of
Consolidated Debt to Total Capitalization of no more than
0.65:1.00.
(b) Interest Coverage Ratio. Maintain, as of the end of each
Fiscal Quarter, with respect to the four Fiscal Quarters then
ended, a ratio of Consolidated EBIT to Consolidated Interest
Expense of at least 2.00:1.00.
SECTION 7.04. Reporting Obligations.
So long as any obligation hereunder shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower
shall, unless the Majority Lenders shall otherwise consent in
writing, furnish or cause to be furnished to the Administrative
Agent in sufficient copies for each Lender, the following:
(a) as soon as possible and in any event within ten days after
the occurrence of each Event of Default or Unmatured Default
continuing on the date of such statement, a statement of the
Chief Financial Officer, Treasurer or Assistant Treasurer of the
Borrower setting forth details of such Event of Default or
Unmatured Default and the action that the Borrower proposes to
take with respect thereto;
(b) (i) as soon as available, and in any event within fifty
(50) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower, a copy of the
Borrower's and each of its Principal Subsidiary's Quarterly
Reports on Form 10-Q (if such Principal Subsidiary is required to
file such report with the U.S. Securities and Exchange Commission
pursuant to Sections 13 or 15 of the U.S. Securities Exchange Act
of 1934, as amended) submitted to the Securities and Exchange
Commission with respect to such quarter, and, with respect to
Yankee, NGC, Select Energy, Inc. and any other Principal
Subsidiary that is not required to, or ceases to be required to
submit such report, consolidated balance sheets of, Yankee, NGC,
Select Energy, Inc. and such other Principal Subsidiary, as of
the end of such Fiscal Quarter and consolidated statements of
income and retained earnings and of cash flows of such Person for
the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, all in reasonable
detail and duly certified (subject to year-end audit adjustments)
by the Chief Financial Officer, Treasurer, Assistant Treasurer or
Comptroller of the Borrower as having been prepared in accordance
with generally accepted accounting principles consistent with
those applied in the preparation of the Financial Statements; and
(i) concurrently with the delivery of the financial
statements described in the foregoing clause (i), a certificate
of the Chief Financial Officer, Treasurer, Assistant Treasurer or
Comptroller of the Borrower:
(A) to the effect that such financial statements were
prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation
of the Financial Statements,
(B) stating that no Event of Default or Unmatured
Default has occurred and is continuing or, if an Event of
Default or Unmatured Default has occurred and is continuing,
describing the nature thereof and the action that the Borrower
proposes to take with respect thereto, and
(C) demonstrating the Borrower's compliance with the
covenants set forth in Section 7.03 hereof, for and as of the
end of such Fiscal Quarter, in each case such demonstrations
to be in form satisfactory to the Administrative Agent and to
set forth in reasonable detail the computations used in
determining such compliance;
(c) (i) as soon as available, and in any event within 105 days
after the end of each Fiscal Year of the Borrower, a copy of the
Borrower's and each of its Principal Subsidiary's Annual Reports
on Form 10-K (if such Principal Subsidiary is required to file
such report with the U.S. Securities and Exchange Commission
pursuant to Sections 13 or 15 of the U.S. Securities Exchange Act
of 1934, as amended) submitted to the Securities and Exchange
Commission with respect to such Fiscal Year, and, with respect to
Yankee, NGC, Select Energy, Inc. and any other Principal
Subsidiary that is not required to, or ceases to be required to
submit such report, a copy of the annual audit report for such
year for Yankee, NGC, Select Energy, Inc. and such other
Principal Subsidiary, including therein consolidated balance
sheets of such Person as of the end of such Fiscal Year and
consolidated statements of income and retained earnings and of
cash flows of such Person, for such Fiscal Year, all in
reasonable detail and certified by a nationally-recognized
independent public accountant; and
(i) concurrently with the delivery of the financial
statements described in the foregoing clause (i), a certificate
of the Chief Financial Officer, Treasurer, Assistant Treasurer
or Comptroller of the Borrower:
(A) to the effect that such financial statements were
prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation
of the Financial Statements, and
(B) stating that no Event of Default or Unmatured
Default has occurred and is continuing, or if an Event of
Default or Unmatured Default has occurred and is continuing,
describing the nature thereof and the action that the Borrower
proposes to take with respect thereto, and
(C) demonstrating the Borrower's compliance with the
covenants set forth in Section 7.03 hereof, for and as of the
end of such Fiscal Year, in each case such demonstrations to
be in form satisfactory to the Administrative Agent and to set
forth in reasonable detail the computations used in
determining such compliance;
(d) upon the reasonable request of the Administrative Agent, but
not more than once per Fiscal Quarter, copies of any or all
filings or registrations with, or notices or reports to, any
regulatory authority by the Borrower or any Principal Subsidiary;
(e) as soon as possible and in any event (i) within 30 days
after the Chief Financial Officer, Treasurer or any Assistant
Treasurer of the Borrower knows or has reason to know that any
ERISA Plan Termination Event described in clause (i) of the
definition of ERISA Plan Termination Event with respect to any
ERISA Plan or ERISA Multiemployer Plan has occurred and
(ii) within 10 days after the Borrower knows or has reason to
know that any other ERISA Plan Termination Event with respect to
any ERISA Plan or ERISA Multiemployer Plan has occurred, a
statement of the Chief Financial Officer, Treasurer or Assistant
Treasurer of the Borrower describing such ERISA Plan Termination
Event and the action, if any, which the Borrower proposes to take
with respect thereto;
(f) promptly after receipt thereof by the Borrower or any of its
ERISA Affiliates from the PBGC, copies of each notice received by
the Borrower or any such ERISA Affiliate of the PBGC's intention
to terminate any ERISA Plan or ERISA Multiemployer Plan or to
have a trustee appointed to administer any ERISA Plan or ERISA
Multiemployer Plan;
(g) promptly after receipt thereof by the Borrower or any of its
ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy
of each notice received by the Borrower or any of its ERISA
Affiliates concerning the imposition or amount of withdrawal
liability in an aggregate principal amount of at least
$10,000,000 pursuant to Section 4202 of ERISA in respect of which
the Borrower may be liable;
(h) promptly after the Borrower becomes aware of the
commencement thereof, notice of all actions, suits, proceedings
or other events of the type described in Section 6.01(g) hereof
(including, without limitation, any action or proceeding relating
to any environmental protection laws or regulations);
(i) promptly after the filing thereof, copies of each prospectus
(excluding any prospectus contained in any Form S-8), Current
Report on Form 8-K and annual report on Form U5S, if any, which
the Borrower or any Principal Subsidiary files with the
Securities and Exchange Commission or any successor governmental
authority; and
(j) promptly after requested, such other information respecting
the financial condition, operations, properties or prospects of
the Borrower or its Subsidiaries as the Administrative Agent, or
the Majority Lenders or Fronting Bank through the Administrative
Agent, may from time to time reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default.
The following events shall each constitute an "Event of
Default":
(a) The Borrower shall fail to pay any principal of any Advance
or any Reimbursement Obligation when due or shall fail to pay any
interest on any Advance or fees or other amounts payable under
the Loan Documents within two days after the same becomes due; or
(b) Any representation or warranty made by the Borrower (or any
of its officers or agents) in any Loan Document, any certificate
or other writing delivered pursuant hereto or thereto shall prove
to have been incorrect in any material respect when made or
deemed made; or
(c) The Borrower shall fail to perform or observe any term or
covenant on its part to be performed or observed contained in
Section 2.02(h), 7.01(d), Section 7.02, Section 7.03 or
Section 7.04(a) hereof; or
(d) The Borrower shall fail to perform or observe any other term
or covenant on its part to be performed or observed contained in
any Loan Document and any such failure shall remain unremedied
for a period of 30 days after the earlier of (i) written notice
of such failure having been given to the Borrower by the
Administrative Agent or (ii) the Borrower having obtained actual
knowledge of such failure; or
(e) The Borrower or any Principal Subsidiary shall fail to pay
any of its Debt when due (including any interest or premium
thereon but excluding Outstanding Credits and excluding other
Debt aggregating in no event more than $50,000,000 in principal
amount at any one time) whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise, and such failure
shall continue after the applicable grace period, if any,
specified in any agreement or instrument relating to such Debt;
or any other default under any agreement or instrument relating
to any such Debt, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such default or
event is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be
due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment or as a result of the
Borrower's or such Principal Subsidiary's exercise of a
prepayment option) prior to the stated maturity thereof; or
(f) The Borrower or any Principal Subsidiary shall generally not
pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make an
assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the Borrower or any Principal
Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of its debts under
any law relating to bankruptcy, insolvency, or reorganization or
relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the
case of a proceeding instituted against the Borrower or any
Principal Subsidiary, the Borrower or such Principal Subsidiary
shall consent thereto or such proceeding shall remain undismissed
or unstayed for a period of 90 days or any of the actions sought
in such proceeding (including without limitation the entry of an
order for relief against the Borrower or such Principal
Subsidiary or the appointment of a receiver, trustee, custodian
or other similar official for the Borrower or such Principal
Subsidiary or any of its property) shall occur; or the Borrower
or any Principal Subsidiary shall take any corporate or other
action to authorize any of the actions set forth above in this
subsection (f); or
(g) Any judgments or orders for the payment of money in excess
of $50,000,000 (or aggregating more than $50,000,000 at any one
time) shall be rendered against the Borrower or its properties or
any Principal Subsidiary or its properties, and either
(A) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and shall not have been
stayed or (B) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect;
or
(h) Any material provision of any Loan Document shall at any
time for any reason cease to be valid and binding on the
Borrower, or shall be determined to be invalid or unenforceable
by any court, governmental agency or authority having
jurisdiction over the Borrower, or the Borrower shall deny that
it has any further liability or obligation under any Loan
Document; or
(i) A Change of Control shall have occurred; or
(j) The Borrower shall cease to own at least 85% of the
outstanding common stock of any Principal Subsidiary, free and
clear of all Liens except for Liens permitted by Section 7.02(a)
hereof; or
(k) Any legal restriction that is not in existence on the
Closing Date shall materially adversely affect the ability of any
Principal Subsidiary to pay dividends or make other distributions
to the Borrower.
SECTION 8.02. Remedies Upon Events of Default.
Upon the occurrence and during the continuance of any
Event of Default, the Administrative Agent shall at the request,
or may with the consent, of the Lenders entitled to make such
request, upon notice to the Borrower (i) declare the obligation
of each Lender to make Advances to the Borrower, and the
obligation of the Fronting Bank to issue Letters of Credit, to be
terminated, whereupon such obligations of the Lenders and the
Fronting Bank shall forthwith terminate, provided, that any such
request or consent pursuant to this clause (i) shall be made
solely by Lenders having Percentages in the aggregate of not less
66-2/3%; (ii) declare the Advances, all interest thereon, an
amount equal to the aggregate Stated Amount of all issued but
undrawn Letters of Credit and all other amounts payable by the
Borrower under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon such Advances, all such
interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by
the Borrower, provided, that any such request or consent pursuant
to this clause (ii) shall be made solely by the Lenders holding
at least 66-2/3% of the then aggregate Outstanding Credits; and
(iii) instruct the Fronting Bank to (whereupon the Fronting Bank
shall) furnish to each Beneficiary written notice of its
intention to terminate such Letter of Credit pursuant to the
terms thereof, provided, that any such request or consent
pursuant to this clause (iii) shall be made solely by the Lenders
holding Percentages in the aggregate of not less that 66-2/3% or,
if the Commitments shall then have been terminated, Lenders
holding at least 66-2/3% of the then aggregate Outstanding
Credits; provided, however, that if such Event of Default is an
Event of Default pursuant to subsection (f) of Section 8.01, then
(A) the obligation of each Lender to make Advances to the
Borrower, and the obligation of the Fronting Bank to issue
Letters of Credit, shall automatically be terminated and (B) the
Advances, all interest thereon, an amount equal to the aggregate
Stated Amount of all issued but undrawn Letters of Credit and all
other amounts payable by the Borrower under this Agreement and
the other Loan Documents shall automatically become and be due
and payable, without presentment, demand, protest or any notice
of any kind, all of which are hereby expressly waived by the
Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE FRONTING BANK
SECTION 9.01. Authorization and Action.
Each Lender hereby appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement as are delegated to the Administrative
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or
collection thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall
be binding upon all Lenders; provided, however, that the
Administrative Agent shall not be required to take any action
that exposes the Administrative Agent to personal liability or
that is contrary to the Loan Documents or applicable law. The
Administrative Agent agrees to deliver promptly to each Lender
notice of each notice given to it by the Borrower and the
Fronting Bank pursuant to the terms of this Agreement.
SECTION 9.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with any Loan Document, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may
treat each Lender party hereto as a "Lender" hereunder and for
all purposes hereof until the Administrative Agent receives and
accepts a Lender Assignment entered into by such Lender, as
assignor, and an assignee, as provided in Section 10.07; (ii) may
consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any
Lender for the Information Memorandum or any other statements,
warranties or representations made in or in connection with any
Loan Document; (iv) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms,
covenants or conditions of any Loan Document on the part of the
Borrower to be performed or observed, or to inspect any property
(including the books and records) of the Borrower; (v) shall not
be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of
any Loan Document or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability under or in
respect of any Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by
facsimile) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 9.03. Union Bank, JPMorgan Chase and Affiliates.
With respect to its Commitment and the Advances made by
it, each of Union Bank and JPMorgan Chase (and/or any other
Lender then acting as "Fronting Bank") shall have the same rights
and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not the Administrative Agent
or the Fronting Bank, as the case may be, and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include
Union Bank and JPMorgan Chase (and/or any other Lender then
acting as "Fronting Bank") in its individual capacity. Union
Bank, JPMorgan Chase (and/or any other Lender acting as "Fronting
Bank") and their respective Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if
Union Bank were not the Administrative Agent and JPMorgan Chase
(and/or any other Lender then acting as "Fronting Bank") were not
the Fronting Bank and without any duty to account therefor to the
Lenders.
SECTION 9.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, the Fronting Bank
or any other Lender and based on the Information Memorandum and
the Financial Statements and such other documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance
upon the Administrative Agent, the Fronting Bank or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
SECTION 9.05. Indemnification.
The Lenders agree to indemnify the Administrative Agent
(to the extent not reimbursed by the Borrower), ratably according
to their respective Commitments (or, if the Commitments have been
terminated, ratably according to the respective principal amounts
of Outstanding Credits held by them (provided, that if any
Commitments or Outstanding Credits are held by the Borrower or
any Affiliate thereof, any ratable apportionment hereunder shall
exclude their respective Commitments hereunder or the principal
amounts of Outstanding Credits held by the Borrower or such
Affiliate)), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent in its capacity as such in any
way relating to or arising out of any Loan Document or any action
taken or omitted by the Administrative Agent in its capacity as
such under any Loan Document, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Administrative
Agent promptly upon demand for such Lender's ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
responsibilities under, the Loan Documents to the extent that the
Administrative Agent is entitled to reimbursement for such
expenses pursuant to Section 10.04 but is not reimbursed for such
expenses by the Borrower.
SECTION 9.06. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, with any
such resignation to become effective only upon the appointment of
a successor Administrative Agent pursuant to this Section 9.06.
Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor Administrative Agent, which shall be
a Lender or another commercial bank or trust company reasonably
acceptable to the Borrower organized or licensed under the laws
of the United States, or of any State thereof. If no successor
Administrative Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent,
which shall be Lender or shall be another commercial bank or
trust company organized or licensed under the laws of the United
States or of any State thereof reasonably acceptable to the
Borrower. In addition to the foregoing right of the
Administrative Agent to resign, the Majority Lenders may remove
the Administrative Agent at any time, with or without cause,
concurrently with the appointment by the Majority Lenders of a
successor Administrative Agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder
as Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under the Loan
Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc.
No amendment or waiver of any provision of any Loan
Document, nor consent to any departure by the Borrower therefrom,
shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver
or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive,
modify or eliminate any of the conditions specified in Article V,
(b) increase the Commitment of any Lender hereunder or increase
the Commitments of the Lenders that may be maintained hereunder
or subject the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the Advances, any Applicable
Margin or any fees or other amounts payable hereunder (other than
fees payable to the Administrative Agent pursuant to
Section 2.03(b) hereof), (d) postpone any date fixed for any
payment of principal of, or interest on, the Advances or any fees
or other amounts payable under the Loan Documents (other than
fees payable to the Administrative Agent pursuant to
Section 2.03(b) hereof), (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the
Outstanding Credits, or the number of Lenders that shall be
required for the Lenders or any of them to take any action under
the Loan Documents, (f) amend any Loan Document in a manner
intended to prefer one or more Lenders over any other Lenders,
(g) waive the requirement set forth in Section 2.02(h) that cash
be held in respect of outstanding Letters of Credit, or (h) amend
this Section 10.01; provided, that any waiver of, or consent to a
departure from, the requirements of Section 2.02(i) shall be
effective if authorized in writing by the Majority Lenders and
the Fronting Bank; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by the
Administrative Agent or the Fronting Bank, as the case may be, in
addition to the Lenders required above to take such action,
affect the rights or duties of the Administrative Agent or the
Fronting Bank, as the case may be, under any Loan Document.
SECTION 10.02. Notices, Etc.
Except as otherwise expressly provided herein, all notices
and other communications provided for under the Loan Documents
shall be in writing (including facsimile communication) and
mailed, sent by facsimile or hand delivered:
(a) if to the Borrower, to it in care of NUSCO at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
Treasurer, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm number:
(▇▇▇) ▇▇▇-▇▇▇▇;
(b) if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto;
(c) if to any Lender other than a Bank, at its Domestic Lending
Office specified in the Lender Assignment pursuant to which it
became a Lender;
(d) if to the Administrative Agent, at its address at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Energy Capital Services, facsimile number:
(▇▇▇) ▇▇▇-▇▇▇▇, confirm number: (▇▇▇) ▇▇▇-▇▇▇▇; and
(e) if to the Fronting Bank, at its address at 10420 Highlnd Mn
Dr BL 2, FL 4, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm number: (812)
432-6339.
or, as to each party, at such other address as shall be
designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed,
sent by facsimile or hand delivered, be effective five days after
when deposited in the mails, or when sent by facsimile, or when
delivered, respectively, except that notices and communications
to the Administrative Agent pursuant to Article II, III, IV or IX
shall not be effective until received by the Administrative
Agent. With respect to any telephone notice given or received by
the Administrative Agent pursuant to Section 3.03 hereof, the
records of the Administrative Agent shall be conclusive for all
purposes.
SECTION 10.03. No Waiver of Remedies.
No failure on the part of the Administrative Agent, the
Fronting Bank or any Lender to exercise, and no delay in
exercising, any right under any Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay when due, in accordance with the
terms hereof: (i) all costs and expenses of the Administrative
Agent in connection with the preparation, negotiation, execution
and delivery of the Loan Documents, the administration of the
Loan Documents, and any proposed modification, amendment, or
consent relating thereto (including, in each case, the reasonable
fees and expenses of counsel to the Administrative Agent); (ii)
all customary and reasonable charges, costs and expenses of the
Fronting Bank in connection with the issuance, transfer,
modification or amendment of any Letter of Credit (including, in
each case, the reasonable fees and expenses of counsel to the
Fronting Bank); and (iii) all costs and expenses of the
Administrative Agent, the Fronting Bank and each Lender
(including all fees and expenses of counsel) in connection with
the enforcement, whether through negotiations, legal proceedings
or otherwise, of the Loan Documents.
(b) The Borrower hereby agrees to indemnify and hold each Joint
Lead Arranger, each Co-Syndication Agent, the Documentation
Agent, the Administrative Agent, the Fronting Bank and each
Lender, and its officers, directors, employees, professional
advisors and affiliates (each, an "Indemnified Person") harmless
from and against any and all claims, damages, losses,
liabilities, costs or expenses (including settlement costs and
reasonable attorney's fees and expenses, whether or not such
Indemnified Person is named as a party to any proceeding or
investigation or is otherwise subjected to judicial or legal
process arising from any such proceeding or investigation) that
any of them may incur or that may be claimed against any of them
by any person or entity (except to the extent such claims,
damages, losses, liabilities, costs or expenses arise from the
gross negligence or willful misconduct of the Indemnified
Person):
(i) by reason of or in connection with the execution,
delivery or performance of the Loan Documents or any transaction
contemplated thereby, or the use by the Borrower of the proceeds
of any Advance, or the issuance of, or the use by the Borrower
of, or the use by any Beneficiary of the proceeds of, any Letter
of Credit;
(ii) in connection with or resulting from the utilization,
storage, disposal, treatment, generation, transportation, release
or ownership of any Hazardous Substance (A) at, upon or under any
property of the Borrower or any of its Affiliates or (B) by or on
behalf of the Borrower or any of its Affiliates at any time and
in any place; or
(iii) in connection with any documentary taxes, assessments
or charges made by any governmental authority by reason of the
execution and delivery of the Loan Documents.
(c) The Borrower's obligations under this Section 10.04 shall
survive the assignment by any Lender pursuant to Section 10.07
hereof and shall survive as well the repayment of all amounts
owing to the Lenders and the Fronting Bank under the Loan
Documents and the termination of the Commitments. If and to the
extent that the obligations of the Borrower under this
Section 10.04 are unenforceable for any reason, the Borrower
agrees to make the maximum contribution to the payment and
satisfaction thereof which is permissible under applicable law.
(d) The Borrower's obligations under this Section 10.04 are in
addition to and shall not be deemed to supersede its
indemnification and similar obligations set forth in that certain
Commitment Letter dated October 6, 2004 among the Borrower, Union
Bank, Barclays Capital and Barclays Bank PLC.
SECTION 10.05. Right of Set-off.
(a) Upon (i) the occurrence and during the continuance of any
Event of Default, and (ii) the making of the request or the
granting of the consent specified by Section 8.02 to authorize
the Administrative Agent to declare the Advances due and payable
pursuant to the provisions of Section 8.02, each Lender is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower
now or hereafter existing under the Loan Documents held by such
Lender, irrespective of whether or not such Lender shall have
made any demand under the Loan Documents and although such
obligations may be Unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made
by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
(b) The Borrower agrees that it shall have no right of off-set,
deduction or counterclaim in respect of its obligations under the
Loan Documents, and that the obligations of the Lenders hereunder
are several and not joint. Nothing contained herein shall
constitute a relinquishment or waiver of the Borrower's rights to
any independent claim that the Borrower may have against the
Administrative Agent, the Fronting Bank or any Lender, but no
Lender shall be liable for the conduct of the Administrative
Agent, the Fronting Bank or any other Lender, and neither the
Administrative Agent nor the Fronting Bank shall be liable for
the conduct of the other or any Lender.
SECTION 10.06. Effectiveness.
This Agreement shall become effective when it shall have
been executed by the Borrower, the Administrative Agent and the
Fronting Bank and when the Administrative Agent shall have been
notified by each Bank that such Bank has executed it.
SECTION 10.07. Assignments and Participation.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each
Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of paragraph (b) of
this Section, (ii) by way of participation in accordance with the
provisions of paragraph (d) of this Section or (iii) by way of
pledge or assignment of a security interest subject to the
restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in paragraph (d) of
this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under
the Loan Documents (including all or a portion of its Commitment
and the Advances at the time owing to it); provided that (i) such
Lender provides notice thereof to the Borrower within fifteen
(15) days of such assignment (but the failure to provide such
notice shall not affect the validity of such assignment), (ii)
except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Advances at
the time owing to it or in the case of an assignment to a Lender
or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this
purpose includes Advances outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal
outstanding balance of the Advances of the assigning Lender
subject to each such assignment (determined as of the date the
Lender Assignment with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in the
Lender Assignment, as of the Trade Date) shall not be less than
$5,000,000, unless each of the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (iii) each partial assignment
shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement
with respect to the Advance or the Commitment assigned, (iv) any
assignment of a Commitment must be approved by the Administrative
Agent and the Fronting Bank unless the Person that is the
proposed assignee is itself a Lender with a Commitment (whether
or not the proposed assignee would otherwise qualify as an
Eligible Assignee) and (v) the parties to each assignment shall
execute and deliver to the Administrative Agent a Lender
Assignment, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to paragraph (c) of this Section,
from and after the effective date specified in each Lender
Assignment, the Eligible Assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by
such Lender Assignment, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Lender
Assignment, be released from its obligations under this Agreement
(and, in the case of a Lender Assignment covering all of the
assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 4.03 and 4.05 with
respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does
not comply with this paragraph shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of
this Section.
(c) The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at one of its addresses
referred to in Section 10.02 a copy of each Lender Assignment
delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and
principal amounts of the Advances owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender may at any time, without the consent of the
Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in
all or a portion of such Lender's rights and/or obligations under
this Agreement (including all or a portion of its Commitment
and/or the Advances owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and
to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver
described in Section 10.01(a)-(g) that affects such Participant.
Subject to paragraph (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of
Sections 4.03 and 4.05 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of
Section 10.05 as though it were a Lender, provided such
Participant agrees to be subject to Section 4.04 as though it
were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Sections 4.03 and 4.05 than the applicable Lender
would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with each Borrower's
prior written consent. A Participant that is not incorporated
under the laws of the United States of America or any state
thereof shall not be entitled to the benefits of Section 4.05
unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 4.05(e) as though it were a
Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a
party hereto.
(g) If any Lender shall have delivered a notice to the
Administrative Agent described in Section 4.03(a), (b), (c) or
(f) hereof, or shall become a non-performing Lender under Section
3.03(b) hereof, and if and so long as such Lender shall not have
withdrawn such notice or corrected such non-performance in
accordance with Section 3.03(b), the Borrower may demand that
such Lender assign, in accordance with Section 10.07 hereof, to
one or more assignees designated by either the Borrower or the
Administrative Agent (and reasonably acceptable to the other),
all (but not less than all) of such Lender's Commitment,
Advances, participation and other rights and obligations under
the Loan Documents; provided that any such demand by the Borrower
during the continuance of an Event of Default or an Unmatured
Default shall be ineffective without the consent of the Majority
Lenders. If, within 30 days following any such demand by the
Borrower, any such assignee so designated shall fail to tender
such assignment on terms reasonably satisfactory to the Borrower
and the Borrower and the Administrative Agent shall have failed
to designate any such assignee, then such demand by the Borrower
shall become ineffective, it being understood for purposes of
this provision that such assignment shall be conclusively deemed
to be on terms reasonably satisfactory to such Lender, and such
Lender shall be compelled to tender such assignment forthwith, if
(i) such assignee (A) shall agree to such assignment in
substantially the form of the Lender Assignment and (B) shall
tender payment to such Lender in an amount equal to the full
outstanding dollar amount accrued in favor of such Lender
hereunder (as computed in accordance with the records of the
Administrative Agent) and (ii) in the event the Borrower demanded
such assignment, the Borrower shall tender payment to the
Administrative Agent of the processing and recording fee
specified in Section 10.07(b) for such assignment.
SECTION 10.08. Confidentiality.
In connection with the negotiation and administration of
the Loan Documents, the Borrower has furnished or caused to have
furnished and will from time to time furnish or cause to be
furnished to the Administrative Agent, the Fronting Bank and the
Lenders (each, a "Recipient") written information that when
delivered to the Recipient will be deemed to be confidential
(such information, other than any such information that (i) was
publicly available, or otherwise known to the Recipient, at the
time of disclosure, (ii) subsequently becomes publicly available
other than through any act or omission by the Recipient or
(iii) otherwise subsequently becomes known to the Recipient other
than through a Person whom the Recipient knows to be acting in
violation of his or its obligations to the Borrower, being
hereinafter referred to as "Confidential Information"). The
Recipient will not knowingly disclose any such Confidential
Information to any third party (other than to those Persons who
have a confidential relationship with the Recipient), and will
take all reasonable steps to restrict access to such information
in a manner designed to maintain the confidential nature of such
information, in each case until such time as the same ceases to
be Confidential Information or as the Borrower may otherwise
instruct. It is understood, however, that the foregoing will not
restrict the Recipient's ability to freely exchange such
Confidential Information with prospective participants in or
assignees of the Recipient's position herein, but the Recipient's
ability to so exchange Confidential Information shall be
conditioned upon any such prospective participant's entering into
an understanding as to confidentiality similar to this provision.
It is further understood that the foregoing will not prohibit the
disclosure of any or all Confidential Information if and to the
extent that such disclosure may be required (i) by a regulatory
agency or otherwise in connection with an examination of the
Recipient's records by appropriate authorities, (ii) pursuant to
court order, subpoena or other legal process or (iii) otherwise,
as required by law; in the event of any required disclosure under
clause (ii) or (iii), above, the Recipient agrees to use
reasonable efforts to inform the Borrower as promptly as
practicable unless the Lender is prohibited from doing so by
court order, subpoena or other legal process.
Notwithstanding the foregoing, each party hereto (and each
officer, director, employee, representative, agent and advisor of
each party hereto) may disclose to any and all persons, without
limitation of any kind, the "tax treatment" and "tax structure"
(in each case within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated by the Loan Documents
and all materials of any kind (including opinions or other tax
analyses) that are provided to such person relating to such "tax
treatment" and "tax structure". The foregoing is intended to
comply with the presumption set forth in Treasury Regulation
Section 1.6011-4(b)(3)(iii) and should be interpreted in a manner
consistent with such regulation.
SECTION 10.09. Electronic Communications.
(a) The Borrower hereby agrees that it will provide to the
Administrative Agent all information, documents and other
materials that it is obligated to furnish to the Administrative
Agent pursuant to Section 7.04 (collectively, the
"Communications"), by transmitting the Communications in an
electronic/soft medium in a format acceptable to the
Administrative Agent to each of ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇,
▇▇▇.▇▇@▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇, or faxing the
Communications to each of ▇▇▇-▇▇▇-▇▇▇▇ and ▇▇▇-▇▇▇-▇▇▇▇. In
addition, the Borrower agrees to continue to provide the
Communications to the Administrative Agent in the manner
otherwise specified in this Agreement, but only to the extent
requested by the Administrative Agent.
(b) The Borrower further agrees that the Administrative Agent
may make the Communications available to the Lenders by posting
the Communications on Intralinks or a substantially similar
electronic transmission systems (the "Platform"). The Borrower
acknowledges that the distribution of material through an
electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such
distribution.
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS
IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE
ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR
REPRESENTATIVES (COLLECTIVELY, "AGENT PARTIES") HAVE ANY
LIABILITY TO ANY BORROWER, ANY LENDER OR ANY OTHER PERSON OR
ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE)
ARISING OUT OF THE BORROWER'S OR THE ADMINISTRATIVE AGENT'S
TRANSMISSION OF THE COMMUNICATIONS THROUGH THE PLATFORM, EXCEPT
TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A
FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY'S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address
set forth above shall constitute effective delivery of the
Communications to the Administrative Agent for purposes of the
Loan Documents. Each Lender agrees that notice to it (as
provided in the next sentence) specifying that the Communications
have been posted to the Platform shall constitute effective
delivery of the Communications to such Lender for purposes of the
Loan Documents. Each Lender agrees to notify the Administrative
Agent in writing (including by electronic communication) from
time to time of such Lender's e-mail address to which the
foregoing notice may be sent by electronic transmission and that
the foregoing notice may be sent to such e-mail address.
(e) Nothing herein shall prejudice the right of the
Administrative Agent or any Lender to give any notice or other
communication pursuant to any Loan Document in any other manner
specified in such Loan Document.
SECTION 10.10. Waiver of Jury Trial.
The Borrower, the Administrative Agent, the Fronting Bank
and each of the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim arising
out of or relating to the Loan Documents, or any other instrument
or document delivered hereunder or thereunder.
SECTION 10.11. Governing Law.
The Loan Documents shall be governed by, and construed in
accordance with, the laws of the State of New York. The
Borrower, each of the Lenders, the Fronting Bank and the
Administrative Agent: (i) irrevocably submits to the jurisdiction
of any New York State Court or Federal court sitting in New York
City in any action arising out of or relating to the Loan
Documents, (ii) agrees that all claims in such action may be
decided in such court, (iii) waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum and
(iv) consents to the service of process by mail. A final
judgment in any such action shall be conclusive and may be
enforced in other jurisdictions. Nothing herein shall affect the
right of any party to serve legal process in any manner permitted
by law or affect its right to bring any action in any other
court.
SECTION 10.12. Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or
implied, of any Loan Document, or actions taken or to be taken by
any party thereunder, shall be construed to create a partnership,
association, or joint venture between such parties or any of
them. No term or provision of any Loan Document shall be
construed to confer a benefit upon, or grant a right or privilege
to, any Person other than the parties hereto.
SECTION 10.13. Execution in Counterparts.
This Agreement may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
SECTION 10.14. Limitation of Liability.
No shareholder or trustee of NU shall be held to any
liability whatever for the payment of any sum of money or for
damages or otherwise under any Loan Document, and such Loan
Documents shall not be enforceable against any such trustee in
their or his or her individual capacities or capacity and such
Loan Documents shall be enforceable against the trustees of NU
only as such, and every person, firm, association, trust or
corporation having any claim or demand arising under such Loan
Documents and relating to NU, its shareholders or trustees shall
look solely to the trust estate of NU for the payment or
satisfaction thereof.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
NORTHEAST UTILITIES
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Treasurer -
Finance
S-2
UNION BANK OF CALIFORNIA, N.A., as
Administrative Agent and as a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
S-3
JPMORGAN CHASE BANK, as Fronting
Bank and as a Bank
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
S-4
THE BANK OF NEW YORK, as a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-5
BARCLAYS BANK PLC, as a Bank
By /s/ Sydney ▇. ▇▇▇▇▇▇
Name: Sydney ▇. ▇▇▇▇▇▇
Title: Director
S-6
CITICORP USA, INC. , as a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
S-7
CITIZENS BANK, as a Bank
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-8
FLEET NATIONAL BANK, as a Bank
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Managing Director
S-7
KEY BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
S-10
MELLON BANK, N.A., as a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-11
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK, as a Bank
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
S-12
SOVEREIGN BANK, as a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
S-14
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Bank
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
▇-▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇) LLC, as a
Bank
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Agent
