Exhibit B-6
[EXECUTION VERSION]
CREDIT AGREEMENT
Dated as of November 10, 2003
among
THE CONNECTICUT LIGHT AND POWER COMPANY,
WESTERN MASSACHUSETTS ELECTRIC COMPANY,
YANKEE GAS SERVICES COMPANY, and
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
as Borrowers
THE BANKS NAMED HEREIN
and
CITIBANK, N.A.
as Administrative Agent
CITIGROUP GLOBAL MARKETS INC. and
BANC ONE CAPITAL MARKETS, INC.,
as Joint Lead Arrangers
BARCLAYS BANK PLC
UNION BANK OF CALIFORNIA, N.A.
BANK ONE, NA
as Co-Syndication Agents
FLEET NATIONAL BANK
as Documentation Agent
CREDIT AGREEMENT
Dated as of November 10, 2003
THIS CREDIT AGREEMENT is made by and among:
(i) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation
organized under the laws of the State of Connecticut ("CL&P");
(ii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation
organized under the laws of the Commonwealth of Massachusetts
("WMECO");
(iii) YANKEE GAS SERVICES COMPANY, a corporation organized
under the laws of the State of Connecticut ("Yankee");
(iv) PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, a corporation
organized under the laws of the State of New Hampshire ("PSNH";
CL&P, WMECO, Yankee and PSNH each being a "Borrower", and
collectively, the "Borrowers").
(v) The financial institutions (the "Banks") listed on the
signature pages hereof and the other Lenders (as hereinafter
defined) from time to time party hereto; and
(vi) CITIBANK, N.A. ("Citibank"), as Administrative Agent for the
Lenders hereunder.
PRELIMINARY STATEMENT
The Borrowers have requested the Banks to provide the credit
facility hereinafter described in the amounts and on the terms
and conditions set forth herein. The Banks have so agreed on the
terms and conditions set forth herein, and the Administrative
Agent has agreed to act as agent for the Lenders on such terms
and conditions.
Based upon the foregoing and subject to the terms and
conditions set forth in this Agreement, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be applicable to the
singular and plural forms of the terms defined):
"Administrative Agent" means Citibank, in its capacity
as administrative agent hereunder, or any successor thereto
as provided herein.
"Advance" means a Contract Advance.
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling (including,
but not limited to, all directors and officers of such
Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly or
indirectly, the power to direct or cause the direction of
the management and policies of such entity, whether through
the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Credit Agreement, as the same
may be modified, amended and/or supplemented pursuant to the
terms hereof.
"Applicable Facility Fee Rate" means, for each Borrower
for any day, the percentage per annum set forth below in
effect on such day, determined on the basis of the
Applicable Rating Level of CL&P:
Applicable Facility Fee Rate
Applicable Rating Level Percentage (%)
Level I 0.100
Level II 0.125
Level III 0.150
Level IV 0.200
Level V 0.500
Any change in the Applicable Facility Fee Rate caused by a
change in the Applicable Rating Level shall take effect at
the time such change in the Applicable Rating Level shall
occur.
"Applicable Lending Office" means, with respect to each
Lender:
(i) in the case of any Contract Advance, (A) such
Lender's "Eurodollar Lending Office" in the case of a
Eurodollar Rate Advance or (B) such Lender's "Domestic Lending
Office" in the case of a Base Rate Advance, in each case as
specified opposite such Lender's name on Schedule I hereto or
in the Lender Assignment pursuant to which it became a
Lender; or
(ii) in each case, such other office of such Lender as
such Lender may from time to time specify in writing to the
Borrowers and the Administrative Agent.
"Applicable Margin" means, for each Borrower, for any
day for any outstanding Contract Advance, the percentage per
annum set forth below in effect on such day, determined on
the basis of the Applicable Rating Level for such Borrower:
Applicable Margin (Percentage %)
Rating Eurodollar Utilization Base Rate Utilization
Level Rate Margin Advances Margin
Advances for (%) for Base
(%) Eurodollar Rate
Rate Advances
Advances (%)
Level I 0.600 0.125 0.000 0.125
Level II 0.750 0.125 0.000 0.125
Level III 0.850 0.125 0.000 0.125
Level IV 1.050 0.125 0.050 0.125
Level V 1.500 0.500 0.500 0.500
provided, that (x) the Applicable Margin for Eurodollar Rate
Advances shall be increased by the rate per annum set forth
above under the caption "Utilization Margin for Eurodollar
Rate Advances" that corresponds to the Applicable Rating
Level used to determine such Applicable Margin and (y) the
Applicable Margin for Base Rate Advances shall be increased
by the rate per annum set forth above under the caption
"Utilization Margin for Base Rate Advances" that corresponds
to the Applicable Rating Level used to determine such
Applicable Margin, in any case, during any period in which
the total principal amount of outstanding Advances is
greater than one-half of the Total Commitment. Any change
in the Applicable Margin caused by a change in the
Applicable Rating Level shall take effect at the time such
change in the Applicable Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance
made to any Borrower, either of (i) the Base Rate from time
to time applicable to such Advance plus the Applicable
Margin, or (ii) the Eurodollar Rate from time to time
applicable to such Advance plus the Applicable Margin.
"Applicable Rating Level" for each Borrower, shall be
determined at any time and from time to time on the basis of
the Reference Ratings applicable to such Borrower, in
accordance with the following:
Applicable Rating Level
S&P ▇▇▇▇▇'▇
Level I A- or higher A3 or higher
Level II BBB+ Baa1
Level III BBB Baa2
Level IV BBB- Baa3
Level V BB+ or lower Ba1 or lower
In the event that the Reference Ratings do not correspond to
the same Applicable Rating Level, then the lower of the two
ratings shall determine the Applicable Rating Level, except
that if the Reference Ratings differ by more than one Level,
the Level that is one Level higher than the Level
corresponding to the lower of such ratings shall determine
the Applicable Rating Level; provided, that the foregoing
exception shall not apply in any case when the lower of such
ratings shall correspond to Level IV or Level V, in which
case the Applicable Rating Level corresponding to such lower
rating shall determine the Applicable Rating Level;
provided, further, that if such Borrower has outstanding
Borrower Debt (or Secured Debt, if Secured Debt then forms
the basis for Reference Ratings pursuant to the definition
of "Reference Ratings" in this Section 1.01) and both
▇▇▇▇▇'▇ and S&P shall have ceased to issue or maintain
ratings on such Borrower Debt (or Secured Debt, as the case
may be), then the Applicable Rating Level shall be Level V.
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
unused portion of such Lender's Commitment (which shall be
equal to the excess, if any, of such Lender's Commitment
over such Lender's Contract Advances outstanding).
"Available Commitments" shall refer to the aggregate of the
Lenders' Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the
caption to this Agreement.
"Base Rate" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time to
time which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by the
Administrative Agent in its principal place of business
from time to time as the Administrative Agent's base rate;
(b) 1/2 of one percent per annum above the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money market
banks, adjusted to the nearest 1/32 of one percent (the "CD
Rate"); and
(c) 1/2 of one percent per annum above the Federal
Funds Rate in effect from time to time.
If the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain the CD Rate or the Federal
Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Base
Rate shall be determined without regard to clause (b) of the
first sentence of this definition, in the event the
Administrative Agent is unable to ascertain the CD Rate, and
clause (c) of the first sentence of this definition, in the
event the Administrative Agent is unable to ascertain the
Federal Funds Rate, until the circumstances giving rise to
such inability no longer exist. Any change in the Base Rate
due to a change in the Administrative Agent's base rate, the
CD Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Administrative Agent's
base rate, the CD Rate or the Federal Funds Rate,
respectively.
"Base Rate Advance" means a Contract Advance in respect
of which a Borrower has selected in accordance with
Article III hereof, or this Agreement provides for, interest
to be computed on the basis of the Base Rate.
"Borrower" or "Borrowers" has the meaning assigned to
that term in the caption to this Agreement.
"Borrower Debt" has the meaning specified in the
definition of "Reference Ratings" in this Section 1.01.
"Borrower Sublimit" means: (i) with respect to CL&P,
$150,000,000, (ii) with respect to WMECO, $100,000,000,
(iii) with respect to Yankee, $100,000,000 and (iv) with
respect to PSNH, $100,000,000.
"Borrowing" means a Contract Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Change of Control" means (a) any Person or "group"
(within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended), shall either
(1) acquire beneficial ownership of more than 50% of any
outstanding class of common stock of NU having ordinary
voting power in the election of directors of NU or
(2) obtain the power (whether or not exercised) to elect a
majority of NU's directors or (b) the Board of Directors of
NU shall not consist of a majority of Continuing Directors.
For purposes of this definition, the term "Continuing
Directors" means directors of NU on the Closing Date and
each other director of NU, if such other director's
nomination for election to the Board of Directors of NU is
recommended by a majority of the then Continuing Directors.
"Citibank" has the meaning assigned to that term in the
caption to this Agreement.
"CL&P" has the meaning assigned to that term in the
caption to this Agreement.
"Closing Date" has the meaning assigned to that term in
Section 5.01 hereof.
"Commitment" means, for each Lender, the aggregate
amount set forth opposite such Lender's name on the
signature pages hereof or, if such Lender has entered into
one or more Lender Assignments, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant
to Section 10.07(c), in each such case as such amount may be
reduced from time to time pursuant to Section 2.03 hereof.
"Commitments" shall refer to the aggregate of the Lenders'
Commitments hereunder.
"Confidential Information" has the meaning assigned to
that term in Section 10.08 hereof.
"Consolidated Debt" means, at any date for any
Borrower, the total Debt of such Borrower and its
Subsidiaries as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Consolidated EBIT" means, for any Borrower for any
period (as determined on a consolidated basis in accordance
with generally accepted accounting principles), the
Borrower's and its Subsidiaries' net income for such period,
adjusted as follows:
(i) increased by the amount of federal and state income
taxes to the extent deducted in the
computation of such Borrower's and/or its Subsidiaries'
consolidated net income for such period;
(ii) increased by the amount of Consolidated Interest Expense
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iii) increased by the amount of dividends on preferred stock
deducted in the computation of such 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 such
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 such
Borrower's and/or its Subsidiaries' consolidated net
income for such period;
(v) decreased by the amount of revenues accrued by such
Borrower and/or its Subsidiaries related to interest on
Stranded Cost Recovery Obligations of such Borrower, and
increased by the amount of operating expenses accrued by
such Borrower and/or its Subsidiaries related to interest
on Stranded Cost Recovery Obligations of such Borrower,
in each case to the extent included in the computation
of such Borrower's and/or its Subsidiaries' consolidated
net income for such period; and
(vi) increased, in the case of Yankee, by the amount of any
write-off associated with the unbilled revenue analysis
conducted in the third Fiscal Quarter of 2003.
"Consolidated Interest Expense" means, for any
Borrower, for any period, the aggregate amount of any
interest required to be paid during such period by such
Borrower and its Subsidiaries on Debt (including the current
portion thereof) (as determined on a consolidated basis in
accordance with generally accepted accounting principles),
excluding interest required to be paid on the Stranded Cost
Recovery Obligations of such Borrower.
"Contract Advance" means an advance by a Lender to any
Borrower pursuant to Article III hereof, and refers to a
Eurodollar Rate Advance or a Base Rate Advance (each of
which shall be a "Type" of Contract Advance). For purposes
of this Agreement, all Contract Advances of a Lender (or
portions thereof) of the same Type and Interest Period, if
any, made or converted on the same day to the same Borrower
shall be deemed to be a single Advance by such Lender until
repaid.
"Contract Borrowing" means a borrowing consisting of
one or more Contract Advances of the same Type and Interest
Period, if any, made to the same Borrower on the same
Business Day by the Lenders, ratably in accordance with
their respective Commitments. A Contract Borrowing may be
referred to herein as being a "Type" of Contract Borrowing,
corresponding to the Type of Contract Advances comprising
such Borrowing. For purposes of this Agreement, all
Contract Advances of the same Type and Interest Period, if
any, made or converted on the same day to the same Borrower
shall be deemed a single Contract Borrowing hereunder until
repaid.
"Contract Note" means a promissory note of any Borrower
payable to the order of a Lender, in substantially the form
of Exhibit 1.01A hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from
the Contract Advances made by such Lender to such Borrower.
"Debt" means, for any Person, without duplication,
(i) indebtedness of such Person for borrowed money,
including but not limited to obligations of such Person
evidenced by bonds, debentures, notes or other similar
instruments (excluding Stranded Cost Recovery Obligations
which are non-recourse to such Person), (ii) obligations of
such Person to pay the deferred purchase price of property
or services (excluding any obligation of such Person to
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 which shall have been or should be, in accordance
with generally accepted accounting principles, recorded as
capital leases, (iv) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness
or obligations of others of the kinds referred to in
clauses (i) through (iii), above, and (v) liabilities in
respect of unfunded vested benefits under ERISA Plans.
"Disclosure Documents" means, for any Borrower:
(i) such Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 2002 (ii) its Quarterly
Reports on Form 10-Q for the fiscal quarters ended
March 31 and June 30, 2003; and (iii) the Information
Memorandum, and, for WMECO, shall include in addition
WMECO's Current Report on Form 8-K filed with the Securities
and Exchange Commission on October 8, 2003.
"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 the
Administrative Agent and, unless an Event of Default has
occurred and is continuing, each Borrower (each such
approval not to be unreasonably withheld or delayed);
provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include any Borrower or any Affiliate or
Subsidiary of any Borrower.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person,
any trade or business (whether or not incorporated) which is
a "commonly controlled entity" of such Person within the
meaning of the regulations under Section 414 of the Internal
Revenue Code of 1986, as amended from time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan"
subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than
a ERISA Multiemployer Plan) maintained for employees of any
Borrower or any ERISA Affiliate thereof and covered by
Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable
Event described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject
to the provision for 30-day notice to the PBGC under such
regulations) with respect to an ERISA Plan or an ERISA
Multiemployer Plan, or (ii) the withdrawal of any Borrower
or any of its ERISA Affiliates from an ERISA Plan or an
ERISA Multiemployer Plan during a plan year in which it was
a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to
terminate an ERISA Plan or an ERISA Multiemployer Plan or
the treatment of an ERISA Plan amendment as a termination or
of an ERISA Multiemployer Plan amendment as a termination
under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or
condition which might constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a
trustee to administer, any ERISA Plan or ERISA Multiemployer
Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rates per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London
interbank market at 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period in the
amount of $1,000,000 and for a period equal to such Interest
Period. The Eurodollar Rate for the Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by
the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period,
subject, however, to the provisions of Sections 3.05(d) and
4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in
respect of which a Borrower has selected in accordance with
Article III hereof, or this Agreement provides for, interest
to be computed on the basis of the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender or its
subparticipant, for each Interest Period for each Eurodollar
Rate Advance, means the reserve percentage applicable during
such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such
percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under
Regulation D or other regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement, without
benefit of or credit for proration, exemptions or offsets)
for such Lender or its subparticipant with respect to
liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such
Interest Period.
"Event of Default" has the meaning specified in
Section 8.01 hereof.
"Existing Credit Facility" means the credit facility
provided to the Borrowers under the Credit Agreement, dated
as of November 12, 2002, among CL&P, WMECO, PSNH and Yankee,
the lenders party thereto and Citibank, as administrative
agent for the lenders thereunder.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal to, for each day
during such period, the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for such day on such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter dated
October 3, 2002 among Citibank, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, Inc.,
Barclays Bank PLC, Union Bank of California, N.A., Banc One
Capital Markets, Inc., NU, CL&P, WMECO, Yankee and PSNH.
"FERC" means the Federal Energy Regulatory Commission.
"Financial Statements" means (A) with respect to CL&P,
(i) the audited consolidated balance sheet of CL&P as at
December 31, 2002, (ii) the unaudited consolidated balance
sheet of CL&P as at June 30, 2003, (iii) the audited
consolidated statements of income and cash flows of CL&P for
the Fiscal Year ended December 31, 2002 and (iv) the
unaudited consolidated statements of income and cash flows
of CL&P for the 6-month period ended June 30, 2003, in each
case as included in CL&P's Annual Report on Form 10-K for
the Fiscal Year ended December 31, 2002 or Quarterly Report
on Form 10-Q for the Fiscal Quarter ended June 30, 2003,
(B), with respect to WMECO, (i) the audited balance sheet of
WMECO as at December 31, 2002, (ii) the unaudited balance
sheet of WMECO as at June 30, 2003, (iii) the audited
statements of income and cash flows of WMECO for the Fiscal
Year ended December 31, 2002 and (iv) the unaudited
statements of income and cash flows of WMECO for the 6-month
period ended June 30, 2003, in each case as included in
WMECO's Annual Report on Form 10-K for the Fiscal Year ended
December 31, 2002 or Quarterly Report on Form 10-Q for the
Fiscal Quarter ended June 30, 2003, (C), with respect to
Yankee, (i) the audited balance sheet of Yankee as at
December 31, 2002, (ii) the unaudited balance sheet of
Yankee as at June 30, 2003 (iii) the audited statements of
income and cash flows of Yankee for the Fiscal Year ended
December 31, 2002 and (iv) the unaudited statements of
income and cash flows of Yankee for the 6-month period ended
June 30, 2003, and (D), with respect to PSNH, (i) the
audited consolidated balance sheet of PSNH as at
December 31, 2002, (ii) the unaudited consolidated balance
sheet of PSNH as at June 30, 2003, (iii) the audited
consolidated statements of income and cash flows of PSNH for
the Fiscal Year ended December 31, 2002, and (iv) the
unaudited consolidated statements of income and cash flows
of PSNH for the 6-month period ended June 30, 2003, in each
case as included in PSNH's Annual Report on Form 10-K for
the Fiscal Year ended December 31, 2002 or Quarterly Report
on Form 10-Q for the Fiscal Quarter ended June 30, 2003.
"First Mortgage Indentures" means (i) in the case of
CL&P, the Indenture of Mortgage and Deed of Trust dated as
of May 1, 1921, from CL&P to 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, and (iv) 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
to, as previously and hereafter amended and supplemented.
"Fiscal Quarter" means a period of three calendar
months ending on the last day of March, June, September or
December, as the case may be.
"Fiscal Year" means a period of twelve calendar months
ending on the last day of December.
"Fraction" means, in respect of any Borrower as
determined at any time, a fraction, the numerator of which
shall be the Borrower Sublimit of such Borrower at such
time, and the denominator of which shall be the sum of the
Borrower Sublimits of all Borrowers at such time.
"Governmental Approval" means any authorization,
consent, approval, license, permit, certificate, exemption
of, or filing or registration with, any governmental
authority or other legal or regulatory body (including,
without limitation, the Securities and Exchange Commission,
the FERC, the Nuclear Regulatory Commission, the Connecticut
Department of Public Utility Control, the Massachusetts
Department of Telecommunications and Energy and the New
Hampshire Public Utility Commission) required in connection
with either (i) the execution, delivery or performance of
any Loan Document or (ii) the nature of a Borrower's or any
Subsidiary's business as conducted or the nature of the
property owned or leased by it.
"Hazardous Substance" means any waste, substance or
material identified as hazardous, dangerous or toxic by any
office, agency, department, commission, board, bureau or
instrumentality of the United States of America or of the
State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that
term in Section 10.04(b) hereof.
"Information Memorandum" means the Confidential
Information Memorandum, dated October, 2003, regarding the
credit facility to be provided to the Borrowers hereunder,
as distributed to the Administrative Agent and the Lenders,
including, without limitation, all schedules and attachments
thereto.
"Interest Period" has the meaning assigned to that term
in Section 3.05(a) hereof.
"Lender Assignment" means an assignment and acceptance
entered into by a Lender and an assignee, and accepted by
the Administrative Agent, in substantially the form of
Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on
the signature pages hereof, and each assignee that shall
become a party hereto pursuant to Section 10.07.
"Lien" means, with respect to any asset or property,
any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset or
property. For the purposes of this Agreement, a Person or
any of its Subsidiaries shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement
relating to such asset.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means on any date of determination,
Lenders who, collectively, on such date (i) have Percentages
in the aggregate of at least 66-2/3% and (ii) if the
Commitments have been terminated, hold at least 66-2/3% of
the then aggregate unpaid principal amount of the Advances
owing to the Lenders. Determination of those Lenders
satisfying the criteria specified above for action by the
Majority Lenders shall be made by the Administrative Agent
and shall be conclusive and binding on all parties absent
manifest error.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto.
"New Hampshire Order" means the order of the New
Hampshire Public Utility Commission required in connection
with the execution, delivery and performance of the Loan
Documents by PSNH.
"Note" means a Contract Note, as may be amended,
supplemented or otherwise modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned
to that term in Section 3.01 hereof.
"NU" means Northeast Utilities, an unincorporated
voluntary business association organized under the laws of
the Commonwealth of Massachusetts.
"NU System Money Pool" means the money pool described
in the application/declaration, as amended, of NU and
certain of its Subsidiaries filed with the Securities and
Exchange Commission in File No. 70-9755, 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) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any
date of determination, the percentage obtained by dividing
such Lender's Commitment on such day by the total of the
Commitments on such day, and multiplying the quotient so
obtained by 100%.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company,
joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any
political subdivision or agency thereof.
"PSNH" has the meaning assigned to that term in the
caption to this agreement.
"Recipient" has the meaning assigned to that term in
Section 10.08 hereof.
"Reference Banks" means Citibank, Fleet National Bank
and the Toronto Dominion Bank, and any other bank or
financial institution designated by the Borrowers and the
Administrative Agent with the approval of the Majority
Lenders to act as a Reference Bank hereunder.
"Reference Ratings" means, with respect to a Borrower,
the ratings assigned by S&P and Moody's to the long-term
senior unsecured non-credit enhanced debt of such Borrower
(the "Borrower Debt"); provided, that
(i) if neither S&P nor Moody's maintains a rating on the
Borrower Debt of a Borrower because no such Borrower
Debt is outstanding, then the "Reference Ratings" shall
be based on the ratings assigned by S&P and Moody's to
the long-term senior secured debt (the "Secured Debt")
of such Borrower, but such ratings shall be deemed to
correspond to an Applicable Rating Level that is one
Level lower than the Level that would
correspond to such Secured Debt ratings pursuant to the
definition of "Applicable Rating Level";
(ii) if neither S&P nor Moody's (A) maintains a rating on the
Borrower Debt of a Borrower because no such Borrower
Debt is outstanding and (B) maintains a rating on the
Secured Debt of a Borrower because no such Secured Debt
is outstanding, then the "Reference Ratings" shall be
based on such Borrower's long-term corporate/issuer
ratings as maintained by S&P and Moody's (the
"Corporate Ratings"), but such ratings shall be deemed to
correspond to an Applicable Rating Level that is one
level lower than the Level that would correspond to such
Corporate Ratings pursuant to the definition of
"Applicable Rating Level".
"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.
"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.
"S&P" means Standard and Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any
successor thereto.
"Secured Debt" has the meaning specified in the
definition of "Reference Ratings" in this Section 1.01.
"SEC Borrowing Limit" means, for any Borrower on any
date, the short-term debt borrowing limit prescribed by the
Securities and Exchange Commission applicable to such
Borrower on such date.
"Stranded Cost Recovery Obligations" means, with
respect to any Person, such Person's obligations to make
principal, interest or other payments to the issuer of
stranded cost recovery bonds pursuant to a loan agreement or
similar arrangement whereby the issuer has loaned the
proceeds of such bonds to such Person.
"Subsidiary" shall mean, with respect to any Person
(the "Parent"), any corporation, association or other
business entity of which securities or other ownership
interests representing 50% or more of the ordinary voting
power are, at the time as of which any determination is
being made, owned or controlled by the Parent or one or more
Subsidiaries (whether direct or indirect) of the Parent or
by the Parent and one or more such Subsidiaries of the
Parent.
"Taxes" has the meaning assigned to that term in
Section 4.05(a) hereof.
"Termination Date" means the earliest to occur of (i)
November 8, 2004, or such later date to which the
Termination Date shall be extended in accordance with
Section 2.04, (ii) the date of termination or reduction in
whole of the Commitments pursuant to Section 2.03 or 8.02 or
(iii) the date of acceleration of all amounts payable
hereunder pursuant to Section 8.02.
"Total Capitalization" means, at any date for any
Borrower, the sum of (i) Consolidated Debt of such Borrower
and its Subsidiaries, (ii) the aggregate of the par value
of, or stated capital represented by, the outstanding shares
of all classes of common and preferred shares of such
Borrower and its Subsidiaries and (iii) the consolidated
surplus of such Borrower and its Subsidiaries, paid-in,
earned and other capital, if any, in each case as determined
on a consolidated basis in accordance with generally
accepted accounting principles consistent with those applied
in the preparation of such Borrower's Financial Statements.
"Total Commitment" means $300,000,000, or such lesser
amount from time to time as shall equal the sum of the
Commitments.
"Type" has the meaning assigned to such term (i) in the
definition of "Contract Advance" when used in such context
and (ii) in the definition of "Contract Borrowing" when used
in such context.
"Unmatured Default" means the occurrence and
continuance of an event which, with the giving of notice or
lapse of time or both, would constitute an Event of Default.
"WMECO" has the meaning assigned to that term in the
caption to this Agreement.
"Yankee" has the meaning assigned to that term in the
caption to this Agreement.
SECTION 1.02. Computation of Time Periods.
In the computation of periods of time under this Agreement,
any period of a specified number of days or months shall be
computed by including the first day or month occurring during
such period and excluding the last such day or month. In the
case of a period of time "from" a specified date "to" or "until"
a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but
excluding".
SECTION 1.03. Accounting Terms; Financial Statements.
All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting
principles applied on a basis consistent with the application
employed in the preparation of the Financial Statements. All
references contained herein to any Borrower's Annual Report on
Form 10-K in respect of a Fiscal Year or Quarterly Report on Form
10-Q in respect of a Fiscal Quarter shall be deemed to include
any exhibits and schedules thereto, including without limitation
in the case of any Annual Report on Form 10-K, any "Annual
Report" of such Borrower referred to therein.
SECTION 1.04. Computations of Outstandings.
Whenever reference is made in this Agreement to the
principal amount of Advances outstanding under this Agreement to
one or more Borrowers on any date, such reference shall refer to
the aggregate principal amount of all such Advances to such
Borrower(s) outstanding on such date after giving effect to (i)
all Advances to be made to such Borrower(s) on such date and the
application of the proceeds thereof and (ii) any repayment or
prepayment of Advances on such date by such Borrower(s).
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments.
(a) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrowers from
time to time on any Business Day during the period from the
Closing Date until the Termination Date, in an aggregate amount
not to exceed on any day such Lender's Available Commitment.
Within the limits of such Lender's Available Commitment and such
Borrower's Borrower Sublimit, each Borrower may request Advances
hereunder, repay or prepay Advances and utilize the resulting
increase in the Available Commitments for further Advances in
accordance with the terms hereof.
(b) In no event shall any Borrower be entitled to request or
receive any Advance under subsection (a) that would cause the
aggregate principal amount advanced pursuant thereto to exceed
the Available Commitments. In no event shall any Borrower be
entitled to request or receive any Advance that would cause the
total principal amount of all Advances outstanding hereunder to
exceed the Total Commitment, or that would cause the aggregate
principal amount of all Advances outstanding to or requested by
such Borrower to exceed such Borrower's Borrower Sublimit. In no
event shall any Borrower be entitled to request or receive any
Advance that, when aggregated with all other Advances outstanding
to or requested by such Borrower and all other short-term debt of
such Borrower, would exceed such Borrower's SEC Borrowing Limit
as then in effect.
SECTION 2.02. Fees.
(a) Each Borrower agrees to pay to the Administrative Agent for
the account of each Lender a facility fee (the "Facility Fee") on
the amount of such Lender's Commitment (whether used or unused)
multiplied by such Borrower's Fraction, at the Applicable
Facility Fee Rate from the date of this Agreement, in the case of
each Bank, and from the effective date specified in the Lender
Assignment pursuant to which it became a Lender, in the case of
each other Lender, until the Termination Date. The Facility Fee
payable by each Borrower shall be payable quarterly in arrears on
the last day of each December, March, June and September,
commencing the first such date following the Closing Date, with
final payment payable on the Termination Date.
(b) The Borrowers further agree to pay the fees specified in the
Fee Letter that are for their account, together with such other
fees as may be separately agreed to by the Borrowers and the
Administrative Agent or its Affiliates.
SECTION 2.03. Reduction of the Commitments; Borrower Sublimits.
(a) Each Borrower may, at any time, severally and without the
consent of the other Borrowers, by providing at least three
Business Days' prior written notice to the Administrative Agent,
terminate in whole or reduce in part its Borrower Sublimit;
provided, that any such partial reduction shall be in a minimum
aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. Each such notice of termination or
reduction shall be irrevocable. In no event shall any Borrower
be entitled to increase its Borrower Sublimit without the consent
of all of the Lenders.
(b) Each reduction in a Borrower's Borrower Sublimit pursuant to
this Section 2.03 shall result in a like reduction in the
Commitments on a pro rata basis with respect to each Lender.
SECTION 2.04. Extension of the Termination Date.
(a) Unless the Termination Date shall have previously occurred
in accordance with its terms, at least 45 days but not more than
60 days before the Termination Date, as then in effect, the
Borrowers may jointly, by notice to the Administrative Agent (any
such notice being irrevocable), request the Administrative Agent
and the Lenders to extend the Termination Date for a period of
364 days. If the Borrowers shall make such request, the
Administrative Agent shall promptly inform the Lenders thereof
and, no later than 30 days prior to the Termination Date as then
in effect, the Administrative Agent shall notify the Borrowers in
writing if the Lenders consent to such request and the conditions
of such consent (including conditions relating to legal
documentation and evidence of the obtaining of all necessary
governmental approvals). The granting of any such consent shall
be in the sole and absolute discretion of each Lender, and, if
any Lender shall not so notify the Administrative Agent or, if
the Administrative Agent shall not so notify the Borrowers, such
lack of notification shall be deemed to be a determination not to
consent to such request. No such extension shall occur unless
all of the Lenders consent in writing thereto (or if less than
all the Lenders consent thereto, unless one or more other
existing Lenders, or one or more other banks and financial
institutions acceptable to the Borrowers and the Administrative
Agent, agree to assume all of the Commitments of the non-
consenting Lenders).
ARTICLE III
CONTRACT ADVANCES
SECTION 3.01. Contract Advances.
(a) More than one Contract Borrowing may be made on the same
Business Day. Each Contract Borrowing shall consist of Contract
Advances of the same Type and Interest Period made to the same
Borrower on the same Business Day by the Lenders ratably
according to their respective Commitments. Each Contract
Borrowing shall be made on notice in substantially the form of
Exhibit 3.01 hereto (a "Notice of Contract Borrowing"), delivered
by the Borrower requesting such Contract Borrowing to the
Administrative Agent, by hand or facsimile, not later than 11:00
a.m. (New York City time) (i) in the case of Eurodollar Rate
Advances, on the third Business Day prior to the date of the
proposed Borrowing and (ii) in the case of Base Rate Advances, on
the day of the proposed Borrowing. Upon receipt of a Notice of
Contract Borrowing, the Administrative Agent shall notify the
Lenders thereof promptly on the day so received. Each Notice of
Contract Borrowing shall specify therein: (i) the requested
(A) date of such Borrowing, (B) principal amount and Type of
Advances comprising such Borrowing and (C) initial Interest
Period for such Advances; (ii) the identity of the Borrower
requesting such proposed Borrowing and (iii) the Borrower
Sublimit applicable to such Borrower on the proposed date of such
proposed Borrowing and the aggregate amount of Advances to be
outstanding to such Borrower on such date after giving effect to
such proposed Borrowing. Each proposed Borrowing shall be
subject to the satisfaction of the conditions precedent thereto
as set forth in Article V hereof.
SECTION 3.02. Terms Relating to the Making of Contract Advances.
(a) Notwithstanding anything in Section 3.01 above to the
contrary:
(i) at no time shall more than twelve different Contract
Borrowings be outstanding hereunder;
(ii) each Contract Borrowing hereunder which is to be
comprised of Base Rate Advances shall be in an aggregate
principal amount of not less than $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, or such lesser
amount as shall be equal to the total amount of the Available
Commitments on such date, after giving effect to all other
Contract Borrowings to be made to, or repaid or prepaid by, the
relevant Borrower on such date; and
(iii) each Contract Borrowing hereunder which is to be
comprised of Eurodollar Rate Advances shall be in an aggregate
principal amount of not less than $5,000,000 or an increment of
$1,000,000 in excess thereof.
(b) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower requesting such proposed Borrowing.
SECTION 3.03. Making of Advances.
(a) Each Lender shall, before 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.
Contract Advances shall be made by the Lenders ratably in
accordance with their several Commitments. After the
Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article V, the
Administrative Agent will make such funds available to the
Borrower that made the request for such Borrowing at the
Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the time of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's
ratable portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance
with subsection (a) of this Section 3.03, and the Administrative
Agent may, in reliance upon such assumption, make available to
the Borrower that made the request for such Borrowing a
corresponding amount on such date. If and to the extent that any
such Lender (a "non-performing Lender") shall not have so made
such ratable portion available to the Administrative Agent, the
non-performing Lender and such Borrower severally agree to repay
to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower
until the date such amount is repaid to the Administrative Agent,
at (i) in the case of such Borrower, the interest rate applicable
at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. Nothing herein
shall in any way limit, waive or otherwise reduce any claims that
any party hereto may have against any non-performing Lender.
(c) The failure of any Lender to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Advance on the date
of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by
such other Lender on the date of any Borrowing.
SECTION 3.04. Repayment of Advances; Contract Notes.
(a) Each Borrower shall repay the principal amount of each
Advance made to it hereunder on the Termination Date.
(b) Any Lender may request that the Contract Advances made by it
to any Borrower be evidenced by a Contract Note. Promptly upon
receipt of such request, the relevant Borrower shall prepare,
execute and deliver to such Lender (or, if requested by such
Lender, to such Lender and its assignees) a Contract Note.
Thereafter, the Contract Advances evidenced by such Contract Note
and interest thereon shall at all times (including after
assignment pursuant to Section 10.07) be represented by one or
more Contract Notes payable to the order of the payee named
therein.
SECTION 3.05. Interest.
(a) Interest Periods.
(i) The period commencing on the date of each Advance and
ending on the last day of the period selected by a Borrower
with respect to such Advance pursuant to the provisions of
this Section 3.05 is referred to herein as an "Interest Period".
The duration of each Interest Period shall be (i) in the case
of any Eurodollar Rate Advance, one, two or three months
and (ii) in the case of any Base Rate Advance, the period of
time beginning on the date of the making of, or the conversion
of an outstanding Advance into, such Advance and ending
on the last day of March, June, September or December next
following the date on which such Advance was made; provided,
however, that no Interest Period may be selected by any Borrower
if such Interest Period would end after the Termination Date.
(ii) Subject to the terms and conditions of this Agreement,
the initial Interest Period for any Advance made to any Borrower
shall be determined by such Borrower as set forth in its Notice
of Contract Borrowing with respect to such Advance. Such
Borrower may elect to continue or convert one or more Advances of
any Type and having the same Interest Period to one or more
Advances of the same or any other Type and having the same or a
different Interest Period on the following terms and subject to
the following conditions:
(A) Each continuation or conversion shall be made as
to all Advances comprising a single Borrowing upon written
notice given by such Borrower to the Administrative Agent
not later than 11:00 a.m. (New York City time) on the third
Business Day prior to the date of the proposed continuation
or conversion, in the case of a continuation of or conversion
to a Eurodollar Rate Advance, or on the day of the proposed
continuation of or conversion to a Base Rate Advance. The
Administrative Agent shall notify each Lender of the
contents of such notice promptly after receipt thereof.
Each such notice shall specify therein the following
information: (1) the date of such proposed continuation or
conversion (which in the case of Eurodollar Rate
Advances shall be the last day of the Interest Period then
applicable to such Advances to be continued or converted),
(2) the Type of, and Interest Period applicable to the
Advances proposed to be continued or converted, (3) the
aggregate principal amount of Advances proposed to be
continued or converted, and (4) the Type of Advances to which
such Advances are proposed to be continued or converted and
the Interest Period to be applicable thereto.
(B) During the continuance of an Unmatured Default,
the right of the Borrowers to continue or convert Advances
to Eurodollar Rate Advances shall be suspended, and all
Eurodollar Rate Advances then outstanding shall be converted
to Base Rate Advances on the last day of the Interest Period
then in effect, if, on such day, an Unmatured Default
shall be continuing.
(C) During the continuance of an Event of Default, the
right of the Borrowers to continue or convert Advances to
Eurodollar Rate Advances shall be suspended, and upon the
occurrence of an Event of Default, all Eurodollar Rate
Advances then outstanding shall immediately, without further
act by the Borrowers, be converted to Base Rate Advances.
(D) If no notice of continuation or conversion is
received by the Administrative Agent as provided in paragraph
(A), above, with respect to any outstanding Advances on or
before the third Business Day prior to the last day of the
Interest Period then in effect for such Advances, the
Administrative Agent shall treat such absence of notice
as a deemed notice of continuation or conversion providing for
such Advances to be continued as or converted to Base Rate
Advances with an Interest Period of three months commencing on
the last day of such Interest Period.
(b) Interest Rates. Each Borrower shall pay interest on the
unpaid principal amount of each Advance owing by such Borrower
from the date of such Advance until such principal amount shall
be paid in full, at the Applicable Rate for such Advance (except
as otherwise provided in this subsection (b)), payable as
follows:
(i) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, interest thereon shall be payable on
the last day of the Interest Period applicable thereto and
on the Termination Date; provided that during the continuance
of any Event of Default, such Advance shall bear interest at a
rate per annum equal at all times to 2% per annum above the
Applicable Rate for such Advance for such Interest Period, or,
if higher, the Applicable Margin plus 2.0% per annum above the
Applicable Rate in effect from time to time for Base Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate
Advance, interest thereon shall be payable quarterly on the
last day of each March, June, September and December, on the
date such Base Rate Advance shall be paid in full and on the
Termination Date; provided that during the continuance of any
Event of Default, such Advance shall bear interest at a rate
per annum equal at all times to 2% per annum above the Applicable
Rate for such Advance for such Interest Period.
(c) Other Amounts. Any other amounts payable hereunder that are
not paid when due shall (to the fullest extent permitted by law)
bear interest, from the date when due until paid in full, at a
rate per annum equal at all times to 2.0% per annum above the
Applicable Rate in effect from time to time for Base Rate
Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent
shall give prompt notice to the Borrowers and the Lenders of the
Applicable Rate determined from time to time by the Administrative
Agent for each Contract Advance for each Borrower. Each Reference
Bank agrees to furnish to the Administrative Agent timely information
for the purpose of determining the Eurodollar Rate for any
Interest Period. If any one Reference Bank shall not furnish such
timely information, the Administrative Agent shall determine such
interest rate on the basis of the timely information furnished by
the other two Reference Banks.
SECTION 3.06. Several Obligations.
Each Borrower's obligations hereunder are several and not
joint. Any actions taken by or on behalf of the Borrowers shall
not result in one Borrower being held responsible for the
actions, debts or liabilities of the other Borrowers. Nothing
contained herein shall be interpreted as requiring the Borrowers
to effect Borrowings jointly.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations.
(a) Each Borrower shall make each payment hereunder not later
than 12:00 noon (New York City time) on the day when due in U.S.
Dollars to the Administrative Agent at its address referred to in
Section 10.02 hereof, in same day funds. The Administrative
Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest, fees or other
amounts payable to the Lenders, to the respective Lenders to whom
the same are payable, for the account of their respective
Applicable Lending Offices, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance
of a Lender Assignment and recording of the information contained
therein in the Register pursuant to Section 10.07, from and after
the effective date specified in such Lender Assignment, the
Administrative Agent shall make all payments hereunder in respect
of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Lender Assignment shall make
all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) Each Borrower hereby authorizes the Administrative Agent and
each Lender, if and to the extent payment owed to the
Administrative Agent or such Lender, as the case may be, is not
made when due hereunder, to charge from time to time against any
or all of such Borrower's accounts with the Administrative Agent
or such Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Base Rate (except
when determined on the basis of the Federal Funds Rate) shall be
made by the Administrative Agent on the basis of a year of 365 or
366 days, as the case may be. All computations of interest and
other amounts payable pursuant to Section 4.03 shall be made by
the Lender claiming such interest or other amount on the basis of
a year of 360 days. All other computations of interest,
including computations of interest based on the Eurodollar Rate,
the Base Rate (when and if determined on the basis of the Federal
Funds Rate), and all computations of fees and other amounts
payable hereunder, shall be made by the Administrative Agent on
the basis of a year of 360 days. In each such case, such
computation shall be made for the actual number of days
(including the first day but excluding the last day) occurring in
the period for which such interest, fees or other amounts are
payable. Each such determination by the Administrative Agent or
a Lender shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment under any Loan Document shall be stated
to be due, or the last day of an Interest Period hereunder shall
be stated to occur, on a day other than a Business Day, such
payment shall be made, and the last day of such Interest Period
shall occur, on the next succeeding Business Day, and such
extension of time shall in such case be included in the
computation of payment of interest and fees hereunder; provided,
however, that if such extension would cause payment of interest
on or principal of Eurodollar Rate Advances to be made, or the
last day of an Interest Period for a Eurodollar Rate Advance to
occur, in the next following calendar month, such payment shall
be made on the next preceding Business Day and such reduction of
time shall in such case be included in the computation of payment
of interest hereunder.
(e) Unless the Administrative Agent shall have received notice
from a Borrower prior to the date on which any payment is due to
the Lenders hereunder that such Borrower will not make such
payment in full, the Administrative Agent may assume that such
Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.
If and to the extent such Borrower shall not have so made such
payment in full to the Administrative Agent, such Lender shall
repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender, together with interest thereon, for
each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02. Prepayments.
(a) No Borrower shall have any right to prepay any Contract
Advances except in accordance with subsections (b) and (c),
below.
(b) Any Borrower may, (i) in the case of Eurodollar Rate
Advances, upon at least three Business Day's written notice to
the Administrative Agent (such notice being irrevocable) and
(ii) in the case of Base Rate Advances, upon notice not later
than 11:00 a.m. on the date of the proposed prepayment to the
Administrative Agent (such notice being irrevocable), stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given, such Borrower shall, prepay Contract
Advances comprising part of the same Borrowing, in whole or
ratably in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid and any amounts
owing in connection therewith pursuant to Section 4.03(d);
provided, however, that each partial prepayment shall be in an
aggregate principal amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(c) If at any time, the aggregate principal amount of Advances
outstanding shall exceed the Total Commitment, the Borrowers
shall forthwith prepay Advances in a principal amount equal to
such excess. If at any time, the aggregate principal amount of
Advances outstanding to any Borrower shall exceed the Borrower
Sublimit of such Borrower, such Borrower shall forthwith prepay
Advances in a principal amount equal to such excess. All
prepayments pursuant to this subsection (c) shall be effected
from outstanding Contract Advances comprising part of the same
Borrowing or Borrowings and shall be accompanied by payment of
accrued interest to the date of such prepayment on the principal
amount prepaid and any amounts owing in connection therewith
pursuant to Section 4.03(d).
SECTION 4.03. Yield Protection.
(a) Change in Circumstances. Notwithstanding any other
provision herein, if after the date hereof, the adoption of or
any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof (whether or not having the force of law) shall (i) change
the basis of taxation of payments to any Lender of the principal
of or interest on any Eurodollar Rate Advance made by such Lender
or any fees or other amounts payable under the Loan Documents
(other than changes in respect of taxes imposed on the overall
net income of such Lender or its Applicable Lending Office by the
jurisdiction in which such Lender has its principal office or in
which such Applicable Lending Office is located or by any
political subdivision or taxing authority therein), or (ii) shall
impose, modify or deem applicable any reserve, special deposit or
similar requirement against commitments or assets of, deposits
with or for the account of, or credit extended by, such Lender,
or (iii) shall impose on such Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar
Rate Advances made by such Lender, and the result of any of the
foregoing shall be to increase the cost to such Lender, of
agreeing to make, making or maintaining any Advance or to reduce
the amount of any sum received or receivable by such Lender under
any Loan Document (whether of principal, interest or otherwise),
then the Borrowers will pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) Capital. If any Lender shall have determined that any
change after the date hereof in any law, rule, regulation or
guideline adopted pursuant to or arising out of the July 1988
report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after
the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing
or in the interpretation or administration of any of the
foregoing by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any
Applicable Lending Office of such Lender) or any Lender's holding
company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect
(i) of reducing the rate of return on such Lender's capital or on
the capital of such Lender's holding company, if any, as a
consequence of this Agreement, the Commitment of such Lender
hereunder or the Advances made by such Lender pursuant hereto to
a level below that which such Lender or such Lender's holding
company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such
Lender's policies and the policies of such Lender's holding
company with respect to capital adequacy), or (ii) of increasing
or otherwise determining the amount of capital required or
expected to be maintained by such Lender or such Lender's holding
company based upon the existence of this Agreement, the
Commitment of such Lender hereunder, the Advances made by such
Lender pursuant hereto and other similar such commitments,
agreements or assets, then from time to time the Borrowers shall
pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender or such Lender's holding company
for any such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. Each Borrower shall pay to each Lender
upon demand, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender to such Borrower, from the date of such
Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest
Period. Such additional interest shall be determined by such
Lender and notified to the relevant Borrower and the
Administrative Agent.
(d) Breakage Indemnity. Each Borrower shall indemnify each
Lender against any loss, cost or reasonable expense which such
Lender may sustain or incur as a consequence of (i) any failure
by such Borrower to fulfill on the date of any Borrowing or
conversion of Advances hereunder the applicable conditions
precedent set forth in Articles III and V, (ii) any failure by
such Borrower to borrow any, or convert any outstanding Advance
into a, Eurodollar Rate Advance hereunder after a Notice of
Contract Borrowing has been delivered pursuant to Section 3.01
hereof or after delivery of a notice of conversion pursuant to
Section 3.05(a)(ii) hereof, (iii) any payment, prepayment or
conversion of a Eurodollar Rate Advance made to such Borrower
required or permitted by any other provision of this Agreement or
otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (iv) any default in
payment or prepayment of the principal amount of any Eurodollar
Rate Advance made to such Borrower or any part thereof or
interest accrued thereon, as and when due and payable (at the due
date thereof, by irrevocable notice of prepayment or otherwise)
or (v) the occurrence of any Event of Default with respect to
such Borrower, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Advance or any part thereof
as a Eurodollar Rate Advance. Such loss, cost or reasonable
expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of
obtaining the funds for the Eurodollar Rate Advance being paid,
prepaid, converted or not borrowed for the period from the date
of such payment, prepayment, conversion or failure to borrow to
the last day of the Interest Period for such Advance (or, in the
case of a failure to borrow, the Interest Period for such Advance
which would have commenced on the date of such failure) over
(B) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the
funds so paid, prepaid, converted or not borrowed for such period
or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that in the case of any
Eurodollar Rate Advance, each Lender shall have funded each such
Advance with a fixed-rate instrument bearing the rates and
maturities designated in the determination of the Applicable Rate
for such Advance.
(e) Notices. A certificate of each Lender setting forth such
Lender's claim for compensation hereunder and the amount
necessary to compensate such Lender or its holding company
pursuant to subsections (a) through (d) of this Section 4.03
shall be submitted to the Borrowers and the Administrative Agent
and shall be conclusive and binding for all purposes, absent
manifest error. The Borrowers or appropriate Borrower shall pay
each Lender directly the amount shown as due on any such
certificate within 10 days after its receipt of the same. The
failure of any Lender to provide such notice or to make demand
for payment under this Section 4.03 shall not constitute a waiver
of such Lender's rights hereunder; provided that such Lender
shall not be entitled to demand payment pursuant to
subsections (a) through (d) of this Section 4.03 in respect of
any loss, cost, expense, reduction or reserve, if such demand is
made more than one year following the later of such Lender's
incurrence or sufferance thereof or such Lender's actual
knowledge of the event giving rise to such Lender's rights
pursuant to such subsections. Each Lender shall use reasonable
efforts to ensure the accuracy and validity of any claim made by
it hereunder, but the foregoing shall not obligate any Lender to
assert any possible invalidity or inapplicability of the law,
rule, regulation, guideline or other change or condition which
shall have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other provision
herein, if the adoption of or any change in any law or regulation
or in the interpretation or administration thereof by any
governmental authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to
make or maintain any Eurodollar Rate Advance or to give effect to
its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrowers
and the Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Lender hereunder, whereupon the right
of any Borrower to select Eurodollar Rate Advances for any
Borrowing or conversion shall be forthwith suspended until
such Lender shall withdraw such notice as provided hereinbelow
or shall cease to be a Lender hereunder pursuant to Section
10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances be
converted to Base Rate Advances, in which event all Eurodollar
Rate Advances shall be automatically converted to Base Rate
Advances as of the effective date of such notice as provided
herein below.
Upon receipt of any such notice, the Administrative Agent shall
promptly notify the other Lenders. Promptly upon becoming aware
that the circumstances that caused such Lender to deliver such
notice no longer exist, such Lender shall deliver notice thereof
to the Borrowers and the Administrative Agent withdrawing such
prior notice (but the failure to do so shall impose no liability
upon such Lender). Promptly upon receipt of such withdrawing
notice from such Lender (or upon such Lender assigning all of its
Commitments, Advances, participation and other rights and
obligations under the Loan Documents in accordance with
Section 10.07(g)), the Administrative Agent shall deliver notice
thereof to the Borrowers and the Lenders and such suspension
shall terminate. Prior to any Lender giving notice to the
Borrowers under this subsection (f), such Lender shall use
reasonable efforts to change the jurisdiction of its Applicable
Lending Office, if such change would avoid such unlawfulness and
would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender. Any notice to the Borrowers by
any Lender shall be effective as to each Eurodollar Rate Advance
on the last day of the Interest Period currently applicable to
such Eurodollar Rate Advance; provided that if such notice shall
state that the maintenance of such Advance until such last day
would be unlawful, such notice shall be effective on the date of
receipt by the Borrowers and the Administrative Agent.
(g) Market Rate Disruptions. If (i) fewer than two Reference
Banks furnish timely information to the Administrative Agent for
determining the Eurodollar Rate for Eurodollar Rate Advances in
connection with any proposed Borrowing or (ii) if the Majority
Lenders shall notify the Administrative Agent that the Eurodollar
Rate will not adequately reflect the cost to such Majority
Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances, the right of the Borrowers to select or
receive Eurodollar Rate Advances for any Borrowing shall be
forthwith suspended until the Administrative Agent shall notify
the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist, and until such notification from the
Administrative Agent, each requested Borrowing of Eurodollar Rate
Advances hereunder shall be deemed to be a request for Base Rate
Advances.
(h) Rights of Participants. Any participant in a Lender's
interests hereunder may assert any claim for yield protection
under Section 4.03 that it could have asserted if it were a
Lender hereunder. If such a claim is asserted by any such
participant, it shall be entitled to receive such compensation
from the Borrowers as a Lender would receive in like
circumstances; provided, however, that with respect to any such
claim, the Borrowers shall have no greater liability to the
Lender and its participant, in the aggregate, than it would have
had to the Lender alone had no such participation interest been
created.
(i) Liabilities of Borrowers. Each Borrower shall be liable for
its pro rata share of each payment to be made by the Borrowers
under subsections (a) and (b) of this Section 4.03, such pro rata
share to be determined on the basis of such Borrower's Fraction;
provided, however, that if and to the extent that any such
liabilities are reasonably determined by the Borrowers (subject
to the approval of the Administrative Agent which approval shall
not be unreasonably withheld) to be directly attributable to
Advances made to a specific Borrower, only such Borrower shall be
liable for such payments.
SECTION 4.04. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of 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 Borrowers) on account of the Advances owing to it (other than
pursuant to Section 4.03 hereof) in excess of its ratable share
of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other
Lenders such participation in the Advances owing to them as shall
be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered
from such purchasing Lender, such purchase from each Lender shall
be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with
an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The
Borrowers agree that any Lender so purchasing a participation
from another Lender pursuant to this Section 4.04 may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor
of any such Borrower in the amount of such participation.
Notwithstanding the foregoing, if any Lender shall obtain any
such excess payment involuntarily, such Lender may, in lieu of
purchasing participation from the other Lenders in accordance
with this Section 4.04, on the date of receipt of such excess
payment, return such excess payment to the Administrative Agent
for distribution in accordance with Section 4.01(a).
SECTION 4.05. Taxes.
(a) All payments by or on behalf of any Borrower under any Loan
Document shall be made in accordance with Section 4.01, free and
clear of and without deduction for all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
Lender and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender,
taxes imposed on its overall net income, and franchise taxes
imposed on it, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable under any Loan
Document to any Lender or the Administrative Agent, (i) the sum
payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable
to additional sums payable under this Section 4.05) such Lender
or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
by such Borrower under any Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "Other Taxes").
(c) Each Borrower hereby indemnifies each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and any Other Taxes
imposed by any jurisdiction on amounts payable under this
Section 4.05) paid by such Lender or the Administrative Agent (as
the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto, whether
or not such Taxes or Other Taxes were correctly or legally
asserted. A Lender's claim for such indemnification shall be set
forth in a certificate of such Lender setting forth in reasonable
detail the amount necessary to indemnify such Lender pursuant to
this subsection (c) and shall be submitted to the Borrowers and
the Administrative Agent and shall be conclusive and binding for
all purposes, absent manifest error. The appropriate Borrower
shall pay such Lender directly the amount shown as due on any
such certificate within 30 days after the receipt of same. If
any Taxes or Other Taxes for which a Lender or the Administrative
Agent has received payments from a Borrower hereunder shall be
finally determined to have been incorrectly or illegally asserted
and are refunded to such Lender or the Administrative Agent, such
Lender or the Administrative Agent, as the case may be, shall
promptly forward to such Borrower any such refunded amount. Each
Borrower's, the Administrative Agent's and each Lender's
obligations under this Section 4.05 shall survive the payment in
full of the Advances.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower making such payment will furnish to the Administrative
Agent, at its address referred to in Section 10.02, the original
or a certified copy of a receipt evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of the
United States of America or any state thereof shall, on or prior
to the date it becomes a Lender hereunder, deliver to the
Borrowers and the Administrative Agent such certificates,
documents or other evidence, as required by the Internal Revenue
Code of 1986, as amended from time to time (the "Code"), or
treasury regulations issued pursuant thereto, including Internal
Revenue Service Form W-8BEN or Form W-8ECI and any other
certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any
subsequent version thereof, properly completed and duly executed
by such Lender establishing that it is (i) not subject to
withholding under the Code or (ii) totally exempt from United
States of America tax under a provision of an applicable tax
treaty. Each Lender shall promptly notify the Borrowers and the
Administrative Agent of any change in its Applicable Lending
Office and shall deliver to the Borrowers and the Administrative
Agent together with such notice such certificates, documents or
other evidence referred to in the immediately preceding sentence.
Each Lender will use good faith efforts to apprise the Borrowers
and the Administrative Agent as promptly as practicable of any
impending change in its tax status that would give rise to any
obligation by any Borrower to pay any additional amounts pursuant
to this Section 4.05. Unless the Borrowers and the Administrative
Agent have received forms or other documents satisfactory to them
indicating that payments under the Loan Documents are not subject
to United States of America withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the
Borrowers or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a
jurisdiction outside the United States of America. Each Lender
represents and warrants that each such form supplied by it to the
Administrative Agent and the Borrowers pursuant to this
Section 4.05, and not superseded by another form supplied by it,
is or will be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant
to this Section 4.05 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate
or document requested by the Borrowers or to change the
jurisdiction of its Applicable Lending Office if the making of
such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue
and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness.
The obligations of the Lenders to make Advances hereunder
shall not become effective until the date (the "Closing Date") on
which each of the following conditions is satisfied:
(a) The Administrative Agent shall have received on or before
the Closing Date the following, each dated the Closing Date, in
form and substance satisfactory to the Administrative Agent and
in sufficient copies for each Lender:
(i) Counterparts of this Agreement, duly executed by each
Borrower.
(ii) A certificate of the Secretary or Assistant Secretary (or
analogous officer or representative) of each Borrower
certifying:
(A) the names and true signatures of the officers of
such Borrower authorized to sign the Loan Documents to be
executed and delivered by such Borrower;
(B) that attached thereto are true and correct copies
of: (1) the Articles of Incorporation and By-laws of such
Borrower, together with all amendments thereto, as in effect
on such date; (2) the resolutions of such Borrower's Board
of Directors approving the execution, delivery and performance
by such Borrower of the Loan Documents to be executed and
delivered by such Borrower; (3) all documents evidencing
other necessary corporate or other similar action, if any,
with respect to the execution, delivery and performance by
such Borrower of the Loan Documents to be executed and
delivered by such Borrower; and (4) true and correct copies
of all Governmental Approvals referred to in clause (i) of the
definition of "Governmental Approval" required to be obtained
by such Borrower in connection with the execution, delivery
and performance by such Borrower of the Loan Documents to be
executed and delivered by such Borrower (including the
required orders of the Securities and Exchange Commission);
and
(C) that the resolutions referred to in the foregoing
clause (B)(2) have not been modified, revoked or rescinded and
are in full force and effect on such date.
(iii) A certificate signed by the Treasurer or Assistant
Treasurer of each Borrower, certifying as to:
(A) the SEC Borrowing Limit of such Borrower as in
effect on the Closing Date;
(B) the delivery to each of the Lenders, prior to the
Closing Date, of true, correct and complete copies (other than
exhibits thereto) of all of the Disclosure Documents; and
(C) the absence of any material adverse change in the
business, condition (financial or otherwise), operations,
properties or prospects of such Borrower since June 30, 2003,
except as disclosed in the Disclosure Documents.
(iv) A certificate of a duly authorized officer of each
Borrower stating that (i) the representations and warranties of
such Borrower contained in Section 6.01 are correct, in all
material respects, on and as of the Closing Date before and after
giving effect to any Advances to be made on such date and the
application of the proceeds thereof, and (ii) no event has
occurred and is continuing with respect to such Borrower which
constitutes an Event of Default or Unmatured Default in respect
of such Borrower, or would result from such initial Advances or
the application of the proceeds thereof.
(v) Such financial, business and other information regarding
each Borrower and its Subsidiaries, as any Lender shall have
reasonably requested.
(vi) Favorable opinions of:
(A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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 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 any Lender may
reasonably request.
(b) The "Commitments" under the Existing Credit Facility shall
have been terminated or expired pursuant to the terms thereof and
all amounts outstanding thereunder shall have been (or will have
been, upon the first Advance and the application of the proceeds
thereof on the Closing Date) paid in full.
(c) All fees and other amounts payable pursuant to Section 2.02
hereof or pursuant to the Fee Letter shall have been paid (to the
extent then due and payable).
(d) The Administrative Agent shall have received such other
approvals, opinions and documents as the Majority Lenders,
through the Administrative Agent, shall have reasonably requested
as to the legality, validity, binding effect or enforceability of
this Agreement or the financial condition, operations, properties
or prospects of each Borrower.
SECTION 5.02. Conditions Precedent to All Contract Advances.
The obligation of any Lender to make any Contract Advance to
any Borrower, including the initial Contract Advance to such
Borrower, shall be subject to the conditions precedent that, on
the date of such Contract Advance and after giving effect
thereto:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Contract Borrowing with
respect to such Advance and the acceptance of the proceeds of
such Advance without prior correction by or on behalf of such
Borrower shall constitute a representation and warranty by such
Borrower that on the date of such Advance such statements are
true):
(i) the representations and warranties of such Borrower
contained in Section 6.01 of this Agreement are correct, in all
material respects, on and as of the date of such Advance, before
and after giving effect to such Advance and to the application of
the proceeds therefrom, as though made on and as of such date;
(ii) no Event of Default or Unmatured Default with respect to
such Borrower has occurred and is continuing on or as of the date
of such Advance or would result from such Advance or from the
application of the proceeds thereof;
(iii) the making of such Advance, when aggregated with all
other Advances outstanding to or requested by such Borrower would
not cause such Borrower's Borrower Sublimit to be exceeded; and
(iv) the making of such Advance, when aggregated with all
other Advances outstanding to or requested by such Borrower and all
other outstanding short-term debt of such Borrower would not
cause such Borrower's SEC Borrowing Limit then in effect to be
exceeded; and
(b) such Borrower shall have furnished to the Administrative
Agent such other approvals, opinions or documents as any Lender
may reasonably request through the Administrative Agent as to the
legality, validity, binding effect or enforceability of any Loan
Document.
SECTION 5.03. Reliance on Certificates.
The Lenders and the Administrative Agent shall be entitled
to rely conclusively upon the certificates delivered from time to
time by officers of each Borrower as to the names, incumbency,
authority and signatures of the respective persons named therein
until such time as the Administrative Agent may receive a
replacement certificate, in form acceptable to the Administrative
Agent, from an officer of such Borrower identified to the
Administrative Agent as having authority to deliver such
certificate, setting forth the names and true signatures of the
officers and other representatives of such Borrower thereafter
authorized to act on behalf of such Borrower and, in all cases,
the Lenders and the Administrative Agent may rely on the
information set forth in any such certificate.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants with respect to itself
as follows:
(a) Such Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its organization, has the requisite corporate power and
authority to own its property and assets and to carry on its
business as now conducted and is qualified to do business in
every jurisdiction where, because of the nature of its business
or property, such qualification is required, except where the
failure so to qualify would not have a material adverse effect on
the financial condition, properties, prospects or operations of
such Borrower. Such Borrower has the corporate power to execute,
deliver and perform its obligations under the Loan Documents and
to borrow hereunder.
(b) The execution, delivery and performance of the Loan
Documents by such Borrower are within such Borrower's corporate
powers, have been duly authorized by all necessary corporate or
other similar action, and do not and will not contravene (i) such
Borrower's charter or by-laws, as the case may be, or any law or
legal restriction or (ii) any contractual restriction binding on
or affecting such Borrower or its properties.
(c) Except as disclosed in such Borrower's Disclosure
Documents, such Borrower is not in violation of any law or in
default with respect to any judgment, writ, injunction, decree,
rule or regulation (including any of the foregoing relating to
environmental laws and regulations) of any court or governmental
agency or instrumentality where such violation or default would
reasonably be expected to have a material adverse effect on the
financial condition, properties, prospects or operations of such
Borrower.
(d) All Governmental Approvals referred to in clause (i) of
the definition of "Governmental Approval" have been duly obtained
or made and are in full force and effect, and all applicable
periods of time for review, rehearing or appeal with respect
thereto have expired. Such Borrower has obtained or made all
Governmental Approvals referred to in clause (ii) of the
definition of "Governmental Approvals", and such Governmental
Approvals are in full force and effect, except (A) those which
are not yet required but which are obtainable in the ordinary
course of business as and when required, (B) those the absence
of which would not materially adversely affect the financial
condition, properties, prospects or operations of such Borrower and
(C) those which such Borrower is diligently attempting in good
faith to obtain, renew or extend, or the requirement for which
such Borrower is contesting in good faith by appropriate
proceedings or by other appropriate means, in each case described
in the foregoing clause (C), except as is disclosed in such
Borrower's Disclosure Documents, such attempt or contest, and any
delay resulting therefrom, is not reasonably expected to have a
material adverse effect on the financial condition, properties,
prospects or operations of such Borrower or to magnify to any
significant degree any such material adverse effect that would
reasonably be expected to result from the absence of such
Governmental Approval.
(e) The Loan Documents to which such Borrower is a party are
legal, valid and binding obligations of such Borrower enforceable
against such Borrower in accordance with their respective terms;
subject to the qualification, however, that the enforcement of
the rights and remedies herein and therein is subject to
bankruptcy and other similar laws of general application
affecting rights and remedies of creditors and the application of
general principles of equity (regardless of whether considered in
a proceeding in equity or at law).
(f) The Financial Statements of such Borrower, copies of
which have been provided to the Administrative Agent and each of
the Lenders, fairly present in all material respects the financial
condition and results of operations of such Borrower (in the case
of CL&P and PSNH, on a consolidated basis) at and for the period
ended on the dates thereof, and have been prepared in accordance
with generally accepted accounting principles consistently
applied. Since June 30, 2003, there has been no material adverse
change in the consolidated (or in the case of WMECO and Yankee,
unconsolidated) financial condition, business, operations,
properties or prospects of such Borrower and its Subsidiaries, if
any, taken as a whole, except as disclosed in such Borrower's
Disclosure Documents.
(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 such
Borrower or its properties, before any court, governmental agency
or arbitrator (i) which affects or purports to affect the
legality, validity or enforceability of any Loan Document or
(ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would
materially adversely affect the financial condition, properties,
prospects or results of operations of such Borrower, except, for
purposes of this clause (ii) only, such as is described in such
Borrower's Disclosure Documents.
(h) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan which
would materially adversely affect the financial condition,
properties, prospects or operations of such Borrower taken as a
whole, except as disclosed to the Lenders and consented to by the
Majority Lenders in writing. Since the date of the most recent
Schedule B (Actuarial Information) to the annual report of each
such ERISA Plan (Form 5500 Series), there has been no material
adverse change in the funding status of the ERISA Plans referred
to therein, and no "prohibited transaction" (as defined in
Section 4975 of the Internal Revenue Code of 1986, as amended,
and in ERISA) has occurred with respect thereto that, singly or
in the aggregate with all other "prohibited transactions" and
after giving effect to all likely consequences thereof, would be
reasonably expected to have a material adverse effect on the
financial condition, properties, prospects or operations of such
Borrower. Neither such Borrower nor any of its ERISA Affiliates
has incurred nor reasonably expects to incur any material
withdrawal liability under ERISA to any ERISA Multiemployer Plan,
except as disclosed to and consented by the Majority Lenders in
writing.
(i) Such Borrower has good and marketable title (or, in
the case of personal property, valid title) or valid leasehold
interests in its assets, except for (i) minor defects in title
that do not materially interfere with the ability of such Borrower
to conduct its business as now conducted and (ii) other defects
that, either individually or in the aggregate, do not materially
adversely affect the financial condition, properties, prospects or
operations of such Borrower. All such assets and properties are
free and clear of any Lien, other than Liens permitted under
Section 7.02(a) hereof.
(j) All outstanding shares of capital stock having ordinary
voting power for the election of directors of such Borrower have
been validly issued, are fully paid and nonassessable and are
owned beneficially by NU, free and clear of any Lien. NU is a
"holding company" (as defined in the Public Utility Holding
Company Act of 1935, as amended).
(k) Such Borrower has filed all tax returns (Federal, state
and local) required to be filed and paid taxes shown thereon to be
due, including interest and penalties, or, to the extent such
Borrower is contesting in good faith an assertion of liability
based on such returns, has provided adequate reserves in
accordance with generally accepted accounting principles for
payment thereof.
(l) No exhibit, schedule, report or other written information
provided by or on behalf of such Borrower or its agents to the
Administrative Agent or the Lenders in connection with the
negotiation, execution and closing of the Loan Documents
including, without limitation, the Financial Statements and the
Information Memorandum (but excluding the projections contained
in the Information Memorandum)) knowingly contained when made any
material misstatement of fact or knowingly omitted to state any
material fact necessary to make the statements contained therein
not misleading in light of the circumstances under which they
were made. Except as has been disclosed to the Administrative
Agent and each Lender, the projections delivered concurrently
with the Information Memorandum were prepared in good faith on
the basis of assumptions reasonable as of the date of the
Information Memorandum, it being understood that such projections
do not constitute a warranty or binding assurance of future
performance. Except as has been disclosed to the Administrative
Agent and each Lender, nothing has come to the attention of the
responsible officers of such Borrower that would indicate that
any of such assumptions, to the extent material to such
projections, has ceased to be reasonable in light of subsequent
developments or events.
(m) All proceeds of the Advances shall be used (i) for the
general corporate purposes of such Borrower, including to provide
liquidity support for such Borrower's commercial paper, and (ii)
to provide liquidity to the NU System Money Pool. No proceeds
of any Advance will be used in violation of, or in any manner
that would result in a violation by any party hereto of,
Regulation T, U or X promulgated by the Board of Governors of the
Federal Reserve System or any successor regulations. Such
Borrower (A) is not an "investment company" within the meaning
ascribed to that term in the Investment Company Act of 1940 and
(B) is not engaged in the business of extending credit for the
purpose of buying or carrying margin stock.
(n) Such Borrower has no Subsidiaries, other than those
listed on Schedule II hereto, each of which is either inactive
or a special purpose entity used solely in connection with the
financing activities of such Borrower, and none of which, either
individually or collectively with all other Subsidiaries of such
Borrower, represents 10% or more of such Borrower's consolidated
assets or 10% or more of such Borrower's consolidated net income
(or loss) on any date or for any relevant period of
determination.
(o) Such Borrower has obtained the insurance specified in
Section 7.01(c) hereof and the same is in full force and effect.
(p) (i) The assets, at a fair valuation, of such Borrower
exceed its debts; (ii) such 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) such 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.
(q) Such Borrower does not intend to treat the Advances and
related transactions as being a "reportable transaction" (within
the meaning of Treasury Regulation section 1.6011-4). In the
event that such 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 of the Borrowers.
On and after the Closing Date, so long as any obligation
hereunder shall remain unpaid or any Lender shall have any
Commitment adequatehereunder, each Borrower shall, unless the Majority
Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply the proceeds of each Advance
solely as specified in Section 6.01(m) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the
same shall become delinquent, all taxes, assessments and
governmental charges, royalties or levies imposed upon it or
upon its property except to the extent such Borrower is contesting
the same in good faith by appropriate proceedings and has set aside
adequate reserves in accordance with generally accepted accounting
principles for the payment thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-
insurance) covering such Borrower and its properties, in effect
at all times in such amounts and covering such risks as may be
required by law and, in addition, as is usually carried by
companies engaged in similar businesses and owning similar
properties.
(d) Preservation of Existence, Etc.; Disaggregation.
(i) Except as permitted by Section 7.02(b) hereof,
preserve and maintain its existence, corporate or otherwise,
material rights (statutory and otherwise) and franchises
except where the failure to maintain and preserve such rights
and franchises would not materially adversely affect the
financial condition, properties, prospects or operations
of such Borrower.
(ii) In furtherance of the foregoing, and notwithstanding
Section 7.02(b), each Borrower agrees that it will not, except
in accordance with one or more restructuring plans approved
by the appropriate regulatory authorities, sell, transfer
or otherwise dispose of (by lease or otherwise, and whether
in one or a series of related transactions) any portion of
its generation, transmission or distribution assets in excess
of 10% of the net utility plant assets of such Borrower,
in each case as determined on a cumulative basis from the date
of this Agreement through the Termination Date by reference
to such entity's published balance sheets.
(e) Compliance with Laws, Etc. Comply in all material
respects with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, including,
without limitation, any such laws, rules, regulations and orders
issued by the Securities and Exchange Commission or relating to
zoning, environmental protection, use and disposal of Hazardous
Substances, land use, construction and building restrictions,
ERISA and employee safety and health matters relating to business
operations, except to the extent (i) that such Borrower is
contesting the same in good faith by appropriate proceedings or
(ii) that any such non-compliance, and the enforcement or
correction thereof, would not materially adversely affect the
financial condition, properties, prospects or operations of such
Borrower.
(f) Inspection Rights. At any time and from time to time upon
reasonable notice, permit the Administrative Agent and its agents
and representatives to examine and make copies of and abstracts
from the records and books of account of, and the properties of,
such Borrower and to discuss the affairs, finances and accounts
of such Borrower (i) with such Borrower and its officers and
directors and (ii) with the consent of such Borrower (which
consent shall not be unreasonably withheld or delayed), with the
accountants of such Borrower.
(g) Keeping of Books. Keep proper records and books of
account, in which full and correct entries shall be made of all
financial transactions of such Borrower and the assets and business
of such Borrower, in accordance with generally accepted accounting
practices consistently applied.
(h) Conduct of Business. Except as permitted by Section
7.02(b) but subject in all respects to Section 7.01(d)(ii), conduct
its primary business in substantially the same manner and in
substantially the same fields as such business is conducted on
the Closing Date. (i) Maintenance of Properties, Etc.
(i) As to properties of the type described in Section 6.01(i)
hereof, maintain title of the quality described therein and
maintain, develop, and operate, in substantial conformity with all
preserve, laws, material contractual obligations and prudent
practices prevailing in the industry, all of its properties which
are used or useful in the conduct of its businesses in good working
order and condition, ordinary wear and tear excepted, except (A) as
permitted by Section 7.02(b), but subject nevertheless to Section
7.01(d)(ii), (B) as disclosed in the Disclosure Documents or
otherwise in writing to the Administrative Agent and the Lenders
on or prior to the date hereof, and (C) to the extent such
non-conformity would not materially adversely affect the financial
condition, properties, prospects or operations of such Borrower;
provided, however, that such Borrower will not be prevented from
discontinuing the operation and maintenance of any such
properties if such discontinuance is, in the judgment of such
Borrower, desirable in the operation or maintenance of its
business and would not materially adversely affect the financial
condition, properties, prospects or operations of such Borrower.
(j) Governmental Approvals. Duly obtain, on or prior to such
date as the same may become legally required, and thereafter
maintain in effect at all times, all Governmental Approvals on
its part to be obtained, except in the case of those Governmental
Approvals referred to in clause (ii) of the definition of
"Governmental Approvals", (i) those the absence of which would
not materially adversely affect the financial condition,
properties, prospects or operations of such Borrower and
(ii) those which such Borrower is diligently attempting in good
faith to obtain, renew or extend, or the requirement for which
such Borrower is contesting in good faith by appropriate
proceedings or by other appropriate means; provided, however,
that the exception afforded by clause (ii), above, shall be
available only if and for so long as such attempt or contest, and
any delay resulting therefrom, does not have a material adverse
effect on the financial condition, properties, prospects or
operations of such Borrower and does not magnify to any
significant degree any such material adverse effect that would
reasonably be expected to result from the absence of such
Governmental Approval.
(k) Further Assurances. Promptly execute and deliver all
further instruments and documents, and take all further action,
that may be necessary or that any Lender through the
Administrative Agent may reasonably request in order to fully
give effect to the interests and properties purported to be
covered by the Loan Documents.
SECTION 7.02. Negative Covenants of the Borrowers.
On and after the Closing Date, and so long as any obligation
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower shall not, without the
written consent of the Majority Lenders:
(a) Liens, Etc. Create incur, assume or suffer to exist any
Lien upon any of its properties or assets, whether now owned or
hereafter acquired, except:
(i) any Liens existing on the Closing Date;
(ii) Liens created by the First Mortgage Indentures, so long
as by the terms thereof no "event of default" (howsoever
designated) in respect of any bonds issued thereunder will arise
upon the occurrence of an Unmatured Default or Event of Default
hereunder;
(iii) "Permitted Liens" or "Permitted Encumbrances" under the
First Mortgage Indenture to which such Borrower is a party, in
each case, to the extent such Liens do not secure Debt of such
Borrower;
(iv) any purchase money Lien or construction mortgage on
assets hereafter acquired or constructed by such Borrower and
any Lien on any assets existing at the time of acquisition
thereof by such Borrower or created within 180 days from the
date of completion of such acquisition or construction; provided
that such Lien shall at all times be confined solely to the
assets so acquired or constructed and any additions thereto;
(v) any existing Liens on assets now owned by such Borrower
and Liens existing on assets of a corporation or other going
concern when it is merged into or with such Borrower or when
substantially all of its assets are acquired by such Borrower;
provided that such Liens shall at all times be confined solely to
such assets, or if such assets constitute a utility system,
additions to or substitutions for such assets;
(vi) Liens resulting from legal proceedings being contested
in good faith by appropriate legal or administrative proceedings
by such Borrower, and as to which such Borrower, to the extent
required by generally accepted accounting principles applied on a
consistent basis, shall have set aside on its books adequate
reserves;
(vii) Liens created in favor of the other contracting party
in connection with advance or progress payments;
(viii) any Liens in favor of any state of the United States
or any political subdivision of any such state, or any agency of
any such state or political subdivisions, or trustee acting on
behalf of holders of obligations issued by any of the foregoing
or any financial institutions lending to or purchasing obligations
of any of the foregoing, which Lien is created or assumed for the
purpose of financing all or part of the cost of acquiring or
constructing the property subject thereto;
(ix) Liens resulting from conditional sale agreements, capital
leases or other title retention agreements;
(x) with respect to pollution control bond financings, Liens
on funds, accounts and other similar intangibles of such Borrower
created or arising under the relevant indenture, pledges of the
related loan agreement with the relevant issuing authority and
pledges of such Borrower's interest, if any, in any bonds issued
pursuant to such financings to a letter of credit bank or bond
issuer or similar credit enhancer;
(xi) Liens granted on accounts receivable and Regulatory
Assets in connection with financing transactions, whether
denominated as sales or borrowings;
(xii) any other Liens incurred in the ordinary course of
business otherwise than to secure Debt; and
(xiii) any extension, renewal or replacement of Liens
permitted by clauses (i), (iii) through (v) and (vii) through
(xi); provided, however, that the principal amount of Debt
secured thereby shall not, at the time of such extension, renewal
or replacement, exceed the principal amount of Debt so secured
and that such extension, renewal or replacement shall be limited
to all or a part of the property which secured the Lien so
extended, renewed or replaced or to other property of no greater
value than the property which secured the Lien so extended,
renewed or replaced.
(b) Mergers, Acquisitions, Sales of Assets, Etc. (i) 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
(ii) sell, transfer, convey, lease or otherwise dispose of all or
any substantial part of its assets, or permit its Subsidiaries to
do so; except for the following, and then only after receipt of
all necessary corporate and governmental or regulatory approvals
and provided that, before and after giving effect to any such
merger, consolidation, purchase, acquisition, sale, transfer,
conveyance, lease or other disposition, no Event of Default or
Unmatured Default shall have occurred and be continuing:
(A) with respect to CL&P, WMECO and PSNH, any sale,
lease, transfer, conveyance or other disposition of
transmission assets (1) to another Subsidiary of NU on such
basis as permitted by the appropriate regulatory authorities
or (2) to any Person on such basis as required by the
appropriate regulatory authorities;
(B) the sale of such Borrower's assets in the ordinary
course of business on customary terms and conditions,
including any sale of accounts receivable on reasonable
commercial terms (including a commercially reasonably
discount) to obtain funding for CL&P; and
(C) PSNH shall be entitled to consummate its proposed
transaction concerning the assets and franchise of Connecticut
Valley Electric Company.
For purposes of this subsection (b), any sale of assets by such
Person (in one or a series of transactions) will be deemed to be
a "substantial part" of its assets if (i) the book value of such
assets exceeds 7.5% of the total book value of the assets (net of
Regulatory Assets) of such Person, as reflected in the most
recent financial statements of such Person 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 7.5%
of the total gross revenue of such Person for the four proceeding
fiscal quarters, as reflected in the most recent financial
statements of such Person 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 ERISA
Affiliate thereof to terminate, any ERISA Plan so as to result in
any liability of such Borrower to the PBGC in an amount greater
than $1,000,000, or (ii) permit to exist any occurrence of any
Reportable Event (as defined in Title IV of ERISA) which, alone
or together with any other Reportable Event with respect to the
same or another ERISA Plan, has a reasonable possibility of
resulting in liability of such Borrower to the PBGC in an
aggregate amount exceeding $1,000,000, or any other event or
condition which presents a material risk of such a termination by
the PBGC of any ERISA Plan or has a reasonable possibility of
resulting in a liability of such Borrower to the PBGC in an
aggregate amount exceeding $1,000,000.
(d) Accounting Changes. Make any change in its accounting
policies or reporting practices except as required or permitted
by the Securities and Exchange Commission, the Financial
Accounting Standards Board or any other generally recognized
accounting authority.
(e) Transactions with Affiliates. Engage in any transaction
with any Affiliate except (i) in accordance with the Public
Utility Holding Company Act of 1935, as amended, to the extent
applicable thereto or (ii) on terms no less favorable to such
Borrower than if the transaction had been negotiated in good
faith on an arms-length basis with a non-Affiliate and on
commercially reasonable terms or pursuant to a binding agreement
in effect on the Closing Date.
(f) Interests in Nuclear Plants. Acquire any nuclear plant or
any interest therein not held on the Closing Date, other than so-
called "power entitlements" acquired for use in the ordinary
course of business.
(g) Subsidiaries. Create, acquire or permit to exist, any
Subsidiary, other than (i) Subsidiaries in existence on the
Closing Date and listed on Schedule II hereto and (ii)
Subsidiaries that are either inactive or special purpose entities
used solely in connection with the financing activities of such
Borrower; provided, that none of the Subsidiaries described in
clauses (i) and (ii) above, either individually or collectively
with all other such Subsidiaries, shall represent 10% or more of
such Borrower's consolidated assets or 10% or more of such
Borrower's consolidated net income (or loss) on any date or for
any relevant period of determination.
SECTION 7.03. Financial Covenants of the Borrowers.
On and after the Closing Date, so long as any obligation
hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, each Borrower shall, unless the Majority
Lenders shall otherwise consent in writing:
(a) Consolidated Debt Ratio. Maintain at all times a ratio
of Consolidated Debt to Total Capitalization of no more than
0.65:1.00.
(b) Interest Coverage Ratio. Maintain, as of the end of
each Fiscal Quarter, with respect to the four Fiscal Quarters then
ended, a ratio of Consolidated EBIT to Consolidated Interest
Expense of at least 2.25:1.00.
SECTION 7.04. Reporting Obligations of the Borrowers.
So long as any obligation hereunder shall remain unpaid or
any Lender shall have any Commitment hereunder, each Borrower
shall, unless the Majority Lenders shall otherwise consent in
writing, furnish or cause to be furnished to the Administrative
Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within ten days
after the occurrence of each Event of Default or Unmatured
Default with respect to such Borrower continuing on the date of
such statement, a statement of the Chief Financial Officer,
Treasurer or Assistant Treasurer of such Borrower setting forth
details of such Event of Default or Unmatured Default and the
action which such Borrower proposes to take with respect thereto;
(ii) (A) as soon as available, and in any event within
fifty (50) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of such Borrower, a copy of such
Borrower's Quarterly Report on Form 10-Q (if such Borrower is
required to file such report with the U.S. Securities and Exchange
Commission pursuant to Section 13 or 15 of the U.S. Securities
Exchange Act of 1934, as amended) submitted to the Securities
and Exchange Commission with respect to such quarter, and, with
respect to Yankee, and any other Borrower that ceases to be
required to submit such report, consolidated balance sheets
of Yankee and such Borrower as of the end of such Fiscal
Quarter and consolidated statements of income and retained
earnings and of cash flows of Yankee and such Borrower for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter, all in reasonable detail
and duly certified (subject to year-end audit adjustments) by the
Chief Financial Officer, Treasurer, Assistant Treasurer or
Comptroller of Yankee and such Borrower as having been prepared
in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the Financial
Statements; and
(B) concurrently with the delivery of the
financial statements described in the foregoing clause
(a), a certificate of the Chief Financial Officer,
Treasurer, Assistant Treasurer or Comptroller of such
Borrower:
(1) to the effect that such financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied in
the preparation of the Financial Statements,
(2) stating that no Event of Default or Unmatured
Default with respect to such Borrower has occurred and
is continuing or, if an Event of Default or Unmatured
Default with respect to such Borrower has occurred and
is continuing, describing the nature thereof and the
action which such Borrower proposes to take with
respect thereto, and
(3) demonstrating such Borrower's compliance with
the covenants set forth in Section 7.03 hereof, for and
as of the end of such Fiscal Quarter, in each case such
demonstrations to be in form satisfactory to the
Administrative Agent and to set forth in reasonable
detail the computations used in determining such
compliance;
(iii) (A) as soon as available, and in any event within
105 days after the end of each Fiscal Year of such Borrower, a
copy of such Borrower's report on Form 10-K (if such Borrower is
required to file such report with the U.S. Securities and
Exchange Commission pursuant to Sections 13 or 15 of the U.S.
Securities Exchange Act of 1934, as amended) submitted to the
Securities and Exchange Commission with respect to such Fiscal
Year, and, with respect to Yankee, and any other Borrower that
ceases to be required to submit such report, a copy of the annual
audit reports for such year for Yankee and such Borrower,
including therein consolidated balance sheets of Yankee and such
Borrower as of the end of such Fiscal Year and consolidated
statements of income and retained earnings and of cash flows of
Yankee and such Borrower for such Fiscal Year, all in reasonable
detail and certified by a nationally-recognized independent
public accountant; and
(B) concurrently with the delivery of the
financial statements described in the foregoing clause
(A), a certificate of the Chief Financial Officer,
Treasurer, Assistant Treasurer or Comptroller of such
Borrower:
(1) to the effect that such financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied
in the preparation of the Financial Statements, and
(2) stating that no Event of Default or Unmatured
Default with respect to such Borrower has occurred and
is continuing, or if an Event of Default or Unmatured
Default with respect to such Borrower has occurred and is
continuing, describing the nature thereof and the action
which such Borrower proposes to take with respect
thereto, and
(3) demonstrating such Borrower's compliance with
the covenants set forth in Section 7.03 hereof, for and
as of the end of such Fiscal Year, in each case such
demonstrations to be in form satisfactory to the
Administrative Agent and to set forth in reasonable
detail the computations used in determining such
compliance;
(iv) upon the reasonable request of the Administrative Agent,
but not more than once per Fiscal Quarter, copies of any or all
filings or registrations with, or notices or reports to, any
regulatory authority;
(v) as soon as possible and in any event (A) within 30 days
after the Chief Financial Officer, Treasurer or any Assistant
Treasurer of such Borrower knows or has reason to know that any
ERISA Plan Termination Event described in clause (i) of the
definition of ERISA Plan Termination Event with respect to any
ERISA Plan or ERISA Multiemployer Plan has occurred and
(B) within 10 days after such Borrower knows or has reason to
know that any other ERISA Plan Termination Event with respect to
any ERISA Plan or ERISA Multiemployer Plan has occurred, a
statement of the Chief Financial Officer, Treasurer or Assistant
Treasurer of such Borrower describing such ERISA Plan Termination
Event and the action, if any, which such Borrower proposes to
take with respect thereto;
(vi) promptly after receipt thereof by such Borrower or
any of its ERISA Affiliates from the PBGC, copies of each notice
received by such Borrower or any such ERISA Affiliate of the
PBGC's intention to terminate any ERISA Plan or ERISA
Multiemployer Plan or to have a trustee appointed to administer
any ERISA Plan or ERISA Multiemployer Plan;
(vii) promptly after receipt thereof by such Borrower or any
of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor,
a copy of each notice received by such Borrower or any of its
ERISA Affiliates concerning the imposition or amount of
withdrawal liability in an aggregate principal amount of at least
$10,000,000 pursuant to Section 4202 of ERISA in respect of which
such Borrower may be liable;
(viii) promptly after such Borrower becomes aware of the
commencement thereof, notice of all actions, suits, proceedings
or other events of the type described in Section 6.01(g) hereof
(including, without limitation, any action or proceeding relating
to any environmental protection laws or regulations);
(ix) promptly after the filing thereof, copies of each
prospectus (excluding any prospectus contained in any Form S-8)
and Current Report on Form 8-K, if any, which such Borrower files
with the Securities and Exchange Commission or any successor
governmental authority;
(x) promptly after any change in the SEC Borrowing Limit
of such Borrower, notice of the new SEC Borrowing Limit applicable
to such Borrower; and
(xi) promptly after requested, such other information
respecting the financial condition, operations, properties
or prospects of such Borrower or its Subsidiaries as the
Administrative Agent, or the Majority Lenders through the
Administrative Agent, may from time to time reasonably request
in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default.
The following events shall each constitute an "Event of Default"
with respect to a Borrower:
(a) Such Borrower shall fail to pay any principal of any
Advance when due or shall fail to pay any interest thereon or
fees or other amounts payable under the Loan Documents within
two days after the same becomes due; or
(b) Any representation or warranty made by such Borrower
(or any of its officers or agents) in any Loan Document, any
certificate or other writing delivered pursuant hereto or
thereto shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) Such Borrower shall fail to perform or observe any
term or covenant on its part to be performed or observed
contained in Section 7.01(d), Section 7.02, Section 7.03 or
Section 7.04(i) hereof; or
(d) Such Borrower shall fail to perform or observe any other
term or covenant on its part to be performed or observed
contained in any Loan Document and any such failure shall remain
unremedied for a period of 30 days after the earlier of
(i) written notice of such failure having been given to such
Borrower by the Administrative Agent or (ii) such Borrower having
obtained actual knowledge of such failure; or
(e) Such Borrower shall fail to pay any of its Debt when due
(including any interest or premium thereon but excluding Debt
outstanding hereunder and excluding other Debt aggregating in no
event more than $10,000,000 in principal amount at any one time)
whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise, and such failure shall continue after the
applicable grace period, if any, specified in any agreement or
instrument relating to such Debt; or any other default under any
agreement or instrument relating to any such Debt, or any other
event, shall occur and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such default or event is to accelerate, or to permit
the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment
or as a result of such Borrower's exercise of a prepayment
option) prior to the stated maturity thereof; or
(f) Such Borrower shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make an assignment for the benefit
of creditors; or any proceeding shall be instituted by or against
such Borrower seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of its debts under
any law relating to bankruptcy, insolvency, or reorganization or
relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the
case of a proceeding instituted against such Borrower such
Borrower shall consent thereto or such proceeding shall remain
undismissed or unstayed for a period of 90 days or any of the
actions sought in such proceeding (including without limitation
the entry of an order for relief against such Borrower or the
appointment of a receiver, trustee, custodian or other similar
official for such Borrower or any of its property) shall occur;
or such Borrower shall take any corporate or other action to
authorize any of the actions set forth above in this
subsection (f); or
(g) Any judgments or orders for the payment of money in
excess of $10,000,000 (or aggregating more than $10,000,000 at
any one time) shall be rendered against such Borrower or its
properties, and either (A) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order and
shall not have been stayed or (B) there shall be any period of
15 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) Any material provision of any Loan Document to which such
Borrower is a party shall at any time for any reason cease to be
valid and binding on such Borrower, or shall be determined to be
invalid or unenforceable by any court, governmental agency or
authority having jurisdiction over such Borrower, or such
Borrower shall deny that it has any further liability or
obligation under any Loan Document; or
(i) NU shall cease to beneficially own, free and clear of any
Liens, at least 85% of all outstanding shares of capital stock
having ordinary voting power for the election of directors of
such Borrower; or
(j) A Change of Control shall have occurred.
SECTION 8.02. Remedies Upon Events of Default.
Upon the occurrence and during the continuance of any Event
of Default with respect to a Borrower, the Administrative Agent
shall at the request, or may with the consent, of the Lenders
entitled to make such request, upon notice to such Borrower
(i) declare the obligation of each Lender to make Advances to
such Borrower to be terminated, whereupon such obligation of each
Lender shall forthwith terminate, provided, that any such request
or consent pursuant to this clause (i) shall be made solely by
Lenders having Percentages in the aggregate of not less 66-2/3%;
and (ii) declare the Advances made to such Borrower, all interest
thereon and all other amounts payable by such Borrower under this
Agreement and the other Loan Documents to be forthwith due and
payable, whereupon such Advances, all such interest and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by each Borrower, provided,
that any such request or consent pursuant to this clause (ii)
shall be made solely by the Lenders holding at least 66-2/3% of
the then aggregate unpaid principal amount of the Advances owing
by such Borrower, provided, that if such Event of Default is an
Event of Default pursuant to subsection (f) of Section 8.01, then
(A) the obligation of each Lender to make Advances to such
Borrower shall automatically be terminated and (B) the Advances
made to such Borrower, all such interest and all such amounts
shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Borrower.
ARTICLE IX
THE AGENT
SECTION 9.01. Authorization and Action.
Each Lender hereby appoints and authorizes the
Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection
thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall
be binding upon all Lenders; provided, however, that the
Administrative Agent shall not be required to take any action
which exposes the Administrative Agent to personal liability or
which is contrary to the Loan Documents or applicable law. The
Administrative Agent agrees to deliver promptly to each Lender
notice of each notice given to it by a Borrower pursuant to the
terms of this Agreement.
SECTION 9.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors,
officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection
with any Loan Document, except for its or their own gross
negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may
treat each Lender party hereto as a "Lender" hereunder and for
all purposes hereof until the Administrative Agent receives and
accepts a Lender Assignment entered into by such Lender, as
assignor, and an assignee, as provided in Section 10.07; (ii) may
consult with legal counsel (including counsel for the
Borrower(s)), independent public accountants and other experts
selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no
warranty or representation to any Lender and shall not be
responsible to any Lender for the Information Memorandum or any
other statements, warranties or representations made in or in
connection with any Loan Document; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on
the part of any Borrower to be performed or observed, or to
inspect any property (including the books and records) of any
Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument
or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of any Loan Document by acting upon
any notice, consent, certificate or other instrument or writing
(which may be by facsimile) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 9.03. Citibank and Affiliates.
With respect to its Commitment and the Advances made by it,
Citibank shall have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though
it were not the Administrative Agent and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates
may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with,
any Borrower, any of their respective Subsidiaries and any Person
who may do business with or own securities of any Borrower or any
such Subsidiary, all as if Citibank were not the Administrative
Agent and without any duty to account therefor to the Lenders.
SECTION 9.04. Lender Credit Decision.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other
Lender and based on the Information Memorandum and the Financial
Statements and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement.
SECTION 9.05. Indemnification.
The Lenders agree to indemnify the Administrative Agent (to
the extent not reimbursed by the Borrowers), ratably according to
their respective Commitments (or, if the Commitments have been
terminated, ratably according to the respective principal amounts
of the Advances then held by each of them (provided, that if any
Commitments or Advances are held by any Borrower or Affiliates
thereof, any ratable apportionment hereunder shall exclude their
respective Commitments hereunder or the principal amount of the
Advances held by such Borrower(s) or Affiliates)), from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative
Agent in its capacity as such in any way relating to or arising
out of any Loan Document or any action taken or omitted by the
Administrative Agent in its capacity as such under any Loan
Document, provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon
demand for such Lender's ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, the
Loan Documents to the extent that the Administrative Agent is
entitled to reimbursement for such expenses pursuant to Section
10.04 but is not reimbursed for such expenses by the Borrowers.
SECTION 9.06. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers, with any
such resignation to become effective only upon the appointment of
a successor Administrative Agent pursuant to this Section 9.06.
Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor Administrative Agent, which shall be
a Lender or another commercial bank or trust company reasonably
acceptable to the Borrowers organized or licensed under the laws
of the United States, or of any State thereof. If no successor
Administrative Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent,
which shall be Lender or shall be another commercial bank or
trust company organized or licensed under the laws of the United
States or of any State thereof reasonably acceptable to the
Borrowers. In addition to the foregoing right of the
Administrative Agent to resign, the Majority Lenders may remove
the Administrative Agent at any time, with or without cause,
concurrently with the appointment by the Majority Lenders of a
successor Administrative Agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder
as Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under the Loan
Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc.
No amendment or waiver of any provision of any Loan
Document, nor consent to any departure by any Borrower therefrom,
shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver
or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that
no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive,
modify or eliminate any of the conditions specified in Article V,
(b) increase the Commitment of any Lender hereunder or increase
the Commitments of the Lenders that may be maintained hereunder
or increase any Borrower Sublimit or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest
on, the Advances, any Applicable Margin or any fees or other
amounts payable hereunder (other than fees payable to the
Administrative Agent pursuant to Section 2.02(b) hereof),
(d) postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable
under the Loan Documents (other than fees payable to the
Administrative Agent pursuant to Section 2.02(b) hereof),
(e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders
which shall be required for the Lenders or any of them to take
any action under the Loan Documents, (f) amend any Loan Document
in a manner intended to prefer one or more Lenders over any other
Lenders, or (g) amend this Section 10.01; and provided, further,
that no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent, in addition to the Lenders
required above to take such action, affect the rights or duties
of the Administrative Agent under any Loan Document.
SECTION 10.02. Notices, Etc.
Except as otherwise expressly provided herein, all notices
and other communications provided for under the Loan Documents
shall be in writing (including facsimile communication) and
mailed, sent by facsimile or hand delivered:
(i) if to any Borrower, to it in care of NUSCO at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
Treasurer, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm
number: (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto;
(iii) if to any Lender other than a Bank, at its Domestic
Lending Office specified in the Lender Assignment
pursuant to which it became a Lender; and
(iv) if to the Administrative Agent, at its address at ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Bank Loan Services, facsimile number: (302)
894-6120, with a copy to Citibank, N.A., Global Power
Group, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Managing
Director, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm
number: (▇▇▇) ▇▇▇-▇▇▇▇;
or, as to each party, at such other address as shall be
designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed,
sent by facsimile or hand delivered, be effective five days after
when deposited in the mails, or when sent by facsimile, or when
delivered, respectively, except that notices and communications
to the Administrative Agent pursuant to Article II, III, IV or IX
shall not be effective until received by the Administrative
Agent. With respect to any telephone notice given or received by
the Administrative Agent pursuant to Section 3.03 hereof, the
records of the Administrative Agent shall be conclusive for all
purposes.
SECTION 10.03. No Waiver of Remedies.
No failure on the part of the Administrative Agent or any
Lender to exercise, and no delay in exercising, any right under
any Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification.
(a) The Borrowers agree to pay when due, in accordance with the
terms hereof: (i) all costs and expenses of the Administrative
Agent in connection with the preparation, negotiation, execution
and delivery of the Loan Documents, the administration of the
Loan Documents, and any proposed modification, amendment, or
consent relating thereto (including, in each case, the reasonable
fees and expenses of counsel to the Administrative Agent) and
(ii) all costs and expenses of the Administrative Agent and each
Lender (including all fees and expenses of counsel) in connection
with the enforcement, whether through negotiations, legal
proceedings or otherwise, of the Loan Documents.
(b) The Borrowers hereby agree to indemnify and hold each Joint
Lead Arranger, each Co-Syndication Agent, the Documentation
Agent, the Administrative Agent and each Lender, and its
officers, directors, employees, professional advisors and
affiliates (each, an "Indemnified Person") harmless from and
against any and all claims, damages, losses, liabilities, costs
or expenses (including 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) which any of them may incur or
which may be claimed against any of them by any person or entity
(except to the extent such claims, damages, losses, liabilities,
costs or expenses arise from the gross negligence or willful
misconduct of the Indemnified Person):
(i) by reason of or in connection with the execution,
delivery or performance of the Loan Documents or any
transaction contemplated thereby, or the use by any Borrower
of the proceeds of any Advance;
(ii) in connection with or resulting from the utilization,
storage, disposal, treatment, generation, transportation, release
or ownership of any Hazardous Substance (A) at, upon or under any
property of any of the Borrowers or any of their respective
Affiliates or (B) by or on behalf of any of the Borrowers or any
of their respective Affiliates at any time and in any place; or
(iii) in connection with any documentary taxes, assessments
or charges made by any governmental authority by reason of the
execution and delivery of the Loan Documents.
(c) The Borrowers' obligations under this Section 10.04 shall
survive the assignment by any Lender pursuant to Section 10.07
hereof and shall survive as well the repayment of all amounts
owing to the Lenders under the Loan Documents and the termination
of the Commitments. If and to the extent that the obligations of
the Borrowers under this Section 10.04 are unenforceable for any
reason, the Borrowers agree to make the maximum contribution to
the payment and satisfaction thereof which is permissible under
applicable law.
(d) The Borrowers' obligations under this Section 10.04 are in
addition to and shall not be deemed to supersede their
indemnification and similar obligations set forth in that certain
Commitment Letter dated as of October 6, 2003 among the
Borrowers, Citibank, Citigroup Global Markets Inc. and Banc One
Capital Markets, Inc.
(e) Each Borrower shall be liable for its pro rata share of any
payment to be made by the Borrowers under this Section 10.04,
such pro rata share to be determined on the basis of such
Borrower's Fraction; provided, however, that if and to the extent
that any such liabilities are reasonably determined by the
Borrowers (subject to the approval of the Administrative Agent
which approval shall not be unreasonably withheld) to be directly
attributable to a specific Borrower, only such Borrower shall be
liable for such payments.
SECTION 10.05. Right of Set-off.
(a) Upon (i) the occurrence and during the continuance of any
Event of Default with respect to any Borrower, and (ii) the
making of the request or the granting of the consent specified by
Section 8.02 to authorize the Administrative Agent to declare the
Advances due and payable pursuant to the provisions of Section
8.02, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account
of such Borrower against any and all of the obligations of such
Borrower now or hereafter existing under the Loan Documents held
by such Lender, irrespective of whether or not such Lender shall
have made any demand under the Loan Documents and although such
obligations may be unmatured. Each Lender agrees promptly to
notify such Borrower after any such set-off and application made
by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other
rights of set-off) which such Lender may have.
(b) Each Borrower agrees that it shall have no right of off-set,
deduction or counterclaim in respect of its obligations under the
Loan Documents, and that the obligations of the Lenders hereunder
are several and not joint. Nothing contained herein shall
constitute a relinquishment or waiver of such Borrower's rights
to any independent claim that such Borrower may have against the
Administrative Agent or any Lender, but no Lender shall be liable
for the conduct of the Administrative Agent or any other Lender,
and the Administrative Agent shall not be liable for the conduct
of any Lender.
SECTION 10.06. Effectiveness.
This Agreement shall become effective when it shall have
been executed by each Borrower and the Administrative Agent 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 no Borrower
may 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
this Agreement (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 Borrowers 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 Advance 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
Borrowers otherwise consent (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 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 an 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 Borrowers, 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 Borrowers,
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 Borrowers 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
Borrowers or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrowers or any of
the Borrowers' 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 Borrowers, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under 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 Borrowers agree
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 Borrowers are notified of the participation sold to
such Participant and such Participant agrees, for the benefit of
the Borrowers, 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 Borrowers may demand that
such Lender assign, in accordance with Section 10.07 hereof, to
one or more assignees designated by either the Borrowers or the
Administrative Agent (and reasonably acceptable to the other),
all (but not less than all) of such Lender's Commitment,
Advances, participation and other rights and obligations under
the Loan Documents; provided that any such demand by the
Borrowers during the continuance of an Event of Default or an
Unmatured Default shall be ineffective without the consent of the
Majority Lenders. If, within 30 days following any such demand
by the Borrowers, any such assignee so designated shall fail to
tender such assignment on terms reasonably satisfactory to the
Borrowers and the Borrowers and the Administrative Agent shall
have failed to designate any such assignee, then such demand by
the Borrowers shall become ineffective, it being understood for
purposes of this provision that such assignment shall be
conclusively deemed to be on terms reasonably satisfactory to
such Lender, and such Lender shall be compelled to tender such
assignment forthwith, if (i) such assignee (A) shall agree to
such assignment in substantially the form of the Lender
Assignment and (B) shall tender payment to such Lender in an
amount equal to the full outstanding dollar amount accrued in
favor of such Lender hereunder (as computed in accordance with
the records of the Administrative Agent) and (ii) in the event
the Borrowers demanded such assignment, the Borrowers shall
tender payment to the Administrative Agent of the processing and
recording fee specified in Section 10.07(b) for such assignment.
SECTION 10.08. Confidentiality.
In connection with the negotiation and administration of the
Loan Documents, the Borrowers have furnished or caused to have
furnished and will from time to time furnish or cause to be
furnished to the Administrative Agent and the Lenders (each, a
"Recipient") written information which when delivered to the
Recipient will be deemed to be confidential (such information,
other than any such information which (i) was publicly available,
or otherwise known to the Recipient, at the time of disclosure,
(ii) subsequently becomes publicly available other than through
any act or omission by the Recipient or (iii) otherwise
subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his
or its obligations to the Borrowers, being hereinafter referred
to as "Confidential Information"). The Recipient will not
knowingly disclose any such Confidential Information to any third
party (other than to those persons who have a confidential
relationship with the Recipient), and will take all reasonable
steps to restrict access to such information in a manner designed
to maintain the confidential nature of such information, in each
case until such time as the same ceases to be Confidential
Information or as the Borrowers may otherwise instruct. It is
understood, however, that the foregoing will not restrict the
Recipient's ability to freely exchange such Confidential
Information with prospective participants in or assignees of the
Recipient's position herein, but the Recipient's ability to so
exchange Confidential Information shall be conditioned upon any
such prospective participant's entering into an understanding as
to confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of
any or all Confidential Information if and to the extent that
such disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's
records by appropriate authorities, (ii) pursuant to court order,
subpoena or other legal process or (iii) otherwise, as required
by law; in the event of any required disclosure under clause (ii)
or (iii), above, the Recipient agrees to use reasonable efforts
to inform the Borrowers as promptly as practicable unless the
Lender is prohibited from doing so by court order, subpoena or
other legal process.
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. Waiver of Jury Trial.
Each of the Borrowers, the Administrative Agent and the
Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim arising out of or relating
to the Loan Documents, or any other instrument or document
delivered hereunder or thereunder.
SECTION 10.10. Governing Law.
The Loan Documents shall be governed by, and construed in
accordance with, the laws of the State of New York. Each of the
Borrowers, the Lenders and the Administrative Agent:
(i) irrevocably submits to the jurisdiction of any New York State
Court or Federal court sitting in New York City in any action
arising out of or relating to the Loan Documents, (ii) agrees
that all claims in such action may be decided in such court,
(iii) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum and (iv) consents to the service
of process by mail. A final judgment in any such action shall be
conclusive and may be enforced in other jurisdictions. Nothing
herein shall affect the right of any party to serve legal process
in any manner permitted by law or affect its right to bring any
action in any other court.
SECTION 10.11. Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or
implied, of any Loan Document, or actions taken or to be taken by
any party thereunder, shall be construed to create a partnership,
association, or joint venture between such parties or any of
them. No term or provision of any Loan Document shall be
construed to confer a benefit upon, or grant a right or privilege
to, any Person other than the parties hereto.
SECTION 10.12. Execution in Counterparts
This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all
of which taken together shall constitute one and the same
agreement.
[SIGNATURE PAGES 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.
THE CONNECTICUT LIGHT AND POWER COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Treasurer - Finance
WESTERN MASSACHUSETTS ELECTRIC
COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Treasurer - Finance
YANKEE GAS SERVICES COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Treasurer - Finance
PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Treasurer - Finance
Commitment: $30,000,000.00 CITIBANK, N.A., as Administrative Agent
and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $21,230,769.23 THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Fuiks
Title: Vice President
Commitment: $30,000,000.00 BANK ONE, NA, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Title: Director
Commitment: $30,000,000.00 BARCLAYS BANK, PLC, as a Lender
By: /s/ Sydney ▇. ▇▇▇▇▇▇
Name: Sydney ▇. ▇▇▇▇▇▇
Title: Director
Commitment: $30,000,000.00 CITIBANK, N.A., as Administrative Agent
and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $21,230,769.23 CITIZENS BANK OF MASSACHUSETTS, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Commitment: $15,692,307.69 COBANK, ACB, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Commitment: $25,384,615.39 FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Commitment: $21,230,769.23 JPMORGAN CHASE BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Title: Managing Director
Commitment: $21,230,769.23 KEYBANK NATIONAL ASSOCIATES, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Commitment: $11,538,461.54 MELLON BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Commitment:$21,230,769.23 TORONTO DOMINION (TEXAS), INC., as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Commitment: $30,000,000.00 UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Commitment: $21,230,769.23 WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Total of $300,000,000.00
Commitments: