Exhibit E
S&S DRAFT 12/9/97
U.S. $375,000,000
CREDIT AGREEMENT
Dated as of December 15, 1997
Among
NEW ENGLAND POWER COMPANY
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
as Arranger and Syndication Agent
and
BANKBOSTON, N.A.
as Administrative Agent
and
CREDIT SUISSE FIRST BOSTON
as Documentation Agent
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. . . . . . . . . . . 1
SECTION 1.02. Computation of Time Periods. . . . . . . . 9
SECTION 1.03. Accounting Terms . . . . . . . . . . . . . 9
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances . . . . . . . . . . . . . . . 10
SECTION 2.02. Making the Advances. . . . . . . . . . . . 10
SECTION 2.03. Fees . . . . . . . . . . . . . . . . . . . 11
SECTION 2.04. Termination or Reduction of the Commitments 11
SECTION 2.05. Repayment. . . . . . . . . . . . . . . . . 11
SECTION 2.06. Interest . . . . . . . . . . . . . . . . . 11
SECTION 2.07. Interest Rate Determination. . . . . . . . 12
SECTION 2.08. Optional Conversion of Advances. . . . . . 12
SECTION 2.09. Optional Prepayments . . . . . . . . . . . 13
SECTION 2.10. Increased Costs. . . . . . . . . . . . . . 13
SECTION 2.11. Illegality . . . . . . . . . . . . . . . . 13
SECTION 2.12. Payments and Computations. . . . . . . . . 13
SECTION 2.13. Taxes. . . . . . . . . . . . . . . . . . . 14
SECTION 2.14. Sharing of Payments, Etc.. . . . . . . . . 16
SECTION 2.15. Extension of Termination Date. . . . . . . 16
SECTION 2.16. Use of Proceeds. . . . . . . . . . . . . . 16
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01 . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.02. Conditions Precedent to Each Borrowing . . 18
SECTION 3.03. Determinations Under Section 3.01. . . . . 18
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower 18
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. . . . . . . . . . . 20
SECTION 5.03. Financial Covenant . . . . . . . . . . . . 23
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. . . . . . . . . . . . . 23
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action . . . . . . . . . 25
SECTION 7.02. Agent's Reliance, Etc. . . . . . . . . . . 26
SECTION 7.03. BankBoston, MLCC, Credit Suisse and Affiliates 26
SECTION 7.04. Lender Credit Decision . . . . . . . . . . 26
SECTION 7.05. Indemnification. . . . . . . . . . . . . . 26
SECTION 7.06. Successor Agents . . . . . . . . . . . . . 27
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. . . . . . . . . . . . . . 27
SECTION 8.02. Notices, Etc.. . . . . . . . . . . . . . . 28
SECTION 8.03. No Waiver; Remedies. . . . . . . . . . . . 28
SECTION 8.04. Costs and Expenses . . . . . . . . . . . . 28
SECTION 8.05. Right of Set-off . . . . . . . . . . . . . 30
SECTION 8.06. Binding Effect . . . . . . . . . . . . . . 30
SECTION 8.07. Assignments and Participations . . . . . . 30
SECTION 8.08. Confidentiality. . . . . . . . . . . . . . 32
SECTION 8.09. Governing Law. . . . . . . . . . . . . . . 32
SECTION 8.10. Execution in Counterparts. . . . . . . . . 32
SECTION 8.11. Jurisdiction, Etc. . . . . . . . . . . . . 32
SECTION 8.12. Waiver of Jury Trial . . . . . . . . . . . 33
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(f) - Pending or Threatened Proceedings
Schedule 4.01(k) - Subsidiaries
Schedule 5.02(a) - Existing Liens
Exhibits
Exhibit A - Form of Promissory Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
Exhibit E - Form of Extension Notice
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of December 15, 1997 (the "Agreement"), among
NEW ENGLAND POWER COMPANY, a Massachusetts corporation (the "Borrower"), THE
BANKS, FINANCIAL INSTITUTIONS AND OTHER INSTITUTIONAL LENDERS (the "Initial
Lenders") listed on the signature pages hereof, ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
CORPORATION ("MLCC"), as arranger and syndication agent (in such capacities,
the "Syndication Agent"), BANKBOSTON, N.A. ("BankBoston"), as administrative
agent (in such capacity, the "Administrative Agent") for the Lenders (as
hereinafter defined), and CREDIT SUISSE FIRST BOSTON ("Credit Suisse"), as
documentation agent (in such capacity, the "Documentation Agent" and, together
with the Administrative Agent and the Syndication Agent, the "Agents").
PRELIMINARY STATEMENT:
The Borrower has requested that the Lenders lend to the
Borrower up to $375,000,000 in order to provide working capital and for other
general corporate purposes. The Lenders have indicated their willingness to
agree to lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, 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 equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital
of parties to this Agreement.
"Advance" means an advance by a Lender to the Borrower pursuant
to Article II, and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Administrative Agent
maintained by the Administrative Agent at BankBoston with its office at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No. 540-99621,
Attention: New England Power.
"Agents" has the meaning specified in the recital of parties to
this Agreement.
"Anniversary Date" means any date which is an integral multiple
of 364 days after the Effective Date occurring during the term of this
Agreement.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate
Advance and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Applicable Margin" means 0.17%.
"Applicable Percentage" means 0.08%.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"BankBoston" has the meaning specified in the recital of
parties to this Agreement.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by BankBoston in
Boston, Massachusetts, from time to time, as BankBoston's base
rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrower's Account" means the account of the Borrower
maintained by the Administrative Agent at BankBoston with its office at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Account No. ▇▇▇▇▇▇▇▇,
Attention: New England Power.
"Borrowing" means a borrowing consisting of Advances of the
same Type made on the same day by the Lenders.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in Boston, Massachusetts or
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.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to any Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to such Agent or such Lender from a source other than the
Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt
of others referred to in clauses (a) through (g) above or clause (i)
below guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through
an agreement (i) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (ii) to purchase, sell
or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make
payment of such Debt or to assure the holder of such Debt against loss,
(iii) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or
(iv) otherwise to assure a creditor against loss, and (i) all Debt
referred to in clauses (a) through (h) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise,
to be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt.
"Declining Lender" has the meaning specified in Section
2.15(b).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Documentation Agent" has the meaning specified in the recital
of parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$500,000,000; (d) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having total assets in excess of $500,000,000; (e) a commercial
bank
organized under the laws of any other country that is a member of the
OECD or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having
total assets in excess of $500,000,000, so long as such bank is acting
through a branch or agency located in the United States; (f) the
central bank of any country that is a member of the OECD; (g) a finance
company, insurance company or other financial institution or fund
(whether a corporation, partnership, trust or other entity) that is
engaged in making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and having total assets in
excess of $500,000,000; and (h) any other Person approved by the
Administrative Agent and, unless a Default has occurred and is
continuing at the time any assignment is effected in accordance with
Section 8.07, the Borrower, such approval not to be unreasonably
withheld or delayed, provided, however, that neither the Borrower nor
any Affiliate of the Borrower shall qualify as an Eligible Assignee
under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of the Borrower's controlled group, or
under common control with the Borrower, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to
a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by the Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, a 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 Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum at which deposits in U.S. dollars are
offered by the principal office of BankBoston 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 an
amount substantially equal to BankBoston's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
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) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extending Lender" has the meaning specified in Section
2.15(b).
"Extension Date" has the meaning specified in Section 2.15(a).
"Extension Notice" has the meaning specified in Section
2.15(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to 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 for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of the Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit
during a period of more than one year after such date, including,
without limitation, all amounts of Funded Debt of such Person required
to be paid or prepaid within one year after the date of determination.
"GAAP" has the meaning specified in Section 1.03.
"Generating Business" means the non-nuclear power generating
business of NEP and Narra Electric, including, without limitation, the
assets subject to the Asset Purchase Agreement by and among NEP, Narra
Electric, and USGen New England, Inc. (formerly USGen Acquisition
Corporation), dated as of August 5, 1997, as amended from time to time.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Increasing Extending Lender" has the meaning specified in
Section 2.15(b).
"Information Memorandum" means the information memorandum dated
October 1997 used by the Syndication Agent in connection with the
syndication of the Commitments.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months, as the Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day
of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period that
ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last
day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business
Day; and
(d) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Margin Regulations" means Regulations G, U and X of the Board
of Governors of the Federal Reserve System, as in effect from time to
time.
"Margin Stock" has the meaning specified in the Margin
Regulations.
"Mass. Electric" means Massachusetts Electric Company, a
Massachusetts corporation.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations or
properties of the Borrower and its Material Subsidiaries, taken as a
whole; provided that any change disclosed in (a) Form 10-Q of the
Borrower for the period ended March 31, 1997 or June 30, 1997 which was
filed with the Securities and Exchange Commission prior to October 2,
1997 or (b)
Form 8-K of the Borrower dated April 14, 1997, May 20, 1997 or August
6, 1997 which was filed with the Securities and Exchange Commission
prior to October 2, 1997 shall not constitute a Material Adverse
Change.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations or
properties of the Borrower and its Material Subsidiaries, taken as a
whole, (b) the rights and remedies of any Agent or any Lender under
this Agreement or any Note or (c) the ability of the Borrower to
perform its obligations under this Agreement or any Note.
"Material Subsidiary" means, at any time, a Subsidiary of the
Borrower whose assets at such time exceed 10% of the assets of the
Borrower and its Subsidiaries or whose income at such time is more than
10% of the income of the Borrower and its Subsidiaries, in each case on
a Consolidated basis, excluding however, Connecticut Yankee Atomic
Power Company, Maine Yankee Atomic Power Company, Vermont Yankee
Nuclear Power Corporation and Yankee Atomic Electric Company.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Narra Electric" means The Narragansett Electric Company, a
Rhode Island corporation.
"▇▇▇▇" means New England Electric System, a Massachusetts
trust.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in
Section 2.02.
"Nuclear Generation Assets" means the Borrower's interests in
Yankee Atomic Electric Company, Vermont Yankee Nuclear Power
Corporation, Maine Yankee Atomic Power Company, Connecticut Yankee
Atomic Power Company, the Millstone 3 nuclear generating unit in
Connecticut and the Seabrook nuclear generating units.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than
30 days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes; and (e) purchase
money Liens upon or in any real property or equipment acquired or held
by the Borrower or any Subsidiary in the ordinary course of business to
secure the purchase price of such property or equipment or to secure
Debt incurred solely for the purpose of financing the acquisition of
such property or equipment, or Liens existing on such property or
equipment at the time of its acquisition (other than any such Liens
created in contemplation of such acquisition that were not incurred to
finance the acquisition of such property) or extensions, renewals or
replacements of any of the foregoing for the same or a lesser amount,
provided, however, that no such Lien shall extend to or cover any
properties of any character other than the real property or equipment
being acquired, and no such extension, renewal or replacement shall
extend to or cover any properties not theretofore subject to the Lien
being extended, renewed or replaced.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"PUHCA" means the Public Utility Holding Company Act of 1935,
as amended from time to time, and the rules and regulations promulgated
thereunder.
"Rate Agreement" means (a) the settlement agreement regarding
the rate recovery of remediation costs of former manufactured gas sites
and certain other hazardous waste sites, approved by the Massachusetts
Department of Public Utilites in 1993 and described in Form 10-Q of the
Borrower for the period ended June 30, 1997 and (b) any other
settlement agreement regarding the rate recovery of remediation costs
of former manufactured gas sites and other hazardous waste sites
approved by the appropriate federal or state regulatory authority.
"RCRA" Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.), as amended or supplemented from time to time.
"Register" has the meaning specified in Section 8.07(g).
"Release" means the release, emission, disposal, leaching, or
migration into the environment (including, without limitation, the
abandonment or disposal of any barrels, containers or receptacles
containing Hazardous Materials), or into or out of any property owned,
leased or controlled by the Borrower or any of its Material
Subsidiaries.
"Replacement Lender" has the meaning specified in Section
2.15(b).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Commitments.
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees
of the Borrower or any ERISA Affiliate and no Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Termination Date" means the earlier of (a) December 14, 1998
or such later date as shall be designated in accordance with Section
2.15 and (b) the date of termination in whole of the Commitments
pursuant to Section 2.04 or 6.01.
"Total Capital" means, with reference to the Borrower, as of
any date, the sum of the following of the Borrower and its
Subsidiaries, without duplication, each as determined on a Consolidated
basis and in accordance with GAAP: (a) total common shareholders equity
(inclusive of common shareholders equity, minority ownership interests,
premiums on preferred stock and retained earnings and less all treasury
stock) at such date; (b) the outstanding cumulative preferred stock at
such date; (c) Funded Debt and (d) Consolidated Debt.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"▇▇▇▇▇ 4 Facility" means the Borrower's interest in the ▇▇▇▇▇ 4
generating unit located in Maine.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount not to exceed
at any time outstanding the amount set forth opposite such Lender's name on
the signature pages hereof or, if such Lender has entered into any Assignment
and Acceptance, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.07(c), as such amount may be
reduced pursuant to Section 2.04 (such Lender's "Commitment"). Each Borrowing
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Advances of the same Type
made on the same day by the Lenders ratably according to their respective
Commitments. Within the limits of each Lender's Commitment, the Borrower may
borrow under this Section 2.01, prepay pursuant to Section 2.09 and reborrow
under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall
be made on notice, given not later than 11:00 A.M. (Boston, Massachusetts
time) on the third Business Day prior to the date of the proposed Borrowing in
the case of a Borrowing consisting of Eurodollar Rate Advances, or not later
than 9:30 A.M. (Boston, Massachusetts time) on the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier or telex. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Lender shall,
before 2:00 P.M. (Boston, Massachusetts time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Agent's Account, in same day funds, such Lender's
ratable portion of such Borrowing. After the Administrative Agent's receipt
of such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than
$5,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.07 or 2.11 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more than fifteen
separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice by
telegram, telex or telecopier from a Lender prior to the date 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 2.02 and the Administrative Agent may (but it shall not be required
to), in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal
Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(e) 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 2.03. Fees. (a) Facility Fee. The Borrower agrees
to pay to the Administrative Agent for the account of each Lender a facility
fee on the aggregate amount of such Lender's Commitment from the date hereof
in the case of each Initial Lender and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender in the case
of each other Lender until the Termination Date at a rate per annum equal to
the Applicable Percentage in effect from time to time of such Lender's
Commitment during the preceding quarter, whether used or unused, payable in
arrears quarterly on the last day of each March, June, September and December,
commencing December 31, 1997, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to each Agent for its own
account such fees as may from time to time be agreed between the Borrower and
such Agent.
SECTION 2.04. Termination or Reduction of the Commitments.
The Borrower shall have the right, upon at least three Business Days' notice
to the Administrative Agent, to terminate in whole or reduce ratably in part
the unused portions of the respective Commitments of the Lenders, provided
that each partial reduction shall be in the aggregate amount of $20,000,000 or
an integral multiple of $5,000,000 in excess thereof.
SECTION 2.05. Repayment. The Borrower shall repay to the
Administrative Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Advances then outstanding.
SECTION 2.06. Interest. (a) Scheduled Interest. The
Borrower shall pay interest on the unpaid principal amount of each Advance
owing to each Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such
periods and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of
(x) the Eurodollar Rate for such Interest Period for such Advance plus
(y) the Applicable Margin in effect from time to time, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first
day of such Interest Period and on the date such Eurodollar Rate
Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears on
the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be
paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to
the fullest extent permitted by law, the amount of any interest, fee or other
amount payable hereunder that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on
the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be
paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) The
Administrative Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Administrative Agent for
purposes of Section 2.06(a)(i) or (ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the Lenders
and such Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.08. Optional Conversion of Advances. The Borrower
may on any Business Day, upon notice given to the Administrative Agent not
later than 12:00 noon (Boston, Massachusetts time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of
Sections 2.07 and 2.11, Convert all Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Advance. No notice of Conversion shall be required to contain
statements of the type contained in clause (A) or clause (B) on Exhibit B
hereto. Each notice of Conversion shall be irrevocable and binding on the
Borrower.
SECTION 2.09. Optional Prepayments. The Borrower may, upon at
least three Business Days' notice to the Administrative Agent stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given, the Borrower shall prepay the outstanding principal amount of
the 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; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and (y) in the event of any such
prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances (excluding for
purposes of this Section 2.10 any such increased costs resulting from
(i) Taxes or Other Taxes (as to which Section 2.13 shall govern) and
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state
under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the Borrower
shall from time to time, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost. A certificate as to
the amount of such increased cost, submitted to the Borrower and the
Administrative Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type, then, upon
demand by such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to the Administrative Agent for the account of
such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A certificate as to such amounts submitted to
the Borrower and the Administrative Agent by such Lender shall be conclusive
and binding for all purposes, absent manifest error.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that
the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances hereunder, (i) each
Eurodollar Rate Advance will automatically, upon such notice, Convert into a
Base Rate Advance and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist; provided, however, that
before making any such demand, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a
designation would allow such Lender or its Eurodollar Lending Office to
continue to perform its obligations to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances and would not be
disadvantageous to such Lender in any material respect.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 2:00 P.M.
(Boston, Massachusetts time) on the day when due in U.S. dollars to the
Administrative Agent at the Agent's Account in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest or facility fees
ratably (other than amounts payable pursuant to Section 2.10, 2.13 or 8.04(c))
to the Lenders for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount payable to any
Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon
its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date specified in such Assignment and Acceptance,
the Administrative Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of
the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the rate referred to in
clause (a) of the definition of the "Base Rate" contained in Section 1.01
shall be made by the Administrative Agent on the basis of a year of 365 or 366
days, as the case may be, and all computations of interest based on the
Eurodollar Rate or the Federal Funds Rate and of facility fees shall be made
by the Administrative Agent on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or facility fees are
payable. Each determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility
fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and
to the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each 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 2.13. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in accordance with
Section 2.12, free and clear of and without deduction for any and 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
each Agent, taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction under the laws
of which such Lender or such 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 in lieu of net
income taxes, 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 in respect of
payments hereunder or under the Notes being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender or
any 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 2.13) such Lender or such Agent (as
the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower shall 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 hereunder or under the Notes or from
the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as
"Other Taxes").
(c) The Borrower shall indemnify each Lender and each Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.13) imposed on or paid by such Lender or such
Agent (as the case may be) and any liability (including penalties, interest
and expenses which do not arise from such Lender's failure timely to provide
notice or request payment pursuant to this Section 2.13) arising therefrom or
with respect thereto. This indemnification shall be made within 30 days from
the date such Lender or such Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a United States
person, if the Borrower determines that no Taxes are payable in respect
thereof, the Borrower shall furnish, or shall cause such payor to furnish, to
the Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701
of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the
form provided by a Lender at the time such Lender first becomes a party to
this Agreement indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender provides the appropriate forms certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender assignee becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date,
then, to such extent, the term Taxes shall include (in addition to withholding
taxes that may be imposed in the future or other amounts otherwise includable
in Taxes) United States withholding tax, if any, applicable with respect to
the Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date
hereof by Internal Revenue Service form 1001 or 4224, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof
to the Borrower and shall not be obligated to include in such form or document
such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such
form otherwise is not required under subsection (e) above), such Lender shall
not be entitled to indemnification under Section 2.13(a) or (c) with respect
to Taxes imposed by the United States by reason of such failure; provided,
however, that should a Lender become subject to Taxes because of its failure
to deliver a form required hereunder, the Borrower shall take such steps as
the Lender shall reasonably request to assist the Lender to recover such
Taxes.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Advances owing to it
(other than pursuant to Section 2.10, 2.13 or 8.04(c)) 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
participations in the Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.14 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.15
Extension of Termination Date.
(a) At least 45 but no more than 60 days prior to any Anniversary Date
(any such Anniversary Date being an "Extension Date"), the Borrower may, by
written notice to the Administrative Agent and the Syndication Agent, request
that the Lenders extend the Termination Date for an additional period of 364
days from its then scheduled expiration. Each such notice shall be
irrevocable and binding on the Borrower. The Administrative Agent shall
promptly notify each Lender of such request, and each Lender shall in turn, in
its sole discretion (it being understood and agreed that no Lender shall have
any obligation whatsoever to agree to such request), not later than 30 days
after receipt of such notice from the Administrative Agent, notify the
Administrative Agent and the Syndication Agent as to whether such Lender will
consent to such extension by delivering to the Administrative Agent and the
Syndication Agent a notice in substantially the form of Exhibit E hereto (each
such notice being an "Extension Notice"). If any Lender shall fail to deliver
an Extension Notice to the Administrative Agent and the Syndication Agent
within 30 days after receipt of such notice from the Administrative Agent,
such Lender shall be deemed to be a Declining Lender with respect to such
request. The Administrative Agent shall promptly notify the Borrower of the
decision of the Lenders regarding the Borrower's request for an extension of
the Termination Date.
(b)
If less than all of the Lenders consent to a request by the Borrower
pursuant to Section 2.15(a) for an extension of the Termination Date (each
Lender that has not so consented and each Lender that fails to deliver an
Extension Notice within the time period set forth in Section 2.15(a) being a
"Declining Lender", and each other Lender being an "Extending Lender"), the
Borrower shall have the right to:
(i) require any Declining Lender to assign in full its rights
and obligations under this Agreement (A) to any one or more Extending
Lenders designated by the Borrower that have offered in their Extension
Notices to increase their respective Commitments in an aggregate amount
at least equal to the amount of such Declining Lender's Commitment
(each such Extending Lender being an "Increasing Extending Lender") and
(B) to the extent of any shortfall in the aggregate amount of extended
Commitments, to any one or more other Eligible Assignees designated by
the Borrower and acceptable to the Syndication Agent (which acceptance
shall not be unreasonably withheld) that agree to assume all of such
rights and obligations without recourse to or warranty by, or expense
to, such Declining Lender (each such Eligible Assignee being a
"Replacement Lender"), provided that (1) such Declining Lender shall
have received payment in full of the aggregate principal amount of all
Advances owing to such Declining Lender, together with accrued interest
thereon to the effective date of such assignment and all fees and other
amounts owing to such Declining Lender under any provision of this
Agreement (including, but not limited to, any amounts owing under
Section 2.10, 2.13 or 8.04(c)) as of the effective date of such
assignment, (2) with respect to any Replacement Lender, the applicable
processing and recordation fee required under Section 8.07(a) for such
assignment shall have been paid, (3) such assignment shall otherwise
have occurred in compliance with Section 8.07 and (4) the effective
date of such assignment shall be the date specified by the Borrower and
agreed to by the Replacement Lender or Increasing Extending Lender, as
the case may be, which date shall be on or prior to the applicable
Extension Date; or
(ii) pay or prepay, or cause to be paid or prepaid, on and
effective as of the applicable Extension Date, the aggregate principal
amount of all Advances owing to such Declining Lender, together with
accrued interest thereon to the date of such payment, and all fees and
other amounts owing to such Declining Lender under any provision of
this Agreement (including, but not limited to, any amounts owing under
Section 2.10, 2.13 or 8.04(c)) as of the date of such payment or
prepayment, and terminate in whole such Declining Lender's Commitment,
notwithstanding the provisions of Section 2.04(a).
(c)
If, on or prior to the applicable Extension Date then in effect,
Extending Lenders and/or Replacement Lenders have provided Commitments in an
aggregate amount at least equal to 66.67% of the aggregate amount of the
Commitments outstanding immediately prior to such Extension Date and each
Declining Lender has been either superseded by an Increasing Extending Lender
or a Replacement Lender pursuant to Section 2.15(b)(i) or paid or prepaid in
accordance with Section 2.15(b)(ii), then, effective as of such Extension
Date, (i) the Termination Date shall be extended for a period of 364 days for
such Extending Lenders and such Replacement Lenders and (ii) each Declining
Lender shall have no further Commitment hereunder; provided that:
(A) on such Extension Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate signed by a duly authorized officer of the
Borrower, dated such Extension Date, stating that: (i) the
representations and warranties contained in Section 4.01 are correct on
and as of such Extension Date, before and after giving effect to the
extension of the Termination Date, as though made on and as of such
Extension Date and (ii) no event has occurred and is continuing, or
would result from the extension of the Termination Date, that
constitutes a Default; and
(B) on or before such Extension Date, the Administrative Agent
shall have received the following, each dated such Extension Date, in
sufficient copies for each Lender (including each Replacement Lender):
(1) certified copies of the board of directors of the Borrower
approving the extension of the Termination Date and any corresponding
modifications to this Agreement and the Notes and (2) such other
approvals, opinions or documents as any Lender through the
Administrative Agent may reasonably request in connection with such
extension of the Termination Date.
(d)
Promptly following each Extension Date, the Administrative Agent shall
notify the Lenders (including, without limitation, each Replacement Lender)
and the Borrower of the extension of the Termination Date. Following each
Extension Date, all references in this Agreement and in the Notes to the
"Termination Date" shall, with respect to each Extending Lender and each
Replacement Lender for such Extension Date, refer to the Termination Date as
so extended.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely to provide working capital and for general corporate purposes of the
Borrower and to purchase or carry Margin Stock of ▇▇▇▇ and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law
or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated hereby.
(b) The Borrower shall have notified each Lender and each Agent
in writing as to the proposed Effective Date.
(c) The Borrower shall have paid all accrued fees and expenses
of each Agent and the Lenders (including the accrued fees and expenses
of counsel to the Syndication Agent).
(d) On the Effective Date, the following statements shall be
true and the Administrative Agent shall have received for the account
of each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(e) The Borrower shall have delivered to the Agents and the
Lenders the statements and other information required described in
Section 4.01(e).
(f) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the
Revolving Credit Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of the board of
directors of the Borrower approving this Agreement and the
Notes, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to this Agreement and the Notes.
(iii) A certificate of a the Secretary of the Borrower
certifying the names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the Notes and
the other documents to be delivered hereunder.
(iv) A favorable opinion of the Associate General Counsel
for the Borrower, substantially in the form of Exhibit D hereto
and as to such other matters as any Lender through the
Administrative Agent may reasonably request.
(v) A favorable opinion of Shearman & Sterling, counsel for
the Agents, in form and substance satisfactory to the
Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance on the occasion of each Borrowing
(other than a rollover of an existing Borrowing) shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the
date of such Borrowing (a) the following statements shall be true (and each of
the giving of the applicable Notice of Borrowing and the acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such Borrowing such
statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such Borrowing,
before and after giving effect to such Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender
prior to the date that the Borrower, by notice to the Lenders, designates as
the proposed Effective Date, specifying its objection thereto. The
Administrative Agent shall promptly notify the Lenders of the occurrence of
the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, and the consummation of the transactions
contemplated hereby, are within the Borrower's powers, have been duly
authorized by all necessary action, and do not contravene (i) the
Borrower's agreement and declaration of trust or by-laws or (ii) any
law (including, without limitation, PUHCA) or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement or the Notes except
for the approval of the Securities and Exchange Commission as required
by PUHCA, which has been duly obtained, taken, given and made and is in
full force and effect.
(d) This Agreement has been, and each of the Notes when
delivered hereunder will have been, duly executed and delivered by the
Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 1996, and the related Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Coopers & ▇▇▇▇▇▇▇, LLP, independent public accountants, and the
Consolidated
balance sheet of the Borrower and its Subsidiaries as at June 30, 1997,
and the related Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the six months then ended, duly
certified by the chief financial officer, treasurer or assistant
treasurer of the Borrower, copies of which have been furnished to each
Lender, fairly present, subject, in the case of said balance sheet as
at June 30, 1997, and said statements of income and cash flows for the
six months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Borrower and its Subsidiaries as at such
dates and the Consolidated results of the operations of the Borrower
and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles consistently
applied. Since December 31, 1996, there has been no Material Adverse
Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without limitation,
any Environmental Action, affecting the Borrower or any of its Material
Subsidiaries before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect except
(A) as disclosed on Schedule 4.01(f) hereto and (B) with respect to any
action, suit, investigation, litigation or proceeding covered by the
representation in Section 4.01(i), as set forth in such representation
or (ii) purports to affect the legality, validity or enforceability of
this Agreement or any Note or the consummation of the transactions
contemplated hereby.
(g) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(a) or 5.02(c) or subject to
any restriction contained in any agreement or instrument between the
Borrower and any Lender or any Affiliate of any Lender relating to Debt
and within the scope of Section 6.01(e) will be Margin Stock.
(h) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(i) Except as would not, individually or in the aggregate, be
reasonably expected to result in material liability to the Borrower or
its Material Subsidiaries: (i) the Borrower and its Material
Subsidiaries have not received any written communication during the
past three years from any government agency or other third party
relating to a Release of Hazardous Materials or relating to violation
of Environmental Laws; (ii) no Hazardous Materials have been Released,
disposed of, discharged or found at or migrating from any property
owned or operated presently or at any previous time by the Borrower or
any Material Subsidiary; (iii) the Borrower and each Material
Subsidiary is in compliance with all applicable Environmental Laws;
(iv) the Borrower and each Material Subsidiary has not been alleged to
be in violation of, and has not been subject to any administrative or
judicial proceeding pursuant to, any Environmental Law either now or at
any time during the past 3 years; or (v) there are no facts or
circumstances that could form the basis for the assertion of any claims
against the Borrower or any of its Material Subsidiaries relating to
environmental matters including, but not limited to, any claims arising
from past or present environmental practices asserted under CERCLA,
RCRA or any other federal, state or local environmental statute, rule
or regulation. As used in this Section 4.01(i), the term "material"
shall refer to any matter which as of the date of computation thereof
could result in liability of the Borrower or any of its Material
Subsidiaries in an amount, after giving effect to actual recoveries and
reasonably anticipated recoveries under any Rate Agreement, equal to or
greater than ten percent of the amount of the Borrower's or such
Material Subsidiary's total common share equity as set forth on the
Borrower's or such Material Subsidiary's most recent balance sheet
(either quarterly or annual) on such date.
(j) Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, the application of the proceeds or repayment
thereof by the Borrower nor the consummation of the other transactions
contemplated hereby will violate any provision of such Act or any rule,
regulation or order of the Securities and Exchange Commission
thereunder.
(k) All of the Subsidiaries of the Borrower as of the date
hereof are listed on Schedule 4.01(k) hereto.
(l) Neither the Borrower nor any of its Subsidiaries is or has
been party to a Multiemployer Plan.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Material Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and Environmental
Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Material Subsidiaries to maintain, insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Borrower or such Material Subsidiary operates;
provided, however, that the Borrower and its Material Subsidiaries may
self-insure to the same extent as other companies engaged in similar
businesses and owning similar properties in the same general areas in
which the Borrower or such Material Subsidiary operates and to the
extent consistent with prudent business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Material Subsidiaries to preserve and
maintain, its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Borrower and its Material
Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(b); and provided further that neither the Borrower nor any
of its Material Subsidiaries shall be required to preserve any right or
franchise if the Board of Directors of the Borrower or such Material
Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Borrower or such
Material Subsidiary, as the case may be, and that the loss thereof is
not disadvantageous in any material respect to the Borrower, such
Material Subsidiary or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, permit any Agent or any of the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Material Subsidiaries, and to discuss the
affairs, finances and accounts of the Borrower and any of its Material
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Material
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Material Subsidiary
in accordance with generally accepted accounting principles in effect
from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve,
and cause each of its Material Subsidiaries to maintain and preserve,
all of its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear and tear
excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Material Subsidiaries to conduct, all transactions otherwise
permitted under this Agreement with any of their Affiliates on terms
that are fair and reasonable and no less favorable to the Borrower or
such Material Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate, unless such
transaction is carried out in accordance with PUHCA, in which case such
transaction shall be on terms which are in accordance with PUHCA.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each
fiscal year of the Borrower, Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the period commencing at the
end of the previous fiscal year and ending with the end of such
quarter, duly certified (subject to year-end audit adjustments)
by the chief financial officer, treasurer or assistant
treasurer of the Borrower as having been prepared in accordance
with generally accepted accounting principles and certificates
of the chief financial officer, treasurer or assistant
treasurer of the Borrower as to compliance with the terms of
this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with
Section 5.03, provided that in the event of any change in GAAP
used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP in effect on the
date hereof;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of
the annual audit report for such year for the Borrower and its
Subsidiaries, containing Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion by Coopers & ▇▇▇▇▇▇▇, LLP or
other independent public accountants acceptable to the Required
Lenders, provided that in the event of any change in GAAP used
in the preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination of
compliance with Section 5.03, a statement of reconciliation
conforming such financial statements to GAAP in effect on the
date hereof;
(iii) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of
such statement, a statement of the chief financial officer or
treasurer of the Borrower setting forth details of such Default
and the action that the Borrower has taken and proposes to take
with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
all reports that the Borrower sends to any of its
securityholders generally, and copies of all reports and
registration statements that the Borrower or any Subsidiary
files with the Securities and Exchange Commission or any
national securities exchange;
(v) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency
or arbitrator affecting the Borrower or any of its Material
Subsidiaries of the type described in Section 4.01(f);
(vi) (A) promptly and in any event within 10 days after the
Borrower or any ERISA Affiliate knows or has reason to know
that any ERISA Event has occurred, a statement of the chief
financial officer or treasurer of the Borrower describing such
ERISA Event and the action, if any, that the Borrower or such
ERISA Affiliate has taken and proposes to take with respect
thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any
Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information;
(vii) promptly and in any event within two Business Days
after receipt thereof by the Borrower or any ERISA Affiliate,
copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer
any Plan;
(viii) promptly after the assertion or occurrence thereof,
notice of any Environmental Action against or of any
noncompliance by the Borrower or any of its Subsidiaries with
any Environmental Law or Environmental Permit that could
reasonably be expected to have a Material Adverse Effect; and
(ix) such other information respecting the Borrower or any
of its Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
(j) Maintenance of Rating. Maintain a senior debt rating by
S&P or ▇▇▇▇▇'▇.
SECTION 5.02. Negative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Material Subsidiaries to create or suffer to exist, any Lien on or
with respect to any of its properties, whether now owned or hereafter
acquired, or assign, or permit any of its Material Subsidiaries to
assign, any right to receive income, other than:
(i) Permitted Liens,
(ii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto and
(iii) the replacement, extension or renewal of any Lien
permitted by clause (ii) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct
or contingent obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into any
Person, or permit any of its Material Subsidiaries to do so, except
that any Subsidiary of the Borrower may merge or consolidate with or
into any other Subsidiary of the Borrower, and except that any
Subsidiary of the Borrower may merge into the Borrower and the Borrower
may merge with any other Person so long as the Borrower is the
surviving corporation, provided, in each case, that (i) no Default
shall have occurred and be continuing at the time of such proposed
transaction or would result therefrom and (ii) the nature of the
Borrower's business will not change after giving effect to such
transaction.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Material Subsidiaries to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or
other right to purchase, lease or otherwise acquire any assets, except
(i) sales in the ordinary course of its business, (ii) in a transaction
permitted by subsection (b) of this Section 5.02, (iii) the sale of the
Borrower's interests in the Nuclear Generation Assets, (iv) the sale of
the Borrower's interest in the ▇▇▇▇▇ 4 Facility, (v) the sale of the
Generating Business and (vi) after giving effect to the sale described
in the preceding clause (v), 5% of the total assets of the Borrower and
its Subsidiaries, taken as a whole.
(d) Nature of Business. Make or permit any of its Material
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof (other than after giving effect to the
transactions described in clauses (ii) through (v) of the immediately
preceding paragraph (c)).
(e) Use of Proceeds. Use of the proceeds of any Advance to
buy or carry Margin Stock (other than Margin Stock issued by ▇▇▇▇ or a
Subsidiary thereof).
SECTION 5.03. Financial Covenant. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will maintain a ratio of (i) Consolidated Debt to (ii) Total Capital,
as of the last day of each March, June, September and December, of not greater
than 0.65 to 1.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to
pay any interest on any Advance or make any other payment of fees or
other amounts payable under this Agreement or any Note within two
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein
or by the Borrower (or any of its officers) in connection with this
Agreement shall prove to have been incorrect in any material respect
when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (h), or (j), 5.02
or 5.03, (ii) the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(i) on its part to be
performed or observed if such failure shall remain unremedied for five
days after written notice thereof shall have been given to the Borrower
by the Administrative Agent or any Lender or (iii) the Borrower shall
fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed if
such failure shall remain unremedied for 30 Business Days after written
notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(d) The Borrower or any of its Material Subsidiaries shall fail
to pay any principal of or premium or interest or other amount on any
Debt (but excluding Debt outstanding hereunder) of the Borrower or such
Subsidiary (as the case may be) if such amount so failed to be paid is
at least $10,000,000 or if such Debt is outstanding in a principal or
notional amount of at least $10,000,000 in the aggregate, when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate or require early
termination, or to permit the acceleration or early termination of, the
maturity or tenor of such Debt; or any such Debt shall be declared to
be due and payable, or required to be prepaid, redeemed (other than by
a regularly scheduled required prepayment or redemption), terminated,
purchased or defeased, or an offer to prepay, redeem, purchase or
defease such Debt shall be required to be made, in each case prior to
the stated maturity or the original tenor thereof; or
(e) The Borrower or any of its Material Subsidiaries 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 a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its Material
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or 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, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property)
shall occur; or the Borrower or any of its Material Subsidiaries shall
take any corporate action to authorize any of the actions set forth
above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against the Borrower or any of its
Material Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(g) Any material non-monetary judgment or order shall be
rendered against the Borrower or any of its Material Subsidiaries that
could be reasonably expected to have a Material Adverse Effect, and
there shall be any period of 60 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) (i) any Person (other than ▇▇▇▇) or two or more Persons
acting in concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Borrower (or other securities convertible into such Voting
Stock) representing 25% or more of the combined voting power of all
common stock of the Borrower; or (ii) with respect to the period, if
any, after the date on which ▇▇▇▇ fails to own 100% of the outstanding
Voting Stock of the Borrower, during any period of up to 24 consecutive
months, commencing after the date of this Agreement, individuals who at
the beginning of such 24-month period were directors of the Borrower
shall cease for any reason to constitute a majority of the board of
directors of the Borrower, provided that any person becoming a director
subsequent to the date hereof, whose election, or nomination for
election by the Borrower's shareholders, was approved by a vote of at
least a majority of the directors of the board of directors of the
Borrower as comprised as of the date hereof (other than the election or
nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to
the election of the directors of the Borrower) shall be, for purposes
of this provision, considered as though such person were a member of
the board as of the date hereof; or (iii) any Person (other than ▇▇▇▇)
or two or more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their
acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower;
or
(i) Any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $20,000,000;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances shall automatically be terminated
and (B) the Notes, 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 the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the Notes
as are delegated to such Agent by the terms hereof and thereof, together with
such powers and discretion as are reasonably incidental thereto. As to any
matters expressly provided for in this Agreement and the Notes as being
subject to the discretion of any Agent, such matters shall be subject to the
sole discretion of such Agent, its directors, officers, agents and employees.
As to any matters not expressly provided for by this Agreement or the Notes
(including, without limitation, enforcement or collection of the Notes), no
Agent shall 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
Required Lenders, and such instructions shall be binding upon all Lenders and
all holders of Notes; provided, however, that no Agent shall be required to
take any action that exposes such Agent to personal liability or that is
contrary to this Agreement or applicable law. Each Agent agrees to give to
each Lender and each other Agent prompt notice of each notice given to it by
the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither any Agent nor
any of its respective 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 this Agreement or the Notes, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, each Agent: (a) may treat the payee of any Note as the holder
thereof until, in the case of the Administrative Agent, the Administrative
Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee of such Note, as assignor, and an Eligible Assignee,
as assignee, or, in the case of any other Agent, such Agent has received
notice from the Administrative Agent that it has received and accepted such
Assignment and Acceptance, in each case as provided in Section 8.07; (b) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not be liable
for any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts; (c) makes no warranty
or representation to any Lender and shall not be responsible to any Lender for
any statements, warranties or representations (whether written or oral) made
in or in connection with this Agreement or the Notes; (d) 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 this Agreement or any Note on the part
of the Borrower or to inspect the property (including the books and records)
of the Borrower; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any Note or any other instrument or document
furnished pursuant thereto; and (f) shall incur no liability under or in
respect of this Agreement or any Note by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telegram, telecopy
or telex) believed by it to be genuine and signed or sent by the proper party
or parties.
SECTION 7.03. BankBoston, MLCC, Credit Suisse and Affiliates.
With respect to its Commitments, the Advances made by it or the Notes issued
to it, each of BankBoston, MLCC and Credit Suisse shall have the same rights
and powers under this Agreement or the Notes as any other Lender and may
exercise the same as though it were not an Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include each of
BankBoston, MLCC and Credit Suisse in its individual capacity. Each of
BankBoston, MLCC and Credit Suisse and their respective Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of
business with, the Borrower, any of its Subsidiaries and any Person who may do
business with or own securities of the Borrower or any such Subsidiary, all as
if BankBoston, MLCC or Credit Suisse, as the case may be, were not an Agent
and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon the Agents
or any other Lender and based on the financial statements referred to in
Section 4.01 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 Agents 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 7.05. Indemnification. Each Lender severally agrees
to indemnify each Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against
such Agent in any way relating to or arising out of this Agreement or the
Notes or any action taken or omitted by such Agent under this Agreement or the
Notes; provided, however, 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 such Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse such Agent promptly upon demand for its ratable
share of any costs and expenses (including, without limitation, reasonable
fees and expenses of counsel) payable by the Borrower under Section 8.04, to
the extent that such Agent is not promptly reimbursed for such costs and
expenses by the Borrower after request therefor. For purposes of this
Section 7.05(a), the Lenders' respective ratable shares of any amount shall be
determined, at any time, according to the sum of (i) the aggregate principal
amount of the Advances outstanding at such time and owing to the respective
Lenders and (ii) the aggregate unused portions of their respective Commitments
at such time. In the event that any Lender shall have failed to make any
Advance as required hereunder, such Lender's Commitment shall be considered to
be unused for purposes of this Section 7.05 to the extent of the amount of
such Advance. The failure of any Lender to reimburse an Agent promptly upon
demand for its ratable share of any amount required to be paid by the Lender
to such Agent as provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse such Agent for its ratable share of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse such Agent for such other Lender's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 7.05(a) shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the Notes.
SECTION 7.06. Successor Agents. Any Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may
be removed with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent to the Agent which has resigned or been removed. If no
successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Required Lenders' removal of
such retiring Agent, then such retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent
shall succeed to and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement or the Notes.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement and the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required 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) amend Section 3.01 or waive any of the conditions specified
therein, (b) increase the Commitments of the Lenders or subject the Lenders to
any additional obligations, (c) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees
or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to
take any action hereunder or (f) amend or waive Section 2.15, this
Section 8.01 or Section 8.06; and provided further that no amendment, waiver
or consent shall, unless in writing and signed by an Agent in addition to the
Lenders required above to take such action, affect the rights or duties of
such Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic or telex communication) and mailed, telecopied,
telegraphed, telexed or delivered, if to the Borrower, at its address at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President
and Director of Corporate Finance; if to any Initial Lender, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any
other Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Administrative
Agent, at its address at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Utilities, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Syndication Agent, at its address at World
Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; or, as to the Borrower, the Administrative Agent or the
Syndication Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telecopied, telegraphed or telexed, be effective when
deposited in the mails, telecopied, delivered to the telegraph company or
confirmed by telex answerback, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II or III or to
any Agent pursuant to Article VII shall not be effective until received by
such Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement and the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note 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 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all costs and expenses of the Syndication Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation,
computer, duplication, appraisal, consultant, and audit expenses and (B) the
reasonable fees and expenses of counsel for the Syndication Agent and of
counsel for the Administrative Agent with respect thereto and with respect to
advising the Syndication Agent or the Administrative Agent, respectively, as
to its rights and responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses of the Agents and the Lenders,
if any (including, without limitation, reasonable counsel fees and expenses),
in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other documents
to be delivered hereunder, including, without limitation, reasonable fees and
expenses of counsel for the Agents and each Lender in connection with the
enforcement of rights under this Section 8.04(a).
(b)
The Borrower agrees to indemnify and hold harmless each Lender, each
Agent and each of their Affiliates and their officers, directors, controlling
persons, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses and liabilities, joint or
several, to which any such Indemnified Party may become subject, in each case
arising out of or in connection with or relating to (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Notes, this
Agreement, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower
or any of its Subsidiaries, and to reimburse any Indemnified Party for any and
all reasonable expenses (including, without limitation, reasonable fees and
expenses of counsel) as they are incurred in connection with the investigation
of or preparation for or defense of any pending or threatened claim or any
action or proceeding arising therefrom, whether or not such Indemnified Party
is a party and whether or not such claim, action or proceeding is initiated or
brought by or on behalf of a Borrower or any of its Affiliates and whether or
not any of the transactions contemplated hereby are consummated or this
Agreement is terminated, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation
or other proceeding to which the indemnity in this Section 8.04(b) applies,
such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors,
shareholders or creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. The Borrower also agrees
not to assert any claim against any of the Agents, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Notes, this Agreement, any of the transactions contemplated herein or the
actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as
a result of a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09
or 2.11, acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, the Borrower shall, upon demand by such Lender (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may reasonably
incur as a result of such payment or Conversion, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained
in Sections 2.10, 2.13 and 8.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the
Notes.
(e) The Borrower agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to
the Borrower or its respective security holders or creditors related to or
arising out of in connection with the Notes, this Agreement, the Facilities,
the Advances or the use or proposed use of the proceeds thereof, any of the
transactions contemplated by any of the foregoing or in the loan documentation
and the performance by an Indemnified Party by any of the foregoing except to
the extent that any loss, claim, damage, liability or expense is found in a
final, nonappealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
(f) The Borrower agrees that, without the Syndication Agent's prior
written consent, it will not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in respect
of which indemnification has been or could be sought under the indemnification
provisions of this Agreement (whether or not MLCC or any other Indemnified
Party is an actual or potential party to such claim, action or proceeding),
unless such settlement, compromise or consent (i) either (A) includes an
unconditional written release in form and substance satisfactory to the
Indemnified Parties of each Indemnified Party from all liability arising out
of such claim, action or proceeding or (B) would not reasonably be expected to
impair the indemnification of any Indemnified Party hereunder and (ii) does
not include any statement as an admission of fault, culpability or failure to
act by or on behalf of an Indemnified Party.
(g) In the event that an Indemnified Party is requested or required
to appear as a witness in any action brought by or on behalf of or against the
Borrower or any of its Affiliates in which such Indemnified Party is not named
as a defendant, the Borrower agrees to reimburse such Indemnified Party for
all reasonable expenses incurred by it in connection with such Indemnified
Party's appearing and preparing to appear as such a witness, including,
without limitation, the fees and disbursements of its legal counsel, and to
compensate such Indemnified Party in an amount to be mutually agreed upon.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates 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 or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note held by such
Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender and
its Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agents and when the
Administrative Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure
to the benefit of the Borrower, the Agents and each Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of all of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each
Lender may assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under
this Agreement, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of
a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $100,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, and (iv) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any
Note subject to such assignment and a processing and recordation fee of $2,500
(payable by the assigning Lender). Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each Assignment
and Acceptance, (x) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon any Agent, such assigning Lender
or any other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes
each Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement as are delegated to such Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred
to in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses
of the Lenders and the Commitment of, and principal amount of the Advances
owing to, each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agents and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrower, any Agent or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the
surrendered Note a new Note to the order of such Eligible Assignee in an
amount equal to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment hereunder, a
new Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to
it and the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the Borrower, the
Agents 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 and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Notes or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees
or other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Confidentiality. Neither any Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to such Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors, to
an Agent or a Lender and, as contemplated by Section 8.07(f), to actual or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 8.10. 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. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in
any such court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of any Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
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.
NEW ENGLAND POWER COMPANY
s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By_______________________________
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
as Syndication Agent
By_______________________________
Title:
BANKBOSTON, N.A., as Administrative
Agent
By_______________________________
Title:
CREDIT SUISSE FIRST BOSTON, as
Documentation Agent
By_______________________________
Title:
$38,571,428 ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By_______________________________
Title:
$36,428,571 BANKBOSTON, N.A.
By_______________________________
Title:
$36,428,571 CREDIT SUISSE, FIRST BOSTON
By_______________________________
Title:
CREDIT SUISSE, FIRST BOSTON
By_______________________________
Title:
$30,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By_______________________________
Title:
$30,000,000 BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By_______________________________
Title:
$30,000,000 FLEET NATIONAL BANK
By_______________________________
Title:
$30,000,000 CITIBANK, N.A.
By_______________________________
Title:
$30,000,000 TORONTO DOMINION (TEXAS), INC.
By_______________________________
Title:
$30,000,000 MELLON BANK, N.A.
By_______________________________
Title:
$10,714,286 THE BANK OF NEW YORK
By_______________________________
Title:
$10,714,286 THE TOKAI BANK, LIMITED
By_______________________________
Title:
$10,714,286 THE FUJI BANK LIMITED, NEW YORK
BRANCH
By_______________________________
Title:
$10,714,286 THE INDUSTRIAL BANK OF
JAPAN TRUST COMPANY
By__________________________
Title:
$10,714,286 STATE STREET BANK AND TRUST
COMPANY
By_______________________________
Title:
$10,714,286 THE TOYO TRUST & BANKING CO., LTD.
By_______________________________
Title:
$10,714,286 THE NORTHERN TRUST COMPANY
By_______________________________
Title:
$8,571,428 BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH
By_______________________________
Title:
By_______________________________
Title:
$375,000,000 Total of the Commitments
SCHEDULE I
NEW ENGLAND POWER COMPANY
$375,000,000 364-DAY CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
---------------------- ----------------------- -------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital World Financial Center World Financial Center
Corporation North Tower North Tower
New York, New York New York, New York
10281-1307 10281-1307
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Suisse, First ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 11 Madison Avenue
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BankBoston, N.A. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The First National Bank Chicago One First National Plaza One First National Plaza
Suite 0363 Suite 0363
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of Tokyo-Mitsubishi 1251 Avenue of the 1251 Avenue of the
Trust Company Americas Americas
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet National Bank ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code OF-0320 Mail Code OF-0320
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Citibank, N.A. ▇ ▇▇▇▇'▇ ▇▇▇ ▇ ▇▇▇▇'▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Toronto Dominion (Texas), Inc. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ 909 ▇▇▇▇▇▇, Suite 1700
Houston, TX 77010 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Mellon Bank, N.A. One Mellon Bank Center One Mellon Bank Center
Room 4425 Room 4425
Pittsburgh, PA 15258-0001 ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Fuji Bank Limited, Two World Trade Center Two World Trade Center
New York Branch ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇ New York, N.Y. 10048
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Industrial Bank 1251 Avenue of the ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇ ▇▇▇▇▇ Trust Company Americas Americas
New York, N.Y. 10020-1104 New York, N.Y. 10020-1104
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Tokai Bank, Limited ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 55 East 52nd Street
Park Avenue Plaza Park Avenue Plaza
New York, NY 10055 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Toyo Trust & ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
& Banking Co., Ltd. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
State Street Bank and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Trust Company ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇▇▇ ▇-▇▇ ▇▇ ▇. ▇▇▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇ Attn: ▇▇▇▇ ▇. ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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Bayerische Landesbank ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, Cayman ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇
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SCHEDULE 4.01(f)
LITIGATION
SCHEDULE 4.01(k)
SUBSIDIARIES
SCHEDULE 5.02(a)
EXISTING LIENS
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, NEW ENGLAND POWER COMPANY, a
___________________ corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the
Credit Agreement referred to below) the principal sum of U.S.$ amount of the
Lender's Commitment in figures] or, if less, the aggregate principal amount of
the Advances made by the Lender to the Borrower pursuant to the Credit
Agreement dated as of December 15, 1997 among the Borrower, the Lender and
certain other lenders parties thereto, BankBoston, N.A., as Administrative
Agent for the Lender and such other lenders, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Corporation, as Syndication Agent, and Credit Suisse First Boston, as
Documentation Agent (as amended or modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as therein defined)
outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to _________________________, as Administrative
Agent, at _________________________, _______________, _______________, in same
day funds. Each Advance owing to the Lender by the Borrower pursuant to the
Credit Agreement, and all payments made on account of principal thereof, shall
be recorded by the Lender and, prior to any transfer hereof, endorsed on the
grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Advances by the Lender to
the Borrower from time to time in an aggregate amount not to exceed at any
time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Advance being evidenced
by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified.
NEW ENGLAND POWER COMPANY
By_________________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
---- --------- -------------- ---------- ---------
EXHIBIT B - FORM OF
NOTICE OF BORROWING
BankBoston, N.A., as Administrative
Agent for the Lenders party
to the Credit Agreement
referred to below
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Date
Attention: ____________________
Ladies and Gentlemen:
The undersigned, New England Power Company, refers to the Credit
Agreement, dated as of December 15, 1997 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, the Lender and certain other lenders
parties thereto, BankBoston, N.A., as Administrative Agent for the Lender and
such other lenders, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as Syndication Agent,
and Credit Suisse First Boston, as Documentation Agent, and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in
that connection sets forth below the information relating to such Borrowing
(the "Proposed Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is _______________,
199_.
(ii) The Type of Advances comprising the Proposed Borrowing is Base
Rate Advances Eurodollar Rate Advances.
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is __________ month[s].
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct, before and after giving effect
to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
NEW ENGLAND POWER COMPANY
By__________________________________
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of December 15, 1997
(as amended or modified from time to time, the "Credit Agreement") among New
England Power Company, a Massachusetts corporation (the "Borrower"), the
Lenders (as defined in the Credit Agreement), BankBoston, N.A., as
Administrative Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as Syndication Agent,
and Credit Suisse First Boston, as Documentation Agent. Terms defined in the
Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree
as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the Credit Agreement
as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the
Credit Agreement. After giving effect to such sale and assignment, the
Assignee's Commitment and the amount of the Advances owing to the
Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (a) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection
with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant
thereto; (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower
or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (d) attaches the Note held by
the Assignor and requests that the Administrative Agent exchange such
Note for a new Note payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto or new
Notes payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and the Assignor in
an amount equal to the Commitment retained by the Assignor under the
Credit Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (a) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (b) agrees that it will,
independently and without reliance upon any Agent, the Assignor or any
other Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement; (c) confirms
that it is an Eligible Assignee; (d) appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement as are delegated to such Agent
by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (e) agrees that it will perform in
accordance with their terms all of the obligations that by the terms of
the Credit Agreement are required to be performed by it as a Lender; and
(f) attaches any U.S. Internal Revenue Service forms required under
Section 2.13 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it, and
the fee set forth in Section 8.07(a) of the Credit Agreement, will be
delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof
by the Administrative Agent, unless otherwise specified on Schedule 1
hereto.
5. Upon such acceptance and recording by the Administrative Agent, as
of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its obligations
under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and facility fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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.
Delivery of an executed counterpart of Schedule 1 to this Assignment and
Acceptance by telecopier shall be effective as delivery of a manually
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $_______________
Aggregate outstanding principal amount
of Advances assigned: $_______________
Principal amount of Note payable to
Assignee: $_______________
Principal amount of Note payable to
Assignor: $_______________
Effective Date: _______________, 199_
NAME OF ASSIGNOR, as Assignor
By________________________________
Title:
Dated: _______________, 199_
NAME OF ASSIGNEE, as Assignee
By_______________________________
Title:
Domestic Lending Office:
Address
Eurodollar Lending Office:
Address
Accepted and Approved this
__________ day of _______________, 199_
BankBoston, as Administrative Agent
By_________________________________
Title:
Approved this __________ day
of _______________, 199_
NEW ENGLAND POWER COMPANY
By__________________________
Title:
EXHIBIT D - FORM OF
OPINION OF ASSOCIATE GENERAL COUNSEL
FOR THE BORROWER
TO COME
EXHIBIT F - FORM OF EXTENSION NOTICE
Date
BankBoston, as Administrative Agent and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation,
as Syndication Agent for the Lenders party
to the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _________________
New England Power Company
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of December 15,
1997 (the "Credit Agreement"), among New England Power Company, a
Massachusetts corporation (the "Borrower"), the Lenders (as defined in the
Credit Agreement), BankBoston, N.A., as Administrative Agent for the Lender
and such other lenders, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as Syndication
Agent, and Credit Suisse First Boston, as Documentation Agent. Terms defined
in the Credit Agreement are used herein as therein defined.
Pursuant to Section 2.15(a) of the Credit Agreement, the Lender
named below hereby notifies the Administrative Agent and the Syndication Agent
as follows:
The Lender named below desires to extend the Termination Date with
respect to its Commitment for a period of 364 days.
The Lender named below desires to extend the Termination Date with
respect to its Commitment for a period of 364 days and offers to increase its
Commitment to a maximum aggregate amount of $__________.
The Lender named below does NOT desire to extend the Termination
Date with respect to its Commitment for a period of 364 days.
This notice is subject in all respects to the terms of the Credit
Agreement, is irrevocable and shall be effective only if received by the
Administrative Agent no later than ______________. *
Very truly yours,
NAME OF LENDER
By:______________________________
Name:
Title:
_______________________
* This date shall be no later than 30 days after the date on which the
Administrative Agent provided notice of the proposed extension of the
Termination Date to the Lender.