Exhibit B-5
[EXECUTION VERSION]
CREDIT AGREEMENT
Dated as of November 10, 2003
among
NORTHEAST UTILITIES
as Borrower
THE BANKS NAMED HEREIN
UNION BANK OF CALIFORNIA, N.A.
as Administrative Agent
and
BANK ONE, NA
as Fronting Bank
BARCLAYS CAPITAL and
UNION BANK OF CALIFORNIA, N.A.,
as Joint Lead Arrangers
BARCLAYS BANK PLC
CITIBANK, N.A.
BANK ONE, NA
as Co-Syndication Agents
FLEET NATIONAL BANK
as Documentation Agent
CREDIT AGREEMENT
Dated as of November 10, 2003
THIS CREDIT AGREEMENT is made by and among:
(i) NORTHEAST UTILITIES, an unincorporated voluntary
business association organized under the laws of
the Commonwealth of Massachusetts ("NU" or the
"Borrower");
(ii) The financial institutions (the "Banks") listed on
the signature pages hereof and the other Lenders
(as hereinafter defined) from time to time party
hereto;
(iii) UNION BANK OF CALIFORNIA, N.A. ("Union
Bank"), as Administrative Agent for the Lenders
hereunder; and
(iv) BANK ONE, NA, as Fronting Bank.
PRELIMINARY STATEMENT
The Borrower has requested the Banks and the Fronting Bank to
provide the credit facility hereinafter described in the amounts and
on the terms and conditions set forth herein. The Banks and the
Fronting Bank have so agreed on the terms and conditions set forth
herein, and the Administrative Agent has agreed to act as agent
for the Lenders on such terms and conditions.
Based upon the foregoing and subject to the terms and conditions
set forth in this Agreement, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such
meanings to be applicable to the singular and plural forms of the terms
defined):
"Account Party" has the meaning set forth in Section 2.02(a).
"Administrative Agent" means Union Bank, in its capacity
as administrative agent hereunder, or any successor thereto as
provided herein.
"Advance" means a Contract Advance.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including, but not
limited to, all directors and officers of such Person), controlled
by, or under direct or indirect common control with such Person.
A Person shall be deemed to control another entity if such Person
possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such entity, whether
through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Credit Agreement, as the same may be
modified, amended and/or supplemented pursuant to the terms hereof.
"Applicable Facility Fee Rate" means, for any day, the
percentage per annum set forth below in effect on such day,
determined on the basis of the Applicable Rating Level of
the Borrower:
Applicable Facility Fee Rate
Applicable Rating Level Percentage (%)
Level I 0.100
Level II 0.125
Level III 0.150
Level IV 0.200
Level V 0.500
Any change in the Applicable Facility Fee Rate caused by a
change in the Applicable Rating Level shall take effect at
the time such change in the Applicable Rating Level shall
occur.
"Applicable Lending Office" means, with respect to each
Lender:
(i) in the case of any Contract Advance, (A) such
Lender's "Eurodollar Lending Office" in the case of a
Eurodollar Rate Advance or (B) such Lender's "Domestic
Lending Office" in the case of a Base Rate Advance, in
each case as specified opposite such Lender's name on
Schedule I hereto or in the Lender Assignment pursuant
to which it became a Lender; or
(ii) in each case, such other office of such
Lender as such Lender may from time to time specify in
writing to the Borrower and the Administrative Agent.
"Applicable Margin" means, for any day for any
outstanding Contract Advance, the percentage per annum set
forth below in effect on such day, determined on the basis
of the Applicable Rating Level for the Borrower:
Applicable Margin (Percentage %)
Rating Eurodollar Utilization Base Rate Utilization
Level Rate Margin Advances Margin
Advances for (%) for Base
(%) Eurodollar Rate
Rate Advances
Advances (%)
(%)
Level I 0.600 0.125 0.000 0.125
Level II 0.750 0.125 0.000 0.125
Level III 0.850 0.125 0.000 0.125
Level IV 1.050 0.125 0.050 0.125
Level V 1.500 0.500 0.500 0.500
provided, that (x) the Applicable Margin for Eurodollar Rate
Advances shall be increased by the rate per annum set forth
above under the caption "Utilization Margin for Eurodollar
Rate Advances" that corresponds to the Applicable Rating
Level used to determine such Applicable Margin and (y) the
Applicable Margin for Base Rate Advances shall be increased
by the rate per annum set forth above under the caption
"Utilization Margin for Base Rate Advances" that corresponds
to the Applicable Rating Level used to determine such
Applicable Margin, in any case, during any period in which
the total principal amount of Outstanding Credits is greater
than one-half of the Total Commitment. Any change in the
Applicable Margin caused by a change in the Applicable
Rating Level shall take effect at the time such change in
the Applicable Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance
made to the Borrower, either of (i) the Base Rate from time
to time applicable to such Advance plus the Applicable
Margin, or (ii) the Eurodollar Rate from time to time
applicable to such Advance plus the Applicable Margin.
"Applicable Rating Level" shall be determined at any
time and from time to time on the basis of the ratings
assigned by S&P and ▇▇▇▇▇'▇ to the senior, unsecured, non-
credit enhanced long-term Debt of the Borrower (the "Rated
Debt") in accordance with the following:
Applicable Rating Level
S&P ▇▇▇▇▇'▇
Level I A- or higher A3 or higher
Level II BBB+ Baa1
Level III BBB Baa2
Level IV BBB- Baa3
Level V BB+ or lower Ba1 or lower
In the event that the rating assigned by S&P to the
Rated Debt and the rating assigned by ▇▇▇▇▇'▇ to the Rated
Debt do not correspond to the same Applicable Rating Level,
then the lower of the two ratings shall determine the
Applicable Rating Level. The Applicable Rating Level shall
be redetermined as and when any change in the ratings used
in the determination thereof shall be announced by S&P or
▇▇▇▇▇'▇, as the case may be. If both ▇▇▇▇▇'▇ and S&P shall
cease to issue or maintain a rating on the Rated Debt, then
the Applicable Rating Level shall be Level V.
"Approved Fund" means any Person (other than a natural
person) that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its
business that is administered or managed by (i) a Lender,
(ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a Lender.
"Available Commitment" means, for each Lender, the
excess of such Lender's Commitment over such Lender's
Percentage of the Outstanding Credits. "Available
Commitments" shall refer to the aggregate of the Lenders'
Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the
caption to this Agreement.
"Base Rate" means, for any period, a fluctuating
interest rate per annum as shall be in effect from time to
time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by
the Administrative Agent in its principal place of
business from time to time as the Administrative
Agent's "base rate" or "reference rate";
(b) 1/2 of one percent per annum above the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks, adjusted to the nearest 1/32 of one
percent (the "CD Rate"); and
(c) 1/2 of one percent per annum above the
Federal Funds Rate in effect from time to time.
If the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest
error) that it is unable to ascertain the CD Rate or the
Federal Funds Rate for any reason, including the inability
or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Base
Rate shall be determined without regard to clause (b) of the
first sentence of this definition, in the event the
Administrative Agent is unable to ascertain the CD Rate, and
clause (c) of the first sentence of this definition, in the
event the Administrative Agent is unable to ascertain the
Federal Funds Rate, until the circumstances giving rise to
such inability no longer exist. Any change in the Base Rate
due to a change in the Administrative Agent's base rate, the
CD Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Administrative Agent's
base rate, the CD Rate or the Federal Funds Rate,
respectively.
"Base Rate Advance" means a Contract Advance in respect
of which the Borrower has selected in accordance with
Article III hereof, or this Agreement provides for, interest
to be computed on the basis of the Base Rate.
"Beneficiary" means any Person designated by an Account
Party to whom the Fronting Bank is to make payment, or on
whose order payment is to be made, under a Letter of Credit.
"Borrower" has the meaning assigned to that term in the
caption to this Agreement.
"Borrowing" means a Contract Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City
and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Cash Collateral Account" means an account maintained
at the principal domestic office of the Administrative Agent
for the purpose, and subject to the terms and conditions,
set forth in Section 2.02(h).
"Change of Control" means (a) any Person or "group"
(within the meaning of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended), shall either
(1) acquire beneficial ownership of more than 50% of any
outstanding class of common stock of NU having ordinary
voting power in the election of directors of NU or
(2) obtain the power (whether or not exercised) to elect a
majority of NU's directors or (b) the Board of Directors of
NU shall not consist of a majority of Continuing Directors.
For purposes of this definition, the term "Continuing
Directors" means directors of NU on the Closing Date and
each other director of NU, if such other director's
nomination for election to the Board of Directors of NU is
recommended by a majority of the then Continuing Directors.
"CL&P" means The Connecticut Light and Power Company, a
corporation organized under the laws of the State of
Connecticut.
"Closing Date" has the meaning assigned to that term in
Section 5.01 hereof.
"Commitment" means, for each Lender, the aggregate
amount set forth opposite such Lender's name on the
signature pages hereof or, if such Lender has entered into
one or more Lender Assignments, set forth for such Lender in
the Register maintained by the Administrative Agent pursuant
to Section 10.07(c), in each such case as such amount may be
reduced from time to time pursuant to Section 2.04 hereof.
"Commitments" shall refer to the aggregate of the Lenders'
Commitments hereunder.
"Common Equity" means, at any date for the Borrower, an
amount equal to the sum of the aggregate of the par value
of, or stated capital represented by, the outstanding common
shares of the Borrower and its Subsidiaries and the surplus,
paid-in, earned and other capital, if any, of the Borrower
and its Subsidiaries, in each case as determined on a
consolidated basis in accordance with generally accepted
accounting principles.
"Confidential Information" has the meaning assigned to
that term in Section 10.08 hereof.
"Consolidated Debt" means, at any date for the
Borrower, the total Debt of the Borrower and its
Subsidiaries as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Consolidated EBIT" means, for any period (as
determined on a consolidated basis in accordance with
generally accepted accounting principles), the Borrower's
and its Subsidiaries' net income for such period, adjusted
as follows:
(i) increased by the amount of federal and state income taxes
to the extent deducted in the computation of such
Borrower's and/or its Subsidiaries' consolidated net
income for such period;
(ii) increased by the amount of Consolidated Interest Expense
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iii) increased by the amount of dividends on preferred stock
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iv) decreased (increased) by the gain (loss) on asset sales
done outside the ordinary course of business by the
Borrower and/or its Subsidiaries to the extent such gains
(losses) are not offset by increases (decreases) in
amortization of regulatory assets, and to the extent such
gain (loss) is included in the computation of the
Borrower's and/or its Subsidiaries' consolidated net
income for such period; and
(v) decreased by the amount of revenues accrued by the
Borrower and/or its Subsidiaries related to interest on
Stranded Cost Recovery Obligations of Subsidiaries of
the Borrower, and increased by the amount of operating
expenses accrued by the Borrower and/or its Subsidiaries
related to interest on Stranded Cost Recovery Obligations
of Subsidiaries of the Borrower, in each case to the
extent included in the computation of the Borrower's
and/or its Subsidiaries' consolidated net income for
such period.
"Consolidated Interest Expense" means, for any period,
the aggregate amount of any interest required to be paid
during such period by the Borrower and its Subsidiaries on
Debt (including the current portion thereof) (as determined
on a consolidated basis in accordance with generally
accepted accounting principles), excluding interest required
to be paid on the Stranded Cost Recovery Obligations of any
Subsidiary of the Borrower.
"Contract Advance" means an advance by a Lender to the
Borrower pursuant to Article III hereof, and refers to a
Eurodollar Rate Advance or a Base Rate Advance (each of
which shall be a "Type" of Contract Advance). For purposes
of this Agreement, all Contract Advances of a Lender (or
portions thereof) of the same Type and Interest Period, if
any, made or converted on the same day to the Borrower shall
be deemed to be a single Contract Advance by such Lender
until repaid.
"Contract Borrowing" means a borrowing consisting of
one or more Contract Advances of the same Type and Interest
Period, if any, made to the Borrower on the same Business
Day by the Lenders, ratably in accordance with their
respective Commitments. A Contract Borrowing may be
referred to herein as being a "Type" of Contract Borrowing,
corresponding to the Type of Contract Advances comprising
such Borrowing. For purposes of this Agreement, all
Contract Advances of the same Type and Interest Period, if
any, made or converted on the same day to the Borrower shall
be deemed a single Contract Borrowing hereunder until
repaid.
"Contract Note" means a promissory note of the Borrower
payable to the order of a Lender, in substantially the form
of Exhibit 1.01A hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from
the Contract Advances made by such Lender to the Borrower.
"Date of Issuance" means the date of issuance by the
Fronting Bank of a Letter of Credit under this Agreement.
"Debt" means, for any Person, without duplication,
(i) indebtedness of such Person for borrowed money,
including but not limited to obligations of such Person
evidenced by bonds, debentures, notes or other similar
instruments (excluding Stranded Cost Recovery Obligations
that are non-recourse to such Person), (ii) obligations of
such Person to pay the deferred purchase price of property
or services (excluding any obligation of such Person to
Dominion Resources, Inc. or its successor with respect to
disposition of spent nuclear fuel burned prior to April 3,
1983), (iii) obligations of such Person as lessee under
leases that shall have been or should be, in accordance with
generally accepted accounting principles, recorded as
capital leases, (iv) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness
or obligations of others of the kinds referred to in
clauses (i) through (iii), above, including all Parent
Support Obligations, (v) letters of credit, guaranties and
other forms of credit enhancement issued to support power
sales and trading activities, and (vi) liabilities in
respect of unfunded vested benefits under ERISA Plans.
"Defaulting Lender" has the meaning set forth in
Section 2.02(m).
"Disclosure Documents" means for the Borrower and each
Principal Subsidiary: (i) such Person's Annual Report on
Form 10-K for the fiscal year ended December 31, 2002;
(ii) its Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31 and June 30, 2003; and (iii) the
Information Memorandum.
"Drawing" means a drawing by a Beneficiary under any
Letter of Credit.
"Eligible Assignee" means (i) a Lender, (ii) an
Affiliate of a Lender, (iii) an Approved Fund and (iv) any
other Person (other than a natural person) approved by (A)
the Administrative Agent, (B) in the case of any assignment
of any Commitment, the Fronting Bank, and (C) unless an
Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld
or delayed); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of
the Borrower's Affiliates or Subsidiaries.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person,
any trade or business (whether or not incorporated) that is
a "commonly controlled entity" of such Person within the
meaning of the regulations under Section 414 of the Internal
Revenue Code of 1986, as amended from time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan"
subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than
a ERISA Multiemployer Plan) maintained for employees of the
Borrower or any ERISA Affiliate of the Borrower and covered
by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable
Event described in Section 4043 of ERISA and the regulations
issued thereunder (other than a Reportable Event not subject
to the provision for 30-day notice to the PBGC under such
regulations) with respect to an ERISA Plan or an ERISA
Multiemployer Plan, or (ii) the withdrawal of the Borrower
or any of its ERISA Affiliates from an ERISA Plan or an
ERISA Multiemployer Plan during a plan year in which it was
a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to
terminate an ERISA Plan or an ERISA Multiemployer Plan or
the treatment of an ERISA Plan amendment as a termination or
of an ERISA Multiemployer Plan amendment as a termination
under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or
condition that might constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a
trustee to administer, any ERISA Plan or ERISA Multiemployer
Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the
rates per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London
interbank market at 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period in the
amount of $1,000,000 and for a period equal to such Interest
Period. The Eurodollar Rate for the Interest Period for
each Eurodollar Rate Advance comprising part of the same
Borrowing shall be determined by the Administrative Agent on
the basis of applicable rates furnished to and received by
the Administrative Agent from the Reference Banks two
Business Days before the first day of such Interest Period,
subject, however, to the provisions of Sections 3.05(d) and
4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in
respect of which the Borrower has selected in accordance
with Article III hereof, or this Agreement provides for,
interest to be computed on the basis of the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender or its
subparticipant, for each Interest Period for each Eurodollar
Rate Advance, means the reserve percentage applicable during
such Interest Period (or if more than one such percentage
shall be so applicable, the daily average of such
percentages for those days in such Interest Period during
which any such percentage shall be so applicable) under
Regulation D or other regulations issued from time to time
by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement, without
benefit of or credit for proration, exemptions or offsets)
for such Lender or its subparticipant with respect to
liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such
Interest Period.
"Event of Default" has the meaning specified in
Section 8.01 hereof.
"Existing Credit Facility" means the credit facility
provided under the Credit Agreement, dated as of
November 12, 2002, among NU, the lenders party thereto,
Union Bank, as administrative agent for the lenders
thereunder, and Bank One, NA, as fronting bank thereunder.
"Existing LCs" means letters of credit (i) issued under
the Existing Credit Facility; (ii) outstanding and available
to be drawn as of the Closing Date; and (iii) identified on
Schedule III hereto.
"Expiration Date" means, with respect to a Letter of
Credit, its stated expiration date.
"Extension of Credit" means the making of any Advance
or the issuance or amendment (including, without limitation,
an extension or renewal) of a Letter of Credit.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal to, for each day
during such period, the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by
the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fee Letter" means that certain Fee Letter dated
October 6, 2003 among NU, CL&P, WMECO, Yankee, PSNH,
Barclays Bank PLC, Union Bank, Banc One Capital Markets,
Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and Citibank, N.A.
"FERC" means the Federal Energy Regulatory Commission.
"Financial Statements" means, with respect to the
Borrower and each Principal Subsidiary, (i) the audited
consolidated balance sheet of such Person as at December 31,
2002, (ii) the unaudited consolidated balance sheet of such
Person as at June 30, 2003, (iii) the audited consolidated
statements of income and cash flows of such Person for the
Fiscal Year ended December 31, 2001 and (iv) the unaudited
consolidated statements of income and cash flows of such
Person for the 6-month period ended June 30, 2003, in each
case as included in such Person's Annual Report on Form 10-K
for the Fiscal Year ended December 31, 2002 or Quarterly
Report on Form 10-Q for the Fiscal Quarter ended June 30,
2003.
"First Mortgage Indenture" means, (i) in the case of
CL&P, the Indenture of Mortgage and Deed of Trust, dated as
of May 1, 1921, from CL&P to Deutsche Bank Trust Company
Americas, as successor trustee, as previously and hereafter
amended and supplemented, (ii) in the case of Yankee, the
Indenture of Mortgage and Deed of Trust, dated as of July 1,
1989, between Yankee and The Bank of New York, as successor
trustee, as in effect on the date hereof and as amended and
supplemented from time to time, (iii) in the case of WMECO,
any first mortgage indenture entered into after the date
hereof on substantially the terms of the Old WMECO Indenture
and covering substantially the same collateral, so long as
such indenture and the lien created thereby are approved by
the Massachusetts Department of Telecommunications and
Energy, (iv) in the case of NGC, the Indenture of Mortgage
and Deed of Trust, dated as of October 18, 2001, between NGC
and The Bank of New York, as trustee, as amended and
supplemented from time to time, and (v) in the case of PSNH,
the First Mortgage Indenture, dated as of August 15, 1978,
between PSNH and Wachovia Bank, National Association, as
successor trustee, as previously and hereafter amended and
supplemented.
"Fiscal Quarter" means a period of three calendar
months ending on the last day of March, June, September or
December, as the case may be.
"Fiscal Year" means a period of twelve calendar months
ending on the last day of December.
"Fronting Bank" means Bank One, NA and any other Lender
having a long-term credit rating acceptable to the Borrower
that delivers an instrument in form and substance
satisfactory to the Borrower and the Administrative Agent
whereby such other Lender agrees to act as "Fronting Bank"
hereunder.
"Governmental Approval" means any authorization,
consent, approval, license, permit, certificate, exemption
of, or filing or registration with, any governmental
authority or other legal or regulatory body (including,
without limitation, the Securities and Exchange Commission,
the FERC, the Nuclear Regulatory Commission, the Connecticut
Department of Public Utility Control, the New Hampshire
Public Utilities Commission and the Massachusetts Department
of Telecommunications and Energy) required in connection
with either (i) the execution, delivery or performance of
any Loan Document, or (ii) the nature of the Borrower's or
any Subsidiary's business as conducted or the nature of the
property owned or leased by it.
"Hazardous Substance" means any waste, substance or
material identified as hazardous, dangerous or toxic by any
office, agency, department, commission, board, bureau or
instrumentality of the United States of America or of the
State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that
term in Section 10.04(b) hereof.
"Information Memorandum" means the Confidential
Information Memorandum, dated October, 2003, regarding the
credit facility to be provided to the Borrower hereunder, as
distributed to the Administrative Agent and the Lenders,
including, without limitation, all schedules and attachments
thereto.
"Interest Period" has the meaning assigned to that term
in Section 3.05(a) hereof.
"L/C Commitment Amount" equals $250,000,000, as the
same may be reduced permanently from time to time pursuant
to Section 2.04 hereof.
"Lender Assignment" means an assignment and acceptance
entered into by a Lender and an assignee, and accepted by
the Administrative Agent, in substantially the form of
Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on
the signature pages hereof, and each assignee that shall
become a party hereto pursuant to Section 10.07.
"Letter of Credit" has the meaning set forth in
Section 2.02(a).
"Letter of Credit Request" has the meaning set forth in
Section 2.02(c).
"Lien" means, with respect to any asset or property,
any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset or
property. For the purposes of this Agreement, a Person or
any of its Subsidiaries shall be deemed to own subject to a
Lien any asset that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement
relating to such asset.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means on any date of determination,
Lenders who, collectively, on such date (i) have Percentages
in the aggregate of at least 66-2/3% and (ii) if the
Commitments have been terminated, hold at least 66-2/3% of
the then aggregate Outstanding Credits of the Lenders.
Determination of those Lenders satisfying the criteria
specified above for action by the Majority Lenders shall be
made by the Administrative Agent and shall be conclusive and
binding on all parties absent manifest error.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto.
"NGC" means Northeast Generation Company, a corporation
organized under the laws of the State of Connecticut.
"Note" means a Contract Note, as may be amended,
supplemented or otherwise modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned
to that term in Section 3.01 hereof.
"NU" has the meaning assigned to that term in the
caption to this Agreement.
"NU System Money Pool" means the money pool described
in the application/declaration, as amended, of NU and
certain of its Subsidiaries, filed with the Securities and
Exchange Commission in File No. 70-9755, as amended from
time to time.
"NUSCO" means Northeast Utilities Service Company, a
Connecticut corporation.
"Old WMECO Indenture" means the First Mortgage
Indenture and Deed of Trust dated as of August 1, 1954, from
WMECO to State Street Bank and Trust Company, as successor
trustee, as amended and supplemented.
"Other Taxes" has the meaning assigned to that term in
Section 4.05(b)
"Outstanding Credits" mean, on any date of
determination, an amount equal to (i) the aggregate
principal amount of all Contract Advances outstanding on
such date plus (ii) the aggregate Stated Amount of all
issued but undrawn Letters of Credit outstanding on such
date plus (iii) the aggregate amount of Reimbursement
Obligations outstanding on such date (exclusive of
Reimbursement Obligations that, on such date of
determination, are repaid with the proceeds of a Contract
Advance made in accordance with Section 2.02(g)(ii), to the
extent the principal amount of such Contract Advance is
included in the determination of the aggregate principal
amount of all outstanding Contract Advances as provided in
clause (i) of this definition). The "Outstanding Credits"
of a Lender on any date of determination shall be an amount
equal to the outstanding Advances made by such Lender plus
the amount of such Lender's participatory interest in
outstanding Letters of Credit and Reimbursement Obligations.
"Parent Support Obligation" means, without duplication,
any obligation of the Borrower under direct or indirect
guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness
or obligations of others of the kinds referred to in
clauses (i) through (iii) and (v) of the definition of
"Debt", including any reimbursement obligation in respect of
a letter of credit, any recourse obligation in respect of a
surety or similar bond or other, similar obligation of the
Borrower other than a construction completion or similar
performance guaranty as permitted hereunder issued on behalf
of Select Energy Services, Inc. (formerly known as HEC
Inc.). The amount of each Parent Support Obligation shall
be computed in good faith in accordance with the Borrower's
then applicable ▇▇▇▇-to-market and other risk management
methods.
"Participation Transfer Date" has the meaning assigned
to that term in Section 2.02(m).
"Participation Transfer Period" has the meaning
assigned to that term in Section 2.02(m).
"Payment Date" means the date on which payment of a
Drawing is made by the Fronting Bank.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any
date of determination, the percentage obtained by dividing
such Lender's Commitment on such day by the total of the
Commitments on such day, and multiplying the quotient so
obtained by 100%.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company,
joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any
political subdivision or agency thereof.
"Principal Subsidiary" shall mean CL&P, WMECO, PSNH,
Select Energy, Inc., NGC, Yankee and any other Subsidiary,
whether owned directly or indirectly by the Borrower, which,
with respect to the Borrower and its Subsidiaries taken as a
whole, represents at least ten percent (10%) of the
Borrower's consolidated assets and ten percent (10%) of the
Borrower's consolidated net income (or loss).
"PSNH" means Public Service Company of New Hampshire, a
corporation duly organized under the laws of the State of
New Hampshire.
"PUHCA" means the Public Utility Holding Company Act of
1935, as amended.
"Recipient" has the meaning assigned to that term in
Section 10.08 hereof.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective
directors, officers, employees, agents and advisors of such
Person and such Person's Affiliates.
"Reference Banks" means Union Bank, Barclays Bank PLC
and Bank One, NA, and any other bank or financial
institution designated by the Borrower and the
Administrative Agent with the approval of the Majority
Lenders to act as a Reference Bank hereunder.
"Regulatory Asset" means, with respect to CL&P, PSNH or
WMECO, an intangible asset established by statute,
regulation or regulatory order or similar action of a
utility regulatory agency having jurisdiction over CL&P,
PSNH or WMECO, as the case may be, and included in the rate
base of CL&P, PSNH or WMECO, as the case may be, with the
intention that such asset be amortized by rates over time.
"Reimbursement Obligation" means the absolute and
unconditional obligation of the Borrower to reimburse the
Fronting Bank for any Drawing pursuant to Section 2.02(f).
"S&P" means Standard and Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any
successor thereto.
"Stated Amount" means the maximum amount available to
be drawn by a Beneficiary under a Letter of Credit.
"Stranded Cost Recovery Obligations" means, with
respect to any Person, such Person's obligations to make
principal, interest or other payments to the issuer of
stranded cost recovery bonds pursuant to a loan agreement or
similar arrangement whereby the issuer has loaned the
proceeds of such bonds to such Person.
"Subsidiary" shall mean, with respect to any Person
(the "Parent"), any corporation, association or other
business entity of which securities or other ownership
interests representing 50% or more of the ordinary voting
power are, at the time as of which any determination is
being made, owned or controlled by the Parent or one or more
Subsidiaries of the Parent (whether direct or indirect) or
by the Parent and one or more such Subsidiaries of the
Parent.
"Termination Date" means the earliest to occur of
(i) November 8, 2004, or such later date to which the
Termination Date shall be extended in accordance with
Section 2.05, (ii) the date of termination or reduction in
whole of the Commitments pursuant to Section 2.04 or 8.02 or
(iii) the date of acceleration of all amounts payable
hereunder pursuant to Section 8.02.
"Total Capitalization" means, at any date, the sum of
(i) Consolidated Debt of the Borrower and its Subsidiaries,
(ii) the aggregate of the par value of, or stated capital
represented by, the outstanding shares of all classes of
common and preferred shares of the Borrower and its
Subsidiaries and (iii) the consolidated surplus of the
Borrower and its Subsidiaries, paid-in, earned and other
capital, if any, in each case as determined on a
consolidated basis in accordance with generally accepted
accounting principles consistent with those applied in the
preparation of the Borrower's Financial Statements.
"Total Commitment" means $350,000,000, or such lesser
amount from time to time as shall equal the sum of the
Commitments.
"Transferred Amount" has the meaning assigned to that
term in Section 2.02(m).
"Type" has the meaning assigned to such term (i) in the
definition of "Contract Advance" when used in such context
and (ii) in the definition of "Contract Borrowing" when used
in such context.
"Union Bank" has the meaning assigned to that term in
the caption to this Agreement.
"Unmatured Default" means the occurrence and
continuance of an event that, with the giving of notice or
lapse of time or both, would constitute an Event of Default.
"WMECO" means Western Massachusetts Electric Company, a
corporation organized under the laws of the Commonwealth of
Massachusetts.
"Yankee" means Yankee Gas Services Company, a
corporation duly organized under the laws of the State of
Connecticut.
SECTION 1.02. Computation of Time Periods. In the computation
of periods of time under this Agreement, any period of a specified
number of days or months shall be computed by including the first day
or month occurring during such period and excluding the last such day
or month. In the case of a period of time "from" a specified date "to"
or "until" a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms; Financial Statements. All
accounting terms not specifically defined herein shall be construed
in accordance with generally accepted accounting principles
applied on a basis consistent with the application employed in
the preparation of the Financial Statements. All references contained
herein to the Borrower's or a Principal Subsidiary's Annual Report on
Form 10-K in respect of a Fiscal Year or Quarterly Report on Form 10-Q
in respect of a Fiscal Quarter shall be deemed to include any exhibits
and schedules thereto, including without limitation in the case of any
Annual Report on Form 10-K, any "Annual Report" of the Borrower or such
Principal Subsidiary referred to therein.
SECTION 1.04. Computations of Outstandings. Whenever
reference is made in this Agreement to the principal amount of
Outstanding Credits under this Agreement on any date, such reference
shall refer to the aggregate principal amount of all Outstanding
Credits on such date after giving effect to (i) all Extensions of
Credit to be made on such date and the application of the proceeds
thereof and (ii) any repayment or prepayment of Advances, and any
payment of Reimbursement Obligations, on such date by the Borrower.
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments.
(a) Each Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances to the Borrower from time to
time on any Business Day during the period from the Closing Date until
the Termination Date, in an aggregate amount not to exceed on any
day such Lender's Available Commitment. Within thelimits of such
Lender's Available Commitment, the Borrower may request Advances
hereunder, repay or prepay Advances and utilize the resulting increase
in the Available Commitments for further Advances in accordance with the
terms hereof.
(b) In no event shall the Borrower be entitled to request or
receive any Advance under subsection (a) that would cause the aggregate
principal amount advanced pursuant thereto to exceedthe Available
Commitments. In no event shall the Borrower be entitled to request or
receive any Advance that would cause the total principal amount of all
Outstanding Credits to exceed the Total Commitment.
SECTION 2.02. Letters of Credit
(a) Agreement of Fronting Bank. Subject to the terms and
conditions of this Agreement, the Fronting Bank agrees to issue
and amend (including, without limitation, to extend or renew) for
the account of the Borrower or any Subsidiary thereof (each such
Person, an "Account Party") one or more standby letters of credit
(individually, a "Letter of Credit" and collectively, the "Letters
of Credit") from and including the Closing Date to the Termination
Date, up to a maximum aggregate Stated Amount at any one time
outstanding equal to the L/C Commitment Amount minus Reimbursement
Obligations outstanding at such time, each having an Expiration Date
on or prior to 364 days after the Date of Issuance of such Letter of
Credit; provided, however, that the Fronting Bank will not issue or
amend a Letter of Credit if, immediately following such issuance or
amendment, (i) the Stated Amount of such Letter of Credit would (A)
exceed the Available Commitments or (B) when aggregated with (1) the
Stated Amounts of all other outstanding Letters of Credit and (2) the
outstanding Reimbursement Obligations, exceed the L/C Commitment Amount,
or (ii) the total principal amount of all Outstanding Credits would
exceed the Total Commitment.
(b) Forms. Each Letter of Credit shall be in a form
customarily used by the Fronting Bank or in such other form as has been
approved by the Fronting Bank. At the time of issuance or amendment,
subject to the terms and conditions of this Agreement, the amount
and the terms and conditions of each Letter of Credit shall be subject
to approval by the Fronting Bank and the Borrower.
(c) Notice of Issuance; Application. The Borrower shall give
the Fronting Bank and the Administrative Agent written notice (or
telephonic notice confirmed in writing) at least three Business Days
prior to the requested Date of Issuance of a Letter of Credit, such
notice to be in substantially the form of Exhibit 2.02 hereto (a "Letter
of Credit Request"). The Borrower shall also execute and deliver such
customary letter of credit application forms as requested from time to
time by the Fronting Bank. Such application forms shall indicate the
identity of the Account Party and that the Borrower is the "Applicant"
or shall otherwise indicate that the Borrower is the obligor in respect
of any Letter of Credit to be issued thereunder. If the terms or
conditions of the application forms conflict with any provision
of this Agreement, the terms of this Agreement shall govern.
(d) Issuance. Provided the Borrower has given the notice
prescribed by Section 2.02(c) and subject to the other terms and
conditions of this Agreement, including the satisfaction of the
applicable conditions precedent set forth in Article V, the
Fronting Bank shall issue the requested Letter of Credit on the
requested Date of Issuance as set forth in the applicable Letter
of Credit Request for the benefit of the stipulated Beneficiary
and shall deliver the original of such Letter of Credit to the
Beneficiary at the address specified in the notice. At the
request of the Borrower, the Fronting Bank shall deliver a copy
of each Letter of Credit to the Borrower within a reasonable time
after the Date of Issuance thereof. Upon the request of the
Borrower, the Fronting Bank shall deliver to the Borrower a copy
of any Letter of Credit proposed to be issued hereunder prior to
the issuance thereof. The Administrative Agent shall promptly
notify each Lender of its pro rata share of each issued Letter of
Credit and the Expiration Date thereof.
(e) Notice of Drawing. The Fronting Bank shall promptly
notify the Borrower by telephone, facsimile or other telecommunication
of any Drawing under a Letter of Credit.
(f) Payments. The Borrower hereby agrees to pay to the
Fronting Bank, in the manner provided in subsection (g) below:
(i) on each Payment Date, an amount equal to the amount
paid by the Fronting Bank under any Letter of Credit; and
(ii) if any Drawing shall be reimbursed to the Fronting
Bank after 12:00 noon (New York time) on the Payment Date,
interest on any and all amounts required to be paid pursuant
to clause (i) of this subsection (f) from and after the due
date thereof until payment in full, payable on demand, at an
annual rate of interest equal to 2.00% above the
Administrative Agent's base rate as in effect from time to
time.
(g) Method of Reimbursement. The Borrower shall reimburse
the Fronting Bank for each Drawing under any Letter of Credit
pursuant to subsection (f) above in the following manner:
(i) the Borrower shall immediately reimburse the
Fronting Bank in the manner described in Section 4.01; or
(ii) if (A) the Borrower has not reimbursed the Fronting
Bank pursuant to clause (i) above, (B) the applicable
conditions to the making of a Contract Advance set forth in
Articles II, III and V have been fulfilled, and (C) the
Available Commitments in effect at such time exceed the amount
of the Drawing to be reimbursed, the Borrower may reimburse
the Fronting Bank for such Drawing with the proceeds of a Base
Rate Advance or, if the conditions specified in the foregoing
clauses (A), (B) and (C) have been satisfied and a Notice of
Contract Borrowing requesting a Eurodollar Rate Advance has
been given in accordance with Section 3.01 three Business Days
prior to the relevant Payment Date, with the proceeds of a
Eurodollar Rate Advance.
(h) Expiration or Maturity Date of Letters of Credit; Cash
Collateral Requirement. If the Termination Date is scheduled to
occur prior to the Expiration Date of any Letter of Credit
outstanding hereunder, the Borrower shall, no later than the
Termination Date (after giving effect to any extension thereof
pursuant to Section 2.05), deposit cash in immediately available
funds in the Cash Collateral Account in an amount equal to the
Stated Amount of such Letter of Credit. If a Drawing pursuant to
such Letter of Credit occurs on or prior to the Expiration Date
of such Letter of Credit, the Borrower authorizes the Fronting
Bank to use the monies deposited in the Cash Collateral Account
to make a payment to the Beneficiary with respect to such
Drawing. If no Drawing occurs on or prior to the Expiration Date
of such Letter of Credit, the Fronting Bank shall promptly return
to the Borrower the balance on deposit in the Cash Collateral
Account with respect to such outstanding Letter of Credit. The
Borrower hereby collaterally assigns, and grants to the Fronting
Bank, for the pro-rata benefit of the Fronting Bank and the
Lenders, a security interest in, all funds held in the Cash
Collateral Account from time to time and proceeds thereof, as
security for the payment of all amounts due and to become due
from the Borrower to the Fronting Bank under this Agreement. The
Cash Collateral Account shall be in the name of the Borrower for
the benefit of the Fronting Bank and the Lenders as a cash
collateral account, but the Fronting Bank shall have sole
dominion and control over, and sole access to, the Cash
Collateral Account. Neither the Borrower nor any Person claiming
on behalf of or through the Borrower shall have any right to
withdraw any of the funds held in the Cash Collateral Account.
The Borrower agrees that it will not (i) sell or otherwise
dispose of any interest in the Cash Collateral Account or any
funds held therein, or (ii) create or permit to exist any Lien
upon or with respect to the Cash Collateral Account or any funds
held therein. The Fronting Bank shall exercise reasonable care
in the custody and preservation of any funds held in the Cash
Collateral Account and shall be deemed to have exercised such
care if such funds are accorded treatment substantially
equivalent to that which the Fronting Bank accords other funds
deposited with the Fronting Bank in like accounts, it being
understood that the Fronting Bank shall not have any
responsibility for taking any necessary steps to preserve rights
against any parties with respect to any funds held in the Cash
Collateral Account.
At the direction of the Borrower, provided, that no Unmatured Default
or Event of Default shall have occurred and be continuing, the Fronting
Bank shall invest funds on deposit in the Cash Collateral Account in
certificates of deposit, other bank deposits of the Fronting Bank, or
other high-quality short-term debt instruments, in each case at such
rates and for such periods as the Borrower and the Fronting Bank shall
agree. The Borrower shall bear all risks and costs associated with
such investments and the liquidation thereof and shall make additional
deposits in the Cash Collateral Account to the extent necessary to
ensure that the amounts on deposit therein at all times equal or
exceed the amounts required to be deposited therein pursuant to this
subsection (h). Upon the payment in full of all amounts due hereunder
and the expiration or termination of all Letters of Credit, the Fronting
Bank shall pay to the Borrower the proceeds of any investments remaining
in the Cash Collateral Account.
If, at any time following payment to the Lenders of any amounts owing
or to become owing in respect thereof, the Borrower's reimbursement
and other obligations under or in respect of any Letter of Credit shall
be transferred to another credit facility in a manner satisfactory to
the Fronting Bank in its sole and absolute discretion with the result
that such Letter of Credit is deemed issued under such other credit
facility, such Letter of Credit shall no longer be deemed to be a
"Letter of Credit" for purposes of, and shall no longer be deemed to be
outstanding under, this Agreement.
If at any time there shall be more than one Fronting Bank, then
separate Cash Collateral Accounts shall be maintained by the Borrower
with each such Fronting Bank in respect of the Letters of Credit issued
by such Fronting Bank, and the provisions of this subsection (h) shall
apply with equal force to each such Cash Collateral Account.
Nothing in this subsection (h) shall limit or otherwise affect the
participatory interests of the Lenders in the outstanding Letters of
Credit.
(i) Nature of Fronting Bank's Duties. In determining whether to
honor any Drawing under any Letter of Credit, the Fronting Bank shall be
responsible only to determine that the documents and certificates required
to be delivered under that Letter of Credit have been delivered and that
they comply on their face with the requirements of that Letter of
Credit. The Borrower otherwise assumes all risks of the acts and
omissions of, or misuse of the Letters of Credit issued by the Fronting
Bank by, the respective Beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, but consistent with
applicable law, the Fronting Bank shall not be responsible (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effects of
any document submitted by any party in connection with the
application for and issuance of any drawing honored under a
Letter of Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate, fraudulent or
forged; (ii) for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any
such Letter of Credit, or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for errors,
omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex, facsimile or
otherwise, whether or not they be in cipher; (iv) for errors in
interpretation of technical terms; (v) for any loss or delay in
the transmission or otherwise of any document required in order
to make a drawing under any such Letter of Credit, or the
proceeds thereof; (vi) for the misapplication by the Beneficiary
of any such Letter of Credit or of the proceeds of any drawing
honored under such Letter of Credit; and (vii) for any
consequences arising from causes beyond the control of the
Fronting Bank. None of the above shall affect, impair or prevent
the vesting of any of the Fronting Bank's rights or powers
hereunder. Not in limitation of the foregoing, any action taken
or omitted to be taken by the Fronting Bank under or in
connection with any Letter of Credit, whether in determining to
honor any Drawing under any Letter of Credit or otherwise, shall
not create against the Fronting Bank any liability to the
Borrower or any Lender, except for actions or omissions resulting
from the gross negligence or willful misconduct of the Fronting
Bank or any of its agents or representatives.
(j) Obligations of Borrower Absolute. The obligation of the
Borrower to reimburse the Fronting Bank for Drawings honored under the
Letters of Credit issued by it shall be unconditional and irrevocable
and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of any Letter
of Credit;
(ii) the existence of any claim, set-off, defense or
other right that the Borrower, any Account Party or any
Affiliate of the Borrower or any Account Party may have at any
time against a Beneficiary or any transferee of any Letter of
Credit (or any Persons or entities for whom any such
Beneficiary or transferee may be acting), the Fronting Bank or
any other Person, whether in connection with this Agreement,
the transactions contemplated herein or any unrelated
transaction;
(iii) any draft, demand, certificate or any other
documents presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Loan Documents;
(v) any non-application or misapplication by the
Beneficiary of the proceeds of any Drawing under a Letter of
Credit; or
(vi) the fact that an Unmatured Default or Event of
Default shall have occurred and be continuing.
No payment made under this Section shall be deemed to be a waiver of any
claim the Borrower may have against the Fronting Bank or any other
Person.
(k) Participations by Lenders. By the issuance of a Letter of
Credit and without any further action on the part of the Fronting
Bank or any Lender in respect thereof, the Fronting Bank shall
hereby be deemed to have granted to each Lender, and each Lender
shall hereby be deemed to have acquired from the Fronting Bank,
an undivided interest and participation in such Letter of Credit
(including any letter of credit issued by the Fronting Bank in
substitution or exchange for such Letter of Credit pursuant to
the terms thereof) equal to such Lender's Percentage of the
Stated Amount of such Letter of Credit, effective upon the
issuance of such Letter of Credit. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Fronting Bank, in accordance
with this subsection (k), such Lender's Percentage of each
payment made by the Fronting Bank in respect of an unreimbursed
Drawing under a Letter of Credit. The Fronting Bank shall notify
the Administrative Agent of the amount of such unreimbursed
Drawing honored by it not later than (x) 12:00 noon (New York
time) on the date of payment of a draft under a Letter of Credit,
if such payment is made at or prior to 11:00 a.m. (New York time)
on such day, and (y) the close of business (New York time) on the
date of payment of a draft under a Letter of Credit, if such
payment is made after 11:00 a.m. (New York time) on such day, and
the Administrative Agent shall notify each Lender of the date and
amount of such unreimbursed Drawing under such Letter of Credit
honored by the Fronting Bank and the amount of such Lender's
Percentage therein no later than (1) 1:00 p.m. (New York time) on
such day, if such payment is made at or prior to 11:00 a.m. (New
York time) on such day, and (2) 11:00 a.m. (New York time) on the
next following Business Day, if such payment is made after 11:00
a.m. (New York time) on such day. Not later than 2:00 p.m. (New
York time) on the date of receipt of a notice of an unreimbursed
Drawing by a Lender, such Lender agrees to pay to the Fronting
Bank an amount equal to the product of (A) such Lender's
Percentage and (B) the amount of the payment made by the Fronting
Bank in respect of such unreimbursed Drawing.
If payment of the amount due pursuant to the preceding
sentence from a Lender is received by the Fronting Bank
after the close of business on the date it is due, such
Lender agrees to pay to the Fronting Bank, in addition to
(and along with) its payment of the amount due pursuant to
the preceding sentence, interest on such amount at a rate
per annum equal to (i) for the period from and including the
date such payment is due to but excluding the second
succeeding Business Day, the Federal Funds Rate, and (ii)
for the period from and including the second Business Day
succeeding the date such payment is due to but excluding the
date on which such amount is paid in full, the Federal Funds
Rate plus 2.00%.
(l) Obligations of Lenders Absolute. Each Lender acknowledges
and agrees that (i) its obligation to acquire a participation in
the Fronting Bank's liability in respect of the Letters of Credit
and (ii) its obligation to make the payments specified herein,
and the right of the Fronting Bank to receive the same, in the
manner specified herein, are absolute and unconditional and shall
not be affected by any circumstances whatsoever, including,
without limitation, (A) the occurrence and continuance of any
Event of Default or any Unmatured Default; (B) any other breach
or default by the Borrower, the Administrative Agent or any
Lender hereunder; (C) any lack of validity or enforceability of
any Letter of Credit or this Agreement; (D) the existence of any
claim, setoff, defense or other right that the Lender may have at
any time against the Borrower, any other Account Party, any
Beneficiary, the Fronting Bank or any other Lender; (E) the
existence of any claim, setoff, defense or other right that the
Borrower may have at any time against any Beneficiary, the
Fronting Bank, the Administrative Agent, any Lender or any other
Person, whether in connection with this Agreement or any other
documents contemplated hereby or any unrelated transactions; (F)
any amendment or waiver of, or consent to any departure from, all
or any of the Letters of Credit or this Agreement; (G) any
statement or any document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in
any respect; (H) payment by the Fronting Bank under any Letter of
Credit against presentation of a draft or certificate that does
not comply with the terms of such Letter of Credit, so long as
such payment is not the consequence of the Fronting Bank's gross
negligence or willful misconduct in determining whether documents
presented under a Letter of Credit comply with the terms thereof;
(I) the occurrence of the Termination Date; or (J) any other
circumstance or happening whatsoever, whether or not similar to
any of the foregoing. Nothing herein shall prevent the assertion
by any Lender of a claim by separate suit or compulsory
counterclaim, nor shall any payment made by a Lender under
Section 2.02 hereof be deemed to be a waiver of any claim that a
Lender may have against the Fronting Bank or any other Person.
(m) Proceeds of Reimbursements. Upon receipt of a payment
from the Borrower pursuant to subsection (f) hereof, the Fronting Bank
shall promptly transfer to each Lender such Lender's pro rata
share (determined in accordance with such Lender's Percentage) of
such payment based on such Lender's pro rata share (determined as
aforesaid) of amounts previously paid pursuant to subsection (k),
above, and not previously transferred by the Fronting Bank
pursuant to this subsection (m); provided, however, that if a
Lender shall fail to pay to the Fronting Bank any amount required
by subsection (k) above by the close of business on the Business
Day following the date on which such payment was due from such
Lender, and the Borrower shall not have reimbursed the Fronting
Bank for such amount pursuant to subsection (g) hereof (such
unreimbursed amount being hereinafter referred to as a
"Transferred Amount"), the Fronting Bank shall be deemed to have
purchased, on such following Business Day (a "Participation
Transfer Date") from such Lender (a "Defaulting Lender"), a
participation in such Transferred Amount and shall be entitled,
for the period from and including the Participation Transfer Date
to the earlier of (i) the date on which the Borrower shall have
reimbursed the Fronting Bank for such Transferred Amount and (ii)
the date on which such Lender shall have reimbursed the Fronting
Bank for such Transferred Amount (the "Participation Transfer
Period"), to the rights, privileges and obligations of a "Lender"
under this Agreement with respect to such Transferred Amount, and
such Defaulting Lender shall not be deemed to be a Lender
hereunder, and shall not have any rights or interests of a Lender
hereunder, with respect to such Transferred Amount, and its
Percentage shall be reduced accordingly with the amount by which
such Percentage is reduced deemed held by the Fronting Bank
during the Participation Transfer Period; and provided further,
however, that if, at any time after the occurrence of a
Participation Transfer Date with respect to any Lender and prior
to the reimbursement by such Lender of the Fronting Bank with
respect to the related Transferred Amount pursuant to subsection
(k) above, the Fronting Bank shall receive any payment from the
Borrower pursuant to subsection (f) hereof, the Fronting Bank
shall not be obligated to pay any amounts to such Lender, and the
Fronting Bank shall retain such amounts (including, without
limitation, interest payments due from the Borrower pursuant to
subsection (f) hereof) for its own account as a Lender, provided
that all such amounts shall be applied in satisfaction of the
unpaid amounts (including, without limitation, interest payments
due from such Lender pursuant to subsection (k), above) due from
such Lender with respect to such Transferred Amount.
If at any time after the occurrence of a Participation
Transfer Date with respect to any Lender, the Administrative
Agent shall receive any payment from the Borrower for the
account of such Lender pursuant to this Agreement, if at the
time of receipt of such amounts by the Administrative Agent
such Lender shall not have reimbursed the Fronting Bank with
respect to the related Transferred Amount pursuant to
subsection (k) above, the Administrative Agent shall not pay
any such amounts to such Lender but shall pay all such
amounts to the Fronting Bank and the Fronting Bank shall
retain such amounts for its own account as a Lender and
apply such amounts in satisfaction of the unpaid amounts
(including, without limitation, interest payments due from
such Lender pursuant to subsection (k) above) due from such
Lender with respect to such Transferred Amount.
All payments due to the Lenders from the Fronting Bank
pursuant to this subsection (m) shall be made to the Lenders
if, as, and, to the extent possible, when the Fronting Bank
receives payments in respect of Drawings under the Letters
of Credit pursuant to subsection (f) hereof, and in the
same funds in which such amounts are received; provided that
if any Lender to whom the Fronting Bank is required to transfer any
such payment (or any portion thereof) pursuant to this subsection
(m) does not receive such payment (or portion thereof) prior to (i)
the close of business on the Business Day on which the Fronting Bank
received such payment from the Borrower, if the Fronting Bank
received such payment prior to 1:00 p.m. (New York time) on such day,
or (ii) 1:00 p.m. (New York time) on the Business Day next
succeeding the Business Day on which the Fronting Bank
received such payment from the Borrower, if the Fronting
Bank received such payment after 1:00 p.m. (New York time)
on such day, the Fronting Bank agrees to pay to such Lender,
along with its payment of the portion of such payment due to
such Lender, interest on such amount at a rate per annum
equal to (1) for the period from and including the Business
Day when such payment was required to be made to the Lenders
to but excluding the second succeeding Business Day, the
Federal Funds Rate and (ii) for the period from and including
the second Business Day succeeding the Business Day when such
payment was required to be made to the Lenders to but excluding the
date on which such amount is paid in full, the Federal Funds Rate plus
2.00%. The provisions of this subsection (m) shall not affect or
impair any of the obligations under this Agreement of any Defaulting
Lender to the Fronting Bank, all of which shall remain unaffected by
any default in payment by the Fronting Bank to such Defaulting Lender.
If, in connection with any case or other proceeding seeking
liquidation, reorganization or other relief with respect to
the Borrower or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect, or if for
any other reason whatsoever, the Fronting Bank shall be required to
return to the Borrower or to a trustee, receiver, liquidator, custodian
or other similar official all or any portion of any payments to the
Lenders pursuant to this subsection (m) or interest thereon (a
"Returned Payment"), each Lender shall, upon demand of the Fronting
Bank, forthwith return to the Fronting Bank any amounts transferred
to such Lender by the Fronting Bank in respect thereof pursuant to
this subsection (m) plus such Lender's pro rata share (determined in
accordance with such Lender's Percentage) of interest (if any) that
the Fronting Bank is required to pay to such trustee, receiver, liquidator,
custodian or other similar official with respect to any Returned Payment.
(n) Concerning the Fronting Bank. The Fronting Bank will
exercise and give the same care and attention to the Letters of
Credit as it gives to its other letters of credit and similar
obligations, and each Lender agrees that the Fronting Bank's sole
liability to each Lender shall be (i) to distribute promptly, as
and when received by the Fronting Bank, and in accordance with
the provisions of subsection (m) above, such Lender's pro rata
share (determined in accordance with such Lender's Percentage) of
any payments to the Fronting Bank by the Borrower pursuant to
subsection (g) above in respect of Drawings under the Letters of
Credit, (ii) to exercise or refrain from exercising any right or
to take or to refrain from taking any action under this Agreement
or any Letter of Credit as may be directed in writing by the
Majority Lenders (or, when expressly required by the terms of
this Agreement, all of the Lenders) or the Administrative Agent
acting at the direction and on behalf of the Majority Lenders
(or, when expressly required by the terms of this Agreement, all
of the Lenders), except to the extent required by the terms
hereof or thereof or by applicable law, and (iii) as otherwise
expressly set forth in this Section 2.02. The Fronting Bank
shall not be liable for any action taken or omitted at the
request or with approval of the Majority Lenders (or, when
expressly required by the terms of this Agreement, all of the
Lenders) or of the Administrative Agent acting on behalf of the
Majority Lenders (or, when expressly required by the terms of
this Agreement, all of the Lenders) or for the nonperformance of
the obligations of any other party under this Agreement, any
Letter of Credit or any other document contemplated hereby or
thereby. Without in any way limiting any of the foregoing, the
Fronting Bank may rely upon the advice of counsel concerning
legal matters and upon any written communication or any telephone
conversation that it believes to be genuine or to have been
signed, sent or made by the proper Person and shall not be
required to make any inquiry concerning the performance by the
Borrower, any Beneficiary or any other Person of any of their
respective obligations and liabilities under or in respect of
this Agreement, any Letter of Credit or any other documents
contemplated hereby or thereby. The Fronting Bank shall not have
any obligation to make any claim, or assert any Lien, upon any
property held by the Fronting Bank or assert any offset
thereagainst in satisfaction of all or any part of the obligations of
the Borrower hereunder; provided that the Fronting Bank shall, if so
directed by the Majority Lenders or the Administrative Agent acting on
behalf of and with the consent of the Majority Lenders, have an
obligation to make a claim, or assert a Lien, upon property held by the
Fronting Bank in connection with this Agreement, or assert an offset
thereagainst.
The Fronting Bank may accept deposits from, make loans or otherwise
extend credit to, and generally engage in any kind of banking or
trust business with the Borrower or any of its Affiliates, or any other
Person, and receive payment on such loans or extensions of credit and
otherwise act with respect thereto freely and without accountability
in the same manner as if this Agreement and the transactions
contemplated hereby were not in effect.
The Fronting Bank makes no representation or warranty, and shall
have no responsibility, with respect to: (i) the genuineness, legality,
validity, binding effect or enforceability of this Agreement or any
other documents contemplated hereby; (ii) the truthfulness, accuracy or
performance of any of the representations, warranties or agreements
contained in this Agreement or any other documents contemplated hereby;
(iii) the collectibility of any amounts due under this Agreement; (iv)
the financial condition of the Borrower or any other Person; or (v)
any act or omission of any Beneficiary with respect to its use of any
Letter of Credit or the proceeds of any Drawing under any Letter of
Credit.
(o) Indemnification of Fronting Bank by Lenders. To the
extent that the Fronting Bank is not reimbursed and indemnified by the
Borrower under Section 10.04 hereof, each Lender agrees to reimburse and
indemnify the Fronting Bank on demand, pro rata in accordance with such
Lender's Percentage, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by or asserted against the Fronting Bank,
in any way relating to or arising out of this Agreement, any Letter of
Credit or any other document contemplated hereby or thereby, or any
action taken or omitted by the Fronting Bank under or in connection with
this Agreement, any Letter of Credit or any other document contemplated
hereby or thereby; provided, however, that such Lender shall not be
liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Fronting Bank's gross negligence or
willful misconduct; and provided further, however, that such Lender
shall not be liable to the Fronting Bank or any other Lender for the
failure of the Borrower to reimburse the Fronting Bank for any drawing
made under a Letter of Credit with respect to which such Lender has
paid the Fronting Bank such Lender's pro rata share (determined in
accordance with such Lender's Percentage), or for the Borrower's
failure to pay interest thereon. Each Lender's obligations under this
subsection (o) shall survive the payment in full of all amounts payable
by such Lender under subsection (k), above, and the termination of this
Agreement and the Letters of Credit. Nothing in this subsection (o) is
intended to limit any Lender's reimbursement obligation contained in
subsection (k), above.
(p) Representations of Lenders. As between the Fronting Bank
and the Lenders, by its execution and delivery of this Agreement
each Lender hereby represents and warrants solely to the Fronting
Bank that (i) it is duly organized and validly existing in good
standing under the laws of the jurisdiction of its formation, and
has full corporate power, authority and legal right to execute,
deliver and perform its obligations to the Fronting Bank under
this Agreement; and (ii) this Agreement constitutes its legal,
valid and binding obligation enforceable against it in accordance
with the terms hereof, except as such enforceability may be
limited by applicable bank organization, moratorium,
conservatorship or other laws now or hereafter in effect
affecting the enforcement of creditors rights in general and the
rights of creditors of banks, and except as such enforceability
may be limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(q) Multiple Fronting Banks. If there shall be more than
one Fronting Bank holding Outstanding Credits at any time hereunder,
each such Fronting Bank shall, with respect to the Letters of
Credit issued by it and the Reimbursement Obligations owing to
it, be regarded hereunder as the "Fronting Bank" and shall have
all the rights, interests, protections and obligations of the
"Fronting Bank" hereunder with respect to such Letters of Credit
and Reimbursement Obligations and all matters relating thereto.
Whenever any action may be, or is required to be, taken by the
Fronting Bank hereunder, each Fronting Bank may, or shall, take
such action only in respect of the Letters of Credit issued by it
and the Reimbursement Obligations owing to it. Whenever the
consent of the Fronting Bank is required hereunder with respect
to any proposed action, the consent of each Fronting Bank holding
Outstanding Credits shall be required for such proposed action to
be taken. Any notice to be provided to the Fronting Bank shall
be provided to each Fronting Bank holding Outstanding Credits,
and each such Fronting Bank shall have the right to request any
information, and take any other action, as the Fronting Bank is
permitted to do hereunder. If at any time no Letters of Credit
and no Reimbursement Obligations are outstanding, then Bank One,
NA, in its capacity as Fronting Bank, shall have the sole right
and/or obligation to take any action or issue any consent that
the Fronting Bank may, or is required to, take or issue
hereunder. The protections accorded the Fronting Bank hereunder
shall inure to the benefit of each Fronting Bank holding
Outstanding Credits from time to time hereunder, regardless of
whether the same are outstanding at the time as the benefits of
such protections are asserted.
(r) Existing Letters of Credit. The Borrower hereby
acknowledges and agrees that each of the Existing LCs shall, from
and after the Closing Date, be deemed to be a "Letter of Credit"
issued under this Agreement for the account of the Borrower, and
the reimbursement obligations in respect of any drawing made by
the beneficiary with respect to any Existing LC shall, from and
after the Closing Date, constitute "Reimbursement Obligations" of
the Borrower under this Agreement, and the Outstanding Credits
shall be increased, and the Available Commitments shall be
decreased, by an amount equal to the stated amounts of the
Existing LCs upon the Closing Date. Each of the Lenders
acknowledges and consents to the terms of this subsection (r).
SECTION 2.03. Fees.
(a) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee (the "Facility Fee") on
the amount of such Lender's Commitment (whether used or unused) at the
Applicable Facility Fee Rate, from the date of this Agreement, in the
case of each Bank, and from the effective date specified in the Lender
Assignment pursuant to which it became a Lender, in the case of each
other Lender, until the Termination Date. The Facility Fee payable
by the Borrower shall be calculated and accrued daily and shall be
payable quarterly in arrears on the last day of each December, March,
June and September, commencing the first such date following the Closing
Date, with final payment payable on the Termination Date.
(b) The Borrower further agrees to pay the fees specified in
the Fee Letter (including the "Fronting Fee" referred to therein)
that are for its account to the parties entitled thereto, together with
such other fees as may be separately agreed to by the Borrower and the
other parties thereto or their respective Affiliates.
(c) The Borrower shall pay to the Administrative Agent, for
the account of the Lenders, a fee in an amount equal to the then
Applicable Margin for outstanding Eurodollar Advances multiplied by the
Stated Amount of each Letter of Credit, in each case for the number of
days that such Letter of Credit is issued but undrawn, payable quarterly
in arrears on the last day of each December, March, June and September,
commencing the first such date following the Closing Date, with final
payment payable on the Termination Date.
SECTION 2.04. Reduction of the Commitments. The Borrower may,
at any time, by providing at least three Business Days' prior
written notice to the Administrative Agent, terminate in whole or
reduce in part the Commitments on a pro rata basis with respect
to each Lender; provided, that any such partial reduction shall
be in a minimum aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof; provided, further, that
the Commitments may not be reduced to an amount that is less
than the aggregate Stated Amount of outstanding Letters of
Credit. Each such notice of termination or reduction shall be
irrevocable. Subject to the foregoing, any reduction of the
Commitments to an amount that is lower than the L/C Commitment
Amount shall result in a reduction of the L/C Commitment Amount
to the extent of such deficit.
SECTION 2.05. Extension of the Termination Date. Unless the
Termination Date shall have previously occurred in accordance
with its terms, at least 45 days but not more than 60 days before
the Termination Date, as then in effect, the Borrower may, by
notice to the Administrative Agent (any such notice being
irrevocable), request the Administrative Agent, the Fronting Bank
and the Lenders to extend the Termination Date for a period of
364 days. If the Borrower shall make such request, the Administrative
Agent shall promptly inform the Fronting Bank and the Lenders thereof
and, no later than 30 days prior to the Termination Date as then in
effect, the Administrative Agent shall notify the Borrower in writing
if the Fronting Bank and the Lenders consent to such request and the
conditions of such consent (including conditions relating to legal
documentation and evidence of the obtaining of all necessary
governmental approvals). The granting of any such consent shall be in
the sole and absolute discretion of the Fronting Bank and each Lender,
and, if the Fronting Bank or any Lender shall not so notify the
Administrative Agent or, if the Administrative Agent shall not so notify
the Borrower, such lack of notification shall be deemed to be a
determination not to consent to such request. No such extension shall
occur unless the Fronting Bank and all of the Lenders consent in writing
thereto (or, in the case of the Lenders, if less than all the Lenders
consent thereto, unless one or more other existing Lenders, or one or
more other banks and financial institutions acceptable to the Borrower
and the Administrative Agent, agree to assume all of the Commitments of
the non-consenting Lenders).
ARTICLE III
CONTRACT ADVANCES
SECTION 3.01. Contract Advances. More than one Contract
Borrowing may be made on the same Business Day. Each Contract
Borrowing shall consist of Contract Advances of the same Type and
Interest Period made to the Borrower on the same Business Day by
the Lenders ratably according to their respective Commitments.
Each Contract Borrowing shall be made on notice in substantially
the form of Exhibit 3.01 hereto (a "Notice of Contract Borrowing"),
delivered by the Borrower to the Administrative Agent, by hand or
facsimile, not later than 11:00 a.m. (New York City time) (i) in the
case of Eurodollar Rate Advances, on the third Business Day prior to
the date of the proposed Borrowing and (ii) in the case of Base Rate
Advances, on the day of the proposed Borrowing. Upon receipt of a
Notice of Contract Borrowing, the Administrative Agent shall notify the
Lenders thereof promptly on the day so received. Each Notice of
Contract Borrowing shall specify therein: (i) the requested (A) date
of such Borrowing, (B) principal amount and Type of Advances comprising
such Borrowing and (C) initial Interest Period for such Advances; and
(ii) the aggregate amount of Outstanding Credits on such date after
giving effect to such proposed Borrowing. Each proposed Borrowing shall
be subject to the satisfaction of the conditions precedent thereto as
set forth in Article V hereof.
SECTION 3.02. Terms Relating to the Making of Contract
Advances.
(a) Notwithstanding anything in Section 3.01 above to the
contrary:
(i) at no time shall more than twelve different Contract
Borrowings be outstanding hereunder;
(ii) each Contract Borrowing hereunder that is to be
comprised of Base Rate Advances shall be in an aggregate
principal amount of not less than $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, or such lesser
amount as shall be equal to the total amount of the Available
Commitments on such date, after giving effect to all other
Contract Borrowings to be made to, or repaid or prepaid by,
the Borrower on such date; and
(iii) each Contract Borrowing hereunder that is to be
comprised of Eurodollar Rate Advances shall be in an
aggregate principal amount of not less than $5,000,000 or an
increment of $1,000,000 in excess thereof.
(b) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower.
SECTION 3.03. Making of Advances.
(a) Each Lender shall, before 1:00 p.m. (New York City time)
on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's address referred to in Section 10.02, in
same day funds, such Lender's portion of such Borrowing.
Contract Advances shall be made by the Lenders ratably in
accordance with their several Commitments. After the
Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article V, the Administrative
Agent will make such funds available to the Borrower at the
Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the time of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's
ratable portion of such Borrowing, the Administrative Agent may
assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance
with subsection (a) of this Section 3.03, and the Administrative
Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount on such date. If and to the
extent that any such Lender (a "non-performing Lender") shall not
have so made such ratable portion available to the Administrative
Agent, the non-performing Lender and the Borrower severally agree
to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, the interest rate applicable at
the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. Nothing herein
shall in any way limit, waive or otherwise reduce any claims that
any party hereto may have against any non-performing Lender.
(c) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Advance on the date
of such Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by
such other Lender on the date of any Borrowing.
SECTION 3.04. Repayment of Advances; Contract Notes.
(a) The Borrower shall repay the principal amount of each
Advance made to it hereunder on the Termination Date.
(b) Any Lender may request that the Contract Advances made by
it be evidenced by a Contract Note. Promptly upon receipt of such
request, the Borrower shall prepare, execute and deliver to such
Lender (or, if requested by such Lender, to such Lender and its
assignees) a Contract Note. Thereafter, the Contract Advances
evidenced by such Contract Note and interest thereon shall at all
times (including after assignment pursuant to Section 10.07) be
represented by one or more Contract Notes payable to the order of
the payee named therein.
SECTION 3.05. Interest.
(a) Interest Periods.
(i) The period commencing on the date of each Advance
and ending on the last day of the period selected by the
Borrower with respect to such Advance pursuant to the
provisions of this Section 3.05 is referred to herein as an
"Interest Period". The duration of each Interest Period shall
be (i) in the case of any Eurodollar Rate Advance, one, two or
three months and (ii) in the case of any Base Rate Advance, the
period of time beginning on the date of the making of, or the
conversion of an outstanding Advance into, such Advance and
ending on the last day of March, June, September or December
next following the date on which such Advance was made;
provided, however, that no Interest Period may be selected by
the Borrower if such Interest Period would end after the
Termination Date.
(ii) Subject to the terms and conditions of this
Agreement, the initial Interest Period for any Advance made to
the Borrower shall be determined by the Borrower as set forth
in its Notice of Contract Borrowing with respect to such
Advance. The Borrower may elect to continue or convert one
or more Advances of any Type and having the same Interest
Period to one or more Advances of the same or any other Type
and having the same or a different Interest Period on the
following terms and subject to the following conditions:
(A) Each continuation or conversion shall be made
as to all Advances comprising a single Borrowing upon
written notice given by the Borrower to the
Administrative Agent not later than 11:00 a.m. (New York
City time) on the third Business Day prior to the date
of the proposed continuation of or conversion, in the
case of a continuation or conversion to a Eurodollar Rate
Advance, or on the day of the proposed continuation of or
conversion to a Base Rate Advance. The Administrative
Agent shall notify each Lender of the contents of such
notice promptly after receipt thereof. Each such notice
shall specify therein the following information: (1) the
date of such proposed continuation or conversion (which
in the case of Eurodollar Rate Advances shall be the last
day of the Interest Period then applicable to such
Advances to be continued or converted), (2) the Type of,
and Interest Period applicable to, the Advances proposed
to be continued or converted, (3) the aggregate
principal amount of Advances proposed to be continued or
converted, and (4) the Type of Advances to which such
Advances are proposed to be continued or converted and
the Interest Period to be applicable thereto.
(B) During the continuance of an Unmatured
Default, the right of the Borrower to continue or convert
Advances to Eurodollar Rate Advances shall be suspended,
and all Eurodollar Rate Advances then outstanding shall be
converted to Base Rate Advances on the last day of the
Interest Period then in effect, if, on such day,
an Unmatured Default shall be continuing.
(C) During the continuance of an Event of Default,
the right of the Borrower to continue or convert Advances
to Eurodollar Rate Advances shall be suspended, and upon
the occurrence of an Event of Default, all Eurodollar
Rate Advances then outstanding shall immediately, without
further act by the Borrower, be converted to Base Rate
Advances.
(D) If no notice of continuation or conversion is
received by the Administrative Agent as provided in
paragraph (A), above, with respect to any outstanding
Advances on or before the third Business Day prior to
the last day of the Interest Period then in effect for
such Advances, the Administrative Agent shall treat
such absence of notice as a deemed notice of continuation
or conversion providing for such Advances to be continued
as or converted to Base Rate Advances with an Interest
Period of three months commencing on the last day of such
Interest Period.
(b) Interest Rates. The Borrower shall pay interest on the
unpaid principal amount of each Advance owing by the Borrower from the
date of such Advance until such principal amount shall be paid in full,
at the Applicable Rate for such Advance (except as otherwise provided in
this subsection (b)), payable as follows:
(i) Eurodollar Rate Advances. If such Advance is a
Eurodollar Rate Advance, interest thereon shall be payable on
the last day of the Interest Period applicable thereto and on
the Termination Date; provided that during the continuance of
any Event of Default, such Advance shall bear interest at a
rate per annum equal at all times to 2% per annum above the
Applicable Rate for such Advance for such Interest Period,
or, if higher, the Applicable Margin plus 2.0% per annum
above the Applicable Rate in effect from time to time for
Base Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate
Advance, interest thereon shall be payable quarterly on the
last day of each March, June, September and December, on the
date such Base Rate Advance shall be paid in full and on the
Termination Date; provided that during the continuance of any
Event of Default, such Advance shall bear interest at a rate
per annum equal at all times to 2% per annum above the
Applicable Rate for such Advance for such Interest Period.
(c) Other Amounts. Except as otherwise provided in Section
2.02(f)(ii), any other amounts payable hereunder that are not
paid when due shall (to the fullest extent permitted by law) bear
interest, from the date when due until paid in full, at a rate
per annum equal at all times to 2.0% per annum above the
Applicable Rate in effect from time to time for Base Rate
Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent
shall give prompt notice to the Borrower and the Lenders of the
Applicable Rate determined from time to time by the
Administrative Agent for each Contract Advance. Each Reference
Bank agrees to furnish to the Administrative Agent timely
information for the purpose of determining the Eurodollar Rate
for any Interest Period. If any one Reference Bank shall not
furnish such timely information, the Administrative Agent shall
determine such interest rate on the basis of the timely
information furnished by the other two Reference Banks.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations.
(a) The Borrower shall make each payment hereunder not later
than 12:00 noon (New York City time) on the day when due in U.S.
Dollars to the Administrative Agent or, with respect to payments
made in respect of Reimbursement Obligations, the Fronting Bank,
at its address referred to in Section 10.02 hereof, in same day
funds. The Administrative Agent or the Fronting Bank, as the
case may be, will promptly thereafter cause to be distributed
like funds relating to the payment of principal, interest, fees
or other amounts payable to the Lenders, to the respective
Lenders to whom the same are payable, for the account of their
respective Applicable Lending Offices, in each case to be applied
in accordance with the terms of this Agreement. Upon its
acceptance of a Lender Assignment and recording of the information
contained therein in the Register pursuant to Section 10.07, from and
after the effective date specified in such Lender Assignment, the
Administrative Agent or the Fronting Bank, as the case may be, shall
make all payments hereunder in respect of the interest assigned thereby
to the Lender assignee thereunder, and the parties to such Lender
Assignment shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes the Administrative Agent,
the Fronting Bank and each Lender, if and to the extent payment owed
to the Administrative, the Fronting Bank Agent or such Lender, as the
case may be, is not made when due hereunder, to charge from time to time
against any or all of the Borrower's accounts with the Administrative
Agent, the Fronting Bank or such Lender, as the case may be, any amount
so due.
(c) All computations of interest based on the Base Rate
(except when determined on the basis of the Federal Funds Rate) shall be
made on the basis of a year of 365 or 366 days, as the case may be.
All computations of interest and other amounts payable pursuant to
Section 4.03 shall be made by the Lender claiming such interest or other
amount on the basis of a year of 360 days. All other computations of
interest, including computations of interest based on the Eurodollar
Rate, the Base Rate (when and if determined on the basis of the Federal
Funds Rate), and all computations of fees and other amounts payable
hereunder, shall be made on the basis of a year of 360 days. In each
such case, such computation shall be made for the actual number of
days (including the first day but excluding the last day) occurring in
the period for which such interest, fees or other amounts are payable.
Each such determination by the Administrative Agent, the Fronting Bank
or a Lender shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment under any Loan Document shall be
stated to be due, or the last day of an Interest Period hereunder shall
be stated to occur, on a day other than a Business Day, such payment
shall be made, and the last day of such Interest Period shall occur,
on the next succeeding Business Day, and such extension of time shall
in such case be included in the computation of payment of interest and
fees hereunder; provided, however, that if such extension would cause
payment of interest on, or principal of, Eurodollar Rate Advances to be
made, or the last day of an Interest Period for a Eurodollar Rate
Advance to occur, in the next following calendar month, such payment
shall be made on the next preceding Business Day and such reduction of
time shall in such case be included in the computation of payment
of interest hereunder.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Lenders hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to
be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Administrative Agent, such
Lender shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Lender, together with interest thereon, for
each day from the date such amount is distributed to such Lender
until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02. Prepayments.
(a) The Borrower shall not have any right to prepay any Contract
Advances except in accordance with subsections (b) and (c),
below.
(b) The Borrower may, (i) in the case of Eurodollar Rate
Advances, upon at least three Business Day's written notice to
the Administrative Agent (such notice being irrevocable) and
(ii) in the case of Base Rate Advances, upon notice not later
than 11:00 a.m. on the date of the proposed prepayment to the
Administrative Agent (such notice being irrevocable), stating the
proposed date and aggregate principal amount of the prepayment,
and if such notice is given, the Borrower shall, prepay Contract
Advances comprising part of the same Borrowing, in whole or
ratably in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid and any amounts
owing in connection therewith pursuant to Section 4.03(d);
provided, however, that each partial prepayment shall be in an
aggregate principal amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof.
(c) If at any time, the aggregate principal amount of
Outstanding Credits shall exceed the Total Commitment, the
Borrower shall forthwith prepay so much of the outstanding
Advances, and/or pay to the Administrative Agent an amount in
immediately available funds (which funds shall be held as
collateral pursuant to arrangements satisfactory to the
Administrative Agent) equal to so much of the amount available
for drawing under the Letters of Credit outstanding at such time,
as shall result in the amount of Outstanding Credits minus the
amount of funds so held as collateral being less than or equal to
the Total Commitment at such time. All prepayments pursuant to
this subsection (c) shall be effected from outstanding Contract
Advances comprising part of the same Borrowing or Borrowings and
shall be accompanied by payment of accrued interest to the date
of such prepayment on the principal amount prepaid and any
amounts owing in connection therewith pursuant to Section
4.03(d).
SECTION 4.03. Yield Protection.
(a) Change in Circumstances. Notwithstanding any other
provision herein, if after the date hereof, the adoption of or any
change in applicable law or regulation or in the interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof (whether or not having the
force of law) shall (i) change the basis of taxation of payments to the
Fronting Bank or any Lender of the principal of or interest on any
Eurodollar Rate Advance made by such Lender or any fees or other amounts
payable hereunder (other than changes in respect of taxes imposed on the
overall net income of the Fronting Bank or such Lender, or its
Applicable Lending Office, by the jurisdiction in which the
Fronting Bank or such Lender has its principal office or in which
such Applicable Lending Office is located or by any political
subdivision or taxing authority therein), or (ii) shall impose,
modify or deem applicable any reserve, special deposit or similar
requirement against letters of credit (or participatory interests
therein) issued by, commitments or assets of, deposits with or
for the account of, or credit extended by, the Fronting Bank or
such Lender, or (iii) shall impose on the Fronting Bank or such
Lender any other condition affecting this Agreement, the Letters
of Credit or participatory interests therein or Eurodollar Rate
Advances, and the result of any of the foregoing shall be (A) to
increase the cost to the Fronting Bank or such Lender of issuing,
maintaining or participating in this Agreement or the Letter of
Credit or of agreeing to make, making or maintaining any Advance
or (B) to reduce the amount of any sum received or receivable by
the Fronting Bank or such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to the
Fronting Bank or such Lender, upon demand, such additional amount
or amounts as will compensate the Fronting Bank or such Lender
for such additional costs incurred or reduction suffered.
(b) Capital. If the Fronting Bank or any Lender shall have
determined that any change after the date hereof in any law,
rule, regulation or guideline adopted pursuant to or arising out
of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards", or the
adoption after the date hereof of any law, rule, regulation or
guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of
the foregoing by any governmental authority, central bank or
comparable agency charged with the interpretation or
administration thereof, or compliance by the Fronting Bank or any
Lender (or any Applicable Lending Office of the Fronting Bank or
such Lender), or any holding company of any such entity, with any
request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect (i) of reducing
the rate of return on such entity's capital or on the capital of
such entity's holding company, if any, as a consequence of this
Agreement, the Letters of Credit or such entity's participatory
interest therein, any Commitment hereunder or the portion of the
Advances made by such entity pursuant hereto to a level below
that which such entity or such entity's holding company could
have achieved, but for such applicability, adoption, change or
compliance (taking into consideration such entity's policies and
the policies of such entity's holding company with respect to
capital adequacy), or (ii) of increasing or otherwise determining
the amount of capital required or expected to be maintained by
such entity or such entity's holding company based upon the
existence of this Agreement, the Letters of Credit or such
entity's participatory interest therein, any Commitment
hereunder, the portion of the Advances made by such entity
pursuant hereto and other similar such credits, participations,
commitments, agreements or assets, then from time to time the
Borrower shall pay to the Fronting Bank or such Lender, upon
demand, such additional amount or amounts as will compensate such
entity or such entity's holding company for any such reduction or
allocable capital cost suffered.
(c) Eurodollar Reserves. The Borrower shall pay to each
Lender upon demand, so long as such Lender shall be required under
regulations of the Board of Governors of the Federal Reserve
System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender to the Borrower, from the date of such
Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the
Eurodollar Reserve Percentage of such Lender for such Interest
Period. Such additional interest shall be determined by such
Lender and notified to the Borrower and the Administrative Agent.
(d) Breakage Indemnity. The Borrower shall indemnify each
Lender against any loss, cost or reasonable expense that such
Lender may sustain or incur as a consequence of (i) any failure
by the Borrower to fulfill on the date of any Borrowing or
conversion of Advances hereunder the applicable conditions
precedent set forth in Articles III and V, (ii) any failure by
the Borrower to borrow any, or convert any outstanding Advance
into a, Eurodollar Rate Advance hereunder after a Notice of
Contract Borrowing has been delivered pursuant to Section 3.01
hereof or after delivery of a notice of conversion pursuant to
Section 3.05(a)(ii) hereof, (iii) any payment, prepayment or
conversion of a Eurodollar Rate Advance required or permitted by
any other provision of this Agreement or otherwise made or deemed
made on a date other than the last day of the Interest Period
applicable thereto, (iv) any default in payment or prepayment of
the principal amount of any Eurodollar Rate Advance made to the
Borrower or any part thereof or interest accrued thereon, as and
when due and payable (at the due date thereof, by irrevocable
notice of prepayment or otherwise) or (v) the occurrence of any
Event of Default, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Advance or any part thereof
as a Eurodollar Rate Advance. Such loss, cost or reasonable
expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of
obtaining the funds for the Eurodollar Rate Advance being paid,
prepaid, converted or not borrowed for the period from the date
of such payment, prepayment, conversion or failure to borrow to
the last day of the Interest Period for such Advance (or, in the
case of a failure to borrow, the Interest Period for such Advance
that would have commenced on the date of such failure) over
(B) the amount of interest (as reasonably determined by such
Lender) that would be realized by such Lender in reemploying the
funds so paid, prepaid, converted or not borrowed for such period
or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that in the case of any
Eurodollar Rate Advance, each Lender shall have funded each such
Advance with a fixed-rate instrument bearing the rates and
maturities designated in the determination of the Applicable Rate
for such Advance.
(e) Notices. A certificate of the Fronting Bank or any
Lender setting forth such entity's claim for compensation hereunder
and the amount necessary to compensate such entity or its holding
company pursuant to subsections (a) through (d) of this
Section 4.03 shall be submitted to the Borrower and the
Administrative Agent and shall be conclusive and binding for all
purposes, absent manifest error. The Borrower shall pay the
Fronting Bank or such Lender directly the amount shown as due on
any such certificate within 10 days after its receipt of the
same. The failure of any entity to provide such notice or to
make demand for payment under this Section 4.03 shall not
constitute a waiver of such entity's rights hereunder; provided
that such entity shall not be entitled to demand payment pursuant
to subsections (a) through (d) of this Section 4.03 in respect of
any loss, cost, expense, reduction or reserve, if such demand is
made more than one year following the later of such entity's
incurrence or sufferance thereof or such entity's actual
knowledge of the event giving rise to such entity's rights
pursuant to such subsections. The Fronting Bank and each Lender
shall use reasonable efforts to ensure the accuracy and validity
of any claim made by it hereunder, but the foregoing shall not
obligate any such entity to assert any possible invalidity or
inapplicability of the law, rule, regulation, guideline or other
change or condition that shall have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other provision
herein, if the adoption of or any change in any law or regulation
or in the interpretation or administration thereof by any
governmental authority charged with the administration or
interpretation thereof shall make it unlawful for any Lender to
make or maintain any Eurodollar Rate Advance or to give effect to
its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrower
and the Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Lender hereunder, whereupon the
right of the Borrower to select Eurodollar Rate Advances for
any Borrowing or conversion shall be forthwith suspended until
such Lender shall withdraw such notice as provided herein
below or shall cease to be a Lender hereunder pursuant to
Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate
Advances be converted to Base Rate Advances, in which event
all Eurodollar Rate Advances shall be automatically converted
to Base Rate Advances as of the effective date of such notice
as provided herein below.
Upon receipt of any such notice, the Administrative Agent
shall promptly notify the other Lenders. Promptly upon becoming
aware that the circumstances that caused such Lender to deliver
such notice no longer exist, such Lender shall deliver notice
thereof to the Borrower and the Administrative Agent withdrawing
such prior notice (but the failure to do so shall impose no
liability upon such Lender). Promptly upon receipt of such
withdrawing notice from such Lender (or upon such Lender
assigning all of its Commitments, Advances, participation and
other rights and obligations under the Loan Documents in
accordance with Section 10.07(g)), the Administrative Agent shall
deliver notice thereof to the Borrower and the Lenders and such
suspension shall terminate. Prior to any Lender giving notice to
the Borrower under this subsection (f), such Lender shall use
reasonable efforts to change the jurisdiction of its Applicable
Lending Office, if such change would avoid such unlawfulness and
would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender. Any notice to the Borrower by
any Lender shall be effective as to each Eurodollar Rate Advance
on the last day of the Interest Period currently applicable to
such Eurodollar Rate Advance; provided that if such notice shall
state that the maintenance of such Advance until such last day
would be unlawful, such notice shall be effective on the date of
receipt by the Borrower and the Administrative Agent.
(g) Market Rate Disruptions. If (i) fewer than two
Reference Banks furnish timely information to the Administrative Agent
for determining the Eurodollar Rate for Eurodollar Rate Advances in
connection with any proposed Borrowing or (ii) if the Majority
Lenders shall notify the Administrative Agent that the Eurodollar
Rate will not adequately reflect the cost to such Majority
Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances, the right of the Borrower to select or
receive Eurodollar Rate Advances for any Borrowing shall be
forthwith suspended until the Administrative Agent shall notify
the Borrower and the Lenders that the circumstances causing such
suspension no longer exist, and until such notification from the
Administrative Agent, each requested Borrowing of Eurodollar Rate
Advances hereunder shall be deemed to be a request for Base Rate
Advances.
(h) Rights of Participants. Any participant in a Lender's
interests hereunder may assert any claim for yield protection
under Section 4.03 that it could have asserted if it were a
Lender hereunder. If such a claim is asserted by any such
participant, it shall be entitled to receive such compensation
from the Borrower as a Lender would receive in like
circumstances; provided, however, that with respect to any such
claim, the Borrower shall have no greater liability to the Lender
and its participant, in the aggregate, than it would have had to
the Lender alone had no such participation interest been created.
SECTION 4.04. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the
exercise of any right of banker's lien, set-off or counterclaim,
or otherwise, but excluding any proceeds received by assignments
or sales of participation in accordance with Section 10.07 hereof
to a Person that is not an Affiliate of the Borrower) on account
of the Advances and LC Outstandings owing to it (other than
pursuant to Section 4.03 hereof) in excess of its ratable share
of payments on account of the Advances and LC Outstandings
obtained by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participation in the Advances owing
to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase
from each Lender shall be rescinded and such Lender shall repay
to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 4.04 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of
such participation. Notwithstanding the foregoing, if any Lender
shall obtain any such excess payment involuntarily, such Lender
may, in lieu of purchasing participation from the other Lenders
in accordance with this Section 4.04, on the date of receipt of
such excess payment, return such excess payment to the
Administrative Agent for distribution in accordance with
Section 4.01(a).
SECTION 4.05. Taxes.
(a) All payments by or on behalf of the Borrower under any
Loan Document shall be made in accordance with Section 4.01, free and
clear of and without deduction for all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each
Lender, the Fronting Bank and the Administrative Agent, taxes
imposed on its overall net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Lender, the
Fronting Bank or the Administrative Agent (as the case may be) is
organized or any political subdivision thereof and, in the case
of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable under any Loan Document to any Lender, the Fronting Bank
or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 4.05) such Lender, the Fronting Bank
or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
by the Borrower under any Loan Document or from the execution,
delivery or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "Other Taxes").
(c) The Borrower hereby indemnifies each Lender, the Fronting
Bank and the Administrative Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes and any
Other Taxes imposed by any jurisdiction on amounts payable under
this Section 4.05) paid by such Lender, the Fronting Bank or the
Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. A claim for such
indemnification shall be set forth in a certificate of such
Lender, the Fronting Bank or the Administrative Agent (as the
case may be) setting forth in reasonable detail the amount
necessary to indemnify such Person pursuant to this
subsection (c) and shall be submitted to the Borrower and the
Administrative Agent and shall be conclusive and binding for all
purposes, absent manifest error. The Borrower shall pay such
Lender, the Fronting Bank or the Administrative Agent (as the
case may be) directly the amount shown as due on any such
certificate within 30 days after the receipt of same. If any
Taxes or Other Taxes for which a Lender, the Fronting Bank or the
Administrative Agent has received payments from the Borrower
hereunder shall be finally determined to have been incorrectly or
illegally asserted and are refunded to such Lender, the Fronting
Bank or the Administrative Agent, such Lender, the Fronting Bank
or the Administrative Agent, as the case may be, shall promptly
forward to the Borrower any such refunded amount. The
Borrower's, the Administrative Agent's, the Fronting Bank's and
each Lender's obligations under this Section 4.05 shall survive
the payment in full of the Outstanding Credits.
(d) Within 30 days after the date of any payment of Taxes,
the Borrower will furnish to the Administrative Agent, at its address
referred to in Section 10.02, the original or a certified copy of
a receipt evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of
the United States of America or any state thereof shall, on or prior
to the date it becomes a Lender hereunder, deliver to the
Borrower and the Administrative Agent such certificates,
documents or other evidence, as required by the Internal Revenue
Code of 1986, as amended from time to time (the "Code"), or
treasury regulations issued pursuant thereto, including Internal
Revenue Service Form W-8BEN or Form W-8ECI and any other
certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any
subsequent version thereof, properly completed and duly executed
by such Lender establishing that it is (i) not subject to
withholding under the Code or (ii) totally exempt from United
States of America tax under a provision of an applicable tax
treaty. Each Lender shall promptly notify the Borrower and the
Administrative Agent of any change in its Applicable Lending
Office and shall deliver to the Borrower and the Administrative
Agent together with such notice such certificates, documents or
other evidence referred to in the immediately preceding sentence.
Each Lender will use good faith efforts to apprise the Borrower
and the Administrative Agent as promptly as practicable of any
impending change in its tax status that would give rise to any
obligation by the Borrower to pay any additional amounts pursuant
to this Section 4.05. Unless the Borrower and the Administrative
Agent have received forms or other documents satisfactory to them
indicating that payments under the Loan Documents are not subject
to United States of America withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the
Borrower or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate in the case of
payments to or for any Lender organized under the laws of a
jurisdiction outside the United States of America. Each Lender
represents and warrants that each such form supplied by it to the
Administrative Agent and the Borrower pursuant to this
Section 4.05, and not superseded by another form supplied by it,
is or will be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable
pursuant to this Section 4.05 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate
or document requested by the Borrower or to change the
jurisdiction of its Applicable Lending Office if the making of
such a filing or change would avoid the need for or reduce the
amount of any such additional amounts that may thereafter accrue
and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The
obligations of the Fronting Bank and the Lenders to make
Extensions of Credit hereunder shall not become effective until
the date (the "Closing Date") on which each of the following
conditions is satisfied:
(a) The Administrative Agent shall have received on or before
the Closing Date the following, each dated the Closing Date, in
form and substance satisfactory to the Administrative Agent and
in sufficient copies for the Fronting Bank and each Lender:
(i) Counterparts of this Agreement, duly executed by the
Borrower.
(ii) A certificate of the Secretary or Assistant
Secretary of the Borrower certifying:
(A) the names and true signatures of the officers
of the Borrower authorized to sign the Loan Documents;
(B) that attached thereto are true and correct
copies of: (1) the Declaration of Trust of the
Borrower, together with all amendments thereto, as
in effect on such date; (2) the resolutions of
the Borrower's Board of Trustees approving the
execution, delivery and performance by the Borrower of
the Loan Documents; (3) all documents evidencing other
necessary corporate or other similar action, if any,
with respect to the execution, delivery and performance
of the Loan Documents by the Borrower; and (4) true and
correct copies of all Governmental Approvals
referred to in clause (i) of the definition of
"Governmental Approval" required to be obtained by the
Borrower in connection with the execution,
delivery and performance by the Borrower of the Loan
Documents (including the order of the Securities and
Exchange Commission); and
(C) that the resolutions referred to in the
foregoing clause (B)(2) have not been modified, revoked or
rescinded and are infull force and effect on such date.
(iii) A certificate signed by the Treasurer or Assistant
Treasurer of the Borrower, certifying as to:
(A) the delivery to the Fronting Bank and each of
the Lenders, prior to the Closing Date, of true, correct
and complete copies (other than exhibits thereto) of all
of the Disclosure Documents; and
(B) the absence of any material adverse change in
the business, condition (financial or otherwise),
operations, properties or prospects of the Borrower or
the Borrower and its Principal Subsidiaries, taken as a
whole, since June 30, 2003, except as disclosed in the
Disclosure Documents.
(iv) A certificate of a duly authorized officer of the
Borrower stating that (i) the representations and warranties of the
Borrower contained in Section 6.01 are correct, in all material
respects, on and as of the Closing Date before and after giving
effect to any Extensions of Credit to be made on such date and
the application of the proceeds thereof, and (ii) no event has
occurred and is continuing that constitutes an Event of Default
or Unmatured Default, or would result from such initial
Extensions of Credit or the application of the proceeds thereof.
(v) Such financial, business and other information
regarding the Borrower and its Principal Subsidiaries, as the Fronting
Bank or any Lender shall have reasonably requested.
(vi) Favorable opinions of:
(A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel
of NUSCO, in substantially the form of Exhibit 5.01A
hereto, and of such other counsel as relied upon
therein; and as to such other matters as the Fronting
Bank or any Lender may reasonably request; and
(B) King & Spalding LLP, special New York counsel
to the Administrative Agent, in substantially the form of
Exhibit 5.01B hereto and as to such other matters as the
Fronting Bank or any Lender may reasonably request.
(b) The commitments or commitment under the Existing Credit
Facility shall have been terminated or expired pursuant to the
terms thereof and all amounts outstanding thereunder shall have
been (or will have been, upon the first Advance and the
application of the proceeds thereof on the Closing Date) paid in
full.
(c) All fees and other amounts payable pursuant to Section
2.03 hereof or pursuant to the Fee Letter shall have been paid (to the
extent then due and payable).
(d) The Administrative Agent shall have received such other
approvals, opinions and documents as the Fronting Bank or the
Majority Lenders, through the Administrative Agent, shall have
reasonably requested as to the legality, validity, binding effect
or enforceability of this Agreement or the financial condition,
operations, properties or prospects of the Borrower and its
Principal Subsidiaries.
SECTION 5.02. Conditions Precedent to All Extensions of
Credit. The obligation of the Fronting Bank or any Lender to make any
Extension of Credit, including the initial Extension of Credit,
shall be subject to the conditions precedent that, on the date of
such Extension of Credit and after giving effect thereto:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Contract Borrowing or Letter
of Credit Request with respect to such Extension of Credit and
the acceptance of the proceeds of such Extension of Credit by the
Borrower or the acceptance of a Letter of Credit by the
Beneficiary thereof, as the case may be, shall constitute a
representation and warranty by the Borrower that on the date of
such Extension of Credit such statements are true):
(i) the representations and warranties of the Borrower
contained in Section 6.01 of this Agreement are correct, in
all material respects, on and as of the date of such Extension
of Credit, before and after giving effect to such Extension of
Credit and to the application of the proceeds therefrom, as
though made on and as of such date;
(ii) no Event of Default or Unmatured Default has
occurred and is continuing on or as of the date of such
Extension of Credit or would result from such Extension of
Credit or from the application of the proceeds thereof;
(iii) the making of such Extension of Credit, when
aggregated with all other Outstanding Credits, would not
cause the aggregate amount of Outstanding Credits to exceed
the Total Commitment; and
(iv) if such Extension of Credit is the issuance of a
Letter of Credit, the Stated Amount thereof, when
aggregated with (A) the Stated Amount of each other Letter
of Credit that is outstanding or with respect to which a
Letter of Credit Request has been received and (B) the
outstanding Reimbursement Obligations, would not cause the L/C
Commitment Amount to be exceeded; and
(b) the Borrower shall have furnished to the Administrative
Agent such other approvals, opinions or documents as the Fronting
Bank or any Lender may reasonably request through the Administrative
Agent as to the legality, validity, binding effect or enforceability
of any Loan Document.
SECTION 5.03. Reliance on Certificates. The Fronting Bank, the
Lenders and the Administrative Agent shall be entitled to rely
conclusively upon the certificates delivered from time to time by
officers of the Borrower as to the names, incumbency, authority
and signatures of the respective persons named therein until such
time as the Administrative Agent may receive a replacement
certificate, in form acceptable to the Administrative Agent, from
an officer of the Borrower identified to the Administrative Agent
as having authority to deliver such certificate, setting forth
the names and true signatures of the officers and other
representatives of the Borrower thereafter authorized to act on
behalf of the Borrower and, in all cases, the Fronting Bank, the
Lenders and the Administrative Agent may rely on the information
set forth in any such certificate.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a voluntary association organized under a
Declaration of Trust, and each of its Principal Subsidiaries is a
corporation, in each case duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
organization, has the requisite corporate power (or in the case
of the Borrower, power under its Declaration of Trust) and
authority to own its property and assets and to carry on its
business as now conducted and is qualified to do business in
every jurisdiction where, because of the nature of its business
or property, such qualification is required, except where the
failure so to qualify would not have a material adverse effect on
the financial condition, properties, prospects or operations of
the Borrower or of the Borrower and its Principal Subsidiaries
taken as a whole. The Borrower has the requisite power to
execute, deliver and perform its obligations under the Loan
Documents and to borrow hereunder.
(b) The execution, delivery and performance of the Loan
Documents by the Borrower are within the Borrower's powers under
its Declaration or Trust, have been duly authorized by all
necessary action under its Declaration of Trust and applicable
law, and do not and will not contravene (i) the Borrower's
Declaration of Trust or any law or legal restriction or (ii) any
contractual restriction binding on or affecting the Borrower or
its properties or its Principal Subsidiaries or their respective
properties.
(c) Except as disclosed in the Disclosure Documents, none
of the Borrower or any of its Principal Subsidiaries is in violation of
any law or in default with respect to any judgment, writ, injunction,
decree, rule or regulation (including any of the foregoing relating to
environmental laws and regulations) of any court or governmental agency
or instrumentality where such violation or default would reasonably be
expected to have a material adverse effect on the financial condition,
properties, prospects or operations of the Borrower or of the Borrower
and its Principal Subsidiaries, taken as a whole.
(d) All Governmental Approvals referred to in clause (i) of
the definition of "Governmental Approvals" have been duly obtained or
made and are in full force and effect, and all applicable periods
of time for review, rehearing or appeal with respect thereto have
expired. The Borrower and each Subsidiary thereof has obtained
or made all Governmental Approvals referred to in clause (ii) of
the definition of "Governmental Approvals", except (A) those that
are not yet required but that are obtainable in the ordinary
course of business as and when required, (B) those the absence of
which would not materially adversely affect the financial
condition, properties, prospects or operations of the Borrower or
of the Borrower and its Principal Subsidiaries, taken as a whole,
and (C) those that the Borrower or any such Subsidiary, as the
case may be, is diligently attempting in good faith to obtain,
renew or extend, or the requirement for which the Borrower or any
such Subsidiary, as the case may be, is contesting in good faith
by appropriate proceedings or by other appropriate means, in each
case described in the foregoing clause (C), except as is
disclosed in the Disclosure Documents, such attempt or contest,
and any delay resulting therefrom, is not reasonably expected to
have a material adverse effect on the financial condition,
properties, prospects or operations of the Borrower or of the
Borrower and its Principal Subsidiaries, taken as a whole, or to
magnify to any significant degree any such material adverse
effect that would reasonably be expected to result from the
absence of such Governmental Approval.
(e) The Loan Documents are legal, valid and binding
obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms; subject to the qualification,
however, that the enforcement of the rights and remedies herein
and therein is subject to bankruptcy and other similar laws of
general application affecting rights and remedies of creditors
and the application of general principles of equity (regardless
of whether considered in a proceeding in equity or at law).
(f) The Financial Statements, copies of which have been
provided to the Administrative Agent, the Fronting Bank and each of the
Lenders, fairly present in all material respects the consolidated
financial condition and results of operations of the Borrower and
each of its Principal Subsidiaries at and for the period ended on
the dates thereof, and have been prepared in accordance with
generally accepted accounting principles consistently applied.
Since June 30, 2003, there has been no material adverse change in
the consolidated financial condition, operations, properties or
prospects of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole, except as disclosed in the
Disclosure Documents.
(g) There is no pending or known threatened litigation,
investigation, action or proceeding (including, without limitation,
any action or proceeding relating to any environmental protection
laws or regulations) affecting the Borrower, any Principal Subsidiary
thereof or any of their respective properties, before any court,
governmental agency or arbitrator (i) that affects or purports to
affect the legality, validity or enforceability of any Loan Document
or (ii) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, would materially
adversely affect the financial condition, properties, prospects
or results of operations of the Borrower or of the Borrower and
its Principal Subsidiaries, taken as a whole, except, for
purposes of this clause (ii) only, such as is described in the
Disclosure Documents or in Schedule II hereto.
(h) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan that
would materially adversely affect the financial condition,
properties, prospects or operations of the Borrower or of the
Borrower and its Principal Subsidiaries, taken as a whole, except
as disclosed to the Lenders and consented to by the Majority
Lenders in writing. Since the date of the most recent Schedule B
(Actuarial Information) to the annual report of each such ERISA
Plan (Form 5500 Series), there has been no material adverse
change in the funding status of the ERISA Plans referred to
therein, and no "prohibited transaction" (as defined in
Section 4975 of the Internal Revenue Code of 1986, as amended,
and in ERISA) has occurred with respect thereto that, singly or
in the aggregate with all other "prohibited transactions" and
after giving effect to all likely consequences thereof, would be
reasonably expected to have a material adverse effect on the
financial condition, properties, prospects or operations of the
Borrower or of the Borrower and its Principal Subsidiaries, taken
as a whole. Neither the Borrower nor any of its ERISA Affiliates
has incurred nor reasonably expects to incur any material
withdrawal liability under ERISA to any ERISA Multiemployer Plan,
except as disclosed to and consented by the Majority Lenders in
writing.
(i) The Borrower and each Principal Subsidiary thereof
has good and marketable title (or, in the case of personal property,
valid title) or valid leasehold interests in its assets, except for (i)
minor defects in title that do not materially interfere with the
ability of the Borrower or such Principal Subsidiary to conduct
its business as now conducted and (ii) other defects that, either
individually or in the aggregate, do not materially adversely
affect the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole. All such assets and properties
are free and clear of any Lien, other than Liens permitted under
Section 7.02(a) hereof. No Liens exist on the stock of CL&P,
WMECO, PSNH, or Yankee.
(j) All outstanding shares of capital stock having ordinary
voting power for the election of directors of each Principal
Subsidiary have been validly issued and are fully paid and
nonassessable and are owned beneficially by NU, free and clear of
any Lien. NU is a "holding company" (as defined in the Public
Utility Holding Company Act of 1935, as amended).
(k) The Borrower and each of its Principal Subsidiaries has
filed all tax returns (Federal, state and local) required to be
filed and paid taxes shown thereon to be due, including interest
and penalties, or, to the extent the Borrower or such Principal
Subsidiary is contesting in good faith an assertion of liability
based on such returns, has provided adequate reserves in
accordance with generally accepted accounting principles for
payment thereof.
(l) No exhibit, schedule, report or other written information
provided by or on behalf of the Borrower or its agents to the
Administrative Agent, the Fronting Bank or the Lenders in
connection with the negotiation, execution and closing of the
Loan Documents (including, without limitation, the Financial
Statements and the Information Memorandum (but excluding the
projections contained in the Information Memorandum)) knowingly
contained when made any material misstatement of fact or
knowingly omitted to state any material fact necessary to make
the statements contained therein not misleading in light of the
circumstances under which they were made. Except as has been
disclosed to the Administrative Agent, the Fronting Bank and each
Lender, the projections delivered concurrently with the
Information Memorandum were prepared in good faith on the basis
of assumptions reasonable as of the date of the Information
Memorandum, it being understood that such projections do not
constitute a warranty or binding assurance of future performance.
Except as has been disclosed to the Administrative Agent, the
Fronting Bank and each Lender, nothing has come to the attention
of the responsible officers of the Borrower that would indicate
that any of such assumptions, to the extent material to such
projections, has ceased to be reasonable in light of subsequent
developments or events.
(m) All proceeds of the Advances shall be used (i) for the
general corporate purposes of the Borrower, including to provide
liquidity support for the Borrower's commercial paper, and (ii)
to provide liquidity to the NU System Money Pool. The Letters of
Credit shall be used for the general corporate purposes of the
Borrower and its Subsidiaries. No proceeds of any Advance will
be used in violation of, or in any manner that would result in a
violation by any party hereto of, Regulation T, U or X
promulgated by the Board of Governors of the Federal Reserve
System or any successor regulations. Neither the Borrower nor
any Subsidiary thereof (A) is an "investment company" within the
meaning ascribed to that term in the Investment Company Act of
1940 and (B) is engaged in the business of extending credit for
the purpose of buying or carrying margin stock.
(n) The Borrower and each Principal Subsidiary thereof has
obtained the insurance specified in Section 7.01(c) hereof and
the same is in full force and effect.
(o) (i) The assets, at a fair valuation, of the Borrower
exceed its debts; (ii) the Borrower has not incurred and does not intend
to incur, and does not believe that it will incur, debts beyond
its ability to pay such debts as such debts mature; and (iii) the
Borrower will have sufficient capital with which to conduct its
business. As used in this paragraph, "debt" means any liability
on a claim, and "claim" means (A) any right to payment from such
person, whether or not such a right is reduced to judgment
against such person, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (B) any right to an equitable remedy for
breach of performance by such person if such breach gives rise to
a payment from such person, whether or not such right to an
equitable remedy is reduced to judgment against such person,
whether fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured. The amount of unliquidated,
contingent, unmatured or disputed liabilities of any person at
any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or
matured liability.
(p) The Borrower does not intend to treat the Extensions of
Credit and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation section
1.6011-4). In the event that the Borrower determines to take any
action inconsistent with such intention, it will promptly notify
the Administrative Agent thereof.
ARTICLE VII
COVENANTS
SECTION 7.01. Affirmative Covenants. On and after the
Closing Date, so long as any obligation hereunder shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower
shall, unless the Majority Lenders shall otherwise consent in
writing:
(a) Use of Proceeds. Apply the proceeds of each Advance, and
use, and cause its Subsidiaries to use, the Letters of Credit, solely as
specified in Section 6.01(m) hereof.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Principal Subsidiaries to pay and discharge, before the same
shall become delinquent, all taxes, assessments and governmental
charges, royalties or levies imposed upon it or upon its property
except to the extent the Borrower or such Principal Subsidiary is
contesting the same in good faith by appropriate proceedings and
has set aside adequate reserves in accordance with generally
accepted accounting principles for the payment thereof.
(c) Maintenance of Insurance. Maintain or cause to be
maintained, and cause each of its Principal Subsidiaries to
maintain or cause to be maintained, insurance (including
appropriate plans of self-insurance) covering the Borrower, the
Principal Subsidiaries and their respective properties, in effect
at all times in such amounts and covering such risks as may be
required by law and, in addition, as is usually carried by
companies engaged in similar businesses and owning similar
properties as the Borrower and such Principal Subsidiaries.
(d) Preservation of Existence, Etc.; Disaggregation.
(i) Except as permitted by Section 7.02(b) hereof,
preserve and maintain, and cause each of its Principal
Subsidiaries to preserve and maintain, its existence,
corporate or otherwise, material rights (statutory and
otherwise) and franchises except where the failure to maintain
and preserve such rights and franchises would not materially
adversely affect the financial condition, properties,
prospects or operations of the Borrower or
of the Borrower and its Principal Subsidiaries, taken as a
whole.
(ii) In furtherance of the foregoing, and notwithstanding
Section 7.02(b), the Borrower agrees that it will not, and will
cause each of its Principal Subsidiaries not to, except in
accordance with one or more restructuring plans approved by the
appropriate regulatory authorities, sell, transfer or otherwise
dispose of (by lease or otherwise, and whether in one or a
series of related transactions) any portion of its generation,
transmission or distribution assets in excess of 10% of the net
utility plant assets of the Borrower and its Principal
Subsidiaries, taken as a whole, in each case as determined on
a cumulative basis from the date of this Agreement through the
Termination Date by reference to the published balance sheets
of the Borrower and its Principal Subsidiaries.
(e) Compliance with Laws, Etc. Comply, and cause each of its
Principal Subsidiaries to comply, in all material respects with
the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, including, without
limitation, any such laws, rules, regulations and orders issued
by the Securities and Exchange Commission or relating to zoning,
environmental protection, use and disposal of Hazardous
Substances, land use, construction and building restrictions,
ERISA and employee safety and health matters relating to business
operations, except to the extent (i) that the Borrower or any
such Principal Subsidiary is contesting the same in good faith by
appropriate proceedings or (ii) that any such non-compliance, and
the enforcement or correction thereof, would not materially
adversely affect the financial condition, properties, prospects
or operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole.
(f) Inspection Rights. At any time and from time to time
upon reasonable notice, permit, and cause each of its Principal
Subsidiaries to permit, the Administrative Agent and its agents
and representatives to examine and make copies of and abstracts
from the records and books of account of, and the properties of,
the Borrower and each Principal Subsidiary and to discuss the
affairs, finances and accounts of the Borrower and each Principal
Subsidiary (i) with the Borrower, each Principal Subsidiary and
their respective officers and directors and (ii) with the consent
of the Borrower and/or its Principal Subsidiaries, as the case
may be (which consent shall not be unreasonably withheld or
delayed), with the accountants of the Borrower or any such
Principal Subsidiary.
(g) Keeping of Books. Keep, and cause each Principal
Subsidiary to keep, proper records and books of account, in which full
and correct entries shall be made of all financial transactions of
the Borrower and each Principal Subsidiary and the assets and
business of the Borrower and each Principal Subsidiary, in
accordance with generally accepted accounting practices
consistently applied.
(h) Conduct of Business. Except as permitted by Section
7.02(b) but subject in all respects to Section 7.01(d)(ii), conduct, and
cause each Principal Subsidiary to conduct, its primary business
in substantially the same manner and in substantially the same
fields as such business is conducted on the Closing Date.
(i) Maintenance of Properties, Etc. (i) As to properties of
the type described in Section 6.01(i) hereof, maintain, and cause
each Principal Subsidiary to maintain, title of the quality
described therein and preserve, maintain, develop, and operate,
and cause each Principal Subsidiary to preserve, maintain,
develop and operate, in substantial conformity with all laws,
material contractual obligations and prudent practices prevailing
in the industry, all of its properties that are used or useful in
the conduct of its businesses in good working order and
condition, ordinary wear and tear excepted, except (A) as
permitted by Section 7.02(b), but subject nevertheless to Section
7.01(d)(ii), (B) as disclosed in the Disclosure Documents or
otherwise in writing to the Administrative Agent, the Fronting
Bank and the Lenders on or prior to the date hereof, and (C) to
the extent such non-conformity would not materially adversely
affect the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole; provided, however, that neither
the Borrower nor any Principal Subsidiary will be prevented from
discontinuing the operation and maintenance of any such
properties if such discontinuance is, in the judgment of the
Borrower or such Principal Subsidiary, desirable in the operation
or maintenance of its business and would not materially adversely
affect the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole.
(j) Governmental Approvals. Duly obtain, and cause each
Principal Subsidiary to duly obtain, on or prior to such date as
the same may become legally required, and thereafter maintain,
and cause each Principal Subsidiary to maintain, in effect at all
times, all Governmental Approvals on its part to be obtained,
except in the case of those Governmental Approvals referred to in
clause (ii) of the definition of "Governmental Approvals",
(i) those the absence of which would not materially adversely
affect the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole, and (ii) those that the Borrower
or such Principal Subsidiary is diligently attempting in good
faith to obtain, renew or extend, or the requirement for which
the Borrower or such Principal Subsidiary is contesting in good
faith by appropriate proceedings or by other appropriate means;
provided, however, that the exception afforded by clause (ii),
above, shall be available only if and for so long as such attempt
or contest, and any delay resulting therefrom, does not have a
material adverse effect on the financial condition, properties,
prospects or operations of the Borrower or of the Borrower and
its Principal Subsidiaries, taken as a whole, and does not
magnify to any significant degree any such material adverse
effect that would reasonably be expected to result from the
absence of such Governmental Approval.
(k) Further Assurances. Promptly execute and deliver all
further instruments and documents, and take all further action,
that may be necessary or that any Lender or the Fronting Bank
through the Administrative Agent may reasonably request in order
to fully give effect to the interests and properties purported to
be covered by the Loan Documents.
SECTION 7.02. Negative Covenants. On and after the Closing
Date, and so long as any obligation hereunder shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower
shall not, or permit any Principal Subsidiary to, without the
written consent of the Majority Lenders:
(a) Liens, Etc. Create incur, assume or suffer to exist any
Lien upon any of its properties or assets (including the stock of
its Subsidiaries), whether now owned or hereafter acquired,
except:
(i) any Liens existing on the Closing Date;
(ii) Liens created by the First Mortgage Indentures, so
long as by the terms thereof no "event of default" (howsoever
designated) in respect of any bonds issued thereunder will
arise upon the occurrence of an Unmatured Default or Event
of Default hereunder; provided, however, that the aggregate
principal amount of securities issued by NGC under its First
Mortgage Indenture shall in no event exceed (i) $440,000,000
plus (ii) the aggregate principal amount of such additional
securities as may be issued to finance the costs of acquiring
or constructing assets hereafter acquired or constructed (or
to refinance such costs within 180 days of the incurrence
thereof);
(iii) with respect to such Principal Subsidiary,
"Permitted Liens" or "Permitted Encumbrances" under the First
Mortgage Indenture to which such Principal Subsidiary is a
party, in each case to the extent such Liens do not secure
Debt of such Principal Subsidiary;
(iv) any purchase money Lien or construction mortgage on
assets hereafter acquired or constructed by the Borrower or
any Principal Subsidiary and any Lien on any assets existing
at the time of acquisition thereof by the Borrower or such
Principal Subsidiary or created within 180 days from the date
of completion of such acquisition or construction; provided
that, such Lien shall at all times be confined solely to the
assets so acquired or constructed and any additions thereto;
(v) any existing Liens on assets now owned by the
Borrower or any Principal Subsidiary and Liens existing on
assets of a corporation or other going concern when it is
merged into or with the Borrower or such Principal Subsidiary
or when substantially all of its assets are acquired by the
Borrower or such Principal Subsidiary; provided that such
Liens shall at all times be confined solely to such assets,
or if such assets constitute a utility system, additions to
or substitutions for such assets;
(vi) Liens resulting from legal proceedings being
contested in good faith by appropriate legal or
administrative proceedings by the Borrower or any Principal
Subsidiary, and as to which the Borrower or such Principal
Subsidiary, to the extent required by generally accepted
accounting principles applied on a consistent basis, shall
have set aside on its books adequate reserves;
(vii) Liens created in favor of the other contracting
party in connection with advance or progress payments;
(viii) any Liens in favor of any state of the United
States or any political subdivision of any such state, or any
agency of any such state or political subdivisions, or trustee
acting on behalf of holders of obligations issued by any of
the foregoing or any financial institutions lending to or
purchasing obligations of any of the foregoing, which Lien is
created or assumed for the purpose of financing all or part
of the cost of acquiring or constructing the property subject
thereto;
(ix) Liens resulting from conditional sale agreements,
capital leases or other title retention agreements;
(x) with respect to pollution control bond financings,
Liens on funds, accounts and other similar intangibles of the
Borrower or any Principal Subsidiary created or arising under
the relevant indenture, pledges of the related loan agreement
with the relevant issuing authority and pledges of the
Borrower's or such Principal Subsidiary's interest, if any, in
any bonds issued pursuant to such financings to a letter of
credit bank or bond issuer or similar credit enhancer;
(xi) Liens granted on accounts receivable and Regulatory
Assets in connection with financing transactions, whether
denominated as sales or borrowings;
(xii) Liens on the stock of NGC;
(xiii) Liens on the assets of, or the stock issued by,
any Subsidiary of the Borrower created to hold generating
assets if such Liens are created to secure nonrecourse Debt
incurred to acquire, construct or otherwise develop such
generating assets;
(xiv) Liens created to secure Debt of a transmission
company Subsidiary of the Borrower with respect to assets
transferred to such transmission company by another Subsidiary
of the Borrower;
(xv) any other Liens incurred in the ordinary course of
business otherwise than to secure Debt;
(xvi) any extension, renewal or replacement of Liens
permitted by clauses (i), (iii) through (v) and (vii) through
(xiv); provided, however, that the principal amount of Debt
secured thereby shall not, at the time of such extension,
renewal or replacement, exceed the principal amount of Debt
so secured and that such extension, renewal or replacement
shall be limited to all or a part of the property that secured
the Lien so extended, renewed or replaced or to other property
of no greater value than the property that secured the Lien
so extended, renewed or replaced.
(b) Mergers, Acquisitions, Sales of Assets, Etc. Merge with
or into or consolidate with or into, any Person, or purchase or
otherwise acquire (whether directly or indirectly) all or
substantially all of the assets or stock of any class of, or any
partnership or joint venture interest in, any other Person, or
sell, transfer, convey, lease or otherwise dispose of all or any
substantial part of its assets or the capital stock of any
Principal Subsidiary; except for the following, and then only
after receipt of all necessary corporate and governmental or
regulatory approvals and provided that, before and after giving
effect to any such merger, consolidation, purchase, acquisition,
sale, transfer, conveyance, lease or other disposition, no Event
of Default or Unmatured Default shall have occurred and be
continuing:
(A) Subsidiaries of NU may merge or consolidate
with wholly-owned Subsidiaries of NU so long as, in
any such case, the wholly- owned Subsidiary is the
survivor;
(B) Subsidiaries of NU may be merged or
consolidated with NU so long as NU is the survivor;
(C) NU or any Subsidiary of NU may merge or
consolidate with a Person that is not an Affiliate of NU
so long as (1) NU or such Subsidiary is the survivor of
such merger or consolidation, (2) NU demonstrates pro
forma compliance with the financial covenants set forth in
Section 7.03 hereof, and (3) NU's indicative senior
unsecured non-credit enhanced long-term debt ratings
from S&P and ▇▇▇▇▇'▇ in contemplation of such merger
or consolidation, and NU's actual senior unsecured
non-credit enhanced long-term debt ratings from S&P and
▇▇▇▇▇'▇ following any such merger or consolidation,
remain at the levels established immediately prior
to the merger or consolidation or at a higher level;
(D) NU and its wholly-owned Subsidiaries may
acquire interests in joint ventures, partnerships, or
similar interest in, or the assets or capital stock of,
any Person, so long as such Person is principally engaged
in an activity permitted under PUHCA as in effect on the
Closing Date; provided, that NU's acquisition of
interests in telecommunications businesses shall
not exceed 5.0% of NU's consolidated Common Equity;
(E) any Principal Subsidiary may sell, lease,
transfer or otherwise dispose of transmission
assets (1) to another Subsidiary of NU on such basis
as permitted by the appropriate regulatory authorities or
(2) to any Person on such basis as required by the
appropriate regulatory authorities; and
(F) NU or any Principal Subsidiary may sell,
lease, transfer, convey or otherwise dispose of assets
or security to any Principal Subsidiary or to NU; and
(G) the sale of the Borrower's or any Principal
Subsidiary's assets in the ordinary course of business
on customary terms and conditions, including any sale of
accounts receivable on reasonable commercial terms
(including a commercially reasonable discount)
to obtain funding for CL&P.
For purposes of this subsection (b), any sale of assets by the
Borrower or any Principal Subsidiary (in one or a series of
transactions) will be deemed to be a "substantial part" of its
assets if (i) the book value of such assets exceeds 7.5% of the
total book value of the assets (net of Regulatory Assets) of such
Person, as reflected in the most recent financial statements of
the Borrower or such Principal Subsidiary delivered to the
Administrative Agent pursuant to Section 7.04 hereof (or, if no
such financial statements have been delivered to the
Administrative Agent as of the relevant date of determination,
the Financial Statements of such Person), or (ii) the gross
revenue associated with such assets accounts for more than 7.5%
of the total gross revenue of the Borrower or such Principal
Subsidiary for the four proceeding fiscal quarters, as reflected
in the most recent financial statements of the Borrower or such
Principal Subsidiary delivered to the Administrative Agent
pursuant to Section 7.04 hereof (or, if no such financial
statements have been delivered to the Administrative Agent as of
the relevant date of determination, the Financial Statements of
such Person).
(c) Compliance with ERISA. (i) Terminate, or permit any of its
ERISA Affiliates to terminate, any ERISA Plan so as to result in
any liability of the Borrower or any Principal Subsidiary to the
PBGC in an amount greater than $1,000,000, or (ii) permit to
exist any occurrence of any Reportable Event (as defined in Title
IV of ERISA) which, alone or together with any other Reportable
Event with respect to the same or another ERISA Plan, has a
reasonable possibility of resulting in liability of the Borrower
or any Principal Subsidiary to the PBGC in an aggregate amount
exceeding $1,000,000, or any other event or condition that
presents a material risk of such a termination by the PBGC of any
ERISA Plan or has a reasonable possibility of resulting in a
liability of the Borrower or any Principal Subsidiary to the PBGC
in an aggregate amount exceeding $1,000,000
(d) Accounting Changes. Make any change in its accounting
policies or reporting practices except as required or permitted
by the Securities and Exchange Commission, the Financial
Accounting Standards Board or any other generally recognized
accounting authority.
(e) Transactions with Affiliates. Engage in any transaction
with any Affiliate except (i) in accordance with PUHCA to the
extent applicable thereto or (ii) on terms no less favorable to
the Borrower or the Principal Subsidiary party thereto than if
the transaction had been negotiated in good faith on an arms-
length basis with a non-Affiliate and on commercially reasonable
terms or pursuant to a binding agreement in effect on the Closing
Date.
(f) Interests in Nuclear Plants. Acquire any nuclear plant or
any interest therein not held on the Closing Date, other than so
called "power entitlements" acquired for use in the ordinary
course of business.
(g) Financing Agreements. With respect to the Borrower only,
permit any Principal Subsidiary to enter into any agreement,
contract, indenture or similar obligation, or issue any security
(all of the foregoing being referred to as "Financing
Agreements"), that is not in effect on the Closing Date, or amend
or modify any existing Financing Agreement, if the effect of such
Financing Agreement (or amendment or modification thereof) is to
impose any additional restriction not in effect on the Closing
Date on the ability of such Principal Subsidiary to pay dividends
to the Borrower; provided, that the foregoing shall not restrict
the right of any Subsidiary of the Borrower created to hold
generating assets, to enter into any such Financing Agreement in
connection with the incurrence of nonrecourse Debt to acquire,
construct or otherwise develop generating assets.
SECTION 7.03. Financial Covenants. On and after the Closing
Date, so long as any obligation hereunder shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower
shall, unless the Majority Lenders shall otherwise consent in
writing:
(a) Consolidated Debt Ratio. Maintain at all times a ratio
of Consolidated Debt to Total Capitalization of no more than 0.65:1.00.
(b) Interest Coverage Ratio. Maintain, as of the end of each
Fiscal Quarter, with respect to the four Fiscal Quarters then
ended, a ratio of Consolidated EBIT to Consolidated Interest
Expense of at least 2.00:1.00.
SECTION 7.04. Reporting Obligations. So long as any
obligation hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower shall, unless the Majority
Lenders shall otherwise consent in writing, furnish or cause to
be furnished to the Administrative Agent in sufficient copies for
each Lender, the following:
(i) as soon as possible and in any event within ten days
after the occurrence of each Event of Default or Unmatured
continuing on the date of such statement, a statement of the
Default Chief Financial Officer, Treasurer or Assistant
Treasurer of the Borrower setting forth details of such Event
of Default or Unmatured Default and the action that the
Borrower proposes to take with respect thereto;
(ii) (A) as soon as available, and in any event within
fifty (50) days after the end of each of the first three
Fiscal Quarters of each Fiscal Year of the Borrower, a copy of
the Borrower's and each of its Principal Subsidiary's
Quarterly Reports on Form 10-Q (if such Principal Subsidiary
is required to file such report with the U.S. Securities and
Exchange Commission pursuant to Sections 13 or 15 of the U.S.
Securities Exchange Act of 1934, as amended) submitted to the
Securities and Exchange Commission with respect to such
quarter, and, with respect to Yankee, NGC, Select
Energy, Inc. and any other Principal Subsidiary that is not
required to, or ceases to be required to submit such report,
consolidated balance sheets of, Yankee, NGC, Select Energy,
Inc. and such other Principal Subsidiary, as of the end of
such Fiscal Quarter and consolidated statements of income
and retained earnings and of cash flows of such Person for the
period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, all in reasonable
detail and duly certified (subject to year-end audit
adjustments) by the Chief Financial Officer, Treasurer,
Assistant Treasurer or Comptroller of the Borrower as having
been prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
the Financial Statements; and
(B) concurrently with the delivery of the financial
statements described in the foregoing clause (A), a certificate of the
Chief Financial Officer, Treasurer, Assistant Treasurer or Comptroller
of the Borrower:
(1) to the effect that such financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied in
the preparation of the Financial Statements,
(2) stating that no Event of Default or Unmatured
Default has occurred and is continuing or, if an Event of
Default or Unmatured Default has occurred and is
continuing, describing the nature thereof and the action
that the Borrower proposes to take with respect thereto,
and
(3) demonstrating the Borrower's compliance with the
covenants set forth in Section 7.03 hereof, for and as of
the end of such Fiscal Quarter, in each case such
demonstrations to be in form satisfactory to the
Administrative Agent and to set forth in reasonable
detail the computations used in determining such
compliance;
(iii) (A) as soon as available, and in any event
within 105 days after the end of each Fiscal Year of the Borrower, a
copy of the Borrower's and each of its Principal Subsidiary's Annual
Reports on Form 10-K (if such Principal Subsidiary is required to file
such report with the U.S. Securities and Exchange Commission pursuant
to Sections 13 or 15 of the U.S. Securities Exchange Act of 1934, as
amended) submitted to the Securities and Exchange Commission with
respect to such Fiscal Year, and, with respect to Yankee, NGC, Select
Energy, Inc. and any other Principal Subsidiary that is not required to,
or ceases to be required to submit such report, a copy of the annual
audit report for such year for Yankee, NGC, Select Energy, Inc. and such
other Principal Subsidiary, including therein consolidated balance
sheets of such Person as of the end of such Fiscal Year and consolidated
statements of income and retained earnings and of cash flows of such
Person, for such Fiscal Year, all in reasonable detail and certified
by a nationally-recognized independent public accountant; and
(B) concurrently with the delivery of the
financial statements described in the foregoing clause (A), a
certificate of the Chief Financial Officer, Treasurer, Assistant
Treasurer or Comptroller of the Borrower:
(1) to the effect that such financial
generally accepted accounting principles consistent
with those applied in the preparation of the
Financial Statements, and
(2) stating that no Event of Default or Unmatured
Default has occurred and is continuing, or if an Event of
Default or Unmatured Default has occurred and is
continuing, describing the nature thereof and the action
that the Borrower proposes to take with respect thereto,
and (3) demonstrating the Borrower's compliance with the
covenants set forth in Section 7.03 hereof, for and as of
the end of such Fiscal Year, in each case such
demonstrations to be in form satisfactory to the
Administrative Agent and to set forth in reasonable
detail the computations used in determining such
compliance;
(iv) upon the reasonable request of the Administrative
Agent, but not more than once per Fiscal Quarter, copies of any or all
filings or registrations with, or notices or reports to, any regulatory
authority by the Borrower or any Principal Subsidiary;
(v) as soon as possible and in any event (A) within 30
days after the Chief Financial Officer, Treasurer or any Assistant
Treasurer of the Borrower knows or has reason to know that any ERISA
Plan Termination Event described in clause (i) of the
definition of ERISA Plan Termination Event with respect to any
ERISA Plan or ERISA Multiemployer Plan has occurred and
(B) within 10 days after the Borrower knows or has reason to know
that any other ERISA Plan Termination Event with respect to any
ERISA Plan or ERISA Multiemployer Plan has occurred, a statement
of the Chief Financial Officer, Treasurer or Assistant Treasurer
of the Borrower describing such ERISA Plan Termination Event and
the action, if any, which the Borrower proposes to take with
respect thereto;
(vi) promptly after receipt thereof by the Borrower or
any of its ERISA Affiliates from the PBGC, copies of each notice
received by the Borrower or any such ERISA Affiliate of the PBGC's
intention to terminate any ERISA Plan or ERISA Multiemployer Plan or to
have a trustee appointed to administer any ERISA Plan or ERISA
Multiemployer Plan;
(vii) promptly after receipt thereof by the Borrower or
any of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor,
a copy of each notice received by the Borrower or any of its
ERISA Affiliates concerning the imposition or amount of
withdrawal liability in an aggregate principal amount of at least
$10,000,000 pursuant to Section 4202 of ERISA in respect of which
the Borrower may be liable;
(viii) promptly after the Borrower becomes aware of
the commencement thereof, notice of all actions, suits, proceedings
or other events of the type described in Section 6.01(g) hereof
(including, without limitation, any action or proceeding relating
to any environmental protection laws or regulations);
(ix) promptly after the filing thereof, copies of each prospectus
(excluding any prospectus contained in any Form S-8), Current
Report on Form 8-K and annual report on Form U5S, if any, which
the Borrower or any Principal Subsidiary files with the
Securities and Exchange Commission or any successor governmental
authority; and
(x) promptly after requested, such other information
respecting the financial condition, operations, properties or prospects
of the Borrower or its Subsidiaries as the Administrative Agent, or
the Majority Lenders or Fronting Bank through the Administrative
Agent, may from time to time reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. The following events shall
each constitute an "Event of Default":
(a) The Borrower shall fail to pay any principal of any
Advance or any Reimbursement Obligation when due or shall fail to pay
any interest on any Advance or fees or other amounts payable under
the Loan Documents within two days after the same becomes due; or
(b) Any representation or warranty made by the Borrower (or
any of its officers or agents) in any Loan Document, any certificate
or other writing delivered pursuant hereto or thereto shall prove
to have been incorrect in any material respect when made or
deemed made; or
(c) The Borrower shall fail to perform or observe any term or
covenant on its part to be performed or observed contained in
Section 2.02(h), 7.01(d), Section 7.02, Section 7.03 or
Section 7.04(i) hereof; or
(d) The Borrower shall fail to perform or observe any other
term or covenant on its part to be performed or observed contained in
any Loan Document and any such failure shall remain unremedied for a
period of 30 days after the earlier of (i) written notice of such
failure having been given to the Borrower by the Administrative
Agent or (ii) the Borrower having obtained actual knowledge of such
failure; or
(e) The Borrower or any Principal Subsidiary shall fail to
pay any of its Debt when due (including any interest or premium
thereon but excluding Outstanding Credits and excluding other
Debt aggregating in no event more than $10,000,000 in principal
amount at any one time) whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise, and such failure
shall continue after the applicable grace period, if any,
specified in any agreement or instrument relating to such Debt;
or any other default under any agreement or instrument relating
to any such Debt, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such default or
event is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be
due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment or as a result of the
Borrower's or such Principal Subsidiary's exercise of a
prepayment option) prior to the stated maturity thereof; or
(f) The Borrower or any Principal Subsidiary shall
generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make an
assignment for the benefit of creditors; or any proceeding shall
be instituted by or against the Borrower or any Principal
Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of its debts under
any law relating to bankruptcy, insolvency, or reorganization or
relief of debtors, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the
case of a proceeding instituted against the Borrower or any
Principal Subsidiary, the Borrower or such Principal Subsidiary
shall consent thereto or such proceeding shall remain undismissed
or unstayed for a period of 90 days or any of the actions sought
in such proceeding (including without limitation the entry of an
order for relief against the Borrower or such Principal
Subsidiary or the appointment of a receiver, trustee, custodian
or other similar official for the Borrower or such Principal
Subsidiary or any of its property) shall occur; or the Borrower
or any Principal Subsidiary shall take any corporate or other
action to authorize any of the actions set forth above in this
subsection (f); or
(g) Any judgments or orders for the payment of money
in excess of $10,000,000 (or aggregating more than $10,000,000 at any
one time) shall be rendered against the Borrower or its properties or
any Principal Subsidiary or its properties, and either
(A) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and shall not have been
stayed or (B) there shall be any period of 15 consecutive days
during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect;
or
(h) Any material provision of any Loan Document shall
at any time for any reason cease to be valid and binding on the
Borrower, or shall be determined to be invalid or unenforceable
by any court, governmental agency or authority having
jurisdiction over the Borrower, or the Borrower shall deny that
it has any further liability or obligation under any Loan
Document; or
(i) A Change of Control shall have occurred; or
(j) The Borrower shall cease to own at least 85% of the
outstanding common stock of any Principal Subsidiary, free and
clear of all Liens except for Liens permitted by Section 7.02(a)
hereof; or
(k) Any legal restriction that is not in existence on
the Closing Date shall materially adversely affect the ability of any
Principal Subsidiary to pay dividends or make other distributions
to the Borrower.
SECTION 8.02. Remedies Upon Events of Default. Upon the
occurrence and during the continuance of any Event of Default,
the Administrative Agent shall at the request, or may with the
consent, of the Lenders entitled to make such request, upon
notice to the Borrower (i) declare the obligation of each Lender
to make Advances to the Borrower, and the obligation of the
Fronting Bank to issue Letters of Credit, to be terminated,
whereupon such obligations of the Lenders and the Fronting Bank
shall forthwith terminate, provided, that any such request or
consent pursuant to this clause (i) shall be made solely by
Lenders having Percentages in the aggregate of not less 66-2/3%;
(ii) declare the Advances, all interest thereon, an amount equal
to the aggregate Stated Amount of all issued but undrawn Letters
of Credit and all other amounts payable by the Borrower under
this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon such Advances, all such interest and all
such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower,
provided, that any such request or consent pursuant to this
clause (ii) shall be made solely by the Lenders holding at least
66-2/3% of the then aggregate Outstanding Credits; and (iii)
instruct the Fronting Bank to (whereupon the Fronting Bank shall)
furnish to each Beneficiary written notice of its intention to
terminate such Letter of Credit pursuant to the terms thereof,
provided, that any such request or consent pursuant to this
clause (iii) shall be made solely by the Lenders holding
Percentages in the aggregate of not less that 66-2/3% or, if the
Commitments shall then have been terminated, Lenders holding at
least 66-2/3% of the then aggregate Outstanding Credits;
provided, however, that if such Event of Default is an Event of
Default pursuant to subsection (f) of Section 8.01, then (A) the
obligation of each Lender to make Advances to the Borrower, and
the obligation of the Fronting Bank to issue Letters of Credit,
shall automatically be terminated and (B) the Advances, all
interest thereon, an amount equal to the aggregate Stated Amount
of all issued but undrawn Letters of Credit and all other amounts
payable by the Borrower under this Agreement and the other Loan
Documents shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE FRONTING BANK
SECTION 9.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for
by the Loan Documents (including, without limitation, enforcement
or collection thereof), the Administrative Agent shall not be
required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the
instructions of the Majority Lenders, and such instructions shall
be binding upon all Lenders; provided, however, that the
Administrative Agent shall not be required to take any action
that exposes the Administrative Agent to personal liability or
that is contrary to the Loan Documents or applicable law. The
Administrative Agent agrees to deliver promptly to each Lender
notice of each notice given to it by the Borrower and the
Fronting Bank pursuant to the terms of this Agreement.
SECTION 9.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents
or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with any Loan
Document, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat each Lender
party hereto as a "Lender" hereunder and for all purposes hereof
until the Administrative Agent receives and accepts a Lender
Assignment entered into by such Lender, as assignor, and an
assignee, as provided in Section 10.07; (ii) may consult with
legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation
to any Lender and shall not be responsible to any Lender for the
Information Memorandum or any other statements, warranties or
representations made in or in connection with any Loan Document;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of the Borrower to be
performed or observed, or to inspect any property (including the
books and records) of the Borrower; (v) shall not be responsible
to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan
Document or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of
any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by facsimile)
believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 9.03. Union Bank, Bank One, NA and Affiliates. With
respect to its Commitment and the Advances made by it, each of
Union Bank and Bank One, NA (and/or any other Lender then acting
as "Fronting Bank") shall have the same rights and powers under
the Loan Documents as any other Lender and may exercise the same
as though it were not the Administrative Agent or the Fronting
Bank, as the case may be, and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Union Bank
and Bank One, NA (and/or any other Lender then acting as
"Fronting Bank") in its individual capacity. Union Bank, Bank
One, NA (and/or any other Lender acting as "Fronting Bank") and
their respective Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower, any of its Subsidiaries
and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Union Bank were not
the Administrative Agent and Bank One, NA (and/or any other
Lender then acting as "Fronting Bank") were not the Fronting Bank
and without any duty to account therefor to the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the
Administrative Agent, the Fronting Bank or any other Lender and
based on the Information Memorandum and the Financial Statements
and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent,
the Fronting Bank or any other Lender and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement.
SECTION 9.05. Indemnification. The Lenders agree to indemnify
the Administrative Agent (to the extent not reimbursed by the
Borrower), ratably according to their respective Commitments (or,
if the Commitments have been terminated, ratably according to the
respective principal amounts of Outstanding Credits held by them
(provided, that if any Commitments or Outstanding Credits are
held by the Borrower or any Affiliate thereof, any ratable
apportionment hereunder shall exclude their respective
Commitments hereunder or the principal amounts of Outstanding
Credits held by the Borrower or such Affiliate)), from and
against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Administrative
Agent in its capacity as such in any way relating to or arising
out of any Loan Document or any action taken or omitted by the
Administrative Agent in its capacity as such under any Loan
Document, provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon
demand for such Lender's ratable share of any out-of-pocket
expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, the
Loan Documents to the extent that the Administrative Agent is
entitled to reimbursement for such expenses pursuant to Section
10.04 but is not reimbursed for such expenses by the Borrower.
SECTION 9.06. Successor Administrative Agent. The
Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, with any such
resignation to become effective only upon the appointment of a
successor Administrative Agent pursuant to this Section 9.06.
Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor Administrative Agent, which shall be
a Lender or another commercial bank or trust company reasonably
acceptable to the Borrower organized or licensed under the laws
of the United States, or of any State thereof. If no successor
Administrative Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent,
which shall be Lender or shall be another commercial bank or
trust company organized or licensed under the laws of the United
States or of any State thereof reasonably acceptable to the
Borrower. In addition to the foregoing right of the
Administrative Agent to resign, the Majority Lenders may remove
the Administrative Agent at any time, with or without cause,
concurrently with the appointment by the Majority Lenders of a
successor Administrative Agent. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder
as Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under the Loan
Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver
of any provision of any Loan Document, nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Lenders,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the
following: (a) waive, modify or eliminate any of the conditions
specified in Article V, (b) increase the Commitment of any Lender
hereunder or increase the Commitments of the Lenders that may be
maintained hereunder or subject the Lenders to any additional
obligations, (c) reduce the principal of, or interest on, the
Advances, any Applicable Margin or any fees or other amounts
payable hereunder (other than fees payable to the Administrative
Agent pursuant to Section 2.03(b) hereof), (d) postpone any date
fixed for any payment of principal of, or interest on, the
Advances or any fees or other amounts payable under the Loan
Documents (other than fees payable to the Administrative Agent
pursuant to Section 2.03(b) hereof), (e) change the percentage of
the Commitments or of the aggregate unpaid principal amount of
the Outstanding Credits, or the number of Lenders that shall be
required for the Lenders or any of them to take any action under
the Loan Documents, (f) amend any Loan Document in a manner
intended to prefer one or more Lenders over any other Lenders,
(g) waive the requirement set forth in Section 2.02(h) that cash
be held in respect of outstanding Letters of Credit, or (h) amend
this Section 10.01; provided, that any waiver of, or consent to a
departure from, the requirements of Section 2.02(i) shall be
effective if authorized in writing by the Majority Lenders and
the Fronting Bank; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by the
Administrative Agent or the Fronting Bank, as the case may be, in
addition to the Lenders required above to take such action,
affect the rights or duties of the Administrative Agent or the
Fronting Bank, as the case may be, under any Loan Document.
SECTION 10.02. Notices, Etc. Except as otherwise
expressly provided herein, all notices and other communications provided
for under the Loan Documents shall be in writing (including
facsimile communication) and mailed, sent by facsimile or hand
delivered:
(i) if to the Borrower, to it in care of NUSCO at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant
Treasurer, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm
number: expressly (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto;
(iii) if to any Lender other than a Bank, at its Domestic
Lending Office specified in the Lender Assignment
pursuant to which it became a Lender;
(iv) if to the Administrative Agent, at its address at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Energy Capital
Services, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm
number: (▇▇▇) ▇▇▇-▇▇▇▇; and
(v) if to the Fronting Bank, at its address at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, facsimile number: (312)
954-1767, confirm number: (▇▇▇) ▇▇▇-▇▇▇▇.
or, as to each party, at such other address as shall be
designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed,
sent by facsimile or hand delivered, be effective five days after
when deposited in the mails, or when sent by facsimile, or when
delivered, respectively, except that notices and communications
to the Administrative Agent pursuant to Article II, III, IV or IX
shall not be effective until received by the Administrative
Agent. With respect to any telephone notice given or received by
the Administrative Agent pursuant to Section 3.03 hereof, the
records of the Administrative Agent shall be conclusive for all
purposes.
SECTION 10.03. No Waiver of Remedies. No failure on the
part of the Administrative Agent, the Fronting Bank or any Lender
to exercise, and no delay in exercising, any right under any Loan
Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay when due, in accordance with
the terms hereof: (i) all costs and expenses of the Administrative
Agent in connection with the preparation, negotiation, execution
and delivery of the Loan Documents, the administration of the
Loan Documents, and any proposed modification, amendment, or
consent relating thereto (including, in each case, the reasonable
fees and expenses of counsel to the Administrative Agent); (ii)
all customary and reasonable charges, costs and expenses of the
Fronting Bank in connection with the issuance, transfer,
modification or amendment of any Letter of Credit (including, in
each case, the reasonable fees and expenses of counsel to the
Fronting Bank); and (iii) all costs and expenses of the
Administrative Agent, the Fronting Bank and each Lender
(including all fees and expenses of counsel) in connection with
the enforcement, whether through negotiations, legal proceedings
or otherwise, of the Loan Documents.
(b) The Borrower hereby agrees to indemnify and hold each
Joint Lead Arranger, each Co-Syndication Agent, the Documentation
Agent, the Administrative Agent, the Fronting Bank and each
Lender, and its officers, directors, employees, professional
advisors and affiliates (each, an "Indemnified Person") harmless
from and against any and all claims, damages, losses,
liabilities, costs or expenses (including settlement costs and
reasonable attorney's fees and expenses, whether or not such
Indemnified Person is named as a party to any proceeding or
investigation or is otherwise subjected to judicial or legal
process arising from any such proceeding or investigation) that
any of them may incur or that may be claimed against any of them
by any person or entity (except to the extent such claims,
damages, losses, liabilities, costs or expenses arise from the
gross negligence or willful misconduct of the Indemnified
Person):
(i) by reason of or in connection with the execution,
delivery or performance of the Loan Documents or any
transaction contemplated thereby, or the use by the Borrower
of the proceeds of any Advance, or the issuance of, or the use
by the Borrower of, or the use by any Beneficiary of the
proceeds of, any Letter of Credit;
(ii) in connection with or resulting from the
utilization, storage, disposal, treatment, generation,
transportation, release or ownership of any Hazardous
Substance (A) at, upon or under any property of the Borrower
or any of its Affiliates or (B) by or on behalf of the
Borrower or any of its Affiliates at any time and
in any place; or
(iii) in connection with any documentary taxes,
assessments or charges made by any governmental authority
by reason of the execution and delivery of the Loan
Documents.
(c) The Borrower's obligations under this Section 10.04 shall
survive the assignment by any Lender pursuant to Section 10.07
hereof and shall survive as well the repayment of all amounts
owing to the Lenders and the Fronting Bank under the Loan
Documents and the termination of the Commitments. If and to the
extent that the obligations of the Borrower under this
Section 10.04 are unenforceable for any reason, the Borrower
agrees to make the maximum contribution to the payment and
satisfaction thereof which is permissible under applicable law.
(d) The Borrower's obligations under this Section 10.04 are
in addition to and shall not be deemed to supersede its
indemnification and similar obligations set forth in that certain
Commitment Letter dated as of October 6, 2003 among the Borrower,
Union Bank and Barclays Bank PLC.
SECTION 10.05. Right of Set-off.
(a) Upon (i) the occurrence and during the continuance of any
Event of Default, and (ii) the making of the request or the
granting of the consent specified by Section 8.02 to authorize
the Administrative Agent to declare the Advances due and payable
pursuant to the provisions of Section 8.02, each Lender is hereby
authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower
now or hereafter existing under the Loan Documents held by such
Lender, irrespective of whether or not such Lender shall have
made any demand under the Loan Documents and although such
obligations may be Unmatured. Each Lender agrees promptly to
notify the Borrower after any such set-off and application made
by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
(b) The Borrower agrees that it shall have no right of
off-set, deduction or counterclaim in respect of its obligations
under the Loan Documents, and that the obligations of the Lenders
hereunder are several and not joint. Nothing contained herein shall
constitute a relinquishment or waiver of the Borrower's rights to
any independent claim that the Borrower may have against the
Administrative Agent, the Fronting Bank or any Lender, but no
Lender shall be liable for the conduct of the Administrative
Agent, the Fronting Bank or any other Lender, and neither the
Administrative Agent nor the Fronting Bank shall be liable for
the conduct of the other or any Lender.
SECTION 10.06. Effectiveness. This Agreement shall become
effective when it shall have been executed by the Borrower, the
Administrative Agent and the Fronting Bank and when the
Administrative Agent shall have been notified by each Bank that
such Bank has executed it.
SECTION 10.07. Assignments and Participation.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each
Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of paragraph (b) of
this Section, (ii) by way of participation in accordance with the
provisions of paragraph (d) of this Section or (iii) by way of
pledge or assignment of a security interest subject to the
restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in paragraph (d) of
this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under
the Loan Documents (including all or a portion of its Commitment
and the Advances at the time owing to it); provided that (i) such
Lender provides notice thereof to the Borrower within fifteen
(15) days of such assignment (but the failure to provide such
notice shall not affect the validity of such assignment), (ii)
except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Advances at
the time owing to it or in the case of an assignment to a Lender
or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Commitment (which for this
purpose includes Advances outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal
outstanding balance of the Advances of the assigning Lender
subject to each such assignment (determined as of the date the
Lender Assignment with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in the
Lender Assignment, as of the Trade Date) shall not be less than
$5,000,000, unless each of the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), (iii) each partial assignment
shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement
with respect to the Advance or the Commitment assigned, (iv) any
assignment of a Commitment must be approved by the Administrative
Agent and the Fronting Bank unless the Person that is the
proposed assignee is itself a Lender with a Commitment (whether
or not the proposed assignee would otherwise qualify as an
Eligible Assignee) and (v) the parties to each assignment shall
execute and deliver to the Administrative Agent a Lender
Assignment, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to paragraph (c) of this Section,
from and after the effective date specified in each Lender
Assignment, the Eligible Assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by
such Lender Assignment, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Lender
Assignment, be released from its obligations under this Agreement
(and, in the case of a Lender Assignment covering all of the
assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 4.03 and 4.05 with
respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does
not comply with this paragraph shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of
this Section.
(c) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at one of its addresses
referred to in Section 10.02 a copy of each Lender Assignment
delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and
principal amounts of the Advances owing to, each Lender pursuant
to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any
reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender may at any time, without the consent of the
Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in
all or a portion of such Lender's rights and/or obligations under
this Agreement (including all or a portion of its Commitment
and/or the Advances owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations
under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and
to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver
described in Section 10.01(a)-(g) that affects such Participant.
Subject to paragraph (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of
Sections 4.03 and 4.05 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of
Section 10.05 as though it were a Lender, provided such
Participant agrees to be subject to Section 4.04 as though it
were a Lender.
(e) A Participant shall not be entitled to receive any
greater payment under Sections 4.03 and 4.05 than the applicable
Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the
participation to such Participant is made with each Borrower's
prior written consent. A Participant that is not incorporated
under the laws of the United States of America or any state
thereof shall not be entitled to the benefits of Section 4.05
unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 4.05(e) as though it were a
Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including without
limitation any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment
shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a
party hereto.
(g) If any Lender shall have delivered a notice to the
Administrative Agent described in Section 4.03(a), (b), (c) or
(f) hereof, or shall become a non-performing Lender under Section
3.03(b) hereof, and if and so long as such Lender shall not have
withdrawn such notice or corrected such non-performance in
accordance with Section 3.03(b), the Borrower may demand that
such Lender assign, in accordance with Section 10.07 hereof, to
one or more assignees designated by either the Borrower or the
Administrative Agent (and reasonably acceptable to the other),
all (but not less than all) of such Lender's Commitment,
Advances, participation and other rights and obligations under
the Loan Documents; provided that any such demand by the Borrower
during the continuance of an Event of Default or an Unmatured
Default shall be ineffective without the consent of the Majority
Lenders. If, within 30 days following any such demand by the
Borrower, any such assignee so designated shall fail to tender
such assignment on terms reasonably satisfactory to the Borrower
and the Borrower and the Administrative Agent shall have failed
to designate any such assignee, then such demand by the Borrower
shall become ineffective, it being understood for purposes of
this provision that such assignment shall be conclusively deemed
to be on terms reasonably satisfactory to such Lender, and such
Lender shall be compelled to tender such assignment forthwith, if
(i) such assignee (A) shall agree to such assignment in
substantially the form of the Lender Assignment and (B) shall
tender payment to such Lender in an amount equal to the full
outstanding dollar amount accrued in favor of such Lender
hereunder (as computed in accordance with the records of the
Administrative Agent) and (ii) in the event the Borrower demanded
such assignment, the Borrower shall tender payment to the
Administrative Agent of the processing and recording fee
specified in Section 10.07(b) for such assignment.
SECTION 10.08. Confidentiality. In connection with the
negotiation and administration of the Loan Documents, the
Borrower has furnished or caused to have furnished and will from
time to time furnish or cause to be furnished to the
Administrative Agent, the Fronting Bank and the Lenders (each, a
"Recipient") written information that when delivered to the
Recipient will be deemed to be confidential (such information,
other than any such information that (i) was publicly available,
or otherwise known to the Recipient, at the time of disclosure,
(ii) subsequently becomes publicly available other than through
any act or omission by the Recipient or (iii) otherwise
subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his
or its obligations to the Borrower, being hereinafter referred to
as "Confidential Information"). The Recipient will not knowingly
disclose any such Confidential Information to any third party
(other than to those Persons who have a confidential relationship
with the Recipient), and will take all reasonable steps to
restrict access to such information in a manner designed to
maintain the confidential nature of such information, in each
case until such time as the same ceases to be Confidential
Information or as the Borrower may otherwise instruct. It is
understood, however, that the foregoing will not restrict the
Recipient's ability to freely exchange such Confidential
Information with prospective participants in or assignees of the
Recipient's position herein, but the Recipient's ability to so
exchange Confidential Information shall be conditioned upon any
such prospective participant's entering into an understanding as
to confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of
any or all Confidential Information if and to the extent that
such disclosure may be required (i) by a regulatory agency or
otherwise in connection with an examination of the Recipient's
records by appropriate authorities, (ii) pursuant to court order,
subpoena or other legal process or (iii) otherwise, as required
by law; in the event of any required disclosure under clause (ii)
or (iii), above, the Recipient agrees to use reasonable efforts
to inform the Borrower as promptly as practicable unless the
Lender is prohibited from doing so by court order, subpoena or
other legal process.
Notwithstanding the foregoing, each party hereto (and each
officer, director, employee, representative, agent and advisor of
each party hereto) may disclose to any and all persons, without
limitation of any kind, the "tax treatment" and "tax structure"
(in each case within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated by the Loan Documents
and all materials of any kind (including opinions or other tax
analyses) that are provided to such person relating to such "tax
treatment" and "tax structure". The foregoing is intended to
comply with the presumption set forth in Treasury Regulation
Section 1.6011-4(b)(3)(iii) and should be interpreted in a manner
consistent with such regulation.
SECTION 10.09. Waiver of Jury Trial. The Borrower, the
Administrative Agent, the Fronting Bank and each of the Lenders
hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out of or relating to
the Loan Documents, or any other instrument or document delivered
hereunder or thereunder.
SECTION 10.10. Governing Law. The Loan Documents shall
be governed by, and construed in accordance with, the laws of the
State of New York. The Borrower, each of the Lenders, the
Fronting Bank and the Administrative Agent: (i) irrevocably
submits to the jurisdiction of any New York State Court or
Federal court sitting in New York City in any action arising out
of or relating to the Loan Documents, (ii) agrees that all claims
in such action may be decided in such court, (iii) waives, to the
fullest extent it may effectively do so, the defense of an
inconvenient forum and (iv) consents to the service of process by
mail. A final judgment in any such action shall be conclusive
and may be enforced in other jurisdictions. Nothing herein shall
affect the right of any party to serve legal process in any
manner permitted by law or affect its right to bring any action
in any other court.
SECTION 10.11. Relation of the Parties; No Beneficiary.
No term, provision or requirement, whether express or implied, of
any Loan Document, or actions taken or to be taken by any party
thereunder, shall be construed to create a partnership,
association, or joint venture between such parties or any of
them. No term or provision of any Loan Document shall be
construed to confer a benefit upon, or grant a right or privilege
to, any Person other than the parties hereto.
SECTION 10.12. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 10.13. Limitation of Liability. No shareholder or
trustee of NU shall be held to any liability whatever for the
payment of any sum of money or for damages or otherwise under any
Loan Document, and such Loan Documents shall not be enforceable
against any such trustee in their or his or her individual
capacities or capacity and such Loan Documents shall be
enforceable against the trustees of NU only as such, and every
person, firm, association, trust or corporation having any claim
or demand arising under such Loan Documents and relating to NU,
its shareholders or trustees shall look solely to the trust
estate of NU for the payment or satisfaction thereof.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
NORTHEAST UTILITIES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Treasurer - Finance
Commitment: $35,000,000.00 UNION BANK OF CALIFORNIA,N.A., as
Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Commitment: $35,000,000.00 BANK ONE, NA (Main Office - Chicago), as
Fronting Bank and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Title: Director
Commitment: $24,769,230.77 THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Fuiks
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Commitment: $35,000,000.00 BARCLAYS BANK, PLC, as a Lender
By: /s/ Sydney ▇. ▇▇▇▇▇▇
Name: Sydney ▇. ▇▇▇▇▇▇
Title: Director
Commitment: $35,000,000.00 CITIBANK, N. A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Commitment: $24,769,230.77 CITIZENS BANK OF MASSACHUSETTS, as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Commitment: $18,307,692.31 COBANK, ACB, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
Commitment: $29,615,384.61 FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Commitment: $24,769,230.77 JPMORGAN CHASE BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
Title: Managing Director
Commitment: $24,769,230.77 KEYBANK NATIONAL ASSOCIATES, as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Commitment: $13,461,538.46 MELLON BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Commitment: $24,769,230.77 TORONTO DOMINION(TEXAS), INC., as a
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Commitment: $24,769,230.77 WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Total of $350,000,000.00
Commitments: