Exhibit B-1.
CREDIT AGREEMENT
Dated as of November 21, 1996
Among
NORTHEAST UTILITIES
THE CONNECTICUT LIGHT
AND POWER COMPANY
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
as Borrowers
THE CO-AGENTS AND BANKS NAMED HEREIN
CITICORP SECURITIES, INC.
As Arranger
TORONTO DOMINION SECURITIES (USA) INC.
As Syndication Agent
FLEET NATIONAL BANK
As Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
TABLE OF CONTENTS
Section Page
PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . .2
1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . 17
1.03. Accounting Terms; Financial Statements. . . . . . . . . . . . . . . . 17
1.04. Computations of Outstandings. . . . . . . . . . . . . . . . . . . . . 18
ARTICLE II
COMMITMENTS
2.01. The Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.02. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.03. Reduction of the Commitments and Borrower Sublimits . . . . . . . . . 19
2.04. Extension of the Termination Date . . . . . . . . . . . . . . . . . . 20
ARTICLE III
CONTRACT AND COMPETITIVE ADVANCES
3.01. Contract Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.02. Terms Relating to the Making of Contract Advances . . . . . . . . . . 21
3.03. Competitive Advances, Competitive Bid Procedures. . . . . . . . . . . 21
3.04. Making of Advances. . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.05. Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . 26
3.06. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.07. Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE IV
PAYMENTS
4.01. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . 28
4.02. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4.03. Yield Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.04. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . 33
4.05. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE V
CONDITIONS PRECEDENT
5.01. Conditions Precedent to Effectiveness . . . . . . . . . . . . . . . . 36
5.02. Conditions Precedent to Certain Contract Advances and All
Competitive Advances. . . . . . . . . . . . . . . . . . . . . . . . . 38
5.03. Conditions Precedent to Other Contract Advances . . . . . . . . . . . 39
5.04. Reliance on Certificates. . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the Borrowers . . . . . . . . . . . 40
ARTICLE VII
COVENANTS OF THE BORROWERS
7.01. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . 44
7.02. Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.03. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.04. Reporting Obligations . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE VIII
DEFAULTS
8.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.02. Remedies Upon Events of Default . . . . . . . . . . . . . . . . . . . 62
ARTICLE IX
THE AGENTS
9.01. Authorization and Action. . . . . . . . . . . . . . . . . . . . . . . 62
9.02. Administrative Agent's Reliance, Etc. . . . . . . . . . . . . . . . . 63
9.03. Citibank and Affiliates . . . . . . . . . . . . . . . . . . . . . . . 63
9.04. Lender Credit Decision. . . . . . . . . . . . . . . . . . . . . . . . 63
9.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.06. Successor Administrative Agent. . . . . . . . . . . . . . . . . . . . 64
ARTICLE X
MISCELLANEOUS
10.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.02. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.03. No Waiver of Remedies. . . . . . . . . . . . . . . . . . . . . . . . 66
10.04. Costs, Expenses and Indemnification. . . . . . . . . . . . . . . . . 66
10.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.06. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.07. Assignments and Participation. . . . . . . . . . . . . . . . . . . . 68
10.08. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.09. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . 72
10.10. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.11. Relation of the Parties; No Beneficiary. . . . . . . . . . . . . . . 72
10.12. Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . 72
10.13. Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . 73
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Pending Actions
Schedule III - NU Debt
Schedule IV - Existing Credit Facilities
EXHIBITS
Exhibit 1.01A - Form of Competitive Note
Exhibit 1.01B - Form of Contract Note
Exhibit 3.01 - Form of Notice of Contract Borrowing
Exhibit 3.03A-1- Form of Competitive Bid Request for Eurodollar
Competitive Borrowing
Exhibit 3.03A-2- Form of Competitive Bid Request for Fixed Rate
Competitive Borrowing
Exhibit 3.03B - Form of Notice of Competitive Bid Request
Exhibit 3.03C-1- Form of Competitive Bid for Eurodollar Competitive
Advance
Exhibit 3.03C-2- Form of Competitive Bid for Fixed Rate Competitive
Advance
Exhibit 3.03D-1- Form of Competitive Bid Acceptance for Eurodollar
Competitive Borrowing
Exhibit 3.03D-2- Form of Competitive Bid Acceptance for Fixed Rate
Competitive Borrowing
Exhibit 5.01A - Form of Opinion of Day, ▇▇▇▇▇ & ▇▇▇▇▇▇, Counsel to the
Borrowers
Exhibit 5.01B-1- Form of Opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General
Counsel of NUSCO
Exhibit 5.01B-2- Form of Opinion of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Counsel
of PSNH
Exhibit 5.01B-3- Form of Opinion of ▇▇▇▇▇▇▇ Early, Senior Counsel of
NUSCO
Exhibit 5.01C - Form of Opinion of King & Spalding, Special New York
Counsel to the Administrative Agent
Exhibit 10.07 - Form of Assignment and Acceptance
CREDIT AGREEMENT
Dated as of November 21, 1996
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");
(ii) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation
organized under the laws of the State of Connecticut ("CL&P");
(iii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation
organized under the laws of the Commonwealth of Massachusetts
("WMECO"; CL&P, NU and WMECO, each being a "Borrower", and
collectively, the "Borrowers");
(iv) CIBC INC. and THE FIRST NATIONAL BANK OF CHICAGO, as co-agents
(the "Co-Agents") hereunder;
(v) The financial institutions (the "Banks") listed on the signature
pages hereof and the other Lenders (as hereinafter defined) from
time to time party hereto; and
(vi) CITIBANK, N.A. ("Citibank"), as Administrative Agent for the
Lenders hereunder,
PRELIMINARY STATEMENT
The Borrowers have requested the Banks to provide the credit facility
hereinafter described in the amounts and on the terms and conditions set forth
herein. The Banks have so agreed on the terms and conditions set forth herein,
and the Administrative Agent has agreed to act as agent for the Lenders on such
terms and conditions.
Based upon the foregoing and subject to the terms and conditions set
forth in this Agreement, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Administrative Agent" means Citibank or any successor thereto
as provided herein.
"Advance" means a Contract Advance or a Competitive Advance
(each of which shall be a "Class" of Advance).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct
or indirect common control with such Person. A Person shall be deemed
to control another entity if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of such entity, whether through the ownership
of voting securities, by contract or otherwise.
"Agents" means, collectively, the Administrative Agent and the
Co-Agents in their respective capacities as such.
"Agreement" means this Credit Agreement, as the same may be
modified, amended and/or supplemented pursuant to the terms hereof.
"Aggregate Dividend Paying Availability" means the aggregate
amount (without duplication) of consolidated retained earnings and
consolidated capital surplus, paid in, of the Operating Companies
available for the payment of dividends to NU, after giving effect
to any legal, regulatory or contractual restrictions applicable to the
payment of such dividends, together with any accrued interim
liabilities for dividends declared and payable to NU, in each case to
the extent payment thereof is not in default or restricted by law,
regulation or contract.
"Applicable Facility Fee Rate" means, for each Borrower for any
day, the percentage per annum set forth below in effect on such day,
determined on the basis of the Applicable Rating Level of NU:
Facility Fee
Applicable Rating Level (NU) Percentage (%)
Level I 0.175
Level II 0.200
Level III 0.250
Level IV 0.300
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 the case of any Competitive Advance, the
office or Affiliate of such Lender identified as the Applicable
Lending Office in such Lender's Competitive Bid tendered
pursuant to Section 3.03 hereof; or
(iii) in each case, such other office or Affiliate of
such Lender as such Lender may from time to time specify in
writing to the Borrowers and the Administrative Agent.
"Applicable Margin" means, for each Borrower, for any day for
any outstanding Contract Advance, the percentage per annum set forth
below in effect on such day, determined on the basis of the Applicable
Rating Level for such Borrower:
Applicable Margin (Percentage %)
NU CL&P and WMECO
Applicable Rating Eurodollar Rate Base Rate Advances Eurodollar Rate Base Rate
Advances Advances Advances Advances Advances
Level I 0.225 0 0.20 0
Level II 0.275 0 0.25 0
Level III 0.45 0 0.40 0
Level IV 1.075 1.00 0.95 1.00
Level V 1.45 1.00 1.20 1.00
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, for each Borrower:
(i) in the case of each Eurodollar Rate Advance
comprising part of the same Borrowing requested by such
Borrower, a rate per annum during each Interest Period equal at
all times to the sum of the Eurodollar Rate for such Interest
Period plus the Applicable Margin in effect from time to time
during such Interest Period for such Borrower;
(ii) in the case of each Base Rate Advance requested
by such Borrower, a rate per annum equal at all times to the sum
of the Base Rate in effect from time to time plus the Applicable
Margin in effect from time to time for such Borrower;
(iii) in the case of each Eurodollar Competitive
Advance requested by such Borrower, a rate per annum during the
Interest Period therefor equal at all times to the sum of the
Eurodollar Rate for such Interest Period plus or minus, as
the case may be, the Competitive Margin in effect during such
Interest Period for such Borrower; and
(iv) in the case of each Fixed Rate Competitive
Advance requested by such Borrower, a rate per annum during the
Interest Period therefor equal at all times to the rate
specified by such Lender in its Competitive Bid and accepted by
such Borrower for such Competitive Advance in accordance with
Section 3.03(b)(iv) hereof.
"Applicable Rating Level" for each Borrower shall be determined
at any time and from time to time on the basis of the ratings of S&P
and ▇▇▇▇▇'▇ applicable at such time to such Borrower's Reference
Securities in accordance with the following:
Applicable Rating Level
NU CL&P WMECO
Level I BBB+ and Baa1 BBB+ and Baa1 BBB+ and Baa1
Level II BBB and Baa2 BBB and Baa2 BBB and Baa2
Level III BBB- and Baa3 BBB- and Baa3 BBB- and Baa3
Level IV BB and Ba2 BB and Ba2 BB and Ba2
Level V BB- and Ba3 or lower or BB- and Ba3 or lower or BB- and Ba3 or lower or unrated
unrated unrated
In the event of a split rating, the lower of the two ratings shall
control. 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.
"Available Commitment" means, for each Lender, the unused
portion of such Lender's Commitment (which shall be equal to the
excess, if any, of such Lender's Commitment over such Lender's Contract
Advances outstanding), less such Lender's Percentage of the aggregate
amount of Competitive Advances outstanding. "Available Commitments"
shall refer to the aggregate of the Lenders' Available Commitments
hereunder.
"Banks" has the meaning assigned to that term in the caption to
this Agreement.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum
shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as Citibank's
base rate;
(b) 1/2 of one percent per annum above the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average being determined weekly by Citibank on
the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized
standing selected by Citibank, in either case rounded upward to
the nearest 1/16th 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 Citibank's base rate, the CD Rate or the
Federal Funds Rate shall be effective on the effective date of such
change in Citibank's base rate, the CD Rate or the Federal Funds Rate,
respectively.
"Base Rate Advance" means a Contract Advance in respect of which
a Borrower has selected in accordance with ArticleIII hereof, or this
Agreement provides for, interest to be computed on the basis of the
Base Rate.
"Borrower" or "Borrowers" has the meaning assigned to that term
in the caption to this Agreement.
"Borrower Sublimit" means: (i) with respect to NU, $150,000,000;
(ii) with respect to CL&P, $313,750,000 and (iii) with respect to
WMECO, $150,000,000.
"Borrowing" means a Contract Borrowing or Competitive Borrowing
(each of which shall be a "Class" of 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 or Eurodollar
Competitive Advances, on which dealings are carried on in the London
interbank market.
"Citibank" has the meaning assigned to that term in the caption
to this Agreement.
"Class" has the meaning assigned to such term (i) in the
definition of "Advance" when used in such context and (ii) in the
definition of "Borrowing" when used in such context.
"CL&P" has the meaning assigned to that term in the caption to
this Agreement.
"CL&P Indenture" has the meaning assigned to that term in
Section 7.02(a)(ii)(B) hereof.
"Closing" means the fulfilment of all of the conditions
precedent enumerated in Section 5.01 hereof to the satisfaction of the
Administrative Agent, the Lenders and the Borrowers. All transactions
contemplated by the Closing shall take place on or prior to November
__, 1996, at the offices of King & Spalding, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00A.M. (New York City time), or such other
place and time as the parties hereto may mutually agree (the "Closing
Date").
"Co-Agents" has the meaning assigned to that term in the caption
to this Agreement.
"Commitment" means, for each Lender, the aggregate amount set
forth opposite such Lender's name on the signature pages hereof or, if
such Lender has entered into one or more Lender Assignments, set forth
for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 10.07(c), in each such case as such amount may
be reduced from time to time pursuant to Section 2.03 hereof.
"Commitments" shall refer to the aggregate of the Lenders' Commitments
hereunder.
"Common Equity" means, at any date for any 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 such Borrower
and its Subsidiaries and the surplus, paid-in, earned and other, if
any, of such Borrower and its Subsidiaries, in each case as determined
on a consolidated basis in accordance with generally accepted
accounting principles.
"Competitive Advance" means an advance by a Lender to a Borrower
as part of a Competitive Borrowing and refers to a Fixed Rate
Competitive Advance or a Eurodollar Competitive Advance (each of which
shall be a "Type" of Competitive Advance).
"Competitive Bid" means the offer by a Lender to make a
Competitive Advance to a Borrower under the competitive bidding
procedure described in Section 3.03(b).
"Competitive Bid Acceptance" means a notice given by a Borrower
to the Administrative Agent pursuant to Section 3.03(b)(iv) confirming
such Borrower's acceptance of one or more Competitive Bids, such notice
to be in the form of Exhibit 3.03D-1 hereto, in the case of Competitive
Bids for Eurodollar Competitive Advances, or in the form of Exhibit
3.03D-2 hereto, in the case of Competitive Bids for Fixed Rate
Competitive Advances.
"Competitive Bid Rate" means, as to any Competitive Bid made by
a Lender pursuant to Section 3.03(b)(iv), (i) in the case of a
Eurodollar Competitive Advance, the Competitive Margin and (ii) in the
case of a Fixed Rate Competitive Advance, the fixed rate of interest
offered by such Lender making such Competitive Bid.
"Competitive Bid Request" means a request for Competitive
Advances made by a Borrower to the Administrative Agent pursuant to
Section 3.03(b)(i), which request shall be in the form of Exhibit
3.03A-1 hereto, in the case of a request for Competitive Eurodollar
Advances, or in the form of Exhibit 3.03A-2 hereto, in the case of a
request for Competitive Fixed Rate Advances .
"Competitive Borrowing" means a borrowing consisting of one or
more Competitive Advances of the same Type and Interest Period made to
a Borrower on the same day by each of the Lenders whose Competitive Bid
to make one or more Competitive Advances as part of such borrowing has
been accepted by such Borrower under the competitive bidding procedure
described in Section 3.03(b). A Competitive Borrowing may be referred
to herein as being a "Type" of Competitive Borrowing, corresponding to
the Type of Competitive Advances comprising such Borrowing.
"Competitive Margin" means, with respect to any Eurodollar
Competitive Advance, the percentage per annum (expressed in the form of
a decimal to no more than four decimal places) to be added to or
subtracted from the Eurodollar Rate in order to determine the interest
rate applicable to such Advance, as specified in the Competitive Bid
relating to such Advance.
"Competitive Note" means a promissory note of a Borrower payable
to the order of a Lender, in substantially the form of Exhibit 1.01A
hereto, evidencing the indebtedness of such Borrower to such Lender
from time to time resulting from Competitive Advances made by such
Lender.
"Confidential Information" has the meaning assigned to that term
in Section 10.08 hereof.
"Continuing Directors" means the 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 (or was) recommended by
a majority of the then Continuing Directors.
"Consolidated Interest Expense" means, for any Borrower, for any
period, the aggregate amount of any interest required to be paid during
such period by such Borrower and its Subsidiaries on Debt (including
the current portion thereof) (as determined on a consolidated basis in
accordance with generally accepted accounting principles).
"Consolidated Operating Income" means for any Borrower, for any
period (as determined on a consolidated basis in accordance with
generally accepted accounting principles), such Borrower's and its
Subsidiaries' operating income for such period, adjusted as follows:
(i) increased by the amount of income taxes paid by such
Borrower and its Subsidiaries during such period, if and
to the extent deducted in the computation of such
Borrower's and its Subsidiaries' consolidated operating
income for such period;
(ii) increased by the amount of any depreciation and
amortization deducted in the computation of such
Borrower's and its Subsidiaries' consolidated
operating income for such period; and
(iii) decreased by the amount of any capital expenditures paid
by such Borrower and/or its Subsidiaries to the extent
not deducted in the computation of such Borrower's and
its Subsidiaries' consolidated operating income for such
period.
"Contract Advance" means an advance by a Lender to any Borrower
pursuant to Section 3.01 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 on the same day to the same Borrower
shall be deemed to be a single Advance by such Lender until repaid.
"Contract Borrowing" means a borrowing consisting of one or more
Contract Advances of the same Type and Interest Period, if any, made to
the same Borrower on the same Business Day by the Lenders, ratably in
accordance with their respective Commitments. A Contract Borrowing may
be referred to herein as being a "Type" of Contract Borrowing,
corresponding to the Type of Contract Advances comprising such
Borrowing. For purposes of this Agreement, all Contract Advances of
the same Type and Interest Period, if any, made on the same day to the
same Borrower shall be deemed a single Contract Borrowing hereunder
until repaid.
"Contract Note" means a promissory note of any Borrower payable
to the order of a Lender, in substantially the form of Exhibit 1.01B
hereto, evidencing the aggregate indebtedness of such Borrower to such
Lender resulting from the Contract Advances made by such Lender to such
Borrower.
"Debt" means, for any Person, without duplication,
(i) indebtedness of such Person for borrowed money, including but not
limited toobligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (ii) obligations of such Person to
pay the deferred purchase price of property or services (excluding any
obligation of such Person to the United States Department of Energy or
its successor with respect to disposition of spent nuclear fuel burned
prior to April3, 1983), (iii) obligations of such Person as lessee
under leases which shall have been or should be, in accordance with
generally accepted accounting principles, recorded as capital leases,
(iv) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in
clauses(i) through (iii), above, and (v) liabilities in respect of
unfunded vested benefits under ERISA Plans.
"Disclosure Documents" means with respect to each Borrower, such
Borrower's Annual Report on Form10-K for the year ended December31,
1995, its Quarterly Reports on Form10-Q for the quarters ended
March31, 1996, June30, 1996, and September 30, 1996 and any Current
Report on Form8-K delivered to the Lenders at least three Business
Days prior to the date of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person, any trade
or business (whether or not incorporated) which is a "commonly
controlled entity" of such Person within the meaning of the regulations
under Section 414 of the Internal Revenue Code of 1986, as amended from
time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan" subject
to TitleIV of ERISA.
"ERISA Plan" means an employee benefit plan (other than a ERISA
Multiemployer Plan) maintained for employees of any Borrower or any
ERISA Affiliate and covered by TitleIV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a Reportable Event not subject to the provision
for 30-day notice to the PBGC under such regulations) with respect to
an ERISA Plan or an ERISA Multiemployer Plan, or (ii) the withdrawal
of any Borrower or any of its ERISA Affiliates from an ERISA Plan or an
ERISA Multiemployer Plan during a plan year in which it was a
substantial employer" as defined in Section 4001(a)(2) of ERISA, or
(iii) the filing of a notice of intent to terminate an ERISA Plan or an
ERISA Multiemployer Plan or the treatment of an ERISA Plan or an
ERISA Multiemployer Plan under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or condition
which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
ERISA Plan or ERISA Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term
in RegulationD of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Competitive Advance" means a Competitive Advance in
respect of which a Borrower has selected in accordance with
Section 3.03 hereof, and this Agreement provides, interest to be
computed on the basis of the Eurodollar Rate.
"Eurodollar Rate" means, for each Interest Period for each
Eurodollar Rate Advance or Eurodollar Competitive 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 Section s3.06(d) and 4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in respect of
which a Borrower has selected in accordance with ArticleIII hereof,
and this Agreement provides for, interest to be computed on the basis
of the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender 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 RegulationD 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 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 Facilities" means the several 364-Day and
Three-Year Credit Agreements, each dated as of December 1, 1992,
entered into with individual banks by (i) CL&P, NU and WMECO, as
"Borrowers" thereunder and NUSCO as the "Borrowers' Agent" thereunder
and (ii) CL&P, NU, WMECO, HWP, NNECO and RRR, as "Borrowers" thereunder
and NUSCO as the "Borrowers' Agent" thereunder, each described on
Schedule IV hereto, in each case as amended, modified or supplemented to
the date hereof, together in each case with all "Notes" issued and
"Advances" made thereunder.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.
"Fee Letters" means collectively, (i) that certain Fee Letter
dated November 18, 1996 among Citibank, Citicorp Securities, Inc. and
the Borrowers and (ii) that certain Fee Letter dated November 18, 1996
among The ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Dominion Securities (USA) Inc.
and the Borrowers.
"FERC" means the Federal Energy Regulatory Commission.
"Financing Agreement" has the meaning assigned to that term in
Section 7.02(f) .
"First Mortgage Bonds" means any bond, however designated,
entitled to the benefits of a First Mortgage Indenture.
"First Mortgage Indenture" means, with respect to CL&P, the CL&P
Indenture; and with respect to WMECO, the WMECO Indenture.
"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.
"Fixed Rate Competitive Advance" means a Competitive Advance in
respect of which a Borrower has selected in accordance with Section
3.03(b) (iv) hereof, and this Agreement provides, interest to be
computed on the basis of a fixed percentage rate per annum (expressed
in the form of a decimal to no more than four decimal places) specified
by the Lender making such Advance in its Competitive Bid.
"Fraction" means, in respect of any Borrower as determined at
any time, a fraction, the numerator of which shall be the Borrower
Sublimit of such Borrower at such time, and the denominator of which
shall be the sum of the Borrower Sublimits of all Borrowers at such
time.
"Governmental Approval" means any authorization, consent,
approval, license, permit, certificate, exemption of, or filing or
registration with, any governmental authority or other legal or
regulatory body (including, without limitation, the Securities and
Exchange Commission, the FERC, the Nuclear Regulatory Commission, the
Connecticut Department of Public Utility Control and the Massachusetts
Department of Public Utilities), required in connection with either
(i) the execution, delivery or performance of this Agreement and the
Notes or (ii) the nature of a Borrower's or any Principal 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.
"HWP" means Holyoke Water Power Company, a corporation organized
under the laws of the Commonwealth of Massachusetts.
"Indemnified Person" has the meaning assigned to that term in
Section 10.04(b) hereof.
"Information Memorandum" means the confidential Information
Memorandum, dated September, 1996, regarding the Borrowers, as
distributed to the Agents and the Lenders, including, without
limitation, all schedules and attachments hereto.
"Interest Period" has the meaning assigned to that term in
Section 3.06(a) hereof.
"Lender Assignment" means an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative
Agent, in substantially the form of Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on the
signature pages hereof, and each assignee that shall become a party
hereto pursuant to Section 10.07.
"Lien" has the meaning assigned to that term in Section 7.02(a)
hereof.
"Majority Lenders" means on any date of determination, Lenders
who, collectively, on such date (i) have Percentages in the aggregate
of at least 66-2/3% and (ii) if the Commitments have been terminated,
hold at least 66-2/3% of the then aggregate unpaid principal amount of
the Advances owing to the Lenders. Determination of those Lenders
satisfying the criteria specified above for action by the Majority
Lenders shall be made by the Administrative Agent and shall be
conclusive and binding on all parties absent manifest error.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any
successor thereto.
"NAEC" means North Atlantic Energy Corporation, a corporation
organized under the laws of the State of New Hampshire.
"Niantic Bay Fuel Lease Agreement" means that certain Nuclear
Fuel Lease Agreement, dated as of January 4, 1982, as amended and
restated by the Amendment to and Restatement of Nuclear Fuel Lease
Agreement dated as of February 11, 1992, between the Niantic Bay Fuel
Trust, as lessor and CL&P and WMECO, as lessees, as amended from time
to time in accordance with the terms of this Agreement.
"Niantic Bay Fuel Trust" means Bankers Trust Company, not in its
individual capacity, but solely as trustee of the Niantic Bay Fuel
Trust under that certain Trust Agreement, dated as of January 4, 1982,
as amended and restated by the Amendment to and Restatement of Trust
Agreement dated as of February 11, 1992, between it, State Street Bank
and Trust Company of Connecticut, National Association (which is the
successor trustor to The New Connecticut Bank and Trust Company,
National Association, as assignee of the Federal Deposit Insurance
Company, as receiver of The Connecticut Bank and Trust Company,
National Association), as Trustor and CL&P and WMECO as Beneficiaries,
as amended from time to time in accordance with the terms of this
Agreement.
"Niantic Bay Fuel Trust Credit Agreement" means that certain
Credit Agreement, dated as of February 11, 1992, among the Niantic Bay
Fuel Trust, as borrower, the "Banks" from time to time parties thereto
and The First National Bank of Chicago, as "Bank Agent" thereunder, as
amended by a First Amendment thereto dated as of April 30, 1993 and a
Second Amendment thereto, dated as of May 12, 1995, as amended from
time to time in accordance with the terms of this Agreement.
"NNECO" means Northeast Nuclear Energy Company, a corporation
organized under the laws of the State of Connecticut.
"Note" means a Contract Note or a Competitive Note, as each 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, CL&P, WMECO, PSNH, NAEC and
HWP filed with the Securities and Exchange Commission in File No. 70-
8875, as amended from time to time.
"NUSCO" means Northeast Utilities Service Company, a Connecticut
corporation.
"Operating Companies" means the Principal Subsidiaries of NU and
HWP.
"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" means a Subsidiary, whether owned
directly or indirectly by a Borrower, which, with respect to such
Borrower and its Subsidiaries taken as a whole, represents at least ten
percent (10%) of such Borrower's consolidated assets or such Borrower's
consolidated net income (or loss) (it being understood that CL&P,
WMECO, PSNH and NAEC are Principal Subsidiaries of NU, but no other
Principal Subsidiaries of NU and no Principal Subsidiaries of any
other Borrower presently exist).
"PSNH" means Public Service Company of New Hampshire, a
corporation duly organized under the laws of the State of New
Hampshire.
"Recipient" has the meaning assigned to that term in
Section 10.08 hereof.
"Reference Banks" means Citibank, N.A., The Toronto-Dominion
Bank and Fleet National Bank, and any other bank or financial
institution designated by the Borrowers and the Administrative Agent
with the approval of the Majority Lenders to act as a Reference
Bank hereunder.
"Reference Securities" means (i)in the case of NU, NU's
unsecured long-term Debt not entitled to the benefits of a letter of
credit or other credit enhancement facility and (ii) in the case of
CL&P and WMECO, their respective First Mortgage Bonds not entitled to
the benefits of a letter of credit or other credit enhancement facility
(or, if no First Mortgage Bonds of CL&P or WMECO (as the case may be)
are then outstanding, such Borrower's other senior secured long-term
Debt not entitled to the benefits of a letter of credit or other credit
enhancement facility).
"Regulatory Asset" means, with respect to CL&P or WMECO, an
intangible asset established by regulatory order or similar action of a
utility regulatory agency having jurisdiction over CL&P or WMECO, as
the case may be, and included in the rate base of CL&P or WMECO, as the
case may be, to be amortized by rates over time.
"Regulatory Transaction" means any merger or consolidation of a
Borrower with or into, or any purchase or acquisition by a Borrower of
the assets of (and any related assumption by such Borrower of the
liabilities of) any utility company or utility-related company, if such
transaction is undertaken pursuant to an order or request of, or
otherwise in fulfillment of the stated goals of, a utility regulatory
agency having jurisdiction over NU or any of its Subsidiaries.
"Regulatory Transaction Entity" means any utility company or
utility-related company (other than a Borrower) that is the subject of
a Regulatory Transaction.
"RRR" means The Rocky River Realty Company, a corporation
organized under the laws of the State of Connecticut.
"S&P" means Standard and Poor's Rating Group, or any successor
thereto.
"SEC Borrowing Limit" means, for any Borrower on any date, the
short-term debt borrowing limit prescribed by the Securities and
Exchange Commission applicable to such Borrower on such date.
"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 or by the Parent and one or more
Subsidiaries of the Parent.
"Surviving Credit Facilities" means, as of any time following
the Closing, such of the Existing Credit Facilities as had not been
terminated on or prior to the Closing and which are marked as a
"Surviving Credit Facility" on Schedule IV hereto.
"Termination Date" means the earliest to occur of (i) November
21, 1999, or such later date to which the Termination Date shall be
extended in accordance with Section 2.04, (ii) November 29, 1996, if
the Closing Date shall not have occurred on or prior to such date,
(iii) the date of termination or reduction in whole of the Commitments
pursuant to Section 2.03 or 8.02 or (iv) the date of acceleration of
all amounts payable hereunder and under the Notes pursuant to
Section 8.02.
"Total Capitalization" means, at any date for any Borrower, the
sum of (i) the aggregate principal amount of all long-term and short-
term Debt (including the current portion thereof) of such Borrower and
its Subsidiaries, (ii) the aggregate of the par value of, or stated
capital represented by, the outstanding shares of all classes of common
and preferred shares of such Borrower and its Subsidiaries and
(iii) the consolidated surplus of such Borrower and its Subsidiaries,
paid-in, earned and other, if any, in each case as determined on a
consolidated basis in accordance with generally accepted accounting
principles consistent with those applied in the preparation of such
Borrower's financial statements included in its Annual Report on Form
10-K included by reference in the Information Memorandum.
"Total Commitment" means $313,750,000, or such lesser amount
from time to time as shall equal the sum of the Commitments.
"Type" has the meaning assigned to such term (i) in the
definition of "Contract Advance" when used in the such context and
(ii) in the definition of "Contract Borrowing" when used in such
context.
"Unmatured Default" means the occurrence and continuance of an
event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default.
"WMECO" has the meaning assigned to that term in the caption to
this Agreement.
"WMECO Indenture" has the meaning assigned to that term in
Section 7.02(a)(ii)(C) hereof.
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 included by
reference in the Information Memorandum. All references contained herein to
any Borrower's Annual Report on Form 10-K in respect of a Fiscal Year or
Quarterly Report on Form 10-Q in respect of a Fiscal Quarter shall be deemed to
include any exhibits and schedules thereto, including without limitation in the
case of any Annual Report on Form 10-K, any "Annual Report" of such Borrower
referred to therein.
SECTION 1.04 Computations of Outstandings. Whenever reference is made
in this Agreement to the principal amount of Advances outstanding under this
Agreement to one or more, or all, Borrowers on any date, such reference shall
refer to the aggregate principal amount of all such Advances to such
Borrower(s) outstanding on such date after giving effect to (i) all Advances
to be made to such Borrower(s) on such date and the application of the proceeds
thereof and (ii) any repayment or prepayment of Advances on such date by such
Borrower(s).
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments. (a) Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to the several
Borrowers from time to time on any Business Day during the period from the
Closing Date until the Termination Date, in an aggregate outstanding amount not
to exceed on any day such Lender's Available Commitment. Within the limits of
such Lender's Available Commitment, each Borrower may request Advances
hereunder, repay or prepay Advances and utilize the resulting increase in the
Available Commitments for further Advances in accordance with the terms hereof.
(b) In no event shall any Borrower be entitled to request or receive
any Advance under subsection(a) that would cause the aggregate principal
amount advanced pursuant thereto to exceed the Available Commitments. In no
event shall any Borrower be entitled to request or receive any Advance that
would cause the total principal amount of all Advances outstanding hereunder to
exceed the Total Commitment, or that would cause the aggregate principal amount
of all Advances outstanding to or requested by such Borrower to exceed such
Borrower's Borrower Sublimit. In no event shall any Borrower be entitled to
request or receive any Advance that, when aggregated with all other Advances
outstanding to or requested by such Borrower and all other short-term debt of
such Borrower, would exceed such Borrower's SEC Borrowing Limit as then in
effect.
(c) In addition to each Lender's Commitment under subsection(a)
above, but subject nevertheless to the provisions of subsection(b) above, each
Borrower may request Competitive Advances to be made at the discretion of each
Lender in accordance with Section 3.03 hereof.
SECTION 2.02. Fees. (a) In accordance with subsection(b) below, the
Borrowers agree 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, payable quarterly
in arrears on the last day of each March, June, September and December,
commencing the first such date following the Closing Date, with final payment
payable on the Termination Date.
(b) Each Borrower shall be liable for its pro rata share of each
payment of the Facility Fee hereunder, such pro rata share to be determined on
the basis of such Borrower's Fraction. The Borrowers' respective obligations
under Section s 4.03(a), 4.03(b) and 10.04 hereof shall be paid by each Borrower
in the same proportion as set forth in the immediately preceding sentence;
provided, however, that if and to the extent that any such obligations are
reasonably determined by the Borrowers (subject to the approval of the
Administrative Agent which approval shall not be unreasonably withheld) to be
directly attributable to Advances made to a specific Borrower or the Notes of
such Borrower, only such Borrower shall be liable for such obligations. In the
event that one Borrower fails to pay its portion of the Facility Fee or
payments under Section s4.03(a), 4.03(b) or 10.04 hereof, each of the other
Borrowers shall be jointly and severally liable for any such payment; provided,
however, that if and to the extent that any such payments (excluding
payment of the Facility Fee) are reasonably determined by the Borrowers
(subject to the approval of the Administrative Agent which approval shall not
be unreasonably withheld) to be directly attributable to Advances made to a
specific Borrower or the Notes of such Borrower, only such Borrower shall be
liable for such payments.
(c) The Borrowers further agree to pay the fees specified in the Fee
Letters, together with such other fees as may be separately agreed to by the
Borrowers and the Administrative Agent.
SECTION 2.03. Reduction of the Commitments and Borrower Sublimits.
(a)The Borrowers may jointly, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce ratably in part the
Commitments of the respective Lenders; provided that: (i)any such partial
reduction shall be in an aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof, and (ii)in no event shall the
Commitments be reduced to an amount less than the aggregate principal amount of
all Advances then outstanding. If as a result of any reduction of the
Commitments pursuant to this subsection, the Borrower Sublimit of any Borrower
would exceed the Total Commitment as then in effect, such Borrower Sublimit
shall be reduced to an amount equal to the Total Commitment as so in effect.
In no event shall the Borrowers be entitled to increase the Total Commitment
without the consent of all of the Lenders.
(b) Each Borrower may, severally and without the consent of any other
Borrower, upon at least five Business Days' notice to the Administrative
Agent, terminate in whole or reduce in part its Borrower Sublimit; provided
that: (i)any such partial reduction shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof, and
(ii)in no event shall any Borrower Sublimit be reduced to an amount less than
the aggregate principal amount of all Advances then outstanding to the relevant
Borrower. In no event shall any Borrower be entitled to increase its Borrower
Sublimit without the consent of all of the Lenders.
(c) If the Closing Date does not occur on or prior to November 29,
1996, the Commitment of each Lender shall automatically terminate.
SECTION 2.04. Extension of the Termination Date. Unless the
Termination Date shall have previously occurred in accordance with its terms,
at least 105 days but not more than 120 days before the Termination Date, as
then in effect, the Borrowers may jointly, by notice to the Administrative
Agent (any such notice being irrevocable), request the Administrative Agent and
the Lenders to extend the Termination Date for a period of one year. If the
Borrowers shall make such request, the Administrative Agent shall promptly
inform the Lenders thereof and, no later than 60 days prior to the Termination
Date as then in effect, the Administrative Agent shall notify the Borrowers in
writing if the Lenders consent to such request and the conditions of such
consent (including conditions relating to legal documentation and evidence of
the obtaining of all necessary governmental approvals). The granting of any
such consent shall be in the sole and absolute discretion of each Lender, and,
if any Lender shall not so notify the Administrative Agent or, if the
Administrative Agent shall not so notify the Borrowers, such lack of
notification shall be deemed to be a determination not to consent to such
request. No such extension shall occur unless all of the Lenders consent in
writing thereto (or if less than all the Lenders consent thereto, unless
one or more other existing Lenders, or one or more other banks and financial
institutions acceptable to the Borrowers and the Administrative Agent, agree to
assume all of the Commitments of the non-consenting Lenders).
ARTICLE III
CONTRACT AND COMPETITIVE 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 same
Borrower on the same Business Day by the Lenders ratably according to their
respective Commitments. Each Contract Borrowing shall be made on notice in
substantially the form of Exhibit 3.01 hereto (a "Notice of Contract
Borrowing"), delivered by the Borrower requesting such Contract Borrowing to
the Administrative Agent, by hand, telecopy or telex, 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)Interest Period for such Advances; (ii)the identity of the Borrower
requesting such proposed Borrowing and (iii)the Borrower Sublimit applicable
to such Borrower on the proposed date of such proposed Borrowing and the
aggregate amount of Advances to be outstanding to such Borrower on such date
after giving effect to such proposed Borrowing. Each proposed Borrowing shall
be subject to the provisions of Section s3.02, 4.03 and ArticleV 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 shall be in an
aggregate principal amount of not less than $10,000,000 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 and all
Competitive Borrowings to be made to, or repaid or prepaid by, the
relevant Borrower on such date; and
(iii) each Contract Borrowing hereunder which is to be
comprised of Eurodollar Rate Advances shall be in an aggregate
principal amount of not less than $10,000,000.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting such proposed Borrowing.
SECTION 3.b. (a)Competitive Advances. Each Competitive Borrowing
shall consist of Competitive Advances of the same Type and Interest Period made
by the Lenders in accordance with this Section 3.03 and shall be in a minimum
aggregate principal amount of $10,000,000 or an integral multiple of $1,000,000
in excess thereof, except as otherwise provided pursuant to Section 3.03(b)(iv)
hereof. Competitive Advances shall be made in the amounts accepted by the
Borrower requesting such Competitive Advance in accordance with
Section 3.03(b)(iv). Each Competitive Advance, regardless of which Lender
makes such Advance, will reduce the Available Commitments of all Lenders pro
rata as provided in the definition of "Available Commitments' in Section 1.01
hereof. Promptly after each Competitive Borrowing, the Administrative Agent
will notify each Lender of the amount of the Competitive Borrowing, the amount
by which such Lender's Available Commitment has been reduced, the date of the
Competitive Borrowing and the Interest Period with respect thereto.
(b) Competitive Bid Procedures.
(i) In order to request Competitive Advances: (A) in the
case of any request for Eurodollar Competitive Advances, the Borrower
requesting such Eurodollar Competitive Advances shall hand deliver,
telex or telecopy to the Administrative Agent a duly completed
Competitive Bid Request substantially in the form of Exhibit 3.03A-1
hereto to be received by the Administrative Agent not later than
10:00 a.m. (New York City time), four Business Days prior to the
proposed Eurodollar Competitive Borrowing and (B)in the case of any
request for Fixed Rate Competitive Advances, the Borrower requesting
such Fixed Rate Competitive Advances shall hand deliver, telex or
telecopy to the Administrative Agent a duly completed Competitive Bid
Request substantially in the form of Exhibit 3.03A-2 hereto to be
received by the Administrative Agent not later than 10:00 a.m. (New
York City time), one Business Day prior to the proposed Fixed Rate
Competitive Borrowing. Each such Competitive Bid Request shall refer
to this Agreement and specify: (1)the date of such Competitive
Borrowing (which shall be a Business Day), (2) the principal amount
thereof (which shall not be less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof), (3) the Interest Period with
respect thereto and the last day of such Interest Period (which shall
be at least 30 days from the date of such Competitive Borrowing and
shall fall on or prior to the Termination Date) and any additional
interest payment date or dates relating to such Competitive Borrowing,
(4) the Borrower Sublimit applicable to such Borrower on the day of
such Borrowing and the aggregate amount of Advances to be outstanding
to such Borrower on the date of such Borrowing after giving effect to
such Borrowing, (5) whether the Borrowing then being requested is to
consist of Eurodollar Competitive Advances or Fixed Rate Competitive
Advances and (6) any other terms applicable to such Competitive Bid
Borrowing. No Contract Advances shall be requested in or made pursuant
to a Competitive Bid Request. A Competitive Bid Request that does not
conform substantially to the form of Exhibit 3.03 A-1 or Exhibit 3.03 ▇-
▇, as the case may be, may be rejected in the Administrative Agent's
sole discretion, and the Administrative Agent shall promptly notify
the Borrower of such rejection by telex or telecopier. Promptly after
its receipt of a Competitive Bid Request that is not rejected as
aforesaid, the Administrative Agent shall by telex or telecopier (in
the form of Exhibit 3.03B hereto) invite the Lenders to bid to
make Competitive Bids in accordance with such Competitive Bid Request.
(ii) Each Lender may, in its sole discretion, make one or
more Competitive Bids to the Borrower requesting such Competitive Bids,
which Competitive Bids shall be responsive to the Competitive Bid
Request. Each Competitive Bid by such Lender must be received by the
Administrative Agent (A) in the case of a proposed Competitive
Borrowing to consist of Eurodollar Competitive Advances, by telex or
telecopier (in the form of Exhibit 3.03 C-1 hereto) not later than
9:30 a.m. (New York City time) three Business Days prior to a proposed
Competitive Borrowing and (B)in the case of a proposed Competitive
Borrowing to consist of Fixed Rate Competitive Advances, by telex
or telecopier (in the form of Exhibit 3.03 C-2 hereto) not later than
9:30 a.m. (New York City time) on the day of a proposed Competitive
Borrowing. Multiple bids will be accepted by the Administrative Agent.
Competitive Bids that do not conform substantially to the form of
Exhibit 3.03 C-1 or 3.03 C-2, as the case may be, may be rejected by the
Administrative Agent after conferring with, and upon the instruction
of, the Borrower requesting such Competitive Bid, and the
Administrative Agent shall notify the Lender making such non-conforming
bid of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (X)the principal amount
(which shall be a minimum principal amount of $10,000,000 and in an
integral multiple of $1,000,000 and which may be up to the aggregate
amount of the proposed Competitive Borrowing regardless of the
Commitment of the Lender) of the Competitive Advance that the Lender is
willing to make to the Borrower requesting such Competitive Bid and
(Y)the Competitive Bid Rate or Rates at which the Lender is prepared
to make the Competitive Advances. If any selected Lender shall elect
not to make a Competitive Bid, such Lender shall so notify the
Administrative Agent, in the case of a proposed Competitive Borrowing
to consist of Eurodollar Competitive Advances, by telex or telecopier,
not later than 9:30 a.m. (New York City time), three Business Days
prior to the proposed Competitive Borrowing, and, in the case of a
proposed Competitive Borrowing to consist of Fixed Rate Competitive
Advances, by telex or telecopier not later than 9:30 a.m. (New York
City time) on the day of the proposed Competitive Borrowing; provided,
however, that failure by any Lender to give such notice shall not cause
such Lender to be obligated to make any Competitive Advance. A
Competitive Bid submitted by a Lender pursuant to this subsection(ii)
shall be irrevocable.
(iii) The Administrative Agent shall (A)in the case of a
proposed Borrowing to consist of Eurodollar Competitive Advances,
promptly notify the Borrower that made such Competitive Bid Request by
telex or telecopier and (B)in the case of a proposed Borrowing to
consist of Fixed Rate Competitive Advances, notify such Borrower by
telephone not later than 10:00 a.m. (New York City time) on the day of
such proposed Competitive Borrowing of the Competitive Bids made, of
the Competitive Bid Rate and the principal amount of each Competitive
Bid and the identity of the Lender that made such Competitive Bid.
(iv) The Borrower that made such Competitive Bid Request may,
in its sole and absolute discretion, subject only to the provisions of
this subsection(iv), accept or reject any Competitive Bid. Such
Borrower shall notify the Administrative Agent by telephone whether and
to what extent it has decided to accept or reject any or all of the
Competitive Bids (specifying each Lender selected by it to make
Competitive Advances, the principal amount of such Advances and the
Competitive Bid Rate): (A)in the case of a Borrowing to consist of
Eurodollar Competitive Advances, by not later than 10:15 a.m. (New York
City time) three Business Days before a proposed Competitive Borrowing
(promptly confirmed by a Competitive Bid Acceptance in the form of
Exhibit 3.03 D-1 hereto, hand delivered, telexed or telecopied by such
Borrower to the Administrative Agent), and (B)in the case of a
Borrowing to consist of Fixed Rate Competitive Advances, not later than
10:15 a.m. (New York City time) on the day of a proposed Competitive
Borrowing (promptly confirmed by a Competitive Bid Acceptance in the
form of Exhibit 3.03D-2 hereto, hand delivered, telexed or telecopied
by such Borrower to the Administrative Agent); provided, however, that
(1)the failure by such Borrower to give such notice shall be deemed to
be a rejection of all the bids referred to in subsection(iii) above,
(2)such Borrower shall not accept a bid made at a particular
Competitive Bid Rate if such Borrower has decided to reject a bid made
at a lower Competitive Bid Rate, (3)the aggregate amount of the
Competitive Bids accepted by such Borrower shall not exceed the
principal amount specified in the Competitive Bid Request, (4)if such
Borrower shall determine to accept Competitive Bids made at a
particular Competitive Bid Rate but the aggregate amount of all
Competitive Bids made at such Competitive Bid Rate, when added to the
aggregate amount of all Competitive Bids at lower Competitive Bid
Rates, would cause the total amount of Competitive Bids to be accepted
by such Borrower to exceed the principal amount specified in the
Competitive Bid Request, then such Borrower shall accept all such
Competitive Bids at such Competitive Bid Rate in an aggregate amount
reduced to eliminate such excess, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made
ratably in accordance with the amount of each such Competitive Bid
(subject to clause(5) below), and (5)no Competitive Bid shall be
accepted for a Competitive Advance unless such Competitive Advance is
in a minimum principal amount of $10,000,000 and an integral multiple
of $1,000,000 in excess thereof; provided further, however, that if a
Competitive Advance must be in an amount of less than $10,000,000
because of the provisions of (4) above, such Competitive Advance may be
for a minimum of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of
multiple bids at a particular Competitive Bid Rate pursuant to (4)
above, the amounts shall be rounded to integral multiples of $1,000,000
in a manner which shall be in the discretion of such Borrower.
Notice given by such Borrower pursuant to this subsection(iv) shall be
irrevocable.
(v) The Administrative Agent shall notify each bidding
Lender whether or not its Competitive Bid has been accepted (and if so,
in what principal amount and at what Competitive Bid Rate): (A)in the
case of a proposed Borrowing to consist of Eurodollar Competitive
Advances, promptly by telex or telecopier and (B)in the case of a
proposed Borrowing to consist of Fixed Rate Competitive Advances, by
telephone (such information to be confirmed in writing by the
Administrative Agent to the bidding Lenders not later than 12:00noon
(New York City time) on such day), not later than 10:30 a.m. (New York
City time) on the day of the Competitive Borrowing and each successful
bidder will thereupon become bound, subject to the other applicable
conditions hereof, to make the Competitive Advance in respect of which
its bid has been accepted. The Administrative Agent shall not be
required to disclose to any Lender any other information with respect
to the Competitive Bids submitted, but the Administrative Agent may, at
the request of any Lender, and at the instruction of the Borrower that
made such Competitive Bid Request, provide to such Lender certain
information with respect to Competitive Bids made and accepted as
deemed appropriate by such Borrower.
(vi) Neither the Administrative Agent nor any Lender shall be
responsible to the Borrower that made such Competitive Bid Request for
(A)a failure to fund a Competitive Advance on the date such Advance is
requested by such Borrower or (B)the funding of such Advance at a
Competitive Bid Rate or in an amount other than that confirmed
pursuant to subsections(iv) and (v) above due in each case to delays
in communications, miscommunications (including, without limitation,
any variance between telephonic bids or acceptances and the written
notice provided by the Administrative Agent to the Lenders pursuant to
subsection (v) above or the written confirmation supplied by such
Borrower pursuant to subsection(iv) above) and the like among such
Borrower, the Administrative Agent and the Lenders, and such Borrower
agrees to indemnify each Lender for all reasonable costs and expenses
incurred by it in accordance with the terms of Section 4.03(e) hereof,
as a result of any such delay, miscommunication or the like that
results in a failure to fund a Competitive Advance or the funding of a
Competitive Advance at a Competitive Bid Rate or in an amount other
than that set forth in the written notice provided by the
Administrative Agent to the Lenders pursuant to subsection(v)
above or the written confirmation supplied by such Borrower pursuant to
subsection(iv) above.
(vii) If the Administrative Agent has elected to submit a
Competitive Bid in its capacity as Lender, such bid must be submitted
directly to the Borrower that made such Competitive Bid Request one
quarter of an hour earlier than the latest time at which the
other Lenders are required to submit their bids to the Administrative
Agent pursuant to subsection(ii) above.
(viii) A Competitive Bid Request for Eurodollar Competitive
Advances shall not be made within five Business Days after the date of
any previous Competitive Bid Request for Eurodollar Competitive
Advances.
(ix) All notices required by this Section 3.03 must be made
in accordance with Section 10.02.
(x) To facilitate the administration of this Agreement and
the processing of Competitive Bids, each Lender has submitted, or will
submit upon becoming a Lender pursuant to Section 10.07 hereof, to the
Administrative Agent a completed administrative questionnaire in the
form specified by the Administrative Agent, and each Lender agrees
to promptly notify the Administrative Agent in writing of any change in
the information so provided.
SECTION 3.04. Making of Advances. (a) Each Lender shall, before
12:00noon (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 and
Competitive Advances shall be made by the Lender or Lenders whose Competitive
Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts
so accepted. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in ArticleV, the
Administrative Agent will make such funds available to the Borrower that
made the request for such Borrowing at the Administrative Agent's aforesaid
address.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the time of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection(a) of this Section 3.04, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower
that made the request for such Borrowing a corresponding amount on such date.
If and to the extent that any such Lender (a "non-performing Lender") shall not
have so made such ratable portion available to the Administrative Agent, the
non-performing Lender and such Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to such Borrower until the date such amount is repaid to the Administrative
Agent, at (i)in the case of such Borrower, the interest rate applicable at the
time to Advances comprising such Borrowing and (ii)in the case of such
Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive
or otherwise reduce any claims that any party hereto may have against any non-
performing Lender.
(c) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 3.05. Repayment of Advances. Each Borrower shall repay the
principal amount of each Advance made to it hereunder on the last day of the
Interest Period for such Advance, which last day shall be the maturity date for
such Advance.
SECTION 3.06. Interest. (a)Interest Periods. The period commencing
on the date of each Advance and ending on the last day of the period selected
by a Borrower with respect to such Advance pursuant to the provisions of this
Section 3.06 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 or Eurodollar Competitive Advance, 1, 2, 3 or 6 months, (ii)in the
case of any Base Rate Advance, 90 days following the date on which such Advance
was made and (iii)in the case of any Fixed Rate Competitive Advance, any
number of days, but no less than 30 days or more than 270 days; provided,
however, that no Interest Period may be selected by any Borrower if such
Interest Period would end after the Termination Date.
(b) Interest Rates. Each Borrower shall pay interest on the unpaid
principal amount of each Advance owing by such Borrower from the date of such
Advance until such principal amount shall be paid in full, at the Applicable
Rate for such Advance (except as otherwise provided in this subsection(b)),
payable as follows:
(i) Eurodollar Rate Advances and Eurodollar Competitive
Advances. If such Advance is a Eurodollar Rate Advance or Eurodollar
Competitive Advance, interest thereon shall be payable on the last day
of the Interest Period therefor and, if any such Interest Period has a
duration of more than three months, also on the day of the third
month during such Interest Period which corresponds to the first day of
such Interest Period (or, if any such month does not have a
corresponding day, then on the last day of such third month); 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 (A)for the
remaining term, if any, of the Interest Period for such Advance, 2% per
annum above the Applicable Rate for such Advance for such Interest
Period, and (B)thereafter, 2% 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 and on the date such Base Rate
Advance shall be paid in full; 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
in effect from time to time for Base Rate Advances.
(iii) Fixed Rate Competitive Advances. If such Advance is a
Fixed Rate Competitive Advance, interest thereon shall be payable on
the last day of the Interest Period therefor and, if any Interest
Period has a duration of more than 90days, on each day which occurs
during such Interest Period every 90 days from the first day of such
Interest Period, 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 (A)for the remainder, if any, of the original stated
maturity of such Advance, 2% per annum above the rate of interest
applicable to such Advance immediately prior to the date on which such
amount became due, and (B)thereafter, 2% per annum above the
Applicable Rate in effect from time to time for Base Rate Advances.
(c) Other Amounts. Any other amounts payable hereunder that are not
paid when due shall (to the fullest extent permitted by law) bear interest,
from the date when due until paid in full, at a rate per annum equal at all
times to 2% per annum above the Applicable Rate in effect from time to time for
Base Rate Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent shall
give prompt notice to the Borrowers and the Lenders of the Applicable Rate
determined from time to time by the Administrative Agent for each Contract
Advance for each Borrower. Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining the
Eurodollar Rate for any Interest Period. If any one Reference Bank shall not
furnish such timely information, the Administrative Agent shall determine such
interest rate on the basis of the timely information furnished by the other two
Reference Banks.
SECTION 3.07. Several Obligations. Each Borrower's obligations
hereunder are several and not joint except as otherwise set forth in this
Agreement. Any actions taken by or on behalf of the Borrowers jointly or
simultaneously shall not result in one Borrower being held responsible
for the actions, debts or liabilities of the other Borrowers. Nothing
contained herein shall be interpreted as requiring the Borrowers to effect
Borrowings jointly.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations. (a)Each Borrower shall make
each payment hereunder and under the Notes not later than 12:00noon (New York
City time) on the day when due in U.S. Dollars to the Administrative Agent at
its address referred to in Section 10.02 hereof, in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest, fees or other amounts
payable to the Lenders, to the respective Lenders to whom the same are payable,
for the account of their respective Applicable Lending Offices, in each case to
be applied in accordance with the terms of this Agreement. Upon its acceptance
of a Lender Assignment and recording of the information contained therein in
the Register pursuant to Section 10.07, from and after the effective date
specified in such Lender Assignment, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Lender
Assignment shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) Each Borrower hereby authorizes the Administrative Agent and
each Lender, if and to the extent payment owed to the Administrative Agent or
such Lender, as the case may be, is not made when due hereunder (or, in the
case of a Lender, under the Note held by such Lender), to charge from time to
time against any or all of such Borrower's accounts with such Agent or
such Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Base Rate (except when
determined on the basis of the CD Rate or the Federal Funds Rate) shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be. All computations of interest and other amounts payable pursuant
to Section 4.03 shall be made by the Lender claiming such interest or other
amount, on the basis of a year of 360days. 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 CD Rate or the Federal
Funds Rate) and any interest on Fixed Rate Competitive Advances, and all
computations of fees and other amounts payable hereunder, shall be made by
the Administrative Agent on the basis of a year of 360 days. In each such
case, such computation shall be made for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such interest, fees or other amounts are payable. Each such determination by
the Administrative Agent or a Lender shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes 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 or Eurodollar Competitive Advances to be made, or the last day of
an Interest Period for a Eurodollar Rate Advance or a Eurodollar Competitive
Advance to occur, in the next following calendar month, such payment shall be
made on the next preceding Business Day and such reduction of time shall
in such case be included in the computation of payment of interest hereunder.
(e) Unless the Administrative Agent shall have received notice from
a Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to
the extent such Borrower shall not have so made such payment in full to the
Administrative Agent, such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 4.02. Prepayments. (a)No Borrower shall have any right to
prepay any Contract Advances except in accordance with subsections(b) and (c),
below. No Borrower shall have any right to prepay any Competitive Advance
except as required by subsection (c), below.
(b) Any Borrower may, (i)in the case of Eurodollar Rate Advances,
upon at least three Business Day's written notice to the Administrative Agent
(such notice being irrevocable) and (ii)in the case of Base Rate Advances,
upon notice not later than 11:00 a.m. on the date of the proposed prepayment to
the Administrative Agent (such notice being irrevocable), stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given, such Borrower shall, prepay Contract Advances comprising part
of the same Borrowing, in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid and any
amounts owing in connection therewith pursuant to Section 4.03(d); provided,
however, that each partial prepayment shall be in an aggregate principal amount
not less than $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
(c) If at any time, the aggregate principal amount of Advances
outstanding shall exceed the Total Commitment, the Borrowers shall forthwith
prepay Advances in a principal amount equal to such excess. If at any time,
the aggregate principal amount of Advances outstanding to any Borrower shall
exceed the Borrower Sublimit of such Borrower, such Borrower shall forthwith
prepay Advances in a principal amount equal to such excess. All prepayments
pursuant to this subsection (c) shall be effected first, from outstanding
Contract Advances comprising part of the same Borrowing or Borrowings, second
from outstanding Eurodollar Competitive Advances and third from outstanding
Fixed Rate Competitive Advances, 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);
provided, however, that any holder of a Competitive Advance may waive
prepayment of such Competitive Advance, and such waiver shall be binding on the
other Lenders.
SECTION 4.03. Yield Protection. (a)Change in Circumstances.
Notwithstanding any other provision herein, if after the date hereof, the
adoption of or any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall (i)change the basis of taxation of payments to
any Lender of the principal of or interest on any Eurodollar Rate Advance or
Competitive 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 such Lender or its Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or in which such Applicable Lending
Office is located or by any political subdivision or taxing authority therein),
or (ii)shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against commitments or assets of, deposits with or for the
account of, or credit extended by, such Lender, or (iii)shall impose on such
Lender or the London interbank market any other condition affecting this
Agreement or Eurodollar Rate Advances or Competitive Advances made by such
Lender, and the result of any of the foregoing shall be to increase the cost to
such Lender, of agreeing to make, making or maintaining any Advance or to
reduce the amount of any sum received or receivable by such Lender hereunder or
under the Notes (whether of principal, interest or otherwise), then the
Borrowers will pay to such Lender upon demand such additional amount or amounts
as will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) Capital. If any Lender shall have determined that any change
after the date hereof in any law, rule, regulation or guideline adopted
pursuant to or arising out of the July 1988 report of the Basle Committee on
Banking Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards', or the adoption
after the date hereof of any law, rule, regulation or guideline regarding
capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any Applicable Lending
Office of such Lender) or any Lender's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect (i)of reducing the rate of return on such Lender's capital or on the
capital of such Lender's holding company, if any, as a consequence of
this Agreement, the Commitment of such Lender hereunder or the Advances made by
such Lender pursuant hereto to a level below that which such Lender or such
Lender's holding company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), or (ii) of increasing or otherwise determining the amount of
capital required or expected to be maintained by such Lender or such Lender's
holding company based upon the existence of this Agreement, the Commitment of
such Lender hereunder, the Advances made by such Lender pursuant hereto and
other similar such commitments, agreements or assets, then from time to time
the Borrowers shall pay to such Lender upon demand such additional amount or
amounts as will compensate such Lender or such Lender's holding company for any
such reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. Each Borrower shall pay to each Lender
upon demand, so long as such Lender shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender to such Borrower, from the date of such
Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i)the
Eurodollar Rate for the Interest Period for such Advance from (ii)the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Reserve Percentage of such Lender for such Interest Period.
Such additional interest shall be determined by such Lender and notified to the
relevant Borrower and the Administrative Agent.
(d) Breakage Indemnity. Each Borrower shall indemnify each Lender
against any loss, cost or reasonable expense which such Lender may sustain or
incur as a consequence of (i)any failure by such Borrower to fulfill on the
date of any Borrowing hereunder of Eurodollar Rate Advances or Competitive
Advances the applicable conditions precedent set forth in ArticleV,
(ii)any failure by such Borrower to borrow any Eurodollar Rate Advance
hereunder after a Notice of Contract Borrowing has been delivered pursuant to
Section 3.01 hereof or to borrow any Competitive Advance hereunder after a
Competitive Bid Acceptance in respect thereof has been delivered pursuant to
Section 3.03(b)(iv) hereof, (iii)any payment or prepayment of a Eurodollar
Rate Advance or Competitive Advance made to such Borrower required or permitted
by any other provision of this Agreement or otherwise made or deemed made on a
date other than the last day of the Interest Period applicable thereto,
(iv)any default in payment or prepayment of the principal amount of any
Eurodollar Rate Advance or Competitive Advance made to such Borrower
or any part thereof or interest accrued thereon, as and when due and payable
(at the due date thereof, by irrevocable notice of prepayment or otherwise) or
(v)the occurrence of any Event of Default with respect to such Borrower,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Advance or any part
thereof as a Eurodollar Rate Advance or Competitive 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 or Competitive Advance being paid, prepaid
or not borrowed for the period from the date of such payment, prepayment or
failure to borrow to the last day of the Interest Period for such Advance (or,
in the case of a failure to borrow, the Interest Period for such Advance which
would have commenced on the date of such failure) over (B)the amount of
interest (as reasonably determined by such Lender) that would be realized by
such Lender in reemploying the funds so paid, prepaid 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 or Eurodollar Competitive Advance, each Lender shall have funded each
such Advance with a fixed-rate instrument bearing the rates and maturities
designated in the determination of the Applicable Rate for such Advance.
(e) Notices. A certificate of each Lender setting forth such
Lender's claim for compensation hereunder and the amount necessary to
compensate such Lender or its holding company pursuant to subsections(a)
through (d) of this Section 4.03 shall be submitted to the Borrowers and the
Administrative Agent and shall be conclusive and binding for all purposes,
absent manifest error. The appropriate Borrowers shall pay each Lender
directly the amount shown as due on any such certificate within 10days after
its receipt of the same. The failure of any Lender to provide such notice or
to make demand for payment under this Section 4.03 shall not constitute a
waiver of such Lender's rights hereunder; provided that such Lender shall not
be entitled to demand payment pursuant to subsections(a) through (d) of this
Section 4.03, in respect of any loss, cost, expense, reduction or reserve, if
such demand is made more than one year following the later of such Lender's
incurrence or sufferance thereof or such Lender's actual knowledge of the event
giving rise to such Lender's rights pursuant to such subsections. Each
Lender shall use reasonable efforts to ensure the accuracy and validity of any
claim made by it hereunder, but the foregoing shall not obligate any Lender to
assert any possible invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
(f) Change in Legality. Notwithstanding any other provision herein,
if the adoption of or any change in any law or regulation or in the
interpretation or administration thereof by any governmental authority charged
with the administration or interpretation thereof shall make it unlawful for
any Lender to make or maintain any Eurodollar Rate Advance or Eurodollar
Competitive Advance or to give effect to its obligations as contemplated hereby
with respect to any Eurodollar Rate Advance or Eurodollar Competitive Advance,
then, by written notice to the Borrowers and the Administrative Agent, such
Lender may:
(i) declare that Eurodollar Rate Advances and Eurodollar
Competitive Advances will not thereafter be made by such Lender
hereunder, whereupon the right of any Borrower to select Eurodollar
Rate Advances for any Borrowing and any Competitive Borrowing
consisting of Eurodollar Competitive Advances shall be forthwith
suspended until such Lender shall withdraw such notice as provided
hereinbelow or shall cease to be a Lender hereunder pursuant to
Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances
and Eurodollar Competitive Advances made by it be repaid as of the
effective date of such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall promptly notify
the other Lenders. Promptly upon becoming aware that the circumstances that
caused such Lender to deliver such notice no longer exist, such Lender shall
deliver notice thereof to the Borrowers and the Administrative Agent
withdrawing such prior notice (but the failure to do so shall impose no
liability upon such Lender). Promptly upon receipt of such withdrawing notice
from such Lender (or upon such Lender assigning all of its Commitments,
Advances, participation and other rights and obligations hereunder in
accordance with Section 10.07(g)), the Administrative Agent shall deliver
notice thereof to the Borrowers and the Lenders and such suspension shall
terminate. Prior to any Lender giving notice to the Borrowers under this
subsection(f), such Lender shall use reasonable efforts to change the
jurisdiction of its Applicable Lending Office, if such change would avoid such
unlawfulness and would not, in the sole determination of such Lender, be
otherwise disadvantageous to such Lender. Any notice to the Borrowers by any
Lender shall be effective as to each Eurodollar Rate Advance and Eurodollar
Competitive Advance on the last day of the Interest Period currently applicable
to such Eurodollar Rate Advance or Eurodollar Competitive Advance; provided
that if such notice shall state that the maintenance of such Advance until such
last day would be unlawful, such notice shall be effective on the date of
receipt by the Borrowers and the Administrative Agent.
(g) Market Rate Disruptions. If (i)less than two Reference Banks
furnish timely information to the Administrative Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances or Eurodollar Competitive 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 or Eurodollar Competitive Advances,
the right of the Borrowers to select or receive Eurodollar Rate Advances or
Eurodollar Competitive Advances for any Borrowing shall be forthwith suspended
until the Administrative Agent shall notify the Borrowers and the Lenders that
the circumstances causing such suspension no longer exist, and until such
notification from the Administrative Agent each requested Borrowing of
Eurodollar Rate Advances and each requested Borrowing of Eurodollar Competitive
Advances hereunder shall be deemed to be a request for Base Rate Advances.
SECTION 4.04. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise, but excluding any proceeds received by assignments or
sales of participation in accordance with Section 10.07 hereof to a Person that
is not an Affiliate of the Borrowers) on account of the Advances owing to it
(other than pursuant to Section 4.03 hereof) in excess of its ratable share
of payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participation in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i)the amount of such Lender's required
repayment to (ii)the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrowers agree that any Lender
so purchasing a participation from another Lender pursuant to this Section 4.04
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of any such Borrower in the amount
of such participation. Notwithstanding the foregoing, if any Lender shall
obtain any such excess payment involuntarily, such Lender may, in lieu of
purchasing participation from the other Lenders in accordance with this
Section 4.04, on the date of receipt of such excess payment, return such
excess payment to the Administrative Agent for distribution in accordance with
Section 4.01(a).
SECTION 4.05. Taxes. (a)All payments by or on behalf of any Borrower
hereunder and under the Notes shall be made in accordance with Section 4.01,
free and clear of and without deduction for all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it, by the jurisdiction of
such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If any
Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under the Notes to any Lender or the
Administrative Agent, (i)the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.05) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii)such Borrower
shall make such deductions and (iii)such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made by such Borrower hereunder or
under the Notes or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) Each Borrower hereby indemnifies each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and any Other Taxes imposed by any jurisdiction
on amounts payable under this Section 4.05) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted. A
Lender's claim for such indemnification shall be set forth in a certificate of
such Lender setting forth in reasonable detail the amount necessary to
indemnify such Lender pursuant to this subsection(c) and shall be submitted to
the Borrowers and the Administrative Agent and shall be conclusive and binding
for all purposes, absent manifest error. The appropriate Borrower shall pay
each Lender directly the amount shown as due on any such certificate within
30days after the receipt of same. If any Taxes or Other Taxes for which
a Lender or the Administrative Agent has received payments from a Borrower
hereunder shall be finally determined to have been incorrectly or illegally
asserted and are refunded to such Lender or the Administrative Agent, such
Lender or the Administrative Agent, as the case may be, shall promptly forward
to such Borrower any such refunded amount. Each Borrower's, the Administrative
Agent's and each Lender's obligations under this Section 4.05 shall survive the
payment in full of the Advances.
(d) Within 30days after the date of any payment of Taxes, the
Borrower making such payment will furnish to the Administrative Agent, at its
address referred to in Section 10.02, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of the
United States of America or any state thereof shall, on or prior to the date it
becomes a Lender hereunder, deliver to the Borrowers and the Administrative
Agent such certificates, documents or other evidence, as required by the
Internal Revenue Code of 1986, as amended from time to time (the "Code"), or
treasury regulations issued pursuant thereto, including Internal Revenue
Service Form4224 and any other certificate or statement of exemption required
by Treasury Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any
subsequent version thereof, properly completed and duly executed by such Lender
establishing that it is (i)not subject to withholding under the Code
or (ii)totally exempt from United States of America tax under a provision of
an applicable tax treaty. Each Lender shall promptly notify the Borrowers and
the Administrative Agent of any change in its Applicable Lending Office and
shall deliver to the Borrowers and the Administrative Agent together with such
notice such certificates, documents or other evidence referred to in the
immediately preceding sentence. Each Lender will use good faith efforts to
apprise the Borrowers and the Administrative Agent as promptly as practicable
of any impending change in its tax status that would give rise to any
obligation by any Borrower to pay any additional amounts pursuant to this
Section 4.05. Unless the Borrowers and the Administrative Agent have received
forms or other documents satisfactory to them indicating that payments
hereunder or under the Notes are not subject to United States of America
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrowers or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate in the case of payments to or
for any Lender organized under the laws of a jurisdiction outside the United
States of America. Each Lender represents and warrants that each such form
supplied by it to the Administrative Agent and the Borrowers pursuant to this
Section 4.05, and not superseded by another form supplied by it, is or will be,
as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to
this Section 4.05 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrowers or to change the jurisdiction of its Applicable Lending Office if the
making of such a filing or change would avoid the need for or reduce the amount
of any such additional amounts which may thereafter accrue and would not, in
the sole determination of such Lender, be otherwise disadvantageous to such
Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The effectiveness
of this Agreement is subject to the fulfillment of the following conditions
precedent:
(a) The Administrative Agent shall have received on or before the
Closing Date the following, each dated the Closing Date, in form and substance
satisfactory to the Administrative Agent and in sufficient copies for each
Lender (except for the Notes):
(i) Counterparts of this Agreement, duly executed by each
Borrower.
(ii) Contract Notes of each Borrower, duly made to the order
of each Lender in the amount of such Lender's Commitment.
(iii) Competitive Notes of each Borrower, duly made to the
order of each Lender in the amount of such Borrower's Borrower
Sublimit.
(iv) A certificate of the Secretary or Assistant Secretary of
each Borrower certifying:
(A) the names and true signatures of the officers of
such Borrower authorized to sign this Agreement and such
Borrower's Notes, as the case may be, and the other documents to
be delivered by such Borrower hereunder;
(B) that attached thereto are true and correct copies
of: (1) in the case of NU, its Declaration of Trust, and in
the case of CL&P and WMECO, its Articles of Incorporation and
By-laws, together with all amendments thereto, as in effect on
such date; (2)in the case of NU, the resolutions of its Board
of Trustees and, in the case of CL&P and WMECO, the resolutions
of their respective Boards of Directors, in each case approving
this Agreement and such Borrower's Notes and the other documents
to be delivered by or on behalf of such Borrower hereunder;
(3)all documents evidencing other necessary corporate or other
similar action, if any, with respect to the execution, delivery
and performance by such Borrower of this Agreement and such
Borrower's Notes; 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 or
made by such Borrower in connection with the execution, delivery
and performance by such Borrower of this Agreement and such
Borrower's Notes.
(C) that the resolutions referred to in the foregoing
clause (B)(2) have not been modified, revoked or rescinded and
are in full force and effect on such date.
(v) A certificate signed by the Treasurer or Assistant
Treasurer of each Borrower, certifying as to:
(A) the SEC Borrowing Limit of such Borrower as in
effect on the Closing Date;
(B) in the case of NU, the Aggregate Dividend Paying
Availability of the Operating Companies as of September 30,
1996;
(C) the delivery to each of the Lenders, prior to the
Closing Date, of true, correct and complete copies (other than
exhibits thereto) of all of the Disclosure Documents; and
(D) the absence of any material adverse change in the
financial condition, operations, properties or prospects of such
Borrower since December 31, 1995, except as disclosed in the
Disclosure Documents.
(vi) A certificate of a duly authorized officer of each
Borrower stating that (i)the representations and warranties contained
in Section 6.01 of such Borrower are correct, in all material respects,
on and as of the Closing Date before and after giving effect to the
Advances to be made on such date and the application of the proceeds
thereof, and (ii)no event has occurred and is continuing with respect
to such Borrower which constitutes an Event of Default or Unmatured
Default in respect of such Borrower, or would result from such initial
Advances or the application of the proceeds thereof.
(vii) Such financial, business and other information regarding
each Borrower and its Principal Subsidiaries, as any Agent shall have
reasonably requested.
(viii) Favorable opinions of:
(A) Day, ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Borrowers, in
substantially the form of Exhibit 5.01A hereto and as to such
other matters as the Administrative Agent may reasonably
request;
(B) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel of
NUSCO, in substantially the form of Exhibit 5.01B-1 hereto;
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Counsel of PSNH, in substantially
the form of Exhibit 5.01B-2 hereto; and ▇▇▇▇▇▇▇ Early, Senior
Counsel of NUSCO, in substantially the form of Exhibit 5.01B-3
hereto; and, in each case, as to such other matters as the
Administrative Agent may reasonably request; and
(C) King & Spalding, special New York counsel to the
Administrative Agent, in substantially the form of Exhibit 5.01C
hereto and as to such other matters as the Administrative Agent
may reasonably request.
(ix) Irrevocable notice to each of the Banks party to the
Existing Credit Facilities (other than the Surviving Credit Facilities)
notifying such Banks of the termination of their respective
"Commitments" thereunder effective on or before the satisfaction (or
waiver) of the other conditions precedent set forth in this Section
5.01.
(b) The Existing Credit Facilities (other than the Surviving Credit
Facilities) have been (or will have been, upon the first Advance and the
application of the proceeds thereof) paid in full and the "Commitments"
thereunder terminated.
(c) All fees and other amounts payable pursuant to Section 2.02
hereof or pursuant to the Fee Letters shall have been paid (to the extent then
due and payable).
(d) The Administrative Agent shall have received such other
approvals, opinions and documents as the Majority Lenders, through the
Administrative Agent, shall have reasonably requested as to the legality,
validity, binding effect or enforceability of this Agreement and the
Notes or the financial condition, operations, properties or prospects of each
Borrower and their respective Principal Subsidiaries.
SECTION 5.02. Conditions Precedent to Certain Contract Advances and All
Competitive Advances. The obligation of any Lender to make any Contract
Advance to any Borrower (except any Contract Advance described in
Section 5.03), including the initial Contract Advance to such Borrower, or to
make any Competitive Advance to such Borrower, shall be subject to the
conditions precedent that, on the date of such Contract Advance or Competitive
Advance and after giving effect thereto:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Contract Borrowing or Competitive
Bid Request with respect to such Advance and the acceptance of the
proceeds of such Advance without prior correction by or on behalf of
such Borrower shall constitute a representation and warranty by such
Borrower that on the date of such Advance such statements are true):
(i) the representations and warranties of such
Borrower contained in Section 6.01 of this Agreement are
correct, in all material respects, on and as of the date of such
Advance, before and after giving effect to such Advance and to
the application of the proceeds therefrom, as though made on and
as of such date;
(ii) no Event of Default or Unmatured Default with
respect to such Borrower has occurred and is continuing or would
result from such Advance or from the application of the proceeds
thereof;
(iii) the making of such Advance, when aggregated with
all other Advances outstanding to or requested by such Borrower
would not cause such Borrower's Borrower Sublimit to be
exceeded;
(iv) the making of such Advance, when aggregated with
all other Advances outstanding to or requested by such Borrower
and all other outstanding short-term debt of such Borrower would
not cause such Borrower's SEC Borrowing Limit then in effect to
be exceeded; and
(v) if such Borrower is NU, the Aggregate Dividend
Paying Availability of the Operating Companies determined as of
the last day of the most recently ended Fiscal Quarter is at
least equal to the aggregate principal amount of Advances
outstanding to NU, before and after giving effect to such
Advance and to the application of the proceeds therefrom; and
(b) such Borrower shall have furnished to the Administrative
Agent such other approvals, opinions or documents as any Lender may
reasonably request through the Administrative Agent as to the legality,
validity, binding effect or enforceability of this Agreement or the
Notes.
SECTION 5.03. Conditions Precedent to Other Contract Advances. The
obligation of any Lender to make any Contract Advance to any Borrower that
would not increase the aggregate principal amount of Contract Advances made by
such Lender to such Borrower (as determined immediately prior to and after the
making of such Contract Advance) shall be subject to the conditions precedent
that, on the date of such Contract Advance and after giving effect thereto:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Contract Borrowing with respect to
such Contract Advance and the acceptance of the proceeds of such
Contract Advance without prior correction by or on behalf of such
Borrower shall constitute a representation and warranty by such
Borrower that on the date of such Contract Advance such statements are
true):
(i) the representations and warranties of such
Borrower contained in Section 6.01 of this Agreement (excluding
those contained in subsections (f), (g), (h)(ii) and (i)
thereof) are correct, in all material respects, on and as of the
date of such Contract Advance, before and after giving effect to
such Contract Advance and to the application of the proceeds
therefrom, as though made on and as of such date;
(ii) no Event of Default with respect to such Borrower
has occurred and is continuing or would result from such
Contract Advance or from the application of the proceeds
thereof;
(iii) the making of such Contract Advance, when
aggregated with all other Advances outstanding to or requested
by such Borrower would not cause such Borrower's Borrower
Sublimit to be exceeded;
(iv) the making of such Contract Advance, when
aggregated with all other Advances outstanding to or requested
by such Borrower and all other outstanding short-term debt of
such Borrower would not cause such Borrower's SEC Borrowing
Limit then in effect to be exceeded; and
(v) if such Borrower is NU, the Aggregate Dividend
Paying Availability of the Operating Companies determined as of
the last day of the most recently ended Fiscal Quarter is at
least equal to the aggregate principal amount of Advances
outstanding to NU plus the aggregate principal amount of
"advances" outstanding to NU under the Surviving Credit
Facilities, before and after giving effect to such Advance and
to the application of the proceeds therefrom; and
(b) such Borrower shall have furnished to the Administrative
Agent such other approvals, opinions or documents as any Lender may
reasonably request through the Administrative Agent as to the legality,
validity, binding effect or enforceability of this Agreement or the
Notes.
SECTION 5.04. Reliance on Certificates. The Lenders and the
Administrative Agent shall be entitled to rely conclusively upon the
certificates delivered from time to time by officers of each Borrower as to the
names, incumbency, authority and signatures of the respective persons
named therein until such time as the Administrative Agent may receive a
replacement certificate, in form acceptable to the Administrative Agent, from
an officer of such Borrower identified to the Administrative Agent as having
authority to deliver such certificate, setting forth the names and true
signatures of the officers and other representatives of such Borrower
thereafter authorized to act on behalf of such Borrower and, in all cases, the
Lenders and the Administrative Agent may rely on the information set forth in
any such certificate.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants with respect to itself as follows:
(a) Each of such Borrower and its Principal Subsidiaries is
a corporation (or, in the case of NU, a voluntary association organized
under a declaration of trust) 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 NU, the 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 such Borrower or of such Borrower and its Principal Subsidiaries
taken as a whole. Such Borrower has the corporate power (or,
in the case of NU, the power under its declaration of trust) to
execute, deliver and perform its obligations under this Agreement, to
borrow hereunder and to execute and deliver its respective Notes.
(b) The execution, delivery and performance of this
Agreement and the Notes of such Borrower by such Borrower are within
such Borrower's corporate powers (or, in the case of NU, its powers
under its declaration of trust), have been duly authorized by
all necessary corporate or other similar action, and do not and will
not contravene (i)such Borrower's declaration of trust, charter or
by-laws, as the case may be, or any law or legal restriction or (ii)
any contractual restriction binding on or affecting such Borrower or
its properties or any of its Principal Subsidiaries or its properties.
(c) Except as disclosed in such Borrower's Disclosure
Documents, each of such Borrower and its Principal Subsidiaries is not
in violation of any law, or in default with respect to any judgment,
writ, injunction, decree, rule or regulation (including any of the
foregoing relating to environmental laws and regulations) of any court
or governmental agency or instrumentality, where such violation or
default would reasonably be expected to have a material adverse effect
on the financial condition, properties, prospects or operations of such
Borrower or of such Borrower and its Principal Subsidiaries, taken as
a whole.
(d) All Governmental Approvals referred to in clause(i) in
the definition of "Governmental Approvals" have been duly obtained or
made, and all applicable periods of time for review, rehearing or
appeal with respect thereto have expired, except as described below; no
Governmental Approvals referred to in clause(i) in the definition of
"Governmental Approvals" are required from either the Connecticut
Department of Public Utility Control or the Massachusetts Department of
Public Utilities. If the period for appeal of the order of the
Securities and Exchange Commission approving the transactions
contemplated hereby has not expired, the filing of an appeal of such
order will not affect the validity of said transactions, unless such
order has been otherwise stayed or any of the parties hereto has actual
knowledge that any of such transactions constitutes a violation of
the Public Utility Holding Company Act of 1935 or any rule or
regulation thereunder. No such stay exists and no Borrower has any
reason to believe that any of such transactions constitutes any such
violation. Such Borrower and each of its Principal Subsidiaries have
obtained or made all Governmental Approvals referred to in clause(ii)
of the definition of "Governmental Approvals", except (A)those which
are not yet required but which are obtainable in the ordinary course of
business as and when required, (B)those the absence of which would not
materially adversely affect the financial condition, properties,
prospects or operations of such Borrower or any Principal Subsidiary
and (C)those which such Borrower is diligently attempting in good
faith to obtain, renew or extend, or the requirement for which such
Borrower is contesting in good faith by appropriate proceedings or by
other appropriate means; in each case described in the foregoing
clause(C), except as is disclosed in such Borrower's Disclosure
Documents, such attempt or contest, and any delay resulting therefrom,
is not reasonably expected to have a material adverse effect on the
financial condition, properties, prospects or operations of such
Borrower or any Principal Subsidiary 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) This Agreement and the Notes of such Borrower are legal,
valid and binding obligations of such Borrower enforceable against such
Borrower in accordance with their respective terms; subject to the
qualification, however, that the enforcement of the rights and remedies
herein and therein is subject to bankruptcy and other similar laws
of general application affecting rights and remedies of creditors and
the application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(f) The audited consolidated balance sheet of such
Borrower as at December31, 1995, and the audited consolidated
statements of income and cash flows of such Borrower (in the case of
WMECO, the audited balance sheet and the audited statements of income
and cash flows) for the Fiscal Year then ended as included in such
Borrower's Annual Report on Form 10-K for such Fiscal Year, fairly
present in all material respects the consolidated financial condition
and results of operations of such Borrower (in the case of WMECO, on an
unconsolidated basis) at and for the period ended on such date, and
have been prepared in accordance with generally accepted accounting
principles consistently applied. Since December31, 1995 there has
been no material adverse change in the consolidated (or in the case of
WMECO, unconsolidated) financial condition, operations, properties or
prospects of such Borrower and its Subsidiaries, if any, taken as a
whole, except as disclosed in such Borrower's Disclosure Documents.
(g) With respect to NU only, (A) the unconsolidated balance
sheet of NU as at December31, 1995, and the unconsolidated statements
of income and cash flows of NU for the Fiscal Year then ended contained
in the consolidating balance sheet of NU and its Subsidiaries and the
consolidating statements of income and cash flows of NU and its
Subsidiaries, as set forth in the Form U5S of NU filed with the
Securities and Exchange Commission and (B)the unaudited unconsolidated
balance sheet of NU as at June30, 1996 and the unaudited
unconsolidated statement of income of NU for the six-month period then
ended, in each case as provided to the Lenders, fairly present in all
material respects the financial condition and results of operations of
NU on an unconsolidated basis at and for the respective periods ended
on such dates, and have been prepared in accordance with generally
accepted accounting principles consistently applied. Since June30,
1996, there has been no material adverse change in the financial
condition, operations, properties or prospects of NU on an
unconsolidated basis, except as disclosed in such Borrower's
Disclosure Documents.
(h) There is no pending or known threatened action or
proceeding (including, without limitation, any action or proceeding
relating to any environmental protection laws or regulations) affecting
such Borrower or its properties, or any of its Principal Subsidiaries
or its properties, before any court, governmental agency or arbitrator
(i) which affects or purports to affect the legality, validity or
enforceability of (A)this Agreement or such Borrower's Notes or
(B)the Existing Credit Facilities or (ii)as to which there is a
reasonable possibility of an adverse determination and which, if
adversely determined, would materially adversely affect the financial
condition, properties, prospects or operations of such Borrower,
except, for purposes of this clause (ii) only, such as is described in
such Borrower's Disclosure Documents or in Schedule II hereto.
(i) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan which would
materially adversely affect the financial condition, properties,
prospects or operations of such Borrower and its 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" has occurred with respect thereto that, singly
or in the aggregate with all other "prohibited transactions" and after
giving effect to all likely consequences thereof, would be reasonably
expected to have a material adverse effect on the financial condition,
properties, prospects or operations of such Borrower and its
Subsidiaries taken as a whole. Neither such Borrower nor any of its
ERISA Affiliates has incurred nor reasonably expects to incur any
material withdrawal liability under ERISA to any ERISA Multiemployer
Plan, except as disclosed to and consented by the Majority Lenders in
writing.
(j) Such Borrower or one of its Principal Subsidiaries has
good and marketable title (or, in the case of personal property, valid
title) or valid leasehold interests in the electric generating plants
named in Item2 of such Borrower's Annual Report on Form10-K for the
Fiscal Year ended December31, 1995 under the caption "Electric
Generating Plants", except for minor defects in title that do not
materially interfere with the ability of such Borrower or any of its
Principal Subsidiaries to conduct its business as now conducted. All
such assets and properties are free and clear of any Lien, other than
Liens permitted under Section 7.02(a) hereof.
(k) All outstanding shares of capital stock having ordinary
voting power for the election of directors of CL&P, WMECO, PSNH and
NAEC have been validly issued, are fully paid and nonassessable and are
owned beneficially by NU, free and clear of any Lien. NU is a "holding
company" (as defined in the Public Utility Holding Company Act
of 1935, as amended).
(l) Such 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 such Borrower or any of its Principal
Subsidiaries 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.
(m) No exhibit, schedule, report or other written
information provided by or on behalf of such Borrower or its agents to
the Agents or the Lenders in connection with the negotiation, execution
and closing of this Agreement (including, without limitation, the
Information Memorandum, but excluding the projections contained
therein) knowingly contained when made any material misstatement of
fact or knowingly omitted to state any material fact necessary to make
the statements contained therein not misleading in light of the
circumstances under which they were made. Except as has been disclosed
to the Administrative Agent and each Lender, the projections included
in the Information Memorandum were prepared in good faith on the basis
of assumptions reasonable as of the date of the Information Memorandum,
it being understood that such projections do not constitute a warranty
or binding assurance of future performance. Except as has been
disclosed to the Administrative Agent and each Lender, nothing has come
to the attention of the responsible officers of such Borrower that
would indicate that any of such assumptions, to the extent material to
such projections, has ceased to be reasonable in light of subsequent
developments or events.
(n) All proceeds of the Advances shall be used (i)for the
general corporate purposes of such Borrower, including to provide
liquidity support for such Borrower's commercial paper, (ii)to replace
the Existing Facilities of such Borrower with one or more of the
Lenders and (iii) to provide liquidity to the NU System Money Pool.
No proceeds of any Advance will be used in violation of, or in any
manner that would result in a violation by any party hereto of,
Regulations G, T, U or X promulgated by the Board of Governors of the
Federal Reserve System or any successor regulations. Such Borrower
(A)is not an "investment company" within the meaning ascribed to that
term in the Investment Company Act of 1940 and (B) is not engaged in
the business of extending credit for the purpose of buying or carrying
margin stock.
ARTICLE VII
COVENANTS OF THE BORROWERS
SECTION 7.01. Affirmative Covenants. On and after the Closing Date, so
long as any Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each Borrower shall, unless the Majority Lenders shall otherwise
consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance
solely as specified in Section 6.01(n) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the
same shall become delinquent, 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
such Borrower or any of its Principal Subsidiaries is contesting the
same in good faith by appropriate proceedings and has set aside
adequate reserves in accordance with generally accepted accounting
principles for the payment thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-insurance)
covering such Borrower, any of its 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.
(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
such Borrower or any of its Principal Subsidiaries.
(ii) In furtherance of the foregoing, and notwithstanding
Section 7.02(b), each Borrower agrees that it will not, and will not
permit its Principal Subsidiaries to (nor shall NU permit HWP to),
sell, transfer or otherwise dispose of (by lease or otherwise, and
whether in one or a series of related transactions) any portion of its
generation, transmission or distribution assets in excess of 10% of the
net utility plant assets of such Borrower, Principal Subsidiary or HWP,
as the case may be, in each case as determined on a cumulative basis
from the date of this Agreement through the Termination Date by
reference to such entity's published balance sheets.
(e) Compliance with Laws, Etc. Comply, 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 such
Borrower or any of its Principal Subsidiaries is contesting the same in
good faith by appropriate proceedings or (ii)that any such non-
compliance, and the enforcement or correction thereof, would not
materially adversely affect the financial condition, properties,
prospects or operations of such Borrower or any of its Principal
Subsidiaries.
(f) Inspection Rights. At any time and from time to time
upon reasonable notice, permit the Administrative Agent and its agents
and representatives to examine and make copies of and abstracts from
the records and books of account of, and the properties of, such
Borrower and any of its Principal Subsidiaries and to discuss the
affairs, finances and accounts of such Borrower and its Principal
Subsidiaries (i) with such Borrower, its Principal Subsidiaries and
their respective officers and directors and (ii) with the consent
of such Borrower and/or its Principal Subsidiaries, as the case may be
(which consent shall not be unreasonably withheld or delayed), with the
accountants of such Borrower and its Principal Subsidiaries.
(g) Keeping of Books. Keep proper records and books of
account, in which full and correct entries shall be made of all
financial transactions of such Borrower and its Principal Subsidiaries
and the assets and business of such Borrower and its Principal
Subsidiaries, in accordance with generally accepted accounting
practices consistently applied.
(h) Conduct of Business. Except as permitted by
Section 7.02(b) but subject in all respects to Section 7.01(d)(ii),
conduct its primary business, and cause each of its Principal
Subsidiaries and, in the case of NU, HWP, 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(j) hereof, maintain, and cause
its Principal Subsidiaries to maintain, title of the quality described
therein and preserve, maintain, develop, and operate, and cause
its Principal Subsidiaries 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 which are used or useful in the conduct of its or its
Principal Subsidiaries' respective businesses in good working order and
condition, ordinary wear and tear excepted, except (A) as permitted by
Section 7.02(b),but subject nevertheless to Section 7.01(d)(ii), (B)
as disclosed in the Disclosure Documents or otherwise in writing to the
Administrative Agent and the Lenders on or prior to the date hereof, and
(C)to the extent such non-conformity would not materially adversely
affect the financial condition, properties, prospects or operations of
such Borrower or any of its Principal Subsidiaries; provided, however,
that such Borrower or any Principal Subsidiary will not be prevented
from discontinuing the operation and maintenance of any such properties
if such discontinuance is, in the judgment of such 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 such Borrower or such
Principal Subsidiary.
(j) Governmental Approvals. Duly obtain, and cause each of
its Principal Subsidiaries to duly obtain, on or prior to such date as
the same may become legally required, and thereafter maintain in effect
at all times, all Governmental Approvals on its or such Principal
Subsidiary's part to be obtained, except in the case of those
Governmental Approvals referred to in clause (ii) of the definition of
"Governmental Approvals", (i)those the absence of which would not
materially adversely affect the financial condition, properties,
prospects or operations of such Borrower or any Principal Subsidiary
and (ii)those which such Borrower is diligently attempting in good
faith to obtain, renew or extend, or the requirement for which such
Borrower is contesting in good faith by appropriate proceedings or by
other appropriate means; provided, however, that the exception afforded
by clause(ii), above, shall be available only if and for so long as
such attempt or contest, and any delay resulting therefrom, does not
have a material adverse effect on the financial condition, properties,
prospects or operations of such Borrower or any Principal Subsidiary
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) Maintenance of ▇▇▇▇▇'▇ Rating and S&P Rating. Maintain
at all times ratings issued by ▇▇▇▇▇'▇ and S&P with respect to such
Borrower's Reference Securities.
SECTION 2.k. Negative Covenants. On and after the Closing Date, and
so long as any Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each Borrower shall not, without the written consent of the Majority
Lenders:
(a) Liens, Etc. (i)In the case of NU, create, incur,
assume or suffer to exist, or permit any Subsidiary to create, incur,
assume or suffer to exist, any lien, security interest, or other charge
or encumbrance (including the lien or retained security title of a
conditional vendor) of any kind, or any other type of preferential
arrangement the intent or effect of which is to assure a creditor
against loss or to prefer one creditor over another creditor (any of
the foregoing being referred to herein as a "Lien") upon or with
respect to any voting capital stock of any Principal Subsidiary or any
of NU's properties or assets whether now owned or hereafter acquired;
and
(ii) in the case of CL&P and WMECO, create incur, assume or
suffer to exist any Lien upon or with respect to any voting capital
stock of any of their respective Principal Subsidiaries or any of their
respective properties or assets whether now owned or hereafter
acquired, except:
(A) any Liens existing on the Closing Date;
(B) in the case of CL&P and subject to
Section 7.02(e) below, Liens created by the Indenture of
Mortgage and Deed of Trust dated as of May1, 1921, from CL&P to
Bankers Trust Company, as trustee, as previously and hereafter
amended and supplemented (the "CL&P Indenture");
(C) in the case of WMECO and subject to
Section 7.02(e) below, Liens created by the First Mortgage
Indenture and Deed of Trust dated as of August1, 1954, from
WMECO to State Street Bank and Trust Company, as successor
trustee, as previously and hereafter amended and supplemented
(the "WMECO Indenture");
(D) Liens on such Borrowers' interests in Millstone
Unit No.1 created by (1)the Open-End Mortgage and Trust
Agreement dated as of October1, 1986, as previously and
hereafter amended, made by CL&P in favor of State Street Bank
and Trust Company, as successor trustee, and (2)the Open-End
Mortgage and Trust Agreement dated as of October1, 1986, as
previously and hereafter amended, made by WMECO in favor of
State Street Bank and Trust Company, as successor trustee, to
the extent of the Debt from time to time secured by such
Open-End Mortgages and Trust Agreements;
(E) "Permitted Liens" or "Permitted Encumbrances"
under the CL&P Indenture (in the case of CL&P) or the WMECO
Indenture (in the case of WMECO), in each case as such terms are
defined on the date hereof, to the extent such Liens do not
secure Debt of such Borrower;
(F) any Lien on assets of any of its Subsidiaries
created or assumed to secure Debt owing by any of its
Subsidiaries to such Borrower or to any wholly-owned Subsidiary
of such Borrower;
(G) any purchase money Lien or construction mortgage
on assets hereafter acquired or constructed by such Borrower or
any of its Subsidiaries and any Lien on any assets existing at
the time of acquisition thereof by such Borrower or any of its
Subsidiaries, 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;
(H) any existing Liens on assets now owned by such
Borrower or any of its Subsidiaries; Liens on assets or stock of
any class of, or any partnership or joint venture interest in,
any of its Subsidiaries existing at the time it becomes a
Subsidiary of such Borrower, and liens existing on assets of a
corporation or other going concern when it is merged into or
with such Borrower or a Subsidiary of such Borrower, or when
substantially all of its assets are acquired by such Borrower or
a Subsidiary of such Borrower; provided that such Liens shall at
all times be confined solely to such assets, or if such assets
constitute a utility system, additions to or substitutions for
such assets;
(I) Liens resulting from legal proceedings being
contested in good faith by appropriate legal or administrative
proceedings by such Borrower or any of its Subsidiaries, and as
to which such Borrower or any of its Subsidiaries, as the case
may be, to the extent required by generally accepted accounting
principles applied on a consistent basis shall have set aside on
its books adequate reserves;
(J) Liens created in favor of the other contracting
party in connection with advance or progress payments;
(K) 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;
(L) Liens resulting from conditional sale agreements,
capital leases or other title retention agreements including,
without limitation, Liens arising under leases of nuclear fuel
from the Niantic Bay Fuel Trust;
(M) with respect to pollution control bond
financings, Liens on funds, accounts and other similar
intangibles of such Borrower or any of its Subsidiaries
created or arising under the relevant indenture, pledges of the
related loan agreement with the relevant issuing authority and
pledges of such Borrower's interest, if any, in any bonds issued
pursuant to such financings to a letter of credit bank or bond
issuer or similar credit enhancer;
(N) Liens granted on accounts receivable and
Regulatory Assets in connection with financing transactions,
whether denominated as sales or borrowings;
(O) any other Liens incurred in the ordinary course
of business otherwise than to secure Debt; and
(P) any extension, renewal or replacement of Liens
permitted by clauses (A) through (H) and (J) through (N);
provided, however, that the principal amount of Debt secured
thereby shall not, at the time of such extension, renewal or
replacement, exceed the principal amount of Debt so secured and
that such extension, renewal or replacement shall be limited to
all or a part of the property which secured the Lien so
extended, renewed or replaced.
(b) Mergers, and Sales of Assets, Etc. (i) In the case of
NU, (A)merge with or into or consolidate with or into, any Person or
(B)purchase or acquire (whether directly or indirectly or in one or a
series of transactions, whether related or not) all or substantially
all of the assets or stock of any class of, or any partnership or joint
venture interest in, any Person if the aggregate purchase price of such
acquisitions plus the amount of any liabilities assumed by NU in
connection therewith exceeds in the aggregate $50,000,000 from the date
hereof through the Termination Date; provided, that the foregoing shall
not apply to (x)acquisitions or other investments made by or through
Charter Oak Energy, Inc. so long as the aggregate amount of all such
acquisitions and investments made by or through Charter Oak Energy,
Inc., now existing or made after the date hereof, does not exceed
$200,000,000 and (y)acquisitions made through CL&P and WMECO in
accordance with clause(ii) of this Section 7.02(b); and provided,
further, that, in each case, before and after giving effect to any
such purchase, acquisition or investment not prohibited by this
subsection, no Event of Default or Unmatured Default shall have
occurred and be continuing.
(ii) In the case of CL&P and WMECO, (A)merge with or
into or consolidate with or into, any Person, or permit any of
its Subsidiaries to be a party to, any merger or consolidation,
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 (B)sell, transfer, convey, lease or
otherwise dispose of all or any substantial part of its assets;
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) any such merger or consolidation, sale, transfer,
conveyance, lease or other disposition of or by any
wholly-owned Subsidiary of such Borrower into or to any
Borrower and/or any wholly-owned Subsidiary of NU or such
Borrower and any such purchase or other acquisition by such
Borrower or any wholly-owned Subsidiary of NU or such
Borrower of the assets or stock of any wholly-owned
Subsidiary of such Borrower;
(B) any such merger or consolidation of such Borrower
with or into another Borrower and/or a wholly-owned
Subsidiary of NU and/or a Regulatory Transaction Entity
and/or an entity owning a cogeneration or independent power
project, pursuant to step-in" or similar rights granted
pursuant to a pre-existing power purchase contract, if (but
only if): (1)the successor or surviving corporation, if not
such Borrower, shall have assumed or succeeded to all of the
liabilities of such Borrower (including the liabilities of
such Borrower under this Agreement and the Notes of such
Borrower), and (2)the Lenders shall have received the
favorable written opinion of counsel to such Borrower, in
form and substance satisfactory to the Lenders, to the
effect of the foregoing subclause(1); provided, however, in
the event of a merger or consolidation with a Regulatory
Transaction Entity, if the value of the cash, stock or other
consideration for the merger or consolidation plus the
amount of any liabilities assumed in connection with such
merger or consolidation exceeds $100,000,000, such Borrower
shall deliver to the Administrative Agent on behalf of the
Lenders 30 days prior to such merger or consolidation, a
certificate of a duly authorized officer of such Borrower
demonstrating projected compliance with the ratios set forth
in Section 7.03(a) and 7.03(b) hereof for and as of each of
the three consecutive fiscal quarters immediately succeeding
such merger or consolidation and certifying that such
projections were prepared in good faith and on reasonable
assumptions;
(C) any purchase or acquisition of all or
substantially all of the assets or stock of any class of, or
any partnership or joint venture interest in (and any
assumption of the related liabilities) (1)an entity owning a
cogeneration or independent power project, pursuant to
step-in" or similar rights granted pursuant to a
pre-existing power purchase contract; or (2)a Regulatory
Transaction Entity; provided, however, in the event of a
purchase or acquisition of a Regulatory Transaction Entity,
if the purchase price plus the amount of any liabilities
assumed in connection with such purchase or acquisition
exceeds in the aggregate $100,000,000, such Borrower shall
deliver to the Administrative Agent for the Lenders 30 days
prior to such purchase or acquisition, a certificate of a
duly authorized officer of such Borrower demonstrating
projected compliance with the ratios set forth in Section
7.03(a) and 7.03(b) hereof for and as of each of the three
consecutive fiscal quarters immediately succeeding such
purchase or acquisition and certifying that such projections
were prepared in good faith and on reasonable assumptions;
or
(D) any purchase or acquisition of a joint venture
interest in a mutual insurance company providing nuclear
liability or nuclear property or replacement power
insurance; or
(E) any sale of accounts receivable on reasonable
commercial terms (including a commercially reasonable
discount) to obtain funding for CL&P and WMECO, as the case
may be; or
(F) any sale of all or part of any Regulatory Asset.
For purposes of this subsection(b), any one transaction or series of
similar or related transactions during any consecutive 12-month period
shall be deemed to involve a substantial part" of such Borrower's
assets if, in the aggregate,the book value of such assets equals or
exceeds 10% of the total consolidated assets of such Borrower and its
Subsidiaries reflected in the consolidated financial statements of such
Borrower delivered pursuant to Section 7.04(ii) or 7.04(iii) hereof in
respect of the Fiscal Quarter or Fiscal Year ending on or immediately
prior to the commencement of such 12-month period.
(c) Niantic Bay Fuel Trust. In the case of CL&P and WMECO:
(i) voluntarily reduce or terminate or permit to be
voluntarily reduced or terminated any of the
"Commitments" of the "Banks" under the
Niantic Bay Fuel Trust Credit Agreement to an
amount less than $150,000,000 at any time; or
(ii) at any time prior to the Termination Date, prepay
or otherwise reduce or permit to be prepaid or
otherwise reduced, except by payment at stated
maturity:
(A) the principal amount of "Advances"
outstanding under the Niantic Bay Fuel Trust
Credit Agreement except (1)with and to the
extent of proceeds of issuances of commercial
paper notes or "IT Notes" and (2)as may be
required by the terms thereof in connection
with any reduction in the amount or value of
the nuclear fuel financed thereby; or
(B) the principal amount of outstanding "IT
Notes" issued by the Niantic Bay Fuel Trust;
or
(iii) except for such amendments or modifications as the
Administrative Agent shall have consented to in
writing prior to the Closing Date, amend, modify
or terminate, or permit to be amended, modified or
terminated, the Niantic Bay Fuel Trust Credit
Agreement or the Niantic Bay Fuel Lease Agreement
or the Niantic Bay Fuel Trust in any manner that
would directly or indirectly reduce the
availability of funds under the Niantic Bay Fuel
Trust Credit Agreement or the Niantic Bay Fuel
Lease Agreement.
(d) NU Debt. With respect to NU only, create, incur or
suffer to exist any Debt, other than (i)Debt arising under this
Agreement and its Notes and the Surviving Credit Facilities, (ii)Debt
existing on the Closing Date as described on Schedule III, which Debt
shall not be renewed, extended or replaced except for guarantees of
surety bonds with respect to ▇▇▇▇▇▇▇'▇ compensation claims and
performance bonds in an aggregate amount not to exceed $10,000,000 at
any time outstanding and (iii) other Debt not to exceed $50,000,000 at
any one time outstanding.
(e) Limitations on First Mortgage Bonds. With respect to
CL&P and WMECO only, issue, or permit any of their respective
Subsidiaries to issue any First Mortgage Bonds after the date hereof,
except for:
(i) the issuance by either CL&P or WMECO of First
Mortgage Bonds to obtain funds for operations or investment or
to replace maturing First Mortgage Bonds (but no other Debt);
provided, that:
(A) all such First Mortgage Bonds shall be
sold (1) in one or more public offerings to investors
or (2) in privately negotiated transactions with
banks, insurance companies or similar institutions; in
each case, for cash in an amount not less than the fair
market value of such First Mortgage Bonds at the time
of such issuance (less normal underwriting discounts
and commissions); provided that such First Mortgage
Bonds sold in privately negotiated transactions
pursuant to clause (2) shall not contain any terms,
conditions or other provisions that would impose any
restrictions on CL&P or WMECO, as the case may be, not
customarily found in transactions involving a public
offering of first mortgage bonds to investors other
than "make whole" or "yield maintenance" provisions
customarily required by the relevant investor;
(B) all First Mortgage Bonds issued pursuant
to this clause (i) shall mature after November 21,
1999; and
(C) all First Mortgage Bonds issued pursuant
to this clause (i) shall bear interest at a fixed rate
to maturity or otherwise not be subject to repricing
(as, for example, in the case of put bonds or other
remarketable securities) prior to November 21, 1999;
and
(ii) issuances of First Mortgage Bonds to secure
presently outstanding floating rate pollution control bonds
(but not any letter of credit, standby purchase or liquidity
facility, or any third-party repurchase obligation
thereunder) upon conversion of such First Mortgage Bonds to
an interest mode providing for such pollution control bonds
to bear interest at a fixed rate either to stated maturity
or for a period first expiring after November 21, 1999;
and
(iii) in the case of CL&P only, a single issuance of
First Mortgage Bonds (the "1996 Collateral Bonds") to secure
the principal of, and premium, if any, and interest on (but
in no event any purchase price of) the presently outstanding
$62,000,000 Connecticut Development Authority Pollution
Control Revenue Bonds (The Connecticut Light and Power
Company Project - 1996A Series) (the "1996 PCRBs"),
including any subrogation claim against CL&P of any bond
insurer under a bond insurance policy issued in respect of
the 1996 PCRBs; provided that the terms of the 1996 PCRBs
and the 1996 Collateral Bonds shall be such that no
principal thereof shall be payable except (A) on a single
maturity date occurring after November 21, 1999, (B) if any
liquidity facility in respect of the 1996 PCRBS shall not be
renewed or extended, in one or more semi-annual installments
not in excess of $6.2 million of which the first such
installment shall be due no earlier than eighteen months
following the Closing Date or (C) upon acceleration
following the occurrence of an "event of default" under the
indenture governing the 1996 PCRBs or the CL&P Mortgage, as
applicable.
(f) Dividend Restrictions. In the case of CL&P and WMECO,
enter into, and in the case of any Borrower, permit any Principal
Subsidiary to enter into, any agreement, contract, indenture or similar
obligation, or issue (in the case of CL&P and WMECO), or permit (in the
case of any Borrower) any Principal Subsidiary to issue, any security
(all of the foregoing being referred to as "Financing Agreements"),
that is not in effect on the Closing Date and disclosed to the
Administrative Agent in the Information Memorandum or otherwise in
writing prior to the Closing Date, or amend or modify (in the case of
CL&P and WMECO), or permit (in the case of each Borrower) any Principal
Subsidiary to 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 and disclosed to the Administrative Agent in writing
prior to the Closing Date on the ability of CL&P, WMECO or such
Principal Subsidiary to pay dividends to NU.
(g) Lien Restrictions. Enter into, or permit any Principal
Subsidiary to enter into, any Financing Agreement (other than this
Agreement and the Notes) that is not in effect on the Closing Date and
disclosed to the Administrative Agent and the Lenders in writing prior
to the Closing Date, or amend or modify, or permit any Principal
Subsidiary to 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 and disclosed to the Administrative Agent and the
Lenders in writing prior to the Closing Date on the ability of such
Borrower or such Principal Subsidiary to issue First Mortgage Bonds or
otherwise to grant Liens securing Debt of such Borrower.
(h) Surviving Credit Facilities. (i)Voluntarily reduce or
terminate the "Commitment" of the "Bank" under any Surviving Credit
Facility (other than by scheduled termination in accordance with the
terms thereof), or (ii)amend or modify or agree to amend or modify
such Surviving Credit Facility in any manner that would reduce
or otherwise impose additional restrictions on the availability of
funds thereunder or amend or add or otherwise impose additional
conditions on such Borrower if such conditions are likely to have the
effect of making it more difficult for such Borrower to satisfy the
conditions to borrowing under such Surviving Credit Facility.
(i) Compliance with ERISA. (i)Terminate, or permit any
ERISA Affiliate to terminate, any ERISA Plan so as to result in any
liability of such 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 such Borrower or any Subsidiary to the PBGC
in an aggregate amount exceeding $1,000,000, or any other event
or condition, which presents a material risk of such a termination by
the PBGC of any ERISA Plan or has a reasonable possibility of resulting
in a liability of such Borrower or any Subsidiary to the PBGC in an
aggregate amount exceeding $1,000,000.
(j) Accounting Changes. Make, or permit any of its
Principal Subsidiaries to make, any change in their respective
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.
(k) Transactions with Affiliates. Not engage, or permit any
of its Principal Subsidiaries to engage, in any transaction with any
Affiliate except (i)in accordance with the Public Utility Holding
Company Act of 1935, to the extent applicable thereto or
(ii)otherwise, on terms no less favorable to such Borrower or such
Principal Subsidiary than if the transaction had been negotiated in
good faith on an arms-length basis with a non-Affiliate and on
commercially reasonable terms orpursuant to a binding agreement
in effect on the Closing Date.
SECTION 7.03. Financial Covenants. On and after the Closing Date, so
long as any Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each Borrower (or, in the case of clause (c) below only, NU) shall,
unless the Majority Lenders shall otherwise consent in writing:
(a) Common Equity Ratio. Maintain at all times a ratio of
Common Equity to Total Capitalization of not less than the amount set
forth below for such Borrower for each corresponding period set forth
below:
Borrower
Period NU CL&P WMECO
(Consolidated)
Closing Date through 12/31/96 0.30:1.00 0.32:1.00 0.32:1.00
1/1/97 through 12/31/97 0.31:1.00 0.33:1.00 0.33:1.00
1/1/98 and thereafter 0.32:1.00 0.34:1.00 0.34:1.00
(b) Interest Coverage Ratio. Maintain a ratio of
Consolidated Operating Income to Consolidated Interest Expense of not
less than the amount set forth below for such Borrower as of the end of
each Fiscal Quarter in each corresponding period set forth below.
Borrower
Period NU CL&P WMECO
(Consolidated)
Closing Date through 12/31/96 1.25:1.00 ---- ----
1/1/97 through 6/30/97 1.50:1.00 3.00:1.00 1.50:1.00
7/1/97 through 12/31/97 2.25:1.00 4.50:1.00 2.25:1.00
1/1/98 and thereafter 3.25:1.00 4.50:1.00 2.50:1.00
(c) Dividend Paying Availability. Cause the Operating
Companies to maintain, as of the end of each Fiscal Quarter, Aggregate
Dividend Paying Availability equal to at least the aggregate principal
amount of Advances outstanding to NU plus the aggregate principal
amount of "advances" outstanding to NU under the Surviving Credit
Facilities at the end of such Fiscal Quarter.
SECTION 7.04. Reporting Obligations. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, each Borrower shall,
unless the Majority Lenders shall otherwise consent in writing, furnish or
cause to be furnished to the Administrative Agent in sufficient copies for each
Lender, the following:
(i) as soon as possible and in any event within ten days
after the occurrence of each Event of Default or Unmatured Default with
respect to such Borrower continuing on the date of such statement, a
statement of the Chief Financial Officer, Treasurer or Assistant
Treasurer of such Borrower setting forth details of such Event of
Default or Unmatured Default and the action which such Borrower
proposes to take with respect thereto;
(ii) (A) as soon as available and in any event within fifty
(50) days after the end of each of the first three Fiscal Quarters of
each Fiscal Year of such Borrower:
(1) a copy of such Borrower's Quarterly Report on
Form 10-Q submitted to the Securities and Exchange Commission
with respect to such quarter, or, if such Borrower ceases to be
required to submit such report, a consolidated balance sheet of
such Borrower as of the end of such Fiscal Quarter and
consolidated statements of income and retained earnings and of
cash flows of such Borrower for the period commencing at the end
of the previous Fiscal Year and ending with the end of such
Fiscal Quarter, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the Chief Financial
Officer, Treasurer, Assistant Treasurer or Comptroller of such
Borrower as having been prepared in accordance with generally
accepted accounting principles consistent with those applied in
the preparation of the financial statements referred to in
Section s6.01(f), and
(2) with respect to NU, an unconsolidated balance
sheet of NU as of the end of such Fiscal Quarter and
unconsolidated statements of income and retained earnings and of
cash flows of NU 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 accompanied by a
certificate of a duly authorized officer of NU stating that such
financial statements were prepared in accordance with
generally accepted accounting principles consistent with those
applied in the preparation of financial statements referred to
in Section 6.01(f) and (g) hereof; and
(B) concurrently therewith, a certificate of the Chief
Financial Officer, Treasurer, Assistant Treasurer or Comptroller of
such Borrower:
(1) stating that no Event of Default or Unmatured
Default with respect to such Borrower has occurred and is
continuing or, if an Event of Default or Unmatured Default with
respect to such Borrower has occurred and is continuing,
describing the nature thereof and the action which such Borrower
proposes to take with respect thereto, and
(2) demonstrating such Borrower's compliance with
Section s7.03(a) and 7.03(b) hereof, and with respect to NU only
demonstrating compliance with Section 7.02(d) hereof and 7.03(c)
hereof, for and as of the end of such Fiscal Quarter, in each
case such demonstrations to be satisfactory (in form) to the
Administrative Agent and to set forth in reasonable detail the
computations used in determining such compliance;
(iii) (A) as soon as available and in any event within 105
days after the end of each Fiscal Year of such Borrower:
(1) a copy of such Borrower's report on Form 10-K
submitted to the Securities and Exchange Commission with respect
to such Fiscal Year, or, if such Borrower ceases to be required
to submit such report, a copy of the annual audit report for
such year for such Borrower including therein a consolidated
balance sheet of such Borrower as of the end of such Fiscal Year
and consolidated statements of income and retained earnings and
of cash flows of such Borrower for such Fiscal Year, all in
reasonable detail and certified by a nationally-recognized
independent public accountant, and
(2) in the case of NU, as soon as available and in
any event within 135 days after the end of each Fiscal Year of
NU, a copy of NU's Form U5S submitted to the Securities and
Exchange Commission (or any successor form and in any
event containing unconsolidated financial statements comparable
to those referred to in Section 6.01(g) hereof) with respect to
such year, accompanied by a certificate of a duly authorized
officer of NU stating that such financial statements were
prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
financial statements referred to in Section 6.01(f) and (g)
hereof; and
(B) concurrently with the delivery of the financial
statements described in the foregoing clause (A)(1), a certificate of
the Chief Financial Officer, Treasurer, Assistant Treasurer or
Comptroller of such Borrower:
(1) to the effect that such financial statements were
prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of
the financial statements referred to in Section s6.01(f),
and
(2) stating thatno Event of Default or Unmatured
Default with respect to such Borrower has occurred and is
continuing, or if an Event of Default or Unmatured Default with
respect to such Borrower has occurred and is continuing,
describing the nature thereof and the action which such Borrower
proposes to take with respect thereto, and
(3) demonstrating such Borrower's compliance with
Section s7.03(a) and 7.03(b) hereof, and with respect to NU only
demonstrating compliance with Section 7.02(d) hereof and Section
7.03(c) hereof, for and as of the end of such Fiscal Year, in
each case such demonstrations to be satisfactory (in form) to
the Administrative Agent and to set forth in reasonable detail
the computations used in determining such compliance;
(iv) as soon as possible and in any event (A)within 30 days
after the Chief Financial Officer, Treasurer or any Assistant Treasurer
of such Borrower knows or has reason to know that any ERISA Plan
Termination Event described in clause (i) of the definition of ERISA
Plan Termination Event with respect to any ERISA Plan or ERISA
Multiemployer Plan has occurred and (B)within 10 days after such
Borrower knows or has reason to know that any other ERISA Plan
Termination Event with respect to any ERISA Plan or ERISA Multiemployer
Plan has occurred, a statement of the Chief Financial Officer,
Treasurer or Assistant Treasurer of such Borrower describing such ERISA
Plan Termination Event and the action, if any, which such Borrower
proposes to take with respect thereto;
(v) promptly after receipt thereof by such Borrower or any
of its ERISA Affiliates from the PBGC, copies of each notice received
by such Borrower or any such ERISA Affiliate of the PBGC's intention to
terminate any ERISA Plan or ERISA Multiemployer Plan or to have a
trustee appointed to administer any ERISA Plan or ERISA Multiemployer
Plan;
(vi) promptly after receipt thereof by such Borrower or any
of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a
copy of each notice received by such Borrower or any of its ERISA
Affiliates concerning the imposition or amount of withdrawal liability
in an aggregate principal amount of at least $10,000,000 pursuant to
Section 4202 of ERISA in respect of which such Borrower may be liable;
(vii) promptly after such Borrower or any Subsidiary becomes
aware of the commencement thereof, notice of all actions, suits,
proceedings or other events of the type described in Section 6.01(h)
hereof (including, without limitation, any action or proceeding
relating to any environmental protection laws or regulations);
(viii) promptly after the filing thereof, copies of each
prospectus (excluding any prospectus contained in any FormS-8) and
Current Report on Form8-K, if any, which such Borrower or any
Principal Subsidiary files with, the Securities and Exchange
Commission or any governmental authority which may be substituted
therefor;
(ix) promptly after any change in the SEC Borrowing Limit of
such Borrower, notice of the new SEC Borrowing Limit applicable to such
Borrower; and
(x) promptly after requested, such other information
respecting the financial condition, operations, properties, prospects
or otherwise, of such Borrower or its Subsidiaries as the
Administrative Agent or the Majority Lenders through the Administrative
Agent may from time to time reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. The following events shall each
constitute an "Event of Default" with respect to a Borrower, if the same shall
occur and be continuing after the grace period and notice requirement (if any)
applicable thereto:
(a) Such Borrower shall fail to pay any principal of any
Note when due or shall fail to pay any interest thereon or fees within
two days after the same becomes due; or
(b) Any representation or warranty made by such Borrower (or
any of its officers or agents) in this Agreement, any certificate or
other writing delivered pursuant hereto or thereto shall prove to have
been incorrect in any material respect when made or deemed made; or
(c) Such Borrower shall fail to perform or observe any term
or covenant on its part to be performed or observed contained in
Section s7.01(d), ▇▇▇▇▇▇▇ ▇.▇▇ (▇), (▇), (▇), (▇), (▇), (▇) or (h),
Section 7.03(a) or (b) or Section 7.04(i) hereof; or
(d) Such Borrower shall fail to perform or observe any other
term or covenant on its part to be performed or observed contained in
this Agreement and any such failure shall remain unremedied for a
period of 30 days after the earlier of (i) written notice of
such failure having been given to such Borrower by the Administrative
Agent or (ii) such Borrower having obtained actual knowledge of such
failure; or
(e) Such Borrower or any Principal Subsidiary of such
Borrower shall fail to pay any of its Debt when due (including any
interest or premium thereon but excluding Debt evidenced by its
respective Notes and excluding other Debt aggregating in no event
more than $10,000,000 in principal amount at any one time) whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise, and such failure shall continue after the applicable grace
period, if any, specified in any agreement or instrument relating to
such Debt; or any other default under any agreement or instrument
relating to any such Debt, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment or as a result of such Borrower's or such Principal
Subsidiary's exercise of a prepayment option) prior to the stated
maturity thereof; or
(f) Such Borrower or any Principal Subsidiary of such
Borrower shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or
shall make an assignment for the benefit of creditors; or any
proceeding shall be instituted by or against such Borrower or such
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 such Borrower or such Principal Subsidiary either
such 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 such Borrower or
such Principal Subsidiary or the appointment of a receiver, trustee,
custodian or other similar official for such Borrower or such Principal
Subsidiary or any of its property) shall occur; or such Borrower or
such 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 such Borrower or its properties, or any
Principal Subsidiary of such Borrower or its properties, and either
(A)enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and shall not have been stayed or
(B)there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(h) NU shall cease to beneficially own free and clear of any
Liens 100% of all outstanding shares of capital stock having ordinary
voting power for the election of directors of any of its Principal
Subsidiaries; or
(i) Any material provision of this Agreement or any Note of
such Borrower shall at any time for any reason cease to be valid and
binding on such Borrower, or shall be determined to be invalid or
unenforceable by any court, governmental agency or authority having
jurisdiction over such Borrower, or such Borrower shall deny that it
has any further liability or obligation under this Agreement or any
such Note; or
(j) (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; or
(k) With respect to NU only, the Operating Companies (in
any combination) shall not have had, as of the end of any Fiscal
Quarter, Aggregate Dividend Paying Availability at least equal to the
aggregate principal amount of Advances outstanding to NU plus the
aggregate principal amount of "advances" outstanding to NU under the
Surviving Credit Facilities as of the end of such Fiscal Quarter, and
such deficiency shall not have been remedied within 75 days following
the end of such Fiscal Quarter (if such Fiscal Quarter is one of the
first three Fiscal Quarters of the Fiscal Year), or within 90
days following the end of such Fiscal Quarter (if such Fiscal Quarter
is the last Fiscal Quarter of the Fiscal Year) whether by prepayment of
Advances under this Agreement or "advances" under the Surviving Credit
Facilities by NU or by an increase in Aggregate Dividend Paying
Availability (as evidenced by such certificates and interim balance
sheets as the Administrative Agent may reasonably require); or
(l) With respect to NU only, any Event of Default shall have
occurred and be continuing with respect to any other Borrower.
SECTION 8.02. Remedies Upon Events of Default. Upon the occurrence and
during the continuance of any Event of Default with respect to a Borrower (or,
with respect to any Borrower, an Event of Default under subsection(h) or (j)
of Section 8.01), then, and in any such event, the Administrative Agent shall
at the request, or may with the consent, of the Lenders entitled to make such
request, upon notice to such Borrower (i)declare the obligation of each Lender
to make Advances to such Borrower to be terminated, whereupon such obligation
of each Lender shall forthwith terminate, provided, that any such request or
consent pursuant to this clause (i) shall be made solely by Lenders having
Percentages in the aggregate of not less 66-2/3%; and (ii)declare the Notes
of such Borrower, all interest thereon and all other amounts payable by such
Borrower under this Agreement to be forthwith due and payable, whereupon such
Notes, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by each Borrower, provided,
that any such request or consent pursuant to this clause (ii) shall be made
solely by the Lenders holding at least 66-2/3% of the then aggregate unpaid
principal amount of the Advances owing to such Borrower; and provided further,
however, that in the event of an actual or deemed entry of an order for relief
with respect to a Borrower under the Federal Bankruptcy Code, (A) the
obligation of each Lender to make Advances to such Borrower shall automatically
be terminated and (B)the Notes of such Borrower, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by each Borrower.
ARTICLE IX
THE AGENTS
SECTION 9.01. Authorization and Action. (a) 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 this Agreement or the Notes (including, without limitation, enforcement
or collection thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders; provided, however, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to personal liability or which is contrary to this
Agreement or applicable law. The Administrative Agent agrees to deliver
promptly to each Lender notice of each notice given to it by a Borrower
pursuant to the terms of this Agreement.
(b) Each Lender and the Borrowers hereby agree that the Co-Agents in
their respective capacities as such shall have no duties or obligations
hereunder.
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 this Agreement or the Notes, except for its or their own
gross negligence or wilful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i)may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and accepts
a Lender Assignment entered into by the Lender which is the payee of such Note,
as assignor, and an assignee, as provided in Section 10.07; (ii)may consult
with legal counsel (including counsel for the Borrower(s)), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii)makes no warranty or
representation to any Lender and shall not be responsible to any Lender for the
Information Memorandum or any other statements, warranties or representations
made in or in connection with this Agreement or the Notes; (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 this Agreement or the Notes on the
part of any Borrower to be performed or observed, or to inspect any property
(including the books and records) of any Borrower; (v)shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or the Notes or any other
instrument or document furnished pursuant hereto; and (vi)shall incur no
liability under or in respect of this Agreement or the Notes by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram, cable or telex) believed by it to be genuine and signed or sent
by the proper party or parties.
SECTION 9.03. Citibank and Affiliates. With respect to its Commitment
and the Note issued to it, Citibank shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though it were
not the Administrative Agent and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Citibank in its individual capacity.
Citibank and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with,
any Borrower, any of their respective subsidiaries and any Person who may do
business with or own securities of any Borrower or any such subsidiary, all as
if Citibank were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agents or any other Lender and
based on the Information Memorandum and other financial information referred to
in Section s 6.01(f) and (g) and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 9.05. Indemnification. The Lenders agree to indemnify each of
the Agents (to the extent not reimbursed by the Borrowers), ratably according
to the respective principal amounts of the Notes then held by each of them (or
if no Notes are at the time outstanding, ratably according to the respective
Commitments of the Lenders; if any Notes or Commitments are held by any
Borrower or Affiliates thereof, any ratable apportionment hereunder shall
exclude the principal amount of the Notes held by such Borrower(s) or
Affiliates or their respective Commitments (if any) hereunder), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against any
of the Agents in their capacities as such in any way relating to or arising out
of this Agreement or any action taken or omitted by the Agents in their
capacities as such under this Agreement, 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 any 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, this Agreement to the extent that the Administrative
Agent is entitled to reimbursement for such expenses pursuant to Section 10.04
but is not reimbursed for such expenses by the Borrowers.
SECTION 9.06. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving written notice thereof to the Lenders and the
Borrowers, with any such resignation to become effective only upon the
appointment of a successor Administrative Agent pursuant to this Section 9.06.
Upon any such resignation, the Majority Lenders shall have the right to appoint
a successor Administrative Agent, which shall be a Lender or another commercial
bank or trust company reasonably acceptable to the Borrowers organized or
licensed under the laws of the United States, or of any State thereof. If no
successor Administrative Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be Lender or shall be another
commercial bank or trust company organized or licensed under the laws of the
United States or of any State thereof reasonably acceptable to the Borrowers.
In addition to the foregoing right of the Administrative Agent to resign, the
Majority Lenders may remove the Administrative Agent at any time, with or
without cause, concurrently with the appointment by the Majority Lenders of a
successor Administrative Agent. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent and
the execution and delivery by the Borrowers and the successor Administrative
Agent of an agreement relating to the fees to be paid to the successor
Administrative Agent under Section 2.02(c) hereof in connection with its acting
as Administrative Agent hereunder, 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 this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any Note, nor consent to any departure by any
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following:
(a)waive, modify or eliminate any of the conditions specified in ArticleV,
(b)increase the Commitment of any Lender hereunder or increase the Commitments
of the Lenders that may be maintained hereunder or increase any Borrower
Sublimit or subject the Lenders to any additional obligations, (c)reduce the
principal of, or interest on, the Notes, any Applicable Margin or any fees or
other amounts payable hereunder (other than fees payable to the Agents pursuant
to Section 2.02(c) hereof), (d)postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder (other than fees payable to the Agents pursuant to Section 2.02(c)
hereof), (e)change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders which shall be
required for the Lenders or any of them to take any action hereunder, (f)amend
this Agreement or any Note in a manner intended to prefer one or more Lenders
over any other Lenders, or (g)amend this Section 10.01; and provided, further,
that no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent in addition to the Lenders required above to take
such action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note. Notwithstanding anything to the contrary contained in
the immediately preceding sentence, the effectiveness of any such amendment,
waiver or consent which would result in any increase in any Commitment or
Borrower Sublimit or any extension of any Commitment shall be subject to the
delivery by the Borrowers of evidence satisfactory to the Lenders that any
Governmental Approvals referred to in clause (i) of the definition of
"Governmental Approvals" required in connection with such increase have been
obtained or made prior to the effectiveness of such amendment, waiver or
consent.
SECTION 10.02. Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telecopy or telex communication) and mailed, telecopied or
hand delivered:
(i) if to any Borrower, to it in care of NUSCO at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Assistant Treasurer,
telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm number: (860) 665-
5601;
(ii) if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto;
(iii) if to any Lender other than a Bank, at its Domestic Lending
Office specified in the Lender Assignment pursuant to which it
became a Lender; and
(iv) if to the Administrative Agent, at its address at ▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Bank Loan Services, telecopier number: (718) 248-
4483, fax number: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to Citibank, N.A.,
Global Power Group, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director,
telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm number: (212) 559-
1509.
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, telecopied, telexed or hand delivered, be
effective five days after when deposited in the mails, or when telecopied,
or when confirmed by telex answerback, 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 any
Lender to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification. (a)The Borrowers
agree to pay when due, in accordance with the terms hereof: (i) all costs and
expenses of the Administrative Agent in connection with the preparation,
negotiation, execution and delivery of this Agreement and the Notes, the
administration of this Agreement and the Notes, and any proposed modification,
amendment, or consent relating thereto (including, in each case, the
reasonable fees and expenses of counsel to the Administrative Agent); and (ii)
all costs and expenses of the Administrative Agent and each Lender (including
all fees and expenses of counsel) in connection with the enforcement, whether
through negotiations, legal proceedings or otherwise, of this Agreement and the
Notes.
(b) The Borrowers hereby agree to indemnify and hold the Agents 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
reasonable attorney's fees and expenses, whether or not such Indemnified
Person is named as a party to any proceeding or investigation or is otherwise
subjected to judicial or legal process arising from any such proceeding or
investigation) which any of them may incur or which may be claimed against any
of them by any person or entity (except to the extent such claims, damages,
losses, liabilities, costs or expenses arise from the gross negligence or
willful misconduct of the Indemnified Person):
(i) by reason of or in connection with the execution,
delivery or performance of this Agreement or the Notes or any
transaction contemplated thereby, or the use by any Borrower of the
proceeds of any Advance;
(ii) in connection with or resulting from the utilization,
storage, disposal, treatment, generation, transportation, release or
ownership of any Hazardous Substance (1)at, upon or under any property
of the Borrowers or any of their respective Affiliates or (2)by or on
behalf of the Borrowers or any of their respective Affiliates at any
time and in any place; or
(iii) in connection with any documentary taxes, assessments or
charges made by any governmental authority by reason of the execution
and delivery of this Agreement or the Notes.
(c) The Borrowers' obligations under this Section 10.04 shall
survive the assignment by any Lender pursuant to Section 10.07 hereof and shall
survive as well the repayment of all amounts owing to the Lenders under this
Agreement and the Notes and the termination of the Commitments. If and to the
extent that the obligations of the Borrowers under this Section 10.04
are unenforceable for any reason, the Borrowers agree to make the maximum
contribution to the payment and satisfaction thereof which is permissible under
applicable law.
(d) The Borrowers' obligations under this Section 10.04 are in
addition to and shall not be deemed to supersede their indemnification and
similar obligations set forth in that certain Commitment Letter dated as of
September 16, 1996 among the Borrowers, Citibank, Citicorp Securities, Inc.,
Toronto Dominion Securities (USA) Inc., The Toronto-Dominion Bank and Fleet
National Bank.
SECTION 10.05. Right of Set-off. (a)Upon (i)the occurrence and
during the continuance of any Event of Default with respect to any Borrower,
and (ii)the making of the request or the granting of the consent specified by
Section 8.02 to authorize the Administrative Agent to declare the Notes due and
payable pursuant to the provisions of Section 8.02, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of such Borrower
against any and all of the obligations of such Borrower now or hereafter
existing under this Agreement and the Note held by such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement
or such Notes and although such obligations may be unmatured. Each Lender
agrees promptly to notify such Borrower after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Lender may
have.
(b) Each Borrower agrees that it shall have no right of off-set,
deduction or counterclaim in respect of its obligations hereunder, and that the
obligations of the Lenders hereunder are several and not joint. Nothing
contained herein shall constitute a relinquishment or waiver of such Borrower's
rights to any independent claim that such Borrower may have against the
Administrative Agent or any Lender, but no Lender shall be liable for the
conduct of the Administrative Agent or any other Lender, and the Administrative
Agent shall not be liable for the conduct of any Lender.
SECTION 10.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by each Borrower, the Administrative Agent and
when the Administrative Agent shall have been notified by each Bank that such
Bank has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrowers, the Administrative Agent and each Lender and their
respective successors and assigns, except that the Borrowers shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
SECTION 10.07. Assignments and Participation. (a)Each Lender may
assign to one or more banks or other entities all or a portion of its rights
and obligations under this Agreement, including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it (with the prior written consent of the Borrowers if the assignee
thereunder is not then a Lender or an Affiliate of a Lender, which consent
shall not be unreasonably withheld); provided, however, that (i)each such
assignment shall be of a constant, and not a varying, percentage of all of the
assigning Lender's rights and obligations under this Agreement, (ii)if the
assignee thereunder is not then a Lender or an Affiliate of a Lender, the
amount of the Commitment, Advance or Note being assigned pursuant to each such
assignment shall in no event be less than the lesser of the amount of the
assigning Lender's Commitment and $10,000,000, and (iii)the parties to each
such assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an assignment and acceptance in
substantially the form of Exhibit 10.07 hereto (the "Lender Assignment"),
together with any Note or Notes subject to such assignment and a processing and
recordation fee of $3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Lender
Assignment, which effective date shall be at least five Business Days
after the execution thereof, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Lender Assignment, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it to
an assignee pursuant to such Lender Assignment, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of a
Lender Assignment covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease
to be a party hereto); provided, however, if an Event of Default shall have
occurred and be continuing a Lender may assign all or a portion of its rights
and obligations without the prior written consent of the Borrowers but otherwise
in accordance with this Section.
(b) By executing and delivering a Lender Assignment, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i)other than as provided in
such Lender Assignment, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, the
Notes or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the Notes or any other instrument or
document furnished pursuant thereto; (ii)such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower or the performance or observance by any
Borrower of any of its obligations under this Agreement, the Notes or any other
instrument or document furnished pursuant thereto; (iii)such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 6.01(f) and (g) and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Lender Assignment; (iv)such
assignee will, independently and without reliance upon the Administrative
Agent, such assigning Lender or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement and
the Notes; (v)such assignee appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement and the Notes as are delegated to the Administrative Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; and (vi)such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement and the
Notes are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred
to in Section 10.02 a copy of each Lender Assignment delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
the Borrowers, the Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes
of this Agreement. The Register shall be available for inspection by the
Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an assigning
Lender and an assignee, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Lender Assignment has been
completed and is in substantially the form of Exhibit 10.07 hereto, (i)accept
such Lender Assignment, (ii)record the information contained therein in
the Register and (iii)give prompt notice thereof to the Borrowers. Within
five Business Days after its receipt of such notice, each Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note or Notes to the order of such assignee
in an amount equal to the Commitment assumed by it pursuant to such Lender
Assignment and, if the assigning Lender has retained a Commitment hereunder, a
new Note or Notes to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes applicable to such Borrower, shall be dated the
effective date of such Lender Assignment and shall otherwise be in
substantially the form of Exhibit 1.01A or Exhibit 1.01B hereto, as the case
may be.
(e) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement and the Notes (including, without limitation, all or a portion
of its Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i)such Lender's obligations under this Agreement
(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii)such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii)such Lender shall
remain the holder of any such Note for all purposes of this Agreement, (iv)the
Borrowers, the Administrative Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and (v)the holder of any such
participation, other than an Affiliate of such Lender, shall not be entitled to
require such Lender to take or omit to take any action hereunder, except action
(A)reducing the principal of, or interest on, the Notes, any Applicable Margin
or any fees or other amounts payable hereunder (other than fees payable
pursuant to Section 2.02(c) hereof) or (B)postponing any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder (other than fees payable pursuant to Section 2.02(c) hereof).
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 10.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such
Lender by or on behalf of the Borrowers; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree, in accordance with the terms of Section 10.08, to preserve the
confidentiality of any Confidential Information received by it from such
Lender.
(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 3.04(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 3.04(b), the Borrowers or the
Administrative Agent may demand that such Lender assign in accordance with
Section 10.07 hereof, to one or more assignees designated by either the
Borrowers or the Administrative Agent (and reasonably acceptable to the other),
all (but not less than all) of such Lender's Commitment, Advances,
participation and other rights and obligations hereunder; provided that any
such demand by the Borrowers during the continuance of an Event of Default or
an Unmatured Default shall be ineffective without the consent of the Majority
Lenders. If, within 30 days following any such demand by the Administrative
Agent or the Borrowers, any such assignee so designated shall fail to tender
such assignment on terms reasonably satisfactory to the Lender, or the
Borrowers and the Administrative Agent shall have failed to designate any such
assignee, then such demand by the Borrowers or the Administrative Agent shall
become ineffective, it being understood for purposes of this provision that
such assignment shall be conclusively deemed to be on terms reasonably
satisfactory to such Lender, and such Lender shall be compelled to tender such
assignment forthwith, if (i) such assignee (A)shall agree to such assignment
in substantially the form of the Lender Assignment and (B) shall tender payment
to such Lender in an amount equal to the full outstanding dollar amount accrued
in favor of such Lender hereunder (as computed in accordance with the records
of the Administrative Agent) and (ii) in the event the Borrowers demanded such
assignment, the Borrowers shall tender payment to the Administrative Agent of
the processing and recording fee specified in Section 10.07(a) for such
assignment.
(h) Anything in this Section 10.07 to the contrary notwithstanding,
any Lender may assign and pledge all or any portion of its Commitment and the
Advances owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to RegulationA of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
SECTION 10.08. Confidentiality. In connection with the negotiation and
administration of this Agreement and the Notes, the Borrowers have furnished or
caused to have furnished and will from time to time furnish or cause to be
furnished to the Administrative Agent and the Lenders (each, a "Recipient")
written information which when delivered to the Recipient will be deemed to be
confidential (such information, other than any such information which (i)was
publicly available, or otherwise known to the Recipient, at the time of
disclosure, (ii)subsequently becomes publicly available other than through any
act or omission by the Recipient or (iii)otherwise subsequently becomes known
to the Recipient other than through a Person whom the Recipient knows to be
acting in violation of his or its obligations to the Borrowers, being
hereinafter referred to as "Confidential Information"). The Recipient will not
knowingly disclose any such Confidential Information to any third party (other
than to those persons who have a confidential relationship with the Recipient),
and will take all reasonable steps to restrict access to such information in a
manner designed to maintain the confidential nature of such information, in
each case until such time as the same ceases to be Confidential Information or
as the Borrowers may otherwise instruct. It is understood, however, that the
foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with prospective participants in or assignees of the
Recipient's position herein, but the Recipient's ability to so exchange
Confidential Information shall be conditioned upon any such prospective
participant's entering into an understanding as to confidentiality similar to
this provision. It is further understood that the foregoing will not prohibit
the disclosure of any or all Confidential Information if and to the extent
that such disclosure may be required (i)by a regulatory agency or otherwise in
connection with an examination of the Recipient's records by appropriate
authorities, (ii)pursuant to court order, subpoena or other legal process or
(iii)otherwise, as required by law; in the event of any required disclosure
under clause (ii) or (iii), above, the Recipient agrees to use reasonable
efforts to inform the Borrowers as promptly as practicable unless the Lender is
prohibited from doing so by court order, subpoena or other legal process.
SECTION 10.09. Waiver of Jury Trial. Each of the Borrowers, the
Agents,
and the Lenders hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out of or relating to this Agreement
or the Notes, or any other instrument or document delivered hereunder or
thereunder.
SECTION 10.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York. Each of the Borrowers, the Lenders and the Agents: (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 this
Agreement or the Notes, (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 this Agreement or any
Note, 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 this Agreement or any
Note 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 this Agreement or the Notes of NU, and this
Agreement and such Notes shall not be enforceable against any such trustee in
their or his or her individual capacities or capacity and this Agreement
and such Notes 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 this Agreement or such Notes and relating to NU, its
shareholders or trustees shall look solely to the trust estate of NU for the
payment or satisfaction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
NORTHEAST UTILITIES
By:
Name:
Title:
THE CONNECTICUT LIGHT AND
POWER COMPANY
By:
Name:
Title:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By:
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent
By:
Name:
Title:
CIBC INC.,
as Co-Agent
By:
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO,
as Co-Agent
By:
Name:
Title:
The Banks:
Commitment: $60,000,000 CITIBANK, N.A.
By
Name:
Title:
Commitment: $50,000,000 TORONTO DOMINION (NEW YORK), INC.
By
Name:
Title:
Commitment: $50,000,000 FLEET NATIONAL BANK
By
Name:
Title:
Commitment: $30,000,000 CIBC INC.
By
Name:
Title:
Commitment: $30,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By
Name:
Title:
Commitment: $20,000,000 THE FIRST NATIONAL BANK OF BOSTON
By
Name:
Title:
Commitment: $15,000,000 BARCLAYS BANK PLC
By
Name:
Title:
Commitment: $15,000,000 MELLON BANK, N.A.
By
Name:
Title:
Commitment: $15,000,000 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
Commitment: $11,250,000 SWISS BANK CORPORATION
By
Name:
Title:
By
Name:
Title:
Commitment: $10,000,000 THE YASUDA TRUST AND BANKING CO.,
LTD., NEW YORK BRANCH
By
Name:
Title:
Commitment: $7,500,000 UNION BANK OF CALIFORNIA, N.A.
By
Name:
Title:
Total of Commitments: $313,750,000.00
SCHEDULE I
APPLICABLE LENDING OFFICES
Eurodollar
Name of Bank Domestic Lending Office Lending Office
Barclays Bank PLC ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CIBC Inc. Two Paces West Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Citibank, N.A. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, Zone ▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The First National Bank of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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The First National Bank of One First National Plaza One First National Plaza
Chicago Chicago, IL 60670 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fleet National Bank ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Mellon Bank, N.A. Three Mellon Bank Center Three Mellon Bank Center
Pittsburgh, PA 15259-0003 ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Swiss Bank Corporation ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
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The Toronto-Dominion Bank ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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Union Bank of California, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Union Bank of Switzerland ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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The Yasuda Trust & Banking ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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York Branch
SCHEDULE II
PENDING ACTIONS
NONE
SCHEDULE III
NU Holding Company Debt (Including NU Guarantees)
As of Closing Date
NU DEBT:
1 NU Parent
8.58% Amortizing Series A Note, due 12/1/2006 $166,000,000
8.38% Amortizing Series B Note, due 3/1/2005 52,000,000
Subtotal $218,000,000
GUARANTEES:
1 Charter Oak Energy, Inc.
NU Guarantee for Ave Fenix Project $ 45,923,333
NU Guarantee for Tucumau Project 2,998,888
NU Guarantee for Costa Rica Project 48,500
Subtotal $ 48,970,721
2 Other NU Subsidiary Companies
NU Guarantee for Surety and/or Performance Bonds $ 6,652,160
TOTAL NU HOLDING COMPANY DEBT $273,622,881
SCHEDULE IV
Schedule of Existing and Surviving Credit Facilities
COMMITMENT AMOUNT
364-Day 3-Year Total
BANK Facility Facility Facility Advances
Existing Credit Facilities to be terminated upon closing of new
$313,750,000 Facility:
1. Fleet National Bank $15,000,000 $45,000,000 $60,000,000 $0
2. Citibank, N.A. 7,500,000 22,500,000 30,000,000 0
3. Toronto-Dominion Bank 7,500,000 22,500,000 30,000,000 0
4. CIBC 7,500,000 22,500,000 30,000,000 0
5. The First National Bank of Chicago 7,500,000 22,500,000 30,000,000 0
6. Bank of Boston 5,000,000 15,000,000 20,000,000 0
7. Barclays Bank PLC 3,750,000 11,250,000 15,000,000 0
8. Mellon Bank 3,750,000 11,250,000 15,000,000 0
9. Swiss Bank Corporation 3,750,000 11,250,000 15,000,000 0
10. Yasuda Trust & Banking Co. 3,750,000 11,250,000 15,000,000 0
11. Union Bank of California 1,875,000 5,625,000 7,500,000 0
Total Commitment of $66,875,000 $200,625,000 $267,500,000 $0
Existing Credit Facilities
Surviving Credit Facilities after closing of new $313,750,000 Facility:
1. Chase Manhattan Bank, N.A. $ 7,500,000 * $22,500,000 $30,000,000 $0
2. Bank of America 3,750,000 * 11,250,000 15,000,000 0
3. The Bank of Nova Scotia 3,750,000 * 11,250,000 15,000,000 0
4. State Street Bank 3,750,000 * 11,250,000 15,000,000 10,000,000
Total Commitment of $18,750,000 $56,250,000 $75,000,000 $10,000,000
Surviving Credit Facilities
* Termination date of surviving 364-day credit facilities is November 27,
1996.