Exhibit B.5
K&S DRAFT
5/14/97
EXHIBIT A To the
First Amendment and Waiver
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 18
1.03. Accounting Terms; Financial Statements 18
1.04. Computations of Outstandings 19
ARTICLE II
COMMITMENTS
2.01. The Commitments 19
2.02. Fees 19
2.03. Reduction of the Commitments; Borrower Sublimits;
Release of Collateral 20
2.04. Extension of the Termination Date 21
ARTICLE III
CONTRACT AND COMPETITIVE ADVANCES
3.01. Contract Advances 21
3.02. Terms Relating to the Making of Contract Advances 22
3.03. Competitive Advances - Competitive Bid Procedures 22
3.04. Making of Advances 26
3.05. Repayment of Advances 27
3.06. Interest 27
3.07. Several Obligations 28
ARTICLE IV
PAYMENTS
4.01. Payments and Computations 29
4.02. Prepayments 30
4.03. Yield Protection 31
4.04. Sharing of Payments, Etc 34
4.05. Taxes 35
ARTICLE V
CONDITIONS PRECEDENT
5.01. Conditions Precedent to Effectiveness 37
5.02. Conditions Precedent to Certain Contract Advances
and All Competitive Advances 39
5.03. Conditions Precedent to Other Contract Advances 40
5.04. Reliance on Certificates 41
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the Borrowers 41
ARTICLE VII
COVENANTS OF THE BORROWERS
7.01. Affirmative Covenants 46
7.02. Negative Covenants 49
7.03. Financial Covenants 56
7.04. Reporting Obligations 56
ARTICLE VIII
DEFAULTS
8.01. Events of Default 60
8.02. Remedies Upon Events of Default 62
ARTICLE IX
THE AGENTS
9.01. Authorization and Action 63
9.02. Administrative Agent's Reliance, Etc 64
9.03. Citibank and Affiliates 64
9.04. Lender Credit Decision 64
9.05. Indemnification 65
9.06. Successor Administrative Agent 65
ARTICLE X
MISCELLANEOUS
10.01. Amendments, Etc 66
10.02. Notices, Etc 67
10.03. No Waiver of Remedies 67
10.04. Costs, Expenses and Indemnification 67
10.05. Right of Set-off 68
10.06. Binding Effect 69
10.07. Assignments and Participation 69
10.08. Confidentiality 72
10.09. Waiver of Jury Trial 73
10.10. Governing Law 73
10.11. Relation of the Parties; No Beneficiary 73
10.12. Execution in Counterparts 74
10.13. Limitation of Liability 74
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 1.01C - CL&P Collateral FMB
Exhibit 1.01D - WMECO Collateral FMB
Exhibit 1.01E - Collateral Agency Agreement
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, collectively, Citibank in its capacity as
administrative agent hereunder or any successor thereto as provided herein
and the Collateral Agent.
"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 %)
Applicable Rating Level
NU
Eurodollar Rate Advances
Level I
0.225
Level II
0.275
Level III
0.45
Level IV
1.075
Level V
1.45
Base Rate Advances
▇▇▇▇▇ ▇
▇
▇▇▇▇▇ ▇▇
▇
▇▇▇▇▇ ▇▇▇
0
Level IV
1.00
Level V
1.00
CL&P and WMECO
Eurodollar Rate Advances
▇▇▇▇▇ ▇
▇.▇▇
▇▇▇▇▇ ▇▇
▇.▇▇
▇▇▇▇▇ ▇▇▇
0.40
Level IV
0.95
Level V
1.20
Base Rate Advances
▇▇▇▇▇ ▇
▇
▇▇▇▇▇ ▇▇
▇
▇▇▇▇▇ ▇▇▇
0
Level IV
1.00
Level V
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
Level I
BBB+ and Baa1
Level II
BBB and Baa2
Level III
BBB- and Baa3
▇▇▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇
▇▇- and Ba3 or lower or unrated
CL&P
Level I
BBB+ and Baa1
Level II
BBB and Baa2
Level III
BBB- and Baa3
▇▇▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇
▇▇- and Ba3 or lower or unrated
WMECO
Level I
BBB+ and Baa1
Level II
BBB and Baa2
Level III
BBB- and Baa3
▇▇▇▇▇ ▇▇
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇
▇▇- and Ba3 or lower or 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 Article III hereof, or this Agreement
provides for, interest to be computed on the basis of the Base Rate.
"Borrower" or "Borrowers" has the meaning assigned to that term in the
caption to this Agreement.
"Borrower Sublimit" means: (i) with respect to NU, $0; (ii) with respect to
CL&P, the lesser of (a) $313,750,000 and (b) the Required Collateral Coverage
Amount and (iii) with respect to WMECO, the lesser of (a) $150,000,000 and
(b) the Required Collateral Coverage Amount; provided, however, with respect
to NU only, if for any two consecutive Fiscal Quarters, each Borrower shall
maintain a ratio of Consolidated Operating Income to Consolidated Interest
Expense of not less than 2.50:1.0 for each such Borrower, then, upon the
delivery by the Borrowers of evidence reasonably satisfactory to the
Administrative Agent of such maintenance, the Borrower Sublimit of NU shall
equal $50,000,000.
"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 Date" means November 21, 1996.
"Co-Agents" has the meaning assigned to that term in the caption to this
Agreement.
"Collateral" means, (i) with respect to CL&P, the Collateral FMB issued by
CL&P and (ii) with respect to WMECO, the Collateral FMB issued by WMECO.
"Collateral Agent" means Citibank in its capacity as collateral agent or any
successor thereto as provided in the Collateral Agency Agreement.
"Collateral Agency Agreement" means the Collateral Agency Agreement in
substantially the form of Exhibit 1.01E hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Collateral FMBs" means, (i) with respect to CL&P, that certain First and
Refunding Collateral Mortgage Bond, 1997 Series A, issued by CL&P on the date
hereof pursuant to the CL&P Indenture to the Collateral Agent for the benefit
of the Lenders, in substantially the form of Exhibit 1.01C attached hereto,
and such other collateral mortgage bonds issued by CL&P from time to time
pursuant to the CL&P Indenture to the Collateral Agent for the benefit of the
Lenders, and (ii) with respect to WMECO, that certain First Mortgage
Collateral Bond, 1997 Series A, issued by WMECO on the date hereof pursuant
to the WMECO Indenture to the Collateral Agent for the benefit of the Lenders
in substantially the form of Exhibit 1.01D attached hereto, and such other
collateral mortgage bonds issued by WMECO from time to time pursuant to the
WMECO Indenture to the Collateral Agent for the benefit of the Lenders, in
each case, as the same may be amended, supplemented or otherwise modified
from time to time.
"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 accrued less 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; [CITIBANK/NU TO
DISCUSS]
(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 to obligations 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 April 3, 1983), (iii) obligations of such
Person as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, (iv) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire,
or otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (iii),
above, and (v) liabilities in respect of unfunded vested benefits under ERISA
Plans.
"Disclosure Documents" means with respect to each Borrower, such Borrower's
Annual Report on Form 10-K for the year ended December 31, 1995 and December
31, 1996, its Quarterly Reports on Form 10-Q for the quarters ended March 31,
1996, June 30, 1996, September 30, 1996, and March 31, 1997, and any Current
Report on Form 8-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 Title IV
of ERISA.
"ERISA Plan" means an employee benefit plan (other than a ERISA Multiemployer
Plan) maintained for employees of any Borrower or any ERISA Affiliate and
covered by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice to the PBGC
under such regulations) with respect to an ERISA Plan or an ERISA
Multiemployer Plan, or (ii) the withdrawal of any Borrower or any of its
ERISA Affiliates from an ERISA Plan or an ERISA Multiemployer Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (iii) the filing of a notice of intent to terminate
an ERISA Plan or an ERISA Multiemployer Plan or the treatment of an ERISA
Plan 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
Regulation D 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 Sections 3.06(d) and 4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in respect of which a
Borrower has selected in accordance with Article III hereof, 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 Regulation D or other regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement, without
benefit of or credit for proration, exemptions or offsets) for such Lender
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(e).
"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 any Loan Document,
(ii) the grant and perfection of any security interest, lien or mortgage
contemplated by the Loan Documents, or (iii) 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.
"Loan Documents" means this Agreement, the Notes, the Collateral Agency
Agreement and the Collateral FMBs.
"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 statute or 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. [DISCUSS - IMPACT OF SECURITIZATION STATUTES.
▇.▇▇▇▇▇▇▇▇▇ TO ADVISE.]
"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.
["Required Collateral Coverage Amount" means (i) with respect to CL&P, 100%
of the aggregate principal amount of the Collateral FMBs issued by CL&P and
(ii) the sum of (a) % of the aggregate principal amount of the Collateral
FMBs issued by WMECO with a stated interest rate of [11.5]% per annum and (b)
a percentage to be determined by the Majority Lenders of the principal amount
of each additional Collateral FMB issued by WMECO with a stated interest rate
of less than or greater than [11.5]% per annum. It being understood that the
percentage to be determined by the Majority Lenders in accordance with clause
(b) above may differ for each additional Collateral Bond issued by WMECO and
is subject to various factors including, without limitation, the stated
interest rate of such additional Collateral FMB.]
"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
Sections 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 Sections 4.03(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; Borrower Sublimits; Release of
Collateral. (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, at any time, the aggregate principal amount of the Collateral FMB of
WMECO or CL&P, as the case may be, exceeds such Borrower's Borrower Sublimit,
the Collateral Agent shall at the written request of such Borrower, promptly
release to such Borrower that portion of the Collateral FMB of such Borrower
in the aggregate principal amount equal to the amount of such excess,
provided that no Event of Default or Unmatured Default has occurred and is
continuing or would result from such release.
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 Sections 3.02, 4.03 and
Article V hereof.
SECTION 3.02. Terms Relating to the Making of Contract Advances. (a)
Notwithstanding anything in Section 3.01 above to the contrary:
(i) at no time shall more than twelve different Contract Borrowings be
outstanding hereunder;
(ii) each Contract Borrowing hereunder 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 3.03. (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 3.03A-1 or Exhibit
3.03A-2, 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 3.03C-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 3.03C-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 3.03C-1 or 3.03C-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 3.03D-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
12:00 noon (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 12:00 noon
(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 Article V, the
Administrative Agent will make such funds available to the Borrower that made
the request for such Borrowing at the Administrative Agent's aforesaid
address.
(b) Unless the Administrative Agent shall have received notice from a Lender
prior to the time of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender's ratable portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 3.04, 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 90 degree days, 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 12:00 noon (New York
City time) on the day when due in U.S. Dollars to the Administrative Agent at
its address referred to in Section 10.02 hereof, in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest, fees or other amounts
payable to the Lenders, to the respective Lenders to whom the same are
payable, for the account of their respective Applicable Lending Offices, in
each case to be applied in accordance with the terms of this Agreement. Upon
its acceptance of a Lender Assignment and recording of the information
contained therein in the Register pursuant to Section 10.07, from and after
the effective date specified in such Lender Assignment, the Administrative
Agent shall make all payments hereunder 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 360 days. All other computations
of interest, including computations of interest based on the Eurodollar Rate,
the Base Rate (when and if determined on the basis of the 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 under any Loan Document shall be stated to be due,
or the last day of an Interest Period hereunder shall be stated to occur, on
a day other than a Business Day, such payment shall be made and the last day
of such Interest Period shall occur on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
payment of interest and fees hereunder; provided, however, that if such
extension would cause payment of interest on or principal of Eurodollar Rate
Advances 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 under the Loan Documents (other than changes in respect of taxes
imposed on the overall net income of such Lender or its Applicable Lending
Office by the jurisdiction in which such Lender has its principal office or
in which such Applicable Lending Office is located or by any political
subdivision or taxing authority therein), or (ii) shall impose, modify or
deem applicable any reserve, special deposit or similar requirement against
commitments or assets of, deposits with or for the account of, or credit
extended by, such Lender, or (iii) shall impose on such Lender or the London
interbank market any other condition affecting this Agreement or Eurodollar
Rate Advances 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 under any Loan Document 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 Article V, (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 10 days after its receipt of the same.
The failure of any Lender to provide such notice or to make demand for
payment under this Section 4.03 shall not constitute a waiver of such
Lender's rights hereunder; provided that such Lender shall not be entitled to
demand payment pursuant to subsections (a) through (d) of this Section 4.03,
in respect of any loss, cost, expense, reduction or reserve, if such demand
is made more than one year following the later of such Lender's incurrence or
sufferance thereof or such Lender's actual knowledge of the event giving rise
to such Lender's rights pursuant to such subsections. Each Lender shall use
reasonable efforts to ensure the accuracy and validity of any claim made by
it hereunder, but the foregoing shall not obligate any Lender to assert any
possible invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
(f) Change in Legality. Notwithstanding any other provision herein, if the
adoption of or any change in any law or regulation or in the interpretation
or administration thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any
Lender to make or maintain any Eurodollar Rate Advance or 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 under
the Loan Documents in accordance with Section 10.07(g)), the Administrative
Agent shall deliver notice thereof to the Borrowers and the Lenders and such
suspension shall terminate. Prior to any Lender giving notice to the
Borrowers under this subsection (f), such Lender shall use reasonable efforts
to change the jurisdiction of its Applicable Lending Office, if such change
would avoid such unlawfulness and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender. Any notice to the
Borrowers by any Lender shall be effective as to each Eurodollar Rate Advance
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
under any Loan Document shall be made in accordance with Section 4.01, free
and clear of and without deduction for all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Administrative
Agent, taxes imposed on its overall net income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it, by the jurisdiction of
such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If
any Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable under any Loan Document to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.05) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made by such Borrower under any Loan
Document or from the execution, delivery or registration of, or otherwise
with respect to, any Loan Document (hereinafter referred to as "Other
Taxes").
(c) Each Borrower hereby indemnifies each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and any Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.05) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
A Lender's claim for such indemnification shall be set forth in a certificate
of such Lender setting forth in reasonable detail the amount necessary to
indemnify such Lender pursuant to this subsection (c) and shall be submitted
to the Borrowers and the Administrative Agent and shall be conclusive and
binding for all purposes, absent manifest error. The appropriate Borrower
shall pay each Lender directly the amount shown as due on any such
certificate within 30 days after the receipt of same. If any Taxes or Other
Taxes for which a Lender or the Administrative Agent has received payments
from a Borrower hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to such Lender or the
Administrative Agent, such Lender or the Administrative Agent, as the case
may be, shall promptly forward to such Borrower any such refunded amount.
Each Borrower's, the Administrative Agent's and each Lender's obligations
under this Section 4.05 shall survive the payment in full of the Advances.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
making such payment will furnish to the Administrative Agent, at its address
referred to in Section 10.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of the United States
of America or any state thereof shall, on or prior to the date it becomes a
Lender hereunder, deliver to the Borrowers and the Administrative Agent such
certificates, documents or other evidence, as required by the Internal
Revenue Code of 1986, as amended from time to time (the "Code"), or treasury
regulations issued pursuant thereto, including Internal Revenue Service Form
4224 and any other certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1(a) or Section 1.1441-6(c) or any subsequent
version thereof, properly completed and duly executed by such Lender
establishing that it is (i) not subject to withholding under the Code or (ii)
totally exempt from United States of America tax under a provision of an
applicable tax treaty. Each Lender shall promptly notify the Borrowers and
the Administrative Agent of any change in its Applicable Lending Office and
shall deliver to the Borrowers and the Administrative Agent together with
such notice such certificates, documents or other evidence referred to in the
immediately preceding sentence. Each Lender will use good faith efforts to
apprise the Borrowers and the Administrative Agent as promptly as practicable
of any impending change in its tax status that would give rise to any
obligation by any Borrower to pay any additional amounts pursuant to this
Section 4.05. Unless the Borrowers and the Administrative Agent have received
forms or other documents satisfactory to them indicating that payments under
the Loan Documents are not subject to United States of America withholding
tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Borrowers or the Administrative Agent shall withhold taxes from such
payments at the applicable statutory rate in the case of payments to or for
any Lender organized under the laws of a jurisdiction outside the United
States of America. Each Lender represents and warrants that each such form
supplied by it to the Administrative Agent and the Borrowers pursuant to this
Section 4.05, and not superseded by another form supplied by it, is or will
be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 4.05 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrowers or to change the jurisdiction of its Applicable Lending Office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would
not, in the sole determination of such Lender, be otherwise disadvantageous
to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The 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 any Loan Document or any First Mortgage Indenture.
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 any Loan Document or any First Mortgage Indenture.
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 the Loan Documents, to borrow hereunder and
to execute and deliver its respective Notes.
(b) The execution, delivery and performance of the Loan Documents and First
Mortgage Indenture 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 clauses (i) and (ii) 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. 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 (iii) 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) The Loan Documents and the First Mortgage Indenture 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 December
31, 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 December 31, 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 December 31, 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 June 30, 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 June 30, 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) any Loan Document or any First
Mortgage Indenture of such Borrower 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 Item 2 of such
Borrower's Annual Report on Form 10-K for the Fiscal Year ended December 31,
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 the Loan Documents
(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.
(o) With respect to CL&P and WMECO only, such Borrower's First Mortgage
Indenture constitutes a direct and valid first mortgage lien, subject only to
liens permitted by such Borrower's First Mortgage Indenture, including liens
and encumbrances existing at the time of acquisition by such Borrower, upon
the interests of such Borrower in electric properties and franchises now
owned by such Borrower and located in Connecticut, Massachusetts, New
Hampshire and Vermont, and under existing law will, subject only to such
permitted liens and subject to the Bankruptcy Laws, constitute a similar lien
at the time of acquisition on all properties and assets of such Borrower
acquired after May , 1997 located within the State of Connecticut and
required by such Borrower's First Mortgage Indenture to be subjected to the
lien thereof, other than properties and assets of the character excluded,
excepted or released from the lien thereof.
(p) With respect to CL&P and WMECO only, such Borrower's First Mortgage
Indenture and/or appropriate certificates or financing statements with
respect thereto, have been duly recorded or filed for recordation in all
places within the States of Connecticut, Massachusetts, New Hampshire and
Vermont, in which such recording is required to protect and preserve the lien
of such Borrower's First Mortgage Indenture on the properties and assets
located in Connecticut, Massachusetts, New Hampshire and Vermont, which are
presently subject thereto, and all Connecticut, Massachusetts, New Hampshire
and Vermont taxes and fees required to be paid with respect to the execution
and recording of such Borrower's First Mortgage Indenture and the issuance of
such Borrower's Collateral FMBs have been paid.
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 (iii) 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.
(l) Further Assurances. Promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary
or that any Lender through the Administrative Agent may reasonably request in
order to fully give effect to the interests and properties purported to be
covered by the Loan Documents.
SECTION 7.02. Negative Covenants. 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, Liens created by the Indenture of Mortgage and Deed
of Trust dated as of May 1, 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, Liens created by the First Mortgage Indenture and
Deed of Trust dated as of August 1, 1954, from WMECO to State Street Bank and
Trust Company, as successor trustee, as 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 October 1, 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 October 1, 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 any Loan Document 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;
(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;
(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, 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 the Loan Documents and the Surviving
Credit Facilities, (ii) Debt existing on the Closing Date as described on
Schedule III, which D ebt 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 $100,000,000 at any one
time outstanding.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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 or pursuant 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
(NU Consolidated)
Period: 1/1/97 through 12/31/97
0.31:1.00
Period: 1/1/98 and thereafter
0.32:1.00
Borrower
CL&P
Period: 1/1/97 through 12/31/97
0.31:1.00
Period: 1/1/98 and thereafter
0.32:1.00
Borrower
WMECO
Period: 1/1/97 through 12/31/97
0.31:1.00
Period: 1/1/98 and thereafter
0.32:1.00
(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
(NU Consolidated)
Period: 10/1/97 through 12/31/97
---
Period: 1/1/98 through 6/30/98
1.75:1.00
Period: 7/1/98 through 9/31/98
2.00:1.00
Period: 10/1/98 and thereafter
2.50:1.00
Borrower
CL&P
Period: 10/1/97 through 12/31/97
1.25:1.00
Period: 1/1/98 through 6/30/98
1.50:1.00
Period: 7/1/98 through 9/31/98
2.00:1.00
Period: 10/1/98 and thereafter
2.50:1.00
Borrower
WMECO
Period: 10/1/97 through 12/31/97
1.25:1.00
Period: 1/1/98 through 6/30/98
1.50:1.00
Period: 7/1/98 through 9/31/98
2.00:1.00
Period: 10/1/98 and thereafter
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 Sections 6.01(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 Sections 7.03(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 Sections
6.01(f), and
(2) stating that no Event of Default or Unmatured Default with respect to
such Borrower has occurred and is continuing, or if an Event of Default or
Unmatured Default with respect to such Borrower has occurred and is
continuing, describing the nature thereof and the action which such Borrower
proposes to take with respect thereto, and
(3) demonstrating such Borrower's compliance with Sections 7.03(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 Form S-8) and Current Report on
Form 8-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 Sections 7.01(d), Section
7.02 (b), (c), (d), (e) or (f), 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 any Loan Document 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 any Loan
Document; 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; or
(m) With respect to CL&P and WMECO only, any Collateral FMB of such Borrower
shall for any reason (i) cease to be entitled to the benefits and security of
the First Mortgage Indenture of such Borrower equally and ratably with all
other First Mortgage Bonds outstanding under such First Mortgage Indenture,
or (ii) cease to be a legal, valid and binding obligation of such Borrower;
or
(n) With respect to CL&P and WMECO only, such Borrower's First Mortgage
Indenture shall for any reason fail to constitute a direct and valid first
mortgage lien, subject only to liens permitted by such Borrower's First
Mortgage Indenture, including liens and encumbrances existing at the time of
acquisition by such Borrower, upon the interests of such Borrower in the
electric properties and franchises now owned by such Borrower and located in
Connecticut, Massachusetts, New Hampshire and Vermont, and fail to constitute
a similar lien, subject only to such permitted liens and subject to the
Bankruptcy Laws, at the time of acquisition on all properties and assets of
such Borrower acquired after May , 1997 located within the State of
Connecticut and required by such Borrower's First Mortgage Indenture to be
subjected to the lien thereof, other than properties and assets of the
character excluded, excepted or released from the lien thereof.
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%; (ii)
declare the Notes of such Borrower, all interest thereon and all other
amounts payable by such Borrower under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon such 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 and; (iii) subject to the
limitations set forth in Section 3.01(e) of the Collateral Agency Agreement,
exercise in respect of any and all Collateral, in addition to the other
rights and remedies provided for herein and in the other Loan Documents or
otherwise available to the Administrative Agent, the Collateral Agent or the
Lenders, all the rights and remedies of a secured party on default under the
Uniform Commercial Code in effect in the State of New York and in effect in
any other jurisdiction in which Collateral is located at that time,
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 the Loan Documents (including, without limitation, enforcement or
collection thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders; provided, however, that
the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary
to 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 under the
Loan Documents.
SECTION 9.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them
under or in connection with any Loan Document, except for its or their own
gross negligence or 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 any
Loan Document; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of any Borrower to be performed or observed, or
to inspect any property (including the books and records) of any Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan
Document or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by 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
the Loan Documents as any other Lender and may exercise the same as though it
were not the Administrative Agent and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank in its individual
capacity. Citibank and its Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of
business with, any Borrower, any of their respective subsidiaries and any
Person who may do business with or own securities of any Borrower or any such
subsidiary, all as if Citibank were not the Administrative Agent and without
any duty to account therefor to the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agents or any other Lender and
based on the Information Memorandum and other financial information referred
to in Sections 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 any Loan Document or any action taken or omitted by the Agents
in their capacities as such under any Loan Document, provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from 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, the Loan Documents to the extent
that the Administrative Agent is entitled to reimbursement for such expenses
pursuant to Section 10.04 but is not reimbursed for such expenses by the
Borrowers.
SECTION 9.06. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrowers, with any such resignation to become effective only upon the
appointment of a successor Administrative Agent pursuant to this Section
9.06. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor Administrative Agent, which shall be a Lender or
another commercial bank or trust company reasonably acceptable to the
Borrowers organized or licensed under the laws of the United States, or of
any State thereof. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be Lender or
shall be another commercial bank or trust company organized or licensed under
the laws of the United States or of any State thereof reasonably acceptable
to the Borrowers. In addition to the foregoing right of the Administrative
Agent to resign, the Majority Lenders may remove the Administrative Agent at
any time, with or without cause, concurrently with the appointment by the
Majority Lenders of a successor Administrative Agent. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent 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 the Loan Documents. It is understood that in the event the
Administrative Agent shall resign, or be removed by the Majority Lenders, as
provided in this paragraph, the Administrative Agent shall resign, or be
removed, as the case may be, in its capacity as both administrative agent and
collateral agent under the Loan Documents and the successor Administrative
Agent shall be the successor Administrative Agent and the successor
Collateral Agent under the Loan Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any provision of
any Loan Document, nor consent to any departure by any Borrower therefrom,
shall in any event be effective unless the same shall be in writing and
signed by the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive, modify or eliminate any of the conditions specified in Article V, (b)
increase the Commitment of any Lender hereunder or increase the Commitments
of the Lenders that may be maintained hereunder or increase any Borrower
Sublimit or subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the 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 under the Loan Documents (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 under the Loan Documents, (f) amend any Loan Document in a
manner intended to prefer one or more Lenders over any other Lenders, or (g)
amend this Section 10.01, or (h) release all or substantially all of the
Collateral other than in accordance with the terms of the Loan Documents; and
provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under any Loan Document. 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 under the Loan Documents
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: (860)
665-5457, confirm number: (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule I hereto;
(iii) if to any Lender other than a Bank, at its Domestic Lending Office
specified in the Lender Assignment pursuant to which it became a Lender; and
(iv) if to the Administrative Agent, at its address at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇/▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Bank Loan
Services, telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, fax number: (▇▇▇) ▇▇▇-▇▇▇▇, with
a copy to Citibank, N.A., Global Power Group, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director,
telecopier number: (▇▇▇) ▇▇▇-▇▇▇▇, confirm number: (▇▇▇) ▇▇▇-▇▇▇▇.
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall, when mailed, 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 under any Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification. (a) The Borrowers
agree to pay when due, in accordance with the terms hereof: (i) all costs and
expenses of the Administrative Agent in connection with the preparation,
negotiation, execution and delivery of the Loan Documents, the administration
of the Loan Documents, and any proposed modification, amendment, or consent
relating thereto (including, in each case, the reasonable fees and expenses
of counsel to the Administrative Agent) and the care and custody of, or the
sale of, collection from, or other realization upon, any and all Collateral;
and (ii) all costs and expenses of the Administrative Agent and each Lender
(including all fees and expenses of counsel) in connection with the
enforcement, whether through negotiations, legal proceedings or otherwise, of
the Loan Documents.
(b) The Borrowers hereby agree to indemnify and hold 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 the Loan Documents or any transaction contemplated thereby,
or the use by any Borrower of the proceeds of any Advance;
(ii) in connection with or resulting from the utilization, storage, disposal,
treatment, generation, transportation, release or ownership of any Hazardous
Substance (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
the Loan Documents.
(c) The Borrowers' obligations under this Section 10.04 shall survive the
assignment by any Lender pursuant to Section 10.07 hereof and shall survive
as well the repayment of all amounts owing to the Lenders under the Loan
Documents and the termination of the Commitments. If and to the extent that
the obligations of the Borrowers under this Section 10.04 are unenforceable
for any reason, the Borrowers agree to make the maximum contribution to the
payment and satisfaction thereof which is permissible under applicable law.
(d) The Borrowers' obligations under this Section 10.04 are in addition to
and shall not be deemed to supersede their indemnification and similar
obligations set forth in that certain Commitment Letter dated as of 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 the Loan Documents held by such Lender, irrespective
of whether or not such Lender shall have made any demand under the Loan
Documents 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 under the Loan Documents, and
that the obligations of the Lenders hereunder are several and not joint.
Nothing contained herein shall constitute a relinquishment or waiver of such
Borrower's rights to any independent claim that such Borrower may have
against the Administrative Agent or any Lender, but no Lender shall be liable
for the conduct of the Administrative Agent or any other Lender, and the
Administrative Agent shall not be liable for the conduct of any Lender.
SECTION 10.06. 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 under the Loan Documents 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 the Loan Documents, 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 the Loan Documents, (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 under the Loan
Documents have been assigned to it pursuant to such Lender Assignment, have
the rights and obligations of a Lender under the Loan Documents and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
under the Loan Documents 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 the Loan Documents, 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 the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Loan Documents 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 the Loan Documents or any other instrument or
document furnished pursuant thereto; (iii) such assignee confirms that it has
received a copy of the Loan Documents, 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 the Loan Documents;
(v) such assignee appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents 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 the Loan Documents 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 the
Loan Documents (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 the Loan Documents, 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 under
the Loan Documents, except action (A) reducing the principal of, or interest
on, the Notes, any Applicable Margin or any fees or other amounts payable
under the Loan Documents (other than fees payable pursuant to Section 2.02(c)
hereof), (B) postponing any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable under the Loan
Documents (other than fees payable pursuant to Section 2.02(c) hereof) or (C)
causing or permitting the termination of any Collateral FMB or releasing any
Collateral other than in accordance with the terms of the Loan Documents.
(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 under the Loan Documents; provided that any such
demand by the Borrowers during the continuance of an Event of Default or an
Unmatured Default shall be ineffective without the consent of the Majority
Lenders. If, within 30 days following any such demand by the 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 Regulation A 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 the Loan Documents, the Borrowers have furnished or caused
to have furnished and will from time to time furnish or cause to be furnished
to the Administrative Agent and the Lenders (each, a "Recipient") written
information which when delivered to the Recipient will be deemed to be
confidential (such information, other than any such information which (i) was
publicly available, or otherwise known to the Recipient, at the time of
disclosure, (ii) subsequently becomes publicly available other than through
any act or omission by the Recipient or (iii) otherwise subsequently becomes
known to the Recipient other than through a Person whom the Recipient knows
to be acting in violation of his or its obligations to the Borrowers, being
hereinafter referred to as "Confidential Information"). The Recipient will
not knowingly disclose any such Confidential Information to any third party
(other than to those persons who have a confidential relationship with the
Recipient), and will take all reasonable steps to restrict access to such
information in a manner designed to maintain the confidential nature of such
information, in each case until such time as the same ceases to be
Confidential Information or as the Borrowers may otherwise instruct. It is
understood, however, that the foregoing will not restrict the Recipient's
ability to freely exchange such Confidential Information with prospective
participants in or assignees of the Recipient's position herein, but the
Recipient's ability to so exchange Confidential Information shall be
conditioned upon any such prospective participant's entering into an
understanding as to confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of any or all
Confidential Information if and to the extent that such disclosure may be
required (i) by a regulatory agency or otherwise in connection with an
examination of the Recipient's records by appropriate authorities, (ii)
pursuant to court order, subpoena or other legal process or (iii) otherwise,
as required by law; in the event of any required disclosure under clause (ii)
or (iii), above, the Recipient agrees to use reasonable efforts to inform the
Borrowers as promptly as practicable unless the Lender is prohibited from
doing so by court order, subpoena or other legal process.
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 the Loan
Documents, or any other instrument or document delivered hereunder or
thereunder.
SECTION 10.10. Governing Law. The Loan Documents shall be governed by, and
construed in accordance with, the laws of the State of New York. Each of the
Borrowers, the Lenders and the 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 the Loan Documents, (ii)
agrees that all claims in such action may be decided in such court, (iii)
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum and (iv) consents to the service of process by mail. A
final judgment in any such action shall be conclusive and may be enforced in
other jurisdictions. Nothing herein shall affect the right of any party to
serve legal process in any manner permitted by law or affect its right to
bring any action in any other court.
SECTION 10.11. Relation of the Parties; No Beneficiary. No term, provision
or requirement, whether express or implied, of any Loan Document, or actions
taken or to be taken by any party thereunder, shall be construed to create a
partnership, association, or joint venture between such parties or any of
them. No term or provision of any Loan Document shall be construed to confer
a benefit upon, or grant a right or privilege to, any Person other than the
parties hereto.
SECTION 10.12. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 10.13. Limitation of Liability. No shareholder or trustee of NU
shall be held to any liability whatever for the payment of any sum of money
or for damages or otherwise under any Loan Document of NU, and such Loan
Documents shall not be enforceable against any such trustee in their or his
or her individual capacities or capacity and such Loan Documents shall be
enforceable against the trustees of NU only as such, and every person, firm,
association, trust or corporation having any claim or demand arising under
such Loan Documents and relating to NU, its shareholders or trustees shall
look solely to the trust estate of NU for the payment or satisfaction
thereof.
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
Name of Bank
Barclays Bank PLC
Domestic Lending ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar
Lending ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
CIBC Inc.
Domestic Lending Office
Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending Office
Two Paces West
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
Citibank, N.A.
Domestic Lending Office
One Court Square
7th Floor, Zone ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
The First National Bank of Boston
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇/▇-▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇/▇-▇▇-▇▇-▇▇
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Name of Bank
The First National Bank of Chicago
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
Fleet National Bank
Domestic Lending ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
Mellon Bank, N.A.
Domestic Lending ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Name of Bank
Swiss Bank Corporation
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
The Toronto-Dominion Bank
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
Union Bank of California, N.A.
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
Union Bank of Switzerland
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Name of Bank
The Yasuda Trust & Banking Company, Limited, New York Branch
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurodollar Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE II
PENDING ACTIONS
NONE
SCHEDULE III
NU DEBT