Exhibit B.14
CREDIT AGREEMENT
Dated as of November 19, 1999
THIS CREDIT AGREEMENT is made by and among:
(i) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation organized under
the laws of the State of Connecticut ("CL&P");
(ii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation organized under
the laws of the Commonwealth of Massachusetts ("WMECO"; CL&P and WMECO each
being a "Borrower" and collectively, the "Borrowers");
(iii) 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
(iv) CITIBANK, N.A. ("Citibank"), as Administrative Agent for the Lenders
hereunder.
PRELIMINARY STATEMENT
The Borrowers have requested the Banks to provide the credit facility
hereinafter described in the amounts and on the terms and conditions set
forth herein. The Banks have so agreed on the terms and conditions set forth
herein, and the Administrative Agent has agreed to act as agent for the
Lenders on such terms and conditions.
Based upon the foregoing and subject to the terms and conditions set
forth in this Agreement, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Administrative Agent" means Citibank, in its capacity as administrative
agent hereunder, or any successor thereto as provided herein.
"Advance" means a Contract Advance.
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling (including, but not limited to, all directors and
officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control another entity
if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such entity, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit Agreement, as the same may be modified, amended
and/or supplemented pursuant to the terms hereof.
"Applicable Commitment 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 such Borrower:
Applicable Commitment Fee Rate
Applicable Rating Level Percentage (%)
Level I 0.200
Level II 0.250
Level III 0.375
Level IV 0.500
Level V 0.750
Any change in the Applicable Commitment Fee Rate caused by a change in
the Applicable Rating Level shall take effect at the time such change in
the Applicable Rating Level shall occur.
"Applicable Lending Office" means, with respect to each Lender:
(i) in the case of any Contract Advance, (A) such Lender's "Eurodollar
Lending Office" in the case of a Eurodollar Rate Advance or (B) such Lender's
"Domestic Lending Office" in the case of a Base Rate Advance, in each case as
specified opposite such Lender's name on Schedule I hereto or in the Lender
Assignment pursuant to which it became a Lender; or
(ii) in each case, such other office of such Lender as such Lender may from
time to time specify in writing to the Borrowers and the Administrative
Agent.
"Applicable Margin" means, for each Borrower, for any day for any outstanding
Contract Advance, the percentage per annum set forth below in effect on such
day, determined on the basis of the Applicable Rating Level for such
Borrower:
Applicable Margin (Percentage %)
Rating Level Eurodollar Rate Advances Base Rate Advances
Level I 1.00 0.00
Level II 1.25 0.25
Level III 1.50 0.50
Level IV 2.25 1.25
Level V 2.50 1.50
Any change in the Applicable Margin caused by a change in the Applicable
Rating Level shall take effect at the time such change in the Applicable
Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance made to either Borrower,
either of (i) the Base Rate from time to time applicable to such Advance plus
the Applicable Margin, or (ii) the Eurodollar Rate from time to time
applicable to such Advance plus the Applicable Margin.
"Applicable Rating Level" for each Borrower, shall be determined at any time
and from time to time on the basis of the ratings assigned by S&P and Moody's
to such Borrower's First Mortgage Bonds (except as provided below) in
accordance with the following:
Applicable Rating Level
S&P Moody's
Level I BBB+ or higher Baa1 or higher
Level II BBB Baa2
Level III BBB- Baa3
Xxxxx XX XXx Xx0
Xxxxx X XX or lower Ba2 or lower
In the event that the rating assigned by S&P to either Borrower's First
Mortgage Bonds and the rating assigned by Moody's to such Borrower's First
Mortgage Bonds do not correspond to the same Applicable Rating Level, then
the lower of the two ratings shall determine the Applicable Rating Level.
The Applicable Rating Level shall be redetermined as and when any change in
the ratings used in the determination thereof shall be announced by S&P or
Moody's, as the case may be.
If either Moody's or S&P shall cease to issue or maintain a rating on a
Borrower's First Mortgage Bonds while the same are outstanding, then the
Applicable Rating Level shall be Level V. If either Moody's or S&P shall
have ceased to issue or maintain a rating on a Borrower's First Mortgage
Bonds because no such First Mortgage Bonds are outstanding, the rating
assigned by such agency to such Borrower's unsecured, senior, non-credit
enhanced, long-term Debt, or, if no such rating has been assigned, to such
Borrower's general corporate obligations (such alternative ratings, the
"Alternate Reference Ratings") shall be used (together with the applicable
rating issued by the other ratings agency) to determine the Applicable Rating
Level; provided, that if the Applicable Rating Level would be lowered solely
as a result of being determined on the basis of an Alternative Reference
Rating (and not, for example, as a result of any deterioration in the
financial condition, operations, creditworthiness, properties or prospects of
such Borrower, as determined on the basis of public announcements by Moody's
or S&P, as applicable), then the Applicable Rating Level theretofore in
effect shall remain in force until such Alternative Reference Rating is next
raised, lowered or confirmed (following analysis, as evidenced by a formal
announcement to the effect that such rating is confirmed) by S&P or Moody's,
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).
"Available Commitments" shall refer to the aggregate of the Lenders'
Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the caption to this
Agreement.
"Base Rate" means, for any period, a fluctuating interest rate per annum as
shall be in effect from time to time which rate per annum shall at all times
be equal to the highest of:
(a) the rate of interest announced publicly by the Administrative Agent in
its principal place of business from time to time as the Administrative
Agent's base rate;
(b) 1/2 of one percent per annum above the latest three-week moving average
of secondary market morning offering rates in the United States for three-
month certificates of deposit of major United States money market banks,
adjusted to the nearest 1/32 of one percent (the "CD Rate");
(c) 1/2 of one percent per annum above the Federal Funds Rate in effect from
time to time; and
(d) for the period from December 1, 1999 through March 31, 2000, a rate
equal to 2% 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 clauses (c)
and (d) of the first sentence of this definition, in the event the
Administrative Agent is unable to ascertain the Federal Funds Rate, until the
circumstances giving rise to such inability no longer exist. Any change in
the Base Rate due to a change in the Administrative Agent's base rate, the CD
Rate or the Federal Funds Rate shall be effective on the effective date
of such change in the Administrative Agent's base rate, the CD Rate or
the Federal Funds Rate, respectively.
"Base Rate Advance" means a Contract Advance in respect of which a Borrower
has selected in accordance with Article III hereof, or this Agreement
provides for, interest to be computed on the basis of the Base Rate.
"Borrower" or "Borrowers" has the meaning assigned to that term in the
caption to this Agreement.
"Borrower Sublimit" means: (i) with respect to CL&P, $300,000,000 and (ii)
with respect to WMECO, $200,000,000.
"Borrowing" means a Contract Borrowing.
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"Change of Control" means (a) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended),
other than Consolidated Edison, Inc., 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) except as a result of the acquisition of NU by Consolidated Edison, Inc.,
the Board of Directors of NU shall not consist of a majority of Continuing
Directors. For purposes of this definition, the term "Continuing Directors"
means directors of NU on the Closing Date and each other director of NU, if
such other director's nomination for election to the Board of Directors
of NU is recommended by a majority of the then Continuing Directors.
"Citibank" has the meaning assigned to that term in the caption to
this Agreement.
"CL&P" has the meaning assigned to that term in the caption to this
Agreement.
"CL&P Indenture" has the meaning assigned to that term in
Section 7.02(a)(ii) hereof.
"Closing Date" has the meaning assigned to that term in Section 5.01 hereof.
"Collateral" means the open-end second mortgages granted by each Borrower on
such Borrower's interests in the Millstone Xxxx Xx. 0 xxx Xxxxxxxxx Xxxx Xx.
0 nuclear units.
"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 1.01B hereto, 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 capital, if any, of such Borrower and its
Subsidiaries, in each case as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Confidential Information" has the meaning assigned to that term in Section
10.08 hereof.
"Consolidated Interest Expense" means, for any Borrower, for any period, the
aggregate amount of any interest required to be paid during such period by
such Borrower and its Subsidiaries on Debt (including the current portion
thereof) (as determined on a consolidated basis in accordance with generally
accepted accounting principles), excluding interest required to be paid on
the stranded cost recovery bonds of such Borrower.
"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/or
its Subsidiaries' consolidated operating income for such period;
(ii) increased by the amount of any depreciation and amortization deducted in
the computation of such Borrower's and/or its Subsidiaries' consolidated
operating income for such period;
(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;
(iv) decreased by the amount of revenues accrued by such Borrower and/or its
Subsidiaries related to the interest and principal on stranded cost recovery
bonds issued by such Borrower, and increased by the amount of operating
expenses accrued by such Borrower and/or its Subsidiaries related to the
interest and principal on stranded cost recovery bonds issued by such
Borrower, in each case to the extent included in the computation of such
Borrower's and/or its Subsidiaries' consolidated operating income for such
period;
(v) decreased by the proceeds of stranded cost recovery bonds issued by such
Borrower to the extent included in the computation of such Borrower's and/or
its Subsidiaries' consolidated operating income for such period; and
(vi) decreased by the proceeds of asset sales done outside the ordinary
course of business to the extent included in the computation of such
Borrower's and/or its Subsidiaries' consolidated operating income for such
period; and
(vii)increased or decreased, as the case may be, by the amount of income
taxes paid or refunded on gains or losses related to the sale of assets or
purchased power contracts done outside the ordinary course of business to the
extent included in the computation of such Borrower's and/or its Subsidiaries
consolidated operating income for such period.
"Contract Advance" means an advance by a Lender to either Borrower pursuant
to Article III hereof, and refers to a Eurodollar Rate Advance or a Base Rate
Advance (each of which shall be a "Type" of Contract Advance). For purposes
of this Agreement, all Contract Advances of a Lender (or portions thereof) of
the same Type and Interest Period, if any, made or converted on the same day
to the same Borrower shall be deemed to be a single Advance by such Lender
until repaid.
"Contract Borrowing" means a borrowing consisting of one or more Contract
Advances of the same Type and Interest Period, if any, made to
the same Borrower on the same Business Day by the Lenders, ratably in
accordance with their respective Commitments. A Contract Borrowing may
be referred to herein as being a "Type" of Contract Borrowing, corresponding
to the Type of Contract Advances comprising such Borrowing. For purposes of
this Agreement, all Contract Advances of the same Type and Interest Period,
if any, made or converted on the same day to the same Borrower shall be
deemed a single Contract Borrowing hereunder until repaid.
"Contract Note" means a promissory note of either Borrower payable to the
order of a Lender, in substantially the form of Exhibit 1.01A hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Contract Advances made by such Lender to such
Borrower.
"Debt" means, for any Person, without duplication, (i) indebtedness of such
Person for borrowed money, including but not limited to obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments
(excluding stranded cost recovery bonds which are non-recourse to such
Person), (ii) obligations of such Person to pay the deferred purchase price
of property or services (excluding any obligation of such Person to 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, for either Borrower: (i) such Borrower's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998; (ii) its
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31 and
June 30, 1999; (iii) each Current Report on Form 8-K of such Borrower filed
after June 30, 1999 and on or prior to October 29, 1999 and (iv) the
Information Memorandum.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"ERISA Affiliate" means, with respect to any Person, any trade or business
(whether or not incorporated) which is a "commonly controlled entity" of such
Person within the meaning of the regulations under Section 414 of the
Internal Revenue Code of 1986, as amended from time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan" subject to
Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than a ERISA
Multiemployer Plan) maintained for employees of any Borrower or any
ERISA Affiliate thereof and covered by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued thereunder
(other than a Reportable Event not subject to the provision for 30-day
notice to the PBGC under such regulations) with respect to an ERISA Plan
or an ERISA Multiemployer Plan, or (ii) the withdrawal of any Borrower
or any of its ERISA Affiliates from an ERISA Plan or an ERISA
Multiemployer Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the filing
of a notice of intent to terminate an ERISA Plan or an ERISA
Multiemployer Plan or the treatment of an ERISA Plan 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 Rate" means, for each Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rates per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market
at 11:00 a.m. (London time) two Business Days before the first day of
such Interest Period in the amount of $1,000,000 and for a period equal
to such Interest Period. The Eurodollar Rate for the Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent
from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Sections 3.05(d)
and 4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in respect of
which a Borrower has selected in accordance with Article III hereof, or
this Agreement provides for, interest to be computed on the basis of the
Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender or its
subparticipant, for each Interest Period for each Eurodollar Rate
Advance, means the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so applicable, the
daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under
Regulation D or other regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement, without benefit of or credit for proration, exemptions or
offsets) for such Lender or its subparticipant with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01
hereof.
"Existing Credit Facility" means the credit facility provided to
the Borrowers under the Credit Agreement, dated as of November 21, 1996,
as amended, among NU, CL&P, WMECO, the co-agents party thereto, the
lenders party thereto and Citibank, as administrative agent for the
lenders thereunder.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal to, for each day during such period, the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter dated October 22, 1999
among Citibank, Xxxxxxx Xxxxx Xxxxxx, Inc. and the Borrowers.
"FERC" means the Federal Energy Regulatory Commission.
"Financial Statements" means (A) with respect to CL&P, (i) the
audited consolidated balance sheet of CL&P as at December 31, 1998, (ii)
the unaudited consolidated balance sheet of CL&P as at June 30, 1999,
(iii) the audited consolidated statements of income and cash flows of
CL&P for the Fiscal Year ended December 31, 1998 and (iv) the unaudited
consolidated statements of income and cash flows of CL&P for the 6-
month period ended June 30, 1999, in each case as included in CL&P's
Annual Report on Form 10-K for the Fiscal Year ended December 31, 1998
or Quarterly Report on Form 10-Q for the Fiscal Quarter ended June 30,
1999, and (B), with respect to WMECO, (i) the audited balance sheet of
WMECO as at December 31, 1998, (ii) the unaudited balance sheet of WMECO
as at June 30, 1999, (iii) the audited statements of income and cash
flows of WMECO for the Fiscal Year ended December 31, 1998 and (iv) the
unaudited statements of income and cash flows of WMECO for the 6-month
period ended June 30, 1999, in each case as included in WMECO's Annual
Report on Form 10-K for the Fiscal Year ended December 31, 1998 or
Quarterly Report on Form 10-Q for the Fiscal Quarter ended June 30,
1999.
"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 or any successor thereto or replacement thereof; and with
respect to WMECO, the WMECO Indenture or any successor thereto or
replacement thereof.
"Fiscal Quarter" means a period of three calendar months ending on
the last day of March, June, September or December, as the case may be.
"Fiscal Year" means a period of twelve calendar months ending on
the last day of December.
"Fraction" means, in respect of any Borrower as determined at any
time, a fraction, the numerator of which shall be the Borrower Sublimit
of such Borrower at such time, and the denominator of which shall be the
sum of the Borrower Sublimits of both 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
Telecommunications and Energy), 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 Subsidiary's business as conducted or the nature of the property
owned or leased by it.
"Hazardous Substance" means any waste, substance or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau or instrumentality of the United
States of America or of the State or locality in which the same is
located having or exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that term in
Section 10.04(b) hereof.
"Information Memorandum" means the confidential Information
Memorandum, dated October 1999, regarding the credit facility to be
provided to the Borrowers hereunder, as distributed to the
Administrative Agent and the Lenders, including, without limitation, all
schedules and attachments hereto.
"Interest Period" has the meaning assigned to that term in
Section 3.05(a) hereof.
"Lender Assignment" means an assignment and acceptance entered into
by a Lender and an assignee, and accepted by the Administrative Agent,
in substantially the form of Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on the signature
pages hereof, and each assignee that shall become a party hereto
pursuant to Section 10.07.
"Lien" means, with respect to any asset or property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset or property. For the purposes of this Agreement,
a Person or any of its Subsidiaries shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Loan Documents" means this Agreement, the Notes, the Collateral
Agency Agreement and the Mortgages.
"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 Xxxxx'x Investors Service, Inc., or any successor
thereto.
"Mortgages" means the open-end second mortgages on each Borrower's
interest in the Millstone Unit No. 2 and Millstone Unit No. 3 nuclear
units, in the forms attached hereto as Exhibits 1.01C and 1.01D.
"Note" means a Contract Note, as may be amended, supplemented or
otherwise modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned to that
term in Section 3.01 hereof.
"NU" means Northeast Utilities, an unincorporated voluntary
business association organized under the laws of the Commonwealth of
Massachusetts.
"NU System Money Pool" means the money pool described in the
application/declaration, as amended, of NU and certain of its
Subsidiaries filed with the Securities and Exchange Commission in File
No. 70-8875, as amended from time to time.
"NUSCO" means Northeast Utilities Service Company, a Connecticut
corporation.
"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.
"Recipient" has the meaning assigned to that term in Section 10.08
hereof.
"Reference Banks" means Citibank, Fleet National Bank and The
Toronto-Dominion Bank, and any other bank or financial institution
designated by the Borrowers and the Administrative Agent with the
approval of the Majority Lenders to act as a Reference Bank hereunder.
"Regulatory Asset" means, with respect to CL&P or WMECO, an
intangible asset established by statute, regulation or regulatory order
or similar action of a utility regulatory agency having jurisdiction
over CL&P or WMECO, as the case may be, and included in the rate base of
CL&P or WMECO, as the case may be, with the intention that such asset be
amortized by rates over time.
"S&P" means Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., 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.
"Securitization Date" means, with respect to each Borrower, the
date on which such Borrower receives the proceeds of stranded cost
recovery bonds issued by such Borrower.
"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.
"Termination Date" means the earliest to occur of (i) November 17,
2000, or such later date to which the Termination Date shall be extended
in accordance with Section 2.04, (ii) the date of termination or
reduction in whole of the Commitments pursuant to Section 2.03 or 8.02
or (iii) the date of acceleration of all amounts payable hereunder 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 (excluding, in the case of WMECO, short-term debt borrowed
in December, 1999 pending the application of such borrowings on the
first business day in January, 2000 to pay $60,000,000 to the holders of
the First Mortgage Bonds of WMECO upon the maturity thereof), (ii) the
aggregate of the par value of, or stated capital represented by, the
outstanding shares of all classes of common and preferred shares of such
Borrower and its Subsidiaries and (iii) the consolidated surplus of such
Borrower and its Subsidiaries, paid-in, earned and other capital, if
any, in each case as determined on a consolidated basis in accordance
with generally accepted accounting principles consistent with those
applied in the preparation of such Borrower's Financial Statements.
"Total Commitment" means $500,000,000, or such lesser amount from
time to time as shall equal the sum of the Commitments.
"Type" has the meaning assigned to such term (i) in the definition
of "Contract Advance" when used in such context and (ii) in the
definition of "Contract Borrowing" when used in such context.
"Unmatured Default" means the occurrence and continuance of an
event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default.
"WMECO" has the meaning assigned to that term in the caption to
this Agreement.
"WMECO Indenture" has the meaning assigned to that term in
Section 7.02(a)(iii) hereof.
"Year 2000 Issue" means the failure of computer software, hardware
and firmware systems and equipment containing computer chips to properly
receive, transmit, process, manipulate, store, retrieve, re-transmit or
in any other way utilize data and information due to the occurrence of
the year 2000 or the inclusion of dates on or after January 1, 2000.
SECTION 1.02. Computation of Time Periods. In the computation of
periods of time under this Agreement, any period of a specified number of
days or months shall be computed by including the first day or month
occurring during such period and excluding the last such day or month. In
the case of a period of time "from" a specified date "to" or "until" a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms; Financial Statements. All accounting
terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles applied on a basis consistent with
the application employed in the preparation of the Financial Statements. All
references contained herein to any Borrower's Annual Report on Form 10-K in
respect of a Fiscal Year or Quarterly Report on Form 10-Q in respect of a
Fiscal Quarter shall be deemed to include any exhibits and schedules thereto,
including without limitation in the case of any Annual Report on Form 10-K,
any "Annual Report" of such Borrower referred to therein.
SECTION 1.04. Computations of Outstandings. Whenever reference is made
in this Agreement to the principal amount of Advances outstanding under this
Agreement to one or both Borrowers on any date, such reference shall refer to
the aggregate principal amount of all such Advances to such Borrower(s)
outstanding on such date after giving effect to (i) all Advances to be made
to such Borrower(s) on such date and the application of the proceeds thereof
and (ii) any repayment or prepayment of Advances on such date by such
Borrower(s).
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments. (a) Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to the
Borrowers from time to time on any Business Day during the period from the
Closing Date until the Termination Date, in an aggregate amount not to exceed
on any day such Lender's Available Commitment. Within the limits of such
Lender's Available Commitment and such Borrower's Borrower Sublimit, each
Borrower may request Advances hereunder, repay or prepay Advances and utilize
the resulting increase in the Available Commitments for further Advances in
accordance with the terms hereof.
(b) In no event shall any Borrower be entitled to request or receive
any Advance under subsection (a) that would cause the aggregate principal
amount advanced pursuant thereto to exceed the Available Commitments. In no
event shall any Borrower be entitled to request or receive any Advance that
would cause the total principal amount of all Advances outstanding hereunder
to exceed the Total Commitment, or that would cause the aggregate principal
amount of all Advances outstanding to or requested by such Borrower to exceed
such Borrower's Borrower Sublimit. In no event shall any Borrower be
entitled to request or receive any Advance that, when aggregated with all
other Advances outstanding to or requested by such Borrower and all other
short-term debt of such Borrower, would exceed such Borrower's SEC Borrowing
Limit as then in effect.
SECTION 2.02. Fees. (a) Each Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (the
"Commitment Fee") on the amount of such Lender's Available Commitment
multiplied by such Borrower's Fraction, at the Applicable Commitment Fee Rate
for such Borrower, from the date of this Agreement, in the case of each Bank,
and from the effective date specified in the Lender Assignment pursuant to
which it became a Lender, in the case of each other Lender, until the
Termination Date. The Commitment Fee payable by each Borrower shall be
calculated and accrued daily and shall be payable quarterly in arrears on the
last day of each December, March, June and September, commencing the first
such date following the Closing Date, with final payment payable on the
Termination Date.
(b) The Borrowers further agree to pay the fees specified in the Fee
Letter, together with such other fees as may be separately agreed to by the
Borrowers and the Administrative Agent or its Affiliates.
SECTION 2.03. Reduction of the Commitments; Borrower Sublimits.
(a) Each Borrower may, at any time, severally and without the consent of the
other Borrower, by providing at least three Business Days' prior written
notice to the Administrative Agent, terminate in whole or reduce in part its
Borrower Sublimit; provided, that any such partial reduction shall be in a
minimum aggregate amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof. Each such notice of termination or reduction shall be
irrevocable. In no event shall either Borrower be entitled to increase its
Borrower Sublimit without the consent of all of the Lenders.
(b) The Borrower Sublimit of CL&P will be permanently reduced by
$100,000,000 to $200,000,000 on the fifth Business Day following CL&P's
Securitization Date. The Borrower Sublimit of WMECO will be permanently
reduced by $100,000,000 to $100,000,000 on the fifth Business Day following
WMECO's Securitization Date.
(c) Each reduction in a Borrower's Borrower Sublimit pursuant to this
Section 2.03 shall result in a like reduction in the Commitments on a pro
rata basis with respect to each Lender.
SECTION 2.04. Extension of the Termination Date. Unless the
Termination Date shall have previously occurred in accordance with its terms,
at least 45 days but not more than 60 days before the Termination Date, as
then in effect, the Borrowers may jointly, by notice to the Administrative
Agent (any such notice being irrevocable), request the Administrative Agent
and the Lenders to extend the Termination Date for a period of 364 days. If
the Borrowers shall make such request, the Administrative Agent shall
promptly inform the Lenders thereof and, no later than 30 days prior to the
Termination Date as then in effect, the Administrative Agent shall notify the
Borrowers in writing if the Lenders consent to such request and the
conditions of such consent (including conditions relating to legal
documentation and evidence of the obtaining of all necessary governmental
approvals). The granting of any such consent shall be in the sole and
absolute discretion of each Lender, and, if any Lender shall not so notify
the Administrative Agent or, if the Administrative Agent shall not so notify
the Borrowers, such lack of notification shall be deemed to be a
determination not to consent to such request. No such extension shall occur
unless all of the Lenders consent in writing thereto (or if less than all the
Lenders consent thereto, unless one or more other existing Lenders, or one or
more other banks and financial institutions acceptable to the Borrowers and
the Administrative Agent, agree to assume all of the Commitments of the non-
consenting Lenders).
ARTICLE III
CONTRACT ADVANCES
SECTION 3.01. Contract Advances. More than one Contract Borrowing
may be made on the same Business Day. Each Contract Borrowing shall consist
of Contract Advances of the same Type and Interest Period made to the same
Borrower on the same Business Day by the Lenders ratably according to their
respective Commitments. Each Contract Borrowing shall be made on notice in
substantially the form of Exhibit 3.01 hereto (a "Notice of Contract
Borrowing"), delivered by the Borrower requesting such Contract Borrowing to
the Administrative Agent, by hand or facsimile, not later than 11:00 a.m.
(New York City time) (i) in the case of Eurodollar Rate Advances, on the
third Business Day prior to the date of the proposed Borrowing and (ii) in
the case of Base Rate Advances, on the day of the proposed Borrowing. Upon
receipt of a Notice of Contract Borrowing, the Administrative Agent shall
notify the Lenders thereof promptly on the day so received. Each Notice of
Contract Borrowing shall specify therein: (i) the requested (A) date of such
Borrowing, (B) principal amount and Type of Advances comprising such
Borrowing and (C) initial Interest Period for such Advances; (ii) the
identity of the Borrower requesting such proposed Borrowing and (iii) the
Borrower Sublimit applicable to such Borrower on the proposed date of such
proposed Borrowing and the aggregate amount of Advances to be outstanding to
such Borrower on such date after giving effect to such proposed Borrowing.
Each proposed Borrowing shall be subject to the satisfaction of the
conditions precedent thereto as set forth in Article V hereof.
SECTION 3.02. Terms Relating to the Making of Contract Advances.
(a) Notwithstanding anything in Section 3.01 above to the contrary:
(i) at no time shall more than twelve different Contract
Borrowings be outstanding hereunder;
(ii) each Contract Borrowing hereunder which is to be comprised of
Base Rate Advances shall be in an aggregate principal amount of not less
than $5,000,000 or an integral multiple of $1,000,000 in excess thereof,
or such lesser amount as shall be equal to the total amount of the
Available Commitments on such date, after giving effect to all other
Contract Borrowings to be made to, or repaid or prepaid by, the relevant
Borrower on such date; and
(iii) each Contract Borrowing hereunder which is to be
comprised of Eurodollar Rate Advances shall be in an aggregate principal
amount of not less than $5,000,000 or an increment of $1,000,000 in
excess thereof.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting such proposed Borrowing.
SECTION 3.03. Making of Advances. (a) Each Lender shall, before
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.
After the Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article V, the Administrative Agent
will make such funds available to the Borrower that made the request for such
Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the time of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 3.03, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower that made the request for such Borrowing a corresponding amount
on such date. If and to the extent that any such Lender (a "non-performing
Lender") shall not have so made such ratable portion available to the
Administrative Agent, the non-performing Lender and such Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate.
Nothing herein shall in any way limit, waive or otherwise reduce any claims
that any party hereto may have against any non-performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 3.04. Repayment of Advances. Each Borrower shall repay
the principal amount of each Advance made to it hereunder on the Termination
Date.
SECTION 3.05. Interest. (a) Interest Periods. (i) The period
commencing on the date of each Advance and ending on the last day of the
period selected by a Borrower with respect to such Advance pursuant to the
provisions of this Section 3.05 is referred to herein as an "Interest
Period". The duration of each Interest Period shall be (i) in the case of
any Eurodollar Rate Advance, one, two or three months and (ii) in the case of
any Base Rate Advance, the period of time beginning on the date of the making
of, or the conversion of an outstanding Advance into, such Advance and ending
on the last day of March, June, September or December next following the date
on which such Advance was made; provided, however, that no Interest Period
may be selected by any Borrower if such Interest Period would end after the
Termination Date.
(ii) Subject to the terms and conditions of this Agreement, the
initial Interest Period for any Advance made to either Borrower shall be
determined by such Borrower as set forth in its Notice of Contract
Borrowing with respect to such Advance. Such Borrower may elect to
continue or convert one or more Advances of any Type and having the same
Interest Period to one or more Advances of the same or any other Type
and having the same or a different Interest Period on the following
terms and subject to the following conditions:
(A) Each continuation or conversion shall be made as to all
Advances comprising a single Borrowing upon written notice given by
such Borrower to the Administrative Agent not later than 11:00 a.m.
(New York City time) on the third Business Day prior to the date of
the proposed continuation or conversion, in the case of a
continuation of or conversion to a Eurodollar Rate Advance, or on
the day of the proposed continuation of or conversion to a Base
Rate Advance. The Administrative Agent shall notify each Lender of
the contents of such notice promptly after receipt thereof. Each
such notice shall specify therein the following information: (1)
the date of such proposed continuation or conversion (which in the
case of Eurodollar Rate Advances shall be the last day of the
Interest Period then applicable to such Advances to be continued or
converted), (2) the Type of, and Interest Period applicable to the
Advances proposed to be continued or converted, (3) the aggregate
principal amount of Advances proposed to be continued or converted,
and (4) the Type of Advances to which such Advances are proposed to
be continued or converted and the Interest Period to be applicable
thereto.
(B) During the continuance of an Unmatured Default, the right
of the Borrowers to continue or convert Advances to Eurodollar Rate
Advances shall be suspended, and all Eurodollar Rate Advances then
outstanding shall be converted to Base Rate Advances on the last
day of the Interest Period then in effect, if, on such day, an
Unmatured Default shall be continuing.
(C) During the continuance of an Event of Default, the right
of the Borrowers to continue or convert Advances to Eurodollar Rate
Advances shall be suspended, and upon the occurrence of an Event of
Default, all Eurodollar Rate Advances then outstanding shall
immediately, without further act by the Borrowers, be converted to
Base Rate Advances.
(D) If no notice of continuation or conversion is received by
the Administrative Agent as provided in paragraph (A), above, with
respect to any outstanding Advances on or before the third Business
Day prior to the last day of the Interest Period then in effect for
such Advances, the Administrative Agent shall treat such absence of
notice as a deemed notice of continuation or conversion providing
for such Advances to be continued as or converted to Base Rate
Advances with an Interest Period of three months commencing on the
last day of such Interest Period.
(b) Interest Rates. Each Borrower shall pay interest on the unpaid
principal amount of each Advance owing by such Borrower from the date of such
Advance until such principal amount shall be paid in full, at the Applicable
Rate for such Advance (except as otherwise provided in this subsection (b)),
payable as follows:
(i) Eurodollar Rate Advances. If such Advance is a Eurodollar
Rate Advance, interest thereon shall be payable on the last day of the
Interest Period applicable thereto and on the Termination Date; provided
that during the continuance of any Event of Default, such Advance shall
bear interest at a rate per annum equal at all times to 2% per annum
above the Applicable Rate for such Advance for such Interest Period, or,
if higher, the Applicable Margin plus 2.0% per annum above the
Applicable Rate in effect from time to time for Base Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate Advance,
interest thereon shall be payable quarterly on the last day of each
March, June, September and December 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 for
such Advance for such Interest Period.
(c) Other Amounts. Any other amounts payable hereunder that are not
paid when due shall (to the fullest extent permitted by law) bear interest,
from the date when due until paid in full, at a rate per annum equal at all
times to 2.0% per annum above the Applicable Rate in effect from time to time
for Base Rate Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent shall give
prompt notice to the Borrowers and the Lenders of the Applicable Rate
determined from time to time by the Administrative Agent for each Contract
Advance for each Borrower. Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining the
Eurodollar Rate for any Interest Period. If any one Reference Bank shall not
furnish such timely information, the Administrative Agent shall determine
such interest rate on the basis of the timely information furnished by the
other two Reference Banks.
SECTION 3.06. Several Obligations. Each Borrower's obligations
hereunder are several and not joint 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 Borrower. 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 the Administrative Agent
or such Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Base Rate (except when
determined on the basis of the Federal Funds Rate) shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be. All computations of interest and other amounts payable pursuant to
Section 4.03 shall be made by the Lender claiming such interest or other
amount on the basis of a year of 360 days. All other computations of
interest, including computations of interest based on the Eurodollar Rate,
the Base Rate (when and if determined on the basis of the Federal Funds
Rate), and all computations of fees and other amounts payable hereunder,
shall be made by the Administrative Agent on the basis of a year of 360 days.
In each such case, such computation shall be made for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or other amounts are payable. Each such
determination by the Administrative Agent or a Lender shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment under any Loan Document shall be stated to be
due, or the last day of an Interest Period hereunder shall be stated to
occur, on a day other than a Business Day, such payment shall be made, and
the last day of such Interest Period shall occur, on the next succeeding
Business Day, and such extension of time shall in such case be included in
the computation of payment of interest and fees hereunder; provided, however,
that if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made, or the last day of an Interest Period
for a Eurodollar Rate Advance to occur, in the next following calendar month,
such payment shall be made on the next preceding Business Day and such
reduction of time shall in such case be included in the computation of
payment of interest hereunder.
(e) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and
to the extent such Borrower shall not have so made such payment in full to
the Administrative Agent, such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02. Prepayments. (a) No Borrower shall have any right to
prepay any Contract Advances except in accordance with subsections (b) and
(c), below.
(b) Any Borrower may, (i) in the case of Eurodollar Rate Advances, upon
at least three Business Day's written notice to the Administrative Agent
(such notice being irrevocable) and (ii) in the case of Base Rate Advances,
upon notice not later than 11:00 a.m. on the date of the proposed prepayment
to the Administrative Agent (such notice being irrevocable), stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given, such Borrower shall, prepay Contract Advances comprising
part of the same Borrowing, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid and any amounts owing in connection therewith pursuant to Section
4.03(d); provided, however, that each partial prepayment shall be in an
aggregate principal amount not less than $5,000,000 or an integral multiple
of $1,000,000 in excess thereof.
(c) If at any time, the aggregate principal amount of Advances
outstanding shall exceed the Total Commitment, the Borrowers shall forthwith
prepay Advances in a principal amount equal to such excess. If at any time,
the aggregate principal amount of Advances outstanding to any Borrower shall
exceed the Borrower Sublimit of such Borrower, such Borrower shall forthwith
prepay Advances in a principal amount equal to such excess. All prepayments
pursuant to this subsection (c) shall be effected from outstanding Contract
Advances comprising part of the same Borrowing or Borrowings and shall be
accompanied by payment of accrued interest to the date of such prepayment on
the principal amount prepaid and any amounts owing in connection therewith
pursuant to Section 4.03(d).
SECTION 4.03. Yield Protection. (a) Change in Circumstances.
Notwithstanding any other provision herein, if after the date hereof, the
adoption of or any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation of payments
to any Lender of the principal of or interest on any Eurodollar Rate Advance
made by such Lender or any fees or other amounts payable under the Loan
Documents (other than changes in respect of taxes imposed on the overall net
income of such Lender or its Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or in which such Applicable
Lending Office is located or by any political subdivision or taxing authority
therein), or (ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against commitments or assets of,
deposits with or for the account of, or credit extended by, such Lender, or
(iii) shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Rate Advances made by such
Lender, and the result of any of the foregoing shall be to increase the cost
to such Lender, of agreeing to make, making or maintaining any Advance or to
reduce the amount of any sum received or receivable by such Lender under any
Loan Document 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 or conversion of Advances hereunder the applicable
conditions precedent set forth in Articles III and V, (ii) any failure by
such Borrower to borrow any, or convert any outstanding Advance into a,
Eurodollar Rate Advance hereunder after a Notice of Contract Borrowing has
been delivered pursuant to Section 3.01 hereof or after delivery of a notice
of conversion pursuant to Section 3.05(a)(ii) hereof, (iii) any payment,
prepayment or conversion of a Eurodollar Rate Advance made to such Borrower
required or permitted by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the Interest Period
applicable thereto, (iv) any default in payment or prepayment of the
principal amount of any Eurodollar Rate Advance made to such Borrower or any
part thereof or interest accrued thereon, as and when due and payable (at the
due date thereof, by irrevocable notice of prepayment or otherwise) or
(v) the occurrence of any Event of Default with respect to such Borrower,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Advance or any part
thereof as a Eurodollar Rate Advance. Such loss, cost or reasonable expense
shall include an amount equal to the excess, if any, as reasonably determined
by such Lender, of (A) its cost of obtaining the funds for the Eurodollar
Rate Advance being paid, prepaid, converted or not borrowed for the period
from the date of such payment, prepayment, conversion or failure to borrow to
the last day of the Interest Period for such Advance (or, in the case of a
failure to borrow, the Interest Period for such Advance which would have
commenced on the date of such failure) over (B) the amount of interest (as
reasonably determined by such Lender) that would be realized by such Lender
in reemploying the funds so paid, prepaid, converted or not borrowed for such
period or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that in the case of any Eurodollar Rate
Advance, each Lender shall have funded each such Advance with a fixed-rate
instrument bearing the rates and maturities designated in the determination
of the Applicable Rate for such Advance.
(e) Notices. A certificate of each Lender setting forth such Lender's
claim for compensation hereunder and the amount necessary to compensate such
Lender or its holding company pursuant to subsections (a) through (d) of this
Section 4.03 shall be submitted to the Borrowers and the Administrative Agent
and shall be conclusive and binding for all purposes, absent manifest error.
The Borrowers or appropriate Borrower shall pay each Lender directly the
amount shown as due on any such certificate within 10 days after its receipt
of the same. The failure of any Lender to provide such notice or to make
demand for payment under this Section 4.03 shall not constitute a waiver of
such Lender's rights hereunder; provided that such Lender shall not be
entitled to demand payment pursuant to subsections (a) through (d) of this
Section 4.03 in respect of any loss, cost, expense, reduction or reserve, if
such demand is made more than one year following the later of such Lender's
incurrence or sufferance thereof or such Lender's actual knowledge of the
event giving rise to such Lender's rights pursuant to such subsections. Each
Lender shall use reasonable efforts to ensure the accuracy and validity of
any claim made by it hereunder, but the foregoing shall not obligate any
Lender to assert any possible invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred
or been imposed.
(f) Change in Legality. Notwithstanding any other provision herein, if
the adoption of or any change in any law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Rate Advance or to
give effect to its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrowers and the
Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not thereafter be
made by such Lender hereunder, whereupon the right of either Borrower to
select Eurodollar Rate Advances for any Borrowing or conversion shall be
forthwith suspended until such Lender shall withdraw such notice as
provided hereinbelow or shall cease to be a Lender hereunder pursuant to
Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances be
converted to Base Rate Advances, in which event all Eurodollar Rate
Advances shall be automatically converted to Base Rate Advances as of
the effective date of such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall promptly
notify the other Lenders. Promptly upon becoming aware that the
circumstances that caused such Lender to deliver such notice no longer exist,
such Lender shall deliver notice thereof to the Borrowers and the
Administrative Agent withdrawing such prior notice (but the failure to do so
shall impose no liability upon such Lender). Promptly upon receipt of such
withdrawing notice from such Lender (or upon such Lender assigning all of its
Commitments, Advances, participation and other rights and obligations under
the Loan Documents in accordance with Section 10.07(g)), the Administrative
Agent shall deliver notice thereof to the Borrowers and the Lenders and such
suspension shall terminate. Prior to any Lender giving notice to the
Borrowers under this subsection (f), such Lender shall use reasonable efforts
to change the jurisdiction of its Applicable Lending Office, if such change
would avoid such unlawfulness and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender. Any notice to the
Borrowers by any Lender shall be effective as to each Eurodollar Rate Advance
on the last day of the Interest Period currently applicable to such
Eurodollar Rate Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be unlawful, such
notice shall be effective on the date of receipt by the Borrowers and the
Administrative Agent.
(g) Market Rate Disruptions. If (i) fewer than two Reference Banks
furnish timely information to the Administrative Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances in connection with any proposed
Borrowing or (ii) if the Majority Lenders shall notify the Administrative
Agent that the Eurodollar Rate will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances, the right of the Borrowers to select or receive
Eurodollar Rate Advances for any Borrowing shall be forthwith suspended until
the Administrative Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist, and until such
notification from the Administrative Agent, each requested Borrowing of
Eurodollar Rate Advances hereunder shall be deemed to be a request for Base
Rate Advances.
(h) Rights of Participants. Any participant in a Lender's
interests hereunder may assert any claim for yield protection under
Section 4.03 that it could have asserted if it were a Lender hereunder. If
such a claim is asserted by any such participant, it shall be entitled to
receive such compensation from the Borrowers as a Lender would receive in
like circumstances; provided, however, that with respect to any such claim,
the Borrowers shall have no greater liability to the Lender and its
participant, in the aggregate, than it would have had to the Lender alone had
no such participation interest been created.
(i) Liabilities of Borrowers. Each Borrower shall be liable for its
pro rata share of each payment to be made by the Borrowers under subsections
(a) and (b) of this Section 4.03, such pro rata share to be determined on the
basis of such Borrower's Fraction; provided, however, that if and to the
extent that any such liabilities are reasonably determined by the Borrowers
(subject to the approval of the Administrative Agent which approval shall not
be unreasonably withheld) to be directly attributable to Advances made to a
specific Borrower or the Notes of such Borrower, only such Borrower shall be
liable for such payments. In the event that one Borrower fails to pay its
portion of the payments to be made by the Borrowers under subsection (a) or
(b) of this Section 4.03, the other Borrower shall be liable for such
payment; provided, however, that if and to the extent that any such payment
is 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.
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 either
Borrower under any Loan Document shall be made in accordance with Section
4.01, free and clear of and without deduction for all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or
any political subdivision thereof and, in the case of each Lender, taxes
imposed on its overall net income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If any Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under any Loan Document to any Lender
or the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.05) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made by such Borrower under any
Loan Document or from the execution, delivery or registration of, or
otherwise with respect to, any Loan Document (hereinafter referred to as
"Other Taxes").
(c) Each Borrower hereby indemnifies each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and any Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.05) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
A Lender's claim for such indemnification shall be set forth in a certificate
of such Lender setting forth in reasonable detail the amount necessary to
indemnify such Lender pursuant to this subsection (c) and shall be submitted
to the Borrowers and the Administrative Agent and shall be conclusive and
binding for all purposes, absent manifest error. The appropriate Borrower
shall pay such Lender directly the amount shown as due on any such
certificate within 30 days after the receipt of same. If any Taxes or Other
Taxes for which a Lender or the Administrative Agent has received payments
from a Borrower hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to such Lender or the
Administrative Agent, such Lender or the Administrative Agent, as the case
may be, shall promptly forward to such Borrower any such refunded amount.
Each Borrower's, the Administrative Agent's and each Lender's obligations
under this Section 4.05 shall survive the payment in full of the Advances.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
making such payment will furnish to the Administrative Agent, at its address
referred to in Section 10.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of the United
States of America or any state thereof shall, on or prior to the date it
becomes a Lender hereunder, deliver to the Borrowers and the Administrative
Agent such certificates, documents or other evidence, as required by the
Internal Revenue Code of 1986, as amended from time to time (the "Code"), or
treasury regulations issued pursuant thereto, including Internal Revenue
Service Form 4224 or Form 1001 and any other certificate or statement of
exemption required by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly completed and
duly executed by such Lender establishing that it is (i) not subject to
withholding under the Code or (ii) totally exempt from United States of
America tax under a provision of an applicable tax treaty. Each Lender shall
promptly notify the Borrowers and the Administrative Agent of any change in
its Applicable Lending Office and shall deliver to the Borrowers and the
Administrative Agent together with such notice such certificates, documents
or other evidence referred to in the immediately preceding sentence. Each
Lender will use good faith efforts to apprise the Borrowers and the
Administrative Agent as promptly as practicable of any impending change in
its tax status that would give rise to any obligation by any Borrower to pay
any additional amounts pursuant to this Section 4.05. Unless the Borrowers
and the Administrative Agent have received forms or other documents
satisfactory to them indicating that payments under the Loan Documents are
not subject to United States of America withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Borrowers or the
Administrative Agent shall withhold taxes from such payments at the
applicable statutory rate in the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the United States of
America. Each Lender represents and warrants that each such form supplied by
it to the Administrative Agent and the Borrowers pursuant to this
Section 4.05, and not superseded by another form supplied by it, is or will
be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 4.05 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrowers or to change the jurisdiction of its Applicable Lending Office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would
not, in the sole determination of such Lender, be otherwise disadvantageous
to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The obligations
of the Lenders to make Advances hereunder shall not become effective until
the date (the "Closing Date") on which each of the following conditions is
satisfied:
(a) The Administrative Agent shall have received on or before the
Closing Date the following, each dated the Closing Date, in form and
substance satisfactory to the Administrative Agent and in sufficient copies
for each Lender (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 Borrower's Fraction of such Lender's
Commitment.
(iii) Counterparts of the Mortgages, duly executed by the
Collateral Agent and each Borrower party thereto.
(iv) Counterparts of the Collateral Agency Agreement, duly executed
by the Collateral Agent, the Borrowers and each of the Lenders.
(v) A certificate of the Secretary or Assistant Secretary (or
analogous officer or representative) of each Borrower certifying:
(A) the names and true signatures of the officers of such
Borrower authorized to sign the Loan Documents to be executed and
delivered by such Borrower;
(B) that attached thereto are true and correct copies of:
(1) the Articles of Incorporation and By-laws of such Borrower,
together with all amendments thereto, as in effect on such date;
(2) the resolutions of such Borrower's Board of Directors approving
the execution, delivery and performance by such Borrower of the
Loan Documents to be executed and delivered by such Borrower;
(3) all documents evidencing other necessary corporate or other
similar action, if any, with respect to the execution, delivery and
performance by such Borrower of the Loan Documents to be executed
and delivered by such Borrower; and (4) true and correct copies of
all Governmental Approvals referred to in clauses (i) and (ii) of
the definition of "Governmental Approval" required to be obtained
by such Borrower in connection with the execution, delivery and
performance by such Borrower of the Loan Documents to be executed
and delivered by such Borrower (including the required orders of
the Securities and Exchange Commission and Connecticut Department
of Public Utility Control); and
(C) that the resolutions referred to in the foregoing clause
(B)(2) have not been modified, revoked or rescinded and are in full
force and effect on such date.
(vi) A certificate signed by the Treasurer or Assistant Treasurer
of each Borrower, certifying as to:
(A) the SEC Borrowing Limit of such Borrower as in effect on
the Closing Date;
(B) the delivery to each of the Lenders, prior to the Closing
Date, of true, correct and complete copies (other than exhibits
thereto) of all of the Disclosure Documents; and
(C) the absence of any material adverse change in the
financial condition, operations, properties or prospects of such
Borrower since June 30, 1999, except as disclosed in the Disclosure
Documents.
(vii) A certificate of a duly authorized officer of each
Borrower stating that (i) the representations and warranties of such
Borrower contained in Section 6.01 are correct, in all material
respects, on and as of the Closing Date before and after giving effect
to any Advances to be made on such date and the application of the
proceeds thereof, and (ii) no event has occurred and is continuing with
respect to such Borrower which constitutes an Event of Default or
Unmatured Default in respect of such Borrower, or would result from such
initial Advances or the application of the proceeds thereof.
(viii) Such financial, business and other information regarding
each Borrower and its Subsidiaries, as any Lender shall have reasonably
requested.
(ix) Favorable opinions of:
(A) Day, Xxxxx & Xxxxxx, counsel to the Borrowers, in
substantially the form of Exhibit 5.01A hereto and as to such other
matters as any Lender may reasonably request;
(B) Xxxxxxx X. Xxxxxx, Assistant General Counsel of NUSCO, in
substantially the form of Exhibit 5.01B hereto; and as to such
other matters as any Lender 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 any Lender may reasonably
request.
(x) Irrevocable notice to the administrative agent under the
Existing Credit Facility notifying such agent of the termination of the
"Commitments" of the lenders thereunder, effective on or before the
Closing Date.
(b) The "Commitments" under the Existing Credit Facility shall have
been terminated and all amounts outstanding thereunder shall have been (or
will have been, upon the first Advance and the application of the proceeds
thereof on the Closing Date) paid in full.
(c) All fees and other amounts payable pursuant to Section 2.02 hereof
or pursuant to the Fee Letter shall have been paid (to the extent then due
and payable).
(d) The Administrative Agent shall have received such other approvals,
opinions and documents as the Majority Lenders, through the Administrative
Agent, shall have reasonably requested as to the legality, validity, binding
effect or enforceability of this Agreement and the Notes or the financial
condition, operations, properties or prospects of each Borrower.
SECTION 5.02. Conditions Precedent to All Contract Advances The
obligation of any Lender to make any Contract Advance to either Borrower,
including the initial Contract Advance to such Borrower, shall be subject to
the conditions precedent that, on the date of such Contract Advance and after
giving effect thereto:
(a) the following statements shall be true (and each of the giving of
the applicable Notice of Contract Borrowing with respect to such Advance and
the acceptance of the proceeds of such Advance without prior correction by or
on behalf of such Borrower shall constitute a representation and warranty by
such Borrower that on the date of such Advance such statements are true):
(i) the representations and warranties of such Borrower contained
in Section 6.01 of this Agreement are correct, in all material respects,
on and as of the date of such Advance, before and after giving effect to
such Advance and to the application of the proceeds therefrom, as though
made on and as of such date;
(ii) no Event of Default or Unmatured Default with respect to such
Borrower has occurred and is continuing on or as of the date of such
Advance or would result from such Advance or from the application of the
proceeds thereof;
(iii) the making of such Advance, when aggregated with all
other Advances outstanding to or requested by such Borrower would not
cause such Borrower's Borrower Sublimit to be exceeded; and
(iv) the making of such Advance, when aggregated with all other
Advances outstanding to or requested by such Borrower and all other
outstanding short-term debt of such Borrower would not cause such
Borrower's SEC Borrowing Limit then in effect to be exceeded;
(b) such Borrower shall have furnished to the Administrative Agent such
other approvals, opinions or documents as any Lender may reasonably request
through the Administrative Agent as to the legality, validity, binding effect
or enforceability of any Loan Document.
SECTION 5.03. Reliance on Certificates. The Lenders and the
Administrative Agent shall be entitled to rely conclusively upon the
certificates delivered from time to time by officers of each Borrower as to
the names, incumbency, authority and signatures of the respective persons
named therein until such time as the Administrative Agent may receive a
replacement certificate, in form acceptable to the Administrative Agent, from
an officer of such Borrower identified to the Administrative Agent as having
authority to deliver such certificate, setting forth the names and true
signatures of the officers and other representatives of such Borrower
thereafter authorized to act on behalf of such Borrower and, in all cases,
the Lenders and the Administrative Agent may rely on the information set
forth in any such certificate.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants with respect to itself as follows:
(a) Such Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has the requisite corporate power and authority to own its
property and assets and to carry on its business as now conducted and is
qualified to do business in every jurisdiction where, because of the
nature of its business or property, such qualification is required,
except where the failure so to qualify would not have a material adverse
effect on the financial condition, properties, prospects or operations
of such Borrower. Such Borrower has the corporate power to execute,
deliver and perform its obligations under the Loan Documents, to borrow
hereunder and to execute and deliver its respective Notes.
(b) The execution, delivery and performance of the Loan Documents
by such Borrower are within such Borrower's corporate powers, have been
duly authorized by all necessary corporate or other similar action, and
do not and will not contravene (i) such Borrower's, charter or by-laws,
as the case may be, or any law or legal restriction or (ii) any
contractual restriction binding on or affecting such Borrower or its
properties.
(c) Except as disclosed in such Borrower's Disclosure Documents,
such Borrower is not in violation of any law or in default with respect
to any judgment, writ, injunction, decree, rule or regulation (including
any of the foregoing relating to environmental laws and regulations) of
any court or governmental agency or instrumentality where such violation
or default would reasonably be expected to have a material adverse
effect on the financial condition, properties, prospects or operations
of such Borrower.
(d) There has been no material adverse development with respect to
(i) such Borrower's proceedings to divest its generating assets, or (ii)
any orders, plans or authorizations for recovery of its stranded assets,
where any such development results, or would reasonably be expected to
result, in a material adverse effect on the financial condition,
properties, prospects or operations of such Borrower, other than as
described in the Disclosure Documents.
(e) All Governmental Approvals referred to in clauses (i) and (ii)
of 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 has 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 and (C) those which such Borrower is diligently attempting
in good faith to obtain, renew or extend, or the requirement for which
such Borrower is contesting in good faith by appropriate proceedings or
by other appropriate means, in each case described in the foregoing
clause (C), except as is disclosed in such Borrower's Disclosure
Documents, such attempt or contest, and any delay resulting therefrom,
is not reasonably expected to have a material adverse effect on the
financial condition, properties, prospects or operations of such
Borrower or to magnify to any significant degree any such material
adverse effect that would reasonably be expected to result from the
absence of such Governmental Approval.
(f) The Loan Documents to which such Borrower is a party are
legal, valid and binding obligations of such Borrower enforceable
against such Borrower in accordance with their respective terms; subject
to the qualification, however, that the enforcement of the rights and
remedies herein and therein is subject to bankruptcy and other similar
laws of general application affecting rights and remedies of creditors
and the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(g) The Financial Statements of such Borrower, copies of which
have been provided to the Administrative Agent and each of the Lenders,
fairly present in all material respects the financial condition and
results of operations of such Borrower (in the case of CL&P, on a
consolidated basis) at and for the period ended on the dates thereof,
and have been prepared in accordance with generally accepted accounting
principles consistently applied. Since June 30, 1999, 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.
(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, before any court, governmental agency or arbitrator (i)
which affects or purports to affect the legality, validity or
enforceability of any Loan Document or (ii) as to which there is a
reasonable possibility of an adverse determination and which, if
adversely determined, would materially adversely affect the financial
condition, properties, prospects or 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 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. 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 has good and marketable title (or, in the case
of personal property, valid title) or valid leasehold interests in its
assets, except for (i) minor defects in title that do not materially
interfere with the ability of such Borrower to conduct its business as
now conducted and (ii) other defects that, either individually or in the
aggregate, do not materially adversely affect the financial condition,
properties, prospects or operations of such Borrower. All such assets
and properties are free and clear of any Lien, other than Liens
permitted under Section 7.02(a) hereof.
(k) All outstanding shares of capital stock having ordinary voting
power for the election of directors of such Borrower have been validly
issued, are fully paid and nonassessable and are owned beneficially by
NU, free and clear of any Lien. NU is a "holding company" (as defined
in the Public Utility Holding Company Act of 1935, as amended).
(l) Such Borrower has filed all tax returns (Federal, state and
local) required to be filed and paid taxes shown thereon to be due,
including interest and penalties, or, to the extent such Borrower is
contesting in good faith an assertion of liability based on such
returns, has provided adequate reserves in accordance with generally
accepted accounting principles for payment thereof.
(m) No exhibit, schedule, report or other written information
provided by or on behalf of such Borrower or its agents to the
Administrative Agent or the Lenders in connection with the negotiation,
execution and closing of the Loan Documents (including, without
limitation, the Financial Statements and the Information Memorandum (but
excluding the projections contained in the Information Memorandum))
knowingly contained when made any material misstatement of fact or
knowingly omitted to state any material fact necessary to make the
statements contained therein not misleading in light of the
circumstances under which they were made. Except as has been disclosed
to the Administrative Agent and each Lender, the projections delivered
concurrently with the Information Memorandum were prepared in good faith
on the basis of assumptions reasonable as of the date of the Information
Memorandum, it being understood that such projections do not constitute
a warranty or binding assurance of future performance. Except as has
been disclosed to the Administrative Agent and each Lender, nothing has
come to the attention of the responsible officers of such Borrower that
would indicate that any of such assumptions, to the extent material to
such projections, has ceased to be reasonable in light of subsequent
developments or events.
(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, and (ii) to provide
liquidity to the NU System Money Pool. No proceeds of any Advance will
be used in violation of, or in any manner that would result in a
violation by any party hereto of, Regulation T, U or X promulgated by
the Board of Governors of the Federal Reserve System or any successor
regulations. Such Borrower (A) is not an "investment company" within
the meaning ascribed to that term in the Investment Company Act of 1940
and (B) is not engaged in the business of extending credit for the
purpose of buying or carrying margin stock.
(o) Such Borrower has no Subsidiaries, other than those listed on
Schedule III hereto, each of which is either inactive or a special
purpose entity used solely in connection with the financing activities
of such Borrower, and none of which, either individually or collectively
with all other Subsidiaries of such Borrower, represents 10% or more of
such Borrower's consolidated assets or 10% or more of such Borrower's
consolidated net income (or loss) on any date or for any relevant period
of determination.
(p) Such Borrower has obtained the insurance specified in Section
7.01(c) hereof and the same is in full force and effect.
(q) Such Borrower has substantially completed reprogramming and/or
remediation required as a result of the potential Year 2000 Issue to
permit the proper functioning in all material respects of its computer
software, hardware and firmware systems and equipment containing
computer chips and the proper processing in all material respects of
data, and the testing of such reprogramming or remediation (as the case
may be). Such Borrower has completed review of the reasonably
foreseeable consequences of the potential Year 2000 Issue to such
Borrower (including, without limitation, reprogramming errors and the
failure of systems or equipment supplied by others) and such
consequences are not reasonably expected to result in an Event of
Default, an Unmatured Default or a material adverse effect on the
financial condition, properties, prospects or operations of such
Borrower.
(r) Each of the Mortgages creates a valid and enforceable mortgage
on the interest of the Borrower party thereto in the "Mortgaged
Premises" described therein in favor of the Collateral Agent for the
benefit of the Lenders to secure the obligations of such Borrower to the
Lenders under the Loan Documents, and upon the recording or filing of
such Mortgage in the Office of the Town Clerk of Waterford, Connecticut,
the Collateral Agent shall have a perfected mortgage in the "Mortgaged
Premises" described therein, subject to no other Liens except as
described in such Mortgage and Liens permitted under Section 7.02(a)
hereof.
(s) The "Millstone 2 Mortgaged Premises" (as defined in each of
the Mortgages) includes buildings and fixtures comprising that certain
electric generating unit commonly known as "Millstone Unit No. 2", and
the "Millstone 3 Mortgaged Premises" (as defined in each of the
Mortgages) includes buildings and fixtures comprising that certain
electric generating unit commonly known as "Millstone Unit No. 3".
ARTICLE VII
COVENANTS
SECTION 7.01. Affirmative Covenants of the Borrowers. 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 the 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, all taxes, assessments and governmental
charges, royalties or levies imposed upon it or upon its property except
to the extent such Borrower is contesting the same in good faith by
appropriate proceedings and has set aside adequate reserves in
accordance with generally accepted accounting principles for the payment
thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-insurance)
covering such Borrower and its properties, in effect at all times in
such amounts and covering such risks as may be required by law and, in
addition, as is usually carried by companies engaged in similar
businesses and owning similar properties.
(d) Preservation of Existence, Etc.; Disaggregation. Except as
permitted by Section 7.02(b) hereof, preserve and maintain its
existence, corporate or otherwise, material rights (statutory and
otherwise) and franchises except where the failure to maintain and
preserve such rights and franchises would not materially adversely
affect the financial condition, properties, prospects or operations of
such Borrower.
(i) In furtherance of the foregoing, and notwithstanding
Section 7.02(b), each Borrower agrees that it will not, except in
accordance with one or more restructuring plans approved by the
appropriate regulatory authorities, sell, transfer or otherwise
dispose of (by lease or otherwise, and whether in one or a series
of related transactions) any portion of its generation,
transmission or distribution assets in excess of 10% of the net
utility plant assets of such Borrower, in each case as determined
on a cumulative basis from the date of this Agreement through the
Termination Date by reference to such entity's published balance
sheets.
(e) Compliance with Laws, Etc. Comply in all material respects
with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, including, without limitation, any
such laws, rules, regulations and orders issued by the Securities and
Exchange Commission or relating to zoning, environmental protection, use
and disposal of Hazardous Substances, land use, construction and
building restrictions, ERISA and employee safety and health matters
relating to business operations, except to the extent (i) that such
Borrower is contesting the same in good faith by appropriate proceedings
or (ii) that any such non-compliance, and the enforcement or correction
thereof, would not materially adversely affect the financial condition,
properties, prospects or operations of such Borrower.
(f) Inspection Rights. At any time and from time to time upon
reasonable notice, permit the Administrative Agent and its agents and
representatives to examine and make copies of and abstracts from the
records and books of account of, and the properties of, such Borrower
and to discuss the affairs, finances and accounts of such Borrower (i)
with such Borrower and its officers and directors and (ii) with the
consent of such Borrower (which consent shall not be unreasonably
withheld or delayed), with the accountants of such Borrower.
(g) Keeping of Books. Keep proper records and books of account,
in which full and correct entries shall be made of all financial
transactions of such Borrower and the assets and business of such
Borrower, in accordance with generally accepted accounting practices
consistently applied.
(h) Conduct of Business. Except as permitted by Section 7.02(b)
but subject in all respects to Section 7.01(d)(ii), conduct its primary
business in substantially the same manner and in substantially the same
fields as such business is conducted on the Closing Date.
(i) Maintenance of Properties, Etc. (i) As to properties of the
type described in Section 6.01(j) hereof, maintain title of the quality
described therein and 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 businesses in good
working order and condition, ordinary wear and tear excepted, except (A)
as permitted by Section 7.02(b), but subject nevertheless to Section
7.01(d)(ii), (B) as disclosed in the Disclosure Documents or otherwise
in writing to the Administrative Agent and the Lenders on or prior to
the date hereof, and (C) to the extent such non-conformity would not
materially adversely affect the financial condition, properties,
prospects or operations of such Borrower; provided, however, that such
Borrower will not be prevented from discontinuing the operation and
maintenance of any such properties if such discontinuance is, in the
judgment of such Borrower, desirable in the operation or maintenance of
its business and would not materially adversely affect the financial
condition, properties, prospects or operations of such Borrower.
(j) Governmental Approvals. Duly obtain, on or prior to such date
as the same may become legally required, and thereafter maintain in
effect at all times, all Governmental Approvals on its part to be
obtained, except in the case of those Governmental Approvals referred to
in clause (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 and
(ii) those which such Borrower is diligently attempting in good faith to
obtain, renew or extend, or the requirement for which such Borrower is
contesting in good faith by appropriate proceedings or by other
appropriate means; provided, however, that the exception afforded by
clause (ii), above, shall be available only if and for so long as such
attempt or contest, and any delay resulting therefrom, does not have a
material adverse effect on the financial condition, properties,
prospects or operations of such Borrower and does not magnify to any
significant degree any such material adverse effect that would
reasonably be expected to result from the absence of such Governmental
Approval.
(k) Further Assurances. Promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or that any Lender through the Administrative Agent may
reasonably request in order to fully give effect to the interests and
properties purported to be covered by the Loan Documents.
SECTION 7.02. Negative Covenants of the Borrowers. On and after
the Closing Date, and so long as any 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. Create incur, assume or suffer to exist any Lien upon
any of its properties or assets, whether now owned or hereafter acquired,
except:
(i) the Liens of the Mortgages and any Liens existing on the
Closing Date;
(ii) 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");
(iii) 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");
(iv) Liens on such Borrower's 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;
(v) "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;
(vi) any purchase money Lien or construction mortgage on assets
hereafter acquired or constructed by such Borrower and any Lien on any
assets existing at the time of acquisition thereof by such Borrower or
created within 180 days from the date of completion of such acquisition
or construction; provided that such Lien shall at all times be confined
solely to the assets so acquired or constructed and any additions
thereto;
(vii) any existing Liens on assets now owned by such Borrower and
Liens existing on assets of a corporation or other going concern when it
is merged into or with such Borrower or when substantially all of its
assets are acquired by such Borrower; provided that such Liens shall at
all times be confined solely to such assets, or if such assets
constitute a utility system, additions to or substitutions for such
assets;
(viii) Liens resulting from legal proceedings being contested in
good faith by appropriate legal or administrative proceedings by such
Borrower, and as to which such Borrower, to the extent required by
generally accepted accounting principles applied on a consistent basis,
shall have set aside on its books adequate reserves;
(ix) Liens created in favor of the other contracting party in
connection with advance or progress payments;
(x) 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;
(xi) 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;
(xii) with respect to pollution control bond financings, Liens on
funds, accounts and other similar intangibles of such Borrower created
or arising under the relevant indenture, pledges of the related loan
agreement with the relevant issuing authority and pledges of such
Borrower's interest, if any, in any bonds issued pursuant to such
financings to a letter of credit bank or bond issuer or similar credit
enhancer;
(xiii) Liens granted on accounts receivable and Regulatory Assets in
connection with financing transactions, whether denominated as sales or
borrowings;
(xiv) any other Liens incurred in the ordinary course of
business otherwise than to secure Debt; and
(xv) any extension, renewal or replacement of Liens permitted
by clauses (i), (iv), (v) through (vii) and (ix) through (xiii);
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, Acquisitions, Sales of Assets, Etc. Merge with or into or
consolidate with or into, any Person, or purchase or otherwise acquire
(whether directly or indirectly) all or substantially all of the assets or
stock of any class of, or any partnership or joint venture interest in, any
other Person, or sell, transfer, convey, lease or otherwise dispose of all or
any substantial part of its assets; 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 purchase or acquisition of a joint venture interest in a
mutual insurance company providing nuclear liability or nuclear property
or replacement power insurance;
(B) 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;
(C) any sale or purchase of generating assets or Regulatory Assets
on an arms-length basis, subject to approval by the appropriate
regulatory authorities; and
(D) the sale of such Borrower's assets in the ordinary course of
business on customary terms and conditions.
For purposes of this subsection (b), any sale of assets by such Borrower (in
one or a series of transactions) will be deemed to be a "substantial part"
of its assets if (i) the book value of such assets exceeds 7.5% of the total
book value of the assets (net of Regulatory Assets) of such Borrower, as
reflected in the most recent financial statements of the Borrower delivered
to the Administrative Agent pursuant to Section 7.04 hereof (or, if no such
financial statements have been delivered to the Administrative Agent as of
the relevant date of determination, the Financial Statements of such
Borrower), or (ii) the gross revenue associated with such assets accounts for
more than 7.5% of the total gross revenue of such Borrower for the four
proceeding fiscal quarters, as reflected in the most recent financial
statements of the Borrower delivered to the Administrative Agent pursuant to
Section 7.04 hereof (or, if no such financial statements have been delivered
to the Administrative Agent as of the relevant date of determination, the
Financial Statements of such Borrower).
(c) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate thereof to terminate, any ERISA Plan so as to result in any
liability of such Borrower to the PBGC in an amount greater than $1,000,000,
or (ii) permit to exist any occurrence of any Reportable Event (as defined in
Title IV of ERISA) which, alone or together with any other Reportable Event
with respect to the same or another ERISA Plan, has a reasonable possibility
of resulting in liability of such Borrower to the PBGC in an aggregate amount
exceeding $1,000,000, or any other event or condition which presents a
material risk of such a termination by the PBGC of any ERISA Plan or has a
reasonable possibility of resulting in a liability of such Borrower to the
PBGC in an aggregate amount exceeding $1,000,000.
(d) Accounting Changes. Make any change in its accounting policies or
reporting practices except as required or permitted by the Securities and
Exchange Commission, the Financial Accounting Standards Board or any other
generally recognized accounting authority.
(e) Transactions with Affiliates. Engage in any transaction with any
Affiliate except (i) in accordance with the Public Utility Holding Company
Act of 1935, to the extent applicable thereto or (ii) on terms no less
favorable to such Borrower than if the transaction had been negotiated in
good faith on an arms-length basis with a non-Affiliate and on commercially
reasonable terms or pursuant to a binding agreement in effect on the Closing
Date.
(f) Issuance of First Mortgage Bonds. Issue any First Mortgage Bonds
on or after the Closing Date, whether in addition to First Mortgage Bonds
outstanding on the Closing Date or in replacement of First Mortgage Bonds
redeemed, retired, defeased, repaid or prepaid on or after the Closing Date.
(g) Interests in Nuclear Plants. Acquire any nuclear plant or any
interest therein not held on the Closing Date, other than so-called "power
entitlements" acquired for use in the ordinary course of business.
(h) Subsidiaries. Create, acquire or permit to exist, any Subsidiary,
other than (i) Subsidiaries in existence on the Closing Date and listed on
Schedule III hereto and (ii) Subsidiaries that are either inactive or special
purpose entities used solely in connection with the financing activities of
such Borrower; provided, that none of the Subsidiaries described in clauses
(i) and (ii) above, either individually or collectively with all other such
Subsidiaries, shall represent 10% or more of such Borrower's consolidated
assets or 10% or more of such Borrower's consolidated net income (or loss) on
any date or for any relevant period of determination.
SECTION 7.03. Financial Covenants of the Borrowers. On and after
the Closing Date, so long as any 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) Common Equity Ratio. Maintain at all times a ratio of Common
Equity to Total Capitalization of at least 0.28:1:00 for the period
beginning on the Closing Date and ending on December 31, 1999, and at
least 0.30:1:00 at any time thereafter.
(b) Interest Coverage Ratio. Maintain, as of the end of each
Fiscal Quarter, with respect to the four Fiscal Quarters then ended, a
ratio of Consolidated Operating Income to Consolidated Interest Expense
of at least 2.00:1:00.
SECTION 7.04. Reporting Obligations of the Borrowers. 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, 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; and
(B) concurrently with the delivery of the financial
statements described in the foregoing clause (a), a certificate of
the Chief Financial Officer, Treasurer, Assistant Treasurer or
Comptroller of such Borrower:
(1) to the effect that such financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied in
the preparation of the Financial Statements,
(2) stating that no Event of Default or Unmatured
Default with respect to such Borrower has occurred and
is continuing or, if an Event of Default or Unmatured
Default with respect to such Borrower has occurred and
is continuing, describing the nature thereof and the
action which such Borrower proposes to take with respect
thereto, and
(3) demonstrating such Borrower's compliance with
the covenants set forth in Section 7.03 hereof, for and
as of the end of such Fiscal Quarter, in each case such
demonstrations to be in form satisfactory to the
Administrative Agent and to set forth in reasonable
detail the computations used in determining such
compliance;
(iii) (A) as soon as available, and in any event within 105
days after the end of each Fiscal Year of such Borrower, a copy of such
Borrower's report on Form 10-K 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
(B) concurrently with the delivery of the financial
statements described in the foregoing clause (A), a certificate of
the Chief Financial Officer, Treasurer, Assistant Treasurer or
Comptroller of such Borrower:
(1) to the effect that such financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied in
the preparation of the Financial Statements, and
(2) stating that no Event of Default or Unmatured
Default with respect to such Borrower has occurred and is
continuing, or if an Event of Default or Unmatured
Default with respect to such Borrower has occurred and is
continuing, describing the nature thereof and the action
which such Borrower proposes to take with respect
thereto, and
(3) demonstrating such Borrower's compliance with
the covenants set forth in Section 7.03 hereof, for and
as of the end of such Fiscal Year, in each case such
demonstrations to be in form satisfactory to the
Administrative Agent and to set forth in reasonable
detail the computations used in determining such
compliance;
(iv) upon the reasonable request of the Administrative Agent, but
not more than once per Fiscal Quarter, copies of any or all filings or
registrations with, or notices or reports to, any regulatory authority;
(v) promptly upon becoming aware that any of its material
businesses and operations is reasonably likely be affected by the Year
2000 Issue, a detailed description of the nature of such circumstances
and the actions which such Borrower proposes to take with respect
thereto, except where the effect of the Year 2000 Issue would not be
reasonably likely to have a material adverse effect on the financial
condition, properties, prospects or operations of such Borrower;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) promptly after such Borrower becomes aware of the
commencement thereof, notice of all actions, suits, proceedings or other
events of the type described in Section 6.01(h) hereof (including,
without limitation, any action or proceeding relating to any
environmental protection laws or regulations);
(x) promptly after the filing thereof, copies of each prospectus
(excluding any prospectus contained in any Form S-8) and Current Report
on Form 8-K, if any, which such Borrower files with the Securities and
Exchange Commission or any successor governmental authority;
(xi) promptly after any change in the SEC Borrowing Limit of such
Borrower, notice of the new SEC Borrowing Limit applicable to such
Borrower; and
(xii) promptly after requested, such other information respecting
the financial condition, operations, properties or prospects of such
Borrower or its Subsidiaries as the Administrative Agent, or the
Majority Lenders through the Administrative Agent, may from time to time
reasonably request in writing.
SECTION 7.05. Release of Collateral. At the option and request of
the Borrower that is the mortgagor under the relevant Mortgage, the
Collateral Agent will take all necessary or appropriate actions to release
the Lien under such Mortgage upon the earlier of (i) the sale of the property
subject to such Mortgage or (ii) the issuance by both S&P and Xxxxx'x of
unsecured, senior, non-credit enhanced, long-term debt ratings of at least
BBB- and Baa3, respectively, with respect to the Borrower that is the
mortgagor under such Mortgage and the other Borrower, and each of the Lenders
consents to the taking of such actions by the Collateral Agent under such
circumstances.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. The following events shall each
constitute an "Event of Default" with respect to a Borrower:
(a) Such Borrower shall fail to pay any principal of any Note when
due or shall fail to pay any interest thereon or fees or other amounts
payable under the Loan Documents within two days after the same becomes
due; or
(b) Any representation or warranty made by such Borrower (or any
of its officers or agents) in any Loan Document, any certificate or
other writing delivered pursuant hereto or thereto shall prove to have
been incorrect in any material respect when made or deemed made; or
(c) Such Borrower shall fail to perform or observe any term or
covenant on its part to be performed or observed contained in
Section 7.01(d), Section 7.02, Section 7.03 or Section 7.04(i) hereof;
or
(d) Such Borrower shall fail to perform or observe any other term
or covenant on its part to be performed or observed contained in any
Loan Document and any such failure shall remain unremedied for a period
of 30 days after the earlier of (i) written notice of such failure
having been given to such Borrower by the Administrative Agent or
(ii) such Borrower having obtained actual knowledge of such failure; or
(e) Such Borrower shall fail to pay any of its Debt when due
(including any interest or premium thereon but excluding Debt 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 exercise of a prepayment option) prior to
the stated maturity thereof; or
(f) Such Borrower shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make an assignment for the benefit of creditors; or
any proceeding shall be instituted by or against such Borrower seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief,
or composition of its debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its
property and, in the case of a proceeding instituted against such
Borrower such Borrower shall consent thereto or such proceeding shall
remain undismissed or unstayed for a period of 90 days or any of the
actions sought in such proceeding (including without limitation the
entry of an order for relief against such Borrower or the appointment of
a receiver, trustee, custodian or other similar official for such
Borrower or any of its property) shall occur; or such Borrower shall
take any corporate or other action to authorize any of the actions set
forth above in this subsection (f); or
(g) Any judgments or orders for the payment of money in excess of
$10,000,000 (or aggregating more than $10,000,000 at any one time) shall
be rendered against such Borrower or its properties, and either
(A) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order and shall not have been stayed or (B) there
shall be any period of 15 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) Any material provision of any Loan Document to which such
Borrower is a party shall at any time for any reason cease to be valid
and binding on such Borrower, or shall be determined to be invalid or
unenforceable by any court, governmental agency or authority having
jurisdiction over such Borrower, or such Borrower shall deny that it has
any further liability or obligation under any Loan Document; or
(i) The Collateral Agent shall cease to have a valid, enforceable
and perfected mortgage on the "Mortgaged Premises" described in either
Mortgage other than pursuant to the terms of the Loan Documents; or
(j) NU shall cease to beneficially own, free and clear of any
Liens, at least 85% of all outstanding shares of capital stock having
ordinary voting power for the election of directors of such Borrower; or
(k) A Change of Control shall have occurred.
SECTION 8.02. Remedies Upon Events of Default. Upon the
occurrence and during the continuance of any Event of Default with respect to
a Borrower, the Administrative Agent shall at the request, or may with the
consent, of the Lenders entitled to make such request, upon notice to such
Borrower (i) declare the obligation of each Lender to make Advances to such
Borrower to be terminated, whereupon such obligation of each Lender shall
forthwith terminate, provided, that any such request or consent pursuant to
this clause (i) shall be made solely by Lenders having Percentages in the
aggregate of not less 66-2/3%; (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, provided, that any such request or consent pursuant to this
clause (ii) shall be made solely by the Lenders holding at least 66-2/3% of
the then aggregate unpaid principal amount of the Advances owing by such
Borrower, and (iii) instruct the Collateral Agent to 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 (iii) shall be made solely by the Lenders
holding at least 66-2/3% of the then aggregate unpaid principal amount of the
Advances owing by such Borrower; and provided further, however, that if such
Event of Default is an Event of Default pursuant to subsection (f) of Section
8.01, then (A) the obligation of each Lender to make Advances to 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 AGENT
SECTION 9.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation,
enforcement or collection thereof), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders; provided,
however, that the Administrative Agent shall not be required to take any
action which exposes the Administrative Agent to personal liability or which
is contrary to the Loan Documents or applicable law. The Administrative
Agent agrees to deliver promptly to each Lender notice of each notice given
to it by a Borrower pursuant to the terms of this Agreement.
SECTION 9.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them
under or in connection with any Loan Document, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i) may treat 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 facsimile) believed by it to be genuine and signed or sent
by the proper party or parties.
SECTION 9.03. Citibank and Affiliates. With respect to its
Commitment and the 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 Administrative
Agent, the Collateral Agent or any other Lender and based on the Information
Memorandum and the Financial Statements and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement.
SECTION 9.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrowers), ratably
according to 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
the Administrative Agent in its capacity as such in any way relating to or
arising out of any Loan Document or any action taken or omitted by the
Administrative Agent in its capacity as such under any Loan Document,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for
such Lender's ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, the Loan
Documents to the extent that the Administrative Agent is entitled to
reimbursement for such expenses pursuant to Section 10.04 but is not
reimbursed for such expenses by the Borrowers.
SECTION 9.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders
and the Borrowers, with any such resignation to become effective only upon
the appointment of a successor Administrative Agent pursuant to this Section
9.06. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor Administrative Agent, which shall be a Lender or
another commercial bank or trust company reasonably acceptable to the
Borrowers organized or licensed under the laws of the United States, or of
any State thereof. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be Lender or
shall be another commercial bank or trust company organized or licensed under
the laws of the United States or of any State thereof reasonably acceptable
to the Borrowers. In addition to the foregoing right of the Administrative
Agent to resign, the Majority Lenders may remove the Administrative Agent at
any time, with or without cause, concurrently with the appointment by the
Majority Lenders of a successor Administrative Agent. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under the Loan Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive, modify or eliminate any of the conditions specified in
Article V, (b) increase the Commitment of any Lender hereunder or increase
the Commitments of the Lenders that may be maintained hereunder or increase
any Borrower Sublimit or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Notes, any Applicable Margin
or any fees or other amounts payable hereunder (other than fees payable to
the Administrative Agent pursuant to Section 2.02(b) hereof), (d) postpone
any date fixed for any payment of principal of, or interest on, the Notes or
any fees or other amounts payable under the Loan Documents (other than fees
payable to the Administrative Agent pursuant to Section 2.02(b) hereof),
(e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the 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, (g) amend this Section 10.01, or (h)
release all or a material portion 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 or the Collateral Agent, as the case may be, in addition
to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent or the Collateral Agent, as the case may
be, under any Loan Document.
SECTION 10.02. Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for under the Loan
Documents shall be in writing (including facsimile communication) and mailed,
sent by facsimile or hand delivered:
(i) if to any Borrower, to it in care of NUSCO at 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxx 00000, Attention: Assistant
Treasurer, facsimile number: (000) 000-0000, confirm number:
(000) 000-0000;
(ii) if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto;
(iii) if to any Lender other than a Bank, at its Domestic
Lending Office specified in the Lender Assignment pursuant to
which it became a Lender;
(iv) if to the Administrative Agent, at its address at 0 Xxxxx
Xxxxxx, 0xx Xxxxx/Xxxx 0, Xxxx Xxxxxx Xxxx, Xxx Xxxx, XX
00000, Attention: Bank Loan Services, facsimile number:
(000) 000-0000, confirm number: (000) 000-0000, with a copy to
Citibank, N.A., Global Power Group, 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx,
Xx., Managing Director, facsimile number: (000) 000-0000,
confirm number: (000) 000-0000; and
(v) if the Collateral Agent, at its address at 000 Xxxx Xxxxxx,
Xxxxx 0, Xxxx 20, New York, New York 10043, Attention: Xxxxx
Xxxxxxxxxx, facsimile number (000) 000-0000, confirm number:
(000) 000-0000.
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall, when mailed, sent by facsimile or hand delivered, be
effective five days after when deposited in the mails, or when sent by
facsimile, or when delivered, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III, IV or
IX shall not be effective until received by the Administrative Agent. With
respect to any telephone notice given or received by the Administrative Agent
pursuant to Section 3.03 hereof, the records of the Administrative Agent
shall be conclusive for all purposes.
SECTION 10.03. No Waiver of Remedies. No failure on the part of the
Administrative Agent, the Collateral Agent or any Lender to exercise, and no
delay in exercising, any right under any Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification. (a) The Borrowers
agree to pay when due, in accordance with the terms hereof: (i) all costs and
expenses of the Administrative Agent and the Collateral 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 Collateral 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, the Collateral 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 Administrative
Agent, the Collateral Agent and each Lender, and its officers, directors,
employees, professional advisors and affiliates (each, an "Indemnified
Person") harmless from and against any and all claims, damages, losses,
liabilities, costs or expenses (including reasonable attorney's fees and
expenses, whether or not such Indemnified Person is named as a party to any
proceeding or investigation or is otherwise subjected to judicial or legal
process arising from any such proceeding or investigation) which any of them
may incur or which may be claimed against any of them by any person or entity
(except to the extent such claims, damages, losses, liabilities, costs or
expenses arise from the gross negligence or willful misconduct of the
Indemnified Person):
(i) by reason of or in connection with the execution, delivery or
performance of the Loan Documents or any transaction contemplated
thereby, or the use by any Borrower of the proceeds of any Advance;
(ii) in connection with or resulting from the utilization, storage,
disposal, treatment, generation, transportation, release or ownership of
any Hazardous Substance (A) at, upon or under any property of either of
the Borrowers or any of their respective Affiliates or (B) by or on
behalf of either of the Borrowers or any of their respective Affiliates
at any time and in any place; or
(iii) in connection with any documentary taxes, assessments or
charges made by any governmental authority by reason of the execution
and delivery of the Loan Documents.
(c) The Borrowers' obligations under this Section 10.04 shall survive
the assignment by any Lender pursuant to Section 10.07 hereof and shall
survive as well the repayment of all amounts owing to the Lenders under the
Loan Documents and the termination of the Commitments. If and to the extent
that the obligations of the Borrowers under this Section 10.04 are
unenforceable for any reason, the Borrowers agree to make the maximum
contribution to the payment and satisfaction thereof which is permissible
under applicable law.
(d) The Borrowers' obligations under this Section 10.04 are in addition
to and shall not be deemed to supersede their indemnification and similar
obligations set forth in that certain Commitment Letter dated as of October
22, 1999 among the Borrowers, Citibank and Xxxxxxx Xxxxx Xxxxxx, Inc.
(e) Each Borrower shall be liable for its pro rata share of any payment
to be made by the Borrowers under this Section 10.04, such pro rata share to
be determined on the basis of such Borrower's Fraction; provided, however,
that if and to the extent that any such liabilities are reasonably determined
by the Borrowers (subject to the approval of the Administrative Agent which
approval shall not be unreasonably withheld) to be directly attributable to a
specific Borrower, only such Borrower shall be liable for such payments. In
the event that one Borrower fails to pay its portion of the payments to be
made by the Borrowers under this Section 10.04, the other Borrower shall be
liable for such payment; provided, however, that if and to the extent that
any such payment is reasonably determined by the Borrowers (subject to the
approval of the Administrative Agent which approval shall not be unreasonably
withheld) to be directly attributable to a specific Borrower, only such
Borrower shall be liable for such payments.
SECTION 10.05. Right of Set-off. (a) Upon (i) the occurrence and during
the continuance of any Event of Default with respect to any Borrower, and
(ii) the making of the request or the granting of the consent specified by
Section 8.02 to authorize the Administrative Agent to declare the 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, the Collateral Agent or any
Lender, but no Lender shall be liable for the conduct of the Administrative
Agent, the Collateral Agent or any other Lender, and neither the
Administrative Agent nor the Collateral Agent shall 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 their 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 and the
Administrative Agent 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 $5,000,000, 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 $3,500. 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 Collateral
Agency Agreement 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 the Loan Documents (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 to the Loan Documents); 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, or the latest financial statements
delivered by the Borrowers to the Administrative Agent pursuant to
Section 7.04 hereof, 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 each of the Administrative Agent and the Collateral 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 and the Collateral
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, the Collateral Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of the Loan Documents. 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 hereto.
(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 the Loan
Documents (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 the Loan
Documents, (iv) the Borrowers, the Administrative Agent, the Collateral 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(b) 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(b) hereof) or (C) causing or permitting the
termination of any Collateral 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 proposed participation pursuant to this
Section 10.07, disclose to the assignee or participant or proposed assignee
or proposed 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 3.03(b) hereof, and if and so long as
such Lender shall not have withdrawn such notice or corrected such non-
performance in accordance with Section 3.03(b), the Borrowers may demand that
such Lender assign, in accordance with Section 10.07 hereof, to one or more
assignees designated by either the Borrowers or the Administrative Agent (and
reasonably acceptable to the other), all (but not less than all) of such
Lender's Commitment, Advances, participation and other rights and obligations
under the Loan Documents; provided that any such demand by the Borrowers
during the continuance of an Event of Default or an Unmatured Default shall
be ineffective without the consent of the Majority Lenders. If, within 30
days following any such demand by the Borrowers, any such assignee so
designated shall fail to tender such assignment on terms reasonably
satisfactory to the Borrowers and the Borrowers and the Administrative Agent
shall have failed to designate any such assignee, then such demand by the
Borrowers shall become ineffective, it being understood for purposes of this
provision that such assignment shall be conclusively deemed to be on terms
reasonably satisfactory to such Lender, and such Lender shall be compelled to
tender such assignment forthwith, if (i) such assignee (A) shall agree to
such assignment in substantially the form of the Lender Assignment and
(B) shall tender payment to such Lender in an amount equal to the full
outstanding dollar amount accrued in favor of such Lender hereunder (as
computed in accordance with the records of the Administrative Agent) and
(ii) in the event the Borrowers demanded such assignment, the Borrowers shall
tender payment to the Administrative Agent of the processing and recording
fee specified in Section 10.07(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
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim arising out of or
relating to the Loan Documents, or any other instrument or document delivered
hereunder or thereunder.
SECTION 10.10. Governing Law. The Loan Documents shall be governed by,
and construed in accordance with, the laws of the State of New York. Each of
the Borrowers, the Lenders and the Administrative Agent: (i) irrevocably
submits to the jurisdiction of any New York State Court or Federal court
sitting in New York City in any action arising out of or relating to the Loan
Documents, (ii) agrees that all claims in such action may be decided in such
court, (iii) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum and (iv) consents to the service of process
by mail. A final judgment in any such action shall be conclusive and may be
enforced in other jurisdictions. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its
right to bring any action in any other court.
SECTION 10.11. Relation of the Parties; No Beneficiary. No term,
provision or requirement, whether express or implied, of any Loan Document,
or actions taken or to be taken by any party thereunder, shall be construed
to create a partnership, association, or joint venture between such parties
or any of them. No term or provision of any Loan Document shall be construed
to confer a benefit upon, or grant a right or privilege to, any Person other
than the parties hereto.
SECTION 10.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE CONNECTICUT LIGHT AND
POWER COMPANY
By:/s/
Name:
Title:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By: /s/
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent
By:/s/
Name:
Title:
