CREDIT AGREEMENT
Dated as of November 17, 2000
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 I.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 0.125
Level II 0.150
Level III 0.200
Level IV 0.375
Level V 0.500
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
Level I Rating Level
Eurodollar Rate Advances 0.750
Utilization Margin for Eurodollar Rate Advances 0.125
Base Rate Advances 0.000
Utilization Margin for Base Rate Advances 0.000
Level II Rating Level
Eurodollar Rate Advances 0.875
Utilization Margin for Eurodollar Rate Advances 0.125
Base Rate Advances 0.000
Utilization Margin for Base Rate Advances 0.000
Level III Rating Level
Eurodollar Rate Advances 1.125
Utilization Margin for Eurodollar Rate Advances 0.125
Base Rate Advances 0.125
Utilization Margin for Base Rate Advances 0.125
Level IV Rating Level
Eurodollar Rate Advances 1.750
Utilization Margin for Eurodollar Rate Advances 0.000
Base Rate Advances 0.750
Utilization Margin for Base Rate Advances 0.000
Level V Rating Level
Eurodollar Rate Advances 2.250
Utilization Margin for Eurodollar Rate Advances 0.000
Base Rate Advances 1.250
Utilization Margin for Base Rate Advances 0.000
provided, that (x) the Applicable Margin for Eurodollar Rate Advances shall
be increased by the rate per annum set forth above under the caption
"Utilization Margin for Eurodollar Rate Advances" that corresponds to the
Applicable Rating Level used to determine such Applicable Margin and (y) the
Applicable Margin for Base Rate Advances shall be increased by the rate per
annum set forth above under the caption "Utilization Margin for Base Rate
Advances" that corresponds to the Applicable Rating Level used to determine
such Applicable Margin, in any case, during any period in which the total
principal amount of outstanding Advances is greater than one-third of the
Total Commitment. Any change in the Applicable Margin caused by a change in
the Applicable Rating Level shall take effect at the time such change in the
Applicable Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance made to 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 senior secured long-term Debt (the "Rated Debt") (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 Rated Debt
and the rating assigned by Moody's to such Borrower's Rated Debt do not
correspond to the same Applicable Rating Level, then the lower of the two
ratings shall determine the Applicable Rating Level. The Applicable Rating
Level shall be redetermined as and when any change in the ratings used in the
determination thereof shall be announced by S&P or 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 Rated Debt while the same is 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 Rated Debt because no such Rated
Debt is 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"); and
(c) 1/2 of one percent per annum above the Federal Funds Rate in effect
from time to time.
If the Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the CD
Rate or the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Base Rate shall be determined without
regard to clause (b) of the first sentence of this definition, in the event
the Administrative Agent is unable to ascertain the CD Rate, and clause (c)
of the first sentence of this definition, in the event the Administrative
Agent is unable to ascertain the Federal Funds Rate, until the circumstances
giving rise to such inability no longer exist. Any change in the Base Rate
due to a change in the Administrative Agent's base rate, the CD Rate or the
Federal Funds Rate shall be effective on the effective date of such change in
the Administrative Agent's base rate, the CD Rate or the Federal Funds Rate,
respectively.
"Base Rate Advance" means a Contract Advance in respect of which 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, $200,000,000 and
(ii) with respect to WMECO, $150,000,000.
"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 EBIT" means, for any Borrower for any period (as determined on
a consolidated basis in accordance with generally accepted accounting
principles), the Borrower's and its Subsidiaries' net income for such period,
adjusted as follows:
(i) increased by the amount of federal and state income taxes to the extent
deducted in the computation of such Borrower's and/or its Subsidiaries'
consolidated net income for such period;
(ii) increased by the amount of Consolidated Interest Expense deducted in
the computation of the Borrower's and/or its Subsidiaries' consolidated net
income for such period;
(iii) increased by the amount of dividends on preferred stock deducted in
the computation of the Borrower's and/or its Subsidiaries' consolidated net
income for such period;
(iv) decreased (increased) by the gain (loss) on asset sales done outside
the ordinary course of business by the Borrower and/or its Subsidiaries to
the extent such gains (losses) are not offset by increases (decreases) in
amortization of regulatory assets, and to the extent such gain (loss) is
included in the computation of the Borrower's and/or its Subsidiaries'
consolidated net income for such period; and
(v) decreased by the amount of revenues accrued by the Borrower and/or its
Subsidiaries related to interest on Stranded Cost Recovery Obligations of the
Borrower and/or its Subsidiaries, and increased by the amount of operating
expenses accrued by the Borrower and/or its Subsidiaries related to interest
on Stranded Cost Recovery Obligations of the Borrower and/or its
Subsidiaries, in each case to the extent included in the computation of the
Borrower's and/or its Subsidiaries' consolidated net income for such period.
"Consolidated Interest Expense" means, for any 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 Obligations of such Borrower.
"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 Obligations 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, 1999; (ii) its
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31 and
June 30, 2000; and (iii) 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 amendment as a termination or of an ERISA Multiemployer Plan
amendment as a termination under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or condition 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 19, 1999, among
CL&P, WMECO, 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 November 13, 2000 among
Citibank, Xxxxxxx Xxxxx Xxxxxx, Inc., Barclays Bank PLC, Union Bank of
California, N.A., Banc One Capital Markets, Inc., NU, CL&P and WMECO.
"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, 1999, (ii) the
unaudited consolidated balance sheet of CL&P as at June 30, 2000, (iii) the
audited consolidated statements of income and cash flows of CL&P for the
Fiscal Year ended December 31, 1999 and (iv) the unaudited consolidated
statements of income and cash flows of CL&P for the 6-month period ended
June 30, 2000, in each case as included in CL&P's Annual Report on Form 10-K
for the Fiscal Year ended December 31, 1999 or Quarterly Report on Form 10-Q
for the Fiscal Quarter ended June 30, 2000, and (B), with respect to WMECO,
(i) the audited balance sheet of WMECO as at December 31, 1999, (ii) the
unaudited balance sheet of WMECO as at June 30, 2000, (iii) the audited
statements of income and cash flows of WMECO for the Fiscal Year ended
December 31, 1999 and (iv) the unaudited statements of income and cash flows
of WMECO for the 6-month period ended June 30, 2000, in each case as included
in WMECO's Annual Report on Form 10-K for the Fiscal Year ended December 31,
1999 or Quarterly Report on Form 10-Q for the Fiscal Quarter ended June 30,
2000.
"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 2000, 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 or any Subsidiary thereof receives the proceeds of stranded
cost recovery bonds.
"Stranded Cost Recovery Obligations" means, with respect to any Person, such
Person's obligations to make principal, interest or other payments to the
issuer of stranded cost recovery bonds pursuant to a loan agreement or
similar arrangement whereby the issuer has loaned the proceeds of such bonds
to such Person.
"Subsidiary" shall mean, with respect to any Person (the "Parent"), any
corporation, association or other business entity of which securities or
other ownership interests representing 50% or more of the ordinary voting
power are, at the time as of which any determination is being made, owned or
controlled by the Parent or one or more Subsidiaries of the Parent or by the
Parent and one or more Subsidiaries of the Parent.
"Termination Date" means the earliest to occur of (i) November 16, 2001, 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 pursuant to Section 8.02.
"Total Capitalization" means, at any date for any Borrower, the sum of (i)
the aggregate principal amount of all long-term and short-term Debt
(including the current portion thereof) of such Borrower and its
Subsidiaries, (ii) the aggregate of the par value of, or stated capital
represented by, the outstanding shares of all classes of common and preferred
shares of such Borrower and its Subsidiaries and (iii) the consolidated
surplus of such Borrower and its Subsidiaries, paid-in, earned and other
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 $350,000,000, 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.
SECTION I.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 I.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 I.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 I.05. 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 I.06. 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
that are for their account, together with such other fees as may be
separately agreed to by the Borrowers and the Administrative Agent or its
Affiliates.
SECTION I.07. 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 $50,000,000
to $150,000,000 on the fifth Business Day following CL&P's Securitization
Date. The Borrower Sublimit of WMECO will be permanently reduced by
$50,000,000 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 I.08. Extension of the Termination Date.
(a) 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 I.09. Contract Advances.
(a) 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 I.10. Terms Relating to the Making of Contract Advances.
(a) Notwithstanding anything in Section 3.01 above to the contrary:
at no time shall more than twelve different Contract Borrowings be
(i) 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 I.11. 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 I.12. Repayment of Advances; Contract Notes
(a) Each Borrower shall repay the principal amount of each Advance made to
it hereunder on the Termination Date.
(b) Any Lender may request that the Contract Advances made by it to either
Borrower be evidenced by a Contract Note. Promptly upon receipt of such
request, the relevant Borrower shall prepare, execute and deliver to such
Lender (or, if requested by such Lender, to such Lender and its assignees) a
Contract Note. Thereafter, the Contract Advances evidenced by such Contract
Note and interest thereon shall at all times (including after assignment
pursuant to Section 10.07) be represented by one or more Contract Notes
payable to the order of the payee named therein.
SECTION I.13. Interest.
(i) 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.
(E) 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.
(F) 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.
(G) 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 I.14. 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 I.15. Payments and Computations.
(a) Each Borrower shall make each payment hereunder not later than
12:00 noon (New York City time) on the day when due in U.S. Dollars to the
Administrative Agent 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 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, 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 I.16. 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 I.17. 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 (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, 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, only such Borrower shall be liable for such
payments.
SECTION I.18. 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 I.19. 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 W-8BEN or Form W-8ECI and any other certificate or statement of
exemption required by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly completed and
duly executed by such Lender establishing that it is (i) not subject to
withholding under the Code or (ii) totally exempt from United States of
America tax under a provision of an applicable tax treaty. Each Lender shall
promptly notify the 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 I.20. 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:
(i) Counterparts of this Agreement, duly executed by each Borrower.
(ii) Counterparts of the Mortgages, duly executed by the Collateral
Agent and each Borrower party thereto.
(iii) Counterparts of the Collateral Agency Agreement, duly executed by
the Collateral Agent, the Borrowers and each of the Lenders.
(iv) 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.
(v) A certificate signed by the Treasurer or Assistant Treasurer of
each Borrower, certifying as to:
(A) the SEC Borrowing Limit of such Borrower as in effect on the Closing
Date;
(B) 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, 2000,
except as disclosed in the Disclosure Documents.
(vi) A certificate of a duly authorized officer of each Borrower
stating that (i) the representations and warranties 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.
(vii) Such financial, business and other information regarding each
Borrower and its Subsidiaries, as any Lender shall have reasonably requested.
(viii) 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.
(ix) 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.
(a) 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.
(b) 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).
(c) 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 or the financial condition,
operations, properties or prospects of each Borrower.
SECTION I.21. 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 I.22. 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 I.23. Representations and Warranties of the Borrowers.
(a) Each Borrower represents and warrants with respect to itself as follows:
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 and to borrow hereunder.
(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, 2000, 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" (as defined in Section 4975 of the Internal Revenue Code of
1986, as amended, and in ERISA) has occurred with respect thereto that,
singly or in the aggregate with all other "prohibited transactions" and after
giving effect to all likely consequences thereof, would be reasonably
expected to have a material adverse effect on the financial condition,
properties, prospects or operations of 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) 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.
(r) 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 I.24. Affirmative Covenants of the Borrowers.
On and after the Closing Date, so long as any obligation hereunder 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.
(i) 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.
(ii) 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 I.25. Negative Covenants of the Borrowers.
On and after the Closing Date, and so long as any obligation hereunder
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;
(xv) any other Liens incurred in the ordinary course of business
otherwise than to secure Debt; and
(xiv) 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 or to other property of no greater value than 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;
(D) any sale of transmission assets on an arms-length basis as required by
the appropriate regulatory authorities; and
(E) 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 I.26. Financial Covenants of the Borrowers.
On and after the Closing Date, so long as any obligation hereunder 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 0.30:1:00.
(b) Interest Coverage Ratio. Maintain, as of the end of each Fiscal
Quarter, with respect to the four Fiscal Quarters then ended, a ratio of
Consolidated EBIT to Consolidated Interest Expense of at least (i) in the
case of CL&P, (A) 2.50:1.00, with respect to the four Fiscal Quarters ending
December 31, 2000 and March 31, 2001, and (B) 3.00:1.00, with respect to any
period of four Fiscal Quarters ending after March 31, 2001; and (ii) in the
case of WMECO, (A) 2.00:1.00, with respect to the four Fiscal Quarters ending
December 31, 2000 and March 31, 2001, and (B) 2.20:1.00, with respect to any
period of four Fiscal Quarters ending after March 31, 2001.
SECTION I.27. Reporting Obligations of the Borrowers.
So long as any obligation hereunder 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:
(i) 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
(ii) 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
(iii) 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) 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;
(vi) 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;
(vii) 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;
(viii) 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);
(ix) 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;
(x) promptly after any change in the SEC Borrowing Limit of such Borrower,
notice of the new SEC Borrowing Limit applicable to such Borrower; and
(xi) 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 I.28. 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 earliest
of (i) the sale of the property subject to such Mortgage, (ii) the
substitution of such other collateral as may be offered by such Borrower and
accepted by all of the Lenders, pursuant to documentation (including
amendments of the Loan Documents) in form and substance satisfactory to the
Lenders, and (iii) 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 II
DEFAULTS
SECTION II.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 Advance when due or
shall fail to pay any interest thereon or fees or other amounts payable under
(b) the Loan Documents within two days after the same becomes due; or
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 outstanding hereunder 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 II.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 Advances
made to 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 Advances, all such interest and all
such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by 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 Advances made to 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 III
THE AGENT
SECTION III.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 III.02. Administrative Agent's Reliance, Etc.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with any Loan Document, except for
its or their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Administrative Agent: (i) may treat
each Lender party hereto as a "Lender" hereunder and for all purposes hereof
until the Administrative Agent receives and accepts a Lender Assignment
entered into by such Lender, as assignor, and an assignee, as provided in
Section 10.07; (ii) may consult with legal counsel (including counsel for the
Borrower(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 III.03. Citibank and Affiliates.
With respect to its Commitment and the Advances made by 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 III.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 III.05. Indemnification.
The Lenders agree to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrowers), ratably according to their respective
Commitments (or, if the Commitments have been terminated, ratably according
to the respective principal amounts of the Advances then held by each of them
(provided, that if any Commitments or Advances are held by any Borrower or
Affiliates thereof, any ratable apportionment hereunder shall exclude their
respective Commitments hereunder or the principal amount of the Advances held
by such Borrower(s) or Affiliates)), 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 III.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 IV
MISCELLANEOUS
SECTION IV.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 Advances, 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 Advances 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 Advances, 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 IV.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: (860)
665-5457, 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 Xxx Xxxxx Xxx, Xxxxx
000, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank Loan Services, facsimile
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 IV.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 IV.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 November
13, 2000 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 IV.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 Advances due and payable pursuant to the
provisions of Section 8.02, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of 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 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 IV.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 IV.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 and the Advances owing
to 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 or Advance 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 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, 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.
(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 and the Advances owing to 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 a "Lender" hereunder and 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
Advances, 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 Advances 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 IV.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 IV.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 IV.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 IV.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 IV.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.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE CONNECTICUT LIGHT AND
POWER COMPANY
By:
Name:
Title:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By:
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent
By:
Name:
Title:
The Banks:
Commitment: $27,916,666.00 CITIBANK, N.A.
By
Name:
Title:
Commitment: $27,916,666.00 UNION BANK OF CALIFORNIA, N.A.
By
Name:
Title:
Commitment: $27,916,666.00 BANK ONE, NA
By
Name:
Title:
Commitment: $27,916,666.00 BARCLAYS BANK PLC
By
Name:
Title:
Commitment: $28,000,000.00 FLEET NATIONAL BANK
By:
Name:
Title:
Commitment: $28,000,000.00 TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
Commitment: $25,666,667.00 THE BANK OF NEW YORK
By:
Name:
Title:
Commitment: $25,666,667.00 THE BANK OF NOVA SCOTIA
By:
Name:
Title:
Commitment: $25,666,667.00 THE CHASE MANHATTAN BANK
By:
Name:
Title:
Commitment: $18,666,667.00 BNP PARIBAS
By:
Name:
Title:
By:
Name:
Title:
Commitment: $18,666,667.00 CIBC, INC.
By:
Name:
Title:
Commitment: $18,666,667.00 THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Name:
Title:
Commitment: $18,666,667.00 CITIZENS BANK OF MASSACHUSETTS
By:
Name:
Title:
Commitment: $18,666,667.00 BAYERISCHE HYPO - UND VEREINSBANK AG, NEW YORK
BRANCH
By:
Name:
Title:
By:
Name:
Title:
Commitment: $12,000,000.00 MELLON BANK, N.A.
By:
Name:
Title:
Total of Commitments: $350,000,000
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Bank Domestic Lending Office Eurodollar Lending Office
Barclays Bank PLC 00 Xxxx Xxxxxx, 00xx Xxxxx 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Citibank, NA Xxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxxx
0xx Xxxxx, Zone 0 0xx Xxxxx, Xxxx 0
Xxxx Xxxxxx Xxxx, XX 00000 Xxxx Xxxxxx Xxxx, XX 00000
Bank One, NA 1 Bank Xxx Xxxxx 0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Union Bank of 000 Xxxxx Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, N.A. 00xx Xxxxx 00xx Xxxxx
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
The Bank of Xxx Xxxx Xxx Xxxx Xxxxxx Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
The Bank of Nova Scotia 00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
CIBC, Inc. 000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
The Chase Manhattan 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxxx Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Fleet National Bank One Federal Street Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
The Industrial Bank of 1251 Avenue of the 1251 Avenue of the
Japan, Limited Americas Americas
New York, NY Xxx Xxxx, XX
00000-0000 10020-1104
Mellon Bank, N.A. One Mellon Bank Center Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
BNP Paribas 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Toronto Dominion
(Texas), Inc. 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Bayerische Hypo- und 000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxx Branch
Vereinsbank AG, New Xxx Xxxx, XX 00000 c/o New York Branch
York Branch 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Citizens Bank of 00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxxxxxxxxx Xxxxxx, XX 00000 Xxxxxx, XX 00000
SCHEDULE II
PENDING ACTIONS
None.
SCHEDULE III
SUBSIDIARIES
A. CL&P
1. CL&P Receivables Corporation
2. Electric Power Incorporated (inactive)
3. The Nutmeg Power Company (inactive)
4. The Connecticut Steam Company (inactive)
5. CL&P Capital L.P.
B. WMECO
None.
TABLE OF CONTENTS Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms
SECTION 1.02. Computation of Time Periods
SECTION 1.03. Accounting Terms; Financial Statements
SECTION 1.04. Computations of Outstandings
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments
SECTION 2.02. Fees
SECTION 2.03. Reduction of the Commitments; Borrower Sublimits
SECTION 2.04. Extension of the Termination Date
ARTICLE III
CONTRACT ADVANCES
SECTION 3.01. Contract Advances
SECTION 3.02. Terms Relating to the Making of Contract Advances
SECTION 3.03. Making of Advances
SECTION 3.04. Repayment of Advances; Contract Notes
SECTION 3.05. Interest
SECTION 3.06. Several Obligations
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations
SECTION 4.02. Prepayments
SECTION 4.03. Yield Protection
SECTION 4.04. Sharing of Payments, Etc
SECTION 4.05. Taxes
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness
SECTION 5.02. Conditions Precedent to All Contract Advances.
SECTION 5.03. Reliance on Certificates
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrowers
ARTICLE VII
COVENANTS
SECTION 7.01. Affirmative Covenants of the Borrowers
SECTION 7.02. Negative Covenants of the Borrowers
SECTION 7.03. Financial Covenants of the Borrowers
SECTION 7.04. Reporting Obligations of the Borrowers
SECTION 7.05 Release of Collateral
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default
SECTION 8.02. Remedies Upon Events of Default
ARTICLE IX
THE AGENT
SECTION 9.01. Authorization and Action
SECTION 9.02. Administrative Agent's Reliance, Etc.
SECTION 9.03. Citibank and Affiliates
SECTION 9.04. Lender Credit Decision
SECTION 9.05. Indemnification
SECTION 9.06. Successor Administrative Agent
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc.
SECTION 10.02. Notices, Etc.
SECTION 10.03. No Waiver of Remedies
SECTION 10.04. Costs, Expenses and Indemnification
SECTION 10.05. Right of Set-off
SECTION 10.06. Binding Effect
SECTION 10.07. Assignments and Participation
SECTION 10.08. Confidentiality
SECTION 10.09. Waiver of Jury Trial
SECTION 10.10. Governing Law
SECTION 10.11. Relation of the Parties; No Beneficiary
SECTION 10.12. Execution in Counterparts
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Pending Actions
Schedule III - Subsidiaries
EXHIBITS
Exhibit 1.01A - Form of Contract Note
Exhibit 1.01B - Form of Collateral Agency Agreement
Exhibit 1.01C - Form of WMECO Mortgage
Exhibit 1.01D - Form of CL&P Mortgage
Exhibit 3.01 - Form of Notice of Contract Borrowing
Exhibit 5.01A - Form of Opinion of Day, Xxxxx & Xxxxxx, Counsel to the
Borrowers
Exhibit 5.01B - Form of Opinion of Xxxxxxx X. Xxxxxx, Assistant General
Counsel of NUSCO
Exhibit 5.01C - Form of Opinion of King & Spalding, Special New
York Counsel to the Administrative Agent
Exhibit 10.07 - Form of Lender Assignment
EXECUTION COPY
CREDIT AGREEMENT
Dated as of November 17, 2000
among
THE CONNECTICUT LIGHT
AND POWER COMPANY
and
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
as Borrowers
THE BANKS NAMED HEREIN
and
CITIBANK, N.A.
as Administrative Agent
XXXXXXX XXXXX XXXXXX, INC.
as Arranger and Book Manager
FLEET NATIONAL BANK
as Syndication Agent
TD SECURITIES (USA) INC.
as Documentation Agent
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
and
THE CHASE MANHATTAN BANK
as Co-Agents
