UNITED STATES OF AMERICA
before the
SECURITIES AND EXCHANGE COMMISSION
__________________________________
In the matter of )
)
THE CONNECTICUT LIGHT AND ) CERTIFICATE AS TO
POWER COMPANY ) PARTIAL CONSUMMATION
) OF TRANSACTION
Berlin, Connecticut )
)
File No. 70-7320 )
)
(Public Utility Holding Company )
Act of 1935) )
__________________________________)
Pursuant to the Public Utility Holding Company Act of 1935 and Rule
24(a) thereunder, The Connecticut Light and Power Company (the Company)
hereby certifies that, in accordance with the terms and conditions of and for
the purposes represented by the application/declaration, as amended, filed by
the Company in this proceeding, and of the order dated August 24, 1994 of the
Securities and Exchange Commission with respect thereto, on August 29, 1994
the Company consummated the transaction substituting the 1986 Letter of
Credit and Reimbursement Agreement issued by The Long-Term Credit Bank of
Japan with a replacement Letter of Credit and Reimbursement Agreement dated
August 1, 1994 issued by Deutsche Bank AG, New York Branch.
Submitted herewith (as Exhibit 1) are executed copies of the replacement
Reimbursement Agreement, Letter of Credit and Pledge Agreement with respect
to consummation of the transaction described above.
Dated: September 7, 1994 THE CONNECTICUT LIGHT
AND POWER COMPANY
By:/s/Jeffrey C. Miller
Assistant General Counsel
EXHIBIT 1
File No. 70-7320
EXECUTION COPY
LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
Dated as of August 1, 1994
Among
THE CONNECTICUT LIGHT AND POWER COMPANY
as Account Party
DEUTSCHE BANK AG, NEW YORK BRANCH
as Issuing Bank and as Agent
and
THE PARTICIPATING BANKS
REFERRED TO HEREIN
Relating to
Business Finance Authority (formerly The Industrial
Development Authority) of the State of New Hampshire
$15,400,000 Pollution Control Revenue Par Value Demand Bonds
(The Connecticut Light and Power Company Project) Series 1986
TABLE OF CONTENTS
Section Page
PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . 2
1.02 Computation of Time Periods . . . . . . . . . . . . . 15
1.03 Accounting Terms . . . . . . . . . . . . . . . . . . 15
1.04 Computations of Outstandings . . . . . . . . . . . . 15
ARTICLE II
THE LETTER OF CREDIT
2.01 The Letter of Credit . . . . . . . . . . . . . . . . 16
2.02 Termination of the Commitments . . . . . . . . . . . 16
2.03 Commissions and Fees . . . . . . . . . . . . . . . . 16
2.04 Reinstatement of the Letter of Credit . . . . . . . 16
2.05 Extension of the Stated Termination Date . . . . . . 18
ARTICLE III
REIMBURSEMENT AND ADVANCES
3.01 Reimbursement on Demand . . . . . . . . . . . . . . . 18
3.02 Advances . . . . . . . . . . . . . . . . . . . . . . 19
3.03 Interest on Advances . . . . . . . . . . . . . . . . 20
3.04 Conversion of Term Advances . . . . . . . . . . . . . 22
3.05 Other Terms Relating to the
Making and Conversion of Advances . . . . . . . . . . 22
3.06 Prepayment of Advances . . . . . . . . . . . . . . . 23
3.07 Participation; Reimbursement of Issuing Bank . . . . 24
ARTICLE IV
PAYMENTS
4.01 Payments and Computations . . . . . . . . . . . . . . 26
4.02 Default Interest . . . . . . . . . . . . . . . . . . 28
4.03 Yield Protection . . . . . . . . . . . . . . . . . . 28
4.04 Sharing of Payments, Etc. . . . . . . . . . . . . . . 33
4.05 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 34
4.06 Obligations Absolute . . . . . . . . . . . . . . . . 36
4.07 Evidence of Indebtedness . . . . . . . . . . . . . . 37
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions Precedent to the Issuance of
the Letter of Credit . . . . . . . . . . . . . . . . 38
5.02 Additional Conditions Precedent to the Issuance of
the Letter of Credit . . . . . . . . . . . . . . . . 41
5.03 Conditions Precedent to Initial Advances
and Conversions of Advances . . . . . . . . . . . . 42
5.04 Conditions Precedent to Term Advances . . . . . . . . 42
5.05 Reliance on Certificates . . . . . . . . . . . . . . 43
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01 Representations and Warranties of the Account Party . 43
ARTICLE VII
COVENANTS OF THE ACCOUNT PARTY
7.01 Affirmative Covenants . . . . . . . . . . . . . . . . 48
7.02 Negative Covenants . . . . . . . . . . . . . . . . . 51
7.03 Reporting Obligations . . . . . . . . . . . . . . . . 56
ARTICLE VIII
DEFAULTS
8.01 Events of Default . . . . . . . . . . . . . . . . . . 59
8.02 Remedies Upon Events of Default . . . . . . . . . . . 61
ARTICLE IX
THE AGENT, THE PARTICIPATING BANKS
AND THE ISSUING BANK
9.01 Authorization of Agent; Actions of Agent
and Issuing Bank . . . . . . . . . . . . . . . . . . 63
9.02 Reliance, Etc . . . . . . . . . . . . . . . . . . . . 63
9.03 The Agent, the Issuing Bank and Affiliates . . . . . 64
9.04 Participating Bank Credit Decision . . . . . . . . . 64
9.05 Indemnification . . . . . . . . . . . . . . . . . . . 65
9.06 Successor Agent . . . . . . . . . . . . . . . . . . . 65
9.07 Issuing Bank . . . . . . . . . . . . . . . . . . . . 65
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc . . . . . . . . . . . . . . . . . . . 66
10.02 Notices, Etc. . . . . . . . . . . . . . . . . . . . . 67
10.03 No Waiver of Remedies . . . . . . . . . . . . . . . . 68
10.04 Costs, Expenses and Indemnification . . . . . . . . 68
10.05 Right of Set-Off . . . . . . . . . . . . . . . . . . 70
10.06 Binding Effect; Assignments and Participants . . . . 71
10.07 Relation of the Parties; No Beneficiary . . . . . . . 72
10.08 Issuing Bank Not Liable . . . . . . . . . . . . . . . 72
10.09 Confidentiality . . . . . . . . . . . . . . . . . . . 73
10.10 Waiver of Jury Trial . . . . . . . . . . . . . . . 74
10.11 Governing Law . . . . . . . . . . . . . . . . . . . 74
10.12 Execution in Counterparts . . . . . . . . . . . . . . 75
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Pending Actions
EXHIBITS
Exhibit 1.01A - Form of Letter of Credit
Exhibit 1.01B - Form of Participation Assignment
Exhibit 1.01C - Form of Pledge Amendment
Exhibit 5.01A - Form of Opinion of Jeffrey C. Miller, Assistant
General Counsel to NUSCO
Exhibit 5.01B - Form of Opinion of King & Spalding,
special New York counsel to the Agent and the
Issuing Bank
LETTER OF CREDIT AND
REIMBURSEMENT AGREEMENT
Dated as of August 1, 1994
THIS LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT (this
"Agreement") is made by and among:
(i) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation
duly organized and validly existing under the laws of the State of
Connecticut (the "Account Party");
(ii) DEUTSCHE BANK AG, NEW YORK BRANCH ("Deutsche Bank"),
as issuer of the Letter of Credit (the "Issuing Bank");
(iii) The Participating Banks (as hereinafter defined)
from time to time party hereto; and
(iv) Deutsche Bank as agent (together with any successor
agent hereunder, the "Agent") for such Participating Banks and the Issuing
Bank.
PRELIMINARY STATEMENT
Business Finance Authority (formerly The Industrial
Development Authority) of the State of New Hampshire (the "Issuer") has
previously issued, pursuant to an Indenture of Trust, dated as of December 1,
1986 (as supplemented or amended from time to time with the written consent
of the Issuing Bank, the "Indenture"), made to BayBank Middlesex, as trustee
(such entity, or its successor as trustee, being the "Trustee"), $15,400,000
aggregate principal amount of its Pollution Control Revenue Par Value Demand
Bonds (The Connecticut Light and Power Company Project) Series 1986 (the
"Bonds"). Pursuant to the Indenture and the Financing Agreement, dated as of
December 1, 1986, between the Issuer and the Account Party (the "Loan
Agreement"), the Account Party has requested the Issuing Bank to issue its
irrevocable letter of credit in favor of the Trustee, in substantially the
form of Exhibit 1.01A hereto (such letter of credit, as it may from time to
time be extended or modified pursuant to the terms of this Agreement, being
the "Letter of Credit"), in the amount of $16,200,000 (the "Letter of Credit
Amount"), of which (i) $15,400,000 shall support the payment of principal of
the Bonds (or the portion of the purchase or redemption price of the Bonds
corresponding to principal) and (ii) $800,000 shall support the payment of up
to 123 days' interest on the principal amount of the Bonds (or the portion of
the purchase or redemption price of the Bonds corresponding to interest),
computed at a maximum interest rate of 15% per annum on the basis of the
actual days elapsed and a year of 365 or 366 days (as applicable). The
Issuing Bank has agreed to issue the Letter of Credit subject to the terms
and conditions set forth herein (including the terms and conditions relating
to the rights and obligations of the Participating Banks).
NOW, THEREFORE, in consideration of the premises and in
order to induce the Issuing Bank to issue the Letter of Credit and the
Participating Banks to participate in the Letter of Credit and make advances
hereunder, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. In addition to the
terms defined in the Preliminary Statement hereto, 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):
"Advances" means Initial Advances and Term Advances, without
differentiation; individually, an "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.
"Alternate Base Rate" means, for any Interest Period or any
other period, a fluctuating interest rate per annum equal at all times to the
highest from time to time of:
(a) the rate of interest announced publicly by Deutsche
Bank in New York, New York, from time to time, as Deutsche Bank's prime rate;
and
(b) 1/2 of one percent per annum above the Federal Funds
Rate from time to time.
Each change in the Alternate Base Rate shall take effect
concurrently with any change in such prime rate or Federal Funds Rate, as the
case may be.
"Applicable Lending Office" means, with respect to each
Participating Bank, (i)(A) such Participating Bank's Domestic Lending
Office in the case of a Base Rate Advance and (B) such Participating Bank's
Eurodollar Lending Office in the case of a Eurodollar Rate Advance, in each
case as specified opposite such Participating Bank's name on Schedule I
hereto (in the case of a Participating Bank initially party to this
Agreement) or in the Participation Assignment pursuant to which such
Participating Bank became a Participating Bank (in the case of any other
Participating Bank), or (ii) such other office or affiliate of such
Participating Bank as such Participating Bank may from time to time specify
to the Account Party and the Agent.
"Available Amount" in effect at any time means the maximum
aggregate amount available to be drawn at such time under the Letter of
Credit, the determination of such maximum amount to assume compliance with
all conditions for drawing and no reduction for (i) any amount drawn by the
Trustee to make a regularly scheduled payment of interest on the Bonds
(unless such amount will not be reinstated under the Letter of Credit) or
(ii) any amount not available to be drawn because Bonds are held by or for
the account of the Account Party and/or in pledge for the benefit of the
Issuing Bank.
"Base Rate Advance" means an Advance in respect of which the
Account Party has selected in accordance with Article III hereof, or this
Agreement otherwise provides for, interest to be computed on the basis of the
Alternate Base Rate.
"Bonds" has the meaning assigned to that term in the
Preliminary Statement.
"Business Day" means any day, except a Saturday, Sunday or
other day on which commercial banks located in the City of New York are
required by law, regulation or executive order to close or on which such
banks are generally voluntarily closed for business in such location, and on
which the New York Stock Exchange is open.
"CL&P Indenture" has the meaning assigned to that term in
Section 7.02(a)(i)(A) hereof.
"Closing Date" means the Business Day upon which each of the
conditions precedent enumerated in Sections 5.01 and 5.02 hereof shall be
fulfilled to the satisfaction of the Agent, the Issuing Bank, the
Participating Banks and the Account Party. All transactions contemplated to
occur on the Closing Date shall occur contemporaneously on or prior to
September 30, 1994, at the offices of King & Spalding, 120 West 45th Street,
New York, New York 10036, at 10:00 A.M. (New York City time), or at such
other place and time as the parties hereto may mutually agree.
"Collateral" means all of the collateral in which liens,
mortgages or security interests are purported to be granted by any or all of
the Security Documents.
"Commitment" means, for each Participating Bank, such
Participating Bank's Participation Percentage of the Available Amount.
"Commitments" shall refer to the aggregate of the Commitments.
"Confidential Information" has the meaning assigned to that
term in Section 10.09 hereof.
"Consolidated Capitalization" means, for any period, the
aggregate of all amounts that would, in accordance with generally accepted
accounting principles and consistent with those applied in the preparation of
the Account Party's consolidated financial statements included in its Annual
Report on Form 10-K for the year ended December 31, 1993, appear on the
Account Party's consolidated balance sheet as the sum of (i) the total
principal amount of all long-term Debt of the Account Party and its
Subsidiaries (excluding, however, Debt not to exceed $400,000,000 existing
under any nuclear fuel financing so long as the proceeds of such Debt are
used solely to finance the purchase and carrying of nuclear fuel and so long
as the appropriate regulatory authorities have not taken any action which
would not allow the costs with respect to such financing to be recovered
through the rate making process), (ii) the aggregate of the par value of, or
stated capital represented by, the outstanding shares of all classes of
common and preferred shares of the Account Party and its Subsidiaries,
(iii) the consolidated surplus of the Account Party and its Subsidiaries,
paid-in, earned and other, if any, and (iv) the excess, if any, of (A) the
aggregate unpaid principal amount of all short-term Debt of the Account Party
and its Subsidiaries over (B) 10% of the sum of clauses (i), (ii) and (iii)
above.
"Consolidated Common Equity" means, for any period, an
amount equal to the sum of the aggregate of the par value of, or stated
capital represented by, the outstanding common shares of the Account Party
and its Subsidiaries and the surplus, paid-in, earned and other, if any, of
the Account Party and its Subsidiaries as determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Conversion", "Convert" or "Converted" each refers to a
conversion of Term Advances pursuant to Section 3.04 hereof, including, but
not limited to any selection of a longer or shorter Interest Period to be
applicable to such Term Advances or any conversion of a Term Advance as
described in Section 3.04(c) hereof.
"Credit Termination Date" means the date on which the Letter
of Credit shall terminate in accordance with its terms.
"Debt" means, for any Person, without duplication,
(i) indebtedness of such Person for borrowed money, including but not limited
to obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (ii) obligations of such Person to pay the deferred
purchase price of property or services (excluding any obligation of such
Person to the United States Department of Energy or its successor with
respect to disposition of spent nuclear fuel burned prior to April 3, 1983),
(iii) obligations of such Person as lessee under leases which shall have been
or should be, in accordance with generally accepted accounting principles,
recorded as capital leases, (iv) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds referred to
in clauses (i) through (iii), above, and (v) liabilities in respect of
unfunded vested benefits under ERISA Plans.
"Default Rate" means a fluctuating interest rate equal at
all times to 2% per annum above the Alternate Base Rate in effect from time
to time.
"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 the Account Party 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 an
ERISA Multiemployer Plan) maintained for employees of the Account Party or
any ERISA Affiliate and covered by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued thereunder
(other than a Reportable Event not subject to the provision for 30-day notice
to the PBGC under such regulations) with respect to an ERISA Plan or an ERISA
Multiemployer Plan, or (ii) the withdrawal of the Account Party or any of its
ERISA Affiliates from an ERISA Plan or an ERISA Multiemployer Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (iii) the filing of a notice of intent to terminate
an ERISA Plan or an ERISA Multiemployer Plan or the treatment of an ERISA
Plan or an ERISA Multiemployer Plan under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any ERISA Plan or ERISA
Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Rate" means for any Interest Period for any
Eurodollar Rate Advances comprising part of the same Term Borrowing, an
interest rate per annum equal at all times during such Interest Period to the
sum of:
(i) the rate per annum (rounded upward to the nearest
whole multiple of 1/100 of 1% per annum, if such rate is not such a multiple)
determined by the Agent at which deposits in United States dollars in amounts
comparable to the Eurodollar Rate Advance of Deutsche Bank comprising part of
such Term Borrowing and for comparable periods as such Interest Period are
offered by the principal office of Deutsche Bank 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, plus
(ii) 0.625% per annum.
"Eurodollar Rate Advance" means an Advance in respect of
which the Account Party has selected in accordance with Article III hereof,
and this Agreement provides for, interest to be computed on the basis of the
Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Participating Bank
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 Participating Bank 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 assigned to that term in
Section 8.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published on the next succeeding Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by it.
"FERC" means the Federal Energy Regulatory Commission.
"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 and the Connecticut Department of
Public Utility Control), required in connection with either (i) the
execution, delivery or performance of any Loan Document or Related Document
or the grant and perfection of any lien or security interest contemplated by
the Security Documents or (ii) the nature of the Account Party's or any
Principal Subsidiary's business as conducted or the nature of the property
owned or leased by it.
"Hazardous Substance" means any waste, substance or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau or instrumentality of the United States
of America or of the State or locality in which the same is located having or
exercising jurisdiction over such waste, substance or material.
"Indemnified Person" has the meaning assigned to that term
in Section 10.04(b) hereof.
"Indenture" has the meaning assigned to that term in the
Preliminary Statement.
"Indenture Documents" means, collectively, the Indenture and
the Loan Agreement, together with all amendments, modifications and
supplements thereto; individually, an "Indenture Document".
"Initial Advance" has the meaning assigned to that term in
Section 3.02(a) hereof.
"Initial Repayment Date" has the meaning assigned to that
term in Section 3.02(a) hereof.
"Interest Component" has the meaning assigned to that term
in the Letter of Credit.
"Interest Drawing" has the meaning assigned to that term in
the Letter of Credit.
"Interest Period" has the meaning assigned to that term in
Section 3.03(b) hereof.
"Interest Tender Drawing" has the meaning assigned to that
term in the Letter of Credit.
"Issuer" has the meaning assigned to that term in the
Preliminary Statement.
"Issuer Resolution" means the resolution adopted by the
Issuer that authorized the issuance of the Bonds, approved the terms and
provisions of the Bonds, and approved those of the documents related to the
Bonds to which the Issuer is a party.
"Letter of Credit" has the meaning assigned to that term in
the Preliminary Statement.
"Letter of Credit Amount" has the meaning assigned to that
term in the Preliminary Statement hereto.
"Lien" has the meaning assigned to that term in Section
7.02(a) hereof.
"Loan Agreement" has the meaning assigned to that term in
the Preliminary Statement.
"Loan Documents" means this Agreement and the Security
Documents.
"Majority Lenders" means on any date of determination, (i)
the Issuing Bank and (ii) Participating Banks who, collectively, on such
date, have Participation Percentages in the aggregate of at least 66-2/3%.
Determination of those Participating Banks satisfying the criteria specified
above for action by the Majority Lenders shall be made by the Agent and shall
be conclusive and binding on all parties absent manifest error.
"Moody's" means Moody's Investors Service, Inc. or any
successor thereto.
"NU" means Northeast Utilities, an unincorporated voluntary
business association organized under the laws of the Commonwealth of
Massachusetts.
"Participant" shall have the meaning assigned to that term
in Section 10.06(b) hereof.
"Participating Banks" means the Persons listed on the
signature pages hereof following the heading Participating Banks and any
other Person who becomes a party hereto pursuant to Section 10.06 hereof.
Participation Assignment" means a participation assignment
entered into pursuant to Section 10.06 hereof by any Participating Bank and
an assignee, in substantially the form of Exhibit 1.01B hereto.
Participation Percentage" means, as of any date of
determination (i) with respect to a Participating Bank initially a party
hereto, the percentage set forth opposite such Participating Bank's name on
the signature pages hereof, except as provided in clause (iii), below, (ii)
with respect to a Participating Bank that became a party hereto by operation
of Section 10.06(a) hereof, the Participation Percentage stated to be assumed
by such assignee Participating Bank in the relevant Participation Assignment,
except as provided in clause (iii), below, and (iii) with respect to any
Participating Bank described in clauses (i) and (ii), above, that assigns a
percentage of its interests in accordance with Section 10.06(a) hereof, its
Participation Percentage as reduced by the percentage so assigned.
"PBGC" means the Pension Benefit Guaranty Corporation (or
any successor entity) established under ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, estate,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Pledge Agreement" means the Pledge Agreement, dated as of
August 1, 1994, by the Account Party in favor of the Issuing Bank for the
benefit of the Agent and the Participating Banks, in substantially the form
of Exhibit 1.01C hereto, and as the same may from time to time be amended,
modified or supplemented.
"Pledged Bonds" shall have the meaning assigned to that term
in the Pledge Agreement.
"Principal Component" has the meaning assigned to that term
in the Letter of Credit.
"Principal Drawing" has the meaning assigned to that term in
the Letter of Credit.
"Principal Subsidiary" means a Subsidiary, whether owned
directly or indirectly by the Account Party, which, with respect to the
Account Party and its Subsidiaries taken as a whole, represents a material
portion of the Account Party's consolidated assets or consolidated net income
(or loss), (it being understood that, as of the date of this Agreement, the
Account Party has no Principal Subsidiaries).
"Principal Tender Drawing" has the meaning assigned to that
term in the Letter of Credit.
"Recipient" has the meaning assigned to that term in Section
10.09 hereto.
"Regulatory Transaction" means any merger or consolidation
of the Account Party with or into, or any purchase or acquisition by the
Account Party of the assets of (and any related assumption by the Account
Party of the liabilities of) any utility company or utility-related company,
if such transaction is undertaken pursuant to an order or request of, or
otherwise in fulfillment of the stated goals of, a utility regulatory agency
having jurisdiction over NU or any of its Subsidiaries.
Regulatory Transaction Entity" means any utility company or
utility-related company (other than the Account Party) that is the subject of
a Regulatory Transaction.
"Related Documents" means the Letter of Credit, the Bonds,
the Indenture Documents and any Remarketing Agreement.
"Remarketing Agent" has the meaning assigned to that term in
the Indenture Documents.
"Remarketing Agreement" means any remarketing agreement
between the Account Party and the Remarketing Agent as shall be in effect
from time to time in accordance with the terms of the Indenture Documents.
"S&P" means Standard and Poor's Corporation or any successor
thereto.
"Security Documents" means the Pledge Agreement and the
Indenture Documents.
"Stated Termination Date" means the expiration date
specified in clause (i) of Paragraph 2 of the Letter of Credit, as such date
may be extended pursuant to Section 2.05 hereof.
"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.
"Tender Drawing" has the meaning assigned to that term in
the Letter of Credit.
"Term Advance" has the meaning assigned to that term in
Section 3.02(b) hereof, and refers to a Base Rate Advance or a Eurodollar
Rate Advance (each of which shall be a "Type" of Term Advance). The Type of
a Term Advance may change from time to time when such Term Advance is
Converted. For purposes of this Agreement, all Term Advances of a
Participating Bank (or portions thereof) made as, or Converted to, the same
Type and Interest Period on the same day shall be deemed a single Term
Advance by such Participating Bank until repaid or next Converted.
"Term Borrowing" means a borrowing consisting of Term
Advances of the same Type and Interest Period made on the same day by the
Participating Banks, ratably in accordance with their respective
Participation Percentages. A Term Borrowing may be referred to herein as
being a "Type" of Term Borrowing, corresponding to the Type of Term Advances
comprising such Term Borrowing. For purposes of this Agreement, all Term
Advances made as, or Converted to, the same Type and Interest Period on the
same day shall be deemed a single Term Borrowing until repaid or next
Converted.
"Termination Date" means the Credit Termination Date or the
earlier date of termination of the Commitments pursuant to Sections 2.02 or
8.02 hereunder.
"Trustee" has the meaning assigned to that term in the
Preliminary Statement hereto.
"Type" has the meaning assigned to such term in the
definitions of "Term Advance" and "Term Borrowing" herein.
"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.
SECTION 1.02. Computation of Time Periods. In the
computation of periods of time under this Agreement any period of a specified
number of days or months shall be computed by including the first day or
month occurring during such period and excluding the last such day or month.
In the case of a period of time "from" a specified date "to" or "until" a
later specified date, the word "from" means "from and including" and the
words "to" and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms. 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 Account Party's consolidated
financial statements included in its Annual Report on Form 10-K for the year
ended December 31, 1992.
SECTION 1.04 Computations of Outstandings. Whenever
reference is made in this Agreement to the principal amount outstanding on
any date under this Agreement, such reference shall refer to the sum of (i)
the Available Amount on such date, (ii) the aggregate principal amount of all
Advances outstanding on such date and (iii) the aggregate amount of all
demand loans under Section 3.01 hereunder on such date, in each case after
giving effect to all transactions to be made on such date and the application
of the proceeds thereof.
ARTICLE II
THE LETTER OF CREDIT
SECTION 2.01. The Letter of Credit. The Issuing Bank
agrees, on the terms and conditions hereinafter set forth (including, without
limitation, the applicable conditions precedent set forth in Article V
hereof), to issue the Letter of Credit to the Trustee, upon not less than
three Business Days prior notice from the Account Party, on the Closing Date.
SECTION 2.02. Termination of the Commitments. The
obligation of the Issuing Bank to issue the Letter of Credit shall
automatically terminate if not issued on or before 5:00 P.M. (New York City
time) on September 30, 1994.
SECTION 2.03. Commissions and Fees. (a) The Account Party
hereby agrees to pay to the Agent, for the account of the Participating Banks
ratably in accordance with their respective Participation Percentages, a
letter of credit commission on the Available Amount in effect from time to
time from the date of issuance of the Letter of Credit until the Termination
Date (disregarding for such purpose any temporary diminution thereof arising
from drawings under the Letter of Credit to pay interest (or purchase price
corresponding to interest) on the Bonds, regardless of whether the amount so
drawn shall be thereafter reinstated), at a rate equal to 0.28% per annum,
payable quarterly in arrears on the first day of March, June, September and
December in each year, commencing on the first such date to occur following
the date of issuance of the Letter of Credit, and on the Credit Termination
Date.
(b) The Account Party also agrees to pay to the Agent, for
the account of the Agent and the Issuing Bank, such other fees as may be
agreed upon from time to time by the Account Party and the Agent and the
Issuing Bank.
SECTION 2.04. Reinstatement of the Letter of Credit. (a)
The Interest Component and the Principal Component shall, from time to time,
be reinstated by the Issuing Bank in accordance with, but only to the extent
provided in, the Letter of Credit.
(b) Interest Drawings. With respect to reinstatement of
reductions in the Interest Component resulting from Interest Drawings:
(i) The Issuing Bank may only deliver to the Trustee any
notice of non-reinstatement pursuant to Paragraph 6 of the Letter of Credit
if (A) the Issuing Bank and/or the Participating Banks have not been
reimbursed in full by the Account Party for one or more Interest Drawings,
together with interest, if any, owing thereon pursuant to this Agreement, or
(B) an Event of Default has occurred and is then continuing.
(ii) If, subsequent to any such delivery of a notice of
non-reinstatement, the circumstances giving rise to the delivery of such
notice of non-reinstatement shall have ceased to exist (whether as a result
of reimbursement of unreimbursed drawings, or waiver or cure of an Event of
Default, or otherwise), then, provided that no other Event of Default shall
have occurred and be continuing, the Issuing Bank shall deliver to the
Trustee, by hand delivery or facsimile transmission, a notice of
reinstatement reinstating that portion of the Interest Component in respect
of
which such notice of non-reinstatement was given.
(c) Tender Drawings. With respect to reinstatement of a
reduction in the Interest Component or Principal Component resulting from any
Tender Drawing, IF:
(i) the Issuing Bank and/or the Participating Banks shall
have been reimbursed by the Account Party for such Tender Drawing;
(ii) any demand loan(s) and Advance(s) made in respect of
such Tender Drawing shall have been repaid by the Account Party, together
with any interest thereon and any other amounts payable hereunder in
connection therewith; AND
(iii) no Event of Default shall have occurred and then be
continuing;
THEN, the Issuing Bank shall deliver to the Trustee, by hand delivery or
facsimile transmission, a notice of reinstatement reinstating the Interest
Component or Principal Component, as applicable to the extent of such Tender
Drawing.
SECTION 2.05. Extension of the Stated Termination Date.
Unless the Letter of Credit shall have previously expired in accordance with
its terms, at least 60 days but not more than 90 days before each anniversary
date of this Agreement, the Account Party may, by notice to the Agent (any
such notice being irrevocable), request the Issuing Bank and the
Participating Banks to extend the Stated Termination Date of the Letter of
Credit for a period of one year. If the Account Party shall make such
request, the Agent shall promptly inform the Issuing Bank and the
Participating Banks and, no later than 15 days prior to such anniversary
date, the Agent shall notify the Account Party in writing (with a copy of
such notice to the Trustee) if the Issuing Bank and all of the Participating
Banks consent to such request and the conditions of such consent (including
conditions relating to legal documentation). If such consent is granted, the
Stated Termination Date as theretofore in effect shall be extended for one
year, such extension to take effect on such anniversary date. The granting
of any such consent shall be in the sole and absolute discretion of the
Issuing Bank and all of the Participating Banks, and if the Agent shall not
so notify the Account Party, such lack of notification shall be deemed to be
a determination not to consent to such request.
ARTICLE III
REIMBURSEMENT AND ADVANCES
SECTION 3.01. Reimbursement on Demand. Subject to the
provisions of Section 3.02 hereof, the Account Party hereby agrees to pay
(whether with the proceeds of Initial Advances made pursuant to this
Agreement or otherwise) to the Issuing Bank on demand (d) on and after each
date on which the Issuing Bank shall pay any amount under the Letter of
Credit pursuant to any draft, but only after so paid by the Issuing Bank, a
sum equal to such amount so paid (which sum shall constitute a demand loan
from the Issuing Bank to the Account Party from the date of such payment by
the Issuing Bank until so paid by the Account Party), plus (e) interest on
any amount remaining unpaid by the Account Party to the Issuing Bank under
clause (a), above, from the date such amount becomes payable on demand until
payment in full, at the Default Rate in effect from time to time. No
reinstatement of the Interest Component or the Principal Component despite
the failure by the Account Party to reimburse the Issuing Bank for any
previous drawing to pay interest on the Bonds shall limit or impair the
Account Party's obligations under this Section 3.01.
SECTION 3.02. Advances. Each Participating Bank agrees to
make Initial Advances and Term Advances for the account of the Account Party
from time to time upon the terms and subject to the conditions set forth in
this Agreement.
(a) Initial Advances; Repayment of Initial Advances. If
the Issuing Bank shall honor any Principal Tender Drawing and if the
conditions precedent set forth in Section 5.03 of this Agreement have been
satisfied as of the date of such honor, then, each Participating Bank's
payment made to the Issuing Bank pursuant to Section 3.07 hereof in respect
of such Principal Tender Drawing shall be deemed to constitute an advance
made for the account of the Account Party by such Participating Bank (each
such advance being an "Initial Advance" made by such Participating Bank).
Each Initial Advance shall be made as a Base Rate Advance, shall bear
interest at the Alternate Base Rate and shall not be entitled to be
Converted. Subject to Article VIII of this Agreement, each Initial Advance
and all interest thereon shall be due and payable on the earlier to occur of
(i) the date 30 days from the date of such Initial Advance (such repayment
date being the "Initial Repayment Date" for such Initial Advance) and
(ii) the Termination Date. The Account Party may repay the principal amount
of any Initial Advance with (and to the extent of) the proceeds of a Term
Advance made pursuant to subsection (b), below, and may prepay Initial
Advances in accordance with Section 3.06 hereof.
(b) Term Advances; Repayment. Subject to the satisfaction
of the conditions precedent set forth in Section 5.04 hereof and the other
conditions of this subsection (b), each Participating Bank agrees to make one
or more advances for the account of the Account Party ("Term Advances") on
each Initial Repayment Date in an aggregate principal amount equal to the
amount of such Participating Bank's Initial Advances maturing on such Initial
Repayment Date. All Term Advances comprising a single Term Borrowing shall
be made upon written notice given by the Account Party to the Agent not later
than 11:00 A.M. (New York City time) (A) in the case of a Term Borrowing
comprised of Base Rate Advances, on the Business Day of such proposed Term
Borrowing and (B) in the case of a Term Borrowing comprised of Eurodollar
Rate Advances, three Business Days prior to the date of such proposed Term
Borrowing. The Agent shall notify each Participating Bank of the contents of
such notice promptly after receipt thereof. Each such notice shall specify
therein the following information: (W) the date on which such Term Borrowing
is to be made, (X) the principal amount of Term Advances comprising such Term
Borrowing, (Y) the Type of Term Borrowing and (Z) the duration of the initial
Interest Period, if applicable, proposed to apply to the Term Advances
comprising such Term Borrowing. The proceeds of each Participating Bank's
Term Advances shall be applied solely to the repayment of the Initial
Advances made by such Participating Bank and shall in no event be made
available to the Account Party. The principal amount of each Term Advance,
together with all accrued and unpaid interest thereon, shall be due and
payable on the earlier to occur of (x) the same calendar date occurring 35
months following the date upon which such Term Advance is made (or, if such
month does not have a corresponding date, on the last day of such month) and
(y) the Termination Date.
SECTION 3.03. Interest on Advances. The Account Party
shall pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full at the
applicable rate set forth below:
(a) Alternate Base Rate. Except to the extent that the
Account Party shall elect to pay interest on any Advance for any Interest
Period pursuant to paragraph (c) of this Section 3.03, the Account Party
shall pay interest on each Advance (including all Initial Advances) from the
date thereof until the date such Advance is due, at a fluctuating interest
rate per annum in effect from time to time equal to the Alternate Base Rate
in effect from time to time. The Account Party shall pay interest on each
Advance bearing interest in accordance with this subsection quarterly in
arrears on the first day of March, June, September and December in each year
and on the Termination Date or the earlier date for repayment of such Advance
(including the Initial Repayment Date therefor, in the case of an Initial
Advance).
(b) Interest Periods. Subject to the other requirements
of this Section 3.03, the Account Party may from time to time elect to have
the interest on all Term Advances comprising part of the same Term Borrowing
determined and payable for a specified period (an Interest Period for such
Term Advances) in accordance with paragraph (c) of this Section 3.03. The
first day of an Interest Period for such Term Advances shall be the date such
Advance is made or most recently Converted, which shall be a Business Day.
All Interest Periods shall end on or prior to the Stated Termination Date.
Any Interest Period for a Term Advance that would otherwise end after the
Termination Date or earlier date for the repayment of such Advance shall be
deemed to end on the Termination Date or such earlier repayment date, as the
case may be.
(c) Eurodollar Rate. Subject to the requirements of this
Section 3.03 and Article V hereof, the Account Party may from time to time
elect to have any Term Advances comprising part of the same Term Borrowing
made as, or Converted to, Eurodollar Rate Advances. The Interest Period
applicable to such Eurodollar Rate Advances shall be of one, two or three
whole months' duration, as the Account Party shall select in its notice
delivered to the Agent pursuant to Section 3.02(b) or 3.04 hereof, as
applicable. If the Account Party shall have made such election, the Account
Party shall pay interest on such Eurodollar Rate Advances at the Eurodollar
Rate, for the applicable Interest Period for such Eurodollar Rate Advances,
which interest shall be payable on the last day of such Interest Period and
on the date for repayment or prepayment for such Eurodollar Rate Advances.
Any Interest Period pertaining to Eurodollar Rate Advances that begins on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month.
(d) Interest Rate Determinations. The Agent shall give
prompt notice to the Account Party and the Participating Banks of the
Eurodollar Rate determined from time to time by the Agent to be applicable to
each Eurodollar Rate Advance.
SECTION 3.04. Conversion of Term Advances. Subject to the
satisfaction of the conditions precedent set forth in Section 5.03 hereof,
the Account Party may elect to Convert one or more Term Advances of any Type
to one or more Term Advances of the same or any other Type on the following
terms and subject to the following conditions:
(a) Each Conversion shall be made as to all Term Advances
comprising a single Term Borrowing upon written notice given by the Account
Party to the Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Conversion. The Agent
shall notify each Participating Bank of the contents of such notice promptly
after receipt thereof. Each such notice shall specify therein the following
information: (A) the date of such proposed Conversion (which in the case of
Eurodollar Rate Advances shall be the last day of the Interest Period then
applicable to such Term Advances to be Converted), (B) Type of, and Interest
Period, if any, applicable to the Term Advances proposed to be Converted,
(C) the aggregate principal amount of Term Advances proposed to be Converted,
and (D) the Type of Term Advances to which such Term Advances are proposed to
be Converted and the Interest Period, if any, to be applicable thereto.
(b) During the continuance of an Unmatured Default or an
Event of Default, the right of the Account Party to Convert Term 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 or
an Event of Default shall be continuing.
(c) If no notice of Conversion is received by the Agent as
provided in subsection (a) above with respect to any outstanding Eurodollar
Rate Advances, the Agent shall treat such absence of notice as a deemed
notice of Conversion providing for such Advances to be Converted to Base Rate
Advances on the last day of the Interest Period then in effect for such
Eurodollar Rate Advances.
SECTION 3.05. Other Terms Relating to the Making and
Conversion of Advances. (a) Notwithstanding anything in Section 3.02, 3.03
or 3.04, above, to the contrary:
(i) at no time shall more than six different Term
Borrowings be outstanding hereunder; and
(ii) each Term Borrowing consisting of Eurodollar Rate
Advances shall be in the aggregate principal amount of $5,000,000 or an
integral multiple of $100,000 in excess thereof.
(b) Each notice of borrowing pursuant to Section 3.02(b)
hereof and each notice of Conversion pursuant to Section 3.04 hereof shall be
irrevocable and binding on the Account Party.
SECTION 3.06. Prepayment of Advances. (a) The Account
Party shall have no right to prepay any principal amount of any Advances
except in accordance with subsections (b) and (c) below.
(b) The Account Party may, upon at least one Business
Day's notice to the Agent stating the proposed date and aggregate principal
amount of the prepayment and the specific Initial Advances or Term
Borrowing(s) to be prepaid, and if such notice is given, the Account Party
shall, prepay, in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid and any amounts
due pursuant to Section 4.03, the outstanding principal amount of (i) all
Initial Advances made on the same date or (ii) all Term Advances comprising
the same Term Borrowing, in each case as the Account Party shall designate in
such notice; provided, however, that each partial prepayment shall be in an
aggregate principal amount not less than $5,000,000, or, if less, the
aggregate principal amount of all Advances then outstanding.
(c) Prior to or simultaneously with the resale of all of
the Bonds purchased with the proceeds of a Principal Tender Drawing, the
Account Party shall prepay, or cause to be prepaid, in full, the then
outstanding principal amount of all Initial Advances and of all Term Advances
comprising the same Term Borrowing(s) arising pursuant to such Principal
Tender Drawing, together with all interest thereon to the date of such
prepayment. If less than all of such Bonds are resold, then prior to or
simultaneously with such resale the Account Party shall prepay or cause to be
prepaid that portion of such Advances, together with all interest thereon to
the date of such prepayment, equal to the then outstanding principal amount
thereof multiplied by a fraction, the numerator of which shall be the
principal amount of the Bonds resold and the denominator of which shall be
the principal amount of all of the Bonds purchased with the proceeds of the
relevant Principal Tender Drawing.
SECTION 3.07. Participation; Reimbursement of Issuing Bank.
(a) The Issuing Bank hereby sells and transfers to each
Participating Bank, and each Participating Bank hereby acquires from the
Issuing Bank, an undivided interest and participation to the extent of such
Participating Bank's Participation Percentage in and to (iii) the Letter of
Credit, including the obligations of the Issuing Bank under and in respect
thereof and the Account Party's reimbursement and other obligations in
respect thereof and (iv) each demand loan or deemed demand loan made by the
Issuing Bank, whether now existing or hereafter arising.
(b) If the Issuing Bank (i) shall not have been reimbursed
in full for any payment made by the Issuing Bank under the Letter of Credit
on the date of such payment or (ii) shall make any demand loan to the Account
Party, the Issuing Bank shall promptly notify the Agent and the Agent shall
promptly notify each Participating Bank of such non-reimbursement or demand
loan and the amount thereof. Upon receipt of such notice from the Agent,
each Participating Bank shall pay to the Issuing Bank, directly, an amount
equal to such Participating Bank's ratable portion (according to such
Participating Bank's Participation Percentage) of such unreimbursed amount or
demand loan paid or made by the Issuing Bank, plus interest on such amount at
a rate per annum equal to the Federal Funds Rate from the date of such
payment by the Issuing Bank to the date of payment to the Issuing Bank by
such Participating Bank. All such payments by each Participating Bank shall
be made in United States dollars and in same day funds:
(x) not later than 2:45 P.M. (New York City time) on the
day such notice is received by such Participating Bank if such notice is
received at or prior to 12:30 P.M. (New York City time) on a Business Day; or
(y) not later than 12:00 Noon (New York City time) on the
Business Day next succeeding the day such notice is received by such
Participating Bank, if such notice is received after 12:30 P.M. (New York
City time) on a Business Day.
If a Participating Bank shall have paid to the Issuing Bank its ratable
portion of any unreimbursed amount or demand loan paid or made by the Issuing
Bank, together with all interest thereon required by the second sentence of
this subsection (b), such Participating Bank shall be entitled to receive its
ratable share of all interest paid by the Account Party in respect of such
unreimbursed amount or demand loan from the date paid or made by the Issuing
Bank. If such Participating Bank shall have made such payment to the Issuing
Bank, but without all such interest thereon required by the second sentence
of this subsection (b), such Participating Bank shall be entitled to receive
its ratable share of the interest paid by the Account Party in respect of
such unreimbursed amount or demand loan only from the date it shall have paid
all interest required by the second sentence of this subsection (b).
(c) Each Participating Bank's obligation to make each
payment to the Issuing Bank, and the Issuing Bank's right to receive the
same, shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the foregoing or
Section 4.06 hereof, or the occurrence or continuance of an Event of Default,
or the non-satisfaction of any condition precedent set forth in Sections 5.03
or 5.04 hereof, or the failure of any other Participating Bank to make any
payment under this Section 3.07. Each Participating Bank further agrees that
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(d) The failure of any Participating Bank to make any
payment to the Issuing Bank in accordance with subsection (b) above, shall
not relieve any other Participating Bank of its obligation to make payment,
but neither the Issuing Bank nor any Participating Bank shall be responsible
for the failure of any other Participating Bank to make such payment. If any
Participating Bank shall fail to make any payment to the Issuing Bank in
accordance with subsection (b) above, then such Participating Bank shall pay
to the Issuing Bank forthwith on demand such corresponding amount together
with interest thereon, for each day until the date such amount is repaid to
the Issuing Bank at 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 Participating Bank.
(e) If any Participating Bank shall fail to make any
payment to the Issuing Bank in accordance with subsection (b) above, then, in
addition to other rights and remedies which the Issuing Bank may have, the
Agent is hereby authorized, at the request of the Issuing Bank, to withhold
and to apply to the payment of such amounts owing by such Participating Bank
to the Issuing Bank and any related interest, that portion of any payment
received by the Agent that would otherwise be payable to such Participating
Bank. In furtherance of the foregoing, if any Participating Bank shall fail
to make any payment to the Issuing Bank in accordance with subsection (b),
above, and such failure shall continue for five Business Days following
written notice of such failure from the Issuing Bank to such Participating
Bank, the Issuing Bank may acquire, or transfer to a third party in exchange
for the sum or sums due from such Participating Bank, such Participating
Bank's interest in the related unreimbursed amounts and demand loans and all
other rights of such Participating Bank hereunder in respect thereof,
without, however, relieving such Participating Bank from any liability for
damages, costs and expenses suffered by the Issuing Bank as a result of such
failure. The purchaser of any such interest shall be deemed to have acquired
an interest senior to the interest of such Participating Bank and shall be
entitled to receive all subsequent payments which the Issuing Bank or the
Agent would otherwise have made hereunder to such Participating Bank in
respect of such interest.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations. (a) The Account
Party shall make each payment hereunder (i) in the case of reimbursement
obligations pursuant to Section 3.01 hereof (excluding any portion thereof in
respect of which an Initial Advance is to be made), not later than 2:30 P.M.
(New York City time) on the day the related drawing under the Letter of
Credit is paid by the Issuing Bank, and (ii) in all other cases, not later
than 12:30 P.M. (New York City time) on the day when due, in each case in
lawful money of the United States of America to the Agent at its address
referred to in Section 10.02 hereof in immediately available funds. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of reimbursements, principal, interest, fees or other amounts
payable to the Issuing Bank and the Participating Banks to whom the same are
payable, ratably and without offset or counterclaim except as provided in
Section 3.07, at its address set forth in Section 10.02 hereof (in the case
of the Issuing Bank) or for the account of their respective Applicable
Lending Offices (in the case of the Participating Banks), in each case to be
applied in accordance with the terms of this Agreement.
(b) The Account Party hereby authorizes the Issuing Bank,
and each Participating Bank, if and to the extent payment owed to the Issuing
Bank, or such Participating Bank, as the case may be, is not made when due
hereunder, to charge from time to time against any or all of the Account
Party's accounts with the Issuing Bank or such Participating Bank, as the
case may be, any amount so due.
(c) All computations of interest based on the Alternate
Base Rate when based on Deutsche Bank's prime rate referred to in the
definition of "Alternate Base Rate" shall be made by the Agent on the basis
of a year of 365 or 366 days, as the case may be. All other computations of
interest hereunder (including computations of interest based on the
Eurodollar Rate and the Federal Funds Rate (including the Alternate Base Rate
if and so long as such Rate is based on the Federal Funds Rate)), and of all
fees, commissions and other amounts payable hereunder shall be made by the
Agent or the party claiming such other amounts, as the case may be, 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,
commissions or other amounts are payable. Each such determination by the
Agent or a Participating Bank, as the case may be, shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder 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, commissions 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 Agent shall have received notice from the
Account Party prior to the date on which any payment is due to the Issuing
Bank or the Participating Banks hereunder that the Account Party will not
make such payment in full, the Agent may assume that the Account Party has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to the Issuing Bank
and/or each Participating Bank on such due date an amount equal to the amount
then due the Issuing Bank and/or such Participating Bank. If and to the
extent the Account Party shall not have so made such payment in full to the
Agent, the Issuing Bank and/or each such Participating Bank shall repay to
the Agent forthwith on demand such amount distributed to the Issuing Bank
and/or such Participating Bank, together with interest thereon, for each day
from the date such amount is distributed to the Issuing Bank and/or such
Participating Bank until the date the Issuing Bank and/or such Participating
Bank repays such amount to the Agent, at the Federal Funds Rate.
(f) If, after the Agent has paid to the Issuing Bank or
any Participating Bank any amount pursuant to subsection (a) above, such
payment is rescinded or must otherwise be returned or must be paid over by
the Agent or the Issuing Bank to any Person, whether pursuant to any
bankruptcy or insolvency law, Section 4.04 hereof or otherwise, such
Participating Bank shall, at the request of the Agent or the Issuing Bank,
promptly repay to the Agent or the Issuing Bank, as the case may be, an
amount equal to its ratable share of such payment, together with any interest
required to be paid by the Agent or the Issuing Bank with respect to such
payment.
SECTION 4.02. Default Interest. Any amounts payable by the
Account Party 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 the Default Rate, payable on demand.
SECTION 4.03. Yield Protection. (a) Change in
Circumstances. Notwithstanding any other provision herein, if after the date
hereof, the adoption of or any change in applicable law or regulation or in
the interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) (i) shall change the basis of taxation of payments
to the Issuing Bank or any Participating Bank of the principal of or interest
on any Eurodollar Rate Advance made by such Participating Bank or any fees or
other amounts payable hereunder (other than changes in respect of taxes
imposed on the overall net income of the Issuing Bank or such Participating
Bank, or its Applicable Lending Office, by the jurisdiction in which the
Issuing Bank or such Participating Bank has its principal office or in which
such Applicable Lending Office is located or by any political subdivision or
taxing authority therein), or (ii) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement against letters of credit
(or participatory interests therein) issued by, commitments or assets of,
deposits with or for the account of, or credit extended by, the Issuing Bank
or such Participating Bank, or (iii) shall impose on the Issuing Bank or such
Participating Bank any other condition affecting this Agreement, the Letter
of Credit or participatory interests therein or Eurodollar Rate Advances, and
the result of any of the foregoing shall be (A) to increase the cost to the
Issuing Bank or such Participating Bank of issuing, maintaining or
participating in this Agreement or the Letter of Credit or of agreeing to
make, making or maintaining any Advance or (B) to reduce the amount of any
sum received or receivable by the Issuing Bank or such Participating Bank
hereunder (whether of principal, interest or otherwise), then the Account
Party will pay to the Issuing Bank or such Participating Bank, upon demand,
such additional amount or amounts as will compensate the Issuing Bank or such
Participating Bank for such additional costs incurred or reduction suffered.
(b) Capital. If the Issuing Bank or any Participating
Bank shall have determined that the adoption after the date hereof of any
law, rule, regulation or guideline regarding capital adequacy, or any change
therein or in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Issuing Bank
or any Participating Bank (or any Applicable Lending Office of the Issuing
Bank or such Participating Bank), or any holding company of any such entity,
with any request or directive regarding capital adequacy not in effect on the
date hereof (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect (i) of
reducing the rate of return on such entity's capital or on the capital of
such entity's holding company, if any, as a consequence of this Agreement,
the Letter of Credit or such entity's participatory interest therein, any
Commitment hereunder or the portion of the Advances made by such entity
pursuant hereto to a level below that which such entity or such entity's
holding company could have achieved, but for such applicability, adoption,
change or compliance (taking into consideration such entity's policies and
the policies of such entity's holding company with respect to capital
adequacy), or (ii) of increasing or otherwise determining the amount of
capital required or expected to be maintained by such entity or such entity's
holding company based upon the existence of this Agreement, the Letter of
Credit or such entity's participatory interest therein, any Commitment
hereunder, the portion of the Advances made by such entity pursuant hereto
and other similar such credits, participations, commitments, agreements or
assets, then from time to time the Account Party shall pay to the Issuing
Bank or such Participating Bank, upon demand, such additional amount or
amounts as will compensate such entity or such entity's holding company for
any such reduction or allocable capital cost suffered.
(d) Eurodollar Reserves. The Account Party shall pay to
each Participating Bank upon demand, so long as such Participating Bank 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 such Participating Bank's portion of each
Eurodollar Rate Advance, 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 rate described in clause (i) of
the definition of Eurodollar Rate for the Interest Period for such Advance
from (ii) the rate obtained by dividing such rate by a percentage equal to
100% minus the Eurodollar Reserve Percentage of such Participating Bank for
such Interest Period. Such additional interest shall be determined by such
Participating Bank and notified to the Account Party and the Issuing Bank.
(d) Breakage Indemnity. The Account Party shall indemnify
each Participating Bank against any loss, cost or reasonable expense which
such Participating Bank may sustain or incur as a consequence of (i) any
failure by the Account Party to fulfill on the date of any Advance or
Conversion hereunder the applicable conditions set forth in Articles III
and V, (ii) any failure by the Account Party to Convert any Advance hereunder
after irrevocable notice of Conversion has been given pursuant to
Section 3.04 hereof, (iii) any payment, prepayment or Conversion of a
Eurodollar Rate Advance required or permitted by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day
of the Interest Period applicable thereto, (iv) any default in payment or
prepayment of the principal amount of any Advance or any part thereof or
interest accrued thereon, as and when due and payable (at the due date
thereof, by irrevocable notice of prepayment or otherwise) or (v) the
occurrence of any Event of Default, including, in each such case, any loss or
reasonable expense sustained or incurred or to be sustained or incurred in
liquidating or employing deposits from third parties acquired to effect or
maintain such Advance or any part thereof as a Eurodollar Rate Advance. Such
loss, cost or reasonable expense shall include an amount equal to the excess,
if any, as reasonably determined by such Participating Bank, of (A) its cost
of obtaining the funds for the Advance being paid, prepaid, Converted or not
borrowed (based on the Eurodollar Rate) 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 Participating Bank) that would be realized by such Participating Bank 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 each Participating Bank shall have
funded each such Advance with a fixed-rate instrument bearing the rates and
maturities designated in the determination of the applicable interest rate
for such Advance.
(e) Notices. A certificate of the Issuing Bank or any
Participating Bank setting forth such entity's claim for compensation
hereunder and the amount necessary to compensate such entity or its holding
company pursuant to subsections (a) through (d) of this Section 4.03 shall be
submitted to the Account Party and the Issuing Bank and shall be conclusive
and binding for all purposes, absent manifest error. The Account Party shall
pay the Issuing Bank or such Participating Bank directly the amount shown as
due on any such certificate within ten days after its receipt of the same.
The failure of any entity to provide such notice or to make demand for
payment under this Section 4.03 shall not constitute a waiver of such
Participating Bank's rights hereunder; provided, that such entity shall not
be entitled to demand payment pursuant to subsections (a) through (d) of this
Section 4.03 in respect of any loss, cost, expense, reduction or reserve if
such demand is made more than one year following the later of such entity's
incurrence or sufferance thereof or such entity's actual knowledge of the
event giving rise to such entity's rights pursuant to such subsections. The
protections of this Section 4.03 shall be available to the Issuing Bank and
each Participating Bank regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition which shall have occurred or been imposed and shall
survive the Termination Date and the payment of all other amounts hereunder.
(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 Participating Bank 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 Account Party and the Issuing Bank, such Participating Bank may:
(i) declare that Eurodollar Rate Advances will not
thereafter be made by such Participating Bank hereunder, whereupon the right
of the Account Party to select Eurodollar Rate Advances for any Advance or
Conversion shall be forthwith suspended until such Participating Bank shall
withdraw such notice as provided hereinbelow or shall cease to be a
Participating Bank hereunder; 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 hereinbelow.
Upon receipt of any such notice, the Agent shall promptly notify the
Participating Banks thereof. Promptly upon becoming aware that the
circumstances that caused such Participating Bank to deliver such notice no
longer exist, such Participating Bank shall deliver notice thereof to the
Account Party and the Agent withdrawing such prior notice (but the failure to
do so shall impose no liability upon such Participating Bank). Promptly upon
receipt of such withdrawing notice from such Participating Bank, the Agent
shall deliver notice thereof to the Account Party and the Participating Banks
and such suspension shall terminate. Prior to any Participating Bank giving
notice to the Account Party under this subsection (f), such Participating
Bank 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 Participating Bank, be otherwise
disadvantageous to such Participating Bank. Any notice to the Account Party
by any Participating Bank 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 Account Party and the
Agent.
(g) Market Rate Disruptions. If, (i) the Agent determines
that an adequate basis does not exist for the determination of the Eurodollar
Rate for Eurodollar Rate Advances or (ii) if the Majority Lenders shall
notify the 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 Account Party to select
or receive or Convert into such Type of Advances shall be forthwith suspended
until the Agent shall notify the Account Party and the Participating Banks
that the circumstances causing such suspension no longer exist, and until
such notification from the Agent, each request for or Conversion into such
Type of Advance hereunder shall be deemed to be a request for or Conversion
into Base Rate Advances.
SECTION 4.04. Sharing of Payments, Etc. If any Participating
Bank 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 participations in accordance with Section
10.06 hereof to a Person that is not an Affiliate of the Account Party) 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 Participating Banks, such Participating Bank shall
forthwith purchase from the other Participating Banks such participation in
the portions of the Advances owing to them as shall be necessary to cause
such purchasing Participating Bank 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 Participating Bank, such
purchase from each Participating Bank shall be rescinded and such
Participating Bank shall repay to the purchasing Participating Bank the
purchase price to the extent of such recovery together with an amount equal
to such Participating Bank's ratable share (according to the proportion of
(i) the amount of such Participating Bank's required repayment to (ii) the
total amount so recovered from the purchasing Participating Bank) of any
interest or other amount paid or payable by the purchasing Participating Bank
in respect of the total amount so recovered. The Account Party agrees that
any Participating Bank so purchasing a participation from another
Participating Bank 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 Participating
Bank were the direct creditor of the Account Party in the amount of such
participation. Notwithstanding the foregoing, if any Participating Bank shall
obtain any such excess payment involuntarily, such Participating Bank may, in
lieu of purchasing participations from the other Participating Banks in
accordance with this Section 4.04, on the date of receipt of such excess
payment, return such excess payment to the Agent for distribution in
accordance with Section 4.01(a) hereof.
SECTION 4.05 Taxes. (a) All payments by the Account Party
hereunder 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 Participating Bank and the Issuing
Bank, taxes imposed on its overall net income, and franchise taxes imposed on
it, by the jurisdiction under the laws of which such Participating Bank or
the Issuing Bank (as the case may be) is organized or any political
subdivision thereof and, in the case of each Participating Bank, taxes
imposed on its overall net income, and franchise taxes imposed on it, by the
jurisdiction of such Participating Bank's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Account Party shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder to any Participating
Bank or the Issuing Bank, (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
Participating Bank or the Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Account Party shall make such deductions and (iii) the
Account Party shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Account Party 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 hereunder
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement (hereinafter referred to as "Other Taxes").
(c) The Account Party will indemnify each Participating
Bank and the Issuing Bank 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
Participating Bank or the Issuing Bank (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. This indemnification shall be made within 30 days from the
date such Participating Bank or the Issuing Bank (as the case may be) makes
written demand therefor. If any Taxes or Other Taxes for which a
Participating Bank or the Issuing Bank has received payments from the Account
Party hereunder shall be finally determined to have been incorrectly or
illegally asserted and are refunded to such Participating Bank, such
Participating Bank shall promptly forward to the Account Party any such
refunded amount. The Account Party's, the Issuing Bank's and each
Participating Bank's obligations under this Section 4.05 shall survive the
Termination Date and the payment of all other amounts hereunder.
(d) Within 30 days after the date of any payment of Taxes,
the Account Party will furnish to the Issuing Bank, at its address referred
to in Section 10.02 hereof, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Participating Bank not incorporated in the United
States or a jurisdiction within the United States shall, on or prior to the
date it becomes a Participating Bank hereunder, deliver to the Account Party
and the Issuing Bank such certificates, documents or other evidence, as
required by the Internal Revenue Code of 1986, as amended from time to time
(the "Code"), or treasury regulations issued pursuant thereto, including
Internal Revenue Service Form 4224 and any other certificate or statement of
exemption required by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly completed and
duly executed by such Participating Bank 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
Participating Bank shall promptly notify the Account Party and the Issuing
Bank of any change in its Applicable Lending Office and shall deliver to the
Account Party and the Issuing Bank together with such notice such
certificates, documents or other evidence referred to in the immediately
preceding sentence. Unless the Account Party and the Issuing Bank have
received forms or other documents satisfactory to them indicating that
payments hereunder 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 Account Party or the Issuing Bank shall withhold taxes from such payments
at the applicable statutory rate in the case of payments to or for any
Participating Bank organized under the laws of a jurisdiction outside the
United States of America. Each Participating Bank represents and warrants
that each such form supplied by it to the Issuing Bank and the Account Party
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 Participating Bank 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 Account Party 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
Participating Bank, be otherwise disadvantageous to such Participating Bank.
SECTION 4.06. Obligations Absolute. The obligations of the
Account Party under this Agreement shall be unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement (as
the same may be amended from time to time) under all circumstances,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this
Agreement or any of the Security Documents or Related Documents or any
document or agreement delivered in connection therewith;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the obligations of the Account Party
in respect of the Letter of Credit or any other amendment or waiver of or any
consent to departure from all or any of the Loan Documents or the Related
Documents or any document or agreement delivered in connection therewith;
(iii) the existence of any claim, set-off, defense or
other right which the Account Party may have at any time against the Trustee
(including any paying agent for the Bonds) or any other beneficiary, or any
transferee, of the Letter of Credit (or any persons or entities for whom the
Trustee, any such beneficiary or any such transferee may be acting), the
Agent, the Issuing Bank, or any other person or entity, whether in connection
with this Agreement, the transactions contemplated in any of the Loan
Documents or the Related Documents, or any unrelated transaction;
(iv) any statement or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect, except to the extent that a court of competent
jurisdiction shall determine that the Issuing Bank shall have engaged in
gross negligence or willful misconduct with respect thereto;
(v) payment by the Issuing Bank under the Letter of Credit
against presentation of a draft or certificate which does not comply with the
terms of the Letter of Credit, except to the extent that a court of competent
jurisdiction shall determine that the Issuing Bank shall have engaged in
gross negligence or willful misconduct with respect thereto;
(vi) any exchange of, release of or non-perfection of any
interest in any collateral, or any release or amendment or waiver of or
consent to departure from any guarantee, for all or any of the obligations of
the Account Party in respect of the Letter of Credit; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
SECTION 4.07. Evidence of Indebtedness. The Issuing Bank
and each Participating Bank shall maintain, in accordance with their usual
practice, an account or accounts evidencing the indebtedness of the Account
Party resulting from each drawing under the Letter of Credit (in the case of
the Issuing Bank) and from each Advance (in the case of each Participating
Bank) made from time to time hereunder and the amounts of principal and
interest payable and paid from time to time hereunder. In any legal action
or proceeding in respect of this Agreement, the entries made in such account
or accounts shall, in the absence of manifest error, be conclusive evidence
of the existence and amounts of the obligations of the Account Party therein
recorded.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to the Issuance of the
Letter of Credit. The obligation of the Issuing Bank to issue the Letter of
Credit and of each Participating Bank to make the Advances to be made by it
is subject to the fulfillment of the conditions precedent that the Agent
shall have received on or before the day of such issuance the following, each
dated such day (except where specified otherwise below), in form and
substance satisfactory to each Participating Bank (except where specified
otherwise below) and in sufficient copies for each Participating Bank:
(a) Agreements:
(i) Counterparts of this Agreement, duly executed and
delivered by the Account Party, the Agent, the Issuing Bank and each
Participating Bank listed on the signature pages hereto.
(ii) Counterparts of the Pledge Agreement, duly executed by
the Account Party, the Agent and the Issuing Bank.
(iii) Executed copies (or duplicate copies thereof
certified as of the Closing Date by the Account Party in a manner
satisfactory to the Agent to be a true copy) of the Indenture and the Loan
Agreement, duly executed by the parties thereto.
(iv) A letter of credit application in the standard form
prescribed by the Issuing Bank, duly completed and executed by the Account
Party.
(b) Corporate Matters:
(i) A certificate of the Secretary or an Assistant
Secretary of the Account Party certifying that attached thereto are (A) a
true and correct copy of the Amended and Restated Certificate of
Incorporation of the Account Party and a true and correct copy of the By-laws
of the Account Party, in each case as in effect on the Closing Date and
(B) true and correct copies of the resolutions of the Board of Directors of
the Account Party approving, if and to the extent necessary, this Agreement,
the other Loan Documents, the Related Documents to which it is a party and
the other documents to be delivered by or on behalf of the Account Party
hereunder and thereunder, and of all documents evidencing other necessary
corporate action, if any, with respect to the execution, delivery and
performance by or on behalf of the Account Party of this Agreement, the other
Loan Documents and such Related Documents and certifying that such
resolutions and other corporate actions, if any, are in full force and effect
and have not been revoked, rescinded or modified.
(ii) A certificate of the Secretary or an Assistant
Secretary of the Account Party certifying the names and true signatures of
the officers of the Account Party authorized to sign this Agreement, the
other Loan Documents, the Related Documents to which it is a party and the
other documents to be delivered hereunder and thereunder.
(c) Governmental Approvals:
(i) A certificate of a duly authorized officer of the
Account Party certifying that attached thereto are true and correct copies of
all Governmental Approvals referred to in clause (i) of the definition of
"Governmental Approval" required to be obtained or made by the Account Party.
(d) Financial, Accounting and Compliance Matters:
(i) A certificate signed by the Treasurer or Assistant
Treasurer of the Account Party, certifying as to the absence of any material
adverse change in the financial condition, operations, properties or
prospects of the Account Party since December 31, 1993, except to the extent,
if any, described in the Account Party's Quarterly Reports on Form 10-Q for
the periods ended March 31 and/or June 30, 1994.
(ii) A certificate of a duly authorized officer of the
Account Party to the effect that:
(A) the representations and warranties contained in
Section 6.01 are correct in all material respects on and as of the Closing
Date before and after giving effect to the issuance of the Letter of Credit;
and
(B) no event has occurred and is continuing which
constitutes an Event of Default or Unmatured Default, or would result from
the issuance of the Letter of Credit.
(e) Relating to the Issuance of the Bonds:
(i) An executed copy (or a duplicate copy thereof
certified by the Account Party in a manner satisfactory to the Agent to be a
true copy) of the Remarketing Agreement, duly executed by the Issuer, the
Remarketing Agent and the Account Party.
(ii) Copies of the Official Statement used in connection
with the offering and remarketing of the Bonds, and any amendments,
supplements or "stickers" thereto (and if such items shall not be available
on the Closing Date, the Account Party covenants and agrees to deliver the
same to the Agent when such items first become available).
(iii) Copies of the Issuer Resolution, and, to the extent
not otherwise referenced in this Section 5.01(e), of all other opinions
originally delivered in connection with the issuance of the Bonds.
(f) Opinions of Counsel:
Favorable opinions of:
(i) Jeffrey C. Miller, Assistant General Counsel of
[Northeast Utilities Service Company and counsel to] the Account Party, in
substantially the form of Exhibit 5.01A and as to such other matters as the
Majority Lenders, through the Agent, may reasonably request; and
(ii) King & Spalding, special New York counsel to the Agent
and the Issuing Bank, in substantially the form of Exhibit 5.01B.
(g) Miscellaneous:
(i) Such other approvals, opinions and documents as the
Majority Lenders, through the Issuing Bank, may reasonably request as to the
legality, validity, binding effect or enforceability of the Loan Documents or
the financial condition, properties, operations or prospects of the Account
Party.
SECTION 5.02. Additional Conditions Precedent to the
Issuance of the Letter of Credit. The obligation of the Issuing Bank to
issue the Letter of Credit and of each Participating Bank to make the
Advances to be made by it shall be subject to the further conditions
precedent that, on the date of the issuance of the Letter of Credit:
(a) the representations and warranties contained in
Section 6.01 shall be correct in all material respects on and as of the
Closing Date before and after giving effect to the issuance of the Letter of
Credit;
(b) no event shall have occurred and be continuing which
constitutes an Event of Default or Unmatured Default, or would result from
the issuance of the Letter of Credit; and
(c) The Account Party shall have paid all fees under or
referenced in Section 2.03 hereof, to the extent then due and payable.
SECTION 5.03. Conditions Precedent to Initial Advances and
Conversions of Advances. The obligation of each Participating Bank to make
any Initial Advance or to Convert any Term Advance shall be subject to the
conditions precedent that, on the date of such Initial Advance or Conversion,
the following statements shall be true:
(a) the representations and warranties contained in
Section 6.01 of this Agreement (other than the last sentence of subsection
(f) and clause (ii) of subsection (g) thereof) are true and correct on and as
of the date of such Initial Advance or Conversion, before and after giving
effect to such Initial Advance or Conversion and to the application of the
proceeds (if any) therefrom, as though made on and as of such date; and
(b) no event has occurred and is continuing which
constitutes an Event of Default.
Unless the Account Party shall have previously advised the
Agent in writing that one or more of the statements contained in subsections
(a) and (b) of this Section 5.03 is no longer true, the Account Party shall
be deemed to have represented and warranted, on and as of the date of any
Initial Advance or Conversion, that the above statements are true.
SECTION 5.04. Conditions Precedent to Term Advances. The
obligation of each Participating Bank to make any Term Advance shall be
subject to the conditions precedent that, on the date of such Term Advance
the following statements shall be true:
(a) the representations and warranties contained in
Section 6.01 of this Agreement (including the last sentence of subsection (f)
and clause (ii) of subsection (g) thereof) are true and correct on and as of
the date of such Term Advance, before and after giving effect to such Term
Advance and to the application of the proceeds therefrom, as though made on
and as of such date; and
(b) no event has occurred and is continuing which
constitutes an Event of Default or an Unmatured Default.
Unless the Account Party shall have previously advised the
Agent in writing that one or more of the statements contained in subsections
(a) and (b) of this Section 5.04 is no longer true, the Account Party shall
be deemed to have represented and warranted, on and as of the date of any
Term Advance, that the above statements are true.
SECTION 5.05 Reliance on Certificates. The Agent, the
Issuing Bank and the Participating Banks shall be entitled to rely
conclusively upon the certificates delivered from time to time by officers of
the Account Party, NU and the other parties to the Loan Documents and Related
Documents as to the names, incumbency, authority and signatures of the
respective persons named therein until such time as the Agent may receive a
replacement certificate, in form acceptable to the Agent, from an officer of
such Person identified to the Agent as having authority to deliver such
certificate, setting forth the names and true signatures of the officers and
other representatives of such Person thereafter authorized to act on behalf
of such Person.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Account Party. The
Account Party represents and warrants as follows:
(a) Each of the Account Party and its Principal
Subsidiaries 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 the Account Party or of the Account Party and its
Principal Subsidiaries taken as a whole. The Account Party has the corporate
power to execute, deliver and perform its obligations under this Agreement,
each other Loan Document and each Related Document to which it will be a
party.
(b) The execution, delivery and performance by the Account
Party of each Loan Document and Related Document to which it is a party are
within the Account Party's corporate powers, have been duly authorized by all
necessary corporate action, and do not and will not contravene (i) the
Account Party's charter or by-laws or any law or legal restriction or (ii)
any contractual restriction binding on or affecting the Account Party or its
properties or any of its Principal Subsidiaries or its properties.
(c) Each of the Account Party and its Principal
Subsidiaries is not in violation of any law, or in default with respect to
any judgment, writ, injunction, decree, rule or regulation of any court or
governmental agency or instrumentality, where such violation or default would
have a material adverse effect on the financial condition, properties,
prospects or operations of the Account Party or of the Account Party and its
Principal Subsidiaries taken as a whole.
(d) All Governmental Approvals referred to in clause (i)
in the definition of "Governmental Approvals" have been duly obtained or
made, and all applicable periods of time for review, rehearing or appeal with
respect thereto have expired, except as described below. 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 the Account Party has no reason to believe that any of
such transactions constitutes any such violation. If the period for appeal
of the decision of the Connecticut Department of Public Utility Control (the
"CDPUC") approving the transactions contemplated hereby has not expired, the
filing of an appeal of such decision will not affect the validity of said
transactions, unless operation of such decision has been stayed or suspended
by the CDPUC or a reviewing court prior to the consummation of such
transactions. No such stay or suspension exists. No representation or
warranty is made concerning the applicable period of time for review,
rehearing or appeal with respect to Governmental Approvals of the Issuer in
connection with the issuance of the Bonds. The Account Party and each of its
Principal Subsidiaries have obtained or made all Governmental Approvals
referred to in clause (ii) of the definition of "Governmental Approvals",
except (i) those which are not yet required but which are obtainable in the
ordinary course of business as and when required, (ii) those the absence of
which would not materially adversely affect the financial condition,
properties, prospects or operations of the Account Party or any Principal
Subsidiary and (iii) those which the Account Party is diligently attempting
in good faith to obtain, renew or extend, or the requirement for which the
Account Party is contesting in good faith by appropriate proceedings or by
other appropriate means; in each case described in the foregoing clause
(iii), such attempt or contest, and any delay resulting therefrom, is not
reasonably expected to have a material adverse effect on the financial
condition, properties, prospects or operations of the Account Party or any
Principal Subsidiary or to magnify to any significant degree any such
material adverse effect that would reasonably be expected to result from the
absence of such Governmental Approval.
(e) This Agreement, each other Loan Document and each
Related Document to which the Account Party is a party have been duly
executed and delivered by or on behalf of the Account Party and are legal,
valid and binding obligations of the Account Party enforceable against the
Account Party in accordance with their respective terms; subject to the
qualifications, 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) and that indemnification against violations
of securities and similar laws may be subject to matters of public policy.
(f) (i) The audited balance sheet of the Account Party as
at December 31, 1993, and the audited statements of income and cash flows of
the Account Party for the fiscal year then ended as set forth in the Account
Party's Annual Report on Form 10-K for such fiscal year and (ii) the
unaudited balance sheet of the Account Party as at June 30, 1994 and the
unaudited statements of income and cash flows of the Account Party for the
six-month period then ended as set forth in the Account Party's Quarterly
Report on Form 10-Q for the period then ended, fairly present in all material
respects the financial condition and results of operations of the Account
Party at and for the respective periods ended on such dates, and have been
prepared in accordance with generally accepted accounting principles
consistently applied. Since December 31, 1993, there has been no material
adverse change in the financial condition, operations, properties or
prospects of the Account Party and its Subsidiaries, if any, taken as a
whole, except to the extent, if any, described in the Account Party's
Quarterly Reports on Form 10-Q for the periods ended March 31, 1994 and/or
June 30, 1994, or in Schedule II hereto.
(g) 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 the Account
Party or its properties, or any of its Principal Subsidiaries or its
properties, before any court, governmental agency or arbitrator (i) which
affects or purports to affect the legality, validity or enforceability of the
Loan Documents or the Related Documents or any of them 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 the Account Party and its
Principal Subsidiaries taken as a whole; except, for purposes of clause (ii)
only, such as is described in the Account Party's Annual Report on Form 10-K
for the fiscal year ended December 31, 1993, in the Account Party's Quarterly
Reports on Form 10-Q for the periods ended March 31, 1994 and/or June 30,
1994, or in Schedule II hereto.
(h) No ERISA Plan Termination Event has occurred nor is
reasonably expected to occur with respect to any ERISA Plan which would
materially adversely affect the financial condition, properties, prospects or
operations of the Account Party and its Subsidiaries taken as a whole, except
as disclosed to and consented to in writing by the Majority Lenders. Since
the date of the most recent Schedule B (Actuarial Information) to the annual
report of each such ERISA Plan (Form 5500 Series), there has been no material
adverse change in the funding status of the ERISA Plans referred to therein,
and no prohibited transaction has occurred with respect thereto that, singly
or in the aggregate with all other prohibited transactions and after giving
effect to all likely consequences thereof, would be reasonably expected to
have a material adverse effect on the financial condition, properties,
prospects or operations of the Account Party and its Subsidiaries taken as a
whole. Neither the Account Party 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 all
Lenders and consented to in writing by the Majority Lenders.
(i) The Account Party or one of its Principal Subsidiaries
has good and marketable title (or, in the case of personal property, valid
title) or valid leasehold interests in the electric generating plants of
which it is named as "owner" in Item 2 of the Account Party's Annual Report
on Form 10-K for the fiscal year ended December 31, 1993 under the caption
"System Generating Plants", except for minor defects in title that do not
interfere with the ability of the Account Party or any of its Principal
Subsidiaries to conduct its business as now conducted. All such assets and
properties are free and clear of any Lien, other than Liens permitted under
Section 7.02(a) hereof.
(j) All outstanding shares of capital stock having
ordinary voting power for the election of directors of the Account Party 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).
(k) The Account Party and each of its Principal
Subsidiaries has filed all tax returns (Federal, state and local) required to
be filed and paid taxes shown thereon to be due, including interest and
penalties, or, to the extent the Account Party or any of its Principal
Subsidiaries is contesting in good faith an assertion of liability based on
such returns, has provided adequate reserves in accordance with generally
accepted accounting principles for payment thereof.
(l) No proceeds of any Advance will be used in violation
of, or in any manner that would result in a violation by any party hereto of,
Regulations G, T, U or X promulgated by the Board of Governors of the Federal
Reserve System or any successor regulations. The Account Party (A) is not an
"investment company" within the meaning ascribed to that term in the
Investment Company Act of 1940 and (B) is not engaged in the business of
extending credit for the purpose of buying or carrying margin stock.
ARTICLE VII
COVENANTS OF THE ACCOUNT PARTY
SECTION 7.01. Affirmative Covenants. So long as any
amounts shall remain available to be drawn under the Letter of Credit or any
Advance or other amounts shall remain unpaid hereunder or any Participating
Bank shall have any Commitment, the Account Party will, unless the Majority
Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance
solely as specified in Section 3.02 and Section 6.01(l) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the
same shall become delinquent, and cause each of its Principal Subsidiaries to
pay and discharge before the same shall become delinquent, all taxes,
assessments and governmental charges, royalties or levies imposed upon it or
upon its property except to the extent the Account Party or any of its
Principal Subsidiaries is contesting the same in good faith by appropriate
proceedings and has set aside adequate reserves in accordance with generally
accepted accounting principles for the payment thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-insurance)
covering the Account Party, its Principal Subsidiaries and their respective
properties, in effect at all times in such amounts and covering such risks as
may be required by law and in addition as is usually carried by companies
engaged in similar businesses and owning similar properties.
(d) Preservation of Existence, Etc. Subject at all times
to Section 7.02(b) hereof, preserve and maintain, and cause each of its
Principal Subsidiaries to preserve and maintain, its existence, corporate or
otherwise, material rights (statutory and otherwise) and franchises except
for such rights and franchises which do not materially adversely affect the
financial condition, properties, prospects or operations of the Account Party
or any of its Principal Subsidiaries.
(e) Compliance with Laws, Etc. Comply, and cause each of
its Principal Subsidiaries to comply, in all material respects with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, including, without limitation, any such laws, rules,
regulations and orders issued by the Securities and Exchange Commission or
relating to zoning, environmental protection, use and disposal of Hazardous
Substances, land use, construction and building restrictions, ERISA and
employee safety and health matters relating to business operations, except to
the extent (i) that the Account Party or any of its Principal Subsidiaries is
contesting the same in good faith by appropriate proceedings or (ii) that any
such non-compliance, and the enforcement or correction thereof, would not
materially adversely affect the financial condition, properties, prospects or
operations of the Account Party or any of its Principal Subsidiaries.
(f) Inspection Rights. At any time and from time to time
upon reasonable notice, permit the Issuing Bank and its agents and
representatives to examine the records and books of account of, and the
properties of, the Account Party and any of its Principal Subsidiaries.
(g) Keeping of Books. Keep proper records and books of
account, in which full and correct entries shall be made of all financial
transactions of the Account Party and its Principal Subsidiaries and the
assets and business of the Account Party and its Principal Subsidiaries, in
accordance with generally accepted accounting practices consistently applied.
(h) Conduct of Business. Conduct its primary business,
and cause each of its Principal Subsidiaries to conduct its primary business,
in substantially the same manner and in substantially the same fields as such
business is conducted on the Closing Date.
(i) Maintenance of Properties, Etc. (i) As to properties
of the type described in Section 6.01(i) hereof, subject at all times to
Section 7.02(b) hereof, maintain, and cause its Principal Subsidiaries to
maintain, title of the quality described therein; and (ii) preserve,
maintain, develop, and operate, and cause its Principal Subsidiaries to
preserve, maintain, develop and operate, in substantial conformity with all
laws, material contractual obligations and prudent practices prevailing in
the industry, all of its properties which are used or useful in the conduct
of its or its Principal Subsidiaries' respective businesses in good working
order and condition, ordinary wear and tear excepted, except to the extent
such non-conformity would not materially adversely affect the financial
condition, properties, prospects or operations of the Account Party or any of
its Principal Subsidiaries; provided, however, that the Account Party or any
Principal Subsidiary will not be prevented from discontinuing the operation
and maintenance of any such properties if such discontinuance is, in the
judgment of the Account Party or such Principal Subsidiary, desirable in the
operation or maintenance of its business and would not materially adversely
affect the financial condition, properties, prospects or operations of the
Account Party or such Principal Subsidiary.
(j) Governmental Approvals. Duly obtain, and cause each
of its Principal Subsidiaries to duly obtain, on or prior to such date as the
same may become legally required, and thereafter maintain in effect at all
times, all Governmental Approvals on its or such Principal Subsidiary's part
to be obtained, except with respect to those Governmental Approvals referred
to in clause (ii) of the definition of "Governmental Approvals", (i) those
the absence of which would not materially adversely affect the financial
condition, properties, prospects or operations of the Account Party or any
Principal Subsidiary and (ii) those which the Account Party is diligently
attempting in good faith to obtain, renew or extend, or the requirement for
which the Account Party is contesting in good faith by appropriate
proceedings or by other appropriate means; provided, however, that the
exception afforded by clause (ii), above, shall be available only if and for
so long as such attempt or contest, and any delay resulting therefrom, does
not have a material adverse effect on the financial condition, properties,
prospects or operations of the Account Party or any Principal Subsidiary and
does not magnify to any significant degree any such material adverse effect
that would reasonably be expected to result from the absence of such
Governmental Approval.
(k) Further Assurances. Promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or that any Participating Bank through the Issuing Bank may
reasonably request in order to fully give effect to the interests and
properties purported to be covered by the Security Documents.
(l) Related Documents. Perform and comply in all material
respects with each of the provisions of each Related Document to which it is
a party.
(m) Ratings. Maintain at all times ratings in respect of
the Bonds of at least two nationally-recognized rating services, of which at
least one shall be S&P or Moody's.
SECTION 7.02. Negative Covenants. So long as any amount
shall remain available to be drawn under the Letter of Credit or any Advance
or other amounts shall remain unpaid hereunder or any Participating Bank
shall have any Commitment, the Account Party will not, without the written
consent of the Majority Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist
any lien, security interest, or other charge or encumbrance (including the
lien or retained security title of a conditional vendor) of any kind, or any
other type of preferential arrangement the intent or effect of which is to
assure a creditor against loss or to prefer one creditor over another
creditor upon or with respect to any of its properties or assets (any of the
foregoing being referred to herein as a "Lien"), excluding, however, from the
operation of the foregoing restrictions the Liens created or perfected under
or in connection with the Pledge Agreement, and the following, whether now
existing or hereafter created or perfected:
(i) Liens created by (A) the Indenture of Mortgage and
Deed of Trust dated as of May 1, 1921, from the Account Party to Bankers
Trust Company, as Trustee, as amended and supplemented (the "CL&P"
Indenture), or (B) the First Mortgage Indenture and Deed of Trust dated as of
January 1, 1958, from the Hartford Electric Light Company ("HELCO") to the
First National Bank of Boston, as Successor Trustee, as amended and
supplemented (the "HELCO Indenture");
(ii) Liens on the Account Party's interest in the
Millstone Unit No. 1, Millstone Unit No. 2 or Millstone Unit No. 3 nuclear
generating units in Waterford, Connecticut, or nuclear fuel for any or all
nuclear units in which the Account Party has an interest (including, without
limitation, Millstone Unit No. 1, Millstone Unit No.2 and Millstone Unit No.
3);
(iii) "Permitted Liens" or "Permitted Encumbrances" under
the CL&P Indenture or the HELCO Indenture;
(iv) any Lien on assets of any of its Subsidiaries created
or assumed to secure Debt owing by any of its Subsidiaries to the Account
Party or to any wholly-owned Subsidiary of the Account Party;
(v) any purchase money Lien or construction mortgage on
assets hereafter acquired or constructed by the Account Party or any of its
Subsidiaries and any Lien on any assets existing at the time of acquisition
thereof by the Account Party or any of its Subsidiaries, or created within
180 days from the date of completion of such acquisition or construction;
provided that such Lien shall at all times be confined solely to the assets
so acquired or constructed and any additions thereto;
(vi) any existing Liens on assets now owned by the Account
Party or any of its Subsidiaries; Liens on assets or stock of any class of,
or any partnership or joint venture interest in, any of its Subsidiaries
existing at the time it becomes a Subsidiary of the Account Party, and liens
existing on assets of a corporation or other going concern when it is merged
into or with the Account Party or a Subsidiary of the Account Party, or when
substantially all of its assets are acquired by the Account Party or a
Subsidiary of the Account Party; 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;
(vii) Liens resulting from legal proceedings being
contested in good faith by appropriate legal or administrative proceedings by
the Account Party or any of its Subsidiaries, and as to which the Account
Party or any of its Subsidiaries, as the case may be, to the extent required
by generally accepted accounting principles applied on a consistent basis,
shall have set aside on its books adequate reserves;
(viii) Liens created in favor of the other contracting
party in connection with advance or progress payments;
(ix) 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;
(x) Liens resulting from conditional sale agreements,
capital leases or other title retention agreements;
(xi) Liens on property of the Account Party or any of its
Subsidiaries related to the financing of pollution control facilities;
(xii) Liens on accounts receivable and power contracts
resulting from financing transactions;
(xiii) any other Liens incurred in the ordinary course of
business otherwise than to secure Debt;
(xiv) and any extension, renewal or replacement of Liens
permitted by clauses (i) through (vi) and (viii) through (xiii); provided,
however, that the principal amount of Debt secured thereby shall not, at the
time of such extension, renewal or replacement, exceed the principal amount
of Debt so secured and that such extension, renewal or replacement shall be
limited to all or a part of the property which secured the Lien so extended,
renewed or replaced;
(b) Mergers, and Sales of Assets, Etc. Merge with or
into or consolidate with or into, any Person, or permit any of its
Subsidiaries to be a party to, any merger or consolidation, or purchase or
otherwise acquire 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 entity, or sell, transfer, convey or lease all or any substantial part of
its assets (other than sales, transfers or conveyances of receivables and
power contracts), except for, 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 or lease, no Event of Default or
Unmatured Default shall have occurred and be continuing:
(i) any such merger or consolidation, sale, transfer,
conveyance, lease or assignment of or by any wholly-owned Subsidiary of the
Account Party into the Account Party or into, with or to any other wholly-
owned Subsidiary of the Account Party and any such purchase or other
acquisition by the Account Party or any wholly-owned Subsidiary of the
Account Party of the assets or stock of any wholly-owned Subsidiary of the
Account Party;
(ii) any such sale of assets (other than stock) which
comprise all or any part of its interest in a nuclear power generating plant
(whether completed or under construction);
(iii) any such merger or consolidation of the Account Party
with or into another wholly-owned Subsidiary of NU and/or a Regulatory
Transaction Entity and/or an entity owning a cogeneration or independent
power project, pursuant to "step-in" or similar rights granted pursuant to a
pre-existing power purchase contract, if (but only if): (A) the successor or
surviving corporation, if not the Account Party, shall have assumed or
succeeded to all of the liabilities of the Account Party (including the
liabilities of the Account Party under this Agreement), and (B) the Agent
shall have received the favorable written opinion of counsel to the Account
Party, in form and substance satisfactory to the Agent and the Majority
Lenders, to the effect of the foregoing subclause (A); provided, however, in
the event of a merger or consolidation with a Regulatory Transaction Entity,
if the purchase price plus the amount of any liabilities assumed in
connection with such merger or consolidation exceeds $100,000,000, the
Account Party shall deliver to the Agent with sufficient copies for each
Participating Bank 30 days prior to such merger or consolidation, a
certificate of a duly authorized officer of the Account Party demonstrating
projected compliance with the ratio set forth in Section 7.02(d) hereof for
and as of each of the three consecutive fiscal quarters immediately
succeeding such merger or consolidation and certifying that such projections
were prepared in good faith and on reasonable assumptions;
(iv) any purchase or acquisition of all or substantially all
of the assets of or stock of any class of, or any partnership or joint
venture interest in (and any assumption of the related liabilities) (A) an
entity owning a cogeneration or independent power project, pursuant to "step-
in" or similar rights granted pursuant to a pre-existing power purchase
contract; (B) a Regulatory Transaction Entity; or (C) any other Person if the
purchase price of such acquisition plus the amount of any liabilities assumed
by the Account Party in connection therewith does not exceed $50,000,000 in
the aggregate; provided, however, in the event of a purchase or acquisition
of a Regulatory Transaction Entity, if the purchase price plus the amount of
any liabilities assumed in connection with such purchase or acquisition
exceeds in the aggregate $100,000,000, the Account Party shall deliver to the
Agent with sufficient copies for each Participating Bank 30 days prior to
such purchase or acquisition, a certificate of a duly authorized officer of
the Account Party demonstrating projected compliance with the ratio set forth
in Section 7.02(d) hereof for and as of each of the three consecutive fiscal
quarters immediately succeeding such purchase or acquisition and certifying
that such projections were prepared in good faith and on reasonable
assumptions; or
(v) any purchase or acquisition of a joint venture interest
in a generating and/or transmission facility or in a mutual insurance company
providing nuclear liability or nuclear property or replacement power
insurance.
(c) Compliance with ERISA. (i) Terminate, or permit any
ERISA Affiliate to terminate, any ERISA Plan so as to result in any liability
of the Account Party or any Principal Subsidiary to the PBGC in an amount
greater than $1,000,000, or (ii) permit to exist any occurrence of any
Reportable Event (as defined in Title IV of ERISA) which, alone or together
with any other Reportable Event with respect to the same or another ERISA
Plan, has a reasonable possibility of resulting in liability of the Account
Party or any Subsidiary to the PBGC in an aggregate amount exceeding
$1,000,000, or any other event or condition, which presents a material risk
of such a termination by the PBGC of any ERISA Plan or has a reasonable
possibility of resulting in a liability of the Account Party or any
Subsidiary to the PBGC in an aggregate amount exceeding $1,000,000.
(d) Common Equity Ratio. Permit the ratio (expressed as
a percentage) of Consolidated Common Equity to Consolidated Capitalization to
be less than 30% for any three consecutive fiscal quarters.
SECTION 7.03. Reporting Obligations. So long as any amount
shall remain available to be drawn under the Letter of Credit or any Advance
or other amounts shall remain unpaid hereunder or any Participating Bank
shall have any Commitment, the Account Party will, unless the Majority
Lenders shall otherwise consent in writing, furnish to the Agent in
sufficient copies for the Issuing Bank and each Participating Bank, 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 continuing
on the date of such statement, a statement of the Chief Financial Officer,
Treasurer or Assistant Treasurer of the Account Party setting forth details
of such Event of Default or Unmatured Default and the action which the
Account Party proposes to take with respect thereto;
(ii) as soon as available and in any event within 50 days
after the end of each of the first three quarters of each fiscal year of the
Account Party, a copy of the Account Party's Quarterly Report on Form 10-Q,
if any, submitted to the Securities and Exchange Commission with respect to
such quarter, containing financial statements in reasonable detail and duly
certified (subject to year-end audit adjustments) by the Chief Financial
Officer, Treasurer, Assistant Treasurer or Comptroller of the Account Party
as having been prepared in accordance with the system of management financial
reports of the Account Party applied on a basis consistent with the financial
statements referred to in Section 6.01(f) hereof and accompanied by a
certificate of a duly authorized officer of the Account Party (X) stating
that no Event of Default or Unmatured Default has occurred and is continuing
or, if an Event of Default or Unmatured Default has occurred and is
continuing, describing the nature thereof and the action which the Account
Party proposes to take with respect thereto and (Y) demonstrating compliance
with Section 7.02(d) hereof for and as of the end of such fiscal quarter,
such demonstration to be in a schedule (in form satisfactory to the Agent)
which sets forth the computations used in determining such compliance;
(iii) as soon as available and in any event within 105 days
after the end of each fiscal year of the Account Party, a copy of the Account
Party's Annual Report on Form 10-K submitted to the Securities and Exchange
Commission with respect to such year, containing financial statements
certified by a nationally-recognized independent public accountant and to be
accompanied by a certificate of the Chief Financial Officer, Treasurer,
Assistant Treasurer or Comptroller of the Account Party (X) stating that no
Event of Default or Unmatured Default has occurred and is continuing, or if
an Event of Default or Unmatured Default has occurred and is continuing,
describing the nature thereof and the action which the Account Party proposes
to take with respect thereto and (Y) demonstrating compliance with Section
7.02(d) hereof for and as of the end of such fiscal year, such demonstration
to be in a schedule (in form satisfactory to the Agent) which sets forth the
computations used in determining such compliance;
(iv) as soon as possible and in any event (A) within
30 days after the Chief Financial Officer, Treasurer or any Assistant
Treasurer of the Account Party knows or has reason to know that any ERISA
Plan Termination Event described in clause (i) of the definition of ERISA
Plan Termination Event with respect to any ERISA Plan or ERISA Multiemployer
Plan has occurred and (B) within 10 days after the Account Party knows or has
reason to know that any other ERISA Plan Termination Event with respect to
any ERISA Plan or ERISA Multiemployer Plan has occurred, a statement of the
Chief Financial Officer, Treasurer or Assistant Treasurer of the Account
Party describing such ERISA Plan Termination Event and the action, if any,
which the Account Party proposes to take with respect thereto;
(v) promptly after receipt thereof by the Account Party
or any of its ERISA Affiliates from the PBGC, copies of each notice received
by the Account Party or any such ERISA Affiliate of the PBGC's intention to
terminate any ERISA Plan or ERISA Multiemployer Plan or to have a trustee
appointed to administer any ERISA Plan or ERISA Multiemployer Plan;
(vi) promptly after receipt thereof by the Account Party
or any of its ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a
copy of each notice received by the Account Party or any of its ERISA
Affiliates concerning the imposition or amount of withdrawal liability in an
aggregate principal amount of at least $1,000,000 pursuant to Section 4202 of
ERISA in respect of which the Account Party may be liable;
(vii) promptly after the Account Party or any Subsidiary
becomes aware of the commencement thereof, notice of all actions, suits,
proceedings or other events of the type described in Section 6.01(g) hereof;
(viii) promptly after the filing thereof, copies of each
prospectus (excluding any prospectus contained in any Form S-8) and Current
Report on Form 8-K, if any, which the Account Party or any Principal
Subsidiary files with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor;
(ix) promptly after receipt thereof, any assertion of the
character described in Section 8.01(h) hereof and the action the Account
Party proposes to take with respect thereto; and
(x) promptly after requested, such other information
respecting the financial condition, operations, properties, prospects or
otherwise, of the Account Party or its Subsidiaries as the Agent on behalf of
the Majority Lenders may from time to time reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. The following events shall
each constitute an "Event of Default" if the same shall occur and be
continuing after the grace period and notice requirement (if any) applicable
thereto:
(a) The Account Party shall fail to pay any interest on
any Advance or pursuant to Section 4.02 hereof within two days after the same
becomes due; or the Account Party shall fail to reimburse the Issuing Bank
for any Interest Drawing (as defined in the Letter of Credit) within two days
after such reimbursement becomes due; or the Account Party shall fail to pay
any fees or commissions hereunder within five days after the same becomes
due; or the Account Party shall fail to make any other payment required to be
made pursuant to Article II or Article III hereof when due; or
(b) Any representation or warranty made by the Account
Party (or any of its officers or agents) in this Agreement, the Pledge
Agreement or the Related Documents, or in any certificate or other writing
delivered pursuant to this Agreement or the Related Documents, shall prove to
have been incorrect in any material respect when made or deemed made; or
(c) The Account Party shall fail to perform or observe
any term or covenant on its part to be performed or observed contained in
Sections 7.01(d), Section 7.02(b) or (d), or Section 7.03(i) hereof; or
(d) The Account Party shall fail to perform or observe
any other term or covenant on its part to be performed or observed contained
in this Agreement or the Pledge Agreement and any such failure shall remain
unremedied, after the earlier of written notice having been given to the
Account Party by the Agent, the Issuing Bank or any Participating Bank, and
actual knowledge thereof by the Account Party, for a period of 30 days; or
(e) The Account Party or any Principal Subsidiary shall
fail to pay any of its Debt when due (including any interest or premium
thereon but excluding Debt arising 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 the Account Party's
or such Principal Subsidiary's exercise of a prepayment option) prior to the
stated maturity thereof; or
(f) The Account Party or any Principal Subsidiary shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make an assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Account Party or such Principal Subsidiary seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition
of its debts under any law relating to bankruptcy, insolvency, or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official
for it or for any substantial part of its property and, in the case of a
proceeding instituted against the Account Party or such Principal Subsidiary,
either the Account Party or such Principal Subsidiary shall consent thereto
or such proceeding shall remain undismissed or unstayed for a period of 90
days or any of the actions sought in such proceeding (including without
limitation the entry of an order for relief against the Account Party or such
Principal Subsidiary or the appointment of a receiver, trustee, custodian or
other similar official for the Account Party or such Principal Subsidiary or
any of its property) shall occur; or the Account Party or such Principal
Subsidiary shall take any corporate or other action to authorize any of the
actions set forth above in this subsection (f); or
(g) Any judgment or order for the payment of money in
excess of $10,000,000 shall be rendered against the Account Party or its
properties, or any Principal Subsidiary or its properties, and either
(i) enforcement proceedings shall have been commenced by any creditor upon
such judgment or order and shall not have been stayed or (ii) there shall be
any period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(h) Any material provision of any Loan Document or any
Related Document shall for any reason other than the express terms thereof or
the exercise of any right or option expressly contained therein cease to be
valid and binding on the Account Party, or shall be determined to be invalid
or unenforceable by any court, governmental agency or authority having
jurisdiction over the Account Party, or the Account Party shall deny that it
has any further liability or obligation under this Agreement or any Related
Document, or any party to a Related Document shall so assert in writing;
provided, that in the case of any party other than the Account Party making
such assertion in respect of any Related Document, such assertion shall not
in and of itself constitute an Event of Default hereunder until (i) such
asserting party shall cease to perform under and in compliance with such
Related Document, (ii) the Account Party shall fail to diligently prosecute,
by appropriate action or proceedings, a rescission of such assertion or a
binding determination as to the merits thereof or (iii) such a binding
determination shall have been made in favor of such asserting party's
position; or
(i) The Security Documents shall for any reason, except
to the extent permitted by the terms thereof, fail or cease to create valid
and perfected Liens (to the extent purported to be granted by such documents
and subject to the exceptions permitted thereunder) in any of the Collateral
(other than Liens in favor of the Trustee with respect to the interests of
the Issuer under the Indenture Documents), provided, that such failure or
cessation relating to any non-material portion of such Collateral shall not
constitute an Event of Default hereunder unless the same shall not have been
corrected within 30 days after the Account Party becomes aware thereof; or
(j) NU shall cease to own 100% of the issued and
outstanding shares of the capital stock of the Account Party having ordinary
voting power for the election of directors, free and clear of any Liens; or
(k) An event of default (as defined therein) shall have
occurred and be continuing under the Indenture Documents.
SECTION 8.02 Remedies Upon Events of Default. Upon the
occurrence and during the continuance of any Event of Default, then, and in
any such event, the Agent with the concurrence of the Issuing Bank and the
Majority Lenders may, and upon the direction of the Issuing Bank and the
Majority Lenders the Agent shall (i) if the Letter of Credit shall not have
been issued, instruct the Issuing Bank to (whereupon the Issuing Bank shall)
by notice to the Account Party declare its commitment to issue the Letter of
Credit to be terminated, whereupon the same shall forthwith terminate, (ii)
if the Letter of Credit shall have been issued, instruct the Issuing Bank to
(whereupon the Issuing Bank shall) furnish to the Trustee, at its corporate
trust office as provided in the Indenture Documents, written notice of such
Event of Default in accordance with Section 8.1(A)(4)(1) of the Indenture and
of the Issuing Bank's determination to terminate the Letter of Credit on the
fifth business day (as defined in the Indenture) following the Trustee's
receipt of such written notice, (iii) if the Letter of Credit shall have been
issued, instruct the Issuing Bank to (whereupon the Issuing Bank shall)
furnish to the Trustee written notice that the Interest Component will not be
reinstated in the amount of one or more Interest Drawings, all as provided in
the Letter of Credit; (iv) declare the Advances and all other principal
amounts outstanding hereunder, all interest thereon and all other amounts
payable hereunder to be forthwith due and payable, whereupon the Advances and
all other principal amounts outstanding hereunder, all such interest and all
such other amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Account Party, and (v) instruct the Issuing
Bank to (whereupon the Issuing Bank shall) exercise all the rights and
remedies provided herein and under and in respect of the Security Documents;
provided, however, that in the event of the occurrence of any Event of
Default described in Section 8.01(f) with respect to the Account Party,
(A) the commitment of the Issuing Bank to issue the Letter of Credit and the
Commitments and the obligations of the Participating Banks to make Advances
shall automatically be terminated, and (B) the Advances and all other
principal amounts outstanding hereunder, all interest accrued and unpaid
thereon and all other amounts payable hereunder shall automatically become
due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Account Party.
ARTICLE IX
THE AGENT, THE PARTICIPATING BANKS AND THE ISSUING BANK
SECTION 9.01 Authorization of Agent; Actions of Agent and
Issuing Bank. The Issuing Bank and each Participating Bank hereby appoint
and authorize the Agent to take such action as agent on their behalf and to
exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; provided, however, that neither the Agent nor the Issuing Bank shall
be required to take any action which exposes the Agent or the Issuing Bank to
personal liability or which is contrary to this Agreement or applicable law.
As to any matters not expressly provided for by any Related Document
(including, without limitation, enforcement or collection thereof), neither
the Agent nor the Issuing Bank shall be required to exercise any discretion
or take any action. The Agent agrees to deliver promptly (i) to the Issuing
Bank and each Participating Bank copies of each notice delivered to it by the
Account Party and (ii) to each Participating Bank copies of each notice
delivered to it by the Issuing Bank, in each case pursuant to the terms of
this Agreement.
SECTION 9.02. Reliance, Etc. Neither the Agent, the Issuing
Bank, nor any of their directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any Related Document, except for its or
their own gross negligence or willful misconduct as determined by a court of
competent jurisdiction. Without limitation of the generality of the
foregoing, each of the Agent and the Issuing Bank (i) may consult with legal
counsel (including counsel for the Account Party), 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; (ii) makes no warranty or
representation to any Participating Bank and shall not be responsible to any
Participating Bank for any statements, warranties or representations made in
or in connection with this Agreement or any Related Document; (iii) shall not
have any duty to ascertain or to inquire as to the performance or observance
of any of the terms, covenants or conditions of this Agreement or any Related
Document on the part of the Account Party to be performed or observed, or to
inspect any property (including the books and records) of the Account Party;
(iv) shall not be responsible to any Participating Bank for the due
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any Related Document or any other instrument or
document furnished pursuant hereto and thereto; and (v) shall incur no
liability under or in respect of this Agreement or any Related Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, cable or telex), including, without limitation,
any thereof from time to time purporting to be from the Trustee, believed by
it to be genuine and signed or sent by the proper party or parties.
SECTION 9:03. The Agent, the Issuing Bank and Affiliates.
The Agent and the Issuing Bank shall have the same rights and powers under
this Agreement as any other Participating Bank and may exercise (or omit from
exercising) the same as though they were not the Agent and the Issuing Bank,
respectively, and the term "Participating Bank" shall, unless otherwise
expressly indicated, include Deutsche Bank in its individual capacity. The
Agent, the Issuing Bank and their respective Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage
in any kind of business with, the Account Party, any of its subsidiaries and
any Person who may do business with or own securities of the Account Party or
any such subsidiary, all as if Deutsche Bank was not the Agent or the Issuing
Bank, and without any duty to account therefor to the Participating Banks.
SECTION 9.04. Participating Bank Credit Decision. Each of
the Issuing Bank and each Participating Bank acknowledges that it has,
independently and without reliance upon the Agent, the Issuing Bank or any
other Participating Bank and based on the financial information referred to
in Section 6.01(f) hereof and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each of the Issuing Bank and each Participating Bank also
acknowledges that it will, independently and without reliance upon the Agent,
the Issuing Bank or any other Participating Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this Agreement.
SECTION 9.05. Indemnification. The Participating Banks
agree to indemnify the Agent and the Issuing Bank (to the extent not
reimbursed by the Account Party), ratably according to their respective
Participation Percentages, 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 Agent or the Issuing Bank in
any way relating to or arising out of this Agreement or any action taken or
omitted by the Agent or the Issuing Bank under this Agreement, provided that
no Participating Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's or the Issuing Bank's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Participating Bank agrees to reimburse the Agent and the Issuing Bank
promptly upon demand for its ratable share of any amounts for which the Agent
and the Issuing Bank are entitled to reimbursement or indemnity pursuant to
Section 10.04 hereof but are not reimbursed by the Account Party.
SECTION 9.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Issuing Bank, the Participating
Banks and the Account Party, with any such resignation to become effective
only upon the appointment of a successor Agent pursuant to this Section 9.06.
Upon any such resignation, the Issuing Bank shall have the right to appoint a
successor Agent, which shall be another commercial bank or trust company
reasonably acceptable to the Account Party, organized or licensed under the
laws of the United States, or of any State thereof. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent and the execution and
delivery by the Account Party and the successor Agent of an agreement
relating to the fees, if any, to be paid to the successor Agent in connection
with its acting as Agent hereunder, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations under this Agreement. After any retiring Agent's
resignation hereunder as 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 Agent under this Agreement.
SECTION 9.07. Issuing Bank. (a) All notices received by
the Issuing Bank pursuant to this Agreement or any Related Document (other
than the Letter of Credit) shall be promptly delivered to the Agent for
distribution to the Participating Banks.
(b) The Issuing Bank shall not amend or waive any
provision or consent to the amendment or waiver of any Related Document
without the written consent of the Majority Lenders.
(c) Upon receipt by the Issuing Bank from time to time of
any amount pursuant to the terms of any Related Document (other than pursuant
to the terms of this Agreement), the Issuing Bank shall promptly deliver to
the Agent such amount.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Pledge Agreement, nor consent to any
departure by the Account Party 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 the
Issuing Bank and all the Participating Banks, do any of the following:
(a) waive, modify or eliminate any of the conditions specified in Article V,
(b) increase the Commitments of the Participating Banks that may be
maintained hereunder or subject the Participating Banks to any additional
obligations, (c) reduce the principal of, or interest on, the Advances, any
amount reimbursable on demand pursuant to Section 3.01, or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances, such reimbursable amounts or any
fees or other amounts payable hereunder (other than fees payable to the
Issuing Bank or the Agent pursuant to Section 2.03(b) hereof), (e) change the
percentage of the Commitments or of the aggregate unpaid principal amount of
the Advances, or the number of Participating Banks which shall be required
for the Participating Banks or any of them to take any action hereunder,
(f) amend this Agreement or the Pledge Agreement in a manner intended to
prefer one or more Participating Banks over any other Participating Banks,
(g) amend this Section 10.01, or (h) release any of the Collateral otherwise
than in accordance with any provisions for such release contained in the
Security Documents, or change any provision of any Security Document
providing for the release of all or substantially all of the Collateral; and
provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Issuing Bank or the Agent in addition to the
Participating Banks required above to take such action, affect the rights or
duties of the Issuing Bank or the Agent, as the case may be, under this
Agreement or the Pledge Agreement.
SECTION 10.02. Notices, Etc. All notices and other
communications provided for hereunder and under the other Loan Documents
shall be in writing (including telegraphic, telex, telecopy or cable
communication) and mailed, telegraphed, telexed, telecopied, cabled or
delivered:
(i) if to the Account Party, to it in care of Northeast
Utilities Service Company at 107 Selden Street, Berlin, Connecticut 06037
(telecopy: (203) 665-5457), Attention: Assistant Treasurer;
(ii) if to the Issuing Bank or the Agent, to it at its
address at 31 West 52nd Street, New York, New York 10019 Attention: E. Scott
Medla, (telephone: (212) 474-8025, telecopy: (212) 474-8256) with a copy to:
Peter Sonza, telephone: (212) 474-8112, telecopy: (212) 474-7048).
(iii) if to any Participating Bank, to it at its address
set forth on the signature pages hereof or in the Participation Assignment
pursuant to which it became a Participating Bank; or
as to each party other than any Participating Bank, at such other address as
shall be designated by such party in a written notice to the other parties,
and, as to any Participating Bank, at such other address as shall be
designated by such Participating Bank in a written notice to the Account
Party and the Agent. All such notices and communications shall, when mailed,
telegraphed, telexed, telecopied or cabled, be effective five days after when
deposited in the mails, or when delivered to the telegraph company, confirmed
by telex answerback, telecopied or delivered to the cable company,
respectively, except that notices and communications to the Agent or the
Issuing Bank pursuant to Article II, III or IV shall not be effective until
received by the Agent or the Issuing Bank, as the case may be.
SECTION 10.03. No Waiver of Remedies. No failure on the
part of any Participating Bank or the Issuing Bank to exercise, and no delay
in exercising, any right hereunder or under any Loan Document shall operate
as a waiver thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification.
(a) The Account Party agrees to pay on demand all costs and expenses, if any
(including, without limitation, reasonable counsel fees and expenses
including, in the case of clause (ii) below, the reasonable allocated cost of
internal counsel), of (i) the Agent and the Issuing Bank in connection with
the preparation, negotiation, execution and delivery of the Loan Documents
and the administration of the Loan Documents, the care and custody of any and
all collateral, and any proposed modification, amendment, or consent relating
thereto; and (ii) the Agent, the Issuing Bank and each Participating Bank in
connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement or any Loan Document or Security
Document.
(b) The Account Party hereby agrees to indemnify and hold
the Agent, the Issuing Bank and each Participating Bank and their respective
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 any of the Loan Documents or the Related Documents
or any transaction contemplated thereby, or the use by the Account Party of
the proceeds of any Advance or the use by the Trustee (or any paying agent
for the Bonds) of the proceeds of any drawing under the Letter of Credit;
(ii) in connection with or resulting from the utilization,
storage, disposal, treatment, generation, transportation, release or
ownership of any Hazardous Substance (A) at, upon or under any property of
the Account Party or any of its Affiliates or (B) by or on behalf of the
Account Party or any of its Affiliates at any time and in any place;
(iii) in connection with any documentary taxes, assessments
or charges made by any governmental authority by reason of the execution and
delivery of any of the Loan Documents;
(iv) by reason of or in connection with the execution and
delivery or transfer of, or payment or failure to make payment under, the
Letter of Credit; provided, however, that the Account Party shall not be
required to indemnify the Agent, the Issuing Bank or any Participating Bank
pursuant to this Section for any claims, damages, losses, liabilities, costs
or expenses to the extent caused by (A) the Issuing Bank's willful misconduct
or gross negligence, as determined by a court of competent jurisdiction, in
determining whether documents presented under the Letter of Credit are
genuine or comply with the terms of the Letter of Credit or (B) the Issuing
Bank's willful or grossly negligent failure, as determined by a court of
competent jurisdiction, to make lawful payment under the Letter of Credit
after the presentation to it by the Trustee of a draft and certificate
strictly complying with the terms and conditions of the Letter of Credit; or
(v) by reason of any inaccuracy or alleged inaccuracy in
any material respect, or any untrue statement or alleged untrue statement of
any material fact, contained in any Preliminary Official Statement or
Official Statement relating to the Bonds or any amendment or supplement
thereto, except to the extent contained in or arising from information in any
Preliminary Official Statement or Official Statement relating to the Bonds
supplied in writing by and describing the Issuing Bank.
(c) Nothing contained in this Section 10.04 is intended
to limit the Account Party's obligations set forth in Articles II, III and
IV. The Account Party's obligations under this Section 10.04 shall survive
the creation and sale of any participation interest pursuant to Section 10.06
hereof and shall survive as well the repayment of all amounts owing to the
Agent, the Issuing Bank and the Participating Banks under the Loan Documents
and the termination of the Commitments. If and to the extent that the
obligations of the Account Party under this Section 10.04 are unenforceable
for any reason, the Account Party agrees to make the maximum contribution to
the payment and satisfaction thereof which is permissible under applicable
law.
SECTION 10.05. Right of Set-off. (a) Upon (i) the
occurrence and during the continuance of any Event of Default and (ii) the
taking of any action or the giving of any instruction by the Agent as
specified by Section 8.02 hereof, the Issuing Bank and each Participating
Bank are 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 the Issuing Bank or such Participating Bank
to or for the credit or the account of the Account Party against any and all
of the obligations of the Account Party now or hereafter existing under this
Agreement in favor of the Issuing Bank or such Participating Bank,
irrespective of whether or not the Issuing Bank or such Participating Bank
shall have made any demand under this Agreement and although such obligations
may be unmatured. The Issuing Bank and each Participating Bank agrees
promptly to notify the Account Party after any such set-off and application
provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of the Issuing Bank and each
Participating Bank under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Issuing Bank and/or such Participating Bank may have.
(b) The Account Party agrees that it shall have no right
of off-set, deduction or counterclaim in respect of its obligations
hereunder, and that the obligations of the Issuing Bank and of the several
Participating Banks hereunder are several and not joint. Nothing contained
herein shall constitute a relinquishment or waiver of the Account Party's
rights to any independent claim that the Account Party may have against the
Issuing Bank or any Participating Bank, but no Participating Bank shall be
liable for the conduct of the Issuing Bank or any other Participating Bank,
and the Issuing Bank shall not be liable for the conduct of any Participating
Bank.
SECTION 10.06. Binding Effect; Assignments and Participants.
(a) This Agreement shall become effective when it shall have been executed
and delivered by the Account Party, the Agent, the Issuing Bank and each
Participating Bank named on the signature pages hereto and thereafter shall
be binding upon and inure to the benefit of the Account Party, the Agent, the
Issuing Bank and each Participating Bank and their respective successors and
assigns, except that the Account Party shall not have the right to assign its
rights hereunder or any interest herein nor transfer any of its obligations
without the prior written consent of the Issuing Bank and each Participating
Bank, and the Issuing Bank may not assign its commitment to issue the Letter
of Credit or its obligations under or in respect of the Letter of Credit.
(b) Each Participating Bank may assign all or any portion
of its rights and transfer its obligations under this Agreement, under the
Letter of Credit or in any security hereunder, including, without limitation,
any instruments securing the Account Party's obligations hereunder; provided
that (i) no assignment by any Participating Bank may be made to any Person,
except with the prior written consent of (A) the Account Party (which consent
shall not be unreasonably withheld and, in the case of an assignment to
another Participating Bank or to an Affiliate of a Participating Bank, shall
not be required) and (B) the Issuing Bank, (ii) any assignment shall be of a
constant and not a varying percentage of all of the assignor's rights and
obligations hereunder and (iii) the parties to each such assignment shall
execute and deliver to the Agent a Participation Assignment, together with a
processing fee of $3,000. Upon receipt of a completed Participation
Assignment and the processing fee, the Agent will record in a register
maintained for such purpose the name of the assignee and the percentage
participation interest assigned by the assignor and assumed by the assignee
for purposes of the determination of such assignor's and assignee's
respective Participation Percentages. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Participation Assignment, which effective date shall be at least five
Business Days after the execution thereof, the assignee shall, to the extent
of such assignment, become a party hereto and have all of the rights and
obligations of a Participating Bank hereunder and, to the extent of such
assignment, such assigning Participating Bank shall be released from its
obligations hereunder (without relieving such Participating Bank from any
liability for damages, costs and expenses suffered by the Issuing Bank or the
Account Party as a result of the failure by such Participating Bank to
perform its obligations hereunder).
(c) Each Participating Bank may grant participations to
one or more Persons in all or any part of, or any interest (undivided or
divided) in, such Participating Bank's rights and obligations under this
Agreement (any such Person being referred to hereinafter as a "Participant"
and such interests are collectively, referred to hereinafter as the
"Rights"); provided, however, that (i)such Participating Bank's obligations
under this Agreement shall remain unchanged; (ii) any such Participant shall
be entitled to the benefits and cost protections provided for in Section 4.03
hereof on the same basis as if it were a Participating Bank hereunder;
(iii) the Account Party, the Agent and the Issuing Bank shall continue to
deal solely and directly with such Participating Bank in connection with such
Participating Bank's rights and obligations under this Agreement; and (iv) no
such Participant, other than an Affiliate of such Participating Bank, shall
be entitled to require such Participating Bank to take or omit to take any
action hereunder, unless such action or omission would have an effect of the
type described in subsections (c), (d) or (h) of Section 10.01 hereof.
(d) Notwithstanding anything contained in this
Section 10.06 to the contrary, the Issuing Bank and any Participating Bank
may assign and pledge all or any portion of the Advances (or participating
interests therein) owing to the Issuing Bank or such Participating Bank 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 Issuing Bank or such Participating Bank
from its obligations hereunder.
SECTION 10.07. 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 the Loan Documents shall be
construed to confer a benefit upon, or grant a right or privilege to, any
Person other than the parties hereto.
SECTION 10.08. Issuing Bank Not Liable. As between the
Agent, the Issuing Bank and the Participating Banks on the one hand, and the
Account Party on the other, the Account Party assumes all risks of the acts
or omissions of the Trustee (including any paying agent for the Bonds) and
any other beneficiary or transferee of the Letter of Credit with respect to
its use of the Letter of Credit. Neither the Agent, the Issuing Bank, any
Participating Bank, nor any of their respective officers or directors shall
be liable or responsible for: (a) the use which may be made of the Letter of
Credit or any acts or omissions of the Trustee (or any paying agent for the
Bonds) and any other beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents which do not comply with the terms of the
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to the Letter of Credit; or (d) any other circumstances
whatsoever in making or failing to make payment under the Letter of Credit,
except that the Account Party shall have a claim against the Issuing Bank,
and the Issuing Bank shall be liable to the Account Party, to the extent of
any direct, as opposed to consequential, damages suffered by the Account
Party which the Account Party proves were caused by (i) the Issuing Bank's
willful misconduct or gross negligence, as determined by a court of competent
jurisdiction, in determining whether documents presented under the Letter of
Credit are genuine or comply with the terms of the Letter of Credit or (ii)
the Issuing Bank's willful or grossly negligent failure, as determined by a
court of competent jurisdiction, to make lawful payment under the Letter of
Credit after the presentation to it by the Trustee of a draft and certificate
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank may
accept original or facsimile (including telecopy) sight drafts and
accompanying certificates presented under the Letter of Credit that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 10.09. Confidentiality. In connection with the
negotiation and administration of this Agreement and the other Loan
Documents, the Account Party has furnished and will from time to time furnish
to the Agent, the Issuing Bank and the Participating Banks (each, a
"Recipient") written information which is identified to the Recipient when
delivered as 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 Account
Party, 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 Account Party 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 assignees of or participants in the Recipient's
position herein, but the Recipient's ability to so exchange Confidential
Information shall be conditioned upon any such prospective assignee's or
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 in any
litigation or proceedings between the Account Party and such Recipient and/or
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 Account Party as promptly as
practicable unless the Recipient is prohibited from doing so by court order,
subpoena or other legal process.
SECTION 10.10. Waiver of Jury Trial. The Account Party,
the Agent, the Issuing Bank, and the Participating Banks each hereby
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement or any other Loan
Document, or any other instrument or document delivered hereunder or
thereunder.
SECTION 10.11. Governing Law. This Agreement and the
Pledge Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York. The Account Party, the Agent, the Issuing
Bank and each Participating Bank each (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 any Loan Document, (ii) agrees that all
claims in such action may be decided in such court, (iii) waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum
and (iv) consents to the service of process by mail. A final judgment in any
such action shall be conclusive and may be enforced in other jurisdictions.
Nothing herein shall affect the right of any party to serve legal process in
any manner permitted by law or affect its right to bring any action in any
other court.
SECTION 10.12. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
THE ACCOUNT PARTY:
THE CONNECTICUT LIGHT AND
POWER COMPANY
By /s/ John B. Keane
Title: Treasurer
THE PARTICIPATING BANKS:
DEUTSCHE BANK AG, NEW YORK
BRANCH and/or CAYMAN ISLANDS
BRANCH
By /s/ Thomas G. Plagemann
Title: Assistant Vice President
By /s/ E. Scott Medla
Title: Director
Participation Percentage: 100.00000%
Address for Notices
Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
Attention: E. Scott Medla
Telephone: 212.474.8025
Fax: 212.474.8256
THE AGENT AND ISSUING BANK:
DEUTSCHE BANK AG, NEW YORK
BRANCH and/or CAYMAN ISLANDS
BRANCH
By /s/ Thomas G. Plagemann
Title: Assistant Vice President
By /s/ E. Scott Medla
Title: Director
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Domestic Eurodollar
Participating Bank Lending Office Lending Office
Deutsche Bank AG, 31 West 52 Street New York Branch
New York Branch New York, NY 10019 and/or Cayman
Tel: (212) 474-8025 Islands Branch
Fax: (212) 474-8256 31 West 52 Street
New York, NY 10019
SCHEDULE II
PENDING ACTIONS
NONE
Exhibit 1.01A
LETTER OF CREDIT
[LETTERHEAD OF DEUTSCHE BANK AG, NEW YORK BRANCH]
IRREVOCABLE LETTER OF CREDIT
NO. 839-53021
August 29, 1994
BayBank (formerly Baybank Middlesex), as Trustee
under the below
Indenture of Trust
7 New England Executive Park
Burlington, Massachusetts 01803
Gentlemen:
1. Deutsche Bank AG, New York Branch (the "Bank") hereby
establishes, at the request and for the account of The Connecticut Light and
Power Company (the "Company"), in your favor, as Trustee under the Indenture
of Trust dated as of December 1, 1986 (the "Indenture") by and between
Business
Finance Authority (formerly The Industrial Development Authority) of the
State
of New Hampshire (the "Issuer") and the Trustee, pursuant to which
$15,400,000
in aggregate principal amount of the Issuer's Pollution Control Revenue Par
Value Demand Bonds (The Connecticut Light and Power Company Project) Series
1986, (the "Bonds") are being issued, our Irrevocable Letter of Credit No.
839-
53021 (the "Letter of Credit"), in the amount of $16,200,000 (SIXTEEN MILLION
TWO HUNDRED THOUSAND UNITED STATES DOLLARS) (subject to reduction and
reinstatement as set forth below), effective immediately and expiring as set
forth below.
2. This Letter of Credit shall expire on the earliest to
occur of (i) August 29, 1997 (the "Stated Termination Date"), or, if the
Stated Termination Date shall be extended pursuant to Section 2.05 of the
Reimbursement Agreement referred to below, the Stated Termination Date as so
extended, (ii) the date of final payment of the principal of and interest on
the Bonds, (iii) the close of business on the first business day following
the effective date of the conversion of the Bonds to a Fixed Interest Rate
(as defined in the Indenture), (iv) the date on which we honor the draft
drawn hereunder (a) on or after the effective date of the conversion of the
Bonds to a Fixed Interest Rate or (b) pursuant to Section 8.1(b) or 8.1(c) of
the Indenture following the occurrence of an Event of Default under the
Indenture, (v) the date this Letter of Credit is surrendered to us for
cancellation or (vi) the date we honor the last drawing available to be made
hereunder (such earliest date being herein referred to as the "Credit
Termination Date").
3. We hereby irrevocably authorize you to draw on us in
accordance with the terms and conditions, and subject to reductions in amount
and reinstatement, as hereinafter set forth, by your drafts, an aggregate
amount not exceeding $16,200,000.00 (SIXTEEN MILLION TWO HUNDRED THOUSAND
DOLLARS) (the "Letter of Credit Amount"), of which an aggregate amount not
exceeding $15,400,000 (FIFTEEN MILLION FOUR HUNDRED THOUSAND DOLLARS) may be
drawn upon with respect to payment of principal of the Bonds (or that portion
of the purchase price of Bonds corresponding to principal) (the "Principal
Component") and of which an aggregate amount not exceeding $800,000 (EIGHT
HUNDRED THOUSAND DOLLARS) (but no more than an amount equal to accrued and
unpaid interest on the Bonds, at a rate not to exceed 15%, for the
immediately preceding 123 days) may be drawn upon with respect to payment of
interest on the Bonds (or that portion of the purchase price of Bonds
corresponding to interest) (the "Interest Component"). The foregoing maximum
amounts comprising the Principal Component and the Interest Component will be
reduced upon redemption, payment or defeasance of any Bonds as provided in
the Indenture provided that you deliver to us a certificate in the form of
Exhibit 5 to this Letter of Credit.
4. Only you, as Trustee, may make drawings under this
Letter of Credit. Upon the payment to you or your account of the amount
specified in a draft drawn hereunder, we shall be fully discharged of our
obligation under this Letter of Credit with respect to such draft, and we
shall not thereafter be obligated to make any further payments under this
Letter of Credit in respect of such draft to you or to any other person,
including any other person who may have made to you or who makes to you a
demand for purchase of or payment of principal of or interest on any Bond.
Bonds which are registered in the name of the Company or which are held by or
required to be delivered to the Bank or the Bank's agent pursuant to Section
9.21 of the Indenture or pursuant to the Pledge Agreement, dated as of August
1, 1994 (the "Pledge Agreement"), between the Company and the Bank, shall not
be entitled to any benefit of this Letter of Credit.
5. The Principal Component and the Interest Component, as
appropriate, shall be reduced immediately following our honoring any draft
drawn hereunder (i) to pay principal of or interest on Bonds or (ii) to pay
the purchase price corresponding to principal of Bonds (a "Principal Tender
Drawing") or the purchase price corresponding to interest on Bonds (an
"Interest Tender Drawing"; Principal Tender Drawings and Interest Tender
Drawings being herein referred to, without differentiation, as "Tender
Drawings"), in each case by an amount equal to the amount of such draft.
6. On the sixteenth day (provided that if such day is not
a business day, then on the next succeeding business day) following each
drawing (other than an Interest Tender Drawing) hereunder in respect of
interest on the Bonds, the amount so drawn shall be restored to the Interest
Component, unless you shall have theretofore received notice from us that
(i) we have not been reimbursed in full by the Company for the amount of such
drawing, together with interest, if any, owing thereon pursuant to the
Reimbursement Agreement or (ii) an Event of Default under the Reimbursement
Agreement has occurred and is then continuing.
7. Immediately upon our written notice to you that the
Bank has been reimbursed for all or any portion of any Tender Drawing
hereunder, the amounts of principal and interest of which we so notify you
shall be reinstated to the Principal Component and the Interest Component,
respectively, as of the date of such reimbursement, and upon such
reinstatement, Bonds pledged pursuant to the Pledge Agreement and delivered
to us or our agent pursuant to Section 9.21(c) of the Indenture shall be
released pursuant to Section 6 of the Pledge Agreement.
8. Subject to the provisions of paragraphs 6 and 7
hereof, drawings hereunder honored by us shall not, in the aggregate, exceed
the Letter of Credit Amount, as reduced from time to time pursuant to the
last sentence of paragraph 3 hereof.
9. Funds under this Letter of Credit are available to you
against your draft payable on the date such draft is drawn on us, stating on
its face: Drawn under Deutsche Bank AG, New York Branch, Irrevocable Letter
of Credit No. 839-53021, and:
(a) if the drawing is being made with respect to payment
of principal of Bonds (other than a Principal Tender Drawing) (a "Principal
Drawing"), a certificate signed by you in the form of Exhibit 1 attached
hereto appropriately completed;
(b) if the drawing is being made with respect to payment
of interest on the Bonds (other than an Interest Tender Drawing (an "Interest
Drawing"), a certificate signed by you in the form of Exhibit 2 hereto
appropriate completed;
(c) if the drawing is a Principal Tender Drawing, a
certificate signed by you in the form of Exhibit 3 attached hereto
appropriately completed;
(d) if the drawing is an Interest Tender Drawing, a
certificate signed by you in the form of Exhibit 4 hereto appropriately
completed.
Drafts and certificates hereunder shall be dated the date of presentation and
shall be presented at our office located at 31 West 52nd Street, New York,
New York 10019 Attention: Volker Fischer or James Roces, Trade Finance, 6th
Floor (telephone: (212) 474-7978) (or at such other office as we may
designate by written notice to you). Presentation of such drafts and
certificates may be made (a) by physical presentation of such drafts and
certificates or (b) by facsimile transmission of such drafts and certificates
received by us at (212) 474-7989 with a copy to Peter Sonza at (FAX) (212)
474-7048 (or at such other number as we may designate by written notice to
you) with prior telephone notice to us at (212) 474-7978, Attention: Volker
Fischer or James Roces, (or at such other number as we may designate by
written notice to you) that such presentation is to be made by facsimile
transmission and with the original executed drafts and certificates to be
received by us not later than our close of business on the next business day,
it being understood that payments hereunder shall be made upon receipt by us
of such facsimile transmission.
If we receive your draft(s) and certificate(s) as aforesaid, all in strict
conformity with the terms and conditions of this Letter of Credit, at such
office at or prior to 11:00 a.m., New York City time, on a business day on or
prior to the Termination Date, we will honor the same by 2:00 p.m., New York
City time, on the same business day in accordance with your payment
instructions. If we receive your draft(s) and certificate(s) as aforesaid,
all in strict conformity with the terms and conditions of this Letter of
Credit, at such office after 11:00 a.m., New York City time, on a business
day on or prior to the Termination Date, we will honor the same by 2:00 p.m.,
New York City time, on the next succeeding business day in accordance with
your payment instructions.
Wire transfers of funds paid in respect of any drawing hereunder shall be
made to you at BayBank Boston, ABA # 011001742, credit Account No. 002-
298-5, Attention: Corporate Trust, or to such other account as you may from
time to time specify to us in writing. If requested by you, payment under
this Letter of Credit may be made by wire transfer of federal funds to your
account with any bank located in New York, New York or by deposit of
immediately available funds into a designated account that you maintain with
us. We will honor any drawing hereunder with our own funds.
10. As used herein, "business day" shall mean any day,
except a Saturday, Sunday or other day on which commercial banks located in
the City of New York are required by law, regulation or executive order to
close or on which such banks are generally voluntarily closed for business in
such location, and on which the New York Stock Exchange is open. As used
herein, the "Reimbursement Agreement" shall mean the Letter of Credit and
Reimbursement Agreement, dated as of August 1, 1994, among the Company, the
Participating Banks referred to therein and Deutsche Bank AG, New York Branch
as Issuing Bank and Agent thereunder.
11. Except as herein expressly stated, this Letter of
Credit is subject to the Uniform Customs and Practice for Documentary Credits
(1993 revision) (International Chamber of Commerce Publication No. 500), or
any later revision which may be in effect at the time (the "Uniform
Customs"). This Letter of Credit shall be deemed to be made under the laws
of the State of New York, including Article 5 of the Uniform Commercial Code,
and shall, as to matters not governed by the Uniform Customs, be governed by
and construed in accordance with the laws of the State of New York.
12. Communications (other than drawings) with respect to
this Letter of Credit shall be in writing and shall be addressed to us at 31
West 52nd Street, New York, New York 10019, Attention: E. Scott Medla
(telephone: (212) 474-8025, telecopy: (212) 474-8256) with a copy to: Peter
Sonza (telephone: (212) 474-8112, telecopy: (212) 474-7048) (or at such other
office as we may designate by written notice to you), specifically referring
to the number of this Letter of Credit.
13. This Letter of Credit is transferable in its entirety
(but not in part) to any transferee who has succeeded you as Trustee under
the Indenture and may be successively so transferred. Transfer of the
available balance under this Letter of Credit to such transferee shall be
effected by the presentation to us of this Letter of Credit accompanied by a
certificate substantially in form of Exhibit 6 attached hereto appropriately
completed, together with our customary fee.
14. This Letter of Credit sets forth in full our
undertaking, and such undertaking shall not in any way be modified, amended,
amplified or limited by reference to any document, instrument or agreement
referred to herein (including, without limitation, the Bonds, the Indenture
and the Reimbursement Agreement, except only the certificates and the drafts
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
certificates and such drafts.
Very truly yours,
DEUTSCHE BANK AG
New York Branch
By /s/ Thomas G. Plagemann
Title: Assistant Vice President
By /s/ E. Scott Medla
Title: Director
EXHIBIT 1 TO THE
LETTER OF CREDIT
$15,400,000 THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
POLLUTION CONTROL REVENUE PAR VALUE DEMAND BONDS
(THE CONNECTICUT LIGHT AND POWER COMPANY PROJECT)
SERIES 1986
CERTIFICATE FOR PRINCIPAL DRAWING
The undersigned, a duly authorized officer of BayBank
(formerly
Baybank Middlesex) (the "Trustee"), hereby certifies to Deutsche Bank AG, New
York Branch (the "Bank"), with reference to Irrevocable Letter of Credit
No. 839-53021 (the "Letter of Credit"; any capitalized term used herein and
not defined shall have its respective meaning as set forth in the Letter of
Credit) issued by the Bank in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a Principal Drawing under the
Letter of Credit, with respect to the payment of principal of the Bonds in
accordance with the Indenture.
(3) The amount of principal of the Bonds which is due and
payable (or which has been declared to be due and payable) and with respect
to the payment of which the Trustee does not have available amounts in the
Debt Service Fund that pursuant to Section 5.3(c)(ii)(A) of the Indenture are
to be applied to such payment prior to moneys drawn under the Letter of
Credit is $ , and the amount of the draft accompanying this
Certificate does not exceed such amount of principal.
(4) The amount of the draft accompanying this Certificate
does not exceed the amount available to be drawn under the Letter of Credit
in respect of payment of principal of the Bonds and was computed in
accordance with the terms and conditions of the Bonds and the Indenture.
[(5) The draft accompanying this Certificate is the final
draft to be drawn under the Letter of Credit with respect to principal and,
upon the honoring of with respect to principal and, upon the honoring of such
draft, the Letter of Credit will expire in accordance with its terms and
Trustee will surrender the Letter of Credit to the Bank.]<F1>
[(5) The Trustee has not received notice from the Bank of
the occurrence of an Event of Default as defined in the Reimbursement
Agreement.]<F2>
- ----------------
<F1> To be used upon stated or accelerated maturity or optional or
mandatory redemption of the Bonds as a whole.
<F2> To be used in all cases other than upon stated or accelerated maturity
or optional or mandatory redemption of the Bonds as a whole.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
Certificate as of the day of , 19 .
By
[Name and Title]
EXHIBIT 2 TO THE
LETTER OF CREDIT
$15,400,000 THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
POLLUTION CONTROL REVENUE PAR VALUE DEMAND BONDS
(THE CONNECTICUT LIGHT AND POWER COMPANY PROJECT)
SERIES 1986
CERTIFICATE FOR INTEREST DRAWING
The undersigned, a duly authorized officer of BayBank (formerly Baybank
Middlesex) (the "Trustee"), hereby certifies to Deutsche Bank AG, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit
No. 839-53021 (the "Letter of Credit"; any capitalized term used herein and
not defined shall have its respective meaning as set forth in the Letter of
Credit) issued by the Bank in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making an Interest Drawing under the
Letter of Credit, with respect to the payment of interest accrued on the
Bonds in accordance with the Indenture.
(3) The amount of interest on the Bonds which is due and
payable (or which has been declared to be due and payable) and with respect
to the payment of which the Trustee does not have available amounts in the
Debt Service Fund that pursuant to Section 5.3(c)(ii)(A) of the Indenture are
to be applied to such payment prior to moneys drawn under the Letter of
Credit is $ , and the amount of the draft accompanying this
Certificate does not exceed such amount of interest.
(4) The amount of the draft accompanying this Certificate
does not exceed the amount available to be drawn under the Letter of Credit
in respect of payment of interest on the Bonds on or prior to their stated
maturity date or to the redemption date, as the case may be.
(5) The amount of the draft accompanying this Certificate
was computed in accordance with the terms and conditions of the Bonds and the
Indenture.
[(6) The draft accompanying this Certificate is the final
draft to be drawn under the Letter of Credit with respect to interest and
upon the honoring of such draft the Letter of Credit will expire in
accordance with its terms and the Trustee will surrender the Letter of Credit
to the Bank.]<F3>
- --------------
<F3> To be used upon stated or accelerated maturity or optional or mandatory
redemption of the Bonds as a whole.
[(6) The Trustee has not received notice from the Bank of
the occurrence of an Event of Default as defined in the Reimbursement
Agreement.]<F4>
IN WITNESS WHEREOF, the Trustee has executed and
delivered this Certificate as of the day of , 19 .
By
[Name and Title]
- -------------
<F4> To be used in all cases other than upon stated or accelerated
maturity or optional or mandatory redemption of the Bonds as a whole.
EXHIBIT 3 TO THE
LETTER OF CREDIT
$15,400,000 THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
POLLUTION CONTROL REVENUE PAR VALUE DEMAND BONDS
(THE CONNECTICUT LIGHT AND POWER COMPANY PROJECT)
SERIES 1986
CERTIFICATE FOR PRINCIPAL TENDER DRAWING
(PURCHASE PRICE CORRESPONDING TO PRINCIPAL)
The undersigned, a duly authorized officer of BayBank (formerly Baybank
Middlesex) (the "Trustee"), hereby certifies to Deutsche Bank AG, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit
No. 839-53021 (the "Letter of Credit"; any capitalized term used herein and
not defined shall have its respective meaning as set forth in the Letter of
Credit) issued by the Bank in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making a Principal Tender Drawing under
the Letter of Credit, with respect to the purchase price of Bonds
corresponding to principal of Bonds tendered or required to be tendered for
purchase pursuant to the Indenture and not remarketed by the Placement Agent
(as defined in the Indenture) on the date such Bonds are to be purchased.
(3) The amount of purchase price corresponding to
principal of such Bonds less the amount of other funds which pursuant to
Section 9.20(a)(i) and (ii) of the Indenture are to be applied to such
payment prior to moneys drawn under the Letter of Credit is $ and the
amount of the draft accompanying this Certificate does not exceed such amount
of purchase price corresponding to principal.
(4) The amount of the draft accompanying this Certificate
does not exceed the amount available to be drawn under the Letter of Credit
in respect of purchase price corresponding to principal of such Bonds and was
computed in accordance with the terms and conditions of the Bonds and the
Indenture.
(5) The Trustee has not received notice from the Bank of
the occurrence of an Event of Default as defined in the Reimbursement
Agreement.]
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the day of , 19 .
By
[Name and Title]
EXHIBIT 4 TO THE
LETTER OF CREDIT
$15,400,000 THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
POLLUTION CONTROL REVENUE PAR VALUE DEMAND BONDS
(THE CONNECTICUT LIGHT AND POWER COMPANY PROJECT)
SERIES 1986
CERTIFICATE FOR INTEREST TENDER DRAWING
(PURCHASE PRICE CORRESPONDING TO INTEREST)
The undersigned, a duly authorized officer of Baybank (formerly BayBank
Middlesex) (the "Trustee"), hereby certifies to Deutsche Bank AG, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit
No. 839-53021 (the "Letter of Credit"; any capitalized term used herein and
not defined shall have its respective meaning as set forth in the Letter of
Credit) issued by the Bank in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The Trustee is making an Interest Tender Drawing under
the Letter of Credit, pursuant to the Indenture with respect to the portion
of the purchase price of Bonds corresponding to interest of Bonds tendered or
purchase pursuant to the Indenture and not remarketed by the Placement Agent
(as defined in the Indenture) on the date such Bonds are to be purchased.
(3) The portion of the purchase price of Bonds
corresponding to interest of such Bonds less the amount of other funds which
pursuant to Section 9.20(a)(i) and (ii) of the Indenture are to be applied to
such payment prior to moneys drawn under the Letter of Credit is $
and the amount of the draft accompanying this Certificate does not exceed
such amount of purchase price corresponding to principal.
(4) The amount of the draft accompanying this Certificate
does not exceed the amount available to be drawn under the Letter of Credit
in respect of the purchase price corresponding to interest of such Bonds and
was computed in accordance with the terms and conditions of the Bonds and the
Indenture.
(5) The Trustee has not received notice from the Bank of
the occurrence of an Event of Default as defined in the Reimbursement
Agreement.]
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the day of , 19 .
By
[Name and Title]
EXHIBIT 5 TO THE
LETTER OF CREDIT
CERTIFICATE FOR THE PERMANENT
REDUCTION OF LETTER OF CREDIT AMOUNT
The undersigned, a duly authorized officer of Baybank (formerly
BayBank
Middlesex) (the "Trustee"), hereby certifies to Deutsche Bank AG, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit
No. 839-53021 (the "Letter of Credit"; any capitalized term used herein and
not defined shall have its respective meaning as set forth in the Letter of
Credit) issued by the Bank in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Indenture for the
holders of the Bonds.
(2) The aggregate principal amount of the Bonds
Outstanding (as defined in the Indenture) has been reduced to .
(3) The Principal Component is hereby correspondingly
reduced to $ .
(4) The Interest Component is hereby reduced to $ <F5>
to reflect the amount of interest allocable to the reduced amount of
principal set forth in paragraph (2) hereof.
IN WITNESS WHEREOF, the Trustee has executed and delivered
this Certificate as of the day of , 19 .
By
[Name and Title]
- ---------------
<F5> Calculated by multiplying the amount of the principal amount in the
last line of paragraph (2) by 15% and multiplying the product thereof by the
quotient of 123 divided by 365.
EXHIBIT 6 TO THE
LETTER OF CREDIT
INSTRUCTION TO TRANSFER
, 19
Deutsche Bank AG
New York Branch
31 West 52nd Street
New York, New York 10019
Attention: Business Administration Section
Re: Irrevocable Letter of Credit No. 839-53021
Gentlemen:
For value received, the undersigned beneficiary hereby
irrevocably instructs you to transfer to:
(Name of Transferee)
(Address)
all rights of the undersigned beneficiary to draw under the above-captioned
Letter of Credit (the "Letter of Credit"). The transferee has succeeded the
undersigned as Trustee under the Indenture of Trust between The Industrial
Development Authority of the State of New Hampshire and dated as
of , 1986.
By this transfer, all rights of the undersigned
beneficiary in the Letter of Credit are transferred to the transferee and the
transferee shall hereafter have the sole rights as beneficiary thereof;
provided, however that no rights shall be deemed to have been transferred to
the transferee until such transfer complies with the requirements of the
Letter of Credit pertaining to transfers.
The Letter of Credit is returned herewith and in
accordance therewith we ask that this transfer be effected.
[TRUSTEE]
By
[Name and Title]
EXHIBIT 1.01B
Form of
PARTICIPATION ASSIGNMENT
Dated , 19
Reference is made to the Letter of Credit and Reimbursement
Agreement, dated as of August 1, 1994 (said Agreement, as it may hereafter be
amended or otherwise modified from time to time, being the "Agreement";
unless otherwise defined herein terms defined in the Agreement are used
herein with the same meaning), among The Connecticut Light and Power Company
(the "Account Party"), Deutsche Bank AG, New York Branch ("Deutsche Bank"),
as Issuing Bank, the Participating Banks named therein and from time to time
parties thereto, and Deutsche Bank, as Agent. Pursuant to the Agreement,
(the "Assignor") has purchased a participation from the Issuing Bank in and
to the Letter of Credit and each payment thereunder and demand loan made by
the Issuing Bank and has committed to make Advances to the Account Party.
The Assignor and (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns, without recourse,
to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, without recourse to the Assignor that portion set forth in Section
1(c) of Schedule 1 hereto (the "Assigned Interest") of the Assignor's rights
and obligations under the Agreement and the Pledge Agreement, including,
without limitation, the participation purchased by the Assignor pursuant to
Section 3.07 of the Agreement in respect of unreimbursed amounts and demand
loans owing from time to time to the Issuing Bank, the Commitment of the
Assignor to make Advances and the Advances outstanding on the Effective Date
(as hereinafter defined). Such Assigned Interest represents the percentage
interest specified in Section 2(b) of Schedule 1 of all outstanding rights
and obligations of the Participating Banks under the Agreement, and, after
giving effect to such sale and assignment, the Assignee's and Assignor's
Participation Percentages will be as set forth in Sections 2(b) and 2(c),
respectively, of Schedule 1. The effective date of this sale and assignment
shall be the date specified in Section 3 of Schedule 1 (the "Effective
Date").
2. On the Effective Date, the Assignee will pay to the
Assignor, in same day funds, at such address and account as the Assignor
shall advise the Assignee, an amount equal to (1) the aggregate amount of
unreimbursed letter of credit payments, demand loans and Advances outstanding
(as set forth in Section 1 of Schedule 1) times (2) the Assigned Interest.
From and after the Effective Date, the Assignor agrees that the Assignee
shall be entitled to all rights, powers and privileges of the Assignor under
the Agreement and the Pledge Agreement to the extent of the Assigned
Interest, including without limitation (1) the right to receive all payments
in respect of the Assigned Interest for the period from and after the
Effective Date, whether on account of reimbursements, principal, interest,
fees, indemnities in respect of claims arising after the Effective Date,
increased costs, additional amounts or otherwise; (2) the right to vote and
to instruct the Agent and the Issuing Bank under the Agreement based on the
Assigned Interest; (3) the right to set-off and to appropriate and apply
deposits of the Account Party as set forth in the Agreement; and (4) the
right to receive notices, requests, demands and other communications. The
Assignor agrees that it will promptly remit to the Assignee any amount
received by it in respect of the Assigned Interest (whether from the Account
Party, the Agent or otherwise) in the same funds in which such amount is
received by the Assignor.
3. The Assignor (1) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (2) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Agreement or the Related Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Agreement, the
Related Documents or any other instrument or document furnished pursuant
thereto; and (3) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Account Party
or the performance or observance by the Account Party of any of its
obligations under the Agreement, the Related Documents or any other
instrument or document furnished pursuant thereto.
4. The Assignee (1) confirms that it has received a copy of
the Agreement, together with copies of the financial statements referred to
in Section 6.01(f) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment; (2) agrees that it will, independently and without reliance
upon the Agent, the Issuing Bank, the Assignor or any other Participating
Bank 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 Agreement and the Related Documents; (3) appoints and
authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Agreement and the Pledge Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (4) agrees that it will perform in accordance
with its terms all of the obligations which by the terms of the Agreement are
required to be performed by it as a Participating Bank and (5) confirms that
it has paid the processing fee referred to in subsection 10.06(b) of the
Agreement.
5. Following the execution of this Assignment, it will be
delivered to the Agent for acceptance and recording by the Agent. Upon such
acceptance and recording and receipt of the consent of the Issuing Bank
required pursuant to Section 10.06(b) of the Agreement (which shall be
evidenced by the Issuing Bank's execution of this Assignment on the
appropriate space on Schedule 1), as of the Effective Date, (1) the Assignee
shall be a party to the Agreement and, to the extent provided in this
Assignment, have the rights and obligations of a Participating Bank
thereunder and under the Pledge Agreement and (2) the Assignor shall, to the
extent provided in this Assignment, relinquish its rights and be released
from its obligations under the Agreement and the Pledge Agreement.
6. Upon such acceptance, recording and consent, from and
after the Effective Date, the Agent shall make all payments under the
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and fees with respect
thereto) to the Assignee at its address set forth on Schedule 1 hereto. The
Assignor and Assignee shall make all appropriate adjustments in payments
under the Agreement for periods prior to the Effective Date directly between
themselves.
7. This Assignment shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment may be executed in counterparts by the
parties hereto, each of which counterpart when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and
the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
Schedule 1
to
Participation Assignment
Dated , 19
Section 1.
(a) Total Unreimbursed
Payments and demand loans $
(b) Total Advances: $
(c) Assigned Interest:<F6> %
Section 2.
(a) Assignor's Participation
Percentage (immediately
prior to the effectiveness
of this Assignment) %
(b) Assignee's Participation
Percentage<F7> (upon the
effectiveness of this
Assignment) %
(c) Assignor's Participation
Percentage<F7> (upon
the effectiveness of
this Assignment) %
Section 3
Effective Date<F8> , 19
[NAME OF ASSIGNOR]
By
Title:
[NAME OF ASSIGNEE]
By
Title:
[Address]
Telecopier No.
Attention:
- --------------
<F6> Specify percentage to no more than 8 decimal points.
<F7> The sum of the percentages set forth in Section 2(b) and (c) shall
equal the percentage set forth in Section 2(a).
<F8> Such date shall be at least 5 Business Days after the execution of
this Assignment.
Consented to this day
of ,
DEUTSCHE BANK AG, NEW YORK
BRANCH,
as Issuing Bank
By
Title:
By
Title:
Accepted this day<F9>
of ,
DEUTSCHE BANK AG, NEW YORK
BRANCH,
as Agent
By
Title:
By
Title:
- ---------------
<F9> Not to be accepted without proof of Account Party's consent pursuant
to Section 10.06(b) of the Reimbursement Agreement.
APPLICABLE LENDING OFFICES
The Assignee's Applicable Lending Offices are as follows:
Domestic Lending Office:
Eurodollar Lending Office:
EXHIBIT 1.01C
PLEDGE AGREEMENT
Dated as of August 1, 1994
THIS PLEDGE AGREEMENT ("this Agreement") is made by and
between:
(i) THE CONNECTICUT LIGHT AND POWER COMPANY, a
corporation duly organized and validly existing under the laws of the State
of Connecticut (the "Account Party"); and
(ii) DEUTSCHE BANK AG, NEW YORK BRANCH, as issuer of the
Letter of Credit (the "Issuing Bank"); for the benefit of the Issuing Bank
and
(iii) The Agent (as defined therein) and the Participating
Banks (as defined therein) from time to time party to the Reimbursement
Agreement hereinafter referred to.
PRELIMINARY STATEMENT
Business Finance Authority (formerly the Industrial
Development Authority) of the State of New Hampshire (the "Issuer") has
previously issued, pursuant to an Indenture of Trust, dated as of December 1,
1986 (as supplemented or amended from time to time with the written consent
of the Issuing Bank, the "Indenture"), made to BayBank Middlesex, as trustee
(such entity, or its successor as trustee, being the "Trustee"), $15,400,000
aggregate principal amount of its Pollution Control Revenue Par Value Demand
Bonds (The Connecticut Light and Power Company Project) Series 1986 (the
"Bonds"). Pursuant to the Indenture and the Loan Agreement, dated as of
December 1, 1986, between the Issuer and the Account Party, the Account Party
has requested the Issuing Bank to issue the letter of credit referred to
therein in favor of the Paying Agent described therein. The Issuing Bank has
agreed to issue such letter of credit subject to the terms and conditions set
forth in that certain Letter of Credit and Reimbursement Agreement, of even
date herewith, among the Account Party, the Issuing Bank, the Agent and the
Participating Banks referred to therein and relating to the Bonds (said
Letter of Credit and Reimbursement Agreement, as it may hereafter be amended,
modified or supplemented from time to time, being hereinafter referred to as
the "Reimbursement Agreement").
It is a condition precedent to the obligation of the
Issuing Bank to issue such letter of credit and of the Participating Banks to
make the Advances described in the Reimbursement Agreement that the Account
Party shall have made the pledge described in this Agreement.
NOW THEREFORE, in consideration of the premises and to
induce the Issuing Bank to issue such letter of credit and to induce the
Participating Banks to make such Advances, the Account Party hereby agrees as
follows (capitalized terms used herein and not otherwise defined herein
having the meanings assigned them in the Reimbursement Agreement):
SECTION 1. Pledge. The Account Party hereby
pledges to the Issuing Bank for the benefit of the Agent and the
Participating Banks, and grants to the Issuing Bank for the benefit of the
Agent and the Participating Banks a security interest in, the following (the
"Pledged Collateral"):
(i) the Pledged Bonds (as defined in the Indenture) and
the instruments, if any, evidencing the Pledged Bonds, and all interest,
cash, instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of the
Pledged Bonds; and
(ii) all proceeds (other than the proceeds of the initial
sale upon issuance of the Pledged Bonds) of any and all of the foregoing
collateral (including, without limitation, proceeds that constitute property
of the types described above).
SECTION 2. Security for Obligations. This Agreement
secures the payment of all obligations of the Account Party now or hereafter
existing under the Reimbursement Agreement, whether for reimbursement,
principal, interest, fees, expenses or otherwise, and all obligations of the
Account Party now or hereafter existing under this Agreement (all such
obligations of the Account Party being the "Obligations"). Without limiting
the generality of the foregoing, this Agreement secures the payment of all
amounts which constitute part of the Obligations and would be owed by the
Account Party to the Issuing Bank, the Agent or any Participating Bank under
the Reimbursement Agreement but for the fact that they are unenforceable or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Account Party.
SECTION 3. Delivery of Pledged Collateral. (a) All
certificates or instruments representing or evidencing the Pledged Collateral
shall be delivered to the Tender Agent (as defined in the Indenture) and held
by the Tender Agent on behalf of the Issuing Bank pursuant hereto and shall
be in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Issuing Bank. For the better perfection of the
Issuing Bank's, the Agent's and the Participating Banks' rights in and to the
Pledged Collateral, the Account Party shall forthwith, upon the pledge of any
Pledged Collateral hereunder, cause such Pledged Collateral to be registered
in the name of such nominee or nominees of the Issuing Bank as the Issuing
Bank shall direct.
(b) If, prior to the payment in full of the Obligations and
the termination of the Letter of Credit, the Account Party shall become
entitled to receive or shall receive any payment in respect of the Pledged
Collateral, the Account Party agrees to accept the same as the agent of the
Issuing Bank, the Agent and the Participating Banks, to hold the same in
trust for the Issuing Bank, the Agent and the Participating Banks and to
deliver the same to the Issuing Bank. All such sums so received by the
Issuing Bank shall be credited against the Obligations in such order as the
Agent shall, in its sole discretion, elect.
(c) Notwithstanding the foregoing subsection (a), if and
for so long as the Bonds are to be held in any book-entry only system
operated by the Depository Trust Company ("DTC"), the Account Party's
obligations under such subsection shall be deemed satisfied if such Pledged
Bonds are (i) registered in the name of DTC in accordance with the rules of
such book-entry only system, (ii) credited on the books of DTC to the account
of the Tender Agent (or its nominee) and (iii) further credited on the books
of the Tender Agent (or such nominee) to the account of the Issuing Bank (or
its nominee).
SECTION 4. Representations and Warranties. The Account
Party represents and warrants as follows:
(a) The pledge of the Pledged Collateral pursuant to this
Agreement creates, upon the Tender Agent's taking possession of the Pledged
Bonds pursuant to Section 3 hereof (whether by physical possession or by
means of registration to DTC and book-entry credit as described in subsection
(c) thereof), a valid and perfected first priority security interest in the
Pledged Collateral, securing the payment of the Obligations.
(b) No consent of any other person or entity and no
authorization, approval, or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required (i) for the pledge
by the Account Party of the Pledged Collateral pursuant to this Agreement or
for the execution, delivery or performance of this Agreement by the Account
Party, (ii) for the perfection or maintenance of the security interest
created hereby (including the first priority nature of such security
interest), other than any filings of Uniform Commercial Code financing
statements that may be required for such perfection with respect to any
proceeds of the Pledged Bonds, or (iii) for the exercise by the Issuing
Bank of the voting or other rights provided for in this Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Agreement
(except as may be required in connection with any disposition of any portion
of the Pledged Collateral by laws affecting the offering and sale of
securities generally and except for such as have already been obtained and
are in full force and effect).
SECTION 5. Further Assurances. The Account Party agrees
that at any time and from time to time, at the expense of the Account Party,
the Account Party will promptly execute and deliver all further instruments
and documents, and take all further action, that may be necessary or
desirable, or that the Issuing Bank may reasonably request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Issuing Bank to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Collateral.
SECTION 6. Release. In the event that any Pledged Bonds
are subsequently remarketed by the Remarketing Agent and the proceeds
thereof, when added to any amounts paid to the Issuing Bank and/or the Agent
by the Account Party, are sufficient to (a) reimburse the Issuing Bank and
the Participating Banks in full for the drawing under the Letter of Credit
pursuant to which such Pledged Bonds became Pledged Bonds, (b) repay or
prepay any demand loan or Advance made in respect thereof and (c) pay all
interest, fees and other amounts accrued in respect thereof pursuant to the
Reimbursement Agreement, the lien of this Agreement shall be released as to
such Pledged Bonds (but not as to any other Pledged Bonds).
SECTION 7. Transfers and Other Liens. The Account Party
agrees that it will not (i) sell, assign or otherwise dispose of, or grant
any option with respect to, any of the Pledged Collateral, or (ii) create or
permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement.
SECTION 8. Bank Appointed Attorney-in-Fact. The Account
Party hereby appoints the Issuing Bank the Account Party's attorney-in-fact,
with full authority in the place and stead of the Account Party and in the
name of the Account Party or otherwise, from time to time in the Issuing
Bank's discretion to take any action and to execute any instrument which the
Issuing Bank may deem necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation, to receive, indorse and
collect all instruments made payable to the Account Party representing any
interest payment or other distribution in respect of the Pledged Collateral
or any part thereof and to give full discharge for the same.
SECTION 9. Bank May Perform. If the Account Party fails
to perform any agreement contained herein, the Issuing Bank may itself
perform, or cause performance of, such agreement, and the expenses of the
Issuing Bank incurred in connection therewith shall be payable by the Account
Party under Section 10.04 of the Reimbursement Agreement.
SECTION 10. The Issuing Bank's Duties. The powers
conferred on the Issuing Bank hereunder are solely to protect its interest in
the Pledged Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Pledged Collateral in its
actual possession and the accounting for moneys actually received by it
hereunder, the Issuing Bank shall have no duty as to any Pledged Collateral,
as to ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Pledged
Collateral, whether or not the Issuing Bank has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Pledged Collateral. The Issuing Bank shall be deemed to have exercised
reasonable care in the custody and preservation of any Pledged Collateral in
its actual possession if such Pledged Collateral is accorded treatment
substantially equal to that which the Issuing Bank accords its own property.
SECTION 11. Remedies upon Default. If any Event of
Default shall have occurred and be continuing:
a) The Issuing Bank may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a secured
party on default under the Uniform Commercial Code in effect in the State of
New York at that time (the "Code") (whether or not the Code applies to the
affected Pledged Collateral), and may also, without notice except as
specified below, sell the Pledged Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board or at
any of the Issuing Bank's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Issuing Bank may deem
commercially reasonable. The Account Party agrees that, to the extent notice
of sale shall be required by law, at least ten days' notice to the Account
Party of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Issuing Bank shall not be obligated to make any sale of Pledged Collateral
regardless of notice of sale having been given. The Issuing Bank may adjourn
any public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(b) Any cash held by the Issuing Bank as Pledged
Collateral and all cash proceeds received by the Issuing Bank in respect of
any sale of, collection from, or other realization upon all or any part of
the Pledged Collateral may, in the discretion of the Issuing Bank, be held by
the Issuing Bank as collateral for, and/or then or at any time thereafter be
applied (after payment of any amounts payable to the Issuing Bank pursuant to
Section 9 hereof and/or Section 10.04 of the Reimbursement Agreement) in
whole or in part by the Issuing Bank against, all or any part of the
Obligations in such order as the Issuing Bank shall elect. Any surplus of
such cash or cash proceeds held by the Issuing Bank and remaining after
payment in full of all the Obligations shall be paid over to the Account
Party or to whomsoever may be lawfully entitled to receive such surplus.
SECTION 12. Continuing Security Interest; Assignments.
This Agreement shall create a continuing security interest in the Pledged
Collateral and shall (i) remain in full force and effect until the later of
(x) the payment in full of the Obligations and all other amounts payable
under this Agreement and (y) the expiration or termination of the
Commitments, (ii) be binding upon the Account Party, its successors and
assigns, and (iii) inure to the benefit of, and be enforceable by, the
Issuing Bank, the Agent, the Participating Banks and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), any Participating Bank may, subject to Section 10.06
of the Reimbursement Agreement, assign or otherwise transfer all or any
portion of its rights and obligations under the Reimbursement Agreement
(including, without limitation, all or any portion of its Commitment and the
Advances owing to it) to any other person or entity, and such other person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to such Participating Bank herein or otherwise. Upon the later of
the payment in full of the Obligations and all other amounts payable under
this Agreement and the expiration or termination of the Commitments, the
security interest granted hereby shall terminate and all rights to the
Pledged Collateral shall revert to the Account Party. Upon any such
termination, the Issuing Bank will, at the Account Party's expense, return to
the Account Party such of the Pledged Collateral as shall not have been sold
or otherwise applied pursuant to the terms hereof and execute and deliver to
the Account Party such documents as the Account Party shall reasonably
request to evidence such termination.
IN WITNESS WHEREOF, the Account Party has caused this
Agreement to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.
THE CONNECTICUT LIGHT AND
POWER COMPANY, as Account Party and
pledgor
By /s/John B. Keane
Title: Treasurer
DEUTSCHE BANK AG,
NEW YORK BRANCH,
as Issuing Bank and pledgee
By /s/ Thomas G. Plagemann
Title: Assistant vice President
By /s/ E. Scott Medla
Title: Director
EXHIBIT 5.01A
OPINION OF COUNSEL
(Jeffrey C. Miller, Esq.)
August 29, 1994
Deutsche Bank AG, New York Branch,
as Issuing Bank and Agent under the
Reimbursement Agreement referred to below,
and each Participating Bank thereunder
c/o Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
$15,400,000
Business Finance Authority (formerly The Industrial
Development Authority) of the State of New Hampshire
Pollution Control Revenue Par Value Demand Bonds
(The Connecticut Light and Power Company Project)
Series 1986 (the "Bonds")
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
5.01(f)(i) of the Letter of Credit and Reimbursement Agreement dated as of
August 1, 1994 (the "Reimbursement Agreement"), among The Connecticut Light
and Power Company (the "Company"), Deutsche Bank AG, New York Branch, as the
Issuing Bank (the "Issuing Bank") and the Agent (the "Agent") thereunder, and
the Participating Banks referred to therein, pursuant to which the Issuing
Bank is issuing an Irrevocable Letter of Credit, dated the date hereof (the
"Letter of Credit"), in support of the Bonds. Capitalized terms used but not
otherwise defined in this opinion shall have the meanings assigned them in
the Reimbursement Agreement.
I am Assistant General Counsel of Northeast Utilities Service
Company,
the service company affiliate of the Company ("NUSCO"), and am generally
familiar with the Company's business. I have acted as counsel for the
Company
in connection with the preparation, execution, and delivery of, and the
transactions contemplated by, the Reimbursement Agreement, the Letter of
Credit and the Pledge Agreement.
In that connection, I have examined:
(1) The Reimbursement Agreement and the Pledge Agreement,
(the "Documents").
(2) The Letter of Credit.
(3) The Indenture.
(4) the Loan Agreement.
(5) the Note.
(6) The articles of incorporation of the Company and all
amendments
thereto (the "Charter") and the by-laws of the Company and all amendments
thereto (the "Bylaws"), in each case as in effect on the date hereof.
(7) The other documents furnished by the Company pursuant
to Section 5.01 of the Reimbursement Agreement.
(8) A certificate of the Connecticut Department of Public
Utility Control (the "CDPUC") dated August 11, 1994, a certificate of the
Secretary of the State of the State of Connecticut dated August 17, 1994,
and a certificate of the Connecticut Department of Revenue Services dated
August 15, 1994, attesting to the continued corporate existence and good
standing of the Company in the State of Connecticut.
(9) The decision of the CDPUC in Docket No. 86-11-10 and the order
of the Securities and Exchange Commission (the "SEC") in file 70-7320 under
the Public Utility Holding Company Act of 1935 (the "Act"), each approving
the transactions contemplated by the Documents (collectively, the "Orders").
In addition, I have examined the originals, or copies
certified to my satisfaction, of such other corporate records of the Company,
certificates of public officials and of officers of the Company, and
agreements, instruments, and other documents, as I have deemed necessary as a
basis for the opinions expressed below. In my examination of such
agreements, instruments, and documents, I have assumed the genuineness of all
signatures (other than those of the Company), the authenticity of all
agreements, instruments, and documents submitted to me as originals, and the
conformity to original agreements, instruments, and documents of all
agreements, instruments, and documents submitted to me as certified,
conformed, or photostatic copies and the authenticity of the originals of
such copies. As to questions of fact material to such opinions, I have
assumed without verification and relied upon the accuracy of the
representations as to factual matters set forth in the Documents and in
certificates of the Company or its officers or of public officials. Nothing
has come to my attention, however, calling into question the accuracy of such
representations.
The opinions set forth below are subject to the following
qualifications:
(A) No opinion is expressed with respect to laws other
than those of (i) the United States of America, (ii) the State of
Connecticut, and (iii) the State of New York. I am a member of the bar of
the
State of New York and do not hold myself out as an expert on the laws of the
State of Connecticut. In expressing the opinions set forth below, I am, with
your consent, relying entirely on an opinion delivered to me of Jane P.
Seidl, Senior Counsel of NUSCO, dated the date hereof, with respect to all
matters relating to the laws of the State of Connecticut. I believe I am
justified in relying upon such opinion of Ms. Seidl.
(B) My opinion in Paragraph 4 below, (i) is subject to the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium,
or similar law affecting creditors' rights generally, to the effect of
general principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith, and fair dealing (regardless of
whether considered in a proceeding in equity or at law), and to the effect of
certain laws and judicial decisions that may affect the enforceability of
certain rights and remedies provided in the Pledge Agreement, none of which
laws and judicial decisions, however, will make the rights and remedies
provided in the Pledge Agreement inadequate for the practical realization of
the benefits provided therein and (ii) assumes the binding effect of all
documents referred to therein on all parties thereto other than the Company.
(C) I note further that, in addition to the effect of
general principles of equity described in subparagraph (B) above, courts have
imposed an obligation on contracting parties to act reasonably and in good
faith in the exercise of their contractual rights and remedies, and may also
apply public policy considerations in limiting the right of parties seeking
to obtain indemnification against violations of securities laws or under
circumstances where the conduct of such parties in the circumstances in
question is determined to have constituted negligence.
(D) I express no opinion herein as to (i) Section 10.05 of
the Reimbursement Agreement, (ii) the enforceability of provisions purporting
to grant to a party conclusive rights of determination, (iii) the
availability of specific performance or other equitable remedies, and
(iv) the enforceability of waivers by parties of their respective rights and
remedies under law.
(E) I express no opinion as to the validity, perfection,
or priority of any security interest or lien created or granted under any of
the Documents.
(F) With respect to my opinion in paragraph 7, below, I
have assumed (or, in the case of clause (ii) below, have relied on the fact)
that i) the Issuing Bank's, the Agent's and each Participating Bank's
decision to enter into the transactions contemplated by the Reimbursement
Agreement was not made in the State of Connecticut, ii) the execution and
delivery of the Letter of Credit and the Reimbursement Agreement by the
Issuing Bank, the Agent and each Participating Bank did not take place in the
State of Connecticut, iii) any funds disbursed by the Issuing Bank, the Agent
or any Participating Bank pursuant to the Letter of Credit or the
Reimbursement Agreement will be disbursed from outside of the State of
Connecticut, iv) all payments to the Issuing Bank, the Agent or any
Participating Bank pursuant to the Reimbursement Agreement will be made to a
bank account or bank accounts established at a branch office or branch
offices located outside of the State of Connecticut and v) neither the
Issuing Bank, the Agent nor any Participating Bank has an office in
Connecticut or has officers or agents in Connecticut for the solicitation of
business.
(G) With respect to my opinion in paragraph 7, below, my
opinion is limited solely to the transactions contemplated by the
Reimbursement Agreement, and I express no opinion as to any other business or
transactions the Issuing Bank, the Agent or any Participating Bank may engage
in in the State of Connecticut.
Based upon the foregoing and upon such investigation as I
have deemed necessary, I am of the following opinion:
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Connecticut, has
the requisite corporate power and authority to own its property and assets
and to carry on its business as now conducted, and is duly qualified to do
business in, and is in good standing in all other jurisdictions where the
nature of its business or the nature of property owned or used by it makes
such qualification necessary.
2. The execution, delivery, and performance by the
Company of the Documents are within the Company's corporate powers, have been
duly authorized by all necessary corporate or other similar action, and do
not and will not contravene (a) the Company's Charter or By-laws, (b) any
law, or (c) to the best of my knowledge, any contractual restriction
contained in any material agreement binding on or affecting the Company. The
Documents have been duly executed and delivered by the Company.
3. No authorization, consent, approval, license, permit,
certificate, exemption of, or filing or registration with, any governmental
authority or other legal or regulatory body (other than in connection with or
in compliance with the provisions of the state securities or "Blue Sky" laws
of any jurisdiction, as to which I express no opinion) is required to be
obtained or made in connection with the execution, delivery, or performance
by the Company of the Documents or the grant and perfection of any security
interest or lien contemplated by the Pledge Agreement, except for the Orders,
each of which has been duly obtained and is in full force and effect, and any
post-closing filings required by such Orders. The period for appeal of the
SEC
Order has not expired; however, the filing of an appeal of the SEC Order will
not affect the validity of said transactions, unless the SEC Order
has been otherwise stayed or any of the parties thereto has actual knowledge
that any of such transactions constitutes a violation of the Act or any
rule or regulation thereunder. To the best of my knowledge, no such stay
exists, and I have no reason to believe that any of such transactions
constitutes any such violation. The period for appeal of such decision of
the CDPUC has not expired; however, the filing of an appeal of such decision
will not affect the validity of said transactions, unless the operation of
such decision has been stayed or suspended by the CDPUC or a reviewing court
prior to the consummation of said transactions. To the best of my knowledge,
no such stay or suspension exists.
4. The Documents are the legal, valid, and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms. The Related Documents to which the Company is a
party are in full force and effect.
5. There is no pending or, to the best of my knowledge,
threatened action or proceeding affecting the Company or its properties
before any court, governmental agency, or arbitrator (a) which affects or
purports to affect the legality, validity or enforceability of any Document
or Related Document or (b) 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, or operations of the
Company, except, for purposes of this clause (b) only, such as is described
in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, in the Company's Quarterly Reports on Form 10-Q for the
periods ended March 31, 1994 and/or June 30, 1994, or in Schedule II to the
Reimbursement Agreement.
6. All outstanding shares of capital stock having
ordinary voting power for the election of directors of the Company are owned
of record and 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).
7. Neither the Issuing Bank, the Agent nor any
Participating Bank is required to qualify to do business in the State of
Connecticut or to comply with the requirements of any foreign lender statute
in the State of Connecticut, by virtue solely of the execution, delivery,
performance or enforcement of the Letter of Credit or the Reimbursement
Agreement or as a condition or requirement to avail itself of the remedies
provided by the Reimbursement Agreement, the Indenture or the Pledge
Agreement.
All counsel rendering opinions in connection with the
transactions contemplated by the Documents may, in rendering such opinions,
rely on this opinion as if it were addressed specifically to them.
Very truly yours,
/s/Jeffrey C. Miller
EXHIBIT 5.01B
OPINION OF COUNSEL
(King & Spalding)
August 29, 1994
Deutsche Bank AG, New York Branch,
as Issuing Bank and Agent under the
Reimbursement Agreement referred to below,
and each Participating Bank thereunder
c/o Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, New York 10019
$15,400,000
Business Finance Authority (formerly The Industrial
Development Authority) of the State of New Hampshire
Pollution Control Revenue Par Value Demand Bonds
(The Connecticut Light and Power Company Project)
Series 1986 (the "Bonds")
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section
5.01(f)(ii) of the Letter of Credit and Reimbursement Agreement, dated as of
August 1, 1994 (the "Reimbursement Agreement"), among The Connecticut Light
and Power Company (the "Company"), Deutsche Bank AG, New York Branch, as the
Agent (the "Agent") and Issuing Bank (the "Issuing Bank") thereunder, and the
Participating Banks referred to therein. Unless otherwise defined herein,
terms defined in the Reimbursement Agreement are used herein as therein
defined.
We have acted as special New York counsel to the Agent and the
Issuing Bank in connection with the preparation, execution and delivery of
the Reimbursement Agreement and the issuance by the Issuing Bank of the
Letter of Credit referred to therein.
In that connection, we have examined the following documents:
(a) The Reimbursement Agreement, executed by each of the
parties thereto; and
(b) The documents furnished to you today pursuant to
Section 5.01 of the Reimbursement Agreement, including the opinion of counsel
delivered pursuant to Section 5.01(f)(i) of the Reimbursement Agreement (the
"Opinion").
In our examination of the documents referred to above, we have
assumed the authenticity of all such documents submitted to us as originals,
the genuineness of all signatures, the due authority of the parties executing
such documents and the conformity to the originals of all such documents
submitted to us as copies or telecopies. We have also assumed that the
Agent, the Issuing Bank and each Participating Bank have duly executed and
delivered, with all necessary power and authority (corporate and otherwise),
the Reimbursement Agreement.
To the extent that our opinions expressed below involve
conclusions as to matters governed by laws other than the laws of the State
of New York, we have relied upon the Opinion and have assumed without
independent investigation the correctness of the matters set forth therein,
our opinions expressed below being subject to the assumptions, qualifications
and limitations set forth in the Opinion. As to matters of fact, we have
relied solely upon the documents we have examined.
Based upon the foregoing, and subject to the qualifications
set forth below, we are of the opinion that:
1. The Reimbursement Agreement is in substantially
acceptable legal form.
2. The Opinion and the other documents referred to in
item (b), above, are substantially responsive to the requirements of the
Sections of the Reimbursement Agreement pursuant to which the same have been
delivered.
The foregoing opinions are solely for your benefit and may not
be relied upon by any other person, other than any person that may become a
Participating Bank under the Reimbursement Agreement after the date hereof.
Very truly yours,
/s/King & Spalding
