FILE NO. 70-8875
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 6
(AMENDMENT NO. 8)
TO
FORM U-1
APPLICATION/DECLARATION WITH RESPECT TO (1) PROPOSED REVOLVING CREDIT
FACILITY FOR NORTHEAST UTILITIES ("NU"), THE CONNECTICUT LIGHT AND POWER
COMPANY ("CL&P") AND WESTERN MASSACHUSETTS ELECTRIC COMPANY ("WMECO") AND
(2) INCREASES AND EXTENSIONS OF SHORT-TERM BORROWING LIMITS OF NU, CL&P,
WMECO, PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE,
HOLYOKE WATER POWER COMPANY AND NORTH ATLANTIC
ENERGY CORPORATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
Northeast Utilities The Connecticut Light
Western Massachusetts Electric Company and Power Company
174 Brush Hill Avenue 107 Selden Street
West Springfield, MA 01090-0010 Berlin, CT 06037
Holyoke Water Power Company Public Service Company of New Hampshire
Canal Street North Atlantic Energy Corporation
Holyoke, MA 01040 1000 Elm Street
Manchester, NH 03015
(Name of companies filing this statement and addresses of
principal executive offices)
NORTHEAST UTILITIES
(Name of top registered holding company)
Robert P. Wax, Esq.
Vice President, Secretary and General Counsel
Northeast Utilities Service Company
107 Selden Street
Berlin, CT 06037
(Name and address of agent for service)
The Commission is requested to mail signed copies of all orders,
notices and communications to
Jeffrey C. Miller, Esq. David R. McHale Richard C. MacKenzie, Esq.
Assistant General Assistant Treasurer - Day, Berry & Howard
Counsel Finance CityPlace I
Northeast Utilities Northeast Utilities Hartford, CT 06103-3499
Service Company Service Company
107 Selden Street 107 Selden Street
Berlin, CT 06037 Berlin, CT 06037
<PAGE>
The following exhibits are filed herewith:
B.4(a) First Amendment and Waiver - Execution Copy
B.8 Collateral Agency Agreement - Execution Copy
Pursuant to the requirements of the Public Utility Holding Company Act of
1935, as amended, the undersigned have duly caused this Amendment to be signed
on behalf of each of them by the undersigned thereunto duly authorized.
Date: May 30, 1997
NORTHEAST UTILITIES
THE CONNECTICUT LIGHT AND POWER COMPANY
WESTERN MASSACHUSETTS ELECTRIC COMPANY
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
HOLYOKE WATER POWER COMPANY
NORTH ATLANTIC ENERGY CORPORATION
By: Day, Berry & Howard
CityPlace I
Hartford, Connecticut 06103-3499
By: /s/ Richard C. MacKenzie
A Partner
EXHIBIT B.4(a)
[EXECUTION COPY]
FIRST AMENDMENT AND WAIVER
Dated as of May 30, 1997
This FIRST AMENDMENT AND WAIVER dated as of May 30, 1997 (the
"Amendment") among NORTHEAST UTILITIES ("NU"), THE CONNECTICUT LIGHT AND
POWER COMPANY ("CL&P") and WESTERN MASSACHUSETTS ELECTRIC COMPANY ("WMECO"; NU,
CL&P and WMECO, each being a "Borrower", and collectively, the "Borrowers"),
the various financial institutions listed on the signature pages hereto and
CITIBANK, N.A., as administrative agent and collateral agent (the
"Administrative Agent").
WHEREAS, the Borrowers, certain Banks and the Administrative Agent have
entered into a Credit Agreement dated as of November 21, 1996 (as amended to
the date hereof, being the "Existing Credit Agreement"; and the Existing Credit
Agreement as amended by this Amendment, being the "Amended Credit Agreement";
capitalized terms used herein unless otherwise defined herein shall have the
meanings set forth in the Existing Credit Agreement);
WHEREAS, pursuant to a Letter Waiver dated February 12, 1997 from the
Majority Lenders to NU, as extended by those certain letters dated March 1,
1997, March 25, 1997 and April 2, 1997 from the Majority Lenders to certain
Borrowers, the Lenders temporarily waived compliance by NU with the interest
coverage ratio set forth in Section 7.03(b) of the Existing Credit Agreement in
respect of the Fiscal Quarter ended December 31, 1996;
WHEREAS, pursuant to a Letter Waiver dated March 26, 1997 from the
Majority Lenders to CL&P, as extended by that certain letter dated April 2,
1997 from the Majority Lenders to certain Borrowers, the Lenders temporarily
waived compliance by CL&P with the interest coverage ratio set forth in Section
7.03(b) of the Existing Credit Agreement in respect of the Fiscal Quarter ended
March 31, 1997;
WHEREAS, pursuant to that certain Interim Waiver dated March 25, 1997
from the Lenders to the Borrowers, the Borrowers and the Lenders agreed to
extend the expiration date of the above referenced Letter Waivers until May 30,
1997 in order to, among other things, (i) amend the Existing Credit Agreement
as provided for herein and (ii) permanently waive compliance with the interest
coverage ratio covenant set forth in Section 7.03(b) of the Existing
Credit Agreement by NU, with respect to the Fiscal Quarter ended December 31,
1996, and CL&P, with respect to the Fiscal Quarter ended March 31, 1997; and
WHEREAS, the Majority Lenders and the Borrowers have agreed to amend
the Existing Credit Agreement and permanently waive compliance with the
interest coverage ratio covenant set forth in Section 7.03(b) of the Existing
Credit Agreement by NU and CL&P with respect to certain Fiscal Quarters as
hereinafter set forth;
NOW THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
SECTION 1. Waiver. (a) Effective as of December 31, 1996 and subject
to the satisfaction of the conditions precedent set forth in Section 3 hereof,
the Lenders hereby permanently waive compliance by NU with the interest
coverage ratio covenant set forth in Section 7.03(b) of the Existing Credit
Agreement in respect of the Fiscal Quarter ended December 31, 1996.
(b) Effective as of March 31, 1997 and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, the
Lenders hereby permanently waive compliance by CL&P with the interest coverage
ratio covenant set forth in Section 7.03(b) of the Existing Credit Agreement in
respect of the Fiscal Quarter ended March 31, 1997.
(c) Effective as of November 21, 1996 and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, the
Lenders hereby permanently waive any Event of Default resulting from the
failure of the Borrowers to include on Schedule III to the Credit Agreement the
Debt listed under the caption "The Rocky River Realty Company" on Schedule III
attached to the Amended Credit Agreement.
SECTION 2. Amendment and Restatement of the Existing Credit Agreement.
The Existing Credit Agreement, including, without limitation, the schedules and
exhibits thereto, is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, hereby
amended and restated in its entirety to read as set forth in Exhibit A
attached hereto.
SECTION 3. Conditions of Effectiveness. (a) This Amendment shall
become effective when, and only when, the Administrative Agent shall have
received all of the following documents, each document (unless otherwise
indicated) being dated the date of receipt thereof by the Administrative Agent
(which date shall be the same for all such documents), in form and substance
satisfactory to the Administrative Agent and in sufficient copies for each
Lender (except in the case of clause (v) below):
(i) Counterparts of this Amendment, duly executed by each
Borrower and by the Majority Lenders;
(ii) Finalized Collateral FMBs (as defined in the Amended
Credit Agreement) of CL&P and WMECO, duly executed by CL&P or WMECO, as
the case may be, and authenticated by the applicable trustee;
(iii) Counterparts of the Collateral Agency Agreement entered
into among the Borrowers, the Lenders and Citibank, N.A., as collateral
agent, duly executed by each party thereto;
(iv) A certificate of the Secretary or Assistant Secretary of
each Borrower certifying:
(A) the names and true signatures of the officers of
such Borrower authorized to sign this Amendment, the applicable
Collateral FMB (in the case of CL&P and WMECO) and the other
documents to be delivered by such Borrower hereunder;
(B) (1) that, in the case of NU, its Declaration of
Trust, and in the case of WMECO, its Articles of Incorporation
and By-laws, together with all amendments thereto, as in effect
on such date, have not been amended, supplemented or otherwise
modified since November 21, 1996, and (2) in the case
of CL&P, that attached thereto are true and correct copies of
all amendments, supplements and other modifications made to its
Articles of Incorporation and By-Laws since November 21, 1996;
(C) that attached thereto are true and correct copies
of: (1) in the case of NU, the resolutions of its Board of
Trustees and, in the case of CL&P and WMECO, the resolutions of
their respective Boards of Directors, in each case approving
this Amendment, the applicable Collateral FMB (in the case of
CL&P and WMECO) and the other documents to be delivered by or on
behalf of such Borrower hereunder; (1) all documents evidencing
other necessary corporate or other similar action, if any, with
respect to the execution, delivery and performance by such
Borrower of this Amendment, the applicable Collateral FMB
(in the case of CL&P and WMECO) and the other documents to be
delivered by or on behalf of such Borrower hereunder; and (1)
true and correct copies of all Governmental Approvals referred
to in clauses (i) and (ii) of the definition of "Governmental
Approval" required to be obtained or made by such Borrower in
connection with the execution, delivery and performance by such
Borrower of this Amendment, the applicable Collateral FMB (in
the case of CL&P and WMECO) and the other documents to be
delivered by or on behalf of such Borrower hereunder; and
(D) that the resolutions referred to in the foregoing
clause (C)(1) have not been modified, revoked or rescinded and
are in full force and effect on such date.
(v) A certificate of the Secretary or Assistant Secretary of
each of WMECO and CL&P delivered to the Administrative Agent certifying
that attached thereto are true and complete copies of its First
Mortgage Indenture, together with any modifications, amendments or
supplements delivered subsequent thereto and in effect on the date
hereof which have the effect of modifying or amending the terms of its
First Mortgage Indenture as it relates to its Collateral FMBs;
(vi) Favorable opinions of:
(A) Day, Berry & Howard, counsel to the Borrowers, as
to such matters as the Administrative Agent may reasonably
request;
(B) Peabody & Brown, counsel to WMECO, as to such
matters as the Administrative Agent may reasonably request; and
(C) Jeffrey C. Miller, Assistant General Counsel of
NUSCO, as to such matters as the Administrative Agent may
reasonably request;
(vii) Such financial, business and other information regarding
each Borrower and its Principal Subsidiaries, as any Agent shall have
reasonably requested; and
(viii) All fees and other amounts payable pursuant to Section
2.02 of the Amended Credit Agreement or pursuant to that certain
Amendment Fee Letter dated the date hereof between the Borrowers and
the Administrative Agent shall have been paid (to the extent then due
and payable).
(b) The Administrative Agent shall have received such other
approvals, opinions and documents as the Majority Lenders, through the
Administrative Agent, shall have reasonably requested as to the legality,
validity, binding effect or enforceability of this Amendment and the
Collateral FMBs, or the financial condition, operations, properties or
prospects of each Borrower and their respective Principal Subsidiaries.
SECTION 4. Representations and Warranties of the Borrower. Each
Borrower represents and warrants as follows:
(a) the representations and warranties of such Borrower
contained in Section 6.01 of the Amended Credit Agreement are correct,
in all material respects, on and as of the date hereof; and
(b) no Event of Default or Unmatured Default with respect to
such Borrower has occurred and is continuing under the Amended Credit
Agreement.
SECTION 5. Reference to and Effect on the Loan Documents. (a) Upon
the effectiveness of this Amendment, on and after the date hereof, reference in
the Loan Documents (as defined in Amended Credit Agreement) to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Credit Agreement, shall mean and be a reference to the Amended Credit
Agreement.
(a) Except as specifically amended above, the Existing
Credit Agreement and the other Loan Documents, are and shall continue to be in
full force and effect and are hereby in all respects ratified and confirmed.
(a) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in Sections 1 and 2 hereof,
operate as a waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.
SECTION 6. Costs, Expenses and Taxes. The Borrowers agree to pay on
demand: (i) all costs and expenses of the Administrative Agent in connection
with the preparation, negotiation, execution and delivery of the Loan
Documents, the administration of the Loan Documents, and any proposed
modification, amendment, or consent relating thereto (including, in each case,
the reasonable fees and expenses of counsel to the Administrative Agent); and
(ii) all costs and expenses of the Administrative Agent and each Lender
(including all fees and expenses of counsel) in connection with the
enforcement, whether through negotiations, legal proceedings or otherwise,
of the Loan Documents. In addition, the Borrowers agree to pay on demand any
and all stamp and other taxes payable or determined to be payable in connection
with the execution and delivery of this Amendment, the Collateral FMBs and the
other instruments and documents to be delivered hereunder, and agree to save
the Administrative Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission
to pay such taxes.
SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same agreement.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
NORTHEAST UTILITIES
By:/s/ David R. McHale
Name: David R. McHale
Title: Assistant Treasurer
THE CONNECTICUT LIGHT AND
POWER COMPANY
By: /s/ David R. McHale
Name: David R. McHale
Title: Assistant Treasurer
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By: /s/ David R. McHale
Name: David R. McHale
Title: Assistant Treasurer
CITIBANK, N.A.,
as Administrative Agent, Collateral Agent and
Lender
By: /s/ Paul T. Addison
Name: Paul T. Addison
Title: Attorney in Fact
TORONTO DOMINION
(NEW YORK), INC.,
as Co-Agent and Lender
By: /s/ Katherine Lucey
Name: Katherine Lucey
Title: Director
FLEET NATIONAL BANK,
as Co-Agent and Lender
By: /s/ Suresh V. Chivukula
Name: Suresh V. Chivukula
Title: Sr. Vice President
CIBC INC.,
as Co-Agent and Lender
By: /s/ Denis P. O'Meara
Name: Denis P. O'Meara
Title: Director
THE FIRST NATIONAL BANK OF
CHICAGO, as Co-Agent and Lender
By: /s/ Madeleine N. Penber
Name: Madeleine N. Penber
Title: Corporate Banking Officer
BANKBOSTON, N.A.
(formerly known as THE FIRST NATIONAL BANK OF BOSTON),
as Lender
By: /s/ Frank T. Smith
Name: Frank T. Smith
Title: Director
BARCLAYS BANK PLC,
as Lender
By: /s/ Sydney G. Dennis
Name: Sydney G. Dennis
Title: Director
MELLON BANK, N.A.,
as Lender
By:/s/ A. J. Sabatelle
Name: A. J. Sabatelle
Title: First Vice President
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH,
as Lender
By: /s/ Paul R. Morrison
Name: Paul R. Morrison
Title: Vice President
By: /s/ Andrew N. Taylor
Name: Andrew N. Taylor
Title: Assistant Vice President
SWISS BANK CORPORATION,
NEW YORK BRANCH,
as Lender
By: /s/ Gary Riddell
Name: Gary Riddell
Title: Director
Credit Risk Management
By: /s/ James J. Diaz
Name: James J. Diaz
Title: Director
Banking Finance Support, N.A.
THE YASUDA TRUST AND BANKING CO., LTD.,
NEW YORK BRANCH,
as Lender
By: /s/ Rohn Laudenschlager
Name: Rohn Laudenschlager
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By: /s/ Karyssa M. Britton
Name: Karyssa M. Britton
Title: Vice President
Signature Page to First Amendment and Waiver
<PAGE>
EXHIBIT A to the
First Amendment and Waiver
CREDIT AGREEMENT
Dated as of November 21, 1996
Among
NORTHEAST UTILITIES
THE CONNECTICUT LIGHT
AND POWER COMPANY
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
as Borrowers
THE CO-AGENTS AND BANKS NAMED HEREIN
CITICORP SECURITIES, INC.
As Arranger
TORONTO DOMINION SECURITIES (USA) INC.
As Syndication Agent
FLEET NATIONAL BANK
As Documentation Agent
and
CITIBANK, N.A.
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
Section Page
PRELIMINARY STATEMENT
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . 18
1.03. Accounting Terms; Financial Statements. . . . . . . . . . . . . . . . 18
1.04. Computations of Outstandings. . . . . . . . . . . . . . . . . . . . . 18
ARTICLE II
COMMITMENTS
2.01. The Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.02. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.03. Reduction of the Commitments; Borrower Sublimits; Release
of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.04. Extension of the Termination Date . . . . . . . . . . . . . . . . . . 21
ARTICLE III
CONTRACT AND COMPETITIVE ADVANCES
3.01. Contract Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.02. Terms Relating to the Making of Contract Advances . . . . . . . . . . 21
3.03. (a) Competitive Advances. . . . . . . . . . . . . . . . . . . . . . 22
(b) Competitive Bid Procedures . . . . . . . . . . . . . . . . . . 22
3.04. Making of Advances. . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.05. Repayment of Advances . . . . . . . . . . . . . . . . . . . . . . . . 27
3.06. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.07. Several Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE IV
PAYMENTS
4.01. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . 29
4.02. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.03. Yield Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.04. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . 34
4.05. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE V
CONDITIONS PRECEDENT
5.01. Conditions Precedent to Effectiveness . . . . . . . . . . . . . . . . 37
5.02. Conditions Precedent to Certain Contract Advances and All Competitive
Advances . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.03. Conditions Precedent to Other Contract Advances . . . . . . . . . . . 40
5.04. Reliance on Certificates. . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Representations and Warranties of the Borrowers . . . . . . . . . . . 41
ARTICLE VII
COVENANTS OF THE BORROWERS
7.01. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . 46
7.02. Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . 49
7.03. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.04. Reporting Obligations . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE VIII
DEFAULTS
8.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.02. Remedies Upon Events of Default . . . . . . . . . . . . . . . . . . . 62
ARTICLE IX
THE AGENTS
9.01. Authorization and Action. . . . . . . . . . . . . . . . . . . . . . . 63
9.02. Administrative Agent's Reliance, Etc. . . . . . . . . . . . . . . . . 63
9.03. Citibank and Affiliates . . . . . . . . . . . . . . . . . . . . . . . 64
9.04. Lender Credit Decision. . . . . . . . . . . . . . . . . . . . . . . . 64
9.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.06. Successor Administrative Agent. . . . . . . . . . . . . . . . . . . . 65
ARTICLE X
MISCELLANEOUS
10.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.02. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.03. No Waiver of Remedies. . . . . . . . . . . . . . . . . . . . . . . . 67
10.04. Costs, Expenses and Indemnification. . . . . . . . . . . . . . . . . 67
10.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.06. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.07. Assignments and Participation. . . . . . . . . . . . . . . . . . . . 69
10.08. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.09. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . 73
10.10. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.11. Relation of the Parties; No Beneficiary. . . . . . . . . . . . . . . 73
10.12. Execution in Counterparts. . . . . . . . . . . . . . . . . . . . . . 73
10.13. Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . 73
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Pending Actions
Schedule III - NU Debt
Schedule IV - Existing Credit Facilities
EXHIBITS
Exhibit 1.01A - Form of Competitive Note
Exhibit 1.01B - Form of Contract Note
Exhibit 1.01C - CL&P Collateral FMB
Exhibit 1.01D - WMECO Collateral FMB
Exhibit 1.01E - Collateral Agency Agreement
Exhibit 3.01 - Form of Notice of Contract Borrowing
Exhibit 3.03A-1 - Form of Competitive Bid Request for Eurodollar
Competitive
Borrowing
Exhibit 3.03A-2 - Form of Competitive Bid Request for Fixed Rate
Competitive
Borrowing
Exhibit 3.03B - Form of Notice of Competitive Bid Request
Exhibit 3.03C-1 - Form of Competitive Bid for Eurodollar Competitive
Advance
Exhibit 3.03C-2 - Form of Competitive Bid for Fixed Rate Competitive
Advance
Exhibit 3.03D-1 - Form of Competitive Bid Acceptance for Eurodollar
Competitive Borrowing
Exhibit 3.03D-2 - Form of Competitive Bid Acceptance for Fixed Rate
Competitive Borrowing
Exhibit 5.01A - Form of Opinion of Day, Berry & Howard,
Counsel to the Borrowers
Exhibit 5.01B-1 - Form of Opinion of Jeffrey C. Miller, Assistant General
Counsel
of NUSCO
Exhibit 5.01B-2 - Form of Opinion of Catherine E. Shively, Senior Counsel
of PSNH
Exhibit 5.01B-3 - Form of Opinion of Richard Early, Senior Counsel of NUSCO
Exhibit 5.01C - Form of Opinion of King & Spalding, Special New York
Counsel to the Administrative Agent
Exhibit 10.07 - Form of Assignment and Acceptance
<PAGE>
CREDIT AGREEMENT
Dated as of November 21, 1996
This CREDIT AGREEMENT is made by and among:
(i) NORTHEAST UTILITIES, an unincorporated voluntary business association
organized under the laws of the Commonwealth of Massachusetts ("NU");
(ii) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation organized under
the laws of the State of Connecticut ("CL&P");
(iii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation organized under
the laws of the Commonwealth of Massachusetts ("WMECO"; CL&P, NU and
WMECO, each being a "Borrower", and collectively, the "Borrowers");
(iv) CIBC INC. and THE FIRST NATIONAL BANK OF CHICAGO, as co-agents (the
"Co-Agents") hereunder;
(v) The financial institutions (the "Banks") listed on the signature pages
hereof and the other Lenders (as hereinafter defined) from time to
time party hereto; and
(vi) CITIBANK, N.A. ("Citibank"), as Administrative Agent for the Lenders
hereunder,
PRELIMINARY STATEMENT
The Borrowers have requested the Banks to provide the credit facility
hereinafter described in the amounts and on the terms and conditions set forth
herein. The Banks have so agreed on the terms and conditions set forth herein,
and the Administrative Agent has agreed to act as agent for the Lenders on such
terms and conditions.
Based upon the foregoing and subject to the terms and conditions set forth
in this Agreement, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Administrative Agent" means, collectively, Citibank in its capacity
as administrative agent hereunder or any successor thereto as provided
herein and the Collateral Agent.
"Advance" means a Contract Advance or a Competitive Advance (each of
which shall be a "Class" of Advance).
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct or
indirect common control with such Person. A Person shall be deemed to
control another entity if such Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and policies
of such entity, whether through the ownership of voting securities, by
contract or otherwise.
"Agents" means, collectively, the Administrative Agent and the
Co-Agents in their respective capacities as such.
"Agreement" means this Credit Agreement, as the same may be modified,
amended and/or supplemented pursuant to the terms hereof.
"Aggregate Dividend Paying Availability" means the aggregate amount
(without duplication) of consolidated retained earnings and consolidated
capital surplus, paid in, of the Operating Companies available for the
payment of dividends to NU, after giving effect to any legal, regulatory or
contractual restrictions applicable to the payment of such dividends,
together with any accrued interim liabilities for dividends declared and
payable to NU, in each case to the extent payment thereof is not in default
or restricted by law, regulation or contract.
"Applicable Facility Fee Rate" means, for each Borrower for any day,
the percentage per annum set forth below in effect on such day, determined
on the basis of the Applicable Rating Level of NU:
<TABLE>
<CAPTION>
Facility Fee
Applicable Rating Level (NU) Percentage (%)
<S> <C>
Level I 0.175
Level II 0.200
Level III 0.250
Level IV 0.300
Level V 0.500
</TABLE>
Any change in the Applicable Facility Fee Rate caused by a change in the
Applicable Rating Level shall take effect at the time such change in the
Applicable Rating Level shall occur.
"Applicable Lending Office" means, with respect to each Lender:
(i) in the case of any Contract Advance, (A) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar Rate Advance
or (B) such Lender's "Domestic Lending Office" in the case of a Base
Rate Advance, in each case as specified opposite such Lender's name on
Schedule I hereto or in the Lender Assignment pursuant to which it
became a Lender; or
(ii) in the case of any Competitive Advance, the office or
Affiliate of such Lender identified as the Applicable Lending Office
in such Lender's Competitive Bid tendered pursuant to Section 3.03
hereof; or
(iii) in each case, such other office or Affiliate of such
Lender as such Lender may from time to time specify in writing to the
Borrowers and the Administrative Agent.
"Applicable Margin" means, for each Borrower, for any day for any
outstanding Contract Advance, the percentage per annum set forth below in
effect on such day, determined on the basis of the Applicable Rating Level
for such Borrower:
<TABLE>
<CAPTION>
Applicable Margin (Percentag %)
Applicable Rating NU CL&P and WMECO
Level
<S> <C> <C> <C> <C>
Eurodollar Rate Base Rate Advances Eurodollar Rate Base Rate
Advances Advances Advances
Level I 0.225 0 0.20 0
Level II 0.275 0 0.25 0
Level III 0.45 0 0.40 0
Level IV 1.075 1.00 0.95 1.00
Level V 1.45 1.00 1.20 1.00
</TABLE>
Any change in the Applicable Margin caused by a change in the Applicable
Rating Level shall take effect at the time such change in the Applicable
Rating Level shall occur.
"Applicable Rate" means, for each Borrower:
(i) in the case of each Eurodollar Rate Advance comprising part
of the same Borrowing requested by such Borrower, a rate per annum
during each Interest Period equal at all times to the sum of the
Eurodollar Rate for such Interest Period plus the Applicable Margin in
effect from time to time during such Interest Period for such
Borrower;
(ii) in the case of each Base Rate Advance requested by such
Borrower, a rate per annum equal at all times to the sum of the Base
Rate in effect from time to time plus the Applicable Margin in effect
from time to time for such Borrower;
(iii) in the case of each Eurodollar Competitive Advance
requested by such Borrower, a rate per annum during the Interest
Period therefor equal at all times to the sum of the Eurodollar Rate
for such Interest Period plus or minus, as the case may be, the
Competitive Margin in effect during such Interest Period for such
Borrower; and
(iv) in the case of each Fixed Rate Competitive Advance requested
by such Borrower, a rate per annum during the Interest Period therefor
equal at all times to the rate specified by such Lender in its
Competitive Bid and accepted by such Borrower for such Competitive
Advance in accordance with Section 3.03(b)(iv) hereof.
"Applicable Rating Level" for each Borrower shall be determined at any
time and from time to time on the basis of the ratings of S&P and Moody's
applicable at such time to such Borrower's Reference Securities in
accordance with the following:
Applicable Rating Level
In the event of a split rating, the lower of the two ratings shall control.
The Applicable Rating Level shall be redetermined as and when any change in
the ratings used in the determination thereof shall be announced by S&P or
Moody's, as the case may be.
"Available Commitment" means, for each Lender, the unused portion of
such Lender's Commitment (which shall be equal to the excess, if any, of
such Lender's Commitment over such Lender's Contract Advances outstanding),
less such Lender's Percentage of the aggregate amount of Competitive
Advances outstanding. "Available Commitments" shall refer to the aggregate
of the Lenders' Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the caption to this
Agreement.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's base rate;
(b) 1/2 of one percent per annum above the latest three-week
moving average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major United
States money market banks, such three-week moving average being
determined weekly by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, in either case rounded
upward to the nearest 1/16th of one percent (the "CD Rate"); and
(c) 1/2 of one percent per annum above the Federal Funds Rate in
effect from time to time.
If the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain
the CD Rate or the Federal Funds Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition, in the event the Administrative Agent is unable to ascertain
the CD Rate, and clause (c) of the first sentence of this definition, in
the event the Administrative Agent is unable to ascertain the Federal Funds
Rate, until the circumstances giving rise to such inability no longer
exist. Any change in the Base Rate due to a change in Citibank's base
rate, the CD Rate or the Federal Funds Rate shall be effective on the
effective date of such change in Citibank's base rate, the CD Rate or the
Federal Funds Rate, respectively.
"Base Rate Advance" means a Contract Advance in respect of which a
Borrower has selected in accordance with Article III hereof, or this
Agreement provides for, interest to be computed on the basis of the Base
Rate.
"Borrower" or "Borrowers" has the meaning assigned to that term in the
caption to this Agreement.
"Borrower Sublimit" means: (i) with respect to NU, $0; (ii) with
respect to CL&P, the lesser of (a) $313,750,000 and (b) the Secured
Available Amount and (iii) with respect to WMECO, the lesser of
(a) $150,000,000 and (b) the Secured Available Amount; provided, however,
with respect to NU only, if for any two consecutive Fiscal Quarters, each
Borrower shall maintain a ratio of Consolidated Operating Income to
Consolidated Interest Expense of not less than 2.50:1.0 for each such
Borrower, then, upon the delivery by the Borrowers of evidence reasonably
satisfactory to the Administrative Agent of such maintenance, the Borrower
Sublimit of NU shall equal $50,000,000.
"Borrowing" means a Contract Borrowing or Competitive Borrowing (each
of which shall be a "Class" of Borrowing).
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances or Eurodollar Competitive Advances,
on which dealings are carried on in the London interbank market.
"Citibank" has the meaning assigned to that term in the caption to
this Agreement.
"Class" has the meaning assigned to such term (i) in the definition
of "Advance" when used in such context and (ii) in the definition of
"Borrowing" when used in such context.
"CL&P" has the meaning assigned to that term in the caption to this
Agreement.
"CL&P Indenture" has the meaning assigned to that term in
Section 7.02(a)(ii)(B) hereof.
"Closing Date" means November 21, 1996.
"Co-Agents" has the meaning assigned to that term in the caption to
this Agreement.
"Collateral" means, (i) with respect to CL&P, the Collateral FMB
issued by CL&P and (ii) with respect to WMECO, the Collateral FMB issued by
WMECO.
"Collateral Agent" means Citibank in its capacity as collateral agent
or any successor thereto as provided in the Collateral Agency Agreement.
"Collateral Agency Agreement" means the Collateral Agency Agreement in
substantially the form of Exhibit 1.01E hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Collateral FMBs" means, (i) with respect to CL&P, that certain First
and Refunding Mortgage Bond, 1997 Series A, issued by CL&P on the date
hereof pursuant to the CL&P Indenture to the Collateral Agent for the
benefit of the Lenders, in substantially the form of Exhibit 1.01C attached
hereto, and such other collateral mortgage bonds issued by CL&P from time
to time pursuant to the CL&P Indenture to the Collateral Agent for the
benefit of the Lenders, having a maximum interest rate of no less than
11.0% per annum, and (ii) with respect to WMECO, that certain First
Mortgage Bond, 1997 Series A, issued by WMECO on the date hereof pursuant
to the WMECO Indenture to the Collateral Agent for the benefit of the
Lenders in substantially the form of Exhibit 1.01D attached hereto, and
such other collateral mortgage bonds issued by WMECO from time to time
pursuant to the WMECO Indenture to the Collateral Agent for the benefit of
the Lenders, having a maximum interest rate of no less than 8.563% per
annum, in each case, as the same may be amended, supplemented or otherwise
modified from time to time.
"Commitment" means, for each Lender, the aggregate amount set forth
opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into one or more Lender Assignments, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 10.07(c), in each such case as such amount may be reduced from time
to time pursuant to Section 2.03 hereof. "Commitments" shall refer to the
aggregate of the Lenders' Commitments hereunder.
"Common Equity" means, at any date for any Borrower, an amount equal
to the sum of the aggregate of the par value of, or stated capital
represented by, the outstanding common shares of such Borrower and its
Subsidiaries and the surplus, paid-in, earned and other, if any, of such
Borrower and its Subsidiaries, in each case as determined on a consolidated
basis in accordance with generally accepted accounting principles.
"Competitive Advance" means an advance by a Lender to a Borrower as
part of a Competitive Borrowing and refers to a Fixed Rate Competitive
Advance or a Eurodollar Competitive Advance (each of which shall be a
"Type" of Competitive Advance).
"Competitive Bid" means the offer by a Lender to make a Competitive
Advance to a Borrower under the competitive bidding procedure described in
Section 3.03(b).
"Competitive Bid Acceptance" means a notice given by a Borrower to the
Administrative Agent pursuant to Section 3.03(b)(iv) confirming such
Borrower's acceptance of one or more Competitive Bids, such notice to be in
the form of Exhibit 3.03D-1 hereto, in the case of Competitive Bids for
Eurodollar Competitive Advances, or in the form of Exhibit 3.03D-2 hereto,
in the case of Competitive Bids for Fixed Rate Competitive Advances.
"Competitive Bid Rate" means, as to any Competitive Bid made by a
Lender pursuant to Section 3.03(b)(iv), (i) in the case of a Eurodollar
Competitive Advance, the Competitive Margin and (ii) in the case of a Fixed
Rate Competitive Advance, the fixed rate of interest offered by such Lender
making such Competitive Bid.
"Competitive Bid Request" means a request for Competitive Advances
made by a Borrower to the Administrative Agent pursuant to Section
3.03(b)(i), which request shall be in the form of Exhibit 3.03A-1 hereto,
in the case of a request for Competitive Eurodollar Advances, or in the
form of Exhibit 3.03A-2 hereto, in the case of a request for Competitive
Fixed Rate Advances .
"Competitive Borrowing" means a borrowing consisting of one or more
Competitive Advances of the same Type and Interest Period made to a
Borrower on the same day by each of the Lenders whose Competitive Bid to
make one or more Competitive Advances as part of such borrowing has been
accepted by such Borrower under the competitive bidding procedure described
in Section 3.03(b). A Competitive Borrowing may be referred to herein as
being a "Type" of Competitive Borrowing, corresponding to the Type of
Competitive Advances comprising such Borrowing.
"Competitive Margin" means, with respect to any Eurodollar Competitive
Advance, the percentage per annum (expressed in the form of a decimal to no
more than four decimal places) to be added to or subtracted from the
Eurodollar Rate in order to determine the interest rate applicable to such
Advance, as specified in the Competitive Bid relating to such Advance.
"Competitive Note" means a promissory note of a Borrower payable to
the order of a Lender, in substantially the form of Exhibit 1.01A hereto,
evidencing the indebtedness of such Borrower to such Lender from time to
time resulting from Competitive Advances made by such Lender.
"Confidential Information" has the meaning assigned to that term in
Section 10.08 hereof.
"Continuing Directors" means the directors of NU on the Closing Date
and each other director of NU, if such other director's nomination for
election to the Board of Directors of NU is (or was) recommended by a
majority of the then Continuing Directors.
"Consolidated Interest Expense" means, for any Borrower, for any
period, the aggregate amount of any interest required to be paid during
such period by such Borrower and its Subsidiaries on Debt (including the
current portion thereof) (as determined on a consolidated basis in
accordance with generally accepted accounting principles).
"Consolidated Operating Income" means for any Borrower, for any period
(as determined on a consolidated basis in accordance with generally
accepted accounting principles), such Borrower's and its Subsidiaries'
operating income for such period, adjusted as follows:
(i) increased by the amount of income taxes accrued less the amount
of income taxes paid by such Borrower and its Subsidiaries during
such period, if and to the extent deducted in the computation of
such Borrower's and its Subsidiaries' consolidated operating
income for such period;
(ii) increased by the amount of any depreciation and amortization
deducted in the computation of such Borrower's and its
Subsidiaries' consolidated operating income for such period; and
(iii) decreased by the amount of any capital expenditures paid by such
Borrower and/or its Subsidiaries to the extent not deducted in
the computation of such Borrower's and its Subsidiaries'
consolidated operating income for such period.
"Contract Advance" means an advance by a Lender to any Borrower
pursuant to Section 3.01 hereof, and refers to a Eurodollar Rate Advance or
a Base Rate Advance (each of which shall be a "Type" of Contract Advance).
For purposes of this Agreement, all Contract Advances of a Lender (or
portions thereof) of the same Type and Interest Period, if any, made on the
same day to the same Borrower shall be deemed to be a single Advance by
such Lender until repaid.
"Contract Borrowing" means a borrowing consisting of one or more
Contract Advances of the same Type and Interest Period, if any, made to the
same Borrower on the same Business Day by the Lenders, ratably in
accordance with their respective Commitments. A Contract Borrowing may be
referred to herein as being a "Type" of Contract Borrowing, corresponding
to the Type of Contract Advances comprising such Borrowing. For purposes
of this Agreement, all Contract Advances of the same Type and Interest
Period, if any, made on the same day to the same Borrower shall be deemed a
single Contract Borrowing hereunder until repaid.
"Contract Note" means a promissory note of any Borrower payable to the
order of a Lender, in substantially the form of Exhibit 1.01B hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Contract Advances made by such Lender to such Borrower.
"Debt" means, for any Person, without duplication, (i) indebtedness of
such Person for borrowed money, including but not limited to obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (ii) obligations of such Person to pay the deferred purchase
price of property or services (excluding any obligation of such Person to
the United States Department of Energy or its successor with respect to
disposition of spent nuclear fuel burned prior to April 3, 1983), (iii)
obligations of such Person as lessee under leases which shall have been
or should be, in accordance with generally accepted accounting principles,
recorded as capital leases, (iv) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (i) through (iii), above, and (v) liabilities in
respect of unfunded vested benefits under ERISA Plans.
"Disclosure Documents" means with respect to each Borrower, such
Borrower's Annual Report on Form 10-K for the year ended December 31, 1995
and December 31, 1996, its Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996, September 30, 1996, and March
31, 1997, and any Current Report on Form 8-K delivered to the Lenders on or
before May 27, 1997.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means, with respect to any Person, any trade or
business (whether or not incorporated) which is a "commonly controlled
entity" of such Person within the meaning of the regulations under
Section 414 of the Internal Revenue Code of 1986, as amended from time to
time.
"ERISA Multiemployer Plan" means a "multiemployer plan" subject to
Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than a ERISA
Multiemployer Plan) maintained for employees of any Borrower or any ERISA
Affiliate and covered by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event described
in Section 4043 of ERISA and the regulations issued thereunder (other than
a Reportable Event not subject to the provision for 30-day notice to the
PBGC under such regulations) with respect to an ERISA Plan or an ERISA
Multiemployer Plan, or (ii) the withdrawal of any Borrower or any of its
ERISA Affiliates from an ERISA Plan or an ERISA Multiemployer Plan during a
plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA, or (iii) the filing of a notice of intent to
terminate an ERISA Plan or an ERISA Multiemployer Plan or the treatment of
an ERISA Plan or an ERISA Multiemployer Plan under Section 4041 of ERISA,
or (iv) the institution of proceedings to terminate an ERISA Plan or an
ERISA Multiemployer Plan by the PBGC, or (v) any other event or condition
which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any ERISA
Plan or ERISA Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Competitive Advance" means a Competitive Advance in
respect of which a Borrower has selected in accordance with Section 3.03
hereof, and this Agreement provides, interest to be computed on the basis
of the Eurodollar Rate.
"Eurodollar Rate" means, for each Interest Period for each Eurodollar
Rate Advance or Eurodollar Competitive Advance comprising part of the same
Borrowing, an interest rate per annum equal to the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple) of the rates per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference Banks
in London, England to prime banks in the London interbank market at
11:00 a.m. (London time) two Business Days before the first day of such
Interest Period in the amount of $1,000,000 and for a period equal to such
Interest Period. The Eurodollar Rate for the Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from the Reference
Banks two Business Days before the first day of such Interest Period,
subject, however, to the provisions of Sections 3.06(d) and 4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in respect of which
a Borrower has selected in accordance with Article III hereof, and this
Agreement provides for, interest to be computed on the basis of the
Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender for each Interest Period
for each Eurodollar Rate Advance means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be
so applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable)
under Regulation D or other regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement, without
benefit of or credit for proration, exemptions or offsets) for such Lender
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01 hereof.
"Existing Credit Facilities" means the several Three-Year Credit
Agreements, each dated as of December 1, 1992, entered into with
individual banks by (i) CL&P, NU and WMECO, as "Borrowers" thereunder and
NUSCO as the "Borrowers' Agent" thereunder and (ii) CL&P, NU, WMECO, HWP,
NNECO and RRR, as "Borrowers" thereunder and NUSCO as the "Borrowers'
Agent" thereunder, each described on Schedule IV hereto, in each case as
amended, modified or supplemented to the date hereof, together in each case
with all "Notes" issued and "Advances" made thereunder.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fee Letters" means collectively, (i) that certain Fee Letter dated
November 18, 1996 among Citibank, Citicorp Securities, Inc. and the
Borrowers and (ii) that certain Fee Letter dated November 18, 1996 among
The Toronto-Dominion Bank, Toronto Dominion Securities (USA) Inc. and the
Borrowers.
"FERC" means the Federal Energy Regulatory Commission.
"Financing Agreement" has the meaning assigned to that term in Section
7.02(e).
"First Mortgage Bonds" means any bond, however designated, entitled to
the benefits of a First Mortgage Indenture.
"First Mortgage Indenture" means, with respect to CL&P, the CL&P
Indenture; and with respect to WMECO, the WMECO Indenture.
"Fiscal Quarter" means a period of three calendar months ending on the
last day of March, June, September or December, as the case may be.
"Fiscal Year" means a period of twelve calendar months ending on the
last day of December.
"Fixed Rate Competitive Advance" means a Competitive Advance in
respect of which a Borrower has selected in accordance with
Section 3.03(b)(iv) hereof, and this Agreement provides, interest to be
computed on the basis of a fixed percentage rate per annum (expressed in
the form of a decimal to no more than four decimal places) specified by the
Lender making such Advance in its Competitive Bid.
"Fraction" means, in respect of any Borrower as determined at any
time, a fraction, the numerator of which shall be the Borrower Sublimit of
such Borrower at such time, and the denominator of which shall be the sum
of the Borrower Sublimits of all Borrowers at such time.
"Governmental Approval" means any authorization, consent, approval,
license, permit, certificate, exemption of, or filing or registration with,
any governmental authority or other legal or regulatory body (including,
without limitation, the Securities and Exchange Commission, the FERC, the
Nuclear Regulatory Commission, the Connecticut Department of Public Utility
Control and the Massachusetts Department of Public Utilities), required in
connection with either (i) the execution, delivery or performance of any
Loan Document, (ii) the grant and perfection of any security interest, lien
or mortgage contemplated by the Loan Documents, or (iii) the nature of a
Borrower's or any Principal Subsidiary's business as conducted or the
nature of the property owned or leased by it.
"Hazardous Substance" means any waste, substance or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau or instrumentality of the United
States of America or of the State or locality in which the same is located
having or exercising jurisdiction over such waste, substance or material.
"HWP" means Holyoke Water Power Company, a corporation organized under
the laws of the Commonwealth of Massachusetts.
"Indemnified Person" has the meaning assigned to that term in
Section 10.04(b) hereof.
"Information Memorandum" means the confidential Information
Memorandum, dated September, 1996, regarding the Borrowers, as distributed
to the Agents and the Lenders, including, without limitation, all schedules
and attachments hereto.
"Interest Period" has the meaning assigned to that term in
Section 3.06(a) hereof.
"Lender Assignment" means an assignment and acceptance entered into by
a Lender and an assignee, and accepted by the Administrative Agent, in
substantially the form of Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on the signature
pages hereof, and each assignee that shall become a party hereto pursuant
to Section 10.07.
"Lien" has the meaning assigned to that term in Section 7.02(a)
hereof.
"Loan Documents" means this Agreement, the Notes, the Collateral
Agency Agreement and the Collateral FMBs.
"Majority Lenders" means on any date of determination, Lenders who,
collectively, on such date (i) have Percentages in the aggregate of at
least 66-2/3% and (ii) if the Commitments have been terminated, hold at
least 66-2/3% of the then aggregate unpaid principal amount of the Advances
owing to the Lenders. Determination of those Lenders satisfying the
criteria specified above for action by the Majority Lenders shall be made
by the Administrative Agent and shall be conclusive and binding on all
parties absent manifest error.
"Moody's" means Moody's Investors Service, Inc., or any successor
thereto.
"NAEC" means North Atlantic Energy Corporation, a corporation
organized under the laws of the State of New Hampshire.
"Niantic Bay Fuel Lease Agreement" means that certain Nuclear Fuel
Lease Agreement, dated as of January 4, 1982, as amended and restated by
the Amendment to and Restatement of Nuclear Fuel Lease Agreement dated as
of February 11, 1992, between the Niantic Bay Fuel Trust, as lessor and
CL&P and WMECO, as lessees, as amended from time to time in accordance with
the terms of this Agreement.
"Niantic Bay Fuel Trust" means Bankers Trust Company, not in its
individual capacity, but solely as trustee of the Niantic Bay Fuel Trust
under that certain Trust Agreement, dated as of January 4, 1982, as amended
and restated by the Amendment to and Restatement of Trust Agreement dated
as of February 11, 1992, between it, State Street Bank and Trust Company of
Connecticut, National Association (which is the successor trustor to The
New Connecticut Bank and Trust Company, National Association, as assignee
of the Federal Deposit Insurance Company, as receiver of The Connecticut
Bank and Trust Company, National Association), as Trustor and CL&P and
WMECO as Beneficiaries, as amended from time to time in accordance with the
terms of this Agreement.
"Niantic Bay Fuel Trust Credit Agreement" means that certain Credit
Agreement, dated as of February 11, 1992, among the Niantic Bay Fuel Trust,
as borrower, the "Banks" from time to time parties thereto and The First
National Bank of Chicago, as "Bank Agent" thereunder, as amended by a First
Amendment thereto dated as of April 30, 1993 and a Second Amendment
thereto, dated as of May 12, 1995, as amended from time to time in
accordance with the terms of this Agreement.
"NNECO" means Northeast Nuclear Energy Company, a corporation
organized under the laws of the State of Connecticut.
"Note" means a Contract Note or a Competitive Note, as each may be
amended, supplemented or otherwise modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned to that term
in Section 3.01 hereof.
"NU" has the meaning assigned to that term in the caption to this
Agreement.
"NU System Money Pool" means the money pool described in the
application/declaration, as amended, of NU, CL&P, WMECO, PSNH, NAEC and HWP
filed with the Securities and Exchange Commission in File No. 70-8875, as
amended from time to time.
"NUSCO" means Northeast Utilities Service Company, a Connecticut
corporation.
"Operating Companies" means the Principal Subsidiaries of NU and HWP.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any date of
determination, the percentage obtained by dividing such Lender's Commitment
on such day by the total of the Commitments on such day, and multiplying
the quotient so obtained by 100%.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Principal Subsidiary" means a Subsidiary, whether owned directly or
indirectly by a Borrower, which, with respect to such Borrower and its
Subsidiaries taken as a whole, represents at least ten percent (10%) of
such Borrower's consolidated assets or such Borrower's consolidated net
income (or loss) (it being understood that CL&P, WMECO, PSNH and NAEC are
Principal Subsidiaries of NU, but no other Principal Subsidiaries of NU and
no Principal Subsidiaries of any other Borrower presently exist).
"PSNH" means Public Service Company of New Hampshire, a corporation
duly organized under the laws of the State of New Hampshire.
"Recipient" has the meaning assigned to that term in Section 10.08
hereof.
"Reference Banks" means Citibank, N.A., The Toronto-Dominion Bank and
Fleet National Bank, and any other bank or financial institution designated
by the Borrowers and the Administrative Agent with the approval of the
Majority Lenders to act as a Reference Bank hereunder.
"Reference Securities" means (i) in the case of NU, NU's unsecured
long-term Debt not entitled to the benefits of a letter of credit or other
credit enhancement facility and (ii) in the case of CL&P and WMECO, their
respective First Mortgage Bonds not entitled to the benefits of a letter of
credit or other credit enhancement facility (or, if no First Mortgage Bonds
of CL&P or WMECO (as the case may be) are then outstanding, such Borrower's
other senior secured long-term Debt not entitled to the benefits of a
letter of credit or other credit enhancement facility).
"Regulatory Asset" means, with respect to CL&P or WMECO, an intangible
asset established by statute, regulation or regulatory order or similar
action of a utility regulatory agency having jurisdiction over CL&P or
WMECO, as the case may be, and included in the rate base of CL&P or WMECO,
as the case may be, to be amortized by rates over time.
"Regulatory Transaction" means any merger or consolidation of a
Borrower with or into, or any purchase or acquisition by a Borrower of the
assets of (and any related assumption by such Borrower of the liabilities
of) any utility company or utility-related company, if such transaction is
undertaken pursuant to an order or request of, or otherwise in fulfillment
of the stated goals of, a utility regulatory agency having jurisdiction
over NU or any of its Subsidiaries.
"Regulatory Transaction Entity" means any utility company or
utility-related company (other than a Borrower) that is the subject of a
Regulatory Transaction.
"RRR" means The Rocky River Realty Company, a corporation organized
under the laws of the State of Connecticut.
"S&P" means Standard and Poor's Rating Group, or any successor
thereto.
"SEC Borrowing Limit" means, for any Borrower on any date, the
short-term debt borrowing limit prescribed by the Securities and Exchange
Commission applicable to such Borrower on such date.
"Secured Available Amount" means (i) with respect to CL&P, the
aggregate principal amount of the Collateral FMBs issued by CL&P less
$410,000 and (ii) with respect to WMECO, the aggregate principal amount of
Collateral FMBs issued by WMECO less $1,151,000.
"Subsidiary" shall mean, with respect to any Person (the "Parent"),
any corporation, association or other business entity of which securities
or other ownership interests representing 50% or more of the ordinary
voting power are, at the time as of which any determination is being made,
owned or controlled by the Parent or one or more Subsidiaries of the Parent
or by the Parent and one or more Subsidiaries of the Parent.
"Surviving Credit Facilities" means, as of any time following the
Closing, such of the Existing Credit Facilities as had not been terminated
on or prior to the Closing and which are marked as a "Surviving Credit
Facility" on Schedule IV hereto.
"Termination Date" means the earliest to occur of (i) November 21,
1999, or such later date to which the Termination Date shall be extended in
accordance with Section 2.04, (ii) November 29, 1996, if the Closing Date
shall not have occurred on or prior to such date, (iii) the date of
termination or reduction in whole of the Commitments pursuant to Section
2.03 or 8.02 or (iv) the date of acceleration of all amounts payable
hereunder and under the Notes pursuant to Section 8.02.
"Total Capitalization" means, at any date for any Borrower, the sum of
(i) the aggregate principal amount of all long-term and short-term Debt
(including the current portion thereof) of such Borrower and its
Subsidiaries, (ii) the aggregate of the par value of, or stated capital
represented by, the outstanding shares of all classes of common and
preferred shares of such Borrower and its Subsidiaries and (iii) the
consolidated surplus of such Borrower and its Subsidiaries, paid-in, earned
and other, if any, in each case as determined on a consolidated basis in
accordance with generally accepted accounting principles consistent with
those applied in the preparation of such Borrower's financial statements
included in its Annual Report on Form 10-K included by reference in the
Information Memorandum.
"Total Commitment" means $313,750,000, or such lesser amount from time
to time as shall equal the sum of the Commitments.
"Type" has the meaning assigned to such term (i) in the definition of
"Contract Advance" when used in the such context and (ii) in the definition
of "Contract Borrowing" when used in such context.
"Unmatured Default" means the occurrence and continuance of an event
which, with the giving of notice or lapse of time or both, would constitute
an Event of Default.
"WMECO" has the meaning assigned to that term in the caption to this
Agreement.
"WMECO Indenture" has the meaning assigned to that term in
Section 7.02(a)(ii)(C) hereof.
SECTION 1.02. Computation of Time Periods. In the computation of periods
of time under this Agreement any period of a specified number of days or months
shall be computed by including the first day or month occurring during such
period and excluding the last such day or month. In the case of a period of
time "from" a specified date "to" or "until" a later specified date, the word
"from" means "from and including" and the words "to" and "until" each means "to
but excluding".
SECTION 1.03. Accounting Terms; Financial Statements. All accounting
terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles applied on a basis consistent with the
application employed in the preparation of the financial statements included by
reference in the Information Memorandum. All references contained herein to any
Borrower's Annual Report on Form 10-K in respect of a Fiscal Year or Quarterly
Report on Form 10-Q in respect of a Fiscal Quarter shall be deemed to include
any exhibits and schedules thereto, including without limitation in the case of
any Annual Report on Form 10-K, any "Annual Report" of such Borrower referred
to therein.
SECTION 1.04. Computations of Outstandings. Whenever reference is made
in this Agreement to the principal amount of Advances outstanding under this
Agreement to one or more, or all, Borrowers on any date, such reference shall
refer to the aggregate principal amount of all such Advances to such Borrower(s)
outstanding on such date after giving effect to (i) all Advances to be made to
such Borrower(s) on such date and the application of the proceeds thereof and
(ii) any repayment or prepayment of Advances on such date by such Borrower(s).
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments. (a) Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the several
Borrowers from time to time on any Business Day during the period from the
Closing Date until the Termination Date, in an aggregate outstanding amount not
to exceed on any day such Lender's Available Commitment. Within the limits of
such Lender's Available Commitment, each Borrower may request Advances
hereunder, repay or prepay Advances and utilize the resulting increase in the
Available Commitments for further Advances in accordance with the terms hereof.
(b) In no event shall any Borrower be entitled to request or receive any
Advance under subsection (a) that would cause the aggregate principal amount
advanced pursuant thereto to exceed the Available Commitments. In no event
shall any Borrower be entitled to request or receive any Advance that would
cause the total principal amount of all Advances outstanding hereunder to exceed
the Total Commitment, or that would cause the aggregate principal amount of all
Advances outstanding to or requested by such Borrower to exceed such Borrower's
Borrower Sublimit. In no event shall any Borrower be entitled to request or
receive any Advance that, when aggregated with all other Advances outstanding to
or requested by such Borrower and all other short-term debt of such Borrower,
would exceed such Borrower's SEC Borrowing Limit as then in effect.
(c) In addition to each Lender's Commitment under subsection (a) above,
but subject nevertheless to the provisions of subsection (b) above, each
Borrower may request Competitive Advances to be made at the discretion of each
Lender in accordance with Section 3.03 hereof.
SECTION 2.02. Fees. (a) In accordance with subsection (b) below, the
Borrowers agree to pay to the Administrative Agent for the account of each
Lender a facility fee (the "Facility Fee") on the amount of such Lender's
Commitment (whether used or unused) at the Applicable Facility Fee Rate from the
date of this Agreement, in the case of each Bank, and from the effective date
specified in the Lender Assignment pursuant to which it became a Lender, in the
case of each other Lender, until the Termination Date, payable quarterly in
arrears on the last day of each March, June, September and December, commencing
the first such date following the Closing Date, with final payment payable on
the Termination Date.
(b) Each Borrower shall be liable for its pro rata share of each payment
of the Facility Fee hereunder, such pro rata share to be determined on the basis
of such Borrower's Fraction. The Borrowers' respective obligations under
Sections 4.03(a), 4.03(b) and 10.04 hereof shall be paid by each Borrower in the
same proportion as set forth in the immediately preceding sentence; provided,
however, that if and to the extent that any such obligations are reasonably
determined by the Borrowers (subject to the approval of the Administrative Agent
which approval shall not be unreasonably withheld) to be directly attributable
to Advances made to a specific Borrower or the Notes of such Borrower, only such
Borrower shall be liable for such obligations. In the event that one Borrower
fails to pay its portion of the Facility Fee or payments under Sections 4.03(a),
4.03(b) or 10.04 hereof, each of the other Borrowers shall be jointly and
severally liable for any such payment; provided, however, that if and to the
extent that any such payments (excluding payment of the Facility Fee) are
reasonably determined by the Borrowers (subject to the approval of the
Administrative Agent which approval shall not be unreasonably withheld) to be
directly attributable to Advances made to a specific Borrower or the Notes of
such Borrower, only such Borrower shall be liable for such payments.
(c) The Borrowers further agree to pay the fees specified in the Fee
Letters, together with such other fees as may be separately agreed to by the
Borrowers and the Administrative Agent.
SECTION 2.03. Reduction of the Commitments; Borrower Sublimits; Release of
Collateral. (a) The Borrowers may jointly, upon at least five Business Days'
notice to the Administrative Agent, terminate in whole or reduce ratably in part
the Commitments of the respective Lenders; provided that: (i) any such partial
reduction shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof, and (ii) in no event shall the Commitments be
reduced to an amount less than the aggregate principal amount of all Advances
then outstanding. If as a result of any reduction of the Commitments pursuant
to this subsection, the Borrower Sublimit of any Borrower would exceed the Total
Commitment as then in effect, such Borrower Sublimit shall be reduced to an
amount equal to the Total Commitment as so in effect. In no event shall the
Borrowers be entitled to increase the Total Commitment without the consent of
all of the Lenders.
(b) Each Borrower may, severally and without the consent of any other
Borrower, upon at least five Business Days' notice to the Administrative Agent,
terminate in whole or reduce in part its Borrower Sublimit; provided that:
(i) any such partial reduction shall be in an aggregate amount of $10,000,000 or
an integral multiple of $1,000,000 in excess thereof, and (ii) in no event shall
any Borrower Sublimit be reduced to an amount less than the aggregate principal
amount of all Advances then outstanding to the relevant Borrower. In no event
shall any Borrower be entitled to increase its Borrower Sublimit without the
consent of all of the Lenders.
(c) If, at any time, the aggregate Secured Available Amount of WMECO or
CL&P, as the case may be, exceeds such Borrower's Borrower Sublimit, a portion
of the Collateral FMB of such Borrower in the aggregate principal amount equal
to the amount of such excess shall be deemed satisfied and discharged, provided
that no actual or deemed entry of an order for relief with respect to such
Borrower under the Federal Bankruptcy Code has occurred and is continuing or
would result from such release.
SECTION 2.04. Extension of the Termination Date. Unless the Termination
Date shall have previously occurred in accordance with its terms, at least 105
days but not more than 120 days before the Termination Date, as then in effect,
the Borrowers may jointly, by notice to the Administrative Agent (any such
notice being irrevocable), request the Administrative Agent and the Lenders to
extend the Termination Date for a period of one year. If the Borrowers shall
make such request, the Administrative Agent shall promptly inform the Lenders
thereof and, no later than 60 days prior to the Termination Date as then in
effect, the Administrative Agent shall notify the Borrowers in writing if the
Lenders consent to such request and the conditions of such consent (including
conditions relating to legal documentation and evidence of the obtaining of all
necessary governmental approvals). The granting of any such consent shall be in
the sole and absolute discretion of each Lender, and, if any Lender shall not so
notify the Administrative Agent or, if the Administrative Agent shall not so
notify the Borrowers, such lack of notification shall be deemed to be a
determination not to consent to such request. No such extension shall occur
unless all of the Lenders consent in writing thereto (or if less than all the
Lenders consent thereto, unless one or more other existing Lenders, or one or
more other banks and financial institutions acceptable to the Borrowers and the
Administrative Agent, agree to assume all of the Commitments of the
non-consenting Lenders).
ARTICLE III
CONTRACT AND COMPETITIVE ADVANCES
SECTION 3.01. Contract Advances. More than one Contract Borrowing may be
made on the same Business Day. Each Contract Borrowing shall consist of
Contract Advances of the same Type and Interest Period made to the same Borrower
on the same Business Day by the Lenders ratably according to their respective
Commitments. Each Contract Borrowing shall be made on notice in substantially
the form of Exhibit 3.01 hereto (a "Notice of Contract Borrowing"), delivered by
the Borrower requesting such Contract Borrowing to the Administrative Agent, by
hand, telecopy or telex, not later than 11:00 a.m. (New York City time) (i) in
the case of Eurodollar Rate Advances, on the third Business Day prior to the
date of the proposed Borrowing and (ii) in the case of Base Rate Advances, on
the
day of the proposed Borrowing. Upon receipt of a Notice of Contract Borrowing,
the Administrative Agent shall notify the Lenders thereof promptly on the day so
received. Each Notice of Contract Borrowing shall specify therein: (i) the
requested (A) date of such Borrowing, (B) principal amount and Type of Advances
comprising such Borrowing and (C) Interest Period for such Advances; (ii) the
identity of the Borrower requesting such proposed Borrowing and (iii) the
Borrower Sublimit applicable to such Borrower on the proposed date of such
proposed Borrowing and the aggregate amount of Advances to be outstanding to
such Borrower on such date after giving effect to such proposed Borrowing. Each
proposed Borrowing shall be subject to the provisions of Sections 3.02, 4.03 and
Article V hereof.
SECTION 3.02. Terms Relating to the Making of Contract Advances.
(a) Notwithstanding anything in Section 3.01 above to the contrary:
(i) at no time shall more than twelve different Contract Borrowings
be outstanding hereunder;
(ii) each Contract Borrowing hereunder shall be in an aggregate
principal amount of not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof, or such lesser amount as shall be equal to
the total amount of the Available Commitments on such date, after giving
effect to all other Contract Borrowings and all Competitive Borrowings to
be made to, or repaid or prepaid by, the relevant Borrower on such date;
and
(iii) each Contract Borrowing hereunder which is to be comprised
of Eurodollar Rate Advances shall be in an aggregate principal amount of
not less than $10,000,000.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting such proposed Borrowing.
SECTION 3.03. (a) Competitive Advances. Each Competitive Borrowing shall
consist of Competitive Advances of the same Type and Interest Period made by the
Lenders in accordance with this Section 3.03 and shall be in a minimum aggregate
principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess
thereof, except as otherwise provided pursuant to Section 3.03(b)(iv) hereof.
Competitive Advances shall be made in the amounts accepted by the Borrower
requesting such Competitive Advance in accordance with Section 3.03(b)(iv).
Each Competitive Advance, regardless of which Lender makes such Advance, will
reduce the Available Commitments of all Lenders pro rata as provided in the
definition of "Available Commitments" in Section 1.01 hereof. Promptly after
each Competitive Borrowing, the Administrative Agent will notify each Lender of
the amount of the Competitive Borrowing, the amount by which such Lender's
Available Commitment has been reduced, the date of the Competitive Borrowing and
the Interest Period with respect thereto.
(b) Competitive Bid Procedures.
(i) In order to request Competitive Advances: (A) in the case of any
request for Eurodollar Competitive Advances, the Borrower requesting such
Eurodollar Competitive Advances shall hand deliver, telex or telecopy to
the Administrative Agent a duly completed Competitive Bid Request
substantially in the form of Exhibit 3.03A-1 hereto to be received by the
Administrative Agent not later than 10:00 a.m. (New York City time), four
Business Days prior to the proposed Eurodollar Competitive Borrowing and
(B) in the case of any request for Fixed Rate Competitive Advances, the
Borrower requesting such Fixed Rate Competitive Advances shall hand
deliver, telex or telecopy to the Administrative Agent a duly completed
Competitive Bid Request substantially in the form of Exhibit 3.03A-2 hereto
to be received by the Administrative Agent not later than 10:00 a.m. (New
York City time), one Business Day prior to the proposed Fixed Rate
Competitive Borrowing. Each such Competitive Bid Request shall refer to
this Agreement and specify: (1) the date of such Competitive Borrowing
(which shall be a Business Day), (2) the principal amount thereof (which
shall not be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof), (3) the Interest Period with respect thereto and the last
day of such Interest Period (which shall be at least 30 days from the date
of such Competitive Borrowing and shall fall on or prior to the Termination
Date) and any additional interest payment date or dates relating to such
Competitive Borrowing, (4) the Borrower Sublimit applicable to such
Borrower on the day of such Borrowing and the aggregate amount of Advances
to be outstanding to such Borrower on the date of such Borrowing after
giving effect to such Borrowing, (5) whether the Borrowing then being
requested is to consist of Eurodollar Competitive Advances or Fixed Rate
Competitive Advances and (6) any other terms applicable to such Competitive
Bid Borrowing. No Contract Advances shall be requested in or made pursuant
to a Competitive Bid Request. A Competitive Bid Request that does not
conform substantially to the form of Exhibit 3.03A-1 or Exhibit 3.03A-2, as
the case may be, may be rejected in the Administrative Agent's sole
discretion, and the Administrative Agent shall promptly notify the Borrower
of such rejection by telex or telecopier. Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall by telex or telecopier (in the form of
Exhibit 3.03B hereto) invite the Lenders to bid to make Competitive Bids in
accordance with such Competitive Bid Request.
(ii) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower requesting such Competitive Bids, which
Competitive Bids shall be responsive to the Competitive Bid Request. Each
Competitive Bid by such Lender must be received by the Administrative Agent
(A) in the case of a proposed Competitive Borrowing to consist of
Eurodollar Competitive Advances, by telex or telecopier (in the form of
Exhibit 3.03C-1 hereto) not later than 9:30 a.m. (New York City time) three
Business Days prior to a proposed Competitive Borrowing and (B) in the case
of a proposed Competitive Borrowing to consist of Fixed Rate Competitive
Advances, by telex or telecopier (in the form of Exhibit 3.03C-2 hereto)
not later than 9:30 a.m. (New York City time) on the day of a proposed
Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially
to the form of Exhibit 3.03C-1 or 3.03C-2, as the case may be, may be
rejected by the Administrative Agent after conferring with, and upon the
instruction of, the Borrower requesting such Competitive Bid, and the
Administrative Agent shall notify the Lender making such non-conforming bid
of such rejection as soon as practicable. Each Competitive Bid shall refer
to this Agreement and specify (X) the principal amount (which shall be a
minimum principal amount of $10,000,000 and in an integral multiple of
$1,000,000 and which may be up to the aggregate amount of the proposed
Competitive Borrowing regardless of the Commitment of the Lender) of the
Competitive Advance that the Lender is willing to make to the Borrower
requesting such Competitive Bid and (Y) the Competitive Bid Rate or Rates
at which the Lender is prepared to make the Competitive Advances. If any
selected Lender shall elect not to make a Competitive Bid, such Lender
shall so notify the Administrative Agent, in the case of a proposed
Competitive Borrowing to consist of Eurodollar Competitive Advances, by
telex or telecopier, not later than 9:30 a.m. (New York City time), three
Business Days prior to the proposed Competitive Borrowing, and, in the
case of a proposed Competitive Borrowing to consist of Fixed Rate
Competitive Advances, by telex or telecopier not later than 9:30 a.m. (New
York City time) on the day of the proposed Competitive Borrowing; provided,
however, that failure by any Lender to give such notice shall not cause
such Lender to be obligated to make any Competitive Advance. A Competitive
Bid submitted by a Lender pursuant to this subsection (ii) shall be
irrevocable.
(iii) The Administrative Agent shall (A) in the case of a proposed
Borrowing to consist of Eurodollar Competitive Advances, promptly notify
the Borrower that made such Competitive Bid Request by telex or telecopier
and (B) in the case of a proposed Borrowing to consist of Fixed Rate
Competitive Advances, notify such Borrower by telephone not later than
10:00 a.m. (New York City time) on the day of such proposed Competitive
Borrowing of the Competitive Bids made, of the Competitive Bid Rate and the
principal amount of each Competitive Bid and the identity of the Lender
that made such Competitive Bid.
(iv) The Borrower that made such Competitive Bid Request may, in its
sole and absolute discretion, subject only to the provisions of this
subsection (iv), accept or reject any Competitive Bid. Such Borrower shall
notify the Administrative Agent by telephone whether and to what extent it
has decided to accept or reject any or all of the Competitive Bids
(specifying each Lender selected by it to make Competitive Advances, the
principal amount of such Advances and the Competitive Bid Rate): (A) in the
case of a Borrowing to consist of Eurodollar Competitive Advances, by not
later than 10:15 a.m. (New York City time) three Business Days before a
proposed Competitive Borrowing (promptly confirmed by a Competitive Bid
Acceptance in the form of Exhibit 3.03D-1 hereto, hand delivered, telexed
or telecopied by such Borrower to the Administrative Agent), and (B) in the
case of a Borrowing to consist of Fixed Rate Competitive Advances, not
later than 10:15 a.m. (New York City time) on the day of a proposed
Competitive Borrowing (promptly confirmed by a Competitive Bid Acceptance
in the form of Exhibit 3.03D-2 hereto, hand delivered, telexed or
telecopied by such Borrower to the Administrative Agent); provided,
however, that (1) the failure by such Borrower to give such notice shall be
deemed to be a rejection of all the bids referred to in subsection (iii)
above, (2) such Borrower shall not accept a bid made at a particular
Competitive Bid Rate if such Borrower has decided to reject a bid made at a
lower Competitive Bid Rate, (3) the aggregate amount of the Competitive
Bids accepted by such Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (4) if such Borrower shall
determine to accept Competitive Bids made at a particular Competitive Bid
Rate but the aggregate amount of all Competitive Bids made at such
Competitive Bid Rate, when added to the aggregate amount of all Competitive
Bids at lower Competitive Bid Rates, would cause the total amount of
Competitive Bids to be accepted by such Borrower to exceed the principal
amount specified in the Competitive Bid Request, then such Borrower shall
accept all such Competitive Bids at such Competitive Bid Rate in an
aggregate amount reduced to eliminate such excess, which acceptance, in the
case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made ratably in accordance with the amount of each such Competitive Bid
(subject to clause (5) below), and (5) no Competitive Bid shall be accepted
for a Competitive Advance unless such Competitive Advance is in a minimum
principal amount of $10,000,000 and an integral multiple of $1,000,000 in
excess thereof; provided further, however, that if a Competitive Advance
must be in an amount of less than $10,000,000 because of the provisions of
(4) above, such Competitive Advance may be for a minimum of $1,000,000 or
any integral multiple thereof, and in calculating the pro rata allocation
of acceptances of portions of multiple bids at a particular Competitive Bid
Rate pursuant to (4) above, the amounts shall be rounded to integral
multiples of $1,000,000 in a manner which shall be in the discretion of
such Borrower. Notice given by such Borrower pursuant to this
subsection (iv) shall be irrevocable.
(v) The Administrative Agent shall notify each bidding Lender whether
or not its Competitive Bid has been accepted (and if so, in what principal
amount and at what Competitive Bid Rate): (A) in the case of a proposed
Borrowing to consist of Eurodollar Competitive Advances, promptly by telex
or telecopier and (B) in the case of a proposed Borrowing to consist of
Fixed Rate Competitive Advances, by telephone (such information to be
confirmed in writing by the Administrative Agent to the bidding Lenders not
later than 12:00 noon (New York City time) on such day), not later than
10:30 a.m. (New York City time) on the day of the Competitive Borrowing
and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Advance in
respect of which its bid has been accepted. The Administrative Agent shall
not be required to disclose to any Lender any other information with
respect to the Competitive Bids submitted, but the Administrative Agent
may, at the request of any Lender, and at the instruction of the Borrower
that made such Competitive Bid Request, provide to such Lender certain
information with respect to Competitive Bids made and accepted as deemed
appropriate by such Borrower.
(vi) Neither the Administrative Agent nor any Lender shall be
responsible to the Borrower that made such Competitive Bid Request for
(A) a failure to fund a Competitive Advance on the date such Advance is
requested by such Borrower or (B) the funding of such Advance at a
Competitive Bid Rate or in an amount other than that confirmed pursuant to
subsections (iv) and (v) above due in each case to delays in
communications, miscommunications (including, without limitation, any
variance between telephonic bids or acceptances and the written notice
provided by the Administrative Agent to the Lenders pursuant to
subsection (v) above or the written confirmation supplied by such Borrower
pursuant to subsection (iv) above) and the like among such Borrower, the
Administrative Agent and the Lenders, and such Borrower agrees to indemnify
each Lender for all reasonable costs and expenses incurred by it in
accordance with the terms of Section 4.03(e) hereof, as a result of any
such delay, miscommunication or the like that results in a failure to fund
a Competitive Advance or the funding of a Competitive Advance at a
Competitive Bid Rate or in an amount other than that set forth in the
written notice provided by the Administrative Agent to the Lenders pursuant
to subsection (v) above or the written confirmation supplied by such
Borrower pursuant to subsection (iv) above.
(vii) If the Administrative Agent has elected to submit a
Competitive Bid in its capacity as Lender, such bid must be submitted
directly to the Borrower that made such Competitive Bid Request one quarter
of an hour earlier than the latest time at which the other Lenders are
required to submit their bids to the Administrative Agent pursuant to
subsection (ii) above.
(viii) A Competitive Bid Request for Eurodollar Competitive
Advances shall not be made within five Business Days after the date of any
previous Competitive Bid Request for Eurodollar Competitive Advances.
(ix) All notices required by this Section 3.03 must be made in
accordance with Section 10.02.
(x) To facilitate the administration of this Agreement and the
processing of Competitive Bids, each Lender has submitted, or will submit
upon becoming a Lender pursuant to Section 10.07 hereof, to the
Administrative Agent a completed administrative questionnaire in the form
specified by the Administrative Agent, and each Lender agrees to promptly
notify the Administrative Agent in writing of any change in the information
so provided.
SECTION 3.04. Making of Advances. (a) Each Lender shall, before
12:00 noon (New York City time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent at
the Administrative Agent's address referred to in Section 10.02, in same day
funds, such Lender's portion of such Borrowing. Contract Advances shall be made
by the Lenders ratably in accordance with their several Commitments and
Competitive Advances shall be made by the Lender or Lenders whose Competitive
Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts
so accepted. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article V, the
Administrative Agent will make such funds available to the Borrower that made
the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the time of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 3.04, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower that
made the request for such Borrowing a corresponding amount on such date. If and
to the extent that any such Lender (a "non-performing Lender") shall not have so
made such ratable portion available to the Administrative Agent, the
non-performing Lender and such Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of such Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise
reduce any claims that any party hereto may have against any non-performing
Lender.
(c) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 3.05. Repayment of Advances. Each Borrower shall repay the
principal amount of each Advance made to it hereunder on the last day of the
Interest Period for such Advance, which last day shall be the maturity date for
such Advance.
SECTION 3.06. Interest. (a) Interest Periods. The period commencing on
the date of each Advance and ending on the last day of the period selected by a
Borrower with respect to such Advance pursuant to the provisions of this
Section 3.06 is referred to herein as an "Interest Period". The duration of
each Interest Period shall be (i) in the case of any Eurodollar Rate Advance or
Eurodollar Competitive Advance, 1, 2, 3 or 6 months, (ii) in the case of any
Base Rate Advance, 90 days following the date on which such Advance was made and
(iii) in the case of any Fixed Rate Competitive Advance, any number of days, but
no less than 30 days or more than 270 days; provided, however, that no Interest
Period may be selected by any Borrower if such Interest Period would end after
the Termination Date.
(b) Interest Rates. Each Borrower shall pay interest on the unpaid
principal amount of each Advance owing by such Borrower from the date of such
Advance until such principal amount shall be paid in full, at the Applicable
Rate for such Advance (except as otherwise provided in this subsection (b)),
payable as follows:
(i) Eurodollar Rate Advances and Eurodollar Competitive Advances. If
such Advance is a Eurodollar Rate Advance or Eurodollar Competitive
Advance, interest thereon shall be payable on the last day of the Interest
Period therefor and, if any such Interest Period has a duration of more
than three months, also on the day of the third month during such Interest
Period which corresponds to the first day of such Interest Period (or, if
any such month does not have a corresponding day, then on the last day of
such third month); provided that during the continuance of any Event of
Default, such Advance shall bear interest at a rate per annum equal at all
times to (A) for the remaining term, if any, of the Interest Period for
such Advance, 2% per annum above the Applicable Rate for such Advance for
such Interest Period, and (B) thereafter, 2% per annum above the Applicable
Rate in effect from time to time for Base Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate Advance,
interest thereon shall be payable quarterly on the last day of each March,
June, September and December and on the date such Base Rate Advance shall
be paid in full; provided that during the continuance of any Event of
Default, such Advance shall bear interest at a rate per annum equal at all
times to 2% per annum above the Applicable Rate in effect from time to time
for Base Rate Advances.
(iii) Fixed Rate Competitive Advances. If such Advance is a Fixed
Rate Competitive Advance, interest thereon shall be payable on the last day
of the Interest Period therefor and, if any Interest Period has a duration
of more than 90 days, on each day which occurs during such Interest Period
every 90 days from the first day of such Interest Period, provided that
during the continuance of any Event of Default, such Advance shall bear
interest at a rate per annum equal at all times to (A) for the remainder,
if any, of the original stated maturity of such Advance, 2% per annum above
the rate of interest applicable to such Advance immediately prior to the
date on which such amount became due, and (B) thereafter, 2% per annum
above the Applicable Rate in effect from time to time for Base Rate
Advances.
(c) Other Amounts. Any other amounts payable hereunder that are not paid
when due shall (to the fullest extent permitted by law) bear interest, from the
date when due until paid in full, at a rate per annum equal at all times to 2%
per annum above the Applicable Rate in effect from time to time for Base Rate
Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent shall give
prompt notice to the Borrowers and the Lenders of the Applicable Rate determined
from time to time by the Administrative Agent for each Contract Advance for each
Borrower. Each Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining the Eurodollar Rate for any
Interest Period. If any one Reference Bank shall not furnish such timely
information, the Administrative Agent shall determine such interest rate on the
basis of the timely information furnished by the other two Reference Banks.
SECTION 3.07. Several Obligations. Each Borrower's obligations hereunder
are several and not joint except as otherwise set forth in this Agreement. Any
actions taken by or on behalf of the Borrowers jointly or simultaneously shall
not result in one Borrower being held responsible for the actions, debts or
liabilities of the other Borrowers. Nothing contained herein shall be
interpreted as requiring the Borrowers to effect Borrowings jointly.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations. (a) Each Borrower shall make each
payment hereunder and under the Notes not later than 12:00 noon (New York City
time) on the day when due in U.S. Dollars to the Administrative Agent at its
address referred to in Section 10.02 hereof, in same day funds. The
Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest, fees or other amounts payable to
the Lenders, to the respective Lenders to whom the same are payable, for the
account of their respective Applicable Lending Offices, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance of
a Lender Assignment and recording of the information contained therein in the
Register pursuant to Section 10.07, from and after the effective date specified
in such Lender Assignment, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Lender Assignment shall make
all appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) Each Borrower hereby authorizes the Administrative Agent and each
Lender, if and to the extent payment owed to the Administrative Agent or such
Lender, as the case may be, is not made when due hereunder (or, in the case of a
Lender, under the Note held by such Lender), to charge from time to time against
any or all of such Borrower's accounts with such Agent or such Lender, as the
case may be, any amount so due.
(c) All computations of interest based on the Base Rate (except when
determined on the basis of the CD Rate or the Federal Funds Rate) shall be made
by the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be. All computations of interest and other amounts payable pursuant to
Section 4.03 shall be made by the Lender claiming such interest or other amount,
on the basis of a year of 360 days. All other computations of interest,
including computations of interest based on the Eurodollar Rate, the Base Rate
(when and if determined on the basis of the CD Rate or the Federal Funds Rate)
and any interest on Fixed Rate Competitive Advances, and all computations of
fees and other amounts payable hereunder, shall be made by the Administrative
Agent on the basis of a year of 360 days. In each such case, such computation
shall be made for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest, fees or
other amounts are payable. Each such determination by the Administrative Agent
or a Lender shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment under any Loan Document shall be stated to be
due, or the last day of an Interest Period hereunder shall be stated to occur,
on a day other than a Business Day, such payment shall be made and the last day
of such Interest Period shall occur on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
payment of interest and fees hereunder; provided, however, that if such
extension would cause payment of interest on or principal of Eurodollar Rate
Advances or Eurodollar Competitive Advances to be made, or the last day of an
Interest Period for a Eurodollar Rate Advance or a Eurodollar Competitive
Advance to occur, in the next following calendar month, such payment shall be
made on the next preceding Business Day and such reduction of time shall in such
case be included in the computation of payment of interest hereunder.
(e) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Lenders hereunder
that such Borrower will not make such payment in full, the Administrative Agent
may assume that such Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent such
Borrower shall not have so made such payment in full to the Administrative
Agent, such Lender shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Lender, together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at the Federal Funds
Rate.
SECTION 4.02. Prepayments. (a) No Borrower shall have any right to prepay
any Contract Advances except in accordance with subsections (b) and (c), below.
No Borrower shall have any right to prepay any Competitive Advance except as
required by subsection (c), below.
(b) Any Borrower may, (i) in the case of Eurodollar Rate Advances, upon at
least three Business Day's written notice to the Administrative Agent (such
notice being irrevocable) and (ii) in the case of Base Rate Advances, upon
notice not later than 11:00 a.m. on the date of the proposed prepayment to the
Administrative Agent (such notice being irrevocable), stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given,
such Borrower shall, prepay Contract Advances comprising part of the same
Borrowing, in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid and any amounts owing in
connection therewith pursuant to Section 4.03(d); provided, however, that each
partial prepayment shall be in an aggregate principal amount not less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
(c) If at any time, the aggregate principal amount of Advances outstanding
shall exceed the Total Commitment, the Borrowers shall forthwith prepay Advances
in a principal amount equal to such excess. If at any time, the aggregate
principal amount of Advances outstanding to any Borrower shall exceed the
Borrower Sublimit of such Borrower, such Borrower shall forthwith prepay
Advances in a principal amount equal to such excess. All prepayments pursuant to
this subsection (c) shall be effected first, from outstanding Contract Advances
comprising part of the same Borrowing or Borrowings, second from outstanding
Eurodollar Competitive Advances and third from outstanding Fixed Rate
Competitive Advances, and shall be accompanied by payment of accrued interest to
the date of such prepayment on the principal amount prepaid and any amounts
owing in connection therewith pursuant to Section 4.03(d); provided, however,
that any holder of a Competitive Advance may waive prepayment of such
Competitive Advance, and such waiver shall be binding on the other Lenders.
SECTION 4.03. Yield Protection. (a) Change in Circumstances.
Notwithstanding any other provision herein, if after the date hereof, the
adoption of or any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall (i) change the basis of taxation of payments to any Lender
of the principal of or interest on any Eurodollar Rate Advance or Competitive
Advance made by such Lender or any fees or other amounts payable under the Loan
Documents (other than changes in respect of taxes imposed on the overall net
income of such Lender or its Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or in which such Applicable Lending
Office is located or by any political subdivision or taxing authority therein),
or (ii) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against commitments or assets of, deposits with or for the
account of, or credit extended by, such Lender, or (iii) shall impose on such
Lender or the London interbank market any other condition affecting this
Agreement or Eurodollar Rate Advances or Competitive Advances made by such
Lender, and the result of any of the foregoing shall be to increase the cost to
such Lender, of agreeing to make, making or maintaining any Advance or to reduce
the amount of any sum received or receivable by such Lender under any Loan
Document or under the Notes (whether of principal, interest or otherwise), then
the Borrowers will pay to such Lender upon demand such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) Capital. If any Lender shall have determined that any change after
the date hereof in any law, rule, regulation or guideline adopted pursuant to or
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after the date
hereof of any law, rule, regulation or guideline regarding capital adequacy, or
any change in any of the foregoing or in the interpretation or administration of
any of the foregoing by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or any Applicable Lending Office of such Lender) or any Lender's
holding company with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect (i) of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement, the Commitment of such
Lender hereunder or the Advances made by such Lender pursuant hereto to a level
below that which such Lender or such Lender's holding company could have
achieved, but for such applicability, adoption, change or compliance (taking
into consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), or (ii) of increasing or
otherwise determining the amount of capital required or expected to be
maintained by such Lender or such Lender's holding company based upon the
existence of this Agreement, the Commitment of such Lender hereunder, the
Advances made by such Lender pursuant hereto and other similar such commitments,
agreements or assets, then from time to time the Borrowers shall pay to such
Lender upon demand such additional amount or amounts as will compensate such
Lender or such Lender's holding company for any such reduction or allocable
capital cost suffered.
(c) Eurodollar Reserves. Each Borrower shall pay to each Lender upon
demand, so long as such Lender shall be required under regulations of the Board
of Governors of the Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities,
additional interest on the unpaid principal amount of each Eurodollar Rate
Advance of such Lender to such Borrower, from the date of such Advance until
such principal amount is paid in full, at an interest rate per annum equal at
all times to the remainder obtained by subtracting (i) the Eurodollar Rate for
the Interest Period for such Advance from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Reserve
Percentage of such Lender for such Interest Period. Such additional interest
shall be determined by such Lender and notified to the relevant Borrower and the
Administrative Agent.
(d) Breakage Indemnity. Each Borrower shall indemnify each Lender against
any loss, cost or reasonable expense which such Lender may sustain or incur as a
consequence of (i) any failure by such Borrower to fulfill on the date of any
Borrowing hereunder of Eurodollar Rate Advances or Competitive Advances the
applicable conditions precedent set forth in Article V, (ii) any failure by such
Borrower to borrow any Eurodollar Rate Advance hereunder after a Notice of
Contract Borrowing has been delivered pursuant to Section 3.01 hereof or to
borrow any Competitive Advance hereunder after a Competitive Bid Acceptance in
respect thereof has been delivered pursuant to Section 3.03(b)(iv) hereof,
(iii) any payment or prepayment of a Eurodollar Rate Advance or Competitive
Advance made to such Borrower required or permitted by any other provision of
this Agreement or otherwise made or deemed made on a date other than the last
day of the Interest Period applicable thereto, (iv) any default in payment or
prepayment of the principal amount of any Eurodollar Rate Advance or Competitive
Advance made to such Borrower or any part thereof or interest accrued thereon,
as and when due and payable (at the due date thereof, by irrevocable notice of
prepayment or otherwise) or (v) the occurrence of any Event of Default with
respect to such Borrower, including, in each such case, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in liquidating or
employing deposits from third parties acquired to effect or maintain such
Advance or any part thereof as a Eurodollar Rate Advance or Competitive Advance.
Such loss, cost or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Lender, of (A) its cost of
obtaining the funds for the Eurodollar Rate Advance or Competitive Advance being
paid, prepaid or not borrowed for the period from the date of such payment,
prepayment or failure to borrow to the last day of the Interest Period for such
Advance (or, in the case of a failure to borrow, the Interest Period for such
Advance which would have commenced on the date of such failure) over (B) the
amount of interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying the funds so paid, prepaid or not
borrowed for such period or Interest Period, as the case may be. For purposes
of this subsection (d), it shall be presumed that in the case of any Eurodollar
Rate Advance or Eurodollar Competitive Advance, each Lender shall have funded
each such Advance with a fixed-rate instrument bearing the rates and maturities
designated in the determination of the Applicable Rate for such Advance.
(e) Notices. A certificate of each Lender setting forth such Lender's
claim for compensation hereunder and the amount necessary to compensate such
Lender or its holding company pursuant to subsections (a) through (d) of this
Section 4.03 shall be submitted to the Borrowers and the Administrative Agent
and shall be conclusive and binding for all purposes, absent manifest error.
The appropriate Borrowers shall pay each Lender directly the amount shown as due
on any such certificate within 10 days after its receipt of the same. The
failure of any Lender to provide such notice or to make demand for payment under
this Section 4.03 shall not constitute a waiver of such Lender's rights
hereunder; provided that such Lender shall not be entitled to demand payment
pursuant to subsections (a) through (d) of this Section 4.03, in respect of any
loss, cost, expense, reduction or reserve, if such demand is made more than one
year following the later of such Lender's incurrence or sufferance thereof or
such Lender's actual knowledge of the event giving rise to such Lender's rights
pursuant to such subsections. Each Lender shall use reasonable efforts to
ensure the accuracy and validity of any claim made by it hereunder, but the
foregoing shall not obligate any Lender to assert any possible invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
(f) Change in Legality. Notwithstanding any other provision herein, if
the adoption of or any change in any law or regulation or in the interpretation
or administration thereof by any governmental authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Rate Advance or Eurodollar Competitive
Advance or to give effect to its obligations as contemplated hereby with respect
to any Eurodollar Rate Advance or Eurodollar Competitive Advance, then, by
written notice to the Borrowers and the Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances and Eurodollar Competitive
Advances will not thereafter be made by such Lender hereunder, whereupon
the right of any Borrower to select Eurodollar Rate Advances for any
Borrowing and any Competitive Borrowing consisting of Eurodollar
Competitive Advances shall be forthwith suspended until such Lender shall
withdraw such notice as provided hereinbelow or shall cease to be a Lender
hereunder pursuant to Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances and
Eurodollar Competitive Advances made by it be repaid as of the effective
date of such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall promptly notify
the other Lenders. Promptly upon becoming aware that the circumstances that
caused such Lender to deliver such notice no longer exist, such Lender shall
deliver notice thereof to the Borrowers and the Administrative Agent withdrawing
such prior notice (but the failure to do so shall impose no liability upon such
Lender). Promptly upon receipt of such withdrawing notice from such Lender (or
upon such Lender assigning all of its Commitments, Advances, participation and
other rights and obligations under the Loan Documents in accordance with
Section 10.07(g)), the Administrative Agent shall deliver notice thereof to the
Borrowers and the Lenders and such suspension shall terminate. Prior to any
Lender giving notice to the Borrowers under this subsection (f), such Lender
shall use reasonable efforts to change the jurisdiction of its Applicable
Lending Office, if such change would avoid such unlawfulness and would not, in
the sole determination of such Lender, be otherwise disadvantageous to such
Lender. Any notice to the Borrowers by any Lender shall be effective as to each
Eurodollar Rate Advance and Eurodollar Competitive Advance on the last day of
the Interest Period currently applicable to such Eurodollar Rate Advance or
Eurodollar Competitive Advance; provided that if such notice shall state that
the maintenance of such Advance until such last day would be unlawful, such
notice shall be effective on the date of receipt by the Borrowers and the
Administrative Agent.
(g) Market Rate Disruptions. If (i) less than two Reference Banks
furnish timely information to the Administrative Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances or Eurodollar Competitive Advances
in connection with any proposed Borrowing or (ii) if the Majority Lenders shall
notify the Administrative Agent that the Eurodollar Rate will not adequately
reflect the cost to such Majority Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances or Eurodollar Competitive Advances,
the right of the Borrowers to select or receive Eurodollar Rate Advances or
Eurodollar Competitive Advances for any Borrowing shall be forthwith suspended
until the Administrative Agent shall notify the Borrowers and the Lenders that
the circumstances causing such suspension no longer exist, and until such
notification from the Administrative Agent each requested Borrowing of
Eurodollar Rate Advances and each requested Borrowing of Eurodollar Competitive
Advances hereunder shall be deemed to be a request for Base Rate Advances.
SECTION 4.04. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise, but excluding any proceeds received by assignments or
sales of participation in accordance with Section 10.07 hereof to a Person that
is not an Affiliate of the Borrowers) on account of the Advances owing to it
(other than pursuant to Section 4.03 hereof) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participation in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section 4.04
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of any such Borrower in the amount of
such participation. Notwithstanding the foregoing, if any Lender shall obtain
any such excess payment involuntarily, such Lender may, in lieu of purchasing
participation from the other Lenders in accordance with this Section 4.04, on
the date of receipt of such excess payment, return such excess payment to the
Administrative Agent for distribution in accordance with Section 4.01(a).
SECTION 4.05. Taxes. (a) All payments by or on behalf of any Borrower
under any Loan Document shall be made in accordance with Section 4.01, free and
clear of and without deduction for all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender or the Administrative Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its overall net income, and franchise
taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law
to deduct any Taxes from or in respect of any sum payable under any Loan
Document to any Lender or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 4.05) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made by such Borrower under any Loan Document
or from the execution, delivery or registration of, or otherwise with respect
to, any Loan Document (hereinafter referred to as "Other Taxes").
(c) Each Borrower hereby indemnifies each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and any Other Taxes imposed by any jurisdiction on amounts
payable under this Section 4.05) paid by such Lender or the Administrative Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. A Lender's claim for such
indemnification shall be set forth in a certificate of such Lender setting forth
in reasonable detail the amount necessary to indemnify such Lender pursuant to
this subsection (c) and shall be submitted to the Borrowers and the
Administrative Agent and shall be conclusive and binding for all purposes,
absent manifest error. The appropriate Borrower shall pay each Lender directly
the amount shown as due on any such certificate within 30 days after the receipt
of same. If any Taxes or Other Taxes for which a Lender or the Administrative
Agent has received payments from a Borrower hereunder shall be finally
determined to have been incorrectly or illegally asserted and are refunded to
such Lender or the Administrative Agent, such Lender or the Administrative
Agent, as the case may be, shall promptly forward to such Borrower any such
refunded amount. Each Borrower's, the Administrative Agent's and each Lender's
obligations under this Section 4.05 shall survive the payment in full of the
Advances.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
making such payment will furnish to the Administrative Agent, at its address
referred to in Section 10.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of the United
States of America or any state thereof shall, on or prior to the date it becomes
a Lender hereunder, deliver to the Borrowers and the Administrative Agent such
certificates, documents or other evidence, as required by the Internal Revenue
Code of 1986, as amended from time to time (the "Code"), or treasury regulations
issued pursuant thereto, including Internal Revenue Service Form 4224 and any
other certificate or statement of exemption required by Treasury Regulation
Section 1.1441-1(a) or Section 1.1441-6(c) or any subsequent version thereof,
properly completed and duly executed by such Lender establishing that it is
(i) not subject to withholding under the Code or (ii) totally exempt from United
States of America tax under a provision of an applicable tax treaty. Each
Lender shall promptly notify the Borrowers and the Administrative Agent of any
change in its Applicable Lending Office and shall deliver to the Borrowers and
the Administrative Agent together with such notice such certificates, documents
or other evidence referred to in the immediately preceding sentence. Each
Lender will use good faith efforts to apprise the Borrowers and the
Administrative Agent as promptly as practicable of any impending change in its
tax status that would give rise to any obligation by any Borrower to pay any
additional amounts pursuant to this Section 4.05. Unless the Borrowers and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that payments under the Loan Documents are not subject to United
States of America withholding tax or are subject to such tax at a rate reduced
by an applicable tax treaty, the Borrowers or the Administrative Agent shall
withhold taxes from such payments at the applicable statutory rate in the case
of payments to or for any Lender organized under the laws of a jurisdiction
outside the United States of America. Each Lender represents and warrants that
each such form supplied by it to the Administrative Agent and the Borrowers
pursuant to this Section 4.05, and not superseded by another form supplied by
it, is or will be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 4.05 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Borrowers or
to change the jurisdiction of its Applicable Lending Office if the making of
such a filing or change would avoid the need for or reduce the amount of any
such additional amounts which may thereafter accrue and would not, in the sole
determination of such Lender, be otherwise disadvantageous to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The effectiveness of
this Agreement is subject to the fulfillment of the following conditions
precedent:
(a) The Administrative Agent shall have received on or before the Closing
Date the following, each dated the Closing Date, in form and substance
satisfactory to the Administrative Agent and in sufficient copies for each
Lender (except for the Notes):
(i) Counterparts of this Agreement, duly executed by each Borrower.
(ii) Contract Notes of each Borrower, duly made to the order of each
Lender in the amount of such Lender's Commitment.
(iii) Competitive Notes of each Borrower, duly made to the order
of each Lender in the amount of such Borrower's Borrower Sublimit.
(iv) A certificate of the Secretary or Assistant Secretary of each
Borrower certifying:
(A) the names and true signatures of the officers of such
Borrower authorized to sign this Agreement and such Borrower's Notes,
as the case may be, and the other documents to be delivered by such
Borrower hereunder;
(B) that attached thereto are true and correct copies of: (1) in
the case of NU, its Declaration of Trust, and in the case of CL&P
and WMECO, its Articles of Incorporation and By-laws, together with
all amendments thereto, as in effect on such date; (2) in the case of
NU, the resolutions of its Board of Trustees and, in the case of CL&P
and WMECO, the resolutions of their respective Boards of Directors, in
each case approving this Agreement and such Borrower's Notes and the
other documents to be delivered by or on behalf of such Borrower
hereunder; (3) all documents evidencing other necessary corporate or
other similar action, if any, with respect to the execution, delivery
and performance by such Borrower of this Agreement and such Borrower's
Notes; and (4) true and correct copies of all Governmental Approvals
referred to in clause (i) of the definition of "Governmental Approval"
required to be obtained or made by such Borrower in connection with
the execution, delivery and performance by such Borrower of this
Agreement and such Borrower's Notes.
(C) that the resolutions referred to in the foregoing clause
(B)(2) have not been modified, revoked or rescinded and are in full
force and effect on such date.
(v) A certificate signed by the Treasurer or Assistant Treasurer of
each Borrower, certifying as to:
(A) the SEC Borrowing Limit of such Borrower as in effect on the
Closing Date;
(B) in the case of NU, the Aggregate Dividend Paying
Availability of the Operating Companies as of September 30, 1996;
(C) the delivery to each of the Lenders, prior to the Closing
Date, of true, correct and complete copies (other than exhibits
thereto) of all of the Disclosure Documents; and
(D) the absence of any material adverse change in the financial
condition, operations, properties or prospects of such Borrower since
December 31, 1995 except as disclosed in the Disclosure Documents.
(vi) A certificate of a duly authorized officer of each Borrower
stating that (i) the representations and warranties contained in Section
6.01 of such Borrower are correct, in all material respects, on and as of
the Closing Date before and after giving effect to the Advances to be made
on such date and the application of the proceeds thereof, and (ii) no event
has occurred and is continuing with respect to such Borrower which
constitutes an Event of Default or Unmatured Default in respect of such
Borrower, or would result from such initial Advances or the application of
the proceeds thereof.
(vii) Such financial, business and other information regarding
each Borrower and its Principal Subsidiaries, as any Agent shall have
reasonably requested.
(viii) Favorable opinions of:
(A) Day, Berry & Howard, counsel to the Borrowers, in
substantially the form of Exhibit 5.01A hereto and as to such other
matters as the Administrative Agent may reasonably request;
(B) Jeffrey C. Miller, Assistant General Counsel of NUSCO, in
substantially the form of Exhibit 5.01B-1 hereto; Catherine E.
Shively, Senior Counsel of PSNH, in substantially the form of Exhibit
5.01B-2 hereto; and Richard Early, Senior Counsel of NUSCO, in
substantially the form of Exhibit 5.01B-3 hereto; and, in each case,
as to such other matters as the Administrative Agent may reasonably
request; and
(C) King & Spalding, special New York counsel to the
Administrative Agent, in substantially the form of Exhibit 5.01C
hereto and as to such other matters as the Administrative Agent may
reasonably request.
(ix) Irrevocable notice to each of the Banks party to the Existing
Credit Facilities (other than the Surviving Credit Facilities) notifying
such Banks of the termination of their respective "Commitments" thereunder
effective on or before the satisfaction (or waiver) of the other conditions
precedent set forth in this Section 5.01.
(b) The Existing Credit Facilities (other than the Surviving Credit
Facilities) have been (or will have been, upon the first Advance and the
application of the proceeds thereof) paid in full and the "Commitments"
thereunder terminated.
(c) All fees and other amounts payable pursuant to Section 2.02 hereof or
pursuant to the Fee Letters shall have been paid (to the extent then due and
payable).
(d) The Administrative Agent shall have received such other approvals,
opinions and documents as the Majority Lenders, through the Administrative
Agent, shall have reasonably requested as to the legality, validity, binding
effect or enforceability of this Agreement and the Notes or the financial
condition, operations, properties or prospects of each Borrower and their
respective Principal Subsidiaries.
SECTION 5.02. Conditions Precedent to Certain Contract Advances and All
Competitive Advances. The obligation of any Lender to make any Contract Advance
to any Borrower (except any Contract Advance described in Section 5.03),
including the initial Contract Advance to such Borrower, or to make any
Competitive Advance to such Borrower, shall be subject to the conditions
precedent that, on the date of such Contract Advance or Competitive Advance and
after giving effect thereto:
(a) the following statements shall be true (and each of the giving of
the applicable Notice of Contract Borrowing or Competitive Bid Request with
respect to such Advance and the acceptance of the proceeds of such Advance
without prior correction by or on behalf of such Borrower shall constitute
a representation and warranty by such Borrower that on the date of such
Advance such statements are true):
(i) the representations and warranties of such Borrower
contained in Section 6.01 of this Agreement are correct, in all
material respects, on and as of the date of such Advance, before and
after giving effect to such Advance and to the application of the
proceeds therefrom, as though made on and as of such date;
(ii) no Event of Default or Unmatured Default with respect to
such Borrower has occurred and is continuing or would result from such
Advance or from the application of the proceeds thereof;
(iii) the making of such Advance, when aggregated with all
other Advances outstanding to or requested by such Borrower would not
cause such Borrower's Borrower Sublimit to be exceeded;
(iv) the making of such Advance, when aggregated with all
other Advances outstanding to or requested by such Borrower and all
other outstanding short-term debt of such Borrower would not cause
such Borrower's SEC Borrowing Limit then in effect to be exceeded; and
(v) if such Borrower is NU, the Aggregate Dividend Paying
Availability of the Operating Companies determined as of the last day
of the most recently ended Fiscal Quarter is at least equal to the
aggregate principal amount of Advances outstanding to NU, before and
after giving effect to such Advance and to the application of the
proceeds therefrom; and
(b) such Borrower shall have furnished to the Administrative Agent
such other approvals, opinions or documents as any Lender may reasonably
request through the Administrative Agent as to the legality, validity,
binding effect or enforceability of any Loan Document or any First Mortgage
Indenture.
SECTION 5.03. Conditions Precedent to Other Contract Advances. The
obligation of any Lender to make any Contract Advance to any Borrower that would
not increase the aggregate principal amount of Contract Advances made by such
Lender to such Borrower (as determined immediately prior to and after the making
of such Contract Advance) shall be subject to the conditions precedent that, on
the date of such Contract Advance and after giving effect thereto:
(a) the following statements shall be true (and each of the giving of
the applicable Notice of Contract Borrowing with respect to such Contract
Advance and the acceptance of the proceeds of such Contract Advance without
prior correction by or on behalf of such Borrower shall constitute a
representation and warranty by such Borrower that on the date of such
Contract Advance such statements are true):
(i) the representations and warranties of such Borrower
contained in Section 6.01 of this Agreement (excluding those contained
in subsections (f), (g), (h)(ii) and (i) thereof) are correct, in all
material respects, on and as of the date of such Contract Advance,
before and after giving effect to such Contract Advance and to the
application of the proceeds therefrom, as though made on and as of
such date;
(ii) no Event of Default with respect to such Borrower has
occurred and is continuing or would result from such Contract Advance
or from the application of the proceeds thereof;
(iii) the making of such Contract Advance, when aggregated
with all other Advances outstanding to or requested by such Borrower
would not cause such Borrower's Borrower Sublimit to be exceeded;
(iv) the making of such Contract Advance, when aggregated
with all other Advances outstanding to or requested by such Borrower
and all other outstanding short-term debt of such Borrower would not
cause such Borrower's SEC Borrowing Limit then in effect to be
exceeded; and
(v) if such Borrower is NU, the Aggregate Dividend Paying
Availability of the Operating Companies determined as of the last day
of the most recently ended Fiscal Quarter is at least equal to the
aggregate principal amount of Advances outstanding to NU plus the
aggregate principal amount of "advances" outstanding to NU under the
Surviving Credit Facilities, before and after giving effect to such
Advance and to the application of the proceeds therefrom; and
(b) such Borrower shall have furnished to the Administrative Agent
such other approvals, opinions or documents as any Lender may reasonably
request through the Administrative Agent as to the legality, validity,
binding effect or enforceability of any Loan Document or any First Mortgage
Indenture.
SECTION 5.04. Reliance on Certificates. The Lenders and the Administrative
Agent shall be entitled to rely conclusively upon the certificates delivered
from time to time by officers of each Borrower as to the names, incumbency,
authority and signatures of the respective persons named therein until such time
as the Administrative Agent may receive a replacement certificate, in form
acceptable to the Administrative Agent, from an officer of such Borrower
identified to the Administrative Agent as having authority to deliver such
certificate, setting forth the names and true signatures of the officers and
other representatives of such Borrower thereafter authorized to act on behalf of
such Borrower and, in all cases, the Lenders and the Administrative Agent may
rely on the information set forth in any such certificate.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants with respect to itself as follows:
(a) Each of such Borrower and its Principal Subsidiaries is a
corporation (or, in the case of NU, a voluntary association organized under
a declaration of trust) duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has the
requisite corporate power (or, in the case of NU, the power under its
declaration of trust) and authority to own its property and assets and to
carry on its business as now conducted and is qualified to do business in
every jurisdiction where, because of the nature of its business or
property, such qualification is required, except where the failure so to
qualify would not have a material adverse effect on the financial
condition, properties, prospects or operations of such Borrower or of such
Borrower and its Principal Subsidiaries taken as a whole. Such Borrower
has the corporate power (or, in the case of NU, the power under its
declaration of trust) to execute, deliver and perform its obligations under
the Loan Documents, to borrow hereunder and to execute and deliver its
respective Notes.
(b) The execution, delivery and performance of the Loan Documents and
First Mortgage Indenture of such Borrower by such Borrower are within such
Borrower's corporate powers (or, in the case of NU, its powers under its
declaration of trust), have been duly authorized by all necessary corporate
or other similar action, and do not and will not contravene (i) such
Borrower's declaration of trust, charter or by-laws, as the case may be, or
any law or legal restriction or (ii) any contractual restriction binding
on or affecting such Borrower or its properties or any of its Principal
Subsidiaries or its properties.
(c) Except as disclosed in such Borrower's Disclosure Documents, each
of such Borrower and its Principal Subsidiaries is not in violation of any
law, or in default with respect to any judgment, writ, injunction, decree,
rule or regulation (including any of the foregoing relating to
environmental laws and regulations) of any court or governmental agency or
instrumentality, where such violation or default would reasonably be
expected to have a material adverse effect on the financial condition,
properties, prospects or operations of such Borrower or of such Borrower
and its Principal Subsidiaries, taken as a whole.
(d) All Governmental Approvals referred to in clauses (i) and (ii) in
the definition of "Governmental Approvals" have been duly obtained or made,
and all applicable periods of time for review, rehearing or appeal with
respect thereto have expired, except as described below. If the period for
appeal of the order of the Securities and Exchange Commission approving the
transactions contemplated hereby has not expired, the filing of an appeal
of such order will not affect the validity of said transactions, unless
such order has been otherwise stayed or any of the parties hereto has
actual knowledge that any of such transactions constitutes a violation of
the Public Utility Holding Company Act of 1935 or any rule or regulation
thereunder. No such stay exists and no Borrower has any reason to believe
that any of such transactions constitutes any such violation. Such
Borrower and each of its Principal Subsidiaries have obtained or made all
Governmental Approvals referred to in clause (iii) of the definition of
"Governmental Approvals", except (A) those which are not yet required but
which are obtainable in the ordinary course of business as and when
required, (B) those the absence of which would not materially adversely
affect the financial condition, properties, prospects or operations of such
Borrower or any Principal Subsidiary and (C) those which such Borrower is
diligently attempting in good faith to obtain, renew or extend, or the
requirement for which such Borrower is contesting in good faith by
appropriate proceedings or by other appropriate means; in each case
described in the foregoing clause (C), except as is disclosed in such
Borrower's Disclosure Documents, such attempt or contest, and any delay
resulting therefrom, is not reasonably expected to have a material adverse
effect on the financial condition, properties, prospects or operations of
such Borrower or any Principal Subsidiary or to magnify to any significant
degree any such material adverse effect that would reasonably be expected
to result from the absence of such Governmental Approval.
(e) The Loan Documents and the First Mortgage Indenture of such
Borrower are legal, valid and binding obligations of such Borrower
enforceable against such Borrower in accordance with their respective
terms; subject to the qualification, however, that the enforcement of the
rights and remedies herein and therein is subject to bankruptcy and other
similar laws of general application affecting rights and remedies of
creditors and the application of general principles of equity (regardless
of whether considered in a proceeding in equity or at law).
(f) The audited consolidated balance sheet of such Borrower as at
December 31, 1995, and the audited consolidated statements of income and
cash flows of such Borrower (in the case of WMECO, the audited balance
sheet and the audited statements of income and cash flows) for the Fiscal
Year then ended as included in such Borrower's Annual Report on Form 10-K
for such Fiscal Year, fairly present in all material respects the
consolidated financial condition and results of operations of such Borrower
(in the case of WMECO, on an unconsolidated basis) at and for the period
ended on such date, and have been prepared in accordance with generally
accepted accounting principles consistently applied. Since December 31,
1995 there has been no material adverse change in the consolidated (or in
the case of WMECO, unconsolidated) financial condition, operations,
properties or prospects of such Borrower and its Subsidiaries, if any,
taken as a whole, except as disclosed in such Borrower's Disclosure
Documents.
(g) With respect to NU only, (A) the unconsolidated balance sheet of
NU as at December 31, 1995, and the unconsolidated statements of income and
cash flows of NU for the Fiscal Year then ended contained in the
consolidating balance sheet of NU and its Subsidiaries and the
consolidating statements of income and cash flows of NU and its
Subsidiaries, as set forth in the Form U5S of NU filed with the Securities
and Exchange Commission and (B) the unaudited unconsolidated balance sheet
of NU as at June 30, 1996 and the unaudited unconsolidated statement of
income of NU for the six-month period then ended, in each case as provided
to the Lenders, fairly present in all material respects the financial
condition and results of operations of NU on an unconsolidated basis at and
for the respective periods ended on such dates, and have been prepared in
accordance with generally accepted accounting principles consistently
applied. Since June 30, 1996, there has been no material adverse change in
the financial condition, operations, properties or prospects of NU on an
unconsolidated basis, except as disclosed in such Borrower's Disclosure
Documents.
(h) There is no pending or known threatened action or proceeding
(including, without limitation, any action or proceeding relating to any
environmental protection laws or regulations) affecting such Borrower or
its properties, or any of its Principal Subsidiaries or its properties,
before any court, governmental agency or arbitrator (i) which affects or
purports to affect the legality, validity or enforceability of (A) any Loan
Document or any First Mortgage Indenture of such Borrower or (B) the
Existing Credit Facilities or (ii) as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
would materially adversely affect the financial condition, properties,
prospects or operations of such Borrower, except, for purposes of this
clause (ii) only, such as is described in such Borrower's Disclosure
Documents or in Schedule II hereto.
(i) No ERISA Plan Termination Event has occurred nor is reasonably
expected to occur with respect to any ERISA Plan which would materially
adversely affect the financial condition, properties, prospects or
operations of such Borrower and its Subsidiaries taken as a whole, except
as disclosed to the Lenders and consented to by the Majority Lenders in
writing. Since the date of the most recent Schedule B (Actuarial
Information) to the annual report of each such ERISA Plan (Form 5500
Series), there has been no material adverse change in the funding status of
the ERISA Plans referred to therein, and no "prohibited transaction" has
occurred with respect thereto that, singly or in the aggregate with all
other "prohibited transactions" and after giving effect to all likely
consequences thereof, would be reasonably expected to have a material
adverse effect on the financial condition, properties, prospects or
operations of such Borrower and its Subsidiaries taken as a whole. Neither
such Borrower nor any of its ERISA Affiliates has incurred nor reasonably
expects to incur any material withdrawal liability under ERISA to any ERISA
Multiemployer Plan, except as disclosed to and consented by the Majority
Lenders in writing.
(j) Such Borrower or one of its Principal Subsidiaries has good and
marketable title (or, in the case of personal property, valid title) or
valid leasehold interests in the electric generating plants named in Item 2
of such Borrower's Annual Report on Form 10-K for the Fiscal Year ended
December 31, 1995 under the caption "Electric Generating Plants", except
for minor defects in title that do not materially interfere with the
ability of such Borrower or any of its Principal Subsidiaries to conduct
its business as now conducted. All such assets and properties are free and
clear of any Lien, other than Liens permitted under Section 7.02(a) hereof.
(k) All outstanding shares of capital stock having ordinary voting
power for the election of directors of CL&P, WMECO, PSNH and NAEC have been
validly issued, are fully paid and nonassessable and are owned beneficially
by NU, free and clear of any Lien. NU is a "holding company" (as defined
in the Public Utility Holding Company Act of 1935, as amended).
(l) Such Borrower and each of its Principal Subsidiaries has filed
all tax returns (Federal, state and local) required to be filed and paid
taxes shown thereon to be due, including interest and penalties, or, to the
extent such Borrower or any of its Principal Subsidiaries is contesting in
good faith an assertion of liability based on such returns, has provided
adequate reserves in accordance with generally accepted accounting
principles for payment thereof.
(m) No exhibit, schedule, report or other written information
provided by or on behalf of such Borrower or its agents to the Agents or
the Lenders in connection with the negotiation, execution and closing of
the Loan Documents (including, without limitation, the Information
Memorandum, but excluding the projections contained therein) knowingly
contained when made any material misstatement of fact or knowingly omitted
to state any material fact necessary to make the statements contained
therein not misleading in light of the circumstances under which they were
made. Except as has been disclosed to the Administrative Agent and each
Lender, the projections included in the Information Memorandum were
prepared in good faith on the basis of assumptions reasonable as of the
date of the Information Memorandum, it being understood that such
projections do not constitute a warranty or binding assurance of future
performance. Except as has been disclosed to the Administrative Agent and
each Lender, nothing has come to the attention of the responsible officers
of such Borrower that would indicate that any of such assumptions, to the
extent material to such projections, has ceased to be reasonable in light
of subsequent developments or events.
(n) All proceeds of the Advances shall be used (i) for the general
corporate purposes of such Borrower, including to provide liquidity support
for such Borrower's commercial paper, (ii) to replace the Existing
Facilities of such Borrower with one or more of the Lenders and (iii) to
provide liquidity to the NU System Money Pool. No proceeds of any Advance
will be used in violation of, or in any manner that would result in a
violation by any party hereto of, Regulations G, T, U or X promulgated by
the Board of Governors of the Federal Reserve System or any successor
regulations. Such Borrower (A) is not an "investment company" within the
meaning ascribed to that term in the Investment Company Act of 1940 and (B)
is not engaged in the business of extending credit for the purpose of
buying or carrying margin stock.
(o) With respect to CL&P and WMECO only, such Borrower's First
Mortgage Indenture constitutes a direct and valid first mortgage lien,
subject only to liens permitted by such Borrower's First Mortgage
Indenture, including liens and encumbrances existing at the time of
acquisition by such Borrower, upon the interests of such Borrower in
electric properties and franchises now owned by such Borrower and located
in Connecticut, Massachusetts, New Hampshire and Vermont, and under
existing law will, subject only to such permitted liens and subject to the
Bankruptcy Laws, constitute a similar lien at the time of acquisition on
all properties and assets of such Borrower acquired after May 30, 1997
located within the State of Connecticut and required by such Borrower's
First Mortgage Indenture to be subjected to the lien thereof, other than
properties and assets of the character excluded, excepted or released from
the lien thereof.
(p) With respect to CL&P and WMECO only, such Borrower's First
Mortgage Indenture and/or appropriate certificates or financing statements
with respect thereto, have been duly recorded or filed for recordation in
all places within the States of Connecticut, Massachusetts, New Hampshire
and Vermont, in which such recording is required to protect and preserve
the lien of such Borrower's First Mortgage Indenture on the properties and
assets located in Connecticut, Massachusetts, New Hampshire and Vermont,
which are presently subject thereto, and all Connecticut, Massachusetts,
New Hampshire and Vermont taxes and fees required to be paid with respect
to the execution and recording of such Borrower's First Mortgage Indenture
and the issuance of such Borrower's Collateral FMBs have been paid.
ARTICLE VII
COVENANTS OF THE BORROWERS
SECTION 7.01. Affirmative Covenants. On and after the Closing Date, so long
as any Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each Borrower shall, unless the Majority Lenders shall otherwise
consent in writing:
(a) Use of Proceeds. Apply all proceeds of each Advance solely as
specified in Section 6.01(n) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the same shall
become delinquent, and cause each of its Principal Subsidiaries to pay and
discharge before the same shall become delinquent, all taxes, assessments
and governmental charges, royalties or levies imposed upon it or upon its
property except to the extent such Borrower or any of its Principal
Subsidiaries is contesting the same in good faith by appropriate
proceedings and has set aside adequate reserves in accordance with
generally accepted accounting principles for the payment thereof.
(c) Maintenance of Insurance. Maintain, or cause to be maintained,
insurance (including appropriate plans of self-insurance) covering such
Borrower, any of its Principal Subsidiaries and their respective
properties, in effect at all times in such amounts and covering such risks
as may be required by law and in addition as is usually carried by
companies engaged in similar businesses and owning similar properties.
(d) Preservation of Existence, Etc.; Disaggregation. (i) Except as
permitted by Section 7.02(b) hereof, preserve and maintain, and cause each
of its Principal Subsidiaries to preserve and maintain, its existence,
corporate or otherwise, material rights (statutory and otherwise) and
franchises except where the failure to maintain and preserve such rights
and franchises would not materially adversely affect the financial
condition, properties, prospects or operations of such Borrower or any of
its Principal Subsidiaries.
(ii) In furtherance of the foregoing, and notwithstanding Section
7.02(b), each Borrower agrees that it will not, and will not permit its
Principal Subsidiaries to (nor shall NU permit HWP to), sell, transfer or
otherwise dispose of (by lease or otherwise, and whether in one or a series
of related transactions) any portion of its generation, transmission or
distribution assets in excess of 10% of the net utility plant assets of
such Borrower, Principal Subsidiary or HWP, as the case may be, in each
case as determined on a cumulative basis from the date of this Agreement
through the Termination Date by reference to such entity's published
balance sheets.
(e) Compliance with Laws, Etc. Comply, and cause each of its
Principal Subsidiaries to comply, in all material respects with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, including, without limitation, any such laws,
rules, regulations and orders issued by the Securities and Exchange
Commission or relating to zoning, environmental protection, use and
disposal of Hazardous Substances, land use, construction and building
restrictions, ERISA and employee safety and health matters relating to
business operations, except to the extent (i) that such Borrower or any of
its Principal Subsidiaries is contesting the same in good faith by
appropriate proceedings or (ii) that any such non-compliance, and the
enforcement or correction thereof, would not materially adversely affect
the financial condition, properties, prospects or operations of such
Borrower or any of its Principal Subsidiaries.
(f) Inspection Rights. At any time and from time to time upon
reasonable notice, permit the Administrative Agent and its agents and
representatives to examine and make copies of and abstracts from the
records and books of account of, and the properties of, such Borrower and
any of its Principal Subsidiaries and to discuss the affairs, finances and
accounts of such Borrower and its Principal Subsidiaries (i) with such
Borrower, its Principal Subsidiaries and their respective officers and
directors and (ii) with the consent of such Borrower and/or its Principal
Subsidiaries, as the case may be (which consent shall not be unreasonably
withheld or delayed), with the accountants of such Borrower and its
Principal Subsidiaries.
(g) Keeping of Books. Keep proper records and books of account, in
which full and correct entries shall be made of all financial transactions
of such Borrower and its Principal Subsidiaries and the assets and business
of such Borrower and its Principal Subsidiaries, in accordance with
generally accepted accounting practices consistently applied.
(h) Conduct of Business. Except as permitted by Section 7.02(b) but
subject in all respects to Section 7.01(d)(ii), conduct its primary
business, and cause each of its Principal Subsidiaries and, in the case of
NU, HWP, to conduct its primary business, in substantially the same manner
and in substantially the same fields as such business is conducted on the
Closing Date.
(i) Maintenance of Properties, Etc. (i) As to properties of the
type described in Section 6.01(j) hereof, maintain, and cause its Principal
Subsidiaries to maintain, title of the quality described therein and
preserve, maintain, develop, and operate, and cause its Principal
Subsidiaries to preserve, maintain, develop and operate, in substantial
conformity with all laws, material contractual obligations and prudent
practices prevailing in the industry, all of its properties which are used
or useful in the conduct of its or its Principal Subsidiaries' respective
businesses in good working order and condition, ordinary wear and tear
excepted, except (A) as permitted by Section 7.02(b),but subject
nevertheless to Section 7.01(d)(ii), (B) as disclosed in the Disclosure
Documents or otherwise in writing to the Administrative Agent and the
Lenders on or prior to the date hereof, and (C) to the extent such non-
conformity would not materially adversely affect the financial condition,
properties, prospects or operations of such Borrower or any of its
Principal Subsidiaries; provided, however, that such Borrower or any
Principal Subsidiary will not be prevented from discontinuing the operation
and maintenance of any such properties if such discontinuance is, in the
judgment of such Borrower or such Principal Subsidiary, desirable in the
operation or maintenance of its business and would not materially adversely
affect the financial condition, properties, prospects or operations of such
Borrower or such Principal Subsidiary.
(j) Governmental Approvals. Duly obtain, and cause each of its
Principal Subsidiaries to duly obtain, on or prior to such date as the same
may become legally required, and thereafter maintain in effect at all
times, all Governmental Approvals on its or such Principal Subsidiary's
part to be obtained, except in the case of those Governmental Approvals
referred to in clause (iii) of the definition of "Governmental Approvals",
(i) those the absence of which would not materially adversely affect the
financial condition, properties, prospects or operations of such Borrower
or any Principal Subsidiary and (ii) those which such Borrower is
diligently attempting in good faith to obtain, renew or extend, or the
requirement for which such Borrower is contesting in good faith by
appropriate proceedings or by other appropriate means; provided, however,
that the exception afforded by clause (ii), above, shall be available only
if and for so long as such attempt or contest, and any delay resulting
therefrom, does not have a material adverse effect on the financial
condition, properties, prospects or operations of such Borrower or any
Principal Subsidiary and does not magnify to any significant degree any
such material adverse effect that would reasonably be expected to result
from the absence of such Governmental Approval.
(k) Maintenance of Moody's Rating and S&P Rating. Maintain at all
times ratings issued by Moody's and S&P with respect to such Borrower's
Reference Securities.
(l) Further Assurances. Promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or that any Lender through the Administrative Agent may
reasonably request in order to fully give effect to the interests and
properties purported to be covered by the Loan Documents.
SECTION 7.02. Negative Covenants. On and after the Closing Date, and so
long as any Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each Borrower shall not, without the written consent of the Majority
Lenders:
(a) Liens, Etc. (i) In the case of NU, create, incur, assume or
suffer to exist, or permit any Subsidiary to create, incur, assume or
suffer to exist, any lien, security interest, or other charge or
encumbrance (including the lien or retained security title of a conditional
vendor) of any kind, or any other type of preferential arrangement the
intent or effect of which is to assure a creditor against loss or to prefer
one creditor over another creditor (any of the foregoing being referred to
herein as a "Lien") upon or with respect to any voting capital stock of any
Principal Subsidiary or any of NU's properties or assets whether now owned
or hereafter acquired; and
(ii) in the case of CL&P and WMECO, create incur, assume or suffer to
exist any Lien upon or with respect to any voting capital stock of any of
their respective Principal Subsidiaries or any of their respective
properties or assets whether now owned or hereafter acquired, except:
(A) any Liens existing on the Closing Date;
(B) in the case of CL&P, Liens created by the Indenture of
Mortgage and Deed of Trust dated as of May 1, 1921, from CL&P to
Bankers Trust Company, as trustee, as previously and hereafter amended
and supplemented (the "CL&P Indenture");
(C) in the case of WMECO, Liens created by the First Mortgage
Indenture and Deed of Trust dated as of August 1, 1954, from WMECO to
State Street Bank and Trust Company, as successor trustee, as
previously and hereafter amended and supplemented (the "WMECO
Indenture");
(D) Liens on such Borrowers' interests in Millstone Unit No. 1
created by (1) the Open-End Mortgage and Trust Agreement dated as of
October 1, 1986, as previously and hereafter amended, made by CL&P in
favor of State Street Bank and Trust Company, as successor trustee,
and (1) the Open-End Mortgage and Trust Agreement dated as of
October 1, 1986, as previously and hereafter amended, made by WMECO in
favor of State Street Bank and Trust Company, as successor trustee, to
the extent of the Debt from time to time secured by such Open-End
Mortgages and Trust Agreements;
(E) "Permitted Liens" or "Permitted Encumbrances" under the CL&P
Indenture (in the case of CL&P) or the WMECO Indenture (in the case of
WMECO), in each case as such terms are defined on the date hereof, to
the extent such Liens do not secure Debt of such Borrower;
(F) any Lien on assets of any of its Subsidiaries created or
assumed to secure Debt owing by any of its Subsidiaries to such
Borrower or to any wholly-owned Subsidiary of such Borrower;
(G) any purchase money Lien or construction mortgage on assets
hereafter acquired or constructed by such Borrower or any of its
Subsidiaries and any Lien on any assets existing at the time of
acquisition thereof by such Borrower or any of its Subsidiaries, or
created within 180 days from the date of completion of such
acquisition or construction; provided that such Lien shall at all
times be confined solely to the assets so acquired or constructed and
any additions thereto;
(H) any existing Liens on assets now owned by such Borrower or
any of its Subsidiaries; Liens on assets or stock of any class of, or
any partnership or joint venture interest in, any of its Subsidiaries
existing at the time it becomes a Subsidiary of such Borrower, and
liens existing on assets of a corporation or other going concern when
it is merged into or with such Borrower or a Subsidiary of such
Borrower, or when substantially all of its assets are acquired by such
Borrower or a Subsidiary of such Borrower; provided that such Liens
shall at all times be confined solely to such assets, or if such
assets constitute a utility system, additions to or substitutions for
such assets;
(I) Liens resulting from legal proceedings being contested in
good faith by appropriate legal or administrative proceedings by such
Borrower or any of its Subsidiaries, and as to which such Borrower or
any of its Subsidiaries, as the case may be, to the extent required by
generally accepted accounting principles applied on a consistent basis
shall have set aside on its books adequate reserves;
(J) Liens created in favor of the other contracting party in
connection with advance or progress payments;
(K) any Liens in favor of any state of the United States or any
political subdivision of any such state, or any agency of any such
state or political subdivisions, or trustee acting on behalf of
holders of obligations issued by any of the foregoing or any financial
institutions lending to or purchasing obligations of any of the
foregoing, which Lien is created or assumed for the purpose of
financing all or part of the cost of acquiring or constructing the
property subject thereto;
(L) Liens resulting from conditional sale agreements, capital
leases or other title retention agreements including, without
limitation, Liens arising under leases of nuclear fuel from the
Niantic Bay Fuel Trust;
(M) with respect to pollution control bond financings, Liens on
funds, accounts and other similar intangibles of such Borrower or any
of its Subsidiaries created or arising under the relevant indenture,
pledges of the related loan agreement with the relevant issuing
authority and pledges of such Borrower's interest, if any, in any
bonds issued pursuant to such financings to a letter of credit bank or
bond issuer or similar credit enhancer;
(N) Liens granted on accounts receivable and Regulatory Assets
in connection with financing transactions, whether denominated as
sales or borrowings;
(O) any other Liens incurred in the ordinary course of business
otherwise than to secure Debt; and
(P) any extension, renewal or replacement of Liens permitted by
clauses (A) through (H) and (J) through (N); provided, however, that
the principal amount of Debt secured thereby shall not, at the time of
such extension, renewal or replacement, exceed the principal amount of
Debt so secured and that such extension, renewal or replacement shall
be limited to all or a part of the property which secured the Lien so
extended, renewed or replaced.
(b) Mergers, and Sales of Assets, Etc. (i) In the case of NU,
(A) merge with or into or consolidate with or into, any Person or
(B) purchase or acquire (whether directly or indirectly or in one or a
series of transactions, whether related or not) all or substantially all of
the assets or stock of any class of, or any partnership or joint venture
interest in, any Person if the aggregate purchase price of such
acquisitions plus the amount of any liabilities assumed by NU in connection
therewith exceeds in the aggregate $50,000,000 from the date hereof through
the Termination Date; provided, that the foregoing shall not apply to
(x) acquisitions or other investments made by or through Charter Oak
Energy, Inc. so long as the aggregate amount of all such acquisitions and
investments made by or through Charter Oak Energy, Inc., now existing or
made after the date hereof, does not exceed $200,000,000 and
(y) acquisitions made through CL&P and WMECO in accordance with clause (ii)
of this Section 7.02(b); and provided, further, that, in each case, before
and after giving effect to any such purchase, acquisition or investment not
prohibited by this subsection, no Event of Default or Unmatured Default
shall have occurred and be continuing.
(ii) In the case of CL&P and WMECO, (A) merge with or into or
consolidate with or into, any Person, or permit any of its
Subsidiaries to be a party to, any merger or consolidation, or
purchase or otherwise acquire (whether directly or indirectly) all or
substantially all of the assets or stock of any class of, or any
partnership or joint venture interest in, any other Person or
(B) sell, transfer, convey, lease or otherwise dispose of all or any
substantial part of its assets; except for the following, and then
only after receipt of all necessary corporate and governmental or
regulatory approvals and provided that, before and after giving effect
to any such merger, consolidation, purchase, acquisition, sale,
transfer, conveyance, lease or other disposition, no Event of Default
or Unmatured Default shall have occurred and be continuing:
(A) any such merger or consolidation, sale, transfer,
conveyance, lease or other disposition of or by any wholly-owned
Subsidiary of such Borrower into or to any Borrower and/or any
wholly-owned Subsidiary of NU or such Borrower and any such
purchase or other acquisition by such Borrower or any wholly-
owned Subsidiary of NU or such Borrower of the assets or stock of
any wholly-owned Subsidiary of such Borrower;
(B) any such merger or consolidation of such Borrower with
or into another Borrower and/or a wholly-owned Subsidiary of NU
and/or a Regulatory Transaction Entity and/or an entity owning a
cogeneration or independent power project, pursuant to "step-in"
or similar rights granted pursuant to a pre-existing power
purchase contract, if (but only if): (1) the successor or
surviving corporation, if not such Borrower, shall have assumed
or succeeded to all of the liabilities of such Borrower
(including the liabilities of such Borrower under any Loan
Document of such Borrower), and (2) the Lenders shall have
received the favorable written opinion of counsel to such
Borrower, in form and substance satisfactory to the Lenders, to
the effect of the foregoing subclause (1); provided, however, in
the event of a merger or consolidation with a Regulatory
Transaction Entity, if the value of the cash, stock or other
consideration for the merger or consolidation plus the amount of
any liabilities assumed in connection with such merger or
consolidation exceeds $100,000,000, such Borrower shall deliver
to the Administrative Agent on behalf of the Lenders 30 days
prior to such merger or consolidation, a certificate of a duly
authorized officer of such Borrower demonstrating projected
compliance with the ratios set forth in Section 7.03(a) and
7.03(b) hereof for and as of each of the three consecutive fiscal
quarters immediately succeeding such merger or consolidation and
certifying that such projections were prepared in good faith and
on reasonable assumptions;
(C) any purchase or acquisition of all or substantially all
of the assets or stock of any class of, or any partnership or
joint venture interest in (and any assumption of the related
liabilities) (1) an entity owning a cogeneration or independent
power project, pursuant to "step-in" or similar rights granted
pursuant to a pre-existing power purchase contract; or (2) a
Regulatory Transaction Entity; provided, however, in the event of
a purchase or acquisition of a Regulatory Transaction Entity, if
the purchase price plus the amount of any liabilities assumed in
connection with such purchase or acquisition exceeds in the
aggregate $100,000,000, such Borrower shall deliver to the
Administrative Agent for the Lenders 30 days prior to such
purchase or acquisition, a certificate of a duly authorized
officer of such Borrower demonstrating projected compliance with
the ratios set forth in Section 7.03(a) and 7.03(b) hereof for
and as of each of the three consecutive fiscal quarters
immediately succeeding such purchase or acquisition and
certifying that such projections were prepared in good faith and
on reasonable assumptions;
(D) any purchase or acquisition of a joint venture interest
in a mutual insurance company providing nuclear liability or
nuclear property or replacement power insurance;
(E) any sale of accounts receivable on reasonable
commercial terms (including a commercially reasonable discount)
to obtain funding for CL&P and WMECO, as the case may be; or
(F) any sale of all or part of any Regulatory Asset.
For purposes of this subsection (b), any one transaction or series of
similar or related transactions during any consecutive 12-month period
shall be deemed to involve a "substantial part" of such Borrower's assets
if, in the aggregate, the book value of such assets equals or exceeds 10%
of the total consolidated assets of such Borrower and its Subsidiaries
reflected in the consolidated financial statements of such Borrower
delivered pursuant to Section 7.04(ii) or 7.04(iii) hereof in respect of
the Fiscal Quarter or Fiscal Year ending on or immediately prior to the
commencement of such 12-month period.
(c) Niantic Bay Fuel Trust. In the case of CL&P and WMECO:
(i) voluntarily reduce or terminate or permit to be voluntarily
reduced or terminated any of the "Commitments" of the
"Banks" under the Niantic Bay Fuel Trust Credit Agreement to
an amount less than $150,000,000 at any time; or
(ii) at any time prior to the Termination Date, prepay or
otherwise reduce or permit to be prepaid or otherwise
reduced, except by payment at stated maturity:
(A) the principal amount of "Advances" outstanding under
the Niantic Bay Fuel Trust Credit Agreement except
(1) with and to the extent of proceeds of issuances of
commercial paper notes or "IT Notes" and (2) as may be
required by the terms thereof in connection with any
reduction in the amount or value of the nuclear fuel
financed thereby; or
(B) the principal amount of outstanding "IT Notes" issued
by the Niantic Bay Fuel Trust; or
(iii) except for such amendments or modifications as the
Administrative Agent shall have consented to in writing
prior to the Closing Date, amend, modify or terminate,
or permit to be amended, modified or terminated, the
Niantic Bay Fuel Trust Credit Agreement, the Niantic
Bay Fuel Lease Agreement or the Niantic Bay Fuel Trust
in any manner that would directly or indirectly reduce
the availability of funds under the Niantic Bay Fuel
Trust Credit Agreement or the Niantic Bay Fuel Lease
Agreement.
(d) NU Debt. With respect to NU only, create, incur or suffer to
exist any Debt, other than (i) Debt arising under the Loan Documents and
the Surviving Credit Facilities, (ii) Debt existing on the Closing Date as
described on Schedule III, which Debt shall not be renewed, extended or
replaced except for guarantees of surety bonds with respect to workman's
compensation claims and performance bonds in an aggregate amount not to
exceed $10,000,000 at any time outstanding and (iii) other Debt not to
exceed $100,000,000 at any one time outstanding.
(e) Dividend Restrictions. In the case of CL&P and WMECO, enter
into, and in the case of any Borrower, permit any Principal Subsidiary to
enter into, any agreement, contract, indenture or similar obligation, or
issue (in the case of CL&P and WMECO), or permit (in the case of any
Borrower) any Principal Subsidiary to issue, any security (all of the
foregoing being referred to as "Financing Agreements"), that is not in
effect on the Closing Date and disclosed to the Administrative Agent in the
Information Memorandum or otherwise in writing prior to the Closing Date,
or amend or modify (in the case of CL&P and WMECO), or permit (in the case
of each Borrower) any Principal Subsidiary to amend or modify, any existing
Financing Agreement, if the effect of such Financing Agreement (or
amendment or modification thereof) is to impose any additional restriction
not in effect on the Closing Date and disclosed to the Administrative Agent
in writing prior to the Closing Date on the ability of CL&P, WMECO or such
Principal Subsidiary to pay dividends to NU.
(f) Surviving Credit Facilities. (i) Voluntarily reduce or terminate
the "Commitment" of the "Bank" under any Surviving Credit Facility (other
than by scheduled termination in accordance with the terms thereof), or
(ii) amend or modify or agree to amend or modify such Surviving Credit
Facility in any manner that would reduce or otherwise impose additional
restrictions on the availability of funds thereunder or amend or add or
otherwise impose additional conditions on such Borrower if such conditions
are likely to have the effect of making it more difficult for such Borrower
to satisfy the conditions to borrowing under such Surviving Credit
Facility.
(g) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate to terminate, any ERISA Plan so as to result in any liability of
such Borrower or any Principal Subsidiary to the PBGC in an amount greater
than $1,000,000, or (ii) permit to exist any occurrence of any Reportable
Event (as defined in Title IV of ERISA) which, alone or together with any
other Reportable Event with respect to the same or another ERISA Plan, has
a reasonable possibility of resulting in liability of such Borrower or any
Subsidiary to the PBGC in an aggregate amount exceeding $1,000,000, or any
other event or condition, which presents a material risk of such a
termination by the PBGC of any ERISA Plan or has a reasonable possibility
of resulting in a liability of such Borrower or any Subsidiary to the PBGC
in an aggregate amount exceeding $1,000,000.
(h) Accounting Changes. Make, or permit any of its Principal
Subsidiaries to make, any change in their respective accounting policies or
reporting practices except as required or permitted by the Securities and
Exchange Commission, the Financial Accounting Standards Board or any other
generally recognized accounting authority.
(i) Transactions with Affiliates. Not engage, or permit any of its
Principal Subsidiaries to engage, in any transaction with any Affiliate
except (i) in accordance with the Public Utility Holding Company Act of
1935, to the extent applicable thereto or (ii) otherwise, on terms no less
favorable to such Borrower or such Principal Subsidiary than if the
transaction had been negotiated in good faith on an arms-length basis with
a non-Affiliate and on commercially reasonable terms or pursuant to a
binding agreement in effect on the Closing Date.
SECTION 7.03. Financial Covenants. On and after the Closing Date, so long
as any Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each Borrower (or, in the case of clause (c) below only, NU) shall,
unless the Majority Lenders shall otherwise consent in writing:
(a) Common Equity Ratio. Maintain at all times a ratio of Common
Equity to Total Capitalization of not less than the amount set forth below
for such Borrower for each corresponding period set forth below:
<TABLE>
<CAPTION>
Borrower
<S> <C> <C> <C>
Period NU CL&P WMECO
(Consolidated)
1/1/97 through 12/31/97 0.31:1.00 0.31:1.00 0.31:1.00
1/1/98 and thereafter 0.32:1.00 0.32:1.00 0.32:1.00
</TABLE>
(a) Interest Coverage Ratio. Maintain a ratio of
Consolidated Operating Income to Consolidated Interest Expense of not less than
the amount set forth below for such Borrower as of the end of each Fiscal
Quarter in each corresponding period set forth below.
<TABLE>
<CAPTION>
Borrower
<S> <C> <C> <C>
Period NU CL&P WMECO
(Consolidated)
10/1/97 through 12/31/97 --- 1.25:1.00 1.25:1.00
1/1/98 through 6/30/98 1.75:1.00 1.50:1.00 1.50:1.00
7/1/98 through 9/30/98 2.00:1.00 2.00:1.00 2.00:1.00
10/1/98 and thereafter 2.50:1.00 2.50:1.00 2.50:100
</TABLE>
(c) Dividend Paying Availability. Cause the Operating Companies to
maintain, as of the end of each Fiscal Quarter, Aggregate Dividend Paying
Availability equal to at least the aggregate principal amount of Advances
outstanding to NU plus the aggregate principal amount of "advances"
outstanding to NU under the Surviving Credit Facilities at the end of such
Fiscal Quarter.
SECTION 7.04. Reporting Obligations. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, each Borrower shall,
unless the Majority Lenders shall otherwise consent in writing, furnish or cause
to be furnished to the Administrative Agent in sufficient copies for each
Lender, the following:
(i) as soon as possible and in any event within ten days after the
occurrence of each Event of Default or Unmatured Default with respect to
such Borrower continuing on the date of such statement, a statement of the
Chief Financial Officer, Treasurer or Assistant Treasurer of such Borrower
setting forth details of such Event of Default or Unmatured Default and the
action which such Borrower proposes to take with respect thereto;
(ii) (A) as soon as available and in any event within fifty (50) days
after the end of each of the first three Fiscal Quarters of each Fiscal
Year of such Borrower:
(1) a copy of such Borrower's Quarterly Report on Form 10-Q
submitted to the Securities and Exchange Commission with respect to
such quarter, or, if such Borrower ceases to be required to submit
such report, a consolidated balance sheet of such Borrower as of the
end of such Fiscal Quarter and consolidated statements of income and
retained earnings and of cash flows of such Borrower for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such Fiscal Quarter, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the Chief
Financial Officer, Treasurer, Assistant Treasurer or Comptroller of
such Borrower as having been prepared in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in
Sections 6.01(f), and
(2) with respect to NU, an unconsolidated balance sheet of NU as
of the end of such Fiscal Quarter and unconsolidated statements of
income and retained earnings and of cash flows of NU for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such Fiscal Quarter, all in reasonable detail and accompanied
by a certificate of a duly authorized officer of NU stating that such
financial statements were prepared in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of financial statements referred to in Section 6.01(f) and
(g) hereof; and
(B) concurrently therewith, a certificate of the Chief Financial
Officer, Treasurer, Assistant Treasurer or Comptroller of such Borrower:
(1) stating that no Event of Default or Unmatured Default with
respect to such Borrower has occurred and is continuing or, if an
Event of Default or Unmatured Default with respect to such Borrower
has occurred and is continuing, describing the nature thereof and the
action which such Borrower proposes to take with respect thereto, and
(2) demonstrating such Borrower's compliance with
Sections 7.03(a) and 7.03(b) hereof, and with respect to NU only
demonstrating compliance with Section 7.02(d) hereof and 7.03(c)
hereof, for and as of the end of such Fiscal Quarter, in each case
such demonstrations to be satisfactory (in form) to the Administrative
Agent and to set forth in reasonable detail the computations used in
determining such compliance;
(iii) (A) as soon as available and in any event within 105 days
after the end of each Fiscal Year of such Borrower:
(1) a copy of such Borrower's report on Form 10-K submitted to
the Securities and Exchange Commission with respect to such Fiscal
Year, or, if such Borrower ceases to be required to submit such
report, a copy of the annual audit report for such year for such
Borrower including therein a consolidated balance sheet of such
Borrower as of the end of such Fiscal Year and consolidated statements
of income and retained earnings and of cash flows of such Borrower for
such Fiscal Year, all in reasonable detail and certified by a
nationally-recognized independent public accountant, and
(2) in the case of NU, as soon as available and in any event
within 135 days after the end of each Fiscal Year of NU, a copy of
NU's Form U5S submitted to the Securities and Exchange Commission (or
any successor form and in any event containing unconsolidated
financial statements comparable to those referred to in
Section 6.01(g) hereof) with respect to such year, accompanied by a
certificate of a duly authorized officer of NU stating that such
financial statements were prepared in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of financial statements referred to in Section 6.01(f) and
(g) hereof; and
(B) concurrently with the delivery of the financial statements
described in the foregoing clause (A)(1), a certificate of the Chief
Financial Officer, Treasurer, Assistant Treasurer or Comptroller of such
Borrower:
(1) to the effect that such financial statements were prepared
in accordance with generally accepted accounting principles consistent
with those applied in the preparation of the financial statements
referred to in Sections 6.01(f), and
(2) stating that no Event of Default or Unmatured Default with
respect to such Borrower has occurred and is continuing, or if an
Event of Default or Unmatured Default with respect to such Borrower
has occurred and is continuing, describing the nature thereof and the
action which such Borrower proposes to take with respect thereto, and
(3) demonstrating such Borrower's compliance with
Sections 7.03(a) and 7.03(b) hereof, and with respect to NU only
demonstrating compliance with Section 7.02(d) hereof and Section
7.03(c) hereof, for and as of the end of such Fiscal Year, in each
case such demonstrations to be satisfactory (in form) to the
Administrative Agent and to set forth in reasonable detail the
computations used in determining such compliance;
(iv) as soon as possible and in any event (A) within 30 days after the
Chief Financial Officer, Treasurer or any Assistant Treasurer of such
Borrower knows or has reason to know that any ERISA Plan Termination Event
described in clause (i) of the definition of ERISA Plan Termination Event
with respect to any ERISA Plan or ERISA Multiemployer Plan has occurred and
(B) within 10 days after such Borrower knows or has reason to know that any
other ERISA Plan Termination Event with respect to any ERISA Plan or ERISA
Multiemployer Plan has occurred, a statement of the Chief Financial
Officer, Treasurer or Assistant Treasurer of such Borrower describing such
ERISA Plan Termination Event and the action, if any, which such Borrower
proposes to take with respect thereto;
(v) promptly after receipt thereof by such Borrower or any of its
ERISA Affiliates from the PBGC, copies of each notice received by such
Borrower or any such ERISA Affiliate of the PBGC's intention to terminate
any ERISA Plan or ERISA Multiemployer Plan or to have a trustee appointed
to administer any ERISA Plan or ERISA Multiemployer Plan;
(vi) promptly after receipt thereof by such Borrower or any of its
ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of each
notice received by such Borrower or any of its ERISA Affiliates concerning
the imposition or amount of withdrawal liability in an aggregate principal
amount of at least $10,000,000 pursuant to Section 4202 of ERISA in respect
of which such Borrower may be liable;
(vii) promptly after such Borrower or any Subsidiary becomes aware
of the commencement thereof, notice of all actions, suits, proceedings or
other events of the type described in Section 6.01(h) hereof (including,
without limitation, any action or proceeding relating to any environmental
protection laws or regulations);
(viii) promptly after the filing thereof, copies of each prospectus
(excluding any prospectus contained in any Form S-8) and Current Report on
Form 8-K, if any, which such Borrower or any Principal Subsidiary files
with, the Securities and Exchange Commission or any governmental authority
which may be substituted therefor;
(ix) promptly after any change in the SEC Borrowing Limit of such
Borrower, notice of the new SEC Borrowing Limit applicable to such
Borrower; and
(x) promptly after requested, such other information respecting the
financial condition, operations, properties, prospects or otherwise, of
such Borrower or its Subsidiaries as the Administrative Agent or the
Majority Lenders through the Administrative Agent may from time to time
reasonably request in writing.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. The following events shall each
constitute an "Event of Default" with respect to a Borrower, if the same shall
occur and be continuing after the grace period and notice requirement (if any)
applicable thereto:
(a) Such Borrower shall fail to pay any principal of any Note when
due or shall fail to pay any interest thereon or fees within two days after
the same becomes due; or
(b) Any representation or warranty made by such Borrower (or any of
its officers or agents) in this Agreement, any certificate or other writing
delivered pursuant hereto or thereto shall prove to have been incorrect in
any material respect when made or deemed made; or
(c) Such Borrower shall fail to perform or observe any term or
covenant on its part to be performed or observed contained in
Sections 7.01(d), Section 7.02 (b), (c), (d), (e) or (f), Section 7.03(a)
or (b) or Section 7.04(i) hereof; or
(d) Such Borrower shall fail to perform or observe any other term or
covenant on its part to be performed or observed contained in this
Agreement and any such failure shall remain unremedied for a period of 30
days after the earlier of (i) written notice of such failure having been
given to such Borrower by the Administrative Agent or (ii) such Borrower
having obtained actual knowledge of such failure; or
(e) Such Borrower or any Principal Subsidiary of such Borrower shall
fail to pay any of its Debt when due (including any interest or premium
thereon but excluding Debt evidenced by its respective Notes and excluding
other Debt aggregating in no event more than $10,000,000 in principal
amount at any one time) whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise, and such failure shall continue after
the applicable grace period, if any, specified in any agreement or
instrument relating to such Debt; or any other default under any agreement
or instrument relating to any such Debt, or any other event, shall occur
and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment or as a
result of such Borrower's or such Principal Subsidiary's exercise of a
prepayment option) prior to the stated maturity thereof; or
(f) Such Borrower or any Principal Subsidiary of such Borrower shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make an
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against such Borrower or such Principal Subsidiary seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of its debts under any law relating to bankruptcy, insolvency,
or reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the
case of a proceeding instituted against such Borrower or such Principal
Subsidiary either such Borrower or such Principal Subsidiary shall consent
thereto or such proceeding shall remain undismissed or unstayed for a
period of 90 days or any of the actions sought in such proceeding
(including without limitation the entry of an order for relief against such
Borrower or such Principal Subsidiary or the appointment of a receiver,
trustee, custodian or other similar official for such Borrower or such
Principal Subsidiary or any of its property) shall occur; or such Borrower
or such Principal Subsidiary shall take any corporate or other action to
authorize any of the actions set forth above in this subsection (f); or
(g) Any judgments or orders for the payment of money in excess of
$10,000,000 (or aggregating more than $10,000,000 at any one time) shall be
rendered against such Borrower or its properties, or any Principal
Subsidiary of such Borrower or its properties, and either (A) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order and shall not have been stayed or (B) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(h) NU shall cease to beneficially own free and clear of any Liens
100% of all outstanding shares of capital stock having ordinary voting
power for the election of directors of any of its Principal Subsidiaries;
or
(i) Any material provision of any Loan Document of such Borrower
shall at any time for any reason cease to be valid and binding on such
Borrower, or shall be determined to be invalid or unenforceable by any
court, governmental agency or authority having jurisdiction over such
Borrower, or such Borrower shall deny that it has any further liability or
obligation under any Loan Document; or
(j) (A) Any Person or "group" (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended) shall either
(1) acquire beneficial ownership of more than 50% of any outstanding class
of common stock of NU having ordinary voting power in the election of
directors of NU or (1) obtain the power (whether or not exercised) to elect
a majority of NU's directors or (B) the board of directors of NU shall not
consist of a majority of Continuing Directors; or
(k) With respect to NU only, the Operating Companies (in any
combination) shall not have had, as of the end of any Fiscal Quarter,
Aggregate Dividend Paying Availability at least equal to the aggregate
principal amount of Advances outstanding to NU plus the aggregate principal
amount of "advances" outstanding to NU under the Surviving Credit
Facilities as of the end of such Fiscal Quarter, and such deficiency shall
not have been remedied within 75 days following the end of such Fiscal
Quarter (if such Fiscal Quarter is one of the first three Fiscal Quarters
of the Fiscal Year), or within 90 days following the end of such Fiscal
Quarter (if such Fiscal Quarter is the last Fiscal Quarter of the Fiscal
Year) whether by prepayment of Advances under this Agreement or "advances"
under the Surviving Credit Facilities by NU or by an increase in Aggregate
Dividend Paying Availability (as evidenced by such certificates and
interim balance sheets as the Administrative Agent may reasonably require);
or
(l) With respect to NU only, any Event of Default shall have occurred
and be continuing with respect to any other Borrower; or
(m) With respect to CL&P and WMECO only, any Collateral FMB of such
Borrower shall for any reason (i) cease to be entitled to the benefits and
security of the First Mortgage Indenture of such Borrower equally and
ratably with all other First Mortgage Bonds outstanding under such First
Mortgage Indenture, or (ii) cease to be a legal, valid and binding
obligation of such Borrower; or
(n) With respect to CL&P and WMECO only, such Borrower's First
Mortgage Indenture shall for any reason fail to constitute a direct and
valid first mortgage lien, subject only to liens permitted by such
Borrower's First Mortgage Indenture, including liens and encumbrances
existing at the time of acquisition by such Borrower, upon the interests of
such Borrower in the electric properties and franchises now owned by such
Borrower and located in Connecticut, Massachusetts, New Hampshire and
Vermont, and fail to constitute a similar lien, subject only to such
permitted liens and subject to the Bankruptcy Laws, at the time of
acquisition on all properties and assets of such Borrower acquired after
May 30, 1997 located within the State of Connecticut and required by such
Borrower's First Mortgage Indenture to be subjected to the lien thereof,
other than properties and assets of the character excluded, excepted or
released from the lien thereof.
SECTION 8.02. Remedies Upon Events of Default. Upon the occurrence and
during the continuance of any Event of Default with respect to a Borrower (or,
with respect to any Borrower, an Event of Default under subsection (h) or (j) of
Section 8.01), then, and in any such event, the Administrative Agent shall at
the request, or may with the consent, of the Lenders entitled to make such
request, upon notice to such Borrower (i) declare the obligation of each Lender
to make Advances to such Borrower to be terminated, whereupon such obligation of
each Lender shall forthwith terminate, provided, that any such request or
consent pursuant to this clause (i) shall be made solely by Lenders having
Percentages in the aggregate of not less 66-2/3%; (ii) declare the Notes of
such Borrower, all interest thereon and all other amounts payable by such
Borrower under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon such Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by each
Borrower and; (iii) subject to the limitations set forth in Section 3.01(e) of
the Collateral Agency Agreement, exercise in respect of any and all Collateral,
in addition to the other rights and remedies provided for herein and in the
other Loan Documents or otherwise available to the Administrative Agent, the
Collateral Agent or the Lenders, all the rights and remedies of a secured party
on default under the Uniform Commercial Code in effect in the State of New York
and in effect in any other jurisdiction in which Collateral is located at that
time, provided, that any such request or consent pursuant to this clause (ii)
shall be made solely by the Lenders holding at least 66-2/3% of the then
aggregate unpaid principal amount of the Advances owing to such Borrower; and
provided further, however, that in the event of an actual or deemed entry of an
order for relief with respect to a Borrower under the Federal Bankruptcy Code,
(A) the obligation of each Lender to make Advances to such Borrower shall
automatically be terminated and (B) the Notes of such Borrower, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by each Borrower.
ARTICLE IX
THE AGENTS
SECTION 9.01. Authorization and Action. (a) Each Lender hereby appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or collection
thereof), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Lenders, and such instructions shall be
binding upon all Lenders; provided, however, that the Administrative Agent shall
not be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or applicable law.
The Administrative Agent agrees to deliver promptly to each Lender notice of
each notice given to it by a Borrower pursuant to the terms of this Agreement.
(b) Each Lender and the Borrowers hereby agree that the Co-Agents in their
respective capacities as such shall have no duties or obligations under the Loan
Documents.
SECTION 9.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with any Loan Document, except for its or their own gross
negligence or wilful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts a Lender
Assignment entered into by the Lender which is the payee of such Note, as
assignor, and an assignee, as provided in Section 10.07; (ii) may consult with
legal counsel (including counsel for the Borrower(s)), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for the
Information Memorandum or any other statements, warranties or representations
made in or in connection with any Loan Document; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any Loan Document on the part of any Borrower to be
performed or observed, or to inspect any property (including the books and
records) of any Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of any Loan Document or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, cable or telex) believed by it to be genuine
and signed or sent by the proper party or parties.
SECTION 9.03. Citibank and Affiliates. With respect to its Commitment and
the Note issued to it, Citibank shall have the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as though it were
not the Administrative Agent and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Citibank in its individual capacity.
Citibank and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of business with,
any Borrower, any of their respective subsidiaries and any Person who may do
business with or own securities of any Borrower or any such subsidiary, all as
if Citibank were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agents or any other Lender and
based on the Information Memorandum and other financial information referred to
in Sections 6.01(f) and (g) and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement.
SECTION 9.05. Indemnification. The Lenders agree to indemnify each of the
Agents (to the extent not reimbursed by the Borrowers), ratably according to the
respective principal amounts of the Notes then held by each of them (or if no
Notes are at the time outstanding, ratably according to the respective
Commitments of the Lenders; if any Notes or Commitments are held by any Borrower
or Affiliates thereof, any ratable apportionment hereunder shall exclude the
principal amount of the Notes held by such Borrower(s) or Affiliates or their
respective Commitments (if any) hereunder), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against any of the Agents in their
capacities as such in any way relating to or arising out of any Loan Document or
any action taken or omitted by the Agents in their capacities as such under any
Loan Document, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from any Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Administrative Agent promptly upon demand for such Lender's
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, the Loan Documents to the extent
that the Administrative Agent is entitled to reimbursement for such expenses
pursuant to Section 10.04 but is not reimbursed for such expenses by the
Borrowers.
SECTION 9.06. Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrowers, with any such resignation to become effective only upon the
appointment of a successor Administrative Agent pursuant to this Section 9.06.
Upon any such resignation, the Majority Lenders shall have the right to appoint
a successor Administrative Agent, which shall be a Lender or another commercial
bank or trust company reasonably acceptable to the Borrowers organized or
licensed under the laws of the United States, or of any State thereof. If no
successor Administrative Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be Lender or shall be another commercial bank
or trust company organized or licensed under the laws of the United States or of
any State thereof reasonably acceptable to the Borrowers. In addition to the
foregoing right of the Administrative Agent to resign, the Majority Lenders may
remove the Administrative Agent at any time, with or without cause, concurrently
with the appointment by the Majority Lenders of a successor Administrative
Agent. Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent and the execution and delivery by the
Borrowers and the successor Administrative Agent of an agreement relating to the
fees to be paid to the successor Administrative Agent under Section 2.02(c)
hereof in connection with its acting as Administrative Agent hereunder, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article IX shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under the Loan Documents. It is
understood that in the event the Administrative Agent shall resign, or be
removed by the Majority Lenders, as provided in this paragraph, the
Administrative Agent shall resign, or be removed, as the case may be, in its
capacity as both administrative agent and collateral agent under the Loan
Documents and the successor Administrative Agent shall be the successor
Administrative Agent and the successor Collateral Agent under the Loan
Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any provision of
any Loan Document, nor consent to any departure by any Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Majority Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive, modify or
eliminate any of the conditions specified in Article V, (b) increase the
Commitment of any Lender hereunder or increase the Commitments of the Lenders
that may be maintained hereunder or increase any Borrower Sublimit or subject
the Lenders to any additional obligations, (c) reduce the principal of, or
interest on, the Notes, any Applicable Margin or any fees or other amounts
payable hereunder (other than fees payable to the Agents pursuant to
Section 2.02(c) hereof), (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
under the Loan Documents (other than fees payable to the Agents pursuant to
Section 2.02(c) hereof), (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Lenders which
shall be required for the Lenders or any of them to take any action under the
Loan Documents, (f) amend any Loan Document in a manner intended to prefer one
or more Lenders over any other Lenders, or (g) amend this Section 10.01, or (h)
release all or a material portion of the Collateral other than in accordance
with the terms of the Loan Documents or the First Mortgage Indentures; and
provided, further, that no amendment, waiver or consent shall, unless in writing
and signed by the Administrative Agent in addition to the Lenders required above
to take such action, affect the rights or duties of the Administrative Agent
under any Loan Document. Notwithstanding anything to the contrary contained in
the immediately preceding sentence, the effectiveness of any such amendment,
waiver or consent which would result in any increase in any Commitment or
Borrower Sublimit or any extension of any Commitment shall be subject to the
delivery by the Borrowers of evidence satisfactory to the Lenders that any
Governmental Approvals referred to in clause (i) of the definition of
"Governmental Approvals" required in connection with such increase have been
obtained or made prior to the effectiveness of such amendment, waiver or
consent.
SECTION 10.02. Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for under the Loan
Documents shall be in writing (including telecopy or telex communication) and
mailed, telecopied or hand delivered:
(i) if to any Borrower, to it in care of NUSCO at 107 Selden Street,
Berlin, Connecticut 06037, Attention: Assistant Treasurer, telecopier
number: (860) 665-5457, confirm number: (860) 665-5601;
(ii) if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule I hereto;
(iii) if to any Lender other than a Bank, at its Domestic Lending Office
specified in the Lender Assignment pursuant to which it became a
Lender; and
(iv) if to the Administrative Agent, at its address at 1 Court Square, 7th
Floor/Zone 1, Long Island City, New York, NY 11120, Attention: Bank
Loan Services, telecopier number: (718) 248-4483, fax number: (718)
248-4844, with a copy to Citibank, N.A., Global Power Group, 399 Park
Avenue, 4th Floor, New York, New York 10043, Attention Paul T.
Addison, Managing Director, telecopier number: (212) 793-6130,
confirm number: (212) 559-1509.
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed, telecopied, telexed or hand delivered, be effective five
days after when deposited in the mails, or when telecopied, or when confirmed by
telex answerback, or when delivered, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III, IV or IX
shall not be effective until received by the Administrative Agent. With respect
to any telephone notice given or received by the Administrative Agent pursuant
to Section 3.03 hereof, the records of the Administrative Agent shall be
conclusive for all purposes.
SECTION 10.03. No Waiver of Remedies. No failure on the part of any Lender
to exercise, and no delay in exercising, any right under any Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification. (a) The Borrowers
agree to pay when due, in accordance with the terms hereof: (i) all costs and
expenses of the Administrative Agent in connection with the preparation,
negotiation, execution and delivery of the Loan Documents, the administration of
the Loan Documents, and any proposed modification, amendment, or consent
relating thereto (including, in each case, the reasonable fees and expenses of
counsel to the Administrative Agent) and the care and custody of, or the sale
of, collection from, or other realization upon, any and all Collateral; and
(ii) all costs and expenses of the Administrative Agent and each Lender
(including all fees and expenses of counsel) in connection with the enforcement,
whether through negotiations, legal proceedings or otherwise, of the Loan
Documents.
(b) The Borrowers hereby agree to indemnify and hold the Agents and each
Lender and its officers, directors, employees, professional advisors and
affiliates (each, an "Indemnified Person") harmless from and against any and all
claims, damages, losses, liabilities, costs or expenses (including reasonable
attorney's fees and expenses, whether or not such Indemnified Person is named as
a party to any proceeding or investigation or is otherwise subjected to judicial
or legal process arising from any such proceeding or investigation) which any of
them may incur or which may be claimed against any of them by any person or
entity (except to the extent such claims, damages, losses, liabilities, costs or
expenses arise from the gross negligence or willful misconduct of the
Indemnified Person):
(i) by reason of or in connection with the execution, delivery or
performance of the Loan Documents or any transaction contemplated thereby,
or the use by any Borrower of the proceeds of any Advance;
(ii) in connection with or resulting from the utilization, storage,
disposal, treatment, generation, transportation, release or ownership of
any Hazardous Substance (1) at, upon or under any property of the Borrowers
or any of their respective Affiliates or (2) by or on behalf of the
Borrowers or any of their respective Affiliates at any time and in any
place; or
(iii) in connection with any documentary taxes, assessments or
charges made by any governmental authority by reason of the execution and
delivery of the Loan Documents.
(c) The Borrowers' obligations under this Section 10.04 shall survive the
assignment by any Lender pursuant to Section 10.07 hereof and shall survive as
well the repayment of all amounts owing to the Lenders under the Loan Documents
and the termination of the Commitments. If and to the extent that the
obligations of the Borrowers under this Section 10.04 are unenforceable for any
reason, the Borrowers agree to make the maximum contribution to the payment and
satisfaction thereof which is permissible under applicable law.
(d) The Borrowers' obligations under this Section 10.04 are in addition to
and shall not be deemed to supersede their indemnification and similar
obligations set forth in that certain Commitment Letter dated as of September
16, 1996 among the Borrowers, Citibank, Citicorp Securities, Inc., Toronto
Dominion Securities (USA) Inc., The Toronto-Dominion Bank and Fleet National
Bank.
SECTION 10.05. Right of Set-off. (a) Upon (i) the occurrence and during
the continuance of any Event of Default with respect to any Borrower, and
(ii) the making of the request or the granting of the consent specified by
Section 8.02 to authorize the Administrative Agent to declare the Notes due and
payable pursuant to the provisions of Section 8.02, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of such Borrower
against any and all of the obligations of such Borrower now or hereafter
existing under the Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under the Loan Documents or such
Notes and although such obligations may be unmatured. Each Lender agrees
promptly to notify such Borrower after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Lender may have.
(b) Each Borrower agrees that it shall have no right of off-set, deduction
or counterclaim in respect of its obligations under the Loan Documents, and that
the obligations of the Lenders hereunder are several and not joint. Nothing
contained herein shall constitute a relinquishment or waiver of such Borrower's
rights to any independent claim that such Borrower may have against the
Administrative Agent or any Lender, but no Lender shall be liable for the
conduct of the Administrative Agent or any other Lender, and the Administrative
Agent shall not be liable for the conduct of any Lender.
SECTION 10.06. Binding Effect. This Agreement shall become effective when
it shall have been executed by each Borrower, the Administrative Agent and when
the Administrative Agent shall have been notified by each Bank that such Bank
has executed it and thereafter shall be binding upon and inure to the benefit of
the Borrowers, the Administrative Agent and each Lender and their respective
successors and assigns, except that the Borrowers shall not have the right to
assign its rights under the Loan Documents or any interest herein without the
prior written consent of the Lenders.
SECTION 10.07. Assignments and Participation. (a) Each Lender may assign
to one or more banks or other entities all or a portion of its rights and
obligations under the Loan Documents, including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it (with the prior written consent of the Borrowers if the assignee
thereunder is not then a Lender or an Affiliate of a Lender, which consent shall
not be unreasonably withheld); provided, however, that (i) each such assignment
shall be of a constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations under the Loan Documents, (ii) if the assignee
thereunder is not then a Lender or an Affiliate of a Lender, the amount of the
Commitment, Advance or Note being assigned pursuant to each such assignment
shall in no event be less than the lesser of the amount of the assigning
Lender's Commitment and $10,000,000, and (iii) the parties to each such
assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an assignment and acceptance in substantially the
form of Exhibit 10.07 hereto (the "Lender Assignment"), together with any Note
or Notes subject to such assignment and a processing and recordation fee of
$3,000. Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Lender Assignment, which effective date
shall be at least five Business Days after the execution thereof, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to it pursuant to such
Lender Assignment, have the rights and obligations of a Lender under the Loan
Documents and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations under the Loan Documents have been assigned by it to an
assignee pursuant to such Lender Assignment, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of a Lender
Assignment covering all or the remaining portion of an assigning Lender's rights
and obligations under the Loan Documents, such Lender shall cease to be a party
hereto); provided, however, if an Event of Default shall have occurred and be
continuing a Lender may assign all or a portion of its rights and obligations
without the prior written consent of the Borrowers but otherwise in accordance
with this Section.
(b) By executing and delivering a Lender Assignment, the Lender assignor
thereunder and the assignee thereunder confirm to and agree with each other and
the other parties hereto as follows: (i) other than as provided in such Lender
Assignment, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Loan Documents or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Loan Documents or any other instrument or document furnished pursuant
thereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of the Loan Documents, together with copies of the financial statements
referred to in Section 6.01(f) and (g) and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Lender Assignment; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents; (v) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform
in accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in
Section 10.02 a copy of each Lender Assignment delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a Lender Assignment executed by an assigning
Lender and an assignee, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Lender Assignment has been
completed and is in substantially the form of Exhibit 10.07 hereto, (i) accept
such Lender Assignment, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrowers. Within five
Business Days after its receipt of such notice, each Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note or Notes to the order of such assignee
in an amount equal to the Commitment assumed by it pursuant to such Lender
Assignment and, if the assigning Lender has retained a Commitment hereunder, a
new Note or Notes to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes applicable to such Borrower, shall be dated the
effective date of such Lender Assignment and shall otherwise be in substantially
the form of Exhibit 1.01A or Exhibit 1.01B hereto, as the case may be.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under the Loan
Documents (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and the Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents, and (v) the holder of any such participation, other than an Affiliate
of such Lender, shall not be entitled to require such Lender to take or omit to
take any action under the Loan Documents, except action (A) reducing the
principal of, or interest on, the Notes, any Applicable Margin or any fees or
other amounts payable under the Loan Documents (other than fees payable pursuant
to Section 2.02(c) hereof), (B) postponing any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
under the Loan Documents (other than fees payable pursuant to Section 2.02(c)
hereof) or (C) causing or permitting the termination of any Collateral FMB or
releasing any Collateral other than in accordance with the terms of the Loan
Documents.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 10.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrowers furnished to such Lender by or on behalf of the
Borrowers; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree, in accordance with
the terms of Section 10.08, to preserve the confidentiality of any Confidential
Information received by it from such Lender.
(g) If any Lender shall have delivered a notice to the Administrative
Agent described in Section 4.03(a), (b), (c) or (f) hereof, or shall become a
non-performing Lender under Section 3.04(b) hereof, and if and so long as such
Lender shall not have withdrawn such notice or corrected such non-performance in
accordance with Section 3.04(b), the Borrowers or the Administrative Agent may
demand that such Lender assign in accordance with Section 10.07 hereof, to one
or more assignees designated by either the Borrowers or the Administrative Agent
(and reasonably acceptable to the other), all (but not less than all) of such
Lender's Commitment, Advances, participation and other rights and obligations
under the Loan Documents; provided that any such demand by the Borrowers during
the continuance of an Event of Default or an Unmatured Default shall be
ineffective without the consent of the Majority Lenders. If, within 30 days
following any such demand by the Administrative Agent or the Borrowers, any such
assignee so designated shall fail to tender such assignment on terms reasonably
satisfactory to the Lender, or the Borrowers and the Administrative Agent shall
have failed to designate any such assignee, then such demand by the Borrowers or
the Administrative Agent shall become ineffective, it being understood for
purposes of this provision that such assignment shall be conclusively deemed to
be on terms reasonably satisfactory to such Lender, and such Lender shall be
compelled to tender such assignment forthwith, if (i) such assignee (A) shall
agree to such assignment in substantially the form of the Lender Assignment and
(B) shall tender payment to such Lender in an amount equal to the full
outstanding dollar amount accrued in favor of such Lender hereunder (as computed
in accordance with the records of the Administrative Agent) and (ii) in the
event the Borrowers demanded such assignment, the Borrowers shall tender payment
to the Administrative Agent of the processing and recording fee specified in
Section 10.07(a) for such assignment.
(h) Anything in this Section 10.07 to the contrary notwithstanding, any
Lender may assign and pledge all or any portion of its Commitment and the
Advances owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
SECTION 10.08. Confidentiality. In connection with the negotiation and
administration of the Loan Documents, the Borrowers have furnished or caused to
have furnished and will from time to time furnish or cause to be furnished to
the Administrative Agent and the Lenders (each, a "Recipient") written
information which when delivered to the Recipient will be deemed to be
confidential (such information, other than any such information which (i) was
publicly available, or otherwise known to the Recipient, at the time of
disclosure, (ii) subsequently becomes publicly available other than through any
act or omission by the Recipient or (iii) otherwise subsequently becomes known
to the Recipient other than through a Person whom the Recipient knows to be
acting in violation of his or its obligations to the Borrowers, being
hereinafter referred to as "Confidential Information"). The Recipient will not
knowingly disclose any such Confidential Information to any third party (other
than to those persons who have a confidential relationship with the Recipient),
and will take all reasonable steps to restrict access to such information in a
manner designed to maintain the confidential nature of such information, in
each case until such time as the same ceases to be Confidential Information or
as the Borrowers may otherwise instruct. It is understood, however, that the
foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with prospective participants in or assignees of the
Recipient's position herein, but the Recipient's ability to so exchange
Confidential Information shall be conditioned upon any such prospective
participant's entering into an understanding as to confidentiality similar to
this provision. It is further understood that the foregoing will not prohibit
the disclosure of any or all Confidential Information if and to the extent that
such disclosure may be required (i) by a regulatory agency or otherwise in
connection with an examination of the Recipient's records by appropriate
authorities, (ii) pursuant to court order, subpoena or other legal process or
(iii) otherwise, as required by law; in the event of any required disclosure
under clause (ii) or (iii), above, the Recipient agrees to use reasonable
efforts to inform the Borrowers as promptly as practicable unless the Lender is
prohibited from doing so by court order, subpoena or other legal process.
SECTION 10.09. Waiver of Jury Trial. Each of the Borrowers, the Agents,
and the Lenders hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out of or relating to the Loan
Documents, or any other instrument or document delivered hereunder or
thereunder.
SECTION 10.10. Governing Law. The Loan Documents shall be governed by, and
construed in accordance with, the laws of the State of New York. Each of the
Borrowers, the Lenders and the Agents: (i) irrevocably submits to the
jurisdiction of any New York State Court or Federal court sitting in New York
City in any action arising out of or relating to the Loan Documents, (ii) agrees
that all claims in such action may be decided in such court, (iii) waives, to
the
fullest extent it may effectively do so, the defense of an inconvenient forum
and (iv) consents to the service of process by mail. A final judgment in any
such action shall be conclusive and may be enforced in other jurisdictions.
Nothing herein shall affect the right of any party to serve legal process in any
manner permitted by law or affect its right to bring any action in any other
court.
SECTION 10.11. Relation of the Parties; No Beneficiary. No term,
provision or requirement, whether express or implied, of any Loan Document, or
actions taken or to be taken by any party thereunder, shall be construed to
create a partnership, association, or joint venture between such parties or any
of them. No term or provision of any Loan Document shall be construed to confer
a benefit upon, or grant a right or privilege to, any Person other than the
parties hereto.
SECTION 10.12. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 10.13. Limitation of Liability. No shareholder or trustee of NU
shall be held to any liability whatever for the payment of any sum of money or
for damages or otherwise under any Loan Document of NU, and such Loan Documents
shall not be enforceable against any such trustee in their or his or her
individual capacities or capacity and such Loan Documents shall be enforceable
against the trustees of NU only as such, and every person, firm, association,
trust or corporation having any claim or demand arising under such Loan
Documents and relating to NU, its shareholders or trustees shall look solely to
the trust estate of NU for the payment or satisfaction thereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
NORTHEAST UTILITIES
By:
Name:
Title:
THE CONNECTICUT LIGHT AND
POWER COMPANY
By:
Name:
Title:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By:
Name:
Title:
<PAGE>
CITIBANK, N.A.,
as Administrative Agent
By:
Name:
Title:
<PAGE>
CIBC INC.,
as Co-Agent
By:
Name:
Title:
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Agent
By:
Name:
Title:
<PAGE>
The Banks:
Commitment: $60,000,000 CITIBANK, N.A.
By
Name:
Title:
<PAGE>
Commitment: $50,000,000 TORONTO DOMINION (NEW YORK), INC.
By
Name:
Title:
<PAGE>
Commitment: $50,000,000 FLEET NATIONAL BANK
By
Name:
Title:
<PAGE>
Commitment: $30,000,000 CIBC INC.
By
Name:
Title:
<PAGE>
Commitment: $30,000,000 THE FIRST NATIONAL BANK OF CHICAGO
By
Name:
Title:
<PAGE>
Commitment: $20,000,000 THE FIRST NATIONAL BANK OF BOSTON
By
Name:
Title:
<PAGE>
Commitment: $15,000,000 BARCLAYS BANK PLC
By
Name:
Title:
<PAGE>
Commitment: $15,000,000 MELLON BANK, N.A.
By
Name:
Title:
<PAGE>
Commitment: $15,000,000 UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By
Name:
Title:
By
Name:
Title:
<PAGE>
Commitment: $11,250,000 SWISS BANK CORPORATION
By
Name:
Title:
By
Name:
Title:
<PAGE>
Commitment: $10,000,000 THE YASUDA TRUST AND BANKING CO.,
LTD., NEW YORK BRANCH
By
Name:
Title:
<PAGE>
Commitment: $7,500,000 UNION BANK OF CALIFORNIA, N.A.
By
Name:
Title:
Total of Commitments: $313,750,000.00
<PAGE>
SCHEDULE I
APPLICABLE LENDING OFFICES
<TABLE>
<CAPTION>
Eurodollar
Name of Bank Domestic Lending Office Lending Office
<S> <C> <C>
Barclays Bank PLC 75 Wall Street, 11th Floor 75 Wall Street, 11th Floor
New York, NY 10265 New York, NY 10265
CIBC Inc. Two Paces West Two Paces West
2727 Paces Ferry Road 2727 Paces Ferry Road
Suite 1200 Suite 1200
Atlanta, GA 30339 Atlanta, GA 30339
Citibank, N.A. One Court Square One Court Square
7th Floor, Zone 2 7th Floor, Zone 2
Long Island City, NY 11120 Long Island City, NY 11120
The First National Bank of 100 Federal Street 100 Federal Street
Boston M/S-01-08-04 M/S-01-08-04
Boston, MA 02106 Boston, MA 02106
The First National Bank of One First National Plaza One First National Plaza
Chicago Chicago, IL 60670 Chicago, IL 60670
Fleet National Bank 1 Federal Street 1 Federal Street
Boston, MA 02211 Boston, MA 02211
Mellon Bank, N.A. Three Mellon Bank Center Three Mellon Bank Center
Pittsburgh, PA 15259-0003 Pittsburgh, PA 15259-0003
Swiss Bank Corporation 222 Broadway 222 Broadway
New York, NY 10008 New York, NY 10008
The Toronto-Dominion Bank 909 Fannin, Suite 1700 909 Fannin, Suite 1700
Houston, TX 77010 Houston, TX 77010
Union Bank of California, 445 South Figueroa Street 445 South Figueroa Street
N.A. 20th Floor 20th Floor
Los Angeles, CA 90071 Los Angeles, CA 90071
Union Bank of Switzerland 299 Park Avenue 299 Park Avenue
New York, NY 10017 New York, NY 10017
The Yasuda Trust & Banking 666 Fifth Avenue, Suite 801 666 Fifth Avenue, Suite 801
Company, Limited, New New York, NY 10103 New York, NY 10103
York Branch
</TABLE>
<PAGE>
<PAGE>
SCHEDULE II
PENDING ACTIONS
NONE
<PAGE>
SCHEDULE III
NU Holding Company Debt (Including NU Guarantees)
<TABLE>
<CAPTION>
As of May 29, 1997
------------------
<S> <C>
NU DEBT:
1 NU Parent
8.58% Amortizing Series A Note $158,000,000
8.38% Amortizing Series B Note 46,000,000
-----------
Subtotal $204,000,000
GUARANTEES:
1 Charter Oak Energy, Inc.
NU Guarantee for Ave Fenix Project $12,323,333
NU Guarantee for Tucuman Project 2,998,888
NU Guarantee for Costa Rica Project 48,500
-----------
Subtotal $15,370,721
2 Rocky River Realty Company
8.810% Amortizing Series A Note $11,460,313
8.820% Amortizing Series B Note 25,740,432
-----------
Subtotal $37,200,745
3 Other NU Subsidiary Companies
NU Guarantee for Surety and/or Performance Bonds $11,750,480
-----------
TOTAL NU HOLDING COMPANY DEBT $231,121,201
============
</TABLE>
<PAGE>
SCHEDULE IV
<TABLE>
<CAPTION>
SCHEDULE IV
Schedule of Surviving Credit Facilities
3-Year Total
Bank Facility Facility Advances
Surviving Credit Facilities As Of May 30, 1997
<S> <C> <C> <C> <C>
1. Chase Manhattan Bank, N.A. $22,500,000 $22,500,000 $0
2. Bank of America 11,250,000 $11,250,000 0
3. The Bank of Nova Scotia 11,250,000 $11,250,000 0
4. State Street Bank 11,250,000 $11,250,000 6,000,000
---------- ----------- ---------
Total Commitment of
Surviving Credit Facilities $56,250,000 $56,250,000 $6,000,000
=========== =========== ==========
</TABLE>
<PAGE>
EXHIBIT 1.01A
FORM OF COMPETITIVE NOTE
$[insert amount of Lender's Commitment] [New York, New York]
[Date]
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], [an
unincorporated voluntary business association organized under the laws of the
Commonwealth of Massachusetts]{1} [a corporation organized under the laws of
the State of Connecticut]{2} [a corporation organized under the laws of the
Commonwealth of Massachusetts]{3} (the "Borrower"), hereby promises to pay to
the order of [NAME OF LENDER] (the "Lender"), (i)on the last day of each
Interest Period, as defined in the Credit Agreement referred to below, the
aggregate unpaid principal amount of all Competitive Advances (as defined in
the Credit Agreement) made by the Lender to the Borrower pursuant to Section
3.03 of the Credit Agreement to which such Interest Period applies and (ii)on
the Termination Date (as defined in the Credit Agreement), the lesser of the
principal sum of $___________ [ ] and the aggregate unpaid principal
amount of all Competitive Advances made by the Lender to the Borrower pursuant
to Section 3.03 of the Credit Agreement, in lawful money of the United States
of America in immediately available funds, and to pay interest on such
principal amount from time to time outstanding, in like funds, at a rate or
rates per annum and payable with respect to such periods and on such dates as
determined pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and overdue interest from their due dates at a rate or rates
determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Competitive Note and all payments and
prepayments of the principal hereof and interest hereon and the respective
dates thereof shall be endorsed by the holder hereof on the schedule attached
hereto and made a part hereof, or on a continuation thereof which shall be
attached hereto and made a part hereof, or otherwise recorded by such holders
in its internal records; provided, however, that any failure of the holder
hereof to make such a notation or any error in such notation shall not in any
manner affect the obligation of the Borrower to make payments of principal and
interest in accordance with the terms of this Competitive Note and the Credit
Agreement.
This Competitive Note is one of the Competitive Notes referred to in
the Credit Agreement dated as of November , 1996 among the Borrower, [The
Connecticut Light and Power Company, Western Massachusetts Electric Company,
Northeast Utilities, as applicable], the Banks and Agents named therein and
Citibank, N.A., as Administrative Agent (as amended from time to time in
accordance with its terms, the "Credit Agreement") and is subject to the terms
and conditions contained in the Credit Agreement and is entitled to the
benefits thereof. The Credit Agreement, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
thereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. This
Competitive Note shall be construed in accordance with and governed by the laws
of the State of New York and any applicable laws of the United States of
America.
[No shareholder or trustee of the Borrower shall be held to any
liability whatever for the payment of any sum of money or for damages or
otherwise under this Competitive Note, and this Competitive Note shall not be
enforceable against any such trustee in their or his or her individual
capacities or capacity; this Competitive Note shall be enforceable against the
trustees of the Borrower only as such, and every, person, firm, association,
trust or corporation having any claim or demand arising under this Competitive
Note relating to the Borrower, its shareholders or trustees shall look solely
to the trust estate of the Borrower for payment or satisfaction thereof.]{4}
[NAME OF BORROWER]
By_________________________________
Title:
**FOOTNOTES**
{1} For NU.
{2} For CL&P.
{3} For WMECO.
{4} To be included in NU's Note only.
<PAGE>
GRID NOTE SCHEDULE
COMPANY NAME: [NAME OF BORROWER]
<TABLE>
<CAPTION>
_______________________________________________________________________________________________________________________
ISSUE
AMOUNT OF INTEREST INTEREST NUMBER INTEREST DATE AMOUNT NOTED
DATE PRINCIPAL RATE PERIOD OF DAYS DUE PAID PAID BY
<S> <C> <C> <C> <C> <C> <C> <C> <C>
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
</TABLE>
<PAGE>
EXHIBIT 1.01B
FORM OF CONTRACT NOTE
$[insert amount of Lender's [New York, New York]
Commitment] [Date]
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], [an
unincorporated voluntary business association organized under the laws of the
Commonwealth of Massachusetts]{1} [a corporation organized under the laws of
the State of Connecticut]{2} [a corporation organized under the laws of the
Commonwealth of Massachusetts]{3} (the "Borrower"), hereby promises to pay to
the order of [NAME OF LENDER] (the "Lender"), (i)on the last day of each
Interest Period, as defined in the Credit Agreement referred to below, the
aggregate unpaid principal amount of all Contract Advances (as defined in the
Credit Agreement) made by the Lender to the Borrower pursuant to Sections 3.01
and 3.02 of the Credit Agreement to which such Interest Period applies and
(ii)on the Termination Date (as defined in the Credit Agreement), the lesser
of the principal sum of $___________ [ ] and the aggregate unpaid
principal amount of all Contract Advances made by the Lender to the Borrower
pursuant to Sections 3.01 and 3.02 of the Credit Agreement, in lawful money of
the United States of America in immediately available funds, and to pay
interest on such principal amount from time to time outstanding, in like funds,
at a rate or rates per annum and payable with respect to such periods
and on such dates as determined pursuant to the Credit Agreement.
The Borrower promises to pay interest, on demand, on any overdue
principal and overdue interest from their due dates at a rate or rates
determined as set forth in the Credit Agreement.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
All borrowings evidenced by this Contract Note and all payments and
prepayments of the principal hereof and interest hereon and the respective
dates thereof shall be endorsed by the holder hereof on the schedule attached
hereto and made a part hereof, or on a continuation thereof which shall be
attached hereto and made a part hereof, or otherwise recorded by such holder in
its internal records; provided, however, that any failure of the holder hereof
to make such a notation or any error in such notation shall not in any manner
affect the obligation of the Borrower to make payments of principal and
interest in accordance with the terms of this Contract Note and the Credit
Agreement.
This Contract Note is one of the Contract Notes referred to in the
Credit Agreement dated as of November , 1996 among the Borrower, [The
Connecticut Light and Power Company, Western Massachusetts Electric Company,
Northeast Utilities, as applicable], the Banks and Agents named therein and
Citibank, N.A., as Administrative Agent (as amended from time to time
in accordance with its terms, the "Credit Agreement") and is subject to the
terms and conditions contained in the Credit Agreement and is entitled to the
benefits thereof. The Credit Agreement, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
thereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. This Contract
Note shall be construed in accordance with and governed by the laws of the
State of New York and any applicable laws of the United States of America.
[No shareholder or trustee of the Borrower shall be held to any
liability whatever for the payment of any sum of money or for damages or
otherwise under this Contract Note, and this Contract Note shall not be
enforceable against any such trustee in their or his or her individual
capacities or capacity; this Contract Note shall be enforceable against the
trustees of the Borrower only as such, and every, person, firm, association,
trust or corporation having any claim or demand arising under this Contract
Note relating to the Borrower, its shareholders or trustees shall look solely
to the trust estate of the Borrower for payment or satisfaction thereof.]{4}
[NAME OF BORROWER]
By________________________________
Title:
**FOOTNOTES**
{1} For NU.
{2} For CL&P.
{3} For WMECO.
{4} To be included in NU's Note only.
<PAGE>
GRID NOTE SCHEDULE
COMPANY NAME: [NAME OF BORROWER]
<TABLE>
<CAPTION>
________________________________________________________________________________________________________________________
DATE OF AMOUNT OF INTEREST INTEREST NUMBER INTEREST DATE AMOUNT NOTED
ADVANCE PRINCIPAL RATE PERIOD OF DAYS DUE PAID PAID BY
<S> <C> <C> <C> <C> <C> <C> <C> <C>
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
</TABLE>
<PAGE>
EXHIBIT 1.01C
[FORM OF BONDS OF 1997 SERIES A]
THIS BOND IS TRANSFERABLE ONLY AS PROVIDED HEREIN
No. R-1 $225,000,000
THE CONNECTICUT LIGHT AND POWER COMPANY
Incorporated under the Laws of the State of Connecticut
FIRST AND REFUNDING MORTGAGE BOND, 1997 Series A
PRINCIPAL DUE NOVEMBER 21, 1999
FOR VALUE RECEIVED, THE CONNECTICUT LIGHT AND POWER COMPANY, a
corporation organized and existing under the laws of the State of Connecticut
(hereinafter called the Company) hereby promises to pay to CITIBANK, N.A., or
registered assigns, in each case as Collateral Agent for the benefit of the
several Lenders (as such terms and all other capitalized terms used but not
otherwise defined herein are defined in the Credit Agreement referred to on the
reverse hereof), the principal sum of Two Hundred Twenty-Five Million Dollars
($225,000,000) or, if less, the aggregate Credit Borrowings (as herein defined)
outstanding on November 21, 1999 or any earlier date on or as of which the
obligations of the several Lenders to make Advances to the Company under the
Credit Agreement shall be terminated and all or any portion of the unpaid
principal of Advances shall become or be declared immediately due and payable.
Credit Borrowings means the aggregate unpaid principal amount of Advances to
the Company outstanding under the Credit Agreement plus the Facility Fee
Obligation (as said term is defined in the Supplemental Indenture establishing
the terms and conditions of bonds of this Series) together with accrued and
unpaid interest thereon then payable by the Company thereunder. The Company
further agrees to pay interest on said sum on the dates on which interest
payments are payable by the Company to the Lenders from time to time under the
Credit Agreement (each such date on which interest is so payable by the Company
to the Lenders under the Credit Agreement being an interest payment date
applicable to the bonds of 1997 Series A), until the Company's obligation in
respect of the principal hereof shall be discharged, in amounts equal to the
interest payments payable by the Company to the Lenders pursuant to the Credit
Agreement on such interest payment dates applicable to the bonds of 1997 Series
A; provided, however, that in no event shall the interest rate payable on the
1997 Series A Bonds exceed 11%. The bonds of 1997 Series A shall be
payable both as to principal and interest at the office or agency of the
Company in the Borough of Manhattan, New York, New York, in any coin or
currency of the United States of America which at the time of payment is legal
tender for the payment of public and private debts. The interest on
the bonds of 1997 Series A, whether in temporary or definitive form, shall be
payable without presentation of such bonds; and only to or upon the written
order of the registered holders thereof of record at the applicable record
date. If, pursuant to the Credit Agreement, the Company*s right to obtain
Advances thereunder shall be terminated and all or any portion of the principal
of the Credit Borrowings shall become or be declared immediately due and
payable by the Company, a like principal amount of the bonds of 1997 Series A,
together with all accrued interest thereon, shall without notice or demand of
any kind, become immediately due and payable. In addition, the bonds of 1997
Series A shall be repayable in whole or in part according to the terms and
provisions provided in Article 2 of the Supplemental Indenture establishing the
terms and conditions of bonds of this Series.
Subject to the provisions of the Credit Agreement anything in the
Mortgage, this Supplemental Indenture or any bond of 1997 Series A to the
contrary notwithstanding, the bonds of 1997 Series A shall be deemed paid, and
all obligations of the Company to pay at the times provided herein the
principal of, premium, if any, and interest on the bonds of 1997 Series A shall
be satisfied and discharged, when and to the extent that the Credit Borrowings
shall have been indefeasibly paid in full in accordance with the terms thereof
and the obligations of the several Lenders to make Advances to the Company
under the Credit Agreement shall have been terminated, it being understood that
the actual indebtedness evidenced by the 1997 Series A Bonds as of any time
shall be limited to the Credit Borrowings as determined at such time, that at
no time shall any claim be made for principal and interest on the 1997 Series A
Bonds in excess of the Credit Borrowings as determined at such time, and that,
to the extent that the outstanding principal amount of the 1997 Series A Bonds
exceeds such amount, neither the Lenders nor the Agent shall have any right
under, or right to exercise any right granted to the holders of such excess
1997 Series A Bonds under, the Mortgage. Unless the Trustee shall have
received written notice to the contrary from the Company or the Collateral
Agent, the Trustee shall be entitled to assume that the Company has made all
payments required under the Credit Agreement.
Each installment of interest hereon (other than overdue interest) shall
be payable to the person who shall be the registered owner of this bond at the
close of business on the record date, which shall be the day next preceding
such interest payment date, or if such day shall not be a Business Day (as
defined on the reverse hereof), the next preceding day which is a Business Day.
Reference is hereby made to the further provisions of this Bond set
forth on the reverse hereof, including without limitation provisions in regard
to the call and redemption and the registration of transfer and exchangeability
of this bond, and such further provisions shall for all purposes have the same
effect as though fully set forth in this place.
This bond shall not become or be valid or obligatory until the
certificate of authentication hereon shall have been signed by Bankers Trust
Company (hereinafter with its successors as defined in the Mortgage (as defined
on the reverse hereof), generally called the Trustee), or by such a successor.
IN WITNESS WHEREOF, The Connecticut Light and Power Company has caused
this bond to be executed in its corporate name and on its behalf by its
President by his signature or a facsimile thereof, and its corporate seal to be
affixed or imprinted hereon and attested by the manual or facsimile signature
of its Secretary.
Dated as of ____________ __, 1997.
THE CONNECTICUT LIGHT AND POWER COMPANY
By
Name:
Title: President
Attest:
Name:
Title: Secretary
Bankers Trust Company hereby certifies that this bond is one of the
bonds described in the within mentioned Mortgage.
BANKERS TRUST COMPANY, TRUSTEE
By
Name:
Title: Authorized Officer
<PAGE>
[FORM OF BOND]
[REVERSE]
THE CONNECTICUT LIGHT AND POWER COMPANY
FIRST AND REFUNDING MORTGAGE BOND, 1997 Series A
This bond is one of an issue of bonds of the Company, of an unlimited
authorized amount of coupon bonds or registered bonds without coupons, or both,
known as its First and Refunding Mortgage Bonds, all issued or to be issued in
one or more series, and is one of a series of said bonds limited in principal
amount to Two Hundred Twenty-Five Million Dollars ($225,000,000), consisting
only of registered bonds without coupons and designated "First and Refunding
Mortgage Bonds, 1997 Series A," all of which bonds are issued or are to be
issued under, and equally and ratably secured by, a certain Indenture of
Mortgage and Deed of Trust dated as of May 1, 1921, and by sixty-six
Supplemental Indentures dated respectively as of May 1, 1921, February 1, 1924,
July 1, 1926, June 20, 1928, June 1, 1932, July 1, 1932, July 1, 1935,
September 1, 1936, October 20, 1936, December 1, 1936, December 1, 1938, August
31, 1944, September 1, 1944, May 1, 1945, October 1, 1945, November 1, 1949,
December 1, 1952, December 1, 1955, January 1, 1958, February 1, 1960, April 1,
1961, September 1, 1963, April 1, 1967, May 1, 1967, January 1, 1968,
October 1, 1968, December 1, 1969, January 1, 1970, October 1, 1970, December
1, 1971, August 1, 1972, April 1, 1973, March 1, 1974, February 1, 1975,
September 1, 1975, May 1, 1977, March 1, 1978, September 1, 1980, October 1,
1981, June 30, 1982, October 1, 1982, July 1, 1983, January 1, 1984, October 1,
1985, September 1, 1986, April 1, 1987, October 1, 1987, November 1,
1987, April 1, 1988, November 1, 1988, June 1, 1989, September 1, 1989,
December 1, 1989, April 1, 1992, July 1, 1992, October 1, 1992, July 1, 1993,
July 1, 1993, December 1, 1993, February 1, 1994, February 1, 1994, June 1,
1994, October 1, 1994, June 1, 1996, January 1, 1997 and May 1, 1997 (said
Indenture of Mortgage and Deed of Trust and Supplemental Indentures being
collectively referred to herein as the "Mortgage"), all executed by the Company
to Bankers Trust Company, as Trustee, all as provided in the Mortgage to which
reference is made for a statement of the property mortgaged and pledged, the
nature and extent of the security, the rights of the holders of the bonds in
respect thereof and the terms and conditions upon which the bonds may be issued
and are secured; but neither the foregoing reference to the Mortgage nor any
provision of this bond or of the Mortgage (other than the last sentence of the
next paragraph and Section 1.03 of the Supplemental Indenture establishing the
terms and conditions of the bonds of this Series) shall affect or impair the
obligation of the Company, which is absolute, unconditional and unalterable, to
pay at the maturities herein provided the principal of and interest on this
bond as herein provided. The principal of this bond may be declared or may
become due on the conditions, in the manner and at the time set forth in the
Mortgage, upon the happening of an event of default as in the Mortgage
provided.
This bond, together with all other bonds of this series, if any, is
issued to evidence and secure the Company's obligations pursuant to a Credit
Agreement dated as of November 21, 1996 (the "Original Agreement") among
Northeast Utilities ("NU"), the Company and Western Massachusetts Electric
Company ("WMECO"), the Lenders and Co-Agents named therein (collectively, the
"Lenders") and Citibank, N.A. as administrative agent, as amended and restated
by a First Amendment and Waiver dated as of May 30, 1997 (the Original
Agreement, as so amended, herein called the "Credit Agreement"), it being
understood that the actual indebtedness evidenced by the 1997 Series A Bonds as
of any time shall be limited to the Credit Borrowings as determined at such
time, that at no time shall any claim be made for principal and interest on the
1997 Series A Bonds in excess of the Credit Borrowings as determined at such
time, and that, to the extent that the outstanding principal amount of the 1997
Series A Bonds exceeds such amount, neither the Lenders nor the Agent shall
have any right under, or right to exercise any right granted to the holders of
such excess 1997 Series A Bonds under, the Mortgage.
The bonds of 1997 Series A shall be issued to and registered in the
name of CITIBANK, N.A., as Collateral Agent for the benefit of the several
Lenders and, anything in the Mortgage, this Supplemental Indenture or any bond
of 1997 Series A to the contrary notwithstanding, the bonds of 1997 Series A
shall not be sold, assigned, pledged or transferred, except to effect the
transfer to any successor Collateral Agent under the Credit Agreement. Prior
to due presentment for registration of transfer of this bond the Company and
the Trustee may deem and treat the registered owner hereof as the absolute
owner hereof, whether or not this bond be overdue, for the purpose of
receiving payment and for all other purposes, and neither the Company nor the
Trustee shall be affected by any notice to the contrary.
This bond is exchangeable at the option of the registered holder hereof
upon surrender hereof, at the office or agency of the Company in the Borough of
Manhattan, New York, New York, for an equal principal amount of bonds of this
series of other authorized denominations, in the manner and on the terms
provided in the Mortgage.
In the event that the Credit Agreement is terminated and all Credit
Borrowings shall have been paid in full, all of the then outstanding 1997
Series A Bonds shall be deemed paid and all obligations of the Company
thereunder and hereunder shall be deemed satisfied and discharged. Except as
provided in the Supplemental Indenture establishing the terms and conditions of
bonds of this Series, the 1997 Series A Bonds shall not be redeemable.
The Mortgage provides that the Company and the Trustee, with consent of
the holders of not less than 66 2/3% in aggregate principal amount of the bonds
at the time outstanding which would be affected by the action proposed to be
taken, may by supplemental indenture add any provisions to or change or
eliminate any of the provisions of the Mortgage or modify the rights of
the holders of the bonds and coupons issued thereunder; provided, however, that
without the consent of the holder hereof no such supplemental indenture shall
affect the terms of payment of the principal of or interest or premium on this
bond, or reduce the aforesaid percentage of the bonds the holders of which are
required to consent to such a supplemental indenture, or permit the creation by
the Company of any mortgage or pledge or lien in the nature thereof ranking
prior to or equal with the lien of the Mortgage or deprive the holder hereof of
the lien of the Mortgage on any of the property which is subject to the lien
thereof.
As set forth in the Supplemental Indenture establishing the terms and
conditions of the bonds of this Series, each holder of this bond, solely by
virtue of its acquisition thereof, shall have and be deemed to have consented,
without the need for any further action or consent by such holder, to any and
all amendments to the Mortgage which are intended to eliminate or modify in any
manner the requirements of the sinking and improvement fund as set forth in
Section 6.14 of the Mortgage.
If the date for making any payment or the last date for performance of
any act or the exercise of any right, as provided in the Supplemental Indenture
establishing the terms and series of the bonds of this series, is not a
Business Day, such payment may be made or act performed or right exercised on
the next succeeding Business Day unless otherwise provided herein, with the
same force and effect as if done on the nominal date provided in the
Supplemental Indenture establishing the terms and series of the bonds of this
series.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, to any incorporator or any past, present or
future stockholder, officer or director of the Company, either directly or
indirectly, by virtue of any statute or by enforcement of any assessment or
otherwise, and any and all liability of the said incorporators, stockholders,
officers or directors of the Company in respect to this bond is hereby
expressly waived and released by every holder hereof.
<PAGE>
EXHIBIT 1.01D
[FORM OF BOND]
No. R1 $90,000,000
WESTERN MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bond, 1997 Series A, due November 21, 1999
FOR VALUE RECEIVED, WESTERN MASSACHUSETTS ELECTRIC COMPANY, a
corporation of the Commonwealth of Massachusetts (hereinafter called the
Company) hereby promises to pay to CITIBANK, N.A., or registered assigns, in
each case as Collateral Agent for the benefit of the several Lenders (as such
terms and all other capitalized terms used but not otherwise defined herein are
defined in the Credit Agreement referred to on the reverse hereof), the
principal sum of $90,000,000 or, if less the aggregate Credit Borrowings (as
defined in the Supplemental Indenture establishing the terms and conditions of
this series of bonds) outstanding on November 21, 1999 or any earlier date on
or as of which the obligations of the several Lenders to make Advances to the
Company under the Credit Agreement shall be terminated and all or any portion
of the unpaid principal of Advances shall become or be declared immediately due
and payable. Credit Borrowings means the aggregate unpaid principal
amount of Advances to the Company outstanding under the Credit Agreement plus
the Facility Fee Obligation and any Excess Interest (as such Facility Fee
Obligation and the Excess Interest are defined in the Supplemental Indenture
establishing the terms and conditions of this series of bonds) together with
accrued and unpaid interest thereon then payable by the Company thereunder.
The Company further agrees to pay interest on said sum on the dates on
which interest payments are payable by the Company to the Lenders from time to
time under the Credit Agreement (each such date on which interest is so payable
by the Company to the Lenders under the Credit Agreement being an interest
payment date applicable to the bonds of the 1997 Series A), until the Company*s
obligation in respect of the principal hereof shall be discharged, in
amounts equal to the interest payments payable by the Company to the Lenders
pursuant to the Credit Agreement on such interest payment dates applicable to
the bonds of the 1997 Series A; provided, however, that in no event shall the
interest rate payable on the 1997 Series A Bonds exceed 8.563%. The 1997
Series A Bonds shall be payable both as to principal and interest at
the office or agency of the Company in the Borough of Manhattan, New York, New
York, in such coin or currency of the United States of America as at the time
of payment is legal tender for public and private debts.
The interest on the bonds of the 1997 Series A, whether in temporary or
definitive form, shall be payable without presentation of such bonds; and only
to or upon the written order of the registered holders thereof of record at the
applicable record date. If, pursuant to the Credit Agreement, the Company*s
right to obtain Advances thereunder shall be terminated and all or any portion
of the principal of the Credit Borrowings shall become or be declared
immediately due and payable by the Company, a like principal amount of the
bonds of the Series A, together with all accrued interest thereon, shall
without notice or demand of any kind, become immediately due and payable. In
addition, the bonds of the 1997 Series A shall be repayable in whole or in part
according to the terms and provisions provided in Article III of the
Supplemental Indenture establishing the terms and conditions of this Series of
bonds.
Subject to the provisions of the Credit Agreement anything in the
Indenture, this Supplement Indenture or any bond of the 1997 Series A to the
contrary notwithstanding, the bonds of the 1997 Series A shall be deemed paid,
and all obligations of the Company to pay at the times provided herein the
principal of, premium, if any, and interest on the bonds of the 1997
Series A shall be satisfied and discharged, when and to the extent that the
Credit Borrowings shall have been indefeasibly paid in full in accordance with
the terms thereof and the obligations of the several Lenders to make Advances
to the Company under the Credit Agreement shall have been terminated, it being
understood that the actual indebtedness evidenced by the 1997 Series A
Bonds as of any time shall be limited to the Credit Borrowings as determined at
such time, that at no time shall any claim be made for principal and interest
on the 1997 Series A Bonds in excess of the Credit Borrowings as determined at
such time, and that, to the extent that the outstanding principal amount of the
1997 Series A Bonds exceeds such amount, neither the Lenders nor the Agent
shall have any right under, or right to exercise any right granted to the
holders of such excess the 1997 Series A Bonds under the Indenture. Unless the
Trustee shall have received written notice to the contrary from the Company or
the Collateral Agent, the Trustee shall be entitled to assume that the Company
has made all payments required under the Credit Agreement.
Each installment of interest hereon (other than overdue interest) shall
be payable to the person (as defined in the Original Indenture) who shall be
the registered owner of this Bond at the close of business on the record date,
which shall be the day next preceding such interest payment date, or if such
date shall not be a Business Day, the next preceding day which is a Business
Day.
Reference is hereby made to the further provisions of this Bond set
forth on the reverse hereof, and such further provisions shall for all purposes
have the same effect as though fully set forth in this place.
This Bond shall take effect as a sealed instrument.
This Bond shall not become or be valid or obligatory until the
certificate of authentication hereon shall have been signed by the Trustee.
<PAGE>
IN WITNESS WHEREOF, Western Massachusetts Electric Company has caused
this Bond to be executed in its name and on its behalf by its President or a
Vice President and its Treasurer or an Assistant Treasurer thereunto duly
authorized, and its corporate seal to be impressed or imprinted hereon.
Dated as of ________________, 1997.
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By:
By:
CERTIFICATE OF AUTHENTICATION
This Bond is one of the First Mortgage Bonds, 1997 Series A due
November 21, 1999, described and provided for in the within mentioned
Indenture.
STATE STREET BANK AND TRUST
COMPANY
By:
Authorized Signatory
<PAGE>
[FORM OF BOND]
[REVERSE]
WESTERN MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bond, 1997 Series A
The Bond is one of a series of Bonds in fully registered form known as
the "First Mortgage Bonds, 1997 Series A, due November 21, 1999" of the
Company, limited to ninety million dollars ($90,000,000) in aggregate principal
amount (except as provided by the terms of <section>2.13 of the Original
Indenture mentioned below), and issued under and secured by a First Mortgage
Indenture and Deed of Trust between the Company and Old Colony Trust Company
(now State Street Bank and Trust Company, successor Trustee) as Trustee, dated
as of August 1, 1954 (herein as amended by a First Supplemental Indenture dated
as of October 1, 1954, called the Original Indenture, the Original Indenture
with all indentures supplemental thereto, including specifically the Seventy-
ninth Supplemental Indenture dated as of May 1, 1997, being herein generally
called the Indenture) and said Seventy-ninth Supplemental Indenture, an
executed counterpart of each of which is on file at the principal corporate
trust office of the Trustee, to which Indenture reference is hereby made for a
description of the nature and extent of the security, the rights thereunder
of the bearers or registered owners of Bonds issued and to be issued
thereunder, the rights, duties, and immunities thereunder of the Trustee, the
rights and obligations thereunder of the Company, and the terms and conditions
upon which said Bonds, and other and further Bonds of other series, are issued
and are to be issued; but neither the foregoing reference to the Indenture nor
any provision of this Bond or of the Indenture establishing the terms and
conditions of the bonds of this Series shall affect or impair the obligation of
the Company, which is absolute, unconditional and unalterable, to pay the
principal of and interest on this Bond as herein provided.
This Bond, together with all other Bonds of this series, if any, is
issued to evidence and secure the Company's obligations pursuant to a Credit
Agreement dated as of November 21, 1996 (the "Original Agreement") among
Northeast Utilities ("NU"), The Connecticut Light and Power Company ("CL&P"),
the Company, the Lenders and Co-Agents named therein (collectively, the
"Lenders") and Citibank, N.A. as administrative agent, as amended and restated
by a First Amendment and Waiver dated as of May 30, 1997 (the Original
Agreement, as so amended and restated, herein called the "Credit Agreement"),
it being understood that the indebtedness evidenced hereby as of any time shall
be limited to the Credit Borrowings as determined at such time and that at no
time shall any claim be made for principal of and interest on the 1997 Series
A, Bonds in excess of the Credit Borrowings as determined at such time and
that, to the extent that the outstanding principal amount of the 1997 Series A
Bonds exceeds such amount, neither the Lenders nor the Agent shall have any
right under, or right to exercise any right granted to the holders of such
excess 1997 Series A Bonds under, the Indenture.
The bonds of 1997 Series A shall be issued to and registered in the
name of CITIBANK, N.A, as Collateral Agent for the benefit of the several
Lenders and, anything in the Mortgage, this Supplemental Indenture or any bond
of 1997 Series A to the contrary notwithstanding the bonds of 1997 Series A
shall not be sold, assigned, pledged or transferred, except to effect the
transfer to any successor Collateral Agent under the Credit Agreement or the
Collateral Agency Agreement. Prior to due presentment for registration of
transfer of this Bond, the Company and the Trustee may deem and treat the
registered owner hereof as the absolute owner hereof, whether or not this Bond
be overdue, for the purpose of receiving payment and for all other purposes,
and neither the Company nor the Trustee shall be affected by any notice to the
contrary.
This Bond is exchangeable at the option of the registered owner hereof
at the office or agency of the Company in the Borough of Manhattan, New York,
New York, for an equal principal amount of fully registered bonds of this
series of other authorized denominations, in the manner and on the terms
provided in the Indenture.
In the event that the Credit Agreement is terminated and all Credit
Borrowings shall have been paid in full, all of the then outstanding 1997
Series A Bonds shall be deemed paid and all obligations of the Company
thereunder and hereunder shall be deemed satisfied and discharged. Except as
provided in the Supplemental Indenture establishing the terms and conditions of
this series of bonds, the 1997 Series A Bonds shall not be redeemable.
The Indenture contains provisions permitting the Company and the
Trustee with the consent of the bearers or registered owners of not less than
seventy percentum (70%) in principal amount of the Bonds at the time
outstanding (except Bonds held by or for the benefit of the Company),
including, if more than one Series of Bonds shall be at the time outstanding,
not less than seventy percentum (70%) in principal amount of the Bonds (except
Bonds held by or for the benefit of the Company) of each series affected
differently from those of other series, to effect by supplemental indenture
modifications or alterations of the Indenture and of the rights and obligations
of the Company and of the bearers and registered owners of the Bonds; but no
such modification or alteration shall be made which, without the written
approval or consent of the registered owner hereof, will extend the maturity
hereof or reduce the rate or extend the time for payment of interest hereon or
change the amount of the principal hereof or of any premium payable on the
redemption hereof, or which will reduce the percentage of the principal amount
of Bonds or the percentage of the principal amount of Bonds of any one series
required for the adoption of the modifications or alterations as aforesaid, or
authorize the creation by the Company, except as expressly authorized by the
Indenture, of any mortgage, pledge, or lien upon the property subjected thereto
ranking prior to or on an equality with the lien thereof.
Each initial and successive holder of any bond of the 1997 Series A,
solely by virtue of its acquisition thereof, shall have and be deemed to have
given written consent, without the need for any further action or consent by
such holder, to the following amendment to the Original Indenture, and each
said holder hereby authorizes the Trustee, on behalf of the holder, to waive
any notice contemplated by the Indenture and to give written consent to such
amendment. The amendment modifies <section>3.04(h) of the Original Indenture to
read as follows:
(h) in the event that (i) the total annual interest requirements
of the Bonds then to be issued under this Section exceed the total
annual interest requirements of the Bonds in respect of the payment,
retirement, redemption, Cancellation or surrender to the Trustee for
Cancellation of which said Bonds are then to be issued and (ii) such
Bonds in respect of the payment, retirement, redemption, Cancellation
or surrender to the Trustee for Cancellation of which said Bonds are
then to be issued are then Outstanding and mature more than two years
from the date of the Officers' Certificate contemplated by paragraph
(d) of this Section, an Earnings Certificate.
If a default as defined in the Indenture shall occur, the principal of
this Bond may become or be declared due and payable before maturity, in the
manner and with the effect provided in the Indenture; but any default and the
consequences thereof may be waived by certain percentages of the bearers or
registered owners of Bonds, all as provided in the Indenture.
If the date for making any payment or the last date for performance of
any act or the exercise of any right, as provided in the Supplemental Indenture
establishing the terms and series of the bonds of this 1997 Series A, is not a
Business Day, such payment may be made or act performed or right exercised on
the next succeeding Business Day, unless otherwise provided herein, with the
same force and effect as if done on the nominal date provided in the
Supplemental Indenture establishing the terms and series of the bonds of this
1997 Series A.
No recourse shall be had for the payment of the principal of or the
interest on this Bond, or for any claim based hereon or otherwise in respect
hereof, or of the Indenture against any incorporator, stockholder, director, or
officer, past, present, or future, as such, of the Company or of any
predecessor or successor corporation under any constitution, statute, or rule
of law, or by the enforcement of any assessment, penalty, or otherwise, all
such liability being waived and released by the holder hereof by the acceptance
of this Bond.
<PAGE>
EXHIBIT 1.01E
COLLATERAL AGENCY AGREEMENT
among
NORTHEAST UTILITIES
THE CONNECTICUT LIGHT
AND POWER COMPANY
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
as Borrowers
THE FINANCIAL INSTITUTIONS NAMED HEREIN
and
CITIBANK, N.A.
as Collateral Agent and Administrative Agent
Dated as of May 30, 1997
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . 2
1.01. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II SECURITY . . . . . . . . . . . . . . . . . 3
2.01. Purpose of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.02. Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III DEFAULTS; DISTRIBUTIONS . . . . . . . . . . . . . 3
3.01. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.02. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.03. Marshalling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV AGENCY. . . . . . . . . . . . . . . . . . 5
4.01. Appointment and Duties of Collateral Agent. . . . . . . . . . . . . . . 5
4.02. Rights of Collateral Agent. . . . . . . . . . . . . . . . . . . . . . . 6
4.03. Lack of Reliance on the Collateral Agent. . . . . . . . . . . . . . . . 7
4.04. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.05. The Collateral Agent in its Individual Capacity . . . . . . . . . . . . 8
4.06. Resignation or Removal of the Collateral Agent. . . . . . . . . . . . . 8
ARTICLE V MISCELLANEOUS. . . . . . . . . . . . . . . . 9
5.01. Amendments; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.02. Addresses for Notices . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.03. Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.04. Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.05. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.06. Governing Law; Terms. . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.07. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . S-1
COLLATERAL AGENCY AGREEMENT
THIS COLLATERAL AGENCY AGREEMENT, dated as of May 30, 1997, among:
(i) NORTHEAST UTILITIES, an unincorporated voluntary business association
organized under the laws of the Commonwealth of Massachusetts ("NU");
(ii) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation organized
under the laws of the State of Connecticut ("CL&P");
(iii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation organized
under the laws of the Commonwealth of Massachusetts ("WMECO";
CL&P, NU and WMECO, each being a "Borrower", and collectively,
the "Borrowers");
(iv) The financial institutions (the "Banks") listed on the signature
pages hereof and the other Lenders from time to time party hereto;
and
(v) CITIBANK, N.A. ("Citibank"), as Administrative Agent for the Lenders
under the Credit Agreement referred to below and as collateral agent
hereunder for the Lenders (in such capacity, together with its
successors, the "Collateral Agent").
PRELIMINARY STATEMENTS
WHEREAS, the Banks, the Borrowers and the Administrative Agent have
entered into that certain Credit Agreement dated as of November 21, 1996 (said
Credit Agreement, as amended from time to time in accordance with its terms,
being the "Credit Agreement");
WHEREAS, the Banks, the Borrowers and the Administrative Agent amended the
Credit Agreement and waived certain provisions contained therein pursuant to
that certain First Amendment and Waiver dated as of the date hereof (the "First
Amendment");
WHEREAS, pursuant to the First Amendment, the obligations of CL&P and
WMECO are being secured by their respective Collateral FMBs issued on the date
hereof to the Collateral Agent for the benefit of the Lenders;
WHEREAS, Citibank has been designated and appointed the Collateral Agent
under the Collateral FMBs and the other Loan Documents as provided for herein
and in the Collateral FMBs; and
WHEREAS, the Bank, the Borrowers, the Administrative Agent and the
Collateral Agent are entering into this Agreement to set forth the duties and
powers of the Collateral Agent;
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Terms used herein and defined in the Credit
Agreement shall have the meanings therein indicated except that the terms
defined in the preamble and the Preliminary Statements and the following terms
shall have the meanings set forth herein:
"Agreement" means this Collateral Agency Agreement, as amended from
time to time in accordance with its terms.
"Principal Office" means the office of the Collateral Agent presently
located at 399 Park Avenue, New York, New York 10043, or such other office
as the Collateral Agent may designate from time to time.
"Security Documents" means, (i) with respect to CL&P, the Collateral
FMBs issued by CL&P from time to time to the Collateral Agent for the
benefit of the Lenders and the CL&P Indenture and (ii) with respect to
WMECO, the Collateral FMBs issued by WMECO from time to time to the
Collateral Agent for the benefit of the Lenders and the WMECO Indenture.
"Secured Obligations" means, (a) with respect to CL&P, all
obligations of CL&P, now or hereafter existing, to pay (i) principal
amount of, and interest (including, without limitation, interest accruing
at the applicable default rate provided for in the Amended Credit
Agreement) on, all outstanding Advances made to CL&P by the Lenders and
(ii) CL&P's obligations to pay the Facility Fee pursuant to Section 2.02(b)
of the Credit Agreement; provided, however, the obligations of CL&P under
this clause (a)(ii) shall not exceed $410,000, and (b) with respect to
WMECO, all obligations of WMECO, now or hereafter existing, to pay (i)
principal amount of, and interest (including, without limitation, interest
accruing at the applicable default rate provided for in the Credit
Agreement) on, all outstanding Advances made to WMECO by the Lenders and
(ii) WMECO's obligations to pay the Facility Fee pursuant to Section
2.02(b) of the Credit Agreement; provided, however, the obligations of
WMECO under this clause (b)(ii) shall not exceed $196,000.
ARTICLE II
SECURITY
SECTION 2.01. Purpose of Agreement. This Agreement sets forth the duties
and powers of the Collateral Agent with respect to the Collateral FMBs and its
exercise for the benefit of the Lenders of its rights and remedies thereunder
and under the other Loan Documents or otherwise available to the Collateral
Agent.
SECTION 2.02. Collateral. The Lenders are entitled, pursuant to the terms
hereof and of the other Loan Documents, to the benefits of any Collateral held
or to be held by or for the benefit of the Collateral Agent. CL&P and WMECO
each hereby agree to deliver or cause to be delivered to the Collateral Agent,
promptly upon the execution and delivery thereof, an originally executed and
authenticated Collateral FMB. In addition, promptly upon the execution and
delivery of any additional Collateral FMBs, CL&P and WMECO (as the case may be)
will deliver or cause to be delivered to the Collateral Agent an originally
executed and authenticated copy of such additional Collateral FMBs. The
Collateral Agent shall keep all Collateral FMBs delivered to it at its
Principal Office and shall permit any Lender to inspect such Collateral FMBs
upon prior written request during business hours.
ARTICLE III
DEFAULTS; DISTRIBUTIONS
SECTION 3.01. Default. (a) Unless an Event of Default shall have
occurred and be continuing, the Collateral Agent shall not be obligated to take
any action under this Agreement or any of the Security Documents, except for
the performance of such duties as are specifically set forth herein or therein.
(b) If any Event of Default shall have occurred and be continuing with
respect to CL&P or WMECO, the Collateral Agent shall, at the request of, or may
with the consent of, the Lenders entitled to make such request, exercise in
respect of the Collateral FMBs of such Borrower, in addition to other rights
and remedies provided for herein or otherwise available to it, all the rights
and remedies available to the Collateral Agent under the applicable Security
Documents and under the other Loan Documents or otherwise available to the
Collateral Agent.
(c) Subject to paragraph (e) below, the rights and remedies of the
Collateral Agent with respect to CL&P and WMECO shall include (without
limitation of the other rights and remedies available to the Collateral Agent
under the Loan Documents or otherwise available to it), (i) the right to cause
all or a portion of the Collateral FMBs (including without limitation all
accrued interest thereon) of such Borrower to become immediately due and
payable, (ii) the right to collect all amounts payable by such Borrower under
the Collateral FMBs for the benefit of the Lenders, and (iii) the right to
exercise all rights and remedies of a "holder" of a Collateral FMB under the
applicable First Mortgage Indenture of such Borrower.
(d) Notwithstanding any written instructions received by the Collateral
Agent pursuant to paragraph (b) above, and except as expressly provided in the
Credit Agreement, the Collateral Agent shall not release any Collateral or
portion thereof or lien thereon without the consent of the Lenders.
(e) It is understood that the actual indebtedness of any Borrower
evidenced by the Collateral FMBs of such Borrower shall be limited to, and in
no event exceed, the Secured Obligations of such Borrower from time to time
outstanding; that at no time shall any claim be made on the Collateral FMBs of
such Borrower in excess of the aggregate unpaid Secured Obligations of such
Borrower outstanding at such time and that, to the extent the actual
indebtedness of such Borrower evidenced by the Collateral FMBs of such Borrower
exceed the Secured Obligations of such Borrower, neither the Collateral Agent
nor any Lender shall have any right under, or right to exercise any right
granted to the holders of such excess Collateral FMBs of such Borrower under,
the applicable First Mortgage Indenture.
SECTION 3.02. Distributions. (a) If any Event of Default shall have
occurred and be continuing with respect to CL&P or WMECO and if the
Administrative Agent shall have declared the Notes of such Borrower, all
interest thereon and all other amounts payable by such Borrower under the Loan
Documents to be immediately due and payable thereunder (or if such amounts have
otherwise automatically become immediately due and payable), all Collateral of
such Borrower held by the Collateral Agent and all cash proceeds received by
the Collateral Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral of such Borrower may, in the
discretion of the Collateral Agent, be distributed in whole or in part to the
Administrative Agent for the payment of principal, interest and the Facility
Fee to the respective Lenders to whom the same are payable for the account of
their respective Applicable Lending Offices, in each case to be applied in
accordance with the terms of the Credit Agreement, unless otherwise directed by
the Lenders.
(b) In the event that funds to be distributed by the Collateral Agent
shall be insufficient to pay in full the Secured Obligations of CL&P or WMECO,
as the case may be, such Borrower shall remain liable to the extent of any
deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of Secured Obligations owed by such Borrower to the Lenders.
SECTION 3.03. Marshalling. The Collateral Agent shall not be required to
marshall any present or future security for the Secured Obligations or to
resort to any security of any Borrower in any particular order; and all of the
Collateral Agent's rights hereunder and in respect of such security shall be
cumulative and in addition to all other rights, however existing or arising.
ARTICLE IV
AGENCY
SECTION 4.01. Appointment and Duties of Collateral Agent. (a) The
Lenders hereby designate and appoint Citibank to act as the Collateral Agent
hereunder and under the other Loan Documents, and each of the Lenders hereby
authorizes Citibank as such Collateral Agent, to take such actions on its
behalf hereunder and under the provisions of the other Loan Documents and to
exercise such powers and perform such duties expressly delegated to the
Collateral Agent hereunder and under the other Loan Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in the Loan Documents, the Collateral Agent
shall not have any duties or responsibilities, except those expressly set forth
herein and in the other Loan Documents, or any fiduciary relationship with any
Lender, and no implied covenants, functions or responsibilities shall be read
into the Loan Documents or otherwise exist against the Collateral Agent. The
Collateral Agent shall not be liable for any action taken or omitted to be
taken by it hereunder or under any Loan Document, or in connection herewith or
therewith, or in connection with the Collateral, unless caused by its gross
negligence or willful misconduct.
(b) The Collateral Agent will give notice to the Lenders of any action
taken by it under any Loan Document; such notice shall be given promptly after
the taking of any such action.
(c) Notwithstanding anything to the contrary in this Agreement or any of
the other Loan Documents and in any event subject to the provisions of
Section 5.01 hereof, the Collateral Agent, in its own capacity and in its
capacity as a "holder" of the Collateral FMBs under the First Mortgage
Indentures, shall not be required to exercise any rights or remedies under any
of the Loan Documents or give any consent under any of the Loan Documents or
enter into any agreement amending, modifying, supplementing or waiving any
provision of any Loan Document unless it shall have been directed to do so by
the Majority Lenders.
(d) Except for the safe custody of the Collateral FMBs and for the
accounting for moneys actually received by it hereunder, the Collateral Agent
shall have no duty as to any Collateral, as to ascertaining or taking of any
action to be taken by a "holder" of the Collateral FMBs under the First
Mortgage Indentures or other matters relative to the Collateral, whether or not
the Collateral Agent or any Lender 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 Collateral. The Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
presentation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which the Collateral Agent accords its
own property.
(e) CL&P and WMECO shall each promptly forward to the Collateral Agent
copies of all notices, certificates and other documents required to be
delivered by it to the Trustee pursuant to the terms of the First Mortgage
Indentures. The only obligation which the Collateral Agent shall have
hereunder with respect to such notices, certificates and other documents shall
be to promptly forward to the Lenders copies of any such notices, certificates
or documents.
SECTION 4.02. Rights of Collateral Agent. (a) The Collateral Agent may
execute and effect any of its duties under the Security Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
(b) Neither the Collateral Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action taken or omitted to be taken in good faith by it or such Person under or
in connection with any Security Document (except for its or such Person's own
gross negligence or willful misconduct), or (ii) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by any Borrower or any officer thereof contained in any Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Collateral Agent under or in connection with any
Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any Loan Document, or for any failure of any
Borrower to perform its obligations thereunder. The Collateral Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of any Loan Document or to inspect the properties, books or records of any
Borrower.
(c) The Collateral Agent shall be entitled to rely, and shall be fully
protected in relying upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrowers), independent
accountants and other experts selected by the Collateral Agent. The Collateral
Agent shall be fully justified in failing or refusing to take any action
hereunder or under any other Loan Document (i) if such action would, in the
opinion of the Collateral Agent, be contrary to law or the terms of this
Agreement or the other Loan Documents, (ii) if it shall not receive any such
advice or concurrence of the Administrative Agent or the Majority Lenders as it
deems appropriate, or (iii) if it shall not first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any Loan Document in accordance with a request of
either the Administrative Agent or the Majority Lenders, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders.
(d) If, with respect to a proposed action to be taken by it, the
Collateral Agent shall determine in good faith that the provisions of this
Agreement relating to the functions or responsibilities or discretionary powers
of the Collateral Agent are or may be ambiguous or inconsistent, the Collateral
Agent shall notify the Lenders, identifying the proposed action and the
provisions that it considers are or may be ambiguous or inconsistent, and may
decline either to perform such function or responsibility or to exercise such
discretionary power unless it has received the written confirmation of the
Majority Lenders that the Majority Lenders concur in the circumstances that the
action proposed to be taken by the Collateral Agent is consistent with the
terms of this Agreement or is otherwise appropriate. Subject to the provisions
of Sections 3.01(b) and 5.01 hereof, the Collateral Agent shall be fully
protected in acting or refraining from acting upon the confirmation of the
Majority Lenders in this respect, and such confirmation shall be binding upon
the Collateral Agent and the other Lenders.
(e) No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION 4.03. Lack of Reliance on the Collateral Agent. Each Lender
acknowledges that it has, independently and without reliance upon the
Collateral Agent or any other Lender and based on the Information Memorandum
and other financial information referred to in Sections 6.01(f) and (g) and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into the Credit Agreement and the other
Loan Documents. Each Lender hereby acknowledges that it has received a copy of
each of the Security Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Collateral Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Collateral Agent
hereunder, the Collateral Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Borrowers which may come into the possession of the
Collateral Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
SECTION 4.04. Indemnification. The Lenders agree to indemnify the
Collateral Agent (to the extent not reimbursed by the Borrowers), ratably
according to the respective principal amounts of the Notes then held by each of
them (or if no Notes are at the time outstanding, ratably according to the
respective Commitments of the Lenders; if any Notes or Commitments are held by
any Borrower or Affiliates thereof, any ratable apportionment hereunder shall
exclude the principal amount of the Notes held by such Borrower(s) or
Affiliates or their respective Commitments (if any) hereunder), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Collateral Agent in its capacity as such in any way relating to or arising out
of this Agreement or any action taken or omitted by the Collateral Agent in its
capacity as such under this Agreement, provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Collateral Agent's gross negligence or willful misconduct. Without limitation
of the foregoing, each Lender agrees to reimburse the Collateral Agent promptly
upon demand for such Lender's ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Collateral Agent in connection with
the preparation, execution, delivery, administration, modification, amendment
or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, the Loan
Documents to the extent that the Collateral Agent is entitled to reimbursement
for such expenses pursuant to Section 10.04 but is not reimbursed for such
expenses by the Borrowers.
SECTION 4.05. The Collateral Agent in its Individual Capacity. With
respect to its Commitment and the Note issued to it, Citibank shall have the
same rights and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not the Collateral Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, any Borrower, any of their respective
subsidiaries and any Person who may do business with or own securities of any
Borrower or any such subsidiary, all as if Citibank were not the Collateral
Agent and without any duty to account therefor to the Lenders.
SECTION 4.06. Resignation or Removal of the Collateral Agent. The
Collateral Agent may resign at any time by giving written notice thereof to the
Lenders and the Borrowers, with any such resignation to become effective only
upon the appointment of a successor Collateral Agent pursuant to this Section
4.06. Upon any such resignation, the Majority Lenders shall have the right to
appoint a successor Collateral Agent, which shall be a Lender or another
commercial bank or trust company reasonably acceptable to the Borrowers
organized or licensed under the laws of the United States, or of any State
thereof. If no successor Collateral Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Collateral Agent's giving of notice of resignation, then the
retiring Collateral Agent may, on behalf of the Lenders, appoint a successor
Collateral Agent, which shall be a Lender or shall be another commercial bank
or trust company organized or licensed under the laws of the United States or
of any State thereof reasonably acceptable to the Borrowers. In addition to
the foregoing right of the Collateral Agent to resign, the Majority Lenders may
remove the Collateral Agent at any time, with or without cause, concurrently
with the appointment by the Majority Lenders of a successor Collateral Agent.
Upon the acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent and the execution and delivery by the Borrowers and
the successor Collateral Agent of an agreement relating to the fees (if any) to
be paid to the successor Collateral Agent in connection with its acting as
Collateral Agent hereunder, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Collateral Agent's resignation or removal hereunder as Collateral
Agent, the provisions of this Article IV shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent under
the Loan Documents. It is understood that in the event the Collateral Agent
shall resign, or be removed by the Majority Lenders, as provided in this
paragraph, the Collateral Agent shall resign, or be removed, as the case may
be, in its capacity as both "administrative agent" and "collateral agent" under
the Loan Documents and the successor Collateral Agent shall be the successor
Administrative Agent and the successor Collateral Agent under the Loan
Documents.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments; Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by any Borrower therefrom shall in
any event be effective unless the same shall be made in accordance with
Section 10.01 of the Credit Agreement.
SECTION 5.02. Addresses for Notices. All notices and other communications
provided for hereunder shall be made in accordance with Section 10.02 of the
Credit Agreement.
SECTION 5.03. Binding Effect. This Agreement and the obligations of the
parties hereto shall be binding upon their respective successors and assigns,
and shall, together with the rights and remedies of the parties hereto, inure
to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 5.04. Transfers. Any Secured Party may at any time assign,
transfer, grant or sell participations in its rights and interests under the
Security Documents, subject, however, to the restrictions, if any, imposed on
the assignment, transfer, grant or sale of participations set forth in Section
10.07 of the Credit Agreement, whereupon any such transferee shall be deemed to
be a holder of a Secured Obligation, in each instance for all purposes of this
Agreement and entitled to all rights and benefits hereunder to the extent of
the interest so transferred.
SECTION 5.05. Termination. Upon the later of payment in full in cash of
the Secured Obligations or the Termination Date, this Agreement shall
terminate.
SECTION 5.06. Governing Law; Terms. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York except to
the extent that the validity or perfection of any security interest, or
remedies hereunder or under the other Loan Documents, in respect of any
particular Collateral are governed by the laws of a jurisdiction other than the
State of New York.
SECTION 5.07. 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 instrument.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
NORTHEAST UTILITIES
By:___________________________________
Name:
Title:
THE CONNECTICUT LIGHT AND
POWER COMPANY
By:___________________________________
Name:
Title:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By:___________________________________
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent, Collateral Agent and
Lender
By:___________________________________
Name:
Title:
TORONTO DOMINION
(NEW YORK), INC.,
as Co-Agent and Lender
By:___________________________________
Name:
Title:
FLEET NATIONAL BANK,
as Co-Agent and Lender
By:___________________________________
Name:
Title:
CIBC INC.,
as Co-Agent and Lender
By:___________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Co-Agent and Lender
By:___________________________________
Name:
Title:
BANKBOSTON, N.A.
(formerly known as THE FIRST NATIONAL BANK OF BOSTON),
as Lender
By:___________________________________
Name:
Title:
BARCLAYS BANK PLC,
as Lender
By:___________________________________
Name:
Title:
MELLON BANK, N.A.,
as Lender
By:___________________________________
Name:
Title:
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
as Lender
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
SWISS BANK CORPORATION,
NEW YORK BRANCH,
as Lender
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
THE YASUDA TRUST AND BANKING CO., LTD., NEW YORK
BRANCH,
as Lender
By:___________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By:___________________________________
Name:
Title:
<PAGE>
EXHIBIT 3.01
FORM OF NOTICE OF CONTRACT BORROWING
[Date]{1}
Citibank, N.A., as Administrative
Agent for the Lenders party to
the Credit Agreement referred to below,
399 Park Avenue
New York, New York 10043
Attention: ________________
Ladies and Gentlemen:
The undersigned, [NAME OF BORROWER] (the "Borrower"), refers to the
Credit Agreement, dated as of November , 1996 (the "Credit Agreement"),
among Northeast Utilities, The Connecticut Light and Power Company, Western
Massachusetts Electric Company, the Banks and Agents named therein, and
Citibank, N.A., as Administrative Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby gives you notice pursuant to
Section 3.01 of the Credit Agreement that it requests a Contract Borrowing
under the Credit Agreement, and in that connection sets forth below the terms
on which such Borrowing is requested to be made:
(A) Date of proposed Contract Borrowing ______________________
(which is a Business Day)
(B) Principal Amount ______________________
of Contract Borrowing{2}
(C) Type of Advance{3} ______________________
(D) Interest Period{4} ______________________
(E) Borrower Sublimit ______________________
(F) Aggregate amount of Advances
outstanding to the Borrower ______________________
Upon acceptance of any or all of the Contract Advances requested in
this Notice, the undersigned shall be deemed to have represented and warranted
that the conditions precedent to each Contract Advance applicable to it
specified in Section [5.02(a)]{5} [5.03(a)]{6} of the Credit Agreement have
been satisfied.
Very truly yours,
[NAME OF BORROWER]
By________________________________
Title:
**FOOTNOTES**
{1} The Notice of Contract Borrowing must be received by the Administrative
Agent (i) in the case of a proposed Contract Borrowing to consist of
Eurodollar Advances, by telex or telecopier not later than 11:00 a.m. (New
York City time), three Business Days prior to a proposed Borrowing and (ii)
in the case of a proposed Contract Borrowing to consist of Base Rate
Advances, by telex or telecopier not later than 11:00 a.m. (New York City
time), on the day of a proposed Competitive Borrowing.
{2} Not less than $10,000,000 and in integral multiples of 1,000,000.
{3} Eurodollar Advance or Base Rate Advance.
{4} Which shall be subject to the definition of "Interest Period" and end not
later than the Termination Date.
{5} Applicable to Borrowings that increase the aggregate principal amount of
Contract Advances made by the Lenders to the Borrower.
{6} Applicable to Borrowings that do not increase the aggregate principal
amount of Contract Advances made to the Borrower.
<PAGE>
EXHIBIT 3.03A-1
FORM OF COMPETITIVE BID REQUEST
(Eurodollar Competitive Borrowing)
[Date]{1}
Citibank, N.A., as Administrative
Agent, for the Lenders party to
the Credit Agreement referred to below
399 Park Avenue
New York, New York 10043
Attention: ____________________
Ladies & Gentlemen:
The undersigned, [NAME OF BORROWER] (the "Borrower"), refers to the
Credit Agreement, dated as of November , 1996 (the "Credit Agreement"),
among the Borrower, [Northeast Utilities, The Connecticut Light and Power
Company, Western Massachusetts Electric Company, as applicable], the Banks and
Agents named therein, and Citibank, N.A., as Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Borrower hereby gives you
notice pursuant to Section 3.03(b)(i) of the Credit Agreement that it requests
a Competitive Borrowing to consist of Eurodollar Competitive Advances under the
Credit Agreement, and in that connection sets forth below the terms on which
such Eurodollar Competitive Borrowing is requested to be made:
(i) Date of Competitive
Borrowing (which is a Business Day) ___________________
(ii) Aggregate Principal Amount of
Eurodollar Competitive Advances{2} ___________________
(iii) Interest Period for Eurodollar
Competitive Advances and the last
day thereof{3} ___________________
(iv) Borrower Sublimit ___________________
(v) Aggregate Amount of Advances
to be outstanding to the Borrower on
the date of proposed Competitive
Borrowing (after giving effect to such
Competitive Borrowing) __________________
Upon acceptance of any or all of the Advances offered by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions precedent to each Advance applicable to the
Borrower specified in Section 5.02(a) of the Credit Agreement have been
satisfied.
Very truly yours,
[NAME OF BORROWER]
By________________________________
Title:
**FOOTNOTES**
(1} Not later than four Business Days prior to date of proposed Competitive
Borrowing to consist of Eurodollar Competitive Advances.
{2} Not less than $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
{3} Which shall be subject to the definition of "Interest Period" and end not
later than the Termination Date.
<PAGE>
EXHIBIT 3.03A-2
FORM OF COMPETITIVE BID REQUEST
(Fixed Rate Competitive Borrowing)
[Date]{1}
Citibank, N.A., as Administrative
Agent, for the Lenders party to
the Credit Agreement referred to
below
399 Park Avenue
New York, New York 10043
Attention: ____________________
Ladies & Gentlemen:
The undersigned, [NAME OF BORROWER] (the "Borrower"), refers to the
Credit Agreement, dated as of November , 1996 (the "Credit Agreement"),
among the Borrower, [Northeast Utilities, The Connecticut Light and Power
Company, Western Massachusetts Electric Company, as applicable], the Banks and
Agents named therein, and Citibank, N.A., as Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement. The Borrower hereby gives you
notice pursuant to Section 3.03(b)(i) of the Credit Agreement that it requests
a Competitive Borrowing to consist of Fixed Rate Competitive Advances under the
Credit Agreement, and in that connection sets forth below the terms on which
such Fixed Rate Competitive Borrowing is requested to be made:
(vi) Date of Competitive
Borrowing (which is a Business Day) ___________________
(vii) Aggregate Principal Amount of
Fixed Rate Competitive Advances{2} ___________________
(viii) Interest Period for Fixed Rate
Competitive Advances and the last
day thereof{3} ___________________
(ix) Borrower Sublimit ___________________
(x) Aggregate Amount of Advances
to be outstanding to the Borrower on
the date of proposed Competitive
Borrowing (after giving effect to
such Competitive Borrowing) __________________
Upon acceptance of any or all of the Advances offered by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions precedent to each Advance applicable to the
Borrower specified in Section 5.02(a) of the Credit Agreement have been
satisfied.
Very truly yours,
[NAME OF BORROWER]
By________________________________
Title:
**FOOTNOTES**
{1} Not later than one Business Day prior to date of proposed Competitive
Borrowing to consist of Fixed Rate Competitive Advances.
{2} Not less than $10,000,000 or an integral multiple of $1,000,000 in excess
thereof.
{3} Which shall be subject to the definition of "Interest Period" and end not
later than the Termination Date.
<PAGE>
EXHIBIT 3.03B
FORM OF NOTICE OF COMPETITIVE BID REQUEST
To the Lenders party to
the Credit Agreement
referred to below
[Date]
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as November , 1996
(the "Credit Agreement"), among Northeast Utilities, The Connecticut Power and
Light Company and Western Massachusetts Electric Company, the Banks and Agents
named therein, and Citibank, N.A., as Administrative Agent. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
to such terms in the Credit Agreement. [NAME OF BORROWER] made a Competitive
Bid Request on , 19 , pursuant to Section 3.03(b)(i) of the Credit
Agreement requesting a Competitive Borrowing consisting of [Fixed Rate]
[Eurodollar] Competitive Advances, and in that connection you are invited to
submit a Competitive Bid by [Date]/[Time].{1} Your Competitive Bid must comply
with Section 3.03(b)(ii) of the Credit Agreement and the terms set forth on the
Competitive Bid Request attached as Schedule I hereto.
Very truly yours,
CITIBANK, N.A.,
as Administrative Agent
By__________________________
Title:
**FOOTNOTES**
{1} The Competitive Bid must be received by the Administrative Agent (i)in
the case of a proposed Competitive Borrowing to consist of Eurodollar
Competitive Advances, by telex or telecopier not later than 9:30 a.m. (New
York City time), three Business Days prior to a proposed Competitive
Borrowing and (ii)in the case of a proposed Competitive Borrowing to
consist of Fixed Rate Competitive Advances, by telex or telecopier not
later than 9:30 a.m. (New York City time), on the day of a proposed
Competitive Borrowing.
<PAGE>
EXHIBIT 3.03C-1
FORM OF COMPETITIVE BID
(Eurodollar Competitive Advance)
[Date]{1}
Citibank, N.A., as Administrative
Agent, for the Lenders party to
the Credit Agreement referred to
below
399 Park Avenue
New York, New York 10043
Attention: ____________________
Ladies & Gentlemen:
The undersigned, [NAME OF LENDER], refers to the Credit Agreement, dated as
of November , 1996 (the "Credit Agreement"), among Northeast Utilities, The
Connecticut Power & Light Company and Western Massachusetts Electric Company,
the Banks and Agents named therein, and Citibank, N.A., as Administrative
Agent.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement. The undersigned hereby
makes a Competitive Bid pursuant to Section 3.03(b)(ii) of the Credit Agreement,
in response to the Competitive Bid Request made by the [NAME OF BORROWER]
(the "Borrower") on _________, 19 , and in that connection sets forth below the
terms on which such Competitive Bid is made:
(A) Principal Amount of
Eurodollar Competitive
Advance {2} ___________________
(B) Competitive Margin [+/- %]
(C) Interest Period for
Eurodollar Competitive Advance
and last day thereof ___________________
The undersigned hereby confirms that it is prepared to extend credit to
the Borrower upon acceptance by the Borrower of this bid in accordance with
Section 3.04 of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By_________________________
Title:
**FOOTNOTES**
{1} To be received by the Administrative Agent not later than 9:30 a.m. (New
York City time) three Business Days prior to a proposed Competitive
Borrowing to consist of Eurodollar Competitive Advances.
{2} Not less than $10,000,000 and in an integral multiple of $1,000,000 in
excess thereof. Multiple bids will be accepted by the Administrative
Agent.
<PAGE>
EXHIBIT 3.03C-2
FORM OF COMPETITIVE BID
(Fixed Rate Competitive Advance)
[Date]{1}
Citibank, N.A., as Administrative
Agent, for the Lenders party to
the Credit Agreement referred to
below
399 Park Avenue
New York, New York 10043
Attention: ____________________
Ladies & Gentlemen:
The undersigned, [NAME OF LENDER], refers to the Credit Agreement, dated
as of November , 1996 (the "Credit Agreement"), among Northeast Utilities,
The Connecticut Power & Light Company and Western Massachusetts Electric
Company, the Banks and Agents named therein, and Citibank, N.A., as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby makes a Competitive Bid pursuant to Section 3.03(b)(ii)
of the Credit Agreement, in response to the Competitive Bid Request made by the
[NAME OF BORROWER] (the "Borrower") on _________, 19 , and in that connection
sets forth below the terms on which such Competitive Bid is made:
(A) Principal Amount of
Fixed Rate Competitive
Advance {2} ___________________
(B) Competitive Margin [+/- %]
(C) Interest Period for
Fixed Rate Competitive Advance
and last day thereof ___________________
The undersigned hereby confirms that it is prepared to extend credit to
the Borrower upon acceptance by the Borrower of this bid in accordance with
Section 3.04 of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By_________________________
Title:
**FOOTNOTES**
(1} To be received by the Administrative Agent not later than 9:30 a.m. (New
York City time) on the day of a proposed Competitive Borrowing to consist
of Eurodollar Competitive Advances.
{2} Not less than $10,000,000 and in an integral multiple of $1,000,000 in
excess thereof. Multiple bids will be accepted by the Administrative
Agent.
<PAGE>
EXHIBIT 3.03D-1
FORM OF COMPETITIVE BID ACCEPTANCE
(Eurodollar Competitive Borrowing)
[Date]{1}
Citibank, N.A., as Administrative
Agent, for the Lenders party to
the Credit Agreement referred to
below
399 Park Avenue
New York, New York 10043
Attention: ____________________
Ladies & Gentlemen:
Reference is made to the Credit Agreement, dated as of November ,
1996 (the "Credit Agreement"), among Northeast Utilities, The Connecticut Power
and Light Company and Western Massachusetts Electric Company, the Banks and
Agents named therein, and Citibank, N.A., as Administrative Agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
We have received a summary of bids in connection with our Competitive
Bid Request dated ___________, 19__ made by [NAME OF BORROWER] and in
accordance with Section 3.03(iv) of the Credit Agreement, we hereby accept the
following bids for maturity on [date]:
Principal Amount Competitive Margin Lender
$ [+/-. %]
$
We hereby reject the following bids:
Principal AmountCompetitive Margin Lender
$ [+/-. %]
$
The $ should be deposited in Citibank, N.A. account number
[] on [date] [or] [wire transferred to [Name of Bank] account number
[] [other wire instructions] on [date]].
Very truly yours,
[NAME OF BORROWER]
By________________________________
Title:
**FOOTNOTES**
{1} To be received by the Administrative Agent not later than 10:15 a.m. (New
York City time) three Business Days before a proposed Competitive
Borrowing.
<PAGE>
EXHIBIT 3.03D-2
FORM OF COMPETITIVE BID ACCEPTANCE
(Fixed Rate Competitive Borrowing)
[Date]{1}
Citibank, N.A., as Administrative
Agent, for the Lenders party to
the Credit Agreement referred to
below
399 Park Avenue
New York, New York 10043
Attention: ____________________
Ladies & Gentlemen:
Reference is made to the Credit Agreement, dated as of November ,
1996 (the "Credit Agreement"), among Northeast Utilities, The Connecticut Power
and Light Company and Western Massachusetts Electric Company (collectively, the
"Borrowers"), the Banks and Agents named therein, and Citibank, N.A., as
Administrative Agent. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
We have received a summary of bids in connection with our Competitive
Bid Request dated ___________, 19__ made by [NAME OF BORROWER] and in
accordance with Section 3.03(iv) of the Credit Agreement, we hereby accept the
following bids for maturity on [date]:
Principal Amount Competitive Margin Lender
$ [+/-. %]
$
We hereby reject the following bids:
Principal AmountCompetitive Margin Lender
$ [+/-. %]
$
The $ should be deposited in Citibank, N.A. account number
[] on [date] [or] [wire transferred to [Name of Bank] account number
[] [other wire instructions] on [date]].
Very truly yours,
[NAME OF BORROWER]
By________________________________
Title:
**FOOTNOTES**
{1} To be received by the Administrative Agent not later than 10:15 a.m. (New
York City time) on the day of a proposed Competitive Borrowing.
<PAGE>
EXHIBIT 5.01A
[Form of Opinion of Day, Berry & Howard]
November __, 1996
To each of the Lenders and Co-Agents
parties to the Credit Agreement referred
to below and to Citibank, N.A.
as Administrative Agent under
such Credit Agreement
Ladies and Gentlemen:
We have acted as counsel to Northeast Utilities ("NU"), The Connecticut
Light and Power Company ("CL&P") and Western Massachusetts Electric Company
("WMECO"; NU, CL&P and WMECO, each being a "Borrower", and collectively, the
"Borrowers") in connection with the preparation, execution and delivery of the
Credit Agreement dated as of November __, 1996 (the "Credit Agreement"), among
the Borrowers, the Banks and Co-Agents named therein and Citibank, N.A. as
Administrative Agent for the Lenders thereunder. Unless otherwise defined
herein, terms defined in the Credit Agreement are used herein as therein
defined. This opinion is furnished to you pursuant to Section 5.01(a)(viii)(A)
of the Credit Agreement.
In that connection, we have examined:
(a) counterparts of the Credit Agreement, executed by each of the
parties thereto,
(b) the Notes of each Borrower payable to the order of each Bank,
executed by the Borrower party thereto,
(c) The declaration of trust of NU and all amendments thereto (the
"Declaration of Trust") and the articles of incorporation of each of CL&P and
WMECO and all amendments thereto (the Declaration of Trust or such articles of
incorporation, as amended, of each Borrower being hereinafter referred to as
the "Charter" of such Borrower) and the by-laws of each Borrower and all
amendments thereto (the "By-laws" of such Borrower), in each case as in
effect on the date hereof,
(d) The other documents furnished by each Borrower pursuant to
Section 5.01 of the Credit Agreement,
(e) Certificates of the Secretary of State of Connecticut, dated
_________, 1996, attesting to the continued existence and good standing of CL&P
in that state, and
(f) Certificate of the Secretary of the Commonwealth of
Massachusetts, dated October 22, 1996, attesting to the continued existence of
WMECO in that state, and
(g) Certificate of the Secretary of the Commonwealth of
Massachusetts, dated October 23, 1996, attesting, among other things, to the
filing of necessary certificates required to be filed by NU under Chapter 182
of the General Laws of the Commonwealth of Massachusetts.
In addition, we have examined the originals, or copies certified to our
satisfaction, of such other corporate or other similar records of the Borrowers
and NUSCO, certificates of public officials and of officers of the Borrowers
and NUSCO, and such other agreements, instruments and other documents, as we
have deemed necessary as a basis for the opinions expressed below. In our
examination of such agreements, instruments and documents, we have assumed the
genuineness of all signatures, the authenticity of all agreements, instruments
and documents submitted to us as originals, and the conformity to original
agreements, instruments and documents of all agreements, instruments and
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such copies. As to questions of fact material
to such opinions, we have assumed without verification and relied upon the
accuracy of the representations as to factual matters set forth in the Credit
Agreement and in certificates of each Borrower or their respective officers or
of public officials. Nothing has come to our attention, however, calling into
question the accuracy of such representations.
We have assumed the due execution and delivery, pursuant to due
authorization, by the Banks, the Administrative Agent and the Co-Agents of the
Credit Agreement.
The opinions set forth herein are limited to the laws of the States of
Connecticut and New York, the Commonwealth of Massachusetts and the Federal
laws of the United States. Insofar as the opinions herein expressed are
dependent upon matters arising under the laws of the State of New Hampshire, we
have relied upon the opinion of Catherine E. Shively, Senior Counsel of PSNH.
In addition, with respect to our opinions in paragraphs 2 (other than as to
matters arising under the laws of the State of Connecticut), 3 (other than as
to matters arising under the laws of the State of Connecticut), 5(iii), 7, 9
and 10, we have relied on the opinion delivered to you today of Jeffrey C.
Miller, Assistant General Counsel of NUSCO. We believe our reliance on such
opinions is justified.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. CL&P 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, except where the failure so to qualify would not have a material
adverse effect on the financial condition, properties or operations of CL&P.
2. WMECO is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts, 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, except where the failure so to qualify would not have
a material adverse effect on the financial condition, properties or operations
of WMECO.
3. NU is validly organized and duly existing as a voluntary
association under the laws of the Commonwealth of Massachusetts, has the power
under the Declaration of Trust 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 all other jurisdictions where the nature of its business or the nature of
property owned or used by it makes such qualification necessary, except where
the failure so to qualify would not have a material adverse effect on the
financial condition, properties or operations of NU and its Principal
Subsidiaries taken as a whole.
4. Each of PSNH and NAEC is a corporation duly organized, validly
existing and in good standing under the laws of the State of New Hampshire, 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, except where the failure so to qualify would not have a material
adverse effect on the financial condition, properties or operations of, in the
case of PSNH, PSNH, or, in the case of NAEC, NAEC.
5. The execution, delivery and performance by each Borrower of the
Credit Agreement, and the execution, delivery and performance by each Borrower
of the Notes of such Borrower, are within each such Borrower's respective
corporate powers (or, in the case of NU, its powers under the Declaration of
Trust) and have been duly authorized by all necessary corporate or other
similar action, and, in all cases, do not and will not contravene (i) such
Borrower's Charter or By-laws (ii) any law, or (iii) to the best of our
knowledge, any contractual restriction contained in any material agreement
binding on or affecting such Borrower or its properties or any of its Principal
Subsidiaries or its properties. The Credit Agreement has been duly executed and
delivered by each Borrower and the Notes of each Borrower have been duly
executed and delivered by such Borrower.
6. The Credit Agreement is the legal, valid and binding obligation
of each Borrower enforceable against each Borrower in accordance with its terms,
and the Notes of each Borrower are the legal, valid and binding obligations of
such Borrower enforceable against such Borrower in accordance with their
respective terms.
7. There is no action or proceeding (including, without limitation,
any action or proceeding relating to any environmental protection laws or
regulations) pending or, to the best of our knowledge, threatened affecting any
Borrower or its properties, or any of its Principal Subsidiaries or its
properties, before any court, governmental agency or arbitrator (a) which
affects or purports to affect the legality, validity or enforceability of (i)
the Credit Agreement or any Note or (ii) the Existing Credit Facilities 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 such Borrower or, in the case of NU,
NU and its Principal Subsidiaries taken as a whole, except, for purposes of
this clause (b) only, such as is described in such Borrower's Disclosure
Documents or in Schedule II to the Credit Agreement.
8. No Governmental Approval referred to in clause (i) of the
definition thereof contained in the Credit Agreement is required to be obtained
or made (including without limitation any such Governmental Approval of the
Connecticut Department of Public Utility Control or the Massachusetts
Department of Public Utilities), except for an order of the Securities and
Exchange Commission pursuant to the Public Utility Holding Company Act of
1935, as amended (the "35 Act"), approving the transactions contemplated by the
Credit Agreement, which order has been duly obtained and is in full force and
effect. The period for appeal of such order has not expired; however, 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 thereto has actual knowledge that any of such transactions constitutes
a violation of the 35 Act or any rule or regulation thereunder. To the best of
our knowledge, no such stay exists, and we have no reason to believe that any
of such transactions constitutes any such violation.
9. Each Borrower and each of its Principal Subsidiaries have
obtained or made all Governmental Approvals referred to in clause (ii) of the
definition thereof contained in the Credit Agreement 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 or operations of such
Borrower or, in the case of NU, NU and its Principal Subsidiaries taken as a
whole, or any Principal Subsidiary and (iii) those which such Borrower is
diligently attempting in good faith to obtain, renew or extend, or the
requirement for which such Borrower is contesting in good faith by appropriate
proceedings or by other appropriate means; in each case described in the
foregoing clause (iii) except as is disclosed in such Borrower's Disclosure
Documents, such attempt or contest, and any delay resulting therefrom, is not
reasonably expected to have a material adverse effect on the financial
condition, properties or operations of such Borrower or, in the case of
NU, NU and its Principal Subsidiaries taken as a whole, 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.
10. All outstanding shares of capital stock having ordinary voting
power for the election of directors of CL&P, WMECO, PSNH and NAEC are owned of
record and beneficially by NU, free and clear of any Lien. NU is a "holding
company" (as defined in the 35 Act).
The opinions set forth above are subject to the following qualifications:
(a) Our opinion in paragraph 6 above (i) is subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally and 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 (ii) assume the binding effect of all
documents referred to therein on all parties thereto other than the Borrowers.
(b) We note further that, in addition to the effect of general
principles of equity described in subparagraph (a) 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 under circumstances where the conduct of such parties in the
circumstances in question is determined to have constituted negligence.
(c) We express no opinion herein as to (i) Section 10.05 of the
Credit 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.
We are aware that King & Spalding will rely upon this opinion in
rendering their opinion furnished pursuant to Section 5.01 (a) (viii)(C) of the
Credit Agreement and we hereby authorize such reliance.
Very truly yours,
<PAGE>
EXHIBIT 5.01B-1
[Form of Opinion of Jeffrey C. Miller,
Assistant General Counsel of NUSCO]
November __, 1996
To each of the Lenders and Co-Agents
parties to the Credit Agreement referred
to below and to Citibank, N.A.
as Administrative Agent under
such Credit Agreement
Ladies and Gentlemen:
I am the Assistant General Counsel of Northeast Utilities Service
Company ("NUSCO"). This opinion is furnished to you pursuant to Section
5.01(a)(viii)(B) of the Credit Agreement dated as of November __, 1996 (the
"Credit Agreement") among Northeast Utilities ("NU"), The Connecticut Light and
Power Company ("CL&P") and Western Massachusetts Electric Company ("WMECO"; NU,
CL&P and WMECO, each being a "Borrower", and collectively, the "Borrowers"),
the Banks and Co-Agents named therein and Citibank, N.A. as Administrative
Agent for the Lenders thereunder. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
I have examined or caused to be examined by counsel associated with or
engaged by me, including counsel employed by NUSCO, a counterpart of the Credit
Agreement marked "Execution Copy" and the forms of notes attached thereto as
Exhibits, together with the originals, or copies certified to my satisfaction,
of such corporate or other similar records of the Borrowers and NUSCO,
certificates of public officials and of officers of the Borrowers and
NUSCO, and such other 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, 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 Credit
Agreement and in certificates of each Borrower or its respective officers or of
public officials. Nothing has come to my attention, however, calling into
question the accuracy of such representations.
I have assumed the due execution and delivery, pursuant to due
authorization, by the Banks, the Administrative Agent and the Co-Agents of the
Credit Agreement.
I am qualified to practice law in the State of New York and for
purposes of this opinion I do not purport to be an expert on any laws other
than the laws of the State of New York, including any political subdivision
thereof, and the Federal laws of the United States. Insofar as the opinions
herein expressed are dependent upon matters arising under the laws of the
Commonwealth of Massachusetts or concern the internal affairs of NU or WMECO, I
have relied to the extent I deemed such reliance proper upon the opinion
delivered to you today of Richard Early, Senior Counsel of NUSCO. In addition,
insofar as the opinions herein expressed are dependent upon matters arising
under the laws of the State of New Hampshire or concern the internal affairs of
PSNH and NAEC, I have relied to the extent I have deemed such reliance
proper upon the opinion delivered to you today of Catherine E. Shively, Senior
Counsel of PSNH.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. WMECO is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Massachusetts, 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, except where the failure so to qualify would not have
a material adverse effect on the financial condition, properties or operations
of WMECO.
2. NU is validly organized and duly existing as a voluntary
association under the laws of the Commonwealth of Massachusetts, has the power
under its declaration of trust, as amended, 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 all other jurisdictions where the nature of its business or
the nature of property owned or used by it makes such qualification necessary,
except where the failure so to qualify would not have a material adverse effect
on the financial condition, properties or operations of NU and its Principal
Subsidiaries taken as a whole.
3. To the best of my knowledge, the execution, delivery and
performance by each Borrower of the Credit Agreement, and the execution,
delivery and performance by each Borrower of the Notes of such Borrowers, do not
and will not contravene any contractual restriction contained in any material
agreement binding on or affecting such Borrower or its properties or any of its
Principal Subsidiaries or its properties, and such execution, delivery and
performance do not and will not result in or require the creation of any Lien
upon or with respect to any of such Borrower's properties.
4. There is no action or proceeding (including, without limitation,
any action or proceeding relating to any environmental protection laws or
regulations) pending or, to the best of my knowledge, threatened affecting any
Borrower or its properties, or any of its Principal Subsidiaries or its
properties, before any court, governmental agency or arbitrator (a) which
affects or purports to affect the legality, validity or enforceability of (i)
the Credit Agreement or any Note or (ii) the Existing Credit Facilities or
(iii) 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 such Borrower or, in the case
of NU, NU and its Principal Subsidiaries taken as a whole, except, for purposes
of this clause (b) only, such as is described in such Borrower's Disclosure
Documents or in Schedule II to the Credit Agreement.
5. No Governmental Approval referred to in clause (i) of the
definition thereof contained in the Credit Agreement is required to be obtained
or made (including without limitation any such Governmental Approval of the
Connecticut Department of Public Utility Control or the Massachusetts
Department of Public Utilities), except for an order of the Securities and
Exchange Commission pursuant to the Public Utility Holding Company Act of
1935, as amended (the "35 Act"), approving the transactions contemplated by the
Credit Agreement, which order has been duly obtained and is in full force and
effect. The period for appeal of such order has not expired; however, 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 thereto has actual knowledge that any of such transactions constitutes
a violation of the 35 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.
6. Each Borrower and each of its Principal Subsidiaries have
obtained or made all Governmental Approvals referred to in clause (ii) of the
definition thereof contained in the Credit Agreement 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 or operations of such
Borrower or, in the case of NU, NU and its Principal Subsidiaries taken as a
whole, or any Principal Subsidiary and (iii) those which such Borrower is
diligently attempting in good faith to obtain, renew or extend, or the
requirement for which such Borrower is contesting in good faith by appropriate
proceedings or by other appropriate means; in each case described in the
foregoing clause (iii), except as is disclosed in such Borrower's Disclosure
Documents, such attempt or contest, and any delay resulting therefrom, is not
reasonably expected to have a material adverse effect on the financial
condition, properties or operations of such Borrower or, in the case of
NU, NU and its Principal Subsidiaries taken as a whole, 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.
7. All outstanding shares of capital stock having ordinary voting
power for the election of directors of CL&P, WMECO, PSNH and NAEC are owned of
record and beneficially by NU, free and clear of any Lien. NU is a "holding
company" (as defined in the 35 Act).
I have generally reviewed and discussed with certain officers and
employees of, and counsel and independent public accountants for, the Borrowers
and NUSCO, the statements set forth at Tab I in the Information Memorandum
under the headings "Business Overview - Regulatory Issues - Rate Settlement"
and "Dividend Paying Ability" (excluding the specific computations and
projections included therein). On the basis of such review (but without
independent check and verification), in my opinion such statements (excluding
the specific computations and projections included therein) fairly summarize
the legal matters, documents or proceedings (or portions thereof) referred to
under such headings, and such summaries, reviewed together with the Borrowers'
Disclosure Documents, do not omit to state any material fact necessary to make
such summaries not misleading in light of the circumstances under which
such statements were made.
I am aware that Day, Berry & Howard and King & Spalding may rely upon
the opinions set forth herein in rendering their opinions furnished pursuant to
Sections 5.01 (a) (viii) (A) and (C), respectively, of the Credit Agreement,
and I hereby authorize such reliance.
Very truly yours,
<PAGE>
EXHIBIT 5.01B-2
[Form of Opinion of Catherine E. Shively, Senior Counsel
of PSNH]
November __ 1996
To each of the Lenders and Co-Agents
parties to the Credit Agreement referred
to below and to Citibank, N.A.
as Administrative Agent under
such Credit Agreement
Ladies and Gentlemen:
I am a Senior Counsel of Public Service Company of New Hampshire
("PSNH"). This opinion is furnished to you pursuant to Section
5.01(a)(viii)(B) of the Credit Agreement dated as of November ___ 1996 (the
"Credit Agreement") among Northeast Utilities ("NU"), The Connecticut Light and
Power Company ("CL&P") and Western Massachusetts Electric Company ("WMECO"; NU,
CL&P and WMECO, each being a "Borrower", and collectively, the "Borrowers"),
the Banks and Co-Agents named therein and Citibank, N.A. as Administrative
Agent for the Lenders thereunder. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein as therein defined.
I have examined a counterpart of the Credit Agreement marked "Execution
Copy" and the forms of Notes attached thereto as Exhibits, together with the
originals, or copies certified to my satisfaction, of such corporate or other
similar records of PSNH and North Atlantic Energy Corporation ("NAEC"),
certificates of public officials and of officers of PSNH and NAEC, and
such other 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, 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.
I am qualified to practice law in the State of New Hampshire, and for
purposes of this opinion I do not purport to be an expert on any laws other
than the laws of the State of New Hampshire, including any political
subdivision thereof.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
1. Each of PSNH and NAEC is a corporation duly organized, validly
existing and in good standing under the laws of the State of New Hampshire, 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, except where the failure so to qualify would not have a material
adverse effect on the financial condition, properties or operations of, in the
case of PSNH, PSNH, or, in the case of NAEC, NAEC.
2. There is no action or proceeding (including, without limitation,
any action or proceeding relating to any environmental protection laws or
regulations) pending or, to the best of my knowledge, threatened affecting
PSNH, NAEC or their respective properties before any court, governmental agency
or arbitrator 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 PSNH or NAEC,
except as is described in NU's Disclosure Documents or in Schedule II to the
Credit Agreement.
3. Each of PSNH and NAEC has obtained or made all Governmental
Approvals referred to in clause (ii) of the definition thereof contained in the
Credit Agreement 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 or operations of PSNH or NAEC, as the case may be, and
(iii) those which PSNH or NAEC, as the case may be, is diligently attempting in
good faith to obtain, renew or extend, or the requirement for which PSNH or
NAEC, as the case may be, is contesting in good faith by appropriate
proceedings or by other appropriate means; in each case described in the
foregoing clause (iii), except as is disclosed in NU's Disclosure Documents
such attempt or contest, and any delay resulting therefrom, is not reasonably
expected to have a material adverse effect on the financial condition,
properties or operations of PSNH or NAEC, as the case may be, 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.
I am aware that Day, Berry & Howard, Jeffrey C. Miller and King &
Spalding may rely upon the opinions set forth herein in rendering their
opinions furnished pursuant to Sections 5.01(a)(viii)(A), (B) and (C),
respectively, of the Credit Agreement, and I hereby authorize such reliance.
Very truly yours,
<PAGE>
EXHIBIT 5.01B-3
[Form of Opinion of Richard Early of NUSCO]
November __ 1996
To each of the Lenders and Co-Agents
parties to the Credit Agreement referred
to below and to Citibank, N.A.
as Administrative Agent under
such Credit Agreement
Ladies and Gentlemen:
I am a Senior Counsel of Northeast Utilities Service Company ("NUSCO").
This opinion is furnished to you pursuant to Section 5.01(a)(viii)(B) of the
Credit Agreement dated as of November __, 1996 (the "Credit Agreement") among
Northeast Utilities ("NU"), The Connecticut Light and Power Company ("CL&P")
and Western Massachusetts Electric Company ("WMECO"; NU, CL&P and WMECO, each
being a "Borrower", and collectively, the "Borrowers"), the Banks and Co-Agents
named therein and Citibank, N.A. as Administrative Agent for the Lenders
thereunder. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
In that connection, I have examined:
(a) The declaration of trust of NU and all amendments thereto (the
"Declaration of Trust") and the articles of incorporation of
WMECO and all amendments thereto and the by-laws of WMECO and
all amendments thereto, in each case as in effect on the date
hereof;
(b) Certificate of the Secretary of the Commonwealth of
Massachusetts, dated October 22, 1996, attesting to the
continued existence of WMECO in that state; and
(c) Certificate of the Secretary of the Commonwealth of
Massachusetts, dated October 23, 1996, attesting, among other
things, to the filing of necessary certificates required to be
filed by NU under Chapter 182 of the General Laws of the
Commonwealth of Massachusetts.
In addition, I have examined the originals, or copies certified to my
satisfaction, of such corporate or other similar records of WMECO and NU,
certificates of public officials and of officers of WMECO and NU, and such
other 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, 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 Credit
Agreement and in certificates of WMECO and NU or their respective officers.
Nothing has come to my attention, however, calling into question the accuracy
of such representations.
I am qualified to practice law in the Commonwealth of Massachusetts and
the State of Connecticut, and for purposes of this opinion I do not purport to
be an expert on any laws other than the laws of the Commonwealth of
Massachusetts, including any political subdivision thereof.
Based upon the foregoing and upon such investigation as I have deemed
necessary, I am of the following opinion:
(1) that WMECO is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts, 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, except where the failure so to qualify would not have a material
adverse effect on the financial condition, properties or operations of WMECO.
(2) that NU is validly organized and duly existing as a voluntary
association under the laws of the Commonwealth of Massachusetts, has the power
under the Declaration of Trust 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 all other jurisdictions where the nature of its business or the nature of
property owned or used by it makes such qualification necessary, except where
the failure so to qualify would not have a material adverse effect on the
financial condition, properties or operations of NU and its Principal
Subsidiaries taken as a whole.
In giving the opinion set forth in paragraph 2 above, I have relied on
Commissioner of Corporations and Taxation v. City of Springfield, 321 Mass 31
(1947), in which the Massachusetts Supreme Judicial Court, after discussing the
provisions of the Declaration of Trust of NU (then named "Western Massachusetts
Companies") at pages 39 and 40, made the following statement: "The indenture
created a trust and not a partnership." Nothing has occurred since the date of
that decision which in my opinion affects the conclusiveness of that statement.
I am aware that Day, Berry & Howard, Jeffrey C. Miller and King &
Spalding may rely upon the opinions set forth herein in rendering their
opinions furnished pursuant to Sections 5.01(a)(viii)(A), (B) and (C),
respectively, of the Credit Agreement, and I hereby authorize such reliance.
Very truly yours,
<PAGE>
EXHIBIT 5.01C
[Form of Opinion of King & Spalding,
Special New York Counsel to the
Administrative Agent]
November 21, 1996
To each of the Lenders parties to the Credit
Agreement referred to below and to
Citibank, N.A. as Administrative Agent
under the Credit Agreement
Northeast Utilities, The Connecticut Light and Power Company
and Western Massachusetts Electric Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 5.01(a)(xiii)(C)
of the Credit Agreement dated as of November __, 1996 (the "Credit Agreement")
among Northeast Utilities, The Connecticut Light & Power Company and Western
Massachusetts Electric Company (each being a "Borrower", and collectively, the
"Borrowers"), the Banks and Agents named therein and certain Lenders from time
to time party thereto and Citibank, N.A., as Administrative Agent for the
Lenders. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
We have acted as special New York counsel to the Administrative Agent
in connection with the preparation, execution and delivery of the Credit
Agreement.
In that connection, we have examined the following documents:
(a) counterparts of the Credit Agreement, executed by each
of the parties thereto,
(b) the Notes of each Borrower payable to the order of each
Bank, executed by the Borrower party thereto, and
(c) the other documents furnished to the Administrative
Agent pursuant to Section 5.01(a) of the Credit Agreement, including,
without limitation, the opinions of counsel (collectively, the
"Opinions") delivered pursuant to Sections 5 .01(a)(viii)(A)
and (B) of the Credit Agreement.
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. We have further assumed that you have evaluated, and are
satisfied with, the creditworthiness of each of the Borrowers and the business
and financial terms evidenced by the Credit Agreement. We have relied, as to
factual matters, on the documents we have examined.
To the extent that our opinions expressed below involve conclusions as
to matters governed by law other than the law of the State of New York, we have
relied upon the Opinions 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 Opinions.
Based upon and subject to the foregoing, and subject to the
qualifications set forth below, we are of the following opinion:
1. The Credit Agreement is the legal, valid and binding obligation
of each Borrower, enforceable against each Borrower in accordance with its
terms.
2. The Notes of each Borrower, upon delivery for value received,
will be the legal, valid and binding obligation of such Borrower, enforceable
against such Borrower in accordance with their terms.
Our opinion is subject to the following qualifications:
(a) The enforceability of the obligations of each Borrower under the
Credit Agreement and the Notes is subject to the effect of any applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar law affecting creditors' rights generally.
(b) The enforceability of the obligations of each Borrower under the
Credit Agreement and the Notes is subject 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). Such principles of equity are of general
application, and, in applying such principles, a court, among other things,
might not allow a contracting party to exercise remedies in respect of a
default deemed immaterial, or might decline to order an obligor to perform
covenants.
(c) We note further that, in addition to the application of
equitable principles described 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 under circumstances involving securities laws or where the
conduct of such parties is determined to have constituted negligence.
(d) We express no opinion herein as to (i) Section 10.05 of the
Credit 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, (iv) the enforceability of rights to
indemnity under federal or state securities laws or (v) the enforceability of
waivers by parties of their respective rights and remedies under law.
(e) Our opinions expressed above are limited to the law of the State
of New York, and we do not express any opinion herein concerning any other law.
The foregoing opinion is solely for your benefit and may not be relied
upon by any other Person or entity, other than any Person that may become a
Lender under the Credit Agreement after the date hereof.
Very truly yours,
<PAGE>
EXHIBIT 10.07
ASSIGNMENT AND ACCEPTANCE
Dated ,
Reference is made to the Credit Agreement, dated as of November ,
1996 (said Agreement, as it may hereafter be amended or otherwise modified from
time to time, being the "Credit Agreement"), among Northeast Utilities, The
Connecticut Light and Power Company and Western Massachusetts Electric Company
(collectively, the "Borrowers"), the Banks and Agents named therein, and
Citibank, N.A., as Administrative Agent. Capitalized terms used herein and
not defined shall have the meaning assigned to such terms in the Credit
Agreement. Pursuant to the Credit Agreement, ________________ (the "Assignor")
has committed to make advances ("Advances") to the Borrowers, which Advances
are evidenced by the Notes issued by the Borrowers to the Assignor.
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, a portion of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (other than in respect of Competitive Advances and Competitive Notes)
which represents the percentage interest specified on Schedule 1 of all
outstanding rights and obligations of the Lenders under the Credit Agreement
(the "Assigned Interest"), including, without limitation, such percentage
interest in the Commitment as in effect on the Effective Date, the Advances
outstanding on the Effective Date and the Notes. After giving effect to such
sale and assignment, the Assignee's Commitment will be as set forth in Section
2 of Schedule 1. The effective date of this sale and assignment shall be the
date specified on Schedule 1 hereto (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, the principal amount of the Advances outstanding under the Credit
Agreement which are being assigned hereunder, and the sale and assignment
contemplated hereby shall thereupon become effective. 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 Credit Agreement and
the Notes to the extent of the Assigned Interest, including without limitation
(i)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 principal,
interest, fees, indemnities in respect of claims arising after the Effective
Date (subject to Section 10.04 of the Credit Agreement), increased costs,
additional amounts or otherwise; (ii)the right to vote and to instruct the
Administrative Agent under the Credit Agreement based on the Assigned Interest;
(iii)the right to set-off and to appropriate and apply deposits of the
Borrowers as set forth in the Credit Agreement; and (iv) 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 Borrowers, the Administrative Agent or
otherwise) in the same funds in which such amount is received by the Assignor.
3. The Assignor (i) 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; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the Notes or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or
the Notes or any other instrument or document furnished pursuant thereto;
(iii)makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrowers or the performance or
observance by the Borrowers of any of their respective obligations under the
Credit Agreement or the Notes or any other instrument or document furnished
pursuant thereto; (iv)makes no other representation or warranty with respect
to any Borrower, the Credit Agreement, the Notes or any other instrument or
document furnished pursuant thereto, except as expressly set forth in
clause(i) of this Section 3; and (v)attaches its Notes which are subject to
the assignment being made hereby and requests that the Administrative Agent
obtain new Notes from the Borrowers in accordance with the terms of subsection
10.07(d) of the Credit Agreement.
4. The Assignee (i)confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 6.01(f) and (g) 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 and Acceptance; (ii)agrees that it will, independently
and without reliance upon the Administrative Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement and the Notes; (iii)appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement and the Notes as are delegated
to the Administrative Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (iv)agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement and the Notes are required to be performed by it as a
Lender; (v)specifies as its Domestic Lending Office (and address for notices)
and Eurodollar Lending Office the offices set forth beneath its name on the
signature pages hereof; and (vi)attaches the forms prescribed by the Internal
Revenue Service of the United States certifying as to the Assignee's status for
purposes of determining exemption from United States withholding taxes with
respects to all payments to be made to the Assignee under the Credit Agreement
(and the Notes) or such other documents as are necessary to indicate that all
such payments are subject to such rates at a rate reduced by an applicable tax
treaty.
5. Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. Upon such acceptance and recording and receipt of
any consent of the Borrower required pursuant to subsection 10.07(a), as of the
Effective Date, the Assignee shall be a party to the Credit Agreement and, to
the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the Notes and the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement and the Notes.
6. Upon such acceptance, recording and consent, from and after the
Effective Date, the Administrative Agent shall make all payments under the
Credit Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and fees
with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Notes for periods prior to the Effective Date directly between themselves.
7. This Lender Assignment shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the parties hereto have caused this Lender
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.
<PAGE>
Schedule 1
to
Lender Assignment
Dated , 19
Section 1.
(a) Total Credit Agreement Commitments: $________
(b) Percentage Interest:{1} _________%
(c) Amount of Assigned Share: $________
Section 2.
Assignee's Commitment: $________
Section 3.
Effective Date:{2} __________, 19__
[NAME OF ASSIGNOR], as Assignor
By
Title:
[NAME OF ASSIGNEE], as Assignee
By
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
Address]
Accepted this day
of ,
CITIBANK, N.A.
as Administrative Agent
By
Title:
**FOOTNOTES**
{1} Specify percentage to no more than 8 decimal points.
{2} See Section 10.07(a). Such date shall be at least 5 Business Days after
the execution of this Lender Assignment.
<PAGE>
Consented to:{3}
NORTHEAST UTILITIES
By:
Name:
Title:
THE CONNECTICUT LIGHT AND POWER
COMPANY
By:
Name:
Title:
WESTERN MASSACHUSETTS ELECTRIC
COMPANY
By:
Name:
Title:
**FOOTNOTES**
{3} Consent of the Borrower is required for all assignments except for any
assignment by a Lender to any of its Affiliates or to any other Lender or
any of its Affiliates.
<PAGE>
EXHIBIT B.8
[EXECUTION COPY]
COLLATERAL AGENCY AGREEMENT
among
NORTHEAST UTILITIES
THE CONNECTICUT LIGHT
AND POWER COMPANY
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
as Borrowers
THE FINANCIAL INSTITUTIONS NAMED HEREIN
and
CITIBANK, N.A.
as Collateral Agent and Administrative Agent
Dated as of May 30, 1997
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . 2
1.01. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II SECURITY . . . . . . . . . . . . . . . . . 3
2.01. Purpose of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.02. Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III DEFAULTS; DISTRIBUTIONS . . . . . . . . . . . . . 3
3.01. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.02. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.03. Marshalling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV AGENCY. . . . . . . . . . . . . . . . . . 5
4.01. Appointment and Duties of Collateral Agent. . . . . . . . . . . . . . . 5
4.02. Rights of Collateral Agent. . . . . . . . . . . . . . . . . . . . . . . 6
4.03. Lack of Reliance on the Collateral Agent. . . . . . . . . . . . . . . . 7
4.04. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.05. The Collateral Agent in its Individual Capacity . . . . . . . . . . . . 8
4.06. Resignation or Removal of the Collateral Agent. . . . . . . . . . . . . 8
ARTICLE V MISCELLANEOUS. . . . . . . . . . . . . . . . 9
5.01. Amendments; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.02. Addresses for Notices . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.03. Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.04. Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.05. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.06. Governing Law; Terms. . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.07. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . S-1
COLLATERAL AGENCY AGREEMENT
THIS COLLATERAL AGENCY AGREEMENT, dated as of May 30, 1997, among:
(i) NORTHEAST UTILITIES, an unincorporated voluntary business association
organized under the laws of the Commonwealth of Massachusetts ("NU");
(ii) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation organized
under the laws of the State of Connecticut ("CL&P");
(iii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation organized
under the laws of the Commonwealth of Massachusetts ("WMECO";
CL&P, NU and WMECO, each being a "Borrower", and collectively,
the "Borrowers");
(iv) The financial institutions (the "Banks") listed on the signature
pages hereof and the other Lenders from time to time party hereto;
and
(v) CITIBANK, N.A. ("Citibank"), as Administrative Agent for the Lenders
under the Credit Agreement referred to below and as collateral agent
hereunder for the Lenders (in such capacity, together with its
successors, the "Collateral Agent").
PRELIMINARY STATEMENTS
WHEREAS, the Banks, the Borrowers and the Administrative Agent have
entered into that certain Credit Agreement dated as of November 21, 1996 (said
Credit Agreement, as amended from time to time in accordance with its terms,
being the "Credit Agreement");
WHEREAS, the Banks, the Borrowers and the Administrative Agent amended the
Credit Agreement and waived certain provisions contained therein pursuant to
that certain First Amendment and Waiver dated as of the date hereof (the "First
Amendment");
WHEREAS, pursuant to the First Amendment, the obligations of CL&P and
WMECO are being secured by their respective Collateral FMBs issued on the date
hereof to the Collateral Agent for the benefit of the Lenders;
WHEREAS, Citibank has been designated and appointed the Collateral Agent
under the Collateral FMBs and the other Loan Documents as provided for herein
and in the Collateral FMBs; and
WHEREAS, the Bank, the Borrowers, the Administrative Agent and the
Collateral Agent are entering into this Agreement to set forth the duties and
powers of the Collateral Agent;
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. Terms used herein and defined in the Credit
Agreement shall have the meanings therein indicated except that the terms
defined in the preamble and the Preliminary Statements and the following terms
shall have the meanings set forth herein:
"Agreement" means this Collateral Agency Agreement, as amended from
time to time in accordance with its terms.
"Principal Office" means the office of the Collateral Agent presently
located at 399 Park Avenue, New York, New York 10043, or such other office
as the Collateral Agent may designate from time to time.
"Security Documents" means, (i) with respect to CL&P, the Collateral
FMBs issued by CL&P from time to time to the Collateral Agent for the
benefit of the Lenders and the CL&P Indenture and (ii) with respect to
WMECO, the Collateral FMBs issued by WMECO from time to time to the
Collateral Agent for the benefit of the Lenders and the WMECO Indenture.
"Secured Obligations" means, (a) with respect to CL&P, all
obligations of CL&P, now or hereafter existing, to pay (i) principal
amount of, and interest (including, without limitation, interest accruing
at the applicable default rate provided for in the Amended Credit
Agreement) on, all outstanding Advances made to CL&P by the Lenders and
(ii) CL&P's obligations to pay the Facility Fee pursuant to Section 2.02(b)
of the Credit Agreement; provided, however, the obligations of CL&P under
this clause (a)(ii) shall not exceed $410,000, and (b) with respect to
WMECO, all obligations of WMECO, now or hereafter existing, to pay (i)
principal amount of, and interest (including, without limitation, interest
accruing at the applicable default rate provided for in the Credit
Agreement) on, all outstanding Advances made to WMECO by the Lenders and
(ii) WMECO's obligations to pay the Facility Fee pursuant to Section
2.02(b) of the Credit Agreement; provided, however, the obligations of
WMECO under this clause (b)(ii) shall not exceed $196,000.
ARTICLE II
SECURITY
SECTION 2.01. Purpose of Agreement. This Agreement sets forth the duties
and powers of the Collateral Agent with respect to the Collateral FMBs and its
exercise for the benefit of the Lenders of its rights and remedies thereunder
and under the other Loan Documents or otherwise available to the Collateral
Agent.
SECTION 2.02. Collateral. The Lenders are entitled, pursuant to the terms
hereof and of the other Loan Documents, to the benefits of any Collateral held
or to be held by or for the benefit of the Collateral Agent. CL&P and WMECO
each hereby agree to deliver or cause to be delivered to the Collateral Agent,
promptly upon the execution and delivery thereof, an originally executed and
authenticated Collateral FMB. In addition, promptly upon the execution and
delivery of any additional Collateral FMBs, CL&P and WMECO (as the case may be)
will deliver or cause to be delivered to the Collateral Agent an originally
executed and authenticated copy of such additional Collateral FMBs. The
Collateral Agent shall keep all Collateral FMBs delivered to it at its
Principal Office and shall permit any Lender to inspect such Collateral FMBs
upon prior written request during business hours.
ARTICLE III
DEFAULTS; DISTRIBUTIONS
SECTION 3.01. Default. (a) Unless an Event of Default shall have
occurred and be continuing, the Collateral Agent shall not be obligated to take
any action under this Agreement or any of the Security Documents, except for
the performance of such duties as are specifically set forth herein or therein.
(b) If any Event of Default shall have occurred and be continuing with
respect to CL&P or WMECO, the Collateral Agent shall, at the request of, or may
with the consent of, the Lenders entitled to make such request, exercise in
respect of the Collateral FMBs of such Borrower, in addition to other rights
and remedies provided for herein or otherwise available to it, all the rights
and remedies available to the Collateral Agent under the applicable Security
Documents and under the other Loan Documents or otherwise available to the
Collateral Agent.
(c) Subject to paragraph (e) below, the rights and remedies of the
Collateral Agent with respect to CL&P and WMECO shall include (without
limitation of the other rights and remedies available to the Collateral Agent
under the Loan Documents or otherwise available to it), (i) the right to cause
all or a portion of the Collateral FMBs (including without limitation all
accrued interest thereon) of such Borrower to become immediately due and
payable, (ii) the right to collect all amounts payable by such Borrower under
the Collateral FMBs for the benefit of the Lenders, and (iii) the right to
exercise all rights and remedies of a "holder" of a Collateral FMB under the
applicable First Mortgage Indenture of such Borrower.
(d) Notwithstanding any written instructions received by the Collateral
Agent pursuant to paragraph (b) above, and except as expressly provided in the
Credit Agreement, the Collateral Agent shall not release any Collateral or
portion thereof or lien thereon without the consent of the Lenders.
(e) It is understood that the actual indebtedness of any Borrower
evidenced by the Collateral FMBs of such Borrower shall be limited to, and in
no event exceed, the Secured Obligations of such Borrower from time to time
outstanding; that at no time shall any claim be made on the Collateral FMBs of
such Borrower in excess of the aggregate unpaid Secured Obligations of such
Borrower outstanding at such time and that, to the extent the actual
indebtedness of such Borrower evidenced by the Collateral FMBs of such Borrower
exceed the Secured Obligations of such Borrower, neither the Collateral Agent
nor any Lender shall have any right under, or right to exercise any right
granted to the holders of such excess Collateral FMBs of such Borrower under,
the applicable First Mortgage Indenture.
SECTION 3.02. Distributions. (a) If any Event of Default shall have
occurred and be continuing with respect to CL&P or WMECO and if the
Administrative Agent shall have declared the Notes of such Borrower, all
interest thereon and all other amounts payable by such Borrower under the Loan
Documents to be immediately due and payable thereunder (or if such amounts have
otherwise automatically become immediately due and payable), all Collateral of
such Borrower held by the Collateral Agent and all cash proceeds received by
the Collateral Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral of such Borrower may, in the
discretion of the Collateral Agent, be distributed in whole or in part to the
Administrative Agent for the payment of principal, interest and the Facility
Fee to the respective Lenders to whom the same are payable for the account of
their respective Applicable Lending Offices, in each case to be applied in
accordance with the terms of the Credit Agreement, unless otherwise directed by
the Lenders.
(b) In the event that funds to be distributed by the Collateral Agent
shall be insufficient to pay in full the Secured Obligations of CL&P or WMECO,
as the case may be, such Borrower shall remain liable to the extent of any
deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of Secured Obligations owed by such Borrower to the Lenders.
SECTION 3.03. Marshalling. The Collateral Agent shall not be required to
marshall any present or future security for the Secured Obligations or to
resort to any security of any Borrower in any particular order; and all of the
Collateral Agent's rights hereunder and in respect of such security shall be
cumulative and in addition to all other rights, however existing or arising.
ARTICLE IV
AGENCY
SECTION 4.01. Appointment and Duties of Collateral Agent. (a) The
Lenders hereby designate and appoint Citibank to act as the Collateral Agent
hereunder and under the other Loan Documents, and each of the Lenders hereby
authorizes Citibank as such Collateral Agent, to take such actions on its
behalf hereunder and under the provisions of the other Loan Documents and to
exercise such powers and perform such duties expressly delegated to the
Collateral Agent hereunder and under the other Loan Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in the Loan Documents, the Collateral Agent
shall not have any duties or responsibilities, except those expressly set forth
herein and in the other Loan Documents, or any fiduciary relationship with any
Lender, and no implied covenants, functions or responsibilities shall be read
into the Loan Documents or otherwise exist against the Collateral Agent. The
Collateral Agent shall not be liable for any action taken or omitted to be
taken by it hereunder or under any Loan Document, or in connection herewith or
therewith, or in connection with the Collateral, unless caused by its gross
negligence or willful misconduct.
(b) The Collateral Agent will give notice to the Lenders of any action
taken by it under any Loan Document; such notice shall be given promptly after
the taking of any such action.
(c) Notwithstanding anything to the contrary in this Agreement or any of
the other Loan Documents and in any event subject to the provisions of
Section 5.01 hereof, the Collateral Agent, in its own capacity and in its
capacity as a "holder" of the Collateral FMBs under the First Mortgage
Indentures, shall not be required to exercise any rights or remedies under any
of the Loan Documents or give any consent under any of the Loan Documents or
enter into any agreement amending, modifying, supplementing or waiving any
provision of any Loan Document unless it shall have been directed to do so by
the Majority Lenders.
(d) Except for the safe custody of the Collateral FMBs and for the
accounting for moneys actually received by it hereunder, the Collateral Agent
shall have no duty as to any Collateral, as to ascertaining or taking of any
action to be taken by a "holder" of the Collateral FMBs under the First
Mortgage Indentures or other matters relative to the Collateral, whether or not
the Collateral Agent or any Lender 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 Collateral. The Collateral
Agent shall be deemed to have exercised reasonable care in the custody and
presentation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that which the Collateral Agent accords its
own property.
(e) CL&P and WMECO shall each promptly forward to the Collateral Agent
copies of all notices, certificates and other documents required to be
delivered by it to the Trustee pursuant to the terms of the First Mortgage
Indentures. The only obligation which the Collateral Agent shall have
hereunder with respect to such notices, certificates and other documents shall
be to promptly forward to the Lenders copies of any such notices, certificates
or documents.
SECTION 4.02. Rights of Collateral Agent. (a) The Collateral Agent may
execute and effect any of its duties under the Security Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
(b) Neither the Collateral Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action taken or omitted to be taken in good faith by it or such Person under or
in connection with any Security Document (except for its or such Person's own
gross negligence or willful misconduct), or (ii) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by any Borrower or any officer thereof contained in any Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Collateral Agent under or in connection with any
Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any Loan Document, or for any failure of any
Borrower to perform its obligations thereunder. The Collateral Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of any Loan Document or to inspect the properties, books or records of any
Borrower.
(c) The Collateral Agent shall be entitled to rely, and shall be fully
protected in relying upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrowers), independent
accountants and other experts selected by the Collateral Agent. The Collateral
Agent shall be fully justified in failing or refusing to take any action
hereunder or under any other Loan Document (i) if such action would, in the
opinion of the Collateral Agent, be contrary to law or the terms of this
Agreement or the other Loan Documents, (ii) if it shall not receive any such
advice or concurrence of the Administrative Agent or the Majority Lenders as it
deems appropriate, or (iii) if it shall not first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, under any Loan Document in accordance with a request of
either the Administrative Agent or the Majority Lenders, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Lenders.
(d) If, with respect to a proposed action to be taken by it, the
Collateral Agent shall determine in good faith that the provisions of this
Agreement relating to the functions or responsibilities or discretionary powers
of the Collateral Agent are or may be ambiguous or inconsistent, the Collateral
Agent shall notify the Lenders, identifying the proposed action and the
provisions that it considers are or may be ambiguous or inconsistent, and may
decline either to perform such function or responsibility or to exercise such
discretionary power unless it has received the written confirmation of the
Majority Lenders that the Majority Lenders concur in the circumstances that the
action proposed to be taken by the Collateral Agent is consistent with the
terms of this Agreement or is otherwise appropriate. Subject to the provisions
of Sections 3.01(b) and 5.01 hereof, the Collateral Agent shall be fully
protected in acting or refraining from acting upon the confirmation of the
Majority Lenders in this respect, and such confirmation shall be binding upon
the Collateral Agent and the other Lenders.
(e) No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION 4.03. Lack of Reliance on the Collateral Agent. Each Lender
acknowledges that it has, independently and without reliance upon the
Collateral Agent or any other Lender and based on the Information Memorandum
and other financial information referred to in Sections 6.01(f) and (g) and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into the Credit Agreement and the other
Loan Documents. Each Lender hereby acknowledges that it has received a copy of
each of the Security Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Collateral Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Collateral Agent
hereunder, the Collateral Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Borrowers which may come into the possession of the
Collateral Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
SECTION 4.04. Indemnification. The Lenders agree to indemnify the
Collateral Agent (to the extent not reimbursed by the Borrowers), ratably
according to the respective principal amounts of the Notes then held by each of
them (or if no Notes are at the time outstanding, ratably according to the
respective Commitments of the Lenders; if any Notes or Commitments are held by
any Borrower or Affiliates thereof, any ratable apportionment hereunder shall
exclude the principal amount of the Notes held by such Borrower(s) or
Affiliates or their respective Commitments (if any) hereunder), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Collateral Agent in its capacity as such in any way relating to or arising out
of this Agreement or any action taken or omitted by the Collateral Agent in its
capacity as such under this Agreement, provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Collateral Agent's gross negligence or willful misconduct. Without limitation
of the foregoing, each Lender agrees to reimburse the Collateral Agent promptly
upon demand for such Lender's ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Collateral Agent in connection with
the preparation, execution, delivery, administration, modification, amendment
or enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, the Loan
Documents to the extent that the Collateral Agent is entitled to reimbursement
for such expenses pursuant to Section 10.04 but is not reimbursed for such
expenses by the Borrowers.
SECTION 4.05. The Collateral Agent in its Individual Capacity. With
respect to its Commitment and the Note issued to it, Citibank shall have the
same rights and powers under the Loan Documents as any other Lender and may
exercise the same as though it were not the Collateral Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, any Borrower, any of their respective
subsidiaries and any Person who may do business with or own securities of any
Borrower or any such subsidiary, all as if Citibank were not the Collateral
Agent and without any duty to account therefor to the Lenders.
SECTION 4.06. Resignation or Removal of the Collateral Agent. The
Collateral Agent may resign at any time by giving written notice thereof to the
Lenders and the Borrowers, with any such resignation to become effective only
upon the appointment of a successor Collateral Agent pursuant to this Section
4.06. Upon any such resignation, the Majority Lenders shall have the right to
appoint a successor Collateral Agent, which shall be a Lender or another
commercial bank or trust company reasonably acceptable to the Borrowers
organized or licensed under the laws of the United States, or of any State
thereof. If no successor Collateral Agent shall have been so appointed by the
Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Collateral Agent's giving of notice of resignation, then the
retiring Collateral Agent may, on behalf of the Lenders, appoint a successor
Collateral Agent, which shall be a Lender or shall be another commercial bank
or trust company organized or licensed under the laws of the United States or
of any State thereof reasonably acceptable to the Borrowers. In addition to
the foregoing right of the Collateral Agent to resign, the Majority Lenders may
remove the Collateral Agent at any time, with or without cause, concurrently
with the appointment by the Majority Lenders of a successor Collateral Agent.
Upon the acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent and the execution and delivery by the Borrowers and
the successor Collateral Agent of an agreement relating to the fees (if any) to
be paid to the successor Collateral Agent in connection with its acting as
Collateral Agent hereunder, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Collateral Agent's resignation or removal hereunder as Collateral
Agent, the provisions of this Article IV shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent under
the Loan Documents. It is understood that in the event the Collateral Agent
shall resign, or be removed by the Majority Lenders, as provided in this
paragraph, the Collateral Agent shall resign, or be removed, as the case may
be, in its capacity as both "administrative agent" and "collateral agent" under
the Loan Documents and the successor Collateral Agent shall be the successor
Administrative Agent and the successor Collateral Agent under the Loan
Documents.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments; Etc. No amendment or waiver of any provision of
this Agreement nor consent to any departure by any Borrower therefrom shall in
any event be effective unless the same shall be made in accordance with
Section 10.01 of the Credit Agreement.
SECTION 5.02. Addresses for Notices. All notices and other communications
provided for hereunder shall be made in accordance with Section 10.02 of the
Credit Agreement.
SECTION 5.03. Binding Effect. This Agreement and the obligations of the
parties hereto shall be binding upon their respective successors and assigns,
and shall, together with the rights and remedies of the parties hereto, inure
to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 5.04. Transfers. Any Secured Party may at any time assign,
transfer, grant or sell participations in its rights and interests under the
Security Documents, subject, however, to the restrictions, if any, imposed on
the assignment, transfer, grant or sale of participations set forth in Section
10.07 of the Credit Agreement, whereupon any such transferee shall be deemed to
be a holder of a Secured Obligation, in each instance for all purposes of this
Agreement and entitled to all rights and benefits hereunder to the extent of
the interest so transferred.
SECTION 5.05. Termination. Upon the later of payment in full in cash of
the Secured Obligations or the Termination Date, this Agreement shall
terminate.
SECTION 5.06. Governing Law; Terms. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York except to
the extent that the validity or perfection of any security interest, or
remedies hereunder or under the other Loan Documents, in respect of any
particular Collateral are governed by the laws of a jurisdiction other than the
State of New York.
SECTION 5.07. 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 instrument.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
NORTHEAST UTILITIES
By:/s/ David R. McHale
Name: David R. McHale
Title: Assistant Treasurer
THE CONNECTICUT LIGHT AND
POWER COMPANY
By: /s/ David R. McHale
Name: David R. McHale
Title: Assistant Treasurer
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By: /s/ David R. McHale
Name: David R. McHale
Title: Assistant Treasurer
CITIBANK, N.A.,
as Administrative Agent, Collateral Agent and
Lender
By: /s/ Paul T. Addison
Name: Paul T. Addison
Title: Attorney in Fact
TORONTO DOMINION
(NEW YORK), INC.,
as Co-Agent and Lender
By: /s/ Katherine Lucey
Name: Katherine Lucey
Title: Director
FLEET NATIONAL BANK,
as Co-Agent and Lender
By: /s/ Suresh V. Chivukula
Name: Suresh V. Chivukula
Title: Sr. Vice President
CIBC INC.,
as Co-Agent and Lender
By: /s/ Denis P. O'Meara
Name: Denis P. O'Meara
Title: Director
THE FIRST NATIONAL BANK OF
CHICAGO, as Co-Agent and Lender
By: /s/ Madeleine N. Penber
Name: Madeleine N. Penber
Title: Corporate Banking Officer
BANKBOSTON, N.A.
(formerly known as THE FIRST NATIONAL BANK OF BOSTON),
as Lender
By: /s/ Frank T. Smith
Name: Frank T. Smith
Title: Director
BARCLAYS BANK PLC,
as Lender
By: /s/ Sydney G. Dennis
Name: Sydney G. Dennis
Title: Director
MELLON BANK, N.A.,
as Lender
By:/s/ A. J. Sabatelle
Name: A. J. Sabatelle
Title: First Vice President
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH,
as Lender
By: /s/ Paul R. Morrison
Name: Paul R. Morrison
Title: Vice President
By: /s/ Andrew N. Taylor
Name: Andrew N. Taylor
Title: Assistant Vice President
SWISS BANK CORPORATION,
NEW YORK BRANCH,
as Lender
By: /s/ Gary Riddell
Name: Gary Riddell
Title: Director
Credit Risk Management
By: /s/ James J. Diaz
Name: James J. Diaz
Title: Director
Banking Finance Support, N.A.
THE YASUDA TRUST AND BANKING CO., LTD.,
NEW YORK BRANCH,
as Lender
By: /s/ Rohn Laudenschlager
Name: Rohn Laudenschlager
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.,
as Lender
By: /s/ Karyssa M. Britton
Name: Karyssa M. Britton
Title: Vice President
Signature Page to Collateral Agency Agreement
