UNITED STATES OF AMERICA
BEFORE THE SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
In the Matter of
AMENDMENT TO
NORTHEAST UTILITIES ("NU")CERTIFICATE PURSUANT TO
WESTERN MASSACHUSETTS ELECTRIC COMPANY ("WMECO RULE 24
THE CONNECTICUT LIGHT AND POWER COMPANY ("CL&P")
File No. 70-08875
(Public Utility Holding
Company Act of 1935)
Pursuant to the requirements of Rule 24(a) of the Commission's regulations
under the Public Utility Holding Company Act of 1935, and with reference to
the transaction proposed in Post-Effective Amendment No. 13 (Amendment No.
15) to the Application/Declaration on Form U-1 (the "Amendment") in File No.
70-08875, NU, CL&P and WMECO hereby file this amendment to its Certificate
filed November 29, 1999 and report and certify as follows:
(i) On November 19, 1999, NU entered into a $350 million revolving credit
facility pursuant to a Credit Agreement dated as of November 19, 1999 among
Northeast Utilities, the Banks Named Therein, Union Bank of California, N.A.
as Administrative Agent and Bank One, N.A., as Fronting Bank, a copy of which
is attached as exhibit B.13 to this Certificate
(ii) On November 19, 1999 WMECO and CL&P entered into a $500 million
revolving credit facility pursuant to a Credit Agreement dated as of November
19, 1999 among WMECO, CL&P, The Banks Named Therein and Citibank, N.A. as
Administrative Agent, a copy of which is attached as exhibit B.14 to this
Certificate.
The transactions referenced above were carried out in accordance with the
terms and conditions of and for the purposes represented by the Amendment and
the order of the Commission issued on November 18, 1999 in this file.
The Following Exhibits are also attached:
B.15 Open End Mortgage between The Connecticut Light and Power Company and
Citibank, N.A.
B.16 Open End Mortgage between Western Massachusetts Electric Company and
Citibank, N.A.
December 10, 1999
NORTHEAST UTILITIES
WESTERN MASSACHUSETTS ELECTRIC COMPANY
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
HOLYOKE WATER POWER COMPANY
NORTH ATLANTIC ENERGY CORPORATION
NU ENTERPRISES, INC.
NORTHEAST GENERATION COMPANY
NORTHEAST GENERATION SERVICE COMPANY
SELECT ENERGY, INC.
MODE 1 COMMUNICATIONS, INC.
By: /s/David R. McHale
David R. McHale
Vice President and Treasurer
THE CONNECTICUT LIGHT AND POWER COMPANY
By: /s/Randy A. Shoop
Randy A. Shoop
Treasurer
Exhibit B.13
CREDIT AGREEMENT
Dated as of November 19, 1999
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" or the "Borrower");
(ii) The financial institutions (the "Banks") listed on the
signature pages hereof and the other Lenders (as hereinafter
defined) from time to time party hereto;
(iii)UNION BANK OF CALIFORNIA, N.A. ("Union Bank"), as
Administrative Agent for the Lenders hereunder; and
(iv) BANK ONE, NA, as Fronting Bank.
PRELIMINARY STATEMENT
The Borrower has requested the Banks and the Fronting Bank to provide
the credit facility hereinafter described in the amounts and on the terms and
conditions set forth herein. The Banks and the Fronting Bank 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):
"Account Party" has the meaning set forth in Section 2.02(a).
"Administrative Agent" means Union Bank, in its capacity as
administrative agent hereunder, or any successor thereto as provided
herein.
"Advance" means a Contract Advance.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all
directors and officers of such Person), controlled by, or under direct
or indirect common control with such Person. A Person shall be deemed
to control another entity if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of such entity, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" means this Credit Agreement, as the same may be
modified, amended and/or supplemented pursuant to the terms hereof.
"Applicable Commitment Fee Rate" means, for any day, the percentage
per annum set forth below in effect on such day, determined on the basis
of the Applicable Rating Level of the Borrower:
Applicable Commitment Fee Rate
Applicable Rating Level Percentage (%)
Level I 0.250
Level II 0.375
Level III 0.500
Level IV 0.750
Level V 1.000
Any change in the Applicable Commitment Fee Rate caused by a change in
the Applicable Rating Level shall take effect at the time such change in
the Applicable Rating Level shall occur.
"Applicable Lending Office" means, with respect to each Lender:
(i) in the case of any Contract Advance, (A) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar Rate
Advance or (B) such Lender's "Domestic Lending Office" in the case
of a Base Rate Advance, in each case as specified opposite such
Lender's name on Schedule I hereto or in the Lender Assignment
pursuant to which it became a Lender; or
(ii) in each case, such other office of such Lender as such
Lender may from time to time specify in writing to the Borrower and
the Administrative Agent.
"Applicable Margin" means, 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 the Borrower:
Applicable Margin (Percentage %)
Rating Level Eurodollar Rate Advances Base Rate Advances
Level I 1.25 0.25
Level II 1.50 0.50
Level III 2.25 1.25
Level IV 2.50 1.50
Level V 3.00 2.00
Any change in the Applicable Margin caused by a change in the Applicable
Rating Level shall take effect at the time such change in the Applicable
Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance made to the
Borrower, either of (i) the Base Rate from time to time applicable to
such Advance plus the Applicable Margin, or (ii) the Eurodollar Rate
from time to time applicable to such Advance plus the Applicable Margin.
"Applicable Rating Level" shall be determined at any time and from
time to time on the basis of the ratings assigned by S&P and Moody's to
the senior, unsecured, non-credit enhanced long-term Debt of the
Borrower (the "Rated Debt") in accordance with the following:
Applicable Rating Level
S&P Moody's
Level I BBB or higher Baa2 or higher
Level II BBB- Baa3
Level III BB+ Ba1
Level IV BB- or higher but lower
than BB+ Ba3 or higher but lower
than Ba1
Level V lower than BB- lower than Ba3
In the event that the rating assigned by S&P to the Rated Debt and the
rating assigned by Moody's to the Rated Debt do not correspond to the
same Applicable Rating Level, then the lower of the two ratings shall
determine the Applicable Rating Level. The Applicable Rating Level
shall be redetermined as and when any change in the ratings used in the
determination thereof shall be announced by S&P or Moody's, as the case
may be. If either Moody's or S&P shall cease to issue or maintain a
rating on the Rated Debt, then the Applicable Rating Level shall be
Level V.
"Available Commitment" means, for each Lender, the excess of such
Lender's Commitment over such Lender's Percentage of the Outstanding
Credits. "Available Commitments" shall refer to the aggregate of the
Lenders' Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the caption to
this Agreement.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum shall
at all times be equal to the highest of:
(a) the rate of interest announced publicly by the Administrative Agent in
its principal place of business from time to time as the Administrative
Agent's base rate;
(b) 1/2 of one percent per annum above the latest three-week moving average
of secondary market morning offering rates in the United States for three-
month certificates of deposit of major United States money market banks,
adjusted to the nearest 1/32 of one percent (the "CD Rate");
(c) 1/2 of one percent per annum above the Federal Funds Rate in effect from
time to time; and
(d) for the period from December 1, 1999 through March 31, 2000, a rate
equal to 2% per annum above the Federal Funds Rate in effect from time to
time.
If the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
CD Rate or the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Base Rate shall be determined without
regard to clause (b) of the first sentence of this definition, in the event
the Administrative Agent is unable to ascertain the CD Rate, and clauses (c)
and (d) of the first sentence of this definition, in the event the
Administrative Agent is unable to ascertain the Federal Funds Rate, until the
circumstances giving rise to such inability no longer exist. Any change in
the Base Rate due to a change in the Administrative Agent's base rate, the CD
Rate or the Federal Funds Rate shall be effective on the effective date
of such change in the Administrative Agent's base rate, the CD Rate or
the Federal Funds Rate, respectively.
"Base Rate Advance" means a Contract Advance in respect of which
the 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.
"Beneficiary" means any Person designated by an Account Party to
whom the Fronting Bank is to make payment, or on whose order payment is
to be made, under a Letter of Credit.
"Borrower" has the meaning assigned to that term in the caption to
this Agreement.
"Borrowing" means a Contract Borrowing.
"Borrowing Sublimit" means $200,000,000.
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"Cash Collateral Account" means an account maintained at the principal
domestic office of the Administrative Agent for the purpose, and subject to
the terms and conditions, set forth in Section 2.02(k).
"Change of Control" means (a) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended),
other than Consolidated Edison, Inc., shall either (1) acquire beneficial
ownership of more than 50% of any outstanding class of common stock of NU
having ordinary voting power in the election of directors of NU or (2) obtain
the power (whether or not exercised) to elect a majority of NU's directors or
(b) except as a result of the acquisition of NU by Consolidated Edison, Inc.,
the Board of Directors of NU shall not consist of a majority of Continuing
Directors. For purposes of this definition, the term "Continuing Directors"
means directors of NU on the Closing Date and each other director of NU, if
such other director's nomination for election to the Board of Directors
of NU is recommended by a majority of the then Continuing Directors.
"CL&P" means The Connecticut Light and Power Company, a corporation organized
under the laws of the State of Connecticut.
"CL&P Indenture" has the meaning assigned to that term in Section 7.02(a)(ii)
hereof.
"Closing Date" has the meaning assigned to that term in Section 5.01 hereof.
"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 2.04 hereof.
"Commitments" shall refer to the aggregate of the Lenders' Commitments
hereunder.
"Common Equity" means, at any date for the 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 the Borrower and its Subsidiaries and the
surplus, paid-in, earned and other capital, if any, of the Borrower and its
Subsidiaries, in each case as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Confidential Information" has the meaning assigned to that term in
Section 10.08 hereof.
"Consolidated Interest Expense" means, for any period, the aggregate amount
of any interest required to be paid during such period by the Borrower and
its Subsidiaries on Debt (including the current portion thereof) (as
determined on a consolidated basis in accordance with generally accepted
accounting principles), excluding interest required to be paid on the
stranded cost recovery bonds of any Subsidiary of the Borrower.
"Consolidated Operating Income" means, for any period (as determined on a
consolidated basis in accordance with generally accepted accounting
principles), the 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 the Borrower and its Subsidiaries during such period, if
and to the extent deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated operating income for such period;
(ii) increased by the amount of any depreciation and amortization deducted in
the computation of the Borrower's and/or its Subsidiaries' consolidated
operating income for such period;
(iii) decreased by the amount of any capital expenditures paid by the
Borrower and/or its Subsidiaries to the extent not deducted in the
computation of the Borrower's and its Subsidiaries' consolidated operating
income for such period;
(iv) decreased by the amount of revenues accrued by the Borrower and/or its
Subsidiaries related to the interest and principal on stranded cost recovery
bonds issued by Subsidiaries of the Borrower, and increased by the amount of
operating expenses accrued by the Borrower and/or its Subsidiaries related to
the interest and principal on stranded cost recovery bonds issued by
Subsidiaries of the Borrower, in each case to the extent included in the
computation of the Borrower's and/or its Subsidiaries' consolidated operating
income for such period;
(v) decreased by the proceeds of stranded cost recovery bonds issued by
Subsidiaries of the Borrower to the extent included in the computation of the
Borrower's and/or its Subsidiaries' consolidated operating income for such
period; and
(vi) decreased by the proceeds (including Extraordinary Proceeds of the
Borrower and/or its Subsidiaries) of asset sales done outside the ordinary
course of business to the extent included in the computation of the
Borrower's and/or its Subsidiaries' consolidated operating income for such
period; and
(vii)increased or decreased, as the case may be, by the amount of income
taxes paid or refunded on gains or losses related to the sale of assets or
purchased power contracts done outside the ordinary course of business to the
extent included in the computation of the Borrower's and/or its Subsidiaries
consolidated operating income for such period.
"Contract Advance" means an advance by a Lender to the Borrower pursuant to
Article III hereof, and refers to a Eurodollar Rate Advance or a Base Rate
Advance (each of which shall be a "Type" of Contract Advance). For purposes
of this Agreement, all Contract Advances of a Lender (or portions thereof) of
the same Type and Interest Period, if any, made or converted on the same day
to the 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 Borrower
on the same Business Day by the Lenders, ratably in accordance with their
respective Commitments. A Contract Borrowing may be referred to herein as
being a "Type" of Contract Borrowing, corresponding to the Type of Contract
Advances comprising such Borrowing. For purposes of this Agreement, all
Contract Advances of the same Type and Interest Period, if any, made or
converted on the same day to the Borrower shall be deemed a single Contract
Borrowing hereunder until repaid.
"Contract Note" means a promissory note of the Borrower payable to the order
of a Lender, in substantially the form of Exhibit 1.01A hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from the
Contract Advances made by such Lender to the Borrower.
"Date of Issuance" means the date of issuance by the Fronting Bank of a
Letter of Credit under this Agreement.
"Debt" means, for any Person, without duplication, (i) indebtedness of such
Person for borrowed money, including but not limited to obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments
(excluding stranded cost recovery bonds which are non-recourse to such
Person), (ii) obligations of such Person to pay the deferred purchase price
of property or services (excluding any obligation of such Person to the
United States Department of Energy or its successor with respect to
disposition of spent nuclear fuel burned prior to April 3, 1983), (iii)
obligations of such Person as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting principles,
recorded as capital leases, (iv) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds referred to
in clauses (i) through (iii), above, including all Parent Support
Obligations, (v) letters of credit, guaranties and other forms of credit
enhancement issued to support power sales and trading activities, and (vi)
liabilities in respect of unfunded vested benefits under ERISA Plans.
"Disclosure Documents" means for the Borrower and each Principal Subsidiary:
(i) such Person's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998; (ii) its Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31 and June 30, 1999; (iii) each Current Report on Form
8-K of such Person filed after June 30, 1999 and on or prior to October 29,
1999 and (iv) the Information Memorandum.
"Drawing" means a drawing by a Beneficiary under any Letter of Credit.
"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 the Borrower or any ERISA Affiliate of the
Borrower and covered by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice to the PBGC
under such regulations) with respect to an ERISA Plan or an ERISA
Multiemployer Plan, or (ii) the withdrawal of the Borrower or any of its
ERISA Affiliates from an ERISA Plan or an ERISA Multiemployer Plan during a
plan year in which it was a "substantial employer" as defined in Section
4001(a)(2) of ERISA, or (iii) the filing of a notice of intent to terminate
an ERISA Plan or an ERISA Multiemployer Plan or the treatment of an ERISA
Plan or an ERISA Multiemployer Plan under Section 4041 of ERISA, or (iv) the
institution of proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any ERISA Plan or ERISA
Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate per annum
equal to the average (rounded upward to the nearest whole multiple of 1/16 of
1% per annum, if such average is not such a multiple) of the rates per annum
at which deposits in U.S. dollars are offered by the principal office of each
of the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 a.m. (London time) two Business Days before the
first day of such Interest Period in the amount of $1,000,000 and for a
period equal to such Interest Period. The Eurodollar Rate for the Interest
Period for each Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Administrative Agent on the basis of applicable
rates furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Sections 3.05(d) and 4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in respect of which the
Borrower has selected in accordance with Article III hereof, or this
Agreement provides for, interest to be computed on the basis of
the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender or its subparticipant, for each
Interest Period for each Eurodollar Rate Advance, means the reserve
percentage applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such percentages for
those days in such Interest Period during which any such percentage shall be
so applicable) under Regulation D or other regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement, without benefit of or credit for proration, exemptions or
offsets) for such Lender or its subparticipant with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01 hereof.
"Existing Credit Facilities" means (i) the credit facility provided under the
Credit Agreement, dated as of November 21, 1996, as amended, among NU, CL&P,
WMECO, the co-agents party thereto, the lenders party thereto and Citibank,
N.A., as administrative agent for the lenders thereunder; (ii) the credit
facility provided under the Letter of Credit and Reimbursement Agreement,
dated November 30, 1998, as amended, among Select Energy, Inc., Union Bank,
as administrative agent thereunder, Bank One, NA (formerly known as The First
National Bank of Chicago), as issuing bank and documentation agent
thereunder, and Barclays Bank PLC, as syndication agent thereunder, (iii) the
$11 million letter of credit facility provided under the Letter of Credit and
Reimbursement Agreement, dated as of July 30, 1999, among Select Energy,
Inc., the financial institutions parties thereto and Union Bank, as Issuing
Bank and Administrative Agent thereunder, and (iv) the $25 million credit
facility provided by Toronto Dominion (Texas), Inc. under the Credit
Agreement, dated as of February 10, 1998, among the Borrower, the lenders
named therein and Toronto Dominion (Texas), Inc., as amended.
"Expiration Date" means, with respect to a Letter of Credit, its stated
expiration date.
"Extension of Credit" means the making of any Advance or the issuance or
amendment (including, without limitation, an extension or renewal) of a
Letter of Credit.
"Extraordinary Proceeds" shall mean, for any Person for any period, net
proceeds received by such Person during such period from (i) issuances of
securitization bonds sold by such Person or any of its Subsidiaries plus (ii)
sales of assets by such Person or any of its Subsidiaries not in the ordinary
course of business plus (iii) the sale or disposition (by way of merger, sale
of capital stock, sale of assets or otherwise) of any Subsidiary of such
Person. For purposes of the foregoing, all cash received by such Person
from, or as a result of the sale or disposition of, a Subsidiary shall be
deemed to constitute "Extraordinary Proceeds" up to the amount of proceeds
received by, or as a result of the sale or disposition of, such Subsidiary
from such issuances and sales during the relevant period, net of underwriting
discounts and commissions, costs of sale and other, similar transaction
costs.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal to, for each day during such period, the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fee Letter" means that certain Fee Letter dated October 25, 1999 among NU,
Barclays Bank PLC, Union Bank and Bank One, NA
"FERC" means the Federal Energy Regulatory Commission.
"Financial Statements" means, with respect to the Borrower and each Principal
Subsidiary, (i) the audited consolidated balance sheet of such Person as at
December 31, 1998, (ii) the unaudited consolidated balance sheet of such
Person as at June 30, 1999, (iii) the audited consolidated statements of
income and cash flows of such Person for the Fiscal Year ended December 31,
1998 and (iv) the unaudited consolidated statements of income and cash flows
of such Person for the 6-month period ended June 30, 1999, in each case as
included in such Person's Annual Report on Form 10-K for the Fiscal Year
ended December 31, 1998 or Quarterly Report on Form 10-Q for the Fiscal
Quarter ended June 30, 1999.
"First Mortgage Bonds" means any bond, however designated, entitled to the
benefits of a First Mortgage Indenture.
"First Mortgage Indenture" means, with respect to CL&P, the CL&P Indenture or
any successor thereto or replacement thereof; and with respect to WMECO, the
WMECO Indenture or any successor thereto or replacement thereof.
"Fiscal Quarter" means a period of three calendar months ending on the last
day of March, June, September or December, as the case may be.
"Fiscal Year" means a period of twelve calendar months ending on the last day
of December.
"Fixed Charges" shall mean, for any period, the sum of the following amounts:
(a) dividends paid by NU to common and preferred stockholders during such
period; (b) interest expense for NU for such period; and (c) income taxes
paid by NU during such period.
"Fronting Bank" means Bank One, NA and any other Lender having a long-term
credit rating acceptable to the Borrower that delivers an instrument in form
and substance satisfactory to the Borrower and the Administrative Agent
whereby such other Lender agrees to act as "Fronting Bank" hereunder.
"Governmental Approval" means any authorization, consent, approval, license,
permit, certificate, exemption of, or filing or registration with, any
governmental authority or other legal or regulatory body (including, without
limitation, the Securities and Exchange Commission, the FERC, the Nuclear
Regulatory Commission, the Connecticut Department of Public Utility Control
and the Massachusetts Department of Telecommunications and Energy, required
in connection with either (i) the execution, delivery or performance of any
Loan Document, or (ii) the nature of the Borrower's or any Subsidiary's
business as conducted or the nature of the property owned or leased by it.
"Hazardous Substance" means any waste, substance or material identified as
hazardous, dangerous or toxic by any office, agency, department, commission,
board, bureau or instrumentality of the United States of America or of the
State or locality in which the same is located having or exercising
jurisdiction over such waste, substance or material.
"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
October 1999, regarding the credit facility to be provided to the Borrower
hereunder, as distributed to the Administrative Agent and the Lenders,
including, without limitation, all schedules and attachments hereto.
"Interest Period" has the meaning assigned to that term in Section 3.05(a)
hereof.
"L/C Commitment Amount" equals $250,000,000, as the same may be reduced
permanently from time to time pursuant to Section 2.04 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.
"Letter of Credit" has the meaning set forth in Section 2.02(a).
"Letter of Credit Request" has the meaning set forth in Section 2.02(d).
"Lien" means, with respect to any asset or property, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset or property. For the purposes of this Agreement, a Person or any
of its Subsidiaries shall be deemed to own subject to a Lien any asset which
it has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan Documents" means this Agreement and the Notes.
"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 Outstanding Credits of 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.
"Named Debt" means Debt of HWP under (i) the Reimbursement and Security
Agreement (1988 Series), dated as of November 3, 1999, between HWP and The
Toronto-Dominion Bank and (ii) the Reimbursement and Security Agreement (1990
Series), dated as of November 3, 1999, between HWP and The Toronto-Dominion
Bank.
"NGC Equity Contribution" shall mean the proposed equity investment by the
Borrower of up to $475,000,000 in Northeast Generation Company.
"Note" means a Contract Note, as may be amended, supplemented or otherwise
modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned to that term in
Section 3.01 hereof.
"NU" 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 and certain of its Subsidiaries,
filed with the Securities and Exchange Commission in File No. 70-8875, as
amended from time to time.
"NUSCO" means Northeast Utilities Service Company, a Connecticut corporation.
"Operating Cash Flow" shall mean, for any period, the sum of the following
amounts: (1) dividends paid to the Borrower by a Subsidiary thereof during
such period; (2) consulting and management fees paid to the Borrower for such
period; (3) tax sharing payments made to the Borrower during such period; (4)
interest and other distributions paid to the Borrower during such period with
respect to cash (e.g., NU System Money Pool) and other permitted investments
of the Borrower; and (5) other cash payments made to the Borrower by its
Subsidiaries other than (A) returns of invested capital, (B) payments of the
principal on Debt of any such Subsidiary to the Borrower (to the extent
permitted hereunder) and (C) Extraordinary Proceeds. If at any time there
shall exist an event or condition which permits any holder to accelerate the
maturity date of any Debt of, or terminate its commitment to extend credit to
any Subsidiary, then the contributions of such Subsidiary to Operating Cash
Flow for any period ending at or prior to such time shall be eliminated and
Operating Cash Flow shall be calculated after giving effect to such
elimination.
"Outstanding Credits" mean, on any date of determination, an amount equal to
(i) the aggregate principal amount of all Contract Advances outstanding on
such date plus (ii) the aggregate Stated Amount of all issued but undrawn
Letters of Credit outstanding on such date plus (iii) the aggregate amount of
Reimbursement Obligations outstanding on such date (exclusive of
Reimbursement Obligations which, on such date of determination, are repaid
with the proceeds of a Contract Advance made in accordance with Section
2.02(i)(ii), to the extent the principal amount of such Contract Advance is
included in the determination of the aggregate principal amount of all
outstanding Contract Advances as provided in clause (i) of this definition).
The "Outstanding Credits" of a Lender on any date of determination shall be
an amount equal to the outstanding Advances made by such Lender plus the
amount of such Lender's participatory interest in outstanding Letters of
Credit and Reimbursement Obligations.
"Parent Support Obligation" means, without duplication, any obligation of the
Borrower 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) of the
definition of "Debt", including any reimbursement obligation in respect of a
letter of credit, any recourse obligation in respect of a surety or similar
bond or other, similar obligation of the Borrower other than a construction
completion or similar performance guaranty as permitted hereunder issued on
behalf of HEC Inc. The amount of each Parent Support Obligation shall be
computed in good faith in accordance with the Borrower's then applicable
mark-to-market and other risk management methods.
"Payment Date" means the date on which payment of a Drawing is made by the
Fronting Bank.
"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%.
"Permitted Investments" means (i) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than six (6) months
from the date of acquisition by such Person; (ii) time deposits and
certificates of deposit, with maturities of not more than six (6) months from
the date of acquisition by such Person, of any international commercial bank
of recognized standing having capital and surplus in excess of $500,000,000
and having a rating on its commercial paper of at least A-1 or the equivalent
thereof by S&P or at least P-1 or the equivalent thereof by Moody's; (iii)
commercial paper issued by any Person, which commercial paper is rated at
least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent
thereof by Moody's and matures not more than six (6) months after the date of
acquisition by such Person; (iv) investments in money market funds
substantially all the assets of which are comprised of securities of the
types described in clauses (i) and (ii) above and (v) United States
Securities and Exchange Commission registered money market mutual funds
conforming to Rule 2a-7 of the Investment Company Act of 1940 in effect
in the United States, that invest primarily in direct obligations issued
by the United States Treasury and repurchase obligations backed by those
obligations, and rated in the highest category by S&P and Moody's.
"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" shall mean CL&P, WMECO, PSNH, HWP, NAEC, Select
Energy, Inc., HEC Inc., Northeast Generation Company, Mode One
Communications, Inc., and any other Subsidiary, whether owned directly or
indirectly by the Borrower, which, with respect to the 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).
"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 Union Bank, Barclays Bank PLC and Bank One, NA, and
any other bank or financial institution designated by the Borrower and the
Administrative Agent with the approval of the Majority Lenders to act as a
Reference Bank hereunder.
"Regulatory Asset" means, with respect to CL&P or WMECO, an intangible asset
established by statute, regulation or regulatory order or similar action of a
utility regulatory agency having jurisdiction over CL&P or WMECO, as the case
may be, and included in the rate base of CL&P or WMECO, as the case may be,
with the intention that such asset be amortized by rates over time.
"Reimbursement Obligation" means the absolute and unconditional obligation of
the Borrower to reimburse the Fronting Bank for any Drawing pursuant to
Section 2.02(h).
"Restricted Payment" shall mean any dividend, payment or other distribution
of assets, properties, cash, rights, obligations or securities on account of
any share of any class of capital stock of NU (other than as a result of a
stock split and dividends payable solely in equity securities of NU), or the
purchase, redemption, retirement or other acquisition for value of any shares
of any class of capital stock of NU or any warrants, rights, or options to
acquire any such shares, now or hereafter outstanding.
"S&P" means Standard and Poor's Ratings Services, a division of The McGraw-
Hill Companies, Inc., or any successor thereto.
"Stated Amount" means the maximum amount available to be drawn by a
Beneficiary under a Letter of Credit.
"Subsidiary" shall mean, with respect to any Person (the "Parent"), any
corporation, association or other business entity of which securities or
other ownership interests representing 50% or more of the ordinary voting
power are, at the time as of which any determination is being made, owned or
controlled by the Parent or one or more Subsidiaries of the Parent or by the
Parent and one or more Subsidiaries of the Parent.
"Termination Date" means the earliest to occur of (i) November 17, 2000, or
such later date to which the Termination Date shall be extended in accordance
with Section 2.05, (ii) the date of termination or reduction in whole of the
Commitments pursuant to Section 2.04 or 8.02 or (iii) the date of
acceleration of all amounts payable hereunder and under the Notes pursuant to
Section 8.02.
"Total Capitalization" means, at any date, the sum of (i) the aggregate
principal amount of all long-term and short-term Debt (including the current
portion thereof) of the Borrower and its Subsidiaries (excluding, in the case
of WMECO, short-term debt borrowed in December, 1999 pending the application
of such borrowings on the first business day in January, 2000 to pay
$60,000,000 to the holders of the First Mortgage Bonds of WMECO upon the
maturity thereof), (ii) the aggregate of the par value of, or stated capital
represented by, the outstanding shares of all classes of common and preferred
shares of the Borrower and its Subsidiaries and (iii) the consolidated
surplus of the Borrower and its Subsidiaries, paid-in, earned and other
capital, if any, in each case as determined on a consolidated basis in
accordance with generally accepted accounting principles consistent with
those applied in the preparation of the Borrower's Financial Statements.
"Total Commitment" means $350,000,000, or such lesser amount from time to
time as shall equal the sum of the Commitments.
"Type" has the meaning assigned to such term (i) in the definition of
"Contract Advance" when used in such context and (ii) in the definition of
"Contract Borrowing" when used in such context.
"Union Bank" has the meaning assigned to that term in the caption to this
Agreement.
"Unmatured Default" means the occurrence and continuance of an event which,
with the giving of notice or lapse of time or both, would constitute an Event
of Default.
"WMECO" has the meaning assigned to that term in the caption to this
Agreement.
"WMECO Indenture" has the meaning assigned to that term in Section
7.02(a)(iii) hereof.
"Year 2000 Issue" means the failure of computer software, hardware and
firmware systems and equipment containing computer chips to properly receive,
transmit, process, manipulate, store, retrieve, re-transmit or in any other
way utilize data and information due to the occurrence of the year 2000 or
the inclusion of dates on or after January 1, 2000.
SECTION 1.02. Computation of Time Periods. In the computation of
periods of time under this Agreement, any period of a specified number of
days or months shall be computed by including the first day or month
occurring during such period and excluding the last such day or month. In
the case of a period of time "from" a specified date "to" or "until" a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms; Financial Statements. All accounting
terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles applied on a basis consistent with
the application employed in the preparation of the Financial Statements. All
references contained herein to the Borrower's or a Principal Subsidiary'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 the Borrower or such
Principal Subsidiary referred to therein.
SECTION 1.04. Computations of Outstandings. Whenever reference is made
in this Agreement to the principal amount of Outstanding Credits under this
Agreement on any date, such reference shall refer to the aggregate principal
amount of all Outstanding Credits on such date after giving effect to (i) all
Extensions of Credit to be made on such date and the application of the
proceeds thereof and (ii) any repayment or prepayment of Advances, and any
payment of Reimbursement Obligations, on such date by the Borrower.
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
Borrower from time to time on any Business Day during the period from the
Closing Date until the Termination Date, in an aggregate amount not to exceed
on any day such Lender's Available Commitment. Within the limits of such
Lender's Available Commitment and the Borrowing Sublimit, the 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 the 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 the Borrower be entitled to request or receive any Advance that
would cause the total principal amount of all Outstanding Credits to exceed
the Total Commitment, or that would cause the aggregate principal amount of
all Advances outstanding to or requested by the Borrower to exceed the
Borrowing Sublimit.
SECTION 2.02. Letters of Credit
(a) Agreement of Fronting Bank. Subject to the terms and conditions of
this Agreement, the Fronting Bank agrees to issue and amend (including,
without limitation, to extend or renew) for the account of the Borrower or
any Subsidiary thereof (each such Person, an "Account Party") one or more
standby letters of credit (individually, a "Letter of Credit" and
collectively, the "Letters of Credit") from and including the Closing Date to
the Termination Date, up to a maximum aggregate Stated Amount at any one time
outstanding equal to the L/C Commitment Amount minus Reimbursement
Obligations outstanding at such time, each having an Expiration Date on or
prior to 364 days after the Date of Issuance of such Letter of Credit;
provided, however, that the Fronting Bank will not issue or amend a Letter of
Credit if, immediately following such issuance or amendment, (i) the Stated
Amount of such Letter of Credit would (A) exceed the Available Commitments or
(B) when aggregated with (1) the Stated Amounts of all other outstanding
Letters of Credit and (2) the outstanding Reimbursement Obligations, exceed
the L/C Commitment Amount, or (ii) the total principal amount of all
Outstanding Credits would exceed the Total Commitment.
(b) Termination. The terms of each Letter of Credit shall permit
unilateral termination of such Letter of Credit by the Fronting Bank on not
more than 30 days' notice to the Beneficiary thereof or, if the Expiration
Date of such Letter of Credit is later than the Termination Date, on not more
than 20 days' notice to the Beneficiary thereof. The Fronting Bank shall not
terminate any Letter of Credit, however, except upon the occurrence and
during the continuation of an Event of Default, and then the Fronting Bank
shall terminate such Letter of Credit if directed to do so by the Majority
Lenders. Each Letter of Credit shall also provide that upon its receipt of
notice of such unilateral early termination, the Beneficiary thereof shall be
entitled to make a Drawing for the Stated Amount thereof prior to the
effective date of such early termination.
(c) Forms. Each Letter of Credit shall be in a form customarily used
by the Fronting Bank or in such other form as has been approved by the
Fronting Bank. At the time of issuance or amendment, subject to the terms
and conditions of this Agreement, the amount and the terms and conditions of
each Letter of Credit shall be subject to approval by the Fronting Bank and
the Borrower.
(d) Notice of Issuance; Application. The Borrower shall give the
Fronting Bank and the Administrative Agent written notice (or telephonic
notice confirmed in writing) at least three Business Days prior to the
requested Date of Issuance of a Letter of Credit, such notice to be in
substantially the form of Exhibit 2.02 hereto (a "Letter of Credit Request").
The Borrower shall also execute and deliver such customary letter of credit
application forms as requested from time to time by the Fronting Bank. Such
application forms shall indicate the identity of the Account Party and that
the Borrower is the "Applicant" or shall otherwise indicate that the Borrower
is the obligor in respect of any Letter of Credit to be issued thereunder.
If the terms or conditions of the application forms conflict with any
provision of this Agreement, the terms of this Agreement shall govern.
(e) Issuance. Provided the Borrower has given the notice prescribed by
Section 2.02(d) and subject to the other terms and conditions of this
Agreement, including the satisfaction of the applicable conditions precedent
set forth in Article V, the Fronting Bank shall issue the requested Letter of
Credit on the requested Date of Issuance as set forth in the applicable
Letter of Credit Request for the benefit of the stipulated Beneficiary and
shall deliver the original of such Letter of Credit to the Beneficiary at the
address specified in the notice. At the request of the Borrower, the
Fronting Bank shall deliver a copy of each Letter of Credit to the Borrower
within a reasonable time after the Date of Issuance thereof. Upon the
request of the Borrower, the Fronting Bank shall deliver to the Borrower a
copy of any Letter of Credit proposed to be issued hereunder prior to the
issuance thereof.
(f) Notice of Drawing. The Fronting Bank shall promptly notify the
Borrower by telephone, facsimile or other telecommunication of any Drawing
under a Letter of Credit.
(g) Payments. The Borrower hereby agrees to pay to the Fronting Bank,
in the manner provided in subsection (h) below:
(i) on each Payment Date, an amount equal to the amount paid by the Fronting
Bank under any Letter of Credit; and
(ii) if any Drawing shall be reimbursed to the Fronting Bank after 12:00 noon
(New York time) on the Payment Date, interest on any and all amounts required
to be paid pursuant to clause (i) of this subsection (g) from and after the
due date thereof until payment in full, payable on demand, at an annual rate
of interest equal to 2.00% above the Administrative Agent's base rate as in
effect from time to time.
(h) Method of Reimbursement. The Borrower shall reimburse the Fronting
Bank for each Drawing under any Letter of Credit pursuant to subsection (g)
above in the following manner:
(i) the Borrower shall immediately reimburse the Fronting Bank in the manner
described in Section 4.01; or
(ii) if (A) the Borrower has not reimbursed the Fronting Bank pursuant to
clause (i) above, (B) the applicable conditions to the making of a Contract
Advance set forth in Articles II, III and V have been fulfilled, and (C) the
Available Commitments in effect at such time exceed the amount of the Drawing
to be reimbursed, the Borrower may reimburse the Fronting Bank for such
Drawing with the proceeds of a Base Rate Advance or, if the conditions
specified in the foregoing clauses (A), (B) and (C) have been satisfied and a
Notice of Contract Borrowing requesting a Eurodollar Rate Advance has been
given in accordance with Section 3.01 three Business Days prior to the
relevant Payment Date, with the proceeds of a Eurodollar Rate Advance.
(i) Nature of Fronting Bank's Duties. In determining whether to honor
any Drawing under any Letter of Credit, the Fronting Bank shall be
responsible only to determine that the documents and certificates required to
be delivered under that Letter of Credit have been delivered and that they
comply on their face with the requirements of that Letter of Credit. The
Borrower otherwise assumes all risks of the acts and omissions of, or misuse
of the Letters of Credit issued by the Fronting Bank by, the respective
Beneficiaries of such Letters of Credit. In furtherance and not in
limitation of the foregoing, but consistent with applicable law, the Fronting
Bank shall not be responsible (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effects of any document submitted by any party
in connection with the application for and issuance of any drawing honored
under a Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit, or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason; (iii) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, facsimile or otherwise, whether or not they be in
cipher; (iv) for errors in interpretation of technical terms; (v) for any
loss or delay in the transmission or otherwise of any document required in
order to make a drawing under any such Letter of Credit, or the proceeds
thereof; (vi) for the misapplication by the Beneficiary of any such Letter of
Credit or of the proceeds of any drawing honored under such Letter of Credit;
and (vii) for any consequences arising from causes beyond the control of the
Fronting Bank. None of the above shall affect, impair or prevent the vesting
of any of the Fronting Bank's rights or powers hereunder. Not in limitation
of the foregoing, any action taken or omitted to be taken by the Fronting
Bank under or in connection with any Letter of Credit shall not create
against the Fronting Bank any liability to the Borrower or any Lender, except
for actions or omissions resulting from the gross negligence or willful
misconduct of the Fronting Bank or any of its agents or representatives.
(j) Obligations of Borrower Absolute. The obligation of the Borrower
to reimburse the Fronting Bank for Drawings honored under the Letters of
Credit issued by it shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which the
Borrower, any Account Party or any Affiliate of the Borrower or any Account
Party may have at any time against a Beneficiary or any transferee of any
Letter of Credit (or any Persons or entities for whom any such Beneficiary or
transferee may be acting), the Fronting Bank or any other Person, whether in
connection with this Agreement, the transactions contemplated herein or any
unrelated transaction;
(iii) any draft, demand, certificate or any other documents presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or
observance of any of the terms of any of the Loan Documents;
(v) any non-application or misapplication by the Beneficiary of the proceeds
of any Drawing under a Letter of Credit; or
(vi) the fact that an Unmatured Default or Event of Default shall have
occurred and be continuing. No payment made under this Section shall be
deemed to be a waiver of any claim the Borrower may have against the Fronting
Bank or any other Person.
(k) Expiration or Maturity Date of Letters of Credit. If the Termination
Date is scheduled to occur prior to the Expiration Date of any Letter of
Credit outstanding hereunder, the Borrower shall, on or prior to the
twentieth day prior to the Termination Date or, if later, the Date of
Issuance of such Letter of Credit, deposit cash in immediately available
funds in the Cash Collateral Account an amount equal to the Stated Amount of
such Letter of Credit. If a Drawing pursuant to such Letter of Credit occurs
on or prior to the Expiration Date of such Letter of Credit, the Borrower
authorizes the Administrative Agent to permit the Fronting Bank to use the
monies deposited in the Cash Collateral Account to make a payment to the
Beneficiary with respect to such Drawing. If no Drawing occurs on or prior
to the Expiration Date of such Letter of Credit, the Fronting Bank shall
instruct the Administrative Agent to (whereupon the Administrative Agent
shall) promptly return to the Borrower the monies deposited in the Cash
Collateral Account with respect to such outstanding Letter of Credit. The
Borrower hereby collaterally assigns, and grants to the Administrative Agent,
for the pro-rata benefit of the Fronting Bank or Fronting Banks and the
Lenders, a security interest in, all funds held in the Cash Collateral
Account from time to time and proceeds thereof, as security for the payment
of all amounts due and to become due from the Borrower to the Fronting Bank
under this Agreement. The Cash Collateral Account shall be in the name of
the Borrower and the Administrative Agent, for the benefit of the Fronting
Bank or Fronting Banks (as the case may be) and the Lenders, as a cash
collateral account but the Administrative Agent shall have sole dominion and
control over, and sole access to, the Cash Collateral Account. Neither the
Borrower nor any Person claiming on behalf of or through the Borrower shall
have any right to withdraw any of the funds held in the Cash Collateral
Account. The Borrower agrees that it will not (i) sell or otherwise dispose
of any interest in the Cash Collateral Account or any funds held therein, or
(ii) create or permit to exist any Lien upon or with respect to the Cash
Collateral Account or any funds held therein. The Administrative Agent shall
exercise reasonable care in the custody and preservation of any funds held in
the Cash Collateral Account and shall be deemed to have exercised such care
if such funds are accorded treatment substantially equivalent to that which
the Administrative Agent accords other funds deposited with the
Administrative Agent in like accounts, it being understood that the
Administrative Agent shall not have any responsibility for taking any
necessary steps to preserve rights against any parties with respect to any
funds held in the Cash Collateral Account.
At the direction of the Borrower, provided, that no Unmatured Default or
Event of Default shall have occurred and be continuing, the Administrative
Agent shall invest funds on deposit in the Cash Collateral Account in
certificates of deposit or other bank deposits of Union Bank at such rates
and for such periods as the Borrower and the Administrative Agent shall
agree. The Borrower shall bear all risks and costs associated with such
investments and the liquidation thereof and shall make additional deposits in
the Cash Collateral Account to the extent necessary to ensure that the
amounts on deposit therein at all times equal or exceed the amounts required
to be deposited therein pursuant to the subsection (k). Upon the later to
occur of (i) the Termination Date and (ii) the date of payment in full of all
amounts due hereunder and the expiration or termination of all Letters of
Credit, the Administrative Agent shall pay to the Borrower the proceeds of
any investments remaining in the Cash Collateral Account.
Nothing in this subsection (k) shall limit or otherwise affect the
participatory interests of the Lenders in the outstanding Letters of Credit.
(l) Participations by Lenders. By the issuance of a Letter of Credit
and without any further action on the part of the Fronting Bank or any Lender
in respect thereof, the Fronting Bank shall hereby be deemed to have granted
to each Lender, and each Lender shall hereby be deemed to have acquired from
the Fronting Bank, an undivided interest and participation in such Letter of
Credit (including any letter of credit issued by the Fronting Bank in
substitution or exchange for such Letter of Credit pursuant to the terms
thereof) equal to such Lender's Percentage of the Stated Amount of such
Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Fronting Bank, in
accordance with this subsection (l), such Lender's Percentage of each payment
made by the Fronting Bank in respect of an unreimbursed Drawing under a
Letter of Credit. The Fronting Bank shall notify the Administrative Agent of
the amount of such unreimbursed Drawing honored by it not later than (x)
12:00 noon (New York time) on the date of payment of a draft under a Letter
of Credit, if such payment is made at or prior to 11:00 a.m. (New York
time) on such day, and (y) the close of business (New York time) on the date
of payment of a draft under a Letter of Credit, if such payment is made after
11:00 a.m. (New York time) on such day, and the Administrative Agent shall
notify each Lender of the date and amount of such unreimbursed Drawing under
such Letter of Credit honored by the Fronting Bank and the amount of such
Lender's Percentage therein no later than (1) 1:00 p.m. (New York time) on
such day, if such payment is made at or prior to 11:00 a.m. (New York time)
on such day, and (2) 11:00 a.m. (New York time) on the next following
Business Day, if such payment is made after 11:00 a.m. (New York time) on
such day. Not later than 2:00 p.m. (New York time) on the date of receipt of
a notice of an unreimbursed Drawing by a Lender, such Lender agrees to pay to
the Fronting Bank an amount equal to the product of (A) such Lender's
Percentage and (B) the amount of the payment made by the Fronting Bank in
respect of such unreimbursed Drawing.
If payment of the amount due pursuant to the preceding sentence from a Lender
is received by the Fronting Bank after the close of business on the date it
is due, such Lender agrees to pay to the Fronting Bank, in addition to (and
along with) its payment of the amount due pursuant to the preceding sentence,
interest on such amount at a rate per annum equal to (i) for the period from
and including the date such payment is due to but excluding the second
succeeding Business Day, the Federal Funds Rate, and (ii) for the period from
and including the second Business Day succeeding the date such payment is due
to but excluding the date on which such amount is paid in full, the Federal
Funds Rate plus 2.00%.
(m) Obligations of Lenders Absolute. Each Lender acknowledges and
agrees that (i) its obligation to acquire a participation in the Fronting
Bank's liability in respect of the Letters of Credit and (ii) its obligation
to make the payments specified herein, and the right of the Fronting Bank to
receive the same, in the manner specified herein, are absolute and
unconditional and shall not be affected by any circumstances whatsoever,
including, without limitation, (A) the occurrence and continuance of any
Event of Default or any Unmatured Default; (B) any other breach or default by
the Borrower, the Administrative Agent or any Lender hereunder; (C) any lack
of validity or enforceability of any Letter of Credit or this Agreement; (D)
the existence of any claim, setoff, defense or other right which the Lender
may have at any time against the Borrower, any other Account Party, any
Beneficiary, the Fronting Bank or any other Lender; (E) the existence of any
claim, setoff, defense or other right which the Borrower may have at any time
against any Beneficiary, the Fronting Bank, the Administrative Agent, any
Lender or any other Person, whether in connection with this Agreement or any
other documents contemplated hereby or any unrelated transactions; (F) any
amendment or waiver of, or consent to any departure from, all or any of the
Letters of Credit or this Agreement; (G) any statement or any document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect; (H) payment by the Fronting Bank under any
Letter of Credit against presentation of a draft or certificate that does not
comply with the terms of such Letter of Credit, so long as such payment is
not the consequence of the Fronting Bank's gross negligence or willful
misconduct in determining whether documents presented under a Letter of
Credit comply with the terms thereof; (I) the occurrence of the Termination
Date; or (J) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing. Nothing herein shall prevent the assertion
by any Lender of a claim by separate suit or compulsory counterclaim, nor
shall any payment made by a Lender under Section 2.02 hereof be deemed to be
a waiver of any claim that a Lender may have against the Fronting Bank or any
other Person.
(n) Proceeds of Reimbursements. Upon receipt of a payment from the Borrower
pursuant to subsection (g) hereof, the Fronting Bank shall promptly transfer
to each Lender such Lender's pro rata share (determined in accordance with
such Lender's Percentage) of such payment based on such Lender's pro rata
share (determined as aforesaid) of amounts previously paid pursuant to
subsection (l), above, and not previously transferred by the Fronting Bank
pursuant to this subsection (n); provided, however, that if a Lender shall
fail to pay to the Fronting Bank any amount required by subsection (l) above
by the close of business on the Business Day following the date on which such
payment was due from such Lender, and the Borrower shall not have reimbursed
the Fronting Bank for such amount pursuant to subsection (g) hereof (such
unreimbursed amount being hereinafter referred to as a "Transferred Amount"),
the Fronting Bank shall be deemed to have purchased, on such following
Business Day (a "Participation Transfer Date") from such Lender (a
"Defaulting Lender"), a participation in such Transferred Amount and shall be
entitled, for the period from and including the Participation Transfer Date
to the earlier of (i) the date on which the Borrower shall have reimbursed
the Fronting Bank for such Transferred Amount and (ii) the date on which such
Lender shall have reimbursed the Fronting Bank for such Transferred Amount
(the "Participation Transfer Period"), to the rights, privileges and
obligations of a "Lender" under this Agreement with respect to such
Transferred Amount, and such Defaulting Lender shall not be deemed to be a
Lender hereunder, and shall not have any rights or interests of a Lender
hereunder, with respect to such Transferred Amount, and its Percentage shall
be reduced accordingly with the amount by which such Percentage is reduced
deemed held by the Fronting Bank during the Participation Transfer Period;
and provided further, however, that if, at any time after the occurrence of a
Participation Transfer Date with respect to any Lender and prior to the
reimbursement by such Lender of the Fronting Bank with respect to the related
Transferred Amount pursuant to subsection (l) above, the Fronting Bank shall
receive any payment from the Borrower pursuant to subsection (g) hereof, the
Fronting Bank shall not be obligated to pay any amounts to such Lender, and
the Fronting Bank shall retain such amounts (including, without limitation,
interest payments due from the Borrower pursuant to subsection (g) hereof)
for its own account as a Lender, provided that all such amounts shall be
applied in satisfaction of the unpaid amounts (including, without limitation,
interest payments due from such Lender pursuant to subsection (l), above) due
from such Lender with respect to such Transferred Amount.
If at any time after the occurrence of a Participation Transfer Date with
respect to any Lender, the Administrative Agent shall receive any payment
from the Borrower for the account of such Lender pursuant to this Agreement,
if at the time of receipt of such amounts by the Administrative Agent such
Lender shall not have reimbursed the Fronting Bank with respect to the
related Transferred Amount pursuant to subsection (l) above, the
Administrative Agent shall not pay any such amounts to such Lender but shall
pay all such amounts to the Fronting Bank and the Fronting Bank shall retain
such amounts for its own account as a Lender and apply such amounts in
satisfaction of the unpaid amounts (including, without limitation, interest
payments due from such Lender pursuant to subsection (l) above) due from such
Lender with respect to such Transferred Amount.
All payments due to the Lenders from the Fronting Bank pursuant to this
subsection (n) shall be made to the Lenders if, as, and, to the extent
possible, when the Fronting Bank receives payments in respect of Drawings
under the Letters of Credit pursuant to subsection (g) hereof, and in the
same funds in which such amounts are received; provided that if any Lender to
whom the Fronting Bank is required to transfer any such payment (or any
portion thereof) pursuant to this subsection (n) does not receive such
payment (or portion thereof) prior to (i) the close of business on the
Business Day on which the Fronting Bank received such payment from the
Borrower, if the Fronting Bank received such payment prior to 1:00 p.m. (New
York time) on such day, or (ii) 1:00 p.m. (New York time) on the Business Day
next succeeding the Business Day on which the Fronting Bank received such
payment from the Borrower, if the Fronting Bank received such payment after
1:00 p.m. (New York time) on such day, the Fronting Bank agrees to pay to
such Lender, along with its payment of the portion of such payment due to
such Lender, interest on such amount at a rate per annum equal to (1) for the
period from and including the Business Day when such payment was required to
be made to the Lenders to but excluding the second succeeding Business Day,
the Federal Funds Rate and (ii) for the period from and including the second
Business Day succeeding the Business Day when such payment was required to be
made to the Lenders to but excluding the date on which such amount is paid in
full, the Federal Funds Rate plus 2.00%. The provisions of this subsection
(n) shall not affect or impair any of the obligations under this Agreement of
any Defaulting Lender to the Fronting Bank, all of which shall remain
unaffected by any default in payment by the Fronting Bank to such Defaulting
Lender.
If, in connection with any case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Borrower or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect, or if for any other reason whatsoever, the Fronting Bank shall be
required to return to the Borrower or to a trustee, receiver, liquidator,
custodian or other similar official all or any portion of any payments to the
Lenders pursuant to this subsection (n) or interest thereon (a "Returned
Payment"), each Lender shall, upon demand of the Fronting Bank, forthwith
return to the Fronting Bank any amounts transferred to such Lender by the
Fronting Bank in respect thereof pursuant to this subsection (n) plus such
Lender's pro rata share (determined in accordance with such Lender's
Percentage) of interest (if any) that the Fronting Bank is required to pay to
such trustee, receiver, liquidator, custodian or other similar official with
respect to any Returned Payment.
(o) Concerning the Fronting Bank. The Fronting Bank will exercise and
give the same care and attention to the Letters of Credit as it gives to its
other letters of credit and similar obligations, and each Lender agrees that
the Fronting Bank's sole liability to each Lender shall be (i) to distribute
promptly, as and when received by the Fronting Bank, and in accordance with
the provisions of subsection (n) above, such Lender's pro rata share
(determined in accordance with such Lender's Percentage) of any payments to
the Fronting Bank by the Borrower pursuant to subsection (g) above in respect
of Drawings under the Letters of Credit, (ii) to exercise or refrain from
exercising any right or to take or to refrain from taking any action under
this Agreement or any Letter of Credit as may be directed in writing by the
Majority Lenders (or, when expressly required by the terms of this Agreement,
all of the Lenders) or the Administrative Agent acting at the direction and
on behalf of the Majority Lenders (or, when expressly required by the terms
of this Agreement, all of the Lenders), except to the extent required by the
terms hereof or thereof or by applicable law, and (iii) as otherwise
expressly set forth in this Section 2.02. The Fronting Bank shall not be
liable for any action taken or omitted at the request or with approval of the
Majority Lenders (or, when expressly required by the terms of this Agreement,
all of the Lenders) or of the Administrative Agent acting on behalf of the
Majority Lenders (or, when expressly required by the terms of this Agreement,
all of the Lenders) or for the nonperformance of the obligations of any other
party under this Agreement, any Letter of Credit or any other document
contemplated hereby or thereby. Without in any way limiting any of the
foregoing, the Fronting Bank may rely upon the advice of counsel concerning
legal matters and upon any written communication or any telephone
conversation that it believes to be genuine or to have been signed, sent or
made by the proper Person and shall not be required to make any inquiry
concerning the performance by the Borrower, any Beneficiary or any other
Person of any of their respective obligations and liabilities under or in
respect of this Agreement, any Letter of Credit or any other documents
contemplated hereby or thereby. The Fronting Bank shall not have any
obligation to make any claim, or assert any Lien, upon any property held by
the Fronting Bank or assert any offset thereagainst in satisfaction of all or
any part of the obligations of the Borrower hereunder; provided that the
Fronting Bank shall, if so directed by the Majority Lenders or the
Administrative Agent acting on behalf of and with the consent of the Majority
Lenders, have an obligation to make a claim, or assert a Lien, upon property
held by the Fronting Bank in connection with this Agreement, or assert an
offset thereagainst.
The Fronting Bank may accept deposits from, make loans or otherwise extend
credit to, and generally engage in any kind of banking or trust business with
the Borrower or any of its Affiliates, or any other Person, and receive
payment on such loans or extensions of credit and otherwise act with respect
thereto freely and without accountability in the same manner as if this
Agreement and the transactions contemplated hereby were not in effect.
The Fronting Bank makes no representation or warranty and shall have no
responsibility with respect to: (i) the genuineness, legality, validity,
binding effect or enforceability of this Agreement or any other documents
contemplated hereby; (ii) the truthfulness, accuracy or performance of any of
the representations, warranties or agreements contained in this Agreement or
any other documents contemplated hereby; (iii) the collectibility of any
amounts due under this Agreement; (iv) the financial condition of the
Borrower or any other Person; or (v) any act or omission of any Beneficiary
with respect to its use of any Letter of Credit or the proceeds of any
Drawing under any Letter of Credit.
(p) Indemnification of Fronting Bank by Lenders. To the extent that
the Fronting Bank is not reimbursed and indemnified by the Borrower under
Section 10.04 hereof, each Lender agrees to reimburse and indemnify the
Fronting Bank on demand, pro rata in accordance with such Lender's
Percentage, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by or asserted against the Fronting Bank, in any way relating to or
arising out of this Agreement, any Letter of Credit or any other document
contemplated hereby or thereby, or any action taken or omitted by the
Fronting Bank under or in connection with this Agreement, any Letter of
Credit or any other document contemplated hereby or thereby; provided,
however, that such Lender shall not be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Fronting Bank's
gross negligence or willful misconduct; and provided further, however, that
such Lender shall not be liable to the Fronting Bank or any other Lender for
the failure of the Borrower to reimburse the Fronting Bank for any drawing
made under a Letter of Credit with respect to which such Lender has paid the
Fronting Bank such Lender's pro rata share (determined in accordance with
such Lender's Percentage), or for the Borrower's failure to pay interest
thereon. Each Lender's obligations under this subsection (p) shall survive
the payment in full of all amounts payable by such Lender under subsection
(l), above, and the termination of this Agreement and the Letters of Credit.
Nothing in this subsection (p) is intended to limit any Lender's
reimbursement obligation contained in subsection (l), above.
(q) Representations of Lenders. As between the Fronting Bank and the
Lenders, by its execution and delivery of this Agreement each Lender hereby
represents and warrants solely to the Fronting Bank that (i) it is duly
organized and validly existing in good standing under the laws of the
jurisdiction of its formation, and has full corporate power, authority and
legal right to execute, deliver and perform its obligations to the Fronting
Bank under this Agreement; and (ii) this Agreement constitutes its legal,
valid and binding obligation enforceable against it in accordance with the
terms hereof, except as such enforceability may be limited by applicable bank
organization, moratorium, conservatorship or other laws now or hereafter in
effect affecting the enforcement of creditors rights in general and the
rights of creditors of banks, and except as such enforceability may be
limited by general principles of equity (whether considered in a proceeding
at law or in equity).
(r) Multiple Fronting Banks. If there shall be more than one Fronting
Bank holding Outstanding Credits at any time hereunder, each such Fronting
Bank shall, with respect to the Letters of Credit issued by it and the
Reimbursement Obligations owing to it, be regarded hereunder as the "Fronting
Bank" and shall have all the rights, interests, protections and obligations
of the "Fronting Bank" hereunder with respect to such Letters of Credit and
Reimbursement Obligations and all matters relating thereto. Whenever any
action may be, or is required to be, taken by the Fronting Bank hereunder,
each Fronting Bank may, or shall, take such action only in respect of the
Letters of Credit issued by it and the Reimbursement Obligations owing to it.
Whenever the consent of the Fronting Bank is required hereunder with respect
to any proposed action, the consent of each Fronting Bank holding Outstanding
Credits shall be required for such proposed action to be taken. Any notice
to be provided to the Fronting Bank shall be provided to each Fronting Bank
holding Outstanding Credits, and each such Fronting Bank shall have the right
to request any information, and take any other action, as the Fronting Bank
is permitted to do hereunder. If at any time no Letters of Credit and no
Reimbursement Obligations are outstanding, then Bank One, NA, in its capacity
as Fronting Bank, shall have the sole right and/or obligation to take any
action or issue any consent that the Fronting Bank may, or is required to,
take or issue hereunder. The protections accorded the Fronting Bank
hereunder shall inure to the benefit of each Fronting Bank holding
Outstanding Credits from time to time hereunder, regardless of whether the
same are outstanding at the time as the benefits of such protections are
asserted.
(s) Existing Letters of Credit. The Borrower hereby acknowledges and
agrees that each of (i) Irrevocable Letter of Credit No. 306S232080, dated
July 30, 1999, in the stated amount of $11,000,000, issued by Union Bank to
GPU Energy for the account of Select Energy, Inc., and (ii) Irrevocable
Letter of Credit No. 00365327, dated November 30, 1998, in the stated amount
of $50,000,000, issued by Bank One, NA (formerly known as The First National
Bank of Chicago) to Boston Edison Company for the account of Select Energy,
Inc. (the letters of credit described in the foregoing clauses (i) and (ii)
being referred to herein as the "Existing LCs"), shall, from and after the
Closing Date, be deemed to be a "Letter of Credit" issued under this
Agreement for the account of the Borrower, and the reimbursement obligations
in respect of any drawing made by the beneficiary with respect to any
Existing LC shall, from and after the Closing Date, constitute "Reimbursement
Obligations" of the Borrower under this Agreement, and the Outstanding
Credits shall be increased, and the Available Commitments shall be decreased,
by an amount equal to the stated amounts of the Existing LCs upon the Closing
Date. Each of the Lenders acknowledges and consents to the terms of this
subsection (s).
SECTION 2.03. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (the
"Commitment Fee") on the amount of such Lender's Available Commitment at the
Applicable Commitment 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. The Commitment Fee payable by the Borrower shall be
calculated and accrued daily and shall be payable quarterly in arrears on the
last day of each December, March, June and September, commencing the first
such date following the Closing Date, with final payment payable on the
Termination Date.
(b) The Borrower further agrees to pay the fees specified in the Fee
Letter (including the "Fronting Fee" referred to therein) to the parties
entitled thereto, together with such other fees as may be separately agreed
to by the Borrower and the other parties thereto or their respective
Affiliates.
(c) The Borrower shall pay to the Administrative Agent, for the account
of the Lenders, a fee in an amount equal to the then Applicable Margin for
outstanding Eurodollar Advances multiplied by the Stated Amount of each
Letter of Credit, in each case for the number of days that such Letter of
Credit is issued but undrawn, payable quarterly in arrears.
SECTION 2.04. Reduction of the Commitments. The Borrower may, at
any time, by providing at least three Business Days' prior written notice to
the Administrative Agent, terminate in whole or reduce in part the
Commitments on a pro rata basis with respect to each Lender; provided, that
any such partial reduction shall be in a minimum aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof; provided,
further, that the Commitments may not be reduced to an amount that is less
than the aggregate Stated Amount of outstanding Letters of Credit. Subject
to the foregoing, any reduction of the Commitments by an amount in excess of
the Borrowing Sublimit shall result in a reduction of the L/C Commitment
Amount to the extent of such excess. Each such notice of termination or
reduction shall be irrevocable.
SECTION 2.05. Extension of the Termination Date. Unless the
Termination Date shall have previously occurred in accordance with its terms,
at least 45 days but not more than 60 days before the Termination Date, as
then in effect, the Borrower may, by notice to the Administrative Agent (any
such notice being irrevocable), request the Administrative Agent, the
Fronting Bank and the Lenders to extend the Termination Date for a period of
364 days. If the Borrower shall make such request, the Administrative Agent
shall promptly inform the Fronting Bank and the Lenders thereof and, no later
than 30 days prior to the Termination Date as then in effect, the
Administrative Agent shall notify the Borrower in writing if the Fronting
Bank and 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 the Fronting
Bank and each Lender, and, if the Fronting Bank or any Lender shall not so
notify the Administrative Agent or, if the Administrative Agent shall not so
notify the Borrower, such lack of notification shall be deemed to be a
determination not to consent to such request. No such extension shall occur
unless the Fronting Bank and all of the Lenders consent in writing thereto
(or, in the case of the Lenders, 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 Borrower and the
Administrative Agent, agree to assume all of the Commitments of the non-
consenting Lenders).
ARTICLE III
CONTRACT ADVANCES
SECTION 3.01. Contract Advances. More than one Contract Borrowing
may be made on the same Business Day. Each Contract Borrowing shall consist
of Contract Advances of the same Type and Interest Period made to the
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 to the Administrative Agent, by hand
or facsimile, not later than 11:00 a.m. (New York City time) (i) in the case
of Eurodollar Rate Advances, on the third Business Day prior to the date of
the proposed Borrowing and (ii) in the case of Base Rate Advances, on the day
of the proposed Borrowing. Upon receipt of a Notice of Contract Borrowing,
the Administrative Agent shall notify the Lenders thereof promptly on the day
so received. Each Notice of Contract Borrowing shall specify therein:
(i) the requested (A) date of such Borrowing, (B) principal amount and Type
of Advances comprising such Borrowing and (C) initial Interest Period for
such Advances; and (ii) the aggregate amount of Outstanding Credits on such
date after giving effect to such proposed Borrowing. Each proposed Borrowing
shall be subject to the satisfaction of the conditions precedent thereto as
set forth in Article V hereof.
SECTION 3.02. Terms Relating to the Making of Contract Advances.
(a) Notwithstanding anything in Section 3.01 above to the contrary:
(i) at no time shall more than twelve different Contract Borrowings be
outstanding hereunder;
(ii) each Contract Borrowing hereunder which is to be comprised of Base Rate
Advances shall be in an aggregate principal amount of not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof, or such
lesser amount as shall be equal to the total amount of the Available
Commitments on such date, after giving effect to all other Contract
Borrowings to be made to, or repaid or prepaid by, the Borrower on such date;
and
(iii) each Contract Borrowing hereunder which is to be comprised of
Eurodollar Rate Advances shall be in an aggregate principal amount of not
less than $5,000,000 or an increment of $1,000,000 in excess thereof.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower.
SECTION 3.03. (a) Making of Advances. Each Lender shall, before 1:00 p.m.
(New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's address referred to in Section 10.02, in same day
funds, such Lender's portion of such Borrowing. Contract Advances shall
be made by the Lenders ratably in accordance with their several Commitments.
After the Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article V, the Administrative Agent
will make such funds available to the Borrower at the Administrative Agent's
aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the time of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 3.03, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower 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 the 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 the Borrower
until the date such amount is repaid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. Nothing herein shall in any way limit, waive or
otherwise reduce any claims that any party hereto may have against any non-
performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 3.04. Repayment of Advances. The Borrower shall repay the
principal amount of each Advance made to it hereunder on the Termination
Date.
SECTION 3.05. Interest. (a) Interest Periods. (i) The period
commencing on the date of each Advance and ending on the last day of the
period selected by the Borrower with respect to such Advance pursuant to the
provisions of this Section 3.05 is referred to herein as an "Interest
Period". The duration of each Interest Period shall be (i) in the case of
any Eurodollar Rate Advance, one, two or three months and (ii) in the case of
any Base Rate Advance, the period of time beginning on the date of the making
of, or the conversion of an outstanding Advance into, such Advance and ending
on the last day of March, June, September or December next following the date
on which such Advance was made; provided, however, that no Interest Period
may be selected by the Borrower if such Interest Period would end after the
Termination Date.
(ii) Subject to the terms and conditions of this Agreement, the initial
Interest Period for any Advance made to the Borrower shall be determined by
the Borrower as set forth in its Notice of Contract Borrowing with respect to
such Advance. The Borrower may elect to continue or convert one or more
Advances of any Type and having the same Interest Period to one or more
Advances of the same or any other Type and having the same or a different
Interest Period on the following terms and subject to the following
conditions:
(A) Each continuation or conversion shall be made as to all Advances
comprising a single Borrowing upon written notice given by the Borrower to
the Administrative Agent not later than 11:00 a.m. (New York City time) on
the third Business Day prior to the date of the proposed continuation of or
conversion, in the case of a continuation or conversion to a Eurodollar Rate
Advance, or on the day of the proposed continuation of or conversion to a
Base Rate Advance. The Administrative Agent shall notify each Lender of the
contents of such notice promptly after receipt thereof. Each such notice
shall specify therein the following information: (1) the date of such
proposed continuation or conversion (which in the case of Eurodollar Rate
Advances shall be the last day of the Interest Period then applicable to such
Advances to be continued or converted), (2) the Type of, and Interest Period
applicable to the Advances proposed to be continued or converted converted,
(3) the aggregate principal amount of Advances proposed to be continued or
converted, and (4) the Type of Advances to which such Advances are proposed
to be continued or converted and the Interest Period to be applicable
thereto.
(B) During the continuance of an Unmatured Default, the right of the
Borrower to continue or convert Advances to Eurodollar Rate Advances shall be
suspended, and all Eurodollar Rate Advances then outstanding shall be
converted to Base Rate Advances on the last day of the Interest Period then
in effect, if, on such day, an Unmatured Default shall be continuing.
(C) During the continuance of an Event of Default, the right of the
Borrower to continue or convert Advances to Eurodollar Rate Advances shall be
suspended, and upon the occurrence of an Event of Default, all Eurodollar
Rate Advances then outstanding shall immediately, without further act by the
Borrower, be converted to Base Rate Advances.
(D) If no notice of continuation or conversion is received by the
Administrative Agent as provided in paragraph (A), above, with respect to any
outstanding Advances on or before the third Business Day prior to the last
day of the Interest Period then in effect for such Advances, the
administrative Agent shall treat such absence of notice as a deemed notice of
continuation or conversion providing for such Advances to be continued as or
converted to Base Rate Advances with an Interest Period of three months
commencing on the last day of such Interest Period.
(b) Interest Rates. The Borrower shall pay interest on the unpaid
principal amount of each Advance owing by the Borrower from the date of such
Advance until such principal amount shall be paid in full, at the Applicable
Rate for such Advance (except as otherwise provided in this subsection (b)),
payable as follows:
(i) Eurodollar Rate Advances. If such Advance is a Eurodollar Rate Advance,
interest thereon shall be payable on the last day of the Interest Period
applicable thereto and on the Termination Date; provided that during the
continuance of any Event of Default, such Advance shall bear interest at a
rate per annum equal at all times to 2% per annum above the Applicable Rate
for such Advance for such Interest Period, or, if higher, the Applicable
Margin plus 2.0% per annum above the Applicable Rate in effect from time to
time for Base Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate Advance, interest
thereon shall be payable quarterly on the last day of each March, June,
September and December and on the date such Base Rate Advance shall be paid
in full; provided that during the continuance of any Event of Default, such
Advance shall bear interest at a rate per annum equal at all times to 2% per
annum above the Applicable Rate for such Advance for such Interest Period.
(c) Other Amounts. Except as otherwise provided in Section 2.02(g)(ii), any
other amounts payable hereunder that are not paid when due shall (to the
fullest extent permitted by law) bear interest, from the date when due until
paid in full, at a rate per annum equal at all times to 2.0% per annum above
the Applicable Rate in effect from time to time for Base Rate
Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent shall give
prompt notice to the Borrower and the Lenders of the Applicable Rate
determined from time to time by the Administrative Agent for each Contract
Advance. 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.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations. (a) The 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 or, with respect to payments made in respect of Reimbursement
Obligations, the Fronting Bank, at its address referred to in Section 10.02
hereof, in same day funds. The Administrative Agent or the Fronting Bank, as
the case may be, 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
or the Fronting Bank, as the case may be, 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) The Borrower hereby authorizes the Administrative Agent, the
Fronting Bank and each Lender, if and to the extent payment owed to the
Administrative, the Fronting Bank 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 the
Borrower's accounts with the Administrative Agent, the Fronting Bank or such
Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Base Rate (except when
determined on the basis of the Federal Funds Rate) shall be made on the basis
of a year of 365 or 366 days, as the case may be. All computations of
interest and other amounts payable pursuant to Section 4.03 shall be made by
the Lender claiming such interest or other amount on the basis of a year of
360 days. All other computations of interest, including computations of
interest based on the Eurodollar Rate, the Base Rate (when and if determined
on the basis of the Federal Funds Rate), and all computations of fees and
other amounts payable hereunder, shall be made 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, the Fronting Bank or a
Lender shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment under any Loan Document shall be stated to be
due, or the last day of an Interest Period hereunder shall be stated to
occur, on a day other than a Business Day, such payment shall be made, and
the last day of such Interest Period shall occur, on the next succeeding
Business Day, and such extension of time shall in such case be included in
the computation of payment of interest and fees hereunder; provided, however,
that if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made, or the last day of an Interest Period
for a Eurodollar Rate Advance to occur, in the next following calendar month,
such payment shall be made on the next preceding Business Day and such
reduction of time shall in such case be included in the computation of
payment of interest hereunder.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the 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 the 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) The Borrower shall not have any right
to prepay any Contract Advances except in accordance with subsections (b) and
(c), below.
(b) The 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, the Borrower shall, prepay Contract Advances comprising part
of the same Borrowing, in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid and
any amounts owing in connection therewith pursuant to Section 4.03(d);
provided, however, that each partial prepayment shall be in an aggregate
principal amount not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(c) If at any time, the aggregate principal amount of Outstanding
Credits shall exceed the Total Commitment, the Borrower shall forthwith
prepay Advances and/or deposit funds in the Cash Collateral Account in a
principal amount equal to such excess. If at any time, the aggregate
principal amount of Advances outstanding to the Borrower shall exceed the
Borrowing Sublimit, the Borrower shall forthwith prepay Advances in a
principal amount equal to such excess. All prepayments pursuant to this
subsection (c) shall be effected from outstanding Contract Advances
comprising part of the same Borrowing or Borrowings and shall be accompanied
by payment of accrued interest to the date of such prepayment on the
principal amount prepaid and any amounts owing in connection therewith
pursuant to Section 4.03(d).
SECTION 4.03. Yield Protection. (a) Change in Circumstances.
Notwithstanding any other provision herein, if after the date hereof; the
adoption of or any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation of payments
to the Fronting Bank or any Lender of the principal of or interest on any
Eurodollar Rate Advance made by such Lender or any fees or other amounts
payable hereunder (other than changes in respect of taxes imposed on the
overall net income of the Fronting Bank or such Lender, or its Applicable
Lending Office, by the jurisdiction in which the Fronting Bank or 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 letters of credit (or participatory interests
therein) issued by, commitments or assets of, deposits with or for the
account of, or credit extended by, the Fronting Bank or such Lender, or
(iii) shall impose on the Fronting Bank or such Lender any other condition
affecting this Agreement, the Letters of Credit or participatory interests
therein or Eurodollar Rate Advances, and the result of any of the foregoing
shall be (A) to increase the cost to the Fronting Bank or such Lender of
issuing, maintaining or participating in this Agreement or the Letter of
Credit or of agreeing to make, making or maintaining any Advance or (B) to
reduce the amount of any sum received or receivable by the Fronting Bank or
such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to the Fronting Bank or such Lender, upon demand, such
additional amount or amounts as will compensate the Fronting Bank or such
Lender for such additional costs incurred or reduction suffered.
(b) Capital. If the Fronting Bank or 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 the Fronting Bank or any Lender
(or any Applicable Lending Office of the Fronting Bank or such Lender), or
any holding company of any such entity, 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 entity's capital or on the
capital of such entity's holding company, if any, as a consequence of this
Agreement, the Letters of Credit or such entity's participatory interest
therein, any Commitment hereunder or the portion of the Advances made by such
entity pursuant hereto to a level below that which such entity or such
entity's holding company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such entity's
policies and the policies of such entity's holding company with respect to
capital adequacy), or (ii) of increasing or otherwise determining the amount
of capital required or expected to be maintained by such entity or such
entity's holding company based upon the existence of this Agreement, the
Letters of Credit or such entity's participatory interest therein, any
Commitment hereunder, the portion of the Advances made by such entity
pursuant hereto and other similar such credits, participations, commitments,
agreements or assets, then from time to time the Borrower shall pay to the
Fronting Bank or such Lender, upon demand, such additional amount or amounts
as will compensate such entity or such entity's holding company for any such
reduction or allocable capital cost suffered.
(c) Eurodollar Reserves. The 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 the 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 Borrower and the Administrative Agent.
(d) Breakage Indemnity. The 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 the Borrower to fulfill on the
date of any Borrowing or conversion of Advances hereunder the applicable
conditions precedent set forth in Articles III and V, (ii) any failure by the
Borrower to borrow any, or convert any outstanding Advance into a, Eurodollar
Rate Advance hereunder after a Notice of Contract Borrowing has been
delivered pursuant to Section 3.01 hereof or after delivery of a notice of
conversion pursuant to Section 3.05(a)(ii) hereof, (iii) any payment,
prepayment or conversion of a Eurodollar Rate Advance required or permitted
by any other provision of this Agreement or otherwise made or deemed made on
a date other than the last day of the Interest Period applicable thereto,
(iv) any default in payment or prepayment of the principal amount of any
Eurodollar Rate Advance made to the 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, including, in each such case, any loss or reasonable
expense sustained or incurred or to be sustained or incurred in liquidating
or employing deposits from third parties acquired to effect or maintain such
Advance or any part thereof as a Eurodollar Rate Advance. Such loss, cost or
reasonable expense shall include an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of obtaining the funds
for the Eurodollar Rate Advance being paid, prepaid, converted or not
borrowed for the period from the date of such payment, prepayment, conversion
or failure to borrow to the last day of the Interest Period for such Advance
(or, in the case of a failure to borrow, the Interest Period for such Advance
which would have commenced on the date of such failure) over (B) the amount
of interest (as reasonably determined by such Lender) that would be realized
by such Lender in reemploying the funds so paid, prepaid, converted or not
borrowed for such period or Interest Period, as the case may be. For
purposes of this subsection (d), it shall be presumed that in the case of any
Eurodollar Rate Advance, each Lender shall have funded each such Advance with
a fixed-rate instrument bearing the rates and maturities designated in the
determination of the Applicable Rate for such Advance.
(e) Notices. A certificate of the Fronting Bank or any Lender setting
forth such entity's claim for compensation hereunder and the amount necessary
to compensate such entity or its holding company pursuant to subsections (a)
through (d) of this Section 4.03 shall be submitted to the Borrower and the
Administrative Agent and shall be conclusive and binding for all purposes,
absent manifest error. The Borrower shall pay the Fronting Bank or such
Lender directly the amount shown as due on any such certificate within
10 days after its receipt of the same. The failure of any entity to provide
such notice or to make demand for payment under this Section 4.03 shall not
constitute a waiver of such entity's rights hereunder; provided that such
entity shall not be entitled to demand payment pursuant to subsections (a)
through (d) of this Section 4.03 in respect of any loss, cost, expense,
reduction or reserve, if such demand is made more than one year following the
later of such entity's incurrence or sufferance thereof or such entity's
actual knowledge of the event giving rise to such entity's rights pursuant to
such subsections. The Fronting Bank and 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 such entity to assert any
possible invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
(f) Change in Legality. Notwithstanding any other provision herein, if
the adoption of or any change in any law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Rate Advance or to
give effect to its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrower and the
Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not thereafter be made by
such Lender hereunder, whereupon the right of the Borrower to select
Eurodollar Rate Advances for any Borrowing or conversion shall be forthwith
suspended until such Lender shall withdraw such notice as provided
hereinbelow or shall cease to be a Lender hereunder pursuant to Section
10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances be converted to
Base Rate Advances, in which event all Eurodollar Rate Advances shall be
automatically converted to Base Rate Advances as of the effective date of
such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall promptly
notify the other Lenders. Promptly upon becoming aware that the
circumstances that caused such Lender to deliver such notice no longer exist,
such Lender shall deliver notice thereof to the Borrower 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 Borrower and the Lenders and such
suspension shall terminate. Prior to any Lender giving notice to the
Borrower 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
Borrower by any Lender shall be effective as to each Eurodollar Rate Advance
on the last day of the Interest Period currently applicable to such
Eurodollar Rate Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be unlawful, such
notice shall be effective on the date of receipt by the Borrower and the
Administrative Agent.
(g) Market Rate Disruptions. If (i) fewer than two Reference Banks
furnish timely information to the Administrative Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances in connection with any proposed
Borrowing or (ii) if the Majority Lenders shall notify the Administrative
Agent that the Eurodollar Rate will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances, the right of the Borrower to select or receive
Eurodollar Rate Advances for any Borrowing shall be forthwith suspended until
the Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist, and until such
notification from the Administrative Agent, each requested Borrowing of
Eurodollar Rate Advances hereunder shall be deemed to be a request for Base
Rate Advances.
(h) Rights of Participants. Any participant in a Lender's
interests hereunder may assert any claim for yield protection under
Section 4.03 that it could have asserted if it were a Lender hereunder. If
such a claim is asserted by any such participant, it shall be entitled to
receive such compensation from the Borrower as a Lender would receive in like
circumstances; provided, however, that with respect to any such claim, the
Borrower shall have no greater liability to the Lender and its participant,
in the aggregate, than it would have had to the Lender alone had no such
participation interest been created.
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 Borrower) 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 Borrower agrees 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 the 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 the 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, the Fronting Bank 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, the Fronting Bank 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 the 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, the Fronting Bank 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, the Fronting Bank 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) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the 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 the 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) The Borrower hereby indemnifies each Lender, the Fronting Bank 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,
the Fronting Bank 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 claim for such indemnification shall be set forth in
a certificate of such Lender, the Fronting Bank or the Administrative Agent
(as the case may be) setting forth in reasonable detail the amount necessary
to indemnify such Person pursuant to this subsection (c) and shall be
submitted to the Borrower and the Administrative Agent and shall be
conclusive and binding for all purposes, absent manifest error. The Borrower
shall pay such Lender, the Fronting Bank or the Administrative Agent (as the
case may be) 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, the Fronting Bank or the Administrative Agent has received payments
from the Borrower hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to such Lender, the
Fronting Bank or the Administrative Agent, such Lender, the Fronting Bank or
the Administrative Agent, as the case may be, shall promptly forward to the
Borrower any such refunded amount. The Borrower's, the Administrative
Agent's, the Fronting Bank's and each Lender's obligations under this
Section 4.05 shall survive the payment in full of the Outstanding Credits.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
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 Borrower and the Administrative
Agent such certificates, documents or other evidence, as required by the
Internal Revenue Code of 1986, as amended from time to time (the "Code"), or
treasury regulations issued pursuant thereto, including Internal Revenue
Service Form 4224 or Form 1001 and any other certificate or statement of
exemption required by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly completed and
duly executed by such Lender establishing that it is (i) not subject to
withholding under the Code or (ii) totally exempt from United States of
America tax under a provision of an applicable tax treaty. Each Lender shall
promptly notify the Borrower and the Administrative Agent of any change in
its Applicable Lending Office and shall deliver to the Borrower 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 Borrower and the
Administrative Agent as promptly as practicable of any impending change in
its tax status that would give rise to any obligation by the Borrower to pay
any additional amounts pursuant to this Section 4.05. Unless the Borrower 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 Borrower 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 Borrower 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
Borrower or to change the jurisdiction of its Applicable Lending Office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would
not, in the sole determination of such Lender, be otherwise disadvantageous
to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The obligations
of the Fronting Bank and the Lenders to make Extensions of Credit hereunder
shall not become effective until the date (the "Closing Date") on which each
of the following conditions is satisfied:
(a) The Administrative Agent shall have received on or before the
Closing Date the following, each dated the Closing Date, in form and
substance satisfactory to the Administrative Agent and in sufficient copies
for the Fronting Bank and each Lender (except for the Notes):
(i) Counterparts of this Agreement, duly executed by the Borrower.
(ii) Contract Notes of the Borrower, duly made to the order of each Lender in
the amount of such Lender's Commitment.
(iii) A certificate of the Secretary or Assistant Secretary of the
Borrower certifying:
(A) the names and true signatures of the officers of the Borrower
authorized to sign the Loan Documents;
(B) that attached thereto are true and correct copies of: (1) the
Declaration of Trust of the Borrower, together with all amendments thereto,
as in effect on such date; (2) the resolutions of the Borrower's Board of
Trustees approving the execution, delivery and performance by the Borrower of
the Loan Documents; (3) all documents evidencing other necessary corporate or
other similar action, if any, with respect to the execution, delivery and
performance of the Loan Documents by the Borrower; 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 by the Borrower
in connection with the execution, delivery and performance by the Borrower of
the Loan Documents (including the order of the Securities and Exchange
Commission); and
(C) that the resolutions referred to in the foregoing clause (B)(2)
have not been modified, revoked or rescinded and are in full force and effect
on such date.
(iv) A certificate signed by the Treasurer or Assistant Treasurer of the
Borrower, certifying as to:
(A) the delivery to the Fronting Bank and 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
(B) the absence of any material adverse change in the financial
condition, operations, properties or prospects of the Borrower or the
Borrower and its Principal Subsidiaries, taken as a whole, since June 30,
1999, except as disclosed in the Disclosure Documents.
(v) A certificate of a duly authorized officer of the Borrower stating that
(i) the representations and warranties of the Borrower contained in Section
6.01 are correct, in all material respects, on and as of the Closing Date
before and after giving effect to any Extensions of Credit to be made on such
date and the application of the proceeds thereof, and (ii) no event has
occurred and is continuing which constitutes an Event of Default or Unmatured
Default, or would result from such initial Extensions of Credit or the
application of the proceeds thereof.
(vi) Such financial, business and other information regarding the Borrower
and its Principal Subsidiaries, as the Fronting Bank or any Lender shall have
reasonably requested.
(vii) Favorable opinions of:
(A) Day, Berry & Howard, counsel to the Borrower, in substantially the
form of Exhibit 5.01A hereto and as to such other matters as the Fronting
Bank or any Lender may reasonably request;
(B) Jeffrey C. Miller, Assistant General Counsel of NUSCO, in
substantially the form of Exhibit 5.01B hereto; and as to such other matters
as the Fronting Bank or any Lender may reasonably request; and
(C) King & Spalding, special New York counsel to the Administrative
Agent, in substantially the form of Exhibit 5.01C hereto and as to such other
matters as the Fronting Bank or any Lender may reasonably request.
(viii) Irrevocable notice to the administrative agent, the lender or other
responsible Person under each Existing Credit Facility notifying such Person
of the termination of the commitments or commitment of the lenders or lender
or other credit provider thereunder, effective on or before the Closing Date.
(b) The commitments or commitment under each Existing Credit Facility
shall have been terminated and all amounts outstanding thereunder shall have
been (or will have been, upon the first Advance and the application of the
proceeds thereof on the Closing Date) paid in full.
(c) All fees and other amounts payable pursuant to Section 2.03 hereof
or pursuant to the Fee Letter shall have been paid (to the extent then due
and payable).
(d) The Administrative Agent shall have received such other approvals,
opinions and documents as the Fronting Bank or 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 the Borrower
and its Principal Subsidiaries.
SECTION 5.02. Conditions Precedent to All Extensions of Credit. The
obligation of the Fronting Bank or any Lender to make any Extension of
Credit, including the initial Extension of Credit, shall be subject to the
conditions precedent that, on the date of such Extension of Credit 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 Letter of Credit Request with
respect to such Extension of Credit and the acceptance of the proceeds of
such Extension of Credit by the Borrower or the acceptance of a Letter of
Credit by the Beneficiary thereof, as the case may be, shall constitute a
representation and warranty by the Borrower that on the date of such
Extension of Credit such statements are true):
(i) the representations and warranties of the Borrower contained in Section
6.01 of this Agreement are correct, in all material respects, on and as of
the date of such Extension of Credit, before and after giving effect to such
Extension of Credit 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 has occurred and is continuing
on or as of the date of such Extension of Credit or would result from such
Extension of Credit or from the application of the proceeds thereof;
(iii) the making of such Extension of Credit, when aggregated with all other
Outstanding Credits, would not cause the aggregate amount of Outstanding
Credits to exceed the Total Commitment; and
(iv) if such Extension of Credit is (A) the making of an Advance, such
Advance, when aggregated with all other Advances outstanding to or requested
by the Borrower, would not cause the Borrowing Sublimit to be exceeded, or
(B) the issuance of a Letter of Credit, the Stated Amount thereof, when
aggregated with (1) the Stated Amount of each other Letter of Credit that is
outstanding or with respect to which a Letter of Credit Request has been
received and (2) the outstanding Reimbursement Obligations, would not cause
the L/C Commitment Amount to be exceeded; and
(b) the Borrower shall have furnished to the Administrative Agent such
other approvals, opinions or documents as the Fronting Bank or any Lender may
reasonably request through the Administrative Agent as to the legality,
validity, binding effect or enforceability of any Loan Document.
SECTION 5.03. Reliance on Certificates. The Fronting Bank, the Lenders
and the Administrative Agent shall be entitled to rely conclusively upon the
certificates delivered from time to time by officers of the 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 the 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 the Borrower
thereafter authorized to act on behalf of the Borrower and, in all cases, the
Fronting Bank, 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 Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a voluntary association organized under a Declaration of
Trust, and each of its Principal Subsidiaries is a corporation, in each case
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 the Borrower, 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 the Borrower
or of the Borrower and its Principal Subsidiaries taken as a whole. The
Borrower has the requisite power to execute, deliver and perform its
obligations under the Loan Documents, to borrow hereunder and to execute
and deliver its respective Notes.
(b) The execution, delivery and performance of the Loan Documents by the
Borrower are within the Borrower's powers under its Declaration or Trust,
have been duly authorized by all necessary action under its Declaration of
Trust and applicable law, and do not and will not contravene (i) the
Borrower's Declaration of Trust or any law or legal restriction or (ii) any
contractual restriction binding on or affecting the Borrower or its
properties or its Principal Subsidiaries or their respective properties.
(c) Except as disclosed in the Disclosure Documents, none of the Borrower or
any of its Principal Subsidiaries is 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 the Borrower or of the Borrower and its Principal Subsidiaries,
taken as a whole.
(d) There has been no material adverse development with respect to (i) the
proceedings of CL&P or WMECO to divest its generating assets, or (ii) any
orders, plans or authorizations for recovery of the stranded assets of CL&P
or WMECO, where any such development results, or would reasonably be expected
to result, in a material adverse effect on the financial condition,
properties, prospects or operations of the Borrower or of the Borrower and
its Principal Subsidiaries, taken as a whole, other than as described in the
Disclosure Documents.
(e) All Governmental Approvals referred to in clause (i) of the definition
of "Governmental Approvals" have been duly obtained or made, and all
applicable periods of time for review, rehearing or appeal with respect
thereto have expired, except as described below. If the period for appeal of
the order of the Securities and Exchange Commission approving the
transactions contemplated hereby has not expired, the filing of an appeal of
such order will not affect the validity of said transactions, unless such
order has been otherwise stayed or any of the parties hereto has actual
knowledge that any of such transactions constitutes a violation of the Public
Utility Holding Company Act of 1935 or any rule or regulation thereunder. No
such stay exists and the Borrower has no reason to believe that any of such
transactions constitutes any such violation. The Borrower and each
Subsidiary thereof has obtained or made all Governmental Approvals referred
to in clause (ii) 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 the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole, and (C) those which the Borrower or any such
Subsidiary, as the case may be, is diligently attempting in good faith to
obtain, renew or extend, or the requirement for which the Borrower or any
such Subsidiary, 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 (C), except as is disclosed in the 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 the Borrower or of the
Borrower and its Principal Subsidiaries, taken as a whole, or to magnify to
any significant degree any such material adverse effect that would
reasonably be expected to result from the absence of such Governmental
Approval.
(f) The Loan Documents are legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms; subject to the qualification, however, that the enforcement of the
rights and remedies herein and therein is subject to bankruptcy and other
similar laws of general application affecting rights and remedies of
creditors and the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(g) The Financial Statements, copies of which have been provided to the
Administrative Agent, the Fronting Bank and each of the Lenders, fairly
present in all material respects the consolidated financial condition and
results of operations of the Borrower and each of its Principal Subsidiaries
at and for the period ended on the dates thereof, and have been prepared in
accordance with generally accepted accounting principles consistently
applied. Since June 30, 1999, there has been no material adverse change in
the consolidated financial condition, operations, properties or prospects of
the Borrower or of the Borrower and its Principal Subsidiaries, taken as a
whole, except as disclosed in the 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 the Borrower, any Principal
Subsidiary thereof or any of their respective properties, before any court,
governmental agency or arbitrator (i) which affects or purports to affect the
legality, validity or enforceability of any Loan Document or (ii) as to which
there is a reasonable possibility of an adverse determination and which, if
adversely determined, would materially adversely affect the financial
condition, properties, prospects or operations of the Borrower or of the
Borrower and its Principal Subsidiaries, taken as a whole, except, for
purposes of this clause (ii) only, such as is described in the 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 the
Borrower or of the Borrower and its Principal 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 the Borrower or
of the Borrower and its Principal Subsidiaries, taken as a whole. Neither
the 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) The Borrower and each Principal Subsidiary thereof has good and
marketable title (or, in the case of personal property, valid title) or valid
leasehold interests in its assets, except for (i) minor defects in title that
do not materially interfere with the ability of the Borrower or such
Principal Subsidiary to conduct its business as now conducted and (ii) other
defects that, either individually or in the aggregate, do not materially
adversely affect the financial condition, properties, prospects or operations
of the Borrower or of the Borrower and its Principal Subsidiaries, taken as a
whole. All such assets and properties are free and clear of any Lien, other
than Liens permitted under Section 7.02(a) hereof. No Liens exist on the
stock of CL&P, WMECO or PSNH.
(k) All outstanding shares of capital stock having ordinary voting power for
the election of directors of each Principal Subsidiary have been validly
issued and 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) The 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 the
Borrower or such Principal Subsidiary 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 the Borrower or its agents to the Administrative Agent, the
Fronting Bank or the Lenders in connection with the negotiation, execution
and closing of the Loan Documents (including, without limitation, the
Financial Statements and the Information Memorandum (but excluding the
projections contained in the Information Memorandum)) knowingly contained
when made any material misstatement of fact or knowingly omitted to state any
material fact necessary to make the statements contained therein not
misleading in light of the circumstances under which they were made. Except
as has been disclosed to the Administrative Agent, the Fronting Bank and each
Lender, the projections delivered concurrently with the Information
Memorandum were prepared in good faith on the basis of assumptions reasonable
as of the date of the Information Memorandum, it being understood that such
projections do not constitute a warranty or binding assurance of future
performance. Except as has been disclosed to the Administrative Agent, the
Fronting Bank and each Lender, nothing has come to the attention of the
responsible officers of the 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 the Borrower, including to provide liquidity support for the
Borrower's commercial paper, and (ii) to provide liquidity to the NU System
Money Pool. The Letters of Credit shall be used for the general corporate
purposes of the Borrower and its Subsidiaries. No proceeds of any Advance
will be used in violation of, or in any manner that would result in a
violation by any party hereto of, Regulation T, U or X promulgated by the
Board of Governors of the Federal Reserve System or any successor
regulations. Neither the Borrower nor any Subsidiary thereof (A) is an
"investment company" within the meaning ascribed to that term in the
Investment Company Act of 1940 and (B) is engaged in the business of
extending credit for the purpose of buying or carrying margin stock.
(o) The Borrower and each Principal Subsidiary thereof has obtained the
insurance specified in Section 7.01(c) hereof and the same is in full force
and effect.
(p) The Borrower and each Principal Subsidiary thereof has substantially
completed reprogramming and/or remediation required as a result of the
potential Year 2000 Issue to permit the proper functioning in all material
respects of its computer software, hardware and firmware systems and
equipment containing computer chips and the proper processing in all material
respects of data, and the testing of such reprogramming or remediation (as
the case may be). The Borrower has completed review of the reasonably
foreseeable consequences of the potential Year 2000 Issue to the Borrower and
each of its Principal Subsidiaries (including, without limitation,
reprogramming errors and the failure of systems or equipment supplied by
others) and such consequences are not reasonably expected to result in an
Event of Default, an Unmatured Default or a material adverse effect on the
financial condition, properties, prospects or operations of the Borrower or
of the Borrower and its Principal Subsidiaries, taken as a whole.
ARTICLE VII
COVENANTS
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, the Borrower shall, unless the Majority Lenders shall otherwise
consent in writing:
(a) Use of Proceeds. Apply the proceeds of each Advance, and use, and cause
its Subsidiaries to use, the Letters of Credit, solely as specified in
Section 6.01(n) hereof.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Principal Subsidiaries to pay and discharge, before the same shall become
delinquent, all taxes, assessments and governmental charges, royalties or
levies imposed upon it or upon its property except to the extent the Borrower
or such Principal Subsidiary 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, and cause
each of its Principal Subsidiaries to maintain or cause to be maintained,
insurance (including appropriate plans of self-insurance) covering the
Borrower, the 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 as the Borrower and such
Principal Subsidiaries.
(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 the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole.
(ii) In furtherance of the foregoing, and notwithstanding Section 7.02(b),
the Borrower agrees that it will not, and will cause each of its Principal
Subsidiaries not to, except in accordance with one or more restructuring
plans approved by the appropriate regulatory authorities, sell, transfer or
otherwise dispose of (by lease or otherwise, and whether in one or a series
of related transactions) any portion of its generation, transmission or
distribution assets in excess of 10% of the net utility plant assets of the
Borrower and its Principal Subsidiaries, taken as a whole, in each case as
determined on a cumulative basis from the date of this Agreement through the
Termination Date by reference to the published balance sheets of the Borrower
and its Principal Subsidiaries.
(e) Compliance with Laws, Etc. Comply, and cause each of its Principal
Subsidiaries to comply, in all material respects with the requirements of all
applicable laws, rules, regulations and orders of any governmental authority,
including, without limitation, any such laws, rules, regulations and orders
issued by the Securities and Exchange Commission or relating to zoning,
environmental protection, use and disposal of Hazardous Substances, land use,
construction and building restrictions, ERISA and employee safety and health
matters relating to business operations, except to the extent (i) that the
Borrower or any such Principal Subsidiary is contesting the same in good
faith by appropriate proceedings or (ii) that any such non-compliance,
and the enforcement or correction thereof, would not materially adversely
affect the financial condition, properties, prospects or operations of the
Borrower or of the Borrower and its Principal Subsidiaries, taken as a whole.
(f) Inspection Rights. At any time and from time to time upon reasonable
notice, permit, and cause each of its Principal Subsidiaries to 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, the Borrower and each Principal Subsidiary and to discuss the
affairs, finances and accounts of the Borrower and each Principal Subsidiary
(i) with the Borrower, each Principal Subsidiary and their respective
officers and directors and (ii) with the consent of the Borrower and/or its
Principal Subsidiaries, as the case may be (which consent shall not be
unreasonably withheld or delayed), with the accountants of the Borrower or
any such Principal Subsidiary.
(g) Keeping of Books. Keep, and cause each Principal Subsidiary to keep,
proper records and books of account, in which full and correct entries shall
be made of all financial transactions of the Borrower and each Principal
Subsidiary and the assets and business of the Borrower and each Principal
Subsidiary, 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, and cause each Principal
Subsidiary 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 each Principal
Subsidiary to maintain, title of the quality described therein and preserve,
maintain, develop, and operate, and cause each Principal Subsidiary 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 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, the Fronting
Bank 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 the Borrower or of the
Borrower and its Principal Subsidiaries, taken as a whole; provided, however,
that neither the Borrower nor any Principal Subsidiary will be prevented from
discontinuing the operation and maintenance of any such properties if such
discontinuance is, in the judgment of the 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 the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole.
(j) Governmental Approvals. Duly obtain, and cause each Principal
Subsidiary to duly obtain, on or prior to such date as the same may become
legally required, and thereafter maintain, and cause each Principal
Subsidiary to maintain, in effect at all times, all Governmental Approvals on
its part to be obtained, except in the case of those Governmental Approvals
referred to in clause (ii) of the definition of "Governmental Approvals", (i)
those the absence of which would not materially adversely affect the
financial condition, properties, prospects or operations of the Borrower or
of the Borrower and its Principal Subsidiaries, taken as a whole, and (ii)
those which the Borrower or such Principal Subsidiary is diligently
attempting in good faith to obtain, renew or extend, or the requirement for
which the Borrower or such Principal Subsidiary is contesting in good faith
by appropriate proceedings or by other appropriate means; provided, however,
that the exception afforded by clause (ii), above, shall be available only if
and for so long as such attempt or contest, and any delay resulting
therefrom, does not have a material adverse effect on the financial
condition, properties, prospects or operations of the Borrower or of the
Borrower and its Principal Subsidiaries, taken as a whole, and does not
magnify to any significant degree any such material adverse effect that would
reasonably be expected to result from the absence of such Governmental
Approval.
(k) Further Assurances. Promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary
or that any Lender or the Fronting Bank 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, the Borrower shall not, or permit any Principal Subsidiary to,
without the written consent of the Majority Lenders:
(a) Liens, Etc. Create incur, assume or suffer to exist any Lien upon
any of its properties or assets (including the stock of its Subsidiaries),
whether now owned or hereafter acquired, except:
(i) any Liens existing on the Closing Date;
(ii) in the case of CL&P, Liens created by the Indenture of Mortgage and Deed
of Trust dated as of May 1, 1921, from CL&P to Bankers Trust Company, as
trustee, as previously and hereafter amended and supplemented (the "CL&P
Indenture");
(iii) in the case of WMECO, Liens created by the First Mortgage Indenture
and Deed of Trust dated as of August 1, 1954, from WMECO to State Street Bank
and Trust Company, as successor trustee, as previously and hereafter amended
and supplemented (the "WMECO Indenture");
(iv) in the case of PSNH, Liens created by the General and Refunding Mortgage
Indenture, dated as of August 15, 1978, between PSNH and New England
Merchants National Bank, as trustee, and to which First Union National Bank
is successor trustee, as previously and hereafter amended and supplemented
(the "PSNH Indenture");
(v) in the case of NAEC, Liens created by the First Mortgage Indenture and
Deed of Trust, dated as of June 1, 1992, between NAEC and United States Trust
Company of New York, as trustee, as previously and hereafter amended and
supplemented (the "NAEC Indenture");
(vi) Liens on the interests of CL&P and WMECO in (A) the Millstone Unit No. 1
created by (1) the Open-End Mortgage and Trust Agreement dated as of October
1, 1986, as previously and hereafter amended, made by CL&P in favor of State
Street Bank and Trust Company, as successor trustee, and (2) the Open-End
Mortgage and Trust Agreement dated as of October 1, 1986, as previously and
hereafter amended, made by WMECO in favor of State Street Bank and Trust
Company, as successor trustee, to the extent of the Debt from time to time
secured by such Open-End Mortgages and Trust Agreements, and (B) Millstone
Unit No. 2 and Millstone Unit No. 3 created by (1) the Open-End Mortgage,
dated as of November 19, 1999, made by CL&P in favor of Citibank, N.A., as
collateral agent, and (2) the Open-End Mortgage, dated as of November 19,
1999, made by WMECO in favor of Citibank, N.A., as collateral agent, to the
extent of the Debt secured by such Open-End Mortgages;
(vii) "Permitted Liens" or "Permitted Encumbrances" under the CL&P
Indenture (in the case of CL&P), the WMECO Indenture (in the case of WMECO),
the PSNH Indenture (in the case of PSNH) or the NAEC Identure (in the case of
NAEC), in each case as such terms are defined on the date hereof, to the
extent such Liens do not secure Debt of the Borrower or any Principal
Subsidiary;
(viii) any purchase money Lien or construction mortgage on assets hereafter
acquired or constructed by the Borrower or any Principal Subsidiary and any
Lien on any assets existing at the time of acquisition thereof by the
Borrower or such Principal Subsidiary 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;
(ix) any existing Liens on assets now owned by the Borrower or any Principal
Subsidiary and Liens existing on assets of a corporation or other going
concern when it is merged into or with the Borrower or such Principal
Subsidiary or when substantially all of its assets are acquired by the
Borrower or such Principal Subsidiary; 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;
(x) Liens resulting from legal proceedings being contested in good faith by
appropriate legal or administrative proceedings by the Borrower or any
Principal Subsidiary, and as to which the Borrower or such Principal
Subsidiary, to the extent required by generally accepted accounting
principles applied on a consistent basis, shall have set aside on its books
adequate reserves;
(xi) Liens created in favor of the other contracting party in connection with
advance or progress payments;
(xii) 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;
(xiii) 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;
(xiv) with respect to pollution control bond financings, Liens on funds,
accounts and other similar intangibles of the Borrower or any Principal
Subsidiary created or arising under the relevant indenture, pledges of the
related loan agreement with the relevant issuing authority and pledges of the
Borrower's or such Principal Subsidiary'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;
(xv) Liens granted on accounts receivable and Regulatory Assets in connection
with financing transactions, whether denominated as sales or borrowings;
(xvi) Liens on the assets of, or the stock issued by, Northeast
Generation Company or any other Subsidiary of the Borrower created to hold
generating assets if such Liens are created to secure nonrecourse Debt
incurred to acquire, construct or otherwise develop such generating assets;
(xvii) Liens on assets of HWP permitted to exist by the terms of
agreements governing the Named Debt;
(xviii) any other Liens incurred in the ordinary course of business
otherwise than to secure Debt; and
(xix) any extension, renewal or replacement of Liens permitted by clauses
(i), (vi) through (ix) and (xi) through (xvi); provided, however, that the
principal amount of Debt secured thereby shall not, at the time of such
extension, renewal or replacement, exceed the principal amount of Debt so
secured and that such extension, renewal or replacement shall be limited to
all or a part of the property which secured the Lien so extended, renewed or
replaced.
(b) Mergers, Acquisitions, Sales of Assets, Etc. Merge with or into or
consolidate with or into, any Person, or purchase or otherwise acquire
(whether directly or indirectly) all or substantially all of the assets or
stock of any class of, or any partnership or joint venture interest in, any
other Person, or sell, transfer, convey, lease or otherwise dispose of all or
any substantial part of its assets; except for the following, and then only
after receipt of all necessary corporate and governmental or regulatory
approvals and provided that, before and after giving effect to any such
merger, consolidation, purchase, acquisition, sale, transfer, conveyance,
lease or other disposition, no Event of Default or Unmatured Default shall
have occurred and be continuing:
(A) NU may merge with or into Consolidated Edison, Inc. or a wholly
owned Subsidiary thereof;
(B) any purchase or acquisition of a joint venture interest in a mutual
insurance company providing nuclear liability or nuclear property or
replacement power insurance;
(C) 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;
(D) any sale or purchase of generating assets or Regulatory Assets on
an arms-length basis, subject to approval by the appropriate regulatory
authorities;
(E) the sale of the Borrower's or any Principal Subsidiary's assets in
the ordinary course of business on customary terms and conditions; and
(F) the acquisition of Yankee Energy System Inc. for consideration in
an amount not to exceed $495,000,000 (excluding the assumption of Debt).
For purposes of this subsection (b), any sale of assets by the Borrower or
any Principal Subsidiary (in one or a series of transactions) will be deemed
to be a "substantial part" of its assets if (i) the book value of such assets
exceeds 7.5% of the total book value of the assets (net of Regulatory Assets)
of such Person, as reflected in the most recent financial statements of the
Borrower or such Principal Subsidiary delivered to the Administrative Agent
pursuant to Section 7.04 hereof (or, if no such financial statements have
been delivered to the Administrative Agent as of the relevant date of
determination, the Financial Statements of such Person), or (ii) the gross
revenue associated with such assets accounts for more than 7.5% of the total
gross revenue of the Borrower or such Principal Subsidiary for the four
proceeding fiscal quarters, as reflected in the most recent financial
statements of the Borrower or such Principal Subsidiary delivered to the
Administrative Agent pursuant to Section 7.04 hereof (or, if no such
financial statements have been delivered to the Administrative Agent as of
the relevant date of determination, the Financial Statements of such Person).
(c) Compliance with ERISA. (i) Terminate, or permit any of its ERISA
Affiliates to terminate, any ERISA Plan so as to result in any liability of
the 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 the Borrower or any
Principal Subsidiary to the PBGC in an aggregate amount exceeding $1,000,000,
or any other event or condition which presents a material risk of such a
termination by the PBGC of any ERISA Plan or has a reasonable possibility of
resulting in a liability of the Borrower or any Principal Subsidiary to the
PBGC in an aggregate amount exceeding $1,000,000.
(d) Accounting Changes. Make any change in its accounting policies or
reporting practices except as required or permitted by the Securities and
Exchange Commission, the Financial Accounting Standards Board or any other
generally recognized accounting authority.
(e) Transactions with Affiliates. Engage in any transaction with any
Affiliate except (i) in accordance with the Public Utility Holding Company
Act of 1935, to the extent applicable thereto or (ii) on terms no less
favorable to the Borrower or the Principal Subsidiary party thereto than if
the transaction had been negotiated in good faith on an arms-length basis
with a non-Affiliate and on commercially reasonable terms or pursuant to a
binding agreement in effect on the Closing Date.
(f) Issuance of First Mortgage Bonds. In the case of CL&P and WMECO
only, issue any First Mortgage Bonds on or after the Closing Date, whether in
addition to First Mortgage Bonds outstanding on the Closing Date or in
replacement of First Mortgage Bonds redeemed, retired, defeased, repaid or
prepaid on or after the Closing Date.
(g) Interests in Nuclear Plants. Acquire any nuclear plant or any interest
therein not held on the Closing Date, other than so-called "power
entitlements" acquired for use in the ordinary course of business.
(h) Debt. Create, incur, assume or suffer to exist, any Debt of NU, NU
Enterprises, Inc. or any Subsidiary of NU Enterprises, Inc., other than (i)
Debt under the Loan Documents; (ii) other Debt in existence on the Closing
Date, excluding any extension, renewal or replacement thereof; (iii) Debt of
NU relating to the acquisition of Yankee Energy System Inc. in an amount not
to exceed $280,000,000; (iv) Debt resulting from the issuance of debt-like
instruments by NU for stock redemptions and repurchases in connection with
the acquisition of Yankee Energy System Inc. in an amount not to exceed
$215,000,000; (v) non-recourse Debt of the Northeast Generation Company; (vi)
Parent Support Obligations in an amount not to exceed $350,000,000 at any one
time outstanding; (vii) Debt incurred by HEC Inc. in connection with the
Portsmouth Naval Shipyard Project, and other Debt of HEC Inc. in an aggregate
principal amount not to exceed $25,000,000; and (viii) in the case of NU
Enterprises, Inc. and its Subsidiaries, Debt owing to NU, NU Enterprises,
Inc. or the NU System Money Pool.
(i) investments. With respect to the Borrower only, purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, guarantee
any obligations of, or make or permit to exist any investment or any other
interest in, any other Person, or purchase or otherwise acquire (in one
transaction or a series of transactions) any assets of any other Person
constituting a business unit (each of the foregoing, an "Investment"), except
(i) the NGC Equity Contribution; (ii) equity and debt investments in
(including NU System Money Pool advances to) Select Energy Inc. in an
aggregate amount not to exceed $100,000,000; (iii) NU System Money Pool
advances (other than to Select Energy Inc.) in an aggregate amount not to
exceed $50,000,000 at any one time outstanding; (iv) other debt and equity
investments in Subsidiaries of the Borrower (other than NU System Money Pool
advances and other than in Select Energy Inc.) in an aggregate amount not to
exceed $50,000,000 from and after the Closing Date; (v) the issuance of up to
$25,000,000 in construction completion and similar performance guaranties on
behalf of HEC Inc. from and after the Closing Date; (vi) Investments
permitted by subsections (b) and (h) above; (vii) Investments other than (A)
those enumerated in clauses (i) through (vi) above and (B) NU System Money
Pool Advances, in each case, made prior to the Closing Date; and (viii)
Permitted Investments.
(j) Restricted Payments. With respect to the Borrower only, declare or
make, or agree to pay or make, directly or indirectly, any Restricted
Payment, except that the Borrower may (i) pay dividends to its common
stockholders in an aggregate amount not to exceed $53,000,000 during any 12-
month period beginning or ending on the Closing Date or any day thereafter
until and including the Termination Date, and (ii) redeem or repurchase
capital stock for an aggregate amount not in excess of $215,000,000 in
connection with the acquisition of Yankee Energy System Inc.
(k) Financing Agreements. With respect to the Borrower only, permit any
Principal Subsidiary to enter into any agreement, contract, indenture or
similar obligation, or issue any security (all of the foregoing being
referred to as "Financing Agreements"), that is not in effect on the Closing
Date, or 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 on the ability
of such Principal Subsidiary to pay dividends to the Borrower; provided, that
the foregoing shall not restrict the right of Northeast Generation Company,
or any other Subsidiary of the Borrower created to hold generating assets, to
enter into any such Financing Agreement in connection with the incurrence of
nonrecourse Debt to acquire, construct or otherwise develop generating
assets.
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, the Borrower shall, unless the Majority Lenders shall otherwise
consent in writing:
(a) Common Equity Ratio. Maintain at all times a ratio of Common Equity to
Total Capitalization of at least 0.28:1:00 for the period beginning on the
Closing Date and ending on December 31, 1999, and at least 0.30:1:00 at any
time thereafter.
(b) Interest Coverage Ratio. Maintain, as of the end of each Fiscal
Quarter, with respect to the four Fiscal Quarters then ended, a ratio of
Consolidated Operating Income to Consolidated Interest Expense of at least
2.00:1:00.
(c) Cash Flow Ratio. Maintain, as of the end of each Fiscal Quarter
commencing with the Fiscal Quarter ending March 31, 2000, with respect to the
four Fiscal Quarters then ended (or such fewer number of quarterly periods
that shall have ended on or after March 31, 2000), a ratio of Operating Cash
Flow to Fixed Charges of at least 1.50:1.00.
SECTION 7.04. Reporting Obligations. So long as any Note shall remain
unpaid or any Lender shall have any Commitment hereunder, the 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 continuing on
the date of such statement, a statement of the Chief Financial Officer,
Treasurer or Assistant Treasurer of the Borrower setting forth details
of such Event of Default or Unmatured Default and the action which the
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 the
Borrower, a copy of the Borrower's and each of its Principal Subsidiary's
Quarterly Reports on Form 10-Q submitted to the Securities and Exchange
Commission with respect to such quarter, or, if the Borrower or Select
Energy, Inc. ceases to be required to submit such report, consolidated and
unconsolidated balance sheets of the Borrower or Select Energy, Inc., as the
case may be, as of the end of such Fiscal Quarter and consolidated and
unconsolidated statements of income and retained earnings and of cash flows
of the Borrower or Select Energy, Inc., as the case may be, 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 the Borrower or Select Energy, Inc., as
the case may be, as having been prepared in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the Financial Statements; and
(B) concurrently with the delivery of the financial statements described in
the foregoing clause (A), a certificate of the Chief Financial Officer,
Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(1) to the effect that such financial statements were prepared in accordance
with generally accepted accounting principles consistent with those applied
in the preparation of the Financial Statements,
(2) stating that no Event of Default or Unmatured Default has occurred and
is continuing or, if an Event of Default or Unmatured Default has occurred
and is continuing, describing the nature thereof and the action which the
Borrower proposes to take with respect thereto, and
(3) demonstrating the Borrower's compliance with the covenants set forth in
Section 7.03 hereof, for and as of the end of such Fiscal Quarter, in each
case such demonstrations to be in form satisfactory to the Administrative
Agent and to set forth in reasonable detail the computations used in
determining such compliance;
(iii) (A) as soon as available, and in any event within 105 days after the
end of each Fiscal Year of the Borrower, a copy of the Borrower's and each of
its Principal Subsidiary's Annual Reports on Form 10-K submitted to the
Securities and Exchange Commission with respect to such Fiscal Year, or, if
the Borrower or Select Energy, Inc. ceases to be required to submit such
report, a copy of the annual audit report for such year for the Borrower or
Select Energy, Inc., as the case may be, including therein consolidated and
unconsolidated balance sheets of the Borrower or Select Energy, Inc., as the
case may be, as of the end of such Fiscal Year and consolidated and
unconsolidated statements of income and retained earnings and of cash flows
of the Borrower or Select Energy, Inc., as the case may be, for such Fiscal
Year, all in reasonable detail and certified by a nationally-recognized
independent public accountant; and
(B) concurrently with the delivery of the financial statements described in
the foregoing clause (A), a certificate of the Chief Financial Officer,
Treasurer, Assistant Treasurer or Comptroller of the Borrower:
(1) to the effect that such financial statements were prepared in accordance
with generally accepted accounting principles consistent with those applied
in the preparation of the Financial Statements, and
(2) stating that no Event of Default or Unmatured Default has occurred and
is continuing, or if an Event of Default or Unmatured Default has occurred
and is continuing, describing the nature thereof and the action which the
Borrower proposes to take with respect thereto, and
(3) demonstrating the Borrower's compliance with the covenants set forth in
Section 7.03 hereof, for and as of the end of such Fiscal Year, in each case
such demonstrations to be in form satisfactory to the Administrative Agent
and to set forth in reasonable detail the computations used in determining
such compliance;
(iv) upon the reasonable request of the Administrative Agent, but not more
than once per Fiscal Quarter, copies of any or all filings or registrations
with, or notices or reports to, any regulatory authority by the Borrower or
any Principal Subsidiary;
(v) promptly upon becoming aware that any of its or any of its Principal
Subsidiaries' material businesses and operations is reasonably likely be
affected by the Year 2000 Issue, a detailed description of the nature of such
circumstances and the actions which the Borrower proposes to take with
respect thereto, except where the effect of the Year 2000 Issue would not be
reasonably likely to have a material adverse effect on the financial
condition, properties, prospects or operations of the Borrower or of the
Borrower and the Principal Subsidiaries, taken as a whole;
(vi) as soon as possible and in any event (A) within 30 days after the Chief
Financial Officer, Treasurer or any Assistant Treasurer of the 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 the 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 the Borrower describing such ERISA Plan Termination
Event and the action, if any, which the Borrower proposes to take with
respect thereto;
(vii) promptly after receipt thereof by the Borrower or any of its ERISA
Affiliates from the PBGC, copies of each notice received by the Borrower or
any such ERISA Affiliate of the PBGC's intention to terminate any ERISA Plan
or ERISA Multiemployer Plan or to have a trustee appointed to administer any
ERISA Plan or ERISA Multiemployer Plan;
(viii) promptly after receipt thereof by the Borrower or any of its
ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of each
notice received by the 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
the Borrower may be liable;
(ix) promptly after the Borrower becomes aware of the commencement thereof,
notice of all actions, suits, proceedings or other events of the type
described in Section 6.01(h) hereof (including, without limitation, any
action or proceeding relating to any environmental protection laws or
regulations);
(x) promptly after the filing thereof, copies of each prospectus (excluding
any prospectus contained in any Form S-8) and Current Report on Form 8-K, if
any, which the Borrower or any Principal Subsidiary files with the Securities
and Exchange Commission or any successor governmental authority; and
(xi) promptly after requested, such other information respecting the
financial condition, operations, properties or prospects of the Borrower
or its Subsidiaries as the Administrative Agent, or the Majority Lenders or
Fronting Bank 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":
(a) The Borrower shall fail to pay any principal of any Note or any
Reimbursement Obligation when due or shall fail to pay any interest on any
Note or fees or other amounts payable under the Loan Documents within two
days after the same becomes due; or
(b) Any representation or warranty made by the Borrower (or any of its
officers or agents) in any Loan Document, any certificate or other writing
delivered pursuant hereto or thereto shall prove to have been incorrect in
any material respect when made or deemed made; or
(c) The Borrower shall fail to perform or observe any term or covenant on
its part to be performed or observed contained in Section 2.02(k), 7.01(d),
Section 7.02, Section 7.03 or Section 7.04(i) hereof;
or
(d) The Borrower shall fail to perform or observe any other term or covenant
on its part to be performed or observed contained in any Loan Document and
any such failure shall remain unremedied for a period of 30 days after the
earlier of (i) written notice of such failure having been given to the
Borrower by the Administrative Agent or (ii) the Borrower having obtained
actual knowledge of such failure; or
(e) The Borrower or any Principal Subsidiary shall fail to pay any of its
Debt when due (including any interest or premium thereon but excluding Debt
evidenced by the Notes and excluding other Debt (except for Named Debt)
aggregating in no event more than $10,000,000 in principal amount at any one
time) whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise, and such failure shall continue after the applicable
grace period, if any, specified in any agreement or instrument relating to
such Debt; or any other default under any agreement or instrument relating to
any such Debt, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument,
if the effect of such default or event is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment or as a result of the Borrower's or
such Principal Subsidiary's exercise of a prepayment option) prior to the
stated maturity thereof; or
(f) The Borrower or any Principal Subsidiary shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make an assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower
or any Principal Subsidiary seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of its debts under any law relating to
bankruptcy, insolvency, or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee,
or other similar official for it or for any substantial part of its property
and, in the case of a proceeding instituted against the Borrower or any
Principal Subsidiary, the 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 the Borrower or such
Principal Subsidiary or the appointment of a receiver, trustee, custodian or
other similar official for the Borrower or such Principal Subsidiary or any
of its property) shall occur; or the Borrower or any 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 the Borrower or its properties or any Principal
Subsidiary or its properties, and either (A) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order and shall not
have been stayed or (B) there shall be any period of 15 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) Any material provision of any Loan Document shall at any time for any
reason cease to be valid and binding on the Borrower, or shall be determined
to be invalid or unenforceable by any court, governmental agency or authority
having jurisdiction over the Borrower, or the Borrower shall deny that it has
any further liability or obligation under any Loan Document; or
(i) A Change of Control shall have occurred; or
(j) The Borrower shall cease to own at least 85% of the outstanding common
stock of any Principal Subsidiary, free and clear of all Liens except for
Liens permitted by Section 7.02(a) hereof; or
(k) Any legal restriction that is not in existence on the Closing Date shall
materially adversely affect the ability of any Principal Subsidiary to pay
dividends or make other distributions to the Borrower.
SECTION 8.02. Remedies Upon Events of Default. Upon the occurrence and
during the continuance of any Event of Default, the Administrative Agent
shall at the request, or may with the consent, of the Lenders entitled to
make such request, upon notice to the Borrower (i) declare the obligation of
each Lender to make Advances to the Borrower, and the obligation of the
Fronting Bank to issue Letters of Credit, to be terminated, whereupon such
obligations of the Lenders and the Fronting Bank 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 the Borrower, all interest thereon, an amount
equal to the aggregate Stated Amount of all issued but undrawn Letters of
Credit and all other amounts payable by the 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 the Borrower, provided,
that any such request or consent pursuant to this clause (ii) shall be made
solely by the Lenders holding at least 66-2/3% of the then aggregate
Outstanding Credits; and (iii) instruct the Fronting Bank to (whereupon the
Fronting Bank shall) furnish to each Beneficiary written notice of its
intention to terminate such Letter of Credit pursuant to the terms thereof,
provided, that any such request or consent pursuant to this clause (iii)
shall be made solely by the Lenders holding Percentages in the aggregate of
not less that 66-2/3% or, if the Commitments shall then have been terminated,
Lenders holding at least 66-2/3% of the then aggregate Outstanding Credits;
provided, however, that if such Event of Default is an Event of Default
pursuant to subsection (f) of Section 8.01, then (A) the obligation of each
Lender to make Advances to the Borrower, and the obligation of the Fronting
Bank to issue Letters of Credit, shall automatically be terminated and (B)
the Notes of the Borrower, all interest thereon, an amount equal to the
aggregate Stated Amount of all issued but undrawn Letters of Credit and all
other amounts payable by the Borrower under this Agreement and the other Loan
Documents 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 the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE FRONTING BANK
SECTION 9.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto. As to any matters not expressly provided
for by the Loan Documents (including, without limitation, enforcement or
collection thereof), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders; provided, however, that
the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary
to the Loan Documents or applicable law. The Administrative Agent agrees to
deliver promptly to each Lender notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 9.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them
under or in connection with any Loan Document, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and
accepts a Lender Assignment entered into by the Lender which is the payee of
such Note, as assignor, and an assignee, as provided in Section 10.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
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 the Borrower to be performed or observed, or
to inspect any property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan
Document or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by facsimile) believed by it to be genuine and signed or sent
by the proper party or parties.
SECTION 9.03. Union Bank, Bank One, NA and Affiliates. With respect to its
Commitment and the Note issued to it, each of Union Bank and Bank One, NA
(and/or any other Lender then acting as "Fronting Bank") 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 or the
Fronting Bank, as the case may be, and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Union Bank and Bank One, NA
(and/or any other Lender then acting as "Fronting Bank") in its individual
capacity. Union Bank, Bank One, NA (and/or any other Lender acting as
"Fronting Bank") and their respective Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower, any of its Subsidiaries and any
Person who may do business with or own securities of the Borrower or any such
Subsidiary, all as if Union Bank were not the Administrative Agent and Bank
One, NA (and/or any other Lender then acting as "Fronting Bank") were not the
Fronting Bank and without any duty to account therefor to the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative
Agent, the Fronting Bank or any other Lender and based on the Information
Memorandum and the Financial Statements and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the
Fronting Bank or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
SECTION 9.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), 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 the Borrower or any Affiliate thereof, any ratable apportionment hereunder
shall exclude the principal amount of the Notes held by the Borrower or such
Affiliate or their respective Commitments (if any) hereunder), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against
the Administrative Agent in its capacity as such in any way relating to or
arising out of any Loan Document or any action taken or omitted by the
Administrative Agent in its capacity as such under any Loan Document,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for
such Lender's ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, the Loan
Documents to the extent that the Administrative Agent is entitled to
reimbursement for such expenses pursuant to Section 10.04 but is not
reimbursed for such expenses by the Borrower.
SECTION 9.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders
and the Borrower, 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
Borrower 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 Borrower. In addition to the foregoing right of the Administrative
Agent to resign, the Majority Lenders may remove the Administrative Agent at
any time, with or without cause, concurrently with the appointment by the
Majority Lenders of a successor Administrative Agent. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under the Loan Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by the 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
the Borrowing Sublimit or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Notes, any Applicable Margin
or any fees or other amounts payable hereunder (other than fees payable to
the Administrative Agent pursuant to Section 2.03(b) hereof), (d) postpone
any date fixed for any payment of principal of, or interest on, the Notes or
any fees or other amounts payable under the Loan Documents (other than fees
payable to the Administrative Agent pursuant to Section 2.03(b) hereof),
(e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Lenders which shall be
required for the Lenders or any of them to take any action under the Loan
Documents, (f) amend any Loan Document in a manner intended to prefer one or
more Lenders over any other Lenders, or (g) amend this Section 10.01;
provided, that any waiver of, or consent to a departure from, the
requirements of Section 2.02(b) shall be effective if authorized in writing
by the Majority Lenders and the Fronting Bank, unless the effect of such
waiver or consent would be to permit the issuance of a Letter of Credit
without any right of unilateral termination on the part of the Fronting Bank,
in which case the effectiveness of such waiver or consent shall require the
written authorization of all of the Lenders and the Fronting Bank; and
provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent or the Fronting Bank, as the
case may be, in addition to the Lenders required above to take such action,
affect the rights or duties of the Administrative Agent or the Fronting Bank,
as the case may be, under any Loan Document.
SECTION 10.02. Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for under the Loan
Documents shall be in writing (including facsimile communication) and mailed,
sent by facsimile or hand delivered:
(i) if to the Borrower, to it in care of NUSCO at 107 Selden Street, Berlin,
Connecticut 06037, Attention: Assistant Treasurer, facsimile number: (860)
665-5457, confirm number: (860) 665-3258;
(ii) if to any Bank, at its Domestic Lending Office specified opposite its
name on Schedule I hereto;
(iii) if to any Lender other than a Bank, at its Domestic Lending Office
specified in the Lender Assignment pursuant to which it became a Lender;
(iv) if to the Administrative Agent, at its address at 445 South Figueroa
Street, Los Angeles, California 90071, Attention: Ms. Patricia Gonzales,
Energy Capital Services, facsimile number: (213) 236-4096, confirm number:
(213) 236-6199; and
(v) if to the Fronting Bank, at its address at 300 South Riverside, Floor 7,
Suite 0236, Chicago, Illinois 60606, Attention: Mr. Bill Slowinski,
facsimile number: (312) 954-1767, confirm number: (312) 954-1934.or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications
shall, when mailed, sent by facsimile or hand delivered, be effective five
days after when deposited in the mails, or when sent by facsimile, or when
delivered, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III, IV or IX shall not be
effective until received by the Administrative Agent. With respect to any
telephone notice given or received by the Administrative Agent pursuant to
Section 3.03 hereof, the records of the Administrative Agent shall be
conclusive for all purposes.
SECTION 10.03. No Waiver of Remedies. No failure on the part of the
Administrative Agent, the Fronting Bank or any Lender to exercise, and no
delay in exercising, any right under any Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification. (a) The Borrower
agrees 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); (ii) all customary and reasonable
charges, costs and expenses of the Fronting Bank in connection with the
issuance, transfer, modification or amendment of any Letter of Credit
(including, in each case, the reasonable fees and expenses of counsel to the
Fronting Bank); and (iii) all costs and expenses of the Administrative Agent,
the Fronting Bank 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 Borrower hereby agrees to indemnify and hold the Administrative
Agent, the Fronting Bank 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 the Borrower of the proceeds of any Advance, or
the issuance of, or the use by the Borrower of, or the use by any
Beneficiary of the proceeds of, any Letter of Credit;
(ii) in connection with or resulting from the utilization, storage,
disposal, treatment, generation, transportation, release or ownership of
any Hazardous Substance (A) at, upon or under any property of the
Borrower or any of its Affiliates or (B) by or on behalf of the Borrower
or any of its 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 Borrower's 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 and the
Fronting Bank under the Loan Documents and the termination of the
Commitments. If and to the extent that the obligations of the Borrower under
this Section 10.04 are unenforceable for any reason, the Borrower agrees to
make the maximum contribution to the payment and satisfaction thereof which
is permissible under applicable law.
(d) The Borrower's obligations under this Section 10.04 are in addition
to and shall not be deemed to supersede its indemnification and similar
obligations set forth in that certain Commitment Letter dated as of October
25, 1999 among the Borrower, Union Bank, Barclays Bank PLC and Bank One, NA
SECTION 10.05. Right of Set-off. (a) Upon (i) the occurrence and
during the continuance of any Event of Default, 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 the Borrower against any and
all of the obligations of the 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 the 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) The 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 the Borrower's rights to any independent claim that the Borrower
may have against the Administrative Agent, the Fronting Bank or any Lender,
but no Lender shall be liable for the conduct of the Administrative Agent,
the Fronting Bank or any other Lender, and neither the Administrative Agent
nor the Fronting Bank shall be liable for the conduct of the other or any
Lender.
SECTION 10.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, the Administrative Agent
and the Fronting Bank 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 Borrower, the Administrative
Agent, the Fronting Bank and each Lender and their respective successors and
assigns, except that the Borrower 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, the Note or Notes held
by it and its participatory interest in Letters of Credit (with the prior
written consent of the Borrower, the Fronting Bank and the Administrative
Agent if the assignee thereunder is not then a Lender or an Affiliate of a
Lender, which consent shall not be unreasonably withheld); provided, however,
that (i) each such assignment shall be of a constant, and not a varying,
percentage of all of the assigning Lender's rights and obligations under the
Loan Documents, (ii) if the assignee thereunder is not then a Lender or an
Affiliate of a Lender, the amount of the Commitment, Advance, Note or
participatory interest in Letters of Credit being assigned pursuant to each
such assignment shall in no event be less than the lesser of the amount of
the assigning Lender's Commitment and $5,000,000, and (iii) the parties to
each such assignment shall execute and deliver to the Administrative Agent,
for its acceptance and recording in the Register, an assignment and
acceptance in substantially the form of Exhibit 10.07 hereto (the "Lender
Assignment"), together with any Note or Notes subject to such assignment and
a processing and recordation fee of $3,500. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Lender Assignment, which effective date shall be at least five Business Days
after the execution thereof, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations under the Loan
Documents have been assigned to it pursuant to such Lender Assignment, have
the rights and obligations of a Lender under the Loan Documents and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
under the Loan Documents have been assigned by it to an assignee pursuant to
such Lender Assignment, relinquish its rights and be released from its
obligations under the Loan Documents (and, in the case of a Lender Assignment
covering all or the remaining portion of an assigning Lender's rights and
obligations under the Loan Documents, such Lender shall cease to be a party
to the Loan Documents); provided, however, if an Event of Default shall have
occurred and be continuing a Lender may assign all or a portion of its rights
and obligations without the prior written consent of the Borrower 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 the Borrower or the performance or
observance by the Borrower of any of its obligations under the Loan Documents
or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of the Loan Documents, together
with copies of the Financial Statements, or the latest financial statements
delivered by the Borrower to the Administrative Agent pursuant to
Section 7.04 hereof, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Lender Assignment; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, the Fronting Bank, 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 Borrower, the Administrative Agent, the Fronting Bank and the Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of the Loan Documents. The Register shall be
available for inspection by the Borrower 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 Borrower.
Within five Business Days after its receipt of such notice, the 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, shall be dated
the effective date of such Lender Assignment and shall otherwise be in
substantially the form of Exhibit 1.01A hereto.
(e) Each Lender may sell Participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under the
Loan Documents (including, without limitation, all or a portion of its
Commitment, the Advances owing to it, the Note or Notes held by it and its
participatory interest in Letters of Credit); provided, however, that
(i) such Lender's obligations under the Loan Documents (including, without
limitation, its Commitment hereunder and its obligations under Section
2.02(l) hereof) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of the Loan Documents, (iv) the Borrower, the Administrative
Agent, the Fronting Bank 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 2.03(b) hereof),
or (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 2.03(b) hereof).
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or proposed participation pursuant to this
Section 10.07, disclose to the assignee or participant or proposed assignee
or proposed participant, any information relating to the Borrower furnished
to such Lender by or on behalf of the Borrower; provided that, prior to any
such disclosure, the assignee or participant or proposed assignee or
participant shall agree, in accordance with the terms of Section 10.08, to
preserve the confidentiality of any Confidential Information received by it
from such Lender.
(g) If any Lender shall have delivered a notice to the Administrative
Agent described in Section 4.03(a), (b), (c) or (f) hereof, or shall become a
non-performing Lender under Section 3.03(b) hereof, and if and so long as
such Lender shall not have withdrawn such notice or corrected such non-
performance in accordance with Section 3.03(b), the Borrower may demand that
such Lender assign, in accordance with Section 10.07 hereof, to one or more
assignees designated by the Borrower or the Administrative Agent (and
reasonably acceptable to the other), all (but not less than all) of such
Lender's Commitment, Advances, participatory and other rights and obligations
under the Loan Documents; provided that any such demand by the Borrower
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 Borrower, any such assignee so
designated shall fail to tender such assignment on terms reasonably
satisfactory to the Borrower and the Borrower and the Administrative Agent
shall have failed to designate any such assignee, then such demand by the
Borrower 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 Borrower demanded such assignment, the Borrower 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 Borrower has furnished or caused to
have furnished and will from time to time furnish or cause to be furnished to
the Administrative Agent, the Fronting Bank 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 Borrower, 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
Borrower 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 Borrower 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. The Borrower, the Administrative
Agent, the Fronting Bank and each of 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. The
Borrower, each of the Lenders, the Fronting Bank and the Administrative
Agent: (i) irrevocably submits to the jurisdiction of any New York State
Court or Federal court sitting in New York City in any action arising out of
or relating to the Loan Documents, (ii) agrees that all claims in such action
may be decided in such court, (iii) waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum and (iv) consents to
the service of process by mail. A final judgment in any such action shall be
conclusive and may be enforced in other jurisdictions. Nothing herein shall
affect the right of any party to serve legal process in any manner permitted
by law or affect its right to bring any action in any other court.
SECTION 10.11. Relation of the Parties; No Beneficiary. No term,
provision or requirement, whether express or implied, of any Loan Document,
or actions taken or to be taken by any party thereunder, shall be construed
to create a partnership, association, or joint venture between such parties
or any of them. No term or provision of any Loan Document shall be construed
to confer a benefit upon, or grant a right or privilege to, any Person other
than the parties hereto.
SECTION 10.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
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, and such Loan Documents
shall not be enforceable against any such trustee in their or his or her
individual capacities or capacity and such Loan Documents shall be
enforceable against the trustees of NU only as such, and every person, firm,
association, trust or corporation having any claim or demand arising under
such Loan Documents and relating to NU, its shareholders or trustees shall
look solely to the trust estate of NU for the payment or satisfaction
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
NORTHEAST UTILITIES
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
By:
Name:
Title:
BANK ONE, NA, as Fronting Bank
(Main Office - Chicago)
By:
Name:
Title:
Exhibit B.14
CREDIT AGREEMENT
Dated as of November 19, 1999
THIS CREDIT AGREEMENT is made by and among:
(i) THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation organized under
the laws of the State of Connecticut ("CL&P");
(ii) WESTERN MASSACHUSETTS ELECTRIC COMPANY, a corporation organized under
the laws of the Commonwealth of Massachusetts ("WMECO"; CL&P and WMECO each
being a "Borrower" and collectively, the "Borrowers");
(iii) The financial institutions (the "Banks") listed on the signature
pages hereof and the other Lenders (as hereinafter defined) from time to time
party hereto; and
(iv) CITIBANK, N.A. ("Citibank"), as Administrative Agent for the Lenders
hereunder.
PRELIMINARY STATEMENT
The Borrowers have requested the Banks to provide the credit facility
hereinafter described in the amounts and on the terms and conditions set
forth herein. The Banks have so agreed on the terms and conditions set forth
herein, and the Administrative Agent has agreed to act as agent for the
Lenders on such terms and conditions.
Based upon the foregoing and subject to the terms and conditions set
forth in this Agreement, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
applicable to the singular and plural forms of the terms defined):
"Administrative Agent" means Citibank, in its capacity as administrative
agent hereunder, or any successor thereto as provided herein.
"Advance" means a Contract Advance.
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling (including, but not limited to, all directors and
officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to control another entity
if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such entity, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit Agreement, as the same may be modified, amended
and/or supplemented pursuant to the terms hereof.
"Applicable Commitment Fee Rate" means, for each Borrower for any day, the
percentage per annum set forth below in effect on such day, determined on the
basis of the Applicable Rating Level of such Borrower:
Applicable Commitment Fee Rate
Applicable Rating Level Percentage (%)
Level I 0.200
Level II 0.250
Level III 0.375
Level IV 0.500
Level V 0.750
Any change in the Applicable Commitment Fee Rate caused by a change in
the Applicable Rating Level shall take effect at the time such change in
the Applicable Rating Level shall occur.
"Applicable Lending Office" means, with respect to each Lender:
(i) in the case of any Contract Advance, (A) such Lender's "Eurodollar
Lending Office" in the case of a Eurodollar Rate Advance or (B) such Lender's
"Domestic Lending Office" in the case of a Base Rate Advance, in each case as
specified opposite such Lender's name on Schedule I hereto or in the Lender
Assignment pursuant to which it became a Lender; or
(ii) in each case, such other office of such Lender as such Lender may from
time to time specify in writing to the Borrowers and the Administrative
Agent.
"Applicable Margin" means, for each Borrower, for any day for any outstanding
Contract Advance, the percentage per annum set forth below in effect on such
day, determined on the basis of the Applicable Rating Level for such
Borrower:
Applicable Margin (Percentage %)
Rating Level Eurodollar Rate Advances Base Rate Advances
Level I 1.00 0.00
Level II 1.25 0.25
Level III 1.50 0.50
Level IV 2.25 1.25
Level V 2.50 1.50
Any change in the Applicable Margin caused by a change in the Applicable
Rating Level shall take effect at the time such change in the Applicable
Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance made to either Borrower,
either of (i) the Base Rate from time to time applicable to such Advance plus
the Applicable Margin, or (ii) the Eurodollar Rate from time to time
applicable to such Advance plus the Applicable Margin.
"Applicable Rating Level" for each Borrower, shall be determined at any time
and from time to time on the basis of the ratings assigned by S&P and Moody's
to such Borrower's First Mortgage Bonds (except as provided below) in
accordance with the following:
Applicable Rating Level
S&P Moody's
Level I BBB+ or higher Baa1 or higher
Level II BBB Baa2
Level III BBB- Baa3
Level IV BB+ Ba1
Level V BB or lower Ba2 or lower
In the event that the rating assigned by S&P to either Borrower's First
Mortgage Bonds and the rating assigned by Moody's to such Borrower's First
Mortgage Bonds do not correspond to the same Applicable Rating Level, then
the lower of the two ratings shall determine the Applicable Rating Level.
The Applicable Rating Level shall be redetermined as and when any change in
the ratings used in the determination thereof shall be announced by S&P or
Moody's, as the case may be.
If either Moody's or S&P shall cease to issue or maintain a rating on a
Borrower's First Mortgage Bonds while the same are outstanding, then the
Applicable Rating Level shall be Level V. If either Moody's or S&P shall
have ceased to issue or maintain a rating on a Borrower's First Mortgage
Bonds because no such First Mortgage Bonds are outstanding, the rating
assigned by such agency to such Borrower's unsecured, senior, non-credit
enhanced, long-term Debt, or, if no such rating has been assigned, to such
Borrower's general corporate obligations (such alternative ratings, the
"Alternate Reference Ratings") shall be used (together with the applicable
rating issued by the other ratings agency) to determine the Applicable Rating
Level; provided, that if the Applicable Rating Level would be lowered solely
as a result of being determined on the basis of an Alternative Reference
Rating (and not, for example, as a result of any deterioration in the
financial condition, operations, creditworthiness, properties or prospects of
such Borrower, as determined on the basis of public announcements by Moody's
or S&P, as applicable), then the Applicable Rating Level theretofore in
effect shall remain in force until such Alternative Reference Rating is next
raised, lowered or confirmed (following analysis, as evidenced by a formal
announcement to the effect that such rating is confirmed) by S&P or Moody's,
as the case may be.
"Available Commitment" means, for each Lender, the unused portion of such
Lender's Commitment (which shall be equal to the excess, if any, of such
Lender's Commitment over such Lender's Contract Advances outstanding).
"Available Commitments" shall refer to the aggregate of the Lenders'
Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the caption to this
Agreement.
"Base Rate" means, for any period, a fluctuating interest rate per annum as
shall be in effect from time to time which rate per annum shall at all times
be equal to the highest of:
(a) the rate of interest announced publicly by the Administrative Agent in
its principal place of business from time to time as the Administrative
Agent's base rate;
(b) 1/2 of one percent per annum above the latest three-week moving average
of secondary market morning offering rates in the United States for three-
month certificates of deposit of major United States money market banks,
adjusted to the nearest 1/32 of one percent (the "CD Rate");
(c) 1/2 of one percent per annum above the Federal Funds Rate in effect from
time to time; and
(d) for the period from December 1, 1999 through March 31, 2000, a rate
equal to 2% per annum above the Federal Funds Rate in effect from time to
time.
If the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to ascertain the
CD Rate or the Federal Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms thereof, the Base Rate shall be determined without
regard to clause (b) of the first sentence of this definition, in the event
the Administrative Agent is unable to ascertain the CD Rate, and clauses (c)
and (d) of the first sentence of this definition, in the event the
Administrative Agent is unable to ascertain the Federal Funds Rate, until the
circumstances giving rise to such inability no longer exist. Any change in
the Base Rate due to a change in the Administrative Agent's base rate, the CD
Rate or the Federal Funds Rate shall be effective on the effective date
of such change in the Administrative Agent's base rate, the CD Rate or
the Federal Funds Rate, respectively.
"Base Rate Advance" means a Contract Advance in respect of which a Borrower
has selected in accordance with Article III hereof, or this Agreement
provides for, interest to be computed on the basis of the Base Rate.
"Borrower" or "Borrowers" has the meaning assigned to that term in the
caption to this Agreement.
"Borrower Sublimit" means: (i) with respect to CL&P, $300,000,000 and (ii)
with respect to WMECO, $200,000,000.
"Borrowing" means a Contract Borrowing.
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in
the London interbank market.
"Change of Control" means (a) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended),
other than Consolidated Edison, Inc., shall either (1) acquire beneficial
ownership of more than 50% of any outstanding class of common stock of NU
having ordinary voting power in the election of directors of NU or (2) obtain
the power (whether or not exercised) to elect a majority of NU's directors or
(b) except as a result of the acquisition of NU by Consolidated Edison, Inc.,
the Board of Directors of NU shall not consist of a majority of Continuing
Directors. For purposes of this definition, the term "Continuing Directors"
means directors of NU on the Closing Date and each other director of NU, if
such other director's nomination for election to the Board of Directors
of NU is recommended by a majority of the then Continuing Directors.
"Citibank" has the meaning assigned to that term in the caption to
this Agreement.
"CL&P" has the meaning assigned to that term in the caption to this
Agreement.
"CL&P Indenture" has the meaning assigned to that term in
Section 7.02(a)(ii) hereof.
"Closing Date" has the meaning assigned to that term in Section 5.01 hereof.
"Collateral" means the open-end second mortgages granted by each Borrower on
such Borrower's interests in the Millstone Unit No. 2 and Millstone Unit No.
3 nuclear units.
"Collateral Agent" means Citibank, in its capacity as collateral agent, or
any successor thereto as provided in the Collateral Agency Agreement.
"Collateral Agency Agreement" means the Collateral Agency Agreement in
substantially the form of Exhibit 1.01B hereto, as the same may be amended,
supplemented or otherwise modified from time to time.
"Commitment" means, for each Lender, the aggregate amount set forth opposite
such Lender's name on the signature pages hereof or, if such Lender has
entered into one or more Lender Assignments, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section 10.07(c),
in each such case as such amount may be reduced from time to time pursuant to
Section 2.03 hereof. "Commitments" shall refer to the aggregate of the
Lenders' Commitments hereunder.
"Common Equity" means, at any date for any Borrower, an amount equal to the
sum of the aggregate of the par value of, or stated capital represented by,
the outstanding common shares of such Borrower and its Subsidiaries and the
surplus, paid-in, earned and other capital, if any, of such Borrower and its
Subsidiaries, in each case as determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Confidential Information" has the meaning assigned to that term in Section
10.08 hereof.
"Consolidated Interest Expense" means, for any Borrower, for any period, the
aggregate amount of any interest required to be paid during such period by
such Borrower and its Subsidiaries on Debt (including the current portion
thereof) (as determined on a consolidated basis in accordance with generally
accepted accounting principles), excluding interest required to be paid on
the stranded cost recovery bonds of such Borrower.
"Consolidated Operating Income" means for any Borrower, for any period (as
determined on a consolidated basis in accordance with generally accepted
accounting principles), such Borrower's and its Subsidiaries' operating
income for such period, adjusted as follows:
(i) increased by the amount of income taxes accrued less the amount of
income taxes paid by such Borrower and its Subsidiaries during such period,
if and to the extent deducted in the computation of such Borrower's and/or
its Subsidiaries' consolidated operating income for such period;
(ii) increased by the amount of any depreciation and amortization deducted in
the computation of such Borrower's and/or its Subsidiaries' consolidated
operating income for such period;
(iii)decreased by the amount of any capital expenditures paid by such
Borrower and/or its Subsidiaries to the extent not deducted in the
computation of such Borrower's and its Subsidiaries' consolidated operating
income for such period;
(iv) decreased by the amount of revenues accrued by such Borrower and/or its
Subsidiaries related to the interest and principal on stranded cost recovery
bonds issued by such Borrower, and increased by the amount of operating
expenses accrued by such Borrower and/or its Subsidiaries related to the
interest and principal on stranded cost recovery bonds issued by such
Borrower, in each case to the extent included in the computation of such
Borrower's and/or its Subsidiaries' consolidated operating income for such
period;
(v) decreased by the proceeds of stranded cost recovery bonds issued by such
Borrower to the extent included in the computation of such Borrower's and/or
its Subsidiaries' consolidated operating income for such period; and
(vi) decreased by the proceeds of asset sales done outside the ordinary
course of business to the extent included in the computation of such
Borrower's and/or its Subsidiaries' consolidated operating income for such
period; and
(vii)increased or decreased, as the case may be, by the amount of income
taxes paid or refunded on gains or losses related to the sale of assets or
purchased power contracts done outside the ordinary course of business to the
extent included in the computation of such Borrower's and/or its Subsidiaries
consolidated operating income for such period.
"Contract Advance" means an advance by a Lender to either Borrower pursuant
to Article III hereof, and refers to a Eurodollar Rate Advance or a Base Rate
Advance (each of which shall be a "Type" of Contract Advance). For purposes
of this Agreement, all Contract Advances of a Lender (or portions thereof) of
the same Type and Interest Period, if any, made or converted on the same day
to the same Borrower shall be deemed to be a single Advance by such Lender
until repaid.
"Contract Borrowing" means a borrowing consisting of one or more Contract
Advances of the same Type and Interest Period, if any, made to
the same Borrower on the same Business Day by the Lenders, ratably in
accordance with their respective Commitments. A Contract Borrowing may
be referred to herein as being a "Type" of Contract Borrowing, corresponding
to the Type of Contract Advances comprising such Borrowing. For purposes of
this Agreement, all Contract Advances of the same Type and Interest Period,
if any, made or converted on the same day to the same Borrower shall be
deemed a single Contract Borrowing hereunder until repaid.
"Contract Note" means a promissory note of either Borrower payable to the
order of a Lender, in substantially the form of Exhibit 1.01A hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Contract Advances made by such Lender to such
Borrower.
"Debt" means, for any Person, without duplication, (i) indebtedness of such
Person for borrowed money, including but not limited to obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments
(excluding stranded cost recovery bonds which are non-recourse to such
Person), (ii) obligations of such Person to pay the deferred purchase price
of property or services (excluding any obligation of such Person to the
United States Department of Energy or its successor with respect to
disposition of spent nuclear fuel burned prior to April 3, 1983), (iii)
obligations of such Person as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting principles,
recorded as capital leases, (iv) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds referred to
in clauses (i) through (iii), above, and (v) liabilities in respect of
unfunded vested benefits under ERISA Plans.
"Disclosure Documents" means, for either Borrower: (i) such Borrower's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998; (ii) its
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31 and
June 30, 1999; (iii) each Current Report on Form 8-K of such Borrower filed
after June 30, 1999 and on or prior to October 29, 1999 and (iv) the
Information Memorandum.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"ERISA Affiliate" means, with respect to any Person, any trade or business
(whether or not incorporated) which is a "commonly controlled entity" of such
Person within the meaning of the regulations under Section 414 of the
Internal Revenue Code of 1986, as amended from time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan" subject to
Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than a ERISA
Multiemployer Plan) maintained for employees of any Borrower or any
ERISA Affiliate thereof and covered by Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued thereunder
(other than a Reportable Event not subject to the provision for 30-day
notice to the PBGC under such regulations) with respect to an ERISA Plan
or an ERISA Multiemployer Plan, or (ii) the withdrawal of any Borrower
or any of its ERISA Affiliates from an ERISA Plan or an ERISA
Multiemployer Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the filing
of a notice of intent to terminate an ERISA Plan or an ERISA
Multiemployer Plan or the treatment of an ERISA Plan or an ERISA
Multiemployer Plan under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate an ERISA Plan or an ERISA Multiemployer Plan
by the PBGC, or (v) any other event or condition which might constitute
grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any ERISA Plan or ERISA
Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rates per annum at which deposits in U.S.
dollars are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market
at 11:00 a.m. (London time) two Business Days before the first day of
such Interest Period in the amount of $1,000,000 and for a period equal
to such Interest Period. The Eurodollar Rate for the Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent
from the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Sections 3.05(d)
and 4.03(g).
"Eurodollar Rate Advance" means a Contract Advance in respect of
which a Borrower has selected in accordance with Article III hereof, or
this Agreement provides for, interest to be computed on the basis of the
Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender or its
subparticipant, for each Interest Period for each Eurodollar Rate
Advance, means the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so applicable, the
daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under
Regulation D or other regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement, without benefit of or credit for proration, exemptions or
offsets) for such Lender or its subparticipant with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01
hereof.
"Existing Credit Facility" means the credit facility provided to
the Borrowers under the Credit Agreement, dated as of November 21, 1996,
as amended, among NU, CL&P, WMECO, the co-agents party thereto, the
lenders party thereto and Citibank, as administrative agent for the
lenders thereunder.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal to, for each day during such period, the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter dated October 22, 1999
among Citibank, Salomon Smith Barney, Inc. and the Borrowers.
"FERC" means the Federal Energy Regulatory Commission.
"Financial Statements" means (A) with respect to CL&P, (i) the
audited consolidated balance sheet of CL&P as at December 31, 1998, (ii)
the unaudited consolidated balance sheet of CL&P as at June 30, 1999,
(iii) the audited consolidated statements of income and cash flows of
CL&P for the Fiscal Year ended December 31, 1998 and (iv) the unaudited
consolidated statements of income and cash flows of CL&P for the 6-
month period ended June 30, 1999, in each case as included in CL&P's
Annual Report on Form 10-K for the Fiscal Year ended December 31, 1998
or Quarterly Report on Form 10-Q for the Fiscal Quarter ended June 30,
1999, and (B), with respect to WMECO, (i) the audited balance sheet of
WMECO as at December 31, 1998, (ii) the unaudited balance sheet of WMECO
as at June 30, 1999, (iii) the audited statements of income and cash
flows of WMECO for the Fiscal Year ended December 31, 1998 and (iv) the
unaudited statements of income and cash flows of WMECO for the 6-month
period ended June 30, 1999, in each case as included in WMECO's Annual
Report on Form 10-K for the Fiscal Year ended December 31, 1998 or
Quarterly Report on Form 10-Q for the Fiscal Quarter ended June 30,
1999.
"First Mortgage Bonds" means any bond, however designated, entitled
to the benefits of a First Mortgage Indenture.
"First Mortgage Indenture" means, with respect to CL&P, the CL&P
Indenture or any successor thereto or replacement thereof; and with
respect to WMECO, the WMECO Indenture or any successor thereto or
replacement thereof.
"Fiscal Quarter" means a period of three calendar months ending on
the last day of March, June, September or December, as the case may be.
"Fiscal Year" means a period of twelve calendar months ending on
the last day of December.
"Fraction" means, in respect of any Borrower as determined at any
time, a fraction, the numerator of which shall be the Borrower Sublimit
of such Borrower at such time, and the denominator of which shall be the
sum of the Borrower Sublimits of both Borrowers at such time.
"Governmental Approval" means any authorization, consent, approval,
license, permit, certificate, exemption of, or filing or registration
with, any governmental authority or other legal or regulatory body
(including, without limitation, the Securities and Exchange Commission,
the FERC, the Nuclear Regulatory Commission, the Connecticut Department
of Public Utility Control and the Massachusetts Department of
Telecommunications and Energy), required in connection with either
(i) the execution, delivery or performance of any Loan Document,
(ii) the grant and perfection of any security interest, lien or mortgage
contemplated by the Loan Documents, or (iii) the nature of a Borrower's
or any Subsidiary's business as conducted or the nature of the property
owned or leased by it.
"Hazardous Substance" means any waste, substance or material
identified as hazardous, dangerous or toxic by any office, agency,
department, commission, board, bureau or instrumentality of the United
States of America or of the State or locality in which the same is
located having or exercising jurisdiction over such waste, substance or
material.
"Indemnified Person" has the meaning assigned to that term in
Section 10.04(b) hereof.
"Information Memorandum" means the confidential Information
Memorandum, dated October 1999, regarding the credit facility to be
provided to the Borrowers hereunder, as distributed to the
Administrative Agent and the Lenders, including, without limitation, all
schedules and attachments hereto.
"Interest Period" has the meaning assigned to that term in
Section 3.05(a) hereof.
"Lender Assignment" means an assignment and acceptance entered into
by a Lender and an assignee, and accepted by the Administrative Agent,
in substantially the form of Exhibit 10.07 hereto.
"Lenders" means the financial institutions listed on the signature
pages hereof, and each assignee that shall become a party hereto
pursuant to Section 10.07.
"Lien" means, with respect to any asset or property, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset or property. For the purposes of this Agreement,
a Person or any of its Subsidiaries shall be deemed to own subject to a
Lien any asset which it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.
"Loan Documents" means this Agreement, the Notes, the Collateral
Agency Agreement and the Mortgages.
"Majority Lenders" means on any date of determination, Lenders who,
collectively, on such date (i) have Percentages in the aggregate of at
least 66-2/3% and (ii) if the Commitments have been terminated, hold at
least 66-2/3% of the then aggregate unpaid principal amount of the
Advances owing to the Lenders. Determination of those Lenders
satisfying the criteria specified above for action by the Majority
Lenders shall be made by the Administrative Agent and shall be
conclusive and binding on all parties absent manifest error.
"Moody's" means Moody's Investors Service, Inc., or any successor
thereto.
"Mortgages" means the open-end second mortgages on each Borrower's
interest in the Millstone Unit No. 2 and Millstone Unit No. 3 nuclear
units, in the forms attached hereto as Exhibits 1.01C and 1.01D.
"Note" means a Contract Note, as may be amended, supplemented or
otherwise modified from time to time.
"Notice of Contract Borrowing" has the meaning assigned to that
term in Section 3.01 hereof.
"NU" means Northeast Utilities, an unincorporated voluntary
business association organized under the laws of the Commonwealth of
Massachusetts.
"NU System Money Pool" means the money pool described in the
application/declaration, as amended, of NU and certain of its
Subsidiaries filed with the Securities and Exchange Commission in File
No. 70-8875, as amended from time to time.
"NUSCO" means Northeast Utilities Service Company, a Connecticut
corporation.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any date of
determination, the percentage obtained by dividing such Lender's
Commitment on such day by the total of the Commitments on such day, and
multiplying the quotient so obtained by 100%.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"Recipient" has the meaning assigned to that term in Section 10.08
hereof.
"Reference Banks" means Citibank, Fleet National Bank and The
Toronto-Dominion Bank, and any other bank or financial institution
designated by the Borrowers and the Administrative Agent with the
approval of the Majority Lenders to act as a Reference Bank hereunder.
"Regulatory Asset" means, with respect to CL&P or WMECO, an
intangible asset established by statute, regulation or regulatory order
or similar action of a utility regulatory agency having jurisdiction
over CL&P or WMECO, as the case may be, and included in the rate base of
CL&P or WMECO, as the case may be, with the intention that such asset be
amortized by rates over time.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"SEC Borrowing Limit" means, for any Borrower on any date, the
short-term debt borrowing limit prescribed by the Securities and
Exchange Commission applicable to such Borrower on such date.
"Securitization Date" means, with respect to each Borrower, the
date on which such Borrower receives the proceeds of stranded cost
recovery bonds issued by such Borrower.
"Subsidiary" shall mean, with respect to any Person (the "Parent"),
any corporation, association or other business entity of which
securities or other ownership interests representing 50% or more of the
ordinary voting power are, at the time as of which any determination is
being made, owned or controlled by the Parent or one or more
Subsidiaries of the Parent or by the Parent and one or more Subsidiaries
of the Parent.
"Termination Date" means the earliest to occur of (i) November 17,
2000, or such later date to which the Termination Date shall be extended
in accordance with Section 2.04, (ii) the date of termination or
reduction in whole of the Commitments pursuant to Section 2.03 or 8.02
or (iii) the date of acceleration of all amounts payable hereunder and
under the Notes pursuant to Section 8.02.
"Total Capitalization" means, at any date for any Borrower, the sum
of (i) the aggregate principal amount of all long-term and short-term
Debt (including the current portion thereof) of such Borrower and its
Subsidiaries (excluding, in the case of WMECO, short-term debt borrowed
in December, 1999 pending the application of such borrowings on the
first business day in January, 2000 to pay $60,000,000 to the holders of
the First Mortgage Bonds of WMECO upon the maturity thereof), (ii) the
aggregate of the par value of, or stated capital represented by, the
outstanding shares of all classes of common and preferred shares of such
Borrower and its Subsidiaries and (iii) the consolidated surplus of such
Borrower and its Subsidiaries, paid-in, earned and other capital, if
any, in each case as determined on a consolidated basis in accordance
with generally accepted accounting principles consistent with those
applied in the preparation of such Borrower's Financial Statements.
"Total Commitment" means $500,000,000, or such lesser amount from
time to time as shall equal the sum of the Commitments.
"Type" has the meaning assigned to such term (i) in the definition
of "Contract Advance" when used in such context and (ii) in the
definition of "Contract Borrowing" when used in such context.
"Unmatured Default" means the occurrence and continuance of an
event which, with the giving of notice or lapse of time or both, would
constitute an Event of Default.
"WMECO" has the meaning assigned to that term in the caption to
this Agreement.
"WMECO Indenture" has the meaning assigned to that term in
Section 7.02(a)(iii) hereof.
"Year 2000 Issue" means the failure of computer software, hardware
and firmware systems and equipment containing computer chips to properly
receive, transmit, process, manipulate, store, retrieve, re-transmit or
in any other way utilize data and information due to the occurrence of
the year 2000 or the inclusion of dates on or after January 1, 2000.
SECTION 1.02. Computation of Time Periods. In the computation of
periods of time under this Agreement, any period of a specified number of
days or months shall be computed by including the first day or month
occurring during such period and excluding the last such day or month. In
the case of a period of time "from" a specified date "to" or "until" a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
SECTION 1.03. Accounting Terms; Financial Statements. All accounting
terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles applied on a basis consistent with
the application employed in the preparation of the Financial Statements. All
references contained herein to any Borrower's Annual Report on Form 10-K in
respect of a Fiscal Year or Quarterly Report on Form 10-Q in respect of a
Fiscal Quarter shall be deemed to include any exhibits and schedules thereto,
including without limitation in the case of any Annual Report on Form 10-K,
any "Annual Report" of such Borrower referred to therein.
SECTION 1.04. Computations of Outstandings. Whenever reference is made
in this Agreement to the principal amount of Advances outstanding under this
Agreement to one or both Borrowers on any date, such reference shall refer to
the aggregate principal amount of all such Advances to such Borrower(s)
outstanding on such date after giving effect to (i) all Advances to be made
to such Borrower(s) on such date and the application of the proceeds thereof
and (ii) any repayment or prepayment of Advances on such date by such
Borrower(s).
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments. (a) Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to the
Borrowers from time to time on any Business Day during the period from the
Closing Date until the Termination Date, in an aggregate amount not to exceed
on any day such Lender's Available Commitment. Within the limits of such
Lender's Available Commitment and such Borrower's Borrower Sublimit, each
Borrower may request Advances hereunder, repay or prepay Advances and utilize
the resulting increase in the Available Commitments for further Advances in
accordance with the terms hereof.
(b) In no event shall any Borrower be entitled to request or receive
any Advance under subsection (a) that would cause the aggregate principal
amount advanced pursuant thereto to exceed the Available Commitments. In no
event shall any Borrower be entitled to request or receive any Advance that
would cause the total principal amount of all Advances outstanding hereunder
to exceed the Total Commitment, or that would cause the aggregate principal
amount of all Advances outstanding to or requested by such Borrower to exceed
such Borrower's Borrower Sublimit. In no event shall any Borrower be
entitled to request or receive any Advance that, when aggregated with all
other Advances outstanding to or requested by such Borrower and all other
short-term debt of such Borrower, would exceed such Borrower's SEC Borrowing
Limit as then in effect.
SECTION 2.02. Fees. (a) Each Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (the
"Commitment Fee") on the amount of such Lender's Available Commitment
multiplied by such Borrower's Fraction, at the Applicable Commitment Fee Rate
for such Borrower, from the date of this Agreement, in the case of each Bank,
and from the effective date specified in the Lender Assignment pursuant to
which it became a Lender, in the case of each other Lender, until the
Termination Date. The Commitment Fee payable by each Borrower shall be
calculated and accrued daily and shall be payable quarterly in arrears on the
last day of each December, March, June and September, commencing the first
such date following the Closing Date, with final payment payable on the
Termination Date.
(b) The Borrowers further agree to pay the fees specified in the Fee
Letter, together with such other fees as may be separately agreed to by the
Borrowers and the Administrative Agent or its Affiliates.
SECTION 2.03. Reduction of the Commitments; Borrower Sublimits.
(a) Each Borrower may, at any time, severally and without the consent of the
other Borrower, by providing at least three Business Days' prior written
notice to the Administrative Agent, terminate in whole or reduce in part its
Borrower Sublimit; provided, that any such partial reduction shall be in a
minimum aggregate amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof. Each such notice of termination or reduction shall be
irrevocable. In no event shall either Borrower be entitled to increase its
Borrower Sublimit without the consent of all of the Lenders.
(b) The Borrower Sublimit of CL&P will be permanently reduced by
$100,000,000 to $200,000,000 on the fifth Business Day following CL&P's
Securitization Date. The Borrower Sublimit of WMECO will be permanently
reduced by $100,000,000 to $100,000,000 on the fifth Business Day following
WMECO's Securitization Date.
(c) Each reduction in a Borrower's Borrower Sublimit pursuant to this
Section 2.03 shall result in a like reduction in the Commitments on a pro
rata basis with respect to each Lender.
SECTION 2.04. Extension of the Termination Date. Unless the
Termination Date shall have previously occurred in accordance with its terms,
at least 45 days but not more than 60 days before the Termination Date, as
then in effect, the Borrowers may jointly, by notice to the Administrative
Agent (any such notice being irrevocable), request the Administrative Agent
and the Lenders to extend the Termination Date for a period of 364 days. If
the Borrowers shall make such request, the Administrative Agent shall
promptly inform the Lenders thereof and, no later than 30 days prior to the
Termination Date as then in effect, the Administrative Agent shall notify the
Borrowers in writing if the Lenders consent to such request and the
conditions of such consent (including conditions relating to legal
documentation and evidence of the obtaining of all necessary governmental
approvals). The granting of any such consent shall be in the sole and
absolute discretion of each Lender, and, if any Lender shall not so notify
the Administrative Agent or, if the Administrative Agent shall not so notify
the Borrowers, such lack of notification shall be deemed to be a
determination not to consent to such request. No such extension shall occur
unless all of the Lenders consent in writing thereto (or if less than all the
Lenders consent thereto, unless one or more other existing Lenders, or one or
more other banks and financial institutions acceptable to the Borrowers and
the Administrative Agent, agree to assume all of the Commitments of the non-
consenting Lenders).
ARTICLE III
CONTRACT ADVANCES
SECTION 3.01. Contract Advances. More than one Contract Borrowing
may be made on the same Business Day. Each Contract Borrowing shall consist
of Contract Advances of the same Type and Interest Period made to the same
Borrower on the same Business Day by the Lenders ratably according to their
respective Commitments. Each Contract Borrowing shall be made on notice in
substantially the form of Exhibit 3.01 hereto (a "Notice of Contract
Borrowing"), delivered by the Borrower requesting such Contract Borrowing to
the Administrative Agent, by hand or facsimile, not later than 11:00 a.m.
(New York City time) (i) in the case of Eurodollar Rate Advances, on the
third Business Day prior to the date of the proposed Borrowing and (ii) in
the case of Base Rate Advances, on the day of the proposed Borrowing. Upon
receipt of a Notice of Contract Borrowing, the Administrative Agent shall
notify the Lenders thereof promptly on the day so received. Each Notice of
Contract Borrowing shall specify therein: (i) the requested (A) date of such
Borrowing, (B) principal amount and Type of Advances comprising such
Borrowing and (C) initial Interest Period for such Advances; (ii) the
identity of the Borrower requesting such proposed Borrowing and (iii) the
Borrower Sublimit applicable to such Borrower on the proposed date of such
proposed Borrowing and the aggregate amount of Advances to be outstanding to
such Borrower on such date after giving effect to such proposed Borrowing.
Each proposed Borrowing shall be subject to the satisfaction of the
conditions precedent thereto as set forth in Article V hereof.
SECTION 3.02. Terms Relating to the Making of Contract Advances.
(a) Notwithstanding anything in Section 3.01 above to the contrary:
(i) at no time shall more than twelve different Contract
Borrowings be outstanding hereunder;
(ii) each Contract Borrowing hereunder which is to be comprised of
Base Rate Advances shall be in an aggregate principal amount of not less
than $5,000,000 or an integral multiple of $1,000,000 in excess thereof,
or such lesser amount as shall be equal to the total amount of the
Available Commitments on such date, after giving effect to all other
Contract Borrowings to be made to, or repaid or prepaid by, the relevant
Borrower on such date; and
(iii) each Contract Borrowing hereunder which is to be
comprised of Eurodollar Rate Advances shall be in an aggregate principal
amount of not less than $5,000,000 or an increment of $1,000,000 in
excess thereof.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower requesting such proposed Borrowing.
SECTION 3.03. Making of Advances. (a) Each Lender shall, before
12:00 noon (New York City time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Administrative Agent
at the Administrative Agent's address referred to in Section 10.02, in same
day funds, such Lender's portion of such Borrowing. Contract Advances shall
be made by the Lenders ratably in accordance with their several Commitments.
After the Administrative Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Article V, the Administrative Agent
will make such funds available to the Borrower that made the request for such
Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the time of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 3.03, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower that made the request for such Borrowing a corresponding amount
on such date. If and to the extent that any such Lender (a "non-performing
Lender") shall not have so made such ratable portion available to the
Administrative Agent, the non-performing Lender and such Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of such
Borrower, the interest rate applicable at the time to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate.
Nothing herein shall in any way limit, waive or otherwise reduce any claims
that any party hereto may have against any non-performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 3.04. Repayment of Advances. Each Borrower shall repay
the principal amount of each Advance made to it hereunder on the Termination
Date.
SECTION 3.05. Interest. (a) Interest Periods. (i) The period
commencing on the date of each Advance and ending on the last day of the
period selected by a Borrower with respect to such Advance pursuant to the
provisions of this Section 3.05 is referred to herein as an "Interest
Period". The duration of each Interest Period shall be (i) in the case of
any Eurodollar Rate Advance, one, two or three months and (ii) in the case of
any Base Rate Advance, the period of time beginning on the date of the making
of, or the conversion of an outstanding Advance into, such Advance and ending
on the last day of March, June, September or December next following the date
on which such Advance was made; provided, however, that no Interest Period
may be selected by any Borrower if such Interest Period would end after the
Termination Date.
(ii) Subject to the terms and conditions of this Agreement, the
initial Interest Period for any Advance made to either Borrower shall be
determined by such Borrower as set forth in its Notice of Contract
Borrowing with respect to such Advance. Such Borrower may elect to
continue or convert one or more Advances of any Type and having the same
Interest Period to one or more Advances of the same or any other Type
and having the same or a different Interest Period on the following
terms and subject to the following conditions:
(A) Each continuation or conversion shall be made as to all
Advances comprising a single Borrowing upon written notice given by
such Borrower to the Administrative Agent not later than 11:00 a.m.
(New York City time) on the third Business Day prior to the date of
the proposed continuation or conversion, in the case of a
continuation of or conversion to a Eurodollar Rate Advance, or on
the day of the proposed continuation of or conversion to a Base
Rate Advance. The Administrative Agent shall notify each Lender of
the contents of such notice promptly after receipt thereof. Each
such notice shall specify therein the following information: (1)
the date of such proposed continuation or conversion (which in the
case of Eurodollar Rate Advances shall be the last day of the
Interest Period then applicable to such Advances to be continued or
converted), (2) the Type of, and Interest Period applicable to the
Advances proposed to be continued or converted, (3) the aggregate
principal amount of Advances proposed to be continued or converted,
and (4) the Type of Advances to which such Advances are proposed to
be continued or converted and the Interest Period to be applicable
thereto.
(B) During the continuance of an Unmatured Default, the right
of the Borrowers to continue or convert Advances to Eurodollar Rate
Advances shall be suspended, and all Eurodollar Rate Advances then
outstanding shall be converted to Base Rate Advances on the last
day of the Interest Period then in effect, if, on such day, an
Unmatured Default shall be continuing.
(C) During the continuance of an Event of Default, the right
of the Borrowers to continue or convert Advances to Eurodollar Rate
Advances shall be suspended, and upon the occurrence of an Event of
Default, all Eurodollar Rate Advances then outstanding shall
immediately, without further act by the Borrowers, be converted to
Base Rate Advances.
(D) If no notice of continuation or conversion is received by
the Administrative Agent as provided in paragraph (A), above, with
respect to any outstanding Advances on or before the third Business
Day prior to the last day of the Interest Period then in effect for
such Advances, the Administrative Agent shall treat such absence of
notice as a deemed notice of continuation or conversion providing
for such Advances to be continued as or converted to Base Rate
Advances with an Interest Period of three months commencing on the
last day of such Interest Period.
(b) Interest Rates. Each Borrower shall pay interest on the unpaid
principal amount of each Advance owing by such Borrower from the date of such
Advance until such principal amount shall be paid in full, at the Applicable
Rate for such Advance (except as otherwise provided in this subsection (b)),
payable as follows:
(i) Eurodollar Rate Advances. If such Advance is a Eurodollar
Rate Advance, interest thereon shall be payable on the last day of the
Interest Period applicable thereto and on the Termination Date; provided
that during the continuance of any Event of Default, such Advance shall
bear interest at a rate per annum equal at all times to 2% per annum
above the Applicable Rate for such Advance for such Interest Period, or,
if higher, the Applicable Margin plus 2.0% per annum above the
Applicable Rate in effect from time to time for Base Rate Advances.
(ii) Base Rate Advances. If such Advance is a Base Rate Advance,
interest thereon shall be payable quarterly on the last day of each
March, June, September and December and on the date such Base Rate
Advance shall be paid in full; provided that during the continuance of
any Event of Default, such Advance shall bear interest at a rate per
annum equal at all times to 2% per annum above the Applicable Rate for
such Advance for such Interest Period.
(c) Other Amounts. Any other amounts payable hereunder that are not
paid when due shall (to the fullest extent permitted by law) bear interest,
from the date when due until paid in full, at a rate per annum equal at all
times to 2.0% per annum above the Applicable Rate in effect from time to time
for Base Rate Advances, payable on demand.
(d) Interest Rate Determinations. The Administrative Agent shall give
prompt notice to the Borrowers and the Lenders of the Applicable Rate
determined from time to time by the Administrative Agent for each Contract
Advance for each Borrower. Each Reference Bank agrees to furnish to the
Administrative Agent timely information for the purpose of determining the
Eurodollar Rate for any Interest Period. If any one Reference Bank shall not
furnish such timely information, the Administrative Agent shall determine
such interest rate on the basis of the timely information furnished by the
other two Reference Banks.
SECTION 3.06. Several Obligations. Each Borrower's obligations
hereunder are several and not joint except as otherwise set forth in this
Agreement. Any actions taken by or on behalf of the Borrowers jointly or
simultaneously shall not result in one Borrower being held responsible for
the actions, debts or liabilities of the other Borrower. Nothing contained
herein shall be interpreted as requiring the Borrowers to effect Borrowings
jointly.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations. (a) Each Borrower shall
make each payment hereunder and under the Notes not later than 12:00 noon
(New York City time) on the day when due in U.S. Dollars to the
Administrative Agent at its address referred to in Section 10.02 hereof, in
same day funds. The Administrative Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal, interest,
fees or other amounts payable to the Lenders, to the respective Lenders to
whom the same are payable, for the account of their respective Applicable
Lending Offices, in each case to be applied in accordance with the terms of
this Agreement. Upon its acceptance of a Lender Assignment and recording of
the information contained therein in the Register pursuant to Section 10.07,
from and after the effective date specified in such Lender Assignment, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Lender Assignment shall make all appropriate
adjustments in such payments for periods prior to such effective date
directly between themselves.
(b) Each Borrower hereby authorizes the Administrative Agent and each
Lender, if and to the extent payment owed to the Administrative Agent or such
Lender, as the case may be, is not made when due hereunder (or, in the case
of a Lender, under the Note held by such Lender), to charge from time to time
against any or all of such Borrower's accounts with the Administrative Agent
or such Lender, as the case may be, any amount so due.
(c) All computations of interest based on the Base Rate (except when
determined on the basis of the Federal Funds Rate) shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be. All computations of interest and other amounts payable pursuant to
Section 4.03 shall be made by the Lender claiming such interest or other
amount on the basis of a year of 360 days. All other computations of
interest, including computations of interest based on the Eurodollar Rate,
the Base Rate (when and if determined on the basis of the Federal Funds
Rate), and all computations of fees and other amounts payable hereunder,
shall be made by the Administrative Agent on the basis of a year of 360 days.
In each such case, such computation shall be made for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest, fees or other amounts are payable. Each such
determination by the Administrative Agent or a Lender shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment under any Loan Document shall be stated to be
due, or the last day of an Interest Period hereunder shall be stated to
occur, on a day other than a Business Day, such payment shall be made, and
the last day of such Interest Period shall occur, on the next succeeding
Business Day, and such extension of time shall in such case be included in
the computation of payment of interest and fees hereunder; provided, however,
that if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made, or the last day of an Interest Period
for a Eurodollar Rate Advance to occur, in the next following calendar month,
such payment shall be made on the next preceding Business Day and such
reduction of time shall in such case be included in the computation of
payment of interest hereunder.
(e) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Lenders
hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each Lender
on such due date an amount equal to the amount then due such Lender. If and
to the extent such Borrower shall not have so made such payment in full to
the Administrative Agent, such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender, together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 4.02. Prepayments. (a) No Borrower shall have any right to
prepay any Contract Advances except in accordance with subsections (b) and
(c), below.
(b) Any Borrower may, (i) in the case of Eurodollar Rate Advances, upon
at least three Business Day's written notice to the Administrative Agent
(such notice being irrevocable) and (ii) in the case of Base Rate Advances,
upon notice not later than 11:00 a.m. on the date of the proposed prepayment
to the Administrative Agent (such notice being irrevocable), stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given, such Borrower shall, prepay Contract Advances comprising
part of the same Borrowing, in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid and any amounts owing in connection therewith pursuant to Section
4.03(d); provided, however, that each partial prepayment shall be in an
aggregate principal amount not less than $5,000,000 or an integral multiple
of $1,000,000 in excess thereof.
(c) If at any time, the aggregate principal amount of Advances
outstanding shall exceed the Total Commitment, the Borrowers shall forthwith
prepay Advances in a principal amount equal to such excess. If at any time,
the aggregate principal amount of Advances outstanding to any Borrower shall
exceed the Borrower Sublimit of such Borrower, such Borrower shall forthwith
prepay Advances in a principal amount equal to such excess. All prepayments
pursuant to this subsection (c) shall be effected from outstanding Contract
Advances comprising part of the same Borrowing or Borrowings and shall be
accompanied by payment of accrued interest to the date of such prepayment on
the principal amount prepaid and any amounts owing in connection therewith
pursuant to Section 4.03(d).
SECTION 4.03. Yield Protection. (a) Change in Circumstances.
Notwithstanding any other provision herein, if after the date hereof, the
adoption of or any change in applicable law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not
having the force of law) shall (i) change the basis of taxation of payments
to any Lender of the principal of or interest on any Eurodollar Rate Advance
made by such Lender or any fees or other amounts payable under the Loan
Documents (other than changes in respect of taxes imposed on the overall net
income of such Lender or its Applicable Lending Office by the jurisdiction in
which such Lender has its principal office or in which such Applicable
Lending Office is located or by any political subdivision or taxing authority
therein), or (ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against commitments or assets of,
deposits with or for the account of, or credit extended by, such Lender, or
(iii) shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or Eurodollar Rate Advances made by such
Lender, and the result of any of the foregoing shall be to increase the cost
to such Lender, of agreeing to make, making or maintaining any Advance or to
reduce the amount of any sum received or receivable by such Lender under any
Loan Document or under the Notes (whether of principal, interest or
otherwise), then the Borrowers will pay to such Lender upon demand such
additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b) Capital. If any Lender shall have determined that any change after
the date hereof in any law, rule, regulation or guideline adopted pursuant to
or arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption after the date
hereof of any law, rule, regulation or guideline regarding capital adequacy,
or any change in any of the foregoing or in the interpretation or
administration of any of the foregoing by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or any Applicable Lending Office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect (i) of reducing the rate of return on such Lender's capital or on the
capital of such Lender's holding company, if any, as a consequence of this
Agreement, the Commitment of such Lender hereunder or the Advances made by
such Lender pursuant hereto to a level below that which such Lender or such
Lender's holding company could have achieved, but for such applicability,
adoption, change or compliance (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), or (ii) of increasing or otherwise determining the amount
of capital required or expected to be maintained by such Lender or such
Lender's holding company based upon the existence of this Agreement, the
Commitment of such Lender hereunder, the Advances made by such Lender
pursuant hereto and other similar such commitments, agreements or assets,
then from time to time the Borrowers shall pay to such Lender upon demand
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction or allocable capital cost
suffered.
(c) Eurodollar Reserves. Each Borrower shall pay to each Lender upon
demand, so long as such Lender shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender to such Borrower, from the date of
such Advance until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for the Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Reserve Percentage of such Lender for such Interest Period.
Such additional interest shall be determined by such Lender and notified to
the relevant Borrower and the Administrative Agent.
(d) Breakage Indemnity. Each Borrower shall indemnify each Lender
against any loss, cost or reasonable expense which such Lender may sustain or
incur as a consequence of (i) any failure by such Borrower to fulfill on the
date of any Borrowing or conversion of Advances hereunder the applicable
conditions precedent set forth in Articles III and V, (ii) any failure by
such Borrower to borrow any, or convert any outstanding Advance into a,
Eurodollar Rate Advance hereunder after a Notice of Contract Borrowing has
been delivered pursuant to Section 3.01 hereof or after delivery of a notice
of conversion pursuant to Section 3.05(a)(ii) hereof, (iii) any payment,
prepayment or conversion of a Eurodollar Rate Advance made to such Borrower
required or permitted by any other provision of this Agreement or otherwise
made or deemed made on a date other than the last day of the Interest Period
applicable thereto, (iv) any default in payment or prepayment of the
principal amount of any Eurodollar Rate Advance made to such Borrower or any
part thereof or interest accrued thereon, as and when due and payable (at the
due date thereof, by irrevocable notice of prepayment or otherwise) or
(v) the occurrence of any Event of Default with respect to such Borrower,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Advance or any part
thereof as a Eurodollar Rate Advance. Such loss, cost or reasonable expense
shall include an amount equal to the excess, if any, as reasonably determined
by such Lender, of (A) its cost of obtaining the funds for the Eurodollar
Rate Advance being paid, prepaid, converted or not borrowed for the period
from the date of such payment, prepayment, conversion or failure to borrow to
the last day of the Interest Period for such Advance (or, in the case of a
failure to borrow, the Interest Period for such Advance which would have
commenced on the date of such failure) over (B) the amount of interest (as
reasonably determined by such Lender) that would be realized by such Lender
in reemploying the funds so paid, prepaid, converted or not borrowed for such
period or Interest Period, as the case may be. For purposes of this
subsection (d), it shall be presumed that in the case of any Eurodollar Rate
Advance, each Lender shall have funded each such Advance with a fixed-rate
instrument bearing the rates and maturities designated in the determination
of the Applicable Rate for such Advance.
(e) Notices. A certificate of each Lender setting forth such Lender's
claim for compensation hereunder and the amount necessary to compensate such
Lender or its holding company pursuant to subsections (a) through (d) of this
Section 4.03 shall be submitted to the Borrowers and the Administrative Agent
and shall be conclusive and binding for all purposes, absent manifest error.
The Borrowers or appropriate Borrower shall pay each Lender directly the
amount shown as due on any such certificate within 10 days after its receipt
of the same. The failure of any Lender to provide such notice or to make
demand for payment under this Section 4.03 shall not constitute a waiver of
such Lender's rights hereunder; provided that such Lender shall not be
entitled to demand payment pursuant to subsections (a) through (d) of this
Section 4.03 in respect of any loss, cost, expense, reduction or reserve, if
such demand is made more than one year following the later of such Lender's
incurrence or sufferance thereof or such Lender's actual knowledge of the
event giving rise to such Lender's rights pursuant to such subsections. Each
Lender shall use reasonable efforts to ensure the accuracy and validity of
any claim made by it hereunder, but the foregoing shall not obligate any
Lender to assert any possible invalidity or inapplicability of the law, rule,
regulation, guideline or other change or condition which shall have occurred
or been imposed.
(f) Change in Legality. Notwithstanding any other provision herein, if
the adoption of or any change in any law or regulation or in the
interpretation or administration thereof by any governmental authority
charged with the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Rate Advance or to
give effect to its obligations as contemplated hereby with respect to any
Eurodollar Rate Advance, then, by written notice to the Borrowers and the
Administrative Agent, such Lender may:
(i) declare that Eurodollar Rate Advances will not thereafter be
made by such Lender hereunder, whereupon the right of either Borrower to
select Eurodollar Rate Advances for any Borrowing or conversion shall be
forthwith suspended until such Lender shall withdraw such notice as
provided hereinbelow or shall cease to be a Lender hereunder pursuant to
Section 10.07(g) hereof; and
(ii) require that all outstanding Eurodollar Rate Advances be
converted to Base Rate Advances, in which event all Eurodollar Rate
Advances shall be automatically converted to Base Rate Advances as of
the effective date of such notice as provided herein below.
Upon receipt of any such notice, the Administrative Agent shall promptly
notify the other Lenders. Promptly upon becoming aware that the
circumstances that caused such Lender to deliver such notice no longer exist,
such Lender shall deliver notice thereof to the Borrowers and the
Administrative Agent withdrawing such prior notice (but the failure to do so
shall impose no liability upon such Lender). Promptly upon receipt of such
withdrawing notice from such Lender (or upon such Lender assigning all of its
Commitments, Advances, participation and other rights and obligations under
the Loan Documents in accordance with Section 10.07(g)), the Administrative
Agent shall deliver notice thereof to the Borrowers and the Lenders and such
suspension shall terminate. Prior to any Lender giving notice to the
Borrowers under this subsection (f), such Lender shall use reasonable efforts
to change the jurisdiction of its Applicable Lending Office, if such change
would avoid such unlawfulness and would not, in the sole determination of
such Lender, be otherwise disadvantageous to such Lender. Any notice to the
Borrowers by any Lender shall be effective as to each Eurodollar Rate Advance
on the last day of the Interest Period currently applicable to such
Eurodollar Rate Advance; provided that if such notice shall state that the
maintenance of such Advance until such last day would be unlawful, such
notice shall be effective on the date of receipt by the Borrowers and the
Administrative Agent.
(g) Market Rate Disruptions. If (i) fewer than two Reference Banks
furnish timely information to the Administrative Agent for determining the
Eurodollar Rate for Eurodollar Rate Advances in connection with any proposed
Borrowing or (ii) if the Majority Lenders shall notify the Administrative
Agent that the Eurodollar Rate will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances, the right of the Borrowers to select or receive
Eurodollar Rate Advances for any Borrowing shall be forthwith suspended until
the Administrative Agent shall notify the Borrowers and the Lenders that the
circumstances causing such suspension no longer exist, and until such
notification from the Administrative Agent, each requested Borrowing of
Eurodollar Rate Advances hereunder shall be deemed to be a request for Base
Rate Advances.
(h) Rights of Participants. Any participant in a Lender's
interests hereunder may assert any claim for yield protection under
Section 4.03 that it could have asserted if it were a Lender hereunder. If
such a claim is asserted by any such participant, it shall be entitled to
receive such compensation from the Borrowers as a Lender would receive in
like circumstances; provided, however, that with respect to any such claim,
the Borrowers shall have no greater liability to the Lender and its
participant, in the aggregate, than it would have had to the Lender alone had
no such participation interest been created.
(i) Liabilities of Borrowers. Each Borrower shall be liable for its
pro rata share of each payment to be made by the Borrowers under subsections
(a) and (b) of this Section 4.03, such pro rata share to be determined on the
basis of such Borrower's Fraction; provided, however, that if and to the
extent that any such liabilities are reasonably determined by the Borrowers
(subject to the approval of the Administrative Agent which approval shall not
be unreasonably withheld) to be directly attributable to Advances made to a
specific Borrower or the Notes of such Borrower, only such Borrower shall be
liable for such payments. In the event that one Borrower fails to pay its
portion of the payments to be made by the Borrowers under subsection (a) or
(b) of this Section 4.03, the other Borrower shall be liable for such
payment; provided, however, that if and to the extent that any such payment
is reasonably determined by the Borrowers (subject to the approval of the
Administrative Agent which approval shall not be unreasonably withheld) to be
directly attributable to Advances made to a specific Borrower or the Notes of
such Borrower, only such Borrower shall be liable for such payments.
SECTION 4.04. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, but excluding any proceeds received by
assignments or sales of participation in accordance with Section 10.07 hereof
to a Person that is not an Affiliate of the Borrowers) on account of the
Advances owing to it (other than pursuant to Section 4.03 hereof) in excess
of its ratable share of payments on account of the Advances obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participation in the Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an
amount equal to such Lender's ratable share (according to the proportion of
(i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrowers agree that any Lender so purchasing a participation
from another Lender pursuant to this Section 4.04 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were
the direct creditor of any such Borrower in the amount of such participation.
Notwithstanding the foregoing, if any Lender shall obtain any such excess
payment involuntarily, such Lender may, in lieu of purchasing participation
from the other Lenders in accordance with this Section 4.04, on the date of
receipt of such excess payment, return such excess payment to the
Administrative Agent for distribution in accordance with Section 4.01(a).
SECTION 4.05. Taxes. (a) All payments by or on behalf of either
Borrower under any Loan Document shall be made in accordance with Section
4.01, free and clear of and without deduction for all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Administrative Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or
any political subdivision thereof and, in the case of each Lender, taxes
imposed on its overall net income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If any Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under any Loan Document to any Lender
or the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.05) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made by such Borrower under any
Loan Document or from the execution, delivery or registration of, or
otherwise with respect to, any Loan Document (hereinafter referred to as
"Other Taxes").
(c) Each Borrower hereby indemnifies each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes and any Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.05) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
A Lender's claim for such indemnification shall be set forth in a certificate
of such Lender setting forth in reasonable detail the amount necessary to
indemnify such Lender pursuant to this subsection (c) and shall be submitted
to the Borrowers and the Administrative Agent and shall be conclusive and
binding for all purposes, absent manifest error. The appropriate Borrower
shall pay such Lender directly the amount shown as due on any such
certificate within 30 days after the receipt of same. If any Taxes or Other
Taxes for which a Lender or the Administrative Agent has received payments
from a Borrower hereunder shall be finally determined to have been
incorrectly or illegally asserted and are refunded to such Lender or the
Administrative Agent, such Lender or the Administrative Agent, as the case
may be, shall promptly forward to such Borrower any such refunded amount.
Each Borrower's, the Administrative Agent's and each Lender's obligations
under this Section 4.05 shall survive the payment in full of the Advances.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
making such payment will furnish to the Administrative Agent, at its address
referred to in Section 10.02, the original or a certified copy of a receipt
evidencing payment thereof.
(e) Each Lender that is not incorporated under the laws of the United
States of America or any state thereof shall, on or prior to the date it
becomes a Lender hereunder, deliver to the Borrowers and the Administrative
Agent such certificates, documents or other evidence, as required by the
Internal Revenue Code of 1986, as amended from time to time (the "Code"), or
treasury regulations issued pursuant thereto, including Internal Revenue
Service Form 4224 or Form 1001 and any other certificate or statement of
exemption required by Treasury Regulation Section 1.1441-1(a) or
Section 1.1441-6(c) or any subsequent version thereof, properly completed and
duly executed by such Lender establishing that it is (i) not subject to
withholding under the Code or (ii) totally exempt from United States of
America tax under a provision of an applicable tax treaty. Each Lender shall
promptly notify the Borrowers and the Administrative Agent of any change in
its Applicable Lending Office and shall deliver to the Borrowers and the
Administrative Agent together with such notice such certificates, documents
or other evidence referred to in the immediately preceding sentence. Each
Lender will use good faith efforts to apprise the Borrowers and the
Administrative Agent as promptly as practicable of any impending change in
its tax status that would give rise to any obligation by any Borrower to pay
any additional amounts pursuant to this Section 4.05. Unless the Borrowers
and the Administrative Agent have received forms or other documents
satisfactory to them indicating that payments under the Loan Documents are
not subject to United States of America withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Borrowers or the
Administrative Agent shall withhold taxes from such payments at the
applicable statutory rate in the case of payments to or for any Lender
organized under the laws of a jurisdiction outside the United States of
America. Each Lender represents and warrants that each such form supplied by
it to the Administrative Agent and the Borrowers pursuant to this
Section 4.05, and not superseded by another form supplied by it, is or will
be, as the case may be, complete and accurate.
(f) Any Lender claiming any additional amounts payable pursuant to this
Section 4.05 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by the
Borrowers or to change the jurisdiction of its Applicable Lending Office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue and would
not, in the sole determination of such Lender, be otherwise disadvantageous
to such Lender.
ARTICLE V
CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness. The obligations
of the Lenders to make Advances hereunder shall not become effective until
the date (the "Closing Date") on which each of the following conditions is
satisfied:
(a) The Administrative Agent shall have received on or before the
Closing Date the following, each dated the Closing Date, in form and
substance satisfactory to the Administrative Agent and in sufficient copies
for each Lender (except for the Notes):
(i) Counterparts of this Agreement, duly executed by each
Borrower.
(ii) Contract Notes of each Borrower, duly made to the order of
each Lender in the amount of such Borrower's Fraction of such Lender's
Commitment.
(iii) Counterparts of the Mortgages, duly executed by the
Collateral Agent and each Borrower party thereto.
(iv) Counterparts of the Collateral Agency Agreement, duly executed
by the Collateral Agent, the Borrowers and each of the Lenders.
(v) A certificate of the Secretary or Assistant Secretary (or
analogous officer or representative) of each Borrower certifying:
(A) the names and true signatures of the officers of such
Borrower authorized to sign the Loan Documents to be executed and
delivered by such Borrower;
(B) that attached thereto are true and correct copies of:
(1) the Articles of Incorporation and By-laws of such Borrower,
together with all amendments thereto, as in effect on such date;
(2) the resolutions of such Borrower's Board of Directors approving
the execution, delivery and performance by such Borrower of the
Loan Documents to be executed and delivered by such Borrower;
(3) all documents evidencing other necessary corporate or other
similar action, if any, with respect to the execution, delivery and
performance by such Borrower of the Loan Documents to be executed
and delivered by such Borrower; and (4) true and correct copies of
all Governmental Approvals referred to in clauses (i) and (ii) of
the definition of "Governmental Approval" required to be obtained
by such Borrower in connection with the execution, delivery and
performance by such Borrower of the Loan Documents to be executed
and delivered by such Borrower (including the required orders of
the Securities and Exchange Commission and Connecticut Department
of Public Utility Control); and
(C) that the resolutions referred to in the foregoing clause
(B)(2) have not been modified, revoked or rescinded and are in full
force and effect on such date.
(vi) A certificate signed by the Treasurer or Assistant Treasurer
of each Borrower, certifying as to:
(A) the SEC Borrowing Limit of such Borrower as in effect on
the Closing Date;
(B) the delivery to each of the Lenders, prior to the Closing
Date, of true, correct and complete copies (other than exhibits
thereto) of all of the Disclosure Documents; and
(C) the absence of any material adverse change in the
financial condition, operations, properties or prospects of such
Borrower since June 30, 1999, except as disclosed in the Disclosure
Documents.
(vii) A certificate of a duly authorized officer of each
Borrower stating that (i) the representations and warranties of such
Borrower contained in Section 6.01 are correct, in all material
respects, on and as of the Closing Date before and after giving effect
to any Advances to be made on such date and the application of the
proceeds thereof, and (ii) no event has occurred and is continuing with
respect to such Borrower which constitutes an Event of Default or
Unmatured Default in respect of such Borrower, or would result from such
initial Advances or the application of the proceeds thereof.
(viii) Such financial, business and other information regarding
each Borrower and its Subsidiaries, as any Lender shall have reasonably
requested.
(ix) Favorable opinions of:
(A) Day, Berry & Howard, counsel to the Borrowers, in
substantially the form of Exhibit 5.01A hereto and as to such other
matters as any Lender may reasonably request;
(B) Jeffrey C. Miller, Assistant General Counsel of NUSCO, in
substantially the form of Exhibit 5.01B hereto; and as to such
other matters as any Lender may reasonably request; and
(C) King & Spalding, special New York counsel to the
Administrative Agent, in substantially the form of Exhibit 5.01C
hereto and as to such other matters as any Lender may reasonably
request.
(x) Irrevocable notice to the administrative agent under the
Existing Credit Facility notifying such agent of the termination of the
"Commitments" of the lenders thereunder, effective on or before the
Closing Date.
(b) The "Commitments" under the Existing Credit Facility shall have
been terminated and all amounts outstanding thereunder shall have been (or
will have been, upon the first Advance and the application of the proceeds
thereof on the Closing Date) paid in full.
(c) All fees and other amounts payable pursuant to Section 2.02 hereof
or pursuant to the Fee Letter shall have been paid (to the extent then due
and payable).
(d) The Administrative Agent shall have received such other approvals,
opinions and documents as the Majority Lenders, through the Administrative
Agent, shall have reasonably requested as to the legality, validity, binding
effect or enforceability of this Agreement and the Notes or the financial
condition, operations, properties or prospects of each Borrower.
SECTION 5.02. Conditions Precedent to All Contract Advances The
obligation of any Lender to make any Contract Advance to either Borrower,
including the initial Contract Advance to such Borrower, shall be subject to
the conditions precedent that, on the date of such Contract Advance and after
giving effect thereto:
(a) the following statements shall be true (and each of the giving of
the applicable Notice of Contract Borrowing with respect to such Advance and
the acceptance of the proceeds of such Advance without prior correction by or
on behalf of such Borrower shall constitute a representation and warranty by
such Borrower that on the date of such Advance such statements are true):
(i) the representations and warranties of such Borrower contained
in Section 6.01 of this Agreement are correct, in all material respects,
on and as of the date of such Advance, before and after giving effect to
such Advance and to the application of the proceeds therefrom, as though
made on and as of such date;
(ii) no Event of Default or Unmatured Default with respect to such
Borrower has occurred and is continuing on or as of the date of such
Advance or would result from such Advance or from the application of the
proceeds thereof;
(iii) the making of such Advance, when aggregated with all
other Advances outstanding to or requested by such Borrower would not
cause such Borrower's Borrower Sublimit to be exceeded; and
(iv) the making of such Advance, when aggregated with all other
Advances outstanding to or requested by such Borrower and all other
outstanding short-term debt of such Borrower would not cause such
Borrower's SEC Borrowing Limit then in effect to be exceeded;
(b) such Borrower shall have furnished to the Administrative Agent such
other approvals, opinions or documents as any Lender may reasonably request
through the Administrative Agent as to the legality, validity, binding effect
or enforceability of any Loan Document.
SECTION 5.03. Reliance on Certificates. The Lenders and the
Administrative Agent shall be entitled to rely conclusively upon the
certificates delivered from time to time by officers of each Borrower as to
the names, incumbency, authority and signatures of the respective persons
named therein until such time as the Administrative Agent may receive a
replacement certificate, in form acceptable to the Administrative Agent, from
an officer of such Borrower identified to the Administrative Agent as having
authority to deliver such certificate, setting forth the names and true
signatures of the officers and other representatives of such Borrower
thereafter authorized to act on behalf of such Borrower and, in all cases,
the Lenders and the Administrative Agent may rely on the information set
forth in any such certificate.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrowers.
Each Borrower represents and warrants with respect to itself as follows:
(a) Such Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, has the requisite corporate power and authority to own its
property and assets and to carry on its business as now conducted and is
qualified to do business in every jurisdiction where, because of the
nature of its business or property, such qualification is required,
except where the failure so to qualify would not have a material adverse
effect on the financial condition, properties, prospects or operations
of such Borrower. Such Borrower has the corporate power to execute,
deliver and perform its obligations under the Loan Documents, to borrow
hereunder and to execute and deliver its respective Notes.
(b) The execution, delivery and performance of the Loan Documents
by such Borrower are within such Borrower's corporate powers, have been
duly authorized by all necessary corporate or other similar action, and
do not and will not contravene (i) such Borrower's, charter or by-laws,
as the case may be, or any law or legal restriction or (ii) any
contractual restriction binding on or affecting such Borrower or its
properties.
(c) Except as disclosed in such Borrower's Disclosure Documents,
such Borrower is not in violation of any law or in default with respect
to any judgment, writ, injunction, decree, rule or regulation (including
any of the foregoing relating to environmental laws and regulations) of
any court or governmental agency or instrumentality where such violation
or default would reasonably be expected to have a material adverse
effect on the financial condition, properties, prospects or operations
of such Borrower.
(d) There has been no material adverse development with respect to
(i) such Borrower's proceedings to divest its generating assets, or (ii)
any orders, plans or authorizations for recovery of its stranded assets,
where any such development results, or would reasonably be expected to
result, in a material adverse effect on the financial condition,
properties, prospects or operations of such Borrower, other than as
described in the Disclosure Documents.
(e) All Governmental Approvals referred to in clauses (i) and (ii)
of the definition of "Governmental Approvals" have been duly obtained or
made, and all applicable periods of time for review, rehearing or appeal
with respect thereto have expired, except as described below. If the
period for appeal of the order of the Securities and Exchange Commission
approving the transactions contemplated hereby has not expired, the
filing of an appeal of such order will not affect the validity of said
transactions, unless such order has been otherwise stayed or any of the
parties hereto has actual knowledge that any of such transactions
constitutes a violation of the Public Utility Holding Company Act of
1935 or any rule or regulation thereunder. No such stay exists and no
Borrower has any reason to believe that any of such transactions
constitutes any such violation. Such Borrower has obtained or made all
Governmental Approvals referred to in clause (iii) of the definition of
"Governmental Approvals", except (A) those which are not yet required
but which are obtainable in the ordinary course of business as and when
required, (B) those the absence of which would not materially adversely
affect the financial condition, properties, prospects or operations of
such Borrower and (C) those which such Borrower is diligently attempting
in good faith to obtain, renew or extend, or the requirement for which
such Borrower is contesting in good faith by appropriate proceedings or
by other appropriate means, in each case described in the foregoing
clause (C), except as is disclosed in such Borrower's Disclosure
Documents, such attempt or contest, and any delay resulting therefrom,
is not reasonably expected to have a material adverse effect on the
financial condition, properties, prospects or operations of such
Borrower or to magnify to any significant degree any such material
adverse effect that would reasonably be expected to result from the
absence of such Governmental Approval.
(f) The Loan Documents to which such Borrower is a party are
legal, valid and binding obligations of such Borrower enforceable
against such Borrower in accordance with their respective terms; subject
to the qualification, however, that the enforcement of the rights and
remedies herein and therein is subject to bankruptcy and other similar
laws of general application affecting rights and remedies of creditors
and the application of general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(g) The Financial Statements of such Borrower, copies of which
have been provided to the Administrative Agent and each of the Lenders,
fairly present in all material respects the financial condition and
results of operations of such Borrower (in the case of CL&P, on a
consolidated basis) at and for the period ended on the dates thereof,
and have been prepared in accordance with generally accepted accounting
principles consistently applied. Since June 30, 1999, there has been
no material adverse change in the consolidated (or in the case of WMECO,
unconsolidated) financial condition, operations, properties or prospects
of such Borrower and its Subsidiaries, if any, taken as a whole, except
as disclosed in such Borrower's Disclosure Documents.
(h) There is no pending or known threatened action or proceeding
(including, without limitation, any action or proceeding relating to any
environmental protection laws or regulations) affecting such Borrower or
its properties, before any court, governmental agency or arbitrator (i)
which affects or purports to affect the legality, validity or
enforceability of any Loan Document or (ii) as to which there is a
reasonable possibility of an adverse determination and which, if
adversely determined, would materially adversely affect the financial
condition, properties, prospects or operations of such Borrower, except,
for purposes of this clause (ii) only, such as is described in such
Borrower's Disclosure Documents or in Schedule II hereto.
(i) No ERISA Plan Termination Event has occurred nor is reasonably
expected to occur with respect to any ERISA Plan which would materially
adversely affect the financial condition, properties, prospects or
operations of such Borrower taken as a whole, except as disclosed to the
Lenders and consented to by the Majority Lenders in writing. Since the
date of the most recent Schedule B (Actuarial Information) to the annual
report of each such ERISA Plan (Form 5500 Series), there has been no
material adverse change in the funding status of the ERISA Plans
referred to therein, and no "prohibited transaction" has occurred with
respect thereto that, singly or in the aggregate with all other
"prohibited transactions" and after giving effect to all likely
consequences thereof, would be reasonably expected to have a material
adverse effect on the financial condition, properties, prospects or
operations of such Borrower. Neither such Borrower nor any of its ERISA
Affiliates has incurred nor reasonably expects to incur any material
withdrawal liability under ERISA to any ERISA Multiemployer Plan, except
as disclosed to and consented by the Majority Lenders in writing.
(j) Such Borrower has good and marketable title (or, in the case
of personal property, valid title) or valid leasehold interests in its
assets, except for (i) minor defects in title that do not materially
interfere with the ability of such Borrower to conduct its business as
now conducted and (ii) other defects that, either individually or in the
aggregate, do not materially adversely affect the financial condition,
properties, prospects or operations of such Borrower. All such assets
and properties are free and clear of any Lien, other than Liens
permitted under Section 7.02(a) hereof.
(k) All outstanding shares of capital stock having ordinary voting
power for the election of directors of such Borrower have been validly
issued, are fully paid and nonassessable and are owned beneficially by
NU, free and clear of any Lien. NU is a "holding company" (as defined
in the Public Utility Holding Company Act of 1935, as amended).
(l) Such Borrower has filed all tax returns (Federal, state and
local) required to be filed and paid taxes shown thereon to be due,
including interest and penalties, or, to the extent such Borrower is
contesting in good faith an assertion of liability based on such
returns, has provided adequate reserves in accordance with generally
accepted accounting principles for payment thereof.
(m) No exhibit, schedule, report or other written information
provided by or on behalf of such Borrower or its agents to the
Administrative Agent or the Lenders in connection with the negotiation,
execution and closing of the Loan Documents (including, without
limitation, the Financial Statements and the Information Memorandum (but
excluding the projections contained in the Information Memorandum))
knowingly contained when made any material misstatement of fact or
knowingly omitted to state any material fact necessary to make the
statements contained therein not misleading in light of the
circumstances under which they were made. Except as has been disclosed
to the Administrative Agent and each Lender, the projections delivered
concurrently with the Information Memorandum were prepared in good faith
on the basis of assumptions reasonable as of the date of the Information
Memorandum, it being understood that such projections do not constitute
a warranty or binding assurance of future performance. Except as has
been disclosed to the Administrative Agent and each Lender, nothing has
come to the attention of the responsible officers of such Borrower that
would indicate that any of such assumptions, to the extent material to
such projections, has ceased to be reasonable in light of subsequent
developments or events.
(n) All proceeds of the Advances shall be used (i) for the general
corporate purposes of such Borrower, including to provide liquidity
support for such Borrower's commercial paper, and (ii) to provide
liquidity to the NU System Money Pool. No proceeds of any Advance will
be used in violation of, or in any manner that would result in a
violation by any party hereto of, Regulation T, U or X promulgated by
the Board of Governors of the Federal Reserve System or any successor
regulations. Such Borrower (A) is not an "investment company" within
the meaning ascribed to that term in the Investment Company Act of 1940
and (B) is not engaged in the business of extending credit for the
purpose of buying or carrying margin stock.
(o) Such Borrower has no Subsidiaries, other than those listed on
Schedule III hereto, each of which is either inactive or a special
purpose entity used solely in connection with the financing activities
of such Borrower, and none of which, either individually or collectively
with all other Subsidiaries of such Borrower, represents 10% or more of
such Borrower's consolidated assets or 10% or more of such Borrower's
consolidated net income (or loss) on any date or for any relevant period
of determination.
(p) Such Borrower has obtained the insurance specified in Section
7.01(c) hereof and the same is in full force and effect.
(q) Such Borrower has substantially completed reprogramming and/or
remediation required as a result of the potential Year 2000 Issue to
permit the proper functioning in all material respects of its computer
software, hardware and firmware systems and equipment containing
computer chips and the proper processing in all material respects of
data, and the testing of such reprogramming or remediation (as the case
may be). Such Borrower has completed review of the reasonably
foreseeable consequences of the potential Year 2000 Issue to such
Borrower (including, without limitation, reprogramming errors and the
failure of systems or equipment supplied by others) and such
consequences are not reasonably expected to result in an Event of
Default, an Unmatured Default or a material adverse effect on the
financial condition, properties, prospects or operations of such
Borrower.
(r) Each of the Mortgages creates a valid and enforceable mortgage
on the interest of the Borrower party thereto in the "Mortgaged
Premises" described therein in favor of the Collateral Agent for the
benefit of the Lenders to secure the obligations of such Borrower to the
Lenders under the Loan Documents, and upon the recording or filing of
such Mortgage in the Office of the Town Clerk of Waterford, Connecticut,
the Collateral Agent shall have a perfected mortgage in the "Mortgaged
Premises" described therein, subject to no other Liens except as
described in such Mortgage and Liens permitted under Section 7.02(a)
hereof.
(s) The "Millstone 2 Mortgaged Premises" (as defined in each of
the Mortgages) includes buildings and fixtures comprising that certain
electric generating unit commonly known as "Millstone Unit No. 2", and
the "Millstone 3 Mortgaged Premises" (as defined in each of the
Mortgages) includes buildings and fixtures comprising that certain
electric generating unit commonly known as "Millstone Unit No. 3".
ARTICLE VII
COVENANTS
SECTION 7.01. Affirmative Covenants of the Borrowers. On and
after the Closing Date, so long as any Note shall remain unpaid or any Lender
shall have any Commitment hereunder, each Borrower shall, unless the Majority
Lenders shall otherwise consent in writing:
(a) Use of Proceeds. Apply the proceeds of each Advance solely as
specified in Section 6.01(n) hereof.
(b) Payment of Taxes, Etc. Pay and discharge before the same
shall become delinquent, all taxes, assessments and governmental
charges, royalties or levies imposed upon it or upon its property except
to the extent such Borrower is contesting the same in good faith by
appropriate proceedings and has set aside adequate reserves in
accordance with generally accepted accounting principles for the payment
thereof.
(c) Maintenance of Insurance. Maintain, or cause to be
maintained, insurance (including appropriate plans of self-insurance)
covering such Borrower and its properties, in effect at all times in
such amounts and covering such risks as may be required by law and, in
addition, as is usually carried by companies engaged in similar
businesses and owning similar properties.
(d) Preservation of Existence, Etc.; Disaggregation. Except as
permitted by Section 7.02(b) hereof, preserve and maintain its
existence, corporate or otherwise, material rights (statutory and
otherwise) and franchises except where the failure to maintain and
preserve such rights and franchises would not materially adversely
affect the financial condition, properties, prospects or operations of
such Borrower.
(i) In furtherance of the foregoing, and notwithstanding
Section 7.02(b), each Borrower agrees that it will not, except in
accordance with one or more restructuring plans approved by the
appropriate regulatory authorities, sell, transfer or otherwise
dispose of (by lease or otherwise, and whether in one or a series
of related transactions) any portion of its generation,
transmission or distribution assets in excess of 10% of the net
utility plant assets of such Borrower, in each case as determined
on a cumulative basis from the date of this Agreement through the
Termination Date by reference to such entity's published balance
sheets.
(e) Compliance with Laws, Etc. Comply in all material respects
with the requirements of all applicable laws, rules, regulations and
orders of any governmental authority, including, without limitation, any
such laws, rules, regulations and orders issued by the Securities and
Exchange Commission or relating to zoning, environmental protection, use
and disposal of Hazardous Substances, land use, construction and
building restrictions, ERISA and employee safety and health matters
relating to business operations, except to the extent (i) that such
Borrower is contesting the same in good faith by appropriate proceedings
or (ii) that any such non-compliance, and the enforcement or correction
thereof, would not materially adversely affect the financial condition,
properties, prospects or operations of such Borrower.
(f) Inspection Rights. At any time and from time to time upon
reasonable notice, permit the Administrative Agent and its agents and
representatives to examine and make copies of and abstracts from the
records and books of account of, and the properties of, such Borrower
and to discuss the affairs, finances and accounts of such Borrower (i)
with such Borrower and its officers and directors and (ii) with the
consent of such Borrower (which consent shall not be unreasonably
withheld or delayed), with the accountants of such Borrower.
(g) Keeping of Books. Keep proper records and books of account,
in which full and correct entries shall be made of all financial
transactions of such Borrower and the assets and business of such
Borrower, in accordance with generally accepted accounting practices
consistently applied.
(h) Conduct of Business. Except as permitted by Section 7.02(b)
but subject in all respects to Section 7.01(d)(ii), conduct its primary
business in substantially the same manner and in substantially the same
fields as such business is conducted on the Closing Date.
(i) Maintenance of Properties, Etc. (i) As to properties of the
type described in Section 6.01(j) hereof, maintain title of the quality
described therein and preserve, maintain, develop, and operate, in
substantial conformity with all laws, material contractual obligations
and prudent practices prevailing in the industry, all of its properties
which are used or useful in the conduct of its businesses in good
working order and condition, ordinary wear and tear excepted, except (A)
as permitted by Section 7.02(b), but subject nevertheless to Section
7.01(d)(ii), (B) as disclosed in the Disclosure Documents or otherwise
in writing to the Administrative Agent and the Lenders on or prior to
the date hereof, and (C) to the extent such non-conformity would not
materially adversely affect the financial condition, properties,
prospects or operations of such Borrower; provided, however, that such
Borrower will not be prevented from discontinuing the operation and
maintenance of any such properties if such discontinuance is, in the
judgment of such Borrower, desirable in the operation or maintenance of
its business and would not materially adversely affect the financial
condition, properties, prospects or operations of such Borrower.
(j) Governmental Approvals. Duly obtain, on or prior to such date
as the same may become legally required, and thereafter maintain in
effect at all times, all Governmental Approvals on its part to be
obtained, except in the case of those Governmental Approvals referred to
in clause (iii) of the definition of "Governmental Approvals", (i) those
the absence of which would not materially adversely affect the financial
condition, properties, prospects or operations of such Borrower and
(ii) those which such Borrower is diligently attempting in good faith to
obtain, renew or extend, or the requirement for which such Borrower is
contesting in good faith by appropriate proceedings or by other
appropriate means; provided, however, that the exception afforded by
clause (ii), above, shall be available only if and for so long as such
attempt or contest, and any delay resulting therefrom, does not have a
material adverse effect on the financial condition, properties,
prospects or operations of such Borrower and does not magnify to any
significant degree any such material adverse effect that would
reasonably be expected to result from the absence of such Governmental
Approval.
(k) Further Assurances. Promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or that any Lender through the Administrative Agent may
reasonably request in order to fully give effect to the interests and
properties purported to be covered by the Loan Documents.
SECTION 7.02. Negative Covenants of the Borrowers. On and after
the Closing Date, and so long as any Note shall remain unpaid or any Lender
shall have any Commitment hereunder, each Borrower shall not, without the
written consent of the Majority Lenders:
(a) Liens, Etc. Create incur, assume or suffer to exist any Lien upon
any of its properties or assets, whether now owned or hereafter acquired,
except:
(i) the Liens of the Mortgages and any Liens existing on the
Closing Date;
(ii) in the case of CL&P, Liens created by the Indenture of
Mortgage and Deed of Trust dated as of May 1, 1921, from CL&P to Bankers
Trust Company, as trustee, as previously and hereafter amended and
supplemented (the "CL&P Indenture");
(iii) in the case of WMECO, Liens created by the First Mortgage
Indenture and Deed of Trust dated as of August 1, 1954, from WMECO to
State Street Bank and Trust Company, as successor trustee, as previously
and hereafter amended and supplemented (the "WMECO Indenture");
(iv) Liens on such Borrower's interests in Millstone Unit
No. 1 created by (1) the Open-End Mortgage and Trust Agreement dated as
of October 1, 1986, as previously and hereafter amended, made by CL&P in
favor of State Street Bank and Trust Company, as successor trustee, and
(2) the Open-End Mortgage and Trust Agreement dated as of October 1,
1986, as previously and hereafter amended, made by WMECO in favor of
State Street Bank and Trust Company, as successor trustee, to the extent
of the Debt from time to time secured by such Open-End Mortgages and
Trust Agreements;
(v) "Permitted Liens" or "Permitted Encumbrances" under the CL&P
Indenture (in the case of CL&P) or the WMECO Indenture (in the case of
WMECO), in each case as such terms are defined on the date hereof, to
the extent such Liens do not secure Debt of such Borrower;
(vi) any purchase money Lien or construction mortgage on assets
hereafter acquired or constructed by such Borrower and any Lien on any
assets existing at the time of acquisition thereof by such Borrower or
created within 180 days from the date of completion of such acquisition
or construction; provided that such Lien shall at all times be confined
solely to the assets so acquired or constructed and any additions
thereto;
(vii) any existing Liens on assets now owned by such Borrower and
Liens existing on assets of a corporation or other going concern when it
is merged into or with such Borrower or when substantially all of its
assets are acquired by such Borrower; provided that such Liens shall at
all times be confined solely to such assets, or if such assets
constitute a utility system, additions to or substitutions for such
assets;
(viii) Liens resulting from legal proceedings being contested in
good faith by appropriate legal or administrative proceedings by such
Borrower, and as to which such Borrower, to the extent required by
generally accepted accounting principles applied on a consistent basis,
shall have set aside on its books adequate reserves;
(ix) Liens created in favor of the other contracting party in
connection with advance or progress payments;
(x) any Liens in favor of any state of the United States or any
political subdivision of any such state, or any agency of any such state
or political subdivisions, or trustee acting on behalf of holders of
obligations issued by any of the foregoing or any financial institutions
lending to or purchasing obligations of any of the foregoing, which Lien
is created or assumed for the purpose of financing all or part of the
cost of acquiring or constructing the property subject thereto;
(xi) Liens resulting from conditional sale agreements, capital
leases or other title retention agreements including, without
limitation, Liens arising under leases of nuclear fuel from the Niantic
Bay Fuel Trust;
(xii) with respect to pollution control bond financings, Liens on
funds, accounts and other similar intangibles of such Borrower created
or arising under the relevant indenture, pledges of the related loan
agreement with the relevant issuing authority and pledges of such
Borrower's interest, if any, in any bonds issued pursuant to such
financings to a letter of credit bank or bond issuer or similar credit
enhancer;
(xiii) Liens granted on accounts receivable and Regulatory Assets in
connection with financing transactions, whether denominated as sales or
borrowings;
(xiv) any other Liens incurred in the ordinary course of
business otherwise than to secure Debt; and
(xv) any extension, renewal or replacement of Liens permitted
by clauses (i), (iv), (v) through (vii) and (ix) through (xiii);
provided, however, that the principal amount of Debt secured thereby
shall not, at the time of such extension, renewal or replacement, exceed
the principal amount of Debt so secured and that such extension, renewal
or replacement shall be limited to all or a part of the property which
secured the Lien so extended, renewed or replaced.
(b) Mergers, Acquisitions, Sales of Assets, Etc. Merge with or into or
consolidate with or into, any Person, or purchase or otherwise acquire
(whether directly or indirectly) all or substantially all of the assets or
stock of any class of, or any partnership or joint venture interest in, any
other Person, or sell, transfer, convey, lease or otherwise dispose of all or
any substantial part of its assets; except for the following, and then only
after receipt of all necessary corporate and governmental or regulatory
approvals and provided that, before and after giving effect to any such
merger, consolidation, purchase, acquisition, sale, transfer, conveyance,
lease or other disposition, no Event of Default or Unmatured Default shall
have occurred and be continuing:
(A) any purchase or acquisition of a joint venture interest in a
mutual insurance company providing nuclear liability or nuclear property
or replacement power insurance;
(B) any sale of accounts receivable on reasonable commercial terms
(including a commercially reasonable discount) to obtain funding for
CL&P and WMECO, as the case may be;
(C) any sale or purchase of generating assets or Regulatory Assets
on an arms-length basis, subject to approval by the appropriate
regulatory authorities; and
(D) the sale of such Borrower's assets in the ordinary course of
business on customary terms and conditions.
For purposes of this subsection (b), any sale of assets by such Borrower (in
one or a series of transactions) will be deemed to be a "substantial part"
of its assets if (i) the book value of such assets exceeds 7.5% of the total
book value of the assets (net of Regulatory Assets) of such Borrower, as
reflected in the most recent financial statements of the Borrower delivered
to the Administrative Agent pursuant to Section 7.04 hereof (or, if no such
financial statements have been delivered to the Administrative Agent as of
the relevant date of determination, the Financial Statements of such
Borrower), or (ii) the gross revenue associated with such assets accounts for
more than 7.5% of the total gross revenue of such Borrower for the four
proceeding fiscal quarters, as reflected in the most recent financial
statements of the Borrower delivered to the Administrative Agent pursuant to
Section 7.04 hereof (or, if no such financial statements have been delivered
to the Administrative Agent as of the relevant date of determination, the
Financial Statements of such Borrower).
(c) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate thereof to terminate, any ERISA Plan so as to result in any
liability of such Borrower to the PBGC in an amount greater than $1,000,000,
or (ii) permit to exist any occurrence of any Reportable Event (as defined in
Title IV of ERISA) which, alone or together with any other Reportable Event
with respect to the same or another ERISA Plan, has a reasonable possibility
of resulting in liability of such Borrower to the PBGC in an aggregate amount
exceeding $1,000,000, or any other event or condition which presents a
material risk of such a termination by the PBGC of any ERISA Plan or has a
reasonable possibility of resulting in a liability of such Borrower to the
PBGC in an aggregate amount exceeding $1,000,000.
(d) Accounting Changes. Make any change in its accounting policies or
reporting practices except as required or permitted by the Securities and
Exchange Commission, the Financial Accounting Standards Board or any other
generally recognized accounting authority.
(e) Transactions with Affiliates. Engage in any transaction with any
Affiliate except (i) in accordance with the Public Utility Holding Company
Act of 1935, to the extent applicable thereto or (ii) on terms no less
favorable to such Borrower than if the transaction had been negotiated in
good faith on an arms-length basis with a non-Affiliate and on commercially
reasonable terms or pursuant to a binding agreement in effect on the Closing
Date.
(f) Issuance of First Mortgage Bonds. Issue any First Mortgage Bonds
on or after the Closing Date, whether in addition to First Mortgage Bonds
outstanding on the Closing Date or in replacement of First Mortgage Bonds
redeemed, retired, defeased, repaid or prepaid on or after the Closing Date.
(g) Interests in Nuclear Plants. Acquire any nuclear plant or any
interest therein not held on the Closing Date, other than so-called "power
entitlements" acquired for use in the ordinary course of business.
(h) Subsidiaries. Create, acquire or permit to exist, any Subsidiary,
other than (i) Subsidiaries in existence on the Closing Date and listed on
Schedule III hereto and (ii) Subsidiaries that are either inactive or special
purpose entities used solely in connection with the financing activities of
such Borrower; provided, that none of the Subsidiaries described in clauses
(i) and (ii) above, either individually or collectively with all other such
Subsidiaries, shall represent 10% or more of such Borrower's consolidated
assets or 10% or more of such Borrower's consolidated net income (or loss) on
any date or for any relevant period of determination.
SECTION 7.03. Financial Covenants of the Borrowers. On and after
the Closing Date, so long as any Note shall remain unpaid or any Lender shall
have any Commitment hereunder, each Borrower shall, unless the Majority
Lenders shall otherwise consent in writing:
(a) Common Equity Ratio. Maintain at all times a ratio of Common
Equity to Total Capitalization of at least 0.28:1:00 for the period
beginning on the Closing Date and ending on December 31, 1999, and at
least 0.30:1:00 at any time thereafter.
(b) Interest Coverage Ratio. Maintain, as of the end of each
Fiscal Quarter, with respect to the four Fiscal Quarters then ended, a
ratio of Consolidated Operating Income to Consolidated Interest Expense
of at least 2.00:1:00.
SECTION 7.04. Reporting Obligations of the Borrowers. So long as
any Note shall remain unpaid or any Lender shall have any Commitment
hereunder, each Borrower shall, unless the Majority Lenders shall otherwise
consent in writing, furnish or cause to be furnished to the Administrative
Agent in sufficient copies for each Lender, the following:
(i) as soon as possible and in any event within ten days after the
occurrence of each Event of Default or Unmatured Default with respect to
such Borrower continuing on the date of such statement, a statement of
the Chief Financial Officer, Treasurer or Assistant Treasurer of such
Borrower setting forth details of such Event of Default or Unmatured
Default and the action which such Borrower proposes to take with respect
thereto;
(ii) (A) as soon as available, and in any event within fifty (50)
days after the end of each of the first three Fiscal Quarters of each
Fiscal Year of such Borrower, a copy of such Borrower's Quarterly Report
on Form 10-Q submitted to the Securities and Exchange Commission with
respect to such quarter, or, if such Borrower ceases to be required to
submit such report, a consolidated balance sheet of such Borrower as of
the end of such Fiscal Quarter and consolidated statements of income and
retained earnings and of cash flows of such Borrower for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such Fiscal Quarter, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the Chief Financial Officer,
Treasurer, Assistant Treasurer or Comptroller of such Borrower as having
been prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the
Financial Statements; and
(B) concurrently with the delivery of the financial
statements described in the foregoing clause (a), a certificate of
the Chief Financial Officer, Treasurer, Assistant Treasurer or
Comptroller of such Borrower:
(1) to the effect that such financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied in
the preparation of the Financial Statements,
(2) stating that no Event of Default or Unmatured
Default with respect to such Borrower has occurred and
is continuing or, if an Event of Default or Unmatured
Default with respect to such Borrower has occurred and
is continuing, describing the nature thereof and the
action which such Borrower proposes to take with respect
thereto, and
(3) demonstrating such Borrower's compliance with
the covenants set forth in Section 7.03 hereof, for and
as of the end of such Fiscal Quarter, in each case such
demonstrations to be in form satisfactory to the
Administrative Agent and to set forth in reasonable
detail the computations used in determining such
compliance;
(iii) (A) as soon as available, and in any event within 105
days after the end of each Fiscal Year of such Borrower, a copy of such
Borrower's report on Form 10-K submitted to the Securities and Exchange
Commission with respect to such Fiscal Year, or, if such Borrower ceases
to be required to submit such report, a copy of the annual audit report
for such year for such Borrower including therein a consolidated balance
sheet of such Borrower as of the end of such Fiscal Year and
consolidated statements of income and retained earnings and of cash
flows of such Borrower for such Fiscal Year, all in reasonable detail
and certified by a nationally-recognized independent public accountant;
and
(B) concurrently with the delivery of the financial
statements described in the foregoing clause (A), a certificate of
the Chief Financial Officer, Treasurer, Assistant Treasurer or
Comptroller of such Borrower:
(1) to the effect that such financial statements
were prepared in accordance with generally accepted
accounting principles consistent with those applied in
the preparation of the Financial Statements, and
(2) stating that no Event of Default or Unmatured
Default with respect to such Borrower has occurred and is
continuing, or if an Event of Default or Unmatured
Default with respect to such Borrower has occurred and is
continuing, describing the nature thereof and the action
which such Borrower proposes to take with respect
thereto, and
(3) demonstrating such Borrower's compliance with
the covenants set forth in Section 7.03 hereof, for and
as of the end of such Fiscal Year, in each case such
demonstrations to be in form satisfactory to the
Administrative Agent and to set forth in reasonable
detail the computations used in determining such
compliance;
(iv) upon the reasonable request of the Administrative Agent, but
not more than once per Fiscal Quarter, copies of any or all filings or
registrations with, or notices or reports to, any regulatory authority;
(v) promptly upon becoming aware that any of its material
businesses and operations is reasonably likely be affected by the Year
2000 Issue, a detailed description of the nature of such circumstances
and the actions which such Borrower proposes to take with respect
thereto, except where the effect of the Year 2000 Issue would not be
reasonably likely to have a material adverse effect on the financial
condition, properties, prospects or operations of such Borrower;
(vi) as soon as possible and in any event (A) within 30 days after
the Chief Financial Officer, Treasurer or any Assistant Treasurer of
such Borrower knows or has reason to know that any ERISA Plan
Termination Event described in clause (i) of the definition of ERISA
Plan Termination Event with respect to any ERISA Plan or ERISA
Multiemployer Plan has occurred and (B) within 10 days after such
Borrower knows or has reason to know that any other ERISA Plan
Termination Event with respect to any ERISA Plan or ERISA Multiemployer
Plan has occurred, a statement of the Chief Financial Officer, Treasurer
or Assistant Treasurer of such Borrower describing such ERISA Plan
Termination Event and the action, if any, which such Borrower proposes
to take with respect thereto;
(vii) promptly after receipt thereof by such Borrower or any of its
ERISA Affiliates from the PBGC, copies of each notice received by such
Borrower or any such ERISA Affiliate of the PBGC's intention to
terminate any ERISA Plan or ERISA Multiemployer Plan or to have a
trustee appointed to administer any ERISA Plan or ERISA Multiemployer
Plan;
(viii) promptly after receipt thereof by such Borrower or any of its
ERISA Affiliates from an ERISA Multiemployer Plan sponsor, a copy of
each notice received by such Borrower or any of its ERISA Affiliates
concerning the imposition or amount of withdrawal liability in an
aggregate principal amount of at least $10,000,000 pursuant to
Section 4202 of ERISA in respect of which such Borrower may be liable;
(ix) promptly after such Borrower becomes aware of the
commencement thereof, notice of all actions, suits, proceedings or other
events of the type described in Section 6.01(h) hereof (including,
without limitation, any action or proceeding relating to any
environmental protection laws or regulations);
(x) promptly after the filing thereof, copies of each prospectus
(excluding any prospectus contained in any Form S-8) and Current Report
on Form 8-K, if any, which such Borrower files with the Securities and
Exchange Commission or any successor governmental authority;
(xi) promptly after any change in the SEC Borrowing Limit of such
Borrower, notice of the new SEC Borrowing Limit applicable to such
Borrower; and
(xii) promptly after requested, such other information respecting
the financial condition, operations, properties or prospects of such
Borrower or its Subsidiaries as the Administrative Agent, or the
Majority Lenders through the Administrative Agent, may from time to time
reasonably request in writing.
SECTION 7.05. Release of Collateral. At the option and request of
the Borrower that is the mortgagor under the relevant Mortgage, the
Collateral Agent will take all necessary or appropriate actions to release
the Lien under such Mortgage upon the earlier of (i) the sale of the property
subject to such Mortgage or (ii) the issuance by both S&P and Moody's of
unsecured, senior, non-credit enhanced, long-term debt ratings of at least
BBB- and Baa3, respectively, with respect to the Borrower that is the
mortgagor under such Mortgage and the other Borrower, and each of the Lenders
consents to the taking of such actions by the Collateral Agent under such
circumstances.
ARTICLE VIII
DEFAULTS
SECTION 8.01. Events of Default. The following events shall each
constitute an "Event of Default" with respect to a Borrower:
(a) Such Borrower shall fail to pay any principal of any Note when
due or shall fail to pay any interest thereon or fees or other amounts
payable under the Loan Documents within two days after the same becomes
due; or
(b) Any representation or warranty made by such Borrower (or any
of its officers or agents) in any Loan Document, any certificate or
other writing delivered pursuant hereto or thereto shall prove to have
been incorrect in any material respect when made or deemed made; or
(c) Such Borrower shall fail to perform or observe any term or
covenant on its part to be performed or observed contained in
Section 7.01(d), Section 7.02, Section 7.03 or Section 7.04(i) hereof;
or
(d) Such Borrower shall fail to perform or observe any other term
or covenant on its part to be performed or observed contained in any
Loan Document and any such failure shall remain unremedied for a period
of 30 days after the earlier of (i) written notice of such failure
having been given to such Borrower by the Administrative Agent or
(ii) such Borrower having obtained actual knowledge of such failure; or
(e) Such Borrower shall fail to pay any of its Debt when due
(including any interest or premium thereon but excluding Debt evidenced
by its respective Notes and excluding other Debt aggregating in no event
more than $10,000,000 in principal amount at any one time) whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise, and such failure shall continue after the applicable grace
period, if any, specified in any agreement or instrument relating to
such Debt; or any other default under any agreement or instrument
relating to any such Debt, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such default or event is to
accelerate, or to permit the acceleration of, the maturity of such Debt;
or any such Debt shall be declared to be due and payable, or required to
be prepaid (other than by a regularly scheduled required prepayment or
as a result of such Borrower's exercise of a prepayment option) prior to
the stated maturity thereof; or
(f) Such Borrower shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make an assignment for the benefit of creditors; or
any proceeding shall be instituted by or against such Borrower seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief,
or composition of its debts under any law relating to bankruptcy,
insolvency, or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its
property and, in the case of a proceeding instituted against such
Borrower such Borrower shall consent thereto or such proceeding shall
remain undismissed or unstayed for a period of 90 days or any of the
actions sought in such proceeding (including without limitation the
entry of an order for relief against such Borrower or the appointment of
a receiver, trustee, custodian or other similar official for such
Borrower or any of its property) shall occur; or such Borrower shall
take any corporate or other action to authorize any of the actions set
forth above in this subsection (f); or
(g) Any judgments or orders for the payment of money in excess of
$10,000,000 (or aggregating more than $10,000,000 at any one time) shall
be rendered against such Borrower or its properties, and either
(A) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order and shall not have been stayed or (B) there
shall be any period of 15 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) Any material provision of any Loan Document to which such
Borrower is a party shall at any time for any reason cease to be valid
and binding on such Borrower, or shall be determined to be invalid or
unenforceable by any court, governmental agency or authority having
jurisdiction over such Borrower, or such Borrower shall deny that it has
any further liability or obligation under any Loan Document; or
(i) The Collateral Agent shall cease to have a valid, enforceable
and perfected mortgage on the "Mortgaged Premises" described in either
Mortgage other than pursuant to the terms of the Loan Documents; or
(j) NU shall cease to beneficially own, free and clear of any
Liens, at least 85% of all outstanding shares of capital stock having
ordinary voting power for the election of directors of such Borrower; or
(k) A Change of Control shall have occurred.
SECTION 8.02. Remedies Upon Events of Default. Upon the
occurrence and during the continuance of any Event of Default with respect to
a Borrower, the Administrative Agent shall at the request, or may with the
consent, of the Lenders entitled to make such request, upon notice to such
Borrower (i) declare the obligation of each Lender to make Advances to such
Borrower to be terminated, whereupon such obligation of each Lender shall
forthwith terminate, provided, that any such request or consent pursuant to
this clause (i) shall be made solely by Lenders having Percentages in the
aggregate of not less 66-2/3%; (ii) declare the Notes of such Borrower, all
interest thereon and all other amounts payable by such Borrower under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon such Notes, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by each
Borrower, provided, that any such request or consent pursuant to this
clause (ii) shall be made solely by the Lenders holding at least 66-2/3% of
the then aggregate unpaid principal amount of the Advances owing by such
Borrower, and (iii) instruct the Collateral Agent to exercise in respect of
any and all Collateral, in addition to the other rights and remedies provided
for herein and in the other Loan Documents or otherwise available to the
Administrative Agent, the Collateral Agent or the Lenders, all the rights and
remedies of a secured party on default under the Uniform Commercial Code in
effect in the State of New York and in effect in any other jurisdiction in
which Collateral is located at that time, provided, that any such request or
consent pursuant to this clause (iii) shall be made solely by the Lenders
holding at least 66-2/3% of the then aggregate unpaid principal amount of the
Advances owing by such Borrower; and provided further, however, that if such
Event of Default is an Event of Default pursuant to subsection (f) of Section
8.01, then (A) the obligation of each Lender to make Advances to such
Borrower shall automatically be terminated and (B) the Notes of such
Borrower, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by each Borrower.
ARTICLE IX
THE AGENT
SECTION 9.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation,
enforcement or collection thereof), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders; provided,
however, that the Administrative Agent shall not be required to take any
action which exposes the Administrative Agent to personal liability or which
is contrary to the Loan Documents or applicable law. The Administrative
Agent agrees to deliver promptly to each Lender notice of each notice given
to it by a Borrower pursuant to the terms of this Agreement.
SECTION 9.02. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them
under or in connection with any Loan Document, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, the Administrative Agent: (i) may treat the payee of any
Note as the holder thereof until the Administrative Agent receives and
accepts a Lender Assignment entered into by the Lender which is the payee of
such Note, as assignor, and an assignee, as provided in Section 10.07;
(ii) may consult with legal counsel (including counsel for the Borrower(s)),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts;
(iii) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for the Information Memorandum or any other
statements, warranties or representations made in or in connection with any
Loan Document; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of any Borrower to be performed or observed, or
to inspect any property (including the books and records) of any Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan
Document or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by facsimile) believed by it to be genuine and signed or sent
by the proper party or parties.
SECTION 9.03. Citibank and Affiliates. With respect to its
Commitment and the Note issued to it, Citibank shall have the same rights and
powers under the Loan Documents as any other Lender and may exercise the same
as though it were not the Administrative Agent and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include Citibank in
its individual capacity. Citibank and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage
in any kind of business with, any Borrower, any of their respective
Subsidiaries and any Person who may do business with or own securities of any
Borrower or any such Subsidiary, all as if Citibank were not the
Administrative Agent and without any duty to account therefor to the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative
Agent, the Collateral Agent or any other Lender and based on the Information
Memorandum and the Financial Statements and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent, the
Collateral Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement.
SECTION 9.05. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrowers), ratably
according to the respective principal amounts of the Notes then held by each
of them (or if no Notes are at the time outstanding, ratably according to the
respective Commitments of the Lenders; if any Notes or Commitments are held
by any Borrower or Affiliates thereof, any ratable apportionment hereunder
shall exclude the principal amount of the Notes held by such Borrower(s) or
Affiliates or their respective Commitments (if any) hereunder), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against
the Administrative Agent in its capacity as such in any way relating to or
arising out of any Loan Document or any action taken or omitted by the
Administrative Agent in its capacity as such under any Loan Document,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for
such Lender's ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Administrative Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, the Loan
Documents to the extent that the Administrative Agent is entitled to
reimbursement for such expenses pursuant to Section 10.04 but is not
reimbursed for such expenses by the Borrowers.
SECTION 9.06. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders
and the Borrowers, with any such resignation to become effective only upon
the appointment of a successor Administrative Agent pursuant to this Section
9.06. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor Administrative Agent, which shall be a Lender or
another commercial bank or trust company reasonably acceptable to the
Borrowers organized or licensed under the laws of the United States, or of
any State thereof. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be Lender or
shall be another commercial bank or trust company organized or licensed under
the laws of the United States or of any State thereof reasonably acceptable
to the Borrowers. In addition to the foregoing right of the Administrative
Agent to resign, the Majority Lenders may remove the Administrative Agent at
any time, with or without cause, concurrently with the appointment by the
Majority Lenders of a successor Administrative Agent. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under the Loan Documents.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the
following: (a) waive, modify or eliminate any of the conditions specified in
Article V, (b) increase the Commitment of any Lender hereunder or increase
the Commitments of the Lenders that may be maintained hereunder or increase
any Borrower Sublimit or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Notes, any Applicable Margin
or any fees or other amounts payable hereunder (other than fees payable to
the Administrative Agent pursuant to Section 2.02(b) hereof), (d) postpone
any date fixed for any payment of principal of, or interest on, the Notes or
any fees or other amounts payable under the Loan Documents (other than fees
payable to the Administrative Agent pursuant to Section 2.02(b) hereof),
(e) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the number of Lenders which shall be
required for the Lenders or any of them to take any action under the Loan
Documents, (f) amend any Loan Document in a manner intended to prefer one or
more Lenders over any other Lenders, (g) amend this Section 10.01, or (h)
release all or a material portion of the Collateral other than in accordance
with the terms of the Loan Documents; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent or the Collateral Agent, as the case may be, in addition
to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent or the Collateral Agent, as the case may
be, under any Loan Document.
SECTION 10.02. Notices, Etc. Except as otherwise expressly provided
herein, all notices and other communications provided for under the Loan
Documents shall be in writing (including facsimile communication) and mailed,
sent by facsimile or hand delivered:
(i) if to any Borrower, to it in care of NUSCO at 107 Selden
Street, Berlin, Connecticut 06037, Attention: Assistant
Treasurer, facsimile number: (860) 665-5457, confirm number:
(860) 665-3258;
(ii) if to any Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto;
(iii) if to any Lender other than a Bank, at its Domestic
Lending Office specified in the Lender Assignment pursuant to
which it became a Lender;
(iv) if to the Administrative Agent, at its address at 1 Court
Square, 7th Floor/Zone 1, Long Island City, New York, NY
11120, Attention: Bank Loan Services, facsimile number:
(718) 248-4483, confirm 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: Robert J. Harrity,
Jr., Managing Director, facsimile number: (212) 793-6130,
confirm number: (212) 559-6482; and
(v) if the Collateral Agent, at its address at 399 Park Avenue,
Floor 4, Zone 20, New York, New York 10043, Attention: David
Goldenberg, facsimile number (212) 793-6130, confirm number:
(212) 559-1360.
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall, when mailed, sent by facsimile or hand delivered, be
effective five days after when deposited in the mails, or when sent by
facsimile, or when delivered, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III, IV or
IX shall not be effective until received by the Administrative Agent. With
respect to any telephone notice given or received by the Administrative Agent
pursuant to Section 3.03 hereof, the records of the Administrative Agent
shall be conclusive for all purposes.
SECTION 10.03. No Waiver of Remedies. No failure on the part of the
Administrative Agent, the Collateral Agent or any Lender to exercise, and no
delay in exercising, any right under any Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 10.04. Costs, Expenses and Indemnification. (a) The Borrowers
agree to pay when due, in accordance with the terms hereof: (i) all costs and
expenses of the Administrative Agent and the Collateral Agent in connection
with the preparation, negotiation, execution and delivery of the Loan
Documents, the administration of the Loan Documents, and any proposed
modification, amendment, or consent relating thereto (including, in each
case, the reasonable fees and expenses of counsel to the Administrative
Agent and the Collateral Agent) and the care and custody of, or the sale of,
collection from, or other realization upon, any and all Collateral; and (ii)
all costs and expenses of the Administrative Agent, the Collateral Agent and
each Lender (including all fees and expenses of counsel) in connection with
the enforcement, whether through negotiations, legal proceedings or
otherwise, of the Loan Documents.
(b) The Borrowers hereby agree to indemnify and hold the Administrative
Agent, the Collateral Agent and each Lender, and its officers, directors,
employees, professional advisors and affiliates (each, an "Indemnified
Person") harmless from and against any and all claims, damages, losses,
liabilities, costs or expenses (including reasonable attorney's fees and
expenses, whether or not such Indemnified Person is named as a party to any
proceeding or investigation or is otherwise subjected to judicial or legal
process arising from any such proceeding or investigation) which any of them
may incur or which may be claimed against any of them by any person or entity
(except to the extent such claims, damages, losses, liabilities, costs or
expenses arise from the gross negligence or willful misconduct of the
Indemnified Person):
(i) by reason of or in connection with the execution, delivery or
performance of the Loan Documents or any transaction contemplated
thereby, or the use by any Borrower of the proceeds of any Advance;
(ii) in connection with or resulting from the utilization, storage,
disposal, treatment, generation, transportation, release or ownership of
any Hazardous Substance (A) at, upon or under any property of either of
the Borrowers or any of their respective Affiliates or (B) by or on
behalf of either of the Borrowers or any of their respective Affiliates
at any time and in any place; or
(iii) in connection with any documentary taxes, assessments or
charges made by any governmental authority by reason of the execution
and delivery of the Loan Documents.
(c) The Borrowers' obligations under this Section 10.04 shall survive
the assignment by any Lender pursuant to Section 10.07 hereof and shall
survive as well the repayment of all amounts owing to the Lenders under the
Loan Documents and the termination of the Commitments. If and to the extent
that the obligations of the Borrowers under this Section 10.04 are
unenforceable for any reason, the Borrowers agree to make the maximum
contribution to the payment and satisfaction thereof which is permissible
under applicable law.
(d) The Borrowers' obligations under this Section 10.04 are in addition
to and shall not be deemed to supersede their indemnification and similar
obligations set forth in that certain Commitment Letter dated as of October
22, 1999 among the Borrowers, Citibank and Salomon Smith Barney, Inc.
(e) Each Borrower shall be liable for its pro rata share of any payment
to be made by the Borrowers under this Section 10.04, such pro rata share to
be determined on the basis of such Borrower's Fraction; provided, however,
that if and to the extent that any such liabilities are reasonably determined
by the Borrowers (subject to the approval of the Administrative Agent which
approval shall not be unreasonably withheld) to be directly attributable to a
specific Borrower, only such Borrower shall be liable for such payments. In
the event that one Borrower fails to pay its portion of the payments to be
made by the Borrowers under this Section 10.04, the other Borrower shall be
liable for such payment; provided, however, that if and to the extent that
any such payment is reasonably determined by the Borrowers (subject to the
approval of the Administrative Agent which approval shall not be unreasonably
withheld) to be directly attributable to a specific Borrower, only such
Borrower shall be liable for such payments.
SECTION 10.05. Right of Set-off. (a) Upon (i) the occurrence and during
the continuance of any Event of Default with respect to any Borrower, and
(ii) the making of the request or the granting of the consent specified by
Section 8.02 to authorize the Administrative Agent to declare the Notes due
and payable pursuant to the provisions of Section 8.02, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender to or for the credit or the account of such
Borrower against any and all of the obligations of such Borrower now or
hereafter existing under the Loan Documents held by such Lender, irrespective
of whether or not such Lender shall have made any demand under the Loan
Documents or such Notes and although such obligations may be unmatured. Each
Lender agrees promptly to notify such Borrower after any such set-off and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which such
Lender may have.
(b) Each Borrower agrees that it shall have no right of off-set,
deduction or counterclaim in respect of its obligations under the Loan
Documents, and that the obligations of the Lenders hereunder are several and
not joint. Nothing contained herein shall constitute a relinquishment or
waiver of such Borrower's rights to any independent claim that such Borrower
may have against the Administrative Agent, the Collateral Agent or any
Lender, but no Lender shall be liable for the conduct of the Administrative
Agent, the Collateral Agent or any other Lender, and neither the
Administrative Agent nor the Collateral Agent shall be liable for the conduct
of any Lender.
SECTION 10.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by each Borrower, the Administrative Agent
and when the Administrative Agent shall have been notified by each Bank that
such Bank has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrowers, the Administrative Agent and each Lender and
their respective successors and assigns, except that the Borrowers shall not
have the right to assign their rights under the Loan Documents or any
interest herein without the prior written consent of the Lenders.
SECTION 10.07. Assignments and Participation. (a) Each Lender may
assign to one or more banks or other entities all or a portion of its rights
and obligations under the Loan Documents, including, without limitation, all
or a portion of its Commitment, the Advances owing to it and the Note or
Notes held by it (with the prior written consent of the Borrowers and the
Administrative Agent if the assignee thereunder is not then a Lender or an
Affiliate of a Lender, which consent shall not be unreasonably withheld);
provided, however, that (i) each such assignment shall be of a constant, and
not a varying, percentage of all of the assigning Lender's rights and
obligations under the Loan Documents, (ii) if the assignee thereunder is not
then a Lender or an Affiliate of a Lender, the amount of the Commitment,
Advance or Note being assigned pursuant to each such assignment shall in no
event be less than the lesser of the amount of the assigning Lender's
Commitment and $5,000,000, and (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an assignment and acceptance in substantially the
form of Exhibit 10.07 hereto (the "Lender Assignment"), together with any
Note or Notes subject to such assignment and a processing and recordation fee
of $3,500. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Lender Assignment, which effective
date shall be at least five Business Days after the execution thereof,
(x) the assignee thereunder shall be a party hereto and to the Collateral
Agency Agreement and, to the extent that rights and obligations under the
Loan Documents have been assigned to it pursuant to such Lender Assignment,
have the rights and obligations of a Lender under the Loan Documents and
(y) the Lender assignor thereunder shall, to the extent that rights and
obligations under the Loan Documents have been assigned by it to an assignee
pursuant to such Lender Assignment, relinquish its rights and be released
from its obligations under the Loan Documents (and, in the case of a Lender
Assignment covering all or the remaining portion of an assigning Lender's
rights and obligations under the Loan Documents, such Lender shall cease to
be a party to the Loan Documents); provided, however, if an Event of Default
shall have occurred and be continuing a Lender may assign all or a portion of
its rights and obligations without the prior written consent of the Borrowers
but otherwise in accordance with this Section.
(b) By executing and delivering a Lender Assignment, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as
provided in such Lender Assignment, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any other
instrument or document furnished pursuant thereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Borrower or the performance or
observance by any Borrower of any of its obligations under the Loan Documents
or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of the Loan Documents, together
with copies of the Financial Statements, or the latest financial statements
delivered by the Borrowers to the Administrative Agent pursuant to
Section 7.04 hereof, and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Lender Assignment; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Loan Documents; (v) such assignee appoints and
authorizes each of the Administrative Agent and the Collateral Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent and the Collateral
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to
in Section 10.02 a copy of each Lender Assignment delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
the Borrowers, the Administrative Agent, the Collateral Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of the Loan Documents. The Register shall be
available for inspection by the Borrowers or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a Lender Assignment executed by an assigning
Lender and an assignee, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Lender Assignment has
been completed and is in substantially the form of Exhibit 10.07 hereto,
(i) accept such Lender Assignment, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the
Borrowers. Within five Business Days after its receipt of such notice, each
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note or Notes to
the order of such assignee in an amount equal to the Commitment assumed by it
pursuant to such Lender Assignment and, if the assigning Lender has retained
a Commitment hereunder, a new Note or Notes to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such
new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes applicable to
such Borrower, shall be dated the effective date of such Lender Assignment
and shall otherwise be in substantially the form of Exhibit 1.01A hereto.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under the
Loan Documents (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under the Loan
Documents (including, without limitation, its Commitment hereunder) shall
remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such
Lender shall remain the holder of any such Note for all purposes of the Loan
Documents, (iv) the Borrowers, the Administrative Agent, the Collateral Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the Loan
Documents, and (v) the holder of any such participation, other than an
Affiliate of such Lender, shall not be entitled to require such Lender to
take or omit to take any action under the Loan Documents, except action
(A) reducing the principal of, or interest on, the Notes, any Applicable
Margin or any fees or other amounts payable under the Loan Documents (other
than fees payable pursuant to Section 2.02(b) hereof), (B) postponing any
date fixed for any payment of principal of, or interest on, the Notes or any
fees or other amounts payable under the Loan Documents (other than fees
payable pursuant to Section 2.02(b) hereof) or (C) causing or permitting the
termination of any Collateral or releasing any Collateral other than in
accordance with the terms of the Loan Documents.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or proposed participation pursuant to this
Section 10.07, disclose to the assignee or participant or proposed assignee
or proposed participant, any information relating to the Borrowers furnished
to such Lender by or on behalf of the Borrowers; provided that, prior to any
such disclosure, the assignee or participant or proposed assignee or
participant shall agree, in accordance with the terms of Section 10.08, to
preserve the confidentiality of any Confidential Information received by it
from such Lender.
(g) If any Lender shall have delivered a notice to the Administrative
Agent described in Section 4.03(a), (b), (c) or (f) hereof, or shall become a
non-performing Lender under Section 3.03(b) hereof, and if and so long as
such Lender shall not have withdrawn such notice or corrected such non-
performance in accordance with Section 3.03(b), the Borrowers may demand that
such Lender assign, in accordance with Section 10.07 hereof, to one or more
assignees designated by either the Borrowers or the Administrative Agent (and
reasonably acceptable to the other), all (but not less than all) of such
Lender's Commitment, Advances, participation and other rights and obligations
under the Loan Documents; provided that any such demand by the Borrowers
during the continuance of an Event of Default or an Unmatured Default shall
be ineffective without the consent of the Majority Lenders. If, within 30
days following any such demand by the Borrowers, any such assignee so
designated shall fail to tender such assignment on terms reasonably
satisfactory to the Borrowers and the Borrowers and the Administrative Agent
shall have failed to designate any such assignee, then such demand by the
Borrowers shall become ineffective, it being understood for purposes of this
provision that such assignment shall be conclusively deemed to be on terms
reasonably satisfactory to such Lender, and such Lender shall be compelled to
tender such assignment forthwith, if (i) such assignee (A) shall agree to
such assignment in substantially the form of the Lender Assignment and
(B) shall tender payment to such Lender in an amount equal to the full
outstanding dollar amount accrued in favor of such Lender hereunder (as
computed in accordance with the records of the Administrative Agent) and
(ii) in the event the Borrowers demanded such assignment, the Borrowers shall
tender payment to the Administrative Agent of the processing and recording
fee specified in Section 10.07(a) for such assignment.
(h) Anything in this Section 10.07 to the contrary notwithstanding, any
Lender may assign and pledge all or any portion of its Commitment and the
Advances owing to it to any Federal Reserve Bank (and its transferees) as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
SECTION 10.08. Confidentiality. In connection with the negotiation and
administration of the Loan Documents, the Borrowers have furnished or caused
to have furnished and will from time to time furnish or cause to be furnished
to the Administrative Agent and the Lenders (each, a "Recipient") written
information which when delivered to the Recipient will be deemed to be
confidential (such information, other than any such information which (i) was
publicly available, or otherwise known to the Recipient, at the time of
disclosure, (ii) subsequently becomes publicly available other than through
any act or omission by the Recipient or (iii) otherwise subsequently becomes
known to the Recipient other than through a Person whom the Recipient knows
to be acting in violation of his or its obligations to the Borrowers, being
hereinafter referred to as "Confidential Information"). The Recipient will
not knowingly disclose any such Confidential Information to any third party
(other than to those persons who have a confidential relationship with the
Recipient), and will take all reasonable steps to restrict access to such
information in a manner designed to maintain the confidential nature of such
information, in each case until such time as the same ceases to be
Confidential Information or as the Borrowers may otherwise instruct. It is
understood, however, that the foregoing will not restrict the Recipient's
ability to freely exchange such Confidential Information with prospective
participants in or assignees of the Recipient's position herein, but the
Recipient's ability to so exchange Confidential Information shall be
conditioned upon any such prospective participant's entering into an
understanding as to confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of any or all
Confidential Information if and to the extent that such disclosure may be
required (i) by a regulatory agency or otherwise in connection with an
examination of the Recipient's records by appropriate authorities,
(ii) pursuant to court order, subpoena or other legal process or
(iii) otherwise, as required by law; in the event of any required disclosure
under clause (ii) or (iii), above, the Recipient agrees to use reasonable
efforts to inform the Borrowers as promptly as practicable unless the Lender
is prohibited from doing so by court order, subpoena or other legal process.
SECTION 10.09. Waiver of Jury Trial. Each of the Borrowers, the
Administrative Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim arising out of or
relating to the Loan Documents, or any other instrument or document delivered
hereunder or thereunder.
SECTION 10.10. Governing Law. The Loan Documents shall be governed by,
and construed in accordance with, the laws of the State of New York. Each of
the Borrowers, the Lenders and the Administrative Agent: (i) irrevocably
submits to the jurisdiction of any New York State Court or Federal court
sitting in New York City in any action arising out of or relating to the Loan
Documents, (ii) agrees that all claims in such action may be decided in such
court, (iii) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum and (iv) consents to the service of process
by mail. A final judgment in any such action shall be conclusive and may be
enforced in other jurisdictions. Nothing herein shall affect the right of any
party to serve legal process in any manner permitted by law or affect its
right to bring any action in any other court.
SECTION 10.11. Relation of the Parties; No Beneficiary. No term,
provision or requirement, whether express or implied, of any Loan Document,
or actions taken or to be taken by any party thereunder, shall be construed
to create a partnership, association, or joint venture between such parties
or any of them. No term or provision of any Loan Document shall be construed
to confer a benefit upon, or grant a right or privilege to, any Person other
than the parties hereto.
SECTION 10.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
THE CONNECTICUT LIGHT AND
POWER COMPANY
By:/s/
Name:
Title:
WESTERN MASSACHUSETTS
ELECTRIC COMPANY
By: /s/
Name:
Title:
CITIBANK, N.A.,
as Administrative Agent
By:/s/
Name:
Title:
Exhibit B.15
OPEN END MORTGAGE
THIS OPEN END MORTGAGE (this "Mortgage") is made as of November 19,
1999 by and between THE CONNECTICUT LIGHT AND POWER COMPANY, a Connecticut
corporation (together with its successors and assigns, the "Mortgagor"),
having an office at 107 Selden Street, Berlin, Connecticut 06037, and
CITIBANK, N.A., a national banking association, not personally but in its
capacity as collateral agent for the Lenders (hereafter defined) (in such
capacity, together with its successors, the "Collateral Agent"), having an
office at: Citibank, N.A., c/o Global Power Group, 399 Park Avenue, Floor 4,
Zone 20, New York, New York 10043.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement dated as of November 19, 1999
(as the same may be amended, modified, restated or otherwise supplemented,
the "Credit Agreement") among Mortgagor, the lenders named therein (the
"Lenders"), Salomon Smith Barney, Inc., as Arranger, and the Collateral
Agent, Mortgagor has the right, upon meeting the conditions thereof, to
obtain up to $300,000,000.00 of Advances (as that term and all other
capitalized terms used but not otherwise defined herein are defined in the
Credit Agreement) under the Credit Agreement; and
WHEREAS, Mortgagor's repayment obligation under the Credit Agreement in
respect of all outstanding Advances is evidenced by the promissory notes of
Mortgagor in the aggregate principal amount of $300,000,000.00 dated as of
November 19, 1999 and having a term expiring November 17, 2000 (provided that
the term may be extended for successive periods of 364 days each upon request
of Mortgagor and with the approval of the Lenders, as more particularly
described in the Credit Agreement); and
WHEREAS, Mortgagor is the owner of an undivided 81% joint ownership
interest in that certain piece or parcel of land situated in the Town of
Waterford, County of New London and State of Connecticut, with the buildings
and fixtures thereon comprising that certain electric generating unit
commonly known as Millstone Unit No. 2 (said land and generating unit
together being referred to as the "Millstone 2 Mortgaged Premises"), the
remaining undivided 19% joint ownership interest in the Millstone 2 Mortgaged
Premises being owned by Western Massachusetts Electric Company, as tenant in
common with Mortgagor; and
WHEREAS, Mortgagor is the owner of an undivided 52.933% joint ownership
interest in that certain piece or parcel of land situated in the Town of
Waterford, County of New London and State of Connecticut, with the buildings
and fixtures thereon comprising that certain electric generating unit
commonly known as Millstone Unit No. 3 (said land and generating unit
together being referred to as the "Millstone 3 Mortgaged Premises"), the
remaining undivided 47.067% joint ownership interest in the Millstone 3
Mortgaged Premises being owned by the other record owners as tenants in
common with Mortgagor (the Millstone 2 Mortgaged Premises and the Millstone 3
Mortgaged Premises collectively being referred to as the "Mortgaged Premises"
and being more particularly described in Schedule A attached hereto and made
a part hereof);
WHEREAS, Mortgagor desires, by the execution and delivery of this
Mortgage, to grant to the Collateral Agent a valid and enforceable mortgage
in its interest in the Mortgaged Premises as equal and ratable security for
Mortgagor's respective repayment obligations to the Lenders under the
Credit Agreement, as evidenced by the Notes (the "Obligations");
NOW, THEREFORE, in consideration of the premises and the sum of One
Dollar ($1.00) to it in hand paid, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, in order to
secure the Obligations, the Mortgagor hereby gives, grants, bargains, sells,
and confirms unto the Collateral Agent and its successors as collateral agent
under the Credit Agreement, and its and their respective assigns forever, its
interest in and to the Mortgaged Premises, EXCLUDING, HOWEVER, its interest
in any and all machinery, equipment, furniture, furnishings, materials,
supplies, nuclear fuel, and other articles or items of personal property
other than fixtures and other than machinery and equipment now or hereafter
located in and used or materially useful in connection with the operation of
the Mortgaged Premises.
The interests of the Mortgagor in the Mortgaged Premises being conveyed
hereby are subject to those encumbrances and other matters set forth or
referred to in Schedule A hereto, and to that certain Indenture of Mortgage
and Deed of Trust by and between the Mortgagor and Bankers Trust Company, as
Trustee, dated as of May 1, 1921, as supplemented and amended by sixty- nine
Supplemental Indentures, which Indenture of Mortgage and all of which
Supplemental Indentures are on file in the office of the Secretary of the
State of Connecticut and certificates with respect to which have been
recorded in the Waterford Land Records (said Indenture of Mortgage and said
Supplemental Indentures, collectively, the "CL&P Indenture").
TO HAVE AND TO HOLD the above granted and bargained premises unto the
Collateral Agent and its successors as collateral agent under the Credit
Agreement, and its and their respective assigns forever, to its and their own
proper use and behoof, upon the terms and conditions herein set forth for the
equal and ratable benefit and security of the obligees in respect of the
Obligations (individually, a "Beneficiary"; collectively, the
"Beneficiaries") and for the enforcement of the Obligations secured hereby,
without preference, priority, or distinction as to any Obligation over any
other Obligations by reason of priority in the time that such Obligation
arose or became secured hereby or otherwise.
AND IT IS MUTUALLY AGREED THAT:
1. This Mortgage and the Collateral Agent's rights hereunder are and
shall be at all times hereafter subject to the Collateral Agency Agreement,
where applicable, and junior to CL&P Indenture, and to any and all
modifications and amendments thereof, and indentures supplemental thereto,
including, without limiting the generality of the foregoing, a modification,
amendment, or supplemental indenture which provides for the incurrence of
additional indebtedness to be secured by the CL&P Indenture. Although the
provisions of this paragraph shall be automatic and self-operative, and no
further instrument shall be required, the Collateral Agent, upon request at
any time and from time to time of the Mortgagor or the first mortgage
indenture trustee under the CL&P Indenture, shall promptly execute and
deliver to the requesting party an instrument in recordable form and
satisfactory in substance to the requesting party, subjecting the Collateral
Agent's rights under this Mortgage to the CL&P Indenture and/or to any such
modification, amendment, and/or supplemental indenture, and the Collateral
Agent further appoints the Mortgagor as the Collateral Agent's attorney-in-
fact with full power and authority to execute and deliver in the name of the
Collateral Agent any such instrument.
2. To the extent that the Mortgagor, pursuant to the terms of the Credit
Agreement, shall be or shall become entitled to sell or dispose of or
otherwise deal with all or any portion of the Mortgaged Premises or any
interest therein, free from the lien of this Mortgage, or obtain a release of
all or any portion of its interest in the Mortgaged Premises or any portion
thereof from the lien of this Mortgage, the Collateral Agent, upon request at
any time and from time to time of the Mortgagor, shall promptly execute and
deliver to Mortgagor an instrument in recordable form and satisfactory in
substance to the Mortgagor releasing such property or interest from the lien
of this Mortgage.
3. Any event constituting an "event of default" under the terms and
provisions of the document or documents under which any Obligation or
Obligations arise shall constitute an event of default hereunder (an "Event
of Default"), and if such Obligation or Obligations shall be declared due and
payable pursuant to such document or documents because of any such event of
default, the Collateral Agent shall thereupon be entitled to foreclose this
Mortgage with respect to the undivided interests in the Mortgaged Premises
owned by the Mortgagor, provided, that the Collateral Agent shall not so
foreclose this Mortgage unless directed to so act by such Percentage of the
Beneficiaries or the Advances as is provided for under the Credit Agreement
and the Collateral Agency Agreement. If any such event of default is cured
or waived in accordance with such document or documents, the related Event of
Default shall be considered cured or waived, as the case may be, hereunder.
4. Mortgagor, at its sole cost and expense, shall obtain and maintain
for the benefit of the Collateral Agent, during the term of this Mortgage,
such insurance (including appropriate plans of self-insurance) with respect
to the Mortgaged Premises as is usually carried by companies engaged in
similar businesses and owning similar properties, and in any event such
insurance as may be required (i) under the CL&P Indenture, and (ii) to comply
with all applicable laws and governmental regulations, including, without
limitation, the Atomic Energy Act of 1954, as amended.
5. In the event of damage to or destruction of the Mortgaged Premises,
or any portion thereof, Mortgagor shall give prompt written notice thereof to
the Collateral Agent. Except as otherwise provided in the CL&P Indenture,
and subject to the rights of the first mortgage indenture trustee under the
CL&P Indenture, (i) if the cost to repair or restore the damaged or destroyed
portion of the Mortgaged Premises, as estimated by Mortgagor in its
reasonable judgment, will not exceed $50,000,000, all proceeds of insurance
payable in respect thereof shall be paid to Mortgagor and applied by
Mortgagor to the cost of repair and restoration of the Mortgaged Premises,
and (ii) if the cost to repair or restore the damaged or destroyed portion of
the Mortgaged Premises, as estimated by Mortgagor in its reasonable judgment,
will exceed $50,000,000, all proceeds of insurance payable in respect thereof
shall be paid to the Collateral Agent and applied in reduction of the
outstanding principal balance of the Obligations.
6. Mortgagor shall give the Collateral Agent prompt written notice of
the commencement of proceedings to condemn or take under the power of eminent
domain all or any portion of or any interest in the Mortgaged Premises.
Except as otherwise provided in the CL&P Indenture, and subject to the rights
of the first mortgage indenture trustee under the CL&P Indenture, if any
portion of or interest in the Mortgaged Premises is permanently condemned or
taken by right of eminent domain, or is conveyed by Mortgagor in lieu
thereof, all awards and other amount paid in respect thereof shall be paid to
the Collateral Agent and applied in reduction of the outstanding principal
balance of the Obligations.
7. The Collateral Agent accepts this Mortgage upon and subject to the
terms and conditions of the Collateral Agency Agreement, and upon the terms
and conditions hereof, including the following, to all of which the Mortgagor
agrees:
(a) The Collateral Agent may exercise any of the powers hereof and
perform any duty hereunder either directly or by or through its agents or
attorneys and shall not be liable for the acts of such agents or attorneys
appointed with due care hereunder.
(b) If any instrument required to be recorded or filed or entered
in order to make effective the lien created by this Mortgage or to maintain
such lien is required to be executed and delivered by the Collateral Agent,
the Collateral Agent agrees that it will duly execute and deliver the same.
8. The resignation of any Collateral Agent, and the instrument or
instruments removing any Collateral Agent and appointing a successor
Collateral Agent hereunder, together with all deeds, conveyances, and other
instruments provided for herein, shall, if permitted by law, be forthwith
recorded, registered or filed by and at the expense of the Mortgagor wherever
this Mortgage is recorded, registered, or filed.
9. This Mortgage is, in part, an open-end mortgage to secure, among
other things, advances made or to be made pursuant to the Credit Agreement,
which is a commercial revolving loan agreement within the meaning of
Connecticut General Statutes 49-2(c), and this Mortgage, and the Collateral
Agent shall have all the rights, powers and protection allowed by applicable
law with respect thereto, subject only to such limitations as are imposed by
law. Additional and future loans and advances are specifically permitted to
be made under the Credit Agreement and this Mortgage and shall be secured
hereby equally with amounts advanced to the Mortgagor under the Credit
Agreement and evidenced by the Notes on the date hereof, if any, and shall be
entitled to the same priority as if such additional and future loans and
advances had been made on the date hereof. Upon request of the then owner of
record of the Mortgaged Premises, the Lenders may hereafter, at their option,
at any time before full payment of this Mortgage and in accordance with the
provisions of the Credit Agreement, make further advancements to such owner
in such amounts and at such rates of interest as the Lenders shall determine,
and every such further advance, with interest, shall be secured by this
Mortgage and evidenced by the Notes and the records of the holders of the
Notes; provided, however, that the principal amount of the indebtedness
secured by this Mortgage and remaining unpaid shall at no time exceed
$300,000,000.00, which is the maximum amount of the commercial revolving loan
authorized hereby; and provided further that the terms of repayment of any
such advancements shall not extend the time of repayment beyond the maturity
date as stated in the Credit Agreement, as it may be extended upon the
written agreement of the Mortgagor and the Lenders, pursuant to the terms of
the Credit Agreement.
A copy of the Credit Agreement, as amended from time to time, is on file
at the office of the Collateral Agent as set forth above, and a copy thereof
may be obtained upon written request therefor made to the Collateral Agent.
The aggregate principal balance of the commercial revolving loans outstanding
under the Credit Agreement as it exists from time to time can be ascertained
by making written inquiry of the Collateral Agent.
10. All the provisions herein shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except as the context may otherwise require and except as otherwise herein
expressly provided.
11. This Mortgage is to be governed by and construed in accordance with
the laws of the State of Connecticut.
THE CONDITION OF THIS DEED IS SUCH THAT:
WHEREAS, the Mortgagor is or may become justly indebted to the Lenders
in the aggregate principal amount of up to $300,000,000.00, as evidenced by
the Notes, pursuant to the Credit Agreement, of which sum $120,000,000.00 has
been advanced to the Mortgagor pursuant to the Credit Agreement;
NOW THEREFORE, if all of the Obligations at any time secured under this
Mortgage are discharged in full and the commitments under the Credit
Agreement are terminated, then this Mortgage shall be void; otherwise it
shall be and remain in full force and effect.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the Mortgagor and the Collateral Agent have caused
this Mortgage to be executed as of the date first hereinabove mentioned.
Witnesses: THE CONNECTICUT LIGHT AND POWER COMPANY
Name:/s/ By/s/
Name:
Title:
Name:/s/
CITIBANK, N.A., as Collateral Agent
Name:/s/ By:
Name:
Title
Name:/s/
STATE OF CONNECTICUT)
: ss: Berlin November , 1999
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me ,
this day of November, 1999, by of The Connecticut
Light and Power Company, a Connecticut corporation, on behalf of the
corporation.
/s/
Notary Public
My Commission Expires:
STATE OF )
: ss: November , 1999
COUNTY OF )
The foregoing instrument was acknowledged before me ,
this day of November, 1999, by of Citibank, N.A., a
national banking association, on behalf of the national banking association,
as Collateral Agent.
/s/
Notary Public
My Commission Expires:
SCHEDULE A
All those certain pieces or parcels of land and other interests in real
estate situated in the Town of Waterford, County of New London and State of
Connecticut, and being more particularly described in the following deeds to
The Connecticut Light and Power Company ("CL&P"), The Hartford Electric Light
Company ("HELCO") (which was merged with and into CL&P as of June 30, 1982)
and Western Massachusetts Electric Company ("WMECO"):
a) Deed from The Millstone Point Company to CL&P, HELCO and WMECO
dated June 27, 1966 and recorded June 28, 1967 in Volume 163,
Page 554 of the Waterford Land Records (the whole of the
premises therein described being hereinafter referred to as
the "Millstone Point Site" or the "Site"); and
b) Deed from the Trustees of the property of The New York, New
Haven and Hartford Railroad Company to CL&P, HELCO and WMECO
dated October 25, 1967 and recorded October 26, 1967 in Volume
170, Page 219 of the Waterford Land Records; and
c) Quitclaim Deed from the Town of Waterford to CL&P, HELCO and
WMECO dated May 8, 1968 and recorded May 13, 1968 in Volume
172, Page 262 of the Waterford Land Records;
Excepting therefrom those certain pieces or parcels of land and other
interests in real estate that were conveyed by or acquired from CL&P,
HELCO and WMECO in or pursuant to the following instruments:
d) Deed from CL&P, HELCO and WMECO to the Town of Waterford dated
September 26, 1966 and recorded May 13, 1968 in Volume 172,
Page 676 of the Waterford Land Records;
e) Statutory Form Warranty Deed (Building and Improvements Only)
from CL&P, HELCO and WMECO to Interet Land Co. dated December
28, 1978 and recorded December 29, 1978 in Volume 248, Page
307 of the Waterford Land Records; and
f) Certificate of Taking by the State of Connecticut dated
November 20, 1987 and recorded December 7, 1987 in Volume 336,
Page 450 of the Waterford Land Records;
And further excepting therefrom all that certain piece or parcel of land
containing 6.6 acres, more or less, located westerly of that certain
private access road sometimes known as Fox Island Road, being a portion
of the Millstone Point Site, and being more particularly bounded and
described as follows:
Commencing at a point on the westerly face of a seawall along
the easterly edge of Niantic Bay, marking a corner of land herein
described; thence running the following ten (10) courses and
distances through the Site: running N 75E 16' W, about 65 feet to
a point; thence N 30E 16' E, 45.00 feet to a point, which point is
north 173837.43 and east 759563.11 on the Connecticut State Plane
Coordinate System; thence N 75E 16' E, in part along a line
between Millstone Unit No. 1 and Unit No. 2, 528.00 feet to a
point; thence S 58E 44' E, 100.00 feet to a point; thence S 12E
44' E, about 300 feet to a point marking the edge of an abandoned
quarry; thence southerly along the edge of said quarry, about 220
feet to a point; thence N 59E 44' W, about 140 feet to a point;
thence S 75E 16' W, 195.00 feet to a point; thence N 14E 44' W,
40.00 feet to a point, which point is north 173524.35 and east
759866.71 on the Connecticut State Plane Coordinate System; thence
S 75E 16' W, about 355 feet to a point in the easterly shoreline
of Niantic Bay; thence running northerly along said shoreline of
Niantic Bay, about 185 feet to a point marking the southwesterly
corner of intake structure No. 1; thence running the following two
(2) courses and distances along said intake structure No. 1:
running northerly about 70 feet to a point marking the
northwesterly corner of said structure; thence running easterly
about 30 feet to a point marking the intersection of the northerly
face of said structure with the westerly face of the seawall
mentioned above; thence running northerly along said westerly face
of said seawall, about 110 feet to the point and place of
beginning:
The above bearings are referred to the Connecticut Grid North.
Said parcel of land is more clearly designated and defined by a map
entitled "PLAN SHOWING LAND ASSOCIATED WITH MILLSTONE UNIT NO. 1 TOWN OF
WATERFORD SCALE: 1" = 100' DATE: 2-18-1981 SYSTEM REAL ESTATE
DEPARTMENT DWG. NO. 18948", a copy of which map has been or will be
filed for record in the Town Clerk's office in said Town of Waterford
and reference to which is hereby made.
Together with the rights created in, but subject to the terms and
conditions of, the following instruments:
g) Easement from the Trustees of the property of The New York,
New Haven and Hartford Railroad Company to CL&P, HELCO and
WMECO dated October 31, 1967 and recorded in Volume 170, Page
223 of the Waterford Land Records;
h) Water Main Easement from the Trustees of the property of The
New York, New Haven and Hartford Railroad Company to CL&P,
HELCO and WMECO dated August 14, 1968 and recorded August 21,
1968 in Volume 174, Page 319 of the Waterford Land Records;
i) Easement from the Trustees of the property of The New York,
New Haven and Hartford Railroad Company to CL&P dated
September 5, 1968 and recorded February 13, 1969 in Volume
176, Page 634 of the Waterford Land Records; and
j) Drainage Easement from Michael R. Mader to CL&P and WMECO
dated June 21, 1985 and recorded July 16, 1985 in Volume 295,
Page 694 of the Waterford Land Records.
Said premises are conveyed subject to the general reservation to the
Mortgagor and its successors and assigns forever of the right to use the
premises described in this Schedule A (exclusive of the portions thereof
on which the Millstone Unit No. 2 and Millstone Unit No. 3 generating
unit structures are located) for whatever purpose they may desire in
connection with the use and ownership of the Site.
Without in any way limiting the general reservation set forth in the
preceding paragraph, said premises are also conveyed subject to the
specific reservation to the Mortgagor and to its successors and assigns
forever of the rights (a) to use, maintain and relocate the access roads
on the Mortgaged Premises and on the Site; (b) to construct, install,
reconstruct, inspect, repair, replace, use, maintain and operate
beneath, on and over said premises lines for the transmission of
electricity and related facilities and pipes or mains for water,
sewerage, drainage or any other necessary utility services; (c) to use,
repair, reconstruct and maintain, and to have maintained, for the
benefit of the Millstone Unit No. 1 generating unit structure, the
common wall between said Millstone Unit No. 2 and said Millstone Unit
No. 1; (d) to park vehicles and store equipment on said premises; (e) to
construct, reconstruct, repair, maintain, use and operate intake and
discharge facilities and structures on said premises; and (f) to
construct, install, reconstruct, inspect, use, repair, replace and
maintain any and all areas, facilities, fixtures and equipment on said
premises, whether or not included in said Millstone Unit No. 2 or
Millstone Unit No. 3 generating unit structures, which are now or may
hereinafter be used or useful, in whole or in part, in connection with
the operation or ownership of the Site or any other portion thereof.
Said premises are also subject to the following matters:
1. Any and all provisions of any ordinance, municipal regulation or
public or private law.
2. Taxes to the Town of Waterford on the Lists of October 1, 1998, and
all subsequent years.
3. Any and all rights, easements, reservations, waivers, conditions
and covenants as of record may appear.
4. Any and all liens that may hereafter arise under Connecticut
General Statutes Section 22a-452a, which provides, under certain
circumstances, for the creation of priority liens in favor of the
State of Connecticut covering reimbursement for expenses incurred
in containing, removing or mitigating a "spill" (as defined in said
statute).
5. Such state of facts as an accurate survey and personal inspection
of the premises might disclose.
6. Any riparian, littoral or other rights of others in and to any
brook, stream, bay, sound or watercourse flowing through, over or
along the premises.
7. Any statutory lien for labor or material.
8. Terms, conditions, limitations, restrictions, and provisions of
that certain agreement dated as of September 1, 1973, as amended
and as to be amended by various amendatory agreements, including
those dated as of August 1, 1974, and December 15, 1975, by and
among The Connecticut Light and Power Company and several other New
England electric utilities (said agreement, as so amended, being
referred to herein as the "Sharing Agreement"), a copy of which
Sharing Agreement (excluding the amendatory agreement dated as of
December 15, 1975, and all other amendatory agreements dated after
February 28, 1975) is attached as Schedule B to a certain quitclaim
deed from The Connecticut Light and Power Company dated February
28, 1975, and recorded in the Waterford Land Records in Volume 215,
Page 252, and a copy of which amendatory agreement dated as of
December 15, 1975, is attached to a certain quitclaim deed from The
Connecticut Light and Power Company to Central Maine Power Company
et al, dated October 25, 1977, and recorded in said Land Records
in Volume 239, Page 13.
9. Agreement ("Waiver Agreement") among Public Service Company of New
Hampshire and other electric utilities, dated as of August 10,
1977, and recorded in the Waterford Land Records in Volume 245,
Page 443, as amended by agreements dated as of September 1, 1977,
recorded in said Land Records in Volume 245, Page 476, and as of
November 1, 1977, and recorded in said Land Records in Volume 245,
Page 501.
10. Certain fencing rights, and reservation of 50-foot right-of-way and
right to install service lines, as set forth in deed from The New
York, New Haven, and Hartford Railroad Company to Henry Gardiner,
dated May 14, 1956, and recorded in the Waterford Land Records in
Volume 111, Page 535.
11. Certain rights reserved by Henry Gardiner in a warranty deed to The
Millstone Point Company, dated February 10, 1966, and recorded in
the Waterford Land Records in Volume 161, Page 600, with respect to
railroad crossings and use of portion of discontinued Millstone
Road.
12. Distribution easement from The Millstone Point Company to The
Connecticut Light and Power Company, dated June 27, 1966, and
recorded in the Waterford Land Records in Volume 163, Page 525.
13. Transmission easement from The Millstone Point Company to The
Connecticut Light and Power Company, dated June 27, 1966, and
recorded in the Waterford Land Records in Volume 163, Page 531.
14. Covenants with respect to construction, noninterference with
railroad trains, risk of loss, etc. in connection with railroad
crossing easement from the Trustees of the property of The New
York, New Haven and Hartford Railroad Company to The Connecticut
Light and Power Company et al, dated October 25, 1967, and recorded
in the Waterford Land Records in Volume 170, Page 223.
15. Notice of Order Establishing Bounds of Wetlands Area (Tidal) by
Commissioner of Environmental Protection, dated July 2, 1973, and
recorded in the Waterford Land Records in Volume 205, Page 338.
16. Special Exception from Waterford Planning and Zoning Commission,
dated March 22, 1976, and recorded in the Waterford Land Records in
Volume 224, Page 390.
17. A covenant, surrender and waiver of partition rights, a condition
subsequent concerning compliance with Sharing Agreement, certain
other conditions, limitations and restrictions of Sharing
Agreement, a certain general reservation, a certain specific
reservation and all other rights, limitations and reservations set
forth in the aforesaid quitclaim deed from The Connecticut Light
and Power Company dated February 28, 1975.
18. Covenant regarding prohibition of partition of premises in set
forth in, and easements, rights of way, financing covenants and
rights to use water systems cited in, a warranty deed from The
Millstone Point Company to CL&P, WMECO and HELCO, dated June 7,
1966 and recorded in said Land Records in Volume 163, Page 554.
19. Reservation of 50 foot strip, existing drainage conditions and
fence agreements cited in deed from the Trustees of the property of
The New York, New Haven and Hartford Railroad Company to CL&P,
HELCO and WMECO dated October 25, 1967 and recorded in said Land
Records in Volume 170, Page 219.
20. License agreement to the Town of Waterford dated November 29, 1978
and recorded in said Land Records in Volume 248, Page 47.
21. Ground Lease to Interet Land Co., Inc. dated December 28, 1978 and
recorded in said Land Records in Volume 248, Page 310.
22. License to the Town of Waterford dated September 19, 1979 and
recorded in said Land Records in Volume 253, Page 416.
23. Ground Lease to Northeast Nuclear Energy Company dated August 26,
1983 and recorded in said Land Records in Volume 275, Page 349,
amended and restated October 1, 1985 and recorded in said Land
Records in Volume 298, Page 843.
24. Declaration and Waiver with ComPlane, Inc. dated November 27, 1985
and recorded in said Land Records in Volume 298, Page 518.
25. Sewer Easement to the Town of Waterford dated November 19, 1984 and
recorded in said Land Records in Volume 290, Page 595.
26. Order to Abate Pollution by State Connecticut Department of
Environmental Protection dated October 18, 1985 and recorded in
said Land Records in Volume 299, Page 247.
27. Order to Abate Pollution by State of Connecticut Department of
Environmental Protection dated October 18, 1985 and recorded in
said Land Records in Volume 299, Page 247 and modified September
18, 1986 and recorded in said Land Records in Volume 313, Page 861
and November 20, 1987 and recorded in said Land Records in Volume
336, Page 185.
28. Special Permit granted by the Town of Waterford Planning and Zoning
Commission dated June 22, 1987 and recorded in said Land Records in
Volume 328, Page 369.
29. Permanent easement to slope and permanent drainage right of way,
and temporary easements to construct driveways and sedimentation
controls in Certificate of Taking by the State of Connecticut dated
November 20, 1987 and recorded in said Land Records in Volume 336,
Page 450.
30. Notice of Parties to Agreement among CL&P, WMECO, Northeast Nuclear
Energy Company and Connecticut Yankee Power Company dated June 2,
1988 and recorded in said Land Records in Volume 345, Page 56.
31. Notice of Air Management Order to State of Connecticut Department
of Environmental Protection dated October 20, 1995 and recorded in
said Land Records in Volume 478, Page 704.
32. Pump Station Easement to the Town of Waterford dated December 23,
1996 and recorded in said Land Records in Volume 465, Page 308.
33. Water Line Easement to the Town of Waterford dated September 18,
1997 and recorded in said Land Records in Volume 474, Page 214.
34. Short Form Agreement for the Provision of Fiber Optic Facilities
and Services dated February 27, 1998, and recorded in said Land
Records in Volume 480, Page 1190.
Exhibit B.16
OPEN END MORTGAGE
THIS OPEN END MORTGAGE (this "Mortgage") is made as of November 19,
1999 by and between WESTERN MASSACHUSETTS ELECTRIC COMPANY, a Massachusetts
public service corporation (together with its successors and assigns, the
"Mortgagor"), having its principal office at 174 Brush Hill Avenue, West
Springfield, Massachusetts 01089, and CITIBANK, N.A., a national banking
association, not personally but in its capacity as collateral agent for the
Lenders (hereafter defined) (in such capacity, together with its successors,
the "Collateral Agent"), having an office at: Citibank, N.A., c/o Global
Power Group, 399 Park Avenue, Floor 4, Zone 20, New York, New York 10043.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement dated as of November 19, 1999
(as the same may be amended, modified, restated or otherwise supplemented,
the "Credit Agreement") among Mortgagor, the lenders named therein (the
"Lenders"), Salomon Smith Barney, Inc., as Arranger, and the Collateral
Agent, Mortgagor has the right, upon meeting the conditions thereof, to
obtain up to $200,000,000.00 of Advances (as that term and all other
capitalized terms used but not otherwise defined herein are defined in the
Credit Agreement) under the Credit Agreement; and
WHEREAS, Mortgagor's repayment obligation under the Credit Agreement in
respect of all outstanding Advances is evidenced by the promissory notes of
Mortgagor in the aggregate principal amount of $200,000,000.00 dated as of
November 19, 1999 and having a term expiring November 17, 2000 (provided that
the term may be extended for successive periods of 364 days each upon request
of Mortgagor and with the approval of the Lenders, as more particularly
described in the Credit Agreement); and
WHEREAS, Mortgagor is the owner of an undivided 19% joint ownership
interest in that certain piece or parcel of land situated in the Town of
Waterford, County of New London and State of Connecticut, with the buildings
and fixtures thereon comprising that certain electric generating unit
commonly known as Millstone Unit No. 2 (said land and generating unit
together being referred to as the "Millstone 2 Mortgaged Premises"), the
remaining undivided 81% joint ownership interest in the Millstone 2 Mortgaged
Premises being owned by The Connecticut Light and Power Company, as tenant in
common with Mortgagor; and
WHEREAS, Mortgagor is the owner of an undivided 12.2385% joint ownership
interest in that certain piece or parcel of land situated in the Town of
Waterford, County of New London and State of Connecticut, with the buildings
and fixtures thereon comprising that certain electric generating unit
commonly known as Millstone Unit No. 3 (said land and generating unit
together being referred to as the "Millstone 3 Mortgaged Premises"), the
remaining undivided 87.7615% joint ownership interest in the Millstone 3
Mortgaged Premises being owned by the other record owners thereof as tenants
in common with Mortgagor (the Millstone 2 Mortgaged Premises and the
Millstone 3 Mortgaged Premises collectively being referred to as the
"Mortgaged Premises" and being more particularly described in Schedule A
attached hereto and made a part hereof);
WHEREAS, Mortgagor desires, by the execution and delivery of this
Mortgage, to grant to the Collateral Agent a valid and enforceable mortgage
in its interest in the Mortgaged Premises as equal and ratable security for
Mortgagor's respective repayment obligations to the Lenders under the
Credit Agreement, as evidenced by the Notes (the "Obligations");
NOW, THEREFORE, in consideration of the premises and the sum of One
Dollar ($1.00) to it in hand paid, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, in order to
secure the Obligations, the Mortgagor hereby gives, grants, bargains, sells,
and confirms unto the Collateral Agent and its successors as collateral agent
under the Credit Agreement, and its and their respective assigns forever, its
interest in and to the Mortgaged Premises, EXCLUDING, HOWEVER, its interest
in any and all machinery, equipment, furniture, furnishings, materials,
supplies, nuclear fuel, and other articles or items of personal property
other than fixtures and other than machinery and equipment now or hereafter
located in and used or materially useful in connection with the operation of
the Mortgaged Premises.
The interests of the Mortgagor in the Mortgaged Premises being conveyed
hereby are subject to those encumbrances and other matters set forth or
referred to in Schedule A hereto, and to that certain First Mortgage
Indenture and Deed of Trust by and between the Mortgagor and State Street
Bank and Trust Company, successor by acquisition to The First National Bank
of Boston, successor by merger to Old Colony Trust Company, as Trustee, dated
as of August 1, 1954, as supplemented and amended by eighty-four Supplemental
Indentures, which Indenture of Mortgage and all of which Supplemental
Indentures are on file in the office of the Secretary of the State of
Connecticut and certificates with respect to which have been recorded in the
Waterford Land Records (said Indenture of Mortgage and said Supplemental
Indentures, collectively, the "WMECO Indenture").
TO HAVE AND TO HOLD the above granted and bargained premises unto the
Collateral Agent and its successors as collateral agent under the Credit
Agreement, and its and their respective assigns forever, to its and their own
proper use and behoof, upon the terms and conditions herein set forth for the
equal and ratable benefit and security of the obligees in respect of the
Obligations (individually, a "Beneficiary"; collectively, the
"Beneficiaries") and for the enforcement of the Obligations secured hereby,
without preference, priority, or distinction as to any Obligation over any
other Obligations by reason of priority in the time that such Obligation
arose or became secured hereby or otherwise.
AND IT IS MUTUALLY AGREED THAT:
1. This Mortgage and the Collateral Agent's rights hereunder are and
shall be at all times hereafter subject to the Collateral Agency Agreement,
where applicable, and junior to the WMECO Indenture, and to any and all
modifications and amendments thereof, and indentures supplemental thereto,
including, without limiting the generality of the foregoing, a modification,
amendment, or supplemental indenture which provides for the incurrence of
additional indebtedness to be secured by the WMECO Indenture. Although the
provisions of this paragraph shall be automatic and self-operative, and no
further instrument shall be required, the Collateral Agent, upon request at
any time and from time to time of the Mortgagor or the first mortgage
indenture trustee under the WMECO Indenture, shall promptly execute and
deliver to the requesting party an instrument in recordable form and
satisfactory in substance to the requesting party, subjecting the Collateral
Agent's rights under this Mortgage to the WMECO Indenture and/or to any such
modification, amendment, and/or supplemental indenture, and the Collateral
Agent further appoints the Mortgagor as the Collateral Agent's attorney-in-
fact with full power and authority to execute and deliver in the name of the
Collateral Agent any such instrument.
2. To the extent that the Mortgagor, pursuant to the terms of the Credit
Agreement, shall be or shall become entitled to sell or dispose of or
otherwise deal with all or any portion of the Mortgaged Premises or any
interest therein, free from the lien of this Mortgage, or obtain a release of
all or any portion of its interest in the Mortgaged Premises or any portion
thereof from the lien of this Mortgage, the Collateral Agent, upon request at
any time and from time to time of the Mortgagor, shall promptly execute and
deliver to Mortgagor an instrument in recordable form and satisfactory in
substance to the Mortgagor releasing such property or interest from the lien
of this Mortgage.
3. Any event constituting an "event of default" under the terms and
provisions of the document or documents under which any Obligation or
Obligations arise shall constitute an event of default hereunder (an "Event
of Default"), and if such Obligation or Obligations shall be declared due and
payable pursuant to such document or documents because of any such event of
default, the Collateral Agent shall thereupon be entitled to foreclose this
Mortgage with respect to the undivided interests in the Mortgaged Premises
owned by the Mortgagor, provided, that the Collateral Agent shall not so
foreclose this Mortgage unless directed to so act by such Percentage of the
Beneficiaries or the Advances as is provided for under the Credit Agreement
and the Collateral Agency Agreement. If any such event of default is cured
or waived in accordance with such document or documents, the related Event of
Default shall be considered cured or waived, as the case may be, hereunder.
4. Mortgagor, at its sole cost and expense, shall obtain and maintain
for the benefit of the Collateral Agent, during the term of this Mortgage,
such insurance (including appropriate plans of self-insurance) with respect
to the Mortgaged Premises as is usually carried by companies engaged in
similar businesses and owning similar properties, and in any event such
insurance as may be required (i) under the WMECO Indenture, and (ii) to
comply with all applicable laws and governmental regulations, including,
without limitation, the Atomic Energy Act of 1954, as amended.
5. In the event of damage to or destruction of the Mortgaged Premises,
or any portion thereof, Mortgagor shall give prompt written notice thereof to
the Collateral Agent. Except as otherwise provided in the WMECO Indenture,
and subject to the rights of the first mortgage indenture trustee under the
WMECO Indenture, (i) if the cost to repair or restore the damaged or
destroyed portion of the Mortgaged Premises, as estimated by Mortgagor in its
reasonable judgment, will not exceed $50,000,000, all proceeds of insurance
payable in respect thereof shall be paid to Mortgagor and applied by
Mortgagor to the cost of repair and restoration of the Mortgaged Premises,
and (ii) if the cost to repair or restore the damaged or destroyed portion of
the Mortgaged Premises, as estimated by Mortgagor in its reasonable judgment,
will exceed $50,000,000, all proceeds of insurance payable in respect thereof
shall be paid to the Collateral Agent and applied in reduction of the
outstanding principal balance of the Obligations.
6. Mortgagor shall give the Collateral Agent prompt written notice of
the commencement of proceedings to condemn or take under the power of eminent
domain all or any portion of or any interest in the Mortgaged Premises.
Except as otherwise provided in the WMECO Indenture, and subject to the
rights of the first mortgage indenture trustee under the WMECO Indenture, if
any portion of or interest in the Mortgaged Premises is permanently condemned
or taken by right of eminent domain, or is conveyed by Mortgagor in lieu
thereof, all awards and other amount paid in respect thereof shall be paid to
the Collateral Agent and applied in reduction of the outstanding principal
balance of the Obligations.
7. The Collateral Agent accepts this Mortgage upon and subject to the
terms and conditions of the Collateral Agency Agreement, and upon the terms
and conditions hereof, including the following, to all of which the Mortgagor
agrees:
(a) The Collateral Agent may exercise any of the powers hereof and
perform any duty hereunder either directly or by or through its agents or
attorneys and shall not be liable for the acts of such agents or attorneys
appointed with due care hereunder.
(b) If any instrument required to be recorded or filed or entered
in order to make effective the lien created by this Mortgage or to maintain
such lien is required to be executed and delivered by the Collateral Agent,
the Collateral Agent agrees that it will duly execute and deliver the same.
8. The resignation of any Collateral Agent, and the instrument or
instruments removing any Collateral Agent and appointing a successor
Collateral Agent hereunder, together with all deeds, conveyances, and other
instruments provided for herein, shall, if permitted by law, be forthwith
recorded, registered or filed by and at the expense of the Mortgagor wherever
this Mortgage is recorded, registered, or filed.
9. This Mortgage is, in part, an open-end mortgage to secure, among
other things, advances made or to be made pursuant to the Credit Agreement,
which is a commercial revolving loan agreement within the meaning of
Connecticut General Statutes 49-2(c), and this Mortgage, and the Collateral
Agent shall have all the rights, powers and protection allowed by applicable
law with respect thereto, subject only to such limitations as are imposed by
law. Additional and future loans and advances are specifically permitted to
be made under the Credit Agreement and this Mortgage and shall be secured
hereby equally with amounts advanced to the Mortgagor under the Credit
Agreement and evidenced by the Notes on the date hereof, if any, and shall be
entitled to the same priority as if such additional and future loans and
advances had been made on the date hereof. Upon request of the then owner of
record of the Mortgaged Premises, the Lenders may hereafter, at their option,
at any time before full payment of this Mortgage and in accordance with the
provisions of the Credit Agreement, make further advancements to such owner
in such amounts and at such rates of interest as the Lenders shall determine,
and every such further advance, with interest, shall be secured by this
Mortgage and evidenced by the Notes and the records of the holders of the
Notes; provided, however, that the principal amount of the indebtedness
secured by this Mortgage and remaining unpaid shall at no time exceed
$200,000,000.00, which is the maximum amount of the commercial revolving loan
authorized hereby; and provided further that the terms of repayment of any
such advancements shall not extend the time of repayment beyond the maturity
date as stated in the Credit Agreement, as it may be extended upon the
written agreement of the Mortgagor and the Lenders, pursuant to the terms of
the Credit Agreement.
A copy of the Credit Agreement, as amended from time to time, is on file
at the office of the Collateral Agent as set forth above, and a copy thereof
may be obtained upon written request therefor made to the Collateral Agent.
The aggregate principal balance of the commercial revolving loans outstanding
under the Credit Agreement as it exists from time to time can be ascertained
by making written inquiry of the Collateral Agent.
10. All the provisions herein shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except as the context may otherwise require and except as otherwise herein
expressly provided.
11. This Mortgage is to be governed by and construed in accordance with
the laws of the State of Connecticut.
THE CONDITION OF THIS DEED IS SUCH THAT:
WHEREAS, the Mortgagor is or may become justly indebted to the Lenders
in the aggregate principal amount of up to $200,000,000.00, as evidenced by
the Notes, pursuant to the Credit Agreement, of which sum $73,000,000.00 has
been advanced to the Mortgagor pursuant to the Credit Agreement;
NOW THEREFORE, if all of the Obligations at any time secured under this
Mortgage are discharged in full and the commitments under the Credit
Agreement are terminated, then this Mortgage shall be void; otherwise it
shall be and remain in full force and effect.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the Mortgagor and the Collateral Agent have caused
this Mortgage to be executed as of the date first hereinabove mentioned.
Witnesses: WESTERN MASSACHUSETTS ELECTRIC COMPANY
Name:/s/ By/s/
Name:
Title:
Name:/s/
CITIBANK, N.A., as Collateral Agent
Name:/s/ By/s/
Name:
Title:
Name:/s/
STATE OF CONNECTICUT)
: ss: Berlin November , 1999
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me ,
this day of November, 1999, by of Western Massachusetts
Electric Company, a Massachusetts public service corporation, on behalf of
the corporation.
Notary Public/s/
My Commission Expires:
STATE OF )
: ss: November , 1999
COUNTY OF )
The foregoing instrument was acknowledged before me ,
this day of November, 1999, by of Citibank, N.A., a
national banking association, on behalf of the national banking association,
as Collateral Agent.
/s/
Notary Public
My Commission Expires:
SCHEDULE A
All those certain pieces or parcels of land and other interests in real
estate situated in the Town of Waterford, County of New London and State of
Connecticut, and being more particularly described in the following deeds to
The Connecticut Light and Power Company ("CL&P"), The Hartford Electric Light
Company ("HELCO") (which was merged with and into CL&P as of June 30, 1982)
and Western Massachusetts Electric Company ("WMECO"):
a) Deed from The Millstone Point Company to CL&P, HELCO and WMECO
dated June 27, 1966 and recorded June 28, 1967 in Volume 163,
Page 554 of the Waterford Land Records (the whole of the
premises therein described being hereinafter referred to as
the "Millstone Point Site" or the "Site"); and
b) Deed from the Trustees of the property of The New York, New
Haven and Hartford Railroad Company to CL&P, HELCO and WMECO
dated October 25, 1967 and recorded October 26, 1967 in Volume
170, Page 219 of the Waterford Land Records; and
c) Quitclaim Deed from the Town of Waterford to CL&P, HELCO and
WMECO dated May 8, 1968 and recorded May 13, 1968 in Volume
172, Page 262 of the Waterford Land Records;
Excepting therefrom those certain pieces or parcels of land and other
interests in real estate that were conveyed by or acquired from CL&P,
HELCO and WMECO in or pursuant to the following instruments:
d) Deed from CL&P, HELCO and WMECO to the Town of Waterford dated
September 26, 1966 and recorded May 13, 1968 in Volume 172,
Page 676 of the Waterford Land Records;
e) Statutory Form Warranty Deed (Building and Improvements Only)
from CL&P, HELCO and WMECO to Interet Land Co. dated December
28, 1978 and recorded December 29, 1978 in Volume 248, Page
307 of the Waterford Land Records; and
f) Certificate of Taking by the State of Connecticut dated
November 20, 1987 and recorded December 7, 1987 in Volume 336,
Page 450 of the Waterford Land Records;
And further excepting therefrom all that certain piece or parcel of land
containing 6.6 acres, more or less, located westerly of that certain
private access road sometimes known as Fox Island Road, being a portion
of the Millstone Point Site, and being more particularly bounded and
described as follows:
Commencing at a point on the westerly face of a seawall along
the easterly edge of Niantic Bay, marking a corner of land herein
described; thence running the following ten (10) courses and
distances through the Site: running N 75E 16' W, about 65 feet to
a point; thence N 30E 16' E, 45.00 feet to a point, which point is
north 173837.43 and east 759563.11 on the Connecticut State Plane
Coordinate System; thence N 75E 16' E, in part along a line
between Millstone Unit No. 1 and Unit No. 2, 528.00 feet to a
point; thence S 58E 44' E, 100.00 feet to a point; thence S 12E
44' E, about 300 feet to a point marking the edge of an abandoned
quarry; thence southerly along the edge of said quarry, about 220
feet to a point; thence N 59E 44' W, about 140 feet to a point;
thence S 75E 16' W, 195.00 feet to a point; thence N 14E 44' W,
40.00 feet to a point, which point is north 173524.35 and east
759866.71 on the Connecticut State Plane Coordinate System; thence
S 75E 16' W, about 355 feet to a point in the easterly shoreline
of Niantic Bay; thence running northerly along said shoreline of
Niantic Bay, about 185 feet to a point marking the southwesterly
corner of intake structure No. 1; thence running the following
two (2) courses and distances along said intake structure No. 1:
running northerly about 70 feet to a point marking the
northwesterly corner of said structure; thence running easterly
about 30 feet to a point marking the intersection of the northerly
face of said structure with the westerly face of the seawall
mentioned above; thence running northerly along said westerly face
of said seawall, about 110 feet to the point and place of
beginning:
The above bearings are referred to the Connecticut Grid North.
Said parcel of land is more clearly designated and defined by a map
entitled "PLAN SHOWING LAND ASSOCIATED WITH MILLSTONE UNIT NO. 1 TOWN OF
WATERFORD SCALE: 1" = 100' DATE: 2-18-1981 SYSTEM REAL ESTATE
DEPARTMENT DWG. NO. 18948", a copy of which map has been or will be
filed for record in the Town Clerk's office in said Town of Waterford
and reference to which is hereby made.
Together with the rights created in, but subject to the terms and
conditions of, the following instruments:
g) Easement from the Trustees of the property of The New York,
New Haven and Hartford Railroad Company to CL&P, HELCO and
WMECO dated October 31, 1967 and recorded in Volume 170, Page
223 of the Waterford Land Records;
h) Water Main Easement from the Trustees of the property of The
New York, New Haven and Hartford Railroad Company to CL&P,
HELCO and WMECO dated August 14, 1968 and recorded August 21,
1968 in Volume 174, Page 319 of the Waterford Land Records;
i) Easement from the Trustees of the property of The New York,
New Haven and Hartford Railroad Company to CL&P dated
September 5, 1968 and recorded February 13, 1969 in Volume
176, Page 634 of the Waterford Land Records; and
j) Drainage Easement from Michael R. Mader to CL&P and WMECO
dated June 21, 1985 and recorded July 16, 1985 in Volume 295,
Page 694 of the Waterford Land Records.
Said premises are conveyed subject to the general reservation to the
Mortgagor and its successors and assigns forever of the right to use the
premises described in this Schedule A (exclusive of the portions thereof
on which the Millstone Unit No. 2 and Millstone Unit No. 3 generating
unit structures are located) for whatever purpose they may desire in
connection with the use and ownership of the Site.
Without in any way limiting the general reservation set forth in the
preceding paragraph, said premises are also conveyed subject to the
specific reservation to the Mortgagor and to its successors and assigns
forever of the rights (a) to use, maintain and relocate the access roads
on the Mortgaged Premises and on the Site; (b) to construct, install,
reconstruct, inspect, repair, replace, use, maintain and operate
beneath, on and over said premises lines for the transmission of
electricity and related facilities and pipes or mains for water,
sewerage, drainage or any other necessary utility services; (c) to use,
repair, reconstruct and maintain, and to have maintained, for the
benefit of the Millstone Unit No. 1 generating unit structure, the
common wall between said Millstone Unit No. 2 and said Millstone Unit
No. 1; (d) to park vehicles and store equipment on said premises; (e) to
construct, reconstruct, repair, maintain, use and operate intake and
discharge facilities and structures on said premises; and (f) to
construct, install, reconstruct, inspect, use, repair, replace and
maintain any and all areas, facilities, fixtures and equipment on said
premises, whether or not included in said Millstone Unit No. 2 or
Millstone Unit No. 3 generating unit structures, which are now or may
hereinafter be used or useful, in whole or in part, in connection with
the operation or ownership of the Site or any other portion thereof.
Said premises are also subject to the following matters:
1. Any and all provisions of any ordinance, municipal regulation or
public or private law.
2. Taxes to the Town of Waterford on the Lists of October 1, 1998, and
all subsequent years.
3. Any and all rights, easements, reservations, waivers, conditions
and covenants as of record may appear.
4. Any and all liens that may hereafter arise under Connecticut
General Statutes Section 22a-452a, which provides, under certain
circumstances, for the creation of priority liens in favor of the
State of Connecticut covering reimbursement for expenses incurred
in containing, removing or mitigating a "spill" (as defined in said
statute).
5. Such state of facts as an accurate survey and personal inspection
of the premises might disclose.
6. Any riparian, littoral or other rights of others in and to any
brook, stream, bay, sound or watercourse flowing through, over or
along the premises.
7. Any statutory lien for labor or material.
8. Terms, conditions, limitations, restrictions, and provisions of
that certain agreement dated as of September 1, 1973, as amended
and as to be amended by various amendatory agreements, including
those dated as of August 1, 1974, and December 15, 1975, by and
among The Connecticut Light and Power Company and several other New
England electric utilities (said agreement, as so amended, being
referred to herein as the "Sharing Agreement"), a copy of which
Sharing Agreement (excluding the amendatory agreement dated as of
December 15, 1975, and all other amendatory agreements dated after
February 28, 1975) is attached as Schedule B to a certain quitclaim
deed from The Connecticut Light and Power Company dated February
28, 1975, and recorded in the Waterford Land Records in Volume 215,
Page 252, and a copy of which amendatory agreement dated as of
December 15, 1975, is attached to a certain quitclaim deed from The
Connecticut Light and Power Company to Central Maine Power Company
et al, dated October 25, 1977, and recorded in said Land Records
in Volume 239, Page 13.
9. Agreement ("Waiver Agreement") among Public Service Company of New
Hampshire and other electric utilities, dated as of August 10,
1977, and recorded in the Waterford Land Records in Volume 245,
Page 443, as amended by agreements dated as of September 1, 1977,
recorded in said Land Records in Volume 245, Page 476, and as of
November 1, 1977, and recorded in said Land Records in Volume 245,
Page 501.
10. Certain fencing rights, and reservation of 50-foot right-of-way and
right to install service lines, as set forth in deed from The New
York, New Haven, and Hartford Railroad Company to Henry Gardiner,
dated May 14, 1956, and recorded in the Waterford Land Records in
Volume 111, Page 535.
11. Certain rights reserved by Henry Gardiner in a warranty deed to The
Millstone Point Company, dated February 10, 1966, and recorded in
the Waterford Land Records in Volume 161, Page 600, with respect to
railroad crossings and use of portion of discontinued Millstone
Road.
12. Distribution easement from The Millstone Point Company to The
Connecticut Light and Power Company, dated June 27, 1966, and
recorded in the Waterford Land Records in Volume 163, Page 525.
13. Transmission easement from The Millstone Point Company to The
Connecticut Light and Power Company, dated June 27, 1966, and
recorded in the Waterford Land Records in Volume 163, Page 531.
14. Covenants with respect to construction, noninterference with
railroad trains, risk of loss, etc. in connection with railroad
crossing easement from the Trustees of the property of The New
York, New Haven and Hartford Railroad Company to The Connecticut
Light and Power Company et al, dated October 25, 1967, and recorded
in the Waterford Land Records in Volume 170, Page 223.
15. Notice of Order Establishing Bounds of Wetlands Area (Tidal) by
Commissioner of Environmental Protection, dated July 2, 1973, and
recorded in the Waterford Land Records in Volume 205, Page 338.
16. Special Exception from Waterford Planning and Zoning Commission,
dated March 22, 1976, and recorded in the Waterford Land Records in
Volume 224, Page 390.
17. A covenant, surrender and waiver of partition rights, a condition
subsequent concerning compliance with Sharing Agreement, certain
other conditions, limitations and restrictions of Sharing
Agreement, a certain general reservation, a certain specific
reservation and all other rights, limitations and reservations set
forth in the aforesaid quitclaim deed from The Connecticut Light
and Power Company dated February 28, 1975.
18. Covenant regarding prohibition of partition of premises in set
forth in, and easements, rights of way, financing covenants and
rights to use water systems cited in, a warranty deed from The
Millstone Point Company to CL&P, WMECO and HELCO, dated June 7,
1966 and recorded in said Land Records in Volume 163, Page 554.
19. Reservation of 50 foot strip, existing drainage conditions and
fence agreements cited in deed from the Trustees of the property of
The New York, New Haven and Hartford Railroad Company to CL&P,
HELCO and WMECO dated October 25, 1967 and recorded in said Land
Records in Volume 170, Page 219.
20. License agreement to the Town of Waterford dated November 29, 1978
and recorded in said Land Records in Volume 248, Page 47.
21. Ground Lease to Interet Land Co., Inc. dated December 28, 1978 and
recorded in said Land Records in Volume 248, Page 310.
22. License to the Town of Waterford dated September 19, 1979 and
recorded in said Land Records in Volume 253, Page 416.
23. Ground Lease to Northeast Nuclear Energy Company dated August 26,
1983 and recorded in said Land Records in Volume 275, Page 349,
amended and restated October 1, 1985 and recorded in said Land
Records in Volume 298, Page 843.
24. Declaration and Waiver with ComPlane, Inc. dated November 27, 1985
and recorded in said Land Records in Volume 298, Page 518.
25. Sewer Easement to the Town of Waterford dated November 19, 1984 and
recorded in said Land Records in Volume 290, Page 595.
26. Order to Abate Pollution by State Connecticut Department of
Environmental Protection dated October 18, 1985 and recorded in
said Land Records in Volume 299, Page 247.
27. Order to Abate Pollution by State of Connecticut Department of
Environmental Protection dated October 18, 1985 and recorded in
said Land Records in Volume 299, Page 247 and modified September
18, 1986 and recorded in said Land Records in Volume 313, Page 861
and November 20, 1987 and recorded in said Land Records in Volume
336, Page 185.
28. Special Permit granted by the Town of Waterford Planning and Zoning
Commission dated June 22, 1987 and recorded in said Land Records in
Volume 328, Page 369.
29. Permanent easement to slope and permanent drainage right of way,
and temporary easements to construct driveways and sedimentation
controls in Certificate of Taking by the State of Connecticut dated
November 20, 1987 and recorded in said Land Records in Volume 336,
Page 450.
30. Notice of Parties to Agreement among CL&P, WMECO, Northeast Nuclear
Energy Company and Connecticut Yankee Power Company dated June 2,
1988 and recorded in said Land Records in Volume 345, Page 56.
31. Notice of Air Management Order to State of Connecticut Department
of Environmental Protection dated October 20, 1995 and recorded in
said Land Records in Volume 478, Page 704.
32. Pump Station Easement to the Town of Waterford dated December 23,
1996 and recorded in said Land Records in Volume 465, Page 308.
33. Water Line Easement to the Town of Waterford dated September 18,
1997 and recorded in said Land Records in Volume 474, Page 214.
34. Short Form Agreement for the Provision of Fiber Optic Facilities
and Services dated February 27, 1998, and recorded in said Land
Records in Volume 480, Page 1190.
