UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Application of Northeast ) CERTIFICATE PURSUANT TO
Utilities on Form U-1 ) RULE 24 UNDER THE PUBLIC
[File No. 70-9535] ) UTILITY HOLDING COMPANY ACT
) of 1935
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Pursuant to the requirements of Rule 24 under the Public Utility
Holding Company Act of 1935, as amended (the "Act"), Northeast Utilities,
certifies that the acquisition of Yankee Energy System, Inc., as proposed in
the Application/Declaration to the Commission on Form U-1 (File No. 70-
9535), as amended, and authorized by order of the Commission in Public
Utility Holding Company Act Release No. 35-27127, dated January 31, 2000, has
been carried out in accordance with the terms and conditions of and for the
purposes represented by the Application/Declaration and of the Commission's
order with respect thereto.
Submitted with this Certificate is the "past tense" opinion of counsel,
and the Credit Agreement used to finance the cash portion of the
consideration paid in connection with the acquisition.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, Northeast Utilities has duly caused this Certificate to be signed on
its behalf by the undersigned hereunto duly authorized.
Northeast Utilities
By: /S/David R. McHale
Name: David R. McHale
Title: Vice President and
Treasurer
Dated: March 9, 2000.
Exhibit F.5
March 9, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Northeast Utilities
Application/Declaration of Form U-1
File No. 70-9535
Ladies and Gentlemen:
I am Assistant General Counsel of Northeast Utilities Service Company
(NUSCO), a service company affiliate of Northeast Utilities (NU). In
connection with the transactions contemplated by the Application/Declaration,
as amended, in the above referenced file (the "Application"), I have acted as
counsel to NU. This opinion is given to you with respect to the
transactions described the Application pursuant to your Instructions as to
Exhibits to applications and declarations filed on Form U-1. Except as
otherwise defined herein, terms used herein shall have the meanings given
them in the Application.
In connection with this opinion, I have examined or caused to be examined by
counsel associated with or engaged by me, including counsel who are employed
by NUSCO, originals or copies certified to my satisfaction of such corporate
records of NU, certificates of public officials and of officers of NU, and
agreements, instruments and other documents, as I have deemed necessary as a
basis for the opinions expressed below. In my examination of such
agreements, instruments and documents, I have assumed the genuineness of all
signatures, the authenticity of all agreements, instruments and documents
submitted to me as originals, and the conformity to original agreements,
instruments and documents of all agreements, instruments and documents
submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such copies.
The opinions set forth herein are limited to the laws of the Commonwealth of
Massachusetts, the State of Connecticut and the federal laws of the United
States. I am a member of the bar of the State of New York. I am not a
member of the bar of the Commonwealth of Massachusetts or the State of
Connecticut, and do not hold myself out as an expert in the laws of such
Commonwealth or such, although I have made a study of relevant laws of such
Commonwealth and State. In expressing opinions about matters governed by
the laws of the Commonwealth of Massachusetts and the State of Connecticut, I
have consulted with counsel who are employed by NUSCO and are members of the
bar of such Commonwealth and State.
I have assumed that the transactions were carried out in conformity with the
requisite authorizations, approvals, consents or exemptions under the
securities laws of the various States and other jurisdictions of the United
States.
Based on and subject to the foregoing, I am of the opinion that:
1. All state laws applicable to the transactions for which the Commission's
approval was sought in the Application have been complied with.
2. NU is validly organized and duly existing under the laws of the
Commonwealth of Massachusetts.
3. The NU common shares issued to YES shareholders in accordance with the
authorization were validly issued, fully paid and nonassessable, and the
holders thereof will be entitled to the rights and privileges appertaining
thereto set for the in the Declaration of Trust of NU .
4. NU legally acquired the YES Common Stock.
5. The consummation of the transactions for which the Commission's approval
was sought did not violate the legal rights of the holders of any securities
issued by NU or any associate company thereof.
I hereby consent to the use of this opinion in connection with the filing of
the Application.
Very truly yours,
/S/Jeffrey C. Miller
Assistant General Counsel
Northeast Utilities Service Company
TERM LOAN AGREEMENT
Dated as of March 1, 2000
THIS TERM LOAN 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) Fleet National
Bank, as Syndication Agent hereunder;(iv) The Bank of New York, as
Documentation Agent hereunder; and(v) Canadian Imperial Bank of Commerce, a
Canadian chartered bank ("CIBC") acting through its New York Agency, as
Administrative Agent for the Lenders hereunder.
PRELIMINARY STATEMENT
The Borrower has 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 CIBC, 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 Term Loan Agreement, as the same may be
modified, amended and/or supplemented pursuant to the terms hereof.
"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 during the relevant period
indicated below for any outstanding Contract Advance, the percentage per
annum set forth below in effect on such day during such period,
determined on the basis of the Applicable Rating Level for the Borrower:
Applicable Margin (Percentage %)
Applicable
Rating Level Eurodollar Rate Advances Base Rate Advances
Funding 8-1-00 - 11-1-00 and Funding 8-1-00 11-1-00 and
Date - 10-31-00 thereafter Date - 10-31-00 thereafter
7-31-00 7-31-00
Level I 2.00 1.375 1.625 1.00 .375 .625
Level II 2.00 1.625 1.875 1.00 .625 .875
Level III 2.00 1.875 2.125 1.00 .875 1.125
Level IV 2.00 2.125 2.375 1.00 1.125 1.375
Level V 2.00 2.375 2.625 1.00 1.375 1.625
Level VI 2.00 2.625 2.875 1.00 1.625 1.875
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 Baa3 or higher
Level II BBB Ba1
Level III BBB- Ba2
Level IV BB+ Ba3
Level V BB B1
Level VI BB- or lower B2 or lower
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 VI.
"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 higher of:
(a) the rate of interest announced publicly by CIBC in its
principal place of business in the United States from time to time
as CIBC's base rate for loans made in United States Dollars; and
(b) 1/2 of one percent per annum above the Federal Funds Rate
in effect from time to time.
If the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable to ascertain the 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 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 or the Federal Funds Rate shall be
effective on the effective date of such change in the Administrative
Agent's base 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.
"Borrower" has the meaning assigned to that term in the caption to
this Agreement.
"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.
"CIBC" means Canadian Imperial Bank of Commerce, a Canadian
chartered bank, acting through its New York Agency.
"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). "Commitments" shall refer to the
aggregate of the Lenders' Commitments hereunder.
"Commitment Fee" has the meaning assigned to that term in
Section 2.02(a) hereof.
"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,
continued or converted on the same Business Day. 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, whether such Advances were made on the Funding Date or were
continued or converted as Advances of a certain Type and for a certain
Interest Period. For purposes of this Agreement, all Contract Advances
of the same Type and Interest Period, if any, made, continued 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.
"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, June 30, and September 30, 1999;
and (iii) each Current Report on Form 8-K of such Person filed after
September 30, 1999 and on or prior to February 29, 2000.
"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 (i) the rate for deposits in U.S.
Dollars for a period equal to such Interest Period appearing on Page
3750 of the Telerate Service at approximately 11:00 a.m. (London time)
two Business Days before the first day of such Interest Period, or (ii)
if for any reason such rate is not available, 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. If determined pusuant to
clause (ii), above, 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.
"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 February 18, 2000
between NU and CIBC.
"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 September 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 9-month
period ended September 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
September 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.
"Funding Date" has the meaning assigned to that term in Section
2.1 hereof.
"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 nature of the Borrower's or any Subsidiary's business as
conducted or the nature of the property owned or leased by it or
(iii) the acquisition by the Borrower of YES.
"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.
"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 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 Advances shall have been made on the
Funding Date, 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 the aggregate principal amount of all Contract Advances
outstanding on such date. The "Outstanding Credits" of a Lender on any
date of determination shall be an amount equal to the outstanding
Advances made by such Lender.
"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.
"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 (or, if the Commitments shall have been
terminated, the aggregate principal amount of outstanding Advances held
by such Lender on such day) by the total of the Commitments (or
outstanding Advances, as applicable) 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 YES, 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 CIBC, Fleet Bank, N.A. and The Bank of New
York, 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.
"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.
"Revolving Credit Agreement" means the Credit Agreement, dated as
of November 19, 1999, among the Borrower, the lenders from time to time
parties thereto and Union Bank of California, N.A., as Administrative
Agent.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"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) February 28,
2001, (ii) the date of termination of the Commitments pursuant to
Section 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, (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 $266,000,000, 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" means Western Massachusetts Electric Company, a corporation
organized under the laws of the Commonwealth of Massachusetts.
"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.
"YES" means Yankee Energy System Inc.
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 I.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
Advances to be made on such date and the application of the proceeds thereof
and (ii) any repayment or prepayment of Advances on such date by the
Borrower.
ARTICLE II
COMMITMENTS
SECTION 2.01. The Commitments. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make a single Advance to
the Borrower on any Business Day (the "Funding Date") during the period from
the Closing Date until March 15, 2000, in an amount not to exceed such
Lender's Commitment. If the Funding Date shall not have occurred on or prior
to March 15, 2000, the Commitments shall terminate.
SECTION 2.02. Fees. The Borrower agrees to pay to the
Administrative Agent for the account of each Bank a commitment fee (the
"Commitment Fee") on the amount of such Bank's Commitment at a rate per annum
equal to one-half of one percent (0.5%) for the period from the date of this
Agreement to (but excluding) the Funding Date or the earlier termination of
the Commitments. The Commitment Fee payable by the Borrower shall be
calculated and accrued daily and shall be payable on the Funding Date, or, if
earlier, the date on which the Commitments are terminated.
(a) The Borrower further agrees to pay the fees specified in the Fee
Letter to the parties entitled thereto.
ARTICLE III
CONTRACT ADVANCES
SECTION 3.01. Contract Advances. Subject to Section 2.01, 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 Funding Date, or thereafter
continued or converted as Advances of the same Type and for the same Interest
Period on the same Business Day, by the Lenders ratably according to their
respective Commitments. The Contract Borrowing to be made on the Funding
Date shall be made on notice in substantially the form of Exhibit 3.01 hereto
(the "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 Funding Date and (ii) in the case of Base Rate
Advances, on the Funding Date. Upon receipt of the Notice of Contract
Borrowing, the Administrative Agent shall notify the Lenders thereof promptly
on the day so received. The Notice of Contract Borrowing shall specify
therein the requested (A) Funding Date, (B) principal amount and Type of
Advances comprising such Borrowing and (C) initial Interest Period for such
Advances. The Borrowing to be made on the Funding Date 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.
(b) Notwithstanding anything in Section 3.01 above to the contrary:
(i) at no time shall more than six different Contract Borrowings
be outstanding hereunder; and
(ii) each Contract Borrowing hereunder which is to be comprised of
Base Rate or Eurodollar 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.
(c) The Notice of Borrowing shall be irrevocable and binding on the
Borrower.
SECTION 3.03. Making of Advances.
(d) Each Lender shall, before 1:00 p.m. (New York City time) on the
Funding Date, 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 the Borrowing
to be made on such date. 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.
(e) Unless the Administrative Agent shall have received notice from a
Lender prior to the time of the Borrowing to be made on the Funding Date 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 Funding Date 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.
(f) The failure of any Lender to make the Advance to be made by it as
part of the Borrowing on the Funding Date shall not relieve any other Lender
of its obligation, if any, hereunder to make its Advance on the Funding Date,
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 Funding Date.
SECTION III.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.
(g) Interest Periods.
(iii) 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, three or (subject to availability) more 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.
(iv) Subject to the terms and conditions of this Agreement, the
initial Interest Period for the Advances made to the Borrower on the
Funding Date shall be determined by the Borrower as set forth in its
Notice of Contract Borrowing. The Borrower may elect to continue or
convert (A) the Advances made on the Funding Date and (B) thereafter,
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, (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.
(h) 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:
(v) 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.
(vi) 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.
(i) 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.
(j) 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.
(k) Maximum Interest Rate. Notwithstanding anything herein to
the contrary:
(vii) If at any time the effective interest rate on any
Eurodollar Rate Advance or Base Rate Advance for any Interest Period
(including any additional interest payable upon the occurrence of an
Event of Default) exceeds 4.00% plus the Eurodollar Rate as determined
(or as it would have been determined) as of the first day of the then
applicable Interest Period for such Eurodollar Rate Advance or Base Rate
Advance (the "Maximum Rate"), such rate of interest shall be reduced to
the Maximum Rate.
(viii) If the amount of interest payable for the account of any
Lender in respect of any Interest Period is reduced pursuant to
subparagraph (i), above, and the amount of interest payable for such Lender's
account in respect of any subsequent Interest Period would be less than the
amount of interest computed at the Maximum Rate, then the amount of interest
payable for such Lender's account in respect of such subsequent Interest
Period shall, to the extent permitted by applicable law, be automatically
increased to the amount of interest that would be payable for such Interest
Period if such interest were computed at the Maximum Rate; provided that at
no time shall the aggregate amount by which interest paid for the account of
any Lender is increased pursuant to this subparagraph (ii) exceed the
aggregate amount by which interest paid for its account has theretofore been
reduced pursuant to subparagraph (i), above.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments and Computations.
(l) 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 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.
(m) The Borrower hereby authorizes the Administrative Agent and each
Lender, if and to the extent payment owed by the Borrower 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 the Borrower's accounts
with the Administrative Agent or such Lender, as the case may be, any amount
so due.
(n) 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 or a Lender shall be
conclusive and binding for all purposes, absent manifest error.
(o) 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.
(p) 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
.
(q) The Borrower shall not have any right to prepay any Contract
Advances except in accordance with subsection (b) below.
(r) 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. Once prepaid, Advances may not be reborrowed.
SECTION 4.03. Yield Protection.
(s) 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 hereunder (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 any other condition affecting
this Agreement or Eurodollar Rate Advances, and the result of any of the
foregoing shall be (A) to increase the cost to such Lender of issuing,
maintaining or participating in this Agreement or of agreeing to make, making
or maintaining any Advance or (B) to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower 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.
(t) 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 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, 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, any
Commitment hereunder, the portion of the Advance 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 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.
(u) 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.
(v) 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
Funding Date or the date of any continuation or conversion of Advances
hereunder the applicable conditions precedent set forth in Articles III and
V, (ii) any failure by the Borrower to borrow or continue any, or convert any
outstanding Advance into a, Eurodollar Rate Advance hereunder after the
Notice of Contract Borrowing has been delivered pursuant to Section 3.01
hereof or after delivery of a notice of continuation or conversion pursuant
to Section 3.05(a)(ii) hereof, (iii) any payment, prepayment, continuation 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, continued or not borrowed or
continued for the period from the date of such payment, prepayment,
conversion, continuation or failure to borrow or continue to the last day of
the Interest Period for such Advance (or, in the case of a failure to borrow
or continue, 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, continued or not borrowed
or continued 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.
(w) Notices. A certificate of 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 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. 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.
(x) 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 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.
(y) 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.
(z) 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.
(aa) 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 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 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 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) 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.
(bb) 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").
(cc) The 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 claim for such indemnification shall be set forth in a certificate of such
Lender 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 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 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 or the
Administrative Agent, such Lender 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 and each Lender's obligations under
this Section 4.05 shall survive the payment in full of the Outstanding
Credits.
(dd) 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.
(ee) 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, Form 1001, Form W-8 BEN or Form W-8 ECI 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.
(ff) 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 Lenders to make Advances to the Borrower on the Funding Date shall not
become effective until the date (the "Closing Date") on which each of the
following conditions is satisfied:
(gg) 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):
(iii) Counterparts of this Agreement, duly executed by the
Borrower.
(iv) Contract Notes of the Borrower, duly made to the order of each
Lender in the amount of such Lender's Commitment.
(v) 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, the
Borrowings hereunder and the consummation by the Borrower of the
acquisition of YES; (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 the consummation by the Borrower of the acquisition of
YES; and (4) true and correct copies of all Governmental Approvals
referred to in clauses (i) and (iii) 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 the acquisition by the
Borrower of YES; 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 the Borrower, certifying as to:
(A) 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
(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 September 30, 1999, except as disclosed in the
Disclosure Documents.
(vii) A certificate of a duly authorized officer of the
Borrower certifying 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, (ii) no event has occurred and
is continuing which constitutes an Event of Default or Unmatured
Default, and (iii) attached thereto is the merger agreement with respect
to the acquisition of YES and all amendments and supplements, if any,
thereto.
(viii) Such financial, business and other information regarding
the Borrower and its Principal Subsidiaries, as any Lender shall have
reasonably requested.
(ix) 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 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.
(hh) The representations and warranties of the Borrower contained in
Section 6.01 shall be correct in all material respects on and as of the
Closing Date, and no event shall have occurred and be continuing which
constitutes an Event of Default or Unmatured Default.
(ii) All fees and other amounts payable pursuant to the Fee Letter shall
have been paid (to the extent then due and payable).
(jj) The Borrower shall have entered into a definitive merger agreement
with respect to the acquisition of YES; the Administrative Agent shall have
reviewed and shall be satisfied with all of the material terms thereof; no
default or failure in the satisfaction of a condition shall have occurred and
be continuing under such agreement that could reasonably be expected to
threaten or materially delay the consummation of such acquisition; and, from
and after the date hereof, the Borrower shall not have agreed to any
modification of such material terms if the effect thereof would be to
increase the purchase price of the shares of YES to be acquired thereunder
or, without the consent of the Administrative Agent, if the effect of such
modification would be to decrease the aggregate value of such shares.
(kk) 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 the Borrower and its
Principal Subsidiaries.
SECTION 5.02. Conditions Precedent to Advances on Funding Date. The
obligation of any Lender to make an Advance on the Funding Date shall be
subject to the conditions precedent that, on such date and after giving
effect to the Advances to be made thereon:
(ll) the following statements shall be true (and each of the giving of
the Notice of Contract Borrowing with respect to such Advances and the
acceptance of the proceeds of such Advances by the Borrower shall constitute
a representation and warranty by the Borrower that on the Funding Date such
statements are true):
(x) 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 Funding Date, before and after giving effect to the
Advances to be made thereon and to the application of the proceeds
therefrom, as though made on and as of such date; and
(xi) no Event of Default or Unmatured Default has occurred and is
continuing on or as of the Funding Date or would result from the
Advances to be made thereon or from the application of the proceeds
thereof; and
(mm) the 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 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
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:
(nn) 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, and to consummate the acquisition of
YES.
(a) The execution, delivery and performance of the Loan Documents
by the Borrower, and the consummation by the Borrower of the acquisition
of YES, 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.
(b) 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.
(c) 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.
(d) All Governmental Approvals referred to in clauses (i) and
(iii) 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 (including the acquisition by the Borrower of YES)
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.
(e) 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).
(f) The Financial Statements, copies of which have been provided
to the Administrative Agent 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 September 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.
(g) There is no pending or known threatened action or proceeding
(including, without limitation, any action or proceeding relating to any
environmental protection laws or regulations) affecting the 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 of the consummation by the Borrower of the acquisition of
YES or (ii) as to which there is a reasonable possibility of an adverse
determination and which, if adversely determined, would materially
adversely affect (A) the financial condition, properties, prospects or
operations of the Borrower or of the Borrower and its Principal
Subsidiaries, taken as a whole, or (B) the timing, cost or worth to the
Borrower of the consummation of the acquisition of YES, except, for
purposes of this clause (ii) only, such as is described in the
Disclosure Documents or in Schedule II hereto.
(h) No ERISA Plan Termination Event has occurred nor is reasonably
expected to occur with respect to any ERISA Plan which would materially
adversely affect the financial condition, properties, prospects or
operations of the 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.
(i) 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.
(j) 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).
(k) 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.
(l) No exhibit, schedule, report or other written information
provided by or on behalf of the 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) 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, 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.
(m) All proceeds of the Advances shall be used to finance the
acquisition by the Borrower of YES. 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.
After giving effect to the acquisition of YES, the aggregate value of
all of the shares of YES acquired by the Borrower, together with the
aggregate value of all other Margin Stock (as defined in Regulation U)
owned of record or beneficially by the Borrower and its consolidated
subsidiaries will not exceed 25% of the total consolidated assets of the
Borrower and its consolidated Subsidiaries. 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 or (B) is
engaged in the business of extending credit for the purpose of buying or
carrying Margin Stock.
(n) 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.
(o) 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:
(oo) Use of Proceeds. Apply the proceeds of each Advance solely as
specified in Section 6.01(n) hereof.
(pp) 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.
(qq) 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.
(rr) Preservation of Existence, Etc.; Disaggregation.
(xii) 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.
(xiii) 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.
(ss) 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.
(tt) 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, the Lenders and their respective
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.
(uu) 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.
(vv) 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.
(ww) 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 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.
(xx) 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.
(yy) Further Assurances. Promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or that any Lender through the Administrative Agent may
reasonably request in order to fully give effect to the interests and
properties purported to be covered by the Loan Documents.
SECTION 7.02. Negative Covenants. On and after the Closing Date,
and so long as any Note shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower shall not, or permit any Principal
Subsidiary to, without the written consent of the Majority Lenders:
(zz) 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:
(xiv) any Liens existing on the Closing Date;
(i) 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");
(ii) 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");
(iii) 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");
(iv) 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");
(v) 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;
(vi) "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 Indenture
(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;
(vii) 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;
(viii) 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;
(ix) 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;
(x) Liens created in favor of the other contracting party in
connection with advance or progress payments;
(xi) 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;
(xv) 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 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;
(xiii) 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;
(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), (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.
(aaa) 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;
(F) the acquisition of YES for consideration in an amount not to
exceed $495,000,000 (excluding the assumption of Debt); and
(G) the acquisition of substantially all of the assets of, or
substantially all of the ownership interests in, any other Person or
Persons, which acquisition or acquisitions are not otherwise permitted
by this subsection (b), so long as the aggregate consideration for all
such acquisitions (including the acquisition by HEC Inc. of the assets
of Energy Applications Inc.) does not exceed $5,000,000.
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).
(bbb) 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 or any withdrawal liability to an ERISA Multiemployer
Plan in an aggregate amount exceeding $1,000,000.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(ccc) 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 arising under the Revolving Credit Agreement, (iv) Debt resulting from
the issuance of debt-like instruments by NU for stock redemptions and
repurchases in connection with the acquisition of YES 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.
(ddd) 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.
(eee) 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 YES
(fff) 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:
(ggg) Common Equity Ratio. Maintain at all times a ratio of Common
Equity to Total Capitalization of at least 0.30:1:00.
(hhh) 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.
(iii) 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 VII.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:
(xviii) 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;
(xix) (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;
(xx) (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;
(xxi) 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;
(xxii) 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;
(xxiii) 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;
(i) 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;
(ii) 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;
(iii) 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);
(iv) 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
(v) 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
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":
(jjj) The Borrower shall fail to pay any principal of any Note
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
(a) 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
(b) The 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
(c) 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
(d) 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
(e) 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
(f) 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
(g) 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
(h) A Change of Control shall have occurred; or
(i) 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
(j) 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 VIII.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 to
be terminated, whereupon such obligations of the Lenders 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 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; 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 shall
automatically be terminated and (B) the Notes of the Borrower, all interest
thereon 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
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 any 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. CIBC and its Affiliates. With respect to its
Commitment and the Note issued to it, CIBC 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 CIBC in its
individual capacity. CIBC 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, 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 CIBC were not the Administrative Agent and without any
duty to account therefore to the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent
or any other Lender and based on 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 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.
SECTION 9.07. Other Agents. Neither The Bank of New York, by
virtue of its designation as "Documentation Agent", nor Fleet National Bank,
by virtue of its designation as "Syndication Agent", shall have any duties,
liabilities, obligations or responsibilities under this Agreement other than
as a Lender hereunder.
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 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, (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, (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 no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent, in addition to the Lenders
required above to take such action, affect the rights or duties of the
Administrative Agent under any Loan Document.
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; and
(iv) if to the Administrative Agent, at its address at 425
Lexington Avenue, New York, New York 10017, Attention: Agency
Services, facsimile number: (212) 856-3691, confirm number:
(212) 856-3763.
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 9.03. No Waiver of Remedies. No failure on the part of the
Administrative 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 9.04. Costs, Expenses and Indemnification.
(kkk) 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); and (ii) all costs and expenses of the Administrative Agent and each
Lender (including all fees and expenses of counsel) in connection with the
enforcement, whether through negotiations, legal proceedings or otherwise, of
the Loan Documents.
(lll) The Borrower hereby agrees to indemnify and hold the
Administrative 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 the Borrower of the proceeds of any Advance;
(i) 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
(ii) 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.
(mmm) 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 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.
(nnn) 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
February 15, 2000 between the Borrower and CIBC.
SECTION X.05. Right of Set-off.
(ooo) 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.
(ppp) 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 or any Lender, but no Lender shall
be liable for the conduct of the Administrative Agent or any other Lender,
and the Administrative Agent shall not be liable for the conduct of the other
or any Lender.
SECTION 10.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and 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 Borrower, the Administrative Agent 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.
(qqq) 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 Borrower 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 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.
(rrr) 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, 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.
(sss) 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 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.
(ttt) 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 and/or Advances assumed
by it pursuant to such Lender Assignment and, if the assigning Lender has
retained a Commitment and/or Advances hereunder, a new Note or Notes to the
order of the assigning Lender in an amount equal to the Commitment and/or
Advances 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.
(uuu) 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 or 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 Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents, and
(v) the holder of any such participation, other than an Affiliate of such
Lender, shall not be entitled to require such Lender to take or omit to take
any action under the Loan Documents, except action (A) reducing the principal
of, or interest on, the Notes, any Applicable Margin or any fees or other
amounts payable under the Loan Documents, 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.
(vvv) 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.
(www) 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.
(xxx) 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 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 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 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:
Commitment: $66,500,000 CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY, as
Bank and as Administrative Agent
By:
Name:
Title:
Commitment: $66,500,000 BARCLAYS BANK PLC
By
Name:
Title:
Commitment: $66,500,000 THE BANK OF NEW YORK, as
Bank and as Documentation Agent
By:
Name:
Title:
FLEET NATIONAL BANK,
as Syndication Agent
Commitment: $66,500,000 FLEET NATIONAL BANK,
as Trust Administrator for
LongLane Master Trust IV, as Bank
By:
Name:
Title:
SCHEDULE I
APPLICABLE LENDING OFFICES
Name of Bank Domestic Lending Office Eurodollar Lending Office
Barclays Bank PLC 75 Wall Street, 11th Floor 75 Wall Street, 11th Floor
New York, NY 10265 New York, NY 10265
The Bank of New York One Wall Street One Wall Street
New York, NY 10286 New York, NY 10286
Fleet National Bank, 100 Federal Street 100 Federal Street
as Trust Administrator Boston, MA 02110 Boston, MA 02110
for LongLane Master
Trust IV
Canadian Imperial 425 Lexington Avenue 425 Lexington Avenue
Bank of Commerce New York, NY 10017 New York, NY 10017
SCHEDULE II
PENDING ACTIONS
None.
TABLE OF CONTENTS
Page
ARTICLE I DEFINITONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms
SECTION 1.02. Computation of Time Periods
SECTION 1.03. Accounting Terms; Financial Statements
SECTION 1.04. Computations of Outstandings
ARTICLE II COMMITMENTS
SECTION 2.01. The Commitments
SECTION 2.02. Fees
ARTICLE III CONTRACT ADVANCES
SECTION 3.01. Contract Advances
SECTION 3.02. Terms Relating to the Making of Contract Advances
SECTION 3.03. Making of Advances
SECTION 3.04. Repayment of Advances
SECTION 3.05. Interest
ARTICLE IV PAYMENTS
SECTION 4.01. Payments and Computations
SECTION 4.02. Prepayments
SECTION 4.03. Yield Protection
SECTION 4.04. Sharing of Payments, Etc
SECTION 4.05. Taxes
ARTICLE IV PAYMENTS
SECTION 4.01. Payments and Computations
SECTION 4.02. Prepayments
SECTION 4.03. Yield Protection
SECTION 4.04. Sharing of Payments, Etc
SECTION 4.05. Taxes
ARTICLE V CONDITIONS PRECEDENT
SECTION 5.01. Conditions Precedent to Effectiveness
SECTION 5.02. Conditions Precedent to Advances on Funding Date.
SECTION 5.03. Reliance on Certificates
ARTICLE VI REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties of the Borrower
ARTICLE VII COVENANTS
SECTION 7.01. Affirmative Covenants
SECTION 7.02. Negative Covenants
SECTION 7.03. Financial Covenants
SECTION 7.04. Reporting Obligations
ARTICLE VIII DEFAULTS
SECTION 8.01. Events of Default
SECTION 8.02. Remedies Upon Events of Default
ARTICLE IX THE ADMINISTRATIVE AGENT
SECTION 9.01. Authorization and Action
SECTION 9.02. Administrative Agent's Reliance, Etc.
SECTION 9.03. CIBC and its Affiliates.
SECTION 9.04. Lender Credit Decision
SECTION 9.05. Indemnification
SECTION 9.06. Successor Administrative Agent
SECTION 9.07. Other Agents
ARTICLE X MISCELLANEOUS
SECTION 10.01. Amendments, Etc.
SECTION 10.02. Notices, Etc
SECTION 10.03. No Waiver of Remedies
SECTION 10.04. Costs, Expenses and Indemnification
SECTION 10.05. Right of Set-off
SECTION 10.06. Binding Effect
SECTION 10.07. Assignments and Participation
SECTION 10.08. Confidentiality
SECTION 10.09. Waiver of Jury Trial
SECTION 10.10. Governing Law
SECTION 10.11. Relation of the Parties; No Beneficiary
SECTION 10.12. Execution in Counterparts
SECTION 10.13. Limitation of Liability
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Pending Actions
EXHIBITS
Exhibit 1.01A - Form of Contract Note
Exhibit 3.01 - Form of Notice of Contract Borrowing
Exhibit 5.01A - Form of Opinion of Day, Berry & Howard, Counsel
to the Borrower
Exhibit 5.01B - Form of Opinion of Jeffrey C. Miller, Assistant
General Counsel of NUSCO
Exhibit 5.01C - Form of Opinion of King & Spalding, Special New
York Counsel to the Administrative Agent
Exhibit 10.07 - Form of Lender Assignment
EXECUTION COPY
TERM LOAN AGREEMENT
Dated as of March 1, 2000
Among
NORTHEAST UTILITIES
as Borrower
THE BANKS NAMED HEREIN
FLEET NATIONAL BANK
as Syndication Agent
THE BANK OF NEW YORK
as Documentation Agent
and
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY
as Administrative Agent
