<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
______________
FORM 10-Q
____________
(MARK ONE)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998 OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________TO________
COMMISSION FILE NUMBER 0-10721
YANKEE ENERGY SYSTEM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CONNECTICUT 06-1236430
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
599 RESEARCH PARKWAY
MERIDEN, CONNECTICUT 06450-1030
(ADDRESS OF PRINCIPAL EXECUTIVE (ZIP CODE)
OFFICES)
REGISTRANT'S TELEPHONE NUMBER (203) 639-4000
NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR, IF CHANGED
SINCE LAST REPORT)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes __X__ No ____
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
NUMBER OF SHARES OF COMMON STOCK ($5.00 PAR VALUE)
OUTSTANDING AT JULY 31, 1998 10,523,185
<PAGE>
<TABLE>
PART 1. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<CAPTION> Three Months Ended
June 30,
1998 1997
_______ ______
(Thousands of Dollars,
except per share amounts)
<S> <C> <C>
Revenues:
Utility Revenues $ 46,283 $ 58,289
Nonutility Revenues 8,044 1,146
_______ _______
Total Revenues 54,327 59,435
_______ _______
Operating Expenses:
Cost of Gas/Goods Sold 27,766 31,056
Operations 15,271 14,695
Maintenance 1,375 1,393
Depreciation and Amortization 4,994 4,632
Taxes other than Income Taxes 4,519 5,151
_______ _______
Total Operating Expenses 53,925 56,927
_______ _______
Operating Income 402 2,508
Other Income/Expense
Other (Expense) Income, net (185) 30
Interest Expense, net 3,619 3,047
_______ ______
Loss Before Income Taxes (3,402) (509)
Benefit for Income Taxes (1,500) (67)
_______ ______
Net Loss (1,902) (442)
_______ _______
_______ _______
Basic Loss Per Common Share $ (0.18) $ (0.04)
_______ _______
_______ _______
Basic Weighted Average Shares
Outstanding 10,507 10,451
_______ _______
_______ _______
Diluted Loss Per Common Share $ (0.18) $ (0.04)
_______ _______
_______ _______
Diluted Weighted Average Shares
Outstanding 10,512 10,453
_______ _______
_______ _______
</TABLE>
The accompanying notes are an integral part of these financial
statements.
<PAGE>
<TABLE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<CAPTION> Nine Months Ended
June 30,
1998 1997
____ ____
(Thousands of Dollars,
except per share amounts)
<S> <C> <C>
Revenues:
Utility Revenues $249,726 $279,490
Nonutility Revenues 20,389 3,194
_______ _______
Total Revenues 270,115 282,684
_______ _______
Operating Expenses:
Cost of Gas/Goods Sold 144,781 154,048
Operations 45,423 42,620
Maintenance 3,990 4,711
Depreciation and Amortization 14,727 13,443
Taxes other than Income Taxes 16,630 18,700
_______ _______
Total Operating Expenses 225,551 233,522
_______ _______
Operating Income 44,564 49,162
Other Income/Expense
Other Income, net 65 102
Interest Expense, net 10,547 9,599
_______ _______
Income Before Income Taxes 34,082 39,665
Provision for Income Taxes 16,083 17,750
_______ _______
Net Income $ 17,999 $ 21,915
_______ _______
_______ _______
Basic Earnings Per Common Share $ 1.72 $ 2.10
_______ _______
_______ _______
Basic Weighted Average Shares
Outstanding 10,484 10,450
_______ _______
_______ _______
Diluted Earnings Per Common Share $ 1.72 $ 2.10
_______ _______
_______ _______
Diluted Weighted Average Shares
Outstanding 10,491 10,452
________ ________
________ ________
</TABLE>
The accompanying notes are an integral part of these financial
statements.
<PAGE>
<TABLE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<CAPTION>
June 30, September 30,
1998 1997
________ _________
(Unaudited)
(Thousands of Dollars)
<S> <C> <C>
ASSETS
Utility Plant, at original cost $540,135 $524,221
Less: Accumulated provision for
depreciation 204,103 192,506
________ ________
336,032 331,715
Construction work in progress 25,469 19,150
________ ________
Total Net Utility Plant 361,501 350,865
________ ________
Other Property and Investments 22,415 19,311
________ ________
Current Assets:
Cash and temporary cash
investments 3,126 2,239
Accounts receivable, net 44,956 27,002
Fuel supplies 1,389 10,370
Other materials and supplies 2,310 2,186
Accrued utility revenues 3,306 4,667
Prepaid taxes --- 8,031
Deferred Gas cost, current portion 1,911 2,034
Other 6,643 5,901
_______ _______
Total Current Assets 63,641 62,430
_______ _______
Deferred Gas Costs, net --- 8,364
Recoverable Environmental
Cleanup Costs 33,719 31,667
Recoverable Income Taxes 8,105 11,038
Recoverable Postretirement
Benefits Costs 1,669 1,515
Other Deferred Debits 16,389 15,174
_______ _______
Total Assets $507,439 $500,364
_______ ________
_______ ________
</TABLE>
The accompanying notes are an integral part of these financial
statements.
<PAGE>
<TABLE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<CAPTION> June 30, September 30,
1998 1997
_________ ____________
(Unaudited)
(Thousands of Dollars)
<S> <C> <C>
CAPITALIZATION AND LIABILITIES
Capitalization:
Common shares - $5.00 par value.
Authorized 20,000,000 shares; 10,520,579
shares outstanding at June 30, 1998
and 10,454,414 outstanding at
September 30, 1997 $ 52,603 $ 52,272
Capital surplus, paid in 89,299 88,003
Retained earnings 33,794 26,431
Employee stock ownership
plan guarantee (600) (1,000)
________ ________
Total Common Shareholders' Equity 175,096 165,706
Long-term debt, net of
current portion 134,615 135,265
_______ _______
Total Capitalization 309,711 300,971
_______ _______
Current Liabilities:
Notes payable to banks 40,700 39,000
Long-term debt, current portion 4,017 4,017
Accounts payable 18,526 22,741
Accrued interest 3,288 2,008
Accrued taxes 2,323 ---
Pipeline transition costs payable 2,778 3,538
Other 5,279 6,480
_______ _______
Total Current Liabilities 76,911 77,784
_______ _______
Deferred Gas Costs 2,268 ---
Accumulated Deferred Income Taxes 65,936 68,205
Accumulated Deferred Investment
Tax Credits 8,420 8,703
Reserve for Environmental
Cleanup Costs 35,000 35,000
Postretirement Benefits Costs 3,268 2,840
Other Deferred Credits 5,925 6,861
Commitments and Contingencies (Note 4) --- ---
______ ______
Total Capitalization and
Liabilities $507,439 $500,364
________ ________
________ ________
</TABLE>
The accompanying notes are an integral part of these financial
statements.
<PAGE>
<TABLE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<CAPTION> Nine Months Ended
June 30,
__________________
1998 1997
____ ____
(Thousands of Dollars)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $17,999 $21,915
Adjusted for the following:
Depreciation and amortization 14,727 13,011
Equity earnings from investments (9) (60)
Deferred income taxes, net 381 (1,166)
Deferred gas costs activity and
other non-cash items 6,717 10,469
Changes in working capital:
Accounts receivable and accrued
utility revenues (16,593) (8,859)
Accounts payable (4,215) (7,975)
Prepaid taxes 10,354 10,489
Other working capital
(excludes cash) 7,582 7,492
_______ _______
Net cash provided by
operating activities 36,943 45,316
_______ _______
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from common stock
issuance 1,630 87
Issuance of long-term debt -- 30,000
Retirement of long-term debt (650) (30,650)
Increase (decrease) in short-term
debt 1,700 (17,300)
Cash dividends (10,636) (10,294)
________ ________
Net cash used for financing
activities (7,956) (28,157)
________ ________
INVESTMENT IN PLANT AND OTHER:
Utility Plant (23,909) (19,958)
Other property and investments (4,191) (2,477)
_______ ________
Net cash used for plant and other (28,100) (22,435)
________ _______
Net Increase (Decrease)in Cash and Temporary
Cash Investments for the Period 887 (5,276)
Cash and Temporary Cash Investments,
beginning of period 2,239 7,853
________ ________
Cash and Temporary Cash Investments,
end of period $ 3,126 $ 2,577
________ _______
________ _______
Supplemental Cash Flow Information:
Cash paid during the period for:
Interest, net of amounts
capitalized $ 9,403 $ 9,793
Income taxes $ 9,406 $ 9,779
</TABLE>
The accompanying notes are an integral part of these financial
statements.
<PAGE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
1) GENERAL
The accompanying unaudited consolidated financial statements
should be read in conjunction with the Annual Report of
Yankee Energy System, Inc. (the Company) on Form 10-K for
the fiscal year ended September 30, 1997 (1997 Form 10-K),
including the audited financial statements (and notes
thereto) incorporated by reference therein and the Company's
quarterly reports on Form 10-Q for the quarters ended
December 31, 1997 and March 31, 1998. In the opinion of the
Company, the accompanying unaudited consolidated financial
statements contain all adjustments (consisting only of
normal recurring accruals) necessary to present fairly the
financial position of the Company as of June 30, 1998, and
its results of operations for the three and nine months
ended June 30, 1998 and 1997 and cash flows for the nine
months ended June 30, 1998 and 1997. The results of
operations for the three and nine months ended June 30, 1998
and 1997 are not necessarily indicative of the results
expected for a full year, due mainly to the highly seasonal
nature of the gas business.
2) ACCOUNTING FOR THE EFFECTS OF REGULATION
The Company's wholly-owned subsidiary, Yankee Gas Services
Company (Yankee Gas), is subject to regulation by the
Connecticut Department of Public Utility Control (DPUC).
The Company prepares its financial statements in accordance
with generally accepted accounting principles which includes
the provisions of Statement of Financial Accounting
Standards No. 71, "Accounting for the Effects of Certain
Types of Regulation," (FAS 71). FAS 71 requires a
cost-based, rate-regulated enterprise such as Yankee Gas to
reflect the impact of regulatory decisions in its financial
statements. The DPUC, through the rate regulation process,
can create regulatory assets that result when costs are
allowed for ratemaking purposes in a period other than the
period in which the costs would be charged to expense by an
unregulated enterprise.
Following the provisions of FAS 71, Yankee Gas has recorded
regulatory assets or liabilities as appropriate primarily
related to deferred gas costs, pipeline transition costs,
hardship customer receivables, environmental cleanup costs,
income taxes and postretirement benefits costs. The
specific amounts related to these items are disclosed in the
consolidated balance sheets. For additional information
about these items see the 1997 Form 10-K.
Yankee Gas continues to be subject to cost-of-service based
rate regulation by the DPUC. Based upon current regulation
and recent regulatory decisions, Yankee Gas believes that
its use of regulatory accounting is appropriate and in
accordance with the provisions of FAS 71.
3) EARNINGS PER SHARE
In fiscal 1998, the Company adopted Statement of Financial
Accounting Standards No. 128, "Earnings per Share" (FAS
128), which changes the method for computing earnings per
share and requires the Company to present basic and diluted
earnings per share. As a result, all prior periods have
been restated to reflect application of FAS 128. The effect
of this accounting change on previously reported earnings
per share data was immaterial.
4) COMMITMENTS AND CONTINGENCIES
The Company faces a number of contingencies which arise
during the normal course of business and which have been
discussed in Note 9 (entitled "Commitments and
Contingencies") to the Consolidated Financial Statements
included in the Company's 1997 Form 10-K Report. Except as
disclosed below, for the nine months ended June 30, 1998,
there have been no material changes in the matters discussed
in Note 9, to the Company's 1997 Form 10K Report.
Rate Review: On July 9, 1997, the DPUC issued its decision
in Docket No. 96-08-05. The DPUC decision, which is not a
rate order, called for a lowering of Yankee Gas' authorized
Return on Equity (ROE) from 12.43 percent to 11.15 percent.
The DPUC believed that lower current interest rates and
recently allowed rates of return for other Connecticut
utilities justified a lower ROE for Yankee Gas. On October
1, 1997, the DPUC approved a settlement whereby Yankee Gas
will credit approximately $3.2 million to firm sales
customers through the Purchased Gas Adjustment (PGA) during
fiscal year 1998. As of June 30, 1998 the entire $3.2
million has been accrued and approximately $2.9 million had
been credited to firm sales customers. The remaining $0.3
million has been included in the Company's annual deferred
fuel calculation and will be credited back to firm sales
customers beginning in October 1998. The settlement also
allows Yankee Gas to maintain its base rates until the end
of fiscal year 2000, resulting in an eight-year period in
which Yankee Gas will have gone without an increase in its
base rates.
Legal Issues: In November 1995, a purported class action
suit was filed against Yankee Gas and the state's two other
Local Distribution Companies (LDCs) by the Connecticut
Heating and Cooling Contractors' Association, Inc. et al,.
The action alleges that the LDCs unfairly competed with
licensed plumbers and contractors by performing customer
service work using customer service employees who did not
possess state trade licenses.
On January 27, 1998, the judge in this matter struck 31 out
of the plaintiffs' 32 counts contained in their complaint
leaving only one count alleging violations of Connecticut's
anti-trust statute. The judge also noted that although the
plaintiffs' action purports to be a class action, the
plaintiffs have failed to obtain certification as such.
Thereafter, the plaintiffs' filed another purported class
action against all three LDCs alleging unfair trade
practices and additional separate actions against each LDC
alleging various business torts. While the ultimate
resolution of the actions cannot be predicted, management
does not expect that they will have a material adverse
effect on the Company's consolidated results of operations
or financial position.
In fiscal 1996, Yankee Gas received revised property tax
bills from the City of Meriden, Connecticut (the City). The
City is asserting a claim for approximately $5.0 million for
back taxes and interest resulting from a retroactive
reassessment and revaluation of Yankee Gas' personal
property filings. The City did not locate or identify any
property which Yankee Gas omitted from its filings. The tax
bills reflect a reassessment of property at higher rates
than those previously accepted by the City. Yankee Gas is
currently in the process of litigating this retroactive
reassessment and the judge in this matter has recently
recommended that the parties attempt mediation/arbitration
of the issue. Although it is anticipated that the outcome
of this claim will not have a material impact on the
Company, based on the information available at this time,
management cannot predict what the ultimate impact might be.
Tax Audits: The Company is currently under audit by the
State of Connecticut regarding its Gross Earnings Tax
returns for the calendar years 1994, 1995, and 1996, by the
City of Naugatuck, Connecticut regarding its Personal
Property Tax Schedules for the years 1995, 1996, and 1997,
and by the Internal Revenue Service regarding its Federal
Income Tax Return for the calendar year 1995. All of these
audits are in preliminary stages, and therefore the Company
does not have sufficient information to determine the
amount, if any, of additional liability that may result from
these proceedings. However, the Company does not anticipate
any of these audits to have a material effect on its
financial position.
5) FORWARD-LOOKING STATEMENTS
This report may contain statements which, to the extent they
are not recitations of historical fact, constitute
"forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995 (Reform
Act). Such forward-looking statements involve risks and
uncertainties. Actual results may differ materially from
such forward-looking statements for reasons including, but
not limited to, changes to and developments in the
legislative and regulatory environments affecting the
Company's business, the impact of competitive products and
services, changes in the natural gas industry caused by
deregulation and other factors, and certain environmental
matters, as well as such other factors as set forth in the
Company's Form 10-K for the year ended September 30, 1997.
6) USE OF ESTIMATES
The preparation of financial statements in conformity with
generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results
could differ from those estimates.
7) RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform
with current year presentation.
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders of
Yankee Energy System, Inc.:
We have reviewed the accompanying consolidated balance sheet of
Yankee Energy System, Inc. (a Connecticut corporation) and
subsidiaries (the Company) as of June 30, 1998, and the related
consolidated statements of income for the three-month and
nine-month periods then ended, and cash flows for the nine-month
period then ended. These financial statements are the
responsibility of the Company's management.
We conducted our review in accordance with standards established
by the American Institute of Certified Public Accountants. A
review of interim financial information consists principally of
applying analytical procedures to financial data and making
inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion
regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material
modifications that should be made to the financial statements
referred to above for them to be in conformity with generally
accepted accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet of Yankee
Energy System, Inc. as of September 30, 1997 (not presented
herein), and, in our report dated November 7, 1997, we expressed
an unqualified opinion on that statement. In our opinion, the
information set forth in the accompanying consolidated balance
sheet as of September 30, 1997 is fairly stated, in all material
respects, in relation to the balance sheet from which it has been
derived.
Arthur Andersen LLP
Hartford, Connecticut
July 27, 1998
<PAGE>
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
RESULTS OF OPERATIONS
Consolidated net losses were $1.9 million for the three months
ended June 30, 1998 compared to $0.4 million for the same period
a year earlier. The corresponding basic and diluted losses per
share were $0.18 and $0.04 for the three months ended June 30,
1998 and 1997, respectively.
Earnings for the third quarter of fiscal year 1998 decreased
primarily due to weather that was 29 percent warmer than the same
period last year and 14 percent warmer than normal. The Company
estimates that warmer than normal weather reduced earnings by
$0.9 million or $0.09 per share in the current quarter as
compared with the prior year's quarter which experienced colder
than normal weather which impacted earnings by $1.5 million or
$0.15 per share. In addition, earnings decreased by
approximately $0.4 million or $0.04 per share for the three
months ended June 30, 1998, due to customer bill credits which
were the result of a rate review settlement reached with the DPUC
in October 1997. Yankee Energy Services Company (YESCo), the
Company's major non-regulated subsidiary, was positively affected
by the continued demand for HVAC and control services. These
positive effects were offset by delays in gaining regulatory
approvals for power projects.
For the nine months ended June 30, 1998 both the diluted and
basic earnings per share were $1.72 compared to $2.10 for the
nine months ended June 30, 1997. The decrease in earnings is due
to customer bill credits of approximately $1.9 million or $0.18
per share for the nine months ended June 30, 1998 and weather
that was 7 percent warmer than the same period last year and 10
percent warmer than normal. Management estimates that warmer
than normal weather reduced earnings by $4.5 million or $0.43 per
share for the nine months ended June 30, 1998, and by $0.9
million or $0.9 per share for the nine months ended June 30,
1997.
COMPARISON OF THE THIRD QUARTER OF FISCAL 1998 WITH THE THIRD
QUARTER OF FISCAL 1997
OPERATING REVENUES
Utility revenues decreased $12.0 million, or 21 percent, in the
third quarter of fiscal 1998 compared with the same period in the
prior fiscal year. This decrease was partially offset by a $6.9
million increase in operating revenues from nonutility
operations. The components of the change in operating revenues
are as follows:
<TABLE>
<CAPTION>
Three Months Ended
June 30, Increase/
1998 1997 (Decrease)
(In Thousands)
<S> <C> <C> <C>
Firm sales $ 36,208 $ 48,827 $(12,619)
Firm transportation 4,730 2,106 2,624
Interruptible/off-system sales 3,820 5,701 (1,881)
Interruptible transportation 1,143 989 154
Other utility revenues 382 666 (284)
_______ _______ _______
Total utility revenues 46,283 58,289 (12,006)
Nonutility revenues 8,044 1,146 6,898
_______ _______ _______
Total operating revenues $ 54,327 $ 59,435 $( 5,108)
_______ _______ _______
_______ _______ _______
</TABLE>
The corresponding changes in Yankee Gas' throughput were as
follows:
<TABLE>
<CAPTION>
Three Months Ended
June 30, Increase/
(Mcf - thousands) 1998 1997 (Decrease)
<S> <C> <C> <C>
Firm sales 3,908 5,567 (1,659)
Firm transportation 2,286 1,080 1,206
Interruptible/
off-system sales 1,078 1,459 (381)
Interruptible
transportation 1,578 1,907 (329)
_______ ______ _____
Total throughput 8,850 10,013 (1,163)
_______ ______ _____
_______ ______ _____
</TABLE>
The change in utility revenues was due primarily to weather that
was 29 percent warmer than the prior year and customer bill
credits of $0.7 million which are reflected in the third quarter
of fiscal 1998. In addition, an increasing number of commercial
and industrial customers continue to shift from sales gas to
transportation service resulting in a decrease in operating
revenue. Interruptible revenues have decreased primarily as a
result of lower oil prices in the current third quarter compared
to the same period in the prior year. The increase in nonutility
revenues in the third quarter of fiscal 1998 compared to the same
period in fiscal 1997 is primarily due to additional activity
resulting from acquisitions.
OPERATING EXPENSES
Total operating expenses decreased $3.0 million in the third
quarter of fiscal 1998 compared with the same period in the prior
year as a result of the following items:
- Cost of gas decreased $9.1 million, or 30 percent, for
the three months ended June 30, 1998 compared to the
three months ended June 30, 1997 due primarily to a 21
percent reduction in utility revenues.
- Cost of goods sold increased $5.8 million in the third
quarter of fiscal 1998 compared to the third quarter of
fiscal 1997 due to increased nonutility activity
resulting primarily from acquisitions.
- Operations and maintenance expenses increased $0.6
million, primarily due to increases in payroll, data
center operations and expenses related to
non-regulated subsidiary activity, partially offset by
a decrease in pension expense from the utility
subsidiary.
- Depreciation and amortization expense increased $0.3
million, primarily due to additions in plant, property
and investments.
- Taxes other than income taxes decreased $0.6 million,
primarily due to lower Connecticut gross earnings taxes
in fiscal 1998 as a result of the reduction in
revenues.
INTEREST EXPENSE
Interest expense increased $0.6 million primarily due to higher
short-term debt outstanding. This increase was partially offset
by a decrease in long-term debt interest expense, primarily due
to refinancing of long-term debt at more favorable rates.
INCOME TAXES
Federal and state income taxes decreased $1.4 million primarily
due to lower pre-tax income for the three months ended June 30,
1998 compared to the three months ended June 30, 1997.
COMPARISON OF THE FIRST NINE MONTHS OF FISCAL 1998 WITH THE FIRST
NINE MONTHS OF FISCAL 1997
OPERATING REVENUES
Utility revenues decreased $29.8 million, or 11 percent, in the
first nine months of fiscal 1998 compared with the same period in
the prior fiscal year. This decrease was offset by a $17.2
million increase in operating revenues from nonutility
operations. The components of the change in operating revenues
are as follows:
<TABLE>
<CAPTION>
Nine Months Ended
June 30, Increase/
1998 1997 (Decrease)
(In Thousands)
<S> <C> <C> <C>
Firm sales $211,565 $245,399 $(33,834)
Firm transportation 14,668 5,163 9,505
Interruptible/off-system sales 17,278 24,296 (7,018)
Interruptible transportation 2,631 1,984 647
Other utility revenues 3,584 2,648 936
_______ _______ _______
Total utility revenues 249,726 279,490 (29,764)
Nonutility revenues 20,389 3,194 17,195
_______ _______ _______
Total operating revenues $270,115 $282,684 $(12,569)
_______ _______ _______
_______ _______ _______
</TABLE>
<PAGE>
The corresponding changes in Yankee Gas' throughput were as
follows:
<TABLE>
<CAPTION>
Nine Months Ended
June 30, Increase/
(Mcf - thousands) 1998 1997 (Decrease)
<S> <C> <C> <C>
Firm sales 23,321 27,638 (4,317)
Firm transportation 7,384 2,948 4,436
Interruptible/
off-system sales 4,072 5,307 (1,235)
Interruptible
transportation 4,794 4,584 210
______ ______ ______
Total throughput 39,571 40,477 (906)
______ ______ ______
______ ______ ______
</TABLE>
The change in utility operating revenues primarily reflects
weather that was 7 percent warmer in fiscal 1998 and customer
bill credits of $3.2 million. In addition, an increasing number
of commercial and industrial customers continued to shift from
sales gas to transportation service resulting in a decrease in
operating revenue. Interruptible revenues have decreased
primarily as a result of lower oil prices in the nine months
ended June 30, 1998 compared to the same period in the prior
year. Offsetting these changes was an increase in nonutility
revenues resulting from acquisitions.
OPERATING EXPENSES
Total operating expenses decreased $8.0 million in the first nine
months of fiscal 1998 compared with the same period in the prior
year as a result of the following items:
- Cost of gas decreased $23.0 million, or 15 percent, for
the nine months ended June 30, 1998 compared to the
nine months ended June 30, 1997 due primarily to a 11
percent decrease in utility revenues.
- Cost of goods sold increased $13.8 million in the first
nine months of fiscal 1998 compared to the first nine
months of fiscal 1997 due to increased nonutility
activity.
- Operations and maintenance expenses increased $2.1
million, primarily due to increases in data center
operation expense and expenses related to nonutility
activity, offset by decreases in uncollectible,
maintenance and pension expenses, related to the
utility subsidiary.
- Depreciation and amortization expense increased $1.3
million, primarily due to additions in plant, property
and investments.
- Taxes other than income taxes decreased $2.1 million,
primarily due to lower Connecticut gross earnings taxes
in fiscal 1998 as a result of the reduction in
revenues.
INTEREST EXPENSE
Interest expense increased $0.9 million mainly due to higher
short-term debt outstanding. This was partially offset by a
decrease in interest expense associated with lower long-term debt
outstanding and lower interest rates.
INCOME TAXES
Federal and state income taxes decreased $1.7 million primarily
due to lower pre-tax income for the nine months ended June 30,
1998 compared to the nine months ended June 30, 1997.
LIQUIDITY AND CAPITAL RESOURCES
Cash and temporary cash investments at June 30, 1998 totaled $3.1
million. Principal sources of cash for the nine months ended
June 30, 1998 were from operations, common stock issued through
the dividend reinvestment plan, and short-term debt. These funds
were used primarily for changes in working capital, dividend
payments, and investment in plant, property and investments.
Expenditures for investment in plant, property and investments
totaled $28.1 million for the first nine months of fiscal 1998,
reflecting a $5.7 million increase over the first nine months of
fiscal 1997.
The seasonal nature of gas revenues, inventory purchases and
construction expenditures create a need for short-term borrowing
to supplement internally generated funds. As of June 30, 1998,
Yankee Gas had a revolving line of credit of $60 million with a
group of five banks. Under the agreement, funds may be borrowed
on a short-term revolving basis using either fixed or variable
rate loans. Yankee Gas also had uncommitted credit lines of $27
million as of June 30, 1998. At June 30, 1998, Yankee Gas had
$26.7 million outstanding under its agreements. Yankee Energy had
$14.0 million outstanding at June 30, 1998 under its $25 million
committed line of credit which is used to fund acquisitions and
other capital requirements of the unregulated businesses.
Management is currently contemplating new long-term debt
financing in fiscal 1999 for the purposes of replacing a portion
of the existing short-term debt outstanding and to refinance
Series A, Tranche D which becomes redeemable by the Company in
August 1999.
The long-term credit needs of Yankee Gas are being met by a first
mortgage bond indenture which provides for the issuance of bonds
from time to time, subject to certain issuance tests. At June
30, 1998, indenture requirements, including the required coverage
ratio, would allow for the issuance of an additional $210 million
of bonds at an assumed interest rate of 6.6 percent.
Yankee Gas has entered into fixed revenue-rate contracts with two
customers for the delivery of natural gas. Yankee Gas has hedged
these commitments with the purchase of natural gas swaps. In
order to satisfy certain provisions of the arrangement, Yankee
Gas has provided a letter of credit for $1.5 million, as of June
30, 1998. The Company's results of operations are unaffected by
the hedge transaction given that it passes through the cost of
the hedge to either the commodity trading firm or its customer
depending on the difference in the fixed and floating prices for
gas.
Yankee Gas expects to incur expenditures for coal tar remediation
efforts, which is more fully discussed in Note 9 to the
Consolidated Financial Statements, included in the Company's 1997
Form 10-K Report. Yankee Gas expects to finance such
expenditures through a combination of internally generated funds,
short-term debt, and through insurance settlements, which have
totaled $9.6 million as of June 30, 1998.
The Company is currently implementing new systems and enhancing
existing systems to address year 2000 issues. As part of that
process, a detailed inventory of all hardware and software
currently utilized by the Company has been prepared and a
timetable has been established to commence testing of all
applications. Management believes that all system changes will
be installed and tested prior to the manifestation of year 2000
issues. However, if such changes are not completed timely, the
year 2000 issue may have a material impact on the operations of
the Company. Currently, all such charges associated with system
enhancements have and will continue to be expensed and the costs
of new systems will be capitalized as appropriate and are not
expected to be material.
One of Yankee Gas' largest customers, the Foxwoods Hotel and
Casino (Foxwoods), operated by the Mashantucket Pequot Indian
Tribe, generates approximately $650,000 in annual margin. The
City of Norwich, Connecticut has begun construction of a pipeline
extending from their distribution system to Foxwoods. This will
provide an alternative source of supply to the Mashantucket
Pequots. Yankee Gas believes that it will have the opportunity
to compete to retain gas throughput to Foxwoods.
RM Services (RMS), a wholly-owned subsidiary of the Company,
recently formed an alliance with Dun & Bradstreet Receivable
Management Services (D&B). The alliance allows RMS to extend its
collection activities in the transitioning energy,
telecommunication and other industries by supporting the
extensive network of D&B in its pursuit of additional consumer
business. RMS has extensive experience and specialized skills in
residential utility collection practices and computer-aided
calling technology.
RECENT DEVELOPMENTS
On May 6, 1998, the Company filed an application with the DPUC to
discontinue on demand, non-contract service work. Hearings have
been held on this matter and the Company is presently awaiting a
decision by the DPUC. Regardless of the outcome, this change is
not expected to have a material impact on the Company's financial
condition.
The Company's wholly-owned, nonregulated subsidiary, Yankee
Financial Services Company, has recently sold its receivable
portfolio to an independent party and recognized a small gain as
a result of the sale. The transaction was recorded as a sale for
financial reporting purposes.
ITEM 3. Quantitative and Qualitative Disclosures About Market
Risk
Not applicable.
<PAGE>
PART II OTHER INFORMATION
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
Exhibit 10.1 - Credit Agreement dated as of June 11,
1998 by and among Yankee Energy System, Inc., the Lenders
identified therein, and the Bank of New York as administrative
agent for each of the Lenders.
Exhibit 27 - Financial Data Schedule.
b. Reports on Form 8-K
None.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
YANKEE ENERGY SYSTEM, INC.
___________________________
(Registrant)
Date: August 12, 1998 /s/ James M. Sepanski
____________________________
James M. Sepanski
Vice President,
Chief Financial Officer
and Treasurer
Date: August 12, 1998 /s/ Nicholas A. Rinaldi
_____________________________
Nicholas A. Rinaldi
Controller
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-END> JUN-30-1998
<CASH> 3,126
<SECURITIES> 0
<RECEIVABLES> 52,648
<ALLOWANCES> (7,692)
<INVENTORY> 3,699
<CURRENT-ASSETS> 63,641
<PP&E> 565,604
<DEPRECIATION> (204,103)
<TOTAL-ASSETS> 507,439
<CURRENT-LIABILITIES> 76,911
<BONDS> 138,632
0
0
<COMMON> 52,603
<OTHER-SE> 122,493
<TOTAL-LIABILITY-AND-EQUITY> 507,439
<SALES> 270,726
<TOTAL-REVENUES> 270,726
<CGS> 144,781
<TOTAL-COSTS> 144,781
<OTHER-EXPENSES> 80,705
<LOSS-PROVISION> 3,423
<INTEREST-EXPENSE> 10,547
<INCOME-PRETAX> 34,082
<INCOME-TAX> 16,083
<INCOME-CONTINUING> 17,999
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 17,999
<EPS-PRIMARY> 1.72
<EPS-DILUTED> 1.72
</TABLE>
<PAGE>
EXHIBIT 10.1
CREDIT AGREEMENT
dated as of June 11, 1998,
by and among
YANKEE ENERGY SYSTEM, INC.
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION.................1
1.1. Definitions......................................1
1.2. Accounting Terms................................10
1.3. Rules of Interpretation.........................10
2. AMOUNT AND TERMS OF REVOLVING LOANS....................11
2.1. Revolving Loans.................................11
2.2. Procedure for Borrowing.........................11
2.3. Termination or Reduction of Revolving
Commitments.....................................12
2.4. Prepayments of the Revolving Loans..............12
2.5. Payments; Pro Rata Treatment and Sharing
of Set-offs.....................................13
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.................15
3.1. Interest Rate and Payment Dates.................15
3.2. Fees............................................16
3.3. Conversions.....................................16
3.4. Concerning Interest Periods.....................17
3.5. Funding Loss....................................17
3.6. Increased Costs; Illegality, etc................18
3.7. Taxes...........................................19
3.8. Mitigation; Replacement Lenders.................20
3.9. Register........................................21
4. REPRESENTATIONS AND WARRANTIES.........................21
4.1. Organization and Power..........................21
4.2. Authorization; Enforceability...................22
4.3. Approvals; No Conflicts.........................22
4.4. Financial Condition; No Material Adverse Change.22
4.5. Properties......................................22
4.6. Litigation......................................23
4.7. Compliance with Laws and Agreements; No Default.23
4.8. Investment Companies and other Regulated
Entities........................................23
4.9. Federal Reserve Regulations.....................23
4.10. ERISA..........................................23
4.11. Taxes..........................................24
5. CONDITIONS PRECEDENT TO EFFECTIVENESS AND
FIRST REVOLVING LOANS..................................24
5.1. Evidence of Action..............................24
5.2. This Agreement..................................24
5.3. Notes...........................................24
5.4. Opinion of Counsel..............................25
5.5. Approvals and Consents..........................25
5.6. Repayment of Bank Debt..........................25
5.7. Fees............................................25
5.8. Other Documents.................................25
6. CONDITIONS PRECEDENT TO EACH REVOLVING LOAN............25
6.1. Compliance......................................25
6.2. Borrowing Request...............................26
6.3. Legal Impediments...............................26
7. AFFIRMATIVE COVENANTS..................................26
7.1. Financial Statements and Information............26
7.2. Notice of Material Events.......................27
7.3. Existence; Conduct of Business..................27
7.4. Payment of Obligations..........................27
7.5. Maintenance of Properties.......................28
7.6. Books and Records: Inspection Rights............28
7.7. Compliance with Laws............................28
7.8. Maintenance of Licenses.........................28
8. NEGATIVE COVENANTS.....................................28
8.1. Fundamental Changes.............................28
8.2. Use of Proceeds.................................29
8.3. Financial Covenants.............................29
9. DEFAULTS...............................................29
9.1. Events of Default...............................29
9.2. Contract Remedies...............................31
10. THE ADMINISTRATIVE AGENT..............................32
10.1. Appointment....................................32
10.2. Individual Capacity............................32
10.3. Exculpatory Provisions.........................32
10.4. Reliance by Administrative Agent...............33
10.5. Delegation.....................................33
10.6. Resignation; Successor Administrative Agent....33
10.7. Non-Reliance on Administrative Agent
and Other Lenders..............................34
11. OTHER PROVISIONS......................................34
11.1. Amendments and Waivers.........................34
11.2. Notices........................................35
11.3. Survival.......................................36
11.4. Expenses; Indemnity............................36
11.5. Successors and Assigns.........................37
11.6. Counterparts; Integration......................39
11.7. Severability...................................39
11.8. GOVERNING LAW..................................39
11.9. Jurisdiction; Service of Process...............39
11.10. WAIVER OF TRIAL BY JURY.......................40
EXHIBITS
A. Form of Note
B. Form of Borrowing Request
C. Form of Notice of Conversion
D. Form of Assignment and Acceptance Agreement
E. Form of Opinion of Counsel
<PAGE>
CREDIT AGREEMENT, dated as of June 11, 1998, by and among YANKEE
ENERGY SYSTEM, INC., a Connecticut corporation (the Borrower,),
the several banks and other parties from time to time parties
hereto (the"Lenders"), and THE BANK OF NEW YORK (BNY,), as
administrative agent for each of the Lenders hereunder (in such
capacity, the Administrative Agent,).
1. DEFINITIONS AND RULES OF INTERPRETATION
1.1. Definitions
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the
following meanings:
ABR ADVANCES means the Revolving Loans (or any portions thereof),
at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Alternate Base
Rate.
Advance means an ABR Advance or a Eurodollar Advance.
AFFILIATE means as to any Person any other Person at the time
directly or indirectly controlling, controlled by or under direct
or indirect common control with such Person. For purposes of this
definition, CONTROL of a Person means the power, directly or
indirectly, either to (i) vote 5% or more of the securities
having ordinary voting power for the election of directors of
such Person or (ii) direct or cause the direction of the
management and policies of such Person, whether by contract or
otherwise.
AGGREGATE REVOLVING COMMITMENT means, at any time, the sum at
such time of the Revolving Commitments of all Lenders.
AGGREGATE REVOLVING EXPOSURE means, at any time, the sum at such
time of the outstanding principal balance of the Revolving Loans
of all Lenders.
AGREEMENT means this Credit Agreement.
ALTERNATE BASE RATE means on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Effective Rate
in effect on such date plus 1/2 of 1% or (ii) the Prime Rate in
effect on such date.
ANNUALIZED DIVIDENDS means, at any date of determination, an
amount equal to (i) the amount of dividends paid to the Borrower
by Yankee Gas Services Company during the fiscal quarter ending
on such date of determination or, if such date of determination
is not a fiscal quarter ending date, the immediately preceding
fiscal quarter, multiplied by (ii) four.
APPLICABLE MARGIN means, with respect to Eurodollar Advances,
0.30%.
ASSIGNMENT AND ACCEPTANCE AGREEMENT means an assignment and
acceptance agreement substantially in the form of Exhibit D.
BOARD OF GOVERNORS means the Board of Governors of the Federal
Reserve System of the United States.
BORROWING DATE means any Business Day on which the Lenders make
Revolving Loans.
BORROWING REQUEST means a request for Revolving Loans
substantially in the form of Exhibit B.
BUSINESS DAY means any day other than a Saturday, a Sunday or a
day on which commercial banks located in New York City are
authorized or required by law or other governmental action to be
closed, provided that when used in connection with a Eurodollar
Advance, the term shall also exclude any day on which banks are
not open for dealings in dollar deposits in the London interbank
market.
CAPITAL LEASE OBLIGATIONS means, with respect to any Person, the
obligations of such Person to pay rent or other amounts under any
lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, (a) which
obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and
the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP, or (b) which lease
does not qualify as a Tax Operating Lease. For purposes of this
definition, TAX OPERATING LEASE means any SYNTHETIC LEASE, and
any other lease (i) that is treated as a lease for purposes of
the Code, and (ii) the lessor under which is treated as the owner
of the assets subject to the lease for purposes of the Code.
CAPITAL STOCK means, as to any Person, all shares, interests,
partnership interests, limited liability company interests,
participations, rights in or other equivalents (however
designated) of such Person's equity (however designated) and any
rights, warrants or options exchangeable for or convertible into
such shares, interests, participations, rights or other equity.
CHANGE IN LAW means (i) the adoption of any law, rule or
regulation after the Effective Date, (ii) the issuance or
promulgation after the Effective Date of any directive, guideline
or request from any Governmental Authority (whether or not having
the force of law), or (iii) any change after the Effective Date
in the interpretation of any existing law, rule, regulation,
directive, guideline or request by any Governmental Authority
charged with the administration thereof.
CODE means the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the
rules and regulations issued thereunder, as from time to time in
effect.
COMMON EQUITY means the sum of (i) the aggregate par value of
outstanding common stock issued by the Borrower, (ii) capital
contributions from Persons to provide funds to finance the
business of the Borrower, (iii) other capital paid-in to provide
funds to finance the business of the Borrower, (iv) plus any
earned surplus or less any deficit, attributable to the Borrower.
COMPLIANCE CERTIFICATE has the meaning set forth in Section
7.1(c).
CONSOLIDATED CAPITALIZATION means at any time an amount equal to
the sum of (a) Consolidated Stockholders' Equity and (b)
Consolidated Funded Debt, in each case as of such time.
CONSOLIDATED DEBT means at any time the consolidated Debt of the
Borrower and its consolidated Subsidiaries, determined in
accordance with GAAP.
CONSOLIDATED FUNDED DEBT means at any time Consolidated Debt that
is, at such time, Funded Debt.
CONSOLIDATED STOCKHOLDERS' EQUITY means at any time the
consolidated stockholders' equity of the Borrower and its
consolidated Subsidiaries less their consolidated Mandatorily
Redeemable Obligations (except to the extent deducted in
determining such consolidated stockholders' equity), in each case
as of such time.
CONVERSION DATE means the date on which: (i) a Eurodollar Advance
is converted to an ABR Advance, (ii) an ABR Advance is converted
to a Eurodollar Advance or (iii) a Eurodollar Advance is
converted to, or continued as, a new Eurodollar Advance.
DEBT means, as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for
borrowed money, (ii) indebtedness in respect of the deferred
purchase price of property (other than trade payables incurred in
the ordinary course of business), (iii) indebtedness evidenced by
notes, bonds, debentures or similar instruments, (iv) obligations
with respect to any conditional sale or title retention
agreement, (v) indebtedness arising under acceptance facilities
and the amount available to be drawn under all letters of credit
issued for the account of such Person and, without duplication,
all drafts drawn thereunder to the extent such Person shall not
have reimbursed the issuer in respect of the issuer's payment
thereof, (vi) liabilities secured by (or for which the holder of
such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned by such Person (other than
carriers', warehousemen's, mechanics', repairmen's or other like
non-consensual statutory Liens arising in the ordinary course of
business), even though such Person has not assumed or otherwise
become liable for the payment thereof, (vii) Capital Lease
Obligations, and (viii) all Guarantees by such Person of Debt of
others. The Debt of any Person shall include the Debt of any
other entity (including any partnership in which such Person is a
general partner) to the extent such Person is liable therefor as
a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of
such Debt provide that such Person is not liable therefor.
DEFAULT means any event or condition which constitutes an Event
of Default or which, with the giving of notice, the lapse of
time, or any other condition, would, unless cured or waived,
become an Event of Default.
DOLLARS and "$" mean lawful currency of the United States.
EFFECTIVE DATE means the date on which the conditions set forth
in Article 5 have been satisfied (or waived in accordance with
Section 11.1).
ELIGIBLE INSTITUTION means (i) any commercial bank, trust
company, banking association, insurance company, financial
institution, mutual fund or pension fund acceptable to the
Administrative Agent, (ii) any Lender or any Affiliate or
Subsidiary thereof, or (iii) any commercial bank, trust company
or banking association having undivided capital surplus and
retained earnings exceeding $100,000,000.
ENVIRONMENTAL LAWS means any laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management,
release or threatened release of any hazardous or toxic
substance, material, waste or other pollutants (including
petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes, radioactive materials or any other
regulated substance or waste) or to health and safety matters.
ERISA means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations
issued thereunder, as from time to time in effect.
ERISA AFFILIATE means any Person which is a member of any group
of organizations within the meaning of Sections 414(b) or (c) of
the Code (or, solely for purposes of potential liability under
Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section
412(n) of the Code, Sections 414(m) or (o) of the Code) of which
the Borrower or any Subsidiary is a member.
ERISA EVENT means (i) a "reportable event", as defined in Section
4043 of ERISA with respect to a Pension Plan (other than an event
for which the 30-day notice period is waived), (ii) the existence
with respect to any Pension Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302
of ERISA), whether or not waived; (iii) the filing pursuant to
Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with
respect to any Pension Plan; (iv) the incurrence by the Borrower
or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Pension Plan; (v)
the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to
terminate any Pension Plan or Pension Plans or to appoint a
trustee to administer any Pension Plan; (vi) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Pension
Plan or Multiemployer Plan; or (vii) the receipt by the Borrower
or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or
a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
EURODOLLAR ADVANCES means, collectively, the Revolving Loans (or
any portions thereof), at such time as they (or such portions)
are made and/or being maintained at a rate of interest based upon
the Eurodollar Rate.
EURODOLLAR RATE means, with respect each Eurodollar Advance, a
rate of interest per annum, as determined by the Administrative
Agent,obtained by dividing (and then rounding to the nearest
1/100 of 1% or, if there is no nearest 1/100 of 1%, then to the
next higher 1/100 of 1%):
(a) the rate per annum for deposits having a maturity most nearly
comparable to the Interest Period in respect of such Eurodollar
Advance in Dollars which appears on page 3750 of the Dow Jones
Telerate Service (or any successor page thereof, or if such a
rate does not appear on page 3750 of the Dow Jones Telerate
Service (or such successor page), on any recognized substitute
for the Dow Jones Telerate Service providing rate quotations
comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time to
time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period, or,
if such rate does not appear on such Page 3750 (or on any such
successor or substitute page, or any successor to or substitute
for such Dow Jones Telerate Service) at such time for any reason,
then the rate, as determined by the Administrative Agent, equal
to the rate, as reported by BNY to the Administrative Agent,
quoted by BNY to leading banks in the London interbank eurodollar
market as the rate at which BNY is offering dollar deposits in an
amount approximately equal to its Revolving Percentage of such
Eurodollar Advance and having a period to maturity approximately
equal to the Interest Period applicable to such Eurodollar
Advance at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then stated
maximum rates during such Interest Period of all reserve
requirements (including marginal, emergency, supplemental and
special reserves), expressed as a decimal, established by the
Board of Governors and any other banking authority to which BNY
and other major money center banks chartered under the laws of
the United States or any State thereof are subject, in respect of
eurocurrency funding (currently referred to as "eurocurrency
liabilities" in Regulation D) without benefit of credit for
proration, exceptions or offsets which may be available from
time to time to BNY.
EVENT OF DEFAULT has the meaning set forth in Section 9.1.
FACILITY FEE has the meaning set forth in Section 3.2(a).
FEDERAL FUNDS EFFECTIVE RATE means, for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the
next higher 1/100 of 1%) equal to the weighted average of the
rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day, provided that (i) if the
day for which such rate is to be determined is not a Business
Day, the Federal Funds Effective Rate for such day shall be such
rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (ii) if
such rate is not so published for any day, the Federal Funds
Effective Rate for such day shall be the average of the
quotations for such day on such transactions received by BNY
as determined by BNY and reported to the Administrative Agent.
FINANCIAL OFFICER means, as to any Person, the chief financial
officer of such Person or such other officer as shall be
satisfactory to the Administrative Agent.
FUNDED DEBT means, with respect to any Person, Debt of such
Person having a final maturity date more than one year after the
date of issuance, incurrence or assumption thereof by such
Person, including the current portion of any such Debt and
including Debt that is renewable or extendible, at the option of
the obliger, to a date more than one year after the date of
issuance, incurrence or assumption thereof.
GAAP means generally accepted accounting principles as in effect
from time to time in the United States.
GOVERNMENTAL AUTHORITY means any foreign, federal, state,
municipal or other government, or any department, commission,
board, bureau, agency, public authority or instrumentality
thereof, or any court or arbitrator.
GUARANTEE of or by any Person means any obligation, contingent or
otherwise, of the guarantor guaranteeing or in effect
guaranteeing any return on any investment made by another Person,
or any Debt, lease, dividend or other obligation of any other
Person in any manner, whether directly or indirectly.
INDEMNIFIED TAX means as to any Person, any Tax, except any
income tax or franchise tax imposed on all or part of the net
income or net profits of such Person and any interest, fees or
penalties for late payment thereof imposed on such Person.
INTEREST PERIOD means, as to each Eurodollar Advance, the period
commencing on, as the case may be, the Borrowing Date or
Conversion Date with respect thereto and ending one, two, three
or six months thereafter, as selected by the Borrower in its
Borrowing Request or Notice of Conversion.
LIEN means any mortgage, pledge, hypothecation, assignment,
encumbrance, lien (statutory or other), or other security
agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement
and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
LOAN DOCUMENTS means, collectively, this Agreement, the Notes,
and all other agreements, instruments and documents executed or
delivered in connection herewith.
MANAGING PERSON means, with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability
company, its board of control, managing member or members, (iii)
a limited partnership, its general partner, (iv) a general
partnership or a limited liability partnership, its managing
partner or executive committee or (v) any other Person, the
managing body thereof or other Person analogous to the foregoing.
MANDATORILY REDEEMABLE OBLIGATION means, as applied to a Person,
an obligation of such Person to the extent that it is redeemable,
payable or required to be purchased or otherwise retired or
extinguished (a) at a fixed or determinable date, whether by
operation of a sinking fund or otherwise, (b) at the option of
any person other than such person or (c) upon the occurrence of a
condition not solely within the control of such Person, such as a
redemption required to be made out of future earnings.
MARGIN STOCK has the meaning set forth in Regulation U of the
Board of Governors.
MATERIAL ADVERSE means, with respect to any change or effect, a
material adverse change in, or effect on, as the case may be, (i)
the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries
taken as a whole, (ii) the ability of the Borrower to perform its
obligations under the Loan Documents, (iii) the rights of, or
benefits available to, the Administrative Agent and the Lenders
under the Loan Documents, or (iv) the legality or enforceability
of any Loan Document.
MINIMUM AMOUNT means in respect of both ABR Advances and
Eurodollar Advances $500,000 or a whole multiple of $100,000 in
excess thereof.
MULTIEMPLOYER PLAN means a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
NOTES means with respect to each Lender in respect of such
Lender's Revolving Loans, a promissory note, substantially in the
form of Exhibit A, payable to the order of such Lender, each such
promissory note having been made by the Borrower and dated the
Effective Date, including all replacements thereof and
substitutions therefor.
NOTICE OF CONVERSION has the meaning set forth in Section 3.3(a).
OBLIGATIONS means, collectively, all of the obligations and
liabilities of the Borrower under the Loan Documents, in each
case whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired, and whether
before or after the occurrence of any Event of Default under
Section 9.1(g) or (h) and including any obligation or liability
in respect of any breach of any representation or warranty and
all post-petition interest and funding losses, whether or not
allowed as a claim in any proceeding arising in connection with
such an event.
ORGANIZATIONAL DOCUMENTS means as to any Person which is (i) a
corporation, the certificate or articles of incorporation and
by-laws of such Person, (ii) a limited liability company, the
limited liability company agreement or similar agreement of such
Person, (iii) a partnership, the partnership agreement or similar
agreement of such Person, or (iv) any other form of entity or
organization, the organizational documents analogous to the
foregoing.
OTHER TAXES means any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or
from the execution, delivery, registration or enforcement of, or
any amendment, supplement or modification of, or any waiver or
consent under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents.
PAYMENT OFFICE means the office of the Administrative Agent set
forth in Section 11.2(b).
PBGC means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental
Authority succeeding to the functions thereof.
PENSION PLAN means, at any date of determination, any employee
pension benefit plan (other than a Multiemployer Plan), the
funding requirements of which (under Section 302 of ERISA or
Section 412 of the Code) are, or at any time within the six years
immediately preceding such date, were in whole or in part, the
responsibility of the Borrower or any ERISA Affiliate.
PERSON means a natural person, firm, partnership, limited
liability company, joint venture, corporation, association,
business enterprise, joint stock company, unincorporated
association, trust, Governmental Authority or any other entity,
whether acting in an individual, fiduciary, or other capacity,
and for the purpose of the definition of ERISA AFFILIATE a trade
or business.
PRIME RATE means the rate of interest per annum publicly
announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically
(without notice) on the effective date of any change in such
publicly announced rate.
RELATED PARTIES means, with respect to any Person, such Person's
Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
REQUIRED LENDERS means, at any time, one or more Lenders having
unused Revolving Commitments and Revolving Exposures greater than
or equal to 51% of the sum of the unused Revolving Commitments
and the Aggregate Revolving Exposure.
REVOLVING COMMITMENT means, in respect of any Lender, the maximum
amount of such Lender's Revolving Exposure as set forth on the
signature page of such Lender adjacent to the heading REVOLVING
COMMITMENT or in an Assignment and Acceptance Agreement or other
document pursuant to which it became a Lender, as such amount may
be adjusted from time to time in accordance herewith.
REVOLVING EXPOSURE means, with respect to any Lender as of any
date, the sum as of such date of the outstanding principal
balance of such Lender's Revolving Loans.
REVOLVING LOAN and REVOLVING LOANS have the meaning set forth in
Section 2.1.
REVOLVING LOAN MATURITY DATE means the 364th day from the date of
this Agreement, or such earlier date on which the Notes shall
become due and payable, whether by acceleration or otherwise.
REVOLVING PERCENTAGE means, as of any date and with respect to
each Lender, the percentage equal to a fraction (i) the numerator
of which is the Revolving Commitment of such Lender on such date
(or, if there are no Revolving Commitments on such date, on the
last date upon which one or more Revolving Commitments were in
effect), and (ii) the denominator of which is sum of the
Revolving Commitments of all Lenders on such date (or, if there
are no Revolving Commitments on such date, on the last date upon
which one or more Revolving Commitments were in effect).
SEC means the United States Securities and Exchange Commission or
any successor agency.
SEC REPORTS means the Borrower's periodic and current reports
pursuant to the Securities Exchange Act, filed with the SEC prior
to the Effective Date.
SECURITIES EXCHANGE ACT means the Securities Exchange Act of
1934, as amended from time to time.
SPECIAL COUNSEL means Emmet, Marvin & Martin, LLP, as, or such
other counsel selected by the Administrative Agent as, special
counsel to the Administrative Agent hereunder.
SUBSIDIARY means, with respect to any Person (the parent) at any
date, any other Person (i) the accounts of which would be
consolidated with those of the parent in the parent's
consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, (ii) of
which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the
general partnership interests or more than 50% of the profits or
losses of which are, as of such date, owned, controlled or held
by the parent or one or more subsidiaries of the parent. Unless
otherwise qualified, all references to SUBSIDIARY or to
SUBSIDIARIES in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
TAX means any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called,
by a Governmental Authority, on whomsoever and wherever imposed,
levied, collected, withheld or assessed.
TERMINATING BANK DEBT has the meaning set forth in Section 5.6.
TOTAL PERCENTAGE means, as of any date and with respect to each
Lender, the percentage equal to a fraction (i) the numerator of
which is the sum of the Revolving Commitment of such Lender on
such date (or, if there are no Revolving Commitments on such
date, such Lender's Revolving Exposure on such date), and (ii)
the denominator of which is the Aggregate Revolving Commitment on
such date (or, if there are no Revolving Commitments on such
date, the Aggregate Revolving Exposure on such date).
WHOLLY OWNED means, with respect to any Subsidiary of any Person,
100% of the outstanding Capital Stock of such Subsidiary is
owned, directly or indirectly, by such Person.
WITHDRAWAL LIABILITY means, with respect to any Person, liability
of such Person to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
1.2. Accounting Terms
As used in the Loan Documents and in any certificate, opinion or
other document made or delivered pursuant thereto, accounting
terms not defined in Section 1.1, and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP. If any change in
GAAP would affect the computation of any financial ratio or
requirement set forth in this Agreement, the Administrative Agent
and the Borrower shall negotiate in good faith to amend such
ratio or requirement to reflect such change in GAAP (subject to
the approval of the Required Lenders), provided that, until so
amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP prior to such change and (ii)
the Borrower shall provide to the Administrative Agent and the
Lenders financial statements and other documents required under
this Agreement (or such other items as the Administrative Agent
may reasonably request) setting forth a reconciliation between
calculations of such ratio or requirement before and after giving
effect to such change.
1.3. Rules of Interpretation
(a) Unless expressly provided in a Loan Document to the contrary,
(i)the words "hereof," "herein," "hereto" and "hereunder" and
similar words when used in each Loan Document shall refer to such
Loan Document as a whole and not to any particular provision
thereof, (ii) article, section, subsection, schedule and exhibit
references contained therein shall refer to article, section,
subsection, schedule and exhibit thereof or thereto, (iii) the
words "include" and "including" are not words of limitation, (iv)
any definition of, or reference to, any agreement, instrument,
certificate or other document herein shall be construed as
referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, (v)
any reference herein to any Person shall be construed to include
such Person's successors and assigns, (vi) the words "asset" and
"property" shall be construed to have the same meaning and to
refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract
rights, (vii) words in the singular number include the plural,
and words used therein in the plural include the singular, (viii)
any reference to a time shall refer to such time in New York
City, (ix) in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from
and including" and the words "to" and "until" each means "to but
excluding," and (x) references therein to a fiscal period shall
refer to that fiscal period of the Borrower.
(b) Article and Section headings have been inserted in the Loan
Documents for convenience only and shall not be construed to be a
part thereof.
2. AMOUNT AND TERMS OF REVOLVING LOANS
2.1. Revolving Loans
Subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans in Dollars (each a
"Revolving Loan" and, as the context may require, collectively
with all other Revolving Loans of such Lender and with the
Revolving Loans of all other Lenders, the "Revolving Loans") to
the Borrower from time to time on any Business Day during the
period from the Effective Date to the Business Day next preceding
the Revolving Loan Maturity Date, provided that after giving
effect thereto (i) such Lender's Revolving Exposure would not
exceed such Lender's Revolving Commitment, and (ii) the Aggregate
Revolving Exposure would not exceed the Aggregate Revolving
Commitment. During such period, the Borrower may borrow, prepay
in whole or in part and reborrow under the Revolving Commitments,
all in accordance with the terms and conditions of this
Agreement. The outstanding principal balance of each Revolving
Loan shall be due and payable on the Revolving Loan Maturity
Date.
2.2. Procedure for Borrowing
(a) Borrowing Request. To request a Revolving Loan, the Borrower
shall notify the Administrative Agent by the delivery of a
Borrowing Request, which shall be sent by facsimile and shall be
irrevocable (confirmed promptly, and in any event within five
Business Days, by the delivery to the Administrative Agent of a
Borrowing Request manually signed by the Borrower), no later than
11:00 a.m., three Business Days prior to the requested Borrowing
Date, in the case of Eurodollar Advances, and 11:00 a.m. on the
requested Borrowing Date, in the case of ABR Advances, specifying
(A) the aggregate principal amount to be borrowed, (B) the
requested Borrowing Date, (c) whether such borrowing is to
consist of one or more Eurodollar Advances, ABR Advances, or a
combination thereof and (D) if the Revolving Loan is to consist
of one or more Eurodollar Advances, the amount and length of the
Interest Period for each Eurodollar Advance. The amount of each
(i) Eurodollar Advance to be made on a Borrowing Date, when
aggregated with all amounts to be converted to, or continued as,
a Eurodollar Advance on such date and having the same Interest
Period as such first Eurodollar Advance, shall equal the Minimum
Amount and (ii) each ABR Advance made on each Borrowing Date
shall equal the Minimum Amount or, if less, the unused portion of
the Aggregate Revolving Commitment.
(b) Funding by Lenders. Upon receipt of each Borrowing Request,
the Administrative Agent shall promptly notify each Lender
thereof. Subject to its receipt of the notice referred to in the
preceding sentence, each Lender will make the amount of its
Revolving Percentage of the requested Revolving Loans available
to the Administrative Agent for the account of the Borrower at
the Payment Office not later than 12:00 noon on the relevant
Borrowing Date requested by the Borrower, in funds immediately
available to the Administrative Agent at such office. The
amounts so made available to the Administrative Agent on such
Borrowing Date will then, subject to the satisfaction of the
terms and conditions of this Agreement, be made available on such
date to the Borrower by the Administrative Agent at the Payment
Office by crediting the account of the Borrower on the books of
the Administrative Agent at such office with the aggregate of
said amounts (in like funds) received by the Administrative
Agent.
(c) Failure to Fund. Unless the Administrative Agent shall have
received notice prior to a proposed Borrowing Date (or, in the
case of a borrowing of ABR Advances, prior to 12:00 noon on such
Borrowing Date) from a Lender (by telephone or otherwise, such
notice to be promptly confirmed by facsimile or other writing)
that such Lender will not make available to the Administrative
Agent such Lender's share of the requested Revolving Loans, the
Administrative Agent may assume that such Lender has made such
share available to the Administrative Agent on the Borrowing Date
in accordance with this Section and, in reliance upon such
assumption, make available to the Borrower on such Borrowing
Date a corresponding amount. If and to the extent such Lender
shall not have so made such share available to the Administrative
Agent, such Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding
amount (to the extent not previously paid by the other), together
with interest thereon for each day from the date such amount is
made available to the Borrower to the date such amount is paid to
the Administrative Agent, at a rate per annum equal to, in the
case of the Borrower, the interest rate otherwise applicable to
such Revolving Loan, and, in the case of such Lender, at a rate
of interest per annum equal to the Federal Funds Effective Rate.
If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute
such Lender's Revolving Loan as part of the relevant borrowing
for purposes of this Agreement. The failure of any Lender to
provide such Lender's share of the requested Loans shall not
relieve any other Lender of its obligations hereunder to provide
its share of the requested Revolving Loans.
2.3. Termination or Reduction of Revolving Commitments
(a) Voluntary Termination or Reductions. The Borrower may, upon
at least three Business Days' prior written notice to the
Administrative Agent, (A) at any time when the Aggregate
Revolving Exposure shall be zero, terminate all of the Revolving
Commitments, and (B) at any time and from time to time when the
Aggregate Revolving Commitment shall exceed the Aggregate
Revolving Exposure (after giving effect to any contemporaneous
payment or payment of Revolving Loans), permanently reduce the
Aggregate Revolving Commitment by a sum not greater than the
amount of such excess, provided, however, that each such partial
reduction shall be in the amount of $500,000 or a whole multiple
of $100,000 in excess thereof.
(b) Reductions in General. Each reduction of the Aggregate
Revolving Commitment shall be made by reducing each Lender's
Revolving Commitment by an amount equal to such Lender's
Revolving Percentage of such reduction. Simultaneously with each
reduction of the Aggregate Revolving Commitment, the Borrower
shall pay the Revolving Commitment Fee accrued on the amount by
which the Aggregate Revolving Commitment has been reduced.
2.4. Prepayments of the Revolving Loans
(a) Voluntary Prepayments. The Borrower shall have the right at
any time and from time to time to prepay all or any portion of
the Revolving Loans without premium or penalty (but subject to
Section 3.5), by delivering to the Administrative Agent an
irrevocable written notice thereof no later than 12:00 noon on
the proposed prepayment date, in the case of Revolving Loans
consisting of ABR Advances, and at least three Business Days
prior to the proposed prepayment date, in the case of Revolving
Loans consisting of Eurodollar Advances, specifying whether the
Revolving Loans to be prepaid consist of ABR Advances, Eurodollar
Advances, or a combination thereof, the amount to be prepaid and
the date of prepayment, whereupon the amount specified in such
notice shall be due and payable on the date specified. Upon
receipt of each such notice, the Administrative Agent shall
promptly notify each Lender thereof. Each partial prepayment of
the Revolving Loans pursuant to this subsection shall be in an
amount equal to the Minimum Amount, or, if less, the outstanding
principal balance of the Revolving Loans. After giving effect to
any partial prepayment with respect to Eurodollar Advances which
were made (whether as the result of a borrowing, a conversion or
a continuation) on the same date and which had the same Interest
Period, the outstanding principal balance of such Eurodollar
Advances shall equal or exceed (subject to Section 3.3) the
Minimum Amount.
(b) Other Mandatory Prepayments. Simultaneously with each
reduction or termination of the Aggregate Revolving Commitment,
the Borrower shall prepay the Revolving Loans by an amount equal
to the lesser of (A) the aggregate outstanding principal balance
of the Revolving Loans, or (B) the excess of the aggregate
outstanding principal balance of the Revolving Loans over the
Aggregate Revolving Commitment as so reduced or terminated.
(c) Accrued Interest. Simultaneously with each prepayment of a
Revolving Loan, the Borrower shall prepay all accrued interest on
the amount prepaid through the date of prepayment.
2.5. Payments; Pro Rata Treatment and Sharing of Set-offs
(a) Payments Generally. (i) Except as provided below, all
payments, including prepayments, of principal and interest on the
Revolving Loans, of the Facility Fee and of all other amounts to
be paid by the Borrower under the Loan Documents shall be made to
the Administrative Agent, prior to 1:00 p.m. on the date such
payment is due, for the account of the applicable Lenders at the
Payment Office, in Dollars and in immediately available funds,
without set-off, offset, recoupment or counterclaim. The failure
of the Borrower to make any such payment by such time shall not
constitute a Default, provided that such payment is made on such
due date, but any such payment made after 1:00 p.m.
on such due date shall be deemed to have been made on the next
Business Day for the purpose of calculating interest on amounts
outstanding on the Revolving Loans. As between the Borrower, the
Administrative Agent and each Lender, any payment by the Borrower
to the Administrative Agent for the account of such Lender shall
be deemed to be payment by the Borrower to such Lender.
Notwithstanding the foregoing, all payments pursuant to Sections
3.5, 3.6, 3.7, and 11.4 shall be paid directly to the Person
entitled thereto. If any payment under the Loan Documents shall
be due and payable on a day which is not a Business Day, the due
date thereof (except as otherwise provided with respect to
Interest Periods) shall be extended to the next Business Day and
(except with respect to payments in respect of fees) interest
shall be payable at the applicable rate specified herein during
such extension, provided, however, that if such next Business Day
would be after the Revolving Loan Maturity Date, such payment
shall instead be due on the immediately preceding Business Day.
(ii) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, interest and fees then due hereunder, such funds shall
be applied (A) first, towards payment of interest and fees then
due under the Loan Documents, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then
due to such parties, and (B) second, towards payment of principal
then due under the Loan Documents, ratably among the parties
entitled thereto in accordance with the amounts of principal then
due to such parties.
(b) Set-off. In addition to any rights and remedies of the
Administrative agent and the Lenders provided by law, upon and
after the acceleration of all the obligations of the Borrower
under the Loan Documents, or at any time upon the occurrence and
during the continuance of an Event of Default under Sections
9.1(a) or (b), the Administrative Agent and each Lender shall
have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower to the extent not
prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of the Borrower to
the Administrative Agent or such Lender any amount owing from the
Administrative Agent or such Lender to the Borrower, at, or at
any time after, the happening of any of the above-mentioned
events. To the extent not prohibited by applicable law, the
aforesaid right of set-off may be exercised by the Administrative
Agent or any Lender against the Borrower or against any trustee
in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or
attachment creditor of the Borrower, or against anyone else
claiming through or against the Borrower, or such trustee in
bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by the Administrative Agent
or such Lender prior to the making, filing or issuance, or
service upon the Administrative Agent or such Lender of, or of
notice of, any such petition, assignment for the benefit of
creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Borrower and the
Administrative Agent 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.
(c) Adjustments. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in respect of the principal of or interest
on its Revolving Loans, resulting in such Lender receiving
payment of a greater proportion of the aggregate principal amount
of, or accrued interest on, such Revolving Loans than the
proportion received by any other Lender, then the Lender
receiving such greater proportion shall promptly purchase, at
face value for cash, participations in the Revolving Loans to the
extent necessary so that the benefit of such payment shall be
shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective
Revolving Loans, provided, however, that (i) if all or any
portion of such payment is thereafter recovered, such
participations shall be rescinded and the purchase price
returned, in each case to the extent of such recovery, and (ii)
the provisions of this Section 2.6 (c) shall not be construed to
apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment
of or sale of a participation in any of its Revolving Loans to
any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of
this Section 2.6 (c) shall apply). The Borrower agrees that any
Lender that purchased a participation pursuant to this subsection
may exercise such rights to 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.
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. Interest Rate and Payment Dates
(a) Advances. Each (i) ABR Advance shall bear interest at a rate
per annum equal to the Alternate Base Rate and (ii) Eurodollar
Advance shall bear interest at a rate per annum equal to the
Eurodollar Rate for the applicable Interest Period plus the
Applicable Margin.
(b) Event of Default; Late Charges. Notwithstanding the
foregoing, after the occurrence and during the continuance of an
Event of Default under Section 9.1(a) or 9.1(b), the outstanding
principal balance of the Revolving Loans shall bear interest at a
rate per annum equal to 2% plus the rate otherwise applicable to
such Revolving Loans as provided in subsection (a) above. If any
interest, fee or other amount payable under the Loan Documents is
not paid when due (whether at the stated maturity thereof, by
acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the Alternate Base Rate
plus 2%, from the date of such nonpayment until paid in full
(whether before or after the entry of a judgment thereon). All
such interest shall be payable on demand.
(c) Payment of Interest. Except as otherwise provided in
subsection (b) above, interest shall be payable in arrears on the
following dates and upon each payment (including prepayment) of
the Revolving Loans:
(i) in the case of an ABR Advance, on the last Business Day
of each March, June, September and December commencing on
the first of such days to occur after such ABR Advance is
made or any Eurodollar Advance is converted to an ABR
Advance;
(ii) in the case of a Eurodollar Advance, on the last day of
the Interest Period applicable thereto and, if such Interest
Period is longer than three months, the last Business Day of
each three month interval occurring during such Interest
Period; and
(iii) in the case of all Advances and all Revolving Loans,
the Revolving Loan Maturity Date.
(d) Computations. Interest on (i) ABR Advances to the extent
based on the Prime Rate shall be calculated on the basis of a 365
or 366-day year (as the case may be), and (ii) ABR Advances to
the extent based on the Federal Funds Effective Rate and on
Eurodollar Advances shall be calculated on the basis of a 360-day
year, in each case for the actual number of days elapsed. The
Administrative Agent shall, as soon as practicable, notify the
Borrower and the Lenders of the effective date and the amount of
each such change in the Prime Rate, but any failure to so notify
shall not in any manner affect the obligation of the Borrower to
pay interest on the Revolving Loans in the amounts and on the
dates required. Each determination of a rate of interest by the
Administrative Agent pursuant to the Loan Documents shall be
conclusive and binding on all parties hereto absent manifest
error. The Borrower acknowledges that to the extent interest
payable on ABR Advances is based on the Prime Rate, such rate is
only one of the bases for computing interest on loans made by the
Lenders, and by basing interest payable on ABR Advances on the
Prime Rate, the Lenders have not committed to charge, and the
Borrower has not in any way bargained for, interest based on a
lower or the lowest rate at which the Lenders may now or in the
future make loans to other borrowers.
3.2. Fees
(a) Facility Fee. The Borrower agrees to pay to the
Administrative Agent, for the account of the Lenders in
accordance with each Lender's Revolving Percentage, a fee (the
Facility Fee,), during the period from the Effective Date through
the Revolving Loan Maturity Date, at a rate per annum equal to
0.15% on the average daily Aggregate Revolving Commitment,
regardless of usage. The Facility Fee shall be payable (i)
quarterly in arrears on the last Business Day of each March,
June, September and December during such period, commencing on
the first such day following the Effective Date, (ii) on the date
of any reduction in the Aggregate Revolving Commitment (to the
extent of such reduction) and (iii) on the Revolving Loan
Maturity Date. The Facility Fee shall be calculated on the basis
of a 365-day or 366-day year, as the case may be.
(b) Administrative Agent's Fees. The Borrower agrees to pay to
the Administrative Agent, for its own account, such other fees as
have been agreed to in writing by the Borrower and the
Administrative Agent.
3.3. Conversions
(a) The Borrower may elect from time to time to convert one or
more Eurodollar Advances to ABR Advances by giving the
Administrative Agent at least one Business Day's prior
irrevocable notice of such election, specifying the amount to be
converted, provided, that any such conversion of Eurodollar
Advances shall only be made on the last day of the Interest
Period applicable thereto. In addition, the Borrower may
elect from time to time to (i) convert ABR Advances comprising
all or a portion of Revolving Loans to Eurodollar Advances and
(ii) continue Eurodollar Advances as new Eurodollar Advances by
selecting a new Interest Period therefor, in each case by giving
the Administrative Agent at least three Business Days' prior
irrevocable notice of such election, in the case of a conversion
to, or continuation of, Eurodollar Advances, specifying the
amount to be so converted or continued and the initial Interest
Period relating thereto, provided that any such conversion of ABR
Advances to Eurodollar Advances shall only be made on a Business
Day and any such continuation of Eurodollar Advances as new
Eurodollar Advances shall only be made on the last day of the
Interest Period applicable to the Eurodollar Advances which are
to be continued as such new Eurodollar Advances. Each such notice
(a Notice of Conversion,) shall be substantially in the form of
Exhibit C, shall be irrevocable and shall be given by facsimile
(confirmed promptly, and in any event within five Business Days,
by the delivery to the Administrative Agent of a Notice of
Conversion manually signed by the Borrower). The Administrative
Agent shall promptly provide the Lenders with notice of each such
election. Advances may be converted or continued pursuant to this
Section 3.3 in whole or in part, provided that the amount to be
converted to, or continued as, each Eurodollar Advance, when
aggregated with any Eurodollar Advance to be made on such
date in accordance with Section 2.2 and having the same Interest
Period as such first Eurodollar Advance, shall equal the Minimum
Amount.
(b) Notwithstanding anything in this Agreement to the contrary,
upon the occurrence and during the continuance of an Event of
Default, the Borrower shall have no right to elect to convert any
existing ABR Advance to a new Eurodollar Advance or to continue
any existing Eurodollar Advance as a new Eurodollar Advance. In
such event, all ABR Advances shall be automatically continued as
ABR Advances and all Eurodollar Advances shall be automatically
converted to ABR Advances on the last day of the current Interest
Period applicable to such Eurodollar Advance.
(c) Each conversion or continuation shall be effected by each
Lender by applying the proceeds of its new ABR Advance or
Eurodollar Advance, as the case may be, to its Advances (or
portion thereof) being converted (it being understood that any
such conversion or continuation shall not constitute a borrowing
for purposes of Articles 4, 5 or 6).
3.4. Concerning Interest Periods
(a) No Interest Period selected shall end after the Revolving
Loan Maturity Date.
(b) With respect to Eurodollar Advances, any Interest Period
which begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
(c) If an Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
immediately preceding Business Day.
(d) If the Borrower shall have failed to timely elect a
Eurodollar Advance under Section 2.2 or 3.3, as the case may be,
in connection with any borrowing of, conversion to, or
continuation of, a Eurodollar Advance, such borrowing or such
Advance requested to be converted to, or continued as, a
Eurodollar Advance shall thereafter be an ABR Advance until such
time, if any, as the Borrower shall elect a new Eurodollar
Advance pursuant to Section 3.3.
(e) The Borrower shall not be
permitted to have more than five Eurodollar Advances outstanding
at any one time, it being agreed that each borrowing of a
Eurodollar Advance pursuant to a single Borrowing Request shall
constitute the making of one Eurodollar Advance for the purpose
of calculating such limitation.
3.5. Funding Loss
Notwithstanding anything contained herein to the contrary, if the
Borrower shall fail to borrow, convert or continue a Eurodollar
Advance on a Borrowing Date or Conversion Date after it shall
have given notice to do so in which it shall have requested a
Eurodollar Advance, or if a Eurodollar Advance shall be
terminated for any reason prior to the last day of the Interest
Period applicable thereto, or if, while a Eurodollar Advance is
outstanding, any repayment or prepayment of such Eurodollar
Advance is made for any reason (including as a result of
acceleration or illegality) on a date which is prior to the last
day of the Interest Period applicable thereto, the Borrower
agrees to indemnify each Lender against, and to pay on demand
directly to such Lender the amount (calculated by such Lender
using any reasonable method chosen by such Lender which is
customarily used by such Lender for such purpose) equal to any
loss or out-of pocket expense suffered by such Lender as a result
of such failure to borrow convert, or continue, or such
termination, repayment or prepayment, including any loss, cost or
expense suffered by such Lender in liquidating or employing
deposits acquired to fund or maintain the funding of such
Eurodollar Advance or redeploying funds prepaid or repaid, in
amounts which correspond to such Eurodollar Advance and any
reasonable internal processing charge customarily charged by such
Lender in connection therewith.
3.6. Increased Costs; Illegality, etc.
(a) Increased Costs. If any Change in Law shall impose, modify or
make applicable any reserve, special deposit, compulsory loan,
assessment, increased cost or similar requirement against assets
held by, or deposits of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of
any Lender in respect of its Eurodollar Advances which is not
otherwise included in the determination of a Eurodollar Rate and
the result thereof is to increase the cost to any Lender of
making, renewing, converting or maintaining its Eurodollar
Advances or its commitment to make such Eurodollar Advances, or
to reduce any amount receivable under the Loan Documents in
respect of its Eurodollar Advances, then, in any such case, the
Borrower shall pay such Lender such additional amounts as is
sufficient to compensate such Lender for such additional cost or
reduction in such amount receivable which such Lender deems to be
material as determined by such Lender.
(b) Capital Adequacy. If any Lender determines that any Change in
Law relating to capital requirements has or would have the effect
of reducing the rate of return on such Lender's capital or on the
capital of such Lender's holding company, if any, on the
Revolving Loans to a level below that which such Lender (or its
holding company) would have achieved or would thereafter be able
to achieve but for such Change in Law (after taking into account
such Lender's (or such holding company's) policies regarding
capital adequacy), the Borrower shall pay to such Lender (or such
holding company) such additional amount or amounts as will
compensate such lender (or such holding company) for such
reduction.
(c) Illegality. Notwithstanding any other provision hereof, if
any Lender shall r easonably determine that any law, regulation,
treaty or directive, or any change therein or in the
interpretation or application thereof, shall make it unlawful for
such Lender to make or maintain any Eurodollar Advance as
contemplated by this Agreement, such Lender shall promptly notify
the Borrower and the Administrative Agent thereof, and (i) the
commitment of such Lender to make such Eurodollar Advances or
convert ABR Advances to Eurodollar Advances shall forthwith
be suspended, (ii) such Lender shall fund its portion of each
requested Eurodollar Advance as an ABR Advance and (iii) such
Lender's Revolving Loans then outstanding as such Eurodollar
Advances, if any, shall be converted automatically to ABR
Advances on the last day of the then current Interest Period
applicable thereto or at such earlier time as may be required by
law. The commitment of any such Lender with respect to Eurodollar
Advances shall be suspended until such Lender shall notify the
Administrative Agent and the Borrower that the circumstances
causing such suspension no longer exist. Upon receipt of such
notice by each of the Administrative Agent and the Borrower, such
Lender's commitment to make or maintain Eurodollar Advances shall
be reinstated.
(d) Substituted Interest Rate. In the event that (i) the
Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that by reason
of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate applicable pursuant to Section 3.1 or (ii) the
Required Lenders shall have notified the Administrative Agent
that they have determined (which determination shall be
conclusive and binding on the Borrower) that the applicable
Eurodollar Rate will not adequately and fairly reflect the
cost to such Lenders of maintaining or funding loans bearing
interest based on such Eurodollar Rate, with respect to any
portion of the Revolving Loans that the Borrower has requested be
made as Eurodollar Advances or Eurodollar Advances that will
result from the requested conversion or continuation of any
portion of the Advances into or of Eurodollar Advances (each, an
Affected Advance,), the Administrative Agent shall promptly
notify the Borrower and the Lenders (by telephone or otherwise,
to be promptly confirmed in writing) of such determination, on
or, to the extent practicable, prior to the requested Borrowing
Date or Conversion Date for such Affected Advances. If the
Administrative Agent shall give such notice, (a) any Affected
Advances shall be made as ABR Advances, (b) the Advances (or any
portion thereof) that were to have been converted to Affected
Advances shall be converted to ABR Advances and (c) any
outstanding Affected Advances shall be converted, on the last day
of the then current Interest Period with respect thereto, to ABR
Advances. Until any notice under clauses (i) or (ii), as the case
may be, of this subsection (d) has been withdrawn by the
Administrative Agent (by notice to the Borrower promptly upon
either (x) the Administrative Agent having determined that such
circumstances affecting the interbank eurodollar market no
longer exist and that adequate and reasonable means do exist for
determining the Eurodollar Rate pursuant to Section 3.1 or (y)
the Administrative Agent having been notified by such Required
Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances), no further Eurodollar
Advances shall be required to be made by the Lenders, nor shall
the Borrower have the right to convert all or any portion of the
Revolving Loans to or as Eurodollar Advances.
(e) Payment; Certificates. Each payment pursuant to subsections
(a) or (b) above shall be made within 10 days after demand
therefor, which demand shall be accompanied by a certificate of
the Lender demanding such payment setting forth the calculations
of the additional amounts payable pursuant thereto. Each such
certificate shall be conclusive absent manifest error. No failure
by any Lender to demand, and no delay in demanding, compensation
for any increased cost shall constitute a waiver of its right to
demand such compensation at any time.
3.7. Taxes
(a) Payments Free of Taxes. All payments by or on account of the
Borrower under any Loan Document to or for the account of a
Lender shall be made free and clear of, and without any deduction
or withholding for or on account of, any and all present or
fut ure Indemnified Taxes or Other Taxes, provided that if the
Borrower or any other Person is required by any law, rule,
regulation, order, directive, treaty or guideline to make any
deduction or withholding in respect of such Indemnified Tax or
Other Tax from any amount required to be paid by the Borrower to
or on behalf of any Lender under any Loan Document (each, a
Required Payment,), then (i) the Borrower shall notify the
Administrative Agent and such Lender of any such requirement or
any change in any such requirement as soon as the Borrower
becomes aware thereof, (ii) the Borrower shall pay such
Indemnified Tax or Other Tax prior to the date on which penalties
attach thereto, such payment to be made (to the extent that the
liability to pay is imposed on the Borrower) for its own account
or (to the extent that the liability to pay is imposed on such
Lender) on behalf and in the name of such Lender, (iii) the
Borrower shall pay to such Lender an additional amount such that
such Lender shall receive on the due date therefor an
amount equal to the Required Payment had no such deduction or
withholding been made or required, and (iv) the Borrower shall,
within 30 days after paying such Indemnified Tax or Other Tax,
deliver to the Administrative Agent and such Lender satisfactory
evidence of such payment to the relevant Governmental Authority.
(b) Reimbursement for Taxes and Other Taxes Paid by Lenders. The
Borrower shall reimburse each Lender, within ten days after
written demand therefor, for the full amount of all Indemnified
Taxes or Other Taxes paid by such Lender on or with respect to
any payment by or on account of any obligation of the Borrower
under the Loan Documents (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable
under this Section 3.7) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto
(other than any such penalties, interest or expenses that are
incurred by such Lender's unreasonably taking or omitting to take
action with respect to such Indemnified Taxes or Other Taxes),
whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender shall
be conclusive absent manifest error. In the event that any
Lender determines that it received a refund or credit for
Indemnified Taxes or Other Taxes paid by the Borrower under this
Section 3.7, such Lender shall promptly notify the Borrower of
such fact and shall remit to the Borrower the amount of such
refund or credit.
3.8. Mitigation; Replacement Lenders
(a) Changes of Lending Offices. If any Lender (or its holding
company, if any) requests compensation under Section 3.6(a) or
(b) or if the Borrower is required to pay an additional amount to
any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.7, such Lender will, upon the
request of the Borrower, use reasonable efforts (subject to its
overall policy considerations) to designate a different lending
office for funding or booking its Revolving Loans or to assign
its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in its good faith judgment, such
designation or assignment (i) would eliminate or reduce future
amounts payable under Section 3.6(a) or (b) or Section 3.7, as
the case may be, (ii) would not subject such Lender to any
unreimbursed cost or expense and (iii) would not otherwise be
disadvantageous to such Lender. The Borrower agrees to pay the
reasonable costs and expenses incurred in connection with any
such designation or assignment and the Administrative Agent
agrees that no assignment fee shall be payable to it pursuant to
Section 11.5(b) in connection therewith. Nothing in this Section
3.8 shall affect or postpone any of the obligations of the
Borrower to make the payments required to a Lender under Section
3.6(a) or (b) or Section 3.7, incurred prior to any such
designation or assignment.
(b) Replacement of Lenders. If (i) any Lender (or its holding
company, if any) requests compensation under Section 3.6(a) or
(b) or if the Borrower is required to pay an additional amount to
any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.7, or (ii) any Lender shall give any
notice to the Borrower or the Administrative Agent pursuant to
Section 3.6(c), then, in each such case, provided that no Default
shall then exist and be continuing, during the 90 day period
after the receipt of such request, the Borrower at its sole cost,
expense and effort may, upon notice to the Administrative Agent,
require Lender to assign (in accordance with and subject to the
restrictions contained in Section 11.5) all of its rights and
obligations under the Loan Documents to any other Lender (or
affiliate thereof), or any other Eligible Institution identified
by the Borrower if such other Lender (or affiliate thereof) or
such Eligible Institution agrees to assume all of the obligations
of such Lender for consideration equal to the outstanding
principal amount of such Lender's Revolving Loans and all
unreimbursed sums paid by such Lender under Section 3.6(a) or
(b)or Section 3.7, together with interest thereon to the date of
such transfer and all other amounts payable under the Loan
Documents to such Lender on or prior to the date of such transfer
(including any fees accrued hereunder and any amounts which
would be payable under Section 3.5 as if all of such Lender's
Revolving Loans were being prepaid in full on such date). In the
event of a transfer to any other Eligible Institution, subject to
the satisfaction of the conditions of Section 11.5, such Eligible
Institution shall such Eligible Institution shall be a "Lender"
for all purposes hereunder. Without prejudice to the survival of
any other agreement of the Borrower hereunder, the agreements of
the Borrower contained in Sections 3.5, 3.6(b), ll.l(a) and 11.4
(without duplication of any payments made to such Lender by the
Borrower or such other Eligible Institution) shall survive for
the benefit of any Lender replaced under this Section with
respect to the time prior to such replacement. In connection
with any transfer pursuant to this subsection, the Borrower
shall be obligated to pay the assignment fee referred to in
Section 11.5(b).
3.9. Register
The Administrative Agent will maintain a register for the
recordation of the names and addresses of the Lenders and the
Revolving Commitments of, and principal amount of the Revolving
Loans owing to, each Lender (the Register,). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower and each Lender may treat each
party whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to
enter into this Agreement, and to induce the Lenders to make the
Revolving Loans, the Borrower makes the following representations
and warranties to the Administrative Agent and the Lenders:
4.1. Organization and Power
The Borrower (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization,
(ii) has all requisite power and authority to own its property
and to carry on its business as now conducted, and (iii) is duly
qualified to do business and is in good standing in each
jurisdiction in which the nature of the business conducted
therein or the property owned by it therein makes such
qualification necessary, except where such failure to qualify or
be in good standing could not reasonably be expected to result in
a Material Adverse effect.
4.2. Authorization; Enforceability
The execution, delivery and performance of this Agreement are
within the corporate powers of the Borrower and have been duly
authorized by its Managing Person and, if required, by any other
Person including holders of its Capital Stock. Each Loan Document
has been validly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
4.3. Approvals; No Conflicts
The execution, delivery and performance of this Agreement by the
Borrower (i) do not require any consent or approval of,
registration or filing with, or any other action by, any
Governmental Authority or any other Person, except such as have
been obtained or made and are in full force and effect, (ii) will
not violate any applicable law, rule or regulation or the
Organizational Documents of the Borrower or any order of any
Governmental Authority, and (iii) will not violate or result in
a default under any indenture, agreement or other instrument
binding upon the Borrower or its assets, or give rise to a right
thereunder to require any payment to be made by the Borrower.
4.4. Financial Condition; No Material Adverse Change
(a) The Borrower has heretofore furnished to each Lender a copy
of (A)the audited consolidated balance sheet of the Borrower and
Subsidiaries as of September 30, 1997, and the related statements
of income, cash flows, capitalization and shareholders' equity as
of and for the fiscal year then ended, and (B) a copy of the
unaudited consolidated balance sheet of the Borrower and
Subsidiaries as of March 31, 1998, and the related statements of
income and cash flows for the three-month and six-month periods
then ended. Such financial statements present fairly, in all
material respects, the consolidated financial position and
results of operations and cash flows of the Borrower and its
Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the unaudited statements referred to
above. Except as fully reflected in such financial statements,
there are no material liabilities or obligations with respect to
the Borrower or any Subsidiary of any nature whatsoever (whether
absolute, contingent or otherwise and whether or not due).
(b) Since March 31, 1998, the Borrower has conducted its business
only in the ordinary course and there has been no Material
Adverse change.
4.5. Properties
The Borrower has good and marketable title to, or valid leasehold
interests in, all of its property, real and personal, material to
its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended
purposes.
4.6. Litigation
Except as disclosed in the SEC Reports, there are no actions,
suits or proceedings at law or in equity or by or before any
Governmental Authority pending or, to the knowledge of the
Borrower, threatened against the Borrower or any Subsidiary, or
maintained by the Borrower or any Subsidiary or which may affect
the property of the Borrower or any Subsidiary, that, in the good
faith opinion of the Borrower, would reasonably be expected to
have an adverse determination and that, if adversely determined,
could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse effect.
4.7. Compliance with Laws and Agreements; No Default
Except as disclosed in the SEC Reports, the Borrower is in
compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property
(including, without limitation, all Environmental Laws) and all
indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or
in the aggregate, could not reasonably be expected to result in a
Material Adverse effect. No Default has occurred and is
continuing or would result from the incurrence of the obligations
by the Borrower under the Loan Documents.
4.8. Investment Companies and other Regulated Entities
The Borrower is not an INVESTMENT COMPANY or a company controlled
by an INVESTMENT COMPANY as defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended.
4.9. Federal Reserve Regulations
(a) Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying any Margin Stock. After giving effect to the making of
each Revolving Loan, Margin Stock will constitute less than 25%
of the assets (as determined by any reasonable method) of the
Borrower and its Subsidiaries.
(b) No part of the proceeds of any Revolving Loan will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of
Regulation U or X of the Board of Governors.
4.10. ERISA
Each Pension Plan is in compliance with ERISA and the Code, where
applicable, in all material respects and no ERISA Event has
occurred or is reasonably expected to occur that, when taken
together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to
result in a Material Adverse effect.
4.11. Taxes
The Borrower and each Subsidiary has timely filed or caused to be
filed all tax returns and reports required to have been filed and
has paid, or caused to be paid, all Taxes required to have been
paid by it except (i) Taxes being contested in good faith by
appropriate proceedings and for which the Borrower has set aside
on its books adequate reserves, and (ii) to the extent that the
failure to do so could not reasonably be expected to result in a
Material Adverse effect.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS AND FIRST REVOLVING
LOANS
In addition to the conditions precedent set forth in Article 6,
the obligation of the Lenders to make the initial Revolving Loans
shall not become effective until each of the following conditions
precedent have been satisfied (or waived in accordance with
Section 11.1):
5.1. Evidence of Action
The Administrative Agent shall have received a certificate, dated
the Effective Date, of the Secretary or Assistant Secretary of
the Borrower:
(a) attaching a true and complete copy of the resolutions of its
Managing Person and of all other documents evidencing all
necessary corporate action (in form and substance satisfactory to
the Administrative Agent) taken to authorize the Loan Documents
and the transactions contemplated thereby;
(b) attaching a true and complete copy of its Organizational
Documents; and
(c) setting forth the incumbency, title and a specimen signature
of each of its officers who may sign the Loan Documents.
5.2. This Agreement
The Administrative Agent shall have received, in respect of each
Person listed on the signature pages of this Agreement, either
(i) a counterpart signature page hereof signed on behalf of such
Person, or (ii) written evidence satisfactory to the
Administrative Agent (which may include a facsimile transmission
of a signed signature page of this Agreement) that a counterpart
signature page hereof has been signed on behalf of such Person.
5.3. Notes
The Administrative Agent shall have received a Note for each
Lender, dated the Effective Date, executed by a duly authorized
officer of the Borrower.
5.4. Opinion of Counsel
The Administrative Agent shall have received a favorable opinion
of Mary J. Healey, General Counsel to the Borrower, addressed to
the Administrative Agent and each of the Lenders, dated the
Effective Date, substantially in the form of Exhibit E.
5.5. Approvals and Consents
All approvals and consents of all Persons required to be obtained
in connection with the consummation of the transactions
contemplated by this Agreement have been obtained, all required
notices have been given and all required waiting periods have
expired.
5.6. Repayment of Bank Debt
The Borrower shall have made arrangements satisfactory to the
Administrative Agent to fully repay all outstanding principal,
accrued interest and fees and other sums due, under the Revolving
Credit Agreement, dated as of July 23, 1997, between the Borrower
and BNY (the TERMINATING BANK DEBT,), and such agreement shall
have been terminated.
5.7. Fees
The Administrative Agent shall have received all fees and other
amounts due and payable to the Administrative Agent under the
Loan Documents on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of the fees and
disbursements of Special Counsel and all other out-of-pocket
expenses required to be reimbursed or paid by the Borrower
hereunder.
5.8. Other Documents
The Administrative Agent shall have received such other
documents, each in form and substance reasonably satisfactory to
it, as it shall reasonably request.
The Administrative Agent shall notify the Borrower and each
Lender of the date upon which each of the conditions precedent
set forth in this Section 5.1 have been satisfied (or waived in
accordance with Section 11.1), and such notice shall be
conclusive and binding. Notwithstanding the foregoing, this
Agreement shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 11.1) on
or before June 30, 1998.
6. CONDITIONS PRECEDENT TO EACH REVOLVING LOAN
The obligation of each Lender to make any Revolving Loan under
this Agreement shall be subject to the satisfaction of the
following conditions precedent as of the date thereof:
6.1. Compliance
On each Borrowing Date and after giving effect to the Revolving
Loan thereon (i) no Default shall have occurred or be continuing;
and (ii) the representations and warranties contained in this
Agreement shall be true and correct with the same effect as
though such representations and warranties had been made on such
Borrowing Date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case
such representations and warranties shall have been true and
correct on and as of such earlier date. Each Revolving Loan and
each Borrowing Request therefor shall constitute a certification
by the Borrower as of such Borrowing Date that each of the
foregoing matters is true and correct in all respects.
6.2. Borrowing Request
The Administrative Agent shall have received a Borrowing Request,
executed by a duly authorized officer of the Borrower.
6.3. Legal Impediments
Such Revolving Loan not be prohibited by any applicable law, rule
or regulation.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Revolving Commitment is
in effect and until the principal of, and interest on, each
Revolving Loan, all Fees and all other amounts payable under the
Loan Documents shall have been paid in full:
7.1. Financial Statements and Information
The Borrower shall furnish or cause to be furnished to the
Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, a copy of
an audited consolidated balance sheet of the Borrower and
Subsidiaries as of the end of such fiscal year, and the related
statements of income, cash flows, capitalization and
shareholders' equity as of the end of and for such fiscal year,
setting forth in each case in comparative form the figures for
the previous fiscal year, accompanied by a report
of a firm of independent certified public accountants of
nationally recognized standing without a "going concern" or like
qualification or exception or any qualification or exception as
to the scope of such audit; provided, however, that the Borrower
may satisfy this requirement by delivering to the Administrative
Agent and each Lender, within five days after the date of filing
with the SEC, a copy of its Annual Report on Form 10-K as filed
with the SEC pursuant to the Securities Exchange Act, together
with a copy of any financial statements incorporated therein by
reference, if the financial statements included or incorporated
by reference therein would otherwise satisfy the requirements of
this subsection.
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, a copy of a consolidated
balance sheet of the Borrower and Subsidiaries as of the end of
such quarter, and the related consolidated statements of income
and cash flows for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end
of) the previous fiscal year, certified by one of its Financial
Officers as presenting fairly in all material respects the
consolidated financial condition and results of operations of
the Borrower and Subsidiaries in accordance with GAAP
consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes; provided, however, that
the Borrower may satisfy this requirement by delivering to the
Administrative Agent and each Lender, within five days after the
date of filing with the SEC, a copy of its Quarterly Report on
Form 10-Q for such quarter as filed with the SEC pursuant to the
Securities Exchange Act.
(c) concurrently with any delivery of financial statements under
subsections (a) or (b) above, a certificate (a COMPLIANCE
CERTIFICATE) of a Financial Officer of the Borrower, (i) as to
whether a Default has occurred and, if so, specifying the details
thereof and any action taken or proposed to be taken with respect
thereto, and (ii) setting forth reasonably detailed calculations
demonstrating compliance with Section 8.3.
(d) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other
materials filed by the Borrower or any Subsidiary with the
Securities and Exchange Commission or with any national
securities exchange, or distributed by the Borrower to its
shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other
information regarding the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
7.2. Notice of Material Events
The Borrower shall furnish to the Administrative Agent and each
Lender, prompt written notice of the following together with a
statement of a Financial Officer or other executive officer of
the Borrower setting forth the details of the event or
development requiring such notice and, if applicable, any action
taken or proposed to be taken with respect thereto:
(a) the occurrence of any Default; and
(b) the occurrence of any other development that has or could
reasonably be expected to result in, a Material Adverse effect.
7.3. Existence; Conduct of Business
The Borrower shall do or cause to be done all things necessary to
preserve, renew and keep in full force and effect (i) its legal
existence, and (ii) all rights, licenses, permits, privileges and
franchises the absence of which would reasonably be expected to
have a Material Adverse effect.
7.4. Payment of Obligations
The Borrower shall pay and discharge when due, its obligations,
including obligations with respect to Taxes, which, if unpaid,
could reasonably be expected to result in a Material Adverse
effect, except where (i) the validity or amount thereof is being
contested in good faith by appropriate proceedings diligently
conducted, (ii) the Borrower has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (iii)
the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse effect.
7.5. Maintenance of Properties
The Borrower shall maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted) at
all times, all of its property other than property, the loss of
which would not reasonably be expected to have a Material Adverse
effect.
7.6. Books and Records: Inspection Rights
The Borrower shall keep proper books of record and account in
which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities and, at
all reasonable times upon reasonable prior notice, permit
representatives of the Administrative Agent and the Lenders to
(i) visit the offices of the Borrower, (ii) examine such books
and records and accountants' reports relating thereto, (iii) make
copies or extracts therefrom, and (iv) discuss the affairs of the
Borrower with its officers.
7.7. Compliance with Laws
The Borrower shall comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its
property, except where the failure to do so could not reasonably
be expected to result in a Material Adverse effect.
7.8. Maintenance of Licenses
The Borrower shall do all things necessary to renew, extend and
continue in effect all permits, licenses and authorizations which
may at any time and from time to time be necessary to operate the
business of the Borrower and the Subsidiaries in compliance with
all applicable laws and regulations, the failure to comply with
which could reasonably be expected to have a Material Adverse
effect.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Commitment is in effect
and until the principal of, and interest on, each Revolving Loan,
all fees and all other amounts payable under the Loan Documents
shall have been paid in full:
8.1. Fundamental Changes
The Borrower shall not (i) consolidate or merge into or with any
other Person, or permit any other Person to merge into or
consolidate with it, or sell, transfer, lease or otherwise
dispose of (in one transaction or in a series of transactions)
all or substantially all of its assets, or liquidate or dissolve,
or (ii) sell, transfer or otherwise dispose of any of the Capital
Stock of Yankee Gas Services Company, or permit Yankee Gas
Services Company to consolidate or merge into or with any Person
other than the Borrower, or sell, transfer, lease or otherwise
dispose of all or substantially all of its assets, or liquidate
or dissolve.
8.2. Use of Proceeds
The Borrower shall not use the proceeds of the Revolving Loans
for any purpose other than to (i) repay the Terminating Bank
Debt, (ii) pay fees due hereunder, (iii) pay the reasonable
out-of-pocket fees and expenses incurred by the Borrower in
connection with the Loan Documents and (iv) for the Borrower's
general corporate purposes not inconsistent with the provisions
hereof, including without limitation providing funds to
non-regulated Subsidiaries, provided, however, that no
part of such proceeds will be used, directly or indirectly, for a
purpose which violates any law, including the provisions of
Regulation T, U or X of the Board of Governors.
8.3. Financial Covenants
The Borrower shall not at any time:
(a) Equity Ratio. Permit the ratio of Common Equity to
Consolidated Capitalization to be less than 0.375 to 1; or
(b) Debt to Dividends Ratio. Permit the ratio of Consolidated
Debt (excluding Debt of Yankee Gas Services Company) to
Annualized Dividends to be more than 3 to 1.
9. DEFAULTS
9.1. Events of Default
The following shall each constitute an EVENT OF DEFAULT
hereunder:
(a) the failure of the Borrower to make any payment of principal
on any Revolving Loan when due and payable; or
(b) the failure of the Borrower to make any payment of interest,
fees, expenses or other amounts payable under any Loan Document
or otherwise to the Administrative Agent with respect to the loan
facilities established hereunder within three Business Days of
the date when due and payable; or
(c) the failure of the Borrower to observe or perform any
covenant or agreement contained in clause (i) of Section 7.3 or
Article 8; or
(d) the failure of the Borrower to observe or perform any other
term, covenant, or agreement contained in any Loan Document and
such failure shall have continued unremedied for a period of 30
days after there shall have been given to the Borrower by the
Administrative Agent or any Lender a written notice specifying
such failure, requiring it to be remedied, and stating that such
notice is a notice of Default; or
(e) any representation or warranty made by the Borrower (or by an
officer thereof on its behalf) in any Loan Document or in any
certificate, report, opinion (other than an opinion of counsel)
or other document delivered or to be delivered pursuant thereto,
shall prove to have been incorrect or misleading (whether because
of misstatement or omission) in any material respect when made;
or
(f) any obligation of the Borrower (other than its obligations
under the Loan Documents) for the payment of borrowed money
exceeding an aggregate amount of $5,000,000 (i) becomes or is
declared to be due and payable prior to the stated maturity
thereof, or (ii) is not paid when due or within any grace period
for the payment thereof, or there shall occur any default in the
performance or observance of any other term, condition or
agreement contained in such obligation or in any agreement
relating thereto if the effect of such default is to cause or
permit the holder or holders of such obligations to cause (with
the giving of notice or lapse of time, or both) such obligation
to become due prior to its stated maturity; or
(g) the Borrower shall (i) suspend or discontinue its business,
(ii) make an assignment for the benefit of creditors, (iii)
generally not be paying its debts as such debts become due, (iv)
admit in writing its inability to pay its debts as they become
due, (v) file a voluntary petition in bankruptcy, (vi) become
insolvent (however such insolvency shall be evidenced), (vii)
file any petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment of
debt, liquidation or dissolution or similar relief under any
present or future statute, law or regulation of any jurisdiction,
(viii) petition or apply to any tribunal for any receiver,
custodian or any trustee for any substantial part of its
property, (ix) be the subject of any such proceeding filed
against it which remains undismissed for a period of 45 days, (x)
file any answer admitting or not contesting the material
allegations of any such petition filed against it or any order,
judgment or decree approving such petition in any such
proceeding, (xi) seek, approve, consent to, or acquiesce in any
such proceeding, or in the appointment of any trustee, receiver,
sequestrator, custodian, liquidator, or fiscal agent for it, or
any substantial part of its property, or an order is entered
appointing any such trustee, receiver, custodian, liquidator or
fiscal agent and such order remains in effect for 45 days, or
(xii) take any formal action for the purpose of effecting any of
the foregoing or looking to the liquidation or dissolution
of the Borrower; or
(h) an (i) order or decree is entered by a court having
jurisdiction (A) adjudging the Borrower bankrupt or insolvent,
(B) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or
composition of or in respect of the Borrower under the bankruptcy
or insolvency laws of any jurisdiction, (c) appointing a
receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Borrower or of
any substantial part of the property of any thereof, or (D)
ordering the winding up or liquidation of the affairs of the
Borrower, and any such decree or order continues unstayed and in
effect for a period of 45 days or (ii) order for relief is
entered under the bankruptcy or insolvency laws of any
jurisdiction or any other; or
(i) judgments or decrees against the Borrower or any Subsidiary
aggregating in excess of $5,000,000 (unless adequately insured by
a solvent unaffiliated insurance company which has acknowledged
coverage) shall remain unpaid, unstayed on appeal, undischarged,
unbonded or undismissed for a period of 30 days; or
(j) any Loan Document shall cease, for any reason, to be in full
force and effect (other than in accordance with its terms), or
the Borrower shall so assert in writing or shall disavow any of
its obligations thereunder; or
(k) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result
in liability of the Borrower which would have a Material Adverse
effect.
9.2. Contract Remedies
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof,
(i) in the case of an Event of Default specified in Section
9.1(g) or 9.1(h), without declaration or notice to the
Borrower, all of the Commitments shall immediately and
automatically terminate, and the Revolvirig Loans, all
accrued and unpaid interest thereon and all other amounts
owing under the Loan Documents shall immediately
become due and payable, and
(ii) in all other cases, upon the direction of the Required
Lenders, the Administrative Agent shall, by notice to the
Borrower, declare all of the Commitments to be terminated
forthwith, whereupon such Commitments shall immediately
terminate, and/or declare the Revolving Loans, all accrued
and unpaid interest thereon and all other amounts owing
under the Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
In the event that the Revolving Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan
Documents shall have been declared due and payable pursuant to
the provisions of this Section 9.2, the Administrative Agent (i)
upon the direction of the Required Lenders, shall proceed to
enforce the rights of the holders of the Notes by suit in equity,
action at law and/or other appropriate proceedings, whether for
payment or the specific performance of any covenant or agreement
contained in the Loan Documents and (ii) may exercise any and all
rights and remedies provided to the Administrative Agent by the
Loan Documents. Except as otherwise expressly provided in
the Loan Documents, the Borrower expressly waives presentment,
demand, protest and all other notices of any kind in connection
with the Loan Documents. The Borrower hereby further expressly
waives and covenants not to assert any appraisement, valuation,
stay, extension, redemption or similar laws, now or at any time
hereafter in force which might delay, prevent or otherwise impede
the performance or enforcement of any Loan Document.
(b) In the event that all of the Commitments shall have been
terminated or the Revolving Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan
Documents shall have been declared due and payable pursuant to
the provisions of this Section 9.2, any funds received by any
Lender from or on behalf of the Borrower (except funds received
by any Lender as a result of a purchase from any other
Lender pursuant to Section 2.7(c)) shall be remitted to, and
applied by, the Administrative Agent in the following manner and
order:
(i) to the payment of interest on, and then the principal
portion of, any Revolving Loans which the Administrative
Agent may have advanced on behalf of any Lender for which
the Administrative Agent has not then been reimbursed by
such Lender or the Borrower;
(ii) to reimburse the Administrative Agent and the Lenders,
in that order, for any expenses due from the Borrower
pursuant to the provisions of Section 11.4,
iii) to the payment of any fees, pro rata according to the
fees due and owing to the Administrative Agent and the
Lenders,
(iv) to the payment of any other expenses or other amounts
(other than the principal of and interest on the Revolving
Loans) payable by the Borrower to the Administrative Agent
and the Lenders under the Loan Documents,
(v) to the payment to the Lenders, pro rata according to the
Total Percentage of each Lender, of interest due on the
Revolving Loans,
(vi) to the payment to the Lenders, pro rata according to
the Total Percentage of each Lender, of the unpaid principal
amount of the Revolving Loans, and
(vii) any remaining funds shall be paid to the Borrower or
as a court of competent jurisdiction shall direct.
10. THE ADMINISTRATIVE AGENT
10.1. Appointment
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
10.2. Individual Capacity
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not
the Administrative Agent, and such Person and its Affiliates may
accept deposits from, lend money to and generally engage in any
kind of business with the Borrower, any Subsidiary, or any
Affiliate of the Borrower as if it were not the Administrative
Agent hereunder.
10.3. Exculpatory Provisions
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the
generality of the foregoing, (1) the Administrative Agent shall
not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing,
(2) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby
that the Administrative Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances
as provided in Section 11.1), and (3) except as expressly set
forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any Subsidiary that
is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as
provided in Section 11.1) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by
the Borrower or a Lender and the Administrative Agent shall not
be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreements, instrument
or document, or (v) the satisfaction of any condition set
forth in Articles 5 or 6 or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to
the Administrative Agent.
10.4. Reliance by Administrative Agent
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice,
request, certificate, consent, statement, instrument, document or
other writing believed by it to be genuine and to have been
signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be
counsel to the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts.
10.5. Delegation
The Administrative Agent may perform any and all of its duties
and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent, provided that
no such delegation shall serve as a release of the Administrative
Agent or waiver by the Borrower of any rights hereunder. The
Administrative Agent and any such subagent may perform any and
all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of
this Article 10 shall apply to any such sub-agent and to
the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
10.6. Resignation; Successor Administrative Agent
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this Section 10.6, the
Administrative Agent may resign at any time by notifying the
Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, in consultation with the Borrower,
to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank.
Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall 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 hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation
hereunder, the provisions of this Article and Section 11.1 shall
continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or permitted to be taken
by any of them while it was acting as Administrative Agent.
10.7. Non-Reliance on Administrative Agent and Other Lenders
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and
based on such 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 from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
11. OTHER PROVISIONS
11.1. Amendments and Waivers
(a) No failure to exercise and no delay in exercising, on the
part of the Administrative Agent or any Lender, any right,
remedy, power or privilege under any Loan Document shall operate
as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights,
remedies, powers and privileges under the Loan Documents are
cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law. No waiver of any provision of
any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall
be permitted by this Section 11.1, and then such waiver or
consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of
the foregoing, the making of a Revolving Loan shall not be
construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Notwithstanding anything to the contrary contained in any
Loan Document, with the written consent of the Required Lenders,
the Administrative Agent and the Borrower may, from time to time,
enter into written amendments, supplements or modifications of
the Loan Documents and, with the consent of the Required Lenders,
the Administrative Agent on behalf of the Lenders, may execute
and deliver to the Borrower a written instrument waiving or
consenting to the departure from, on such terms and conditions as
the Administrative Agent may specify in such instrument, any of
the requirements of the Loan Documents or any Default and its
consequences; provided, however, that no such amendment,
supplement, modification, waiver or consent shall:
(i) increase the Revolving Commitment of any Lender, without
such Lender's consent;
(ii) unless agreed to by each Lender affected thereby, (A)
reduce the principal amount of any Revolving Loan, or reduce
the rte of interest thereon, or reduce any fees or other
obligations payable under the Loan Documents or (B) extend
any date (including the Revolving Loan Maturity Date) fixed
for the payment of any principal of or interest on any
Revolving Loan, any fees, or any other obligation payable
under the Loan Documents;
(iii) unless agreed to by all of the Lenders, (A) increase
the Aggregate Revolving Commitment, (B) change the
definition of"Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, (C)
change Section 2.5 in a manner that could alter the pro rata
sharing of payments required thereby, or (D) consent to any
assignment or delegation by the Borrower of any of
its rights or obligations under any Loan Document; and
(iv) unless agreed to by the Administrative Agent, amend,
modify or otherwise affect the rights or duties of the
Administrative Agent under the Loan Documents.
Any such amendment, supplement, modification, waiver or consent
shall apply equally to each Lender and shall be binding upon each
Lender and the Borrower, and upon all future holders of the
Notes. In the case of any waiver, the Administrative Agent, the
Lenders and the Borrower shall be restored to their former
position and rights hereunder and under the outstanding Notes and
other Loan Documents to the extent provided for in such waiver,
and any Default waived shall not extend to any subsequent or
other Default, or impair any right consequent thereon.
11.2. Notices
All notices, requests and demands to or upon the respective
parties to the Loan Documents to be effective shall be in writing
and, unless otherwise expressly provided therein, shall be deemed
to have been duly given or made when delivered by hand, one
Business Day after having been sent by overnight courier service,
or when deposited in the mail, first-class postage prepaid, or,
in the case of notice by facsimile, when sent, to the last
address (including telephone and facsimile numbers) for such
party specified by such party in a written notice delivered to
the Administrative Agent and the Borrower or, if no such
written notice was so delivered, as follows:
(a) in the case of the Borrower, to Yankee Energy System, Inc.,
599 Research Parkway, Meriden, Connecticut 06450-1030; Attention:
Matthew J. Ide, Manager, Finance Services, Telephone: (203)
639-4457; Facsimile (203) 639-4011;
(b) in the case of the Administrative Agent, to The Bank of New
York, Agency Function Administration, One Wall Street, 18th
Floor, New York, NY 10286; Attention: La Rue Brathwaite,
Telephone: (212) 635-4698, Facsimile (212) 635-6365 or 6366 or
6367; with a copy to: The Bank of New York, One Wall Street, 19th
Floor, New York, NY 10286, Attention: John W. Hall, Vice
President, Telephone: (212) 635-7581, Facsimile (212) 635-7923;
and
(c)In the case of a Lender, at its address set forth on its
signature page hereto or, in the Assignment or Acceptance
Agreement or other instrument pursuant to which it became a
Lender;
provided, however, that any notice, request or demand by the
Borrower pursuant to Sections 2.2, 2.3, 2.4 or 3.3 shall not be
effective until received. Any party to a Loan Document may rely
on signatures of the parties thereto which are transmitted by
facsimile or other electronic means as fully as if originally
signed.
11.3. Survival
All covenants, agreements, representations and warranties made by
the Borrower herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall
be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this
Agreement and the making of any Revolving Loans, regardless of
any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent or any Lender
may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended
hereunder.
11.4. Expenses; Indemnity
(a) The Borrower agrees, on demand therefor and whether any
Revolving Loan is made (i) to pay or reimburse the Administrative
Agent for all reasonable out-of-pocket expenses incurred thereby,
including the reasonable fees, charges and disbursements of
counsel, in connection with the development, preparation,
execution, syndication and administration of, the Loan Documents
(including any amendment, supplement or other modification
thereto (whether or not executed or effective)), any documents
prepared in connection therewith and the consummation of the
transactions contemplated thereby and (ii) to pay or reimburse
the Administrative Agent and each Lender for all of its costs and
expenses, including reasonable fees and disbursements of counsel,
incurred in connection with (A) the protection or enforcement
of its rights under the Loan Documents, including any related
collection proceedings and any negotiation, restructuring or
"work-out", and (B) the enforcement of this Section.
(b) The Borrower shall, on demand therefor, indemnify the
Administrative Agent, each Lender and each of their respective
Related Parties (each, an Indemnified Person) against, and hold
each Indemnified Person harmless from, any and all losses,
claims, damages, penalties, liabilities and related expenses,
including the fees, charges and disbursements of any counsel,
incurred by or asserted against any Indemnified Person in
connection with or in any way arising out of any Loan Document as
a result of (i) any breach by the Borrower of the terms of any
Loan Document or any action or failure to act on the part of the
Borrower, (ii) any use of the proceeds of a Revolving Loan, (iii)
any liability in respect of any Environmental Law related in any
way to the Borrower or any of its Subsidiaries, (iv) any
action or failure to act on the part of the Borrower or (v) any
actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any
Indemnified Person is a party thereto (collectively, the
Indemnified Liabilities), provided that such indemnity shall not,
as to any Indemnified Person, be available to the extent that
such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or willful misconduct of,
or a willful breach of any material term of any Loan Document by,
such Indemnified Person.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or any of
its Affiliates under subsections (a) or (b) of this Section 11.4,
each Lender severally agrees, on demand therefor, to pay to the
Administrative Agent such Lender's Total Percentage of such
amount (determined as of the time that the applicable
unreimbursed expense or Indemnified Liability is sought).
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnified
Person for any special, indirect, consequential or punitive
damages (whether accrued and whether known or suspected to exist
in its favor) arising out of, in connection with, or as a result
of, the Loan Documents, the transactions contemplated thereby or
any Revolving Loan or the use of the proceeds thereof.
11.5. Successors and Assigns
(a) The Loan Documents shall be binding upon and inure to the
benefit of each of the parties thereto, and their respective
successors and assigns, except that the Borrower may not assign
or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and
each Lender (and any such attempted assignment or transfer
without such consent shall be null and void).
(b) Each Lender may assign all or a portion of its rights and
obligations under the Loan Documents to (i) any Subsidiary or
Affiliate of such Lender, (ii) any other Lender, or (iii) with
the consent of the Borrower and the Administrative Agent (which
consents shall not be unreasonably withheld or delayed and, in
the case of the Borrower's consent, shall not be required during
the continuance of an Event of Default), to any other Eligible
Institution, provided that:
(A) each such assignment shall be of a constant, and not a
varying, percentage of all of the assignor Lender's rights and
obligations under the Loan Documents;
(B) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Revolving Commitment, the amount
of the Revolving Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment
and Acceptance Agreement with respect to such assignment is
delivered to the Administrative Agent) shall not be less than
$5,000,000 or a whole multiple of $1,000,000 in excess thereof;
and
(D) the assignor and such assignee shall deliver to the
Administrative Agent three copies of an Assignment and Acceptance
Agreement executed by each of them, along with an assignment fee
in the sum of $3,000 for the account of the Administrative Agent.
Upon receipt of such number of executed copies of each such
Assignment and Acceptance Agreement together with the assignment
fee therefor and the consents required to such assignment, if
required, the Administrative Agent shall record the same and
execute not less than two copies of such Assignment and
Acceptance Agreement in the appropriate place, deliver one such
copy to the assignor and one such copy to the assignee, and
deliver one photocopy thereof, as executed, to the Borrower. From
and after the Assignment Effective Date specified in, and as
defined in, such Assignment and Acceptance Agreement, the
assignee thereunder shall, unless already a Lender, become a
party hereto and shall, for all purposes of the Loan Documents,
be deemed a "Lender" and, to the extent provided in such
Assignment and Acceptance Agreement, the assignor Lender
thereunder shall be released from its obligations under this
Agreement and the other Loan Documents. The Borrower agrees that,
if requested, in connection with each such assignment, it shall
at its own cost and expense execute and deliver to the
Administrative Agent or such assignee a Note, each payable to
the order of such assignee and dated the Effective Date. The
Administrative Agent shall be entitled to rely upon the
representations and warranties made by the assignee under each
Assignment and Acceptance Agreement.
(c) Each Lender may grant participations in all or any part of
its rights and obligations under the Loan Documents to one or
more Eligible Institutions, provided that (i) such Lender's
obligations under this Agreement and the other Loan Documents
shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties to this Agreement and the other
Loan Documents for the performance of such obligations, (iii) 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, (iv) the granting of such participation does not
require that any additional loss, cost or expense be borne by the
Borrower at any time, and (v) the voting rights of any holder of
any participation shall be limited to decisions that in
accordance with Section 11.1 require the consent of all of the
Lenders.
(d) Subject to subsection (e) below, any Lender may at any time
assign all or any portion of its rights under any Loan Document
to any Federal Reserve Bank.
(e) Except to the extent of any assignment pursuant to subsection
(b)above, no Lender shall be relieved of any of its obligations
under the Loan Documents as a result of any assignment of or
granting of participations in, all or any part of its rights and
obligations under the Loan Documents.
11.6. Counterparts; Integration
Each Loan Document (other than the Notes) may be executed by one
or more of the parties thereto on any number of separate
counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same document. It shall not be
necessary in making proof of any Loan Document to produce or
account for more than one counterpart signed by the party to be
charged. Delivery of an executed counterpart of a signature page
of any Loan Document by facsimile shall be effective as delivery
of a manually executed counterpart of such Loan Document. The
Loan Documents and any separate letter agreements between
the Borrower and the Administrative Agent or a Lender with
respect to fees embody the entire agreement and understanding
among the Borrower, the Administrative Agent and the Lenders with
respect to the subject matter thereof and supersede all prior
agreements and understandings among the Borrower, the
Administrative Agent and the Lenders with respect to the subject
matter thereof.
11.7. Severability
Every provision of the Loan Documents is intended to be
severable, and if any term or provision thereof shall be invalid,
illegal or unenforceable for any reason, the validity, legality
and enforceability of the remaining provisions thereof shall not
be affected or impaired thereby, and any invalidity, illegality
or unenforceability in any jurisdiction shall not affect the
validity, legality or enforceability of any such term or
provision in any other jurisdiction.
11.8. GOVERNING LAW
THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.9. Jurisdiction; Service of Process
Each party to a Loan Document hereby irrevocably submits to the
nonexclusive jurisdiction of any New York State or Federal court
sitting in The City of New York over any suit, action or
proceeding arising out of or relating to the Loan Documents. Each
party to a Loan Document hereby irrevocably waives, to the
fullest extent permitted or not prohibited by law, any objection
which it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding brought in such a court and
any claim that any such suit, action or proceeding brought in
such a court has been brought in an inconvenient forum. The
Borrower hereby agrees that a final judgment in any such suit,
action or proceeding brought in such a court, after all ap-
propriate appeals, shall be conclusive and binding upon it and
may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent or a Lender
may otherwise have to bring any action or proceeding relating to
Loan Documents against the Borrower or its properties in the
courts of any jurisdiction. Each party to a Loan Document hereby
irrevocably consents to service of process in the manner provided
for notices in Section 11.2. Nothing in this Agreement will
affect the right of any party to a Loan Document to serve process
in any other manner permitted by law.
11.10. WAIVER OF TRIAL BY JURY
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.10.
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
YANKEE ENERGY SYSTEM, INC.
By: /s/ James M. Sepanski
Name: James M. Sepanski
Title: CFO
<PAGE>
<PAGE>
SIGNATURE PAGE TO
YANKEE ENERGY SYSTEM, INC. CREDIT AGREEMENT
THE BANK OF NEW YORK,
Individually, and as Administrative Agent
By: /s/ John W. Hall
Name: John W. Hall
Title: Vice President
Revolving Commitment: $15,000,000
Address for Notices
The Bank of New York
Agency Function Administration
One Wall Street
18th Floor New York, NY 10286
Attention: La Rue Brathwaite
Telephone: (212) 635-4698
Facsimile (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
One Wall Street
19TH Floor
New York, NY 10286
Attention: John W. Hall, Vice President
Telephone: (212) 635-7581
Facsimile: (212) 635-7923
<PAGE>
<PAGE>
SIGNATURE PAGE TO
YANKEE ENERGY SYSTEM, INC. CREDIT AGREEMENT
MELLON BANK, N.A.
By: /s/ Roger E. Howard
Name: Roger E. Howard
Title: Vice President
Revolving Commitment: $10,000,000
Address for Notices
Mellon Bank, N.A.
Energy Services Group
One Mellon Bank Center
Room 151-4425
Pittsburgh, PA 15258-0001
Attention: Richard Moye
Assistant Vice President
Telephone: (412) 236-4273
Facsimile: (412) 236-1840
