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Title: |
Credit Agreement |
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Entities: |
Bank One, NA; Barclays Bank plc; Citicorp USA, Inc.; Citigroup Global Markets Inc.; Connecticut Light & Power Co.; Deutsche Bank Trust Company Americas; Dominion Resources, Inc.; Dominion Resources, Inc.; Fleet National Bank; J.P. Morgan Securities Inc.; JPMorgan Chase Bank; McGraw-Hill Companies Inc.; Northeast Utilities; Union Bank of California, NA; Wachovia Bank, NA; Bank of New York |
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Date: |
2004 |
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Preview shows 42KB of 246KB total |
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$46 |
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ID: |
#1404048 |
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EXECUTION VERSION
CREDIT AGREEMENT
Dated as of November 8, 2004
among
NORTHEAST UTILITIES,
as Borrower
THE BANKS NAMED HEREIN,
UNION BANK OF CALIFORNIA, N.A.,
as Administrative Agent
and
JPMORGAN CHASE BANK,
as Fronting Bank
BARCLAYS CAPITAL and
UNION BANK OF CALIFORNIA, N.A.,
Joint Lead Arrangers
CITIGROUP GLOBAL MARKETS INC. and
J.P. MORGAN SECURITIES INC.,
Co-Syndication Agents
FLEET NATIONAL BANK,
Documentation Agent
CREDIT AGREEMENT
Dated as of November 8, 2004
THIS CREDIT AGREEMENT is made by and among:
(i) NORTHEAST UTILITIES, an unincorporated voluntary
business association organized under the laws of
the Commonwealth of Massachusetts ("NU" or the
"Borrower");
(ii) The financial institutions (the "Banks") listed on
the signature pages hereof and the other Lenders
(as hereinafter defined) from time to time party
hereto;
(iii) UNION BANK OF CALIFORNIA, N.A. ("Union
Bank"), as Administrative Agent (as hereinafter
defined) for the Lenders hereunder; and
(iv) JPMORGAN CHASE BANK, as Fronting Bank (as
hereinafter defined).
PRELIMINARY STATEMENT
The Borrower has requested the Banks and the Fronting Bank
to provide the credit facility hereinafter described in the
amounts and on the terms and conditions set forth herein. The
Banks and the Fronting Bank have so agreed on the terms and
conditions set forth herein, and the Administrative Agent has
agreed to act as agent for the Lenders on such terms and
conditions.
Based upon the foregoing and subject to the terms and
conditions set forth in this Agreement, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have
the following meanings (such meanings to be applicable to the
singular and plural forms of the terms defined):
"Account Party" has the meaning set forth in
Section 2.02(a).
"Administrative Agent" means Union Bank, in its capacity as
administrative agent hereunder, or any successor thereto as
provided herein.
"Advance" means an advance by a Lender to the Borrower
pursuant to Article III hereof, and refers to a Eurodollar Rate
Advance or a Base Rate Advance (each of which shall be a "Type"
of Advance).
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including, but not
limited to, all directors and officers of such Person),
controlled by, or under direct or indirect common control with
such Person. A Person shall be deemed to control another entity
if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of
such entity, whether through the ownership of voting securities,
by contract or otherwise.
"Agreement" means this Credit Agreement, as the same may be
modified, amended and/or supplemented pursuant to the terms
hereof.
"Applicable Facility Fee Rate" means, for any day, the
percentage per annum set forth below in effect on such day,
determined on the basis of the Applicable Rating Level of the
Borrower:
Applicable Facility Fee Rate
---------------------------
Applicable Rating Level Percentage (%)
----------------------- --------------
Level I 0.125
Level II 0.150
Level III 0.175
Level IV 0.200
Level V 0.250
Level VI 0.400
Any change in the Applicable Facility Fee Rate caused by a
change in the Applicable Rating Level shall take effect at
the time such change in the Applicable Rating Level shall
occur.
"Applicable Lending Office" means, with respect to each
Lender:
(i) in the case of any Advance, (A) such Lender's
"Eurodollar Lending Office" in the case of a Eurodollar Rate
Advance or (B) such Lender's "Domestic Lending Office" in
the case of a Base Rate Advance, in each case as specified
opposite such Lender's name on Schedule I hereto or in the
Lender Assignment pursuant to which it became a Lender; or
(ii) in each case, such other office of such Lender as
such Lender may from time to time specify in writing to the
Borrower and the Administrative Agent.
"Applicable Margin" means, for any day for any outstanding
Advance, the percentage per annum set forth below in effect on
such day, determined on the basis of the Applicable Rating Level
for the Borrower:
Applicable Margin Percentage
----------------------------
Eurodollar Utilization Utilization
Rating Rate Margin for Margin
Level Advances Eurodollar Base for Base
(%) Rate Rate Rate
Advances Advances Advances
(%) (%) (%)
Level I 0.375 0.125 0.000 0.125
Level II 0.475 0.125 0.000 0.125
Level III 0.575 0.125 0.000 0.125
Level IV 0.800 0.125 0.000 0.125
Level V 1.000 0.125 0.000 0.125
Level VI 1.225 0.125 0.225 0.125
provided, that (x) the Applicable Margin for Eurodollar Rate
Advances shall be increased by the rate per annum set forth above
under the caption "Utilization Margin for Eurodollar Rate
Advances" that corresponds to the Applicable Rating Level used to
determine such Applicable Margin and (y) the Applicable Margin
for Base Rate Advances shall be increased by the rate per annum
set forth above under the caption "Utilization Margin for Base
Rate Advances" that corresponds to the Applicable Rating Level
used to determine such Applicable Margin, in any case, during any
period in which the total principal amount of Outstanding Credits
is greater than one-half of the Total Commitment. Any change in
the Applicable Margin caused by a change in the Applicable Rating
Level shall take effect at the time such change in the Applicable
Rating Level shall occur.
"Applicable Rate" means, with respect to any Advance made to
the Borrower, either of (i) the Base Rate from time to time
applicable to such Advance plus the Applicable Margin, or
(ii) the Eurodollar Rate from time to time applicable to such
Advance plus the Applicable Margin.
"Applicable Rating Level" shall be determined at any time
and from time to time on the basis of the Reference Ratings in
accordance with the following:
Applicable
Rating S&P Reference
Level Rating Moody's Reference Rating
---------- -------------- ------------------------
Level I A- or higher Or A3 or higher
Level II BBB+ Or Baa1
Level III BBB Or Baa2
Level IV BBB- and Baa3
Level V BBB- Or Baa3
Level VI BB+ or lower and Ba1 or lower
(or unrated) (or unrated)
"Level I" applies on any day on which the S&P Reference Rating
is A- or higher or the Moody's Reference Rating is A3 or higher.
"Level II" applies on any day on which (i) the S&P Reference
Rating is BBB+ or higher or the Moody's Reference Rating is Baa1
or higher and (ii) Level I does not apply.
"Level III" applies on any day on which (i) the S&P Reference
Rating is BBB or higher or the Moody's Reference Rating is Baa2
or higher and (ii) neither Level I or Level II applies.
"Level IV" applies on any day on which the S&P Reference Rating
is BBB- and the Moody's Reference Rating is Baa3.
"Level V" applies on any day on which (i) the S&P Reference
Rating is BBB- or higher or the Moody's Reference Rating is Baa3
or higher and (ii) none of Levels I, II, III or IV applies.
"Level VI" applies on any day on which (i) the S&P Reference
Rating is BB+ or lower and the Moody's Reference Rating is Ba1
or lower and (ii) none of Levels I, II, III, IV or V applies.
In the event that the Reference Ratings do not correspond to the
same Applicable Rating Level, then, (i) if the higher of such
Reference Ratings corresponds to Levels I, II, III or V and (A)
the Reference Ratings differ by only one rating level, the
Applicable Rating Level that corresponds to the higher of such
Reference Ratings shall apply, and (B) the Reference Ratings
differ by more than one rating level, the Applicable Rating
Level that is one level below the Applicable Rating Level that
corresponds to the higher of such Reference Ratings shall apply,
and (ii) if the Reference Ratings differ by more than one rating
level and the lower of such Reference Ratings corresponds to
Level VI, the Applicable Rating Level that corresponds to the
lower of such Reference Ratings shall apply. The Applicable
Rating Level shall be redetermined as and when any change in the
ratings used in the determination thereof shall be announced by
S&P or Moody's, as the case may be.
"Approved Fund" means any Person (other than a natural
person) that is (or will be) engaged in making, purchasing,
holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business that
is administered or managed by (i) a Lender, (ii) an Affiliate of
a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Available Commitment" means, for each Lender, the excess of
such Lender's Commitment over such Lender's Percentage of the
Outstanding Credits. "Available Commitments" shall refer to the
aggregate of the Lenders' Available Commitments hereunder.
"Banks" has the meaning assigned to that term in the caption
to this Agreement.
"Base Rate" means, for any period, a fluctuating interest
rate per annum as shall be in effect from time to time, which
rate per annum shall at all times be equal to the higher of:
(i) the rate of interest announced publicly by the
Administrative Agent in its principal place of business from
time to time as the Administrative Agent's "base rate" or
"reference rate"; and
(ii) 1/2 of one percent per annum above the Federal Funds
Rate in effect from time to time.
If the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it
is unable to ascertain the Federal Funds Rate for any reason,
including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms
thereof, the Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition, in the event
the Administrative Agent is unable to ascertain the Federal Funds
Rate, until the circumstances giving rise to such inability no
longer exist. Any change in the Base Rate due to a change in the
Administrative Agent's base rate or the Federal Funds Rate shall
be effective on the effective date of such change in the
Administrative Agent's base rate or the Federal Funds Rate.
"Base Rate Advance" means an Advance in respect of which the
Borrower has selected in accordance with Article III hereof, or
this Agreement provides for, interest to be computed on the basis
of the Base Rate.
"Beneficiary" means any Person designated by an Account
Party to whom the Fronting Bank is to make payment, or on whose
order payment is to be made, under a Letter of Credit.
"Borrower" has the meaning assigned to that term in the
caption to this Agreement.
"Borrowing" means a borrowing consisting of one or more
Advances of the same Type and Interest Period, if any, made to
the Borrower on the same Business Day by the Lenders, ratably in
accordance with their respective Commitments. A Borrowing may be
referred to herein as being a "Type" of Borrowing, corresponding
to the Type of Advances comprising such Borrowing. For purposes
of this Agreement, all Advances of the same Type and Interest
Period, if any, made or converted on the same day to the Borrower
shall be deemed a single Borrowing hereunder until repaid.
"Business Day" means a day of the year on which banks are
not required or authorized to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances,
on which dealings are carried on in the London interbank market.
"Cash Collateral Account" means an account maintained at the
principal domestic office of the Administrative Agent for the
purpose, and subject to the terms and conditions, set forth in
Section 2.02(h).
"Change of Control" means (i) any Person or "group" (within
the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended), shall either (A) acquire beneficial
ownership of more than 50% of any outstanding class of common
stock of NU having ordinary voting power in the election of
directors of NU or (B) obtain the power (whether or not
exercised) to elect a majority of NU's directors or (ii) the
Board of Directors of NU shall not consist of a majority of
Continuing Directors. For purposes of this definition, the term
"Continuing Directors" means directors of NU on the Closing Date
and each other director of NU, if such other director's
nomination for election to the Board of Directors of NU is
recommended by a majority of the then Continuing Directors.
"CL&P" means The Connecticut Light and Power Company, a
corporation organized under the laws of the State of Connecticut.
"Closing Date" has the meaning assigned to that term in
Section 5.01 hereof.
"Commitment" means, for each Lender, the aggregate amount
set forth opposite such Lender's name on Schedule I or, if such
Lender has entered into one or more Lender Assignments, set forth
for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 10.07(c), in each such case as such
amount may be reduced or increased from time to time pursuant to
Section 2.04 hereof. "Commitments" shall refer to the aggregate
of the Lenders' Commitments hereunder.
"Commitment Increase" has the meaning given such term in
Section 2.04(b).
"Commitment Increase Approvals" means any governmental
approval or resolution of the board of directors of the Borrower
that has not been obtained by or on behalf of the Borrower and is
not in full force and effect on the date hereof, which
governmental approval or resolution is required to be obtained in
order to authorize a Commitment Increase and the performance by
the Borrower of its obligations under this Agreement after giving
effect to such Commitment Increase.
"Common Equity" means, at any date for the Borrower, an
amount equal to the sum of the aggregate of the par value of, or
stated capital represented by, the outstanding common shares of
the Borrower and its Subsidiaries and the surplus, paid-in,
earned and other capital, if any, of the Borrower and its
Subsidiaries, in each case as determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Confidential Information" has the meaning assigned to that
term in Section 10.08 hereof.
"Consolidated Debt" means, at any date for the Borrower, the
total Debt of the Borrower and its Subsidiaries as determined on
a consolidated basis in accordance with generally accepted
accounting principles.
"Consolidated EBIT" means, for any period (as determined on
a consolidated basis in accordance with generally accepted
accounting principles), the Borrower's and its Subsidiaries' net
income for such period, adjusted as follows:
(i) increased by the amount of federal and state income taxes to
the extent deducted in the computation of such Borrower's
and/or its Subsidiaries' consolidated net income for such
period;
(ii) increased by the amount of Consolidated Interest Expense
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iii) increased by the amount of dividends on preferred stock
deducted in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period;
(iv) decreased (increased) by the gain (loss) on asset sales done
outside the ordinary course of business by the Borrower
and/or its Subsidiaries to the extent such gains (losses)
are not offset by increases (decreases) in amortization of
regulatory assets, and to the extent such gain (loss) is
included in the computation of the Borrower's and/or its
Subsidiaries' consolidated net income for such period; and
(v) decreased by the amount of revenues accrued by the Borrower
and/or its Subsidiaries related to interest on Stranded Cost
Recovery Obligations of Subsidiaries of the Borrower, and
increased by the amount of operating expenses accrued by the
Borrower and/or its Subsidiaries related to interest on
Stranded Cost Recovery Obligations of Subsidiaries of the
Borrower, in each case to the extent included in the
computation of the Borrower's and/or its Subsidiaries'
consolidated net income for such period.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of any interest required to be paid during such
period by the Borrower and its Subsidiaries on Debt (including
the current portion thereof) (as determined on a consolidated
basis in accordance with generally accepted accounting
principles), excluding interest required to be paid on the
Stranded Cost Recovery Obligations of any Subsidiary of the
Borrower.
"Date of Issuance" means the date of issuance by the
Fronting Bank of a Letter of Credit under this Agreement.
"Debt" means, for any Person, without duplication,
(i) indebtedness of such Person for borrowed money, including but
not limited to obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (excluding
Stranded Cost Recovery Obligations that are non-recourse to such
Person), (ii) obligations of such Person to pay the deferred
purchase price of property or services (excluding any obligation
of such Person to Dominion Resources, Inc. or its successor with
respect to disposition of spent nuclear fuel burned prior to
April 3, 1983), (iii) obligations of such Person as lessee under
leases that shall have been or should be, in accordance with
generally accepted accounting principles, recorded as capital
leases, (iv) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the
kinds referred to in clauses (i) through (iii), above, including
all Parent Support Obligations, (v) letters of credit, guaranties
and other forms of credit enhancement issued to support power
sales and trading activities, and (vi) liabilities in respect of
unfunded vested benefits under ERISA Plans.
"Defaulting Lender" has the meaning set forth in Section
2.02(m).
"Disclosure Documents" means for the Borrower and each
Principal Subsidiary, as applicable: (i) such Person's Annual
Report on Form 10-K for the fiscal year ended December 31, 2003;
(ii) its Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31 and June 30, 2004; (iii) the Information
Memorandum; and (iv) the Borrower's Current Reports on Form 8-K
filed January 22, 2004, March 30, 2004, May 19, 2004, June 15,
2004, June 24, 2004, July 14, 2004, August 19, 2004 and September
15, 2004.
"Drawing" means a drawing by a Beneficiary under any Letter
of Credit.
"Eligible Assignee" means (i) a Lender, (ii) an Affiliate of
a Lender, (iii) an Approved Fund and (iv) any other Person (other
than a natural person) approved by (A) the Administrative Agent,
(B) in the case of any assignment of any Commitment, the Fronting
Bank, and (C) unless an Event of Default has occurred and is
continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided that notwithstanding
the foregoing, "Eligible Assignee" shall not include the Borrower
or any of the Borrower's Affiliates or Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means, with respect to any Person, any
trade or business (whether or not incorporated) that is a
"commonly controlled entity" of such Person within the meaning of
the regulations under Section 414 of the Internal Revenue Code of
1986, as amended from time to time.
"ERISA Multiemployer Plan" means a "multiemployer plan"
subject to Title IV of ERISA.
"ERISA Plan" means an employee benefit plan (other than a
ERISA Multiemployer Plan) maintained for employees of the
Borrower or any ERISA Affiliate of the Borrower and covered by
Title IV of ERISA.
"ERISA Plan Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under such regulations)
with respect to an ERISA Plan or an ERISA Multiemployer Plan, or
(ii) the withdrawal of the Borrower or any of its ERISA
Affiliates from an ERISA Plan or an ERISA Multiemployer Plan
during a plan year in which it was a "substantial employer" as
defined in Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate an ERISA Plan or an ERISA
Multiemployer Plan or the treatment of an ERISA Plan amendment as
a termination or of an ERISA Multiemployer Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the institution
of proceedings to terminate an ERISA Plan or an ERISA
Multiemployer Plan by the PBGC, or (v) any other event or
condition that might constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any ERISA Plan or ERISA Multiemployer Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurodollar Rate" means, for each Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rates per annum at which
deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 a.m. (London time) two
Business Days before the first day of such Interest Period in the
amount of $1,000,000 and for a period equal to such Interest
Period. The Eurodollar Rate for the Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative
Agent from the Reference Banks two Business Days before the first
day of such Interest Period, subject, however, to the provisions
of Sections 3.05(d) and 4.03(g).
"Eurodollar Rate Advance" means an Advance in respect of
which the Borrower has selected in accordance with Article III
hereof, or this Agreement provides for, interest to be computed
on the basis of the Eurodollar Rate.
"Eurodollar Reserve Percentage" of any Lender or its
subparticipant, for each Interest Period for each Eurodollar Rate
Advance, means the reserve percentage applicable during such
Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days
in such Interest Period during which any such percentage shall be
so applicable) under Regulation D or other regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement,
without benefit of or credit for proration, exemptions or
offsets) for such Lender or its subparticipant with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" has the meaning specified in Section 8.01
hereof.
"Existing Credit Facility" means the credit facility
provided under the Credit Agreement, dated as of November 10,
2003, among NU, the lenders party thereto, Union Bank, as
administrative agent for the lenders thereunder, and Bank One,
NA, as fronting bank thereunder.
"Existing LCs" means letters of credit (i) issued under the
Existing Credit Facility; (ii) outstanding and available to be
drawn as of the Closing Date; and (iii) identified on
Schedule III hereto.
"Expiration Date" means, with respect to a Letter of Credit,
its stated expiration date.
"Extension of Credit" means the making of any Advance or the
issuance or amendment (including, without limitation, an
extension or renewal) of a Letter of Credit.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal to, for each day during such
period, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter dated October 6,
2003 among the Borrower, CL&P, WMECO, Yankee, PSNH, Barclays
Capital, Barclays Bank PLC, Union Bank, Citigroup Global Markets
Inc., Citicorp USA, Inc. and J.P. Morgan Securities Inc.
"FERC" means the Federal Energy Regulatory Commission.
"Financial Statements" means, with respect to the Borrower
and each Principal Subsidiary, as applicable, (i) the audited
consolidated balance sheet of such Person as at December 31, 2003
(ii) the unaudited consolidated balance sheet of such Person as
at June 30, 2004, (iii) the audited consolidated statements of
income and cash flows of such Person for the Fiscal Year ended
December 31, 2003 and (iv) the unaudited consolidated statements
of income and cash flows of such Person for the 6-month period
ended June 30, 2004, in each case as included in such Person's
Annual Report on Form 10-K for the Fiscal Year ended December 31,
2003 or Quarterly Report on Form 10-Q for the Fiscal Quarter
ended June 30, 2004.
"First Mortgage Indenture" means, (i) in the case of CL&P,
the Indenture of Mortgage and Deed of Trust, dated as of May 1,
1921, from CL&P to Deutsche Bank Trust Company Americas, as
successor trustee, as previously and hereafter amended and
supplemented, (ii) in the case of Yankee, the Indenture of
Mortgage and Deed of Trust, dated as of July 1, 1989, between
Yankee and The Bank of New York, as successor trustee, as in
effect on the date hereof and as amended and supplemented from
time to time, (iii) in the case of WMECO, any first mortgage
indenture entered into after the date hereof on substantially the
terms of the Old WMECO Indenture and covering substantially the
same collateral, so long as such indenture and the lien created
thereby are approved by the Massachusetts Department of
Telecommunications and Energy, (iv) in the case of NGC, the
Indenture of Mortgage and Deed of Trust, dated as of October 18,
2001, between NGC and The Bank of New York, as trustee, as
amended and supplemented from time to time, and (v) in the case
of PSNH, the First Mortgage Indenture, dated as of August 15,
1978, between PSNH and Wachovia Bank, National Association, as
successor trustee, as previously and hereafter amended and
supplemented.
"Fiscal Quarter" means a period of three calendar months
ending on the last day of March, June, September or December, as
the case may be.
"Fiscal Year" means a period of twelve calendar months
ending on the last day of December.
"Fronting Bank" means JPMorgan Chase Bank and any other
Lender having a long-term credit rating acceptable to the
Borrower that delivers an instrument in form and substance
satisfactory to the Borrower and the Administrative Agent whereby
such other Lender agrees to act as "Fronting Bank" hereunder.
"Governmental Approval" means any authorization, consent,
approval, license, permit, certificate, exemption of, or filing
or registration with, any governmental authority or other legal
or regulatory body (including, without limitation, the Securities
and Exchange Commission, the FERC, the Nuclear Regulatory
Commission, the Connecticut Department of Public Utility Control,
the New Hampshire Public Utilities Commission and the
Massachusetts Department of Telecommunications and Energy)
required in connection with either (i) the execution, delivery or
performance of any Loan Document, or (ii) the nature of the
Borrower's or any Subsidiary's business as conducted or the
nature of the property owned or leased by it.
"Hazardous Substance" means any waste, substance or material
identified as hazardous, dangerous or toxic by any office,
agency, department, commission, board, bureau or instrumentality
of the United States of America or of the State or locality in
which the same is located having or exercising jurisdiction over
such waste, substance or material.
"Indemnified Person" has the meaning assigned to that term
in Section 10.04(b) hereof.
"Information Memorandum" means the Confidential Information
Memorandum, dated October, 2004, regarding the credit facility to
be provided to the Borrower hereunder, as distributed to the
Administrative Agent and the Lenders, including, without
limitation, all schedules and attachments thereto.
"Interest Period" has the meaning assigned to that term in
Section 3.05(a) hereof.
"L/C Commitment Amount" equals $350,000,000, as the same may
be reduced or increased from time to time pursuant to
Section 2.04 hereof.
"Lender Assignment" means an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit 10.07
hereto.
"Lenders" means the financial institutions listed on the
signature pages hereof, and each assignee that shall become a
party hereto pursuant to Section 10.07.
"Letter of Credit" has the meaning set forth in
Section 2.02(a).
"Letter of Credit Request" has the meaning set forth in
Section 2.02(c).
"Lien" means, with respect to any asset or property, any
mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset or property. For the
purposes of this Agreement, a Person or any of its Subsidiaries
shall be deemed to own subject to a Lien any asset that it has
acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan Documents" means this Agreement and the Notes.
"Majority Lenders" means on any date of determination,
Lenders who, collectively, on such date (i) have Percentages in
the aggregate of at least 66-2/3% and (ii) if the Commitments
have been terminated, hold at least 66-2/3% of the then aggregate
Outstanding Credits of the Lenders. Determination of those
Lenders satisfying the criteria specified above for action by the
Majority Lenders shall be made by the Administrative Agent and
shall be conclusive and binding on all parties absent manifest
error.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto.
"NGC" means Northeast Generation Company, a corporation
organized under the laws of the State of Connecticut.
"Note" means a promissory note of the Borrower payable to
the order of a Lender, in substantially the form of Exhibit 1.01A
hereto, evidencing the aggregate indebtedness of the Borrower to
such Lender resulting from the Advances made by such Lender to
the Borrower, as such may be amended, supplemented or otherwise
modified from time to time.
"Notice of Borrowing" has the meaning assigned to that term
in Section 3.01 hereof.
"NU" has the meaning assigned to that term in the caption to
this Agreement.
"NU System Money Pool" means the money pool described in the
application/declaration, as amended, of NU and certain of its
Subsidiaries, filed with the Securities and Exchange Commission
in File No. 70-9755, as amended from time to time.
"NUSCO" means Northeast Utilities Service Company, a
Connecticut corporation.
"Old WMECO Indenture" means the First Mortgage Indenture and
Deed of Trust dated as of August 1, 1954, from WMECO to State
Street Bank and Trust Company, as successor trustee, as amended
and supplemented.
"Other Taxes" has the meaning assigned to that term in
Section 4.05(b)
"Outstanding Credits" mean, on any date of determination, an
amount equal to (i) the aggregate principal amount of all
Advances outstanding on such date plus (ii) the aggregate Stated
Amounts of all issued but undrawn Letters of Credit outstanding
on such date plus (iii) the aggregate amount of Reimbursement
Obligations outstanding on such date (exclusive of Reimbursement
Obligations that, on such date of determination, are repaid with
the proceeds of an Advance made in accordance with Section
2.02(g)(ii), to the extent the principal amount of such Advance
is included in the determination of the aggregate principal
amount of all outstanding Advances as provided in clause (i) of
this definition). The "Outstanding Credits" of a Lender on any
date of determination shall be an amount equal to the outstanding
Advances made by such Lender plus the amount of such Lender's
participatory interest in outstanding Letters of Credit and
Reimbursement Obligations.
"Parent Support Obligation" means, without duplication, any
obligation of the Borrower under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against
loss in respect of, indebtedness or obligations of others of the
kinds referred to in clauses (i) through (iii) and (v) of the
definition of "Debt", including any reimbursement obligation in
respect of a letter of credit, any recourse obligation in respect
of a surety or similar bond or other, similar obligation of the
Borrower other than a construction completion or similar
performance guaranty as permitted hereunder issued on behalf of
Select Energy Services, Inc. (formerly known as HEC Inc.). The
amount of each Parent Support Obligation shall be computed in
good faith in accordance with the Borrower's then applicable mark-
to-market and other risk management methods.
"Participation Transfer Date" has the meaning assigned to
that term in Section 2.02(m).
"Participation Transfer Period" has the meaning assigned to
that term in Section 2.02(m).
"Payment Date" means the date on which payment of a Drawing
is made by the Fronting Bank.
"PBGC" means the Pension Benefit Guaranty Corporation (or
any successor entity) established under ERISA.
"Percentage" means, in respect of any Lender on any date of
determination, the percentage obtained by dividing such Lender's
Commitment on such day by the total of the Commitments on such
day, and multiplying the quotient so obtained by 100%.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint
stock company, trust, unincorporated association, joint venture
or other entity, or a government or any political subdivision or
agency thereof.
"Principal Subsidiary" shall mean, during any fiscal
quarter, CL&P, WMECO, PSNH, Select Energy Inc., NGC, Yankee and
any other Subsidiary, whether owned directly or indirectly by the
Borrower, which, with respect to the Borrower and its
Subsidiaries taken as a whole, represents at least ten percent
(10%) of the Borrower's consolidated assets (calculated as an
average of such consolidated assets over the preceding four
fiscal quarters) and ten percent (10%) of the Borrower's
consolidated net income (or loss) (calculated as a sum of such
net income (or loss) over the preceding four fiscal quarters).
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