EXHIBIT 4.3.7
AMENDED AND RESTATED
SERIES E LOAN AND TRUST AGREEMENT
among
BUSINESS FINANCE AUTHORITY OF THE
STATE OF NEW HAMPSHIRE
formerly known as The Industrial Development Authority
of the State of New Hampshire)
and
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE
and
STATE STREET BANK AND TRUST COMPANY, as Trustee
Dated as of April 1, 1999
Amending and Restating
Series E Loan and Trust Agreement Dated as of May 1, 1991,
as amended by First Supplement Dated as of December 1, 1993
and Second Supplement Dated as of May 1, 1995
And Providing for the Issue of:
$114,500,000
($69,700,000 outstanding at the time of amendment and restatement)
The Industrial Development Authority of the State of New Hampshire
Pollution Control Revenue Bonds
(Public Service Company of New Hampshire Project - 1991 Taxable Series E)
and
$44,800,000
Business Finance Authority of the State of New Hampshire
Pollution Control Refunding Revenue Bonds
(Public Service Company of New Hampshire Project - 1993 Tax-Exempt Series E)
TABLE OF CONTENTS
ARTICLE I: INTRODUCTION AND DEFINITIONS
Section 101. Description of this Agreement and the Parties
Section 102. Definitions
(a) Words
(b) Number and Gender
(c) Use of Examples
ARTICLE II: LOAN OF BOND PROCEEDS; ISSUE OF SERIES G
Section 201. Issue of Series G First Mortgage Bonds; Confirmation
Concerning Series G First Mortgage Bonds
(a) Issue of Series G First Mortgage Bonds
(b) Confirmation Concerning Series G First Mortgage Bonds
Section 202. Assignment and Pledge of the Authority
Section 203. Further Assurances
Section 204. Defeasance
ARTICLE III: THE BORROWING
Section 301. The Bonds
(a) Forms of 1991 Series E Bonds and 1993 Series E Bonds
(i) Form of Flexible 1991 Series E Bond
(ii) Form of Weekly 1991 Series E Bond
(iii) Form of Multiannual 1991 Series E Bond
(iv) Form of Fixed Rate 1991 Series E Bond
(vi) Form of Weekly 1993 Series E Bond
(vii) Form of Multiannual 1993 Series E Bond
(viii) Form of Fixed Rate 1993 Series E Bond
(ix) Form of Book-Entry Only System Flexible 1991 Series E Bond
(b) Details of the 1991 Series E Bonds and the 1993 Series E Bonds
(i) Details of the 1991 Series E Bonds.
(ii) Details of the 1993 Series E Bonds.
(c) Tax-Exempt Refunding Bonds
(d) Flexible Mode
(i) Determination of Flexible Rates
(ii) Conversions from the Flexible Mode
(iii) Mandatory Tender for Purchase
(e) Weekly Mode
(i) Determination of Weekly Rates
(ii) Conversions from Weekly Mode
(iii) Bondowners' Option to Tender Bonds in Weekly Mode
(iv) Events Requiring Mandatory Tender of Weekly Bond
(A) Expiration of Credit Facility without Substitution or Replacement;
Substitution of Credit Facility
(B) Change in Mode
(f) Multiannual Mode
(i) Determination of Multiannual Rate
(ii) Conversions from Multiannual Mode and Changes of Rate Period
(iii) Mandatory Tender for Purchase
(g) Conversion to Fixed Rate Mode
(h) Partial Conversions
(i) General
(ii) Selection
(iii) Amendment
(i) Cancellation and Destruction of Bonds
(j) Replacement of Bonds
(k) Interest on Overdue Principal
Section 302. Application of 1991 Series E Bond Proceeds
Section 303. Application of Tax-Exempt Refunding Bond
Proceeds and of 1993 Series E Bond Proceeds
(a) Application of Tax-Exempt Refunding Bond Proceeds
(b) Application of 1993 Series E Bond Proceeds
Section 304. Bond Fund
(a) Establishment and Purpose
(b) Excess in Bond Fund
(c) Unclaimed Moneys
Section 305. Rebate
Section 306. Expenses of Issue
Section 307. Application of Moneys
Section 308. Payments by the Company
(a) Payments of Debt Service by the Company
(b) Additional Payments
(c) Drawings on the Credit Facility
(i) Debt Service
(ii) Tenders for Purchase
(iii) Use of Credit Facility
(iv) Failed Conversion
(d) Payment of Debt Service
(e) Company's Purchase of Bonds
Section 309. Unconditional Obligation
Section 310. Redemption of the Bonds
(a) Optional Redemption
(b) Extraordinary Optional Redemption
(c) Notice by the Company
(d) Payment of Redemption Price and Accrued Interest
(e) Notice of Redemption
Section 311. Purchase of Bonds Tendered
(a) Procedure
(i) Notice
(ii) Sources of Payments
(b) Payments by the Paying Agent
(c) Commencement of New Mode or Rate Period
Section 312. Remarketing of Bonds Tendered
(a) General
(b) Remarketing of Bonds in the Weekly Mode Between Notice and Redemption
or Conversion Date
Section 313. Paying Agent
(a) Appointment and Responsibilities
(b) Removal or Resignation of Paying Agent
(c) Successors
Section 314. Remarketing Agent
(a) Qualifications and Responsibilities
(b) Removal or Resignation of Remarketing Agent
(c) Successors
Section 315. Investments
Section 316. Reduction of Credit Facility on Change in Mode; Release of
Credit Facility upon Conversion to Multiannual or Fixed Rate Mode
Section 317. Credit Facilities
(a) Substitution or Replacement
(b) Requirements
Section 318. Tax Status of Bonds
Section 319. Securities Laws
Section 320. Registration of Bonds (except the 1993 Series E Bonds) in
the Book-Entry only System
Section 321. Registration of 1993 Series E Bonds in the Book-Entry Only
System
ARTICLE IV: TAX-EXEMPT REFUNDING BONDS
Section 401. Issuance of Tax-Exempt Refunding Bonds
Section 402. Execution and Delivery of the Tax-Exempt Refunding Bonds
Section 403. Form of Tax-Exempt Refunding Bonds
(a) General
(b) Redemption Upon Taxability
(c) Day Counting
Section 404. Conversion
Section 405. Mandatory Taxability Redemption
Section 406. Additional Limitations on Conversions of 1993 Series E Bonds
to New Modes
(a) Conversions to Multiannual Mode
(b) Conversions from Multiannual Mode to Flexible or Weekly Mode
Section 407. Tax Status of 1993 Series E Bonds
ARTICLE V. THE PROJECT
Section 501. Company not to Impair Tax Status; Use of Project Facilities
Section 502. Qualification of the Project Facilities
Section 503. Compliance with Law
Section 504. Current Expenses
Section 505. Disposition and Use of Project Facilities
Section 506. Books and Records
Section 507. Undivided Interest
ARTICLE VI: DEFAULT AND REMEDIES
Section 601. Default by the Company
(a) Events of Default; Default
(i) Debt Service on Bonds; Required Purchase
(ii) Other Obligations
(iii)First Mortgage Bond Default
(iv) Reimbursement Agreement
(v) Non-Reinstatement under the Credit Facility
(b) Waiver
Section 602. Remedies for Events of Default
(a) Acceleration
(i) Bonds Not Supported by a Credit Facility
(ii) Bonds Supported by a Credit Facility
(b) Rights as a Secured Party
Section 603. Court Proceedings
Section 604. Revenues after Default
Section 605. The Credit Facility; Acceleration
Section 606. Rights of Bondowners
Section 607. Performance of Company's Obligations
Section 608. Remedies Cumulative; No Waiver
ARTICLE VII: THE TRUSTEE
Section 701. Corporate Organization, Authorization and Capacity
Section 702. Rights and Duties of the Trustee
(a) Moneys to be Held in Trust
(b) Accounts
(c) Performance of the Authority's Obligations
(d) Responsibility
(e) Limitations on Actions
(f) Financial Obligations
(g) Ownership of Bonds
(h) No Surety Bond
(i) Requests by the Company
(j) Trustee as Holder of Series G First Mortgage Bonds
(k) Authentication of Bonds
Section 703. Fees and Expenses of the Trustee
Section 704. Resignation or Removal of Trustee
Section 705. Successor Trustee
ARTICLE VIII: THE AUTHORITY
Section 801. Limited Obligation
Section 802. Rights and Duties of the Authority
(a) Remedies of the Authority
(b) Limitations on Actions
(c) Responsibility
Section 803. Expenses of the Authority
Section 804. Matters to be Considered by Authority
Section 805. Actions by Authority
ARTICLE IX: THE BONDOWNERS
Section 901. Action by Bondowners
ARTICLE X: THE COMPANY
Section 1001. Existence and Good Standing; Merger; Consolidation
Section 1002. Indemnification by the Company
ARTICLE XI: MISCELLANEOUS
Section 1101. Amendments
(a) Without Bondowners' Consent
(b) With Bondowners' Consent
(c) General
Section 1102. Notices
Section 1103. Time
Section 1104. Agreement Not for the Benefit of Other Parties
Section 1105. Severability
Section 1106. Counterparts
Section 1107. Captions
Section 1108. Governing Law
SIGNATURES
EXHIBIT A The Project Facilities
EXHIBIT B Assumption Agreement
EXHIBIT C Form of Flexible 1991 Series E Bond
EXHIBIT D Form of Weekly 1991 Series E Bond
EXHIBIT E Form of Multiannual 1991 Series E Bond
EXHIBIT F Form of Fixed Rate 1991 Series E Bond
EXHIBIT G Form of Flexible 1993 Series E Bond
EXHIBIT H Form of Weekly 1993 Series E Bond
EXHIBIT I Form of Multiannual 1993 Series E Bond
EXHIBIT J Form of Fixed Rate 1993 Series E Bond
EXHIBIT K Form of Book-Entry Only System Flexible 1991 Series E Bond
EXHIBIT L Representation Letter
EXHIBIT M 1993 Series E Bonds Representation Letter
ARTICLE I: INTRODUCTION AND DEFINITIONS(1)
Section 101. Description of this Agreement and the Parties. This AMENDED AND
RESTATED SERIES E LOAN AND TRUST AGREEMENT (this "Agreement") is entered into as
of April 1, 1999 by the Business Finance Authority of the State of New Hampshire
(with its successors, the "Authority"), a body corporate and politic created
under New Hampshire Revised Statutes Annotated 162-A:3 formerly known as The
Industrial Development Authority of the State of New Hampshire; Public Service
Company of New Hampshire (with its successors, the "Company"), a New Hampshire
corporation; and State Street Bank and Trust Company, a Massachusetts trust
company, as Trustee (with its successors, the "Trustee"). This Agreement amends
and restates the Series E Loan and Trust Agreement dated as of May 1, 1991 (the
"Original Agreement") among the Authority, the Company and the Trustee, as
previously amended by a First Supplement dated as of December 1, 1993 (the
"First Supplement") and a Second Supplement dated as of May 1, 1995 (the "Second
Supplement"), and is entered into pursuant to Clauses 1101(a)(i) and (viii) of
the Original Agreement. This Agreement is a financing document combined with a
security document as one instrument in accordance with New Hampshire Revised
Statutes Annotated Chapter 162-I (the "Act") and relates to industrial
facilities as defined in Paragraphs 2, VII(d) and (e) of the Act and located in
the Town of Seabrook, Rockingham County, New Hampshire.
This Agreement provides for the following transactions:
(a) the Authority's issue of the Bonds, including the 1991 Series
E Bonds, the 1993 Series E Bonds (which are Tax-Exempt Refunding Bonds),
any other Tax-Exempt Refunding Bonds and any bond or bonds duly issued in
exchange or replacement therefor;
(b) the Authority's loan of the proceeds of the Bonds to the Company
for the purpose of financing the acquisition, construction and installation
of the Project Facilities, including the Authority's loan of the proceeds of
the 1993 Series E Bonds to the Company for the purpose of refunding the
principal of $44,800,000 of the 1991 Series E Bonds;
(c) the Company's repayment of the loan of Bond proceeds from the
Authority through payment to the Trustee of all amounts necessary to pay the
Bonds issued by the Authority, including the Company's repayment of the loan
of 1993 Series E Bond proceeds from the Authority through payment to the
Trustee of all amounts necessary to pay the 1993 Series E Bonds;
(d) the Company's agreement to evidence and secure its repayment
obligations hereunder and its reimbursement obligations under the
Reimbursement Agreement by the issuance of the Series G First Mortgage Bonds
and the Company's confirmation of its agreement to evidence and secure its
repayment obligations hereunder and its reimbursement obligations under the
Reimbursement Agreement with the Series G First Mortgage Bonds;
(e) the Authority's assignment to the Trustee in trust for the benefit
and security of the Bondowners of the Authority's rights in respect of the
loan to the Company hereunder, including repayment of the loan to be received
from the Company; and
(f) the amendment and restatement of the Original Agreement, as
previously amended by the First Supplement and the Second Supplement.
At the time that this Agreement is being executed and delivered, the Company
will cause an irrevocable, transferable Letter of Credit of Barclays Bank PLC,
New York Branch in the maximum aggregate amount of $73,666,000 to be issued to
the Paying Agent to be drawn upon to pay the Purchase Price of, principal of,
premium, if any, and interest on the Bonds (other than the 1993 Series E Bonds).
In consideration of the mutual promises contained in this Agreement, the rights
conferred and the obligations assumed hereby, and other good and valuable
consideration, the receipt of which is hereby acknowledged, each of
the Company, the Authority and the Trustee agree, assign, covenant, grant,
pledge, promise, represent and warrant as set forth herein for their own benefit
and for the benefit of the Bondowners and the Bank.
Section 102. Definitions.
(a) Words. In addition to terms defined elsewhere herein, the following terms
have the following meanings in this Agreement, unless the context otherwise
requires:
(1) "Act" has the meaning set forth in Section 101.
(2) "Assumption Agreement" has the meaning given such term in Section 505.
(3) "Authority's Service Charge" means payments to the Authority for its own
use which consist of
(i) with respect to the 1991 Series E Bonds (A) a payment of $5,000 on the date
of the issue of the 1991 Series E Bonds and (B) annual payments commencing on
the first anniversary of the date hereof and continuing on each subsequent
anniversary, which are each equal to 1/40th of 1% of the average principal
balance of the 1991 Series E Bonds on which
interest was accruing during the prior twelve-month period, or $250, whichever
is greater, with a final payment due upon the redemption or payment of the 1991
Series E Bonds in full prorated to the date of such redemption or
payment, as the case may be, (ii) with respect to the 1993 Series E Bonds, (A) a
payment of $37,333.33 on the date of the issue of the 1993 Series E Bonds and
(B) annual payments commencing on the first anniversary of the date
of this First Supplement and continuing on each subsequent anniversary, which
are each equal to 1/20th of 1% of the average principal balance of the 1993
Series E Bonds on which interest was accruing during the prior twelve-month
period, or $250, whichever is greater, with a final payment due upon the
redemption or payment of the 1993 Series E Bonds in full prorated to the date of
such redemption or payment, as the case may be, and (iii) payment of such
service charges or other fees of the Authority, as and when the Authority may
require, in connection with the issuance of any other Tax-Exempt Refunding
Bonds.(2)
(4) "Bank" means Barclays Bank PLC, acting through its New York Branch, in its
capacity as issuer of the Letter of Credit and any other issuer of a Credit
Facility.(3)
(5) "Bond Counsel" means Palmer & Dodge or such other nationally recognized
bond counsel selected by the Company and reasonably satisfactory to the Trustee.
(6) "Bond Fund" means the fund established pursuant to Section 304.
(7) "Bondowners", "owners" or words of similar import means the registered
owners of the Bonds from time to time as shown in the books kept by the Paying
Agent as bond registrar and transfer agent, except that wherever appropriate the
term "owners" shall mean the owners of the Bonds for federal income tax
purposes.
(8) "Bonds" means the 1991 Series E Bonds, the 1993 Series E Bonds, any other
Tax-Exempt Refunding Bonds and any bond or bonds duly issued in exchange or
replacement therefor.(4)
(9) "Business Day" means a day (i) that is not a Sunday or legal holiday or a
day on which banking institutions are authorized pursuant to law to close, (ii)
that is not a day on which the corporate trust office of the
First Mortgage Bond Trustee is not open for business, (iii) that is a day on
which banks are not required or authorized to close in New York, New York, and
(iv) that is a day on which banking institutions in all of the cities in which
the principal offices of the Trustee and the Paying Agent and, if applicable,
the Remarketing Agent and the Bank are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
(10) "Company Bond" means any Bond registered to the Company pursuant to
Subsection 311(a).
(11) "Company Representative" means the person or persons at the time designated
to act on behalf of the Company in a written certificate (or any alternate or
alternates at the time so designated) furnished to the Trustee,
containing the specimen signature of such person or persons and signed on behalf
of the Company by its Chairman, Vice Chairman, President, Chief Financial
Officer, Treasurer, any Assistant Treasurer or any Vice President.
(12) "Conversion Date" means the date on which a new Mode becomes effective with
respect to a Bond, and with respect to a Bond in the Multiannual Mode, the date
on which a new Rate Period becomes effective.
(13) "Credit Facility" means the Letter of Credit and any substitute irrevocable
transferable letter of credit delivered to the Paying Agent pursuant to this
Agreement and then in effect, as each may be amended from time to time pursuant
to the terms of this Agreement or any amendment or supplement to this
Agreement.(5) More than one Credit Facility may be in effect from time to time.
(14) "Default" has the meaning given such term in Section 601.
(15) "Delivery Date" means, with respect to a Bond tendered for purchase, the
Purchase Date or any subsequent Business Day on which such Bond is delivered to
the Paying Agent as provided in the forms of Flexible, Weekly and Multiannual
Bonds.
(16) "Effective Date" means, with respect to a Bond in the Flexible, Weekly and
Multiannual Modes, the date on which a new Rate Period for that Bond takes
effect.
(17) "Eligible Funds" means (i) amounts drawn on any Credit Facility; (ii) other
amounts paid to the Trustee pursuant to this Agreement which have been held by
it for a period of at least 123 days during which no Event of
Bankruptcy has occurred; (iii) earnings on amounts qualifying as Eligible Funds
under clause (i) or (ii) above; and (iv) other amounts which if applied to the
payment of the Bonds would not, in the opinion of nationally recognized counsel
experienced in bankruptcy matters selected by the Company and satisfactory to
the Trustee, Moody's (if the Bonds are then rated by Moody's), and S&P (if the
Bonds are then rated by S&P), be subject to avoidance as a preference under the
United States Bankruptcy Code upon an Event of Bankruptcy. The Trustee shall
maintain records of Eligible Funds held by it.
(18) "Event of Bankruptcy" means the filing of a petition in bankruptcy or the
commencement of a proceeding under the United States Bankruptcy Code or any
other applicable law concerning insolvency, reorganization or bankruptcy by or
against the Authority, the Company, any affiliates thereof, or any guarantor of
the Bonds (other than the Bank), as debtor.
(19) "Event of Default" has the meaning given such term in Section 601.
(20) "Federal Tax Statement" means the Statement as to Tax Status of Bonds
executed by the Company in connection with the original issuance of the 1991
Series E Bonds and delivered to the Trustee.
(21) "First Mortgage Bond Indenture" means the First Mortgage Indenture dated as
of August 15, 1978, as amended, and the Tenth Supplemental Indenture thereto
dated as of May 1, 1991 between the Company and First Fidelity Bank, National
Association, New Jersey, as Trustee, as amended and supplemented from time to
time.
(22) "First Mortgage Bond Trustee" means the trustee under the First Mortgage
Bond Indenture.
(23) "Fixed Rate" means a rate of interest on a Bond that is fixed for the
remaining term of the Bond.
(24) "Fixed Rate Conversion Date" means with respect to a Bond, the date upon
which the Fixed Rate first becomes effective for the Bond.
(25) "Fixed Rate Mode" has the meaning set forth in the forms of Fixed Rate
Bonds.
(26) "Flexible Mode" has the meaning set forth in the forms of Flexible Bonds.
(27) "Flexible Rate" means a rate of interest set by the Remarketing Agent for
periods of from one to 270 days.
(28) "Government Obligations" means obligations issued by, or the full and
timely payment of which are guaranteed by, the United States.
(29) Except in the Bonds, "here" in such words as "hereby," "herein," "hereof"
or "hereunder" means this Agreement as a whole rather than the particular
section, subsection, paragraph, subparagraph, clause or subclause
in which the word appears; and in the Bonds it refers thereto.
(30) "IRC" means the Internal Revenue Code of 1986, as it may be amended from
time to time.
(31) "Letter of Credit" means the $73,666,000 irrevocable letter of credit No.
841785 issued by Barclays Bank PLC, acting through its New York Branch, for the
benefit of the Paying Agent.(6)
(32) "Loan" has the meaning given to such term in Subsection 201(a).
(33) "Maximum Interest Rate" means the maximum interest rate on Bonds in the
Flexible, Weekly and, if supported by a Credit Facility, Multiannual Modes,
which rate is initially 16% per annum for the 1991 Series E Bonds.
The Maximum Interest Rate for any Tax-Exempt Refunding Bonds shall be
established at the time such Bonds are initially issued. The Maximum Interest
Rate for any Bond may be increased at any time and decreased on any
Effective Date for Bonds in the Flexible or Multiannual Mode or on any
Conversion Date for Bonds in the Weekly Mode by the Company filing with the
Authority and the Trustee a certificate stating the new Maximum Interest Rate.
There may be more than one Maximum Interest Rate in effect from time to time,
but each series of Bonds shall not have more than one Maximum Interest Rate for
each Mode. In no event shall an increase in a Maximum Interest Rate be
permitted to cause the amount entitled to be drawn under a Credit Facility to be
less than the minimum required amount specified in Paragraph 317(b)(ii). In no
event shall the Maximum Interest Rate with respect to a Tax-Exempt Refunding
Bond be increased or decreased unless the Trustee has received an opinion of
Bond Counsel reasonably satisfactory to it to the effect that such change in the
Maximum Interest Rate will not cause interest on any Tax-Exempt Refunding Bonds
to be included in gross income of the owners thereof for federal income tax
purposes. The Maximum Interest Rate for the 1993 Series E Bonds shall be
initially 12% per annum, subject to adjustment as provided in this Paragraph
102(a)(33).(7)
(34) "Mode" means the period for and the manner in which the interest rates on
the Bonds are set and includes the Flexible Mode, the Weekly Mode, the
Multiannual Mode and the Fixed Rate Mode.
(35) "Moody's" means Moody's Investors Service, Inc.
(36) "Multiannual Mode" means the Mode in which the interest rate on the Bonds
is fixed for periods of one year or multiples thereof designated by the Company
as described in the forms of Multiannual Bonds.
(37) "Multiannual Rate" means the rate of interest that is set on Bonds while
they are in the Multiannual Mode.
(38) "1954 Code" means the Internal Revenue Code of 1954, as amended to October
22, 1986.
(39) (i) "1991 Series E Bonds" means the $114,500,000 principal amount of The
Industrial Development Authority of the State of New Hampshire Pollution Control
Revenue Bonds (Public Service Company of New Hampshire Project - 1991 Taxable
Series E) and (ii) "1993 Series E Bonds" means the $44,800,000 principal amount
of Business Finance Authority of the State of New Hampshire Pollution Control
Refunding Revenue Bonds (Public Service
Company of New Hampshire Project - 1993 Tax-Exempt Series E).(8)
(40) "Outstanding," when used to modify Bonds, refers to Bonds issued,
authenticated and delivered under this Agreement, excluding: (i) Bonds which
have been exchanged or replaced; (ii) Bonds which have been paid; (iii) Bonds
which have become due and for the payment of which moneys have been duly
provided; (iv) Bonds deemed tendered for purchase and not delivered to the
Paying Agent on the Purchase Date, provided sufficient funds for payment of the
Purchase Price are on deposit with the Paying Agent; and (v) Bonds with respect
to which this agreement has been defeased pursuant to Section 204.
(41) "Paying Agent" means Security Pacific National Trust Company (New York) or
any successor or successors designated from time to time pursuant to Section
313.
(42) "Permitted Investments" has the meaning given such term in Section 315.
(43) The word "person" means any individual or entity so recognized by law.
(44) "Pledged Bond" means any Bond purchased with proceeds provided by the
Credit Facility which is registered to the Bank or its designee pursuant to
Section 311(a).
(45) "Project Costs" means the Company's cost of acquisition or construction and
installation of the Project Facilities which are "project costs" within the
meaning of Paragraph 2, IX of the Act, including, but not limited to, the cost
of issuing the Bonds, obtaining professional and advisory services, and certain
interest on the Bonds, which may be paid from Bond proceeds pursuant to the Act.
(46) "Project Facilities" means the Company's ownership share of the sewage or
solid waste disposal and air or water pollution control facilities at the
Station described generally in the attached Exhibit A.
(47) "Purchase Date" means, while the Bonds are in a Flexible, Weekly or
Multiannual Mode, the date on which Bonds shall be required to be purchased
pursuant to a mandatory or optional tender in accordance with the provisions in
the forms of Flexible, Weekly and Multiannual Rate Bonds.
(48) "Purchase Price" shall have the meaning set forth in the forms of Flexible,
Weekly and Multiannual Rate Bonds.
(49) "Rate Period" or "Period" means, when used with respect to any particular
rate of interest for a Bond in the Flexible, Weekly or Multiannual Mode, the
period during which such rate of interest determined for such Bond
will remain in effect as described herein.
(50) "Reimbursement Agreement" means the Third Series E Letter of Credit and
Reimbursement Agreement dated as of April 1, 1999 among the Company, Barclays
Bank PLC, New York Branch, as agent and issuing bank thereunder, and the
participating banks referred to therein, and any other agreement between the
Company and a Bank under which the Company is obligated to reimburse the Bank
for payments made by the Bank under a Credit Facility.(9)
(51) "Remarketing Agent" means Morgan Stanley & Co. Incorporated, and any
successor Remarketing Agent appointed from time to time pursuant to Section 314.
(52) "Seabrook Transfer" means the transfer by the Company of its interest in
the Station (including the Project Facilities) to a wholly owned subsidiary of
Northeast Utilities as contemplated by the Third Amended Joint
Plan of Reorganization dated December 28, 1989 of the Company as confirmed by an
order of the United States Bankruptcy Court for the District of New Hampshire
(Case No. BK88-00043) on April 20, 1990.
(53) "Seabrook Transferee" means the transferee of the Project Facilities
pursuant to the Seabrook Transfer and its successors.
(54) "Series G First Mortgage Bonds" means the $114,500,000 in the aggregate
principal amount First Mortgage Bonds, Series G issued by the Company and
delivered to the Trustee pursuant to Subsection 201(a) of this
Agreement and the First Mortgage Bond Indenture to evidence and secure the
Company's obligation to repay the Loan and to secure the Company's reimbursement
and certain other obligations under the Reimbursement Agreement.
(55) "S&P" means Standard & Poor's Corporation.
(56) "Station" means Unit No. 1 of the nuclear electric generating plant
located in Seabrook, New Hampshire, of which the Company is a joint owner.
(57) "Tax-Exempt Refunding Bonds" means Bonds issued to refund the 1991 Series E
Bonds pursuant to Article IV hereof, including, unless the context otherwise
requires, the 1993 Series E Bonds.(10)
(58) "Tendered Bond" means any Bond tendered or deemed tendered for purchase
pursuant to Paragraphs 301(d)(iii), 301(e)(iii) or (iv), or 301(f)(iii).
(59) "Trustee" means State Street Bank and Trust Company, as trustee under this
Agreement and its successors in such capacity.
(60) "UCC" means the New Hampshire Uniform Commercial Code (New Hampshire
Revised Statutes Annotated Chapter 382-A).
(61) "Weekly Mode" has the meaning set forth in the forms of Weekly Bonds.
(62) "Weekly Rate" means the rate of interest that is set on Bonds while they
are in the Weekly Mode.
(b) Number and Gender. Wherever appropriate (1) the singular and plural forms
of words and (2) words of different gender shall, within those respective
classifications, be deemed interchangeable.
(c) Use of Examples. When a condition, class, category, circumstance or other
concept is described in general terms herein and a list of possible examples of
components of what has been described generally is associated with that
description, and regardless of whether the words "include" or "including" or the
like are also used, the listing shall be deemed illustrative only and shall not
be construed as excluding other possible examples or components or as otherwise
limiting the generality of the description in any way.
ARTICLE II: LOAN OF BOND PROCEEDS; ISSUE OF SERIES G
FIRST MORTGAGE BONDS; THE ASSIGNMENT AND PLEDGE
Section 201. Issue of Series G First Mortgage Bonds; Confirmation
Concerning Series G First Mortgage Bonds.
(a) Issue of Series G First Mortgage Bonds.(11) The Authority shall
issue the 1991 Series E Bonds pursuant to the Act in the amount, in the form
and with the terms provided herein, and shall loan to the Company such amount
(the "Loan") to finance Project Costs as hereinafter provided. The Company
agrees to repay the Loan of the aggregate principal amount of the 1991 Series
E Bonds in the amounts and at the times necessary to pay principal of,
premium, if any, and interest on the Bonds by making the payments required
under Section 308, and to evidence and secure the Company's obligation to do
so and to secure the Company's reimbursement and certain other obligations
under the Reimbursement Agreement, the Company shall issue and deliver to the
Trustee a like aggregate principal amount of its Series G First Mortgage
Bonds in the form set forth in the First Mortgage Bond Indenture. Except in
the case of Bonds that are paid or are to be paid by the issuance of
Tax-Exempt Refunding Bonds or by funds drawn under the Credit Facility, upon
payment of the principal of and premium, if any, on any of the Bonds and
payment of all accrued interest in connection therewith, whether at maturity
or prior to maturity by redemption or otherwise, or upon provision for the
payment thereof having been made in accordance with Section 204, Series G
First Mortgage Bonds in an aggregate principal amount equal to the aggregate
principal amount of the Bonds so paid, or for the payment of which such
provision has been made, shall be deemed fully paid and the obligations of
the Company thereunder terminated as provided in the First Mortgage Indenture
and shall be surrendered by the Trustee to the First Mortgage Bond Trustee
for cancellation. The Trustee shall promptly notify the First Mortgage Bond
Trustee by telephone, confirmed in writing, of any payment on the Bonds. In
accordance with the terms thereof, the Series G First Mortgage Bonds shall be
issued to and registered in the name of the Trustee and shall not be sold,
assigned, pledged or transferred, except to effect transfer to any successor
Trustee hereunder. The Series G First Mortgage Bonds bear interest, have a
maturity date and redemption provisions corresponding to the Bonds. Payments
of principal of and premium, if any, and interest on the Series G First
Mortgage Bonds shall upon receipt by the Trustee be deemed to constitute
payments of corresponding amounts by the Company in respect of the Bonds
pursuant to Subsection 308(a).
(b) Confirmation Concerning Series G First Mortgage Bonds.(12) The
Authority shall issue the 1993 Series E Bonds pursuant to the Act in the
amount, in the form and with the terms provided herein, and shall loan to the
Company such amount (the "First Supplemental Loan") to refund the principal
of $44,800,000 of the 1991 Series E Bonds as hereinafter provided. The
Company agrees to repay the First Supplemental Loan of the aggregate
principal amount of the 1993 Series E Bonds in the amounts and at the times
necessary to pay principal of, premium, if any, and interest on the Bonds by
making the payments required under Section 308 of this Agreement, and for
such purpose the First Supplemental Loan is to be treated as part of the Loan
made pursuant to this Agreement. To evidence and secure the Company's
obligation to repay the Loan, including the First Supplemental Loan, and to
secure the Company's reimbursement and certain other obligations under the
Reimbursement Agreement, the Company issued and delivered to the Trustee on
the date of issuance of the 1991 Series E Bonds a like aggregate principal
amount of its Series G First Mortgage Bonds. The Company hereby confirms
that the Series G First Mortgage Bonds evidence and secure the Company's
obligations to make payments in amounts and at times necessary to pay
principal of, premium, if any, and interest on all of the Outstanding Bonds,
including the Outstanding 1993 Series E Bonds and the Outstanding 1991 Series
E Bonds and the Company's reimbursement and certain other obligations under
the Reimbursement Agreement.
Section 202. Assignment and Pledge of the Authority.
The Authority, for consideration paid as hereinabove acknowledged,
hereby irrevocably assigns and pledges to the Trustee in trust for the
security of the Bondowners and the Bank upon the terms hereof all the
Authority's right, title and interest in (i) respect of the Loan and all
payments thereon, (ii) all moneys and securities held by the Trustee for
deposit in, or deposited in, the Bond Fund and investment earnings thereon,
(iii) the Series G First Mortgage Bonds, all bonds issued in replacement
thereof or in exchange or substitution therefor and all payments on, and
proceeds of, the foregoing, and (iv) any collateral security for, and all
proceeds of, any of the foregoing. The Trustee shall hold (a) all the
rights, title and interest received under this section and (b) all revenues
(exclusive of funds to which the Trustee is entitled in its own right as
fees, reimbursement, indemnity or otherwise) received from the Company or
derived from the exercise of the Authority's powers hereunder (which shall
include all payments under Subsection 308(a) and in respect of the Series G
First Mortgage Bonds) in trust for the security of the Bondowners and the
Bank in accordance with the provisions hereof.
Section 203. Further Assurances.
The Company and the Authority shall from time to time execute, deliver
and record and file such instruments as the Trustee may reasonably require to
confirm, perfect or maintain the security created hereby and the assignment
and pledge of rights hereunder.
Section 204. Defeasance.
When there are in the Bond Fund sufficient funds, or non-callable and
non-prepayable Government Obligations in such principal amounts, bearing
interest at such rates and with such maturities (including, with respect to
any Bonds in the Weekly Mode, maturities no greater than seven (7) days to
fund the payment of Purchase Price) as will provide, without reinvestment,
sufficient funds to pay the Purchase Price, principal of, premium, if any,
and interest on the Bonds in full as and when such amounts become due, and
when all the rights hereunder of the Authority and the Trustee have been
provided for (1) the Bondowners will cease to be entitled to any right,
benefit or security under this Agreement except the right to receive payment
of the funds deposited and held for payment and other rights set forth below
or which by their nature cannot be satisfied prior to or simultaneously with
termination of the lien hereof, (2) the security interests created by this
Agreement (except in such funds and investments) shall terminate, and (3) the
Authority and the Trustee shall execute and deliver such instruments as may
be necessary to discharge the lien and security interests created hereunder;
provided, however, that (a) with respect to any Bonds that are supported by a
Credit Facility, all such funds and obligations in the Bond Fund shall be
Eligible Funds; (b) if, within ninety (90) days of such deposit, any
Tax-Exempt Refunding Bonds are not to be redeemed in full prior to maturity
or paid in full at maturity, the Trustee shall have received on the date of
the deposit an opinion of Bond Counsel to the effect that such deposit and
the investment thereof will not affect the exclusion of interest on such
Bonds from gross income of the owners thereof for federal income tax
purposes, (c) if any such Bonds are to be redeemed prior to the maturity
thereof, such Bonds shall have been duly called for redemption or irrevocable
instructions for such a call shall have been given to the Trustee and (d)
either the Trustee shall have received written confirmation from Moody's, if
the Bonds are then rated by Moody's, and from S&P, if the Bonds are then
rated by S&P, that the defeasance will not result in the withdrawal or
reduction of its rating on the Bonds, or, if none of the Bonds to be defeased
are in the Weekly Mode, the Bonds are to be redeemed on or before the next
Purchase Date. Upon such defeasance, the funds and investments required to
pay or redeem the Bonds in full shall be irrevocably set aside for that
purpose. If at the time established for defeasance the Bonds are then rated
by Moody's, a mathematical verification that the requirements set forth in
this Section 204 have been satisfied prepared by a firm of independent public
accountants who are recognized on a nationwide basis for skill in the
preparation of such verifications and selected by the Company shall be
provided to the Trustee and to Moody's; provided, however, that Moody's may
waive such verification after notification by the Company of the terms of any
such defeasance. The Trustee shall cause to be mailed to all Bondowners
within fifteen (15) days of the conditions of this section being met in the
manner herein specified for redemption of Bonds a notice stating that such
conditions have been met and that the lien of this Agreement has been
discharged, and, if the Bonds are to be redeemed prior to maturity,
specifying the date of redemption and the redemption price. Any funds or
property held by the Trustee for payment of the Bonds under this section and
not required for such payment shall (unless there is an Event of Default
hereunder, in which case they shall be applied as provided in Section 604),
after satisfaction of all the rights of the Authority and the Trustee, and
payment of the rebate, if any, due to the United States under IRC <section>
148(f), and upon such indemnification, if any, as the Authority or the
Trustee may reasonably require, be distributed to the Company. If Bonds
are not presented for final payment when due and moneys are available in
the hands of the Trustee therefor, the Trustee shall, without liability
for interest thereon, continue to hold the moneys held for that purpose
subject to Subsection 304(c), and interest shall cease to accrue on the
principal amount represented thereby.
When there are in the Bond Fund funds or securities as described in the
preceding paragraph as are sufficient to pay the Purchase Price, principal
of, premium, if any, and interest on, some but not all of the Bonds in full
as and when such amounts become due and the other conditions in the preceding
paragraph have been met with respect to such Bonds, the particular Bonds (or
portions thereof) for which such provision for payment shall have been
considered made shall be selected by lot by the Trustee and thereupon the
Trustee and the Authority shall take similar action to release the security
interests created by this Agreement in respect of such Bonds (except in such
funds or securities and investments thereon), subject however to compliance
with the applicable conditions set forth in the provisos above.
Notwithstanding the foregoing, those provisions relating to the maturity
of Bonds, interest payments and dates thereof, the tender of Bonds for
purchase and the Trustee's remedies with respect thereto, and provisions
relating to exchange, transfer and registration of Bonds, replacement and
cancellation of Bonds, the holding of moneys in trust and the duties of the
Trustee in connection with all of the foregoing and the fees, expenses and
indemnities of the Trustee and the Authority, shall remain in full force and
effect and shall be binding upon the Trustee, the Authority, the Company and
the Bondowners notwithstanding the release and discharge of this Agreement
and the lien on the Series G First Mortgage Bonds created hereby until the
Bonds have been actually paid in full.
Notwithstanding anything herein to the contrary, if moneys or
governmental obligations have been deposited or set aside with the Trustee
pursuant to the provisions of this Section 204 and the principal of, premium,
if any, and interest on the Bonds shall not, in fact, been actually paid in
full, no amendment to the provisions of this Section 204 will be made without
the consent of the owner of each of the Bonds affected thereby.
ARTICLE III: THE BORROWING
Section 301. The Bonds.
(a) Forms of 1991 Series E Bonds and 1993 Series E Bonds. The 1991
Series E Bonds and the 1993 Series E Bonds shall be issued in substantially
the following forms for the various Modes:(13)
(i) Form of Flexible 1991 Series E Bond. The 1991 Series E Bonds may be issued
in the Flexible Mode in substantially the form attached hereto as Exhibit C.
(ii) Form of Weekly 1991 Series E Bond. The 1991 Series E Bonds may be issued
in the Weekly Mode in substantially the form attached hereto as
Exhibit D.
(iii) Form of Multiannual 1991 Series E Bond. The 1991 Series E Bonds may be
issued in the Multiannual Mode in substantially the form attached hereto as
Exhibit E.
(iv) Form of Fixed Rate 1991 Series E Bond. The 1991 Series E Bonds may be
issued in the Fixed Rate Mode in substantially the form attached hereto as
Exhibit F.
(v) Form of Flexible 1993 Series E Bond. The 1993 Series E Bonds may be issued
in the Flexible Mode in substantially the form attached hereto as Exhibit G.
(vi) Form of Weekly 1993 Series E Bond. The 1993 Series E Bonds may be issued
in the Weekly Mode in substantially the form attached hereto as
Exhibit H.
(vii) Form of Multiannual 1993 Series E Bond. The 1993 Series E Bonds may be
issued in the Multiannual Mode in substantially the form attached hereto as
Exhibit I.
(viii) Form of Fixed Rate 1993 Series E Bond. The 1993 Series E
Bonds may be issued in the Fixed Rate Mode in substantially the form attached
hereto as Exhibit J.
(ix) Form of Book-Entry Only System Flexible 1991 Series E Bond. The Book-Entry
Only System 1991 Series E Bonds may be issued in the Flexible Mode in
substantially the form attached hereto as Exhibit K.
(b) Details of the 1991 Series E Bonds and the 1993 Series E Bonds.
(i) Details of the 1991 Series E Bonds.(14) The 1991 Series E Bonds shall be
signed on behalf of the Authority by the manual or facsimile
signatures of any two of the Chairman, Vice Chairman, Treasurer, either
Assistant Treasurer and Executive Director and the corporate seal of the
Authority or a facsimile thereof shall be engraved or otherwise reproduced
thereon. The Certificate of Authentication of the Trustee shall be manually
signed by the Trustee or on behalf of the Trustee by its duly authorized
agent.
In case any officer whose manual or facsimile signature shall appear on
any 1991 Series E Bond shall cease to be such officer before the delivery
thereof, such manual or facsimile signature shall nevertheless be valid and
sufficient for all purposes as if he or she had remained in office until
after such delivery.
The 1991 Series E Bonds shall be issued in fully registered form and
shall be numbered from 1 upwards in the order of their issuance, or in any
other manner deemed appropriate by the Paying Agent and the Trustee. The
1991 Series E Bonds shall be in the denomination of $100,000 or any multiple
of $1,000 in excess of $100,000 in the Flexible Mode, $5,000 or any multiple
thereof in the Fixed Rate and Multiannual Modes and $100,000 or any multiple
thereof in the Weekly Mode. The 1991 Series E Bonds shall be dated the date
of original delivery thereof and shall mature on May 1, 2021. The interest
on 1991 Series E Bonds until they come due shall be payable on the interest
payment dates applicable to the Mode the Bonds are in from time to time.
Interest on overdue principal of any Bond shall bear interest at the rate
last established for that Bond before the principal became overdue until duly
paid or provided for. All of the 1991 Series E Bonds shall be initially in
the Flexible Mode.
The 1991 Series E Bonds are subject to redemption as described in
Section 310 and in the forms of Bonds.
(ii) Details of the 1993 Series E Bonds.(15) The 1993 Series E Bonds shall be
signed on behalf of the Authority by the manual or facsimile
signatures of any two of the Chairman, Vice Chairman, Treasurer and Executive
Director and the corporate seal of the Authority or a facsimile thereof shall
be impressed, engraved or otherwise reproduced thereon. The Certificate of
Authentication shall be manually signed by the Trustee or the Paying Agent.
In case any officer whose manual or facsimile signature shall appear on
any 1993 Series E Bond shall cease to be such officer before the delivery
thereof, such manual or facsimile signature shall nevertheless be valid and
sufficient for all purposes as if he or she had remained in office until
after such delivery.
The 1993 Series E Bonds shall be issued in fully registered form and
shall be numbered from 1 upwards in the order of their issuance, or in any
other manner deemed appropriate by the Paying Agent and the Trustee. The
1993 Series E Bonds shall be in the denomination of $100,000 or any multiple
of $1,000 in excess of $100,000 in the Flexible Mode, $5,000 or any multiple
thereof in the Fixed Rate and Multiannual Modes and $100,000 or any multiple
thereof in the Weekly Mode. The 1993 Series E Bonds shall be dated the date
of original delivery thereof and shall mature on May 1, 2021. The interest
on 1993 Series E Bonds until they come due shall be payable on the interest
payment dates applicable to the Mode the Bonds are in from time to time.
Interest on overdue principal of any Bond shall bear interest at the rate
last established for that Bond before the principal became overdue until duly
paid or provided for. All of the 1993 Series E Bonds shall be initially in
the Weekly Mode.
The 1993 Series E Bonds are subject to redemption as described in
Sections 310 and 405 and in the forms of 1993 Series E Bonds.
(c) Tax-Exempt Refunding Bonds. Tax-Exempt Refunding Bonds that refund
the 1991 Series E Bonds may be issued by the Authority at the request of the
Company as provided in Article IV.
(d) Flexible Mode.
(i) Determination of Flexible Rates. The Remarketing Agent shall
determine the Flexible Rate as provided in the forms of Flexible Bonds and
shall notify the Paying Agent thereof electronically or by telephone not
later than 1:00 P.M. on the Effective Date, and if by telephone, promptly
confirmed in writing. The Paying Agent shall give written notice of the
Flexible Rate to the Trustee, the Bank and the Company. Each determination
and redetermination of the Flexible Rate shall be conclusive and binding on
the Authority, the Trustee, the Paying Agent, the Bank, the Company and the
Bondowners. If the Remarketing Agent fails for any reason to determine the
Flexible Rate or Rate Period for any Bond while in the Flexible Mode, or if
for any reason such manner of determination shall be determined to be invalid
or unenforceable, that Bond shall be deemed to be in a Rate Period of one day
and the Flexible Rate shall be equal to (A) for the 1991 Series E Bonds, 100%
of the rate on thirty (30) day high-grade unsecured commercial paper notes
sold through dealers by major corporations published in the edition of The
Wall Street Journal published on the day on which such rate is determined, or
if such rate is not published on that day, the most recent publication of
such rate, and (B) for any Tax-Exempt Refunding Bonds, 100% of the Prime
Commercial Paper A-1/P-1 (30 days) rate shown in the table captioned
"Short-Term Tax-Exempt Yields" in the edition of The Bond Buyer published on
the day on which such rate is determined or, if such rate is not published on
that day, the most recent publication of such rate.
In determining the Flexible Rate and remarketing Bonds in the Flexible
Mode the Remarketing Agent shall (1) not offer Rate Periods greater than the
maximum number of days of interest coverage under the Credit Facility at the
Maximum Interest Rate less eight (8) days or extending beyond the expiration
date of the Credit Facility less eight (8) days (2) not offer Rate Periods
applicable to Bonds to be converted extending beyond the day preceding any
scheduled conversion of the Bonds to another Mode or the final maturity of
the Bonds, and (3) follow any written directions of the Company Representative,
not inconsistent with the preceding clauses (1) and (2), as
to the Rate Periods to be made available. The Company, the Trustee, the
Paying Agent and the Remarketing Agent shall cooperate to ensure compliance
with this requirement.
(ii) Conversions from the Flexible Mode. The Bonds in the Flexible Mode or any
portion of such Bonds may be converted at the election of the Company from the
Flexible Mode to the Weekly, Multiannual or Fixed Rate Mode as provided in the
forms of the Flexible Bonds, so long as no Default hereunder exists as certified
to the Trustee by the Company Representative. If Bonds that are to be converted
to the Weekly or Multiannual Mode are to be
supported by a Credit Facility in their new Mode, no such conversion shall be
effective unless the Company shall have delivered to the Paying Agent by
11:00 A.M. on the Conversion Date a Credit Facility in the minimum required
face amount for the applicable Mode as provided in Section 317, and with an
expiration date not earlier than (i) 364 days(16) in the case of any Bonds
converted to the Weekly Mode and (ii) five (5) Business Days after the end of
the Rate Period in the case of Bonds in the Multiannual Mode. Any Bonds in
or to be converted to the Weekly Mode shall be supported by a Credit
Facility. Written notice of a conversion from the Flexible Mode shall be
given by the Company to the Authority, the Trustee, the Paying Agent, the
Bank, the Remarketing Agent, Moody's and S&P not fewer than twenty-five (25)
nor more than one hundred and twenty (120) days before the Conversion Date,
which date shall be specified by the Company in such notice and shall not be
earlier than the day following the expiration of the Rate Period with the
longest remaining term then in effect for the Bonds to be converted. If any
of the Bonds are to be converted to the Multiannual Mode, such notice shall
include the Company's election whether or not the Bonds as converted are to
be supported by a Credit Facility. Prior to the proposed Conversion Date,
the Remarketing Agent shall not offer Rate Periods for the Bonds to be
converted extending beyond the proposed Conversion Date. Conversions to the
Fixed Rate Mode shall also be governed by Subsection 301(g).
Notwithstanding the foregoing, if the preconditions to conversion to a
new Mode established by the preceding paragraph and with respect to any
Tax-Exempt Refunding Bonds, Section 404, are not met by 11:00 A.M. on the
Conversion Date, the Paying Agent shall deem the proposed conversion to have
failed and shall immediately notify the Trustee and the Remarketing Agent.
In such event, the Paying Agent shall by 1:00 P.M. on the proposed Conversion
Date draw on the Credit Facility an amount which is sufficient to pay the
Purchase Price on such date of all Bonds that were to have been converted.
In no event shall the failure of Bonds to be converted to another Mode for
any reason be deemed to be, in and of itself, a Default or Event of Default
under this Agreement, so long as the Purchase Price of all Bonds required to
be purchased is made available as provided above.
(iii) Mandatory Tender for Purchase. On each Effective Date, Bonds
in the Flexible Mode are subject to mandatory tender for purchase as provided
in the forms of Flexible Bonds.
(e) Weekly Mode.
(i) Determination of Weekly Rates. The Remarketing Agent shall
determine the Weekly Rate as provided in the forms of Weekly Bonds and shall
notify the Paying Agent thereof electronically or by telephone not later than
4:00 P.M. on the Business Day preceding the Effective Date, and if by
telephone, promptly confirmed in writing. The Paying Agent shall give
written notice of the Weekly Rate to the Trustee, the Bank, and the Company.
Each determination and redetermination of the Weekly Rate shall be conclusive
and binding on the Authority, the Trustee, the Paying Agent, the Bank, the
Company and the Bondowners.
(ii) Conversions from Weekly Mode. The Bonds in the Weekly Mode or any portion
of such Bonds may be converted on the first Business Day of any
calendar month at the election of the Company from the Weekly Mode to a
Multiannual, Flexible, or Fixed Rate Mode, as provided in the forms of Weekly
Bonds, so long as no Default hereunder exists as certified to the Trustee by
a Company Representative.(17) If Bonds that are to be converted to the
Flexible or Multiannual Mode are to be supported by a Credit Facility in
their new Mode, no such conversion shall be effective unless the Company
shall have delivered to the Paying Agent by 11:00 A.M. on the Conversion Date
a Credit Facility in the minimum required face amount for the applicable Mode
as provided in Section 317 and with an expiration date not earlier than (i)
364 days(18) from the Conversion Date in the case of Bonds converted to the
Flexible Mode and (ii) five (5) Business Days after the end of the Rate
Period in the case of Bonds in the Multiannual Mode. Any Bonds in or to be
converted to the Flexible Mode shall be supported by a Credit Facility,
except in the case of a failed optional conversion which causes the Bonds to
automatically convert to the Flexible Mode with a one day Rate Period.
Written notice of a conversion of Bonds from the Weekly Mode shall be given
by the Company to the Authority, the Trustee, the Bank, the Paying Agent, the
Remarketing Agent, Moody's and S&P not fewer than forty-five (45) nor more
than sixty (60) days prior to the proposed Conversion Date, which date shall
be specified by the Company in such notice. If any of the Bonds are to be in
the Multiannual Mode, such notice shall include the Company's election
whether or not the converted Bonds are to be supported by a Credit Facility.
Notice of a conversion of Bonds from the Weekly Mode and the mandatory tender
of Bonds for purchase on such Conversion Date shall be given to the owners of
such Bonds as provided in Subparagraph 301(e)(iv) (B) and the forms of Weekly
Bonds. Conversions to the Fixed Rate Mode shall also be governed by
Subsection 301(g).
Notwithstanding the foregoing, if the preconditions to conversion to
another Mode established by the preceding paragraph and, with respect to any
Tax-Exempt Refunding Bonds, Section 404, are not met by 11:00 A.M. on the
Conversion Date, the Paying Agent shall deem the proposed conversion to have
failed and shall immediately notify the Trustee and the Remarketing Agent,
and the Bonds shall be subject to mandatory tender as provided in
Subparagraph 301(e)(iv)(B). In such event, the Paying Agent shall by 1:00
P.M. on the proposed conversion date draw on the Credit Facility an amount
which is sufficient to pay the Purchase Price on such date on all Bonds that
were to have been converted. In no event shall the failure of Bonds to be
converted to another Mode for any reason be, in and of itself, deemed to be a
Default or Event of Default under this Agreement, so long as the Purchase
Price of all Bonds required to be purchased is made available as provided
above.
(iii) Bondowners' Option to Tender Bonds in Weekly Mode. Bonds in
the Weekly Mode are subject to tender, at the election of the owner thereof,
in the manner and subject to the limitations described in the forms of Weekly
Bonds. The owners of Tendered Bonds shall receive on the Delivery Date 100%
of the principal amount of the Tendered Bonds plus accrued interest to the
Purchase Date, provided that if the Purchase Date is an interest payment
date, accrued interest shall be paid separately, and not as part of the
Purchase Price on such date. The purchase of Tendered Bonds shall not
extinguish the debt represented by such Bonds which shall remain Outstanding
and unpaid under this Agreement.
The Paying Agent shall accept all Tendered Bonds properly tendered to it
for purchase as provided in the forms of Weekly Bonds and in this Paragraph
301(e)(iii); provided, however, that the Paying Agent shall not accept any
Tendered Bonds and the Purchase Price therefor shall not be paid if at the
time of tender or on the Purchase Date the principal of the Bonds shall have
been accelerated pursuant to Section 602 and such acceleration shall not have
been annulled.
The Bondowner's Election Notice delivered to the Paying Agent as
provided in the forms of Weekly Bonds prior to the Purchase Date of Tendered
Bonds shall be in substantially the form provided in the forms of Weekly
Bond.
As soon as practicable after receiving notice of a tender of Bonds under
this section, the Paying Agent shall notify the Remarketing Agent, the
Company, the Bank and the Trustee by telephone promptly confirmed in writing
of the amount of Tendered Bonds and the specified Purchase Date.
(iv) Events Requiring Mandatory Tender of Weekly Bonds.
(A) Expiration of Credit Facility without Substitution or Replacement;
Substitution of Credit Facility. The Bonds in the Weekly Mode are subject to
mandatory tender for purchase as provided in the forms of Weekly Bonds in
connection with the expiration or termination of the Credit Facility (other than
in connection with the conversion to a new Mode) or in connection with the
substitution of a Credit Facility, unless the Trustee receives written notice
from Moody's, if the Bonds are then rated by Moody's, or S&P, if the Bonds are
then rated by S&P, that such substitution will not result in a reduction or
withdrawal (excluding a withdrawal or reduction resulting from a change in
Modes) of the ratings on the Bonds. At least forty (40) days prior to the
mandatory tender date, the Trustee shall give notice to the Paying Agent as to
whether or not it has received the notices described in the immediately
preceding sentence from Moody's and S&P, and if the Trustee has not received
such notices or if the Credit Facility is expiring without substitution or
replacement, the Paying Agent shall give notice to the Bondowners of the
mandatory tender of the Bonds at least thirty (30) days prior to the mandatory
tender date.(19)
(B) Change in Mode. In the event that Bonds in the Weekly Mode are converted
to another Mode, such Bonds are subject to mandatory tender for purchase upon
not less than thirty (30) days' prior written notice from the Paying Agent to
the Bondowners as provided in the forms of Bonds, which notice shall state that
the Bonds are subject to mandatory tender for purchase.
(f) Multiannual Mode.
(i) Determination of Multiannual Rate. The Remarketing Agent shall determine
the Multiannual Rate as provided in the forms of Multiannual Bonds and shall
notify the Paying Agent thereof electronically or by telephone not later than
2:00 P.M. two (2) Business Days preceding the Effective Date, and if by
telephone, promptly confirmed in writing. The Paying Agent shall give written
notice of the Multiannual Rate to the Trustee, the Bank, if applicable, and the
Company. Each determination and redetermination of the Multiannual Rate shall
be conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Bank, the Company and the Bondowners.
(ii) Conversions from Multiannual Mode and Changes of Rate Period. The Bonds in
the Multiannual Mode or any portion of such Bonds may be converted on any
Effective Date at the election of the Company from the Multiannual Mode to the
Weekly, Flexible or Fixed Rate Mode and may be converted within the Multiannual
Mode to a new Rate Period with the same or a different length as provided in the
forms of Multiannual Bonds so long as no Default hereunder exists as certified
to the Trustee by a Company Representative. If Bonds that are to be converted
to the Flexible or Weekly Mode or to another Rate Period within the Multiannual
Mode are to be supported by a Credit Facility in their new Mode, no such
conversion shall be effective unless the Company shall have delivered to the
Paying Agent by 11:00 A.M. on the Conversion Date a Credit Facility in the
minimum required face amount for the applicable Mode as provided in Section 317
and with an expiration date not earlier than (i) 364 days(20) from the
Conversion Date in the case of Bonds converted to the Flexible or Weekly Modes
and (ii) five (5) Business Days after the end of the Rate Period in the case of
Bonds in the Multiannual Mode. Any Bonds in or to be converted to the Weekly or
Flexible Mode shall be supported by a Credit Facility, except in the case of a
failed optional conversion which causes the Bonds to automatically convert to
the Flexible Mode with a one day Rate Period. Written notice of a change in
Mode or Rate Period within the Multiannual Mode shall be given by the Company to
the Authority, the Trustee, the Bank (if any), the Paying Agent, the Remarketing
Agent, Moody's and S&P not fewer than twenty-five (25) nor more than sixty (60)
days prior to the proposed Conversion Date. If the conversion is to a new Rate
Period in the Multiannual Mode, such notice shall include the Company's election
whether or not the converted Bonds are to be supported by a Credit Facility.
Conversion to the Fixed Rate Mode shall also be governed by Subsection 301(g).
Notwithstanding the foregoing, if the preconditions to conversion to
another Mode or a new Rate Period within the Multiannual Mode established by
the preceding paragraph and, with respect to any Tax-Exempt Refunding Bonds,
Section 404, are not met by 11:00 A.M. on the Conversion Date, the Paying
Agent shall deem the proposed conversion to have failed and shall immediately
notify the Trustee and the Remarketing Agent. If the Bonds that were to have
been converted are supported by a Credit Facility, the Paying Agent shall by
1:00 P.M. on the proposed conversion date draw on the Credit Facility an
amount which is sufficient to pay the Purchase Price on such date on all
Bonds that were to have been converted. If the Bonds that were to have been
converted are not supported by a Credit Facility, the Company shall by 1:00
P.M. on the proposed Conversion Date deliver to the Paying Agent sufficient
funds to pay the Purchase Price. In no event shall the failure of Bonds to
be converted to another Mode for any reason be deemed to be, in and of
itself, a Default or Event of Default under this Agreement, so long as the
Purchase Price of all Bonds required to be purchased is made available as
provided above.
(iii) Mandatory Tender for Purchase. On each Effective Date, Bonds
in the Multiannual Mode are subject to mandatory tender for purchase as
provided in the forms of Multiannual Bond.
(g) Conversion to Fixed Rate Mode. The interest rate on any portion of
the Bonds may be converted by the Company to the Fixed Rate as provided in
the forms of the Flexible, Weekly and Multiannual Bonds, Subsections 301(d),
(e) and (f) and this Subsection 301(g). Upon receipt of the notice of
conversion to the Fixed Rate Mode from the Company, the Remarketing Agent
shall determine the Fixed Rate not later than 2:00 P.M. two (2) Business Days
before the Conversion Date. The Fixed Rate shall be the lowest rate which in
the judgment of the Remarketing Agent, on the basis of prevailing financial
market conditions, would permit the sale of the Bonds being so converted at
par plus accrued interest as of the Effective Date on the basis of their
terms as converted.
On the date of determination thereof, the Remarketing Agent shall notify
the Paying Agent, the Company and the Trustee by telephone confirmed in
writing of the Fixed Rate. The Trustee shall promptly notify the Authority
in writing of the Fixed Rate. The determination of the Fixed Rate shall be
conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Company and the Bondowners. The first interest payment date of Bonds
converted to the Fixed Rate shall be at least three (3) months but less than
nine (9) months after the Conversion Date. The Fixed Rate shall become
effective on the Fixed Rate Conversion Date and shall remain in effect for
the remaining term of the Bonds.
Notwithstanding the foregoing, if the preconditions to conversion to the
Fixed Rate Mode established by this Subsection 301(g) are not met by 11:00
A.M. 0on the Conversion Date, the Paying Agent shall immediately notify the
Trustee by telephone promptly confirmed in writing. Upon such notice, the
Trustee shall deem the proposed conversion to have failed and shall proceed
as such under Paragraph 301(d)(ii), (e)(ii) or (f)(ii), whichever is
applicable.
(h) Partial Conversions.
(i) General. The Bonds may be converted in whole or in part to the Flexible
Mode, the Weekly Mode, any Rate Period in the Multiannual Mode or the Fixed Rate
Mode upon compliance with the conditions set forth in this
Agreement. In the event the Bonds are in (or are to be converted to) more
than one Mode, the provisions of this Agreement relating to Bonds in a
particular Mode (or to be converted to a particular Mode) shall apply only to
the Bonds in (or to be converted to) such Mode and, where necessary or
appropriate, any reference in this Agreement to the Bonds shall be construed
to mean the Bonds in (or to be converted to) such Mode and any reference to
Credit Facility or Bank shall be construed to mean the Credit Facility
supporting the Bonds in (or to be converted to) such Mode and the Bank
issuing that Credit Facility.
(ii) Selection. In the event of any partial conversion of the Bonds to a new
Mode, the Bonds to be converted shall be selected by the Paying Agent from Bonds
in the Mode selected by the Company. The particular Bonds (or portions thereof)
to be converted shall be selected by the Paying Agent from all the Bonds in the
Mode (or in the case of Bonds in the Multiannual Mode, the Rate Period) from
which Bonds are to be converted. The principal amount of Bonds to be converted
shall be determined so that all of the Bonds shall be in the denominations
required under Subsection 301(b) for the particular Modes. Bonds (or portions
thereof) in the Weekly Mode shall be selected by lot and the selection of the
Bonds to be converted shall occur prior to the date notice of mandatory tender
is sent by the Paying Agent pursuant to Paragraph 301(e)(iv).
(iii) Amendment. Provisions of this Agreement may be amended to
permit or facilitate partial conversions of the Bonds without Bondowner
consent in accordance with clause (vii) of the first paragraph of Section
1101.
(i) Cancellation and Destruction of Bonds. All Bonds paid or redeemed,
either at or before maturity, shall be delivered to the Paying Agent when
such payment or redemption is made, and such Bonds, together with all Bonds
purchased by the Paying Agent and all Bonds surrendered in any exchanges or
transfers, shall thereupon be promptly canceled. All Bonds acquired and
owned by the Company and delivered to the Paying Agent for cancellation shall
be deemed paid and shall be promptly canceled. Bonds so canceled may at any
time be cremated or otherwise destroyed by the Paying Agent, which shall
execute a certificate of cremation or destruction in duplicate by the
signature of one of its authorized officers describing the Bonds so cremated
or otherwise destroyed, and one executed certificate shall be filed with the
Company and the other executed certificate shall be retained by the Paying
Agent. The Paying Agent shall provide written notice to Moody's, if the
Bonds are then rated by Moody's, and to S&P, if the Bonds are then rated by
S&P, of the final payment or redemption of any of the Bonds, either at of
before maturity, upon cancellation of any such Bonds.
(j) Replacement of Bonds. Replacement Bonds shall be issued pursuant
to applicable law as a result of the destruction, loss or mutilation of the
Bonds. The costs of a replacement shall be paid or reimbursed by the
applicant, who shall indemnify the Authority, the Trustee, the Paying Agent,
the Remarketing Agent and the Company against all liability and expense in
connection therewith.
(k) Interest on Overdue Principal. Any overdue principal of any Bond
shall bear interest after its maturity or acceleration at the last interest
rate in effect on that Bond.
Section 302. Application of 1991 Series E Bond Proceeds.
The Authority shall loan the proceeds of the 1991 Series E Bonds to the
Company by promptly causing the accrued interest, if any, to be deposited in
the Bond Fund and the balance of the proceeds to be paid to or pursuant to
the direction of the Company as reimbursement for Project Costs incurred
prior to the date of delivery of the 1991 Series E Bonds. In connection with
the reimbursement of such Project Costs, the Company represents and warrants
that (i) such Project Costs were incurred by and were chargeable to the
capital account of the Company; (ii) such Project Costs are costs of "sewage
or solid waste disposal facilities" or "air or water pollution control
facilities" within the meaning of Section 103(b)(4)(E) or (F) of the 1954
Code incurred and paid after January 14, 1976; (iii) such Project Costs are
for an "industrial facility" within the meaning of Paragraphs 2, VII (d) and
(e) of the Act; and (iv) such Project Costs are costs of a facility described
in Section 1312(a) of the Tax Reform Act of 1986.
Section 303. Application of Tax-Exempt Refunding Bond Proceeds and of
1993 Series E Bond Proceeds.
(a) Application of Tax-Exempt Refunding Bond Proceeds.(21) Proceeds of
any Tax-Exempt Refunding Bonds shall be deposited in the Bond Fund and
applied to pay principal of, premium, if any, and interest on the 1991 Series
E Bonds, or if a Credit Facility is in effect, to reimburse the Bank for any
draw on the Credit Facility to make such payment on the 1991 Series E Bonds
or as may otherwise be provided in a supplemental Agreement executed and
delivered by the parties hereto at the time of issuance of the Tax-Exempt
Refunding Bonds.
(b) Application of 1993 Series E Bond Proceeds.(22) The Authority
shall loan the proceeds of the 1993 Series E Bonds to the Company by promptly
causing (A) an amount equal to the accrued interest, if any, to be deposited
in the Bond Fund and (B) $44,800,000 to be deposited with the Trustee, in
each case in immediately available funds. Upon receipt by the Paying Agent
in respect of a drawing on the Letter of Credit of an amount necessary to pay
the Purchase Price due on $44,800,000 principal amount of 1991 Series E
Bonds, the Paying Agent shall immediately notify the Trustee that it has
received sufficient draw proceeds to pay such Purchase Price, and upon the
Trustee's receipt of such notice the Trustee shall pay to the Bank the
$44,800,000 deposited with the Trustee by the Authority under clause (B) of
this section as partial reimbursement for such drawing. If the Trustee
receives such notice from the Paying Agent before 12:00 Noon on any Business
Day it shall transmit a payment order for the above-described payment by wire
transfer in immediately available funds to the Bank by 2:30 P.M. on the same
day, and if the Trustee receives such notice after 12:00 Noon it shall make
such payment by wire transfer in immediately available funds to the Bank by
11:00 A.M. on the next Business Day. In connection with the reimbursement of
the Bank, the Company represents and warrants that (i) not less than 95% of
the proceeds of the 1991 Series E Bonds were spent to reimburse the Company
for Project Costs; (ii) such Project Costs were incurred by and were
chargeable to the capital account of the Company; (iii) such Project Costs
were costs of "sewage or solid waste disposal facilities" or "air or water
pollution control facilities" within the meaning of Section 103(b)(4)(E) or
(F) of the 1954 Code incurred and paid after January 14, 1976; (iv) such
Project Costs were for an "industrial facility" within the meaning of
Paragraphs 2, VII (d) and (e) of the Act; and (v) such Project Costs were
costs of a facility described in Section 1312(a) of the Tax Reform Act of
1986.
Section 304. Bond Fund.
(a) Establishment and Purpose. A Bond Fund is hereby established with
the Trustee and moneys shall be deposited therein as provided in this
Agreement. The Company hereby grants to the Trustee for the benefit of the
Bondowners and the Bank a security interest in all deposits in the Bond Fund.
The Trustee acknowledges that it holds the Bond Fund as agent for the
Bondowners and the Bank, as their interests may appear. The moneys in the
Bond Fund and any investments held as part of such Fund shall be held in
trust and, except as otherwise provided in this Agreement, shall be applied
by the Trustee solely to pay principal of, premium, if any, and interest on,
the Bonds. The Trustee shall keep separate accounts as to (A) Eligible Funds
and (B) all other funds in the Bond Fund. When moneys in the Bond Fund are
to be applied to the payment of the Bonds, the Trustee shall transfer such
moneys to the Paying Agent on the payment date therefor. Proceeds of
drawings upon the Credit Facility shall not be deposited in the Bond Fund,
but shall be held by the Paying Agent in trust and applied as provided in
this Agreement.
(b) Excess in Bond Fund. If at any time the amount of Eligible Funds
in the Bond Fund exceeds the amount necessary to pay the Purchase Price or
the principal of, premium, if any, and interest on the Bonds in full and all
amounts owing or to be owing under this Agreement to the Authority, the
Trustee and the Paying Agent, then the Trustee shall apply such excess first
to the Bank, in fulfillment of any obligations owed to it under the
Reimbursement Agreement, as certified by the Bank, and second, if any balance
remains, to the Company.
(c) Unclaimed Moneys. Except as may otherwise be required by
applicable law, in case any moneys deposited with the Paying Agent for the
payment of the Purchase Price or principal of, premium, if any, or interest
on any Bond remain unclaimed for two years after such Purchase Price,
principal, premium or interest has been paid or has become due and payable,
the Paying Agent may, and upon receipt of a written request by a Company
Representative shall, pay over to the Company the amount so deposited and
thereupon the Trustee, the Paying Agent and the Authority shall be released
from any further liability with respect to the payment of such Purchase Price
or principal, premium or interest and the owner of such Bond shall be
entitled (subject to any applicable statute of limitations) to look only to
the Company as an unsecured creditor for the payment thereof.
Section 305. Rebate.
The Company shall pay to the United States when due any rebate with
respect to the Tax-Exempt Refunding Bonds pursuant to IRC <section>148(f).
Section 306. Expenses of Issue.
Not more than 2% of the proceeds of the 1991 Series E Bonds shall be
used to pay the expenses of issue of the 1991 Series E Bonds, including
underwriting charges.
Section 307. Application of Moneys.
If, in addition to moneys drawn on the Credit Facility (if any),
available moneys in the Bond Fund are not sufficient on any day to pay all
principal, premium, if any, and interest on the Outstanding Bonds then due or
overdue, such moneys shall, after payment of all amounts owing to the Trustee
and the Authority under this Agreement, be applied first to the payment of
interest, including interest on overdue principal, in the order in which the
same became due (pro rata with respect to interest which became due at the
same time) and second to the payment of principal and redemption premiums, if
any, without regard to the order in which the same became due in each case
pro rata among Bondowners, provided, however, that amounts drawn on the
Credit Facility (if any) shall be applied exclusively to pay interest,
premium, if any, and principal on Bonds supported by the Credit Facility in
accordance with the Credit Facility. If any Bonds are supported by a Credit
Facility and the owners of such Bonds have received all payments of
principal, premium, if any, and interest that have become due and payable
from a draw on the Credit Facility, the Bank shall be treated as the owner of
such Bonds for purposes of applying this section. In the event there exist
Pledged Bonds or Company Bonds on the date of any application of moneys under
this section, moneys otherwise to be paid to the Company or to the Bank
pursuant to this section shall be applied (subject to Paragraph 308(c)(iii))
as follows: first, so long as all payments due on Bonds supported by a
Credit Facility have been made, pro rata to all Bondowners other than the
Company (but including the Bank to the extent provided in the preceding
sentence), otherwise first, pro rata to all Bondowners other than the Bank
and the Company, second (and irrespective of which clause first applies), if
any balance remains, to the Bank in fulfillment of any obligations owed to it
under the Reimbursement Agreement or any Pledged Bonds (to the extent not
satisfied pursuant to clause first), and third, if any further balance
remains, to the Company in respect of any Company Bonds. Whenever moneys are
to be applied pursuant to this section, such moneys shall be applied at such
times, and from time to time, as the Trustee in its discretion shall
determine, having due regard to the amount of such moneys becoming available
for such application and the likelihood of additional moneys becoming
available for such application in the future. Whenever the Trustee shall
exercise such discretion it shall fix the date (which shall be the first day
of a month unless the Trustee shall deem another date more suitable) upon
which such application is to be made, and upon such date interest on the
amounts of principal paid on such date shall cease to accrue. Whenever
overdue interest is to be paid on the Bonds, the Trustee may establish a
special record date as provided in the forms of Bonds. The Trustee shall
promptly notify the Paying Agent of any special record date and give such
other notice as it may deem appropriate of the fixing of any such date and
special record date. When interest or a portion of the principal is to be
paid on an overdue Bond, the Trustee or the Paying Agent may require
presentation of the Bond for endorsement of the payment. Prior to any
payment to be made to the Bank pursuant to clause second of the sixth
preceding sentence, the Trustee may require a certificate from the Bank as to
amounts due under the Reimbursement Agreement, and the Trustee may rely
conclusively thereon.
Section 308. Payments by the Company.
(a) Payments of Debt Service by the Company.
(i) The Company shall make payments in immediately available funds to the
Trustee for deposit in the Bond Fund on the date on which such payment of
principal (including principal called for redemption) of, premium, if any, or
interest on Bonds shall become due in an amount equal to the payment then
coming due on such Bonds less the amounts, if any, (i) then held in the Bond
Fund and available to pay the same, and (ii) amounts received by the Paying
Agent to pay the same from a draw under a Credit Facility. The Company may
make payments to the Bond Fund earlier than required by this section, but
such payments shall not affect the accrual of interest.
(ii) The payments to be made under the foregoing paragraph shall be
appropriately adjusted to reflect the date of issue of Bonds, accrued
interest deposited in the Bond Fund, if any, and any purchase or redemption
of Bonds so that there will be available on each payment date the amount
necessary to pay the interest and principal due or coming due on the Bonds
and so that accrued interest will be applied to the installments of interest
to which it is applicable.
(iii) At any time when any principal of the Bonds is overdue, the
Company shall also have a continuing obligation to pay to the Trustee for
deposit in the Bond Fund an amount equal to interest on the overdue principal
but the installment payments required under this section shall not otherwise
bear interest. Redemption premiums shall not bear interest.
(b) Additional Payments.
(i) The Company shall pay when due the Authority's Service Charge and other
expenses as provided in Section 803.
(ii) Within thirty (30) days after notice from the Trustee, the Company shall
pay to the Trustee the reasonable fees and expenses of the Trustee as set forth
in Section 703.
(iii) Within thirty (30) days after notice from the Paying Agent,
the Company shall pay to the Paying Agent its reasonable fees and expenses as
set forth in Section 313.
(c) Drawings on the Credit Facility.
(i) Debt Service. If a Credit Facility is available for any portion of the
Bonds, the Paying Agent shall not later than 4:00 P.M. on the Business Day next
preceding any date on which payments of the principal of, premium, if any, or
interest on such Bonds are due, whether at maturity, on an interest payment
date, by acceleration, redemption, or otherwise, draw on the Credit Facility an
amount sufficient to pay in full the principal, premium, if any, and interest
then coming due on such Bonds.(23) For purposes of the immediately preceding
sentence, interest on the Bonds shall include the component of any Purchase
Price of Bonds in the Flexible Mode representing interest on the Bonds. The
Paying Agent shall immediately notify the Company and the Trustee by telephone
promptly confirmed in writing if it has not been paid by the Bank for such a
draw on the Letter of Credit by 11:00 A.M. on the date such payment on the Bonds
is due.
(ii) Tenders for Purchase. Except as provided in Paragraph 308(c)(i),
drawings on the Credit Facility for the purchase of Bonds tendered for
mandatory purchase pursuant to Paragraphs 301(d)(iii), 301(e)(iv), or
301(f)(iii) or for Bonds tendered for purchase at the Bondowner's election
pursuant to Paragraph 301(e)(iii) shall be made pursuant to Subsection
311(a).
(iii) Use of Credit Facility. All amounts received by the Paying
Agent under any Credit Facility shall be held in a segregated account, shall
remain uninvested and shall be used solely to pay the Purchase Price or
principal of, premium, if any, and interest on the Bonds for which the Credit
Facility is available. Principal and Purchase Price of, premium, if any, and
interest on Company Bonds, Pledged Bonds and Bonds not supported by a Credit
Facility shall not be paid from amounts drawn on a Credit Facility.(24)
(iv) Failed Conversion. Whenever there is a failed conversion of Bonds
supported by a Credit Facility, the Paying Agent shall draw on the Credit
Facility as provided in Paragraph 301(d)(ii), 301(e)(ii) or 301(f)(ii), as
appropriate.(25)
(d) Payment of Debt Service. The Trustee shall transfer Eligible
Funds, and to the extent necessary other funds, from the Bond Fund to the
Paying Agent for the payment of principal, premium, if any, and interest
payable on the Bonds as provided in Subsection 304(a) to the extent amounts
drawn on the Credit Facility are insufficient to pay the same, and in
conjunction therewith shall give the Paying Agent written notice of the
amount of Eligible Funds being transferred. The Paying Agent shall apply
such payments received from the Trustee and amounts drawn on the Credit
Facility, in the following order, (i) moneys drawn on the Credit Facility,
(ii) Eligible Funds on deposit in the Bond Fund other than moneys drawn on
the Credit Facility, and (iii) any other moneys in the Bond Fund; provided,
however, that except as specified in the next sentence, in no event shall the
Paying Agent use any moneys other than Eligible Funds to pay principal of,
premium, if any, or interest on Bonds supported by a Credit Facility. If and
to the extent that sufficient Eligible Funds, including moneys drawn on the
Credit Facility pursuant to this section and Section 605, are not available
to pay in full the principal of, premium, if any, and interest on the Bonds
supported by a Credit Facility, then other available moneys shall be so used.
(e) Company's Purchase of Bonds. If the amount drawn on the Credit
Facility and deposited with the Paying Agent, together with all other amounts
(including remarketing proceeds) received by the Paying Agent for the
purchase of Bonds supported by a Credit Facility and tendered pursuant to
Paragraph 301(d)(iii), 301(e)(iii) or (iv), or 301(f)(iii), is not sufficient
to pay the Purchase Price of such Bonds on the Purchase Date, the Paying
Agent shall before 3:30 P.M. on such Purchase Date, notify the Company, the
Remarketing Agent and the Trustee of such deficiency by telephone promptly
confirmed in writing. The Company shall pay to the Paying Agent in
immediately available funds by 4:00 P.M. on the Purchase Date an amount equal
to the Purchase Price of such Bonds less the amount, if any, available to pay
the Purchase Price in accordance with Section 311 from the proceeds of the
remarketing of such Bonds or from drawings on the Credit Facility, as
reported by the Paying Agent. Bonds so purchased with moneys furnished by
the Company shall be Company Bonds.
Section 309. Unconditional Obligation.
The obligation of the Company to make payments under this Agreement
shall be absolute and unconditional, shall be binding and enforceable in all
circumstances whatsoever, shall not be subject to setoff, recoupment or
counterclaim, and shall be a general obligation of the Company to which the
full faith and credit of the Company are pledged. The Company shall be
obligated to make such payments whether or not the Project Facilities become
functional and whether or not the Project Facilities have ceased to exist or
be functional to any extent from any cause whatsoever. The Company shall be
obligated to make such payments regardless of whether it is in possession or
entitled to be in possession of the Project Facilities.
Section 310. Redemption of the Bonds.
(a) Optional Redemption. The Bonds are redeemable prior to maturity in
accordance with the written direction of the Company to the Authority and the
Trustee. Such redemption of Bonds, other than Bonds in the Flexible Mode,
shall be in accordance with the terms of the Bonds (provided that, if less
than all the Bonds Outstanding shall be called for redemption, the Company
shall designate (to the extent not otherwise prohibited) the amount of Bonds
of each series and Mode to be redeemed, and if less than all of the Bonds
Outstanding in any series and Mode shall be called for redemption, Bonds to
be so redeemed in any series and Mode shall be selected by the Paying Agent
by lot or in any customary manner of selection as determined by the Paying
Agent) at the redemption prices plus accrued interest to the redemption date
as described in the forms of Bonds. For purposes of this Subsection 310(a),
references to the term Mode shall be deemed to include different Rate Periods
within the Multiannual Mode. Redemption of Bonds in the Flexible Mode
pursuant to this Subsection 310(a) shall be only on an Effective Date for the
Bonds to be redeemed at the then applicable Purchase Price for such Bonds.
(b) Extraordinary Optional Redemption. The Outstanding Bonds in the
Multiannual or Fixed Rate Modes may be redeemed at any time at the option of
the Company in whole at a price equal to 100% of the principal amount
thereof, plus accrued interest to the redemption date, if (i) all Bonds in
the Weekly Mode are to be redeemed pursuant to Subsection 310(a) on or before
such extraordinary optional redemption date and (ii) all Bonds in the
Flexible Mode are to be redeemed pursuant to Subsection 310(a) on or before
the later of (A) the first Effective Date for such Bonds after notice of the
extraordinary optional redemption is given by the Company pursuant to
Subsection 310(b) or (B) such extraordinary optional redemption date and
(iii) the redemption occurs within nine (9) months following the occurrence
of any of the following events, as evidenced in each case by the filing with
the Trustee of a certificate of a Company Representative that such event has
occurred and describing the same:
(i) Damage or destruction to the Station or the Project Facilities to
such extent that in the opinion of the Company (expressed in a resolution
adopted by the Board of Directors of the Company (a "Board Resolution")) and
of an architect or engineer acceptable to the Company (who may be an employee
of the Company), both filed with the Authority and the Trustee, (1) the
Station or the Project Facilities, as the case may be, cannot be reasonably
repaired, rebuilt, or restored within a period of six (6) months to their
condition immediately preceding such damage or destruction, or (2) normal
operations are thereby prevented from being carried on at the Station for a
period of not less than six (6) months.
(ii) Loss of title to or use of a substantial part of the Station or the
Project Facilities as a result of the exercise of the power of eminent domain
which, in the opinion of the Company (expressed in a Board Resolution) and of
an architect or engineer acceptable to the Company (who may be an employee of
the Company), both filed with the Authority and the Trustee, prevents or is
likely to prevent normal operations from being carried on at the Station for
a period of not less than six (6) months.
(iii) A change in the Constitution of the State of New Hampshire or
of the United States of America or legislative or executive action (whether
local, state, or federal) or a final decree, judgment or order of any court
or administrative body (whether local, state, or federal) that causes this
Agreement to become void or unenforceable or impossible of performance in
accordance with the intent and purpose of the parties as expressed herein or,
imposes unreasonable burdens or excessive liabilities upon the Company with
respect to the Station or the Project Facilities or the operation thereof.
(iv) The operation of the Station or the Project Facilities shall have
been enjoined or shall otherwise have been prohibited by any order, decree,
rule or regulation of any court or of any local, state, or federal regulatory
body, administrative agency or other governmental body for a period of not
less than six (6) months.
(v) Changes which the Company cannot reasonably control in the economic
availability of fuel, materials, supplies, labor, equipment, or other
properties or things necessary for the efficient operation of the Station or
the Project Facilities shall have occurred which, in the judgment of the
Company (expressed in a Board Resolution), render the continued operation of
the Station uneconomical.
The Company's right to direct the redemption of the Bonds upon the
occurrence of any single event listed in this Subsection 310(b) shall expire
six (6) months after such event occurs.
(c) Notice by the Company. The Company shall exercise its option to
have Bonds redeemed under Subsection 310(a) or (b) by giving notice to the
Trustee, the Authority, the Paying Agent, and the Remarketing Agent at least
five (5) days before the redemption date in the case of Bonds in the Flexible
Mode, and forty-five (45) days before the redemption date in the case of
Bonds in any other Mode.(26)
(d) Payment of Redemption Price and Accrued Interest. Whenever Bonds
are called for redemption, the accrued interest thereon shall become due on
the redemption date. To the extent not otherwise provided, the Company shall
deposit with the Trustee prior to the redemption date a sufficient sum to pay
the redemption price of and accrued interest on the Bonds.
(e) Notice of Redemption. When Bonds are to be redeemed, the Paying
Agent shall give notice to the Bondowners in the name of the Authority, which
notice shall identify the Bonds to be redeemed, state the date fixed for
redemption and specify the office of the Paying Agent at which such Bonds
will be redeemed. The notice shall further state that on such date there
shall become due and payable upon each Bond to be redeemed the redemption
price thereof, together with interest accrued to the redemption date, and
that moneys therefor having been deposited with the Paying Agent, from and
after such date, interest thereon shall cease to accrue and that the Bonds or
portions thereof called for redemption shall cease to be entitled to any
benefit under this Agreement except the right to receive payment of the
redemption price. The Paying Agent shall mail the redemption notice the
number of days prior to the date fixed for redemption provided in the forms
of Bond for the Mode the Bonds are in, to the registered owners of any Bonds
which are to be redeemed, at their addresses shown on the registration books
maintained by the Paying Agent. Failure to mail notice to a particular
Bondowner, or any defect in the notice to such Bondowner, shall not affect
the redemption of any other Bond. No notice shall be given of redemption of
Bonds in the Flexible Mode, except for such redemption pursuant to Section
405 as and when provided in the forms of Flexible Bonds.(27)
Section 311. Purchase of Bonds Tendered.
(a) Procedure.
(i) Notice. The Remarketing Agent shall give notice to the Paying
Agent electronically or by telephone, and if by telephone, promptly confirmed
in writing, specifying the principal amount of Tendered Bonds as to which the
Remarketing Agent has found purchasers, the amounts the Remarketing Agent has
received for the purchase of Tendered Bonds, and any deficiency in amounts
available to pay the Purchase Price of Tendered Bonds at or before (A) 1:00
P.M. on each Purchase Date for Tendered Bonds that are to be in the Flexible
Mode immediately after the Purchase Date, (B) 3:30 P.M. one (1) Business Day
before the Purchase Date for Tendered Bonds that are to be in the Weekly Mode
immediately after the Purchase Date, or (C) 2:00 P.M. two (2) Business Days
before the Purchase Date for Tendered Bonds that are to be in the Multiannual
or Fixed Rate Mode immediately after the Purchase Date. The Remarketing
Agent shall give written notice to the Paying Agent of the names, addresses
and taxpayer identification numbers of the purchasers and the number and
denominations of Bonds to be delivered to each purchaser, and in the case of
Bonds that are to be in the Flexible or Multiannual Mode, the current rate
and the next scheduled Purchase Date of each such Bond successfully
remarketed at or before (A) 1:00 P.M. on each Purchase Date for Tendered
Bonds that are to be in the Flexible Mode immediately after the Purchase
Date, (B) 3:30 P.M. one (1) Business Day before the Purchase Date for
Tendered Bonds to be in the Weekly Mode immediately after the Purchase Date,
or (C) 2:00 P.M. two (2) Business Days before the Purchase Date for Tendered
Bonds to be in the Multiannual Mode immediately after the Purchase Date.
(ii) Sources of Payments. If the Tendered Bonds are supported by a
Credit Facility, the Paying Agent shall draw upon the Credit Facility the
amount necessary to purchase the Tendered Bonds for which the Remarketing
Agent has not received the Purchase Price not later than (A) 1:30 P.M. on the
Purchase Date for Tendered Bonds that are to be in the Flexible Mode
immediately after the Purchase Date, or (B) 4:00 P.M. one (1) Business Day
before the Purchase Date for Tendered Bonds that are to be in any other Mode
immediately after the Purchase Date. In determining the amount necessary to
purchase such Tendered Bonds, the Paying Agent shall take into account any
amounts drawn under the Credit Facility pursuant to Paragraph 308(c)(i) to
pay interest on such Bonds on the Tender Date. If the Tendered Bonds are not
supported by a Credit Facility, the Paying Agent shall not later than (A)
1:30 P.M. on the Purchase Date for Tendered Bonds that are to be in the
Flexible Mode immediately after the Purchase Date, or (B) 4:00 P.M. one (1)
Business Day before the Purchase Date for Tendered Bonds that are to be in
any other Mode immediately after the Purchase Date, notify the Company of the
amount necessary to purchase the Tendered Bonds for which the Remarketing
Agent has not received the Purchase Price, and the Company shall pay the
Paying Agent such amount not later than (A) 3:30 P.M. on the Purchase Date in
the case of Tendered Bonds that are to be in the Flexible Mode immediately
after the Purchase Date, or (B) 10:00 A.M. on the Purchase Date in the case
of Tendered Bonds that are to be in any other Mode immediately after the
Purchase Date. The Remarketing Agent shall deliver to the Paying Agent all
amounts received by the Remarketing Agent as proceeds of the remarketing of
Bonds at or before (A) the close of business on the Purchase Date for
Tendered Bonds that are to be in the Flexible Mode immediately after the
Purchase Date, (B) 2:00 P.M. on the Purchase Date for Tendered Bonds that are
to be in the Weekly Mode immediately after the Purchase Date, or (C) 2:00
P.M. on the Purchase Date for Tendered Bonds that are to be in the
Multiannual or Fixed Rate Mode immediately after the Purchase Date. If the
Bonds are supported by a Credit Facility and the Remarketing Agent does not
deliver to the Paying Agent proceeds of remarketing sufficient, together with
amounts received from draws under the Credit Facility, to pay in full the
Purchase Price of all Bonds due on the Purchase Date, the Paying Agent shall
make an additional draw on the Credit Facility pursuant to Paragraph
602(a)(ii) and thereafter the Company shall be liable for the shortfall.
(b) Payments by the Paying Agent. At or before the close of business
on the Delivery Date and upon receipt by the Paying Agent of the Purchase
Price of the Tendered Bonds that are delivered to it, the Paying Agent shall
pay the Purchase Price of the Bonds to the registered owners thereof as
provided in the applicable form of Bonds. The Paying Agent shall apply in
order, first, moneys paid to it by the Remarketing Agent or by new purchasers
of the Bonds tendered as proceeds of the remarketing of such Bonds by the
Remarketing Agent, second, but only with respect to Bonds supported by the
Credit Facility, moneys drawn on the Credit Facility for the purpose of
purchasing Tendered Bonds (including amounts drawn on the Credit Facility to
pay accrued interest on the Tendered Bonds), and third, moneys paid to it by
the Company. If sufficient funds are not available for the purchase of all
Bonds tendered on any Delivery Date, no purchase shall be consummated.
(c) Commencement of New Mode or Rate Period. Whenever Bonds in the
Flexible or Multiannual Mode are subject to mandatory tender for purchase on
an Effective Date, the new Rate Period for the Bonds (including a new Rate
Period in a new Mode) shall commence immediately upon the Bonds becoming
subject to mandatory tender for purchase.(28)
Section 312. Remarketing of Bonds Tendered.
(a) General. While the Bonds are in the Flexible, Weekly or
Multiannual Mode, the Remarketing Agent shall solicit offers to purchase and
use its best efforts to find a purchaser for Tendered Bonds, Pledged Bonds
and Company Bonds, provided that Bonds supported by a Credit Facility shall
not be remarketed to the Authority, the Company or "insiders" of either of
them as that term is defined in the United States Bankruptcy Code. Any such
purchase shall be made by payment of the Purchase Price in immediately
available funds (for Bonds to be in the Flexible or Weekly Mode) or in
clearinghouse funds (for Bonds to be in the Multiannual Mode) to the Paying
Agent at the time specified in Paragraph 311(a)(ii). The Purchase Price shall
be equal to the principal amount to be purchased together with the interest
accrued on such principal amount to the Purchase Date. By (i) 2:15 P.M., in
the case of Bonds that are to be in the Flexible Mode immediately after the
Purchase Date, (ii) 2:00 P.M., in the case of Bonds that are to be in the
Weekly Mode immediately after the Purchase Date, or (iii) 2:00 P.M., in the
case of Bonds that are to be in the Multiannual or Fixed Rate Mode
immediately after the Purchase Date, on the Purchase Date, Bonds remarketed
under this section shall be made available by the Paying Agent to the
purchasers thereof (in the case of Bonds in the Flexible Mode, delivered by
the Paying Agent to the Remarketing Agent) and shall be registered in the
manner directed by the recipient thereof, provided that such Bonds shall not
be delivered unless and until the Paying Agent has received the Purchase
Price therefor, except that Bonds in the Flexible Mode may be delivered
against a window receipt guaranteeing same day payment in immediately
available funds. Bonds not remarketed shall be held by the Paying Agent.
Bonds previously purchased with moneys drawn under the Credit Facility shall
not be delivered upon remarketing unless the Credit Facility has been
reinstated as provided in the following paragraph.
Bonds the Purchase Price of which is paid for with funds drawn on the
Credit Facility pursuant to Paragraph 311(a)(ii) shall be registered to the
Bank, or its designee, as pledgee, by the Paying Agent (whether or not such
Bonds are delivered by the tendering Bondowner) as security for the
reimbursement of the Bank for moneys drawn under the Credit Facility and
shall be "Pledged Bonds." Bonds the Purchase Price of which is paid for with
funds provided by the Company pursuant to Subsection 308(e) or Paragraph
311(a)(ii) shall be registered in the name of the Company by the Paying Agent
and shall be "Company Bonds". Company Bonds shall be held by the Paying
Agent for the account of the Company until transferred pursuant to this
Section 312 or canceled pursuant to instructions of the Company. Any Company
Bonds that remain unsold for a period of ninety (90) days (or such longer
period as may be approved (under New Hampshire and federal law) in an opinion
of Bond Counsel reasonably acceptable to the Trustee) shall be automatically
deemed canceled. Upon receipt by the Paying Agent of notice from the
Remarketing Agent that a purchaser has been found for Pledged Bonds or
Company Bonds held by the Paying Agent, the Paying Agent shall register and
deliver such Bonds to such purchaser (at which time such Bonds shall cease to
be Pledged Bonds or Company Bonds) upon receipt by the Paying Agent of the
Purchase Price of such Bonds, provided, however, that no Pledged Bond or
Company Bond shall be so registered and delivered unless the Paying Agent has
received from the Bank a written notice of the reinstatement of the principal
and interest component of the Credit Facility, or if prior to or
simultaneously with such registration or delivery, the amount available to be
drawn under the Credit Facility is otherwise less than the amount described
in Paragraph 317(b)(ii) determined as if Bonds which are to continue as
Pledged Bonds were not Outstanding.(29) If the Paying Agent has received
from the Bank a written notice of non-reinstatement of the interest component
of the Credit Facility with respect to Bonds in the Flexible Mode and has,
therefore, stopped registration and delivery of remarketed Bonds, the Paying
Agent may resume the registration and delivery of Bonds upon receipt from the
Bank of written notice that the interest component of the Credit Facility has
been fully reinstated. The Paying Agent shall immediately notify
(subsequently confirmed in writing) the Remarketing Agent whenever (i) it is
prohibited from registering and delivering Bonds pursuant to this Agreement
and (ii) if the Paying Agent has been so prohibited, upon the restoration of
its power hereunder to register and deliver Bonds. Bonds purchased with
moneys drawn under the Credit Facility and registered to the Bank or its
designee pursuant to the Reimbursement Agreement shall be delivered to and
held by the Paying Agent as custodian for the Bank and shall not be
subsequently transferred or assigned by the Bank except as provided in this
Section 312 and Paragraph 313(a)(iv). No Bonds that are automatically
converted to a Flexible Mode with a one day Rate Period after failure of an
optional conversion from one Mode to another (or from one Rate Period to
another in the Multiannual Mode) shall be remarketed until the Paying Agent
notifies the Remarketing Agent (promptly confirmed in writing) that such
Bonds are supported by a Credit Facility meeting the requirements of
Subsection 317(b).
(b) Remarketing of Bonds in the Weekly Mode Between Notice and
Redemption or Conversion Date. No Bonds in the Weekly Mode scheduled to be
redeemed or converted to a different Mode may be remarketed under Subsection
312(a) after receipt by the Remarketing Agent of notice of redemption or
conversion of such Bonds to a specified Mode from the Company unless the
Remarketing Agent, on or before the redemption date or Purchase Date, gives
notice to the purchaser that the Bonds will be redeemed or converted, and
such purchaser will be required to surrender its Bonds for payment on the
applicable redemption date or to tender its Bonds for mandatory purchase on
the applicable Conversion Date, as the case may be.
Section 313. Paying Agent.
(a) Appointment and Responsibilities. The initial Paying Agent shall
be Security Pacific National Trust Company (New York). The Paying Agent
shall be entitled to the advice of counsel (who may be counsel for any party)
and shall not be liable for any action taken in good faith in reliance on
such advice. The Paying Agent may rely conclusively on any telephone or
written notice, certificate or other document furnished to it under this
Agreement and reasonably believed by it to be genuine. The Paying Agent
shall not be liable for any action taken or omitted to be taken by it in good
faith and reasonably believed by it to be within the discretion or power
conferred upon it, or taken by it pursuant to any direction or instruction by
which it is governed under this Agreement or omitted to be taken by it by
reason of the lack of direction or instruction required for such action, or
be responsible for the consequences of any error of judgment reasonably made
by it. When any payment or other action by the Paying Agent is called for by
this Agreement, it may defer such action pending receipt of such evidence, if
any, as it may reasonably require in support thereof. A permissive right or
power to act shall not be construed as a requirement to act. The Paying
Agent shall not in any event be liable for the application or misapplication
of funds, or for other acts or defaults, by any person, firm or corporation
except by their respective directors, officers, agents and employees. No
recourse shall be had by the Company, the Authority, the Trustee or any
Bondowner for any claim based on this Agreement or the Bonds against any
director, officer, agent or employee of the Paying Agent unless such claim is
based upon the bad faith, fraud or deceit of such person. For the purposes
of this Agreement matters shall not be considered to be known to the Paying
Agent unless they are known to an officer in its corporate trust division.
The Paying Agent shall not require indemnification either (i) prior to making
a draw under the Credit Facility pursuant to Paragraphs 308(c)(i) or
308(c)(ii), or (ii) prior to making any payment when due of principal,
premium or interest on any Bond to be made by the Paying Agent to any
Bondowner, except and unless such drawing or payment is prohibited by or
violates applicable law or any outstanding or pending court or governmental
order or decree.
The Company shall pay to the Paying Agent reasonable compensation for
its services and pay or reimburse the Paying Agent for its reasonable
expenses and disbursements, including reasonable attorneys' fees hereunder.
The Company shall indemnify and save the Paying Agent harmless against any
liabilities and reasonable expenses which it may incur in the exercise of its
duties hereunder and which are not due to its negligence or bad faith. Any
fees, expenses, reimbursements or other charges which the Paying Agent may be
entitled to receive from the Company hereunder shall be due and payable 30
days after a request for payment has been made by the Paying Agent to the
Company, and any such fees, expenses, reimbursements or other charges not
paid when due shall bear interest at the "Base Rate" of the Trustee (or, if
none, the nearest equivalent).
The Paying Agent shall act as such and as Bond registrar and transfer
agent. The Paying Agent, which may act by means of agents, shall signify its
acceptance of the duties and obligations imposed upon it hereunder by its
written instrument of acceptance under which the Paying Agent will agree to:
(i) hold all sums delivered to it by the Trustee or paid to it under
the Credit Facility for the payment of principal of, premium, if any, and
interest on the Bonds uninvested in trust for the benefit of the Bondowners
until such sums shall be paid to the Bondowners or otherwise disposed of as
herein provided;
(ii) hold all Bonds tendered to it hereunder in trust for the benefit of
the respective Bondowners until moneys representing the Purchase Price of
such Bonds shall have been delivered to or for the account of or to the order
of such Bondowners;
(iii) hold all moneys delivered to it hereunder for the purchase of
Bonds (including amounts drawn on the Credit Facility and amounts received
from the Company) in trust uninvested for the benefit of the Person that
shall have so delivered such moneys until the Bonds purchased with such
moneys shall have been delivered to or for the account of such Person;
(iv) hold all Pledged Bonds in trust for the benefit of the Bank until
such Pledged Bonds have been remarketed by the Remarketing Agent, purchased
by the Company, or redeemed;
(v) hold all Company Bonds in trust for the benefit of the Company
until such Company Bonds have been remarketed by the Remarketing Agent,
redeemed, or canceled.
(vi) keep such books and records as shall be consistent with industry
practice and make such books and records, including the books of registration
for the Bonds, available for inspection by the parties hereto and the
Remarketing Agent at all reasonable times;
(vii) promptly report to the Trustee all authentications of Bonds
transferred, exchanged or remarketed and any information received by it
concerning the names and addresses of Bondowners;
(viii) give all notices required of it in this Agreement at the times
and in the manner required by this Agreement and send to the Remarketing
Agent copies of all such notices;
(ix) if appointed by the Trustee for such purpose, act as agent of the
Trustee for the purpose of executing the Certificate of Authentication on the
Bonds; and
(x) take all other actions and perform all other duties and obligations
as may be required of it as Paying Agent under this Agreement.
In addition, in its instrument of acceptance the Paying Agent shall
assign to the Trustee all of its rights to enforce payment under the Credit
Facility after the occurrence of an Event of Default.
(b) Removal or Resignation of Paying Agent. The Company may discharge
the Paying Agent from time to time and appoint a successor approved by the
Trustee, the Bank and the Remarketing Agent. The Company shall also
designate a successor subject to the approval of the Trustee, the Bank and
the Remarketing Agent if the Paying Agent resigns or becomes ineligible. The
Paying Agent may resign by giving at least sixty (60) days' written notice to
the parties hereto and the Remarketing Agent. Each successor Paying Agent
shall be a commercial bank or trust company having a capital and surplus of
not less than $50,000,000, shall at the time of the appointment be rated at
least Baa3/P-3 by Moody's or otherwise be acceptable to Moody's, shall be
registered as a transfer agent with the Securities and Exchange Commission,
shall have the power to authenticate bonds pursuant to the Act, and shall be
capable of performing the duties prescribed for it herein in New York, New
York. The Paying Agent may but need not be the same person as the Trustee.
The Trustee shall give notice of the appointment of a successor Paying Agent
in writing to each Bondowner. The Trustee will promptly certify to the
Company that it has mailed such notice to all Bondowners, and such
certificate will be conclusive evidence that such notice was given in the
manner required hereby.
In the event of the resignation or removal of the Paying Agent, the
Paying Agent shall pay over, assign, transfer and deliver the Credit Facility
and any moneys and Bonds, including Pledged Bonds and unauthenticated Bonds,
held by it and the books of registry maintained by it in such capacity to its
successor. No resignation or removal of the Paying Agent shall be effective
until a successor has been appointed and has accepted its appointment.
(c) Successors. Any corporation, association, partnership or firm
which succeeds to the business of the Paying Agent as a whole or
substantially as a whole, whether by sale, merger, consolidation or
otherwise, shall thereby become vested with all the property, rights and
powers of the Paying Agent under this Agreement and shall be subject to all
the duties and obligations of the Paying Agent under this Agreement.
In the event that the Paying Agent shall resign or be removed, or be
dissolved, or if the property or affairs of the Paying Agent shall be taken
under the control of any state or federal court or administrative body
because of bankruptcy or insolvency, or for any other reason, and the Company
shall not have appointed its successor within thirty (30) days, the Trustee
shall appoint a successor.
The Paying Agent shall send or cause to be sent notice to Bondowners of
a change of address for the delivery of Bonds or notices or the payment of
principal or purchase price of Bonds.
Section 314. Remarketing Agent.
(a) Qualifications and Responsibilities. The Company shall appoint,
with the consent of the Authority, and, if a Credit Facility is in effect,
the Bank, a Remarketing Agent when any Bonds are in the Flexible Mode, Weekly
or Multiannual Mode. The Remarketing Agent shall be authorized by law to
perform all of the duties imposed upon it by this Agreement. In addition,
the Remarketing Agent shall either (i) have a capitalization of at least
$10,000,000 and outstanding securities rated at least Baa 3 (or a
substantially equivalent rating) by Moody's if such a requirement is then
necessary to the maintenance of any then existing Moody's rating on the Bonds
or (ii) have a capitalization of at least $15,000,000 or have a line of
credit with a commercial bank in the amount of at least $15,000,000. The
Remarketing Agent, which may act by means of agents, shall signify its
acceptance of the duties and obligations imposed upon it hereunder by a
written agreement with the Company under which the Remarketing Agent will
agree, among other things, to:
(i) determine the Flexible, Weekly, Multiannual or Fixed Rate pursuant
to and in accordance with Paragraph 301(d)(i), (e)(i) or (f)(i) or Subsection
301(g) and the forms of Flexible, Weekly, Multiannual and Fixed Rate Bonds;
(ii) give all notices to the Trustee and Paying Agent regarding the
determination of interest rates on the Bonds and regarding Tendered Bonds as
are required of the Remarketing Agent in this Agreement;
(iii) hold all moneys received hereunder from the remarketing of
Tendered Bonds for the benefit of the person or entity which shall have
delivered such moneys until the Remarketing Agent shall have transferred such
moneys to the Paying Agent as provided in this Agreement;
(iv) keep such books and records with respect to its duties as
Remarketing Agent as shall be consistent with prudent industry practice and
make such books and records available for inspection by the parties hereto
and the Paying Agent at all reasonable times; and
(v) use its best efforts to remarket Bonds in accordance with this
Agreement and any remarketing agreement entered into by the Remarketing Agent
and the Company.
The Remarketing Agent may enter into custodial agreements with one or
more banking or similar institutions for the deposit and holding of the Bonds
in order to facilitate the tendering and remarketing of Bonds as provided in
this Agreement, provided, however, that in no event shall the Authority, the
Trustee or the Paying Agent be responsible or held liable for any action
taken or not taken under any such custodial agreement and in no way shall any
such custodial agreement relieve or otherwise alter the obligations and
responsibilities of the Remarketing Agent set forth in this Agreement.
(b) Removal or Resignation of Remarketing Agent. The Company may
remove the Remarketing Agent at any time by written notice to the Remarketing
Agent, the Bank and the parties hereto and appoint a successor which meets
the qualifications set forth in Subsection 314(a) and which is reputable and
experienced in the remarketing of obligations similar to the Bonds. The
Company shall appoint a successor with similar qualifications if the
Remarketing Agent resigns or becomes ineligible. The Company shall give the
Authority, the Bank, the Paying Agent and the Trustee at least two (2) days'
notice prior to the appointment of a successor Remarketing Agent. The
Remarketing Agent may at any time resign and be discharged of the duties and
obligations created by this Agreement by giving at least thirty (30) days'
written notice to the parties hereto and the Bank and the Paying Agent. The
Trustee shall give written notice to the Bondowners of any removal or
appointment of the Remarketing Agent.
(c) Successors. Any corporation, association, partnership or firm
which succeeds to the business of the Remarketing Agent as a whole or
substantially as a whole, whether by sale, merger, consolidation or
otherwise, shall thereby become vested with all the property, rights and
powers of the Remarketing Agent under this Agreement and shall be subject to
all the duties and obligations of the Remarketing Agent under this Agreement.
In the event that the Remarketing Agent shall resign or be removed, or be
dissolved, or if the property or affairs of the Remarketing Agent shall be
taken under the control of any state or federal court or administrative body
because of bankruptcy or insolvency, or for any other reason, and the Company
shall not have appointed its successor within thirty (30) days, the Trustee
shall apply to a court of competent jurisdiction for such appointment.
Section 315. Investments.
(a) Pending their use under this Agreement, moneys in the Bond Fund may
be invested by the Trustee in Permitted Investments (as defined below)
maturing or redeemable at the option of the holder at or before the time when
such moneys are expected to be needed and shall be so invested pursuant to
written direction of the Company if no Default known to the Trustee then
exists under this Agreement, provided that the Company shall not request,
authorize or permit any investment which would cause any Tax-Exempt Refunding
Bonds to be classified as "arbitrage bonds" as defined in IRC Section 148.
Any investments pursuant to this subsection shall be held by the Trustee as a
part of the Bond Fund and shall be sold or redeemed to the extent necessary
to make payments or transfers or anticipated payments or transfers from such
Fund.
(b) Any interest realized on investments in the Bond Fund and any
profit realized upon the sale or other disposition thereof shall be credited
to the Bond Fund and any loss shall be charged thereto.
(c) (1) The term "Permitted Investments" means (i) Government
Obligations or shares of a so-called money market or mutual fund that has all
of its assets invested in Government Obligations, (ii) tax-exempt bonds as
defined in IRC Section 150(a)(6) rated at least AA or Aa by S&P and Moody's,
respectively, or the equivalent by any other nationally recognized rating
agency at the time of acquisition thereof (and Aa by Moody's if rated by
Moody's and AA by S&P if rated by S&P) or shares of a so-called money market
or mutual fund that do not constitute "investment property" within the
meaning of IRC Section 148(b)(2), provided either that the fund has all of
its assets invested in obligations of such rating quality or, if such
obligations are not so rated, that the fund has comparable credit worthiness
through insurance or otherwise and which fund is rated AAm or AAm-G if rated
by S&P, and rated investment grade by Moody's, if rated by Moody's, or, if
unrated, investment in such fund is approved in writing by S&P and Moody's,
(iii) certificates of deposit of, banker's acceptances drawn on and accepted
by, and interest bearing deposit accounts of, a bank or trust company which
has a capital and surplus of not less than $50,000,000 and which has been
rated not less than Prime-3 by Moody's, and (iv) Repurchase Agreements. The
term "Repurchase Agreement" shall mean a written agreement under which a bank
or trust company which has a capital and surplus of not less than $50,000,000
or a government bond dealer reporting to, trading with, and recognized as a
primary dealer by the Federal Reserve Bank of New York sells to, and agrees
to repurchase from the Trustee obligations issued by, or the full and timely
payment of which is guaranteed by, the United States, provided that the
market value of such obligations is at the time of entering into the
agreement at least one hundred and three percent (103%) of the repurchase
price specified in the agreement and that such obligations are segregated
from the unencumbered assets of such bank or trust company or government bond
dealer, and provided further that unless the agreement is with a bank or
trust company, such agreement shall require the repurchase to occur on demand
or on a date certain which is not later than one (1) year after such
agreement is entered into and shall expressly authorize the Trustee to
liquidate the purchased obligations in the event of the insolvency of the
party required to repurchase such obligations or the commencement against
such party of a case under the federal Bankruptcy Code or the appointment of
or taking possession by a trustee or custodian in a case against such party
under the Bankruptcy Code. Any such investments may be purchased from or
through the Trustee.
(2) Notwithstanding the immediately preceding paragraph Permitted
Investments shall not include the following:
(A) Government Obligations, certificates of deposit and bankers'
acceptances, in each case with yields lower than the yield available on
comparable obligations then offered by the United States Treasury;
(B) any demand deposit or similar account with a bank, trust company or
broker, unless (i) the account is used for holding funds for a short period
of time until such funds are reinvested or spent, and (ii) such account will
not contain an average daily balance for any bond year (selected by the
Company pursuant to Temp. Treas. Reg. Section 1.148-8T(b)(2) or any successor
thereto) in excess of $20,000 (disregarding the 20 days with the largest
account balances); or
(C) Repurchase Agreements, unless (i) at least three (3) bids are
obtained on the proposed Repurchase Agreement from persons other than those
with an interest in the Bonds, (ii) the yield on the Repurchase Agreement is
at least equal to the yield offered by the highest bidder, and (iii) a
written record of the yield offered by each bidder is maintained.
Any of the requirements of this paragraph (2) shall not apply to moneys
allocable to Bonds as to which the Trustee and the Authority shall have
received an opinion of nationally recognized bond counsel to the effect that
such requirements are not necessary to preserve the exclusion of interest on
any Tax-Exempt Refunding Bonds from the gross income of the owner thereof for
federal income tax purposes.
Section 316. Reduction of Credit Facility on Change in Mode; Release
of Credit Facility upon Conversion to Multiannual or
Fixed Rate Mode.
If Bonds are converted from one Mode to another Mode for which the
Paying Agent is required to be entitled to draw under the Credit Facility a
reduced number of days' interest, as described in Paragraph 317(b)(ii), the
Paying Agent may reduce the amount available to be drawn under the Credit
Facility upon such conversion in accordance with the Credit Facility.
If no Credit Facility is to be in effect for the Bonds as converted to
the Multiannual or Fixed Rate Mode, the Paying Agent shall reduce (or if all
the Bonds are so converted, release) the Credit Facility upon such conversion
so that the Credit Facility, if any, in effect satisfies the requirements
described in Paragraph 317(b)(ii).
In no event shall any reduction in or release of the Credit Facility
pursuant to this Section 316 take effect until five (5) Business Days after
the conversion.
Section 317. Credit Facilities.
(a) Substitution or Replacement. Upon satisfaction of the requirements
set forth in this Section 317 and subject to the last sentence of this
Subsection 317(a), the Company may (except during the period between the
giving of notice of mandatory tender for purchase on account of the
expiration of the Credit Facility and the Purchase Date) replace a Credit
Facility then in effect with a substitute Credit Facility; provided, however,
that (1) the Credit Facility being replaced shall in no event be terminated
or released until the Company has given not less than forty-five (45) days'
written notice to the Trustee, the Paying Agent and the Remarketing Agent,
and the Paying Agent has received the proceeds of all outstanding drawings on
the Credit Facility being replaced, (2) if any Bonds supported by the Credit
Facility being replaced are in the Weekly Mode, the Paying Agent has given
not less than thirty (30) days' written notice of the termination or release
of the Credit Facility to owners of such Bonds in the Weekly Mode and (3) if
any of the Bonds supported by the Credit Facility being replaced are in the
Flexible Mode or the Multiannual Mode, such Credit Facility shall in no event
be terminated or released earlier than on an Effective Date for all such
Bonds.
Prior to the replacement of any Credit Facility the Company shall have
delivered to the Trustee and the Paying Agent: (i) an opinion of counsel for
the issuer of the substitute Credit Facility to the effect that it
constitutes a legal, valid and binding obligation of the issuer enforceable
in accordance with its terms; (ii) a certificate of the Bank that all amounts
due under the Reimbursement Agreement have been paid and that the Company has
fulfilled all its obligations arising out of such Agreement; and (iii) unless
all of the Bonds to be supported by the substitute Credit Facility are in the
Weekly Mode or are subject to mandatory tender for purchase on the date of
replacement, written evidence from Moody's, if such Bonds are then rated by
Moody's, and from S&P, if such Bonds are then rated by S&P, that the
replacement of the Credit Facility will not in itself result in the reduction
or withdrawal of the rating on the Bonds. Notice of the substitution or
replacement of a Credit Facility shall be sent by the Trustee to Moody's and
S&P.(30)
(b) Requirements. Each Credit Facility must:
(i) be an irrevocable, unconditional obligation of a financial
institution;
(ii) be on terms no less favorable to the Paying Agent than the Letter
of Credit and entitle the Paying Agent to draw upon or demand payment and
receive in immediately available funds an amount equal to the sum of the
principal amount of the Bonds supported by the Credit Facility, any premium
applicable thereto, and (A) forty-five (45) days' accrued interest at the
Maximum Interest Rate on the principal amount of such Bonds then Outstanding
in the Weekly Mode, (B) thirty-eight (38) days' accrued interest at the
Maximum Interest Rate on the principal amount of such Bonds then Outstanding
in the Flexible Mode or (C) one hundred ninety (190) days' accrued interest
at the Maximum Interest Rate on the principal amount of such Bonds then
Outstanding in the Multiannual Mode; and
(iii) provide for a term which may not expire in less than 364
days(31) and which may not expire or be terminated prior to the fifth
Business Day after the mandatory tender for purchase as provided in Paragraph
301(d)(iii), 301(e)(iv), or 301(f)(iii). The Company shall not enter into
any Reimbursement Agreement or agree to any amendment of a Reimbursement
Agreement which in any way limits the obligation of the Bank to provide funds
under the Credit Facility without the prior written consent of 100% of the
principal amount of the Bonds Outstanding and entitled to the benefit
thereof.
Section 318. Tax Status of Bonds.
The Company will perform its obligations and agreements contained in the
Federal Tax Statement as if they were set forth herein. All representations
of the Company in the Federal Tax Statement shall be treated as if they were
set forth herein. Any covenants, agreements or representations made by the
Company or any transferee of the Project Facilities in connection with such a
transfer shall be performed and treated as if set forth herein. The
Authority will cooperate with the Bondowners and the Company to the extent
deemed necessary or permitted by law in the opinion of bond counsel to the
Authority in order to preserve the exclusion of interest on the Tax-Exempt
Refunding Bonds from the gross income of the owners thereof for federal
income tax purposes. If no Tax-Exempt Refunding Bonds are outstanding, the
Company may waive the application of this Section 318 to itself (or any
successors hereunder or as owner of the Project Facilities) and the Authority
by written notice to the Authority and the Trustee that the Company will not
request the Authority to issue any Tax-Exempt Refunding Bonds.
Section 319. Securities Laws.
Notwithstanding any other provision of this Agreement, the Purchase
Price, principal of, premium, if any, and interest on the 1991 Series E Bonds
shall at all times be supported by a Credit Facility issued by a national
bank, or any banking institution organized under the laws of any state,
territory or the District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial banking
commission or similar official, unless the Company delivers to the Trustee an
opinion of counsel expert in securities law matters to the effect that
failure to provide such a Credit Facility will not cause the offering, sale
or delivery of any 1991 Series E Bonds to constitute a violation of the
registration requirements of the Securities Act of 1933, as amended, or
qualification requirements with respect to this Agreement under the Trust
Indenture Act of 1939, as amended. In any remarketing of Bonds under this
Agreement, the Company shall at all times comply with applicable federal and
state securities laws.
Section 320. Registration of Bonds (except the 1993 Series E Bonds) in
the Book-Entry Only System.(32)
(a) Notwithstanding any provision of this Agreement to the contrary,
the provisions of this Section 320 shall apply with respect to any Bonds
(except the 1993 Series E Bonds) registered to CEDE & CO. or any other
nominee of The Depository Trust Company ("DTC") while the Book-Entry Only
System (meaning the system of registration described in this Section 320) is
in effect. The Book-Entry Only System shall be in effect for any series of
Bonds or portion thereof issued in or converted to any Mode or Rate Period
within the Multiannual Mode if so specified by the Company prior to the
issuance in or conversion to that Mode or Rate Period, subject to the
provisions below concerning termination of the Book-Entry Only System. Until
it revokes such specification in its discretion, the Company hereby specifies
that the Book-Entry Only System shall be in effect while the 1991 Series E
Bonds are in Flexible Mode. Notwithstanding any provision of this Section
320 to the contrary, the provisions of this Section 320 shall not apply to
the 1993 Series E Bonds, which are subject to the Book-Entry Only System
described in Section 321.
(b) The Bonds in or to be in the Book-Entry Only System shall be issued
in the form of a separate single authenticated fully registered Bond for each
separate Mode or Rate Period. Any legend required to be on the Bonds by DTC
may be added by the Trustee or Paying Agent. The form of Book-Entry Only
System 1991 Series E Bond in the Flexible Mode is attached hereto as Exhibit
K. On the date of original delivery thereof or date of conversion of any
Bonds to a Mode or Rate Period in which the Book-Entry Only System is in
effect, as applicable, such Bonds shall be registered in the registry books
of the Paying Agent in the name of CEDE & CO., as nominee of The Depository
Trust Company as agent for the Authority in maintaining the Book-Entry Only
System. With respect to Bonds registered in the registry books kept by the
Paying Agent in the name of CEDE & CO., as nominee of DTC, the Authority, the
Paying Agent, the Company, the Remarketing Agent and the Trustee shall have
no responsibility or obligation to any Participant (which means securities
brokers and dealers, banks, trust companies, clearing corporations and
various other entities, some of whom or their representatives own DTC) or to
any Beneficial Owner (which means, when used with reference to the Book-Entry
Only System, the person who is considered the beneficial owner of the Bonds
pursuant to the arrangements for book entry determination of ownership
applicable to DTC) with respect to the following: (A) the accuracy of the
records of DTC, CEDE & CO. or any Participant with respect to any ownership
interest in the Bonds, (B) the delivery to or from any Participant, any
Beneficial Owner or any other person, other than DTC, of any notice with
respect to the Bonds, including any notice of redemption or tender (whether
mandatory or optional), or (C) the payment to any Participant, any Beneficial
Owner or any other person, other than DTC, of any amount with respect to the
principal or premium, if any, or interest on the Bonds. The Paying Agent
shall pay all principal of and premium, if any, and interest on the Bonds
only to or upon the order of DTC, and all such payments shall be valid and
effective fully to satisfy and discharge the Authority's obligations with
respect to the principal of and premium, if any, and interest on Bonds to the
extent of the sum or sums so paid. No person other than DTC shall be
entitled to receive an authenticated Bond evidencing the obligation of the
Authority to make payments of principal and premium, if any, and interest
pursuant to this Agreement. Upon delivery by DTC to the Paying Agent of
written notice to the effect that DTC has determined to substitute a new
nominee in place of CEDE & CO., the words "CEDE & CO." in this Agreement
shall refer to such new nominee of DTC.
(c) Upon receipt by the Trustee or the Paying Agent of written notice
from DTC to the effect that DTC is unable or unwilling to discharge its
responsibilities with respect to any Bonds, the Authority shall issue and the
Paying Agent shall transfer and exchange such Bonds as requested by DTC in
appropriate amounts and in authorized denominations, and whenever DTC
requests the Authority, the Paying Agent and the Trustee to do so, the
Trustee, the Paying Agent and the Authority will, at the expense of the
Company, cooperate with DTC in taking appropriate action after reasonable
notice (A) to arrange for a substitute bond depository willing and able upon
reasonable and customary terms to maintain custody of such Bonds or (B) to
make available for transfer and exchange such Bonds registered in whatever
name or names and in whatever authorized denominations as DTC shall
designate.
(d) In the event the Company determines that the Beneficial Owners of
any Bonds in the Book-Entry Only System should be able to obtain Bond
certificates, the Company may so notify DTC, the Paying Agent and the
Trustee, whereupon DTC will notify the Participants of the availability
through DTC of such Bond certificates. In such event, the Authority shall
issue and the Paying Agent shall transfer and exchange Bond certificates as
requested by DTC in appropriate amounts and in authorized denominations.
Whenever DTC requests the Paying Agent to do so, the Paying Agent will
cooperate with DTC in taking appropriate action after reasonable notice to
make available for transfer and exchange Bonds registered in whatever name or
names and in whatever authorized denominations as DTC shall designate.
(e) Notwithstanding any other provision of this Agreement to the
contrary, so long as any 1991 Series E Bond is registered in the name of CEDE
& CO., as nominee of DTC, all payments with respect to the principal of,
Purchase Price, premium, if any, and interest on such 1991 Series E Bond and
all notices with respect to such 1991 Series E Bond shall be made and given,
respectively, to DTC as provided in the Letter of Representation (the
"Representation Letter"), the form of which is included as Exhibit L attached
hereto. The form of such Representation Letter may be modified or replaced
in a manner consistent with the provisions of this Agreement upon conversion
or reconversion of the 1991 Series E Bonds to a Mode or Rate Period in which
the Book-Entry Only System is in effect.
(f) Notwithstanding any provision in Subsection 301(h) or Section 310
to the contrary, so long as any of the Bonds outstanding are held in the
Book-Entry Only System, if less than all of such Bonds are to be converted or
redeemed upon any conversion or redemption of Bonds hereunder, the particular
Bonds or portions of Bonds to be converted or redeemed shall be selected by
DTC in such manner as DTC may determine.
(g) So long as the Book-Entry Only System is in effect, a Beneficial
Owner who elects to have its Bonds purchased or tendered pursuant to this
Agreement shall effect delivery by causing a Participant to transfer the
Beneficial Owner's interest in the Bonds pursuant to the Book-Entry Only
System. The requirement for physical delivery of Bonds in connection with a
demand for purchase or a mandatory purchase will be deemed satisfied when the
ownership rights in the Bonds are transferred in accordance with the Book-
Entry Only System.
(h) So long as the Book-Entry Only System is in effect, the Remarketing
Agent shall communicate to DTC information concerning the purchasers of
Tendered Bonds as may be necessary or appropriate, and, notwithstanding any
provision in the Representation Letter to the contrary, the Remarketing Agent
shall continue to remit to the Paying Agent interest rate determination
information pursuant to the terms of this Agreement.
Section 321. Registration of 1993 Series E Bonds in the Book-Entry
Only System.(33)
(a) Notwithstanding any provision herein to the contrary, the
provisions of this Subsection 321 and the 1993 Series E Bonds Representation
Letter (as defined below) shall apply with respect to any 1993 Series E Bond
registered to CEDE & CO. or any other nominee of The Depository Trust Company
("DTC") while the Book-Entry Only System (meaning the system of registration
described in Section 321) is in effect. The Book-Entry Only System shall be
in effect for any Mode or Rate Period within the Multiannual Mode if so
specified by the Company prior to conversion to that Mode or Rate Period,
subject to the provisions below concerning termination of the Book-Entry Only
System. Until it revokes such specification in its discretion, the Company
hereby specifies that the Book-Entry Only System shall be in effect while the
1993 Series E Bonds are in Weekly, Multiannual and Fixed Rate Modes.
(b) The 1993 Series E Bonds in or to be in the Book-Entry Only System
shall be issued in the form of a separate single authenticated fully
registered 1993 Series E Bond for each separate Mode or Rate Period in
substantially the forms provided for in Section 301. Any legend required to
be on the Bonds by DTC may be added by the Trustee or Paying Agent. On the
date of original delivery thereof or date of conversion of the 1993 Series E
Bonds to a Mode or Rate Period in which the Book-Entry Only System is in
effect, as applicable, the 1993 Series E Bonds shall be registered in the
registry books of the Paying Agent in the name of CEDE & CO., as nominee of
The Depository Trust Company as agent for the Authority in maintaining the
Book-Entry Only System. With respect to 1993 Series E Bonds registered in
the registry books kept by the Paying Agent in the name of CEDE & CO., as
nominee of DTC, the Authority, the Paying Agent, the Company, the Remarketing
Agent and the Trustee shall have no responsibility or obligation to any
Participant (which means securities brokers and dealers, banks, trust
companies, clearing corporations and various other entities, some of whom or
their representatives own DTC) or to any Beneficial Owner (which means, when
used with reference to the Book-Entry Only System, the person who is
considered the beneficial owner of the 1993 Series E Bonds pursuant to the
arrangements for book entry determination of ownership applicable to DTC)
with respect to the following: (A) the accuracy of the records of DTC, CEDE
& CO. or any Participant with respect to any ownership interest in the 1993
Series E Bonds, (B) the delivery to or from any Participant, any Beneficial
Owner or any other person, other than DTC, of any notice with respect to the
1993 Series E Bonds, including any notice of redemption or tender (whether
mandatory or optional), or (C) the payment to any Participant, any Beneficial
Owner or any other person, other than DTC, of any amount with respect to the
principal or premium, if any, or interest on the 1993 Series E Bonds. The
Paying Agent shall pay all principal of and premium, if any, and interest on
the 1993 Series E Bonds only to or upon the order of DTC, and all such
payments shall be valid and effective fully to satisfy and discharge the
Authority's obligations with respect to the principal of and premium, if any,
and interest on 1993 Series E Bonds to the extent of the sum or sums so paid.
No person other than DTC shall be entitled to receive an authenticated 1993
Series E Bond evidencing the obligation of the Authority to make payments of
principal and premium, if any, and interest pursuant to this Agreement. Upon
delivery by DTC to the Paying Agent of written notice to the effect that DTC
has determined to substitute a new nominee in place of CEDE & CO., the words
"CEDE & CO." in this Agreement shall refer to such new nominee of DTC.
(c) Upon receipt by the Trustee or the Paying Agent of written notice
from DTC to the effect that DTC is unable or unwilling to discharge its
responsibilities, the Authority shall issue and the Paying Agent shall
transfer and exchange 1993 Series E Bonds as requested by DTC in appropriate
amounts and in authorized denominations, and whenever DTC requests the
Authority, the Paying Agent and the Trustee to do so, the Trustee, the Paying
Agent and the Authority will, at the expense of the Company, cooperate with
DTC in taking appropriate action after reasonable notice (A) to arrange for a
substitute bond depository willing and able upon reasonable and customary
terms to maintain custody of the 1993 Series E Bonds or (B) to make available
for transfer and exchange 1993 Series E Bonds registered in whatever name or
names and in whatever authorized denominations as DTC shall designate.
(d) In the event the Company determines that the Beneficial Owners
should be able to obtain 1993 Series E Bond certificates, the Company may so
notify DTC, the Paying Agent and the Trustee, whereupon DTC will notify the
Participants of the availability through DTC of 1993 Series E Bond
certificates. In such event, the Authority shall issue and the Paying Agent
shall transfer and exchange 1993 Series E Bond certificates as requested by
DTC in appropriate amounts and in authorized denominations. Whenever DTC
requests the Paying Agent to do so, the Paying Agent will cooperate with DTC
in taking appropriate action after reasonable notice to make available for
transfer and exchange 1993 Series E Bonds registered in whatever name or
names and in whatever authorized denominations as DTC shall designate.
(e) Notwithstanding any other provision of this Agreement to the
contrary, so long as any 1993 Series E Bond is registered in the name of CEDE
& CO., as nominee of DTC, all payments with respect to the principal of,
Purchase Price, premium, if any, and interest on such 1993 Series E Bond and
all notices with respect to such 1993 Series E Bond shall be made and given,
respectively, to DTC as provided in the Letter of Representation (the "1993
Series E Bonds Representation Letter"), the form of which is included as
Exhibit M attached hereto. The form of such 1993 Series E Bonds
Representation Letter may be modified in a manner consistent with the
provisions of this Agreement upon conversion or reconversion of the 1993
Series E Bonds to a Mode or Rate Period in which the Book-Entry Only System
is in effect.
(f) Notwithstanding any provision in Subsection 301(h) or Section 310
of this Agreement to the contrary, so long as any of the 1993 Series E Bonds
outstanding are held in the Book-Entry Only System, if less than all of such
1993 Series E Bonds are to be converted or redeemed upon any conversion or
redemption of 1993 Series E Bonds hereunder, the particular 1993 Series E
Bonds or portions of 1993 Series E Bonds to be converted or redeemed shall be
selected by DTC in such manner as DTC may determine.
(g) So long as the Book-Entry Only System is in effect, a Beneficial
Owner who elects to have its 1993 Series E Bonds purchased or tendered
pursuant to this Agreement shall effect delivery by causing a Participant to
transfer the Beneficial Owner's interest in the 1993 Series E Bonds pursuant
to the Book-Entry Only System. The requirement for physical delivery of 1993
Series E Bonds in connection with a demand for purchase or a mandatory
purchase will be deemed satisfied when the ownership rights in the 1993
Series E Bonds are transferred in accordance with the Book-Entry Only System.
(h) So long as the Book-Entry Only System is in effect, the Remarketing
Agent shall communicate to DTC information concerning the purchasers of
Tendered Bonds as may be necessary or appropriate, and, notwithstanding any
provision in the 1993 Series E Bonds Representation Letter to the contrary,
the Remarketing Agent shall continue to remit to the Paying Agent interest
rate determination information pursuant to the terms of this Agreement.
ARTICLE IV: TAX-EXEMPT REFUNDING BONDS
Section 401. Issuance of Tax-Exempt Refunding Bonds.
Unless the Company has delivered the written notice described in
Sections 318 and 502 that it will not request the Authority to issue
Tax-Exempt Refunding Bonds, the Authority may from time to time at the
request of the Company issue and sell Tax-Exempt Refunding Bonds to refund
all or any portion of the 1991 Series E Bonds, subject to the requirements of
the Act and the requirements of this Article IV. Such Tax-Exempt Refunding
Bonds shall have substantially the same terms as the 1991 Series E Bonds, but
with such changes as provided in Section 403. A series of Tax-Exempt
Refunding Bonds may be initially issued in any Mode or Modes designated by
the Company and approved by the Authority prior to their delivery. All
Tax-Exempt Refunding Bonds shall be of the same rank and shall be entitled to
the same security, including the Series G First Mortgage Bonds, as the 1991
Series E Bonds. Each of the series of Tax-Exempt Refunding Bonds shall
mature on the date, be subject to optional redemption pursuant to Section
310(a) at the times and at the prices, and shall initially bear interest at
such rate or rates as determined by the Company and approved by the
Authority. Each series of Tax-Exempt Refunding Bonds shall be issued in
fully registered form and shall be numbered from 1 upwards in the order of
their issuance, or in any other manner deemed appropriate by the Paying Agent
and the Trustee. Tax-Exempt Refunding Bonds shall be in the denomination of
$5,000 each or any multiple thereof in the Fixed Rate or Multiannual Mode,
$100,000 or any multiple thereof in the Weekly Mode and $100,000 or any
multiple of $1,000 in excess of $100,000 in the Flexible Mode. Each series
of Tax-Exempt Refunding Bonds shall be dated the date of original delivery
thereof. The interest on Tax-Exempt Refunding Bonds until they come due
shall be payable on the interest payment dates applicable to the Mode of
Bonds are in from time to time.
Section 402. Execution and Delivery of the Tax-Exempt Refunding Bonds.
Each Tax-Exempt Refunding Bond shall be signed on behalf of the
Authority by the manual or facsimile signatures of any two of the Chairman,
Vice Chairman, Treasurer, either Assistant Treasurer and Executive Director
and the corporate seal of the Authority or a facsimile thereof shall be
engraved or otherwise reproduced thereon. The Certificate of Authentication
shall be manually signed by the Trustee or on behalf of the Trustee by its
duly authorized agent for such purpose.
In case any officer whose manual or facsimile signature shall appear on
the Tax-Exempt Refunding Bond shall cease to be such officer before the
delivery thereof, such manual or facsimile signature shall nevertheless be
valid and sufficient for all purposes as if he or she had remained in office
until after such delivery.
The Trustee or its duly authorized agent for such purpose shall not
authenticate and deliver any series of Tax-Exempt Refunding Bonds until the
Trustee has received the following:
(1) A certificate signed by a Company Representative designating the
intended Mode or Modes, the maturity date, the optional redemption dates and
prices under Subsection 310(a), and the initial interest rate or rates, with
respect to the Tax-Exempt Refunding Bonds;
(2) A certificate signed by an officer of the Authority approving the
terms of the Tax-Exempt Refunding Bonds designated by the Company in the
certificate described in Paragraph (1);
(3) A copy, certified by the Executive Director of the Authority, of
the resolution of the Authority authorizing the issuance of the Tax-Exempt
Refunding Bonds;
(4) A copy, certified by the Secretary or Assistant Secretary of State
of New Hampshire, of the resolution adopted by the Governor and Council of
New Hampshire pursuant to Section 9 of the Act with respect to the Tax-Exempt
Refunding Bonds;
(5) An originally executed copy of any supplemental Agreement entered
into by the parties hereto in connection with the issuance of the Bonds of
that series;
(6) A certificate of a Company Representative (A) stating that no
Default (in reliance upon a certificate of the Trustee as to such matters as
the Company shall reasonably request) hereunder has occurred and is
continuing, (B) designating the 1991 Series E Bonds to be refunded (the
"Refunded Bonds"), (C) that the Refunded Bonds will no longer be Outstanding
upon the issuance of the Tax-Exempt Refunding Bonds, (D) that the Series G
First Mortgage Bonds evidence and secure the Company's obligation to pay the
Tax-Exempt Refunding Bonds and (E) that the Series G First Mortgage Bonds
have maturities, interest rates, interest and principal payments and
prepayment or redemption provisions and other terms properly corresponding to
the terms of the Tax-Exempt Refunding Bonds and any other Bonds the payment
of which they evidence and secure;
(7) An opinion or opinions of Bond Counsel reasonably satisfactory to
the Trustee that:
(i) the Tax-Exempt Refunding Bonds may be issued under the Act and this
Agreement,
(ii) the Tax-Exempt Refunding Bonds have been validly authorized and
executed and, when authenticated and delivered pursuant to the request of the
Authority, will be valid and binding obligations of the Authority entitled to
the benefit of the trust created hereby,
(iii) any supplemental agreement entered into by the Authority in
connection with the issuance of the Tax-Exempt Refunding Bonds has been duly
authorized, executed and delivered by the Authority, is a valid and binding
obligation of the Authority and is enforceable against the Authority in
accordance with its terms subject to principles of equity and to applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally,
(iv) all necessary consents or approvals of government authorities
required in connection with the issue of the Tax-Exempt Refunding Bonds by
the Authority have been obtained, and
(v) interest on the Tax-Exempt Refunding Bonds will be excluded from
gross income of the owners thereof for federal income tax purposes; and
(8) An opinion of counsel reasonably satisfactory to the Trustee, who
may be counsel to the Company, that:
(i) the Series G First Mortgage Bonds evidencing and securing the
Company's obligation to pay the Tax-Exempt Refunding Bonds have been duly
issued under the First Mortgage Bond Indenture and are valid and binding
obligations of the Company entitled to the benefits and security of the First
Mortgage Bond Indenture; and
(ii) any supplemental agreement entered into by the Company in
connection with the issuance of the Tax-Exempt Refunding Bonds has been duly
authorized, executed and delivered by the Company, is a valid and binding
obligation of the Company, and is enforceable against the Company in
accordance with its terms subject to principles of equity and to applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally.
(9) The Trustee or its duly authorized agent for such purpose shall not
authenticate and deliver any series of Tax-Exempt Refunding Bonds unless
immediately after the delivery of such Bonds there is in effect a Credit
Facility meeting the requirements of Subsection 317(b) supporting all of the
Bonds required to be supported by a Credit Facility pursuant to this
Agreement.
Section 403. Form of Tax-Exempt Refunding Bonds.
(a) General. Each series of Tax-Exempt Refunding Bonds shall bear
substantially the designation "Pollution Control Refunding Revenue Bonds
(Public Service Company of New Hampshire Project - [Year] Tax-Exempt Series
[Letter])." Tax-Exempt Refunding Bonds shall be in substantially the same
form as the 1991 Series E Bonds, but with such additions or deletions as
described herein or as otherwise may be appropriate.
(b) Redemption Upon Taxability. In each Tax-Exempt Refunding Bond,
there shall be inserted the following:
The Tax-Exempt Refunding Bonds are subject to mandatory redemption at
any time at a redemption price of 100% of the principal amount of the
Tax-Exempt Refunding Bonds so redeemed plus accrued interest in the event (i)
the Company delivers to the Trustee an opinion of nationally recognized bond
counsel selected by the Company and reasonably satisfactory to the Trustee
("Bond Counsel") stating that interest on the Tax-Exempt Refunding Bonds is
or will become includable in gross income of the owners thereof for federal
income tax purposes, or (ii) it is finally determined by the Internal Revenue
Service or a court of competent jurisdiction, as a result of (A) a proceeding
in which the Company has participated or been given notice and an opportunity
to participate, and, (B) either (1) a failure by the Company (or the Seabrook
Transferee as defined in the Agreement) to observe any covenant or agreement
undertaken in or pursuant to the Agreement, or the inaccuracy of any
representation made by the Company (or the Seabrook Transferee) in or
pursuant to the Agreement, or (2) the Seabrook Transfer (as defined in the
Agreement), that interest payable on the Tax-Exempt Refunding Bonds is
includable for federal income tax purposes in the gross income of any owner
thereof (other than an owner which is a "substantial user" or a "related
person" within the meaning of Section 147(a) of the Internal Revenue Code of
1986). Any determination under clause (ii) above will not be considered
final for this purpose until the earliest of the conclusion of any appellate
review, the denial of appellate review or the expiration of the period for
seeking appellate review. Redemption under this paragraph shall be in whole
unless not less than forty-five (45) days prior to the redemption date the
Company delivers to the Trustee an opinion of Bond Counsel reasonably
satisfactory to the Trustee to the effect that a redemption of less than all
of the Tax-Exempt Refunding Bonds will preserve the tax-exempt status of
interest on the remaining Tax-Exempt Refunding Bonds outstanding subsequent
to such redemption. Except as provided in the next sentence, any such
redemption shall be made on the 90th day after the date on which the opinion
described in clause (i) is delivered or the determination described in clause
(ii) becomes final or on such earlier date as the Company may designate by
notice given to the Trustee at least forty-five (45) days prior to such
designated date. Any Tax-Exempt Refunding Bond in the Flexible Mode that has
a Purchase Date prior to the redemption date established for that Bond
pursuant to the preceding sentence shall be redeemed on that Purchase Date.
If such redemption shall occur in accordance with the terms of the Agreement,
then such failure by the Company (or the Seabrook Transferee as described
above) to observe such covenant or agreement, or the inaccuracy of any such
representation will not, in and of itself, constitute a default thereunder.
If the Trustee receives written notice from any Bondowner stating that
(i) such Bondowner has been notified in writing by the Internal Revenue
Service that it proposes to include the interest on the Tax-Exempt Refunding
Bonds in the gross income of such owner for federal income tax purposes, or
any other proceeding has been instituted against such owner which may lead to
a like determination, and (ii) such owner will afford the Company the
opportunity to participate at its own expense in the proceeding, either
directly or in the name of such owner, until the conclusion of any appellate
review, and the Trustee has examined such written notice and it appears to be
accurate on its face, then the Trustee shall promptly give notice thereof to
the Company, the Authority, and each Bondowner whose Bonds may be affected.
The Trustee shall thereafter keep itself reasonably informed of the progress
of any administrative proceedings or litigation relating to such notice.
Under the Agreement the Company is required to give the Trustee written
notice of such a final determination within forty-five (45) days of such
final determination.
The foregoing two paragraphs shall be inserted immediately before the
paragraph describing the manner of selection of Bonds for redemption in the
forms of Weekly, Multiannual and Fixed Rate Bonds and immediately after the
paragraph describing the manner of payment of the Bonds in the forms of
Flexible Bonds. In addition, immediately after the foregoing additional
paragraphs in the forms of Flexible Bond there shall be added the following:
If the Purchase Date of this bond is after the redemption date, notice
of redemption of this bond will be given by first class mail, postage
prepaid, not more than forty-five (45) nor less than thirty (30) days prior
to the redemption date to the REGISTERED OWNER at its registered address.
Failure to mail notice to the owner of any other Bond or any defect in the
notice to such other owner shall not affect the redemption of this bond.
(c) Day Counting. While Tax-Exempt Refunding Bonds are in the Flexible
Mode interest shall be computed on the basis of actual days elapsed divided
by 365 or 366 as appropriate, and each Tax-Exempt Refunding Bond in the
Flexible Mode shall so state. Tax-Exempt Refunding Bonds in any other Mode
shall have interest computed on the basis described in the applicable form of
Bonds.
Section 404. Conversion.(34)
No conversion of Tax-Exempt Refunding Bonds from one Mode to another
Mode, including for this purpose the conversion to a new Rate Period in the
Multiannual Mode, shall be effective unless on or prior to the Conversion
Date the Company shall provide the Authority and the Trustee with an opinion
of Bond Counsel reasonably satisfactory to the Trustee to the effect that the
conversion will not affect the exclusion of interest on the Tax-Exempt
Refunding Bonds from gross income for federal income tax purposes.
Section 405. Mandatory Taxability Redemption.
The Outstanding Tax-Exempt Refunding Bonds are subject to mandatory
redemption at any time at a redemption price of 100% of the principal amount
of the Bonds so redeemed plus accrued interest in the event (i) the Company
delivers to the Trustee an opinion of Bond Counsel stating that interest on
the Tax-Exempt Refunding Bonds is or will become includable in gross income
of the owners thereof for federal income tax purposes, or (ii) it is finally
determined by the Internal Revenue Service or a court of competent
jurisdiction, as a result of (A) a proceeding in which the Company has
participated or been given notice and an opportunity to participate, and, (B)
either (1) a failure by the Company (or the Seabrook Transferee) to observe
any covenant or agreement undertaken in or pursuant to this Agreement, or the
inaccuracy of any representation made by the Company (or the Seabrook
Transferee) in or pursuant to this Agreement, or (2) the Seabrook Transfer,
that interest payable on the Bonds is includable for federal income tax
purposes in the gross income of any owner thereof (other than an owner which
is a "substantial user" or a "related person" within the meaning of IRC
Section 147(a)). Any determination under clause (ii) above will not be
considered final for this purpose until the earliest of the conclusion of any
appellate review, the denial of appellate review or the expiration of the
period for seeking appellate review. Redemption under this Section 405 shall
be in whole unless not later than forty-five (45) days prior to the
redemption date the Company delivers to the Trustee an opinion of Bond
Counsel to the effect that a redemption of less than all of the Tax-Exempt
Refunding Bonds will preserve the tax-exempt status of interest on the
remaining Tax-Exempt Refunding Bonds outstanding subsequent to such
redemption. Except as provided in the next sentence, any redemption under
this Section 405 shall be made on the 90th day after the date on which the
opinion described in clause (i) is delivered or the determination described
in clause (ii) becomes final or on such earlier date as the Company may
designate by notice given to the Trustee at least forty-five (45) days prior
to such designated date. Any Tax-Exempt Refunding Bond in the Flexible Mode
that has a Purchase Date prior to the redemption date established for that
Bond pursuant to the preceding sentence shall be redeemed on that Purchase
Date. If such redemption shall occur in accordance with the terms of this
Agreement, then such failure by the Company (or the Seabrook Transferee) to
observe such covenant or agreement, or the inaccuracy of any such
representations will not, in and of itself, constitute a Default hereunder.
If the Trustee receives written notice from any Bondowner stating that
(I) such Bondowner has been notified in writing by the Internal Revenue
Service that it proposes to include the interest on the Tax-Exempt Refunding
Bonds in the gross income of such owner for federal income tax purposes, or
any other proceeding has been instituted against such owner which may lead to
a like determination, and (II) such owner will afford the Company the
opportunity to participate at its own expense in the proceeding, either
directly or in the name of such owner, until the conclusion of any appellate
review, and the Trustee has examined such written notice and it appears to be
accurate on its face, then the Trustee shall promptly give notice thereof to
the Company, the Authority, and each Bondowner whose Tax-Exempt Refunding
Bonds may be affected. The Trustee shall thereafter keep itself reasonably
informed of the progress of any administrative proceedings or litigation
relating to such notice.
The Company shall keep the Trustee informed of the progress of any
proceeding referred to in subclause (ii)(A) of the first paragraph of this
Section 405 and shall give written notice to the Trustee within forty-five
(45) days after it has actual knowledge of a final determination as described
in clause (ii) of the first paragraph of this Section 405. At least forty
(40) days prior to any redemption pursuant to this Section 405, the Trustee
shall notify the Paying Agent of the redemption date and the principal amount
of Tax-Exempt Refunding Bonds to be redeemed.(35)
Section 406. Additional Limitations on Conversions of 1993 Series E
Bonds to New Modes.(36)
(a) Conversions to Multiannual Mode. 1993 Series E Bonds converted to
the Multiannual Mode shall not be supported by a Credit Facility.
(b) Conversions from Multiannual Mode to Flexible or Weekly Mode. Any
Bank issuing a Credit Facility in connection with a conversion of 1993 Series
E Bonds from the Multiannual Mode to the Flexible or Weekly Mode shall have a
long-term corporate debt rating of Aa from Moody's or AA from S&P, or their
equivalent.
Section 407. Tax Status of 1993 Series E Bonds.(37)
The Company will perform its obligations and agreements contained in the
First Supplemental Federal Tax Statement as if they were set forth herein.
All representations of the Company in the First Supplemental Federal Tax
Statement shall be treated as if they were set forth herein. Any covenants,
agreements or representations made by the Company or the Seabrook Transferee
in the Assumption Agreement shall be performed and treated as if set forth
herein. As used in this Section 407, (a) "Assumption Agreement" means the
Assumption Agreement dated as of June 5, 1992 among the Authority, the
Company, the Trustee and the Seabrook Transferee, (b) "First Supplemental
Federal Tax Statement" means the Statement as to Tax Status of Bonds executed
by the Company and the Seabrook Transferee in connection with the original
issuance of the 1993 Series E Bonds and delivered to the Trustee and (c)
"Seabrook Transferee" means North Atlantic Energy Corporation, the transferee
of the Project Facilities pursuant to the Seabrook Transfer, and its
successors.
ARTICLE V. THE PROJECT
Section 501. Company not to Impair Tax Status; Use of Project
Facilities.
Notwithstanding any provision herein to the contrary, the Company will
not use any of the proceeds of the Loan (or the income earned through the
investment thereof, if any) or operate the Project Facilities in any manner,
and will not take or omit any action or permit any action to be taken or
omitted with the result that interest on any Tax-Exempt Refunding Bonds is
included in the gross income of the owners thereof for federal income tax
purposes. The Company's use of the Project Facilities (or facilities
replacing the same) shall be in furtherance of the purpose of air or water
pollution control or sewage or solid waste disposal and in compliance with
the Act.
Section 502. Qualification of the Project Facilities.
Notwithstanding any provision herein to the contrary, the Company shall
not permit the Project Facilities to fail to qualify as (a) "industrial
facilities" under the Act, (b) a facility described in Section 1312(a) of the
Tax Reform Act of 1986, or (c) "sewage or solid waste disposal facilities" or
"air or water pollution control facilities" within the meaning of Section
103(b)(4)(E) and (F) of the 1954 Code; provided, however, that if no
Tax-Exempt Refunding Bonds are outstanding, the Company may waive the
application of clauses (b) and (c) by written notice to the Authority and the
Trustee that it will not request the Authority to issue Tax-Exempt Refunding
Bonds. No funds of the Authority, other than the proceeds of the Bonds,
shall be available to pay Project Costs. The Company acknowledges that it is
fully familiar with the physical condition of the Project Facilities and that
it is not relying on any representation of any kind by the Authority or the
Trustee concerning the nature or condition thereof. Neither the Authority
nor the Trustee shall be liable to the Company or any other person for any
latent or patent defect in the Project Facilities.
Section 503. Compliance with Law.
In the acquisition, construction, maintenance, improvement and operation
of the Project Facilities, the Company has and will comply in all material
respects with all applicable building, subdivision, zoning and land use,
environmental protection, sanitary and safety and other laws, rules and
regulations and will not permit any nuisance thereat and will to the extent
of its ownership and control, permit no nuisance to be committed thereat by
others while the Company is, or is entitled to be, in possession thereof. It
shall not be a breach of this section if the Company fails to comply with
such laws, rules and regulations during any period in which the Company shall
in good faith be diligently contesting the validity thereof.
Section 504. Current Expenses.
The Company shall pay in a timely manner all costs of maintaining and
operating the Project Facilities, including without limitation all taxes,
excises and other governmental charges lawfully levied thereon or with
respect to its interests therein or use thereof to the extent of the
Company's interest therein. It shall not be a breach of this section if the
Company fails to pay any such costs, taxes or charges during any period in
which the Company shall in good faith be contesting the validity or amount
thereof and no foreclosure proceedings have been commenced, unless the
procedures applicable to such contest require payment thereof and proceedings
for their refund or abatement.
Section 505. Disposition and Use of Project Facilities.
The Company shall not sell, lease, transfer or otherwise dispose of the
Project Facilities (other than the grant of a mortgage pursuant to a
financing transaction) unless (i) it obtains the consent of the Authority,
which consent shall not be unreasonably withheld, provided, however, that no
such consent shall be required if the sale, lease, transfer or disposition is
the Seabrook Transfer, or if such transaction has been approved by or
consented to by the New Hampshire Public Utilities Commission; (ii) if there
are any Outstanding Tax-Exempt Refunding Bonds, it obtains an opinion of Bond
Counsel addressed to and reasonably satisfactory to the Trustee and the
Authority that such sale, lease, transfer or other disposition will not
affect the exclusion of the interest on any Outstanding Tax-Exempt Refunding
Bonds from the gross income of the owners thereof for federal income tax
purposes, provided, however, that no such opinion shall be required in
connection with the Seabrook Transfer; and (iii) if the sale, lease, transfer
or disposition is the Seabrook Transfer, the Company and the Seabrook
Transferee each executes and delivers an Assumption Agreement substantially
in the form attached hereto as Exhibit B (the "Assumption Agreement"). No
sale, lease, transfer or other disposition of the Project Facilities or the
Station shall relieve the Company of any of its obligations under this
Agreement.
The Company shall not make any material change in the purposes for which
the Project Facilities are used without the consent of the Authority, which
consent shall not be unreasonably withheld. The Company at its own expense
may alter, remodel or improve the Project Facilities and construct other
facilities at the site of the Project Facilities, provided such action shall
not result in any substantial change in the Project Facilities or the
character of the activities conducted by the Company at the Project
Facilities site without the consent of the Authority, which consent shall not
be unreasonably withheld.
Section 506. Books and Records.
The Authority and the Trustee and their respective duly authorized
agents shall have the right at all reasonable times and upon the furnishing
of reasonable notice under the circumstances to examine the books and records
of the Company relating to the Project Facilities.
Section 507. Undivided Interest.
The undertakings of the Company contained in Sections 502, 503, 504 and
505 are limited to those consistent with the Company's undivided percentage
interest in the facilities of which the Project Facilities are a part.
ARTICLE VI: DEFAULT AND REMEDIES
Section 601. Default by the Company.
(a) Events of Default; Default. "Event of Default" in this Agreement
means any one of the events set forth below and "Default" means any Event of
Default without regard to any lapse of time or notice.
(i) Debt Service on Bonds; Required Purchase. Any principal of,
premium, if any, or interest on any Bond shall not be paid when due, whether
at maturity, by acceleration, upon redemption or otherwise or any Purchase
Price for Bonds shall not be paid as provided in Sections 301, 308, 311 or
312, except that it shall not be an Event of Default if interest (other than
interest due at maturity, by acceleration, or upon redemption, or interest
included in the Purchase Price) on any Bond not supported by a Credit
Facility is paid within thirty (30) days after it becomes due.
(ii) Other Obligations. The Company (or the Seabrook Transferee) shall
fail to observe or perform any of its other covenants or agreements contained
herein or in the Assumption Agreement and such failure shall continue for a
period of sixty (60) days after written notice given to the Company by the
Trustee or the Bondowners of at least 25% in principal amount of the Bonds
Outstanding; provided, however, that if such default cannot be cured by the
Company or the Seabrook Transferee within such sixty (60) day period, it
shall not constitute an Event of Default if curative action is instituted by
the Company or the Seabrook Transferee within such sixty (60) day period and
thereafter is diligently pursued until such Default is cured.
(iii) First Mortgage Bond Default. The occurrence of any "event of
default" as defined in the First Mortgage Bond Indenture.
(iv) Reimbursement Agreement. The Trustee and the Paying Agent shall
have received written notice from the Bank of the occurrence of an event of
default under the Reimbursement Agreement and of the Bank's determination to
terminate the Credit Facility on the fifth Business Day following receipt by
the Trustee and the Paying Agent of such notice.
(v) Non-Reinstatement under the Credit Facility. If any Bonds are in
the Weekly or Multiannual Mode, the Paying Agent shall receive written notice
from the Bank within five (5) days after a drawing under the Credit Facility
that the Bank has not reinstated the amount so drawn, and such
non-reinstatement causes the total amount of the obligation of the Bank under
the Credit Facility to be less than the principal amount of the Outstanding
Bonds supported by the Credit Facility, plus accrued interest (1) for a
period of forty-five (45) days at the Maximum Interest Rate with respect to
the principal amount of such Bonds then Outstanding in the Weekly Mode, and
(2) for a period of one hundred ninety (190) days at the Maximum Interest
Rate with respect to the principal amount of such Bonds then Outstanding in
the Multiannual Mode.
Immediately upon receipt of written notice from the Bank of the
non-reinstatement of an amount drawn under the Credit Facility, the Paying
Agent shall determine whether such non-reinstatement causes the total amount
of the obligation of the Bank under the Credit Facility to be less than the
principal amount of the Outstanding Bonds supported by the Credit Facility
plus accrued interest thereon calculated in the manner set forth in the
preceding sentence. Notwithstanding the outcome of such determination, the
Paying Agent shall immediately notify the Trustee of the Bank's failure to
reinstate the full amount drawn under the Credit Facility.
The Company agrees to notify the Authority, the Bank, the Remarketing
Agent, the Paying Agent and the Trustee promptly in writing of the occurrence
of any Default or Event of Default of which it has knowledge. Within seven
(7) days after becoming aware of a Default or an Event of Default the Paying
Agent will give notice to the Bondowners and, in the case of a Default or
Event of Default under (i), (ii), (iv), or (v) above, the Trustee shall give
notice to the First Mortgage Bond Trustee.
Notwithstanding anything in this section to the contrary, no action or
failure to act by the Company (or the Seabrook Transferee) which results in
interest on any Tax-Exempt Refunding Bonds becoming includable in gross
income of the owners thereof for federal income tax purposes shall constitute
a Default or Event of Default under this Agreement so long as (I) the Company
shall have delivered the opinion described in clause (i) of the first
paragraph of Section 405 or shall have complied with the last paragraph of
Section 405 and (II) the redemption provided by Section 405 occurs. In such
event, no owner of Tax-Exempt Refunding Bonds shall be entitled to any claim
for monetary damages hereunder and the redemption of the Bonds as provided
under Section 405 shall be the exclusive recourse of owners of Tax-Exempt
Refunding Bonds.
(b) Waiver. At any time before an acceleration pursuant to Paragraph
602(a)(i), the Trustee may waive a Default (other than a Default in the
payment of the Purchase Price, principal of, premium, if any, or interest on
the Bonds) and its consequences with respect to Bonds subject to acceleration
pursuant to Paragraph 602(a)(i), by written notice to the Company, and in the
absence of inconsistent instructions from Bondowners pursuant to Sections 606
or 901 shall do so upon written instruction of the owners of at least
twenty-five per cent (25%) in principal amount of such Bonds Outstanding. No
waiver under this section shall affect the right of the Trustee or the
Authority to enforce the payment of any amounts owing to it. The Trustee
shall not waive any Event of Default under Paragraphs 601(a)(i), 601(a)(iv)
or 601(a)(v).
Any cure or waiver of any "event of default" under the First Mortgage
Bond Indenture and a rescission and annulment of its consequences shall
constitute a cure or waiver of the corresponding Event of Default under
Paragraph 601(a)(iii) and a rescission and annulment of the consequences
thereof, and the Trustee, upon obtaining knowledge thereof, shall give
written notice of such cure or waiver, rescission or annulment to the
Authority and the Company, and shall give notice thereof by mail to all
Bondowners; but no such cure or waiver, rescission and annulment shall extend
to or affect any subsequent Event of Default or impair any right or remedy
consequent thereon.
Section 602. Remedies for Events of Default.
If an Event of Default occurs and is continuing:
(a) Acceleration.
(i) Bonds Not Supported by a Credit Facility. If the Event of Default
is one described in Paragraph 601(a)(i), (ii) or (iii), the Trustee may, and
upon the written request of the Bondowners of at least 25% in principal
amount of the Bonds Outstanding (other than Bonds that are supported by a
Credit Facility, Pledged Bonds and Company Bonds) shall, by written notice to
the Company, the Authority, the Paying Agent, and the Remarketing Agent
declare immediately due and payable the principal of the Outstanding Bonds
(other than Bonds that are supported by a Credit Facility and Pledged Bonds,
but including Company Bonds) and the accrued interest thereon, whereupon the
same shall become immediately due and payable without any further action or
notice. If at any time after such acceleration and before any judgment or
decree for the payment of moneys with respect thereto has been entered all
amounts payable to the Authority and the Trustee hereunder and on Bonds
subject to acceleration under this Paragraph 602(a)(i) (except principal of
and interest on the Bonds which are due solely by reason of such
acceleration) shall have been paid or provided for by deposit with the
Trustee and all existing Defaults shall have been cured or waived, then the
Bondowners representing a majority in principal amount of the Bonds subject
to acceleration under this Paragraph 602(a)(i) may annul such acceleration
and its consequences by written notice to the Authority, the Trustee and the
Company. Such annulment shall be binding upon the Authority, the Trustee and
all of the Bondowners, but no such annulment shall extend to or affect any
subsequent Default or impair any right or remedy consequent thereto.
(ii) Bonds Supported by a Credit Facility. If the Event of Default is
one described in Paragraph 601(a)(i), (iv) or (v), the principal of the Bonds
that are supported by a Credit Facility and Pledged Bonds and accrued
interest thereon shall automatically become immediately due and payable
without any further notice or action, subject, however, to the proviso set
forth in Section 605. Notwithstanding the foregoing, if an Event of Default
described in Paragraph 601(a)(i) occurs due to the failure of the Paying
Agent to receive sufficient funds for the payment of the Purchase Price of
all Bonds supported by a Credit Facility tendered for purchase on any
Purchase Date, the Paying Agent shall immediately draw under the Credit
Facility an amount equal to such deficiency (except to the extent that one or
more drawings have been made previously in respect of the same deficiency),
plus one day's accrued interest on such Bonds, and only if such Event of
Default is not cured by the close of business on the next Business Day shall
there be such an automatic acceleration of the payment of principal of and
accrued interest on the Bonds.
(b) Rights as a Secured Party. The Trustee may exercise all of the
rights and remedies of a secured party under the UCC. Notice sent by
registered or certified mail, postage prepaid, or delivered during business
hours, to the Company at least seven (7) days before an event under UCC
Section 9-504(3) or any successor provision of law shall constitute
reasonable notification of such event.
Section 603. Court Proceedings.
The Trustee may enforce the provisions of this Agreement by appropriate
legal proceedings for the specific performance of any covenant, obligation or
agreement contained herein whether or not a Default or an Event of Default
exists, or for the enforcement of any other appropriate legal or equitable
remedy, and may recover damages caused by any breach by the Company of the
provisions of this Agreement, including (to the extent this Agreement may
lawfully provide) court costs, reasonable attorney's fees and other costs and
expenses incurred in enforcing the obligations of the Company hereunder. The
Authority may likewise enforce obligations owed to it hereunder which it has
not assigned to the Trustee. All rights under this Agreement and the Bonds
may be enforced by the Trustee without the possession of any Bonds or the
production thereof at the trial or other proceedings relative thereto, and
any proceeding instituted by the Trustee shall be brought in its name for the
ratable benefit of the Bondowners.
Section 604. Revenues after Default.
After the occurrence of an Event of Default, any funds pledged as
security hereunder and any other moneys received by the Trustee (other than
amounts irrevocably set aside to pay particular Bonds) shall be applied to
amounts due under Section 308 (without regard to any grace periods), which
amounts shall be applied in the order specified in Section 307.
Section 605. The Credit Facility; Acceleration.
Upon acceleration of the Bonds prior to expiration of the Credit
Facility, the Trustee shall instruct the Paying Agent to draw immediately on
the Credit Facility in an amount equal to the aggregate unpaid principal of
and interest on the Bonds supported by the Credit Facility to the date of
final payment (which shall be the date of acceleration for Bonds in the
Weekly and Multiannual Modes and the next Purchase Date for each Bond in the
Flexible Mode); provided, however, that the Paying Agent shall hold in trust
for the benefit of owners of Bonds in the Flexible Mode any amounts so drawn
in respect of such Bonds and shall release such amounts only on the
applicable Purchase Date for each such Bond. The owners of such Bonds shall
have no right to make any claim for such amounts until such Purchase Date.
The Trustee shall not require indemnification for any instruction required by
this Section 605 to be given by the Trustee to the Paying Agent to draw on
the Credit Facility, prior to the time such instruction is given, except and
unless such instruction is prohibited by or violates applicable law or any
outstanding or pending court or governmental order or decree.
Section 606. Rights of Bondowners.
If an Event of Default occurs and is continuing, and if the Bondowners
representing not less than 25% in principal amount of the Bonds Outstanding
shall have requested the Trustee in writing to exercise one or more of the
rights and remedies provided hereunder and offered it indemnity as provided
in Subsection 702(e), the Trustee shall be required to exercise such one or
more of the rights and remedies hereunder as the Trustee shall determine to
be in the best interest of the Bondowners and not inconsistent with any
directions given in accordance with Section 901. No Bondowner shall have any
right to institute an action in law or equity or to pursue any other remedy
hereunder with respect to any Bond unless (i) an Event of Default of which
the Trustee has been notified has occurred and Bondowners representing not
less than 25% in principal amount of the Bonds Outstanding shall have
requested the Trustee in writing to exercise its rights and remedies with
respect thereto and shall have offered the Trustee reasonable opportunity to
do so and indemnity as provided in Subsection 702(e), and (ii) the Trustee
shall within a reasonable time thereafter fail to exercise any of such rights
or remedies. No Bondowner shall have any right to institute any action or
pursue any other remedy if and to the extent that the surrender, impairment,
waiver, or loss of the lien of this Agreement would, under applicable law,
result. Notwithstanding the foregoing, each Bondowner shall have a right of
action to enforce payment of the Bonds at and after the due dates thereof at
the place, from the sources and in the manner expressed in the Bonds. For
purposes of this Section 606, so long as a Credit Facility has paid all
amounts due on Bonds it supports, the Bank issuing such Credit Facility shall
be treated as owner of such Bonds.
Section 607. Performance of Company's Obligations.
If the Company shall fail to observe or perform any of its agreements or
obligations hereunder, the Authority or the Trustee may perform the same in
its own name or in the Company's name and each is hereby irrevocably
appointed the Company's attorney-in-fact for such purpose. Unless an Event
of Default exists, the Authority or the Trustee, as the case may be, shall
give at least five (5) days' notice to the Company before taking action under
this section, except that in case of emergency as reasonably determined by
the acting party, it may act on lesser notice or give the notice promptly
after rather than before taking the action. The reasonable cost of any such
action performed by the Trustee or the Authority shall be paid or reimbursed
by the Company within thirty (30) days after the Trustee or the Authority
notify the Company of such cost.
Section 608. Remedies Cumulative; No Waiver.
The rights and remedies under this Agreement shall be cumulative and
shall not exclude any other rights and remedies allowed by law, provided
there is no duplication of recovery. Neither the failure to insist upon a
strict performance of any of the obligations of the Company nor the failure
to exercise any remedy for any violation thereof, shall be taken as a waiver
for the future of the right to insist upon strict performance of the
obligation or of the right to exercise any remedy for the violation.
ARTICLE VII: THE TRUSTEE
Section 701. Corporate Organization, Authorization and Capacity.
The Trustee represents and warrants that it is a trust company duly
organized and validly existing under the laws of The Commonwealth of
Massachusetts and duly licensed or qualified to do business in Massachusetts,
with the capacity to exercise the powers and duties of the Trustee hereunder,
and that by proper corporate action it has duly authorized the execution and
delivery of this Agreement.
Section 702. Rights and Duties of the Trustee.
(a) Moneys to be Held in Trust. All moneys deposited with the Trustee
under this Agreement (other than amounts received for its own use) shall be
held by the Trustee in trust and applied subject to the provisions of this
Agreement, but need not be segregated from other funds except as required
herein or by law.
(b) Accounts. The Trustee shall keep proper accounts of its
transactions hereunder (separate from its other accounts), which shall be
open to inspection at reasonable times by the Authority, the Company and the
Bondowners and their representatives duly authorized in writing.
(c) Performance of the Authority's Obligations. If the Authority shall
fail to observe or perform any agreement or obligation contained in this
Agreement, the Trustee may take whatever legal proceedings may be required to
compel full performance by the Authority of its obligations, and in addition,
the Trustee may, to whatever extent it deems appropriate for the protection
of the Bondowners, itself or the Company, perform any such obligation in the
name of the Authority and on its behalf.
(d) Responsibility. The Trustee shall be entitled to the advice of
counsel (who may be the Trustee's counsel, counsel for the Authority, the
Company or any Bondowner) and shall be wholly protected as to any action
taken or omitted to be taken in good faith in reliance on such advice. The
Trustee may rely conclusively on any notice, certificate or other document
furnished to it hereunder and reasonably believed by it to be genuine. The
Trustee shall not be liable for any action taken by it in good faith and
reasonably believed by it to be within the discretion or powers conferred
upon it, in good faith omitted to be taken by it and reasonably believed to
be beyond the discretion or powers conferred upon it, taken by it pursuant to
any direction or instruction by which it is governed hereunder, or omitted to
be taken by it by reason of the lack of direction or instruction required
hereby for such action; nor shall it be responsible for the consequences of
any error of judgment reasonably made by it. The duties of the Trustee are
those expressly set forth in this Agreement, and no additional duties shall
be implied. When any payment, consent or other action by it is called for
hereby, it may defer such action pending receipt of such evidence, if any, as
it may require in support thereof. The Trustee shall in no event be liable
for the application or misapplication of funds, or for other acts or defaults
by any person, firm, or corporation, except its own directors, officers, and
employees. No recourse shall be had by the Company, the Authority or any
Bondowner for any claim based on this Agreement or any Bond against any
director, officer, employee, or agent of the Trustee alleging personal
liability on the part of such person, unless such claim is based upon the bad
faith, negligence, fraud or deceit of such person. The Trustee has no
responsibility for the validity or sufficiency of this Agreement or the Bonds
or any security therefor.
(e) Limitations on Actions. The Trustee shall not be required to
monitor the financial condition of the Company or the physical condition of
the Project Facilities and, unless otherwise expressly provided, shall not
have any responsibility with respect to notices, certificates or other
documents filed with it hereunder, except to make them available for
inspection by the Bondowners. The Trustee shall not be deemed to have
knowledge of and shall not be required to take notice of any Default or Event
of Default, except for a Default or Event of Default described in Paragraph
601(a)(i) relating to the payment of principal of, premium, if any, and
interest on the Bonds, unless the Trustee shall be specifically notified in
writing by the Company, the Authority or Bondowners representing not less
than 25% in principal amount of the Bonds Outstanding, or in the case of a
Default or Event of Default described in Paragraph 601(a)(iii), the Trustee
shall be notified in writing by the First Mortgage Bond Trustee, or in the
case of a Default or Event of Default described in Paragraph 601(a)(iv) or
(v), the Trustee shall be notified in writing by the Bank or the Paying
Agent. It shall not be required to take any remedial action (other than the
giving of notice) unless indemnity reasonably satisfactory to it is furnished
for any expense or liability to be incurred therein, other than liability for
failure to meet the standards set forth in this section. The Trustee shall
be entitled to reimbursement from the Company for its expenses reasonably
incurred or advances reasonably made, which reimbursement shall be due and
payable thirty (30) days after notifying the Company of such expenses or
advances, in the exercise of its rights or the performance of its obligations
hereunder, whether or not it acts without previously obtaining indemnity.
A permissive right or power to act shall not be construed as a
requirement to act. Upon receipt of written notice, direction, instruction,
and indemnity as provided above and, after making such investigation, if any,
as it deems appropriate to verify the occurrence of any Default of which it
is notified by the Bondowners or the Bank, the Trustee shall pursue such
remedies hereunder (not contrary to such direction) as it deems appropriate
for the protection of the Bondowners (including the Bank as provided in
Section 901); and in its actions under this provision, the Trustee shall be
required to act for the protection of the Bondowners with the same prudence
as would be expected of a prudent person in the conduct of such person's
affairs.
(f) Financial Obligations. Nothing contained in this Agreement shall
in any way obligate the Trustee to pay any debt or meet any financial
obligations to any person in relation to the Project Facilities except from
moneys received under the provisions of this Agreement (including from the
exercise of its rights and remedies hereunder) other than moneys received for
its own purposes.
(g) Ownership of Bonds. The Trustee or any affiliate of the Trustee
may be or become the owner of Bonds with the same rights as if it were not
Trustee.
(h) No Surety Bond. The Trustee shall not be required to furnish any
bond or surety.
(i) Requests by the Company. Upon any request by the Company to the
Trustee to take any action under this Agreement (including but not limited to
any proposed amendment pursuant to Section 1101) the Trustee shall be
entitled to receive from the Company prior to taking such action, and to rely
upon, a certificate of a Company Representative and an opinion of counsel
reasonably satisfactory to the Trustee (who may be counsel to the Company),
and, if applicable in the reasonable judgment of the Trustee, a certificate
of an accountant satisfactory to the Company (who may be an employee of the
Company), each to the effect that in the signer's opinion all conditions
precedent applicable to such action under this Agreement, if any, have been
satisfied (and, in the case of the certificate of the Company Representative,
including but not limited to the absence of any Default or Event of Default)
and such action is permitted by this Agreement.
(j) Trustee as Holder of Series G First Mortgage Bonds. So long as no
Default has occurred and is continuing, the Trustee may, but shall have no
obligation to, take any action in its capacity as the registered holder of
the Series G First Mortgage Bonds (other than the duty to exercise reasonable
care in the safekeeping thereof and the giving of notices set forth below),
unless and except to the extent the Trustee is directed in writing by the
Bondowners as provided in Section 901 of this Agreement. The Trustee shall
promptly notify the Bondowners of the receipt of and contents of any notice
it receives under the First Mortgage Bond Indenture (other than notices
solely of payments being made on the Series G First Mortgage Bonds).
(k) Authentication of Bonds. The Trustee shall act as authenticating
agent for the Bonds. The Trustee may either sign the Certificate of
Authentication in its own name or may appoint one or more agents to sign the
Certificate of Authentication on the Trustee's behalf. So long as Bonds are
in the Flexible or Weekly Mode the Trustee shall use its best efforts to have
the ability to cause the Certificate of Authentication to be executed in New
York, New York at a location satisfactory to the Paying Agent. To satisfy
this requirement, the Trustee hereby initially appoints Security Pacific
National Trust Company (New York) to act as its agent for the purpose of
signing the Certificate of Authentication and delivery of the Bonds. The
Trustee shall have no liability for the negligence or wrongful conduct (in
each case whether by act or omission) of any such agent appointed with
reasonable care. The Trustee shall have no liability if, after its best
efforts, it finds that it does not have the ability (either directly or
through an agent) to cause the Certificate of Authentication to be executed
and delivered in New York, New York on a timely basis when Bonds are in the
Flexible or Weekly Mode.
Section 703. Fees and Expenses of the Trustee.
The Company shall pay to the Trustee reasonable compensation for its
services and prepay or reimburse the Trustee for its reasonable expenses and
disbursements, including attorney's fees, hereunder. The Company shall
indemnify and save the Trustee harmless against any and all (a) claims as set
forth in Section 1002, (b) costs, counsel fees, expenses or liabilities
reasonably incurred in connection with such claims, and (c) expenses and
liabilities which it may incur in the exercise of its duties hereunder and
which are not due to the bad faith, negligence, fraud or deceit of any
director, officer, employee or agent of the Trustee. Any fees, expenses,
reimbursements, or other charges which the Trustee may be entitled to receive
from the Company hereunder shall be due and payable thirty (30) days after a
request for payment has been made by the Trustee, and if not otherwise paid,
shall be a first lien upon any funds or other property then or thereafter
held hereunder by the Trustee; provided, however, that the lien of the
Trustee shall be subordinate to the lien for the benefit of the Bondowners
upon the moneys drawn under the Credit Facility, and the proceeds of any
remarketing of the Bonds and other Eligible Funds, if any, which are the
basis of the determination made by the Paying Agent of the amount to be drawn
under the Credit Facility, including, without limitation, such funds held by
the Trustee under Section 204 and Subsection 304(c). If any such moneys are
so applied, the Company shall be immediately obligated to restore the moneys
so applied. The Trustee shall not require indemnification for any payment
when due of principal, premium or interest on any Bond to be made by the
Trustee to any Bondowner, prior to the time such payment is made by the
Trustee, except and unless such payment is prohibited by or violates
applicable law or any outstanding or pending court or governmental order or
decree.
Section 704. Resignation or Removal of Trustee.
The Trustee may resign on not less than sixty (60) days' notice given in
writing to the Authority, the Bondowners, the Bank and the Company, but such
resignation shall not take effect until a successor has been appointed and
has assumed the duties hereunder. The Trustee will promptly certify to the
other parties that it has mailed such notice to all Bondowners and such
certificate shall be conclusive evidence that such notice was given in the
manner required hereby. The Trustee may be removed by written notice to the
parties from the Bondowners representing a majority in principal amount of
the Bonds Outstanding, but no such removal shall take effect until a
successor has been appointed and assumed the duties hereunder. A petition in
a court of competent jurisdiction for removal of the Trustee and the
appointment of a successor may be filed by the Bondowners representing not
less than 25% in principal amount of the Bonds Outstanding.
Section 705. Successor Trustee.
Any corporation or association which succeeds to the corporate trust
business of the Trustee as a whole, or substantially as a whole, whether by
sale, merger, consolidation or otherwise, shall become vested with all the
property, rights and powers of the Trustee hereunder, without any further act
or conveyance.
In case the Trustee resigns or is removed or becomes incapable of
acting, or becomes bankrupt or insolvent, or if a receiver, liquidator or
conservator of the Trustee or of its property is appointed, or if a public
officer takes charge or control of the Trustee, or of its property or
affairs, a successor shall be appointed (but only with the consent of the
Bank, if any Bonds shall then be entitled to the benefits of a Credit
Facility, which consent shall not be unreasonably withheld) by written notice
from the Company to the Authority. The Company shall notify the Bondowners
of the appointment in writing within twenty (20) days from the appointment.
The Company will promptly certify to the successor Trustee that it has mailed
such notice to all Bondowners and such certificate will be conclusive
evidence that such notice was given in the manner required hereby. If no
appointment of a successor is made within twenty (20) days after the giving
of written notice in accordance with Section 704 or after the occurrence of
any other event requiring or authorizing such appointment, the outgoing
Trustee or any Bondowner may apply to any court of competent jurisdiction for
the appointment of such a successor, and such court may thereupon, after
such notice, if any, as such court may deem proper, appoint such successor.
Any successor Trustee appointed under this section shall be a trust company
or a bank having the powers of a trust company that meets the requirements of
the Act, shall have a capital and surplus of not less than $50,000,000 and
shall at the time of the appointment be rated not less than Baa3/P-3 by
Moody's or otherwise be acceptable to Moody's. Any such successor Trustee
shall notify the Authority and the Company of its acceptance of the
appointment and, upon giving such notice, shall become Trustee, vested with
all the property, rights and powers of the Trustee hereunder, without any
further act or conveyance. Such successor Trustee shall execute, deliver,
record and file such instruments as are required to confirm or perfect its
succession hereunder and any predecessor Trustee shall from time to time
execute, deliver, record and file such instruments as the incumbent Trustee
may reasonably require to confirm or perfect any succession hereunder.
ARTICLE VIII: THE AUTHORITY
Section 801. Limited Obligation.
Under no circumstances shall the Authority be obligated directly or
indirectly to pay Project Costs, principal of or premium, if any, and
interest on the Bonds, or expenses of operation, maintenance and upkeep of
the Project Facilities except from Bond proceeds or from funds received under
this Agreement, exclusive of funds received hereunder by the Authority for
its own use. This Agreement does not create any debt of the State of New
Hampshire with respect to the Project Facilities other than a special
obligation of the Authority acting on behalf of the State of New Hampshire
pursuant to the Act. Nothing contained herein shall in any way obligate the
State of New Hampshire to raise any money by taxation or use other public
funds for any purpose in relation to the Project Facilities. Neither the
State of New Hampshire nor the Authority shall pay or promise to pay any debt
or meet any financial obligation to any person at any time in relation to the
Project Facilities except (i) from moneys received or to be received under
the provisions hereof or derived from the exercise of the Authority's right
hereunder, other than moneys received for its own purposes, or (ii) as may be
required by law other than the provisions of the Act. Nothing contained in
this Agreement shall be construed to require or authorize the Authority to
operate the Project Facilities itself or to conduct any business enterprise
in connection therewith.
Section 802. Rights and Duties of the Authority.
(a) Remedies of the Authority. Notwithstanding any contrary provision
in this Agreement, the Authority shall have the right to take any action or
make any decision with respect to proceedings for indemnity against the
liability of the Authority and for collection or reimbursement from sources
other than moneys or property held under this Agreement or subject to the
lien hereof. The Authority may enforce its rights under this Agreement which
have not been assigned to the Trustee by legal proceedings for the specific
performance of any obligation contained herein or for the enforcement of any
other appropriate legal or equitable remedy, and may recover damages caused
by any breach by the Company of its obligations to the Authority under this
Agreement, including court costs, reasonable attorney's fees and other costs
and expenses incurred in enforcing such obligations.
(b) Limitations on Actions. The Authority shall not be required to
monitor the financial condition of the Company or the physical condition of
the Project Facilities and, unless otherwise expressly provided, shall not
have any responsibility with respect to notices, certificates or other
documents filed with it hereunder. The Authority shall not be required to
take notice of any breach or default except when given notice thereof by the
Trustee. The Authority shall not be responsible for the payment of any
rebate to the United States under IRC Section 148(f). The Authority shall
not be required to take any action unless indemnity reasonably satisfactory
to it is furnished for expenses or liability to be incurred therein (other
than the giving of notice). The Authority, upon written request of the
Bondowners, the Bank or the Trustee, and upon receipt of reasonable
indemnity for expenses or liability, shall cooperate to the extent reasonably
necessary to enable the Trustee to exercise any power granted to the Trustee
by this Agreement. The Authority shall be entitled to reimbursement pursuant
to Section 803 to the extent that it acts without previously obtaining full
indemnity.
(c) Responsibility. The Authority shall be entitled to the advice of
counsel (who may be counsel for any party, for the Bank, the Paying Agent or
the Remarketing Agent, or for any Bondowner) and shall be wholly protected as
to any action taken or omitted to be taken in good faith in reliance on such
advice. The Authority may rely conclusively on any notice, certificate or
other document furnished to it under this Agreement and reasonably believed
by it to be genuine. The Authority shall not be liable for any action taken
by it in good faith and reasonably believed by it to be within the discretion
or power conferred upon it, or in good faith omitted to be taken by it and
reasonably believed to be beyond such discretion or power, or taken by it
pursuant to any direction or instruction by which it is governed under this
Agreement or omitted to be taken by it by reason of the lack of direction or
instruction required for such action under this Agreement, or be responsible
for the consequences of any error of judgment reasonably made by it. When
any payment, consent or other action by the Authority is called for by this
Agreement, the Authority may defer such action pending such investigation or
inquiry or receipt of such evidence, if any, as it may require in support
thereof. A permissive right or power to act shall not be construed as a
requirement to act, and no delay in the exercise of a right or power shall
affect the subsequent exercise thereof. The Authority shall in no event be
liable for the application or misapplication of funds, or for other acts or
defaults by any person or entity except by its own directors, officers and
employees. No recourse shall be had by the Company, the Trustee or any
Bondowner for any claim based on this Agreement or the Bonds against any
director, officer, employee or agent of the Authority unless such claim is
based upon the bad faith, fraud or deceit of such person. No covenant,
obligation or agreement of the Authority contained in this Agreement shall be
deemed to be a covenant, obligation or agreement of any present or future
director, officer, employee or agent of the Authority in his individual
capacity, and no person executing a Bond shall be liable personally thereon
or be subject to any personal liability or accountability by reason of the
issuance thereof.
Section 803. Expenses of the Authority.
The Company shall pay when due the Authority's Service Charge and shall
prepay or reimburse the Authority within thirty (30) days after notice for
all expenses (including reasonable attorney's fees) incurred by the Authority
in connection with the issuance and carrying of the Bonds and all expenses
reasonably incurred or advances reasonably made in the exercise of the
Authority's rights or their performance of its obligations hereunder. Any
fees, expenses, reimbursements or other charges which the Authority may be
entitled to receive from the Company hereunder, if not paid when due, shall
bear interest at 15% per annum.
Section 804. Matters to be Considered by Authority.
In approving, concurring in or consenting to action or in exercising any
discretion or in making any determination under this Agreement, the Authority
may consider the interests of the public, which shall include the anticipated
effect of any transaction on tax revenues and employment, as well as the
interests of the other parties hereto and the Bondowners; provided, however,
nothing herein shall be construed as conferring on any person other than the
other parties and the Bondowners any right to notice, hearing or
participation in the Authority's consideration, and nothing in this section
shall be construed as conferring on any of them any right additional to those
conferred elsewhere herein. Subject to the foregoing, the Authority will not
unreasonably withhold any approval or consent to be given by it hereunder.
Section 805. Actions by Authority.
Any action which may be taken by the Authority hereunder shall be deemed
sufficiently taken if taken on its behalf by its Chairman, its Vice Chairman
or its Executive Director or by any other director, officer or agent whom it
may designate from time to time.
ARTICLE IX: THE BONDOWNERS
Section 901. Action by Bondowners.
Subject to Subsections 601(b), 602(a) and Section 1101 (as to the
waivers and consents granted thereby), Bondowners representing a majority in
principal amount of the Bonds Outstanding shall have the right at any time,
by written notice to the Trustee and upon offering it indemnity as provided
in Subsection 702(e), to direct the Trustee (i) in the granting of any
consents, waivers or similar actions pertaining to the Bonds, (ii) in the
time, method and place of conducting all proceedings, (iii) in the exercise
of any rights or remedies available to the Trustee hereunder, or (iv) in the
exercise of any other right or power conferred upon the Trustee for the
protection of the Bondowners, provided that such direction shall be in
accordance with the provisions of law and this Agreement, and the Trustee may
take any other action determined proper by the Trustee which is not
inconsistent with such direction.
Except with respect to the matters provided below, Bondowners
representing a majority in principal amount of the Bonds Outstanding shall
have the right, at any time, by written notice to the Trustee and the
offering of indemnity as provided in Subsection 702(e), to direct the
Trustee, as holder of all of the Series G First Mortgage Bonds, to exercise
the rights available to it as holder of such bonds under the First Mortgage
Bond Indenture, including, without limitation, as to rendering notice to the
First Mortgage Bond Trustee of the occurrence of a default thereunder, the
institution of any suit, action or proceeding to enforce payments on the
Series G First Mortgage Bonds which were not paid when due or other
proceeding in respect of the First Mortgage Bond Indenture which the Trustee,
as holder of the Series G First Mortgage Bonds, is entitled to institute, and
as to the time, place and method of any such proceeding for any remedy
available to the Trustee, as holder of the Series G First Mortgage Bonds,
subject however to compliance with the applicable provisions of the First
Mortgage Bond Indenture.
Where the First Mortgage Bond Trustee is required or permitted to take
any action under the First Mortgage Bond Indenture upon the direction,
authorization, consent, notice or request of the holders of a specified
percentage of principal amount of bonds outstanding thereunder or of
outstanding bonds thereunder which would be adversely affected by such
action, including with respect to acceleration of the maturity of such bonds
under Section 10.1 of the First Mortgage Bond Indenture, the time, method and
place of proceedings and waivers of events of default, as provided in Section
10.12 of the First Mortgage Bond Indenture and amendments of the First
Mortgage Bond Indenture under Article 15 thereof, each Bondowner shall be
deemed the holder of its pro-rata portion of the principal amount of Series G
First Mortgage Bonds and shall have the right to direct the Trustee whether
or not to render such direction, authorization, consent, notice or request
under the First Mortgage Bond Indenture in respect of such Bondowner's
pro-rata portion, whereupon the Trustee shall notify the First Mortgage Bond
Trustee of the action to be taken in respect of the applicable principal
amount of Series G First Mortgage Bonds.
Any request, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by Bondowners may be
contained in and evidenced by one or more writings of substantially the same
tenor signed by the Bondowners of the requisite percentage of principal
amount of Bonds Outstanding or their attorneys duly appointed in writing.
Proof of the execution of any such instrument, or of any instrument
appointing any such attorney, shall be sufficient for any purpose of this
Agreement (except as otherwise herein expressly provided) if made in the
following manner, but the Authority or the Trustee may nevertheless in its
discretion require further or other proof in cases where it deems the same
desirable:
The fact and date of the execution by any Bondowner or his or her
attorney of such instrument may be proved by the certificate, which need not
be acknowledged or verified, of an officer of a bank or trust company
satisfactory to the Authority or to the Trustee or of any notary public or
other officer authorized to take acknowledgments of the deeds to be recorded
in the state in which he purports to act, that the person signing such
request or other instrument acknowledged to him or her the execution thereof,
or by an affidavit of a witness of such execution, duly sworn to before such
notary public or other officer. The authority of the person or persons
executing any such instrument on behalf of a corporate Bondowner may be
established without further proof if such instrument is signed by a person
purporting to be the president or a vice president of such corporation with a
corporate seal affixed and attested by a person purporting to be its clerk or
secretary or an assistant clerk or assistant secretary.
The ownership of Bonds and the amount, numbers and other identification,
and date of holding the same shall be proved by the registry books for the
Bonds maintained by the Trustee.
Any request, consent or vote of the owner of any Bond shall bind all
future owners of such Bond. Bonds owned or held by or for the account of the
Authority, the Company, or any related person to the Company within the
meaning of Section 147(a) of the IRC shall not be deemed Outstanding Bonds
for the purpose of any consent or other action by Bondowners, except that for
such purposes Pledged Bonds shall be treated as Outstanding and shall be
deemed to be owned by the Bank. So long as no Default exists under Paragraph
601(a)(i) with respect to any Bonds supported by a Credit Facility, the Bank
and not the Bondowner shall be treated as the owner of all Bonds entitled to
the benefits of such Credit Facility for the purpose of any consent or other
action by Bondowners.
ARTICLE X: THE COMPANY
Section 1001. Existence and Good Standing; Merger; Consolidation.
The Company will maintain its corporate existence, qualification to do
business and good standing under the laws of the State of New Hampshire and
will maintain itself as a foreign corporation duly qualified to do business
and in good standing, where applicable, in each jurisdiction in which the
failure to so qualify would have a material adverse effect upon its business
or properties. The Company shall not merge or consolidate with or sell all
or substantially all of its assets to another entity, except that the Company
may transfer the Station in connection with a transfer of the Project
Facilities pursuant to Section 505 and the Company may so merge or
consolidate with or sell all or substantially all of its assets to another
corporation if (i) the surviving or transferee corporation is qualified to do
business in New Hampshire, (ii) the surviving or transferee corporation (if
not the Company) has assumed in writing all of the Company's obligations
hereunder and under the Series G First Mortgage Bonds, and (iii) upon such
assumption there will not be a Default hereunder or an event of default under
the First Mortgage Bond Indenture (disregarding any required passage of time
or giving of notice thereunder).
Section 1002. Indemnification by the Company.
The Company, regardless of any agreement to maintain insurance, will
indemnify the Authority and the Trustee against (a) any and all claims by any
person related to the participation of the Authority or the Trustee in the
transactions contemplated by this Agreement, including without limitation
claims arising out of any condition of the Project Facilities or Station or
the construction, use, occupancy or management thereof; any accident, injury
or damage to any person occurring in or about the Station; any breach by the
Company of its obligations under this Agreement; any act or omission of the
Company or any of its agents, contractors, servants, employees or licensees;
or the offering, issuance, sale or any resale of the Bonds to the extent
permitted by law, and (b) all costs, counsel fees, expenses or liabilities
reasonably incurred in connection with any such claim or any action or
proceeding brought thereon. In case any action or proceeding is brought
against the Authority or the Trustee by reason of any such claim, the Company
will defend the same at its expense upon notice from the Authority or the
Trustee, and the Authority or the Trustee, as the case may be, will cooperate
with the Company, at the expense of the Company, in connection therewith.
ARTICLE XI: MISCELLANEOUS
Section 1101. Amendments.
(a) Without Bondowners' Consent. The parties may from time to time,
without the consent of any Bondowner, amend this Agreement in order to (i)
cure any ambiguity, defect or omission in this Agreement that does not
materially adversely affect the interests of the Bondowners, (ii) grant
additional rights or security to the Trustee for the benefit of the
Bondowners, (iii) add additional Events of Default as shall not be
inconsistent with the provisions of this Agreement and which shall not
materially adversely affect the interests of the Bondowners, (iv) qualify
this Agreement under the Trust Indenture Act of 1939, as amended, or
corresponding provisions of federal laws from time to time in effect, (v)
provide for the establishment of a book entry system of registration for the
Bonds through a securities depository, (vi) effective upon any Conversion
Date to a new Mode, make any amendment affecting only the Bonds being
converted, (vii) add provisions relating to the partial conversion of Bonds
to a new Mode or the issuance of Tax-Exempt Refunding Bonds which do not
impair the security for the outstanding Bonds, or (viii) make such other
provisions in regard to matters or questions arising under this Agreement as
shall not be inconsistent with the provisions of this Agreement and which
shall not materially adversely affect the interests of the Bondowners.
(b) With Bondowners' Consent. Except as set forth in Subsection
1101(a), the parties may from time to time amend this Agreement with the
consent of the owners of more than 50% in aggregate principal amount of the
Bonds Outstanding; provided, that no amendment shall be made which adversely
affects the rights of some but less than all the Bonds Outstanding without
the consent of the owners of more than 50% in aggregate principal amount of
the Bonds so affected; and provided further, that no amendment of this
Agreement shall be effective to (i) change the principal, premium or interest
on any Bonds, (ii) change the interest payment dates, maturity dates or
purchase or redemption provisions of any Bonds, (iii) reduce the percentage
of Bondowners whose consent is required for the amendment of this Agreement
or (iv) modify the lien upon or pledge of the payments and other revenues
assigned and pledged hereunder (including any Credit Facility), without the
consent, in each case, of the owner of each Bond which would be affected by
the action proposed to be taken.
When the Trustee determines that the requisite number of consents have
been obtained for an amendment which requires Bondowner consents, it shall,
within ninety (90) days, file a certificate to that effect in its records and
mail notice to the Bondowners. No action or proceeding to invalidate the
amendment shall be instituted or maintained unless it is commenced within
sixty (60) days after such mailing. The Trustee will promptly certify to the
Authority that it has mailed such notice to all Bondowners and such
certificate will be conclusive evidence that such notice was given in the
manner required hereby. A consent to an amendment may be revoked by a notice
given by the Bondowner and received by the Trustee prior to the Trustee's
certification that the requisite consents have been obtained.
(c) General. Any amendment of this Agreement shall be accompanied by
an opinion of Bond Counsel reasonably satisfactory to the Authority and the
Trustee to the effect that the amendment is permitted by this Agreement and,
if there are any Tax-Exempt Refunding Bonds outstanding, that such amendment
will not adversely affect the exclusion from gross income for federal income
tax purposes of interest on such Tax-Exempt Refunding Bonds. So long as a
Credit Facility supports any of the Bonds no amendment to this Agreement
shall be made without the consent of the Bank.
Notice of any amendment of this Agreement, or any material change to the
Reimbursement Agreement or any remarketing agreement entered into by the
Remarketing Agent and the Company shall be sent by the Company to Moody's.
Section 1102. Notices.
Unless otherwise expressly provided, all notices to the Authority, the
Trustee, the Paying Agent and the Company shall be in writing and shall be
deemed sufficiently given if sent by registered or certified mail, postage
prepaid, or delivered during a Business Day as follows: (a) to the Authority
at its office at 14 Dixon Avenue, Suite 101, Concord, New Hampshire 03301-
4954, attention of Executive Director, (b) to the Trustee at P.O. Box 778,
Boston, Massachusetts 02102 (if by mail) or Two International Place - 4th
Floor, Boston, Massachusetts 02110 (if by courier), in each case attention of
Corporate Trust Department, (c) to the Paying Agent at 2 Rector Street, New
York, New York 10006, attention of Corporate Trust Division, (d) to the
Company at 1000 Elm Street, Manchester, New Hampshire 03105, attention of
Treasurer with a copy to Northeast Utilities Service Company at 107 Selden
Street, Berlin, Connecticut 06037, attention of the Assistant Treasurer, (e)
to Moody's at 99 Church Street, New York, New York 10007, and (f) to S&P at
25 Broadway, New York, New York 10004, or, as to all of the foregoing, to
such other address as the addressee shall have indicated by prior written
notice to the one giving notice. All notices to a Bondowner shall be in
writing and shall be deemed sufficiently given if sent by first class mail,
postage prepaid, to the Bondowner at the address shown on the registration
books for the Bonds maintained by the Paying Agent. A Bondowner may direct
the Paying Agent to change its address as shown on the registration books by
written notice to the Paying Agent. All notices to Bondowners shall identify
the Bonds by name, CUSIP number, date of original issuance, maturity date,
and such other descriptive information as may be needed to identify
accurately the Bonds.
All notices sent to Bondowners by the Trustee or Paying Agent shall
simultaneously be sent by registered or certified mail, postage prepaid, to
Moody's, S&P, at least two (2) national information services that publish or
disseminate notices of redemption of obligations such as the Bonds, such as
S&P's Called Bond Service and Kenney Information Systems Notification
Service, and all registered securities depositories that are registered
owners of the Bonds, provided that the failure to give such notice shall not
affect the validity of any notice given to the Bondowners. The selection of
the national information services to receive any notice shall be at the sole
discretion of the Trustee or the Paying Agent, as the case may be.
Notice hereunder may be waived prospectively or retrospectively by the
person entitled to the notice, but no waiver shall affect any notice
requirement as to other persons.
Section 1103. Time.
All references to times of day in this Agreement are references to New
York City time.
Section 1104. Agreement Not for the Benefit of Other Parties.
This Agreement is not intended for the benefit of and shall not be
construed to create rights in parties other than the Company, the Authority,
the Trustee and the Bondowners.
Section 1105. Severability.
In the event that any provision of this Agreement shall be held to be
invalid in any circumstance, such invalidity shall not affect any other
provisions or circumstances.
Section 1106. Counterparts.
This Agreement may be executed and delivered in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts together shall constitute one and the same instrument.
Section 1107. Captions.
The captions and table of contents of this Agreement are for convenience
only and shall not affect the construction hereof.
Section 1108. Governing Law.
This instrument shall be governed by the laws of State of New Hampshire.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, THE BUSINESS FINANCE AUTHORITY OF THE STATE OF NEW
HAMPSHIRE HAS CAUSED THIS AGREEMENT TO BE SIGNED AND ITS OFFICIAL SEAL TO BE
IMPRESSED HEREON BY ITS EXECUTIVE DIRECTOR; PUBLIC SERVICE COMPANY OF NEW
HAMPSHIRE HAS CAUSED THIS AGREEMENT TO BE SIGNED AND ITS CORPORATE SEAL TO BE
IMPRESSED HEREON BY AN AUTHORIZED OFFICER; AND STATE STREET BANK AND TRUST
COMPANY, AS TRUSTEE, HAS CAUSED THIS AGREEMENT TO BE SIGNED AND ITS CORPORATE
SEAL TO BE IMPRESSED HEREON BY AN AUTHORIZED OFFICER.
BUSINESS FINANCE AUTHORITY OF THE STATE OF NEW HAMPSHIRE
(Seal)
By:
Jack Donovan
Executive Director
PUBLIC SERVICE COMPANY OF
NEW HAMPSHIRE
(Seal)
By:
Randy A. Shoop
Assistant Treasurer - Finance
STATE STREET BANK AND TRUST COMPANY,
as Trustee
(Seal)
By:
Name:
Title:
The undersigned hereby consents
to this Agreement
BARCLAYS BANK PLC, NEW YORK BRANCH
By:
Name:
Title:
EXHIBIT A
THE PROJECT FACILITIES
The Project Facilities to be financed by the Bonds consist of certain
air or water pollution control and sewage or solid waste disposal facilities
at the Seabrook Station Plant, Unit No. 1, in which Public Service Company of
New Hampshire has a 35.56942 percent ownership interest. The Project
Facilities include the following:
Waste Water Run-Off System
The Waste Water Run-Off System collects and treats yard area drainage to
remove pollutants. The System includes catch basins, yard waste water drain
pipes, and a site settling pond.
Chemical and Oily Waste Treatment System
The Chemical and Oily Waste Treatment System collects, stores,
processes, treats and disposes of non-radioactive chemical and oily wastes.
The wastes result from construction, start-up and operation of the Seabrook
Station Plant. The wastes are collected and treated to remove pollutants.
The System includes tanks, an acid and caustic handling system, waste
lagoons, system flush piping, and oil separator, curbs and drains, pipes,
valves, transfer pumps, controls and instrumentation and related support
equipment.
Sanitary Waste System
Sanitary waste is collected, treated and disposed of by the Sanitary
Waste System. The System includes sanitary drains, sumps and pumps, a
holding tank, a pump station, a sewage treatment plant, piping, transfer
pumps and related support equipment.
Radioactive Gaseous Waste System
The Radioactive Gaseous Waste System collects, processes, stores and
treats radioactive gaseous waste produced during normal operations. The
System includes the following components: a main gas collection header, a
waste gas condenser with associated primary cooling water components, gas
chiller compressor units, iodine guard beds, a regeneration subsystem for
dryers, waste gas dryers, a waste gas compressor package, ambient carbon
delay beds, particulate filters, an after cooler, a hydrogen surge tank, a
waste gas radiation monitor, an equipment vent system, a hydrogenated vent
header, and associated piping, valves, controls and instrumentation.
Exhaust Filtration System
The Exhaust Filtration System collects, filters and discharges exhaust
containing low level radioactive contamination resulting from normal
operations. The System includes exhaust filters, exhaust fans, exhaust
ducts, plenums, dampers, piping, flow control valves, and controls and
instrumentation.
Liquid Radwaste System
The Liquid Radwaste System collects, processes, treats, recycles and
disposes of low level radioactive liquid waste resulting from normal
operations. The System includes tanks, filters, strainers, pumps, a
reboiler, an evaporator, an evaporator distillate condenser, an evaporator
distillate accumulator, an evaporator distillate cooler, an evaporator
bottoms cooler, a waste demineralizer and filter, equipment drains, chemical
drains, a radiation monitor, and associated controls and instrumentation.
Boron Recycle System
The Boron Recycle System collects, stores, treats, recycles and disposes
of reactor coolant letdown during normal operations. This System is required
to maintain reactor coolant letdown in accordance with federal pollution
control standards as to radioactivity. The System includes the following
components: Drain tanks, a degasifier, a preheater, a degasifier
regenerative heat exchanger, trim coolers, a degasifier prefilter, cesium
removal ion exchangers, recovery filters, waste storage tanks, recovery
evaporator packages, recovery test tanks, recovery demineralizers, recovery
demineralizer filters, a letdown rehead heat exchanger, a letdown chiller
heat exchanger, a letdown moderating heat exchanger, a chiller surge tank, a
chiller, thermal regenerative demineralizers, radiation monitors, associated
pumps, piping and valves, and controls and instrumentation.
Steam Generator Blowdown Treatment System
The Steam Generator Blowdown Treatment System collects, processes,
stores and treats steam generator blowdown for discharge or recycle during
normal operation. This is necessary in compliance with pollution control
requirements which limit the discharge of untreated steam generator blowdown.
The System includes the following components: Blowdown evaporators, an
evaporator distillate condenser, an evaporator condensate accumulator, an
evaporator distillate pump, an evaporator condensate cooler, an evaporator
bottoms pump, an evaporator bottoms cooler, blowdown demineralizers, acid and
caustic systems, blowdown heat exchangers, and associated piping, controls
and instrumentation.
Solid Radwaste System
The Solid Radwaste System collects, stores, packages and prepares solid
radioactive waste for disposal. Radioactive solid wastes processed by this
System include spent demineralizer resins, expended filter cartridges,
evaporator concentrates as well as dry active waste consisting of rags,
clothing, paper and other trash. The System includes the following
components: A spent resin storage tank, an evaporator bottoms storage tank,
associated collection piping, pumps and valves, a dry waste compactor, a
filter transfer vehicle, and associated controls and instrumentation.
Waste Processing Building
The Waste Processing Building is a reinforced concrete structure which
houses equipment used for exempt facilities. The purpose of this building is
to house the air and water pollution control facilities and the solid waste
disposal facilities.
Auxiliary Building
The Auxiliary Building is a reinforced concrete structure which houses
both pollution control and production related equipment. Pollution control
facilities located in the Auxiliary Building include portions of the liquid
radwaste and gaseous radwaste systems. The cost of the Auxiliary Building
and general support equipment has been allocated to the exempt facilities
according to the ratio of space used for qualified equipment to the total
space used in the building for all equipment.
Spent Nuclear Fuel Facility
The Spent Nuclear Fuel Facility is located in a separate building with
enclosed fuel handling equipment for production functions and for spent fuel
storage. The fuel handling facility includes a Seismic Category 1 structure
containing a spent fuel pool with racks, spent fuel cooling and purification
systems, a new fuel storage area, a spent fuel cask loading pit, and a cask
washdown area. Also included are cranes and equipment supporting the fuel
handling operations as well as the transfer canal leading the reactor
containment. The cost of the Spent Nuclear Fuel Facility is determined
through an allocation of the cost of the overall fuel facility between spent
fuel facilities and production facilities.
Circulating Water System
The Circulating Water System will provide cooling water to the main
condensers of Seabrook Station. The Circulating Water System is a
once-through system using sea water from the Atlantic Ocean to remove the
heat of condensation from the steam cycle and to dispose of that heat in an
environmentally acceptable manner. The points of inlet and discharge of the
cooling water are offshore, east of Hampton Beach, New Hampshire.
The System includes the following structures: Two 19-foot inside
diameter tunnels, lined with reinforced concrete, which connect the plant
with the offshore inlet and outlet structures; a pumphouse, located at the
plant site which encloses traveling screens and pumps for the circulating
water and service water systems; and a piping system at the plant site, for
the most part underground, interconnecting the tunnels, the pumphouse, and
the condensers.
The tunnels extend through the underlying rock in an east-west direction
at an elevation between 200 and 250 feet below sea level. They end at the
plant site with two 19-foot diameter vertical shafts, which reach above grade
transforming at the top into two transition boxes open to the atmosphere. At
the offshore end, the intake tunnel terminates with three 9-foot inside
diameter vertical shafts connecting to three submerged inlet heads. The
discharge tunnel terminates with eleven 5-foot inside diameter vertical
shafts, each connecting to a submerged bifurcated diffuser head.
Service Water Cooling Tower System
The Service Water Cooling Tower System disposes of waste heat from the
plant service water system. Waste heat from equipment throughout the plant
is collected by the service water cooling system piping. The service water
transfers waste heat to the service water cooling tower, which discharges
heat to the atmosphere, thereby controlling discharge of waste heat to the
natural water resources adjacent to the station. The Service Water Cooling
Tower System components include the service water cooling tower, service
water piping, pumps and associated electrical service, mechanical equipment,
controls and instrumentation.
Screen Wash System
The Screen Wash System collects, stores and disposes of debris removed
from the circulating and service water systems. This debris is solid waste
with no market or other value. After removal, the debris is transferred to a
landfill for final disposal. The components of the Screen Wash System
include the screen wash pumps, trash trough, trash container, piping and
valves, associated electrical service, mechanical equipment, controls and
instrumentation.
EXHIBIT B
ASSUMPTION AGREEMENT
This Assumption Agreement (the "Assumption Agreement") is entered into
as of , by The Industrial Development Authority of the State
of New Hampshire (with its successors, the "Authority"), a body corporate and
politic created under New Hampshire Revised Statutes Annotated 162-A:3;
Public Service Company of New Hampshire (with its successors, the "Company"),
a New Hampshire corporation; (with its successors, the
"Seabrook Transferee"), a corporation; and State Street Bank
and Trust Company, a Massachusetts trust company, as Trustee (with its
successors, the "Trustee") under a Series E Loan and Trust Agreement dated as
of May 1, 1991 (the "LTA") among the Authority, the Company and the Trustee,
which secures the Authority's $114,500,000 in aggregate principal amount
Pollution Control Revenue Bonds (Public Service Company of New Hampshire
Project - 1991 Taxable Series E) and any Tax-Exempt Refunding Bonds issued
thereunder (the "Bonds"). Capitalized terms not otherwise defined herein
shall have the meaning given them in the LTA.
This Assumption Agreement is entered into pursuant to Section 505 of the
LTA in connection with the transfer by the Company of its interest in the
Station (including the Project Facilities) to the Seabrook Transferee. The
purpose of this Assumption Agreement is to ensure the exclusion of interest
on the Tax-Exempt Refunding Bonds from gross income of the owners thereof for
federal income tax purposes and to satisfy certain requirements of the
Authority with respect to facilities financed under the Act. This Assumption
Agreement shall remain in effect until no Bonds remain Outstanding.
In consideration of the mutual promises contained in this Assumption
Agreement, the rights conferred and the obligations assumed hereby, and other
good and valuable consideration, the receipt of which is hereby acknowledged,
each of the Company, the Seabrook Transferee, the Authority and the Trustee
agree, assign, covenant, grant, pledge, promise, represent and warrant as set
forth herein for their own benefit and for the benefit of the Bondowners.
Section 1. Representations and Covenants of the Company. The Company
represents, warrants, covenants and agrees as follows:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of New Hampshire; is duly
qualified to do business and in good standing in each jurisdiction in which
the failure so to qualify would have a material adverse affect on its
business or properties; and has full corporate power to enter into this
Assumption Agreement;
(b) This Assumption Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation of
the Company enforceable against the Company as provided herein and in the
LTA, subject to bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights and to the exercise of judicial
discretion in appropriate cases.
(c) No Default or Event of Default exists, or immediately after the
Seabrook Transfer, will exist under the LTA.
(d) The Company and the Seabrook Transferee are members of the same
affiliated group within the meaning of IRC Section 1504.
(e) The Seabrook Transfer is in all material respects as contemplated
by the Third Amended Joint Plan of Reorganization dated December 28, 1989 of
the Company as confirmed by an order of the United States Bankruptcy Court
for the District of New Hampshire (Case No. BK88-00043) on April 20, 1990.
(f) The Company has obtained all regulatory approvals necessary to
enter into this Assumption Agreement and to consummate the Seabrook Transfer
and all such approvals have become final.
(g) The Company's execution and delivery of this Assumption Agreement
and the consummation of the Seabrook Transfer do not violate or constitute a
default under the Company's charter or by-laws, any applicable law, any order
or decree of any court or governmental authority having jurisdiction over the
Company, or any agreement or instrument binding on the Company or its
properties.
Section 2. Representations and Covenants of the Seabrook Transferee.
The Seabrook Transferee represents, warrants, covenants and agrees as
follows:
(a) The Seabrook Transferee is a corporation duly organized, validly
existing and in good standing under the laws of ; is duly
qualified to do business and in good standing in the State of New Hampshire
and in each jurisdiction in which the failure so to qualify would have a
material adverse affect on its business or properties; and has full corporate
power to enter into this Assumption Agreement.
(b) This Assumption Agreement has been duly authorized, executed and
delivered by the Seabrook Transferee and constitutes a valid and binding
obligation of the Seabrook Transferee enforceable against the Seabrook
Transferee as provided herein, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors' rights
and to the exercise of judicial discretion in appropriate cases.
(c) The Seabrook Transferee and the Company are members of the same
affiliated group within the meaning of IRC Section 1504.
(d) The Seabrook Transfer is in all material respects as contemplated
by the Third Amended Joint Plan of Reorganization dated December 28, 1989 of
the Company as confirmed by an order of the United States Bankruptcy Court
for the District of New Hampshire (Case No. BK88-00043) on April 20, 1990.
(e) The Seabrook Transferee has obtained all regulatory approvals
necessary to enter into this Assumption Agreement and to consummate the
Seabrook Transfer and all such approvals have become final.
(f) The Seabrook Transferee's execution and delivery of this Assumption
Agreement and the consummation of the Seabrook Transfer do not violate or
constitute a default under the Seabrook Transferee's charter or by-laws, any
applicable law, any order or decree of any court or governmental authority
having jurisdiction over the Seabrook Transferee, or any agreement or
instrument binding on the Seabrook Transferee or its properties.
(g) The Seabrook Transferee will maintain its corporate existence and
its qualification to do business and good standing under the laws of the
State of New Hampshire and will maintain itself as a foreign corporation duly
qualified to do business and in good standing, where applicable, in each
jurisdiction in which the failure to so qualify would have a material adverse
effect upon its business or properties. The Seabrook Transferee shall not
merge or consolidate with or sell all or substantially all of its assets to
another entity, except that the Seabrook Transferee may so merge or
consolidate with or sell all or substantially all of its assets to another
corporation if (i) the surviving or transferee corporation is qualified to do
business in New Hampshire, and (ii) the surviving or transferee corporation
(if not the Seabrook Transferee) has assumed in writing all of the Seabrook
Transferee's obligations hereunder.
Section 3. Use of the Project.
(a) Notwithstanding any provision herein or in the LTA to the contrary,
the Seabrook Transferee will not operate the Project Facilities in any
manner, and will not take or omit any action or permit any action to be taken
or omitted with the result that interest on any Tax-Exempt Refunding Bonds is
included in the gross income of the owners thereof for federal income tax
purposes. The Seabrook Transferee's use of the Project Facilities (or
facilities replacing the same) shall be in furtherance of the purpose of air
or water pollution control or sewage or solid waste disposal and in
compliance with the Act.
(b) Notwithstanding any provision herein or in the LTA to the contrary,
the Seabrook Transferee shall not permit the Project Facilities to fail to
qualify as (1) "industrial facilities" under the Act, (2) a facility
described in Section 1312(a) of the Tax Reform Act of 1986, or (3) "sewage or
solid waste disposal facilities" or "air or water pollution control
facilities" within the meaning of Section 103(b)(4)(E) or (F) of the 1954
Code; provided, however, that if the Company waives the application of
clauses (b) and (c) of Section 502 of the LTA as provided in said Section
502, clauses (2) and (3) of this Subsection 3(b) shall likewise be waived.
The Seabrook Transferee acknowledges that it is fully familiar with the
physical condition of the Project Facilities and that it is not relying on
any representation of any kind by the Authority or the Trustee concerning the
nature or condition thereof. Neither the Authority nor the Trustee shall be
liable to the Seabrook Transferee or any other person for any latent or
patent defect in the Project Facilities.
(c) In the acquisition, maintenance, improvement and operation of the
Project Facilities, the Seabrook Transferee has and will comply in all
material respects with all applicable building, subdivision, zoning and land
use, environmental protection, sanitary and safety and other laws, rules and
regulations and will not permit any nuisance thereat and will to the extent
of its ownership and control, permit no nuisance to be committed thereat by
others while the Seabrook Transferee is, or is entitled to be, in possession
thereof. It shall not be a breach of this section if the Seabrook Transferee
fails to comply with such laws, rules and regulations during any period in
which the Seabrook Transferee shall in good faith be diligently contesting
the validity thereof.
(d) The Seabrook Transferee shall pay in a timely manner all costs of
maintaining and operating the Project Facilities, including without
limitation all taxes, excises and other governmental charges lawfully levied
thereon or with respect to its interests therein or use thereof to the extent
of the Seabrook Transferee's interest therein. It shall not be a breach of
this section if the Seabrook Transferee fails to pay any such costs, taxes or
charges during any period in which the Seabrook Transferee shall in good
faith be contesting the validity or amount thereof and no foreclosure
proceedings have been commenced, unless the procedures applicable to such
contest require payment thereof and proceedings for their refund or
abatement.
(e) The Seabrook Transferee shall not sell, lease, transfer or
otherwise dispose of the Project Facilities (other than the grant of a
mortgage pursuant to a financing transaction) unless (i) it obtains the
consent of the Authority, which consent shall not be unreasonably withheld,
provided, however, that no such consent shall be required if such transaction
has been approved by or consented to by the New Hampshire Public Utilities
Commission; and (ii) if there are any Outstanding Tax-Exempt Refunding Bonds,
it obtains an opinion of Bond Counsel addressed to and reasonably
satisfactory to the Trustee and the Authority that such sale, lease, transfer
or other disposition will not affect the exclusion of the interest on any
Outstanding Tax-Exempt Refunding Bonds from the gross income of the owners
thereof for federal income tax purposes.
The Seabrook Transferee shall not make any material change in the
purposes for which the Project Facilities are used without the consent of the
Authority, which consent shall not be unreasonably withheld. The Seabrook
Transferee at its own expense may alter, remodel or improve the Project
Facilities and construct other facilities at the site of the Project
Facilities, provided such action shall not result in any substantial change
in the Project Facilities or the character of the activities conducted by the
Seabrook Transferee at the Project Facilities site without the consent of the
Authority, which consent shall not be unreasonably withheld.
(f) The Authority and the Trustee and their respective duly authorized
agents shall have the right at all reasonable times and upon the furnishing
of reasonable notice under the circumstances to examine the books and records
of the Seabrook Transferee relating to the Project Facilities.
(g) The undertakings of the Seabrook Transferee contained in
Subsections 3(b), (c), (d) and (e) are limited to those consistent with the
Seabrook Transferee's undivided percentage interest in the facilities of
which the Project Facilities are a part.
Section 4. Indemnification by the Seabrook Transferee. The Seabrook
Transferee, regardless of any agreement to maintain insurance, will indemnify
the Authority and the Trustee against (a) any and all claims by any person
related to the participation of the Authority or the Trustee in the financing
of the Project Facilities, including without limitation claims arising out of
any condition of the Project Facilities or Station or the construction, use,
occupancy or management thereof; any accident, injury or damage to any person
occurring in or about the Station; any breach by the Seabrook Transferee of
its obligations under this Assumption Agreement; any act or omission of the
Seabrook Transferee or any of its agents, contractors, servants, employees or
licensees; and (b) all costs, counsel fees, expenses or liabilities
reasonably incurred in connection with any such claim or any action or
proceeding brought thereon. In case any action or proceeding is brought
against the Authority or the Trustee by reason of any such claim, the
Seabrook Transferee will defend the same at its expense upon notice from the
Authority or the Trustee, and the Authority or the Trustee, as the case may
be, will cooperate with the Seabrook Transferee, at the expense of the
Seabrook Transferee, in connection therewith.
Section 5. Failure to Comply. The Seabrook Transferee shall immediately
notify the Authority, the Company and the Trustee of any failure to observe
or perform any of its covenants or agreements contained herein, and
thereafter shall keep the Authority, the Company and the Trustee informed
with respect to any curative action instituted by the Seabrook Transferee in
order to cure such failure.
Section 6. Amendment. This Assumption Agreement may be amended by the
parties hereto, provided, however, that in connection with any amendment the
Company or the Seabrook Transferee shall furnish the Authority and the
Trustee with an opinion of Bond Counsel stating that the amendment will not
impair the exclusion of interest on the Bonds from gross income of the owners
thereof for federal income tax purposes.
Section 7. Agreement Not for the Benefit of Other Parties. This
Assumption Agreement is not intended for the benefit of and shall not be
construed to create rights in parties other than the Authority, the Company,
the Seabrook Transferee, the Trustee and the Bondowners.
Section 8. Severability. In the event that any provision of this
Assumption Agreement shall be held to be invalid in any circumstance, such
invalidity shall not affect any other provisions or circumstances.
Section 9. Counterparts. This Assumption Agreement may be executed and
delivered in any number of counterparts, each of which shall be deemed to be
an original; but such counterparts together shall constitute one and the same
instrument.
Section 10. Governing Law. This Assumption Agreement shall be governed
by the laws of the State of New Hampshire.
IN WITNESS WHEREOF, The Industrial Development Authority of the State of
New Hampshire has caused this Assumption Agreement to be signed by one of its
members and directors duly designated and authorized for the purpose and its
official seal to be impressed hereon and attested by its Executive Director;
Public Service Company of New Hampshire has caused this Assumption Agreement
to be signed and its corporate seal to be impressed hereon and attested by
authorized officers; [the Seabrook Transferee] has caused this Assumption
Agreement to be signed and its corporate seal impressed hereon and attested
by authorized officers; and State Street Bank and Trust Company, as Trustee,
has caused this Assumption Agreement to be signed and its corporate seal to
be impressed hereon and attested by authorized officers.
THE INDUSTRIAL DEVELOPMENT AUTHORITY (Seal)
OF THE STATE OF NEW HAMPSHIRE Attest:
By
Title: Executive Director
PUBLIC SERVICE COMPANY (Seal)
OF NEW HAMPSHIRE Attest:
By
Title: Title:
[SEABROOK TRANSFEREE] (Seal)
Attest:
By
Title: Title:
STATE STREET BANK AND TRUST (Seal)
COMPANY, as Trustee Attest:
By
Title: Title:
EXHIBIT C
FORM OF FLEXIBLE 1991 SERIES E BOND
$ No. R-
ANY BONDHOLDER WHO FAILS TO DELIVER A BOND FOR PURCHASE AT THE TIMES AND AT
THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER RIGHTS HEREUNDER EXCEPT THE
RIGHT TO RECEIVE THE PURCHASE PRICE HEREOF UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Revenue Bond
(Public Service Company of New Hampshire
Project - 1991 Taxable Series E)
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST DUE: $
(on the Next Purchase Date)
INTEREST RATE:
(to the Next Purchase Date)
NEXT PURCHASE DATE:
COMMENCEMENT DATE OF RATE PERIOD:
MATURITY DATE: May 1, 2021
CUSIP:
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
MODE: Flexible
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Industrial Development Authority of the State of New Hampshire (the
"Authority"), for value received, promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest from the most
recent Interest Payment Date, as defined below, to which interest has been
paid or duly provided for or, if no interest has been paid, from the DATE OF
THIS BOND set forth above, until paid in full, at the rates set forth below,
payable on each Interest Payment Date. So long as this bond is in the
Flexible Mode, interest shall be due on this bond on each Purchase Date (as
defined below) and on the MATURITY DATE, and when this bond is in any other
Mode interest shall be due on the dates provided in the Agreement (the
"Interest Payment Dates"). Until conversion to the Weekly, Multiannual or
Fixed Rate Mode as provided below, this bond shall bear interest at the
Flexible Rate. The Flexible Rate for this bond shall be the rate of interest
determined by the Remarketing Agent designated as provided in the Agreement
(herein, with its successors, the "Remarketing Agent"), for each Rate Period,
as defined below, to be the lowest rate which in its judgment, on the basis
of prevailing financial market conditions, is necessary on and as of the
Effective Date, as defined below, to remarket each Bond having such Rate
Period in a secondary market transaction at a price equal to the principal
amount thereof, but not in excess of the Maximum Interest Rate. If this bond
is converted to the Weekly, Multiannual or Fixed Rate Mode it shall bear
interest at the Weekly, Multiannual or Fixed Rate, as the case may be, as
defined in the Agreement. The Remarketing Agent shall determine the initial
Flexible Rate on or before the date of issue in or of conversion to the
Flexible Mode, which rate shall remain in effect as provided in the
Agreement. Thereafter, the Remarketing Agent shall redetermine the Flexible
Rate for each Rate Period as provided below. The amount of interest due on
any Interest Payment Date shall be the amount of unpaid interest accrued on
this bond through the day preceding such Interest Payment Date or, if such
Interest Payment Date is not a Business Day, through the day preceding the
first Business Day succeeding such Interest Payment Date.
This bond is one of a series of Pollution Control Revenue Bonds (Public
Service Company of New Hampshire Project - 1991 Taxable Series E) (the
"Bonds") in the aggregate principal amount of $114,500,000 issued under New
Hampshire RSA Chapter 162-I (the "Act"). The proceeds of the Bonds are being
loaned to Public Service Company of New Hampshire (the "Company"), a New
Hampshire corporation, pursuant to a Series E Loan and Trust Agreement (the
"Agreement") dated as of May 1, 1991 among the Company, the Authority and
State Street Bank and Trust Company, as Trustee (the "Trustee") to finance
certain costs associated with the Company's ownership interest in air or
water pollution control and sewage or solid waste disposal facilities
installed for use by Unit No. 1 at the nuclear electric generating station
(the "Station") in Seabrook, New Hampshire (the "Project Facilities").
Pursuant to the Agreement, the Company has unconditionally agreed to repay
such loan in the amounts and at the times necessary to pay the principal of,
premium, if any, and interest on the Bonds when due. To evidence and secure
such loan and the Company's reimbursement and certain other obligations under
the Reimbursement Agreement (as defined below), the Company has issued and
delivered to the Trustee its First Mortgage Bonds, Series G (the "Series G
First Mortgage Bonds") issued under the First Mortgage Indenture dated as of
August 15, 1978, as amended, and the Tenth Supplemental Indenture thereto
dated as of May 1, 1991 between the Company and First Fidelity Bank, National
Association, New Jersey, as Trustee (as amended and supplemented from time to
time, the "First Mortgage Bond Indenture") in an aggregate principal amount,
and with an interest rate, maturity date and redemption provisions
corresponding to those of the Bonds. As provided in the Agreement, payments
of principal of, and premium, if any, and interest on the Series G First
Mortgage Bonds shall, upon receipt by the Trustee, be deemed to constitute
payments in corresponding amounts by the Company in respect of the Bonds.
Reference is hereby made to the Agreement for the provisions thereof with
respect to the rights, limitations of rights, duties, obligations and
immunities of the Company, the Authority, the Trustee, the Paying Agent, and
the Bondowners, including the order of payments in the event of insufficient
funds, the disposition of unclaimed moneys held by the Trustee and
restrictions on the rights of owners of the Bonds to bring suit. The
Agreement may be amended to the extent and in the manner provided therein.
Copies of the Agreement are available for inspection at the corporate trust
office of the Trustee.
The Purchase Price (as defined below) and principal of and interest on
this bond while it is in the Flexible Mode is also payable from moneys drawn
by the Paying Agent on an irrevocable letter of credit for the Bonds
(together with any extensions and renewals thereof, the "Letter of Credit")
issued by Citibank, N.A. in the initial aggregate stated amount of
$121,014,000 pursuant to the terms of a Series E Letter of Credit and
Reimbursement Agreement dated as of May 1, 1991 (the "Reimbursement
Agreement") by and between the Company and Citibank, N.A. (together with any
other issuer of a Credit Facility, the "Bank"). The Letter of Credit
initially expires on the fourth anniversary of the DATE OF THIS BOND but may
be terminated earlier upon the occurrence of certain events set forth in the
Agreement and the Reimbursement Agreement or extended as provided in the
Reimbursement Agreement. The Company may substitute the Letter of Credit in
whole or in part with one or more new letters of credit (collectively with
the Letter of Credit, a "Credit Facility") as provided in the Agreement and
the Reimbursement Agreement. The Company may substitute a new Letter of
Credit as provided in the Agreement.
Unless otherwise defined herein, capitalized terms used in this bond
shall have the meaning given them in the Agreement. The following terms are
defined as follows:
"Business Day" means a day (i) that is not a Sunday or legal holiday or
a day on which banking institutions are authorized pursuant to law to close,
(ii) that is not a day on which the corporate trust office of the First
Mortgage Bond Trustee is not open for business, (iii) that is a day on which
banks are not required or authorized to close in New York, New York, and (iv)
that is a day on which banking institutions in all of the cities in which the
principal offices of the Trustee and the Paying Agent and, if applicable, the
Remarketing Agent and the Bank are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
"Effective Date" means, with respect to a Bond in the Flexible, Weekly
and Multiannual Modes, the date on which a new Rate Period for that Bond
takes effect.
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Flexible Mode, the Weekly Mode, the
Multiannual Mode and the Fixed Rate Mode.
"Purchase Date" means, while this bond is in the Flexible Mode, the date
on which this bond shall be required to be purchased pursuant to a mandatory
tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Flexible, Weekly or Multiannual
Mode, the period during which such rate of interest determined for such Bond
will remain in effect as described herein.
At the option of the Company and upon certain conditions provided for in
the Agreement described below, all or a portion of the Bonds (a) may be
converted or reconverted from time to time to or from the Weekly Mode or
Multiannual Mode, which means that the Rate Period is, respectively, one week
or one year or any multiple of one year, (b) may be converted or reconverted
from time to time to or from the Flexible Mode, and will have Rate Periods of
from one to 270 days as provided herein, or (c) may be converted to the Fixed
Rate Mode; provided, however, that in the Multiannual Mode the first rate
period occurring after conversion to such Mode may be shorter than the
applicable multiple of one year as provided in the Agreement. While this
bond is in the Flexible Mode, a new interest rate shall take effect on the
date such Mode takes effect, and on the Effective Date of the next Flexible
Rate Period, as defined herein, applicable to this bond.
While this bond is in the Flexible Mode, conversions to any other Mode
may take place only on an Effective Date. Conversion of this bond to another
Mode shall be subject to certain conditions set forth in the Agreement. In
the event that the conditions for a proposed conversion to a new Mode are not
met (i) such new Mode shall not take effect on the proposed conversion date,
notwithstanding any prior notice to the Bondowners of such conversion and
(ii) this bond shall remain in the Flexible Mode with a Rate Period of one
day. In no event shall the failure of this bond to be converted to another
Mode be deemed to be a Default or an Event of Default under the Agreement as
long as the Purchase Price (as defined below) is made available on the failed
conversion date to owners of all Bonds that were to have been converted.
While Bonds bear interest at Flexible Rates, the interest rate for each
particular Bond in the Flexible Mode will be determined by the Remarketing
Agent and will remain in effect from and including the Effective Date of the
Rate Period selected for that Bond by the Remarketing Agent through the last
date thereof. While the Bonds are in the Flexible Mode, Bonds may have
successive Rate Periods of any duration up to 270 days each and ending on a
Business Day and any Bond may bear interest at a rate and for a period
different from any other Bond.
In the event that the Remarketing Agent no longer determines, or fails
to determine when required, any Rate Period or any Flexible Rate for any
Bonds, or if for any reason such manner of determination shall be determined
to be invalid or unenforceable, the Rate Period for any such Bond shall be
deemed to be a Flexible Rate Period with a duration of one day and the
Flexible Rate shall be determined as provided in the Agreement.
While this bond is in the Flexible Mode it is subject to mandatory
tender for purchase on each applicable Effective Date at a price (the
"Purchase Price") of par plus accrued interest to the Effective Date. THE
OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL AND SURRENDER THIS
BOND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT AND, ON THE PURCHASE
DATE, TO SURRENDER THIS BOND TO THE PAYING AGENT FOR PAYMENT OF THE PURCHASE
PRICE. UPON DEPOSIT OF THE PURCHASE PRICE WITH THE PAYING AGENT ON THE
PURCHASE DATE, THIS BOND SHALL BE DEEMED TENDERED FOR PURCHASE AND SHALL
CEASE TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST HEREON SHALL CEASE TO
ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED OWNER HEREOF SHALL BE
ENTITLED ONLY TO RECEIVE THE PURCHASE PRICE SO DEPOSITED WITH THE PAYING
AGENT UPON SURRENDER OF THIS CERTIFICATE TO THE PAYING AGENT. The Purchase
Price shall be paid on the Delivery Date, which shall be the Effective Date
or any subsequent Business Day on which this bond is delivered to the Paying
Agent. The Purchase Price of this bond shall be paid only upon surrender of
this bond to the Paying Agent as provided herein. From and after the
Effective Date, no further interest shall be payable to the REGISTERED OWNER
during the preceding Rate Period, provided that there are sufficient funds
available on the Effective Date to pay the Purchase Price.
Each determination and redetermination of the Flexible Rate shall be
conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Bank, the Company and the Bondowners.
While this bond is in the Flexible Mode, interest shall be computed on
the basis of actual days elapsed divided by 360. From and after the date on
which this bond becomes due, any unpaid principal will bear interest at the
then effective interest rate until paid or duly provided for.
While this bond is in the Flexible Mode, the principal of and interest
on this bond due on the MATURITY DATE are payable when due by wire or bank
transfer of immediately available funds within the continental United States
to the REGISTERED OWNER hereof but only upon presentation and surrender of
this bond at the offices of Security Pacific National Trust Company (New
York), New York, New York, as Paying Agent (with its successors in such
capacity, the "Paying Agent"). While this bond is in the Flexible Mode, the
Purchase Price of this bond (which includes accrued interest to the Purchase
Date) tendered for purchase is payable by wire or bank transfer within the
continental United States from the Paying Agent to the REGISTERED OWNER at
its address shown on the registration books maintained by the Paying Agent.
Payment of the Purchase Price of this bond to such owner shall be made on the
Purchase Date if presentation and surrender of this bond is made prior to
11:00 A.M., New York City time, on the Purchase Date or on such later
Business Day upon which presentation and surrender of this bond is made prior
to 11:00 A.M., New York City time. The Purchase Price of this bond shall be
paid in immediately available funds. Overdue interest on this bond, or
interest on overdue principal while in the Flexible Mode is payable in
immediately available funds by wire or bank transfer within the continental
United States from the Paying Agent to the REGISTERED OWNER, determined as of
the close of business on the applicable special record date as determined by
the Trustee, at its address as shown on the registration books maintained by
the Paying Agent. The special record date may be not more than thirty (30)
days before the date set for payment. The Paying Agent will mail notice of a
special record date to the Bondowners at least ten (10) days before the
special record date. The Paying Agent will promptly certify to the
Authority, the Trustee and the Remarketing Agent that it has mailed such
notice to all Bondowners, and such certificate will be conclusive evidence
that notice was given in the manner required hereby.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds in authorized denominations of the same
aggregate principal amount without transfer to a new registered owner.
Exchanges and transfers will be without expense to the owner except for
applicable taxes or other governmental charges, if any.
The Bonds are issuable only in fully registered form and while in the
Flexible Mode shall be in denominations of $100,000 or any multiple of $1,000
in excess of $100,000.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or its duly appointed agent for such purpose.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK,
WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal) By:
Title:
By:
Title:
Certificate of Authentication
This bond is one of the Bonds described in the Loan and Trust Agreement.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
Date of Registration:
By: , or
Authorized Signature
By: SECURITY PACIFIC NATIONAL TRUST
COMPANY (NEW YORK), as agent of the Trustee
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact to
transfer it on the books kept for registration of the bond, with full power
of substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a national bank, trust company or member
firm of a national stock exchange.
Dated:
Signature Guaranteed:
Bank, Trust Company or Brokerage Firm
By:
Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act (State)
Additional abbreviations may also be used though not set forth in the list
above.
EXHIBIT D
FORM OF WEEKLY 1991 SERIES E BOND
$ No. R-
ANY BONDHOLDER WHO FAILS TO DELIVER A BOND FOR PURCHASE AT THE TIMES AND AT
THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER RIGHTS HEREUNDER EXCEPT THE
RIGHT TO RECEIVE THE PURCHASE PRICE HEREOF UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Revenue Bond
(Public Service Company of New Hampshire
Project - 1991 Taxable Series E)
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST PAYMENT DATES: (i) the first Business Day of each calendar month, and
(ii) the Maturity Date.
MATURITY DATE: May 1, 2021
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
MODE: Weekly
CUSIP:
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Industrial Development Authority of the State of New Hampshire (the
"Authority"), for value received, promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest from the most
recent INTEREST PAYMENT DATE to which interest has been paid or duly provided
for or, if no interest has been paid, from the DATE OF THIS BOND set forth
above, until paid in full, at the rates set forth below, payable on each
INTEREST PAYMENT DATE. Until conversion to the Flexible, Multiannual or
Fixed Rate Mode as provided below, this bond shall bear interest at the
Weekly Rate. The Weekly Rate for this bond shall be the rate of interest
determined by the Remarketing Agent designated as provided in the Agreement
(herein, with its successors, the "Remarketing Agent"), for each Rate Period,
as defined below, to be the lowest rate which in its judgment, on the basis
of prevailing financial market conditions, would permit the sale of the Bonds
(as defined below) in the Weekly Mode at par plus accrued interest on and as
of the Effective Date, as defined below, but not in excess of the Maximum
Interest Rate. If this bond is converted to the Flexible, Multiannual or
Fixed Rate Mode it shall bear interest at the Flexible, Multiannual or Fixed
Rate, as the case may be, as defined in the Agreement. The Remarketing Agent
shall determine the initial Weekly Rate on or before the date of issue in or
of conversion to the Weekly Mode, which rate shall remain in effect as
provided in the Agreement. Thereafter, the Remarketing Agent shall
redetermine the Weekly Rate for each Rate Period as provided below. The
amount of interest due on any INTEREST PAYMENT DATE shall be the amount of
unpaid interest accrued on this bond through the day preceding such INTEREST
PAYMENT DATE.
This bond is one of a series of Pollution Control Revenue Bonds (Public
Service Company of New Hampshire Project - 1991 Taxable Series E) (the
"Bonds") in the aggregate principal amount of $114,500,000 issued under New
Hampshire RSA Chapter 162-I (the "Act"). The proceeds of the Bonds are being
loaned to Public Service Company of New Hampshire (the "Company"), a New
Hampshire corporation, pursuant to a Series E Loan and Trust Agreement (the
"Agreement") dated as of May 1, 1991 among the Company, the Authority and
State Street Bank and Trust Company, as Trustee (the "Trustee") to finance
certain costs associated with the Company's ownership interest in air or
water pollution control and sewage or solid waste disposal facilities
installed for use by Unit No. 1 at the nuclear electric generating station
(the "Station") in Seabrook, New Hampshire (the "Project Facilities").
Pursuant to the Agreement, the Company has unconditionally agreed to repay
such loan in the amounts and at the times necessary to pay the principal of,
premium, if any, and interest on the Bonds when due. To evidence and secure
such loan and the Company's reimbursement and certain other obligations under
the Reimbursement Agreement (as defined below), the Company has issued and
delivered to the Trustee its First Mortgage Bonds, Series G (the "Series G
First Mortgage Bonds") issued under the First Mortgage Indenture dated as of
August 15, 1978, as amended, and the Tenth Supplemental Indenture thereto
dated as of May 1, 1991 between the Company and First Fidelity Bank, National
Association, New Jersey, as Trustee (as amended and supplemented from time to
time, the "First Mortgage Bond Indenture") in an aggregate principal amount,
and with an interest rate, maturity date and redemption provisions
corresponding to those of the Bonds. As provided in the Agreement, payments
of principal of, and premium, if any, and interest on the Series G First
Mortgage Bonds shall, upon receipt by the Trustee, be deemed to constitute
payments in corresponding amounts by the Company in respect of the Bonds.
Reference is hereby made to the Agreement for the provisions thereof with
respect to the rights, limitations of rights, duties, obligations and
immunities of the Company, the Authority, the Trustee, the Paying Agent, and
the Bondowners, including the order of payments in the event of insufficient
funds, the disposition of unclaimed moneys held by the Trustee and
restrictions on the rights of owners of the Bonds to bring suit. The
Agreement may be amended to the extent and in the manner provided therein.
Copies of the Agreement are available for inspection at the corporate trust
office of the Trustee.
The Purchase Price (as defined below) and principal of and interest on this
bond while it is in the Weekly Mode is also payable from moneys drawn by the
Paying Agent on an irrevocable letter of credit for the Bonds (together with
any extensions and renewals thereof, the "Letter of Credit") issued by
pursuant to the terms of a Reimbursement Agreement dated as of
(the "Reimbursement Agreement") by and between the Company and
(together with any other issuer of a Credit Facility, the
"Bank"). The Paying Agent may draw on the Letter of Credit presently in
place for the payment of up to forty-five (45) days' interest for Bonds in
the Weekly Mode. The Letter of Credit initially expires on
, but may be terminated earlier upon the occurrence of certain
events set forth in the Agreement and the Reimbursement Agreement or extended
as provided in the Reimbursement Agreement. Unless the Letter of Credit is
extended or renewed or a substitute letter of credit (collectively with the
Letter of Credit, a "Credit Facility") is provided in accordance with the
Agreement, the Bonds will become subject to mandatory purchase as described
below. The Company may substitute a new Credit Facility as provided in the
Agreement.
In case any Event of Default occurs and is continuing, the principal
amount of this bond together with accrued interest may become or be declared
immediately due and payable in the manner and with the effect provided in the
Agreement.
Unless otherwise defined herein, capitalized terms used in this bond
shall have the meaning given them in the Agreement. The following terms are
defined as follows:
"Business Day" means a day (i) that is not a Sunday or legal holiday or
a day on which banking institutions are authorized pursuant to law to close,
(ii) that is not a day on which the corporate trust office of the First
Mortgage Bond Trustee is not open for business, (iii) that is a day on which
banks are not required or authorized to close in New York, New York, and (iv)
that is a day on which banking institutions in all of the cities in which the
principal offices of the Trustee and the Paying Agent and, if applicable, the
Remarketing Agent and the Bank are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
"Effective Date" means, with respect to a Bond in the Flexible, Weekly
and Multiannual Modes, the date on which a new Rate Period for that Bond
takes effect.
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Flexible Mode, the Weekly Mode, the
Multiannual Mode and the Fixed Rate Mode.
"Purchase Date" means, while this bond is in the Weekly Mode, the date
on which this bond shall be required to be purchased pursuant to a mandatory
or optional tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Flexible, Weekly or Multiannual
Mode, the period during which such rate of interest determined for such Bond
will remain in effect as described herein. While this bond is in the Weekly
Mode, a new interest rate shall take effect on the date such Mode takes
effect and thereafter on each Wednesday.
At the option of the Company and upon certain conditions provided for in
the Agreement described below, all or a portion of the Bonds (a) may be
converted or reconverted from time to time to or from the Weekly Mode or
Multiannual Mode, which means that the Rate Period is, respectively, one week
or one year or any multiple of one year, (b) may be converted or reconverted
from time to time to or from the Flexible Mode, and will have Rate Periods of
from one to 270 days as provided herein, or (c) may be converted to the Fixed
Rate Mode; provided, however, that in the Multiannual Mode the first rate
period occurring after conversion to such Mode may be shorter than the
applicable multiple of one year as provided in the Agreement.
While this bond is in the Weekly Mode, conversions to any other Mode may
take place only on the first Business Day of any calendar month upon thirty
(30) days' prior written notice from the Paying Agent to the REGISTERED OWNER
of this bond. Conversion of this bond to another Mode shall be subject to
the conditions set forth in the Agreement. In the event that the conditions
for a proposed conversion to a new Mode are not met (i) such new Mode shall
not take effect on the proposed conversion date, notwithstanding any prior
notice to the Bondowners of such conversion, (ii) this bond shall
automatically convert to the Flexible Mode with a Rate Period of one day, and
(iii) this bond shall be subject to mandatory tender for purchase as provided
below. In no event shall the failure of this bond to be converted to another
Mode be deemed to be a Default or an Event of Default under the Agreement as
long as the Purchase Price (as defined below) is made available on the failed
conversion date to owners of all Bonds that were to have been converted.
When this bond is in the Weekly Mode, the Weekly Rate in effect for each
Rate Period (the "Effective Rate" for such Period) shall be determined not
later than the Business Day next preceding the Effective Date. If the
Remarketing Agent fails to make such determination or fails to announce the
Effective Rate as required with respect to any Bonds in the Weekly Mode, or
if for any reason such manner of determination shall be determined to be
invalid or unenforceable, the rate on such Bonds to take effect on that
Effective Date shall be the Weekly Rate in effect on the day preceding such
date. The Remarketing Agent shall announce the Effective Rate by telephone
to the Paying Agent on the date of determination thereof, and shall promptly
confirm such notice in writing. While this bond is in the Weekly Mode, any
Bondowner may ascertain the Effective Rate at any time by contacting the
Paying Agent or the Remarketing Agent.
Each determination and redetermination of the Weekly Rate shall be
conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Bank, the Company and the Bondowners.
While this bond is in the Weekly Mode, interest shall be computed on the
basis of a 365- or 366-day year, as appropriate, and actual days elapsed.
From and after the date on which this bond becomes due, any unpaid principal
will bear interest at the then effective interest rate until paid or duly
provided for.
While this bond is in the Weekly Mode the principal of this bond is
payable when due by wire or bank transfer of immediately available funds
within the continental United States to the REGISTERED OWNER hereof but only
upon presentation and surrender of this bond at the office of Security
Pacific National Trust Company (New York) New York, New York, as Paying
Agent, (with its successors in such capacity, the "Paying Agent"). Interest
on this bond while in the Weekly Mode is payable in immediately available
funds by wire or bank transfer within the continental United States from the
Paying Agent to the REGISTERED OWNER, determined as of the close of business
on the applicable record date, at its address as shown on the registration
books maintained by the Paying Agent. The Purchase Price (as defined below)
of Bonds tendered for purchase shall be paid as provided below.
The record date for payment of interest while this bond is in the Weekly
Mode is the Business Day preceding the date on which interest is to be paid.
With respect to overdue interest or interest payable on redemption of this
bond other than on an INTEREST PAYMENT DATE or interest on any overdue
amount, the Trustee may establish a special record date. The special record
date may be not more than thirty (30) days before the date set for payment.
The Paying Agent will mail notice of a special record date to the Bondowners
at least ten (10) days before the special record date. The Paying Agent will
promptly certify to the Authority, the Trustee and the Remarketing Agent that
it has mailed such notice to all Bondowners, and such certificate will be
conclusive evidence that notice was given in the manner required hereby.
While this bond is in the Weekly Mode, the REGISTERED OWNER shall have
the right to tender this bond for purchase in multiples of $100,000 at a
price (the "Purchase Price") equal to 100% of the principal amount thereof,
plus accrued interest, if any, to the Purchase Date, upon compliance with the
conditions described below, provided that if the Purchase Date is an INTEREST
PAYMENT DATE, accrued interest shall be paid separately, and not as part of
the Purchase Price on such date. In order to exercise the right to tender,
the REGISTERED OWNER must deliver to the Paying Agent a written irrevocable
notice of tender substantially in the form of the Bondowner's Election Notice
set forth hereon and satisfactory to the Paying Agent. While this bond is in
the Weekly Mode, it will be purchased on the Business Day specified in such
Bondowner's Election Notice, provided such date is at least seven calendar
days after receipt by the Paying Agent of such notice. If the REGISTERED
OWNER of this bond has elected to require purchase as provided above, the
REGISTERED OWNER shall be deemed, by such election, to have agreed
irrevocably to sell this bond to any purchaser determined in accordance with
the provisions of the Agreement on the date fixed for purchase at the
Purchase Price.
Tender of this bond will not be effective and this bond will not be
purchased if at the time fixed for purchase an acceleration of the maturity
of the Bonds shall have occurred and not have been annulled in accordance
with the Agreement. Notice of tender of this bond is irrevocable. All
notices of tender of Bonds shall be made to the Paying Agent at
, New York, New York, or such other address specified in
writing by the Paying Agent to the Bondowners. All deliveries of tendered
bonds, including deliveries of Bonds subject to mandatory tender, shall be
made to the Paying Agent at , New York, New York, Attention:
, or such other address specified in writing by the Paying
Agent to the Bondowners.
This bond is subject to mandatory tender for purchase at the Purchase
Price (i) on the date of conversion or proposed conversion from one Mode to
another Mode and (ii) on (a) the effective date of a substitute Credit
Facility if such substitution would result in a withdrawal or reduction
(excluding a withdrawal or reduction resulting from a change in Modes) of the
rating of this bond, if any, by either Moody's or S&P or (b) a date that is
not more than fifteen (15) or less than ten (10) days prior to the expiration
or termination of the Credit Facility other than upon conversion to a new
Mode. Notice of mandatory tender shall be given or caused to be given by the
Trustee in writing to the REGISTERED OWNER at least thirty (30) days prior to
the mandatory Purchase Date. THE OWNER OF THIS BOND, BY ACCEPTANCE HEREOF,
AGREES TO SELL AND SURRENDER THIS BOND AT SUCH PRICE TO ANY PURCHASER
DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT IN THE EVENT OF
SUCH MANDATORY TENDER AND, ON SUCH PURCHASE DATE, TO SURRENDER THIS BOND TO
THE PAYING AGENT FOR PAYMENT OF THE PURCHASE PRICE. From and after the
Purchase Date, no further interest on this bond shall be payable to the
REGISTERED OWNER, provided that there are sufficient funds available on the
Effective Date to pay the Purchase Price.
The Purchase Price of this bond shall be paid to the REGISTERED OWNER by
the Paying Agent on the Delivery Date, which shall be the Purchase Date or
any subsequent Business Day on which this bond is delivered to the Paying
Agent. The Purchase Price of this bond shall be paid only upon surrender of
this bond to the Paying Agent as provided herein. From and after the
Purchase Date, no further interest on this bond shall be payable to the
REGISTERED OWNER who gave notice of tender for purchase, provided that there
are sufficient funds available on the Purchase Date to pay the Purchase
Price. The Purchase Price of Bonds tendered for purchase is payable for
Bonds in the Weekly Mode by wire or bank transfer within the continental
United States in immediately available funds from the Paying Agent to the
REGISTERED OWNER at its address shown on the registration books maintained by
the Paying Agent. If on any date this bond is subject to mandatory tender
for purchase or is required to be purchased at the election of the REGISTERED
OWNER, payment of the Purchase Price of this bond to such owner shall be made
on the Purchase Date if presentation and surrender of this bond is made prior
to 11:00 A.M., New York City time, on the Purchase Date or on such later
Business Day upon which presentation and surrender of this bond is made prior
to 11:00 A.M., New York City time.
Bonds in the Weekly Mode are subject to redemption in whole or in part
at the direction of the Company on any INTEREST PAYMENT DATE at a redemption
price of par plus accrued interest.
If less than all of the Outstanding Bonds are to be called for
redemption, the Bonds (or portions thereof) to be redeemed shall be selected
as provided in the Agreement with Bonds in the Weekly Mode being redeemed in
units of $100,000.
In the event this bond is selected for redemption, notice will be mailed
no more than forty-five (45) nor less than thirty (30) days prior to the
redemption date to the REGISTERED OWNER at its address shown on the
registration books maintained by the Paying Agent. Failure to mail notice to
the owner of any other Bond or any defect in the notice to such an owner
shall not affect the redemption of this bond.
If this bond is of a denomination in excess of one hundred thousand
dollars ($100,000), portions of the principal amount in the amount of one
hundred thousand dollars ($100,000) or any multiple thereof may be redeemed.
If less than all of the principal amount is to be redeemed, upon surrender of
this bond to the Paying Agent, there will be issued to the REGISTERED OWNER,
without charge, a new Bond or Bonds, at the option of the REGISTERED OWNER,
for the unredeemed principal amount.
Notice of redemption having been duly mailed, this bond, or the portion
called for redemption, will become due and payable on the redemption date at
the applicable redemption price and, moneys for the redemption having been
deposited with the Paying Agent, from and after the date fixed for
redemption, interest on this bond (or such portion) will no longer accrue.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND (OR PORTION HEREOF)
IS SUBJECT TO PURCHASE OR REDEMPTION, IN EACH CASE UPON NOTICE TO OR FROM THE
OWNER HEREOF AS OF A DATE PRIOR TO SUCH PURCHASE OR REDEMPTION. IN EACH SUCH
EVENT AND UPON DEPOSIT OF THE PURCHASE OR REDEMPTION PRICE WITH THE PAYING
AGENT ON THE PURCHASE OR REDEMPTION DATE, AS THE CASE MAY BE, THIS BOND (OR
PORTION HEREOF) SHALL CEASE TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST
HEREON SHALL CEASE TO ACCRUE AS OF THE PURCHASE OR REDEMPTION DATE, AND THE
REGISTERED OWNER HEREOF SHALL BE ENTITLED ONLY TO RECEIVE THE PURCHASE OR
REDEMPTION PRICE SO DEPOSITED WITH THE PAYING AGENT UPON SURRENDER OF THIS
CERTIFICATE TO THE PAYING AGENT.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds in authorized denominations of the same
aggregate principal amount without transfer to a new registered owner.
Exchanges and transfers will be without expense to the owner except for
applicable taxes or other governmental charges, if any. The Paying Agent
will not be required to make an exchange or transfer of this bond (except in
connection with any optional or mandatory tender of this bond) (i) if this
bond (or any portion thereof) has been selected for redemption or (ii) during
the fifteen (15) days preceding any date fixed for selection for redemption
if this bond (or any portion thereof) is eligible to be selected for
redemption.
The Bonds are issuable only in fully registered form and while in the
Weekly Mode shall be in denominations of $100,000 or any multiple thereof.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or its duly appointed agent for such purpose.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK,
WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal) By:
Title:
By:
Title:
Certificate of Authentication
This bond is one of the Bonds described in the Loan and Trust Agreement.
STATE STREET BANK AND TRUST
COMPANY as Trustee
Date of Registration: By: , or
Authorized Signature
By: SECURITY PACIFIC NATIONAL TRUST
COMPANY (NEW YORK), as agent of
the Trustee
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact
to transfer it on the books kept for registration of the bond, with full
power of substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a national bank, trust company or member
firm of a national stock exchange.
Dated:
Signature Guaranteed:
Bank, Trust Company or Brokerage Firm
By:
Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common Act
(State)
Additional abbreviations may also be used though not set forth in the list
above.
The following is the Bondowner's Election Notice described herein:
BONDOWNER'S ELECTION NOTICE
The Industrial Development Authority of the State of New
Hampshire Pollution Control [Refunding] Revenue Bonds
(Public Service Company of New Hampshire Project - [Year]
[Tax-Exempt Refunding] [Taxable] Series )
Principal Principal Amount Bond Purchase
Amount CUSIP Tendered for Purchase Numbers Date
The undersigned hereby certifies that it is the registered owner of the
Bonds described above (the "Tendered Bonds"), all of which are in the Weekly
Mode, and hereby agrees that the delivery of this instrument of transfer to
the Paying Agent constitutes an irrevocable offer to sell the Tendered Bonds
to the Company or its designee on the Purchase Date, which shall be a
Business Day at least seven (7) calendar days following delivery of this
instrument, at a purchase price equal to the unpaid principal balance thereof
plus accrued and unpaid interest thereon to the Purchase Date (the "Purchase
Price"). The undersigned acknowledges and agrees that this election notice
is irrevocable and that the undersigned will have no further rights with
respect to the Tendered Bonds except payment, upon presentation and surrender
of the Tendered Bonds, of the Purchase Price by payment by wire or bank
transfer within the continental United States from the Paying Agent to the
undersigned at its address as shown on the registration books of the Paying
Agent (i) on the Purchase Date if the Tendered Bonds shall have been
surrendered to the Paying Agent prior to 11:00 A.M., New York City time, on
the Purchase Date or (ii) on any Delivery Date subsequent to the Purchase
Date on which Tendered Bonds are delivered to the Paying Agent by 11:00 A.M.,
New York City time.
Except as otherwise indicated herein and unless the context otherwise
requires, the terms used herein shall have the meanings set forth in the
Series E Loan and Trust Agreement dated as of May 1, 1991 relating to the
Bonds.
Date: Signature(s)
Street City State Zip
IMPORTANT: The above signature(s) must correspond with the name(s) as
set forth on the face of the Tendered Bond(s) with respect to which this
Bondowner's Election Notice is being delivered without any change whatsoever.
If this notice is signed by a person other than the registered owner of any
Tendered Bond(s), the Tendered Bond(s) must be either endorsed on the
Assignment appearing on each Bond or accompanied by appropriate bond powers,
in each case signed exactly as the name or names of the registered owner or
owners appear on the bond register. The method of presenting this notice to
the Paying Agent is the choice of the person making such presentation. If it
is made by mail, it should be by registered mail with return receipt
requested.
EXHIBIT E
FORM OF MULTIANNUAL 1991 SERIES E BOND
$ No. R-
ANY BONDHOLDER WHO FAILS TO DELIVER A BOND FOR PURCHASE AT THE TIMES AND AT
THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER RIGHTS HEREUNDER EXCEPT THE
RIGHT TO RECEIVE THE PURCHASE PRICE HEREOF UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Revenue Bond
(Public Service Company of New Hampshire
Project - 1991 Taxable Series E)
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST PAYMENT DATES: (i) the first day of the sixth full calendar month
after the Mode takes effect and the first day of each sixth calendar month
thereafter, and (ii) the Maturity Date.
CURRENT EFFECTIVE DATE:
INTEREST RATE:
(To Next Purchase Date)
NEXT PURCHASE DATE:
COMMENCEMENT DATE OF RATE PERIOD:
MATURITY DATE: May 1, 2021
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
MODE: Multiannual
CUSIP:
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Industrial Development Authority of the State of New Hampshire (the
"Authority"), for value received, promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest from the most
recent INTEREST PAYMENT DATE to which interest has been paid or duly provided
for or, if no interest has been paid, from the DATE OF THIS BOND set forth
above, until paid in full, at the rates set forth below, payable on each
INTEREST PAYMENT DATE. Until conversion to the Flexible, Weekly or Fixed
Rate as provided below, this bond shall bear interest at the Multiannual
Rate. The Multiannual Rate shall be the rate of interest determined by the
Remarketing Agent designated as provided in the Agreement (herein, with its
successors, the "Remarketing Agent"), for each Rate Period, as defined below,
to be the lowest rate which in its judgment, on the basis of prevailing
financial market conditions, would permit the sale of the Bonds (as defined
below) with the same Rate Period at par plus accrued interest on and as of
the Effective Date, as defined below, but if the Bonds are supported by a
Credit Facility (as defined below) not in excess of the Maximum Interest
Rate. If this bond is converted to the Flexible, Weekly, or Fixed Rate Mode
it shall bear interest at the Flexible, Weekly or Fixed Rate, as the case may
be, as defined in the Agreement. The Remarketing Agent shall determine the
initial Multiannual Rate on or before the date of issue in or of conversion
to the Multiannual Mode, which rate shall remain in effect as provided in the
Agreement. Thereafter, the Remarketing Agent shall redetermine the
Multiannual Rate for each Rate Period as provided below. If any payment,
redemption or maturity date for principal, premium or interest shall not be a
Business Day, then the payment thereof may be made on the next succeeding
Business Day with the same force and effect as if made on the specified
payment date and no interest shall accrue for the period after the specified
payment date.
This bond is one of a series of Pollution Control Revenue Bonds (Public
Service Company of New Hampshire Project - 1991 Taxable Series E) (the
"Bonds") in the aggregate principal amount of $114,500,000 issued under New
Hampshire RSA Chapter 162-I (the "Act"). The proceeds of the Bonds are being
loaned to Public Service Company of New Hampshire (the "Company"), a New
Hampshire corporation, pursuant to a Series E Loan and Trust Agreement (the
"Agreement") dated as of May 1, 1991 among the Company, the Authority and
State Street Bank and Trust Company, as Trustee (the "Trustee") to finance
certain costs associated with the Company's ownership interest in air or
water pollution control and sewage or solid waste disposal facilities
installed for use by Unit No. 1 at the nuclear electric generating station
(the "Station") in Seabrook, New Hampshire (the "Project Facilities").
Pursuant to the Agreement, the Company has unconditionally agreed to repay
such loan in the amounts and at the times necessary to pay the principal of,
premium, if any, and interest on the Bonds when due. To evidence and secure
such loan and the Company's reimbursement and certain other obligations, if
any, under the Reimbursement Agreement, (as defined [below] [in the
Agreement]), the Company has issued and delivered to the Trustee its First
Mortgage Bonds, Series G (the "Series G First Mortgage Bonds") issued under
the First Mortgage Indenture dated as of August 15, 1978, as amended, and the
Tenth Supplemental Indenture thereto dated as of May 1, 1991 between the
Company and First Fidelity Bank, National Association, New Jersey, as Trustee
(as amended and supplemented from time to time, the "First Mortgage Bond
Indenture") in an aggregate principal amount, and with an interest rate,
maturity date and redemption provisions corresponding to those of the Bonds.
As provided in the Agreement, payments of principal of, and premium, if any,
and interest on the Series G First Mortgage Bonds shall, upon receipt by the
Trustee, be deemed to constitute payments in corresponding amounts by the
Company in respect of the Bonds. Reference is hereby made to the Agreement
for the provisions thereof with respect to the rights, limitations of rights,
duties, obligations and immunities of the Company, the Authority, the
Trustee, the Paying Agent, and the Bondowners, including the order of
payments in the event of insufficient funds, the disposition of unclaimed
moneys held by the Trustee and restrictions on the rights of owners of the
Bonds to bring suit. The Agreement may be amended to the extent and in the
manner provided therein. Copies of the Agreement are available for
inspection at the corporate trust office of the Trustee.
[Modify as appropriate; delete if bond is not supported by a Credit
Facility: The Purchase Price (as defined below) and principal of, premium,
if any, and interest on this bond while it is in the Multiannual Mode is also
payable from moneys drawn by the Paying Agent on an irrevocable letter of
credit for the Bonds (together with any extensions and renewals thereof, the
"Letter of Credit") issued by pursuant to the terms of
a Reimbursement Agreement dated as of , (the "Reimbursement
Agreement") by and between the Company and (together with any
other issuer of a Credit Facility, the "Bank"). The Paying Agent may draw on
the Letter of Credit presently in place for the payment of up to 190 days'
interest for Bonds in the Multiannual Mode. The Letter of Credit initially
expires on , but may be terminated earlier upon the occurrence of
certain events set forth in the Agreement and the Reimbursement Agreement or
extended as provided in the Reimbursement Agreement. Unless the Letter of
Credit is extended or renewed or a substitute letter of credit (collectively
with the Letter of Credit, a "Credit Facility") is provided in accordance
with the Agreement, the Bonds will become subject to mandatory purchase as
described below. The Company may substitute a new Credit Facility as
provided in the Agreement.]
In case any Event of Default occurs and is continuing, the principal
amount of this bond together with accrued interest may become or be declared
immediately due and payable in the manner and with the effect provided in the
Agreement.
Unless otherwise defined herein, capitalized terms used in this bond
shall have the meaning given them in the Agreement. The following terms are
defined as follows:
"Business Day" means a day (i) that is not a Sunday or legal holiday or
a day on which banking institutions are authorized pursuant to law to close,
(ii) that is not a day on which the corporate trust office of the First
Mortgage Bond Trustee is not open for business, (iii) that is a day on which
banks are not required or authorized to close in New York, New York, and (iv)
that is a day on which banking institutions in all of the cities in which the
principal offices of the Trustee and the Paying Agent and, if applicable, the
Remarketing Agent and the Bank are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
"Effective Date" means, with respect to a Bond in the Flexible, Weekly
and Multiannual Modes, the date on which a new Rate Period for that Bond
takes effect.
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Flexible Mode, the Weekly Mode, the
Multiannual Mode and the Fixed Rate Mode.
"Purchase Date" means, while this bond is in a Multiannual Mode, the
date on which this bond shall be required to be purchased pursuant to a
mandatory tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Flexible, Weekly or Multiannual
Mode, the period during which such rate of interest determined for such Bond
will remain in effect as described herein.
At the option of the Company and upon certain conditions provided for in
the Agreement described below, all or a portion of the Bonds (a) may be
converted or reconverted from time to time to or from the Weekly Mode or
Multiannual Mode, which means that the Rate Period is, respectively, one week
or one year or any multiple of one year, (b) may be converted or reconverted
from time to time to or from the Flexible Mode, and will have Rate Periods of
from one to 270 days as provided herein, or (c) may be converted to the Fixed
Rate Mode; provided, however, that in the Multiannual Mode the first rate
period occurring after conversion to such Mode may be shorter or longer than
the applicable multiple of one year as provided in the Agreement. While this
bond is in the Multiannual Mode, a new interest rate shall take effect on the
date such Mode takes effect and thereafter on the INTEREST PAYMENT DATE
ending the Rate Period designated by the Company.
While this bond is in the Multiannual Mode, conversions to any other
Mode, or conversions to new Rate Periods of the same or different lengths
while in the Multiannual Mode, may take place only on a date which would have
been an Effective Date for this bond, or if conversion is to the Flexible or
Weekly Mode and such day is not a Business Day, the first Business Day
thereafter. Conversion of this bond to another Mode, or to a new Rate Period
in the Multiannual Mode of the same or a different length, shall be subject
to the conditions set forth in the Agreement. In the event that the
conditions for a proposed conversion to a new Mode, or to a new Rate Period
in the Multiannual Mode of the same or different length, are not met (i) such
new Mode or Rate Period shall not take effect on the proposed conversion
date, notwithstanding any prior notice to the Bondowners of such conversion
and (ii) this bond shall automatically convert to the Flexible Mode with a
Rate Period of one day. In no event shall the failure of this bond to be
converted to another Mode or Rate Period be deemed to be a Default or an
Event of Default under the Agreement as long as the Purchase Price (as
defined below) is made available on the failed conversion date to owners of
all Bonds that were to have been converted.
When this bond is in any Multiannual Mode, the Multiannual Rate in
effect for each Rate Period (the "Effective Rate" for such Period) shall be
determined not later than two (2) Business Days prior to the Effective Date.
If the Remarketing Agent fails to make such determination or fails to
announce the Effective Rate as required with respect to any Bonds in the
Multiannual Mode, or if for any reason such manner of determination shall be
determined to be invalid or unenforceable, the rate to take effect on any
Effective Date shall be automatically converted to the Flexible Mode with a
Rate Period of one day. The Remarketing Agent shall announce the Effective
Rate by telephone to the Paying Agent on the date of determination thereof,
and shall promptly confirm such notice in writing.
Each determination and redetermination of the Multiannual Rate shall be
conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Company, the Bondowners and, if applicable, the Bank.
While this bond is in the Multiannual Mode, interest shall be computed
on the basis of a 360-day year consisting of twelve 30-day months. From and
after the date on which this bond becomes due, any unpaid principal will bear
interest at the then effective interest rate until paid or duly provided for.
While this bond is in the Multiannual Mode, the principal of and
premium, if any, on this bond are payable when due by check or draft in
clearinghouse funds to the REGISTERED OWNER hereof but only upon presentation
and surrender of this bond at the office of Security Pacific National Trust
Company (New York), New York, New York, as Paying Agent, (with its successors
in such capacity, the "Paying Agent"). Interest on this bond while in the
Multiannual Mode is payable by check or draft in clearinghouse funds mailed
on the applicable payment date by the Paying Agent to the REGISTERED OWNER,
determined as of the close of business on the applicable record date, at its
address as shown on the registration books. The Purchase Price (as defined
below) of Bonds tendered for purchase shall be paid as provided below.
The record date for payment of interest while this bond is in the
Multiannual Mode is the fifteenth day of the month immediately preceding the
date on which the interest is to be paid, provided that with respect to
overdue interest or interest payable on redemption of this bond other than on
an INTEREST PAYMENT DATE or interest on any overdue amount, the Trustee may
establish a special record date. The special record date may be not more
than thirty (30) days before the date set for payment. The Paying Agent will
mail notice of a special record date to the Bondowners at least ten (10) days
before the special record date. The Paying Agent will promptly certify to
the Authority, the Trustee and the Remarketing Agent that it has mailed such
notice to all Bondowners, and such certificate will be conclusive evidence
that notice was given in the manner required hereby.
While this bond is in the Multiannual Mode, this bond is subject to
mandatory tender for purchase at a price (the "Purchase Price") equal to 100%
of the principal amount thereof, plus accrued interest, if any, on each
Effective Date. THE OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL
AND SURRENDER THIS BOND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
AND, ON THE PURCHASE DATE, TO SURRENDER THIS BOND TO THE PAYING AGENT FOR
PAYMENT OF THE PURCHASE PRICE. UPON DEPOSIT OF THE PURCHASE PRICE WITH THE
PAYING AGENT ON THE PURCHASE DATE, THIS BOND SHALL BE DEEMED TENDERED FOR
PURCHASE AND SHALL CEASE TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST
HEREON SHALL CEASE TO ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED
OWNER HEREOF SHALL BE ENTITLED ONLY TO RECEIVE THE PURCHASE PRICE SO
DEPOSITED WITH THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE TO THE
PAYING AGENT. All deliveries of tendered Bonds, including deliveries of
Bonds subject to mandatory tender, shall be made to the Paying Agent at
, New York, New York, Attention: , or such other
address specified in writing by the Paying Agent to the Bondowners.
The Purchase Price of this bond shall be paid to the REGISTERED OWNER by
the Paying Agent on the Delivery Date, which shall be the Purchase Date or
any subsequent Business Day on which this bond is delivered to the Paying
Agent. The Purchase Price of this bond shall be paid only upon surrender of
this bond to the Paying Agent as provided herein. From and after the
Purchase Date, no further interest on this bond shall be payable to the
REGISTERED OWNER who gave notice of tender for purchase, provided that there
are sufficient funds available on the Purchase Date to pay the Purchase
Price. The Purchase Price of Bonds tendered for purchase is payable for
Bonds in the Multiannual Mode by check or draft in clearinghouse funds from
the Paying Agent to the REGISTERED OWNER at its address shown on the
registration books maintained by the Paying Agent. If on any date this bond
is subject to mandatory tender for purchase, payment of the Purchase Price of
this bond to such owner shall be made on the Purchase Date if presentation
and surrender of this bond is made prior to 11:00 A.M., New York City time,
on the Purchase Date or on such later Business Day upon which presentation
and surrender of this bond is made prior to 11:00 A.M., New York City time.
In the Multiannual Mode and after the expiration of the applicable No
Call Period (measured from the COMMENCEMENT DATE OF RATE PERIOD) set forth in
the following schedule, the Bonds shall be subject to redemption at the
direction of the Company in whole or in part at any time at the following
redemption prices expressed as a percentage of the principal amount redeemed,
plus interest accrued to the redemption date:
[No call periods and redemption prices are to be determined by the
Company upon conversion to the Multiannual Mode or change of Rate Period
within the Multiannual Mode, except that upon the issuance of a series of
Tax-Exempt Refunding Bonds all redemption terms for such series of Bonds
shall be fixed.]
[1991 Series E Bonds:
Redemption
No Call Period Price
years %, declining by % on each succeeding anniversary
of the end of the No Call Period until reaching 100% and thereafter at 100%]
[Tax-Exempt Refunding Bonds:
Length of
Multiannual Redemption
Rate Period No Call Period Price
Greater than years years %, declining by % on
each succeeding anniversary of the end of the no call period until
reaching 100% and thereafter at 100%
Greater than , but not years %, declining by greater than
years
% on each succeeding anniversary of the end
of the no call period until reaching 100% and thereafter at 100%
Greater than , but not years %, declining by greater than
years
% on the next anniversary of the end of the no call period and thereafter at
100%
Greater than , but not years %, declining greater than
years
by % on the next anniversary of the end of the no call period
and thereafter at 100%
Greater than ___, but not years %, declining greater than
years
by % on the next anniversary of the end of
the no call period and thereafter at 100%
Greater than , but not year 100%
greater than years
1 year or less Bonds not subject to
optional redemption
until commencement of
next Rate Period.]
In addition, at the option of the Company, the Bonds in the Multiannual
Mode are subject to redemption prior to maturity as a whole at any time at
100% of the principal amount thereof, plus accrued interest to the redemption
date, within nine (9) months of the occurrence of certain extraordinary
events consisting of (a) damage or destruction, or loss of title by eminent
domain, to the Station or the Project Facilities, (b) changes in law
affecting the enforceability of the Agreement or imposing unreasonable
burdens or excessive liabilities on the Company relating to the Station or
the Project Facilities or their operation, (c) the enjoining or prohibiting
of the operation of the Station or the Project Facilities, or (d) changes in
the economic availability of fuel, materials, supplies, labor, equipment or
other properties or things rendering the continued operation of the Station
uneconomical, all as more fully described in the Agreement. The Company's
right to direct the redemption of the Bonds in the Multiannual Mode upon the
occurrence of any event listed above shall expire six (6) months after such
event occurs.
If less than all of the outstanding Bonds are to be called for
redemption, the Bonds (or portions thereof) to be redeemed shall be selected
as provided in the Agreement with Bonds in the Multiannual Mode being
redeemed in units of $5,000.
In the event this bond is selected for redemption, notice will be mailed
no more than forty-five (45) nor less than thirty (30) days prior to the
redemption date to the REGISTERED OWNER at its address shown on the
registration books maintained by the Paying Agent. Failure to mail notice to
the owner of any other Bond or any defect in the notice to such an owner
shall not affect the redemption of this bond.
If this bond is of a denomination in excess of five thousand dollars
($5,000), portions of the principal amount in the amount of five thousand
dollars ($5,000) or any multiple thereof may be redeemed. If less than all
of the principal amount is to be redeemed, upon surrender of this bond to the
Paying Agent, there will be issued to the REGISTERED OWNER, without charge, a
new Bond or Bonds, at the option of the REGISTERED OWNER, for the unredeemed
principal amount.
Notice of redemption having been duly mailed, this bond, or the portion
called for redemption, will become due and payable on the redemption date at
the applicable redemption price and, moneys for the redemption having been
deposited with the Paying Agent, from and after the date fixed for
redemption, interest on this bond (or such portion) will no longer accrue.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND (OR PORTION HEREOF)
IS SUBJECT TO PURCHASE OR REDEMPTION. IN EACH SUCH EVENT AND UPON DEPOSIT OF
THE PURCHASE OR REDEMPTION PRICE WITH THE PAYING AGENT ON THE PURCHASE OR
REDEMPTION DATE, AS THE CASE MAY BE, THIS BOND (OR PORTION HEREOF) SHALL
CEASE TO BE DEEMED TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST HEREON
SHALL CEASE TO ACCRUE AS OF THE PURCHASE OR REDEMPTION DATE, AND THE
REGISTERED OWNER HEREOF SHALL BE ENTITLED ONLY TO RECEIVE THE PURCHASE OR
REDEMPTION PRICE SO DEPOSITED WITH THE PAYING AGENT ONLY UPON SURRENDER OF
THIS CERTIFICATE TO THE PAYING AGENT.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds in authorized denominations of the same
aggregate principal amount without transfer to a new registered owner.
Exchanges and transfers will be without expense to the owner except for
applicable taxes or other governmental charges, if any. The Paying Agent
will not be required to make an exchange or transfer of this bond (except in
connection with any optional or mandatory tender of this bond) (i) if this
bond (or any portion thereof) has been selected for redemption or (ii) during
the fifteen (15) days preceding any date fixed for selection for redemption
if this bond (or any portion thereof) is eligible to be selected for
redemption.
The Bonds are issuable only in fully registered form in denominations of
five thousand dollars ($5,000) or any multiple thereof.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or its duly appointed agent for such purpose.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK,
WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal) By:
Title:
By:
Title:
Certificate of Authentication
This bond is one of the Bonds described in the Loan and Trust Agreement.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
Date of Registration: By: , or
Authorized Signature
By: SECURITY PACIFIC NATIONAL TRUST
COMPANY (NEW YORK), as agent of
the Trustee
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact to
transfer it on the books kept for registration of the bond, with full power
of substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a national bank, trust company or member
firm of a national stock exchange.
Dated:
Signature Guaranteed:
Bank, Trust Company or Brokerage Firm
By:
Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common Act
(State)
Additional abbreviations may also be used though not set forth in the list
above.
EXHIBIT F
FORM OF FIXED RATE 1991 SERIES E BOND
$ No. R-
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Revenue Bond
(Public Service Company of New Hampshire
Project - 1991 Taxable Series E)
INTEREST RATE: CUSIP:
MATURITY DATE: May 1, 2021
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
INTEREST PAYMENT DATES: May 1 and November 1
(but not before
, )
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Industrial Development Authority of the State of New Hampshire (the
"Authority"), for value received promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest (computed on the
basis of a 360-day year consisting of twelve 30-day months) from the most
recent INTEREST PAYMENT DATE to which interest has been paid or duly provided
for or, if no interest has been paid, from the DATE OF THIS BOND, at the
INTEREST RATE per annum, payable semiannually on the INTEREST PAYMENT DATES,
until the date on which this bond becomes due, whether at maturity or by
acceleration or redemption. From and after that date, any unpaid principal
will bear interest at the same rate until paid or duly provided for. The
principal and premium, if any, of this bond is payable in clearinghouse funds
at the office of , as Paying Agent (with its
successors, the "Paying Agent"). Interest is payable by check or draft in
clearinghouse funds mailed by the Paying Agent to the REGISTERED OWNER of
this bond (or of one or more predecessor or successor Bonds (as defined
below)), determined as of the close of business on the applicable record
date, at its address as shown on the registration books maintained by the
Paying Agent. If any payment, redemption or maturity date for principal,
premium or interest shall be (i) a Sunday or a legal holiday, or (ii) a day
on which banking institutions are authorized pursuant to law to close and on
which the corporate trust office of the Trustee or the First Mortgage Bond
Trustee is not open for business, then the payment thereof may be made on the
next succeeding day not a day specified in (i) or (ii) with the same force
and effect as if made on the specified payment date and no interest shall
accrue for the period after the specified payment date.
The record date for payment of interest is the fifteenth day of the
month preceding the date on which the interest is to be paid, provided that,
with respect to overdue interest or interest payable on redemption of this
bond other than on an INTEREST PAYMENT DATE or interest on any overdue
amount, the Trustee (as defined below) may establish a special record date.
The special record date may be not more than thirty (30) days before the date
set for payment. The Paying Agent will mail notice of a special record date
to the registered owners of the Bonds (the "Bondowners") at least ten (10)
days before the special record date. The Paying Agent will promptly certify
to the Authority and the Trustee that it has mailed such notice to all
Bondowners, and such certificate will be conclusive evidence that such notice
was given in the manner required hereby.
This bond is one of a series of Pollution Control Revenue Bonds (Public
Service Company of New Hampshire Project - 1991 Taxable Series E) (the
"Bonds") in the aggregate principal amount of $114,500,000 issued under New
Hampshire RSA Chapter 162-I (the "Act"). The proceeds of the Bonds are being
loaned to Public Service Company of New Hampshire (the "Company"), a New
Hampshire corporation, pursuant to a Series E Loan and Trust Agreement (the
"Agreement") dated as of May 1, 1991 among the Company, the Authority and
State Street Bank and Trust Company, as Trustee (the "Trustee") to finance
certain costs associated with the Company's ownership interest in air or
water pollution control and sewage or solid waste disposal facilities
installed for use by Unit No. 1 at the nuclear electric generating station
(the "Station") in Seabrook, New Hampshire (the "Project Facilities").
Pursuant to the Agreement, the Company has unconditionally agreed to repay
such loan in the amounts and at the times necessary to pay the principal of,
premium, if any, and interest on the Bonds when due. To evidence and secure
such loan and the Company's reimbursement and certain other obligations, if
any, under the Reimbursement Agreement (as defined in the Agreement), the
Company has issued and delivered to the Trustee its First Mortgage Bonds,
Series G (the "Series G First Mortgage Bonds") issued under the First
Mortgage Indenture dated as of August 15, 1978, as amended, and the Tenth
Supplemental Indenture thereto dated as of May 1, 1991 between the Company
and First Fidelity Bank, National Association, New Jersey, as Trustee (as
amended and supplemented from time to time, the "First Mortgage Bond
Indenture") in an aggregate principal amount, and with an interest rate,
maturity date and redemption provisions corresponding to those of the Bonds.
As provided in the Agreement, payments of principal of, and premium, if any,
and interest on the Series G First Mortgage Bonds shall, upon receipt by the
Trustee, be deemed to constitute payments in corresponding amounts by the
Company in respect of the Bonds. Reference is hereby made to the Agreement
for the provisions thereof with respect to the rights, limitations of rights,
duties, obligations and immunities of the Company, the Authority, the
Trustee, the Paying Agent, and the Bondowners, including the order of
payments in the event of insufficient funds, the disposition of unclaimed
moneys held by the Trustee and restrictions on the rights of owners of the
Bonds to bring suit. The Agreement may be amended to the extent and in the
manner provided therein. Copies of the Agreement are available for
inspection at the corporate trust office of the Trustee.
In case any Event of Default (as defined in the Agreement) occurs and is
continuing, the principal amount of this bond together with accrued interest
may be declared due and payable in the manner and with the effect provided in
the Agreement.
The Bonds are redeemable pursuant to the Agreement prior to maturity
beginning on , , at the option of the Authority by direction of
the Company, as a whole or in part at any time, at the following prices
expressed in percentages of their principal amount, plus accrued interest to
the redemption date:
Period During Which Redeemed Redemption Price
%
[Table to be prepared upon Fixed Rate conversion. For Tax-Exempt Refunding
Bonds, the table shall be based on redemption schedule established for the
bond in the Multiannual Mode.]
In addition, at the option of the Company, this bond is subject to
redemption prior to maturity at 100% of the principal amount thereof, plus
accrued interest to the redemption date within nine (9) months of the
occurrence of certain extraordinary events consisting of (a) damage or
destruction, or loss of title by eminent domain, to the Station or the
Project Facilities, (b) changes in law affecting the enforceability of the
Agreement or imposing unreasonable burdens or excessive liabilities on the
Company relating to the Station or the Project Facilities or their operation,
(c) the enjoining or prohibiting of the operation of the Station or the
Project Facilities, or (d) changes in the economic availability of fuel,
materials, supplies, labor, equipment or other properties or things rendering
the continued operation of the Station uneconomical, all as more fully
described in the Agreement. The Company's right to direct the redemption of
this bond upon the occurrence of any event listed above shall expire six (6)
months after such event occurs.
If less than all of the outstanding Bonds are to be called for
redemption, the Bonds (or portions thereof) to be redeemed shall be selected
as provided in the Agreement.
In the event this bond is selected for redemption, notice will be mailed
no more than forty-five (45) nor less than thirty (30) days prior to the
redemption date to the REGISTERED OWNER at its address shown on the
registration books maintained by the Paying Agent. Failure to mail notice to
the owner of any other Bond or any defect in the notice to such an owner
shall not affect the redemption of this bond.
If this bond is of a denomination in excess of five thousand dollars
($5,000), portions of the principal amount in the amount of five thousand
dollars ($5,000) or any multiple thereof may be redeemed. If less than all
of the principal amount is to be redeemed, upon surrender of this bond to the
Paying Agent, there will be issued to the REGISTERED OWNER, without charge, a
new Bond or Bonds, at the option of the REGISTERED OWNER, for the unredeemed
principal amount.
Notice of redemption having been duly mailed, this bond, or the portion
called for redemption, will become due and payable on the redemption date at
the applicable redemption price and, moneys for the redemption having been
deposited with the Paying Agent, from and after the date fixed for
redemption, interest on this bond (or such portion) will no longer accrue.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this Bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds of the same aggregate principal amount without
transfer to a new registered owner. Exchanges and transfers will be without
expense to the holder except for applicable taxes or other governmental
charges, if any. The Paying Agent will not be required to make an exchange
or transfer of this bond during the fifteen (15) days preceding any date
fixed for selection for redemption if this bond (or any part thereof) is
eligible to be selected or has been selected for the redemption.
This bond is issuable only in fully registered form in the denominations
of five thousand dollars ($5,000) or any multiple thereof.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or its duly appointed agent for such purpose.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK,
WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal)
By:
Title:
By:
Title:
Certificate of Authentication
This bond is one of the Bonds described in the Loan and Trust Agreement.
STATE STREET BANK AND TRUST COMPANY
as Trustee
Date of Registration: By: , or
Authorized Signature
By: , as agent of the Trustee
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact to
transfer it on the books kept for registration of the bond, with full power
of substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a national bank, trust company or member
firm of a national stock exchange.
Dated:
Signature Guaranteed:
Bank, Trust Company or Brokerage Firm
By:
Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common Act
(State)
Additional abbreviations may also be used though not set forth in the list
above.
EXHIBIT G
FORM OF FLEXIBLE 1993 SERIES E BOND
$ No. R-
ANY BONDOWNER WHO FAILS TO DELIVER A BOND FOR PURCHASE AT THE TIMES AND AT
THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER RIGHTS HEREUNDER EXCEPT THE
RIGHT TO RECEIVE THE PURCHASE PRICE HEREOF UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Refunding Revenue Bond
(Public Service Company of New Hampshire
Project - 1993 Tax-Exempt Series E)
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST DUE: $
(on the Next Purchase Date)
INTEREST RATE:
(to the Next Purchase Date)
NEXT PURCHASE DATE:
COMMENCEMENT DATE OF RATE PERIOD:
MATURITY DATE: May 1, 2021
CUSIP:
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
MODE: Flexible
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Business Finance Authority of the State of New Hampshire (the
"Authority"), for value received, promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest from the most
recent Interest Payment Date, as defined below, to which interest has been
paid or duly provided for or, if no interest has been paid, from the DATE OF
THIS BOND set forth above, until paid in full, at the rates set forth below,
payable on each Interest Payment Date. So long as this bond is in the
Flexible Mode, interest shall be due on this bond on each Purchase Date (as
defined below) and on the MATURITY DATE, and when this bond is in any other
Mode interest shall be due on the dates provided in the Agreement (the
"Interest Payment Dates"). Until conversion to the Weekly, Multiannual or
Fixed Rate Mode as provided below, this bond shall bear interest at the
Flexible Rate. The Flexible Rate for this bond shall be the rate of interest
determined by the Remarketing Agent designated as provided in the Agreement
(herein, with its successors, the "Remarketing Agent"), for each Rate Period,
as defined below, to be the lowest rate which in its judgment, on the basis
of prevailing financial market conditions, is necessary on and as of the
Effective Date, as defined below, to remarket each Bond having such Rate
Period in a secondary market transaction at a price equal to the principal
amount thereof, but not in excess of the Maximum Interest Rate. If this bond
is converted to the Weekly, Multiannual or Fixed Rate Mode it shall bear
interest at the Weekly, Multiannual or Fixed Rate, as the case may be, as
defined in the Agreement. The Remarketing Agent shall determine the initial
Flexible Rate on or before the date of issue in or of conversion to the
Flexible Mode, which rate shall remain in effect as provided in the
Agreement. Thereafter, the Remarketing Agent shall redetermine the Flexible
Rate for each Rate Period as provided below. The amount of interest due on
any Interest Payment Date shall be the amount of unpaid interest accrued on
this bond through the day preceding such Interest Payment Date or, if such
Interest Payment Date is not a Business Day, through the day preceding the
first Business Day succeeding such Interest Payment Date.
This bond is one of a series of Pollution Control Refunding Revenue
Bonds (Public Service Company of New Hampshire Project - 1993 Tax-Exempt
Series E) (the "Bonds") in the aggregate principal amount of $44,800,000
issued under New Hampshire RSA Chapter 162-I (the "Act"). The proceeds of
the Bonds are being loaned to Public Service Company of New Hampshire (the
"Company"), a New Hampshire corporation, pursuant to a Series E Loan and
Trust Agreement dated as of May 1, 1991, as supplemented and amended by a
First Supplement dated as of December 1, 1993 (the "Agreement") among the
Company, the Authority and State Street Bank and Trust Company, as Trustee
(the "Trustee") to refund a like principal amount of the Authority's
$114,500,000 Pollution Control Revenue Bonds (Public Service Company of New
Hampshire Project - 1991 Taxable Series E) (the "1991 Bonds"), which were
originally issued to finance certain costs associated with the Company's
ownership interest in air or water pollution control and sewage or solid
waste disposal facilities installed for use by Unit No.1 at the nuclear
electric generating station (the "Station") in Seabrook, New Hampshire (the
"Project Facilities"). Pursuant to the Agreement, the Company has
unconditionally agreed to repay such loan in the amounts and at the times
necessary to pay the principal of, premium, if any, and interest on the Bonds
when due. To evidence and secure such loan and the Company's reimbursement
and certain other obligations under the Reimbursement Agreement (as defined
below), the Company has issued and delivered to the Trustee its First
Mortgage Bonds, Series G (the "Series G First Mortgage Bonds") issued under
the First Mortgage Indenture dated as of August 15, 1978, as amended, and the
Tenth Supplemental Indenture thereto dated as of May 1, 1991 between the
Company and First Fidelity Bank, National Association, New Jersey, as Trustee
(as amended and supplemented from time to time, the "First Mortgage Bond
Indenture") in an aggregate principal amount, and with an interest rate,
maturity date and redemption provisions corresponding to those of the Bonds
and certain other bonds issued under the Agreement, including the 1991 Bonds.
As provided in the Agreement, payments of principal of, and premium, if any,
and interest on the Series G First Mortgage Bonds shall, upon receipt by the
Trustee, be deemed to constitute payments in corresponding amounts by the
Company in respect of the Bonds and certain other bonds issued under the
Agreement, including the 1991 Bonds. Reference is hereby made to the
Agreement for the provisions thereof with respect to the rights, limitations
of rights, duties, obligations and immunities of the Company, the Authority,
the Trustee, the Paying Agent, and the Bondowners, including the order of
payments in the event of insufficient funds, the disposition of unclaimed
moneys held by the Trustee and restrictions on the rights of owners of the
Bonds to bring suit. The Agreement may be amended to the extent and in the
manner provided therein. Copies of the Agreement are available for
inspection at the corporate trust office of the Trustee.
The Purchase Price (as defined below) and principal of and interest on
this bond while it is in the Flexible Mode is also payable from moneys drawn
by the Paying Agent on an irrevocable letter of credit for the Bonds and
certain other bonds issued under the Agreement, including the 1991 Bonds
(together with any extensions, amendments and renewals thereof, the "Letter
of Credit"), issued by , pursuant to the terms of a
Reimbursement Agreement dated as of (the "Reimbursement
Agreement") by and between the Company and
(together with any other issuer of a Credit Facility, the "Bank"). The
Letter of Credit initially expires on but may be terminated
earlier upon the occurrence of certain events set forth in the Agreement and
the Reimbursement Agreement or extended as provided in the Reimbursement
Agreement. The Company may substitute the Letter of Credit in whole or in
part with one or more new letters of credit (collectively with the Letter of
Credit, a "Credit Facility") as provided in the Agreement and the
Reimbursement Agreement. The Company may substitute a new Credit Facility as
provided in the Agreement.
Unless otherwise defined herein, capitalized terms used in this bond
shall have the meaning given them in the Agreement. The following terms are
defined as follows:
"Business Day" means a day (i) that is not a Sunday or legal holiday or
a day on which banking institutions are authorized pursuant to law to close,
(ii) that is not a day on which the corporate trust office of the First
Mortgage Bond Trustee is not open for business, (iii) that is a day on which
banks are not required or authorized to close in New York, New York, and (iv)
that is a day on which banking institutions in all of the cities in which the
principal offices of the Trustee and the Paying Agent and, if applicable, the
Remarketing Agent and the Bank are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
"Effective Date" means, with respect to a Bond in the Flexible, Weekly
and Multiannual Modes, the date on which a new Rate Period for that Bond
takes effect.
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Flexible Mode, the Weekly Mode, the
Multiannual Mode and the Fixed Rate Mode.
"Purchase Date" means, while this bond is in the Flexible Mode, the date
on which this bond shall be required to be purchased pursuant to a mandatory
tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Flexible, Weekly or Multiannual
Mode, the period during which such rate of interest determined for such Bond
will remain in effect as described herein.
At the option of the Company and upon certain conditions provided for in
the Agreement described below, all or a portion of the Bonds (a) may be
converted or reconverted from time to time to or from the Weekly Mode or
Multiannual Mode, which means that the Rate Period is, respectively, one week
or one year or any multiple of one year, (b) may be converted or reconverted
from time to time to or from the Flexible Mode, and will have Rate Periods of
from one to 270 days as provided herein, or (c) may be converted to the Fixed
Rate Mode; provided, however, that in the Multiannual Mode the first rate
period occurring after conversion to such Mode may be shorter than the
applicable multiple of one year as provided in the Agreement. While this
bond is in the Flexible Mode, a new interest rate shall take effect on the
date such Mode takes effect, and on the Effective Date of the next Flexible
Rate Period, as defined herein, applicable to this bond.
While this bond is in the Flexible Mode, conversions to any other Mode
may take place only on an Effective Date. Conversion of this bond to another
Mode shall be subject to certain conditions set forth in the Agreement. In
the event that the conditions for a proposed conversion to a new Mode are not
met (i) such new Mode shall not take effect on the proposed conversion date,
notwithstanding any prior notice to the Bondowners of such conversion and
(ii) this bond shall remain in the Flexible Mode with a Rate Period of one
day. In no event shall the failure of this bond to be converted to another
Mode be deemed to be a Default or an Event of Default under the Agreement as
long as the Purchase Price (as defined below) is made available on the failed
conversion date to owners of all Bonds that were to have been converted.
While Bonds bear interest at Flexible Rates, the interest rate for each
particular Bond in the Flexible Mode will be determined by the Remarketing
Agent and will remain in effect from and including the Effective Date of the
Rate Period selected for that Bond by the Remarketing Agent through the last
date thereof. While the Bonds are in the Flexible Mode, Bonds may have
successive Rate Periods of any duration up to 270 days each and ending on a
Business Day and any Bond may bear interest at a rate and for a period
different from any other Bond.
In the event that the Remarketing Agent no longer determines, or fails
to determine when required, any Rate Period or any Flexible Rate for any
Bonds, or if for any reason such manner of determination shall be determined
to be invalid or unenforceable, the Rate Period for any such Bond shall be
deemed to be a Flexible Rate Period with a duration of one day and the
Flexible Rate shall be determined as provided in the Agreement.
While this bond is in the Flexible Mode it is subject to mandatory
tender for purchase on each applicable Effective Date at a price (the
"Purchase Price") of par plus accrued interest to the Effective Date. THE
OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL AND SURRENDER THIS
BOND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT AND, ON THE PURCHASE
DATE, TO SURRENDER THIS BOND TO THE PAYING AGENT FOR PAYMENT OF THE PURCHASE
PRICE. UPON DEPOSIT OF THE PURCHASE PRICE WITH THE PAYING AGENT ON THE
PURCHASE DATE, THIS BOND SHALL BE DEEMED TENDERED FOR PURCHASE AND SHALL
CEASE TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST HEREON SHALL CEASE TO
ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED OWNER HEREOF SHALL BE
ENTITLED ONLY TO RECEIVE THE PURCHASE PRICE SO DEPOSITED WITH THE PAYING
AGENT UPON SURRENDER OF THIS CERTIFICATE TO THE PAYING AGENT. The Purchase
Price shall be paid on the Delivery Date, which shall be the Effective Date
or any subsequent Business Day on which this bond is delivered to the Paying
Agent. The Purchase Price of this bond shall be paid only upon surrender of
this bond to the Paying Agent as provided herein. From and after the
Effective Date, no further interest shall be payable to the REGISTERED OWNER
during the preceding Rate Period, provided that there are sufficient funds
available on the Effective Date to pay the Purchase Price.
Each determination and redetermination of the Flexible Rate shall be
conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Bank, the Company and the Bondowners.
While this bond is in the Flexible Mode, interest shall be computed on
the basis of actual days elapsed divided by 365 or 366, as appropriate. From
and after the date on which this bond becomes due, any unpaid principal will
bear interest at the then effective interest rate until paid or duly provided
for.
While this bond is in the Flexible Mode, the principal of and interest
on this bond due on the MATURITY DATE are payable when due by wire or bank
transfer of immediately available funds within the continental United States
to the REGISTERED OWNER hereof but only upon presentation and surrender of
this bond at the offices of
,
, , as Paying Agent (with its successors
in such capacity, the "Paying Agent"). While this bond is in the Flexible
Mode, the Purchase Price of this bond (which includes accrued interest to the
Purchase Date) tendered for purchase is payable by wire or bank transfer
within the continental United States from the Paying Agent to the REGISTERED
OWNER at its address shown on the registration books maintained by the Paying
Agent. Payment of the Purchase Price of this bond to such owner shall be
made on the Purchase Date if presentation and surrender of this bond is made
prior to 11:00 A.M., New York City time, on the Purchase Date or on such
later Business Day upon which presentation and surrender of this bond is made
prior to 11:00 A.M., New York City time. The Purchase Price of this bond
shall be paid in immediately available funds. Overdue interest on this bond,
or interest on overdue principal while in the Flexible Mode is payable in
immediately available funds by wire or bank transfer within the continental
United States from the Paying Agent to the REGISTERED OWNER, determined as of
the close of business on the applicable special record date as determined by
the Trustee, at its address as shown on the registration books maintained by
the Paying Agent. The special record date may be not more than thirty (30)
days before the date set for payment. The Paying Agent will mail notice of a
special record date to the Bondowners at least ten (10) days before the
special record date. The Paying Agent will promptly certify to the
Authority, the Trustee and the Remarketing Agent that it has mailed such
notice to all Bondowners, and such certificate will be conclusive evidence
that notice was given in the manner required hereby.
The Bonds are subject to mandatory redemption at any time at a
redemption price of 100% of the principal amount of the Bonds so redeemed
plus accrued interest in the event (i) the Company delivers to the Trustee an
opinion of nationally recognized bond counsel selected by the Company and
reasonably satisfactory to the Trustee ("Bond Counsel") stating that interest
on the Bonds is or will become includable in gross income of the owners
thereof for federal income tax purposes, or (ii) it is finally determined by
the Internal Revenue Service or a court of competent jurisdiction, as a
result of (A) a proceeding in which the Company has participated or
been given notice and an opportunity to participate, and, (B) either (1) a
failure by the Company (or the Seabrook Transferee as defined in the
Agreement) to observe any covenant or agreement undertaken in or pursuant to
the Agreement, or the inaccuracy of any representation made by the Company
(or the Seabrook Transferee) in or pursuant to the Agreement, or (2) the
Seabrook Transfer (as defined in the Agreement), that interest payable on the
Bonds is includable for federal income tax purposes in the gross income of
any owner thereof (other than an owner which is a "substantial user" or a
"related person" within the meaning of Section 147(a) of the Internal Revenue
Code of 1986). Any determination under clause (ii) above will not be
considered final for this purpose until the earliest of the conclusion of any
appellate review, the denial of appellate review or the expiration of the
period for seeking appellate review. Redemption under this paragraph shall
be in whole unless not less than forty-five (45) days prior to the redemption
date the Company delivers to the Trustee an opinion of Bond Counsel
reasonably satisfactory to the Trustee to the effect that a redemption of
less than all of the Bonds will preserve the tax-exempt status of interest on
the remaining Bonds outstanding subsequent to such redemption. Except as
provided in the next sentence, any such redemption shall be made on the 90th
day after the date on which the opinion described in clause (i) is delivered
or the determination described in clause (ii) becomes final or on such
earlier date as the Company may designate by notice given to the Trustee at
least forty-five (45) days prior to such designated date. Any Bond in the
Flexible Mode that has a Purchase Date prior to the redemption date
established for that Bond pursuant to the preceding sentence shall be
redeemed on that Purchase Date. If such redemption shall occur in accordance
with the terms of the Agreement, then such failure by the Company (or the
Seabrook Transferee as described above) to observe such covenant or
agreement, or the inaccuracy of any such representation will not, in and of
itself, constitute a default thereunder.
If the Trustee receives written notice from any Bondowner stating that
(i) such Bondowner has been notified in writing by the Internal Revenue
Service that it proposes to include the interest on the Bonds in the gross
income of such owner for federal income tax purposes, or any other proceeding
has been instituted against such owner which may lead to a like
determination, and (ii) such owner will afford the Company the opportunity to
participate at its own expense in the proceeding, either directly or in the
name of such owner, until the conclusion of any appellate review, and the
Trustee has examined such written notice and it appears to be accurate on its
face, then the Trustee shall promptly give notice thereof to the Company, the
Authority, and each Bondowner whose Bonds may be affected. The Trustee shall
thereafter keep itself reasonably informed of the progress of any
administrative proceedings or litigation relating to such notice. Under the
Agreement the Company is required to give the Trustee written notice of such
a final determination within forty-five (45) days of such final
determination.
If the Purchase Date of this bond is after the redemption date, notice
of redemption of this bond will be given by first class mail, postage
prepaid, not more than forty-five (45) nor less than thirty (30) days prior
to the redemption date to the REGISTERED OWNER at its registered address.
Failure to mail notice to the owner of any other Bond or any defect in the
notice to such other owner shall not affect the redemption of this bond.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds in authorized denominations of the same
aggregate principal amount without transfer to a new registered owner.
Exchanges and transfers will be without expense to the owner except for
applicable taxes or other governmental charges, if any.
The Bonds are issuable only in fully registered form and while in the
Flexible Mode shall be in denominations of $100,000 or any multiple of $1,000
in excess of $100,000.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or the Paying Agent.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK,
WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal) By:
Title:
By:
Title:
Certificate of Authentication
This bond is one of the Bonds described in the Agreement.
STATE STREET BANK AND TRUST
COMPANY
as Trustee
Date of Registration:
By: , or
Authorized Signature
By: ,
as Paying Agent
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact to transfer it on
the books kept for registration of the bond, with full power of substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a Participant in a Recognized Signature
Guaranty Medallion Program.
Dated:
Signature Guaranteed:
Participant in a Recognized
Signature Guaranty Medallion Program
By:
Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common Act
(State)
Additional abbreviations may also be used though not set forth in the list
above.
EXHIBIT H
FORM OF WEEKLY 1993 SERIES E BOND
$ No. R-
ANY BONDOWNER WHO FAILS TO DELIVER A BOND FOR PURCHASE AT THE TIMES AND AT
THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER RIGHTS HEREUNDER EXCEPT THE
RIGHT TO RECEIVE THE PURCHASE PRICE HEREOF UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Refunding Revenue Bond
(Public Service Company of New Hampshire
Project - 1993 Tax-Exempt Series E)
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST PAYMENT DATES:
(i) the first Business Day of each calendar month, and (ii) the Maturity
Date.
MATURITY DATE: May 1, 2021
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
MODE: Weekly
CUSIP:
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Business Finance Authority of the State of New Hampshire (the
"Authority"), for value received, promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest from the most
recent INTEREST PAYMENT DATE to which interest has been paid or duly provided
for or, if no interest has been paid, from the DATE OF THIS BOND set forth
above, until paid in full, at the rates set forth below, payable on each
INTEREST PAYMENT DATE. Until conversion to the Flexible, Multiannual or
Fixed Rate Mode as provided below, this bond shall bear interest at the
Weekly Rate. The Weekly Rate for this bond shall be the rate of interest
determined by the Remarketing Agent designated as provided in the Agreement
(herein, with its successors, the "Remarketing Agent"), for each Rate Period,
as defined below, to be the lowest rate which in its judgment, on the basis
of prevailing financial market conditions, would permit the sale of the Bonds
(as defined below) in the Weekly Mode at par plus accrued interest on and as
of the Effective Date, as defined below, but not in excess of the Maximum
Interest Rate. If this bond is converted to the Flexible, Multiannual or
Fixed Rate Mode it shall bear interest at the Flexible, Multiannual or Fixed
Rate, as the case may be, as defined in the Agreement. The Remarketing Agent
shall determine the initial Weekly Rate on or before the date of issue in or
of conversion to the Weekly Mode, which rate shall remain in effect as
provided in the Agreement. Thereafter, the Remarketing Agent shall
redetermine the Weekly Rate for each Rate Period as provided below. The
amount of interest due on any INTEREST PAYMENT DATE shall be the amount of
unpaid interest accrued on this bond through the day preceding such INTEREST
PAYMENT DATE.
This bond is one of a series of Pollution Control Refunding Revenue
Bonds (Public Service Company of New Hampshire Project - 1993 Tax-Exempt
Series E) (the "Bonds") in the aggregate principal amount of $44,800,000
issued under New Hampshire RSA Chapter 162-I (the "Act"). The proceeds of
the Bonds are being loaned to Public Service Company of New Hampshire (the
"Company"), a New Hampshire corporation, pursuant to a Series E Loan and
Trust Agreement dated as of May 1, 1991, as supplemented and amended by a
First Supplement dated as of December 1, 1993 (the "Agreement") among the
Company, the Authority and State Street Bank and Trust Company, as Trustee
(the "Trustee") to refund a like principal amount of the Authority's
$114,500,000 Pollution Control Revenue Bonds (Public Service Company of New
Hampshire Project - 1991 Taxable Series E) (the "1991 Bonds"), which were
originally issued to finance certain costs associated with the Company's
ownership interest in air or water pollution control and sewage or solid
waste disposal facilities installed for use by Unit No. 1 at the nuclear
electric generating station (the "Station") in Seabrook, New Hampshire (the
"Project Facilities"). Pursuant to the Agreement, the Company has
unconditionally agreed to repay such loan in the amounts and at the times
necessary to pay the principal of, premium, if any, and interest on the Bonds
when due. To evidence and secure such loan and the Company's reimbursement
and certain other obligations under the Reimbursement Agreement (as defined
below), the Company has issued and delivered to the Trustee its First
Mortgage Bonds, Series G (the "Series G First Mortgage Bonds") issued under
the First Mortgage Indenture dated as of August 15, 1978, as amended, and the
Tenth Supplemental Indenture thereto dated as of May 1, 1991 between the
Company and First Fidelity Bank, National Association, New Jersey, as Trustee
(as amended and supplemented from time to time, the "First Mortgage Bond
Indenture") in an aggregate principal amount, and with an interest rate,
maturity date and redemption provisions corresponding to those of the Bonds
and certain other bonds issued under the Agreement, including the 1991 Bonds.
As provided in the Agreement, payments of principal of, and premium, if any,
and interest on the Series G First Mortgage Bonds shall, upon receipt by the
Trustee, be deemed to constitute payments in corresponding amounts by the
Company in respect of the Bonds and certain other bonds issued under the
Agreement, including the 1991 Bonds. Reference is hereby made to the
Agreement for the provisions thereof with respect to the rights, limitations
of rights, duties, obligations and immunities of the Company, the Authority,
the Trustee, the Paying Agent, and the Bondowners, including the order of
payments in the event of insufficient funds, the disposition of unclaimed
moneys held by the Trustee and restrictions on the rights of owners of the
Bonds to bring suit. The Agreement may be amended to the extent and in the
manner provided therein. Copies of the Agreement are available for
inspection at the corporate trust office of the Trustee.
The Purchase Price (as defined below) and principal of and interest on
this bond while it is in the Weekly Mode is also payable from moneys drawn by
the Paying Agent on an irrevocable letter of credit for the Bonds and certain
other bonds issued under the Agreement, including the 1991 Bonds (together
with any extensions, amendments, and renewals thereof, the "Letter of
Credit"), issued by Citibank, N.A. pursuant to the terms of a Series E Letter
of Credit and Reimbursement Agreement dated as of May 1, 1991 (the
"Reimbursement Agreement") by and among the Company, Citibank, N.A. (together
with any other issuer of a Credit Facility, the "Bank") and the participating
banks named therein. The Paying Agent may draw on the Letter of Credit
presently in place for the payment of up to forty-five (45) days' interest
for Bonds in the Weekly Mode. The Letter of Credit initially expires on May
16, 1995 but may be terminated earlier upon the occurrence of certain events
set forth in the Agreement and the Reimbursement Agreement or extended as
provided in the Reimbursement Agreement. Unless the Letter of Credit is
extended or renewed or a substitute letter of credit (collectively with the
Letter of Credit, a "Credit Facility") is provided in accordance with the
Agreement, the Bonds will become subject to mandatory purchase as described
below. The Company may substitute a new Credit Facility as provided in the
Agreement.
In case any Event of Default occurs and is continuing, the principal
amount of this bond together with accrued interest may become or be declared
immediately due and payable in the manner and with the effect provided in the
Agreement.
Unless otherwise defined herein, capitalized terms used in this bond
shall have the meaning given them in the Agreement. The following terms are
defined as follows:
"Business Day" means a day (i) that is not a Sunday or legal holiday or
a day on which banking institutions are authorized pursuant to law to close,
(ii) that is not a day on which the corporate trust office of the First
Mortgage Bond Trustee is not open for business, (iii) that is a day on which
banks are not required or authorized to close in New York, New York, and (iv)
that is a day on which banking institutions in all of the cities in which the
principal offices of the Trustee and the Paying Agent and, if applicable, the
Remarketing Agent and the Bank are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
"Effective Date" means, with respect to a Bond in the Flexible, Weekly
and Multiannual Modes, the date on which a new Rate Period for that Bond
takes effect.
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Flexible Mode, the Weekly Mode, the
Multiannual Mode and the Fixed Rate Mode.
"Purchase Date" means, while this bond is in the Weekly Mode, the date
on which this bond shall be required to be purchased pursuant to a mandatory
or optional tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Flexible, Weekly or Multiannual
Mode, the period during which such rate of interest determined for such Bond
will remain in effect as described herein. While this bond is in the Weekly
Mode, a new interest rate shall take effect on the date such Mode takes
effect and thereafter on each Wednesday.
At the option of the Company and upon certain conditions provided for in
the Agreement described below, all or a portion of the Bonds (a) may be
converted or reconverted from time to time to or from the Weekly Mode or
Multiannual Mode, which means that the Rate Period is, respectively, one week
or one year or any multiple of one year, (b) may be converted or reconverted
from time to time to or from the Flexible Mode, and will have Rate Periods of
from one to 270 days as provided herein, or (c) may be converted to the Fixed
Rate Mode; provided, however, that in the Multiannual Mode the first rate
period occurring after conversion to such Mode may be shorter than the
applicable multiple of one year as provided in the Agreement.
While this bond is in the Weekly Mode, conversions to any other Mode may
take place only on the first Business Day of any calendar month upon thirty
(30) days' prior written notice from the Paying Agent to the REGISTERED OWNER
of this bond. Conversion of this bond to another Mode shall be subject to
the conditions set forth in the Agreement. In the event that the conditions
for a proposed conversion to a new Mode are not met (i) such new Mode shall
not take effect on the proposed conversion date, notwithstanding any prior
notice to the Bondowners of such conversion, (ii) this bond shall
automatically convert to the Flexible Mode with a Rate Period of one day, and
(iii) this bond shall be subject to mandatory tender for purchase as provided
below. In no event shall the failure of this bond to be converted to another
Mode be deemed to be a Default or an Event of Default under the Agreement as
long as the Purchase Price (as defined below) is made available on the failed
conversion date to owners of all Bonds that were to have been converted.
When this bond is in the Weekly Mode, the Weekly Rate in effect for each
Rate Period (the "Effective Rate" for such Period) shall be determined not
later than the Business Day next preceding the Effective Date. If the
Remarketing Agent fails to make such determination or fails to announce the
Effective Rate as required with respect to any Bonds in the Weekly Mode, or
if for any reason such manner of determination shall be determined to be
invalid or unenforceable, the rate on such Bonds to take effect on that
Effective Date shall be the Weekly Rate in effect on the day preceding such
date. The Remarketing Agent shall announce the Effective Rate by telephone
to the Paying Agent on the date of determination thereof, and shall promptly
confirm such notice in writing. While this bond is in the Weekly Mode, any
Bondowner may ascertain the Effective Rate at any time by contacting the
Paying Agent or the Remarketing Agent.
Each determination and redetermination of the Weekly Rate shall be
conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Bank, the Company and the Bondowners.
While this bond is in the Weekly Mode, interest shall be computed on the
basis of a 365- or 366-day year, as appropriate, and actual days elapsed.
From and after the date on which this bond becomes due, any unpaid principal
will bear interest at the then effective interest rate until paid or duly
provided for.
While this bond is in the Weekly Mode the principal of this bond is
payable when due by wire or bank transfer of immediately available funds
within the continental United States to the REGISTERED OWNER hereof but only
upon presentation and surrender of this bond at the office of BankAmerica
National Trust Company, New York, New York, as Paying Agent, (with its
successors in such capacity, the "Paying Agent"). Interest on this bond
while in the Weekly Mode is payable in immediately available funds by wire or
bank transfer within the continental United States from the Paying Agent to
the REGISTERED OWNER, determined as of the close of business on the
applicable record date, at its address as shown on the registration books
maintained by the Paying Agent. The Purchase Price (as defined below) of
Bonds tendered for purchase shall be paid as provided below.
The record date for payment of interest while this bond is in the Weekly
Mode is the Business Day preceding the date on which interest is to be paid.
With respect to overdue interest or interest payable on redemption of this
bond other than on an INTEREST PAYMENT DATE or interest on any overdue
amount, the Trustee may establish a special record date. The special record
date may be not more than thirty (30) days before the date set for payment.
The Paying Agent will mail notice of a special record date to the Bondowners
at least ten (10) days before the special record date. The Paying Agent will
promptly certify to the Authority, the Trustee and the Remarketing Agent that
it has mailed such notice to all Bondowners, and such certificate will be
conclusive evidence that notice was given in the manner required hereby.
While this bond is in the Weekly Mode, the REGISTERED OWNER shall have
the right to tender this bond for purchase in multiples of $100,000 at a
price (the "Purchase Price") equal to 100% of the principal amount thereof,
plus accrued interest, if any, to the Purchase Date, upon compliance with the
conditions described below, provided that if the Purchase Date is an INTEREST
PAYMENT DATE, accrued interest shall be paid separately, and not as part of
the Purchase Price on such date. In order to exercise the right to tender,
the REGISTERED OWNER must deliver to the Paying Agent a written irrevocable
notice of tender substantially in the form of the Bondowner's Election Notice
set forth hereon or such other form as may be satisfactory to the Paying
Agent. While this bond is in the Weekly Mode, it will be purchased on the
Business Day specified in such Bondowner's Election Notice, provided such
date is at least seven calendar days after receipt by the Paying Agent of
such notice. If the REGISTERED OWNER of this bond has elected to require
purchase as provided above, the REGISTERED OWNER shall be deemed, by such
election, to have agreed irrevocably to sell this bond to any purchaser
determined in accordance with the provisions of the Agreement on the date
fixed for purchase at the Purchase Price.
Tender of this bond will not be effective and this bond will not be
purchased if at the time fixed for purchase an acceleration of the maturity
of the Bonds shall have occurred and not have been annulled in accordance
with the Agreement. Notice of tender of this bond is irrevocable. All
notices of tender of Bonds shall be made to the Paying Agent at 2 Rector
Street, New York, New York, or such other address specified in writing by the
Paying Agent to the Bondowners. All deliveries of tendered Bonds, including
deliveries of Bonds subject to mandatory tender, shall be made to the Paying
Agent at 2 Rector Street, New York, New York, Attention: Corporate Trust
Department, or such other address specified in writing by the Paying Agent to
the Bondowners.
This bond is subject to mandatory tender for purchase at the Purchase
Price (i) on the date of conversion or proposed conversion from one Mode to
another Mode and (ii) on (a) the effective date of a substitute Credit
Facility unless the Trustee receives written evidence from Moody's (if this
bond is rated by Moody's) and S&P (if this bond is rated by S&P) that such
substitution will not result in a withdrawal or reduction (excluding a
withdrawal or reduction resulting from a change in Modes) of the rating of
this bond or (b) a date that is not more than fifteen (15) or less than ten
(10) days prior to the expiration or termination of the Credit Facility other
than upon conversion to a new Mode. Notice of mandatory tender shall be
given or caused to be given by the Paying Agent in writing to the REGISTERED
OWNER at least thirty (30) days prior to the mandatory Purchase Date. THE
OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL AND SURRENDER THIS
BOND AT SUCH PRICE TO ANY PURCHASER DETERMINED IN ACCORDANCE WITH THE
PROVISIONS OF THE AGREEMENT IN THE EVENT OF SUCH MANDATORY TENDER AND, ON
SUCH PURCHASE DATE, TO SURRENDER THIS BOND TO THE PAYING AGENT FOR PAYMENT OF
THE PURCHASE PRICE. From and after the Purchase Date, no further interest on
this bond shall be payable to the REGISTERED OWNER, provided that there are
sufficient funds available on the Effective Date to pay the Purchase Price.
The Purchase Price of this bond shall be paid to the REGISTERED OWNER by
the Paying Agent on the Delivery Date, which shall be the Purchase Date or
any subsequent Business Day on which this bond is delivered to the Paying
Agent. The Purchase Price of this bond shall be paid only upon surrender of
this bond to the Paying Agent as provided herein. From and after the
Purchase Date, no further interest on this bond shall be payable to the
REGISTERED OWNER who gave notice of tender for purchase, provided that there
are sufficient funds available on the Purchase Date to pay the Purchase
Price. The Purchase Price of Bonds tendered for purchase is payable for
Bonds in the Weekly Mode by wire or bank transfer within the continental
United States in immediately available funds from the Paying Agent to the
REGISTERED OWNER at its address shown on the registration books maintained by
the Paying Agent. If on any date this bond is subject to mandatory tender
for purchase or is required to be purchased at the election of the REGISTERED
OWNER, payment of the Purchase Price of this bond to such owner shall be made
on the Purchase Date if presentation and surrender of this bond is made prior
to 11:00 A.M., New York City time, on the Purchase Date or on such later
Business Day upon which presentation and surrender of this bond is made prior
to 11:00 A.M., New York City time.
Bonds in the Weekly Mode are subject to redemption in whole or in part
at the direction of the Company on any INTEREST PAYMENT DATE at a redemption
price of par plus accrued interest.
The Bonds are subject to mandatory redemption at any time at a
redemption price of 100% of the principal amount of the Bonds so redeemed
plus accrued interest in the event (i) the Company delivers to the Trustee an
opinion of nationally recognized bond counsel selected by the Company and
reasonably satisfactory to the Trustee ("Bond Counsel") stating that interest
on the Bonds is or will become includable in gross income of the owners
thereof for federal income tax purposes, or (ii) it is finally determined by
the Internal Revenue Service or a court of competent jurisdiction, as a
result of (A) a proceeding in which the Company has participated or been
given notice and an opportunity to participate, and, (B) either (1) a failure
by the Company (or the Seabrook Transferee as defined in the Agreement) to
observe any covenant or agreement undertaken in or pursuant to the Agreement,
or the inaccuracy of any representation made by the Company (or the Seabrook
Transferee) in or pursuant to the Agreement, or (2) the Seabrook Transfer (as
defined in the Agreement), that interest payable on the Bonds is includable
for federal income tax purposes in the gross income of any owner thereof
(other than an owner which is a "substantial user" or a "related person"
within the meaning of Section 147(a) of the Internal Revenue Code of 1986).
Any determination under clause (ii) above will not be considered final for
this purpose until the earliest of the conclusion of any appellate review,
the denial of appellate review or the expiration of the period for seeking
appellate review. Redemption under this paragraph shall be in whole unless
not less than forty-five (45) days prior to the redemption date the Company
delivers to the Trustee an opinion of Bond Counsel reasonably satisfactory to
the Trustee to the effect that a redemption of less than all of the Bonds
will preserve the tax-exempt status of interest on the remaining Bonds
outstanding subsequent to such redemption. Except as provided in the next
sentence, any such redemption shall be made on the 90th day after the date on
which the opinion described in clause (i) is delivered or the determination
described in clause (ii) becomes final or on such earlier date as the Company
may designate by notice given to the Trustee at least forty-five (45) days
prior to such designated date. Any Bond in the Flexible Mode that has a
Purchase Date prior to the redemption date established for that Bond pursuant
to the preceding sentence shall be redeemed on that Purchase Date. If such
redemption shall occur in accordance with the terms of the Agreement, then
such failure by the Company (or the Seabrook Transferee as described above)
to observe such covenant or agreement, or the inaccuracy of any such
representation will not, in and of itself, constitute a default thereunder.
If the Trustee receives written notice from any Bondowner stating that
(i) such Bondowner has been notified in writing by the Internal Revenue
Service that it proposes to include the interest on the Bonds in the gross
income of such owner for federal income tax purposes, or any other proceeding
has been instituted against such owner which may lead to a like
determination, and (ii) such owner will afford the Company the opportunity to
participate at its own expense in the proceeding, either directly or in the
name of such owner, until the conclusion of any appellate review, and the
Trustee has examined such written notice and it appears to be accurate on its
face, then the Trustee shall promptly give notice thereof to the Company, the
Authority, and each Bondowner whose Bonds may be affected. The Trustee shall
thereafter keep itself reasonably informed of the progress of any
administrative proceedings or litigation relating to such notice. Under the
Agreement the Company is required to give the Trustee written notice of such
a final determination within forty-five (45) days of such final
determination.
If less than all of the Outstanding Bonds are to be called for
redemption, the Bonds (or portions thereof) to be redeemed shall be selected
as provided in the Agreement with Bonds in the Weekly Mode being redeemed in
units of $100,000.
In the event this bond is selected for redemption, notice will be mailed
no more than forty-five (45) nor less than thirty (30) days prior to the
redemption date to the REGISTERED OWNER at its address shown on the
registration books maintained by the Paying Agent. Failure to mail notice to
the owner of any other Bond or any defect in the notice to such an owner
shall not affect the redemption of this bond.
If this bond is of a denomination in excess of one hundred thousand
dollars ($100,000), portions of the principal amount in the amount of one
hundred thousand dollars ($100,000) or any multiple thereof may be redeemed.
If less than all of the principal amount is to be redeemed, upon surrender of
this bond to the Paying Agent, there will be issued to the REGISTERED OWNER,
without charge, a new Bond or Bonds, at the option of the REGISTERED OWNER,
for the unredeemed principal amount.
Notice of redemption having been duly mailed, this bond, or the portion
called for redemption, will become due and payable on the redemption date at
the applicable redemption price and, moneys for the redemption having been
deposited with the Paying Agent, from and after the date fixed for
redemption, interest on this bond (or such portion) will no longer accrue.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND (OR PORTION HEREOF)
IS SUBJECT TO PURCHASE OR REDEMPTION, IN EACH CASE UPON NOTICE TO OR FROM THE
OWNER HEREOF AS OF A DATE PRIOR TO SUCH PURCHASE OR REDEMPTION. IN EACH SUCH
EVENT AND UPON DEPOSIT OF THE PURCHASE OR REDEMPTION PRICE WITH THE PAYING
AGENT ON THE PURCHASE OR REDEMPTION DATE, AS THE CASE MAY BE, THIS BOND (OR
PORTION HEREOF) SHALL CEASE TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST
HEREON SHALL CEASE TO ACCRUE AS OF THE PURCHASE OR REDEMPTION DATE, AND THE
REGISTERED OWNER HEREOF SHALL BE ENTITLED ONLY TO RECEIVE THE PURCHASE OR
REDEMPTION PRICE SO DEPOSITED WITH THE PAYING AGENT UPON SURRENDER OF THIS
CERTIFICATE TO THE PAYING AGENT.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds in authorized denominations of the same
aggregate principal amount without transfer to a new registered owner.
Exchanges and transfers will be without expense to the owner except for
applicable taxes or other governmental charges, if any. The Paying Agent
will not be required to make an exchange or transfer of this bond (except in
connection with any optional or mandatory tender of this bond) (i) if this
bond (or any portion thereof) has been selected for redemption or (ii) during
the fifteen (15) days preceding any date fixed for selection for redemption
if this bond (or any portion thereof) is eligible to be selected for
redemption.
The Bonds are issuable only in fully registered form and while in the
Weekly Mode shall be in denominations of $100,000 or any multiple thereof.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or the Paying Agent.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK,
WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal) By:
Title:
By:
Title:
Certificate of Authentication
This bond is one of the Bonds described in the Agreement.
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
Date of Registration: By: , or
Authorized Signature
By: BANKAMERICA NATIONAL TRUST COMPANY, as Paying Agent
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact to transfer it
on the books kept for registration of the bond, with full power of
substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a Participant in a Recognized Signature
Guaranty Medallion Program.
Dated:
Signature Guaranteed:
Participant in a Recognized
Signature Guaranty Medallion Program
By: Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act
(State)
Additional abbreviations may also be used though not set forth in the list
above.
The following is the Bondowner's Election Notice described herein:
BONDOWNER'S ELECTION NOTICE
Business Finance Authority of the State of New
Hampshire Pollution Control Refunding Revenue Bonds
(Public Service Company of New Hampshire Project -
1993 Tax-Exempt Series E)
Principal Principal Amount Bond Purchase
Amount CUSIP Tendered for Purchase Numbers Date
The undersigned hereby certifies that it is the registered owner of the Bonds
described above (the "Tendered Bonds"), all of which are in the Weekly Mode,
and hereby agrees that the delivery of this instrument of transfer to the
Paying Agent constitutes an irrevocable offer to sell the Tendered Bonds to
the Company or its designee on the Purchase Date, which shall be a Business
Day at least seven (7) calendar days following delivery of this instrument,
at a purchase price equal to the unpaid principal balance thereof plus
accrued and unpaid interest thereon to the Purchase Date (the "Purchase
Price"). The undersigned acknowledges and agrees that this election notice
is irrevocable and that the undersigned will have no further rights with
respect to the Tendered Bonds except payment, upon presentation and surrender
of the Tendered Bonds, of the Purchase Price by payment by wire or bank
transfer within the continental United States from the Paying Agent to the
undersigned at its address as shown on the registration books of the Paying
Agent (i) on the Purchase Date if the Tendered Bonds shall have been
surrendered to the Paying Agent prior to 11:00 A.M., New York City time, on
the Purchase Date or (ii) on any Delivery Date subsequent to the Purchase
Date on which Tendered Bonds are delivered to the Paying Agent by 11:00 A.M.,
New York City time, provided that for so long as the Bonds are in the Book-
Entry Only System, physical surrender of the Bonds to the Paying Agent shall
not be required and the Bonds shall be tendered pursuant to the procedures
described in Subsection 303(g) of the First Supplement referred to below.
Except as otherwise indicated herein and unless the context otherwise
requires, the terms used herein shall have the meanings set forth in the
Series E Loan and Trust Agreement dated as of May 1, 1991 and in the First
Supplement dated as of December 1, 1993 relating to the Bonds.
Date: Signature(s)
Street City State Zip
IMPORTANT: The above signature(s) must correspond with the name(s) as
set forth on the face of the Tendered Bond(s) with respect to which this
Bondowner's Election Notice is being delivered without any change whatsoever.
If this notice is signed by a person other than the registered owner of any
Tendered Bond(s), the Tendered Bond(s) must be either endorsed on the
Assignment appearing on each Bond or accompanied by appropriate bond powers,
in each case signed exactly as the name or names of the registered owner or
owners appear on the bond register. The method of presenting this notice to
the Paying Agent is the choice of the person making such presentation. If it
is made by mail, it should be by registered mail with return receipt
requested.
EXHIBIT I
FORM OF MULTIANNUAL 1993 SERIES E BOND
$ No. R-
ANY BONDOWNER WHO FAILS TO DELIVER A BOND FOR PURCHASE AT THE TIMES AND AT
THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER RIGHTS HEREUNDER EXCEPT THE
RIGHT TO RECEIVE THE PURCHASE PRICE HEREOF UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Refunding Revenue Bond
(Public Service Company of New Hampshire
Project - 1993 Tax-Exempt Series E)
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
INTEREST PAYMENT DATES: (i) the first day of the sixth full calendar
month after the Mode takes effect and the first day of each sixth calendar
month thereafter, and (ii) the Maturity Date.
CURRENT EFFECTIVE DATE:
INTEREST RATE:
(To Next Purchase Date)
NEXT PURCHASE DATE:
COMMENCEMENT DATE OF RATE PERIOD:
MATURITY DATE: May 1, 2021
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
MODE: Multiannual
CUSIP:
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Business Finance Authority of the State of New Hampshire (the
"Authority"), for value received, promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest from the most
recent INTEREST PAYMENT DATE to which interest has been paid or duly provided
for or, if no interest has been paid, from the DATE OF THIS BOND set forth
above, until paid in full, at the rates set forth below, payable on each
INTEREST PAYMENT DATE. Until conversion to the Flexible, Weekly or Fixed
Rate as provided below, this bond shall bear interest at the Multiannual
Rate. The Multiannual Rate shall be the rate of interest determined by the
Remarketing Agent designated as provided in the Agreement (herein, with its
successors, the "Remarketing Agent"), for each Rate Period, as defined below,
to be the lowest rate which in its judgment, on the basis of prevailing
financial market conditions, would permit the sale of the Bonds (as defined
below) with the same Rate Period at par plus accrued interest on and as of
the Effective Date, as defined below. If this bond is converted to the
Flexible, Weekly, or Fixed Rate Mode it shall bear interest at the Flexible,
Weekly or Fixed Rate, as the case may be, as defined in the Agreement. The
Remarketing Agent shall determine the initial Multiannual Rate on or before
the date of issue in or of conversion to the Multiannual Mode, which rate
shall remain in effect as provided in the Agreement. Thereafter, the
Remarketing Agent shall redetermine the Multiannual Rate for each Rate Period
as provided below. If any payment, redemption or maturity date for
principal, premium or interest shall not be a Business Day, then the payment
thereof may be made on the next succeeding Business Day with the same force
and effect as if made on the specified payment date and no interest shall
accrue for the period after the specified payment date.
This bond is one of a series of Pollution Control Refunding Revenue
Bonds (Public Service Company of New Hampshire Project - 1993 Tax-Exempt
Series E) (the "Bonds") in the aggregate principal amount of $44,800,000
issued under New Hampshire RSA Chapter 162-I (the "Act"). The proceeds of
the Bonds are being loaned to Public Service Company of New Hampshire (the
"Company"), a New Hampshire corporation, pursuant to a Series E Loan and
Trust Agreement dated as of May 1, 1991, as supplemented and amended by a
First Supplement dated as of December 1, 1993 (the "Agreement") among the
Company, the Authority and State Street Bank and Trust Company, as Trustee
(the "Trustee") to refund a like principal amount of the Authority's
$114,500,000 Pollution Control Revenue Bonds (Public Service Company of New
Hampshire Project - 1991 Taxable Series E) (the "1991 Bonds"), which were
originally issued to finance certain costs associated with the Company's
ownership interest in air or water pollution control and sewage or solid
waste disposal facilities installed for use by Unit No. 1 at the nuclear
electric generating station (the "Station") in Seabrook, New Hampshire (the
"Project Facilities"). Pursuant to the Agreement, the Company has
unconditionally agreed to repay such loan in the amounts and at the times
necessary to pay the principal of, premium, if any, and interest on the Bonds
when due. To evidence and secure such loan and the Company's reimbursement
and certain other obligations, if any, under the Reimbursement Agreement, (as
defined in the Agreement), the Company has issued and delivered to the
Trustee its First Mortgage Bonds, Series G (the "Series G First Mortgage
Bonds") issued under the First Mortgage Indenture dated as of August 15,
1978, as amended, and the Tenth Supplemental Indenture thereto dated as of
May 1, 1991 between the Company and First Fidelity Bank, National
Association, New Jersey, as Trustee (as amended and supplemented from time to
time, the "First Mortgage Bond Indenture") in an aggregate principal amount,
and with an interest rate, maturity date and redemption provisions
corresponding to those of the Bonds and certain other bonds issued under the
Agreement, including the 1991 Bonds. As provided in the Agreement, payments
of principal of, and premium, if any, and interest on the Series G First
Mortgage Bonds shall, upon receipt by the Trustee, be deemed to constitute
payments in corresponding amounts by the Company in respect of the Bonds and
certain other bonds issued under the Agreement, including the 1991 Bonds.
Reference is hereby made to the Agreement for the provisions thereof with
respect to the rights, limitations of rights, duties, obligations and
immunities of the Company, the Authority, the Trustee, the Paying Agent, and
the Bondowners, including the order of payments in the event of insufficient
funds, the disposition of unclaimed moneys held by the Trustee and
restrictions on the rights of owners of the Bonds to bring suit. The
Agreement may be amended to the extent and in the manner provided therein.
Copies of the Agreement are available for inspection at the corporate trust
office of the Trustee.
In case any Event of Default occurs and is continuing, the principal
amount of this bond together with accrued interest may become or be declared
immediately due and payable in the manner and with the effect provided in the
Agreement.
Unless otherwise defined herein, capitalized terms used in this bond
shall have the meaning given them in the Agreement. The following terms are
defined as follows:
"Business Day" means a day (i) that is not a Sunday or legal holiday or
a day on which banking institutions are authorized pursuant to law to close,
(ii) that is not a day on which the corporate trust office of the First
Mortgage Bond Trustee is not open for business, (iii) that is a day on which
banks are not required or authorized to close in New York, New York, and (iv)
that is a day on which banking institutions in all of the cities in which the
principal offices of the Trustee and the Paying Agent and, if applicable, the
Remarketing Agent and the Bank (as defined in the Agreement) are located are
not required or authorized to remain closed and on which the New York Stock
Exchange is not closed.
"Effective Date" means, with respect to a Bond in the Flexible, Weekly
and Multiannual Modes, the date on which a new Rate Period for that Bond
takes effect.
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Flexible Mode, the Weekly Mode, the
Multiannual Mode and the Fixed Rate Mode.
"Purchase Date" means, while this bond is in a Multiannual Mode, the
date on which this bond shall be required to be purchased pursuant to a
mandatory tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Flexible, Weekly or Multiannual
Mode, the period during which such rate of interest determined for such Bond
will remain in effect as described herein.
At the option of the Company and upon certain conditions provided for in
the Agreement described below, all or a portion of the Bonds (a) may be
converted or reconverted from time to time to or from the Weekly Mode or
Multiannual Mode, which means that the Rate Period is, respectively, one week
or one year or any multiple of one year, (b) may be converted or reconverted
from time to time to or from the Flexible Mode, and will have Rate Periods of
from one to 270 days as provided herein, or (c) may be converted to the Fixed
Rate Mode; provided, however, that in the Multiannual Mode the first rate
period occurring after conversion to such Mode may be shorter or longer than
the applicable multiple of one year as provided in the Agreement. While this
bond is in the Multiannual Mode, a new interest rate shall take effect on the
date such Mode takes effect and thereafter on the INTEREST PAYMENT DATE
ending the Rate Period designated by the Company.
While this bond is in the Multiannual Mode, conversions to any other
Mode, or conversions to new Rate Periods of the same or different lengths
while in the Multiannual Mode, may take place only on a date which would have
been an Effective Date for this bond, or if conversion is to the Flexible or
Weekly Mode and such day is not a Business Day, the first Business Day
thereafter. Conversion of this bond to another Mode, or to a new Rate Period
in the Multiannual Mode of the same or a different length, shall be subject
to the conditions set forth in the Agreement. In the event that the
conditions for a proposed conversion to a new Mode, or to a new Rate Period
in the Multiannual Mode of the same or different length, are not met (i) such
new Mode or Rate Period shall not take effect on the proposed conversion
date, notwithstanding any prior notice to the Bondowners of such conversion
and (ii) this bond shall automatically convert to the Flexible Mode with a
Rate Period of one day. In no event shall the failure of this bond to be
converted to another Mode or Rate Period be deemed to be a Default or an
Event of Default under the Agreement as long as the Purchase Price (as
defined below) is made available on the failed conversion date to owners of
all Bonds that were to have been converted.
When this bond is in any Multiannual Mode, the Multiannual Rate in
effect for each Rate Period (the "Effective Rate" for such Period) shall be
determined not later than two (2) Business Days prior to the Effective Date.
If the Remarketing Agent fails to make such determination or fails to
announce the Effective Rate as required with respect to any Bonds in the
Multiannual Mode, or if for any reason such manner of determination shall be
determined to be invalid or unenforceable, the rate to take effect on any
Effective Date shall be automatically converted to the Flexible Mode with a
Rate Period of one day. The Remarketing Agent shall announce the Effective
Rate by telephone to the Paying Agent on the date of determination thereof,
and shall promptly confirm such notice in writing.
Each determination and redetermination of the Multiannual Rate shall be
conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Company, the Bondowners and, if applicable, the Bank.
While this bond is in the Multiannual Mode, interest shall be computed
on the basis of a 360-day year consisting of twelve 30-day months. From and
after the date on which this bond becomes due, any unpaid principal will bear
interest at the then effective interest rate until paid or duly provided for.
While this bond is in the Multiannual Mode, the principal of and
premium, if any, on this bond are payable when due by check or draft in
clearinghouse funds to the REGISTERED OWNER hereof but only upon presentation
and surrender of this bond at the office of ,
, as Paying Agent, (with its successors in such capacity, the
"Paying Agent"). Interest on this bond while in the Multiannual Mode is
payable by check or draft in clearinghouse funds mailed on the applicable
payment date by the Paying Agent to the REGISTERED OWNER, determined as of
the close of business on the applicable record date, at its address as shown
on the registration books. The Purchase Price (as defined below) of Bonds
tendered for purchase shall be paid as provided below.
The record date for payment of interest while this bond is in the
Multiannual Mode is the fifteenth day of the month immediately preceding the
date on which the interest is to be paid, provided that with respect to
overdue interest or interest payable on redemption of this bond other than on
an INTEREST PAYMENT DATE or interest on any overdue amount, the Trustee may
establish a special record date. The special record date may be not more
than thirty (30) days before the date set for payment. The Paying Agent will
mail notice of a special record date to the Bondowners at least ten (10) days
before the special record date. The Paying Agent will promptly certify to
the Authority, the Trustee and the Remarketing Agent that it has mailed such
notice to all Bondowners, and such certificate will be conclusive evidence
that notice was given in the manner required hereby.
While this bond is in the Multiannual Mode, this bond is subject to
mandatory tender for purchase at a price (the "Purchase Price") equal to 100%
of the principal amount thereof, plus accrued interest, if any, on each
Effective Date. THE OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL
AND SURRENDER THIS BOND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT
AND, ON THE PURCHASE DATE, TO SURRENDER THIS BOND TO THE PAYING AGENT FOR
PAYMENT OF THE PURCHASE PRICE. UPON DEPOSIT OF THE PURCHASE PRICE WITH THE
PAYING AGENT ON THE PURCHASE DATE, THIS BOND SHALL BE DEEMED TENDERED FOR
PURCHASE AND SHALL CEASE TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST
HEREON SHALL CEASE TO ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED
OWNER HEREOF SHALL BE ENTITLED ONLY TO RECEIVE THE PURCHASE PRICE SO
DEPOSITED WITH THE PAYING AGENT UPON SURRENDER OF THIS CERTIFICATE TO THE
PAYING AGENT. All deliveries of tendered Bonds shall be made to the Paying
Agent at , New York, New York, Attention: , or such other
address specified in writing by the Paying Agent to the Bondowners.
The Purchase Price of this bond shall be paid to the REGISTERED OWNER by
the Paying Agent on the Delivery Date, which shall be the Purchase Date or
any subsequent Business Day on which this bond is delivered to the Paying
Agent. The Purchase Price of this bond shall be paid only upon surrender of
this bond to the Paying Agent as provided herein. From and after the
Purchase Date, no further interest on this bond shall be payable to the
REGISTERED OWNER, provided that there are sufficient funds available on the
Purchase Date to pay the Purchase Price. The Purchase Price of Bonds is
payable for Bonds in the Multiannual Mode by check or draft in clearinghouse
funds from the Paying Agent to the REGISTERED OWNER at its address shown on
the registration books maintained by the Paying Agent. If on any date this
bond is subject to mandatory tender for purchase, payment of the Purchase
Price of this bond to such owner shall be made on the Purchase Date if
presentation and surrender of this bond is made prior to 11:00 A.M., New York
City time, on the Purchase Date or on such later Business Day upon which
presentation and surrender of this bond is made prior to 11:00 A.M., New York
City time.
In the Multiannual Mode and after the expiration of the applicable No
Call Period (measured from the COMMENCEMENT DATE OF RATE PERIOD) set forth in
the following schedule, the Bonds shall be subject to redemption at the
direction of the Company in whole or in part at any time at the following
redemption prices expressed as a percentage of the principal amount redeemed,
plus interest accrued to the redemption date:
Length of
Multiannual Redemption
Rate Period No Call Period Price
Greater than 15 years 10 years 102%, declining by
1/2% on each
succeeding anni-
versary of the end
of the no call
period until
reaching 100%
and thereafter at 100%
Greater than 10, but not 8 years 101 1/2%, declining
greater than 15 years by 1/2% on each suc-
ceeding anniversary
of the end of the no
call period until
reaching 100% and
thereafter at 100%
Greater than 5, but not 5 years 101%, declining by
greater than 10 years 1/2% on the next
anniversary of the
end of the no call
period and there-
after at 100%
5 years or less Bonds not subject to
optional redemption
until commencement of
next Rate Period.
In addition, at the option of the Company, the Bonds in the Multiannual
Mode are subject to redemption prior to maturity as a whole at any time at
100% of the principal amount thereof, plus accrued interest to the redemption
date, within nine (9) months of the occurrence of certain extraordinary
events consisting of (a) damage or destruction, or loss of title by eminent
domain, to the Station or the Project Facilities, (b) changes in law
affecting the enforceability of the Agreement or imposing unreasonable
burdens or excessive liabilities on the Company relating to the Station or
the Project Facilities or their operation, (c) the enjoining or prohibiting
of the operation of the Station or the Project Facilities, or (d) changes in
the economic availability of fuel, materials, supplies, labor, equipment or
other properties or things rendering the continued operation of the Station
uneconomical, all as more fully described in the Agreement. The Company's
right to direct the redemption of the Bonds in the Multiannual Mode upon the
occurrence of any event listed above shall expire six (6) months after such
event occurs.
The Bonds are subject to mandatory redemption at any time at a
redemption price of 100% of the principal amount of the Bonds so redeemed
plus accrued interest in the event (i) the Company delivers to the Trustee an
opinion of nationally recognized bond counsel selected by the Company and
reasonably satisfactory to the Trustee ("Bond Counsel") stating that interest
on the Bonds is or will become includable in gross income of the owners
thereof for federal income tax purposes, or (ii) it is finally determined by
the Internal Revenue Service or a court of competent jurisdiction, as a
result of (A) a proceeding in which the Company has participated or been
given notice and an opportunity to participate, and, (B) either (1) a failure
by the Company (or the Seabrook Transferee as defined in the Agreement) to
observe any covenant or agreement undertaken in or pursuant to the Agreement,
or the inaccuracy of any representation made by the Company (or the Seabrook
Transferee) in or pursuant to the Agreement, or (2) the Seabrook Transfer (as
defined in the Agreement), that interest payable on the Bonds is includable
for federal income tax purposes in the gross income of any owner thereof
(other than an owner which is a "substantial user" or a "related person"
within the meaning of Section 147(a) of the Internal Revenue Code of 1986).
Any determination under clause (ii) above will not be considered final for
this purpose until the earliest of the conclusion of any appellate review,
the denial of appellate review or the expiration of the period for seeking
appellate review. Redemption under this paragraph shall be in whole unless
not less than forty-five (45) days prior to the redemption date the Company
delivers to the Trustee an opinion of Bond Counsel reasonably satisfactory to
the Trustee to the effect that a redemption of less than all of the Bonds
will preserve the tax-exempt status of interest on the remaining Bonds
outstanding subsequent to such redemption. Except as provided in the next
sentence, any such redemption shall be made on the 90th day after the date on
which the opinion described in clause (i) is delivered or the determination
described in clause (ii) becomes final or on such earlier date as the Company
may designate by notice given to the Trustee at least forty-five (45) days
prior to such designated date. Any Bond in the Flexible Mode that has a
Purchase Date prior to the redemption date established for that Bond pursuant
to the preceding sentence shall be redeemed on that Purchase Date. If such
redemption shall occur in accordance with the terms of the Agreement, then
such failure by the Company (or the Seabrook Transferee as described above)
to observe such covenant or agreement, or the inaccuracy of any such
representation will not, in and of itself, constitute a default thereunder.
If the Trustee receives written notice from any Bondowner stating that
(i) such Bondowner has been notified in writing by the Internal Revenue
Service that it proposes to include the interest on the Bonds in the gross
income of such owner for federal income tax purposes, or any other proceeding
has been instituted against such owner which may lead to a like
determination, and (ii) such owner will afford the Company the opportunity to
participate at its own expense in the proceeding, either directly or in the
name of such owner, until the conclusion of any appellate review, and the
Trustee has examined such written notice and it appears to be accurate on its
face, then the Trustee shall promptly give notice thereof to the Company, the
Authority, and each Bondowner whose Bonds may be affected. The Trustee shall
thereafter keep itself reasonably informed of the progress of any
administrative proceedings or litigation relating to such notice. Under the
Agreement the Company is required to give the Trustee written notice of such
a final determination within forty-five (45) days of such final
determination.
If less than all of the outstanding Bonds are to be called for
redemption, the Bonds (or portions thereof) to be redeemed shall be selected
as provided in the Agreement with Bonds in the Multiannual Mode being
redeemed in units of $5,000.
In the event this bond is selected for redemption, notice will be mailed
no more than forty-five (45) nor less than thirty (30) days prior to the
redemption date to the REGISTERED OWNER at its address shown on the
registration books maintained by the Paying Agent. Failure to mail notice to
the owner of any other Bond or any defect in the notice to such an owner
shall not affect the redemption of this bond.
If this bond is of a denomination in excess of five thousand dollars
($5,000), portions of the principal amount in the amount of five thousand
dollars ($5,000) or any multiple thereof may be redeemed. If less than all
of the principal amount is to be redeemed, upon surrender of this bond to the
Paying Agent, there will be issued to the REGISTERED OWNER, without charge, a
new Bond or Bonds, at the option of the REGISTERED OWNER, for the unredeemed
principal amount.
Notice of redemption having been duly mailed, this bond, or the portion
called for redemption, will become due and payable on the redemption date at
the applicable redemption price and, moneys for the redemption having been
deposited with the Paying Agent, from and after the date fixed for
redemption, interest on this bond (or such portion) will no longer accrue.
IN CERTAIN CIRCUMSTANCES SET OUT HEREIN, THIS BOND (OR PORTION HEREOF)
IS SUBJECT TO PURCHASE OR REDEMPTION. IN EACH SUCH EVENT AND UPON DEPOSIT OF
THE PURCHASE OR REDEMPTION PRICE WITH THE PAYING AGENT ON THE PURCHASE OR
REDEMPTION DATE, AS THE CASE MAY BE, THIS BOND (OR PORTION HEREOF) SHALL
CEASE TO BE DEEMED TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST HEREON
SHALL CEASE TO ACCRUE AS OF THE PURCHASE OR REDEMPTION DATE, AND THE
REGISTERED OWNER HEREOF SHALL BE ENTITLED ONLY TO RECEIVE THE PURCHASE OR
REDEMPTION PRICE SO DEPOSITED WITH THE PAYING AGENT ONLY UPON SURRENDER OF
THIS CERTIFICATE TO THE PAYING AGENT.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds in authorized denominations of the same
aggregate principal amount without transfer to a new registered owner.
Exchanges and transfers will be without expense to the owner except for
applicable taxes or other governmental charges, if any. The Paying Agent
will not be required to make an exchange or transfer of this bond (except in
connection with any optional or mandatory tender of this bond) (i) if this
bond (or any portion thereof) has been selected for redemption or (ii) during
the fifteen (15) days preceding any date fixed for selection for redemption
if this bond (or any portion thereof) is eligible to be selected for
redemption.
The Bonds are issuable only in fully registered form in denominations of
five thousand dollars ($5,000) or any multiple thereof.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or the Paying Agent.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK,
WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal)
By:
Title:
By:
Title:
Certificate of Authentication
This bond is one of the Bonds described in the Agreement.
STATE STREET BANK AND TRUST COMPANY
as Trustee
Date of Registration: By: , or
Authorized Signature
By: ,
as Paying Agent
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact to transfer
it on the books kept for registration of the bond, with full power of
substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a Participant in a Recognized Signature
Guaranty Medallion Program.
Dated:
Signature Guaranteed:
Participant in a Recognized
Signature Guaranty Medallion Program
By:
Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act
(State)
Additional abbreviations may also be used though not set forth in the list
above.
EXHIBIT J
FORM OF FIXED RATE 1993 SERIES E BOND
$ No. R-
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Refunding Revenue Bond
(Public Service Company of New Hampshire
Project - 1993 Tax-Exempt Series E)
INTEREST RATE: CUSIP:
MATURITY DATE: May 1, 2021
DATE OF THIS BOND:
(Date as of which Bonds of this
series were initially issued.)
INTEREST PAYMENT DATES: May 1 and November 1
(but not before
, )
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Business Finance Authority of the State of New Hampshire (the
"Authority"), for value received promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest (computed on the
basis of a 360-day year consisting of twelve 30-day months) from the most
recent INTEREST PAYMENT DATE to which interest has been paid or duly provided
for or, if no interest has been paid, from the DATE OF THIS BOND, at the
INTEREST RATE per annum, payable semiannually on the INTEREST PAYMENT DATES,
until the date on which this bond becomes due, whether at maturity or by
acceleration or redemption. From and after that date, any unpaid principal
will bear interest at the same rate until paid or duly provided for. The
principal and premium, if any, of this bond is payable in clearinghouse funds
at the office of , as Paying Agent (with its
successors, the "Paying Agent"). Interest is payable by check or draft in
clearinghouse funds mailed by the Paying Agent to the REGISTERED OWNER of
this bond (or of one or more predecessor or successor Bonds (as defined
below)), determined as of the close of business on the applicable record
date, at its address as shown on the registration books maintained by the
Paying Agent. If any payment, redemption or maturity date for principal,
premium or interest shall be (i) a Sunday or a legal holiday, or (ii) a day
on which banking institutions are authorized pursuant to law to close and on
which the corporate trust office of the Trustee or the First Mortgage Bond
Trustee is not open for business, then the payment thereof may be made on the
next succeeding day not a day specified in (i) or (ii) with the same force
and effect as if made on the specified payment date and no interest shall
accrue for the period after the specified payment date.
The record date for payment of interest is the fifteenth day of the
month preceding the date on which the interest is to be paid, provided that,
with respect to overdue interest or interest payable on redemption of this
bond other than on an INTEREST PAYMENT DATE or interest on any overdue
amount, the Trustee (as defined below) may establish a special record date.
The special record date may be not more than thirty (30) days before the date
set for payment. The Paying Agent will mail notice of a special record date
to the registered owners of the Bonds (the "Bondowners") at least ten (10)
days before the special record date. The Paying Agent will promptly certify
to the Authority and the Trustee that it has mailed such notice to all
Bondowners, and such certificate will be conclusive evidence that such notice
was given in the manner required hereby.
This bond is one of a series of Pollution Control Refunding Revenue
Bonds (Public Service Company of New Hampshire Project - 1993 Tax-Exempt
Series E) (the "Bonds") in the aggregate principal amount of $44,800,000
issued under New Hampshire RSA Chapter 162-I (the "Act"). The proceeds of
the Bonds are being loaned to Public Service Company of New Hampshire (the
"Company"), a New Hampshire corporation, pursuant to a Series E Loan and
Trust Agreement dated as of May 1, 1991, as supplemented and amended by a
First Supplement dated as of December 1, 1993 (the "Agreement") among the
Company, the Authority and State Street Bank and Trust Company, as Trustee
(the "Trustee") to refund a like principal amount of the Authority's
$114,500,000 Pollution Control Revenue Bonds (Public Service Company of New
Hampshire Project - 1991 Taxable Series E) (the "1991 Bonds"), which were
originally issued to finance certain costs associated with the Company's
ownership interest in air or water pollution control and sewage or solid
waste disposal facilities installed for use by Unit No. 1 at the nuclear
electric generating station (the "Station") in Seabrook, New Hampshire (the
"Project Facilities"). Pursuant to the Agreement, the Company has
unconditionally agreed to repay such loan in the amounts and at the times
necessary to pay the principal of, premium, if any, and interest on the Bonds
when due. To evidence and secure such loan and the Company's reimbursement
and certain other obligations, if any, under the Reimbursement Agreement (as
defined in the Agreement), the Company has issued and delivered to the
Trustee its First Mortgage Bonds, Series G (the "Series G First Mortgage
Bonds") issued under the First Mortgage Indenture dated as of August 15,
1978, as amended, and the Tenth Supplemental Indenture thereto dated as of
May 1, 1991 between the Company and First Fidelity Bank, National
Association, New Jersey, as Trustee (as amended and supplemented from time to
time, the "First Mortgage Bond Indenture") in an aggregate principal amount,
and with an interest rate, maturity date and redemption provisions
corresponding to those of the Bonds and certain other bonds issued under the
Agreement, including the 1991 Bonds. As provided in the Agreement, payments
of principal of, and premium, if any, and interest on the Series G First
Mortgage Bonds shall, upon receipt by the Trustee, be deemed to constitute
payments in corresponding amounts by the Company in respect of the Bonds and
certain other bonds issued under the Agreement, including the 1991 Bonds.
Reference is hereby made to the Agreement for the provisions thereof with
respect to the rights, limitations of rights, duties, obligations and
immunities of the Company, the Authority, the Trustee, the Paying Agent, and
the Bondowners, including the order of payments in the event of insufficient
funds, the disposition of unclaimed moneys held by the Trustee and
restrictions on the rights of owners of the Bonds to bring suit. The
Agreement may be amended to the extent and in the manner provided therein.
Copies of the Agreement are available for inspection at the corporate trust
office of the Trustee.
In case any Event of Default (as defined in the Agreement) occurs and is
continuing, the principal amount of this bond together with accrued interest
may be declared due and payable in the manner and with the effect provided in
the Agreement.
The Bonds are redeemable pursuant to the Agreement prior to maturity
beginning on , , at the option of the Authority by direction of
the Company, as a whole or in part at any time, at the following prices
expressed in percentages of their principal amount, plus accrued interest to
the redemption date:
Period During Which Redeemed Redemption Price
%
[Table to be prepared upon Fixed Rate conversion. The table shall be based
on redemption schedule established for the bond in the Multiannual Mode.]
In addition, at the option of the Company, this bond is subject to
redemption prior to maturity at 100% of the principal amount thereof, plus
accrued interest to the redemption date within nine (9) months of the
occurrence of certain extraordinary events consisting of (a) damage or
destruction, or loss of title by eminent domain, to the Station or the
Project Facilities, (b) changes in law affecting the enforceability of the
Agreement or imposing unreasonable burdens or excessive liabilities on the
Company relating to the Station or the Project Facilities or their operation,
(c) the enjoining or prohibiting of the operation of the Station or the
Project Facilities, or (d) changes in the economic availability of fuel,
materials, supplies, labor, equipment or other properties or things rendering
the continued operation of the Station uneconomical, all as more fully
described in the Agreement. The Company's right to direct the redemption of
this bond upon the occurrence of any event listed above shall expire six (6)
months after such event occurs.
The Bonds are subject to mandatory redemption at any time at a
redemption price of 100% of the principal amount of the Bonds so redeemed
plus accrued interest in the event (i) the Company delivers to the Trustee an
opinion of nationally recognized bond counsel selected by the Company and
reasonably satisfactory to the Trustee ("Bond Counsel") stating that interest
on the Bonds is or will become includable in gross income of the owners
thereof for federal income tax purposes, or (ii) it is finally determined by
the Internal Revenue Service or a court of competent jurisdiction, as a
result of (A) a proceeding in which the Company has participated or been
given notice and an opportunity to participate, and, (B) either (1) a failure
by the Company (or the Seabrook Transferee as defined in the Agreement) to
observe any covenant or agreement undertaken in or pursuant to the Agreement,
or the inaccuracy of any representation made by the Company (or the Seabrook
Transferee) in or pursuant to the Agreement, or (2) the Seabrook Transfer (as
defined in the Agreement), that interest payable on the Bonds is includable
for federal income tax purposes in the gross income of any owner thereof
(other than an owner which is a "substantial user" or a "related person"
within the meaning of Section 147(a) of the Internal Revenue Code of 1986).
Any determination under clause (ii) above will not be considered final for
this purpose until the earliest of the conclusion of any appellate review,
the denial of appellate review or the expiration of the period for seeking
appellate review. Redemption under this paragraph shall be in whole unless
not less than forty-five (45) days prior to the redemption date the Company
delivers to the Trustee an opinion of Bond Counsel reasonably satisfactory to
the Trustee to the effect that a redemption of less than all of the Bonds
will preserve the tax-exempt status of interest on the remaining Bonds
outstanding subsequent to such redemption. Except as provided in the next
sentence, any such redemption shall be made on the 90th day after the date on
which the opinion described in clause (i) is delivered or the determination
described in clause (ii) becomes final or on such earlier date as the Company
may designate by notice given to the Trustee at least forty-five (45) days
prior to such designated date. Any Bond in the Flexible Mode that has a
Purchase Date prior to the redemption date established for that Bond pursuant
to the preceding sentence shall be redeemed on that Purchase Date. If such
redemption shall occur in accordance with the terms of the Agreement, then
such failure by the Company (or the Seabrook Transferee as described above)
to observe such covenant or agreement, or the inaccuracy of any such
representation will not, in and of itself, constitute a default thereunder.
If the Trustee receives written notice from any Bondowner stating that
(i) such Bondowner has been notified in writing by the Internal Revenue
Service that it proposes to include the interest on the Bonds in the gross
income of such owner for federal income tax purposes, or any other proceeding
has been instituted against such owner which may lead to a like
determination, and (ii) such owner will afford the Company the opportunity to
participate at its own expense in the proceeding, either directly or in the
name of such owner, until the conclusion of any appellate review, and the
Trustee has examined such written notice and it appears to be accurate on its
face, then the Trustee shall promptly give notice thereof to the Company, the
Authority, and each Bondowner whose Bonds may be affected. The Trustee shall
thereafter keep itself reasonably informed of the progress of any
administrative proceedings or litigation relating to such notice. Under the
Agreement the Company is required to give the Trustee written notice of such
a final determination within forty-five (45) days of such final
determination.
If less than all of the outstanding Bonds are to be called for
redemption, the Bonds (or portions thereof) to be redeemed shall be selected
as provided in the Agreement.
In the event this bond is selected for redemption, notice will be mailed
no more than forty-five (45) nor less than thirty (30) days prior to the
redemption date to the REGISTERED OWNER at its address shown on the
registration books maintained by the Paying Agent. Failure to mail notice to
the owner of any other Bond or any defect in the notice to such an owner
shall not affect the redemption of this bond.
If this bond is of a denomination in excess of five thousand dollars
($5,000), portions of the principal amount in the amount of five thousand
dollars ($5,000) or any multiple thereof may be redeemed. If less than all
of the principal amount is to be redeemed, upon surrender of this bond to the
Paying Agent, there will be issued to the REGISTERED OWNER, without charge, a
new Bond or Bonds, at the option of the REGISTERED OWNER, for the unredeemed
principal amount.
Notice of redemption having been duly mailed, this bond, or the portion
called for redemption, will become due and payable on the redemption date at
the applicable redemption price and, moneys for the redemption having been
deposited with the Paying Agent, from and after the date fixed for
redemption, interest on this bond (or such portion) will no longer accrue.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this Bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds of the same aggregate principal amount without
transfer to a new registered owner. Exchanges and transfers will be without
expense to the holder except for applicable taxes or other governmental
charges, if any. The Paying Agent will not be required to make an exchange
or transfer of this bond during the fifteen (15) days preceding any date
fixed for selection for redemption if this bond (or any part thereof) is
eligible to be selected or has been selected for the redemption.
This bond is issuable only in fully registered form in the denominations
of five thousand dollars ($5,000) or any multiple thereof.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or the Paying Agent.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND ON THE BACK,
WHICH HAVE THE SAME EFFECT AS IF SET FORTH HERE.
BUSINESS FINANCE AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal)
By:
Title:
By:
Title:
Certificate of Authentication
This bond is one of the Bonds described in the Agreement.
STATE STREET BANK AND TRUST COMPANY
as Trustee
Date of Registration: By: , or
Authorized Signature
By: ,
as Paying Agent
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact to transfer it
on the books kept for registration of the bond, with full power of
substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a Participant in a Recognized Signature
Guaranty Medallion Program.
Dated:
Signature Guaranteed:
Participant in a Recognized
Signature Guaranty Medallion Program
By:
Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act
(State)
Additional abbreviations may also be used though not set forth in the list
above.
EXHIBIT K
FORM OF BOOK-ENTRY ONLY SYSTEM FLEXIBLE 1991 SERIES E BOND
$69,700,000 No. R-1
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to or its agent
for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
ANY BONDHOLDER WHO FAILS TO DELIVER A BOND FOR PURCHASE AT THE TIMES AND AT
THE PLACE REQUIRED HEREIN SHALL HAVE NO FURTHER RIGHTS HEREUNDER EXCEPT THE
RIGHT TO RECEIVE THE PURCHASE PRICE HEREOF UPON PRESENTATION AND SURRENDER OF
THIS BOND TO THE PAYING AGENT AS DESCRIBED HEREIN, AND SHALL HOLD THIS BOND
AS AGENT FOR THE PAYING AGENT.
UNITED STATES OF AMERICA
STATE OF NEW HAMPSHIRE
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
Pollution Control Revenue Bond
(Public Service Company of New Hampshire
Project - 1991 Taxable Series E)
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: SIXTY-NINE MILLION SEVEN HUNDRED THOUSAND DOLLARS
MATURITY DATE: May 1, 2021
CUSIP:
DATE OF THIS BOND: May 16, 1991
(Date as of which Bonds of this
series were initially issued.)
MODE: Flexible
THIS BOND DOES NOT CONSTITUTE AN INDEBTEDNESS OF THE STATE OF NEW
HAMPSHIRE OR OF THE AUTHORITY EXCEPT TO THE EXTENT PERMITTED BY NEW HAMPSHIRE
RSA CHAPTER 162-I. ALL AMOUNTS OWED HEREUNDER ARE PAYABLE ONLY FROM THE
SOURCES PROVIDED IN THE LOAN AND TRUST AGREEMENT DESCRIBED BELOW, AND NO
PUBLIC FUNDS MAY BE USED FOR THAT PURPOSE.
The Industrial Development Authority of the State of New Hampshire (the
"Authority"), for value received, promises to pay to the REGISTERED OWNER, or
registered assigns, but solely from the moneys to be provided under the
Agreement mentioned below, upon presentation and surrender hereof, in lawful
money of the United States of America, the PRINCIPAL AMOUNT on the MATURITY
DATE, unless paid earlier as provided below, with interest from the most
recent Interest Payment Date, as defined below, to which interest has been
paid or duly provided for or, if no interest has been paid, from the DATE OF
THIS BOND set forth above, until paid in full, at the rates set forth below,
payable on each Interest Payment Date. So long as this bond is in the
Flexible Mode, interest shall be due on this bond on each Purchase Date (as
defined below) and on the MATURITY DATE, and when this bond is in any other
Mode interest shall be due on the dates provided in the Agreement (the
"Interest Payment Dates"). Until conversion to the Weekly, Multiannual or
Fixed Rate Mode as provided below, this bond shall bear interest at the
Flexible Rate. The Flexible Rate for this bond shall be the rate of interest
determined by the Remarketing Agent designated as provided in the Agreement
(herein, with its successors, the "Remarketing Agent"), for each Rate Period,
as defined below, to be the lowest rate which in its judgment, on the basis
of prevailing financial market conditions, is necessary on and as of the
Effective Date, as defined below, to remarket each Bond having such Rate
Period in a secondary market transaction at a price equal to the principal
amount thereof, but not in excess of the Maximum Interest Rate. If this bond
is converted to the Weekly, Multiannual or Fixed Rate Mode it shall bear
interest at the Weekly, Multiannual or Fixed Rate, as the case may be, as
defined in the Agreement. The Remarketing Agent shall determine the initial
Flexible Rate on or before the date of issue in or of conversion to the
Flexible Mode, which rate shall remain in effect as provided in the
Agreement. Thereafter, the Remarketing Agent shall redetermine the Flexible
Rate for each Rate Period as provided below. The amount of interest due on
any Interest Payment Date shall be the amount of unpaid interest accrued on
this bond through the day preceding such Interest Payment Date or, if such
Interest Payment Date is not a Business Day, through the day preceding the
first Business Day succeeding such Interest Payment Date.
This bond is one of a series of Pollution Control Revenue Bonds (Public
Service Company of New Hampshire Project - 1991 Taxable Series E) (the
"Bonds") in the aggregate principal amount of $114,500,000 issued under New
Hampshire RSA Chapter 162-I (the "Act"). The proceeds of the Bonds are being
loaned to Public Service Company of New Hampshire (the "Company"), a New
Hampshire corporation, pursuant to a Series E Loan and Trust Agreement (the
"Agreement") dated as of May 1, 1991 among the Company, the Authority and
State Street Bank and Trust Company, as Trustee (the "Trustee") to finance
certain costs associated with the Company's ownership interest in air or
water pollution control and sewage or solid waste disposal facilities
installed for use by Unit No. 1 at the nuclear electric generating station
(the "Station") in Seabrook, New Hampshire (the "Project Facilities").
Pursuant to the Agreement, the Company has unconditionally agreed to repay
such loan in the amounts and at the times necessary to pay the principal of,
premium, if any, and interest on the Bonds when due. To evidence and secure
such loan and the Company's reimbursement and certain other obligations under
the Reimbursement Agreement (as defined below), the Company has issued and
delivered to the Trustee its First Mortgage Bonds, Series G (the "Series G
First Mortgage Bonds") issued under the First Mortgage Indenture dated as of
August 15, 1978, as amended, and the Tenth Supplemental Indenture thereto
dated as of May 1, 1991 between the Company and First Fidelity Bank, National
Association, New Jersey, as Trustee (as amended and supplemented from time to
time, the "First Mortgage Bond Indenture") in an aggregate principal amount,
and with an interest rate, maturity date and redemption provisions
corresponding to those of the Bonds. As provided in the Agreement, payments
of principal of, and premium, if any, and interest on the Series G First
Mortgage Bonds shall, upon receipt by the Trustee, be deemed to constitute
payments in corresponding amounts by the Company in respect of the Bonds.
Reference is hereby made to the Agreement for the provisions thereof with
respect to the rights, limitations of rights, duties, obligations and
immunities of the Company, the Authority, the Trustee, the Paying Agent, and
the Bondowners, including the order of payments in the event of insufficient
funds, the disposition of unclaimed moneys held by the Trustee and
restrictions on the rights of owners of the Bonds to bring suit. The
Agreement may be amended to the extent and in the manner provided therein.
Copies of the Agreement are available for inspection at the corporate trust
office of the Trustee.
The Purchase Price (as defined below) and principal of and interest on
this bond while it is in the Flexible Mode is also payable from moneys drawn
by the Paying Agent on an irrevocable letter of credit for the Bonds
(together with any extensions and renewals thereof, the "Letter of Credit")
issued by Swiss Bank Corporation, New York Branch pursuant to the terms of a
Second Series E Letter of Credit and Reimbursement Agreement dated as of May
1, 1995 (the "Reimbursement Agreement") by and between the Company and Swiss
Bank Corporation, New York Branch (together with any other issuer of a Credit
Facility, the "Bank"). The Letter of Credit initially expires on May 1, 1998
but may be terminated earlier upon the occurrence of certain events set forth
in the Agreement and the Reimbursement Agreement or extended as provided in
the Reimbursement Agreement. The Company may substitute the Letter of Credit
in whole or in part with one or more new letters of credit (collectively with
the Letter of Credit, a "Credit Facility") as provided in the Agreement and
the Reimbursement Agreement. The Company may substitute a new Letter of
Credit as provided in the Agreement.
Unless otherwise defined herein, capitalized terms used in this bond
shall have the meaning given them in the Agreement. The following terms are
defined as follows:
"Business Day" means a day (i) that is not a Sunday or legal holiday or
a day on which banking institutions are authorized pursuant to law to close,
(ii) that is not a day on which the corporate trust office of the First
Mortgage Bond Trustee is not open for business, (iii) that is a day on which
banks are not required or authorized to close in New York, New York, and (iv)
that is a day on which banking institutions in all of the cities in which the
principal offices of the Trustee and the Paying Agent and, if applicable, the
Remarketing Agent and the Bank are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
"Effective Date" means, with respect to a Bond in the Flexible, Weekly
and Multiannual Modes, the date on which a new Rate Period for that Bond
takes effect.
"Mode" means the period for and the manner in which the interest rates
on the Bonds are set and includes the Flexible Mode, the Weekly Mode, the
Multiannual Mode and the Fixed Rate Mode.
"Purchase Date" means, while this bond is in the Flexible Mode, the date
on which this bond shall be required to be purchased pursuant to a mandatory
tender in accordance with the provisions hereof.
"Rate Period" or "Period" means, when used with respect to any
particular rate of interest for a Bond in the Flexible, Weekly or Multiannual
Mode, the period during which such rate of interest determined for such Bond
will remain in effect as described herein.
At the option of the Company and upon certain conditions provided for in
the Agreement described below, all or a portion of the Bonds (a) may be
converted or reconverted from time to time to or from the Weekly Mode or
Multiannual Mode, which means that the Rate Period is, respectively, one week
or one year or any multiple of one year, (b) may be converted or reconverted
from time to time to or from the Flexible Mode, and will have Rate Periods of
from one to 270 days as provided herein, or (c) may be converted to the Fixed
Rate Mode; provided, however, that in the Multiannual Mode the first rate
period occurring after conversion to such Mode may be shorter than the
applicable multiple of one year as provided in the Agreement. While this
bond is in the Flexible Mode, a new interest rate shall take effect on the
date such Mode takes effect, and on the Effective Date of the next Flexible
Rate Period, as defined herein, applicable to this bond.
While this bond is in the Flexible Mode, conversions to any other Mode
may take place only on an Effective Date. Conversion of this bond to another
Mode shall be subject to certain conditions set forth in the Agreement. In
the event that the conditions for a proposed conversion to a new Mode are not
met (i) such new Mode shall not take effect on the proposed conversion date,
notwithstanding any prior notice to the Bondowners of such conversion and
(ii) this bond shall remain in the Flexible Mode with a Rate Period of one
day. In no event shall the failure of this bond to be converted to another
Mode be deemed to be a Default or an Event of Default under the Agreement as
long as the Purchase Price (as defined below) is made available on the failed
conversion date to owners of all Bonds that were to have been converted.
While Bonds bear interest at Flexible Rates, the interest rate for each
particular Bond in the Flexible Mode will be determined by the Remarketing
Agent and will remain in effect from and including the Effective Date of the
Rate Period selected for that Bond by the Remarketing Agent through the last
date thereof. While the Bonds are in the Flexible Mode, Bonds may have
successive Rate Periods of any duration up to 270 days each and ending on a
Business Day and any Bond may bear interest at a rate and for a period
different from any other Bond.
In the event that the Remarketing Agent no longer determines, or fails
to determine when required, any Rate Period or any Flexible Rate for any
Bonds, or if for any reason such manner of determination shall be determined
to be invalid or unenforceable, the Rate Period for any such Bond shall be
deemed to be a Flexible Rate Period with a duration of one day and the
Flexible Rate shall be determined as provided in the Agreement.
While this bond is in the Flexible Mode it is subject to mandatory
tender for purchase on each applicable Effective Date at a price (the
"Purchase Price") of par plus accrued interest to the Effective Date. THE
OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO SELL AND SURRENDER THIS
BOND IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT AND, ON THE PURCHASE
DATE, TO SURRENDER THIS BOND TO THE PAYING AGENT FOR PAYMENT OF THE PURCHASE
PRICE. UPON DEPOSIT OF THE PURCHASE PRICE WITH THE PAYING AGENT ON THE
PURCHASE DATE, THIS BOND SHALL BE DEEMED TENDERED FOR PURCHASE AND SHALL
CEASE TO BE OUTSTANDING UNDER THE AGREEMENT, INTEREST HEREON SHALL CEASE TO
ACCRUE AS OF THE PURCHASE DATE, AND THE REGISTERED OWNER HEREOF SHALL BE
ENTITLED ONLY TO RECEIVE THE PURCHASE PRICE SO DEPOSITED WITH THE PAYING
AGENT UPON SURRENDER OF THIS CERTIFICATE TO THE PAYING AGENT. The Purchase
Price shall be paid on the Delivery Date, which shall be the Effective Date
or any subsequent Business Day on which this bond is delivered to the Paying
Agent. The Purchase Price of this bond shall be paid only upon surrender of
this bond to the Paying Agent as provided herein. From and after the
Effective Date, no further interest shall be payable to the REGISTERED OWNER
during the preceding Rate Period, provided that there are sufficient funds
available on the Effective Date to pay the Purchase Price.
Each determination and redetermination of the Flexible Rate shall be
conclusive and binding on the Authority, the Trustee, the Paying Agent, the
Bank, the Company and the Bondowners.
While this bond is in the Flexible Mode, interest shall be computed on
the basis of actual days elapsed divided by 360. From and after the date on
which this bond becomes due, any unpaid principal will bear interest at the
then effective interest rate until paid or duly provided for.
While this bond is in the Flexible Mode, the principal of and interest
on this bond due on the MATURITY DATE are payable when due by wire or bank
transfer of immediately available funds within the continental United States
to the REGISTERED OWNER hereof but only upon presentation and surrender of
this bond at the offices of BankAmerica National Trust Company, New York, New
York, as Paying Agent (with its successors in such capacity, the "Paying
Agent"). While this bond is in the Flexible Mode, the Purchase Price of this
bond (which includes accrued interest to the Purchase Date) tendered for
purchase is payable by wire or bank transfer within the continental United
States from the Paying Agent to the REGISTERED OWNER at its address shown on
the registration books maintained by the Paying Agent. Payment of the
Purchase Price of this bond to such owner shall be made on the Purchase Date
if presentation and surrender of this bond is made prior to 11:00 A.M., New
York City time, on the Purchase Date or on such later Business Day upon which
presentation and surrender of this bond is made prior to 11:00 A.M., New York
City time. The Purchase Price of this bond shall be paid in immediately
available funds. Overdue interest on this bond, or interest on overdue
principal while in the Flexible Mode is payable in immediately available
funds by wire or bank transfer within the continental United States from the
Paying Agent to the REGISTERED OWNER, determined as of the close of business
on the applicable special record date as determined by the Trustee, at its
address as shown on the registration books maintained by the Paying Agent.
The special record date may be not more than thirty (30) days before the date
set for payment. The Paying Agent will mail notice of a special record date
to the Bondowners at least ten (10) days before the special record date. The
Paying Agent will promptly certify to the Authority, the Trustee and the
Remarketing Agent that it has mailed such notice to all Bondowners, and such
certificate will be conclusive evidence that notice was given in the manner
required hereby.
This bond is transferable by the REGISTERED OWNER, in person or by its
attorney duly authorized in writing, at the office of the Paying Agent, upon
surrender of this bond to the Paying Agent for cancellation. Upon the
transfer, a new Bond or Bonds in authorized denominations of the same
aggregate principal amount will be issued to the transferee at the same
office. No transfer will be effective unless represented by such surrender
and reissue. This bond may also be exchanged at the office of the Paying
Agent for a new Bond or Bonds in authorized denominations of the same
aggregate principal amount without transfer to a new registered owner.
Exchanges and transfers will be without expense to the owner except for
applicable taxes or other governmental charges, if any.
The Bonds are issuable only in fully registered form and while in the
Flexible Mode shall be in denominations of $100,000 or any multiple of $1,000
in excess of $100,000.
The Authority, the Trustee, the Paying Agent and the Company may treat
the REGISTERED OWNER as the absolute owner of this bond for all purposes,
notwithstanding any notice to the contrary.
No director, officer, employee or agent of the Authority nor any person
executing this bond (by facsimile signature or otherwise) shall be personally
liable, either jointly or severally, hereon or be subject to any personal
liability or accountability by reason of the issuance hereof.
This bond will not be valid until the Certificate of Authentication has
been signed by the Trustee or its duly appointed agent for such purpose.
THE INDUSTRIAL DEVELOPMENT AUTHORITY
OF THE STATE OF NEW HAMPSHIRE
(Seal) By:
Chairman
By:
Executive Director
Certificate of Authentication
This bond is one of the Bonds described in the Loan and Trust Agreement.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
Date of Registration:
By: , or
Authorized Signature
By: BANKAMERICA NATIONAL TRUST
COMPANY, as agent of the Trustee
By:
Authorized Signature
Assignment
For value received the undersigned sells, assigns and transfers this
bond to
(Name and Address of Assignee)
Social Security or Other Identifying Number of Assignee
and irrevocably appoints attorney-in-fact to
transfer it on the books kept for registration of the bond, with full power
of substitution.
NOTE: The signature to this assignment must correspond with the name as
written on the face of the bond without alteration or enlargement or other
change and must be guaranteed by a Participant in a Recognized Signature
Guaranty Medallion Program.
Dated:
Signature Guaranteed:
Participant in a Recognized
Signature Guaranty Medallion Program
Firm
By:
Authorized Signature
The following abbreviations, when used in the inscription on the face of
this bond, shall be construed as though they were written out in full
according to applicable law.
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entirety Custodian
JT TEN - as joint tenants with rights (Cust) (Minor)
of survivorship and not as
tenants in common
Act
(State)
Additional abbreviations may also be used though not set forth in the list
above.
EXHIBIT L
REPRESENTATION LETTER
EXHIBIT M
1993 SERIES E BONDS REPRESENTATION LETTER
(1) Footnotes (i) indicate amendments made by the First Supplement, (ii)
indicate amendments made by the Second Supplement, (iii) indicate text taken
from the First Supplement or the Second Supplement and added concurrently
with the amendment and restatement hereof, (iv) indicate certain other
changes made concurrently with the amendment and restatement hereof, and (v)
provide explanations with respect to certain amendments and changes.
Footnotes are for convenience only and shall not affect the construction
hereof.
(2) Fees with respect to 1993 Series E Bonds from Paragraph 102(a)(3)
of First Supplement, added concurrently with the amendment and restatement
hereof.
(3) Paragraph 102(a)(4) amended concurrently with the amendment and
restatement hereof as follows:
(4) "Bank" means Barclays Bank PLC, acting through its New York Branch, in
its capacity as issuer of the Letter of Credit and any other issuer of a
Credit Facility.
(4) Paragraph 102(a)(8) amended concurrently with the amendment and
restatement hereof as follows:
(8) "Bonds" means the 1991 Series E Bonds, the 1993 Series E Bonds, any
other Tax-Exempt Refunding Bonds and any bond or bonds duly issued in
exchange or replacement therefor.
(5) First sentence of Paragraph 102(a)(13) amended by Subsection 310(b)
of First Supplement as follows:
"Credit Facility" means the Letter of Credit and any substitute irrevocable
transferable letter of credit delivered to the Paying Agent pursuant to this
Agreement and then in effect, as each may be amended from time to time
pursuant to the terms of this Agreement or any amendment or supplement to
this Agreement.
(6) Paragraph 102(a)(31) amended concurrently with the amendment and
restatement hereof as follows:
(31) "Letter of Credit" means the $73,666,000 irrevocable letter of credit
No. 841785 issued by Barclays Bank PLC, acting through its New York Branch,
for the benefit of the Paying Agent.
(7) New last sentence of Paragraph 102(a)(33) from Section 305 of First
Supplement, added concurrently with the amendment and restatement hereof.
(8) New definition of 1993 Series E Bonds in clause (ii) of Paragraph
102(a)(39) from Paragraph 102(a)(7) of First Supplement, added concurrently
with the amendment and restatement hereof.
(9) Paragraph 102(a)(50) amended concurrently with the amendment and
restatement hereof as follows:
(50) "Reimbursement Agreement" means the Third Series E Letter of Credit and
Reimbursement Agreement dated as of April 1, 1999 among the Company,
Barclays Bank PLC, New York Branch, as agent and issuing bank thereunder, and
the participating banks referred to therein, and any other agreement between
the Company and a Bank under which the Company is obligated to reimburse the
Bank for payments made by the Bank under a Credit Facility.
(10) Paragraph 102(a)(57) amended concurrently with the amendment and
restatement hereof as follows:
(57) "Tax-Exempt Refunding Bonds" means Bonds issued to refund the 1991
Series E Bonds pursuant to Article IV hereof, including, unless the context
otherwise requires, the 1993 Series E Bonds.
(11) Subsection 201(a) formerly Section 201.
(12) New Subsection 201(b) from Section 201 of First Supplement, added
concurrently with the amendment and restatement hereof.
(13) Forms of 1991 Series E Bonds moved from text to Exhibits
concurrently with the amendment and restatement hereof. Forms of 1993 Series
E Bonds from Section 301 of First Supplement and form of Book-Entry Only
System Flexible 1991 Series E Bond from Subsection 201(b) and Exhibit A of
Second Supplement added concurrently with the amendment and restatement
hereof.
(14) Paragraph 301(b)(i) formerly Subsection 301(b).
(15) New Paragraph 301(b)(ii) from Section 302 of First Supplement,
added concurrently with the amendment and restatement hereof.
(16) Clause (i) of Paragraph 301(d)(ii) amended concurrently with the
amendment and restatement hereof to change "one year" to "364 days."
(17) First sentence of Paragraph 301(e)(ii) amended by Subsection 311(a)
of First Supplement as follows:
The Bonds in the Weekly Mode or any portion of such Bonds may be converted on
the first Business Day of any calendar month at the election of the Company
from the Weekly Mode to a Multiannual, Flexible, or Fixed Rate Mode, as
provided in the form of Weekly Bonds, so long as no Default hereunder exists
as certified to the Trustee by a Company Representative.
(18) Clause (i) of Paragraph 301(e)(ii) amended concurrently with the
amendment and restatement hereof to change "one year" to "364 days."
(19) Last sentence of Subparagraph 301(e)(iv)(A) amended by Subsection
311(b) of First Supplement as follows:
At least forty (40) days prior to the mandatory tender date, the Trustee
shall give notice to the Paying Agent as to whether or not it has received
the notices described in the immediately preceding sentence from Moody's and
S&P, and if the Trustee has not received such notices or if the Credit
Facility is expiring without substitution or replacement, the Paying Agent
shall give notice to the Bondowners of the mandatory tender of the Bonds at
least thirty (30) days prior to the mandatory tender date.
(20) Clause (i) of Paragraph 301(f)(ii) amended concurrently with the
amendment and restatement hereof to change "one year" to "364 days."
(21) Subsection 303(a) formerly Section 303.
(22) New Subsection 303(b) from Section 304 of First Supplement, added
concurrently with the amendment and restatement hereof.
(23) First sentence of Paragraph 308(c)(i) amended by Subsection 312(a)
of First Supplement as follows:
If a Credit Facility is available for any portion of the Bonds, the Paying
Agent shall not later than 4:00 P.M. on the Business Day next preceding any
date on which payments of the principal of, premium, if any, or interest on
such Bonds are due, whether at maturity, on an interest payment date, by
acceleration, redemption, or otherwise, draw on the Credit Facility an amount
sufficient to pay in full the principal, premium, if any, and interest then
coming due on such Bonds.
(24) Paragraph 308(c)(iii) amended by Subsection 312(b) of First
Supplement as follows:
(iii) Use of Credit Facility. All amounts received by the Paying Agent
under any Credit Facility shall be held in a fund separate and apart from all
other amounts held by the Paying Agent, shall remain uninvested and used
solely to pay the Purchase Price or principal of, premium, if any, and
interest on the Bonds for which the Credit Facility is available. Principal
and Purchase Price of, premium, if any, and interest on Company Bonds,
Pledged Bonds and Bonds not supported by a Credit Facility shall not be paid
from amounts drawn on a Credit Facility.
Paragraph 308(c)(iii) further amended concurrently with the amendment and
restatement hereof as follows:
(iii) Use of Credit Facility. All amounts received by the Paying Agent
under any Credit Facility shall be held in a segregated account, shall
remain uninvested and shall be used solely to pay the Purchase Price or
principal of, premium, if any, and interest on the Bonds for which the Credit
Facility is available. Principal and Purchase Price of, premium, if any, and
interest on Company Bonds, Pledged Bonds and Bonds not supported by a Credit
Facility shall not be paid from amounts drawn on a Credit Facility.
(25) Paragraph 308(c)(iv) added by Subsection 312(c) of First
Supplement.
(26) Subsection 310(c) amended by Section 307 of First Supplement as
follows:
(c) Notice by the Company. The Company shall exercise its option to have
Bonds redeemed under Subsection 310(a) or (b) by giving notice to the
Trustee, the Authority, the Paying Agent, and the Remarketing Agent at least
five (5) days before the redemption date in the case of Bonds in the Flexible
Mode, and forty-five (45) days before the redemption date in the case of
Bonds in any other Mode.
(27) Subsection 310(e) amended by Section 308 of First Supplement as
follows:
(e) Notice of Redemption. When Bonds are to be redeemed, the Paying Agent
shall give notice to the Bondowners in the name of the Authority, which
notice shall identify the Bonds to be redeemed, state the date fixed for
redemption and specify the office of the Paying Agent at which such Bonds
will be redeemed. The notice shall further state that on such date there
shall become due and payable upon each Bond to be redeemed the redemption
price thereof, together with interest accrued to the redemption date, and
that moneys therefor having been deposited with the Paying Agent, from and
after such date, interest thereon shall cease to accrue and that the Bonds or
portions thereof called for redemption shall cease to be entitled to any
benefit under this Agreement except the right to receive payment of the
redemption price. The Paying Agent shall mail the redemption notice the
number of days prior to the date fixed for redemption provided in the forms
of Bond for the Mode the Bonds are in, to the registered owners of any Bonds
which are to be redeemed, at their addresses shown on the registration books
maintained by the Paying Agent. Failure to mail notice to a particular
Bondowner, or any defect in the notice to such Bondowner, shall not affect
the redemption of any other Bond. No notice shall be given of redemption of
Bonds in the Flexible Mode, except for such redemption pursuant to Section
405 as and when provided in the form of Flexible Bonds.
(28) Subsection 311(c) added by Section 313 of First Supplement.
(29) Fifth sentence of second paragraph of Subsection 312(a) amended by
Section 314 of First Supplement as follows:
Upon receipt by the Paying Agent of notice from the Remarketing Agent that a
purchaser has been found for Pledged Bonds or Company Bonds held by the
Paying Agent, the Paying Agent shall register and deliver such Bonds to such
purchaser (at which time such Bonds shall cease to be Pledged Bonds or
Company Bonds) upon receipt by the Paying Agent of the Purchase Price of such
Bonds, provided, however, that no Pledged Bond or Company Bond shall be so
registered and delivered unless the Paying Agent has received from the Bank
a written notice of the reinstatement of the principal and interest component
of the Credit Facility, or if prior to or simultaneously with such
registration or delivery, the amount available to be drawn under the Credit
Facility is otherwise less than the amount described in Paragraph 317(b)(ii)
determined as if Bonds which are to continue as Pledged Bonds were not
Outstanding.
(30) The second paragraph of Subsection 317(a) amended concurrently with
the amendment and restatement hereof as follows:
Prior to the replacement of any Credit Facility the Company shall have
delivered to the Trustee and the Paying Agent: (i) an opinion of counsel for
the issuer of the substitute Credit Facility to the effect that it
constitutes a legal, valid and binding obligation of the issuer enforceable
in accordance with its terms; (ii) a certificate of the Bank that all
amounts due under the Reimbursement Agreement have been paid and that the
Company has fulfilled all its obligations arising out of such Agreement; and
(iii) unless all of the Bonds to be supported by the substitute Credit
Facility are in the Weekly Mode or are subject to mandatory tender for
purchase on the date of replacement, written evidence from Moody's, if such
Bonds are then rated by Moody's, and from S&P, if such Bonds are then rated
by S&P, that the replacement of the Credit Facility will not in itself result
in the reduction or withdrawal of the rating on the Bonds. Notice of the
substitution or replacement of a Credit Facility shall be sent by the Trustee
to Moody's and S&P.
(31) Clause (iii) of Subsection 317(b) amended concurrently with the
amendment and restatement hereof to change "one year" to "364 days."
(32) New Section 320 from Section 201 of Second Supplement, added
concurrently with the amendment and restatement hereof.
(33) New Section 321 from Section 303 of First Supplement, added
concurrently with the amendment and restatement hereof.
(34) See also new Section 406 from Section 306 of First Supplement for
additional limitations on conversions of 1993 Series E Bonds to new Modes.
(35) Last sentence of Section 405 added by Section 315 of First
Supplement.
(36) New Section 406 from Section 306 of First Supplement, added
concurrently with the amendment and restatement hereof.
(37) New Section 407 from Paragraphs 102(a)(2), (4), and (11) and
Section 309 of First Supplement, added concurrently with the amendment and
restatement hereof.
(38) Now Section 321(g) of this Agreement
IRREVOCABLE LETTER OF CREDIT
NO. 841785
April 14, 1999
U.S. Bank Trust National Association
100 Wall Street, Suite 1600
New York, New York 10005
Attention: Corporate Trust Division
Dear Sir or Madam:
We hereby establish, at the request and for the account of Public
Service Company of New Hampshire (the "Account Party"), in your favor, as
paying agent (the "Paying Agent") under that certain Amended and Restated
Series E Loan and Trust Agreement, dated as of April 1, 1999 (the
"Indenture"), by and among the Business Finance Authority (formerly The
Industrial Development Authority) of the State of New Hampshire (the
"Issuer"), the Account Party and State Street Bank and Trust Company, as
trustee (the "Trustee"), pursuant to which $69,700,000 in outstanding
aggregate principal amount of the Issuer's Pollution Control Revenue Bonds
(Public Service Company of New Hampshire Project - 1991 Taxable Series E)
(the "Bonds"), have been issued, our Irrevocable Letter of Credit No. 841785,
in the amount of US $73,666,000 (SEVENTY-THREE MILLION SIX HUNDRED SIXTY-SIX
THOUSAND AND NO ONE-HUNDREDTHS UNITED STATES DOLLARS), subject to reduction
and reinstatement as provided below.
(1) Credit Termination Date. This Letter of Credit shall expire on the
earliest to occur of (i) April 12, 2000 (the "Stated Termination Date"), (ii)
the date upon which we honor a draft accompanying a written and completed
certificate signed by you in substantially the form of Exhibit 2 attached
hereto, and stating therein that such draft is the final draft to be drawn
under this Letter of Credit and that, upon the honoring of such draft, this
Letter of Credit will expire in accordance with its terms, (iii) the date
upon which we receive a written certificate signed by you and stating therein
that no Bonds entitled to the benefits of this Letter of Credit (as
determined in accordance with the Indenture) ("Eligible Bonds") are
"outstanding" under the Indenture, (iv) the fifth business day following
receipt by you and the Trustee of written notice from us that an Event of
Default (as defined below) has occurred under the Reimbursement Agreement (as
defined below) and of our determination to terminate this Letter of Credit on
such fifth business day and (v) the date upon which we receive a written
certificate signed by you and stating therein that a substitute or
replacement Credit Facility (as defined in the Indenture) has been provided
pursuant to Section 317 of the Indenture (such earliest date being the
"Credit Termination Date").
As used herein, the term "business day" shall mean any day of the year
(i) that is not a Sunday or legal holiday or a day on which banking
institutions are authorized pursuant to law to close, (ii) that is not a day
on which the corporate trust office of the First Mortgage Bond Trustee (as
defined in the Indenture) is not open for business, (iii) that is a day on
which banks are not required or authorized to close in New York City and (iv)
that is a day on which banking institutions in all of the cities in which the
principal offices of the Trustee, the Paying Agent and the Remarketing Agent
(as defined in the Indenture) are located are not required or authorized to
remain closed and on which the New York Stock Exchange is not closed.
As used herein "Reimbursement Agreement" shall mean the Third Series E
Letter of Credit and Reimbursement Agreement, dated as of April 14, 1999,
between the Account Party, us and certain Participating Banks referred to
therein, and the term "Event of Default" shall mean an "Event Default" as
that term is defined in the Reimbursement Agreement.
(2) Principal, Interest and Premium Components. The aggregate amount
which may be drawn under this Letter of Credit, subject to reductions in
amount and reinstatement as provided below, is US $73,666,000 (SEVENTY-THREE
MILLION SIX HUNDRED SIXTY-SIX THOUSAND AND NO ONE-HUNDREDTHS UNITED STATES
DOLLARS), of which the aggregate amounts set forth below may be drawn as
indicated.
(i) An aggregate amount not exceeding US$69,700,000 (SIXTY-NINE
MILLION SEVEN HUNDRED THOUSAND AND NO ONE-HUNDREDTHS UNITED STATES
DOLLARS), as such amount may be reduced and reinstated as provided
below, (the "Principal Component") may be drawn in respect of payment of
principal (whether upon scheduled or accelerated maturity, or upon
redemption) of Eligible Bonds or the portion of the purchase price of
Eligible Bonds corresponding to principal.
(ii) An aggregate amount not exceeding US$3,966,000 (THREE MILLION
NINE HUNDRED SIXTY-SIX THOUSAND AND NO ONE-HUNDREDTHS UNITED STATES
DOLLARS), as such amount may be reduced and reinstated as provided
below, (the "Interest Component") may be drawn in respect of payment of:
(A) accrued and unpaid interest on Eligible Bonds not in the
Flexible Mode (as defined in the Indenture) or that portion of the
redemption price or purchase price of such Eligible Bonds
corresponding to accrued and unpaid interest, but not more than an
amount equal to accrued and unpaid interest on such Eligible Bonds
for up to a maximum of 128 days immediately preceding the date of
such drawing; and
(B) unpaid interest (whether accrued or to accrue) on
Eligible Bonds in the Flexible Mode or that portion of the
redemption price or purchase price of such Eligible Bonds
corresponding to such interest, but not more than an amount equal
to such interest on such Eligible Bonds for up to a maximum of 128
days immediately preceding the next Purchase Date (as defined in
the Indenture) for each such Eligible Bond (or, if interest on any
such Eligible Bond was not paid on the most recent Purchase Date
for such Bond, for up to a maximum of 128 days immediately
preceding the date of such drawing);
calculated, in each case referred to in the foregoing clause (A) or
clause (B) at a maximum rate of sixteen percent (16%) per annum on the
basis of a year of 360 days for the actual days elapsed, or such lesser
rate of interest as shall equal the Maximum Interest Rate (as defined in
the Indenture) in effect under the Indenture with respect to such
Eligible Bonds (whether or not in the Flexible Mode).
(iii) An aggregate amount not exceeding US$0.00 (ZERO UNITED
STATES DOLLARS) may be drawn in respect of premium on Eligible Bonds
(the "Premium Component"). If, subsequent to the date hereof, the
Premium Component shall be increased by us at the request of the Account
Party, the Premium Component shall be subject to reduction as provided
below, and amounts drawn in respect thereof shall not be subject to
reinstatement.
(3) Drawings. Funds under this Letter of Credit are available to you
against (i) your draft, stating on its face: "Drawn under Irrevocable Letter
of Credit No. 841785, dated April 14, 1999", and (ii) the appropriate
certificate specified below, purportedly executed by you and appropriately
completed.
Exhibit Setting Forth
Type of Drawing Form of Certificate Required
Tender Drawing
(as hereinafter defined) Exhibit 1
Redemption/Mandatory Exhibit 2
Purchase Drawing (as
hereinafter defined)
Interest Drawing (as hereinafter Exhibit 3
defined)
Drafts and certificates hereunder shall be dated the date of
presentation and shall be presented at our office located at 222 Broadway,
12th Floor, New York, New York 10038, Attention: Trade Services Group (or at
such other office as we may designate by written notice to you). Presentation
of such drafts and certificates may be made (a) by physical presentation of
such drafts and certificates or (b) by facsimile transmission of such drafts
and certificates received by us at (212) 412-5111 (or at such other number as
we may designate by written notice to you) with prior telephone notice to us
at (212) 412-5121, Attention: Pam Seeley (or at such other number as we may
designate by written notice to you) that such presentation is to be made by
facsimile transmission and with the original executed drafts and certificates
to be received by us not later than our close of business on the next
business day, it being understood that payments hereunder shall be made upon
receipt by us of such facsimile transmission; provided however; that
presentations of drafts and certificates relating to Tender Drawings in
respect of Eligible Bonds in the Flexible Mode shall in all instances be made
in accordance with the foregoing clause (b). Drafts drawn under and in
strict compliance with the terms of this Letter of Credit will be duly
honored by us upon presentation thereof in accordance with this Paragraph 3
if presented on or prior to 4:00 P.M. (New York City time) on the Credit
Termination Date as follows:
(i) Tender Drawings; Flexible Mode: In the case of drafts and
certificates relating to Tender Drawings in respect of Eligible Bonds in
the Flexible Mode presented in accordance with the foregoing clause (b):
(A) if such drafts and certificates are presented as
aforesaid at or prior to 1:30 P.M. (New York City time) on a
business day, and provided that such drafts and certificates
strictly conform to the requirements of this Letter of Credit, we
will initiate a wire transfer of the amount so drawn to your
account indicated below at or prior to 3:30 P.M. (New York City
time) on the same business day;
(B) if such drafts and certificates are presented as
aforesaid after 1:30 P.M. but at or prior to 4:00 P.M. New York
City time) on a business day, and provided that such drafts and
certificates strictly conform to the requirements of this Letter of
Credit, we will initiate a wire transfer of the amount so drawn to
your account indicated below at or prior to 10:00 A.M. on the
business day next succeeding the business day on which such drafts
and certificates were presented (notwithstanding that such day of
presentation may have been the Credit Termination Date); and
(C) if such drafts and certificates are presented as
aforesaid after 4:00 P.M. (New York City time) on a business day,
and provided that such drafts and certificates strictly conform to
the requirements of this Letter of Credit, we will initiate a wire
transfer of the amount so drawn to your account indicated below at
or prior to 1:00 P.M. (New York City time) on the business day next
succeeding the business day on which such drafts and certificates
were presented (notwithstanding that such day of presentation may
have been the Credit Termination Date);
and
(i) All Other Drawings: In the case of any other drafts and
certificates:
(A) if such drafts and certificates are presented as
aforesaid at or prior to 4:00 P.M. (New York City time) on a
business day, and provided that such drafts strictly conform to the
requirements of this Letter of Credit, we will initiate a wire
transfer of the amount so drawn to your account indicated below at
or prior to 10:00 A.M. (New York City time) on the business day
next succeeding the business day on which such drafts and
certificates were presented (notwithstanding that such day of
presentation may have been the Credit Termination Date); and
(B) if such drafts and certificates are presented as
aforesaid after 4:00 P.M. New York City time) on a business day,
and provided that such drafts and certificates strictly conform to
the requirements of this Letter of Credit, we will initiate a wire
transfer of the amount so drawn to your account indicated below at
or prior to 1:00 P.M. (New York City time) on the business day next
succeeding the business day on which such drafts and certificates
were presented (notwithstanding that such day of presentation may
have been the Credit Termination Date).
Wire transfers of funds paid in respect of any drawing hereunder shall be
made to your Account No. 173101851827 at U.S. Bank Trust, N.A. (ABA #
091000022), Attn: Merilyn Hess, reference: State of New Hampshire (PSNH), or
to such other account as you may from time to time specific to us in writing.
All payments made by us under this Letter of Credit will be made with our own
funds and not with any funds of the Account Party or the Issuer.
(4) Reductions. The Interest Component shall be reduced immediately
following our honoring any draft drawn hereunder to pay unpaid interest on
Eligible Bonds or to pay that portion of the purchase price or redemption
price corresponding to unpaid interest on Eligible Bonds, in each case by an
amount equal to the amount of such draft (any such drawing being an "Interest
Drawing"). The Principal Component shall be reduced immediately following our
honoring any draft drawn hereunder: (i) pursuant to Section 308(c)(ii) of the
Indenture to pay that portion of purchase price corresponding to principal of
Eligible Bonds that are (A) subject to mandatory tender for purchase pursuant
to Section 301(d)(iii), 301(e)(iv)(B) or 301(f)(iii) of the Indenture or (B)
tendered for purchase by the holders thereof pursuant to Section 301(e)(iii)
of the Indenture (any such drawing in respect of the circumstances referred
to in this clause (i) being a "Tender Drawing"), (ii) pursuant to Section
308(c)(i) of the Indenture to pay the principal of Eligible Bonds or that
portion of the redemption price of Eligible Bonds corresponding to principal,
whether at stated maturity, upon acceleration or upon redemption, or (iii)
pursuant to Section 308(c)(ii) of the Indenture to pay that portion of the
purchase price corresponding to principal of Eligible Bonds that are subject
to mandatory tender for purchase pursuant to Section 301(e)(iv)(A) of the
Indenture (any such drawing in respect of the circumstances referred to in
the foregoing clause (ii) or in this clause (iii) being a
"Redemption/Mandatory Purchase Drawing"), in each such case by an amount
equal to the amount of such draft. The Premium Component shall be reduced
immediately following our honoring any draft drawn hereunder to pay premium
on Eligible Bonds in connection with a Redemption/Mandatory Purchase Drawing,
by an amount equal to the amount of such draft.
Additionally, upon receipt of a Notice of Reduction in the form of
Exhibit 4 to this Letter of Credit purportedly executed by you, we will
reduce the Principal Component, Interest Component and Premium Component to
the amounts therein stated.
(5) Reinstatement. The Interest Component and the Principal Component
shall, from time to time, be reinstated by us in accordance with, and only to
the extent provided in, the following subparagraphs (i) and (ii). In no event
shall reductions in the Premium Component be reinstated.
(i) Interest Component. Reductions in the Interest Component
resulting from Interest Drawings shall be reinstated as follows:
(A) Immediately following each drawing hereunder to pay
unpaid interest on Eligible Bonds in the Flexible Mode or to pay
that portion of purchase price, but not redemption price,
corresponding to unpaid interest on Eligible Bonds in the Flexible
Mode, the amount so drawn shall be automatically reinstated to the
Interest Component unless, not later than the business day
preceding such drawing you shall have received written notice from
us that we will not reinstate the Interest Component in the amount
of such drawing. On the fifth day following each drawing hereunder
to pay accrued and unpaid interest on Eligible Bonds that are not
in the Flexible Mode, or to pay that portion of purchase price, but
not redemption price, corresponding to accrued and unpaid interest
on Eligible Bonds that are not in the flexible Mode, the amount so
drawn shall be automatically reinstated to the Interest Component,
unless you shall have theretofore received written notice from us
that we will not reinstate the Interest Component in the amount of
such drawing. Any notice of non-reinstatement delivered pursuant to
this subparagraph (i)(A) shall be in writing and shall be delivered
to you by hand delivery or facsimile transmission.
(B) If, subsequent to any such delivery of a notice of non-
reinstatement as aforesaid, we shall deliver to you, by hand
delivery or facsimile transmission, a Notice of Reinstatement in
the form of Exhibit 5 hereto, then, upon such delivery to you, the
Interest Component shall be immediately reinstated to the extent
specified in such Notice of Reinstatement.
(C) In no event shall the Interest Component be reinstated to
an amount in excess of 128 days' interest on all Eligible Bonds,
computed at the rate of 16% per annum on the basis of a year of 360
days for the actual days elapsed, or such lesser rate of interest
as shall equal the Maximum Interest Rate (as defined in the
Indenture) in effect under the Indenture with respect to such
Eligible Bonds.
(ii) Principal Component. Reductions in the Principal Component
resulting from Redemption/Mandatory Purchase Drawings shall in no event
be reinstated. Reductions in the Principal Component resulting from
Tender Drawings shall be reinstated as follows:
(A) Immediately upon receipt by us of proceeds from the
remarketing of Pledged Bonds (as defined in the Indenture), or of
written notice from you that you have received such proceeds (or a
window receipt guaranteeing same day payment in immediately
available funds of such proceeds as contemplated by Section 312(a)
of the Indenture), the Principal Component shall be reinstated
automatically by the amount of such proceeds.
(B) Immediately upon your receipt from us, by hand delivery
or facsimile transmission, of a Notice of Reinstatement in the form
of Exhibit 5 hereto, the Principal Component shall be immediately
reinstated to the extent specified in such Notice of Reinstatement.
(C) In no event shall the Principal Component be reinstated
to an amount in excess of the aggregate principal Eligible Bonds
then outstanding under the Indenture.
Any Notice of Reinstatement delivered to you in the form set forth in Exhibit
5 hereto, whether delivered pursuant to subparagraph (i) or subparagraph
(ii), above, may be combined, in a single such Notice, with any other Notice
of Reinstatement delivered pursuant to the other such subparagraph.
(6) Notices. Communications (other than drawings) with respect to this
Letter of Credit shall be in writing and shall be addressed to us at 222
Broadway, 12th Floor, New York, New York 10038, Attention: Client Services
Unit, (telephone: (212) 412-3721, telecopy: (212) 412-5306), with a copy to:
Utilities Group, (telephone (212) 412-2470, telecopy: (212) 412-6709), or, in
each case, at such other office or telepcopy number as we may designate by
written notice to you specifically referring to the number of this Letter of
Credit.
(7) Transfer. This Letter of Credit is transferable in its entirety
(but not in part) to any transferee who has succeeded you as Paying Agent
under the Indenture and may be successively so transferred. Transfer of the
available balance under this Letter of Credit to such transferee shall be
effected by the presentation to us of this Letter of Credit accompanied by a
certificate substantially in form set forth in Exhibit 6.
(8) Governing Law, Etc. Except as otherwise provided herein, this
Letter of Credit shall be governed by and construed in accordance with the
International Standby Practices 1998 ("ISP 98") and, to the extent not
inconsistent with the ISP, the laws of the State of New York, including the
Uniform Commercial Code as in effect in the State of New York. This Letter of
Credit sets forth in full our undertaking, and, except as expressly set forth
herein, such undertaking shall not in any way be modified, amended, amplified
or limited by reference to any document, instrument or agreement referred to
herein (including, without limitation, the Bonds, the Indenture and the
Reimbursement Agreement), except only the certificates and the drafts
referred to herein; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except for such
certificates and such drafts. Whenever and wherever the terms of this Letter
of Credit shall refer to the purpose of a draft hereunder, or the provisions
of any agreement or document pursuant to which such draft may be presented
hereunder, such purpose or provisions shall be conclusively determined by
reference to the certificate accompanying such draft; in furtherance of this
sentence, whether any drawing is in respect of payment of regularly scheduled
interest on the Bonds or of principal of or interest on the Bonds upon
scheduled or accelerated maturity or is a Tender Drawing or a
Redemption/Mandatory Purchase Drawing shall be conclusively determined by
reference to the certificate accompanying such drawing.
Very truly yours,
BARCLAYS BANK PLC,
NEW YORK BRANCH
By
Title:
By
Title:
EXHIBIT 1
TO THE LETTER OF CREDIT
CERTIFICATE FOR TENDER DRAWING
The undersigned, a duly authorized officer of (the
"Paying Agent"), hereby certifies as follows to Barclays Bank PLC, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit No.
(the "Letter of Credit") issued by the Bank in favor of the Paying Agent.
Terms defined in the Letter of Credit and used but not defined herein shall
have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a Tender Drawing under the Letter of
Credit in the amount of $ pursuant to Section 308(c)(ii) of the
Indenture to pay that portion of the purchase price corresponding to
principal of Eligible Bonds that are
[subject to mandatory tender for purchase pursuant to Section
[301(d)(iii)] [301(e)(iv)(B)] [301(f)(iii)] of the Indenture.]
[tendered for purchase by the holders thereof pursuant to Section
301(e)(iii) of the Indenture.]
(3) The amount of purchase price corresponding to principal of Eligible
Bonds and with respect to the payment of which the Paying Agent, pursuant to
the foregoing Sections of the Indenture, is drawing under the Letter of
Credit, is as follows, and the amount of the draft accompanying this
Certificate does not exceed such amount:
Principal: $
(4) The amount of the draft accompanying this Certificate being drawn
in respect of purchase price corresponding to principal of Eligible Bonds, as
indicated in paragraph (3), above, does not exceed the Principal Component of
the Letter of Credit. The amount of the draft accompanying this Certificate
in respect of purchase price corresponding to principal of such Bonds has
been computed in accordance with the terms and conditions of such Eligible
Bonds and the Indenture.
(5) No proceeds of this drawing will be applied to the payment of
purchase price of any Bonds that are not Eligible Bonds, including any
Pledged Bonds (as defined in the Indenture), any Company Bonds (as defined in
the Indenture) and any Bonds in the Fixed Rate Mode (as defined in the
Indenture).
[(6) The Eligible Bonds in respect of which this drawing is being made
are Eligible Bonds in the Flexible Mode, and payment of this drawing shall be
made in accordance with Paragraph 3(i) of the Letter of Credit.]
[(6) The Eligible Bonds in respect of which this drawing is being made
are not Eligible Bonds in the Flexible Mode, and payment of this drawing
shall be made in accordance with Paragraph 3(ii) of the Letter of Credit].
IN WITNESS WHEREOF, the Paying Agent has executed and delivered
this Certificate as of the day of , .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
EXHIBIT 2
TO THE LETTER OF CREDIT
CERTIFICATE FOR REDEMPTION/
MANDATORY PURCHASE DRAWING
The undersigned, a duly authorized officer of (the "Paying
Agent"), hereby certifies as follows to Barclays Bank PLC, New York Branch
(the "Bank"), with reference to Irrevocable Letter of Credit No.
(the "Letter of Credit") issued by the Bank in favor of the Paying Agent.
Terms defined in the Letter of Credit and used but not defined herein shall
have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a Redemption/Mandatory Purchase Drawing
under the Letter of Credit in the amount of $
[pursuant to Section 308(c)(i) and Section 605 of the Indenture to
pay the principal of Eligible Bonds due pursuant to the Indenture
upon maturity or as a result of acceleration of such Eligible Bonds
in accordance with the Indenture and the terms of such Eligible
Bonds.]
[pursuant to Section 308(c)(i) of the Indenture to pay that portion
of the redemption price corresponding to principal of [and premium
on Eligible Bonds due pursuant to the Indenture upon redemption of
such Eligible Bonds in accordance with the Indenture and the terms
of such Eligible Bonds.]
[pursuant to Section 308(c)(ii) of the Indenture to pay that
portion of the purchase price of Eligible Bonds corresponding to
principal that are subject to mandatory tender for purchase
pursuant to Section 301(e)(iv)(A) of the Indenture.]
(3) The amount of [principal of] [redemption price corresponding to
principal of] [and premium on] [purchase price corresponding to principal of]
Eligible Bonds which is due and payable and with respect to the payment of
which the Paying Agent, pursuant to the foregoing Section[s] of the
Indenture, is to draw under the Letter of Credit is as follows, and the
amount of the draft accompanying this Certificate does not exceed such
amount:
Principal: $
[Premium $ ]
(4) The amount of the draft accompanying this Certificate being drawn
in respect of payment of [principal] [redemption price corresponding to
principal] [purchase price corresponding to principal] of Eligible Bonds, as
indicated in paragraph (3), above, does not exceed the Principal Component of
the Letter of Credit. [The amount of the draft accompanying this Certificate
being drawn in respect of that portion of the redemption price of Eligible
Bonds corresponding to premium, as indicated in paragraph (3), above, does
not exceed the Premium Component of the Letter of Credit.] The amount of the
draft accompanying this Certificate in respect of payment of [principal]
[redemption price corresponding to principal] [and premium] [purchase price
corresponding to principal] of such Eligible Bonds has been computed in
accordance with the terms and conditions of such Eligible Bonds and the
Indenture.
(5) No proceeds of this drawing will be applied to the payment of
principal, redemption price (including premium, if any) or purchase price of
any Bonds that are not Eligible Bonds, including any Pledged Bonds (as
defined in the Indenture), any Company Bonds (as defined in the Indenture),
and any Bonds in the Fixed Rate Mode (as defined in the Indenture).
(6) Payment of this drawing shall be made in accordance with Paragraph
3(ii) of the Letter of Credit.
[(7) The draft accompanying this Certificate is the final draft to be
drawn under the Letter of Credit, and, upon the honoring of such draft, the
Letter of Credit will expire in accordance with its terms.]
IN WITNESS WHEREOF, the Paying Agent has and delivered
executed
this Certificate as of the day of , .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
EXHIBIT 3
TO THE LETTER OF CREDIT
CERTIFICATE FOR INTEREST DRAWING
The undersigned, a duly authorized officer of (the "Paying Agent"),
hereby certifies as follows to Barclays Bank PLC, New York Branch (the
"Bank"), with reference to Irrevocable Letter of Credit No. (the
"Letter of Credit") issued by the Bank in favor of the Paying Agent. Terms
defined in the Letter of Credit and used but not defined herein shall have
the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) The Paying Agent is making a drawing under the Letter of Credit in
the amount of $ with respect to [the payment of interest] [the payment
of the portion of redemption price corresponding to interest] [the payment of
the portion of purchase price corresponding to interest] on Eligible Bonds in
accordance with the Indenture.
(3) The amount of [interest] [redemption price corresponding to
interest] [purchase price corresponding to interest] on Eligible Bonds that
is due and owing is as follows, and the amount of the draft accompanying this
Certificate does not exceed such amount:
Interest: $
(4) The amount of the draft accompanying this Certificate being drawn
in respect of payment of [interest] [redemption price corresponding to
interest] [purchase price corresponding to interest] on Eligible Bonds, as
indicated in paragraph (3), above, does not exceed the Interest Component of
the Letter of Credit. The amount of the draft accompanying this Certificate
in respect of payment of [interest] [redemption price corresponding to
interest] [purchase price corresponding to interest] on Eligible Bonds has
been computed in accordance with the terms and conditions of such Eligible
Bonds and the Indenture.
(5) Payment of this drawing shall be made in accordance with Paragraph
3(ii) of the Letter of Credit.
IN WITNESS WHEREOF, the Paying Agent has executed and delivered this
Certificate as of the day of , .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
EXHIBIT 4
TO THE LETTER OF CREDIT
NOTICE OF REDUCTION
The undersigned, a duly authorized officer of (the
"Paying Agent"), hereby certifies as follows to Barclays Bank PLC, New York
Branch (the "Bank"), with reference to Irrevocable Letter of Credit No.
(the "Letter of Credit") issued by the Bank in favor of the Paying Agent.
Terms defined in the Letter of Credit and used but not defined herein shall
have the meanings given them in the Letter of Credit.
(1) The Paying Agent is the Paying Agent under the Indenture for the
holders of the Bonds.
(2) As of the date hereof; the aggregate principal amount of Eligible
Bonds (including for this purpose all Pledged Bonds and all Company Bonds)
outstanding is
Principal: $
(3) You are hereby directed to reduce the [Principal] [Premium] [and]
[Interest] Components of the Letter of Credit as follows:
[The Principal Component of the Letter is reduced to $ .]
[The Premium Component of the Letter of Credit is reduced to $ .]
[The Interest Component of the Letter of Credit is reduced to $ .]
IN WITNESS WHEREOF, the Paying Agent has delivered this Certificate as
of the day of , .
[NAME OF PAYING AGENT],
as Paying Agent
By
Title:
EXHIBIT 5
TO THE LETTER OF CREDIT
NOTICE OF REINSTATEMENT
The undersigned, a duly authorized officer of Barclays Bank PLC, New York
Branch (the "Bank"), hereby gives the following notice to as
paying agent (the "Paying Agent"), with reference to Irrevocable Letter of
Credit No. (the "Letter of Credit") issued by the Bank in favor of
the Paying Agent. Terms defined in the Letter of Credit and used but not
defined herein have the meanings given them in the Letter of Credit.
The Bank hereby notifies you that:
[1.] [Pursuant to Paragraph 5(i)(B) of the Letter of Credit and Section
2.04(b)(ii) of the Reimbursement Agreement, the Interest Component has
been reinstated by $ .]
[2.] [Pursuant to Paragraph 5(ii)(B) of the Letter of Credit and Section
2.04(c) of the Reimbursement Agreement, the Principal Component has been
reinstated by $ .]
IN WITNESS WHEREOF, the Bank has executed and delivered this Notice
Reinstatement as of the day of ,
BARCLAYS BANK PLC,
NEW YORK BRANCH
By
Title:
EXHIBIT 6
TO THE LETTER OF CREDIT
INSTRUCTIONS TO TRANSFER
Re: Irrevocable Letter of Credit No.
Gentlemen:
The undersigned, as Paying Agent under that certain Amended and
Restated Series E Loan and Trust Agreement, dated as of April 1, 1999 (the
"Indenture"), by and among the Business Finance Authority (formerly The
Industrial Development Authority) of the State of New Hampshire (the
"Issuer"), Public Service Company of New Hampshire and the State Street Bank
and Trust Company, as Trustee, is named as beneficiary in the Letter of
Credit referred to above (the "Letter of Credit"). The Transferee named below
has succeeded the undersigned as Paying Agent under such Indenture.
(Name of Transferee)
(Address)
Therefore, for value received, the undersigned hereby irrevocably
instructs you to transfer to such Transferee all rights of the undersigned to
draw under the Letter of Credit.
Such Transferee shall hereafter have the sole rights as beneficiary
under the Letter of Credit; provided, however, that no rights shall be deemed
to have been transferred to such Transferee until such transfer complies with
the requirements of the Letter of Credit pertaining to transfers.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of the day of , .
[NAME OF RETIRING PAYING AGENT],
as Paying Agent
By
Title:
The undersigned, [Name of Transferee], hereby accepts the foregoing
transfer of rights under the Letter of Credit.
[Name of Transferee]
By
Title:
Address of Principal
Corporate Trust Office:
[insert address]
EXHIBIT 1.01B to
Reimbursement Agreement
PARTICIPATION ASSIGNMENT
Dated , 19
Reference is made to the Third Series E Letter of Credit and
Reimbursement Agreement, dated as of April 14, 1999 (said Agreement as it may
hereafter be amended or otherwise modified from time to time, being the
"Agreement"; unless otherwise defined herein terms defined in the Agreement
are used herein with the same meaning), among Public Service Company of New
Hampshire (the "Account Party"), Barclays Bank PLC, New York Branch
("Barclays"), as Issuing Bank, the Participating Banks named therein and from
time to time parties thereto, and Barclays, as Agent. Pursuant to the
Agreement, (the "Assignor") has purchased a participation from
the Issuing Bank in and to the Letter of Credit and each payment thereunder
and demand loan made by the Issuing Bank and has committed to make Advances
to the Account Party.
The Assignor and (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor,
without recourse to the Assignor that portion set forth in Section 1(c) of
Schedule 1 hereto (the "Assigned Interest") of the Assignor's rights and
obligations under the Agreement and the Pledge Agreement, including, without
limitation, the participation purchased by the Assignor pursuant to
Section 3.07 of the Agreement in respect of unreimbursed amounts and demand
loans owing from time to time to the Issuing Bank, the Commitment of the
Assignor to make Advances and the Advances outstanding on the Effective Date
(as hereinafter defined). Such Assigned Interest represents the percentage
interest specified in Section 2(b) of Schedule 1 of all outstanding rights
and obligations of the Participating Banks under the Agreement, and, after
giving effect to such sale and assignment, the Assignee's and Assignor's
Participation Percentages will be as set forth in Sections 2(b) and 2(c),
respectively, of Schedule 1. The effective date of this sale and assignment
shall be the date specified in Section 3 of Schedule 1 (the "Effective
Date").
2. On the Effective Date, the Assignee will pay to the Assignor, in
same day funds, at such address and account as the Assignor shall advise the
Assignee, an amount equal to (1) the aggregate amount of unreimbursed letter
of credit payments, demand loans and Advances outstanding (as set forth in
Section 1 of Schedule 1) times (2) the Assigned Interest. From and after the
Effective Date, the Assignor agrees that the Assignee shall be entitled to
all rights, powers and privileges of the Assignor under the Agreement and the
Pledge Agreement to the extent of the Assigned Interest, including without
limitation (i) the right to receive all payments in respect of the Assigned
Interest for the period from and after the Effective Date, whether on account
of reimbursements, principal, interest, fees, indemnities in respect of
claims arising after the Effective Date, increased costs, additional amounts
or otherwise; (ii) the right to vote and to instruct the Agent and the
Issuing Bank under the Agreement based on the Assigned Interest; (iii) the
right to set-off and to appropriate and apply deposits of the Account Party
as set forth in the Agreement; and (iv) the right to receive notices,
requests, demands and other communications. The Assignor agrees that it will
promptly remit to the Assignee any amount received by it in respect of the
Assigned Interest (whether from the Account Party, the Agent or otherwise) in
the same funds in which such amount is received by the Assignor.
3. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreement or
the Related Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreement the Related Documents or
any other instrument or document furnished pursuant thereto; and (iii) makes
no representation or warranty and assumes no responsibility with respect to
the financial condition of the Account Party or the performance or observance
by the Account Party of any of its obligations under the Agreement, the
Related Documents or any other instrument or document furnished pursuant
thereto.
4. The Assignee (i) confirms that it has received a copy of the
Agreement together with copies of the financial statements referred to in
Section 6.01(e) thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment; (ii) agrees that it will, independently and without reliance
upon the Agent, the Issuing Bank, the Assignor or any other Participating
Bank and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under the Agreement and the Related Documents; (iii) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Agreement and the Pledge Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in accordance
with its terms all of the obligations which by the terms of the Agreement are
required to be performed by it as a Participating Bank and (v) confirms that
it has paid the processing fee referred to in subsection 10.06(b) of the
Agreement.
5. Following the execution of this Assignment, it will be delivered to
the Agent for acceptance and recording by the Agent. Upon such acceptance
and recording and receipt of the consent of the Issuing Bank required
pursuant to Section 10.06(b) of the Agreement (which shall be evidenced by
the Issuing Bank's execution of this Assignment on the appropriate space on
Schedule 1), as of the Effective Date, (i) the Assignee shall be a party to
the Agreement and, to the extent provided in this Assignment, have the rights
and obligations of a Participating Bank thereunder and under the Pledge
Agreement and (ii) the Assignor shall, to the extent provided in this
Assignment, relinquish its rights and be released from its obligations under
the Agreement and the Pledge Agreement.
6. Upon such acceptance, recording and consent, from and after the
Effective Date, the Agent shall make all payments under the Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and fees with respect thereto) to the
Assignee at its address set forth on Schedule 1 hereto. The Assignor and
Assignee shall make all appropriate adjustments in payments under the
Agreement for periods prior to the Effective Date directly between
themselves.
7. This Assignment shall be governed by, and construed in accordance
with, the laws of the State of New York.
8. This Assignment may be executed in counterparts by the parties
hereto, each of which counterpart when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their respective officers thereunto duly authorized, as of the
date first above written, such execution being made on Schedule 1 hereto.
Schedule 1
to
Participation Assignment
Dated , 19
Section 1.
(a) Total Unreimbursed Payments and demand loans
$
(b) Total Advances:
$
(c) Assigned Interest (1)
%
(1) Specify percentage to no more than 8 decimal points.
Section 2.
(a) Assignor's Participation Percentage (immediately prior to the
effectiveness of this Assignment)
%
(b) Assignee's Participation Percentage(2)
%
(c) Assignor's Participation Percentage(3) (upon the effectiveness of this
Assignment)
%
Section 3.
Effective Date.(3)
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
[Address]
Telecopier No.
Attention:
(2) The sum of the percentages set forth in Section 2(b) and (c) shall equal
to the percentage set forth in Section 2(a).
(3) Such date shall be at least 5 Business Days after the execution of this
Assignment.
Consented to and Accepted this day(4)
of ,
BARCLAYS BANK, PLC,
NEW YORK BRANCH, as
Issuing Bank and as Agent
By:
Title:
APPLICABLE LENDING OFFICES
The Assignee's Applicable Lending Offices are as follows:
Domestic Lending Office:
Eurodollar Lending Office:
(4) Not to be accepted without proof of Account Party's consent pursuant to
Section 10.06(b) of the Reimbursement Agreement.